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Judicial Watch, Inc. v. United States Secret Serv.

United States Court of Appeals for the District of Columbia Circuit

September 18, 2012, Argued; August 30, 2013, Decided

No. 11-5282


 [*211]  [**443]   Garland, Chief Judge: Judicial Watch filed a Freedom of Information Act (FOIA) request with the Secret Service, seeking records of every visitor to the White House Complex over a period of seven months. The Secret Service denied the request, arguing  [***2] that the requested documents are not "agency records" subject to disclosure under FOIA. The district court rejected that argument and ordered the agency to release the records or assert specific FOIA exemptions on a document-by-document basis. We reverse in part and affirm in part.

In both the 1974 FOIA Amendments and the 1978 Presidential Records Act, Congress made clear that it did not want documents like the appointment calendars of the President and his close advisors to be subject to disclosure under FOIA. Granting Judicial Watch's request for certain visitor records, however, would effectively disclose the contents of those calendars. For the reasons discussed below, we conclude that such records are not "agency records" within the meaning of FOIA.

In addition to the President and his advisors, the White House Complex also houses components that Congress did intend to subject to FOIA. We conclude that records of visits to those components are "agency records" subject to disclosure under the Act.

In 1951, the year after two men attempted to assassinate President Truman just across the street from the White House, Congress permanently authorized the Secret Service to protect the  [***3] President and Vice President. See Pub. L. No. 82-79, § 4, 65 Stat. 121, 122 (1951) (codified at 18 U.S.C. § 3056(a)). Upon signing the legislation, Truman reportedly remarked: "Well, it is wonderful to know that the work of protecting me has at last become legal." Philip H. Melanson, The Secret Service: The Hidden History of an Enigmatic Agency 54 (2002).1 In 1984, three years after an attempt on the life of President Reagan, Congress made acceptance of such protection by the President, Vice President, President-elect, and Vice President-elect mandatory. See Pub. L. No. 98-587, 98 Stat. 3110 (1984) (codified at 18 U.S.C. § 3056(a)).2

 [*212]  [**444]   The Secret Service's authorizing statute extends protection not only to the persons of the President and Vice President, but also to the buildings in which they live and work, including the White House Complex. See 18 U.S.C. § 3056A(a)(1)-(2); White Decl. ¶ 5. The White House Complex includes the White House, the Eisenhower Executive Office Building (EEOB), their surrounding grounds, and the New Executive Office Building. White Decl. ¶ 4. Those buildings house offices for the President and the Vice President, as well as their staff and advisors.

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726 F.3d 208 *; 406 U.S. App. D.C. 440 **; 2013 U.S. App. LEXIS 18119 ***; 2013 WL 4608141


Prior History:  [***1] Appeal from the United States District Court for the District of Columbia. (No. 1:09-cv-02312).

Judicial Watch, Inc. v. United States Secret Serv., 803 F. Supp. 2d 51, 2011 U.S. Dist. LEXIS 91513 (D.D.C., 2011)


records, Secret, agency record, documents, visitor, Presidential, staff, district court, exemption, requests, separation-of-powers, disclosure, calendars, confidentiality, cases, communications, advisors, disclose, factors, visits, appointment, entity, canon, dispose, servers, special consideration, four-factor, transferred, questions, agencies

Administrative Law, Freedom of Information, Sanctions Against Agencies, Injunctions, Civil Procedure, Appeals, Appellate Jurisdiction, Interlocutory Orders, Defenses & Exemptions From Public Disclosure, General Overview, Methods of Disclosure, Record Requests, Judicial Review, Reviewability, Jurisdiction & Venue, Standards of Review, De Novo Review, Summary Judgment Review, Standards of Review, Summary Judgment, Entitlement as Matter of Law, Appropriateness, Judgments, Evidentiary Considerations, Enforcement, Constitutional Law, The Presidency, Case or Controversy, Constitutional Questions, Necessity of Determination, Governments, Legislation, Interpretation, Governmental Information, Executive Privilege, Burdens of Proof