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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 No. 08-1535 (RCL)

PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND IN SUPPORT OF PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT INTRODUCTION This lawsuit concerns a Freedom of Information Act (“FOIA”) request for White House visitor records of Stephen Payne, an individual widely and publicly associated with the Bush administration who most recently was captured on film attempting to sell access to top White House officials in exchange for contributions to the Bush presidential library. Resisting any acknowledgment of a connection to Mr. Payne, the government attempts to wall off all White House visitors from public disclosure by arguing that the requested records -- created by the Secret Service in performance of its statutorily mandated protective function -- are nevertheless presidential, not agency records, and therefore not subject to public access under the FOIA. Alternatively, defendant U.S. Department of Homeland Security (“DHS”) argues the reach of the presidential communications privilege is so long that it protects even the mere possibility that someone visited the White House for the purpose of providing confidential advice to the president, even though White House visitor records do not contain this kind of information.

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Nearly one year ago this Court rejected the argument that White House visitor records are not agency records and the government has offered no reason to revisit that conclusion. Indeed, the government’s brief on this issue is nearly identical to that filed in CREW v. Dep’t of Homeland Sec., No. 06-1912 (RCL) (“DHS II”). The government’s reliance on a “Glomar” response to avoid any accountability, unmoored to any legal precedent or factual predicate, represents a blatant attempt to circumvent both the FOIA and the judicially-imposed parameters of the presidential communications privilege. The government’s attempts to run out the clock without having to disclose any potentially embarrassing information have deprived the public of timely access to records this Court has properly found are subject to the FOIA. Accordingly, the Court should deny defendant’s motion for summary judgment and grant plaintiff’s cross-motion for summary judgment. FACTUAL BACKGROUND Records Of Visits To The White House Complex As part of its statutorily mandated function to protect the president, vice president and their immediate families, the Secret Service monitors visitors to both the White House Complex1 and the Vice President’s Residence (“VPR”). 18 U.S.C. §§ 3056, 3056A (2007 Suppl.); DHS II, 527 F.Supp.2d 76, 78 (D.D.C. 2007). This process of monitoring White House visitors generates records potentially responsive to plaintiff’s FOIA request: the Worker and Visitor Entrance System (“WAVES”) and the Access Control Records System (“ACR”). DHS II, 527 F.Supp.2d at 79. WAVES records include information White House pass holders provide in advance to the

References to the White House Complex include the White House, the Eisenhower Executive Office Building (“EEOB”), the grounds on both the White House and the EEOB, and the New Executive Office Building (“NEOB”). 2

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Secret Service -- the proposed visitor’s identifying information (name, date of birth, social security number), time and location of the scheduled appointment, name of the person submitting the request, name of the recipient of the visitor, date of the request, and type of visitor expected (e.g., press, temporary worker) -- as well as any additional information the Secret Service adds as a result of a background check. Id. at 80. ACR records are created when a visitor swipes his or her pass upon entering and exiting the Complex and include the visitor’s name and badge number, the time and date of the visitor’s entry and exit, and the specific post that recorded the swipe. Id. This Court described an ACR record as “in essence, a time-line of the pass holder’s entry and exit, showing the location of each.” Id. at 89. Of note, ACR records do not include the identity of the person within the White House Complex that the visitor was visiting or who requested that the visitor be cleared for entry. 527 F.Supp.2d at 80. The WAVES and ACR records both serve the primary purpose of allowing the Secret Service to conduct background investigations of prospective visitors and verifying whether and under what conditions a proposed visitor may enter the Complex. Id. at 95. The Secret Service creates two other categories of records relating to White House Complex visits, Secret Service Form 1888s (“SSF 1888") and so-called “additional security-related records.” Id. at 81. Both are created as part of the background investigation process for certain proposed visitors. Id. Documents generated by visits to the White House Complex relate to visits made for a wide variety of purposes unrelated to any policy matters, such as “visits by repair personnel to fix broken office equipment; social purposes, ranging from hosting visiting heads of foreign governments to hosting small private meals; and other private purposes.” Supplemental

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Declaration of Claire M. O’Donnell at ¶ 7; 527 F.Supp.2d at 99. In “many if not most cases, the purpose of the visits is not apparent from the face of the documents.” Supp. O’Donnell Decl. at ¶ 7. Records Of Visits To The Vice President’s Residence The Secret Service employs a different system to monitor and clear visitors to the VPR. Among the records it creates for this purpose are daily access lists and permanent access lists. 527 F.Supp.2d at 84. As with visits to the White House Complex, the Secret Service is provided the proposed visitor’s identifying information and the scheduled date and time of the visit. Id. at 89. Once cleared, the Secret Service adds the visitor’s name to either a daily or permanent access list. Id. Daily access lists are used for visitors with specific appointments, while permanent access lists are used for individuals who regularly enter the VPR, such as contractors and service workers. Id. at 84. And, like the WAVES and ACR records, the permanent and daily access lists serve the purpose of allowing the Secret Service to perform background investigations of proposed visitors and clear them for access to the VPR. 527 F.Supp.2d at 95. At the time of a visitor’s entrance to the VPR, the Secret Service records by hand the date and time of arrival in a post entry log. Id. at 84, 90. Similarly, the commanding Secret Service officer creates a Watch Commander Journal that records the arrival and departure of the vice president and his wife as well as “any other security related incident that occurred during that shift.” Id. at 84. Finally, the Secret Service uses several other categories of records to clear visitors to the VPR, including an electronic database of information on individuals seeking access to the VPR; requests for access that are submitted; guest and worker lists of individuals invited to the VPR

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that the Office of the Vice President (“OVP”) prepares; and “hit” reports that are created when the Secret Service discovers something significant while performing a background check on a potential visitor. Id. at 84-85. As with visitors to the White House Complex, VPR visitor records concern visits made for a variety of purposes having nothing to do with any policy decisions, such as “visits by repair personnel to fix broken office equipment; social purposes, ranging from hosting visiting heads of foreign governments to hosting small private meals; and other private purposes.” Supp. O’Donnell Decl. at ¶ 7; 527 F.Supp.2d at 99. Moreover, “in many if not most cases, the purpose of the visits is not apparent from the face of the documents, nor is the relationship of the visitor to the Vice President, his family, OVP staff, or any outside organization.” Supp. O’Donnell Decl. at ¶ 7; 527 F.Supp.2d at 99. Indeed, the purpose of a particular visit can only be ascertained with the “assistance of knowledgeable OVP personnel,” and in many cases the OVP would have to guess the purpose. Supp. O’Donnell Decl. at ¶ 7. The Secret Service’s Record Retention Practices The Secret Service’s past record retention practices for both WAVES and ACR records have been both “pliant and evolving.” 527 F.Supp.2d at 81. The Secret Service copies WAVES records stored on the agency’s servers to a CD-ROM every 30 to 60 days, which the Secret Service than transfers to the White House Office of Records Management (“WHORM”). Id. Starting in at least 2001 until November 2004, the Secret Service purged and overwrote WAVES records older than 60 days. Id. But in November 2004, at the request of the National Archives and Records Administration (“NARA”), the Secret Service began “temporarily retaining a copy” of the WAVES records. Id. at 82 (citation omitted). But, as the Secret Service acknowledged,

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prior to July 2006, it removed the note and comment fields from WAVES records before transferring them to the White House, a practice it discontinued in July 2006. 527 F.Supp.2d at 82. The Secret Service’s records retention policy for ACR records “is equally muddled.” Id. Despite a purported understanding between the Secret Service and the White House to treat ACR records in the same manner as WAVES record, the Secret Service did not transfer ACR records to the White House until May 2006. Id. Neither has the agency regularly deleted ACR records after the transfer, again inconsistent with the way it claims to treat WAVES records. Id. The Secret Service also transfers to the WHORM other paper records including access requests the agency enters manually into WAVES, “such as large event lists, facsimiles, and emails.” 527 F.Supp.2d at 82-83. In addition, the Secret Service transfers other lists and checklists concerning large group appointments. Id. at 83. According to the Secret Service, it began retaining these materials in the fall of 2006. Id., citing 3d Morrissey Decl. at ¶ 26. The Secret Service follows somewhat similar document retention policies for visitor records to the VPR. Id. at 85. The agency purges documents unless they contain “information of protective interest.” 527 F.Supp.2d at 85 (citation omitted).2 Once in litigation over the status of White House visitor records the Secret Service revealed the existence of two documents it claimed memorialized the agreement between the agency and the White House that White House Access Control System (“WHACS”) records are

The Secret Service’s specific retention practices for requests for access, daily access lists, permanent access lists, post entry logs, watch commander journals, electronic databases, event lists, and hit reports are set forth in DHS II, 527 F.Supp.2d at 85, and incorporated herein by reference. 6

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not agency records subject to the FOIA. The first document, a memorandum of understanding (“MOU”) that the Secret Service and WHORM entered into on May 17, 2006, specifies that WHACS records “are at all time Presidential Records” “under the exclusive legal custody and control of the White House.” Id. at 83, quoting 3d Morrissey Decl. at ¶ 18. The second document is a letter dated September 13, 2006, from Counsel to the Vice President Shannen Coffin to Donald Personette, Chief Counsel to the Secret Service, written in response to pending FOIA requests for White House visitor records. 527 F.Supp.2d at 87. This letter also purports to confirm the Office of the Vice President’s “exclusive control” over records related to visits to the VPR. Id. (citation omitted). Plaintiff’s FOIA Request And DHS’s Refusal To Produce Any Responsive Material On July 15, 2008, CREW3 sent a FOIA request to the Secret Service, an agency component of DHS, seeking all records relating to any visit that Stephen Payne made to the White House or residence of the vice president from January 1, 2001, to the present. Complaint, ¶ 20. CREW also sought both a fee waiver and expedition in light of the urgency to inform the public about Mr. Payne’s activities as they relate to top White House officials. Id. at ¶ 22. Stephen Payne is a former member of the U.S. Homeland Security Advisory Council, and was appointed in August 2007 to DHS’s Secure Borders and open Doors Advisory Committee. See http://www.dhs.gov/xnews/releases/pr_1188336249499.shtm. A brochure from Worldwide Strategic Partners, a company Mr. Payne heads, describes Mr. Payne’s accomplishments as including, inter alia, the following:

CREW is the acronym for plaintiff Citizens for Responsibility and Ethics in Washington. 7

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C

White House senior presidential advance representative, having traveled with President Bush to Jordan in June 2003, and with Vice President Cheney to the Middle East in 2002 and 2005, Korea in 2004, Kazakhstan in 2006, and Afghanistan for the inauguration of Afghan President Karzai; Deputy Director and congressional liaison for the 2001 Presidential Inaugural Committee; Member of Rice/Chertoff Commission on Visas and border protection Member of DHS’s Essential Technologies Task Force.

C C C

Worldwide Strategic Partners Corporate Profile (attached as Exhibit 1). In addition, his company arranged for a meeting between the president of Azerbaijan and President Bush, as well as a private phone call between Vice President Cheney and the president of Azerbaijan prior to the Azeri elections in November 2005. Id. In July 2008, Mr. Payne was caught on videotape discussing an agreement to arrange meetings between an exiled former central Asian president and Vice President Cheney, Secretary of State Condoleezza Rice and other senior officials in return for a payment of $750,000, $250,000 of which was to go to the Bush presidential library in Texas. Daniel Foggo, President George W. Bush lobbyist in ‘cash for access’ row, Times of London, July 13, 2008 (attached as Exhibit 2). On July 14, 2008, Chairman Henry A. Waxman of the House of Representatives Committee on Oversight and Government Reform wrote to Mr. Payne, expressing the Committee’s “concerns in light of this article about the ways in which foreign interests might be secretly influencing our government through large donations to the library,” and seeking additional information from Mr. Payne. See letter from Chairman Henry A. Waxman to Stephen P. Payne, July 14, 2008 (attached as Exhibit 3). Despite the growing public scandal generated by the secret videotaping of Mr. Payne,

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DHS never responded to CREW’s FOIA request. Accordingly, CREW filed its complaint in this matter on September 4, 2008. In response, DHS filed an answer on October 6, 2008 (Document 4), in which it claimed that the Court lacks subject-matter jurisdiction over this action, that the complaint fails to state a claim upon which relief can be granted, and that plaintiff lacks standing to maintain some or all of its claims. Answer, First Defense, Second Defense, Third Defense. Despite its admission that it had yet to respond to the FOIA request, id. at ¶ 6, defendant asserted that it “can neither admit nor deny the existence of any records that may fall within plaintiff’s request” because to do so “could reveal information protected by the presidential communications privilege.” Id. at ¶ 7. In its prayer for relief, defendant requests that “[t]his Court enter judgment for defendant and dismiss this action with prejudice.” Prayer for Relief, ¶ 1. To date, defendant has never responded directly to CREW’s FOIA request. After the Court denied defendant’s requested stay pending the outcome of DHS II (Document 8), defendant filed a motion for summary judgment arguing that the requested records are not agency records subject to the FOIA and are otherwise exempt pursuant to the presidential communications privilege. ARGUMENT I. RECORDS OF VISITS TO THE WHITE HOUSE COMPLEX AND VPR ARE AGENCY RECORDS SUBJECT TO THE FOIA.

Here defendant makes virtually the verbatim argument it raised in DHS II: that the records CREW is requesting under the FOIA are not agency records. Despite this Court’s rejection of that argument, defendant has not articulated any reason for the Court to reach a contrary result here. 9

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In brief, this Court concluded in DHS II that records of visits to both the White House Complex and the VPR are agency records subject to the FOIA, after applying the two-part test for agency records in U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 144 (1989). Specifically, the Court concluded that the records were created or obtained by the Secret Service, 527 F.Supp.2d at 88-92, and under its control at the time CREW made its FOIA request. Id. at 92-98.4 While recognizing that “at times” much of the information in the visitor records is provided by presidential and vice presidential staff, the Court stressed that the FOIA “deals with documents, not information.” Id. at 90 (citation omitted). The Court also noted that here, unlike in United We Stand Am., Inc. v. IRS, 359 F.3d 595 (D.C. Cir. 2004), the visitor information is transferred to the Secret Service “haphazardly at times, in many forms . . . by many different individuals” and nowhere, contemporaneously with the request, “has a member of the President’s or Vice-President’s staff manifested . . . an intent to control the record.” Id. at 91. On the issue of control, this Court applied the four-factor test identified by the D.C. Circuit in Burka v. U.S. Dep’t of Health & Human Serv., 87 F.3d 508, 515 (D.C. Cir. 1996). 527 F.Supp.2d at 92. First, the Court found that the intent of the document’s creator to retain or relinquish control “weighs in favor of the Secret Service.” Id. Although the Court noted the actions of the Secret Service were “less conclusive than its words” on the issue of its intent to control, id. at 92, the Court deemed such actions “not inconsistent with its stated intent” not to retain control over the records “once the visitor has left the White House Complex or the Vice-

Although the Court in DHS II was addressing a different FOIA request CREW submitted for records of visits by nine prominent conservative Christian leaders, the Court’s analysis applies equally here, something defendant does not dispute. 10

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President’s Residence.” Id. at 93. This Court in DHS II also concluded that the second factor, the agency’s ability to use and dispose of the records as it sees fit, weighs against the Secret Service. As the Court pointed out, the agency’s own declarations demonstrate its ability to use the visitor records to both perform background investigations and to verify the admissibility of a particular visitor at the time of the visit. 527 F.Supp.2d at 93. In addition, the practice of the Secret Service to routinely dispose of certain records reflects that “the Secret Service is choosing to delete or transfer visitor records because it concludes that it no longer has a need for them.” Id. at 94 (citation omitted). As to the third factor, the extent to which agency personnel have read or relied upon the records, this Court concluded that it “weighs heavily against the Secret Service.” Id. at 95. The Court noted: “It is undisputed that the Secret Service uses each one of the visitor records in its efforts to protect the President and Vice-President; indeed, that is why the records are created.” Id. The court characterized each of the records as “integral to the Secret Service’s protective mission.” 527 F.Supp.2d at 95. That the Secret Service has only a brief and limited use for the records, the Court reasoned, “does not mean the Secret Service does not read or rely on them.” Id. The Court found that the fourth factor, the degree to which the records were integrated into the agency’s record system or files, “cuts both ways.” Id. While the records that the Secret Service creates in protecting the White House Complex are integrated into the agency’s record system, those created in protecting the vice president’s residence are not. Id. The Court noted, however, a “touch of uncertainty” given the Secret Service’s failure to explain exactly where and how some of the records are stored before being transferred to the White House. 527

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F.Supp.2d at 97. Balancing the four factors, this Court “ha[d] no difficulty concluding the visitor records are under the Secret Service’s control.” Id. Although the Secret Service’s intent weighed against this conclusion, ultimately that intent is “substantially outweighed by the other factors.” Id. In DHS II this Court also rejected the government’s request that the Court apply the doctrine of constitutional avoidance and construe the FOIA in a manner that did not encompass the requested visitor records. Id. at 98-99. As the Court concluded, the doctrine does not apply for a number of reasons. First, the Secret Service has failed to identify any ambiguity in the FOIA and “the term ‘agency record’ unambiguously encompasses the visitor records sought here.” 527 F.Supp.2d at 99. Second, the Court rejected the Secret Service’s presumption that releasing the visitor records would reveal “the particular policies the President was deliberating,” as factually unlikely, given the statements of the government’s own declarant that “in many, if not most cases the purpose of the visits . . . is not apparent from the face of the documents . . .” Id. Third, the Court found “no justification for removing these records from the reach of the FOIA” given the Secret Service’s “ready recourse in Exemption 5" to protect confidential presidential communications. Id. at 100. This conclusion accords with the Supreme Court’s admonition that there is no “expectation that the confidences of the Executive Office are absolute and unyielding.” Nixon v. Administrator, 433 U.S. 425, 450 (1977). Yet the government’s reliance on the doctrine of constitutional avoidance rests on this very expectation. Moreover, the president’s right to “minimize outside interference” with his “day-to-day operations” must be balanced against the

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need to “preserve the pre-existing body of FOIA law governing the disclosure of government agency records.” Armstrong v. Executive Office of the President, 1 F.3d 1274, 1292 (D.C. Cir. 1993). These principles all compel the conclusion here that subjecting White House visitor records to the FOIA raises no constitutional concerns. Nor is defendant’s constitutional argument strengthened by the fact that here the Secret Service does not have “ready recourse in Exemption 5.” To the contrary, the government’s admission that “in many, if not most cases, the purpose of the visits . . . is not apparent from the face of the documents,”5 only underscores the lack of substance in the government’s constitutional concerns. Defendant has identified no legal or factual development since the issuance of this opinion that would change its outcome and, indeed, there is none. Accordingly, for the reasons set forth in this Court’s memorandum opinion in DHS II, the records plaintiff requests here are agency records subject to the FOIA. II. BECAUSE THE PRESIDENTIAL COMMUNICATIONS PRIVILEGE DOES NOT PROTECT ANY OF THE REQUESTED RECORDS, THE SECRET SERVICE HAS FAILED TO CARRY ITS BURDEN OF SHOWING THE RECORDS ARE EXEMPT FROM DISCLOSURE UNDER EXEMPTION 5.

A. The Request Records Are Not Protected By The Presidential Communications Privilege. The presidential communications privilege, encompassed by FOIA’s Exemption 5,6 is available to the president to protect “documents or other materials that reflect presidential

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Declaration of Claire M. O’Donnell, ¶ 23. See, e.g., Judicial Watch, Inc. v. Dep’t of Justice, 365 F.3d 1108, 1113 (D.C. Cir. 2004). 13

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decisionmaking and deliberations and that the President believes should remain confidential.” In re Sealed Case, 121 F.3d 729, 744 (D.C. Cir. 1997). The privilege is “limited to communications ‘in performance of [a President’s] responsibilities,’ ‘of his office,’ and made ‘in the process of shaping policies and making decisions.’” Id. (quoting Nixon v. Administrator, 433 U.S. 425, 449 (1977) (internal quotations omitted)). Thus, as the name of the privilege conveys, it protects communications made by the president and his advisors “in the course of preparing advice for the President,” and even within that context only those communications “authored or solicited and received by those members of an immediate White House adviser’s staff who have broad and significant responsibility for investigating and formulating the advice to be given the President on the particular matter to which the communications relate.” Id. at 752. In Judicial Watch v. Dep’t of Justice, the Court described the scope of the privilege as establishing “in effect, a hierarchy of presidential advisers such that the demands of the privilege become more attenuated the further away the advisers are from the President operationally.” 365 F.3d at 1115. The D.C. Circuit has also cautioned that the presidential communications privilege “should never serve as a means of shielding information regarding governmental operations that do not call ultimately for direct decisionmaking by the President.” In re Sealed Case, 121 F.3d at 752. Moreover, while the presidential communications privilege is rooted in constitutional separation of powers concerns, the interests it protects must still be reconciled with the public’s need for knowledge of governmental activities, an interest that the FOIA advances. In re Sealed Case, 121 F.3d at 749. The very reason that presidential communications deserve special protection, namely the President’s unique powers and profound responsibilities, is simultaneously the very reason why securing as much public knowledge of presidential actions as is consistent 14

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with the needs of governing is of paramount importance. Id. Given these important and sometimes competing interests, the privilege is to be “construed as narrowly as is consistent with ensuring that the confidentiality of the President’s decisionmaking process is adequately protected.” Id. at 752. See also Judicial Watch, 365 F.3d at 1116. Here, the government asks this Court to extend the presidential communications privilege to “the identit[ies] of persons who provide information to the President and his immediate advisers (including the Vice President),” suggesting this extension is well within the sphere of protection already recognized by the D.C. Circuit in In re Sealed Case and Ass’n of Amer. Physicians & Surgeons, Inc. v. Clinton, 997 F.2d 898 (D.C. Cir. 1993) (“AAPS”). Memorandum in Support of Defendant’s Motion for Summary Judgment (“D’s Mem.”) at pp. 29-32. Defendant is wrong as a matter of law and fact. First, in both of these cases the D.C. Circuit was addressing the extent to which the presidential communications privilege applies to communications and advice received by top presidential advisers for the purpose of formulating advice for the president, not whether it protects the mere identities of presidential advisers. In AAPS, for example, the issue was whether a task force chaired by the first lady was subject to the Federal Advisory Committee Act (“FACA”). The first lady’s role on the task force was well-known and the issue before the Court was not whether her identity should be protected from public disclosure, but whether her participation required that the deliberations of the task force be publicly disclosed under the FACA. Defendant’s reliance on In re Sealed Case is particularly disingenuous. Defendant’s

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quote is actually part of a discussion on whether the presidential communications privilege protects both deliberative and factual material. In concluding that it does, the Court’s reference to “sources of information” clearly refers to “the factual portions of presidential advisers’ communications,” 121 F.3d at 750, not the identities of those advisers, the question before this Court. Beyond the fact that defendant’s interpretation of the presidential communications privilege has no legal support, the interpretation makes no sense here as a factual matter. One large subset of records at issue -- the ACR records -- does not even identify who the visitor was seeing within the White House Complex or who requested that the visitor be cleared for entry. Defendant does not even attempt to explain how the ACR records identify “persons from whom the President and his advisers are seeking advice.” D’s Mem. at 32. As to the rest of the records, this Court has already concluded that knowing who visited the White House does not disclose presidential communications, and the government has offered no basis to disturb that ruling. The Court’s conclusion rests on the sworn statements of White House declarant Claire O’Donnell, who explained that ‘in many of not most cases, the purpose of the visits [to the White house Complex and Vice-President’s Residence] is not apparent from the face of the documents, nor is the relationship of the visitor to the Vice-President, his family, OVP staff, or any outside organization.’ DHS II, 527 F.Supp.2d at 99. Moreover, a large number of visitors to both the White House Complex and the VPR are “‘repair personnel [entering] to fix broken office equipment’ or ‘visiting heads of foreign governments,’” and their visits do “not relate to policy considerations at all.” Id., quoting Supp. O’Donnell Decl. at ¶ 7. Indeed, as the White House has admitted, the

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“bulk” of the information in WAVES records, for example, is personal identifying information about the proposed visitors, revealing nothing about the nature or purpose of the visit. This Court’s initial conclusion -- that “as a factual matter, it seems unlikely that visitor records will often pose a bona fide risk of improper disclosure”7 – remains true today. Moreover, defendant’s reliance on the presidential communications privilege to protect from disclosure records of White House visits by Stephen Payne is particularly inapt, given the acknowledged close relationship between Mr. Payne and top White House officials. Revealing that Mr. Payne visited the White House will reveal nothing legitimately subject to privilege, as Mr. Payne is publicly recognized as a close supporter of President Bush who on his own website professes to have worked with both the president and the vice president to establish contacts with foreign leaders. Moreover, Mr. Payne has served the administration in a variety of contexts, including as a member of the U.S. Homeland Security Advisory Council. Under these facts it seems more likely that defendant has invoked the presidential communications privilege to spare the White House the embarrassment of acknowledging publicly its relationship with an individual who sought to sell access to top White House officials in exchange for contributions to the Bush presidential library than to protect the confidentiality of any advice the president has received. Tellingly, defendant does not even attempt to explain how, practically speaking, revealing whether Mr. Payne visited the White House Complex and the VPR would reveal information protected by the presidential communications privilege. Instead it cites only a declaration from Philip C. Droege that was prepared for and submitted in DHS II -- not here --

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527 F.Supp.2d at 99. 17

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and that states in relevant part: 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. Thus, some of the records described . . . reflect such meetings with the President and/or his immediate advisers. Second Declaration of Philip C. Droege, ¶ 4. At most Mr. Droege’s declaration indicates that the myriad visits documented in records requested in another lawsuit may include visits to the president and his top advisers. He does not, however, explain whether and how such records reveal any privileged information, including the substance of any meetings (i.e., the communications that occurred during these meetings) in which these visitors participated and he certainly says nothing about any risks posed by revealing visits of Stephen Payne. These factual deficiencies are fatal to defendant’s claim that the visitor records are protected by the presidential communications privilege. B. Defendant Has Not Properly Invoked The Presidential Communications Privilege. Not only has the government failed to establish the necessary nexus between the requested records and presidential decision making,8 but it has failed to properly invoke the presidential communications privilege. Defendant has offered only the declaration of Mr.

The possible participation of the vice president in at least some of these meetings adds nothing to defendant’s claims. As this Court has recognized, there is no authority “to suggest that the privilege extends to documents prepared for the purpose of advising the Vice President alone.” U. S. v. Philip Morris USA Inc., 2004 U.S. Dist. LEXIS 24517, 21-22 (D.D.C. Sept. 9, 2004). 18

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Droege, which was prepared for another lawsuit9 and contains no formal invocation of the privilege whatsoever. Indeed, Mr. Droege does not even mention the privilege at all, but instead limits his assertions to abbreviated factual descriptions of the records. The presidential communications privilege belongs uniquely to and must be invoked by the president. Ctr. on Corporate Responsibility, Inc. v. Shultz, 368 F.Supp. 863, 872, 873 (D.D.C. 1973), citing United States v. Reynolds, 345 U.S. 1, 7-8 (1954). Although it is arguably unsettled whether the president must personally invoke the privilege or can, instead, rely on his close advisers to do so,10 there is no serious question that someone acting on behalf of the president must, at a bare minimum, formally invoke the privilege. Here, however, neither the president nor anyone acting on his behalf and at his direction has invoked the presidential communications privilege. Instead, the government has relied exclusively on its counsel to argue in a memorandum of law that the privilege applies. This approach not only fails to meet the minimum prerequisites for invoking the presidential communications privilege, but fails to meet the most basic prerequisites for establishing that the

Defendant also refers to the Declaration of Claire M. O’Donnell, submitted initially in DHS II in support of the argument that White House visitor records are presidential records not subject to the FOIA. See, e.g., D’s Mem. at 36. Nothing in Ms. O’Donnell’s declaration purports to invoke the presidential communications privilege and the Court already considered this evidence in concluding that “[k]nowledge of [White House] visitors would not disclose presidential communications or shine a light on the President’s or Vice-President’s policy deliberations.” 527 F.Supp.2d at 99. For example, in In re Sealed Case the government submitted the declaration of the then-White House counsel formally invoking the presidential communications privilege. One of the issues before the Court was whether the privilege must be invoked by the president himself, rather than a member of his staff. 121 F.3d at 745 n.16. The D.C. Circuit refrained from deciding the issue, leaving open the question of who at the White House must invoke the privilege. 19
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withheld documents are properly exempt under the FOIA. An agency meets its burden under the FOIA through the submission of “a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of a withheld document to which they apply.” Mead Data Cent., Inc. v. U.S. Dep’t of the Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977) (citations omitted). Plainly the legal arguments of defendant’s counsel, unsupported by any agency declarations, do not satisfy this standard. Because neither the president nor anyone with properly delegated authority from the president has invoked the presidential communications privilege here, it may not serve as a basis for withholding any material. III. DEFENDANT’S GLOMAR RESPONSE IS INAPPROPRIATE HERE.

The courts have recognized that in some extraordinary and very limited circumstances an agency can neither confirm nor deny the existence of responsive documents and so must employ a “Glomar response”11 because merely to reveal whether or not the responding agency has documents would itself reveal information that is either classified or otherwise exempt. See, e.g., Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007) (CIA “may refuse to confirm or deny the existence of records where to answer the FOIA inquiry would cause harm cognizable under an FOIA exception.” (quotation omitted)). A Glomar response is used only where an agency cannot speak to the very existence of responsive records and, as such, is an entirely different matter than whether any particular record or record portion is properly exempt from disclosure. Id. at 380. As at least one court has warned, use of Glomar responses leads to the danger of “encouraging

Glomar refers to the subject of the FOIA request at issue in Phillippi v. CIA, 546 F.2d 1009, 1013 (D.C. Cir. 1976), the Glomar Explorer submarine retrieval ship. 20

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an unfortunate tendency of government officials to over-classify information, frequently keeping secret that which the public already knows, or that which is more embarrassing than revelatory of intelligence sources or methods.” ACLU v. Dep’t of Defense, 389 F.Supp.2d 547, 561 (S.D.N.Y. 2005). Here, defendant has made a Glomar response as to the entirety of White House visitor records, claiming that confirming or denying the existence of any visitor record for any particular visitor would disclose information protected by the presidential communications privilege. Defendant reasons that because at least some of the visits reflected in White House visitor records as a whole include visits to the president and his immediate advisers, and that the purpose of at least some of those visits was to “develop[] policy and mak[e] Executive decisions,” stating whether or not visitor records exist as to any particular person “would necessarily reveal whether such person has or has not entered the White House or the VPR.” D’s Mem. at 36. Thus, defendant claims, if it invokes the presidential communications privilege “only when warranted in relation to any particular visit” this will necessarily reveal “from whom the President and his closest advisers have and have not sought information in the course of making decisions.” Id. The government’s argument that knowledge of the identities of White House visitors risks disclosing information protected by the presidential communications privilege “does not hold water.” Judicial Watch v. Secret Service, No. 06-310 (RCL), Mem. Op. at 6 (Sept. 30, 2008). As discussed supra, the presidential communications privilege protects confidential communications that reflect presidential decision making and deliberations by the president or by his top advisers for the express purpose of providing advice to the president. But the

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identities of those “with whom the president and his advisers have and have not conferred,” D’s’ Mem. at 37, simply are not within the scope of that privilege, as their identities alone reveal nothing about the substance of confidential presidential communications. Indeed, the White House has conceded here that without the “assistance of knowledgeable OVP personnel,” it could do little more than guess at the purpose of any particular visit to the VPR based on the records themselves. Supp. O’Donnell Decl. at ¶ 7.12 Defendant nevertheless posits several instances where it claims revealing the identities of visitors might reveal privileged information, including a request for visitor records of judges who visited the White House during a Supreme Court vacancy and a request for visitor records of economists who visited the White House while “economic initiatives [are] under consideration.” D’s Mem. at 33. As even defendant concedes, however, revelation of privileged information is only a mere possibility and a remote one at that given that the presidential communications privilege protects the substance of privileged communications, not the mere fact that such communications took place or with whom. Moreover, defendant’s hypothetical situations have no application here. At bottom, defendant posits that there might be appropriate circumstances (not present here) where the government could appropriately refuse to identify the dates on which specific visits took place given the particular nature and facts of a specific FOIA request and the circumstances surrounding that request, including information already in the public domain. But this

The government’s stated need for a Glomar response here is also undermined by its disclosure of visitor records in the Judicial Watch case to which CREW is also a party. While the newly disclosed records are certainly of great interest, revealing as they do the fact that Mr. Abramoff apparently had two separate overnight stays at the White House, their disclosure poses no risk of revealing information protected by the presidential communications privilege. 22

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possibility does not justify withholding all White House visitor records in response to all requests including where, as here, there is a publicly acknowledged relationship between the visitor and the president and vice president. The records at issue here -- like the overwhelming majority of White House visitor records -- present no danger of revealing, either directly or indirectly, any legitimately privileged information. Because the material defendant seeks to protect is not privileged in the first instance, a Glomar response to protect the entirety of White House visitor records is plainly unjustified. Defendant seeks to shield from public view the entirety of the visitor records, the vast majority of which are completely unrelated to any visit of substance involving the president or his top advisors and many of which do not even reveal who the visitor is visiting (ACR records). Ruling all of these records off-limits because of the hypothetical possibility that in some isolated instance, not present here, an individual could piece together a more “complete picture of presidential consultation,”13 would contravene the appropriately narrow construction courts have given to the presidential communications privilege and their limited sanctioning of Glomar responses. At bottom, defendant’s arguments -- founded on the notion that the American people are not entitled to so much as a glimpse into the inner workings of our government -- are repugnant to democratic ideals. CONCLUSION The White House has made clear from the outset its desire to shield from public view all that transpires at the White House and Vice Presidential Residence, operating from an unprecedented and insupportable view of presidential prerogative and privilege. Accepting

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defendant’s novel and dangerous theories would contravene the FOIA’s central purpose of “ensur[ing] an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed. NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1976); Maydak v. Dep’t of Justice, 218 F.3d 760 (D.C. Cir. 2000). Accordingly, for the foregoing reasons, defendant’s motion for summary judgment should be denied and CREW’s cross-motion for summary judgment should be granted. Respectfully submitted, /s/ Anne L. Weismann (D.C. Bar No. 298190) Melanie Sloan (D.C. Bar No. 34584) Citizens for Responsibility and Ethics in Washington 1400 Eye Street, N.W., Suite 450 Washington, D.C. 20005 Telephone: 202-408-5565 Dated: December 4, 2008 Attorneys for Plaintiff

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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 No. 08-1535 (RCL)

PLAINTIFF’S RESPONSE TO DEFENDANT’S STATEMENT OF MATERIAL FACTS AS TO WHICH THERE IS NO GENUINE ISSUE AND PLAINTIFF’S STATEMENT OF MATERIAL FACTS AS TO WHICH THERE IS NO GENUINE ISSUE Pursuant to LCvR 7(h) plaintiff Citizens for Responsibility and Ethics in Washington (“CREW”) hereby responds to defendant’s statement of material facts as to which defendant contends there is no genuine issue and provides plaintiff’s statement of material facts as to which plaintiff contends there is no genuine issue. Plaintiff’s Response To Defendant’s Statement Of Material Facts As To Which There Is No Genuine Issue 1. Plaintiff admits the Secret Service provides security for the White House Complex and monitors and controls access to the complex, except to deny any implication that this is all the Secret Service does as part of its statutorily-mandated function to provide security for the White House Complex. 2. Plaintiff admits defendants have identified two electronic systems for controlling and monitoring access to the White House Complex, WAVES and ACR, that those records contain certain information regarding visitors to the White House Complex, and that certain other paper

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records, including those identified in paragraph 2, also contain certain information regarding visitors to the White House Complex. 3. Plaintiff admits that included among all the visitors to the White House Complex are visitors who are coming to the Complex to meet and confer with the president and/or his advisors, but denies any implication that any of the visitor records at issue reflect this or any other information about the purpose or substance of any visit. 4. Plaintiff admits that included among all the visitors to the White House Complex recorded in the records identified in paragraph 2 are visitors who came to meet with the president and/or his advisors, but denies any implication that any of those records reflect this or any other information about the purpose or substance of any visit. 5. Plaintiff admits the process for entry of a proposed visitor to the White House Complex includes the process described in paragraph 5, but denies any implication this is the only process by which proposed visitors enter the White House Complex. 6. Plaintiff admits the cited declarations contain the information in this paragraph, but denies any implication this is the only way that information is provided to the Secret Service. See Third Morrissey Decl. at ¶ 11. 7. Plaintiff admits the cited declaration of Paul S. Morrissey contains this language, but denies it is logically supported by the preceding information set forth in paragraph 11 of Mr. Morrissey’s Third Declaration. 8. Plaintiff denies there is no genuine issue as to whether presidential and vice presidential personnel provide visitor information to the Secret Service on a confidential basis. See CREW v. U.S. Dep’t of Homeland Sec., 527 F.Supp.2d 76, 91 (D.D.C. 2007) (“DHS II”)

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Plaintiff avers that in the two prior declarations submitted by Claire M. O’Donnell in The Washington Post v. U.S. Dep’t of Homeland Sec., No. 06-2747 (RMU) and dated October 13, 2006 and October 25, 2006, Ms. O’Donnell did not describe presidential and vice presidential personnel providing visitor information to the Secret Service on a confidential basis and that the inconsistencies between her declarations raise a genuine issue in dispute. Plaintiff lacks knowledge as to what defendant means by “temporary basis,” except to deny that the understanding of presidential and vice presidential personnel in this regard is a material fact and to further deny any implication that their understanding alters the legal status of the White House visitor records that the Secret Service creates in fulfillment of its statutorily-mandated protective function. Plaintiff admits the purposes for which the Secret Service uses the information include enabling the Secret Service to perform background checks and to provide for the visitor’s temporary admittance to the White House Complex, but denies any implication these are the only uses the Secret Service makes of the information. 9. Plaintiff denies the first sentence is a material fact. Plaintiff admits the second sentence. 10. Plaintiff denies that either Ms. O’Donnell or Mr. Droege is competent to testify as to the understanding of the Secret Service. Plaintiff denies that the understanding of the White House and the OVP regarding the status of WAVES and ACR records and the visitor information contained in them is a material fact not in dispute and avers the record as a whole, as outlined in DHS II, documents that White House visitor records the Secret Service creates in fulfillment of its statutorily-mandated protective function are agency records subject to both the Freedom of Information Act and the Federal Records Act.

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11. Plaintiff admits the Morrissey declaration contains this language, but denies it is not in dispute. Plaintiff further avers that under the Federal Records Act, the archivist is empowered to determine whether the Secret Service must preserve or retain WAVES and ACR records and in this regard the archivist may overrule the recommendation of the Secret Service. 44 U.S.C. § 3303a. Plaintiff denies the records are under the exclusive legal control of the president and vice president, see DHS II, 527 F.Supp.2d at 92-97, and avers this is not a statement of material fact not genuinely in dispute. 12. Plaintiff admits the cited declarations contain the statements in the first sentence. Plaintiff denies that Ms. O’Donnell is a competent witness to testify to what the White House Office of Records Management (“WHORM”) does with the WAVES records and notes that in his declaration Mr. Droege, who is director of the WHORM, does not state that the WHORM preserves these records in accordance with the Presidential Records Act. Plaintiff denies that either Ms. O’Donnell or Mr. Droege is competent to testify to the practice of the Secret Service dating back to 2001. 13. This paragraph is a selective characterization of an MOU, the contents of which speak for themselves. Plaintiff denies that the MOU confirms the legal status of WAVES and ACR records and avers further this is a legal issue in dispute, not a statement of material fact not genuinely in dispute. 14. Plaintiff denies that Mr. Morrissey is a competent witness to testify about the Secret Service’s recognition as early as 2001 that ACR records should be treated in a manner consistent with the treatment of WAVES records and avers that Mr. Morrissey has been in his position only since September 2006, and his declaration does not provide the basis for his purported

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understanding of Secret Service practices prior to that date. See Third Morrissey Decl., ¶¶ 1, 22. Plaintiff denies that Mr. Droege is a competent witness to testify about the White House’s and Secret Service’s recognition and agreement, dating back to as early as 2001, regarding the treatment of ACR records given that Mr. Droege has been in his position only since July 2004, and his declaration does not provide the basis for his purported understanding of White House practices prior to that date. See Droege Decl., ¶¶ 1, 10. Plaintiff avers the Secret Service has not treated ACR records in the same manner as it has treated WAVES records. DHS II, 527 F.Supp.2d at 82. 15. Plaintiff denies that the first two sentences of this paragraph are material facts. As to the third sentence, plaintiff admits the Morrissey declaration contains this language, but denies it is not in dispute. Plaintiff further avers that under the Federal Records Act, the archivist is empowered to determine whether the Secret Service must preserve or retain agency records regarding visitors to the White House Complex and in this regard the archivist may overrule the recommendation of the Secret Service. 44 U.S.C. § 3303a. 16. Plaintiff admits, except to deny any implication this is all the Secret Service does as part of its statutorily-mandated function to provide security for the Vice President’s Residence (“VPR”). 17. Plaintiff admits the cited declarations contain the statements set forth in this paragraph, but denies any implication this is the only way the Secret Service receives requests for entry to the VPR. 18. Plaintiff admits Ms. O’Donnell’s declaration contains the cited language, but denies that whether the information and any materials the Secret Service creates that are derived in

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whole or part from the information remain in the exclusive ownership, custody, and control of the OVP is a material fact not genuinely in dispute. Plaintiff also denies any implication the OVP’s understanding is dispositive of the legal issue of the status of the White House visitor records the Secret Service creates in fulfillment of its statutorily-mandated protective function under the Freedom of Information Act and the Federal Records Act. See DHS II, 527 F.Supp.2d at 92-98. 19. Plaintiff admits the Morrissey declaration contains this language, but denies it is not in dispute. Plaintiff further avers that under the Federal Records Act, the archivist is empowered to determine whether the Secret Service must preserve or retain record relating to VPR visits and in this regard the archivist may overrule the recommendation of the Secret Service. 44 U.S.C. § 3303a. Plaintiff denies the records are under the exclusive legal control of the vice president. DHS II, 527 F.Supp.2d at 92-99. 20. Plaintiff denies that both Mr. Morrissey and Ms. O’Donnell are competent witnesses to testify about the practice of the Secret Service since 2001 with respect to the transfer to the OVP of handwritten post entry logs given that Mr. Morrissey has been in his position only since September 2006, his declaration does not provide the basis for his purported understanding of Secret Service practices prior to that date, Third Morrissey Decl. at ¶¶ 1, 37, and Ms. O’Donnell is an OVP employee. 21. Plaintiff admits Mr. Morrissey’s declaration contains the cited language and avers that given the inconsistencies between the multiple declarations Mr. Morrissey has submitted in this and other litigation, plaintiff cannot ascertain the extent to which this paragraph may be incomplete or inaccurate.

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22. Plaintiff admits the cited declarations contain the cited language and avers that given the inconsistencies between the multiple declarations Mr. Morrissey has submitted in this and other litigation, plaintiff cannot ascertain the extent to which this paragraph may be incomplete or inaccurate. 23. Plaintiff admits the cited declarations contain the cited language and avers that given the inconsistencies between the multiple declarations Mr. Morrissey has submitted in this and other litigation, plaintiff cannot ascertain the extent to which this paragraph may be incomplete or inaccurate. 24. Plaintiff admits Ms. O’Donnell’s declaration contains the cited language and avers that given the more limited statement in the letter from Shannen Coffin of September 13, 2006 and attached to the Third Declaration of Mr. Morrissey that the OVP maintains these records only “[t]o the extent required by law,” plaintiff cannot ascertain the extent to which this paragraph may be incomplete or inaccurate. 25. This paragraph is a selective characterization of a letter, the contents of which speak for themselves. 26. Plaintiff admits Ms. O’Donnell’s declaration contains the cited language, but denies she is a competent witness to testify to the substantive duties of OVP personnel who advise and assist the vice president. 27. Plaintiff denies. See DHS II, 527 F.Supp.2d at 83-85 (describing information contained in records related to visits to VPR), 99 (neither purpose of the visit nor relationship of visitor to vice president apparent from face of the records). 28. Plaintiff admits the cited declaration contains the cited language, but denies this

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paragraph contains material facts given defendant’s failure to identify any of these miscellaneous records as at issue here. 29. Plaintiff admits the cited declaration contains the cited language, but denies this paragraph contains material facts given defendant’s failure to identify any of these miscellaneous records as at issue here. Plaintiff denies any implication that the Secret Service’s use of the parking information is not part of its fulfillment of its statutorily-mandated function to provide security to either the White House Complex or VPR. 30. Plaintiff admits the cited declaration contains the cited language, but denies this paragraph contains material facts given defendant’s failure to identify any of these miscellaneous records as at issue here. 31. Plaintiff admits the cited declaration contains the cited language, but denies this paragraph contains material facts given defendant’s failure to identify any of these miscellaneous records as at issue here. 32. Plaintiff admits the cited declaration contains the cited language, but denies this paragraph contains material facts given defendant’s failure to identify any of these miscellaneous records as at issue here. 33. Plaintiff admits the cited declaration contains the cited language, but denies this paragraph contains material facts. 34. Plaintiff admits the cited declaration contains the cited language, but denies this paragraph contains material facts given defendant’s failure to identify any name check reports at issue here. 35. Plaintiff admits the cited declaration contains the cited language.

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36. Plaintiff admits the cited declaration contains the cited language, but denies this paragraph contains material facts given defendant’s failure to identify any visitor multiple entry reports at issue here. 37. Plaintiff admits the cited declaration contains the cited language, but denies this paragraph contains material facts given defendant’s failure to identify any visitor multiple entry reports at issue here. Plaintiff denies any implication the Secret Service’s use of visitor multiple entry reports is not part of its fulfillment of its statutorily-mandated function to provide security to either the White House Complex or VPR. Plaintiff’s Statement Of Material Facts As To Which There Is No Genuine Issue 1. The Secret Service’s past record retention practices for WAVES and ACR records have been both pliant and evolving. DHS II, 527 F.Supp.2d at 81. For example, although the Secret Service has claimed to have a policy of transferring WAVES records to the WHORM, the agency has not always transferred the entire WAVES record. Id. at 82. 2. The Secret Service’s policy for retaining ACR records is as muddled as its policy for retaining WAVES records. Id. For example, despite a purported understanding between the Secret Service and White House since at least 2001 to treat ACR records in the same manner as WAVES records are treated, the Secret Service did not begin transferring ACR records to the WHORM until May 2006. Id. 3. White House visitor records are created or obtained by the Secret Service. DHS II, 527 F.Supp.2d at 88-91. Both WAVES and ACR records are generated by the Secret Service and not by presidential or vice presidential staff. Id. at 89. The Secret Service also creates or obtains visitor records generated for the VPR. Id.

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4. Visitor information is transferred to the Secret Service haphazardly at times, in many forms, by many different individuals, without a contemporaneous, explicit and unambiguous confidentiality limitation. Id. at 91. 5. White House visitor records are under the control of the Secret Service. DHS II, 527 F.Supp.2d at 92-98. 6. The Secret Service’s past practices do not demonstrate a clear intent to relinquish control over all the White House visitor records, particularly ACR records. Id. at 93. 7. The Secret Service is able to use the White House visitor records as it sees fit and, in most instances, is able to freely dispose of the records as well. Id. 8. The Secret Service collects personal information to verify that a visitor may enter the White House Complex or VPR. Id. The agency then uses the records it creates for these two purposes in fulfillment of its statutorily-mandated responsibility to protect the president and vice president. DHS II, 527 F.Supp.2d at 93-94. 9. The Secret Service routinely preserved all ACR records from 2001 until 2006, and did not transfer these records to the White House or the OVP until 2006, when it transferred the records en masse. Id. at 94. 10. Until June 2006, the Secret Service routinely disposed of all permanent access lists and daily access lists without first providing a copy to the OVP, and similarly purged its access list database on a daily basis. Id. In addition, the Secret Service destroyed requests for access without first providing a copy to the OVP. Id. 11. The Secret Service uses each one of the visitor records in its efforts to protect the president and vice president and that protective function is why the records are created. DHS II,

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527 F.Supp.2d at 95. Each of these records is integral to the Secret Service’s protective mission. Id. 12. The visitor records created at the White House Complex are integrated into the Secret Service’s record system. Id. WAVES and ACR records are stored on the Secret Service’s computer system and its servers. Id. 13. The Secret Service has retained at least some of the records pertaining to visits to the VPR, including daily access lists. DHS II, 527 F.Supp.2d at 97. 14. In many, if not most cases, the purpose of the visits to the White House Complex and the VPR is not apparent from the face of the documents, nor is the relationship of the visitor to the president, vice president, staff or any outside organization. Id. at 99. Indeed, the bulk of the information in WAVES records is personal identifying information about the proposed visitors that reveals nothing about the nature or purpose of the visit. Id. 15. Many visitors to the White House Complex and VPR include repair personnel entering to fix broken office equipment and visiting heads of foreign governments. Id. Knowledge of these visitors would not disclosure presidential communications or shine a light on the president’s or vice president’s policy deliberations. DHS II, 527 F.Supp.2d at 99. 16. Stephen Payne is a former member of the U.S. Homeland Security Advisory Council and was appointed in August 2007 to DHS’s Secure Borders and Open Doors Advisory Committee. http://www.dhs.gov/xnews/releases/pr_1188336249499.shtm. 17. Mr. Payne traveled with President Bush to Jordan in June 2003, with Vice President Cheney to the Middle East in 2002 and 2005, to Korea in 2004, to Kazakhstan in 2006, and to Afghanistan for the inauguration of Afghan President Karzai. Worldwide Strategic Partners

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Corporate Profile. Mr. Payne was also the deputy director and congressional liaison for the 2001 Presidential Inaugural Committee. Id. In addition, his company arranged for a meeting between the president of Azerbaijan and President Bush as well as a private phone call between Vice President Cheney and the president if Azerbaijan prior to the Azeri elections in November 2005. Id. 18. In July 2008, Mr. Payne was caught on videotape discussing an agreement to arrange meetings between an exiled former central Asian president and Vice President Cheney, Secretary of State Condoleezza Rice and other senior officials in return for a payment of $750,000, $250,000 of which was to go to the Bush presidential library in Texas. Daniel Foggo, President George W. Bush lobbyist in ‘case for access’ row, Times of London, July 13, 2008. 19. To date, DHS has not responded to CREW’s FOIA request of July 15, 2008, seeking all records relating to any visit that Stephen Payne made to the White House Complex or VPR between January 1, 2001 and the present. 20. Defendant has submitted no declaration in this litigation formally invoking the presidential communications privilege. 21. The Secret Service has already disclosed visitor records to plaintiff and Judicial Watch in Judicial Watch v. Secret Service, No. 06-310 (RCL). Respectfully submitted, /s/ Anne L. Weismann (D.C. Bar No. 298190) Melanie Sloan (D.C. Bar No. 34584) Citizens for Responsibility and Ethics in Washington 1400 Eye Street, N.W., Suite 450 12

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Washington, D.C. 20005 Telephone: 202-408-5565 Dated: December 4, 2008 Attorneys for Plaintiff

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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. 06-1535 (RCL)

[PROPOSED] ORDER Upon consideration of defendant’s motion for summary, plaintiff’s cross-motion for summary judgment, the parties’ responses, and the entire record herein, it is hereby ORDERED that defendant’s motion is hereby denied; and it is FURTHER ORDERED that plaintiff’s motion is hereby granted; and it is FURTHER ORDERED that defendant shall produce to plaintiff all White House visitor records responsive to the Freedom of Information Act request at issue in this action, including records that the Secret Service transferred to the White House without retaining copies, within five days of the issuance of this order. Defendant is to produce these records in their entirety, with the exception of Social Security numbers, birth dates and coded instructions to Secret Service officers. DATED: __________________ ______________________________ ROYCE C. LAMBERTH Chief Judge