RECORD NO.

07-5406
ORAL ARGUMENT SCHEDULED FOR APRIL 21, 2008
(Before Circuit Judges David B. Sentelle, David S. Tatel, and Merrick B. Garland)
In The
United States Court of Appeals
For The District of Columbia Circuit

CITIZENS FOR RESPONSIBILITY AND

ETHICS IN WASHINGTON,
Plaintiff – Appellee,
v.

U.S. DEPARTMENT OF HOMELAND SECURITY,

Defendant – Appellant,

THE WASHINGTON POST,

Amicus Curiae for Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

BRIEF OF APPELLEE

Anne L. Weismann
Melanie Sloan
CITIZENS FOR RESPONSIBILITY AND
ETHICS IN WASHINGTON
1400 Eye Street, N.W., Suite 450
Washington, D.C. 20005
(202) 408-5565

Counsel for Appellee Dated: February 28, 2008

THE LEX GROUPDC ♦ 1750 K Street, NW ♦ Suite 475 ♦ Washington, DC 20006

(202) 955-0001 ♦ (800) 815-3791 ♦ Fax: (202) 955-0022 ♦ www.thelexgroupdc.com
 CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES

Pursuant to D.C. Circuit Rule 28(a)(1), Citizens for Responsibility and Ethics in

Washington (“CREW”) hereby submits its Certificate as to Parties, Rulings and Related Cases as

follows:

A. Parties and Amici. Plaintiff-appellee is Citizens for Responsibility and Ethics in

Washington, a non-profit organization under 501(c) of the Internal Revenue code. Defendants-

appellants are the United States Department of Homeland Security and Allen Weinstein, in his

official capacity as archivist of the United States.

The Washington Post has been granted leave to participate as amicus curiae in this Court.

Judicial Watch, Inc. and the National Security Archive appeared as amici curiae in the district

court.

B. Rulings Under Review. Under review are the order and memorandum opinion of

the district court issued on December 17, 2007. The district court’s order and memorandum

opinion appear as Docket Nos. 44 and 45 on the district court docket (D.D.C. No. 06-cv-1912),

the district court’s opinion is reported at 2007 U.S. Dist. LEXIS 91927, and the memorandum

and opinion are reproduced at pages 149-189 of the Joint Appendix.

C. Related Cases. This case has not previously been before this Court. The

following cases involving requests for similar White House visitor records under the Freedom of

Information Act are pending in the district court: Judicial Watch, Inc. v. U.S. Secret Service, No.

06-cv-310 (D.D.C.) and Citizens for Responsibility and Ethics in Washington v. Dep’t of

Homeland Security, No. 06-cv-883 (D.D.C.). The two cases have been consolidated. CREW

knows of no other “related cases” as that term is defined in D.C. Circuit R. 28(a)(1)(C).

i
 TABLE OF CONTENTS

Page

CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

GLOSSARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii

COUNTER STATEMENT OF THE ISSUE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

COUNTER STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

COUNTER STATEMENT OF THE FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

I. White House Visitor Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

A. The White House Complex . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

B. The Vice President’s Residence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

II. District Court Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

I. UNDER THE TOTALITY OF THE CIRCUMSTANCES WHITE HOUSE

VISITOR RECORDS CREATED BY THE SECRET SERVICE IN
FURTHERANCE OF ITS STATUTORILY MANDATED PROTECTIVE
FUNCTION ARE AGENCY RECORDS SUBJECT TO THE FOIA . . . . . . . . 14

A. The Totality Of The Circumstances Test . . . . . . . . . . . . . . . . . . . . . . . . . 14

B. The District Court Properly Concluded That White House Visitor

Records Are Created Or Obtained By The Secret Service . . . . . . . . . . . . 18

C. White House Visitor Records Are Under The Control Of

The Secret Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

ii
 1. The Intent of the Document’s Creator . . . . . . . . . . . . . . . . . . . . . 21

2. The Agency’s Ability To Use And Dispose

Of The Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

3. The Extent To Which Agency Personnel

Read Or Relied On The Records . . . . . . . . . . . . . . . . . . . . . . . . . 27

4. The Degree To Which The Visitor Records

Were Integrated Into The Agency’s System
Or Files . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

5. On Balance, All Factors Demonstrate Agency

Control Over The Visitor Records . . . . . . . . . . . . . . . . . . . . . . . . 29

D. The Secret Service’s Alternative Approach Is Contrary To Law . . . . . . . 29

II. TREATING WHITE HOUSE VISITOR RECORDS AS AGENCY

RECORDS SUBJECT TO THE FOIA DOES NOT IMPLICATE ANY
CONSTITUTIONAL CONCERNS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF FILING AND SERVICE

iii
 TABLE OF AUTHORITIES
Page(s)

CASES:

* Armstrong v. Executive Off. of the President,

1 F.3d 1274 (D.C. Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 33, 36

Assassination Archives & Research Ctr. V. CIA,

334 F.3d 55 (D.C. Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

* Bureau of Nat’l Affairs, Inc. v. U.S. Dep’t of Justice,

742 F.2d 1484 (D.C. Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 16, 19, 20 27

* Burka v. U.S. Dep’t of Health & Human Serv.,

87 F.3d 508 (D.C. Cir. 1996) . . . . . . . . . . . . . . . . . . . . 8, 11, 16, 17, 20, 21, 25, 28, 29, 34

Cheney v. U.S. District Ct.,

542 U.S. 367 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Citizens for Responsibility and Ethics in Washington v. Dep’t of Homeland Security,

No. 06-cv-883 (D.D.C.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

* Consumer Fed’n of Am. v. Dep’t of Agriculture,

455 F.3d 283 (D.C. Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 16, 19, 22, 27, 28, 29

CREW v. Dep’t of Homeland Security,

No. 06-883 (D.D.C.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Crooker v. U.S. Parole Comm’n,

730 F.2d 1 (1st Cir. 1984), vacated and remanded,
469 U.S. 926 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Forsham v. Harris,
445 U.S. 169, 185 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Gallant v, Nat’l Labor Relations Bd.,

26 F.3d 168 (D.C. Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Holy Spirit Ass’n v. CIA,

636 F.2d 838 (D.C. Cir. 1981), vacated in part and remanded,
455 U.S. 997 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

iv
In re Cheney,
406 F.3d 723 (D.C. Cir. 2005) (en banc) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

In re Sealed Case,
121 F.3d 729 (D.C. Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

INS v. St. Cyr,

533 U.S. 289 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

* Judicial Watch, Inc. v. Dep’t of Energy,

412 F.3d 125 (D.C. Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 17, 20, 31, 32, 37

* Judicial Watch, Inc. v. Dep’t of Justice,

365 F.3d 1108 (D.C. Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 33, 35

Judicial Watch, Inc. v. U.S. Secret Service,

No. 06-cv-310 (D.D.C.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 26, 27

Kissinger v. Reporters Comm. for Freedom of the Press,

445 U.S. 136 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 28

Lykins v. Dep’t of Justice,

725 F.2d 1455 (D.C. Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

McGehee v. CIA,
697 F.2d 1095 (D.C. Cir. 1983), vacated in part,
711 F.2d 1076 (D.C. Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Nixon v. Administrator,
433 U.S. 425 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 35

Paisley v. CIA,
712 F.2d 686 (D.C. Cir. 1983), vacated in part on other grounds,
724 F.2d 201 (D.C. Cir. 1984) (per curiam) . . . . . . . . . . . . . . . . . . . . . . 15, 17, 19, 24, 25

Public Citizen v. U.S. Dep’t of Justice,

491 U.S. 440 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Soucie v. David,
448 F.2d 1067 (D.C. Cir. 1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36, 37

v
The Washington Post v. U.S. Dep’t of Homeland Security,
459 F. Supp. 2d 61 (D.D.C. 2006), vacated as moot,
No. 06-5337 (D.C. Cir.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34, 36

*United We Stand Am., Inc. v. IRS,

359 F.3d 595 (D.C. Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 15, 16, 17, 20, 24

* U.S. Dep’t of Justice v. Tax Analysts,

492 U.S. 144 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 7, 14, 17,18, 19, 20, 29, 30, 32

STATUTES

5 U.S.C. § 552(b)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

18 U.S.C. § 3056. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 20

18 U.S.C. § 3056A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

44 U.S.C. § 2201(2)(A)(I) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

44 U.S.C. § 3303a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

44 U.S.C. § 3303a(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

OTHER AUTHORITIES

H.R. Conf. Rep. No. 93-1380 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

112 Cong. Rec. 13007 (June 20, 1966) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

* Authorities chiefly relied upon

vi
 GLOSSARY

ACR Access Control Record

Br Brief for Appellants

CREW Citizens for Responsibility and Ethics in Washington

DHS United States Department of Homeland Security

FOIA Freedom of Information Act

JA Joint Appendix

MOU Memorandum of Understanding Between the White House Office of

Record Management and the United States Secret Service Records
Management Program Governing Records Generated by the White
House Access Control System

WAVES Worker and Visitor Entrance System

WHACS White House Access Control System

vii
 COUNTER STATEMENT OF THE ISSUE

Whether records that the Secret Service, a component of the U.S. Department of

Homeland Security (“DHS”), prepares and maintains in the course of fulfilling its statutory

mandate to protect the president, vice president and specified other individuals are “agency

records” subject to the Freedom of Information Act (“FOIA”).

COUNTER STATEMENT OF THE CASE

This appeal concerns a FOIA request Citizens for Responsibility and Ethics in

Washington (“CREW”) sent to the Secret Service in October 2006 for all records related to visits

by nine specified individuals to the White House and/or the vice president’s residence from

January 2001 to the present. The White House (or White House Complex) was defined to

include “any office within the Executive Office of the President, the residence of the President,

the Old and New Executive Office Buildings, and any other office or space on the grounds of the

White House.” JA 23.

A month later, when the Secret Service had failed to respond to CREW’s request, CREW

filed suit under both the FOIA and the Administrative Procedure Act against DHS and Allen

Weinstein in his official capacity as archivist of the United States. CREW’s complaint

challenged both the Secret Service’s failure to respond to its FOIA request and the policy of the

agency to delete certain White House visitor records without authorization from the archivist as

the Federal Records Act requires. JA 150, 164-65. CREW also challenged the failure of the

archivist to take enforcement action to prevent DHS from unlawfully destroying agency records.

JA 165. This appeal concerns only CREW’s FOIA claims.

1
 Seven months later, DHS moved for summary judgment on the ground that the requested

records are not agency records and therefore are not subject to the FOIA. JA 165. In support of

its motion DHS included a memorandum of understanding that was executed by the White House

and the Secret Service on May 17, 2006, JA 63, after the Secret Service created many of the

requested records and after the Secret Service had been sued for failing to fulfill FOIA requests

by CREW and others for White House visitor records. JA 175.

The district court concluded that the requested White House visitor records are agency

records after applying the two-part test set out by the Supreme Court in U.S. Dep’t of Justice v.

Tax Analysts, 492 U.S. 144 (1989). JA 167. The court concluded that the records were both

created or obtained by the Secret Service and under its control at the time of CREW’s FOIA

request. JA 168-185. The court also rejected DHS’s argument that the doctrine of constitutional

avoidance required the court to construe the FOIA as not encompassing White House visitor

records. JA 185-189. As the court reasoned, there is no ambiguity in the FOIA and there is

otherwise no justification for removing the records from FOIA’s reach because of the agency’s

“ready recourse in Exemption 5" to protect confidential presidential communications. JA 186,

188.

Although the district court ordered DHS to process and produce all non-exempt records

within 20 days of its order, JA 149, the court subsequently stayed its order pending appellate

review.

2
 COUNTER STATEMENT OF THE FACTS

I. White House Visitor Records

As part of its statutory responsibilities to protect the president, vice president and their

immediate families, 18 U.S.C. §§ 3056, 3056A, the Secret Service monitors visitors to the White

House Complex and the vice president’s residence. JA 151. In performance of this protective

function, the agency creates a variety of records, both paper and electronic. These records

contain information from a variety of sources, including from the Secret Service’s own

investigation efforts. JA 44-46, 52-54.

A. The White House Complex

The Secret Service employs two electronic systems to monitor visitors to the White

House Complex: the Worker and Visitor Entrance System (“WAVES”) and the Access Control

Records System (“ACR”). JA 42-43, 151-52. Together these systems comprise the White House

Access Control System (“WHACS”). JA 43, 152.

The Secret Service begins creating these records when a White House pass holder -- who

may or may not be a member of either the president’s or vice president’s staff -- provides the

agency with information including identifying information about the visitor, the date, time and

location of the planned visit, and the name of the individual requesting clearance for the visitor.

JA 43-44. White House pass holders provide the Secret Service with this information in a

variety of ways, including by telephone, facsimile, email and written lists. JA 44.

The Secret Service uses this information to perform background checks to verify the

visitor’s admissibility. JA 44. Secret Service personnel annotate WAVES records with

3
information derived from these background checks. JA 44-45. The Secret Service stores each

WAVES records electronically on the agency’s computer servers. JA 154.

Upon arriving at the White House Complex, the Secret Service issues visitors passes that

are swiped over electronic pass readers located at entrances and exits to the complex. JA 45.

This, in turn, generates an ACR record, which includes the name and badge number of the

visitor, the time and date that the visitor swiped his or her pass and the post where the swipe was

recorded. Id. ACR records do not include either who the visitor is visiting or who requested

clearance for the visitor. Id. After the visit, the WAVES records are updated electronically with

the actual times and places of the visitor’s entry into and exit from the complex. Id.

In addition to its electronic records, the Secret Service creates a variety of paper records

relating to White House Complex visitors. These include Secret Service Form (“SSF”) 1888s,

created as part of the Secret Service’s background investigation process, paper files and work

orders related to the SSF 1888s, and a category of records the Secret Service has labeled

“additional security-related records” that are also generated by background investigations. JA

45-46. The Secret Service does not transfer any of these additional records to the White House

upon the completion of a visit. Id.

The Secret Service’s record-retention practices as to WAVES and ACR records are, in

the words of the district court, “pliant and evolving.” JA 155. For example, the Secret Service

claims to have a practice dating back to at least 2001 of purging and overwriting WAVES

records that are older than 60 days once it has transferred copies on CD-ROMs to the White

House Office of Records Management. JA 47. According to the Secret Service, this practice

ended in November 2004 at the “request” of the National Archives and Records Administration.

4
Id. Notwithstanding this policy, the Secret Service has not always transferred all of the WAVES

records to the White House. Id.

As the district court found, the policy of the Secret Service for retaining ACR records is

“equally muddled.” JA 157. Despite the claims of the Secret Service that the agency and White

House had agreed that ACR records should be treated like WAVES records, the Secret Service

did not begin transferring ACR records to the White House until May 2006, JA 49, after the

agency had already received FOIA requests for such records.

On May 17, 2006, the Secret Service and White House entered into a memorandum of

understanding (“MOU”) that purports to memorialize their “agreement that WHACS Records”

are “not the records of any ‘agency’ subject to the Freedom of Information Act.” JA 61. The

MOU was entered into after the Secret Service had received multiple FOIA requests for White

House visitor records and was in litigation for failing to satisfy those requests. See Judicial

Watch, Inc. v. U.S. Secret Service, No. 06-310 (D.D.C.) (filed Feb. 22, 2006); CREW v. Dep’t of

Homeland Security, No. 06-883 (D.D.C.) (filed May 10, 2006). Despite the existence of the

MOU, in neither case did the Secret Service claim that the requested records were not agency

records subject to the FOIA.

B. The Vice President’s Residence

The Secret Service also monitors visitors to the vice president’s residence and creates

records of those visits as part of the agency’s protective function, using a system different than

the WHACS. JA 52. Records of visits to the vice president’s residence include daily access lists

and permanent access lists, both of which are given to and used by the individual Secret Service

officers working at the entrances to the residence. JA 52-53. In addition, the Secret Service

5
officer in command of each shift creates a watch commander journal that records the arrivals and

departures of the vice president and his wife as well as “security-related incidents.” JA 54.

Other records used by the Secret Service to clear visitors for access to the vice president’s

residence include an electronic database with information on individuals who are seeking access

to the residence, requests for access from the vice president’s staff, military and Secret Service

personnel and lists of invited guests and workers for special events. JA 53. In addition, the

Secret Service creates a “hit” report as part of its background investigative process that the

agency uses in clearing individuals for access to the vice president’s residence. Id.

In many, if not most, cases the records generated by visits to the vice president’s

residence do not reveal the reason for the visit or the relationship of the visitor to the vice

president, his family, staff, or any outside organization. JA 73. According to the vice president’s

deputy chief of staff, such information could be determined only with “the assistance of

knowledgeable OVP [Office of the Vice President] personnel . . .” JA 73.

The Secret Service has not uniformly applied any single document retention practice to

Secret Service records related to visits to the vice president’s residence. See JA 54-57. For

example, although the Secret Service had a practice of disposing of daily access lists on a daily

basis prior to 2006, it nevertheless retained “some” lists for “sporadic dates” prior to 2006. JA

55. Similarly, until June 2006 the Secret Service retained some event lists but “not consistently.”

JA 57.

By letter dated September 13, 2006 to the chief counsel of the Secret Service, the vice

president’s counsel memorialized what he described as “our consistent practice of exercising

exclusive control over any and all documents and information held by the USSS relating to

6
visitors to the VPR [vice president’s residence] . . .” JA 75. Like the MOU, this letter was sent

after the Secret Service had received multiple FOIA requests for White House visitor records.1

Notwithstanding the pendency of those requests, the letter directed the Secret Service to return to

the Office of the Vice President “any documents [that] remain in your possession . . .” JA 76.

II. District Court Proceedings

This appeal arises from a FOIA request CREW sent to the Secret Service on October 4,

2006, for all records related to visits by nine specified individuals to the White House and/or the

vice president’s residence from January 2001 to the present. JA 38-40. After receiving no

response to its request, plaintiff filed a complaint on November 9, 2006. JA 8-37.

On December 17, 2007, the district court denied DHS’s motion for summary judgment,

which was premised on the agency’s argument that the requested visitor records are not agency

records subject to the FOIA. JA 150-189. Applying the two-part test for agency records in U.S.

Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 144 (1989), the court concluded that the records

were created or obtained by the Secret Service, JA 168-173, and under its control at the time

CREW made its FOIA request. JA 174-184.

While recognizing that “at times” much of the information in the visitor records is

provided by presidential and vice presidential staff, the court stressed that the FOIA “deals with

documents, not information.” JA 171 (citation omitted). The court also noted that here, unlike

in United We Stand Am., Inc. v. IRS, 359 F.3d 595 (D.C. Cir. 2004), the visitor information is

transferred to the Secret Service “haphazardly at times, in many forms . . . by many different

1
These include requests from CREW, Judicial Watch and The Washington Post.

7
individuals” and nowhere, contemporaneously with the request, “has a member of the President’s

or Vice-President’s staff manifested . . . an intent to control the record.” JA 173.

On the issue of control, the district court applied the four-factor test identified by the D.C.

Circuit in Burka v. U.S. Dep’t of Health & Human Serv., 87 F.3d 508, 515 (D.C. Cir. 1996). JA

174. First, the court found that the intent of the document’s creator to retain or relinquish control

“weighs in favor of the Secret Service.” Id. Although the court noted that the actions of the

Secret Service were “less conclusive than its words” on the issue of its intent to control, JA 175,

the court deemed such actions “not inconsistent with its stated intent” not to retain control over

the records “once the visitor has left the White House Complex or the Vice-President’s

Residence.” JA 176.

The district court concluded that the second factor, the agency’s ability to use and dispose

of the record as it sees fit, weighs against the Secret Service. As the court pointed out, the

agency’s own declarations demonstrate its ability to use the visitor records to both perform

background investigations and to verify the admissibility of a particular visitor at the time of the

visit. JA 176. In addition, the practice of the Secret Service to routinely dispose of certain of the

records reflected that “the Secret Service is choosing to delete or transfer visitor records because

it concludes that it no longer has a need for them.” JA 178 (citation omitted) (emphasis in

original).

As to the third factor, the extent to which agency personnel have read or relied upon the

records, the district court concluded that it “weighs heavily against the Secret Service.” JA 179.

The court noted: “It is undisputed that the Secret Service uses each one of the visitor records in

its efforts to protect the President and Vice-President; indeed, that is why the records are

8
created.” JA 179. The court characterized each of the records as “integral to the Secret Service’s

protective mission.” JA 180. That the Secret Service has only a brief and limited use for the

records, the court reasoned, “does not mean the Secret Service does not read or rely on them.”

Id.

The court found that the fourth factor, the degree to which the records were integrated

into the agency’s record system or files, “cuts both ways.” JA 180. While the records that the

Secret Service creates in protecting the White House Complex are integrated into the agency’s

record system, those created in protecting the vice president’s residence are not. Id. The court

noted, however, a “touch of uncertainty” given the Secret Service’s failure to explain exactly

where and how some of the records are stored before being transferred to the White House. JA

183.

Balancing the four factors, the district court “ha[d] no difficulty concluding the visitor

records are under the Secret Service’s control.” JA 183. Although the Secret Service’s intent

weighed against this conclusion, id., the court found ultimately that the intent was “substantially

outweighed by the other factors.” JA 184.

The district court also rejected the government’s request that the court apply the doctrine

of constitutional avoidance and construe the FOIA in a manner that did not encompass the

requested visitor records. JA 185-188. The court found that the doctrine did not apply here for a

number of reasons. First, the Secret Service has failed to identify any ambiguity in the FOIA and

the court concluded that “the term ‘agency record’ unambiguously encompasses the visitor

records sought here.” JA 186. Second, the court rejected the Secret Service’s presumption that

releasing the visitor records would reveal “the particular policies the President was deliberating,”

9
as factually unlikely, given the statements of the government’s own declarant that “in many, if

not most cases the purpose of the visits . . . is not apparent from the face of the documents . . .”

JA 187 (emphasis in original). Third, the district court found “no justification for removing these

records from the reach of the FOIA” given the Secret Service’s “ready recourse in Exemption 5"

to protect confidential presidential communications. JA 188.

SUMMARY OF ARGUMENT

Invoking the specter of a constitutional crisis, the government seeks to remove from the

FOIA’s reach agency documents of White House visitors that the White House fears will disclose

information it has proclaimed is confidential. Toward that end, the Secret Service asks this Court

to ignore the totality of the circumstances -- the test adopted by this Circuit to ascertain agency

record status-- and focus exclusively on the purported intent of the White House to maintain

exclusive control over the Secret Service’s White House visitor records, as memorialized in two

non-contemporaneous documents that the district court properly rejected as “self-serving.”

Neither the facts here nor the governing case law support treating the White House visitor

records as non-agency records outside the scope of the FOIA. The requested records were

created by the Secret Service in the performance of its statutorily mandated protective function.

The role of the White House was merely to transmit certain information in the records to the

Secret Service for the agency’s use in creating the records. In no way can the White House

properly be deemed the creator of the records. Moreover, much of the information that White

House officials transmitted to the Secret Service concerned the prospective visitors and reveals

nothing whatsoever about presidential decision-making processes.

10
 As a body of decisions from this Circuit make clear, documents created by agency

personnel in the performance of their agency duties are agency records. The White House visitor

records satisfy these criteria and on that basis alone should be accorded agency record status.

Relying on decisions from this Circuit that concern congressional records or records

implicating congressional concerns, the Secret Service asks the court to apply the four-factor test

in Burka v. U.S. Dep’t of Health & Human Servs., 87 F.3d at 515, to conclude that the visitor

records are non-agency records because they are under the control of the White House. Although

this Court need not, under governing Circuit precedent, engage in a Burka analysis, the results

would nevertheless be the same: White House visitor records are under the control of the Secret

Service and, accordingly, are agency records of the Secret Service subject to the FOIA.

First, the actions of the Secret Service -- as the creator of the visitor records -- reflect that

its intent was to retain control of the records while performing its protective function. For that

period of time the visitor records were clearly under the control of the agency. All the Secret

Service has offered to counter this clear evidence of intent is a memorandum of understanding

and letter that were executed after the Secret Service had received FOIA requests for the records

and was already in litigation over several of those requests. Under the law of this Circuit, only

contemporaneous and specific limiting instructions will suffice as evidence of control by some

entity other than the agency that created and is in possession of the records. Neither the MOU

nor the letter from the vice president’s counsel constitutes such evidence.

Second, the Secret Service was freely able to use the visitor records as it saw fit and, in

most instances, was able to freely dispose of the records. As the district court properly

concluded, “the Secret Service uses these documents exactly as would be expected to fulfill its

11
statutorily mandated responsibility to protect the President and Vice-President.” JA 177 (citation

omitted). Moreover, the Secret Service chose to delete or transfer the visitor records based on its

conclusion that it no longer needed the records, actions that clearly reflect its control over the

records.

Third, Secret Service personnel read and relied on the visitor records. In the words of the

district court, each of these records “has one important trait in common: they are integral to the

Secret Service’s protective mission.” JA at 179-80. Because the Secret Service uses the records

for the exact purpose for which they were created, there is a necessary nexus between the work of

the Secret Service and the requested records.

Fourth, the visitor records were integrated into the Secret Service’s file system or files.

Indeed, the records were created by inputting visitor information directly into agency records

after which they were retained on Secret Service computers and servers and in Secret Service

files. To the extent there is any uncertainty about the maintenance of these records, particularly

as to records of visits to the vice president’s residence, such uncertainty weighs against the

agency, which bears the burden of proving the non-record status of White House visitor records.

At bottom, no matter which template this Court uses to evaluate the agency record status

of White House visitor records, under the totality of the circumstances the visitor records are

agency records subject to the FOIA. Any other result would subvert the FOIA’s basic purpose of

transparency, achieved by granting the public access to the decision-making processes of

government.

The government’s arguments to the contrary seek to have this Court ignore the FOIA’s

statutory commands in favor of asserted presidential prerogatives that sweep far beyond the

12
limitations that the Supreme Court and this Circuit have imposed. Moreover, the government’s

constitutional claims are grounded in a view that the president and vice president are entitled to

absolute and unrestrained protection in the discharge of their duties, a protection neither the

Supreme Court nor this Court has ever recognized.

Invoking the doctrine of constitutional avoidance, the government argues that the FOIA

must be interpreted as excluding visitor records because their inclusion in the FOIA would

implicate “constitutional concerns.” As a procedural matter, however, the doctrine does not

apply where, as here, there is no ambiguity in the FOIA. As the district court properly concluded,

“the term ‘agency record’ unambiguously encompasses the visitor records sought here.” JA 186.

More substantively, as the Supreme Court has made clear, “there has never been an

expectation that the confidences of the Executive Office are absolute and unyielding.” Nixon v.

Administrator, 433 U.S. 425, 450 (1977). Yet the government’s reliance on the doctrine of

constitutional avoidance rests on this very expectation. Moreover, as this Circuit has recognized,

the president’s right to “minimize outside interference” with his “day-to-day operations” must be

balanced against the need to “preserve the pre-existing body of FOIA law governing the

disclosure of government agency records.” Armstrong v. Executive Off. of the President, 1 F.3d

1274, 1292 (D.C. Cir. 1993).

In addition, the Secret Service’s “ready recourse in Exemption 5,” JA 188, undermines

any claim of constitutional concern. That exemption 5 of the FOIA may not be available here as

a factual matter, given that -- in the words of the White House’s own declarant -- “in many, if not

most cases, the purpose of the visits . . . is not apparent from the face of the documents,” JA 73,

only underscores the lack of substance in the government’s constitutional concerns.

13
 ARGUMENT

I. UNDER THE TOTALITY OF THE CIRCUMSTANCES WHITE HOUSE

VISITOR RECORDS CREATED BY THE SECRET SERVICE IN
FURTHERANCE OF ITS STATUTORILY MANDATED PROTECTIVE
FUNCTION ARE AGENCY RECORDS SUBJECT TO THE FOIA.

A. The Totality Of The Circumstances Test

Under a two-part test enunciated by the Supreme Court in U.S. Dep’t of Justice v Tax

Analysts, materials requested under the FOIA are “agency records” if they are (1) either created

or obtained by the agency and (2) under agency control at the time the FOIA request is made.

492 U.S. at 145. The agency-control prong in particular “focuses on the agency’s possession of

the requested materials . . .” Id. at 147.

Applying this test, the D.C. Circuit has looked to the “totality of the circumstances,”

taking care that ‘“[t]he term ‘agency records’ . . . not be manipulated to avoid the basic structure

of the FOIA . . .’” Consumer Fed’n of Am. v. Dep’t of Agriculture, 455 F.3d 283, 287 (D.C. Cir.

2006), quoting Bureau of Nat’l Affairs, Inc. v. U.S. Dep’t of Justice, 742 F.2d 1484, 1494 (D.C.

Cir. 1984) (“BNA”). In BNA the court explained that rather than a rigid and

“compartmentalized” control or use analysis, “the inquiry necessarily must focus on a variety of

factors surrounding the creation, possession, control, and use of the document by an agency.”

742 F.2d at 1490 (citation omitted).

Toward that end, the agency bears the burden of establishing that requested records are

not agency records,2 guided by the “general principles that underlie the Act [FOIA] as a whole,

including the FOIA’s goal of “opening up the workings of government to public scrutiny.”

2
Judicial Watch, Inc. v. Dep’t of Energy, 412 F.3d 125, 128 (D.C. Cir. 2005), citing
Assassination Archives & Research Ctr. v. CIA, 334 F.3d 55, 57 (D.C. Cir. 2003).

14
McGehee v. CIA, 697 F.2d 1095, 1108 (D.C. Cir. 1983), vacated in part, 711 F.2d 1076 (D.C.

Cir. 1982) (quotation omitted). As the Court in McGehee explained, the premise that “an

informed electorate is vital to the proper operation of a democracy” is achieved in part when

citizens are granted “access to the information on the basis of which government agencies make

their decisions, thereby equipping the populace to evaluate and criticize those decisions.” Id.

(quotation and citation omitted). This objection is “best promoted by a rule that all records in an

agency’s possession . . . constitute ‘agency records.’” Id. at 1109 (emphasis in original).

The “totality of the circumstances” approach has led this Court to adopt a number of

paradigms depending on the nature of the records at issue. For example, when records implicate

congressional interests, the Court has been mindful of the need to “safeguard Congress’ long-

recognized prerogative to maintain the confidentiality of its own records as well as its vital

function as overseer of the Executive Branch.” Paisley v. CIA, 712 F.2d 686, 694 n.30 (D.C. Cir.

1983), vacated in part on other grounds, 724 F.2d 201 (D.C. Cir. 1984) (per curiam) (citations

omitted). In those circumstances the Court focuses on the manifestations of Congress’ intent to

control, rather than the agency’s absence of control. Id. at 693. This focus is appropriate in view

of the “special policy considerations which counsel in favor of according due deference to

Congress’ affirmatively expressed intent to control its own documents.” Id. at 694, n.30.3

Similarly, in United We Stand Am., Inc. v. IRS, 359 F.3d 595 (D.C. Cir. 2004), this

Court also recognized the special considerations implicated by “the connection between

Congress and the requested records.” Id. at 599 Accordingly, the Court applied the four-factor

3
In Paisley, the D.C. Circuit explicitly declined to rule that the same approach “would be
warranted were the creating body other than Congress.” 712 F.3d at 694, n.30.

15
analysis established by Burka v. U.S. Dep’t of Health & Human Servs., 87 F.3d at 515: (1) the

document creator’s intent to retain or relinquish control; (2) the agency’s ability to use and

dispose of the document as it sees fit; (3) the degree to which agency employees have read or

relied on the document; and (4) the extent to which the document was integrated into the

agency’s files or record keeping system. 359 F.3d at 599. While noting that this was the first

time the Court had occasion to apply the four-factor test in the congressional context, id., the

Court pointed out that its pre-Burka focus on congressional control “reflects the considerations

that underlie the second factor: the agency’s ability to use or dispose of the record as it sees fit.”

Id. at 600.

Outside of the congressional context, the D.C. Circuit has used other templates to

determine whether records requested under the FOIA are agency records. In Consumer Fed’n of

Am. the Court considered the agency record status of electronic appointment calendars of six

agency officials. Noting that the case presented the first occasion to apply the D.C. Circuit’s

“totality of the circumstances” test to electronically stored and retrievable data, 455 F.3d at 287,

the Court found an appropriate template in its prior BNA decision. In BNA the D.C. Circuit had

looked at the “creation, possession, control, and use” of certain daily agendas and desk calendars

to ascertain whether they were agency records. 742 F.2d at 1490, n.7. Most critical to the BNA

court’s conclusions that the agendas were agency records while the desk calendars were not was

the way in which the agency actually used the documents. Id. at 1495. The Consumer Fed’n of

Am. court applied this same approach to “focus on the manner in which the documents were

used, rather than on the subjective ‘intent of the creation of [the] document,’ because the

16
Supreme Court has rejected reliance upon the latter.” 455 F.3d at 291, citing Tax Analysts, 492

U.S. at 147.

The critical significance of how an agency actually uses a document was also affirmed in

Judicial Watch, Inc. v. Dep’t of Energy, 412 F.3d 125 (D.C. Cir. 2005), where the Court

considered the status of records created by agency employees who were detailed to a non-agency

presidential advisory committee, the National Energy Policy Development Group. While the

Court concluded that these records were not agency records, it noted:

If they were DOE employees, then the documents would have been created in the
legitimate conduct of their official duties at the DOE, and it would be immaterial
that the documents were and are located at the Office of the Vice President and
were never integrated into the DOE’s records system.

412 F.3d at 131. By these comments the Court was affirming its prior holdings that where the

records are created by an agency employee in the conduct of agency business, the Burka analysis

does not apply.

Although the Secret Service seems to agree that a “totality of the circumstances” approach

is proper, Br at 24, it argues that the critical factor is whether the agency has “exclusive control of

the disputed documents,” citing Paisley v. CIA, 712 F.2d at 693, Br at 24, and United We Stand

Am., Br at 25. Both cases, however, involved documents generated by or with congressional

input and accordingly both implicate the “special policy considerations which counsel in favor of

according due deference to Congress’ affirmatively expressed intent to control its own

documents.” Paisley, 712 F.2d at 694, n.30. Here, by contrast, there are no “special policy

considerations” that would compel consideration of factors beyond the agency’s actual control and

use of the documents.

17
 B. The District Court Properly Concluded That White House Visitor Records
Are Created Or Obtained By The Secret Service.

Applying the totality of the circumstances test here, it is readily apparent that the White

House visitor records are agency records using any of the templates this Court has adopted. First,

the visitor records were “created or obtained” by the Secret Service, as required by the first prong

of the Tax Analysts inquiry. The records are generated by Secret Service personnel in the course

of performing their protective function. WAVES and ACR records, for example, are created

when the agency receives information about potential visitors and performs background

investigations; all of this information is stored on agency computers and updated once a visit takes

place. JA 168-69. The district court, after examining all of the agency declarations submitted by

the Secret Service, correctly noted that the WAVES and ACR records are “each generated by the

Secret Service, and not by Presidential or Vice-Presidential staff” as are the records of visits to the

vice president’s residence. JA 169.

The Secret Service does not appear to contest directly that the records in question are

created or obtained by the Secret Service. Instead, the agency emphasizes that much of the

information in those records is supplied by White House personnel, although admittedly not

always by either presidential or vice presidential staff.4 JA 43. From this the Secret Service

appears to be arguing that the provision of information is the functional equivalent of creating the

documents that incorporate that information.

4
The significance of this is also undermined by the fact that much of the information in
White House visitor records is about the visitors themselves, and not the president or vice
president. ACR records, for example, include the name and badge number of the visitor, the time
and date that the visitor swiped his or her pass and the post where the swipe was recorded. JA
45. They do not, however, include either who the visitor is visiting or who requested clearance
for the visitor. Id.

18
 The FOIA, however, deals with documents “not information in the abstract.” Forsham v.

Harris, 445 U.S. 169, 185 (1980). As the D.C. Circuit pointed out in BNA, focusing on the

content of a document, as the Secret Service urges here, and not the agency’s control, possession

or use of the document in determining its status as an agency record is particularly misplaced,

because issues regarding a document’s contents are more appropriately addressed by FOIA’s

exemptions. 742 F.2d at 1494. It is quite common-place, for example, for an agency to have

documents in its possession that contain information provided by third parties. Under those

circumstances courts have not hesitated to deem the records agency records. See, e.g., Lykins v.

Dep’t of Justice, 725 F.2d 1455 (D.C. Cir. 1984) (pre-sentence report court had provided agency

found to be agency record based on its function in the agency, with FOIA’s exemptions available

to protect any third-party interests). Indeed, exemption 4 of the FOIA is designed specifically to

protect trade secrets and commercial or financial information obtained from outside entities and

individuals, and the law is clear that documents with such information are agency records. See 5

U.S.C. § 552(b)(4); see also Tax Analysts, 492 U.S. at 145, citing Forsham v. Harris, 445 U.S. at

184-85.

Here, the district court properly refused the government’s request that it elevate the source

of the information above the actual creator of the record, reasoning that such an approach “would

insulate records that contain information supplied, perhaps even gleaned, from an external, non-

agency source, even if the information represents only a part of the record, as it does here.” JA

172. The result would be exactly what this Circuit warned against, manipulating “[t]he term

‘agency records’ . . . to avoid the basic structure of the FOIA . . .” Consumer Fed’n of Am., 455

F.3d at 287 (quotation omitted); see also Paisley, 712 F.2d at 696 (refusing to treat as non-agency

19
records documents “intimately related to a congressional investigation” because “[t]o hold

otherwise would be to exempt from FOIA’s purview a broad array of materials . . . thereby

undermining the spirit of broad disclosure that animates the Act.”).

C. White House Visitor Records Are Under The Control Of The Secret Service.

Second, under the totality of the circumstances White House visitor records are under the

control of the Secret Service. It is sufficient here, as in Judicial Watch, Inc. v. Dep’t of Energy,

that the documents were created by Secret Service employees “in the legitimate conduct of their

official duties at the [agency] . . .” 412 F.3d at 131. See also U.S. Dep’t of Justice v. Tax

Analysts, 492 U.S. at 145 (“By control we mean that the materials have come into the agency’s

possession in the legitimate conduct of its official duties.”). These factors alone establish the

agency’s control. See United We Stand Am., 359 F.3d at 602-603 (noting four-factor analysis of

Burka used only where documents not “created and possessed by the agency in the ‘legitimate

conduct of its official duties.’” (citation omitted)).5

The Secret Service created all of the White House visitor records in the performance of its

statutorily mandated protective function. See 18 U.S.C. § 3056. The White House has admitted

that the express reason it provides information to the Secret Service is “to enable the Secret

Service to perform background checks to determine the existence of any protection concern” as

well as to enable the agency “to verify the visitor’s admissibility at the time of the visit.” JA 78-

79. In the words of the district court, “these records are the sine qua non of the Secret Service’s

5
As the United We Stand Am. court explained, Tax Analysts did not involve documents
created by the agency, Burka involved documents that were not in the agency’s possession,
Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136 (1980), involved records
kept in Secretary Kissinger’s personal file and Gallant v, NLRB, 26 F.3d 168 (D.C. Cir. 1994),
involved documents that were not official agency documents. 359 F.3d at 603.

20
supervision of visitors to the Complex and Residence.” JA 180. These factors alone establish

that the Secret Service has the requisite control over these records to render them agency records

subject to the FOIA.

Nevertheless, the district court went on to evaluate the control issue under the four Burka

factors, while recognizing that the definition of “control” “‘may well change as relevant factors

assume varying importance from case to case.’” JA 174, quoting Crooker v. U.S. Parole

Comm’n, 730 F.2d 1, 5 (1st Cir. 1984), vacated and remanded, 469 U.S. 926 (1984). Even under

this more detailed analysis, the district court readily and properly concluded that White House

visitor records are agency records.

1. The Intent of the Document’s Creator

The first Burka factor focuses on the intent of the document’s creator to retain or

relinquish control. 87 F.3d at 515. Given that the White House visitor records were created by

the Secret Service, it is the agency intent that is relevant for these purposes.

Accordingly, much of the agency’s discussion of and reliance on the president’s and vice

president’s purported intent to control is misplaced. Br at 25-26, 31-32. As explained above, the

records at issue were actually created by the Secret Service; at most White House officials

provided certain of the information to the agency that was subsequently incorporated into those

records.

In arguing to the contrary, the Secret Service claims that it creates the visitor records only

in “the most limited and formalistic sense.” Br at 31. Quite simply this makes no sense and is

contrary to the factual record. The records are created because the Secret Service by statute is

required to provide protection to the president, vice president and other designated officials. JA

21
41-42. To accomplish this statutory directive, the agency gathers certain information about

potential visitors from which it conducts background investigations to determine if the proposed

visitors should be cleared for entrance. JA 43-46. That the “impetus”6 of these actions is a

request of the White House does not change the character of these records as agency records, but

merely explains a necessary link in the process of why the records are created in the first place.7

Nor is the Secret Service accurate in its suggestion that because the information is

transmitted to the agency through White House computers the Secret Service merely creates

information, while the White House retains control. See Br at 3. As the Court in Consumer Fed’n

of Am. found under analogous circumstances, computer records generated by agency personnel to

conduct agency business that are stored on agency computers and updated periodically by the

agency are agency records. 455 F.3d at 288-292. Moreover here, as in that case, “[i]n allowing

computer access, [the White House] surrenders personal control over the document and indicates

that it will be used by others . . .” Id. at 292.

The district court properly focused on the agency’s intent and concluded that the Secret

Service intended to relinquish control over at least some of the visitor records. JA 174. It reached

this conclusion after examining the agency’s declarations submitted in this litigation and its

actions, which the district court characterized as “not wholly inconsistent with its stated intent to

6
Br at 31.
7
Accepting the Secret Service’s argument that documents created at the “impetus” of
third-parties are not agency records would mean that a vast swath of documents long considered
subject to the FOIA -- from documents generated by requests for government benefits to
documents reflecting agency actions on outside complaints -- would no longer be publicly
accessible, a result that would undermine completely FOIA’s goal of transparency in
government.

22
relinquish control.” JA 175. What the district court failed to take proper consideration of,

however, was that this evidence at best demonstrated an intent to eventually relinquish control

once the agency no longer needed the records, a far different case than an intent not to exercise

any control whatsoever.

To reach its conclusions the district court relied on agency declarations that show the

Secret Service has no long-term interest in retaining the records. JA 174-75 (“Once a visitor’s

visit to the White House Complex is complete, the Secret Service has no continuing interest

sufficient to justify preservation or retention of WAVES or ACR records . . .”). The fact that the

Secret Service may not have a long-term need or interest in retaining the records, however, does

not alter its need and interest in the records while it is performing its protective function. For that

period of time the agency’s actions clearly reflect an intent to control.8

Moreover, as even the district court recognized, the past actions of the Secret Service are

inconsistent and do not “demonstrate a clear intent to relinquish control over all the records,

notably the ACR records.” JA 175. By ignoring these inconsistencies and elevating the agency’s

stated intent as to long-term control over its actions and its words reflecting short-term control the

district court erroneously concluded that the first factor weighed in the agency’s favor.

In arguing here that the Secret Service lacks the requisite intent to control, the agency

places great emphasis on the MOU, which it describes as providing “the clearest possible

evidence that it is the White House, and not the Secret Service, that has ‘exclusive control of the

8
Moreover, an agency’s views on its long-term need for and interest in any particular set
of documents are not controlling for record-keeping purposes under the Federal Records Act. An
agency wishing to dispose of records that it has concluded are not needed must, under that Act,
submit a disposition request to the archivist, 44 U.S.C. § 3303a, whose views on the matter are
controlling. Id. at § 3303a(a).

23
disputed documents.’” Br at 26 (citations omitted). To the contrary, under governing case law

this evidence is neither clear nor conclusive and was properly rejected by the district court as

“self-serving” because it was executed “after the Secret Service created many of the records and

after the Secret Service was sued for the records.” JA 175 (emphasis in original).

In a series of cases this Court has emphasized that only “‘contemporaneous and specific

instructions . . . to the agencies, limiting either the use or disclosure of the documents’” will

suffice as evidence of control by some entity other than the agency in possession of the

documents. United We Stand Am., 359 F.3d at 602, quoting Paisley, 712 F.2d at 694 (emphasis

in original). Accordingly, in Holy Spirit Ass’n v. CIA, 636 F.2d 838, 842 (D.C. Cir. 1981),

vacated in part and remanded, 455 U.S.997 (1982), the Court gave no weight to a letter sent from

the Clerk of the House of Representatives to the agency in evaluating the agency’s control because

it was written as a result of the FOIA request at issue, the resulting litigation and long after the

records had been transferred. Likewise in Paisley, the Court rejected “one-sided correspondence

initiated long after the original creation and transfer of the documents” as “post hoc rationalization

. . .” 712 F.2d at 695. And in United We Stand Am., this Circuit found the agency had control

notwithstanding the congressional committee’s belief that confidentiality was critical to its work

and its “practice of retaining control over its communications with the [agency] . . .” 359 F.3d at

602. As the Court explained, “nothing in the record here ties that general understanding and

practice” to the document portions at issue. Id.

Applying this reasoning here, the MOU cannot properly be considered evidence that the

Secret Service did not intend to retain control over visitor records. The MOU was executed after

the Secret Service had received multiple FOIA requests for visitor records and after the agency

24
had been sued for its failure to produce those records. It represents the same kind of “post hoc

rationalization” that the Paisley court rejected out of hand. 712 F.2d at 695. As a non-

contemporaneous statement the MOU is properly accorded no weight in evaluating the agency’s

intent.

For similar reasons, the letter sent by the vice president’s counsel, which purports to

confirm the vice president’s exclusive control over records relating to visits to the vice president’s

residence and directs the Secret Service to return to the Office of the Vice President all visitor

records in the agency’s possession, is also entitled to no weight. See JA 76. This letter was sent

months after the MOU was executed and is a post hoc unilateral attempt by the vice president’s

office to dictate the status of records already subject to litigation.

2. The Agency’s Ability To Use And Dispose Of The Records

In evaluating the second Burka factor -- the agency’s ability to use and dispose of the

records as it sees fit -- the district court properly concluded that it weighs against the Secret

Service. Relying on the Secret Service’s own declarations as well as its actions the Court found

that “the Secret Service is able to use the visitor records as it sees fit” and “in most instances the

Secret Service is able to freely dispose of the records as well.” JA 176.

As to use, the agency declarations document how the Secret Service collects information

about prospective visitors to both the White House Complex and the vice president’s residence,

performs background investigations using this information and verifies the visitors’ admissibility,

all of which the agency incorporates into visitor records. See JA 43-46, 52-54, 78-79. The

district court, after examining this evidence, concluded: “the Secret Service uses these documents

25
exactly as would be expected to fulfill its statutorily mandated responsibility to protect the

President and Vice-President.” JA 177 (citation omitted).

The Secret Service similarly has a free hand in disposing of the records as it sees fit. For

example, the agency had a unilateral “longstanding” practice of erasing WAVES records once it

had transferred copies to the White House. JA 29. The agency’s destruction was done not at the

request or directive of the White House, but based on the agency’s own assessment that it had no

continuing, long-term need for the visitor records. JA 118.9 In addition, prior to litigation over

the status of these records, the agency had a practice of retaining certain data that it removed from

the records before transferring copies to the White House. JA 17. With respect to its records of

visitors to the vice president’s residence, the Secret Service routinely disposed of permanent and

daily access lists until June 2006, without first giving copies to the White House. JA 55.

Similarly, the Secret Service purged its access list database on a daily basis and destroyed requests

for access without first providing copies to the White House. Id. In the words of the district

court, these are all actions that “suggest the Secret Service is choosing to delete or transfer visitor

records because it concludes it no longer has a need for them,” “not the actions of an agency that

‘lacks [the] unilateral . . . authority’ to dispose of visitor records.” JA 178 (emphasis in

original).10

9
The agency’s policy of destroying visitor records without approval from the Archivist is
the subject of CREW’s claim under the Federal Records Act and while a part of this lawsuit, is
not before this Court.
10
In addition to its own internal record-keeping practices, the Secret Service’s actions vis-
a-vis outside third parties also evidence its ability to use and dispose of the visitor records as the
agency sees fit. For example, in litigation with Judicial Watch over its FOIA request for White
House visitor records, the Secret Service agreed to be bound by a court-approved stipulation
requiring the agency to produce certain of the visitor logs. See Judicial Watch, Inc. v. U.S.

26
 In the face of this evidence the Secret Service argues that its actual use and disposition

practices are trumped by the MOU, which dictates whether and how the agency may dispose of

visitor records. Br at 32. The district court properly rejected this argument as “circular,” because

it rests on “the very point [the Secret Service] is trying to prove.” JA 177. As this Court stressed

in Consumer Fed’n of Am., the focus is properly on the actual manner in which an agency uses

the requested records rather than a subjective intent. 455 F.3d at 291.

3. The Extent To Which Agency Personnel Read Or Relied On The

Records

There is no legitimate argument that the Secret Service has not read or relied on the White

House visitor records and the agency all but concedes the point here. As the district court found,

“[i]t is undisputed that the Secret Service uses each one of the visitor records in its efforts to

protect the President and Vice-President; indeed, that is why the records are created.” JA 179.

Each of the records at issue here “has one important trait in common: they are integral to the

Secret Service’s protective mission.” Id. at 179-80.

The Secret Service’s only response is that its use is “limited” to fulfilling its statutorily

mandated protective function. Br at 32-33. This entirely misses the mark; the Secret Service uses

the records for the exact purpose for which they were created, a purpose that is central to the

agency’s mission. This clearly establishes the necessary “nexus between the agency’s work and

the records.” BNA, 742 F.2d at 1491 (quotation omitted).

Secret Service, No. 06-cv-310 (D.D.C.).

27
 4. The Degree To Which The Visitor Records Were Integrated Into The
Agency’s System Or Files

The last Burka factor, the degree to which the visitor records are integrated into the Secret

Service’s system or files, also demonstrates agency control. The agency’s declarations explain the

process by which the records are created by inputting directly into Secret Service records visitor

information that comes from both the White House and White House visitors. See, e.g., JA 44.

The records are retained on Secret Service computers and servers after White House visits are

concluded. JA at 47, 48, 49. The Secret Service also retains permanent access lists and daily

access lists for the vice president’s residence. JA 55-56. As in Consumer Fed’n of Am., the

visitor records were stored on agency computer systems, accessed and updated on those systems

and “subject[] . . . to the control of that system’s administrators.” 455 F.3d at 290.11

While concluding that records of visits to the White House Complex are integrated into

the Secret Service’s files or system, the district court found some uncertainty with respect to the

records of visits to the vice president’s residence. JA 182-83. This uncertainty, however, stems

from the agency’s failure to explain precisely where and how the records are stored before their

transfer to the White House. JA 183. For example, while the agency has acknowledged retaining

some requests for access, it has not explained where they were stored, beyond noting they were

“discovered . . . in places where such documents are not normally stored.” JA 55-56. Given that

the agency bears the burden of establishing the non-agency record status of the requested records,

11
Moreover, as the district court noted, this is not a case, like Kissinger v. Reporters
Comm. for Freedom of the Press, 445 U.S at157, where Secretary Kissinger’s files “never
entered the State Department’s files.” JA 181.

28
its failure to explain adequately where all of the records are stored weighs against the agency, not

the requester.

5. On Balance, All Factors Demonstrate Agency Control Over The

Visitor Records

Although the Burka paradigm requires consideration of four factors, at bottom it is an

effort to ascertain agency control based on the totality of the circumstances. As applied here, all

factors point to one unmistakable conclusion: the White House visitor records are agency records

subject to the FOIA. They are records within the actual possession and control of the Secret

Service. The only so-called “evidence” to the contrary is the self-serving MOU and letter from

the vice president’s counsel, neither of which is contemporaneous with the records’ creation.

Under these circumstances, the district court properly concluded that the agency’s use

trumps its stated intent. JA 184. To hold otherwise would “make[] the determination of ‘agency

records’ turn on the intent of the creator of a document,” something the Supreme Court has

eschewed specifically. Tax Analysts, 492 U.S. at 147, cited at JA 184. In any event, intent is one

of four factors and here it is “substantially outweighed by the other factors.” JA 184.

D. The Secret Service’s Alternative Approach Is Contrary To Law.

While paying lip service to the totality of the circumstances test for agency records, the

Secret Service focuses exclusively on intent and urges the Court to adopt a new paradigm that

elevates intent above all else. Such an approach is contrary to the approach this Circuit has

adopted in case after case, and would subvert the FOIA’s purposes by manipulating “[t]he term

‘agency records’ . . . to avoid the basic structure of the FOIA . . .” Consumer Fed’n of Am., 455

F.3d at 287 (quotation omitted).

29
 The Secret Service’s approach rests not on case law or policies of the FOIA, but rather the

government’s12 myopic view that the professed interests of the White House are paramount and

must be accommodated, even if it means ignoring the FOIA’s statutory commands. Indeed, the

government goes so far as to equate the FOIA request at issue here with a request for records

directly from the president and vice president, something the FOIA does not sanction. See Br at

21-22. The government argues further that because the requested records would shed no light on

the actions of the Secret Service, they are perforce outside of the FOIA’s scope. Br at 22. And

the government claims that treating these records as agency records will interfere with the

president’s responsibilities under the Presidential Records Act. Br. at 34. Each of these

arguments is without merit.

In fashioning its two-prong agency-record test, the Supreme Court paid close attention to

“FOIA’s goal of giving the public access to all nonexempted information received by an agency as

it caries out its mandate.” Tax Analysts, 492 U.S. at 147. The Court took pains not to interpret

the term “agency record” in a manner that would “frustrate Congress’ desire to put within public

reach the information available to an agency in its decision-making processes.” Id. at 144. Under

comparable circumstances this Circuit, in Judicial Watch, Inc. v. Dep’t of Justice, was careful not

to construe the presidential communications privilege in a manner that would conflict with “the

purposes of FOIA to foster openness and accountability in government,” 365 F.3d at 1118, and

“impede the operation and scope of FOIA” Id. at 1119.

12
CREW uses the term “government” here because the appellants are advancing interests
not of the Secret Service, but of the White House, which is not a party to this action.

30
 The government’s arguments here rest on an impermissibly broad construction of

presidential prerogatives that, if accepted, would subvert the statutory directives of the FOIA.

Essentially the government asks this Court to construe FOIA as not only excluding the president

and vice president directly, but also placing beyond the statute’s reach any records in which they

might have an interest. Not surprisingly, the government cites no case law in support of this novel

interpretation; in fact, the case law is to the contrary.

In Judicial Watch, Inc. v. Dep’t of Energy -- a case that is essentially the flip side of this

one -- this Circuit held that documents in the possession of the Department of Energy that were

created by agency employees as part of their participation in a presidential advisory committee

were protected by exemption 5 of the FOIA. 412 F.3d at 129-131. The Court did not -- as the

government would have it do here -- construe the FOIA as excluding those documents from its

reach because they were created for use by a non-agency entity and included information that the

plaintiff could not get directly from the president and vice president.13 Instead the Court accepted

the government’s argument that the records in question were subject to the FOIA, but that

portions involving the presidential decision-making process were exempt under exemption 5. The

argument the government is advancing here -- that records created by an agency that implicate

presidential interests are not subject to the FOIA -- is completely contrary to both its argument and

the Court’s holding in Judicial Watch, Inc. v. Dep’t of Energy.

13
This Court’s decision in Judicial Watch, Inc. v. Dep’t of Energy was issued after the
Supreme Court’s decision in Cheney v. U.S. District Ct., 542 U.S. 367 (2004), the companion
lawsuit brought under the Federal Advisory Committee Act in which the plaintiffs were seeking
discovery directly from the vice president. That the Supreme Court found such discovery
constitutionally impermissible in Cheney did not affect this Court’s ability to consider records
implicating the same vice presidential interests under the FOIA.

31
 The government also suggests construing agency records as excluding White House visitor

records is necessary because otherwise the president has no ability keep confidential his

appointment information. Br at 29. This suggestion ignores several key points. First, the

government can take full advantage of FOIA’s exemptions, which include protection for truly

confidential presidential communications. Second, this argument presumes a broader protection

for presidential interests than the courts have recognized. And third, as the White House’s own

declarant makes clear, “in many if not most cases, the purpose of the visits . . . is not apparent

from the face of the documents.” JA 73. In other words, there is simply no legitimately

confidential information in nearly all of the records.

Nor is there any merit in the government’s argument that because CREW’s FOIA request

seeks to uncover what the White House has been up to, it is outside the scope of the FOIA. This

reflects an unduly circumscribed view of the FOIA, which was enacted to open up the government

to the light of public scrutiny, as well as an unduly narrow interpretation of the president’s role in

the “unitary structure of the Executive Branch . . .” Judicial Watch, Inc. v. Dep’t of Energy, 412

F.3d at 130. There, as here, “[t]hat the President, rather than an agency, initiated the policy

development process is of no moment . . .” Id. at 131.

Moreover, there are legions of FOIA cases that involve documents that on their face may

reveal nothing about a particular agency’s actions. For example, Tax Analysts involved a FOIA

request for district court decisions in the possession of the Department of Justice’s Tax Division

That the requested documents, created entirely by an outside entity, would reveal nothing about

the Justice Department itself was “of no moment.” Similarly, Judicial Watch, Inc. v. Dep’t of

Energy involved a request for documents that would shed light on the inner workings of a

32
presidential advisory committee that itself was not subject to the FOIA, but once again this was of

“no moment” to this Court in applying Exemption 5. And in Judicial Watch, Inc. v. Dep’t of

Justice, 365 F.3d 1108, plaintiff was seeking documents related to presidential pardons, an area

constitutionally entrusted to the president alone. Once again, this was not a factor in the Court’s

analysis.

Finally, the government argues that treating White House visitor records as agency records

will interfere with the president’s responsibilities under the Presidential Records Act. Br at 33-34.

Federal records, however, are explicitly exempted from the reach of the Presidential Records Act.

See 44 U.S.C. § 2201(2)(A)(I) (presidential records do not include “any documentary materials

that are . . . official records of an agency”). As this Circuit explained in Armstrong v. Executive

Off. of the President, 1 F.3d 1274, 1292 (D.C. Cir. 1993), “the PRA provides that the definition of

‘agency’ records in the FOIA trumps the definition of ‘presidential records’ in the PRA.” The

Armstrong court considered and rejected the very argument the government is making here,

namely that the president’s need to control his records takes precedence over the FOIA, reasoning:

Congress was ‘keenly aware of the separation of powers concerns that were
implicated by legislation regulating the conduct of the President’s daily
operations,’ and thus sought ‘to minimize outside interference with the day-to-day
operations of the President and his closest advisors and to ensure executive branch
control over presidential records during the President’s term of office’ . . . At the
same time, however, Congress sought to provide a clear limitation on just which
materials the President could legitimately assert control over and to preserve the
pre-existing body of FOIA law governing the disclosure of government agency
records.

Id. (citation omitted). This rationale applies with equal force here and requires that this Court, as

in Armstrong, give full force and meaning to both the FOIA and the exclusion of federal records

from the Presidential Records Act.

33
 In sum, under the totality of the circumstances, whether assessed under the Burka

paradigm or the template employed for non-congressionally related documents, the White House

visitor records are within the possession and control of the Secret Service and, accordingly,

subject to the FOIA.

II. TREATING WHITE HOUSE VISITOR RECORDS AS AGENCY RECORDS

SUBJECT TO THE FOIA DOES NOT IMPLICATE ANY CONSTITUTIONAL
CONCERNS.

Having failed to demonstrate that the White House visitor records are not under the

possession and control of the Secret Service, the government argues that otherwise subjecting

these records to the FOIA will implicate constitutional concerns. The government’s invocation of

the doctrine of constitutional avoidance is completely misplaced. At bottom, its arguments are

grounded on an impermissibly broad construction of executive prerogatives and the extent to

which the president is entitled to protection to prevent undue intrusion into constitutionally

protected spheres of the presidency.

First, as a procedural matter, the doctrine of constitutional avoidance has no applicability

here. The doctrine, which requires a court to construe a statute so as to avoid “serious

constitutional problems,”14 applies only to a statute that is “fairly subject to two potential

interpretations, one of which raises ‘serious constitutional problems’ and the other of which does

not . . .” INS v. St. Cyr, 533 U.S. 289, 299-30 (2001). As the district court properly concluded,

the Secret Service “‘has identified no ambiguity in the FOIA statute.’” JA 186, quoting The

Washington Post v. Dep’t of Homeland Security, 459 F. Supp.2d 61, 72 (D.D.C. 2006), vacated

14
Public Citizen v. U.S. Dep’t of Justice, 491 U.S. 440, 466 (1989).

34
as moot, No. 06-5337 (D.C. Cir.). Quite the contrary, as the district court found, “the term

‘agency record’ unambiguously encompasses the visitor records sought here.” JA 186.

Second, the government’s reliance on this doctrine is premised on the notion that the

president and vice president are entitled to absolute protection in the discharge of their duties. Br

at 35. The case law is to the contrary. For example, in Nixon v. Administrator, 433 U.S. 425

(1977), the Supreme Court rejected the argument that an agreement entered into between the

former president and the administrator of General Services regarding access to his presidential

papers trumped a statute enacted to undo the effects of the agreement and take federal custody of

the papers. In rejecting the president’s broad claims of executive privilege, grounded in the need

“to obtain the candid advice necessary for effective decisionmaking,” the Court reasoned that

“[a]n absolute barrier to all outside disclosure is not practically or constitutionally necessary.” Id.

at 450. As the Court pointed out, “there has never been an expectation that the confidences of the

Executive Office are absolute and unyielding.” Id. Yet this is the very expectation that the

government has proffered here as justification for excluding visitor records from the FOIA’s

reach.

The D.C. Circuit has also been quite clear that the reach of executive privilege is limited,

specifically recognizing the “countervailing considerations such as openness in government.”

Judicial Watch v. Dep’t of Justice, 365 F.3d at 1116, citing In re Sealed Case, 121 F.3d 729, 749

(D.C. Cir. 1997). Noting the need to construe the presidential communications privilege “as

narrowly as is consistent with ensuring that the confidentiality of the President’s decisionmaking

process is adequately protected,” 365 F.3d at 116 (citation omitted), the Court declined to extend

the executive privilege to internal Department of Justice documents. The Court reasoned that

35
such an extension would be “both contrary to executive privilege precedent and considerably

undermine the purposes of the FOIA to foster openness and accountability in government.” Id. at

1118.

In Armstrong v. Executive Off. of the President, the D.C. Circuit showed similar

sensitivity to the interests advanced by the FOIA in balancing those interests against separation of

powers concerns. While the Court acknowledged that in the Presidential Records Act Congress

sought to “minimize outside interference with the day-to-day operations of the President and his

closest advisors,” it also recognized

[a]t that same time . . . Congress sought to provide a clear limitation on just which
materials the President could legitimately assert control over and to preserve the
pre-existing body of FOIA law governing the disclosure of government agency
records.

1 F.3d at 1292 (quotation omitted) (emphasis added). As this body of case law makes clear, there

are defined and absolute limits to the constitutional protection afforded a president in the

discharge of his duties.

Third, constitutional protections are not required here because of the availability of

FOIA’s exemptions to protect any legitimate claim of presidential confidentiality. The

Washington Post, 459 F.Supp.2d at 73. The Secret Service’s “ready recourse in Exemption 5"

was one of the reasons cited by the district court in refusing to allow the government’s

confidentiality concerns to trump the FOIA. JA 188. See also Soucie v. David, 448 F.2d 1067,

1073 (D.C. Cir. 1971) (claim of executive privilege premature where government had yet to

invoke FOIA exemption).15

15
The legislative history of the FOIA also documents congressional concern with an
unduly broad assertion of executive power. In explaining one of the needs for the legislation,

36
 The government argues that this ready recourse does not cure any constitutional defects

because the president, vice president and their senior advisors will still have to process the records

and assert exemptions, procedures that are the equivalent of what the Court found constitutionally

impermissible in In re Cheney, 406 F.3d 723, 728, 731 (D.C. Cir. 2005) (en banc). Br at 40.

Unlike the Cheney case, this case does not involve any effort to obtain documents directly from

the vice president, but rather from the Secret Service under the FOIA, a statute that has been

interpreted as encompassing documents that reflect or relate to presidential decision-making

processes. See, e.g., Judicial Watch, Inc. v. Dep’t of Energy, 412 F.3d at 129-130; Soucie v.

David, 448 F.2d at 1078.16

Fourth, the government’s constitutional avoidance claim is based on its assertion that

disclosing visitor records will reveal confidential matters, specifically that “release of the ‘names

of many visitors would reveal . . . the likely subject matter . . . if not the precise ‘purpose’” of the

person’s visit,” JA 187, citing Def.’s Reply Br. at 18, which “in turn, would reveal the particular

policies the President was deliberating . . .” Id. The district court quite properly viewed this

apprehension as “misguided.” Id.

Congressman John E. Moss stated: “While the bounds of executive privilege claim have, of late,
been more carefully spelled out and, in effect, narrowed, widespread withholding of Government
records by executive agency officials continues in spite of the enactments of limiting statutes
[Moss-Hennings bill and Administrative Procedure Act].” 112 Cong. Rec. 13007 (June 20,
1966).
16
The 1974 amendments to the FOIA were intended to codify Soucie, including its
exclusion of “the President’s immediate personal staff or units in the Executive Office whose
sole function is to advise and assist the President,” H.R. Conf. Rep. No. 93-1380, at 14-15
(1974), as well as its recognition that exemption 5 may apply to advice provided by agencies to
the president.

37
 The government’s own declarations establish that “in many if not most cases, the purpose

of the visits . . . is not apparent from the face of the documents.” JA 73. According to the vice

president’s deputy chief of staff, such information could be determined only with “the assistance

of knowledgeable OVP personnel . . .” Id. Moreover, many of the visits have nothing to do with

presidential policy considerations, but are for other purposes altogether such as making repairs or

involve “visiting heads of foreign governments . . .” Id., cited at JA 187. And the ACR records

do not include any information about who the visitor is or who requested the visitor’s clearance.

JA 45. Under these circumstances, the district court properly concluded that, “as a factual matter,

it seems unlikely that visitor records will often pose a bona fide risk of improper disclosure.” JA

187.

Thus, the government’s reliance on the doctrine of constitutional avoidance is misplaced

as a factual and legal matter. Treating White House visitor records as agency records subject to

the FOIA is not only mandated by the governing case law, but raises no constitutional concerns.

CONCLUSION

For the foregoing reasons, this Court should affirm the judgment of the district court.

Respectfully submitted,

________________________________
Anne L. Weismann
Melanie Sloan
Citizens for Responsibility and Ethics
in Washington
1400 Eye Street, N.W., Suite 450
Washington, D.C. 20005
Telephone: (202) 408-5565
Fax: (202) 588-5020
Attorneys for Plaintiff-Appellee
February 28, 2008

38
 CERTIFICATE OF COMPLIANCE

This Brief of Appellee has been prepared using:

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EXCLUSIVE of the Certificate as to Parties, Rulings, and Related Cases; Glossary, Table

of Contents; Table of Authorities; Certificate of Filing and Service; and this Certificate of

Compliance, this brief contains 11,586 words.

I understand that a material misrepresentation can result in the Court’s striking the brief and

imposing sanctions. If the Court so directs, I will provide an electronic version of the brief and/or

a copy of the word or line printout.

Dated: February 28, 2008

__________________________________
Anne L. Weismann
Melanie Sloan
CITIZENS FOR RESPONSIBILITY AND
ETHICS IN WASHINGTON
1400 Eye Street, N.W., Suite 450
Washington, D.C. 20005
(202) 408-5565
 CERTIFICATE OF FILING AND SERVICE

I hereby certify that on the 28th of February, 2008, I filed with the Clerk’s Office of the

United States Court of Appeals for the District of Columbia , via hand-delivery, the required copies

of the foregoing Brief of Appellee, and further certify that I served, via UPS Ground, the required

copies of same to the following:

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Counsel for Appellant Counsel for Amicus Curiae

The necessary filing and service upon Counsel were performed in accordance with the

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