KATHERINE POLK FAILLA, United States District Judge.
Plaintiffs Kate Doyle, National Security Archive ("NSA"), Citizens for Responsibility
Defendants have moved for summary judgment on Plaintiffs' FOIA claims and to dismiss the remainder of Plaintiffs' claims for lack of subject matter jurisdiction and, alternatively, for failure to state a claim. For the reasons that follow, the Court grants in part and denies in part Defendants' motion for summary judgment, and grants Defendants' motion to dismiss in full.
"Plaintiff [NSA] is an independent, non-governmental, non-profit research institute organized under section 501(c)(3) of the Internal Revenue Code." (Am. Compl. ¶ 5). The NSA obtains government documents through FOIA, and "collects, analyzes, and publishes" them "to enrich scholarship and journalism ..., and to promote openness and government accountability." (Id.). Plaintiff Kate Doyle is a senior analyst focusing on United States policy in Latin America, who works in NSA "to open and analyze government files, including through the use of the FOIA." (Id. at ¶ 4).
"Plaintiff CREW is a non-profit, non-partisan organization organized under section 501(c)(3) of the Internal Revenue Code." (Am. Compl. ¶ 6). CREW advocates for government openness and accountability through "a combination of research, litigation, and advocacy." (Id.). A similar operation, Plaintiff Knight First Amendment Institute at Columbia University is a New York not-for-profit corporation seeking "to preserve and expand the freedoms of
DHS is a federal agency that includes, as one of its components, the United States Secret Service, which is required by statute to provide security to the President and Vice President. See 18 U.S.C. §§ 3056(a)(1), 3056A(a)(4). Acceptance of the Secret Service's protection is mandatory for the President, Vice President, President-elect, and Vice President-elect. See Judicial Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208, 211 (D.C. Cir. 2013) (citing Pub. L. No. 98-587, 98 Stat. 3110 (1984))(codified at 18 U.S.C. § 3056(a)). (See also Murray Decl. ¶ 3). The Secret Service's protection also extends to the edifices associated with the offices of the President and Vice President. See 18 U.S.C. § 3056A(a).
The Executive Office of the President (the "EOP") comprises various bodies, including the White House Office, which, in turn, includes the President's immediate staff, the White House Counsel's Office, and the Staff Secretary's Office. (Herndon Decl. ¶ 2). The EOP also encompasses the Council on Environmental Quality ("CEQ"); the Office of Management and Budget ("OMB"); the Office of National Drug Control Policy ("ONDCP"); the Office of Science and Technology Policy ("OSTP"); and the Office of the United States Trade Representative ("USTR"). (Am. Compl. ¶ 9).
Plaintiffs seek from the DHS records maintained by the Secret Service spanning the period of January 20, 2017, through March 8, 2017, related to visits to the White House and to President Trump at his Mar-a-Lago and Trump Tower residences. (See Am. Compl. ¶¶ 1, 34, 39). DHS contends that although the security responsibility of the Secret Service extends to the White House Complex, it "does not have a similar statutory authority to protect Mar-a-Lago or Trump Tower." (Murray Decl. ¶ 3). The declarations that DHS has submitted in support of its motions thus focus on the policies and procedures attendant to records of White House Complex visitors, and this section summarizes those guidelines.
In order to vet, identify, and monitor visitors to the White House Complex, the Secret Service employs two interconnected electronic systems: (i) the Executive Facilities Access Control System ("EFACS"), through which the Secret Service controls and monitors White House Complex access; and (ii) the Worker and Visitor Entrance System ("WAVES"), which the Secret Service uses to vet visitors to the White House Complex. (Murray Decl. ¶¶ 6-7).
Authorized White House Complex passholders may request permission for a visitor to the White House Complex by providing visitor information to the Secret Service through a system called "Appointment Center" or the "WAVES Request System" ("WRS"). (Murray Decl. ¶ 8). Through these systems, WAVES gathers information related to prospective visitors, which information allows a Secret Service member to verify that the requestor is authorized to make appointments for the location requested, to acquire additional information, to conduct a background check, and to transmit the information to the EFACS server. (Id.). WAVES records include a variety of information fields, such as whether a visit is related to a certain
When an individual receives approval to visit the White House Complex, he or she typically receives a badge to "swipe" over electronic badge readers located at entrances and exits to the White House Complex; each swipe generates an "Access Control Record" ("ACR") within the EFACS system. (Murray Decl. ¶ 10). An ACR contains information such as the visitor's name, and the date, time, and location at which the ACR was generated, which, "[o]nce a visit takes place," is integrated into the WAVES records. (Id. at ¶¶ 10-11). These aggregated records contain information identifying the visitor, visitee, and individual who made the appointment; as well as details of the visit, such as the points of entry and departure, the type of escort the visit requires, and whether the visit involved a highly sensitive meeting. (Willson Decl. ¶ 7). This dispute principally revolves around WAVES and ACR records.
DHS contends that because the Secret Service utilizes WAVES records to vet potential visitors and verify visitors' admissibility at the time of a visit, the Secret Service ceases to have an interest in maintaining such information after the completion of a visit. (See Murray Decl. ¶¶ 8, 13). Thus, "[s]ince at least 2001," the Secret Service has maintained a practice of transferring WAVES records to the White House Office of Records Management ("WHORM") "generally every 30 to 60 days." (Id. at ¶ 13; see also Droege Decl. ¶ 4). "[A]s early as 2001," the White House and Secret Service agreed that ACR records "should be treated in a manner generally consistent with WAVES records," and thus, "[s]ince at least 2006," the Secret Service has transferred ACR records to the WHORM every 30 to 60 days. (Droege Decl. ¶ 5).
"[S]ince at least 2009," the Secret Service has transferred WAVES records to WHORM every 30 days. (Murray Decl. ¶ 13; see also Willson Decl. ¶ 5; Droege Decl. ¶ 4). After transferring the records, "[i]t is the intent of the Secret Service" that the records "be erased from [their] computer system," and WAVES records over 60-days old are normally "auto-deleted" and "overwritten on the servers." (Murray Decl. ¶ 13; see also Willson Decl. ¶ 6 ("Records that are older than 60 days are ordinarily auto-deleted from the server operated by the Secret Service on a rolling basis.")).
In May 2006, the Secret Service Records Management Program and WHORM entered into a Memorandum of Understanding (the "2006 MOU"), which reflected the above practices regarding WAVES and ACR records. (See Murray Decl. ¶ 14; Droege Decl. ¶ 6). The 2006 MOU also expressed the Secret Service's and WHORM's understanding that such records "are at all times Presidential Records," "are not Federal Records," and "are not the records of an `agency' subject to the Freedom of Information Act[.]" (Murray Decl., Ex. A at ¶ 17). The 2006 MOU also provided that (i) such records "are at all times under the exclusive legal custody and control of the White House"; (ii) only the White House has a "continuing interest"
On March 19, 2015, President Obama issued a memorandum creating the position of the Director of White House Information Technology ("DWHIT"), who is "responsible for the information resources and information systems provided to the President, Vice President and [EOP]." (Herndon Decl. ¶¶ 1, 3). The memorandum also established the Presidential Information Technology Community in order to "bring[] various [information] systems and resources into a single community under the auspices of the DWHIT," which "would enhance the security of those systems and resources." (Id. at ¶¶ 3-4). Pursuant to the authority vested by President Obama's memorandum and in furtherance of the aims of that memorandum, in September 2015, the Presidential Information Technology Community entered into a Memorandum of Understanding with the member-entities of the Presidential Information Technology Community (the "2015 MOU"), including the Secret Service,
The 2015 MOU provides that "[a]ll records created, stored, used, or transmitted by, on, or through the unclassified information systems and information resources provided to the President, Vice President, and EOP shall remain under the exclusive ownership, control, and custody of the President, Vice President, or originating EOP component." (Murray Decl. ¶ 17 (alteration in original); see also Herndon Decl. ¶¶ 8-9). Pursuant to the 2015 MOU — and despite the facts that the "WAVES servers are located at the Secret Service's headquarters ... and Secret Service personnel operate this machinery" — DHS maintains that "the President is the business owner of the EFACS and WAVES systems, and the Secret Service operates those systems on behalf of the President, acting as a service provider." (Murray Decl. ¶ 16). As a result of the 2015 MOU, after a visit has concluded, the Secret Service must request permission from the White House to view records of the visit, and if the records have been transferred to WHORM, the Secret Service must also contact WHORM to access the records. (Id. at ¶ 19). The Secret Service must similarly request permission from the DWHIT to modify the WAVES or EFACS systems. (Id. at ¶ 20).
Under the Obama Administration, on September 15, 2009, the White House implemented a policy of voluntarily disclosing certain information contained in WAVES and ACR records. (Droege Decl. ¶ 12). This disclosure policy contained various exceptions, including information implicating personal privacy or law enforcement concerns, personal safety of EOP staff, and national security concerns. (Id. at ¶ 13). The current administration rescinded this policy on April 14, 2017. (Id. at ¶ 14).
Plaintiffs allege that on January 23, 2017, Plaintiff Kate Doyle sent a FOIA request via facsimile to the Secret Service "requesting all WAVES and ACR records for" January 20 through January 22, 2017. (Am. Compl. ¶ 34). More specifically, Doyle
In any event, on March 10, 2017, Plaintiffs sent a second FOIA request to the Secret Service, seeking the extraction of the same 28 data fields from (i) "all WAVES and ACR records from January 20, 2017 until March 8, 2017," and (ii) "records of presidential visitors at Mar-a-Lago and Trump Tower from January 20, 2017 to March 8, 2017." (Am. Compl. ¶ 39). This second request also sought expedited processing "in light of [Plaintiffs'] significant concerns ... about how President Trump [was] using his private properties at Mar-a-Lago and Trump Tower, the extensive media coverage of this issue, and the refusal of the President to date to commit to releasing the visitor logs data." (Id. at ¶ 40). Unlike the first request, DHS acknowledges receiving this request, to which DHS responded by letter on April 11, 2017, in which it denied Plaintiffs' request for expedited treatment. (See Campbell Decl. ¶ 6; id. at Ex. A).
In response to Plaintiffs' FOIA requests, DHS maintains that WAVES and ACR records are not Secret Service records, but rather are Presidential Records not subject to FOIA; DHS therefore "did not seek to search for, locate, or process these records." (Campbell Decl. ¶ 7). Further, "the Secret Service "was aware that President Trump had not traveled to Trump Tower during the requested time period" and "after confirming this information, the Secret Service did not seek to search for the material requested by Plaintiffs." (Id. at ¶ 8).
The Secret Service handled Plaintiffs' request for information regarding Mar-a-Lago visitors in a different fashion. Although the Secret Service "easily ... confirmed" that it did not "utilize WAVES or ACR records at Mar-a-Lago, it was unclear what, if any, record systems or record groupings might exist in regard to who visited the President at Mar-a-Lago, or where such record systems or record groupings might be located." (Campbell Decl. ¶ 9). The Secret Service thus undertook a set of searches "to determine what, if any, record systems or record groupings existed that might contain information potentially responsive to Plaintiffs' request,"
Further, aside from the 28 data fields that were available under a prior administration,
The Secret Service's search also revealed records involving a visit by the Prime Minister of Japan, Shinzo Abe, along with his wife, to Mar-a-Lago; in addition, the search produced "a handful of records that referred to individuals who were scheduled to meet with the President at Mar-a-Lago." (Campbell Decl. ¶¶ 26-27).
On April 10, 2017, after receiving no response from the Secret Service within the timeframe required under FOIA,
The Court also granted Plaintiffs leave to file an amended complaint and issued a revised summary judgment briefing schedule on September 14, 2017. (Dkt. # 30). The next day, Plaintiffs amended their complaint, which they now bring under FOIA, the APA, the FRA, and the PRA, in pursuit of injunctive and declaratory relief. (See Dkt. # 32). On October 23, 2017, DHS moved for summary judgment on Plaintiffs' FOIA claims and to dismiss the remaining claims for failure to state a claim
The Court's analysis will proceed as follows: First, the Court addresses a request for judicial notice that Plaintiffs made after summary judgment briefing closed; second, the Court addresses Plaintiffs' FOIA claims; third, the Court addresses Plaintiffs' claims involving the APA, FRA, and PRA; and fourth, the Court addresses Plaintiffs' claim for declaratory judgment.
Before addressing the merits of Defendants' motions, the Court resolves a late-breaking dispute among the parties. On February 20, 2018, after summary judgment briefing had concluded, Plaintiffs filed a letter requesting that the Court take judicial notice of a settlement into which the Secret Service had entered in Public Citizen, Inc. v. United States Secret Service, No. 17 Civ. 1669 (CRC) (D.D.C.) (the "Public Citizen Settlement" or the "Settlement"). (Dkt. # 58). The Settlement explains that, much like the case at bar, the plaintiff in that action, Public Citizen, Inc., had submitted FOIA requests to the defendant, the United States Secret Service, seeking WAVES and ACR records, along with records from "any other system used to track visitors to the White House complex." (Dkt. # 58, Ex. A (Settlement Agreement)). These requests "specifically sought records related to visits" to the following EOP components: the OMB, OSTP, ONDCP, and CEQ. (Id.). As a result of the Settlement, the White House was to "add computer functionality to the existing system containing WAVES records by which it can sort WAVES records by the requester's email address[.]" (Id.).
In requesting that the Court judicially notice the Settlement, Plaintiffs contend that the agreement establishes that the "Secret Service can distinguish between records of visits to agency components [of the EOP] from records of visits to non-agency components," as the Settlement requires the Secret Service "to add a functionality to its system that would allow it to sort WAVES records by the requester's email address, process the records [requested by the plaintiff in that separate action], and post them in agency online reading rooms." (Dkt. # 58).
On February 27, 2018, Defendants responded to Plaintiffs' request, providing no objection to the Court taking judicial notice of the Settlement, but arguing that the agreement in fact supported Defendants' pending motions. (Dkt. # 59). In particular, Defendants argue that the Settlement expressly acknowledges that an appointment requester's email address "does not necessarily show that a WAVES record reflects an EOP agency component visit," and that any functionality changes pursuant to the Settlement would be within the control of the White House rather than the Secret Service. (Id.). Indeed, Defendants contend that the Settlement renders moot Plaintiffs' FRA and PRA claims, insofar as they "allege wrongful treatment of agency records by EOP and the Secret Service" for failing to "distinguish between records of visits to Presidential components of EOP (which are not subject to FOIA) and records of visits to agency components of EOP (which are)." (Id.). In Defendants' view, the Settlement "creates a mechanism for doing just that, thereby mooting Plaintiffs' FRA and PRA claims in their entirety,"
Plaintiffs replied to Defendants' response on March 2, 2018, arguing at the outset that Defendants' opposition letter improperly raised grounds for summary judgment and dismissal that were not raised in Defendants' formal briefing. (Dkt. # 60). In addition, Plaintiffs contend that the Public Citizen Settlement does not render the claims at issue moot for three reasons:
(Id.).
Under the Federal Rules of Evidence, a "court may judicially notice a fact that is not subject to reasonable dispute" where it "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b)(2). "[B]ecause the effect of judicial notice is to deprive a party of the opportunity to use rebuttal evidence, cross-examination, and argument to attack contrary evidence, caution must be used in determining that a fact is beyond controversy under Rule 201(b)." Braun v. United Recovery Sys., LP, 14 F.Supp.3d 159, 164 (S.D.N.Y. 2014) (alteration in original) (citation omitted). "A court may take judicial notice of a document filed in another court `not for the truth of the matters asserted in the other litigation, but rather to establish the fact of such litigation and related filings.'" Int'l Star Class Yacht Racing Ass'n v. Tommy Hilfiger U.S.A., Inc., 146 F.3d 66, 70 (2d Cir. 1998) (quoting Liberty Mut. Ins. Co. v. Rotches Pork Packers, Inc., 969 F.2d 1384, 1388 (2d Cir. 1992)).
The scope of Plaintiffs' request for judicial notice of the Public Citizen Settlement far exceeds the purposes for which the Court may properly consider it. Although Defendants do not object to judicial notice of the fact of the Settlement, the parties' submissions on the issue make clear that they vehemently disagree as to which facts the Court should glean from the Settlement Agreement. (Compare Dkt. # 58, 60, with Dkt. # 59). Because both sides have offered plausible views of the practical implications of the Settlement, a
Moreover, to grant Plaintiffs' request would not only require the Court to consider the Settlement for the truth of the matters stated therein, but to make the inferential leap of drawing facts from the Settlement that are not necessarily borne out by its terms. To be sure, a court may judicially notice a settlement agreement to establish the fact of a prior litigation. See, e.g., Deylii v. Novartis Pharm. Corp., No. 13 Civ. 6669 (NSR), 2014 WL 2757470, at *4 (S.D.N.Y. June 16, 2014) (collecting cases). But it may not do so to take as true any facts contained in such settlement agreement. See Int'l Star Class Yacht Racing Ass'n, 146 F.3d at 70. The Court therefore denies Plaintiffs' request that the Court judicially notice the Public Citizen Settlement.
FOIA vests federal courts with "jurisdiction to enjoin [a federal] agency from withholding agency records and to order the production of any agency records improperly withheld[.]" 5 U.S.C. § 552(a)(4)(B).
Summary judgment is the usual mechanism for resolving a FOIA dispute. N.Y. Times Co. v. United States Dep't of Justice, 235 F.Supp.3d 522, 529 (S.D.N.Y. 2017). Federal jurisdiction over a FOIA action requires "a showing that an agency has [i] `improperly' [ii] `withheld' [iii] `agency records,'" and "[o]nly when these criteria are met may a district court `force an agency to comply with the FOIA's disclosure requirements.'" Grand Cent. P'ship, 166 F.3d at 478 (quoting U.S. Dep't of Justice v. Tax Analysts ("Tax Analysts II"), 492 U.S. 136, 142, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989)). Where, as here, "the question is whether requested documents are `agency records' subject to disclosure under FOIA, `[t]he burden is on the agency to demonstrate, not the requester to disprove, that the materials sought are not `agency records[.]'" Id. (quoting Tax Analysts
A district court considering a FOIA claim "may grant summary judgment in favor of an agency `on the basis of agency affidavits if they contain reasonable specificity of detail rather than merely conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith.'" Grand Cent. P'ship, 166 F.3d at 478 (quoting Gallant v. NLRB, 26 F.3d 168, 171 (D.C. Cir. 1994)); see also Garcia v. U.S. Dep't of Justice, Office of Info. & Privacy, 181 F.Supp.2d 356, 366 (S.D.N.Y. 2002) ("If the agency's submissions are facially adequate, summary judgment is warranted unless the plaintiff can make a showing of bad faith on the part of the agency or present evidence that the exemptions claimed by the agency should not apply."). "As such, where the agency's submissions are `adequate on their face,' district courts `may forgo discovery and award summary judgment on the basis of affidavits.'" N.Y. Times Co., 235 F.Supp.3d at 529 (quoting Carney v. U.S. Dep't of Justice, 19 F.3d 807, 812 (2d Cir. 1994)). Conversely, "[s]ummary judgment in favor of the FOIA plaintiff is appropriate `when an agency seeks to protect material which, even on the agency's version of the facts, falls outside the proffered exemption." Nat. Res. Def. Council, Inc., 36 F.Supp.3d at 398 (quoting N.Y. Times Co. v. U.S. Dep't of Def., 499 F.Supp.2d 501, 509 (S.D.N.Y. 2007)).
The propriety of Defendants' decision to withhold the WAVES and ACR records at issue turns on whether those records are "agency records," and thus subject to disclosure under FOIA. By all accounts, this is an issue of first impression within this Circuit. Yet, as discussed below, the Court of Appeals for the District of Columbia Circuit has addressed this very issue, and the parties therefore focus initially on disputing whether the Court should adopt the D.C. Circuit's approach here.
The progenitor of modern FOIA case law is Kissinger v. Reporters Commission for Freedom of the Press, where the Supreme Court held that Congress did not intend FOIA to define an "agency" to include "the Office of the President," meaning the President, his "immediate personal
In Forsham v. Harris, a companion case to Kissinger, the Court addressed a separate definitional issue: Whether materials generated by a private organization that has received federal funds from an agency, but has not transmitted the materials back to that agency, are agency records subject to FOIA. See 445 U.S. 169, 178, 100 S.Ct. 977, 63 L.Ed.2d 293 (1980). Answering the question in the negative, the Court held that "an agency must first either create or obtain a record as a prerequisite to its becoming an `agency record' within the meaning of FOIA." Id. at 182, 100 S.Ct. 977. While noting that FOIA does not define the term "agency records," the Court drew its conclusion from FOIA's definition of "agency" and its legislative history, both of which indicated that Congress did not intend to subject private organizations receiving federal funds to FOIA. Id. at 178-79, 100 S.Ct. 977. The Court also noted that the use of the term "record" in related statutes such as the Records Disposal Act and the PRA suggested that an agency record must at least be "create[d] or obtain[ed]" by the agency. Id. at 182-84, 100 S.Ct. 977.
Drawing from Kissinger and Forsham, the Supreme Court expanded on what constitutes an "agency record" for FOIA purposes in United States Department of Justice v. Tax Analysts, 492 U.S. 136, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989). The Court held that to qualify as an agency record, requested materials must (i) either be "create[d] or obtain[ed]" by an agency, and (ii) be in the agency's "control... at the time the FOIA request is made." Id. at 144-45, 109 S.Ct. 2841. Of particular relevance to the case at bar, the Court hewed to the analysis in Kissinger by explaining that sufficient control under the second prong "mean[s] that the materials have come into the agency's possession in the legitimate conduct of its official duties." Id. at 145, 109 S.Ct. 2841. Thus, considering the FOIA request at issue there, the Court held that district court decisions received by the Department of Justice while litigating tax cases were agency records; although the Department of Justice did not internally generate the decisions, they had received and possessed them at the time of the FOIA request at issue. Id. at 146-47, 109 S.Ct. 2841.
In Judicial Watch, Inc. v. United States Secret Service, the D.C. Circuit considered a FOIA claim mirroring the one at bar, in which the plaintiffs sought from the Secret Service "[a]ll official visitors logs and/or other records concerning visits made to the White House from January 20, 2009 to [August 10, 2009]." 726 F.3d 208, 214 (D.C. Cir. 2013) (first alteration in original). After explaining the Secret Service's recordkeeping procedures, and while acknowledging that the circumstances presented "a difficult case," the court held that
In reaching its conclusion, the D.C. Circuit first found no dispute that the Secret Service had "obtained" the WAVES and ACR records at issue, thus satisfying the first prong of the test set forth in Tax Analysts II. Judicial Watch, 726 F.3d at 217. The case thus turned on whether the Secret Service had sufficient control over the documents to render them agency records. To answer that inquiry, the D.C. Circuit generally looked to four factors originally announced in the Court of Appeal's decision in Tax Analysts, which the Supreme Court later affirmed, albeit on different grounds. Id. at 218 (discussing Tax Analysts v. U.S. Dep't of Justice ("Tax Analysts I"), 845 F.2d 1060 (D.C. Cir. 1988), and collecting D.C. Circuit cases applying the four-factor test). These four factors consist of the following:
Id. (quoting Tax Analysts I, 845 F.2d at 1069).
Applying these factors produced an equivocal result. The first factor weighed in the Secret Service's favor in light of the 2006 MOU, which as discussed above expressed the intention of the Secret Service and the White House to place WAVES and ACR records under the control of the White House rather than the Secret Service. Judicial Watch, 726 F.3d at 218. The second factor, considering the Secret Service's authority to use and dispose of the records, weighed in neither party's favor; although the Secret Service used the records to vet potential White House visitors and verify their identities, it had a "longstanding practice" of turning those records over to the White House and the 2006 MOU further restricted the Secret Service's ability to use and dispose of the records as it pleased. Id. at 218-19. The third factor, assessing the extent of the Secret Service's reliance on the records, indicated Secret Service control, as the agency used the records to vet and verify the identity of White House visitors "without restriction." Id. at 219. And the fourth factor, taking into account the degree to which the records were integrated into the Secret Service's systems or files, was found by the D.C. Circuit to weigh in favor of neither party; the Court acknowledged that the records were in the Secret Service's system at least at one point, but the physical servers on which the records were stored were located in the White House Complex and the records were removed from those servers within 60 days. Id. at 219-20.
Having found that only two of the four factors yielded decisive answers — and even then pointed in different directions — the Court drew parallels to another line of cases, one involving "documents that an agency has either obtained from, or prepared in response to a request from, a governmental entity not covered by FOIA: the United States Congress," where the four-factor "test does not apply[.]" Judicial Watch, 726 F.3d at 221. In those cases, courts consider "special policy considerations," which in the context of WAVES and ACR records suggested that
As a "more fundamental" reason for denying FOIA coverage for the WAVES and ACR records, the D.C. Circuit discussed the separation-of-powers issues that such a state of affairs would precipitate. Judicial Watch, 726 F.3d at 224.
The canon of constitutional avoidance also weighed against holding for the Judicial Watch plaintiffs. See generally Clark v. Martinez, 543 U.S. 371, 381, 125 S.Ct. 716, 160 L.Ed.2d 734 (2005) (stating that the canon of constitutional avoidance "is a tool for choosing between competing plausible interpretations of a statutory text, resting on the reasonable presumption that Congress did not intend the alternative which raises serious constitutional doubts"). As a practical matter, the Court reasoned, applying FOIA to the records at issue "could substantially affect the President's ability to meet confidentially with foreign leaders, agency officials, or members of the public," and supporting such an application of FOIA would therefore permit a congressional incursion on the President's constitutional prerogatives. Judicial Watch, 726 F.3d at 226-27. In other words, interpreting FOIA in this manner could present the issue of whether Congress exceeded its constitutional power over the executive branch, a worrisome outcome of which Congress was aware when excluding Presidential advisors from FOIA. See id. at 227 (discussing H.R. Rep. No. 93-1380, at 232 (Conf. Rep.)).
Finally, the D.C. Circuit considered the PRA to provide a more natural fit for WAVES and ACR records. The PRA requires the United States to preserve "complete ownership, possession, and control of
The Court finds the reasoning in Judicial Watch to be persuasive, and therefore proceeds from the premise that it will adopt the D.C. Circuit's approach unless Plaintiffs provide compelling countervailing reasons. As discussed herein, Plaintiffs have not done so.
In urging the Court to depart from Judicial Watch, Plaintiffs take issue with the four-factor test that the D.C. Circuit applied to determine whether an agency has sufficient control over materials to render those materials agency records. (See Pl. Opp. 7-14). Specifically, Plaintiffs argue that this test is inconsistent with the Supreme Court's framework for determining such control under Tax Analysts II. This Court disagrees.
Preliminarily, the Court observes that the outcome in Judicial Watch was driven more by "special policy considerations" related to the prospect of applying FOIA to Presidential documents than by the four-factor test for control with which Plaintiffs take issue. Judicial Watch, 726 F.3d at 220-21. Indeed, as discussed above, that test's indeterminate findings provided the Judicial Watch Court with little guidance in deciding the issue. Nevertheless, the Court will address Plaintiffs' arguments.
Plaintiffs hone in on a discussion in Tax Analysts II that rejected the notion that "the intent of the creator of a document relied upon by an agency" should determine whether material is an agency record subject to FOIA, reasoning that "[s]uch a mens rea requirement is nowhere to be found in the Act." 492 U.S. at 147, 109 S.Ct. 2841. In Plaintiffs' view, this proposition wholly undermines the D.C. Circuit's focus on "the intent of [a] document's creator to retain or relinquish control over the records." Judicial Watch, 726 F.3d at 218 (quoting Tax Analysts I, 845 F.2d at 1069). But these statements of law are reconcilable: In the discussion above from Tax Analysts II, the Court was responding to an argument by the Department of Justice that would "limit `agency records,' at least where materials originating outside the agency are concerned, `to those documents prepared substantially to be relied upon in agency decisionmaking.'" 492 U.S. at 147, 109 S.Ct. 2841. The Court was thus considering an issue separate and apart from whether a document's creator intended "to retain or relinquish control" of the document.
Perhaps more importantly, the intent of a document's creator in retaining or relinquishing control over the document accords with both the Supreme Court and the Second Circuit's analysis in FOIA cases. In Kissinger, for instance, the Supreme Court did not blind itself to Henry Kissinger's demonstrated intent to retain control over notes of his phone calls. See 445 U.S. at 140-41, 157, 100 S.Ct. 960 (holding that Kissinger's records did not
In Main Street Legal Services, Inc. v. National Security Council, the Second Circuit held that the National Security Council System, parts of which were created by statute and other parts of which were created by presidential directive, was not an agency subject to FOIA based in part on the President's intentions as expressed in a presidential directive. 811 F.3d 542, 544-45, 553 (2d Cir. 2016). The court reasoned that "separation of powers... counsels a respectful measure of deference to the President's own statements of intent," and the presidential directive did not "indicate[] any intent to transfer presidential authority so that it c[ould] be exercised [by the National Security Council System] independent of the President." Id. at 558-59. The case law to which this Court is bound therefore supports consideration of the drafter's intent in determining whether a document is an agency record subject to FOIA.
As to Judicial Watch's remaining three factors, Plaintiffs concede that they "are certainly relevant to whether an agency has" sufficient control over materials to render them subject to FOIA (Pl. Opp. 10), but argue that the D.C. Circuit's application of those factors goes beyond the Supreme Court's definition of "control" as "hav[ing] come into the agency's possession in the legitimate conduct of its official duties," Tax Analysts II, 492 U.S. at 145, 109 S.Ct. 2841. The Court declines to adopt Plaintiffs' restrictive reading of Tax Analysts II.
Plaintiffs contend that a "strict application" of the second factor — "the ability of the agency to use and dispose of the record as it sees fit," Judicial Watch, 726 F.3d at 218 (quoting Tax Analysts I, 845 F.2d at 1069) — would render two of the nine enumerated FOIA exemptions superfluous. (See Pl. Opp. 10). Those two exemptions shield materials from disclosure under FOIA if they are either (i) "established by" and "properly classified pursuant to" "an Executive order to be kept secret in the interest of national defense or foreign policy," 5 U.S.C. § 552(b)(1); or (ii) "specifically exempted from disclosure by statute," id. § 552(b)(3). Plaintiffs' argument, however, fails to displace the probative value of considering an agency's ability to use and dispose of a record in determining whether that agency controls such record. Moreover, the D.C. Circuit's analysis under this factor considers, as a practical matter, how an agency handles particular material to the extent it is authorized to do so, see, e.g., Judicial Watch, 726 F.3d at 218-19; this does not mean, as Plaintiffs would have the Court believe, that if an agency's authorization in this regard were in some way limited, such limitation would render materials exempt from FOIA to the same extent as an Executive Order protecting their secrecy or a specific statutory exemption from disclosure under FOIA.
Mindful of the analysis in Kissinger, the Court also disposes of Plaintiffs' argument that revealing "information about the [P]resident" does not raise the same concerns as subjecting the President himself to FOIA. (Pl. Opp. 12 (emphasis in original)). This is a rhetorical sleight-of-hand: Surely, if the Supreme Court had shared Plaintiffs' view, it would not have interpreted Congress's intent as carving out from FOIA's definition of an agency the President's immediate staff and advisers. In addition, Plaintiffs' attempt to distinguish "subjecting the [P]resident to FOIA" from "subjecting presidential information in the possession of agencies to FOIA" is unpersuasive. (Id. (emphases in original)). Although this difference is certainly relevant to Tax Analysts II's first prong — whether requested materials are "create[d] or obtain[ed]" by an agency — the mere fact of possession would have much less relevance in deciding the second prong — whether that agency had "control" over such materials. 492 U.S. at 144-45, 109 S.Ct. 2841.
Finally, Plaintiffs argue that "FOIA routinely is applied to records that reveal presidential decision-making" (Pl. Opp. 12), but none of the examples to which Plaintiffs cite, such as policy directives or redacted memoranda, is as personal to the President as his daily schedule. This differentiation "accords with Kissinger's teaching that the term `agency records' is not so broad as to include personal materials in an employee's possession, even though the materials may be physically located at the agency." Tax Analysts II, 492 U.S. at 145, 109 S.Ct. 2841. Further, without citing to any particular cases, Plaintiffs argue that many federal agencies obtain information from the President and his aides, and that courts treat records generated by such interactions as subject to FOIA, though
Having considered and rejected Plaintiffs' arguments, the Court hereby adopts the D.C. Circuit's approach, as provided in Judicial Watch, in determining whether the Secret Service exercises sufficient control over the documents at issue to require disclosure under FOIA. In the following section, the Court explains how developments since Judicial Watch have underscored the correctness of that holding.
Since Judicial Watch, President Obama's establishment of the Director of White House Information Technology and the 2015 MOU have reinforced the conclusion that WAVES and ACR records are within the control of the White House rather than the Secret Service.
First, the White House's intention to retain control over WAVES and ACR records is manifest in the relevant memoranda. The Memorandum establishing the DWHIT provides that its intention is "to maintain the President's exclusive control of the information resources and information systems provided to the President, Vice President, and EOP." (Herndon Decl., Ex. A, at 1). Accordingly, the 2015 MOU states that "[a]ll records created, stored, used, or transmitted by, on, or through the unclassified information systems and information resources provided to the President, Vice President, and EOP" — which include WAVES and ACR records — "shall remain under the exclusive ownership, control, and custody of the President, Vice President, or originating EOP component." (Id., Ex. B, at § 3.01; see Herndon Decl. ¶ 9). As discussed above, this intention weighs in favor of finding that the WAVES and ACR records are not agency records subject to FOIA, and in determining whether to command disclosure of documents under FOIA, "separation of powers further counsels a respectful measure of deference to the President's own statements of intent[.]" Main St. Legal Servs., 811 F.3d at 558.
Second, pursuant to the White House's exerted control over the records at issue, the Secret Service "cannot make changes to the [WAVES or EFACS] systems, or make purchases related to the systems, without the consent of the DWHIT." (Herndon Decl. ¶ 8). In addition, pursuant to the 2015 MOU, the Secret Service's access to the records is "limited ... as necessary to perform its protective functions," and "once a visit is concluded," the Secret Service "may not access EFACS or WAVES records without White House Approval." (Id. at ¶ 9). These considerations,
Thus, the Court holds that WAVES and ACR records are not agency records subject to disclosure under FOIA. Having adopted the D.C. Circuit's approach articulated in Judicial Watch, however, the Court must address an additional wrinkle: Certain components within the EOP are subject to FOIA, and, as explained in the following section, so are records of visits to such components.
In Judicial Watch, the Court delineated a subcategory of WAVES and ACR records to which its holding did not apply: Components of the EOP that are agencies for the purposes of FOIA ("EOP Agency Components") and whose records are thus subject to disclosure under FOIA. 726 F.3d at 232. Here, Defendants contend that the 2015 Presidential Memorandum creating the DWHIT and the 2015 MOU undermine this portion of Judicial Watch, and even if not, that Defendants are unable to segregate records of visits to EOP Agency Components from EOP components that employ members of the President's immediate staff whose "sole function" is to "advise and assist the President." Kissinger, 445 U.S. at 156, 100 S.Ct. 960. (See Def. Br. 32). Defendants' arguments miss the mark.
An EOP component is an "agency" subject to FOIA if it possesses "substantial independent authority in the exercise of specific functions" rather than the "sole function ... to advise and assist the President[.]" Main St. Legal Servs., 811 F.3d at 547 (quoting Soucie v. David, 448 F.2d 1067, 1075 (D.C. Cir. 1971)). The creation of the DWHIT and terms of the 2015 MOU do not speak to this analysis, and the Court therefore dismisses out of hand Defendants' assertion that such developments undermine Judicial Watch's determination that records of visits to EOP Agency Components are subject to disclosure under FOIA. Although the Secret Service does not exert sufficient control over WAVES and ACR records of visits to the President or EOP components that advise and assist the President, the reasoning underlying that conclusion does not extend to WAVES and ACR records of visits to members of EOP components that are themselves subject to FOIA.
As to Defendants' contention that they are unable to segregate records of visits to EOP Agency Components, Defendants admit that "[i]n most cases" a WAVES record will contain the email address of the individual scheduling a visit that "will provide an indication of whether the person making the appointment is employed by" an EOP Agency Component or an EOP component that is not subject to FOIA. (Def. Br. 24). According to Defendants, this information does not indicate with certainty whether such visit implicated an EOP component that is not subject to
To the extent that any WAVES or ACR record from an EOP Agency Component contains information that would not constitute agency records in light of its connection to the President, Defendants may redact such information. Indeed, FOIA "expressly authorize[s]" redaction and places the burden on "the agency when it seeks to justify the redaction of identifying information in a particular document as well as when it seeks to withhold an entire document." Associated Press v. U.S. Dep't of Def., 554 F.3d 274, 284 (2d Cir. 2009) (quoting U.S. Dep't of State v. Ray, 502 U.S. 164, 173-74, 112 S.Ct. 541, 116 L.Ed.2d 526 (1991)). Moreover, if disclosure of records from an EOP Agency Component threatened the President's security, it would likely be exempt from FOIA. See Judicial Watch, 726 F.3d at 233 (citing as an example 5 U.S.C. § 552(b)(7)(F), which "exempt[s] records compiled for law enforcement purposes whose production `could reasonably be expected to endanger the life or physical safety of any individual'"). In short, WAVES and ACR records of visits to EOP Agency Components are agency records subject to FOIA. The Court next considers records of visits to President Trump's Mar-a-Lago residence.
The Court's analysis of this category of records proceeds in two stages: First, the Court considers the adequacy of Defendants' search for records responsive to Plaintiffs' FOIA request, and second, the Court considers the propriety of Defendants' withholding of two categories of documents.
At the time of Plaintiffs' request, the Secret Service's approach to providing security at Mar-a-Lago was "newly developed," and "it was unclear what, if any, record systems or record groupings might exist in regard to who visited the President at Mar-a-Lago, or where such record systems or record groupings might be located." (Campbell Decl. ¶ 9). The Secret Service maintains that the ensuing search resulted in only one "arguably responsive" document that is "not duplicative of information previously made public by the White House" (id. at ¶ 14), and that the search also confirmed that "there is no Secret Service system that controls access to Mar-a-Lago, nor is there any grouping, listing, or set of records that would reflect Presidential visitors to Mar-a-Lago" (id. at ¶ 11).
The Secret Service has provided an affidavit detailing its search for responsive records. Early on in its search, the Secret Service identified three offices as potentially holding responsive documents:
(Campbell Decl. ¶ 16). A search of the first office resulted in no responsive documents, while a search of each of the latter two offices indicated "that an individual visited with the President at Mar-a-Lago during the time period January 20 to March 8, 2017"; any "potentially responsive documents" proceeded to "further responsiveness review." (Id. at ¶¶ 17-19).
Separately, the Office of the Chief Information Officer ("CIO") searched the email accounts of employees within the PPD, Dignitary Protective Division, as well as the Miami FO and West Palm Beach RO. (Campbell Decl. ¶ 20). The CIO carried out this search by applying a series of search terms to the body, subject line, or attachment of any email, for the period January 20 to March 8, 2017, contained in a database of any emails "sent, received, or deleted by all Secret Service employees including during the time period at issue in this case." (Id.). Any responsive emails proceeded to "further responsiveness review." (Id.).
All responsive records from these searches were aggregated, and any duplicate emails were electronically removed, leaving "[o]ver four thousand e-mails and documents" for further responsiveness review. (Campbell Decl. ¶¶ 21-22). Any materials that were "merely copies of media reports concerning Presidential visits to Mar-a-Lago" were removed "as non-responsive, as [they were] not considered [] Agency record[s] of a Presidential visit, and [were] as available to the public as to the Secret Service." (Id. at ¶ 23). Further winnowing down the universe of responsive documents, the parties agreed "that the Secret Service need not produce records regarding Presidential family members, cabinet members, and White House staff who were present at Mar-a-Lago," as well as "the names of local law enforcement and support personnel scheduled to have their photographs taken with the President." (Id. at ¶¶ 24-25).
After refining the documents in that manner, "the largest remaining category of records" consisted of documents related to Prime Minister Abe's visit to Mar-a-Lago. (Campbell Decl. ¶ 26). These included "operational records" regarding the Secret Service's security for the Prime Minister's visit. (Id.). Aside from this category of documents, the search yielded "only a handful of records" referring to persons scheduled to meet with the President at Mar-a-Lago. (Id. at ¶ 27). The following section considers the content of these records; here, the Court considers the antecedent issue of the adequacy of the search.
To prevail on a summary judgment motion in a FOIA case, the defending agency bears the burden of establishing the adequacy of its search, and it may satisfy this burden by submitting "[a]ffidavits or declarations supplying facts indicating
Based on the affidavit provided by the Secret Service, the Court finds the search adequate. Because the Secret Service had not established a formal recordkeeping system at the time of Plaintiffs' FOIA request, the search began by identifying the offices that could potentially possess responsive documents. Plaintiffs' argument that Defendants' search was inadequate because the affidavit detailing the search failed to "explain why it was reasonable to look only at records from specific components of" the SII, INV, OPO (Pl. Opp. 24) is simply wrong, because the affidavit provides such explanations: The PID, under the auspices of the SII, "conducts background checks pursuant to a sensitive security program"; the Miami FO and West Palm Beach RO, which are overseen by the INV, "would most likely have involvement in President Trump's visits to Mar-a-Lago as they are geographically located in proximity to Mar-a-Lago"; and the PPD, which the OPO oversees, has "direct operational responsibility for the protection of the President..., including when the President is at Mar-a-Lago." (Campbell Decl. ¶ 16). These details easily distinguish this case from those on which Plaintiffs rely. Cf. Aguiar v. Drug Enf't Admin., 865 F.3d 730, 739 (D.C. Cir. 2017) (holding agency search inadequate where declarations describing search did "not explain why the only reasonable place to look for" requested materials was in one record system); Rodriguez v. Dep't of Def., 236 F.Supp.3d 26, 36-37 (D.D.C. 2017) (denying summary judgment where court could not "fathom any legitimate reason for the location limitation" that agency imposed on its search). And in addition to the paper and electronic records that the Secret Service searched within these offices, it also searched emails through the CIO. The Court finds these efforts as a whole to be reasonably calculated to identify any responsive documents.
Plaintiffs' second line of argument contends that the search terms that the Secret Service utilized were underinclusive, in that they did not contain certain terms that Plaintiffs would have included and also failed to include variants of certain terms that effectively narrowed the search. (See Pl. Opp. 25-26). Yet this challenge amounts to precisely the sort of nit-picking that courts have rejected in the FOIA context. An agency's "burden [is] to show that its search efforts were reasonable and logically organized to uncover relevant documents; it need not knock down every search design advanced by every requester." DiBacco v. U.S. Army, 795 F.3d 178, 191-92 (D.C. Cir. 2015) (citing SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1201 (D.C. Cir. 1991)); see also Liberation Newspaper v. U.S. Dep't of State, 80 F.Supp.3d 137, 146-47 (D.D.C. 2015)
Finally, Plaintiffs contend that media reports indicate that Defendants' search should have yielded more results with respect to presidential visitors at Mar-a-Lago. (See Pl. Opp. 26-28). But this, too, is a line of reasoning that courts have rejected. Even assuming the accuracy of the reports to which Plaintiffs cite, as mentioned above, the proxy for the adequacy of an agency's search is its methodology, not its results. See N.Y. Times Co., 756 F.3d at 123-24. The Court therefore refuses to find the search at bar inadequate based on Plaintiffs' supposition as to what the search should have produced.
Because the Court finds the Secret Service's selection of offices along with the CIO email database and the search terms employed to be reasonable, the Court awards Defendants summary judgment as to Plaintiffs' claim that the search at issue was inadequate.
In response to Plaintiffs' request for documents related to presidential visits at Mar-a-Lago, Defendants located a variety of documents, none of which is contained in formal recordkeeping systems comparable to the WAVES or EFACS systems, and the vast majority of which Defendants maintain are not subject to disclosure under FOIA. In fact, Defendants considered only one such document to be responsive to Plaintiffs' FOIA request — an email from the State Department to the White House Office and forwarded to the Secret Service listing individuals who would accompany the Japanese Prime Minister to Mar-a-Lago. (Def. Br. 10-11).
As with the WAVES and ACR records considered above, the parties do not dispute that the Secret Service obtained these records. Whether they qualify as agency records subject to FOIA therefore depends on the extent to which the Secret Service, as opposed to the White House, exerted control over them, Tax Analysts II, 492 U.S. at 144-45, 109 S.Ct. 2841, or whether special policy considerations necessitate removing such documents from FOIA's scope, Judicial Watch, 726 F.3d at 220-21. The Court considers Defendants' categorical withholdings in turn.
Defendants refer to the first category of withheld documents as "Presidential Schedule Documents." (Def. Br. 20-23). The Court understands by way of background that a member of the White House transmits the Presidential Schedule Documents to the Secret Service on a nightly
The considerations that render FOIA inapplicable to WAVES and ACR records apply with equal force to the Presidential Schedule Documents. The White House's intent to control these documents is apparent from its selective disclosure only to approved Secret Service members. Moreover, these handpicked Secret Service members had no part in creating the documents, but only passively received them from the White House.
To be sure, the Court does not read the 2015 MOU, along with its requirements for the use and disposal of WAVES and ACR records, as applying to the Presidential Schedule Documents, and Defendants do not so contend. Nor does the Court doubt that the Secret Service members who receive these documents rely on them to carry out their statutory duty to protect the President. (See Murray Decl. ¶ 22 ("The Secret Service relies on information regarding the President's schedule that is provided by the White House Office to fulfill its protective mission.")). But these differences do not assuage the Court's concerns that exposing these documents to disclosure under FOIA would produce the same problems as applying FOIA to WAVES and ACR records.
Further, the same separation-of-powers concerns that animated Judicial Watch apply here. Just as "the Secret Service must monitor and control access to the building in which the President lives and works," which "requires presidential staff to request access [from the Secret Service] for visitors," Judicial Watch, 726 F.3d at 225, "[t]he Secret Service uses the Presidential [S]chedule [D]ocuments ... solely to fulfill its operational needs" (Murray Decl. ¶ 2p). In one sense, subjecting the Presidential Schedule Documents to FOIA would intrude more deeply into the Office of the President than doing so for WAVES and ACR records: whereas the latter would allow "a FOIA requester effectively [to] receive copies of [the President's] calendars," Judicial Watch, 726 F.3d at 225 (emphasis added), the former would provide direct access to these calendars in their original forms.
In removing the Office of the President from FOIA's scope, Congress surely did not "intend[] to require the effective disclosure of the President's calendars in this roundabout way." Judicial Watch, 726 F.3d at 225. The Presidential Schedule Documents also track the definition of "presidential records" in the PRA even more closely than WAVES and ACR records: They are "documentary materials... created ... by the President, the President's immediate staff, or a unit or
Plaintiffs counter that adopting Defendants' position would create an "unsustainable rule that documents that merely relate to information about the president's schedule are also, as a matter of law, beyond FOIA's reach." (Pl. Opp. 29). This argument is a straw man. The Court's holding is limited to the documents at issue, consisting of correspondence detailing the President's daily schedule that was transmitted from the White House to a select set of Secret Service members. It does not speak to, or even anticipate, a broader set of documents than those presented here. The Presidential Schedule Documents are not agency records subject to FOIA, and Defendants properly withheld them.
The Court next considers Defendants withholding of "a small number of operational records related to the Japanese Prime Minister's visit that also referred to the fact that the Prime Minister and his spouse were scheduled to meet or dine with the President and First Lady at Mar-a-Lago." (Def. Br. 29). Defendants maintain that "[t]he only arguably responsive information in these documents is the statement, repeated in each document, that the Prime Minister of Japan and his spouse would be meeting, dining, or present with the President at Mar-a-Lago." (Id.). Thus, Defendants argue, they were not required to disclose these records "only to release a minute amount of already public information" that "is also duplicative of the information contained in the State Department email released to [P]laintiffs." (Id.). Defendants' position, however, does not have a basis in FOIA.
That the responsive material contained in these documents is relatively slim is of no moment. Information that would be valuable in public discourse may be expansive or contracted; in either case, FOIA expressly provides that "[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt[.]" 5 U.S.C. § 552(b). Nor may the Government withhold production of records simply because they are publicly available by other means. "If Congress had wished to codify an exemption for all publicly available materials, it knew perfectly well how to do so." Tax Analysts II, 492 U.S. at 152-53, 109 S.Ct. 2841. And although an agency need not "produce multiple copies of the exact same document," an agency may not withhold documents based on the fact that the documents merely contain similar statements. Defs. of Wildlife v. U.S. Dep't of Interior, 314 F.Supp.2d 1, 10 (D.D.C. 2004). Defendants therefore have improperly withheld the operational records and must disclose these materials — subject, as always, to any applicable FOIA exemptions.
The Court next considers Defendants' motion to dismiss Plaintiffs' APA claims that seek judicial review, under the FRA and PRA, of the 2015 MOU. Specifically, Claim Three alleges that the EOP "enter[ed] into an MOU that declares that the records of visits to agency components of the EOP are under the exclusive ownership,
Defendants seek dismissal of these claims for lack of subject matter jurisdiction and failure to state a claim. In addressing Defendants' motions, the Court first summarizes the law relevant to Plaintiffs' claims based on the FRA and PRA. It then considers the specifics of Defendants' motion. Because the Court grants Defendants' motion on jurisdictional grounds, it does not — as it may not without a proper jurisdictional basis — consider Defendants' motion to dismiss for failure to state a claim.
"A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Lyons v. Litton Loan Servicing LP, 158 F.Supp.3d 211, 218 (S.D.N.Y. 2016) (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)). In resolving a Rule 12(b)(1) motion, "the district court must take all uncontroverted facts in the complaint ... as true, and draw all reasonable inferences in favor of the party asserting jurisdiction." Fountain v. Karim, 838 F.3d 129, 134 (2d Cir. 2016) (quoting Tandon v. Captain's Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014)). "A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists." Id. (quoting Makarova, 201 F.3d at 113).
As with the FOIA claims in this case, the parties' briefing on these claims focuses on cases from the D.C. Circuit (see Def. Br. 30-35; Pl. Opp. 32-35), and the Court's independent research confirms that courts within the D.C. Circuit, to the near exclusion of any others, provide the little case law that illuminates the statutes at issue. Two D.C. Circuit cases in particular provide a framework for evaluating the justiciability of Plaintiffs' claims: Armstrong v. Bush ("Armstrong I"), 924 F.2d 282 (D.C. Cir. 1991), and Armstrong v. Executive Office of the President, Office of Administration ("Armstrong II"), 1 F.3d 1274 (D.C. Cir. 1993) (per curiam). Given the dearth of binding case law on the issues presented by Plaintiffs' claims, along with the lack of any dispute by the parties as to the persuasive value of these cases, the Court shall adopt the analytical structure that these cases provide for the purpose of ruling on Defendants' motion.
The FRA is composed of a collection of statutes that govern the creation, management, and disposal of records held by agencies of the federal government. See 44 U.S.C. §§ 2102-2118, 2901-2910, 3101-3107, 3301-3324; Armstrong I, 924 F.2d at 284 n.1. The FRA requires the head of every federal agency to "make and preserve records containing adequate and proper documentation of the organization, functions, policies, decisions, procedures and essential transactions of the agency[.]" 44 U.S.C. § 3101. Under the FRA, agency heads must also establish "an active, continuing program for the economical and efficient management of the records of the agency" and "safeguards against the removal
Under the FRA, the Archivist of the United States is directed to further the mission of these agency heads by assisting agencies in proper record disposition, issuing "standards, procedures, and guidelines" regarding record management, and evaluating the records and recordkeeping systems and practices of the federal agencies. See 44 U.S.C. §§ 2904(a), 2904(c)(1). If the Archivist discovers any FRA violations by an agency, he or she must first notify the offending agency and recommend a curative measure. (See id. § 2115(b)). If the agency fails to cure the violation in a timely and satisfactory manner, the Archivist must report the issue to the President and Congress. See id.
The Archivist's role in enforcing the FRA also entails, if the Archivist learns of any "actual, impending, or threatened unlawful removal, defacing, alteration, or destruction of records in the custody of [an] agency," to "notify the agency head of the problem and assist the agency head in initiating an action through the Attorney General for the recovery of wrongfully removed records or for other legal redress." Armstrong II, 1 F.3d at 1280 (alteration in original) (quoting § 2905(a)). If the agency head fails to seek legal recourse, the Archivist must request that the Attorney General take such action and notify Congress of the request. Id. (citing § 2905(a)).
In contrast to the FRA, the PRA governs the maintenance and disposal of "Presidential records." 44 U.S.C. § 2201(2). In enacting the PRA, "Congress sought to establish the public ownership of presidential records and ensure the preservation of presidential records" while "minimiz[ing] outside interference with the day-to-day operations of the President and his closest advisors and" ensuring "executive branch control over presidential records during the President's term in office." Armstrong I, 924 F.2d at 290. In furtherance of the former goal, the PRA requires the President to "take all ... steps as may be necessary to assure that the activities, deliberations, decisions, and policies that reflect the performance of the President's constitutional, statutory, or other official or ceremonial duties are adequately documented and that such records are preserved and maintained as Presidential records[.]" 44 U.S.C. § 2203.
The PRA imposes document retention requirements that differ depending on whether a President is currently in office. While in office, "the President may dispose of those Presidential records ... that no longer have administrative, historical, informational, or evidentiary value[.]" 44 U.S.C. § 2203(c). "If the Archivist thinks it advisable, he may notify Congress of the President's intent to dispose of the records; and if the Archivist notifies Congress, the President must submit the disposal schedules to the appropriate congressional committees and wait sixty days before destroying the records." Armstrong I, 924 F.2d at 286 (citing 44 U.S.C. § 2203(c)-(d)). But "neither the Archivist nor the Congress [has] authority to veto the President's decision to destroy the records." Id. After the President has left office, however, the Archivist assumes control over the presidential records and, after notifying the Federal Register, may dispose of records with "insufficient administrative, historical, informational, or evidentiary value to warrant their continued preservation." 44 U.S.C. § 2203(g)(1), (4).
Courts have recognized that neither the FRA nor the PRA — of their own force —
Yet the D.C. Circuit has recognized that federal courts have jurisdiction to engage in limited review, under the APA, of agency compliance with the FRA.
The D.C. Circuit has recognized even more limited judicial review of compliance with the PRA. In Armstrong I, the Court held that "[t]he APA does not authorize judicial review of the President's compliance with the PRA because the President is not an `agency' within the meaning of the APA and because the PRA precludes judicial review of the President's record creation and management decisions." 924 F.2d at 297 (emphasis added). In Armstrong II, however, it clarified that "the PRA allows limited review to assure that guidelines defining presidential records do not improperly sweep in nonpresidential records." 1 F.3d at 1278 (emphasis added). The Court reasoned that "if guidelines that purport to implement the PRA were not reviewable for compliance with the statute's definition of presidential records, non-presidential materials that would otherwise be immediately subject to the FOIA would be shielded from its provisions, whether wittingly or unwittingly, if they were managed as presidential records." Id. at 1293.
The Armstrong II Court distinguished "creation, management, and disposal decisions,"
Id. at 1294 (internal citations omitted). In sum, "although the PRA impliedly precludes judicial review of the President's decisions concerning the creation, management, and disposal of presidential records during his term in in office, the courts may review guidelines outlining what is, and what is not a `presidential record[.]'" Id. (internal citation omitted).
The parties agree these cases afford limited judicial review of agency recordkeeping guidelines categorizing records under the FRA and PRA. (See Def. Br. 31, 34; Pl. Opp. 33). But they dispute whether Plaintiffs' claims are based on a guideline that the Court may review for compliance with the FRA or PRA. As the following section explains, the Court holds that Plaintiffs fail to allege such a guideline, which leaves the Court without subject matter jurisdiction over these claims.
The Court begins by determining which MOU forms the basis of Plaintiffs' claims. Plaintiffs' opposition brief urges the Court to review Defendants' "functional classification of WAVES and ACR records as presidential records" pursuant to the terms of both the 2006 and 2015 MOUs (Pl. Opp. 34), but the operative complaint makes no mention of the 2006 MOU. Indeed, the only citation to any MOU in the Amended Complaint reads as follows:
(Am. Compl. ¶ 50). As mentioned above, the claims at issue go on to reference this provision of the 2015 MOU as violating the EOP's "obligation under the FRA and the PRA to treat [records of presidential visitors] as agency records of DHS subject to FOIA" (id. at ¶ 63), and violating DHS's "obligation under the FRA to treat and manage these records as agency records of
The Court recognizes that it may refer to evidence outside of the pleadings in ruling on a motion to dismiss for lack of subject matter jurisdiction to resolve factual disputes on which subject matter jurisdiction depends. See Zappia Middle E. Const. Co. Ltd. v. Emirate of Abu Dhabi, 215 F.3d 247, 253 (2d Cir. 2000). But where, as here, a defendant mounts a facial challenge to jurisdiction — i.e., a Rule 12(b)(1) motion "based solely on the allegations of the complaint" — the district court's "task ... is to determine whether the [p]leading `allege[s] facts that affirmatively and plausibly suggest'" that it has jurisdiction. Carter v. HealthPort Techs., LLC, 822 F.3d 47, 56 (2d Cir. 2016) (last alteration in original) (quoting Amidax Trading Grp. v. S.W.I.F.T. SCRL, 671 F.3d 140, 145 (2d Cir. 2011)). Nor can Plaintiffs inject the 2006 MOU into their pleading by way of their opposition brief, as this would constitute an improper amendment of their complaint. See Wright v. Ernst & Young LLP, 152 F.3d 169, 178 (2d Cir. 1998). The Court will thus confine its analysis to the language above from the 2015 MOU.
The excerpted language of the 2015 MOU on which Plaintiffs' claims are premised is not the sort of guideline or directive that courts have reviewed for compliance with either the FRA or the PRA. In Armstrong II, for instance, the D.C. Circuit found reviewable, for compliance with the FRA, instructions from the EOP and National Security Council ("NSC") to employees, "that when any electronic document meets the definition of a federal record, the employee should either print out the information that appears on her computer screen or incorporate that material into a written memorandum." 1 F.3d at 1282 (emphasis added). The Court held that this guidance did not comply with the FRA because the hard-copy printouts of the records could omit information that formed "an integral part of the original electronic records[.]" Id. at 1278. This outcome accords with the directive announced in Armstrong I of limiting judicial review under the FRA to guidelines that would permit the improper destruction of records that should otherwise be preserved. See 924 F.2d at 291; see also, e.g., Competitive Enter. Inst. v. U.S. Envtl. Prot. Agency, 67 F.Supp.3d 23, 33 (D.D.C. 2014) (holding alleged policy of deleting text messages constituting federal records was subject to judicial review); Citizens for Responsibility and Ethics in Wash. v. Exec. Office of the President, 587 F.Supp.2d 48, 53, 56-58 (D.D.C. 2008) (holding that Automated Records Management System was subject to judicial review where it "`automatically captured, preserved and categorized all e-mail sent through the White House e-mail system,' and separately segregated, categorized and archived records subject to FRA and those subject to" PRA).
As to examples of guidelines subject to review for compliance with the PRA, Armstrong II is illuminative. That Court considered an EOP policy that "classif[ied] broad categories of NSC records as federal records," and declared that such records "are [p]residential records if they were received or created for the President," or certain other White House members, thus imposing a definition of "presidential records" not based on the definition found in the PRA. 1 F.3d at 1291. To avoid confusion, the Court provided a hyperbolic example of a guideline that would surely be reviewable as covering an initial classification of documents as presidential records
As these examples make clear, judicial review for compliance with the PRA extends only to guidelines that categorize materials as presidential records, such that by doing so, an agency may run afoul of the PRA's definition of "presidential records" and, thus, treat records as presidential when they would otherwise fall within the FRA. See also, e.g., Cheney, 593 F.Supp.2d at 201, 216 (subjecting to judicial review (i) executive order providing that PRA "applies to the executive records of the Vice President," and (ii) policy under which Vice President, EOP, and Office of Vice President indicated they were "not part of the executive branch" to avoid record preservation under the PRA); Am. Historical Ass'n v. Peterson, 876 F.Supp. 1300, 1313-18 (D.D.C. 1995) (holding alleged agreement between former president and former national archivist was subject to judicial review for compliance with PRA where it provided that certain presidential records, as defined under PRA, would be subject to president's control after leaving office).
Here, Plaintiffs' claims under the FRA and PRA do not contain a sufficient factual basis for the Court's review. The portion of the 2015 MOU excerpted in the Amended Complaint simply states the understanding of the parties to the MOU that certain records "shall remain under the exclusive ownership, control, and custody of the President, Vice President, or originating EOP component." This section of the MOU thus does not command recordkeeping practices that could result in improper disposal under the FRA, cf. Armstrong II, 1 F.3d at 1282; "encompass[] the initial classification of materials as presidential records," id. at 1294; or constitute the functional equivalent of such impermissible steps.
As to judicial review for compliance with the FRA, Plaintiffs "challeng[e] the Secret Service's failure to treat the WAVES and ACR records as agency records under the FRA," by transferring those records to the WHORM rather than retaining them. (Pl. Opp. 34). But this practice, rather than constituting a reviewable guideline, is precisely the sort of claim that the FRA, as interpreted by the Supreme Court, has precluded courts from reviewing. As the Kissinger Court noted, "`the [FRA] establishes only one remedy for the improper removal of a `record' from the agency': the agency head, in conjunction with the Archivist, is required to request the Attorney General to initiate an action to recover records unlawfully removed from the agency." Armstrong I, 924 F.2d at 294 (quoting Kissinger, 445 U.S. at 148, 100 S.Ct. 960). Nor do Plaintiffs bring a claim seeking review of an agency head's or the Archivist's failure to demand enforcement by the Attorney General. See Armstrong I, 924 F.2d at 295.
Plaintiffs' claims under the PRA similarly fall short. Plaintiffs argue that through the 2015 MOU, the EOP improperly categorizes WAVES and ACR records as presidential records, and that the Court must be able to review this categorization "[t]o maintain the integrity of the line Congress drew between agency records ... and presidential records[.]" (Pl. Opp. 34). But the MOU does no such thing. By stating that certain documents "shall remain under the exclusive ownership, control, and custody of the President, Vice President, or originating EOP component," the MOU does not "purport to implement the PRA." Armstrong II, 1 F.3d at 1293. Indeed, it says nothing of whether the
For all of these reasons, the Court may not review Plaintiffs' claims premised on the FRA and PRA, and Defendants' motion to dismiss for lack of subject matter jurisdiction is granted.
Having determined that Plaintiffs' claims under the FRA, PRA, and APA fail, and that certain of Plaintiffs' FOIA claims shall proceed, the Court next considers Defendants' motion to dismiss Plaintiffs' claims for declaratory judgment. The issue depends on whether a federal court may award declaratory judgment based solely on a FOIA claim. Plaintiffs do not address the issue, aside from stating that "[t]his case presents an actual and adversarial issue that entitles Plaintiffs to declaratory relief." (Pl. Opp. 35).
The Declaratory Judgment Act allows a federal court to "declare the rights and other legal relations of any interested party seeking such a declaration" in "a case of actual controversy[.]" 28 U.S.C. § 2201(a). This does not confer a right on the parties to obtain a declaratory judgment, however; whether to award such relief remains within the discretion of the district court. See Fleisher v. Phoenix Life Ins. Co., 858 F.Supp.2d 290, 301 (S.D.N.Y. 2012); Apotex Inc. v. Sanofi-Synthelabo, 386 F.Supp.2d 549, 551 (S.D.N.Y. 2005). In determining whether to exercise such discretion, courts consider "[i] whether the judgment will serve a useful purpose in clarifying or settling the legal issues involved; and [ii] whether a judgment would finalize the controversy and offer relief from uncertainty." Amusement Indus., Inc. v. Stern, 693 F.Supp.2d 301, 311 (S.D.N.Y. 2010) (quoting Duane Reade, Inc. v. St. Paul Fire & Marine Ins. Co., 411 F.3d 384, 389 (2d Cir. 2005)). In addition, courts may consider whether the party seeking declaratory judgment has available "a better or more effective remedy." Id. (quoting Dow Jones & Co. v. Harrods Ltd., 346 F.3d 357, 359-60 (2d Cir. 2003)).
Courts have come to varying conclusions as to the propriety of declaratory relief for FOIA claims. One court within the Second Circuit, while declining to grant declaratory relief, has noted that "in the FOIA context, courts have granted declaratory judgment where a plaintiff has shown that an agency engaged in a pattern or practice of delayed disclosure and that it is possible the violations will recur with respect to the same requesters." Navigators Ins. Co. v. Dep't of Justice, 155 F.Supp.3d 157, 168 (D. Conn. 2016) (collecting cases outside of the Second Circuit). Similarly, the D.C. Circuit has declared that "FOIA imposes no limits on courts' equitable powers in enforcing its terms," which district courts have interpreted to allow declaratory and
These courts have limited such relief, however, to circumstances in which bringing an action to enjoin the withholding of records or to compel their production would fail to provide an adequate remedy. See, e.g., Isiwele v. U.S. Dep't of Health & Human Servs., 85 F.Supp.3d 337, 352-53 (D.D.C. 2015) ("[T]he `comprehensiveness of FOIA' forecloses any claims purportedly brought also under the APA, the [Declaratory Judgment Act], and the All Writs Act.") (quoting Johnson, 310 F.3d at 777); Inst. for Policy Studies v. C.I.A., 885 F.Supp.2d 120, 152-53 (D.D.C. 2012) (holding declaratory relief improper because FOIA provided adequate remedy to address alleged FOIA violations). As one court has explained, declaratory relief may be appropriate in a FOIA case, even after the claim becomes moot, either in a challenge to an "isolated agency action" that becomes moot during the litigation because of the agency's voluntary cessation of wrongful withholding, or in a challenge to "an allegedly illegal agency policy and the future implementation of that policy." Swan View Coalition v. Dep't of Agric., 39 F.Supp.2d 42, 46 (D.D.C. 1999).
The Court declines to exercise its discretion to entertain a declaratory judgment action here. The relief Plaintiffs seek on this front consists of the following: [i] "a declaration that Plaintiff Doyle is entitled to prompt processing and disclosure of the requested records"; [ii] "a declaration that [P]laintiffs are entitled to expedited processing and disclosure of the requested records"; and [iii] "a declaration that all records the Secret Service creates and maintains of visits to agency components of the EOP are agency records of DHS and any MOU to the contrary is unlawful and unenforceable." (Am. Compl. Request for Relief ¶¶ 2, 4, 6). The Court effectively disposed of the last of these three requests in its ruling on the merits of Plaintiffs' FOIA claims. And the first two requested declarations would provide no further practical relief than that which Plaintiffs' FOIA claims seek. Cf. Isiwele, 85 F.Supp.3d at 352-53. Nor have Plaintiffs alleged that Defendants engaged in a pattern or practice of flouting FOIA's requirements. See Swan View Coalition, 39 F.Supp.2d at 46. The Court thus grants Defendants' motion to dismiss Plaintiffs' claims for declaratory relief.
For the above reasons, Defendants' motion for summary judgment is GRANTED IN PART and DENIED IN PART, and Defendants' motion to dismiss is GRANTED. Within 60 days of the date of this Opinion and Order, Defendants are directed to disclose any materials responsive to Plaintiffs' FOIA surviving FOIA claims, and the parties are to provide a joint letter to the Court as to how they wish to proceed.
SO ORDERED.
(Pl. Opp. 13).
(Campbell Decl. ¶¶ 28(i)-(vi)).
(Herndon Decl. ¶¶ 28(vii)-(xi)).
