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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, Plaintiff, v. U.S. DEPARTMENT OF HOMELAND SECURITY, Defendant.

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CIVIL ACTION NO. 1:08-cv-01535-RCL

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT The defendant, by its undersigned counsel, hereby moves that summary judgment in its favor be granted under Rule 56 of the Federal Rules of Civil Procedure, on the grounds that there is no genuine issue as to any material fact and that defendant is entitled to judgment as a matter of law. The grounds for this motion are more fully set forth in the accompanying Memorandum in Support of Defendant’s Motion for Summary Judgment and Defendant’s Statement of Material Facts as to Which There Is No Genuine Issue.

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Dated: November 24, 2008 Respectfully submitted, GREGORY G. KATSAS Assistant Attorney General JEFFREY A. TAYLOR United States Attorney JOHN R. TYLER (DC Bar 297713) Assistant Branch Director

/s/ Brad P. Rosenberg Brad P. Rosenberg (DC Bar 467513) Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch Tel: (202) 514-3374 Fax: (202) 616-8460 brad.rosenberg@usdoj.gov Mailing Address: Post Office Box 883 Washington, D.C. 20044 Courier Address: 20 Massachusetts Ave., N.W. Washington, D.C. 20001 COUNSEL FOR DEFENDANT

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, Plaintiff, v. U.S. DEPARTMENT OF HOMELAND SECURITY, Defendant.

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CIVIL ACTION NO. 1:08-cv-01535-RCL

MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

GREGORY G. KATSAS Assistant Attorney General JEFFREY A. TAYLOR United States Attorney JOHN R. TYLER (DC Bar 297713) Assistant Branch Director BRAD P. ROSENBERG (DC Bar 467513) Trial Attorney COUNSEL FOR DEFENDANT

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TABLE OF CONTENTS INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 BACKGROUND. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 I. Records Regarding Visitors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 A. White House Complex Records.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 1. 2. B. II. White House Access Control System. . . . . . . . . . . . . . . . . . . . . . . 5 Secret Service’s Security-Related Records. . . . . . . . . . . . . . . . . . . 9

Vice President’s Residence Records. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Plaintiff’s FOIA Request and this Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 I. WHITE HOUSE AND VPR VISIT RECORDS ARE NOT “AGENCY RECORDS” SUBJECT TO THE FOIA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 A. The Provision of Visitor Information to the Secret Service Does Not Divest the President and Vice President of Control Over Records of Visitors to the White House and VPR. . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Alternatively, the FOIA Must Be Construed as not Reaching the Subject Records in Order to Avoid Serious Questions as to its Constitutionality.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

B.

II.

THE DEFENDANT CAN NEITHER CONFIRM NOR DENY THE EXISTENCE OF RECORDS RESPONSIVE TO PLAINTIFF’S FOIA REQUEST. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 A. The Presidential Communications Privilege Protects the Identity of Persons from Whom the President and His Advisers Seek Advice or Information.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Confirming or Denying the Existence of Records Regarding a Particular Visitor Would Disclose Information Protected by the Presidential Communications Privilege.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

B.

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TABLE OF CONTENTS (cont’d) CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

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TABLE OF AUTHORITIES Cases: Armstrong v. Bush, 924 F.2d 282 (D.C. Cir. 1991).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 26 Armstrong v. Executive Office of the President, 90 F.3d 553 (D.C. Cir. 1996). . . . . . . . . . . . . . 13 Ass’n of Amer. Physicians & Surgeons, Inc. v. Clinton, 997 F.2d 898 (D.C. Cir. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 30, 31, 33 Bureau of Nat’l Affairs, Inc. v. U.S. Dep't of Justice, 742 F.2d 1484 (D.C. Cir. 1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 21 Cheney v. U.S. Dist. Ct. for Dist. of Columbia, 542 U.S. 367 (2004).. . . . . . . . . . . . . . . . . . . . . 25 Citizens for Responsibility and Ethics in Washington v. Dep’t of Homeland Sec., 527 F. Supp. 2d 76 (D.D.C. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (1989). . . . . . . . . 35 Dep’t of the Air Force v. Rose, 425 U.S. 352 (1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568 (1988).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Gardels v. CIA, 689 F.2d 1100 (D.C. Cir. 1982).. . . . . . . . . . . . . . . . . . . . . . . . . . 3, 33, 34, 35, 37 Goland v. CIA, 607 F.2d 339 (D.C. Cir. 1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17, 20 I.N.S. v. St. Cyr, 533 U.S. 289 (2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 In re Cheney, 406 F.3d 723 (D.C. Cir. 2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 26 In re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . 2, 29, 30, 31, 32 Judicial Watch, Inc. v. Dep’t of Energy, 412 F.3d 125 (D.C. Cir. 2005). . . . . . . . . . . . . . . . . . . 27 Judicial Watch, Inc. v. Dep’t of Justice, 365 F.3d 1108 (D.C. Cir. 2004).. . . . . . . . . . . . . . . 28, 29 Judicial Watch, Inc. v. Nat’l Energy Policy Dev. Group, 219 F. Supp. 2d 20 (D.D.C. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

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TABLE OF AUTHORITIES (cont’d) Katz v. NARA, 68 F.3d 1438 (D.C. Cir. 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136 (1980). . . . . . . . . . . 12, 19 Military Audit Project v. Casey, 656 F.2d 724 (D.C. Cir. 1981).. . . . . . . . . . . . . . . . . . . . . . . . . 34 Nation Magazine v. U.S. Customs Serv., 937 F. Supp. 39 (D.D.C. 1996). . . . . . . . . . . . . . . . . . 36 Nation Magazine, Washington Bureau v. Customs Serv., 71 F.3d 885 (D.C. Cir. 1995). . . . 34, 36 Nixon v. Adm'r of Gen. Servs., 433 U.S. 425 (1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 26, 32 NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Paisley v. CIA, 712 F.2d 686 (D.C. Cir. 1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 People for the Am. Way Found. v. NSA, 462 F. Supp. 2d 21 (D.D.C. 2006). . . . . . . . . . 34, 35, 37 Phillipi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Phillipi v. CIA, 655 F.2d 1325 (D.C. Cir. 1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Public Citizen v. U.S. Dep't of Justice, 491 U.S. 440 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Ryan v. Dep’t of Justice, 617 F.2d 781 (D.C. Cir. 1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 27 Schwarz v. U.S. Dep't of the Treasury, 131 F. Supp. 2d 142 (D.D.C. 2000). . . . . . . . . . . . . . . . 13 Tax Analysts v. U.S. Dep't of Justice, 845 F.2d 1060 (D.C. Cir. 1988). . . . . 15, 17, 18, 19, 20, 23 United We Stand America, Inc. v. IRS, 359 F.3d 595 (D.C. Cir. 2004) .. . . . . . . . . . 16, 17, 19, 20 U.S. Dep't of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749 (1989).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 U.S. Dep't of Justice v. Tax Analysts, 492 U.S. 136 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 United States v. Nixon, 418 U.S. 683 (1974). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Washington Post v. Dep’t of Homeland Sec., 459 F. Supp. 2d 61 (D.D.C. 2006). . . . . . . . . 20, 21

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TABLE OF AUTHORITIES (cont’d) Wolf v. CIA, 473 F.3d 370 (D.C. Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34, 35, 37 Statutes: 5 U.S.C. § 552(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 5 U.S.C. § 552(b)(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 18 U.S.C. § 3056(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 15, 17 18 U.S.C. § 3056A(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 17 18 U.S.C. § 3056A(a)(1), (2), (4), (6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 44 U.S.C. § 2203(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 44 U.S.C. § 2207. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 31 Other: H.R. Rep. No. 95-1487, reprinted in 1978 U.S.C.C.A.N. 5732.. . . . . . . . . . . . . . . . . . . . . . . 24, 27

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INTRODUCTION In this parallel action to Citizens for Responsibility and Ethics in Washington v. Department of Homeland Security, No. 06-cv-01912-RCL (D.D.C. filed Nov. 9, 2006) (hereinafter “CREW 2"), plaintiff Citizens for Responsibility and Ethics in Washington (“CREW”) seeks to compel the United States Secret Service to disclose records of any visits to the White House Complex and the Vice President's Residence ("VPR") by an individual named Stephen Payne. Plaintiff seeks these documents not to understand the internal workings of the Secret Service — the purpose promoted by FOIA — but rather to examine the "influence that Stephen Payne has had, or attempted to have, on the [P]resident in the exercise of his authority."1 As defendant explained in its Motion for Summary Judgment in CREW 2 (CREW 2, Dkt. No. 59, (5/25/2007)), with respect to the key types of visitor records potentially at issue here — consisting of Worker and Visitor Entrance System ("WAVES") records and Access Control Records System ("ACR") records at the White House Complex; and access requests, access lists, entry logs, and event lists at the VPR — the Secret Service does not have the "exclusive control" over these categories of records necessary to make them "agency records" subject to the FOIA. This Court should furthermore avoid construing the FOIA to reach these categories of records so as to avoid questions of FOIA’s constitutionality. To the extent that this Court nonetheless determines — as it did in CREW 2 — that these key visitor records are agency records subject to FOIA, plaintiff nonetheless cannot prevail. Producing records that reflect meetings involving the President, the Vice President, and other presidential advisers "who have broad and significant responsibility for investigating and
1

Compl. ¶ 21. 1

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formulating the advice to be given to the President"2 would violate the confidentiality that the President and his advisers can and must expect in "explor[ing] alternatives in the process of shaping policies and making decisions."3 And indeed, records of visitors to the White House Complex and VPR do potentially reflect such meetings. As such, these kinds of records — if implicated here — would be protected by the presidential communications privilege and exempt from disclosure under FOIA. Yet, invocation of the privilege to withhold responsive records that reflect such meetings would reveal that the named individual had provided confidential advice to the President or his senior advisors — the very information that invocation of the privilege is intended to protect. Conversely, not finding responsive records would reveal that the named individual had not provided confidential advice to the President or his senior advisers. The resulting problem is that invoking the privilege in some cases, but not others, would reveal from whom the President has, and has not, sought confidential advice or information. Given that the "sources of information"4 consulted by the President and his immediate advisers are privileged, producing visitor records or invoking the presidential communications privilege in response to any particular request would tend to reveal the very information protected from disclosure. Therefore, the only appropriate

2

In re Sealed Case, 121 F.3d 729, 757 (D.C. Cir. 1997). United States v. Nixon, 418 U.S. 683, 708 (1974). In re Sealed Case, 121 F.3d at 750. 2

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response to a particular request for such visitor records — the only response that can fully protect privileged information — is to "neither confirm nor deny" that responsive records exist.5 For these reasons, as set forth more fully below, defendant’s motion for summary judgment should be granted and this action should be dismissed with prejudice. BACKGROUND I. Records Regarding Visitors Because the safety of the President and Vice President implicates national security and other governmental interests of the highest order, Congress has directed that both of these constitutional officers receive protection from the United States Secret Service. See 18 U.S.C. § 3056(a). No other official (except the President-elect and Vice President-elect) is required by law to accept such protection. The Secret Service's protection extends not only to the physical persons of the President and Vice President, but also to the places where they live and work, including the White House Complex,6 which contains the offices of the President and his staff and offices for the Vice President and his staff, as well as the VPR. See id. § 3056A(a)(1), (2), (4), (6); Third Declaration of Paul S. Morrissey, Deputy Assistant Director, United States Secret Service ¶¶ 3, 5, 6 (May 23, 2007) (hereinafter “Third Morrissey Decl.”) (Attached as Dkt. No.

5

Gardels v. CIA, 689 F.2d 1100, 1102-03 (D.C. Cir. 1982).

The "White House Complex" includes the White House itself along with the Eisenhower Executive Office Building, the New Executive Office Building, and the grounds encompassing the White House and the Eisenhower Executive Office Building. See Third Declaration of Paul S. Morrissey, Deputy Assistant Director, United States Secret Service ¶ 5 (May 23, 2007) (hereinafter “Third Morrissey Decl.”) (Attached as Dkt. No. 29-2 to Defendants’ Motion for Summary Judgment in CREW 2 (Dkt. No. 29) and attached hereto as Dkt. No. 9-2). 3

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29-2 to Defendants’ Motion for Summary Judgment in CREW 2 (Dkt. No. 29) and attached hereto as Dkt. No. 9-2).7 As part of its function to provide security for the White House Complex and the VPR, the Secret Service clears proposed visitors for entry, and controls the entry and exit of visitors at both locations. Id. ¶¶ 8, 10-12, 32. To enable the Secret Service's performance of this protective function, authorized personnel (including, but not limited to, Presidential and/or Vice Presidential staff at the Complex and the VPR) provide identifying information regarding proposed visitors to the Secret Service. Id. ¶¶ 10-12, 32, 34. This information is provided confidentially and temporarily, for the sole purpose of conducting background checks to determine whether, and under what conditions, a visitor should be admitted, and to allow the Secret Service to verify the visitor's admissibility at the time of the visit. Id.; Declaration of Philip C. Droege ¶¶ 5, 13 (May 23, 2007) (hereinafter “Droege Decl.”) (Attached as Dkt. No. 293 to Defendants’ Motion for Summary Judgment in CREW 2 (Dkt. No. 29) and attached hereto as Dkt. No. 9-6); Declaration of Claire M. O'Donnell, Assistant to the Vice President and Deputy Chief of Staff, Office of the Vice President ¶¶ 11, 17, 20, 21 & Ex. A (May 23, 2007) (hereinafter “O’Donnell Decl.”) (Attached as Dkt. No. 29-4 to Defendants’ Motion for Summary Judgment in CREW 2 (Dkt. No. 29) and attached hereto as Dkt. No. 9-7).
7

Mr. Morrissey has executed additional declarations in CREW 2 that supplement, clarify, or correct testimony regarding matters largely of a technical nature. See Fourth Declaration of Paul S. Morrissey, Deputy Assistant Director, United States Secret Service (June 22, 2007) (Attached as Dkt. No. 34-2 to Notice of Filing in CREW 2 (Dkt. No. 34) and attached hereto as Dkt. No. 9-3); Fifth Declaration of Paul S. Morrissey, Deputy Assistant Director, United States Secret Service (Jan. 24, 2008) (Attached as Dkt. No. 50-2 to Notice of Filing in CREW 2 (Dkt. No. 50) and attached hereto as Dkt. No. 9-4); see also Declaration of Robert P. Caldwell, Deputy Assistant Director, United States Secret Service (Nov. 24, 2008) (Attached as Dkt. No. 72-1 to Notice of Filing in CREW 2 (Dkt. No. 72) and attached hereto as Dkt. No. 9-5). 4

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A.

White House Complex Records 1. White House Access Control System

Authorized White House pass holders, including but not limited to Presidential and Vice Presidential staff, usually provide information on future White House Complex visitors to the Secret Service by entering the information into a computer, which automatically transmits it (through a server) to a Secret Service terminal. See Third Morrissey Decl. ¶ 11; Droege Decl. ¶ 6; O'Donnell Decl. ¶ 12. A Secret Service employee then verifies that the requestor is authorized to make appointments for the location requested, adds any other information that may be necessary (such as for a background check), and transmits the information electronically to the Secret Service's White House Access Control System, which includes the Worker and Visitor Entrance System ("WAVES"). See Third Morrissey Decl. ¶¶ 8, 11; O'Donnell Decl. ¶ 12. White House pass holders may also provide visitor information by telephone, fax, e-mail, or on paper, in which case Secret Service personnel may enter the information into the WAVES system manually. See Droege Decl. ¶ 6; Third Morrissey Decl. ¶ 11. The information provided to the Secret Service includes information such as the proposed visitor's name, date of birth, Social Security number, the time and location of the planned visit, the name of the official or employee submitting the request, the name of the person to be visited, the date of the request, and the type of visitor, such as whether the visitor is a worker, a member of the press, an individual with an appointment, or an individual on an access list. Id. ¶ 10. The Secret Service uses the information it is provided to determine whether there is any protective concern with admitting the proposed visitor to the White House Complex, as well as to verify the visitor's admissibility at the time of the visit. Id. ¶ 12. Some WAVES records are 5

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annotated by Secret Service personnel, in note and comment fields, with limited information from background checks or instructions, including coded instructions to Secret Service officers. Id. ¶ 13. Once a visit takes place, WAVES records are typically updated electronically with information showing the time and place of the visitor's entry into and exit from the White House Complex. Id. ¶ 15. Once an individual is cleared into the White House Complex, the visitor usually receives an electronic pass, which is swiped over one of the pass readers at entrances to and exits from the Complex. Id. ¶ 14. Swiping a pass automatically creates a record in the Access Control Records System ("ACR"). Id. An ACR record includes information such as the entrant's name and badge number, the time and date of the swipe, and the post at which the swipe was recorded; such a record does not indicate the entrant's destination within the White House Complex. Id. The WAVES and ACR systems, together, comprise the White House Access Control System ("WHACS"). Id. ¶ 8. Both the Secret Service and the offices of the President and Vice President recognize that the President and Vice President exercise exclusive legal control over WAVES and ACR records. Id. ¶¶ 18, 21-22 & Ex. B; Droege Decl. ¶¶ 8-12; O'Donnell Decl. ¶¶ 7-9, 13-15. After a visitor's visit is complete, the Secret Service has no continuing interest in the key White House Complex visit records potentially involved here sufficient to justify their preservation or retention, other than materials containing information of protective interest, such as records resulting from background checks. See Third Morrissey Decl. ¶¶ 18, 21-22, 24 & Ex. B. The

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President and Vice President, in contrast, have a continuing interest in such records for their operational and historical value. Id. ¶ 21 & Ex. B; Droege Decl. ¶ 12; O'Donnell Decl. ¶ 22.8 Consistent with this understanding, it has been the practice of the Secret Service, since at least 2001, to transfer newly-generated WAVES records on CD-ROM to the White House Office of Records Management ("WHORM") every 30 to 60 days. See Third Morrissey Decl. ¶ 18; Droege Decl. ¶ 9; O'Donnell Decl. ¶ 14.9 Upon the turnover of each batch of WAVES records, a WHORM employee typically signs a form acknowledging receipt of the records. See Third Morrissey Decl. ¶ 18 & Ex. A. The intent of the Secret Service has been to ensure that, once transferred, the WAVES records are erased from its computer system. Id.10 In November 2004, however, because of a request from the National Archives and Records Administration, the Secret Service began temporarily retaining a copy or copies of the WAVES records that it transferred to the WHORM. Id. ¶ 19.11

Indeed, the Secret Service typically sends a copy of the President's scheduled appointments to the President's diarist at the end of each day. See Third Morrissey Decl. ¶ 25. The Secret Service also transfers certain paper records to the WHORM, such as large event lists, facsimiles, and printed e-mails, but has begun retaining these materials, or copies of them, due to pending litigation and FOIA requests. See Third Morrissey Decl. ¶ 24; Second Declaration of Philip C. Droege ¶ 2 (“Second Droege Decl.”) (Attached as Dkt. No. 64-2 to Defendant’s Motion for Summary Judgment on Claims One and Two in CREW 2 (Dkt. No. 64) (10/30/2008), and attached hereto as Dkt. No. 9-8). The Secret Service has, however, been retaining electronic data that appear to be underpinning the WAVES and ACR records since Spring, 2006, and all WHACS data tables since January 2008. See Fifth Morrissey Decl. ¶ 10. Until July 2006, the Secret Service was removing the note and comment fields from WAVES records before transferring the records to the WHORM. See Third Morrissey Decl. ¶ 18. In that month, the Secret Service retroactively provided WAVES records to the WHORM that contained these fields for the period from October 12, 2004, to July 10, 2006. Id. ¶ 19. 7
11 10 9

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At least as early as 2001, and upon revisiting the issue in 2004, the Secret Service and the White House recognized and agreed that ACR records should be treated in a manner generally consistent with the treatment of WAVES records. Id. ¶ 22. Thus, the Secret Service and the White House have determined that ACR records should be transferred to the WHORM and deleted from the Secret Service's computers like WAVES records. Id. In May 2006, the Secret Service transferred to the WHORM the ACR records covering the period from January 2001 to April 2006. Id.; Droege Decl. ¶ 14. (The Secret Service had been transferring WAVES records, which post-visit generally incorporate pertinent ACR information. See Third Morrissey Decl. ¶¶ 15, 18.) Since that time, the Secret Service has continued to transfer ACR records to the WHORM. See Third Morrissey Decl. ¶ 22. Nevertheless, the Secret Service currently continues to retain one or more copies of the ACR records solely because of pending litigation and FOIA requests. Id.; see [Defendants'] Opposition to Plaintiff's Motion for Temporary Restraining Order (Dkt. No. 21 in CREW 2) (03/05/2007) (describing Secret Service's preservation of record categories that may include records responsive to the subject FOIA request). In May 2006 (more than two years before the plaintiff submitted its FOIA request), the Secret Service and the WHORM entered into a Memorandum of Understanding ("MOU"), which both "document[s] past practice" regarding WAVES and ACR records and "confirm[s] the legal status of these records” and of WHORM's management and custody of them.12 See Third Morrissey Decl. ¶ 21 & Ex. B. The MOU provides, among other things, that the White House, but not the Secret Service, has a continuing interest in WAVES and ACR records, and that the
12

WHORM has historically managed records of the Office of the Vice President as OVP's agent in accordance with the Vice Presidential provisions of the Presidential Records Act. 44 U.S.C. § 2207; see O'Donnell Decl. ¶ 14. 8

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White House continues to use the information contained in such records for various historical and informational purposes. Id. The MOU reflects that the White House "at all times asserts, and the Secret Service disclaims, all legal control over any and all [WAVES and ACR] Records." Id. The Secret Services acknowledges in the MOU that its temporary retention of such records after an individual's visit to the White House Complex is solely for the purpose of facilitating an orderly and efficient transfer of the records to the WHORM. Id. 2. Secret Service's Security-Related Records

The Secret Service itself sometimes creates other, highly sensitive records relating to the background investigation and security process in connection with visitors or scheduled visitors to the White House Complex (hereinafter referred to as "Additional Security-Related Records"). Id. ¶ 17. These records are created in the course of conducting additional background checks and other security-related activities regarding certain visitors, chosen based on certain details in their backgrounds and/or the circumstances of their visits. Id. Included in these records are the names and other identifying information concerning such visitors (including, in some cases, their birth dates and/or Social Security numbers) and background information on them or information regarding their visits to the Complex, which may include criminal history and/or other securityrelated information. Id. Unlike the WAVES and ACR records, the Secret Service maintains control over these records and does not transfer them to the WHORM or the OVP. Id. These "Additional Security-Related Records" are, therefore, "agency records" subject to the FOIA. B. Vice President's Residence Records

Secret Service protection of the Vice President's Residence likewise requires that security protocols be followed for visitors to the Residence. When the Vice President wishes to arrange 9

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for a visitor, staff in the OVP send an access request to the Secret Service, providing the visitor's identifying information (including name, date of birth, and Social Security number) and the expected date and time of arrival. See Third Morrissey Decl. ¶ 32; O'Donnell Decl. ¶ 17. This information is usually provided to the Secret Service by e-mail, but may also be provided by facsimile or other means. See Third Morrissey Decl. ¶ 34. Once the Secret Service performs a background check, the information supplied by OVP enters a computer database that is used to generate a permanent access list (for people who regularly enter the facility) and a daily access list (for persons requiring access only at particular times). Id. ¶¶ 32, 34, 39. Secret Service officers stationed at entrances to the grounds receive copies of both access lists for the purpose of admitting authorized visitors. Id. ¶ 33. For particular events at the VPR, the Secret Service clears certain visitors using an event list rather than a daily access list or permanent access list. Id. ¶¶ 34, 41. The actual entry and exit of a visitor is noted by the gatehouse officer in a handwritten post entry log. Id. ¶ 33. The post entry log records the names of persons who enter on a particular day, along with their times of entry. Id. This is the final record generated as the result of a request for a visitor's entry to the VPR. Id. The understanding between the OVP and the Secret Service regarding records of entry to the Residence is similar to the understanding regarding WAVES and ACR records at the White House Complex. The OVP identifies visitors to the Secret Service confidentially, and with the understanding that that information — and any materials derived from it that do not relate to the Secret Service's ongoing protective function — remain in the exclusive ownership, custody, and control of the OVP. See O'Donnell Decl. ¶¶ 18, 20, 21 & Ex. A. After an individual's visit to the 10

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VPR, the Secret Service has no continuing interest in visit records sufficient to justify their preservation or retention — other than materials such as records resulting from background checks — and recognizes that such records are under the exclusive legal control of the Vice President. See Third Morrissey Decl. ¶¶ 37, 39-42 & Ex. D. Since 2001, the Secret Service's consistent practice has been to transfer all handwritten post entry logs to the OVP, generally on a monthly basis. Id. ¶ 37; O'Donnell Decl. ¶ 18. After receiving each periodic batch of entry logs, an OVP employee typically signs a form acknowledging receipt of the records. Id.; Third Morrissey Decl. ¶ 37 & Ex. C. More recently, the Secret Service now follows the same practice with respect to requests for access, access lists, and event lists at the VPR. Id. ¶¶ 39-41.13 The OVP's "consistent practice of exercising exclusive control" over documents relating to visitors to the VPR was "confirm[ed] and reiterate[d]" by Counsel to the Vice President in a letter to the Secret Service Chief Counsel on September 13, 2006 — nearly two years before the FOIA request at issue here. See O'Donnell Decl. ¶ 20 & Ex. A. The OVP preserves all such records as Vice Presidential executive records under the Presidential Records Act. Id. ¶¶ 9, 19.

Due to the pendency of litigation and FOIA requests, the Secret Service began, based on a directive issued in June 2006, to retain copies of entry logs, access lists, the access list database, event lists, and access requests. In the course of conducting a search for records potentially responsive to a different FOIA request, the Secret Service has located some paper copies of access requests and daily access lists predating June 2006, in locations where such documents would not normally be placed, but these records are from sporadic dates and are not comprehensive. See Third Morrissey Decl. ¶ 39 n.2. The retention of these documents was not in accordance with the normal practice at the VPR. Id. Similarly, the Secret Service has recently located some Watch Commander Journals, access requests, and event lists that had not been identified in its declarations previously submitted in CREW 2. See Caldwell Decl ¶¶ 3-5. 11

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II.

Plaintiff's FOIA Request and this Litigation By letter dated July 15, 2008, the plaintiff submitted to the Secret Service a FOIA request

for all records “relating to any visit that Stephen Payne made to the White House or the residence of the Vice President from January 1, 2001, to the present.” Compl. ¶ 20. Plaintiff filed suit to enforce this request on September 4, 2008, and defendant filed its Answer on October 6, 2008. In that Answer, defendant stated that it “can neither admit nor deny the existence of any records that may fall within plaintiff’s request because acknowledging or denying the existence of records reflecting visits to the White House or the Vice President’s Residence could reveal information protected by the presidential communications privilege.” Answer ¶¶ 7, 28. Defendant filed a Motion to Stay pending the outcome of CREW 2, which this Court denied on November 8. See Order, Dkt. No. 8 (11/08/2008). Pursuant to that Order, which invited the defendant to file a dispositive motion, defendant filed this Motion for Summary Judgment. ARGUMENT I. WHITE HOUSE AND VPR VISIT RECORDS ARE NOT “AGENCY RECORDS” SUBJECT TO THE FOIA. The FOIA provides for the disclosure, subject to certain exemptions, of records of an "agency." 5 U.S.C. § 552(a). The Supreme Court has made clear, however, that the term "agency" under the FOIA does not encompass "the President's immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President." Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 156 (1980) (quoting H.R. Conf. Rep. No. 93-1380, at 15 (1974)) (records of telephone calls made by Assistant to the President for Natural Security Affairs are not subject to FOIA) (hereinafter “Reporters Comm.”); see

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Armstrong v. Executive Office of the President, 90 F.3d 553, 558 (D.C. Cir. 1996) (records of National Security Council ("NSC") are not subject to FOIA, because NSC is "more . . . like the White House Staff, which solely advises and assists the President" than "an agency to which substantial independent authority has been delegated"). Owing in part to the Vice President's role as a close presidential advisor, the Vice President and his staff also are not subject to FOIA. See Armstrong v. Bush, 924 F.2d 282, 286 n.2 (D.C. Cir. 1991) (distinguishing Office of the Vice President from agencies that create "federal records"); Schwarz v. U.S. Dep't of the Treasury, 131 F. Supp. 2d 142, 147-48 (D.D.C. 2000) (Office of the Vice President not subject to the FOIA), aff'd, 2001 WL 674636 (D.C. Cir. 2001). This Court, in CREW 2, determined that visitor records and related documents are “agency” records subject to FOIA. See CREW 2, 527 F. Supp. 2d 76, 88-98 (D.D.C. 2007). The D.C. Circuit, however, dismissed DHS’s appeal in CREW 2 for lack of jurisdiction without deciding the merits of DHS’s argument that visitor records and other related documents are not “agency records” subject to disclosure. To date, the D.C. Circuit has not resolved that issue. Accordingly, and to preserve its record for any potential appeal, defendant respectfully argues that the visitor records and related documents that CREW seeks here are not “agency records” subject to FOIA.14
14

There are a small handful of categories of documents that are potentially implicated by plaintiff’s FOIA request, but that were not at issue in CREW 2. See generally Second Declaration of Robert P. Caldwell, Deputy Assistant Director, United States Secret Service (Nov. 24, 2008) (“Second Caldwell Decl.”) (Attached hereto as Dkt. No. 9-9). Without confirming or denying the existence of any documents within these categories that are responsive to plaintiff’s FOIA request, and for the reasons more fully set forth below, none of the categories constitute agency records subject to FOIA. (continued...) 13

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A.

The Provision of Visitor Information to the Secret Service Does Not Divest the President and Vice President of Control Over Records of Visitors to the White House and VPR.

The plaintiff seeks records of visitors to the White House and the Vice President's Residence — records that reflect "the activities [and] deliberations" of the Presidency and Vice Presidency. 44 U.S.C. § 2203(a). The Secret Service uses such records, for a brief time, in fulfillment of its statutory duties to protect the President, the Vice President, and the places where they live and work. Accommodating the Secret Service's statutory protective function does not divest the President and Vice President of control over these records — neither as a matter of fact nor as a matter of law under the FOIA — and the records remain Presidential and Vice Presidential records under the Presidential Records Act rather than agency records under FOIA.
14

(...continued) Specifically, the categories consist of parking records, daily briefing sheets, schedules, name check reports, e-mail access requests, and “Visitor Multiple Entry Reports.” See Second Caldwell Decl. ¶ 3-10; Third Morrissey Decl. ¶¶ 24, 34; Fourth Morrissey Decl. ¶¶ 3-6. Parking records are created by the White House; the Secret Service does not modify or add anything to them. Second Caldwell Decl. ¶¶ 3-4. Daily briefing sheets, while created by the Secret Service, contain scheduling information that is supplied by the White House. Id. ¶¶ 5-6. Similarly, the Secret Service has received some protectee schedules from the White House, id. ¶ 7, and name check reports contain appointment information from the White House or other authorized White House passholders, id. ¶¶ 8-9. The Secret Service receives e-mail access requests from, among others, OVP staff. Third Morrissey Decl. ¶ 34. Finally, the Visitor Multiple Entry Reports are an embodiment of WAVES data. See Fourth Morrissey Decl. ¶ 3. These categories of documents would, if produced in response to a FOIA request, potentially reveal the individuals with whom the President or Vice President confer, and are used by the Secret Service only briefly and only to carry out its protective functions (the Visitor Multiple Entry Reports are not even used by the Secret Service). Other than these discrete categories of documents, defendant’s arguments in this brief mirror in material respects those in CREW 2.

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The Supreme Court has held that documents constitute "agency records" subject to FOIA if they are (1) created or obtained by an agency, and (2) in the agency's control. See U.S. Dep't of Justice v. Tax Analysts, 492 U.S. 136, 144-46 (1989).15 The D.C. Circuit uses a four-factor analysis to determine whether an agency exercises "sufficient control" over a record to render it an "agency record" under FOIA: [1] the intent of the document's creator to retain or relinquish control over the records; [2] the ability of the agency to use and dispose of the record as it sees fit; [3] the extent to which agency personnel have read or relied upon the document; and [4] the degree to which the document was integrated into the agency's record system or files. Tax Analysts v. U.S. Dep't of Justice, 845 F.2d 1060, 1069 (D.C. Cir. 1988) (quoting Lindsey v. U.S. Bureau of Prisons, 736 F.2d 1462, 1465 (11th Cir. 1984)), aff'd on other grounds, 492 U.S. 136 (1989). The Secret Service’s Intent and Actions Indicate It Does Not Control Visitor Records The most important factor is the first — that is, what entity exercises "control" over a particular record. For example, when a document is transferred from a non-agency (such as Congress, the President, or the Vice President) to an agency, it becomes an agency record only if "under all the facts of the case the document has passed from the control of [the non-agency] and
15

This Court held in CREW 2 that visitor records and related records were created by the Secret Service. See CREW 2, 527 F. Supp. 2d at 88-91. Nonetheless, Presidential and Vice Presidential personnel play a substantial role in creating records of visitors to the White House. These records would not exist at all if Presidential or Vice Presidential personnel (or other authorized White House passholders) did not prompt their creation, and essentially all of the information in the records that would “shed light” on the President’s or Vice President’s business is provided by such personnel. Indeed, the Presidential and Vice Presidential role in the creation of these records is a necessary product of these officers’ statutory direction to accept protection from the Secret Service, extending to places where they live and work. 18 U.S.C. §§ 3056(a), 3056A(a). Accordingly, defendant respectfully asserts that the Secret Service is not, as a legal matter, the “creator” of these records. 15

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become property subject to the free disposition of the agency with which the document resides." Goland v. CIA, 607 F.2d 339, 347 (D.C. Cir. 1978), vacated in part on other grounds, 607 F.2d 367 (D.C. Cir. 1979) (per curiam). A similar analysis applies with respect to records originally created by an agency, but over which a non-FOIA entity (that is, Congress, the President, or Vice President) asserts control. See Paisley v. CIA, 712 F.2d 686, 695-96 (D.C. Cir. 1983) (applying the legal standard set out in Goland to records created by an agency in connection with a congressional investigation), vacated in part on other grounds, 724 F.2d 201 (D.C. Cir. 1984) (per curiam). In United We Stand America, Inc. v. IRS, the D.C. Circuit explained that the non-FOIA entity's "intent to control" and "the agency's ability to control 'fit together in standing for the general proposition that the agency to whom the FOIA request is directed must have exclusive control of the disputed documents . . .'" in order for the records to be considered agency records subject to FOIA. 359 F.3d 595, 600 (D.C. Cir. 2004) (emphasis added) (quoting Paisley, 712 F.2d at 693). Thus, if "[the non-FOIA entity] has manifested its own intent to retain control, then the agency — by definition — cannot lawfully 'control' the documents." Id. at 600 (quoting Paisley, 712 F.2d at 693). This Court held, in CREW 2, that the Secret Service intended to relinquish control of visitor records, and that its actions were not inconsistent with that intent. See CREW 2, 527 F. Supp. 2d at 92-93. To that end, the President and Vice President have exercised control over visitor records, and the Secret Service has acknowledged that the offices of the President and

16

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Vice President have "exclusive legal control" over WAVES and ACR records.16 See Third Morrissey Decl. ¶¶ 18, 21-22, 37 & Ex. B; Droege Decl. ¶¶ 5, 11-13; O'Donnell Decl. ¶¶ 7-9, 1315; see also Tax Analysts, 845 F.2d at 1069. In fact, information identifying visitors is provided by Presidential and Vice Presidential staff confidentially and only to permit the Secret Service's protection of the President and Vice President and of the places where they live and work. See Third Morrissey Decl. ¶¶ 10-12, 32; Droege Decl. ¶¶ 5, 13; O'Donnell Decl. ¶¶ 11, 17, 20, 21 & Ex. A; see also 18 U.S.C. §§ 3056(a), 3056A(a). WAVES records regarding proposed visitors to the White House Complex consist primarily of information supplied — usually electronically — by authorized White House pass holders, including Presidential and Vice Presidential personnel, and ACR records are created automatically by the entry or exit of a visitor or other entrant. See Third Morrissey Decl. ¶¶ 9-11, 14.17 This case, then, presents the antithesis of the "exclusive control" by the "agency" that the D.C. Circuit has held is necessary to find that a document is an "agency record" subject to FOIA. See United We Stand Am., Inc., 359 F.3d at 600; see also Katz v. NARA, 68 F.3d 1438 (D.C. Cir. 1995) (holding that autopsy records in Archivist's possession

The Secret Service's current retention of visit records, in light of pending litigation and FOIA requests, has been undertaken with the approval of the White House and the Office of the Vice President. See Third Morrissey Decl. ¶¶ 26, 44. The fact that the information contained in WAVES and ACR records comes primarily from Presidential and Vice Presidential staff, and other authorized White House pass holders, readily distinguishes them from the record involved in United We Stand America, Inc. The letter sought in that case was created in the first instance by the IRS, based on information provided by IRS personnel. 359 F.3d at 597. That letter, the D.C. Circuit held, was subject to FOIA even though it was created in response to a congressional inquiry. Id. at 597, 600-03. The court also held, however, that non-agency information contained in the letter — specifically, those portions of the letter that reflected the content of the congressional inquiry — was not subject to FOIA and should be redacted. Id. at 601, 603-04. 17
17

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were not agency records as they were controlled by President Kennedy's estate); Goland, 607 F.2d at 347 (noting that CIA held a congressional document as a "trustee" for Congress). Lack of Disposal Authority within the Secret Service The Secret Service's conduct, moreover, reflects the agency's intent to relinquish whatever control it might have had over these records, as well as its inability to "dispose of the record[s] as it sees fit." See Tax Analysts, 845 F.2d at 1069.18 Since at least 2001, the Secret Service's practice has been to transfer newly-generated WAVES records to the White House Office of Records Management every 30 to 60 days (while currently retaining copies due to pending litigation and FOIA requests). See Third Morrissey Decl. ¶ 18; Droege Decl. ¶ 9; O'Donnell Decl. ¶ 14. After transfer, the intent of the Secret Service is to erase WAVES records from its computer system. See Third Morrissey Decl. ¶ 18; footnote 10, supra. ACR records, reflecting actual entry into and exit from the White House Complex, are also transferred to the WHORM (while currently retaining copies due to pending litigation and FOIA requests). Id. ¶ 22. Those practices and the mutual understanding that USSS does not control WAVES and related entry records were confirmed in the May 2006 MOU between WHORM and USSS. Id. ¶ 21 & Ex. B. With respect to the VPR, the Secret Service has, since 2001, periodically transferred entry logs — the final record generated due to a request to admit a visitor — to the Office of the Vice President. Id. ¶ 37; O'Donnell Decl. ¶ 18. More recently, the same procedure is now followed with respect to other records of visitors to the VPR. See Third Morrissey Decl. ¶¶ 39-41. The

This court nonetheless concluded that “the Secret Service is able to use and dispose of the visitor records as it sees fit.” CREW 2, 527 F. Supp. 2d at 95. 18

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OVP controls these records and preserves them as Vice Presidential executive records subject to the Presidential Records Act, as confirmed by the September 13, 2006, letter from Counsel to the Vice President to Chief Counsel of the USSS. See O'Donnell Decl. ¶¶ 9, 19, 20 & Ex. A. Again, the Secret Service does not exercise the kind of "exclusive control" over VPR visitor records necessary for them to be considered agency records. See United We Stand Am., Inc., 359 F.3d at 600. The Secret Service's Limited Use of Visitor Records The limited extent to which — and the limited purpose for which — the Secret Service relies on visit records also demonstrates their Presidential and Vice Presidential status. See Tax Analysts, 845 F.2d at 1069.19 It is well-established that the mere fact that an agency has used a record "is not dispositive," see Bureau of National Affairs, Inc. v. U.S. Dep't of Justice, 742 F.2d 1484, 1492 (D.C. Cir. 1984), and the Supreme Court has held that a record's temporary physical location within a federal agency does not itself render it an "agency record" subject to FOIA. See Reporters Comm., 445 U.S. at 157 ("We simply decline to hold that the physical location of the notes of telephone conversations renders them 'agency records.' The papers were not in the control of the State Department at any time."). The information in question is quintessentially Presidential and Vice Presidential. These officers necessarily carry out much of their constitutional responsibility by meeting and consulting with visitors. Congress did not (and, as discussed below, could not) require the President and Vice President to make their appointment calendars available for immediate public inspection
19

This Court nonetheless held that “[t]he third factor, the extent to which Secret Service personnel have read or relied upon the document, weighs heavily against the Secret Service.” CREW 2, 527 F. Supp. 2d at 95. 19

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under FOIA. The President and Vice President and their staffs and other authorized personnel identify visitors to the Secret Service only to facilitate the agency's protective function, and the Secret Service uses the information for that purpose. See Third Morrissey Decl. ¶¶ 12, 32, 37; Droege Decl. ¶¶ 5, 13; O'Donnell Decl. ¶¶ 11, 17, 20, 21 & Ex. A. After a visitor leaves the White House or VPR, the Secret Service has no continuing interest in the key visit records potentially involved here — other than information of protective interest to the Secret Service, such as records resulting from background checks — sufficient to justify preserving or retaining them. See Third Morrissey Decl. ¶¶ 18, 24, 37, 39-41. The Secret Service recognizes, in contrast, that the President and Vice President have a continuing interest, both operationally and historically, in records reflecting who has visited the White House Complex and the VPR. See id. ¶ 21 & Ex. B; see also Droege Decl. ¶ 12; O'Donnell Decl. ¶ 22. Thus, "the extent to which [Secret Service] personnel have read or relied upon" the subject visit records is highly limited both in time and in purpose. See Tax Analysts, 845 F.2d at 1069; see also United We Stand Am., Inc., 359 F.3d at 600 (evaluating the "indicia of . . . intent to control" based upon "the circumstances surrounding the [agency]'s creation and possession of the documents"); Goland, 607 F.2d at 347 (concluding that the requested document was not an agency record based "both on the circumstances attending the document's generation and the conditions attached to its possession by the [agency]"). The Secret Service's limited use of visit records does not convert this Presidential and Vice Presidential information into an agency record. The decision of Judge Urbina in Washington Post v. Department of Homeland Security — subsequently stayed by the D.C. Circuit on appeal and vacated after voluntary dismissal by the plaintiff — erred in concluding that such records are subject to FOIA. 459 F. Supp. 2d 61, 70-72 20

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(D.D.C. 2006), vacated per voluntary dismissal, No. 06-5337 (D.C. Cir. Feb. 27, 2007). As an initial matter, even Judge Urbina held that three of the four Tax Analyst factors supported a determination that the records were not "agency records." As for the court's singular reliance on the Secret Service's (very limited) use of White House and VPR visit records to reach the opposite conclusion, the court's analysis misapplied the D.C. Circuit’s precedents. The court of appeals has stressed that the determinative inquiry is whether a non-FOIA entity — such as the President, the Vice President, or Congress — has clearly manifested its intent to control the records and has circumscribed their use by the agency. The court has never suggested that records should be deemed agency records merely because they are used by the agency in some limited respect. Rather, as noted above, the court has expressly held that "[u]se alone . . . is not dispositive." Bureau of Nat'l Affairs, Inc., 742 F.2d at 1492. The Court in Washington Post also erred in concluding that the "use" factor was determinative because "the very purpose of the WAVES records is limited." 459 F. Supp. 2d at 70-71. In other words, the Court believed that the Secret Service's use of the records was determinative because the records are "generated solely for their use by the Secret Service in protecting the [White House Complex]." Id. at 71. But that holding ignored precisely what prompts the creation of these records: the scheduling of meetings with the President, the Vice President, their staffs, and other White House Complex and VPR personnel, the record of which has important historical value. The Secret Service transfers White House visit records to the WHORM after the visits to which they pertain because the President and Vice President have a continuing interest in the records, both operationally and historically. See Third Morrissey Decl. ¶¶ 21 & Ex. B; Droege Decl. ¶ 12; O'Donnell Decl. ¶ 22. Thus, it is incorrect to conclude that the records cannot 21

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be used for any other purpose than that for which the Secret Service briefly uses them. In any event, the visit records are of limited use to the Secret Service precisely because that agency's protective function is merely ancillary to the Presidential and Vice Presidential business that the records facilitate. Plaintiff's own allegations reinforce the Presidential and Vice Presidential status of these records and the limited nature of the Secret Service's use of them. The complaint acknowledges that plaintiff's intent is not to cast light on the conduct of an agency subject to FOIA — the Secret Service — but to "open . . . to the light of public scrutiny" the activities of the Presidency and Vice Presidency, which are not covered by FOIA. See Department of the Air Force v. Rose, 425 U.S. 352, 372 (1976). In seeking to support its continuing interest in records of visitors to the White House Complex and VPR, plaintiff admits that it seeks such records because they are “likely to contribute to the public’s understanding of the influence that Stephen Payne has had, or attempted to have, on the [P]resident in the exercise of his authority and the extent to which Stephen Payne has generated contributions to the Bush library by selling access to the [P]resident and other top administration officials.” Compl. ¶ 21. As the Supreme Court has observed, however, the "basic purpose" of the FOIA is "to open agency action to the light of public scrutiny." Rose, 425 U.S. at 372 (emphasis added). Thus, in holding that disclosure of certain information under the FOIA would constitute "an unwarranted invasion of personal privacy," the Court observed that the focus of the statute is on requiring the disclosure of "[o]fficial information that sheds light on an agency's performance of its statutory duties." See U.S. Dep't of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 773 (1989) (emphasis added).

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Non-Integration Into Secret Service Record Systems Finally, the D.C. Circuit considers “the degree to which the document was integrated into the agency’s record system or files.” Tax Analysts, 845 F.2d at 1069.20 However, the WAVES and ACR records reside only temporarily on the Secret Service’s servers, and they are currently retained elsewhere due to pending litigation and FOIA requests (see footnote 10, supra); that does not mean that they have been “integrated” into the agency’s other files. Since most records today exist in electronic format — and many exist in no other format — an agency’s possession of a record in electronic format is no more meaningful than possession in any other format. Nor is a visitor record transformed into an agency record by the Secret Service’s brief possession of it after the visit concludes. Transferring the records of each visit immediately after the visit would be unnecessarily burdensome; that the transfers are effected in batches should not convert these Presidential and Vice Presidential records into agency records. Indeed, the Memorandum of Understanding regarding WHACS records expressly acknowledges that “[a]ny temporary retention of WHACS Records by the Secret Service after the visit, entrance, or exit memorialized by those records is solely for the purpose of facilitating an orderly and efficient transfer of those records, and does not operate in any way to divest the White House of complete and exclusive legal control.” See Third Morrissey Decl. ¶ 21 & Ex. B.

In CREW 2, this court found that this “final factor . . . cuts both ways” since “[t]he records created at the White House Complex are integrated into the Secret Services [sic] record system, while the records created at the Vice-President’s Residence are not.” CREW 2, 527 F. Supp. 2d at 95. 23

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B.

Alternatively, the FOIA Must Be Construed as Not Reaching the Subject Records in Order to Avoid Serious Questions as to Its Constitutionality.

Pursuant to well-established principles of statutory construction, if one potential interpretation of a statute would raise "serious constitutional problems" whereas another interpretation without constitutional problems is "fairly possible," the courts are "obligated to construe the statute to avoid such problems." I.N.S. v. St. Cyr, 533 U.S. 289, 299-300 (2001) (emphasis added). This principle "not only reflects the prudential concern that constitutional issues not be needlessly confronted, but also recognizes that Congress, like [the courts], is bound by and swears an oath to uphold the Constitution." Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988); see Public Citizen v. U.S. Dep't of Justice, 491 U.S. 440, 466 (1989) ("It has long been an axiom of statutory interpretation that where an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress.") (internal quotation marks omitted).21 As noted above, Congress chose to treat Presidential and Vice Presidential records differently from agency records in order to avoid "premature disclosure" of the former, in light of both "the expectation of confidentiality of executive communications" and the fact that premature disclosure may chill "the frankness of advice [that Presidents and Vice Presidents] could expect from their staffs." See H.R. Rep. No. 95-1487, at 8 (1978), reprinted in 1978 U.S.C.C.A.N.
21

Though this Court rejected defendant’s constitutional avoidance argument in CREW 2, 527 F. Supp. 2d at 99, the Court noted that the Secret Service may invoke Exemption 5 “[t]o the extent that a visitor record might, if publicly released, disclose confidential presidential communications.” Id. Defendant’s Glomar Response is founded upon Exemption 5. See Part II, infra. 24

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5732, 5739. Congress expressly acknowledged that Presidential and Vice Presidential records must be treated differently "to avoid the prospect of a constitutional infirmity." Id. The Supreme Court and the D.C. Circuit have also recognized the separation-of-powers concerns inherent in piercing the confidentiality afforded the President and Vice President by the Constitution. For example, in vacating the D.C. Circuit's initial refusal to issue a writ of mandamus against an order requiring the Vice President to respond to discovery, the Supreme Court observed that "separation-of-powers concerns" allow the Executive to maintain the confidentiality of its communications: "[S]pecial considerations control," said the Court, "when the Executive Branch's interests in maintaining the autonomy of its office and safeguarding the confidentiality of its communications are implicated." Cheney v. U.S. Dist. Ct. for Dist. of Columbia, 542 U.S. 367, 383, 385 (2004). Addressing the same case after remand, the Court of Appeals, en banc, acknowledged that "separation-of-powers concerns" mandate permitting the President, "[i]n making decisions on personnel and policy, and in formulating legislative proposals . . . to seek confidential information from many sources, both inside the government and outside." In re Cheney, 406 F.3d 723, 728 (D.C. Cir. 2005); see Nixon v. Adm'r of Gen. Servs., 433 U.S. 425, 448-49 (1977) ("Unless he can give his advisers some assurance of confidentiality, a President could not expect to receive the full and frank submissions of facts and opinions upon which effective discharge of his duties depends."). The President's "unique position in the constitutional scheme" even shields the President from "vexatious litigation that might distract [him] from the energetic performance of [his] constitutional duties." See Cheney, 542 U.S. at 382.

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The Court of Appeals has held that the courts are obligated to apply these considerations in FOIA cases. The court has observed, for example, that "[f]ailure to exempt presidential staff from the FOIA would raise a constitutional issue of separation of powers." Ryan v. Department of Justice, 617 F.2d 781, 788 n.19 (D.C. Cir. 1980). Similarly, in reviewing the interrelationship between FOIA and the Presidential Records Act, the court has stated that "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 assiduously 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." Armstrong v. Bush, 924 F.2d 282, 290 (D.C. Cir. 1991). These cases demonstrate that this Court cannot interpret FOIA to apply to these visitor records: Subjecting such records to immediate disclosure under FOIA would strike at the heart of the constitutional concerns expressed by Congress and the courts. Immediate disclosure of the identity of the President's and Vice President's visitors could reveal the nature of initiatives under consideration or suggest how the President or Vice President may decide pending issues, before the decisions are made. See O'Donnell Decl. ¶¶ 8, 22 (describing harm to Vice Presidential deliberations). Such interference in ongoing decisionmaking processes would impede the ability of the President and Vice President to receive "full and frank submissions of facts and opinions" and to "seek confidential information from many sources, both inside the government and outside." See Nixon v. Adm'r of Gen. Servs., 433 U.S. at 448-49; In re Cheney, 406 F.3d at 728. Disclosure of these records revealing who visited the White House Complex or the VPR, and when, would undermine the congressionally acknowledged "expectation of confidentiality of 26

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executive communications." See H.R. Rep. No. 95-1487, at 8, reprinted in 1978 U.S.C.C.A.N. at 5739. These constitutional concerns apply with particular force here, given that the subject records exist only because of the Secret Service's statutorily mandated protection of the President, the Vice President, and the White House Complex and VPR. Congress has chosen to exclude records of the President, the Vice President, and their respective staffs from the reach of FOIA. But if plaintiff were to prevail, any FOIA requestor would be able to circumvent that choice simply because the President and Vice President are required to accept the Secret Service's protection. Imposing the FOIA regime upon records of visitors to the White House and VPR would leave the President and Vice President with no apparent practicable means to prevent records of their official and personal visitors from becoming a matter of agency record. This case is not, therefore, one in which the President and Vice President have a "choice between using [their] staff[s] to perform a function and using an agency to perform it." See Ryan, 617 F.2d at 789. As the Assistant to the Vice President and Deputy Chief of Staff states: Short of refusing to cooperate with the Secret Service and exposing the Vice President (and with respect to the White House Complex, the President) to unnecessary risks (which the OVP would not do), the Office of the Vice President has taken all reasonable measures to protect and preserve the confidentiality of the information provided to the Secret Service and documents generated from that information while respecting the Secret Service’s need to protect the President and Vice President. See O'Donnell Decl. ¶ 21. This is a case where Congress has directed the Secret Service protection that is facilitated by the records at issue. Given the importance of this protective function and the manner in which the President and Vice President have chosen to facilitate it, "it is not for a court to burden that practice when not under statutory compulsion." Judicial Watch, 27

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Inc. v. Department of Energy, 412 F.3d 125, 132 (D.C. Cir. 2005) (holding that OVP practice of accepting detailees and assignees from agencies did not convert documents created by those employees into agency records). These statutes should not — and need not — be read to require that anomalous result. II. THE DEFENDANT CAN NEITHER CONFIRM NOR DENY THE EXISTENCE OF RECORDS RESPONSIVE TO PLAINTIFF’S FOIA REQUEST. Even if this court determines — as it did in CREW 2 — that visitor records are “agency records” subject to FOIA, plaintiff still cannot prevail. The Secret Service can neither confirm nor deny the existence of specific records reflecting visits to the White House or the Vice Presidential Residence — regardless of whether they are “agency records” or not — because to do so would reveal the very information plaintiff seeks. Accordingly, identification of any such records — much less their production if any exist — is precluded by FOIA Exemption 5 and the presidential communications privilege, thus entitling defendant to summary judgment. A. The Presidential Communications Privilege Protects the Identity of Persons from Whom the President and His Advisers Seek Advice or Information.

FOIA Exemption 5 permits withholding "inter-agency or intra-agency memorandums or letters which would not be available by law to a party . . . in litigation with the agency." 5 U.S.C. § 552(b)(5). This language protects against disclosure of information that is "normally privileged in the civil discovery context." NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975). One of the privileges encompassed by Exemption 5 is the presidential communications privilege. See Judicial Watch, Inc. v. Department of Justice, 365 F.3d 1108, 1113 (D.C. Cir. 2004).

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This privilege arises out of the need for confidentiality in conducting presidential business: "A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately." United States v. Nixon, 418 U.S. 683, 708 (1974). Such confidentiality is essential to the quality of presidential decisonmaking; the privilege is premised on "the need for confidentiality to ensure that presidential decisionmaking is of the highest caliber, informed by honest advice and full knowledge." In re Sealed Case, 121 F.3d 729, 750 (D.C. Cir. 1997); see Judicial Watch, Inc., 365 F.3d at 1115 (noting that President must enjoy confidentiality "in order to effectively and faithfully carry out his Article II duties"). In short, the presidential communications privilege is "fundamental to the operation of Government." Nixon, 418 U.S. at 708. This privilege also arises out of constitutional principles. It is based on the President's "singularly unique role" in the constitutional scheme of government, and is "inextricably rooted in the separation of powers under the Constitution." Id. at 708, 715. As the Court of Appeals has observed: The ability to discuss matters confidentially is surely an important condition to the exercise of executive power. Without it, the President's performance of any of his duties — textually explicit or implicit in Article II's grant of executive power — would be made more difficult. In designing the Constitution, the Framers vested the executive power in one man for the very reason that he might maintain secrecy in executive operations. Association of Amer. Physicians & Surgeons, Inc. v. Clinton, 997 F.2d 898, 909 (D.C. Cir. 1993) (hereinafter “AAPS”). The court then quoted one of the Federalist Papers, to the effect that the President must be able to act with "[d]ecision, activity, secrecy, and dispatch," and continued:

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"The Framers thus understood that secrecy was related to the executive's ability to decide and to act quickly — quality lacking in the government established by the Articles of Confederation. If a President cannot deliberate in confidence, it is hard to imagine how he can decide and act quickly." Id. (quoting The Federalist No. 70, at 472 (J. Cooke ed., 1961)). Indeed — notably for this case — the D.C. Circuit in AAPS explicitly acknowledged that these constitutional concerns apply even when the President seeks advice from persons outside the government: "A statute interfering with a President's ability to seek advice directly from private citizens as a group, intermixed, or not, with government officials . . . raises Article II concerns.” Id. at 910. The scope of the presidential communications privilege was addressed in In re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997). There, a grand jury, at the request of an Independent Counsel, had subpoenaed documents underlying a report of the White House Counsel on its investigation of former Secretary of Agriculture Michael Espy, including documents reflecting "any conversations between Espy or his counsel and White House employees." Id. at 735. The White House Counsel invoked both the presidential communications privilege and the deliberative process privilege to justify withholding certain responsive documents. Id. at 735 & n.2. The Independent Counsel, in response, argued that the presidential communications privilege did not apply "because none of the documents was sent to or received from the President," and that the deliberative process privilege was outweighed by "the need to obtain evidence that may shed light on governmental misconduct." Id. at 736. The Court of Appeals upheld the applicability of the presidential communications privilege, holding that it "extends to communications . . . solicited and received by those members of an immediate White House advisor's staff who have broad and significant responsibility 30

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for investigating and formulating the advice to be given to the President." Id. at 757.22 The deliberative process privilege, the court noted, would be "inadequate to ensure that presidential advisers provide knowledgeable and candid advice, primarily because [it] does not extend to purely factual material." Id. at 750. Such material must be protected by the presidential communications privilege because "[k]nowledge of factual information gathered by presidential advisers can quickly reveal the nature and substance of the issues before the President." Id.; see AAPS, 997 F.2d at 910 ("If you know what information people seek, you can usually determine why they seek it."). Moreover, the court continued, the presidential communications privilege necessarily protects, not only the information that the President and his advisers seek or receive in the course of making decisions, but also the sources of that information, such as the persons interviewed by White House Counsel in the course of his investigation. See In re Sealed Case, 121 F.3d at 750-52, 760. The court pointed out that "the most valuable advisers will investigate the factual context of a problem in detail, obtain input from all others with significant expertise in the area, and perform detailed analyses of several different policy options before coming to closure on a recommendation for the Chief Executive." Id. at 750 (emphasis added). Maintaining the confidentiality of a presidential adviser's sources of information is critical to the decisionmaking
22

The Vice President is obviously one of the President's most senior advisers. Like other senior presidential advisers, the Vice President and members of his staff may solicit and receive advice or information in the course of determining what advice to give the President. See O'Donnell Decl. ¶¶ 5, 8, 22. Moreover, it is not uncommon for the Vice President to act, at times, on behalf of the President. The Vice President and his staff, like the President and his staff, are not "agencies" for FOIA purposes, and the Presidential Records Act provides that "Vice-Presidential records" are subject to that statute "in the same manner as Presidential records." See Judicial Watch, Inc. v. National Energy Policy Dev. Group, 219 F. Supp. 2d 20, 55 (D.D.C. 2002); 44 U.S.C.A. § 2207. 31

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process, the court added, because, "[w]ithout protection for her sources of information, an adviser may be tempted to forego obtaining comprehensive briefings or initiating deep and intense probing . . . ." Id. (emphasis added). Thus, the presidential communications privilege must "provide sufficient elbow room for advisers to obtain information from all knowledgeable sources." Id. at 752. Accordingly, the presidential communications privilege applies to the identity of persons who provide information to the President and his immediate advisers (including the Vice President), and thus to records identifying those persons, such as the visitor records potentially involved here. These records would reveal who has visited the White House and the Vice President's Residence, including persons who have come to meet and confer with the President and his immediate advisers. See Second Declaration of Philip C. Droege ¶ 4 (“Second Droege Decl.”) (Attached as Dkt. No. 64-2 to Defendants’ Motion for Summary Judgment on Claims One and Two in CREW 2 (Dkt. No. 64) (10/30/2008) and attached hereto as Dkt. No. 9-8); O'Donnell Decl. ¶¶ 5, 8, 22. The records would, therefore, reveal the "sources of information" consulted by the Executive in "obtain[ing] input" and "shaping policies and making decisions." See In re Sealed Case, 121 F.3d at 750; Nixon, 418 U.S. at 708. Disclosing these sources would undermine the confidentiality needed "to ensure that presidential decisionmaking is of the highest caliber"; it would discourage presidential advisers from obtaining "comprehensive" information in developing policy proposals. See In re Sealed Case, 121 F.3d at 750. Disclosing the identities of persons from whom the President and his advisers are seeking advice and information would disclose "what information [they] seek," and would enable one to "determine why

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they [are] seek[ing] it," see AAPS, 997 F.2d at 910 — that is, it would "reveal the nature and substance of the issues before the President." See In re Sealed Case, 121 F.3d at 750. Such compelled disclosure would have serious constitutional implications, undermining the confidentiality that is "an important condition to the exercise of executive power" under the constitutional separation of powers. See AAPS, 997 F.2d at 909. For example, disclosure of the names of judges who have visited the White House during a vacancy on the Supreme Court might reveal whom the President is considering for the vacancy. Similarly, disclosure of the names of economists who have visited the White House or the VPR could reveal the types of economic initiatives under consideration. And disclosure of the names of security experts who have visited the White House or VPR might reveal the kinds of anti-terrorism measures under consideration, by virtue, for example, of a visitor's known area or areas of expertise. Accordingly, the presidential communications privilege applies to records of visitors to the White House Complex and the Vice President's Residence, the searching of which plaintiff requested here. B. Confirming or Denying the Existence of Records Regarding a Particular Visitor Would Disclose Information Protected by the Presidential Communications Privilege.

In several cases, the D.C. Circuit has held that merely disclosing the existence or the nonexistence of certain government records can reveal information protected by one of the statutory exemptions in the Freedom of Information Act. Thus, "an agency may refuse to confirm or deny the existence of records where to answer the FOIA inquiry would cause harm cognizable under an FOIA exception." Gardels v. CIA, 689 F.2d 1100, 1103 (D.C. Cir. 1982). This principle was most famously established in a series of decisions arising out of the CIA's involvement with an 33

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oceangoing vessel named the Glomar Explorer. See Phillipi v. CIA, 655 F.2d 1325 (D.C. Cir. 1981); Phillipi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976); see also Military Audit Project v. Casey, 656 F.2d 724 (D.C. Cir. 1981). Hence, a federal agency's statement that it can neither confirm nor deny the existence of records responsive to a FOIA request is known as a "Glomar response." "[A] Glomar response is appropriate where an acknowledgment that records exist would provide the requester with the very information the exemption is designed to protect," Nation Magazine, Washington Bureau v. Customs Serv., 71 F.3d 885, 894 n.8 (D.C. Cir. 1995) — that is, where "the fact of the existence or nonexistence of agency records falls within a FOIA exemption." Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007). The harm to be protected by such a response arises from the fact that knowledge as to whether an agency does or does not possess records responsive to a series of FOIA requests may permit another entity to develop information protected by an exemption. In other words, an "accumulation" of such knowledge, derived from an agency's responses to multiple requests "over time," see People for the Am. Way Found. v. NSA, 462 F. Supp. 2d 21, 32 (D.D.C. 2006), can permit an entity to "piec[e] together," from multiple "bits of information" — like the pieces of a "jigsaw puzzle" — information that is protected by a FOIA exemption. See Gardels, 689 F.2d at 1106 (quoting Halperin v. CIA, 629 F.2d 144, 150 (D.C. Cir. 1980)). For example, if an agency "were to admit publicly in response to an information request that no information about Persons X, Y, or Z exists, but in response to a separate information request about Person T state only that no response could be made, this would give rise to the inference" that records exist regarding Person T. See People for the Am. Way Found., 462 F. Supp. 2d at 29-30. Under these circumstances, each piece of information —

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that is, an agency's response to one FOIA request — may not be "of obvious importance in itself." See Gardels, 689 F.2d at 1106 (quoting Halperin, 629 F.2d at 150). The defendant agency's burden in justifying a Glomar response is to show a "logical" and "plausible" connection between confirmation or denial of the existence of records and disclosure of information protected by a FOIA exemption. See Wolf, 473 F.3d at 236-37; see also Gardels, 689 F.2d at 1105. The agency need not "prove conclusively" that, if it responded on the merits of a particular FOIA request, protected information "would in fact be compromised or jeopardized." Gardels, id. at 1106. When a Glomar response is properly made, no index of withheld records is required or appropriate, because listing any such records would obviously confirm their existence. See Wolf, 473 F.3d at 374 n.4; People for the Am. Way Found., 462 F. Supp. 2d at 30 n.5 ("Thus, a Vaughn index is not required here, where it could cause the very harm that section 6 [of the National Security Agency Act of 1959, 50 U.S.C. § 402 note] was intended to prevent.") (citation and internal quotation marks omitted). This principle has been applied in a number of contexts. For example, in Gardels, the Court of Appeals held that the CIA properly refused to confirm or deny the existence of records regarding any CIA contacts with persons at the University of California, because knowledge of any such contacts (or of the absence of such contacts) would permit foreign intelligence agencies to determine, over time, where the agency was focusing its efforts, thus disclosing information covered by FOIA Exemptions 1 and 3. See 689 F.2d at 1104-06. Similarly, in Department of Justice v. Reporters Committee for Freedom of the Press, the Supreme Court approved the FBI's response, under Exemption 7(C), that it could neither confirm nor deny the existence of a "rap sheet" on a particular individual — although the Court did not cite Phillipi or use the term 35

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"Glomar response." 489 U.S. 749, 757 (1989). And in Nation Magazine, the D.C. Circuit held that a Glomar response may be appropriate, depending on the circumstances of the case, in relation to law enforcement investigatory files covered by Exemption 7(C). See 71 F.3d at 887; see also Nation Magazine v. U.S. Customs Serv., 937 F. Supp. 39, 44-45 (D.D.C. 1996) (on remand, approving more limited Glomar response under Exemption 7(C)). Under this precedent, a Glomar response is more than appropriate in this case involving records of visitors to the White House Complex and the Vice President's Residence. The visits reflected in those records include visits to the President and to his immediate advisers (including the Vice President) who have broad and significant responsibility for investigating and formulating advice. See Second Droege Decl. ¶ 4; O'Donnell Decl. ¶¶ 5, 8, 22. This would include substantive meetings held in the course of developing policy and making Executive decisions. Stating whether visit records exist regarding any particular person would necessarily reveal whether such person has or has not entered the White House or the VPR. Responding to the merits of such requests — and invoking the presidential communications privilege only when warranted in relation to any particular visit — would also reveal from whom the President and his closest advisers have and have not sought information in the course of making decisions. See Second Droege Decl. ¶ 4; O'Donnell Decl. ¶¶ 5, 8, 22 ("Systematic public release of the information regarding when and with whom the Vice President and Vice Presidential personnel conduct meetings would impinge on the ability of the OVP to gather information in confidence and perform its essential functions, including assisting the Vice President in his critical roles of advising and assisting the President."). For example, if the Secret Service were to respond to one FOIA request stating that it has records of visits by Mr. X but that they are protected by the 36

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presidential communications privilege (because he met with a chief presidential adviser), then, in response to another FOIA request, state that it has no records of any visits by Ms. Y (or that it has such records and that they are not protected by the privilege) — those responses, taken together, would reveal with whom the President and his advisers have and have not conferred. Thus, through a series of FOIA requests, one or more requestors could "accumulate" enough information, "over time," to "piece together" a complete picture of presidential consultation with persons from outside the White House. See Gardels, 689 F.2d at 1104; People for the Amer. Way Found., 462 F. Supp. 2d at 32. * * * As explained in Part II.A above, the identity of persons with whom the President and his advisers (including the Vice President) seek advice and information is protected by the presidential communications privilege. As shown in Part II.B, responding on the merits of a FOIA request for White House and VPR visitor records — such as the request in this case — would reveal information protected by that privilege. The connection is both "logical" and more than "plausible." See Wolf, 473 F.3d at 236-37; see also Gardels, 689 F.2d at 1105. CONCLUSION For the foregoing reasons, this Court should grant defendant’s motion for summary judgment.

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Dated: November 24, 2008 Respectfully submitted, GREGORY G. KATSAS Assistant Attorney General JEFFREY A. TAYLOR United States Attorney JOHN R. TYLER (DC Bar 297713) Assistant Branch Director

/s/ Brad P. Rosenberg Brad P. Rosenberg (DC Bar 467513) Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch Tel: (202) 514-3374 Fax: (202) 616-8460 brad.rosenberg@usdoj.gov Mailing Address: Post Office Box 883 Washington, D.C. 20044 Courier Address: 20 Massachusetts Ave., N.W. Washington, D.C. 20001 COUNSEL FOR DEFENDANT

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, Plaintiff, v. U.S. DEPARTMENT OF HOMELAND SECURITY, Defendant.

) ) ) ) ) ) ) ) ) ) ) ) )

CIVIL ACTION NO. 1:08-cv-01535-RCL

DEFENDANT’S STATEMENT OF MATERIAL FACTS AS TO WHICH THERE IS NO GENUINE ISSUE Pursuant to Rule 56 of the Federal Rules of Civil Procedure and Local Rule 7(h), the defendant, by its undersigned counsel, submits the following statement of material facts as to which there is no genuine issue, in relation to its motion for summary judgment: I. Presidential and Vice Presidential Records A. 1. The White House Complex The United States Secret Service provides security for the White House Complex,

and monitors and controls access to the Complex. See Third Declaration of Paul S. Morrissey, Deputy Assistant Director, United States Secret Service ¶¶ 3, 5, 7 (May 23, 2007) (hereinafter Third Morrissey Decl.) (Attached as Dkt. No. 29-2 to Defendants’ Motion for Summary Judgment in CREW 2 (Dkt. No. 29) and attached hereto as Dkt. No. 9-2).

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2.

There are two interrelated electronic systems — collectively termed the White

House Access Control System ("WHACS") — for controlling and monitoring access to the White House Complex: the Worker and Visitor Entrance System ("WAVES") and the Access Control Records System ("ACR"). Id. ¶ 8. Information on visitors to the White House Complex that White House pass holders provide to the United States Secret Service is reflected in those WAVES and ACR records regarding visitors, and in paper records regarding visitors, such as requests for access, large event lists, facsimiles, and printed e-mails. See Second Declaration of Philip C. Droege ¶ 2, 3 (hereinafter Second Droege Decl.) (Attached as Dkt. No. 64-2 to Defendants’ Motion for Summary Judgment on Claims One and Two in CREW 2 (Dkt. No. 64) (10/30/2008) and attached hereto as Dkt. No. 9-8). 3. Information on visitors to the White House Complex that White House pass

holders provide to the Secret Service includes information on visitors who are coming to the Complex to meet and confer with the President and/or his immediate advisors, such as the Vice President, the National Security Advisor, or the Chief of Staff. See id. ¶ 4. 4. Some of the records referred to in paragraph 2 above reflect meetings that the

President and/or his immediate advisers have held with visitors who came to the White House Complex to meet and confer with them. See id. 5. The process for entry of a proposed visitor into the White House Complex begins

when an authorized White House pass holder (such as a member of the President's or Vice President's staff) advises the Secret Service that the entrance of a particular individual, or group of individuals, is anticipated for a particular date. Third Morrissey Decl. ¶ 9.

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6.

Authorized White House pass holders usually provide visitor information to the

Secret Service electronically, by entering the information into a computer terminal connected to the White House Appointment Request Server, which automatically transmits it to the Secret Service's WAVES Center, where a Secret Service employee verifies that the requestor is authorized to make appointments for the specific location requested and fills in any additional information that may be necessary (such as for a background check), then transmits the information electronically to the WHACS server. Id. ¶ 11; Declaration of Philip C. Droege ¶ 6 (May 23, 2007) (hereinafter Droege Decl.) (Attached as Dkt. No. 29-3 to Defendants’ Motion for Summary Judgment in CREW 2 (Dkt. No. 29) and attached hereto as Dkt. No. 9-6); Declaration of Claire M. O'Donnell, Assistant to the Vice President and Deputy Chief of Staff, Office of the Vice President ¶ 12 (May 23, 2007) (hereinafter O'Donnell Decl.) (Attached as Dkt. No. 29-4 to Defendants’ Motion for Summary Judgment in CREW 2 (Dkt. No. 29) and attached hereto as Dkt. No. 9-7). 7. WAVES records regarding visitors to the White House Complex consist primarily

of information that an authorized White House pass holder has provided to the Secret Service. See Third Morrissey Decl. ¶ 11. 8. Presidential and Vice Presidential personnel provide visitor information to the

Secret Service on a confidential and temporary basis, solely to enable the Secret Service to perform background checks to determine whether, and under what conditions, to provide for the visitor's temporary admittance to the Complex and to allow the Secret Service to verify the visitor's admissibility at the time of the visit. See Droege Decl. ¶ 5; O'Donnell Decl. ¶¶ 11, 21.

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The Secret Service uses the information so provided for these purposes. See Third Morrissey Decl. ¶ 12. 9. Upon arrival, a visitor to the White House Complex is generally issued an

appropriate pass. ACR records are generated when a visitor — or a Secret Service officer on a visitor's behalf — swipes the visitor's pass over one of the electronic pass readers located at entrances to and exits from the Complex. Id. ¶ 14. 10. The understanding among the White House, the Office of the Vice President

("OVP"), and the Secret Service is that WAVES and ACR records and the visitor information contained in them are subject to the Presidential Records Act and remain under the legal control of the White House and OVP. See O'Donnell Decl. ¶¶ 9, 13, 21; Droege Decl. ¶¶ 8, 9. 11. 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, and the Secret Service recognizes that such records are under the exclusive legal control of the President and Vice President. See Third Morrissey Decl. ¶ 18. 12. Since at least 2001, it has been the practice of the Secret Service to transfer

newly-generated WAVES records on CD-ROM to the White House Office of Records Management ("WHORM") every 30 to 60 days. Id.; Droege Decl. ¶ 9; O'Donnell Decl. ¶ 14. The WHORM preserves these records in accordance with the Presidential Records Act. See O'Donnell Decl. ¶ 14. 13. In May 2006, the Secret Service Records Management Program entered into a

Memorandum of Understanding ("MOU") with the White House Office of Records Management that confirmed the legal status of WAVES and ACR records and of WHORM's management and 4

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custody of them under the Presidential Records Act. Third Morrissey Decl. ¶ 21 & Ex. B. The MOU provides, among other things, that the White House, but not the Secret Service, has a continuing interest in WAVES and ACR records, and that the White House continues to use the information contained in such records for various historical and informational purposes. Id. The MOU reflects that the White House "at all times asserts, and the Secret Service disclaims, all legal control over any and all [WAVES and ACR] Records." Id. The Secret Service acknowledges in the MOU that its temporary retention of such records after an individual's visit to the White House Complex is solely for the purpose of facilitating an orderly and efficient transfer of the records to the WHORM. Id. 14. At least as early as 2001 (at the end of the Clinton Administration), and upon

revisiting the issue in 2004, the Secret Service and the White House recognized and agreed that ACR records should be treated in a manner generally consistent with the treatment of WAVES records. See Third Morrissey Decl. ¶ 22; Droege Decl. ¶ 10. In May 2006, the Secret Service transferred to the WHORM the ACR records covering the period from 12:00 p.m. on January 20, 2001, to April 30, 2006, and has continued, since that time, to transfer ACR records to the WHORM. See Third Morrissey Decl. ¶ 22; see also Droege Decl. ¶ 14. 15. The Secret Service also transfers to the WHORM, typically every 30 to 60 days,

certain paper records regarding visitors to the White House Complex. These records include requests for access to the Complex, such as facsimiles and e-mails, as well as large event and other lists and checklists relating to large group appointments. Once a visitor's visit to the Complex is complete, the Secret Service has no continuing interest in these materials sufficient

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to justify their preservation or retention. See Third Morrissey Decl. ¶ 24; see also Second Droege Decl. ¶¶ 2-3. B. 16. The Vice President's Residence The Secret Service provides security for the Vice President's Residence ("VPR"),

and monitors and controls access to the VPR. Id. ¶¶ 7, 32. 17. The Secret Service receives requests for entry to the VPR from the Vice Presi-

dent's staff and others to screen individuals for entry. Id. ¶¶ 32, 34; O'Donnell Decl. ¶ 17. The Secret Service conducts background checks on individuals for whom there has been a request for admission, and, if there is no information of protective interest, the name is placed on either a permanent access list or a daily access list. See Third Morrissey Decl. ¶ 32. An electronic database is used to generate the permanent and daily access lists. Id. ¶ 34. The Secret Service also uses event lists for controlling access to the VPR during a particular event. Id. ¶ 41. The names of individuals who enter on a particular day are handwritten on an entry log by the officer working at the gate where the individual arrives. Id. ¶ 33; see O'Donnell Decl. ¶ 17. 18. OVP provides information on VPR visitors to the Secret Service with the under-

standing that the information and any materials derived from it (except those which relate to Secret Service's ongoing protective function, such as the results of background checks) remain in the exclusive ownership, custody, and control of the OVP. See O'Donnell Decl. ¶ 18. 19. Once a visitor's visit to the Vice President's Residence is complete, the Secret

Service has no continuing interest sufficient to justify preservation or retention of records of such visitors — other than materials containing information of protective interest to the Secret

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Service, and the Secret Service recognizes that such records (with the exception noted) are under the exclusive legal control of the Vice President. See Third Morrissey Decl. ¶ 37. 20. Since 2001, the Secret Service's consistent practice has been to transfer to the

OVP, generally on a monthly basis, all handwritten post entry logs from the VPR. Id. ¶ 37; O'Donnell Decl. ¶ 18. 21. The Secret Service has transferred to the OVP all existing permanent access lists

and daily access lists from the VPR, which date back to July 2006 (along with some earlier, noncomprehensive lists, back to August 2005, that had not been discarded), and will continue to transfer permanent and daily access lists on a monthly basis in connection with the transfer of post entry logs. The Secret Service has also transferred to the OVP an electronic copy of the access list database with data retained from on or about June 27, 2006 (the database had been updated and purged periodically before that date), and will continue to transfer such electronic copies on a monthly basis. See Third Morrissey Decl. ¶ 39. 22. The Secret Service has transferred to the OVP all existing electronic and paper

requests for access from the VPR, and will continue to transfer such records on a monthly basis in connection with the transfer of post entry logs. Id. ¶ 40; see also Declaration of Robert P. Caldwell, Deputy Assistant Director, United States Secret Service ¶ 4 (Nov. 24, 2008) (hereinafter Caldwell Decl.) (Attached as Dkt. No. 72-1 to Notice of Filing in CREW 2 (Dkt. No. 72) and attached hereto as Dkt. No. 9-5). 23. The Secret Service has transferred to the OVP all existing event lists from the

VPR, and will continue to transfer event lists on a monthly basis in connection with the transfer of post entry logs. Third Morrissey Decl. ¶ 41; Caldwell Decl. ¶ 4. 7

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24.

The OVP has a continuing interest in the records of visitors to the VPR, in

recognition of their contemporary and historic value. See O'Donnell Decl. ¶ 22. The OVP preserves all entry and access control records periodically returned by the Secret Service to OVP under the Presidential Records Act. Third Morrissey Decl. ¶ 19. 25. The handling of entry records relating to the Vice President's Residence was

addressed in a September 13, 2006, letter from Shannen W. Coffin, Counsel to the Vice President, to Donald Personette, Chief Counsel to the Secret Service. See Third Morrissey Decl. ¶ 42 & Ex. D; O'Donnell Decl. ¶ 20 & Ex. A. 26. The duties of personnel of OVP include meeting at the Vice President's Residence

with individuals from outside OVP to gather information and advice for the purpose of assisting the Vice President in formulating advice for the President. See O'Donnell Decl. ¶ 5. 27. Disclosure of records regarding visitors to the Vice President’s Residence would

disclose information regarding the identities of persons from outside OVP with whom the Vice President and his closest advisers have met to gather information and advice. See id. ¶¶ 8, 22. C. 28. Miscellaneous Records When an authorized White House pass holder desires permission for a visitor to

park at the Complex, the pass holder provides information regarding the vehicle and the driver to a component of the White House Office, which decides whether and where the visitor will be allowed to park. If the request for parking is approved, the White House Office provides the necessary information to the Secret Service, which monitors and clears the entrance of vehicles for parking. This information includes the name of the driver, information on the vehicle, the name(s) of any expected passenger(s), and the date and expected times of arrival and departure of 8

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the vehicle, as well as other information. See Second Declaration of Robert P. Caldwell, Deputy Assistant Director, United States Secret Service ¶ 3 (attached hereto as Dkt. No. 9-9). 29. The White House Office usually sends parking information to the Secret Service

by e-mail and by facsimile. The information is sometimes contained on a form that the pass holder or White House Office fills out. The Secret Service does not modify or add to the parking information provided by the White House Office, does not use that information for any purpose other than admitting and monitoring vehicles, and does not create its own records specifically regarding visitors who are allowed to park at the Complex. Id. ¶ 4. 30. Each day, the Secret Service’s Joint Operations Center prepares a “United States

Secret Service White House Complex Daily Briefing” sheet (“Briefing Sheet”). A Briefing Sheet is a Secret Service form document (SSF 4049) used to facilitate the protection of the President, the Vice President, and other protectees (such as the first family and the National Security Advisor). It sets forth, among other things, the principal Secret Service personnel who will be on duty during the day, the expected locations throughout the day of each protectee, certain events on the schedule of each protectee, the status of gates and alarms, and any overnight guests in the White House and the bedrooms where they are staying. Id. ¶ 5. 31. The schedule information on the Briefing Sheets is selected from the daily

schedules that various White House components provide to the Secret Service. Id. ¶ 6. 32. The Secret Service has, within its possession, some of the schedules of protectees.

The Secret Service received these schedules from the White House. Id. ¶ 7.

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33.

Prior to a proposed visitor being admitted to the White House Complex, the

Secret Service runs a background check on the individual to determine whether, and under what conditions, to provide for the visitor’s temporary admittance to the Complex. Id. ¶ 8. 34. A Secret Service computer system automatically generates data on a computer

monitor revealing information relating to the background check. If there is information in that background check that is of interest to the Secret Service (such as a “hit”), a Secret Service employee will typically print for temporary use a Name Check Report that contains both the proposed appointment information for the individual and the results of the background check. In some circumstances, the Name Check Report will be filed along with a SSF 1888. Id. ¶ 9. 35. The Secret Service receives e-mail access requests pertaining to access to the

White House Complex and/or the VPR. Id. ¶ 10; Third Morrissey Decl. ¶¶ 24, 34. 36. The Visitor Multiple Entry Report identifies visitors who appear in WAVES for a

number of visits to the White House Complex during a single month. All data in the Visitor Multiple Entry Reports are extracted from WAVES; no data appear in these reports that are not contained in WAVES. Fourth Morrissey Decl. ¶ 3. 37. The Visitor Multiple Entry Report for each month is created during the first week

of the following month, and is transmitted on the same day by e-mail to Presidential personnel at the White House Complex. The Secret Service does not use these reports for any purpose. Id. ¶ 4.

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Dated: November 24, 2008 Respectfully submitted, GREGORY G. KATSAS Assistant Attorney General JEFFREY A. TAYLOR United States Attorney JOHN R. TYLER (DC Bar 297713) Assistant Branch Director

/s/ Brad P. Rosenberg Brad P. Rosenberg (DC Bar 467513) Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch Tel: (202) 514-3374 Fax: (202) 616-8460 brad.rosenberg@usdoj.gov Mailing Address: Post Office Box 883 Washington, D.C. 20044 Courier Address: 20 Massachusetts Ave., N.W. Washington, D.C. 20001 COUNSEL FOR DEFENDANT

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Exhibit A

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Exhibit B

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Exhibit D

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Exhibit A

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, Plaintiff, v. U.S. DEPARTMENT OF HOMELAND SECURITY, Defendant.

) ) ) ) ) ) ) ) ) ) ) ) )

CIVIL ACTION NO. 1:08-cv-01535-RCL

ORDER This matter comes before the Court on Defendant’s Motion for Summary Judgment. Upon consideration of Defendant’s motion and of all materials submitted in relation thereto, it is hereby ORDERED that Defendant’s motion is GRANTED; and it is further ORDERED that summary judgment be entered for the Defendant and that this action be, and hereby is, DISMISSED WITH PREJUDICE. IT IS SO ORDERED.

Date:_________________________

______________________________ Royce C. Lamberth United States District Judge