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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

REPLY IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT

GREGORY G. KATSAS Assistant Attorney General 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 ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 I. WHITE HOUSE AND VPR VISITOR RECORDS ARE NOT “AGENCY RECORDS” SUBJECT TO THE FREEDOM OF INFORMATION ACT. . . . . . 2 DEFENDANT’S GLOMAR RESPONSE IS VALID. . . . . . . . . . . . . . . . . . . . . . . 3 A. The Presidential Communications Privilege Protects the Identity of Persons from Whom the President and His Advisors Seek Advice or Information.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Confirming or Denying the Existence of Records Regarding a Particular Visitor Would Disclose Information Protected by the Presidential Communications Privilege.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Formal Invocation of the Privilege Is Not Required Under the Freedom of Information Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

II.

B.

C.

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

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TABLE OF AUTHORITIES Citizens for Responsibility and Ethics in Washington v. U.S. Dep’t of Homeland Sec., 527 F. Supp. 2d 76 (D.D.C. 2007) . . . . . . . . . . . . . . . . . . . 2 Dep’t of the Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1 (2001). . . . . . . . . . 7, 8 Electronic Privacy Information Ctr. v. Dep’t of Justice, ___ F. Supp. 2d ___, 2008 WL 4757163 (D.D.C. 2008).. . . . . . . . . . . . . . . . . . . . . . . . . . 8 Gardels v. CIA, 689 F.2d 1100 (D.C. Cir. 1982).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 In re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 3, 4, 6 Lardner v. Dep’t of Justice, No. Civ.A.03-0180(JDB), 2005 WL 758267 (D.D.C. Mar. 31, 2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8 Loving v. Dep’t of Defense, 496 F. Supp. 2d 101 (D.D.C. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . 8 Nation Magazine v. Customs Serv., 71 F.3d 885 (D.C. Cir. 1995). . . . . . . . . . . . . . . . . . . . . 2, 5, 7 Salisbury v. United States, 690 F.2d 966 (D.C. Cir. 1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Wolf v. CIA, 473 F.3d 370 (D.C. Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

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INTRODUCTION Under governing law and based on uncontested facts, the principal records at issue in this case identifying visitors to the White House Complex and the Vice President's Residence ("VPR") are not "agency records" under the Freedom of Information Act ("FOIA"). These records are in significant part created by Presidential and Vice Presidential staff, and the White House and the Office of the Vice President ("OVP") exercise control over these records by directing their handling and disposition and by taking permanent possession of the records. For those reasons, the White House and OVP, rather than the Secret Service, “control” these records within the meaning of governing law, and this Court should therefore find that they are not “agency records” subject to FOIA.1 Moreover, plaintiff’s request delves into confidential consultations by the President and his immediate advisers with third parties, potentially revealing the President's "sources of information," which the Court of Appeals has undeniably held to be protected by the presidential communications privilege.2 Despite plaintiff's efforts, that appellate precedent cannot be read otherwise. Revealing whether records exist regarding a particular visitor — as would be necessary to invoke the privilege as to a specific record — would itself disclose "the very

Specifically, defendant contends that WAVES and ACR data/records, VPR access records other than those of protective interest to the Secret Service, WHACS data, White House Appointment Request Server data, paper access requests and other paper records regarding visitors from 2001, records (and copies of records) transferred to the White House Office of Records Management or the Office of the Vice President, certain other paper records containing appointment information, and the miscellaneous records identified in footnote 14 of its Memorandum in Support of Its Motion for Summary Judgment (Dkt. No. 9 (11/24/2008)), are presidential or vice presidential records not subject to FOIA.
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1

See In re Sealed Case, 121 F.3d 729, 750 (D.C. Cir. 1997). 1

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information the [privilege] is designed to protect."3 The government's limited, discretionary disclosure of visitor records in other cases does not require the defendant to confirm or deny the existence of responsive records in future cases. Finally, and contrary to plaintiff's argument, formal invocation of the presidential communications privilege, by the President or one acting on his behalf, is not required under FOIA Exemption 5. For all these reasons, as set forth in more detail below, summary judgment should be granted to defendant, and plaintiff’s cross-motion for summary judgment should be denied. ARGUMENT I. WHITE HOUSE AND VPR VISITOR RECORDS ARE NOT “AGENCY RECORDS” SUBJECT TO THE FREEDOM OF INFORMATION ACT. Plaintiff in its Memorandum in Opposition to Defendant’s Motion for Summary Judgment and in Support of Plaintiff’s Cross Motion for Summary Judgment (Dkt. Nos. 10 and 11 (12/4/2008)) (“Pl. Opp.”) does not substantively respond to defendant’s “agency records” argument, but rather relies on this Court’s opinion in Citizens for Responsibility and Ethics in Washington v. U.S. Department of Homeland Security, 527 F. Supp. 2d 76 (D.D.C. 2007) (“CREW 2"). For the reasons set forth in its Memorandum in Support of Defendant’s Motion for Summary Judgment (Dkt. No. 9 (11/24/2008)), as well as Defendants’ Reply Memorandum in Support of Defendants’ Motion for Summary Judgment in CREW 2 (CREW 2, Dkt. No. 38 (08/01/2007), attached hereto as Ex. 12-2)4, defendant respectfully disagrees with this Court’s

3

Nation Magazine v. Customs Serv., 71 F.3d 885, 894 n.8 (D.C. Cir. 1995).

Defendant incorporates both of these briefs herein in support of its Motion for Summary Judgment and in opposition to plaintiff’s Cross-Motion for Summary Judgment. 2

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decision in CREW 2 and requests that the Court grant summary judgment in defendant’s favor on its “agency records” argument. II. DEFENDANT’S GLOMAR RESPONSE IS VALID. A. The Presidential Communications Privilege Protects the Identity of Persons from Whom the President and His Advisers Seek Advice or Information.

Although plaintiff purports to deny it, the Court of Appeals has undeniably held that the presidential communications privilege protects the identities of "sources of information" consulted by the President and his advisers. See In re Sealed Case, 121 F.3d 729, 750 (D.C. Cir. 1997). The court observed: [T]he critical role that confidentiality plays in ensuring an adequate exploration of alternatives cannot be gainsaid. . . . Presidential advisers do not explore alternatives only in conversations with the President or pull their final advice to him out of thin air — if they do, their advice is not likely to be worth much. Rather, 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. (emphasis added). "Without protection for her sources of information," the court explained further, "an adviser may be tempted to forego obtaining comprehensive briefings or initiating deep and intense probing . . . ." Id. (emphasis added). The court's reference to "protection for . . . sources of information,” can only mean that those "sources" are "protected" by the privilege. See id. (explaining that, absent protection, presidential advisers might be “dissuaded from expressing unpopular but correct opinions out of fear of disclosure,” and that “able individuals will . . . shrink from assuming a position as presidential adviser in the first place if by doing so they step unprotected into the limelight.”).

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Plaintiff's single response to this language is to assert that the court's language "refers to 'the factual portions of presidential advisers' communications,' 121 F.3d at 750," rather than to the identities of persons who provide advice and information. See Pl. Opp. at 16 (emphasis added). But that argument is certainly wrong. The Appellate Court was concerned, first, that without protection for her “sources of information, an adviser may be tempted to forego obtaining comprehensive briefings or initiating deep and intense probing for fear of losing deniability.” In re Sealed Case, 121 F.3d at 750 (emphasis added). The court was additionally concerned that exposure of “the factual portions” of presidential advice might “also represent[ ] a substantial threat to the confidentiality of the President’s own deliberations.” Id. The court opined that the protection “afforded by the more general deliberative process privilege” might often be inadequate to protect against either of these concerns. Id. Given that the presidential communications privilege applies to the identities of "sources of information" consulted by the President and his advisers, it is irrelevant whether the subject records "identify who the visitor was seeing within the White House Complex or who requested that the visitor be cleared for entry." See Pl's Opp. at 16. The records in question — whether Access Control Records System ("ACR") records regarding visitors or other records — identify visitors to the White House Complex or the VPR, and defendants' motion establishes that the visits documented in those records "include visits to the president and his top advisers." See id. at 18; see also Second Declaration of Philip C. Droege ¶ 4 (Dkt. No. 9-8); Declaration of Claire

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M. O'Donnell, Assistant to the Vice President and Deputy Chief of Staff, Office of the Vice President ¶¶ 5, 8, 22 (Dkt. No. 9-7).5 B. Confirming or Denying the Existence of Records Regarding a Particular Visitor Would Disclose Information Protected by the Presidential Communications Privilege

"[A]n 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). Such a 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 v. Customs Serv., 71 F.3d 885, 894 n.8 (D.C. Cir. 1995). Plaintiff argues that invoking the presidential communications privilege (and, hence, Glomar) in this case is “inapt” due to the “acknowledged close relationship between Mr. Payne and top White House officials.” Pl. Opp. at 17; see also id. at 22-23. But that argument ignores the fundamental premise underpinning a Glomar response; namely, that one cannot selectively invoke Glomar. For example, if defendant admitted that there were no responsive records for Stephen Payne, but invoked Glomar for visits by prominent Christian leaders to the White House, one could reasonably conclude that there were records reflecting visits by those Christian leaders. Moreover, plaintiff’s own allegations undercut its argument that the presidential communications privilege does not apply to visits by Mr. Payne. Plaintiff notes that “Mr. Payne has served the administration in a variety of contexts, including as a member of the U.S.
5

At several points in its brief, plaintiff quarrels with defendant’s reliance on declarations prepared for CREW 2 (but which have been re-submitted in this case). See, e.g., Pl. Opp. at 18, 19 & n.9. But plaintiff does not dispute that those declarations are no less applicable to the factual and legal arguments that defendant makes in this case than they are to the factual and legal arguments in CREW 2. 5

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Homeland Security Advisory Council.” Pl. Opp. at 17. That fact, if anything, increases the likelihood that any visits by Mr. Payne to the White House or the Vice Presidential Residence would reflect meetings containing communications covered by the presidential communications privilege.6 Plaintiff also asserts that "[t]he government's stated need for a Glomar response here is . . . undermined by its disclosure of visitor records" in another recent case. See Pl. Opp. at 22 n.12. But any past, discretionary disclosures of visitor records does not prevent the defendant from asserting, in this case, that it can neither confirm nor deny the existence of responsive records. Contra Pl's Opp. at 22 n.12. The courts have held, in various contexts, that the "disclosure of a similar type of information in a different case does not mean that the agency must make its disclosure in every case." See Salisbury v. United States, 690 F.2d 966, 971 (D.C. Cir. 1982). The government will be held to have waived its basis for withholding records or information only where the precise information sought to be protected has already been officially disclosed. This is true in relation to both the presidential communications privilege and the right to make a Glomar response. The Court of Appeals has held, for example, that a discretionary disclosure of material protected by the presidential communications privilege does not waive the privilege as to other, related materials. See In re Sealed Case, 121 F.3d at 741 ("This limited

In the same vein, plaintiff asserts that defendant is not justified in 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.” Pl. Opp. at 23 (emphasis in original). Plaintiff correctly notes that defendant’s Glomar argument here applies to all categories of records including, for example, handwritten access logs for an EOP office building outside the grounds of the White House Complex, hit reports and watch commander journals, and SSF 1888s. Nonetheless, plaintiff offers no principled basis for Glomar’s application to some categories of records reflecting visits, but not others. 6

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approach to waiver in the executive privilege context is designed to ensure that agencies do not forego voluntarily disclosing some privileged material out of the fear that by doing so they are exposing other, more sensitive documents."). And in relation to the making of a Glomar response, the court has held that an official acknowledgment of records regarding a particular individual prevents the agency from "neither confirming nor denying" the existence of the specific records referred to in the acknowledgment, but does not foreclose making a Glomar response in relation to the existence (or non-existence) of any other records regarding the same individual. See Wolf v. CIA, 473 F.3d 370, 378-80 (D.C. Cir. 2007); see also Nation Magazine, 71 F.3d at 894 n.8 (noting that a person identified in a government record would waive "his right to a Glomar response" by publicly disclosing the "very things" contained in the record) (emphasis added). C. Formal Invocation of the Privilege Is Not Required Under the Freedom of Information Act.

In addition to its arguments on the merits, plaintiff asserts that defendant must submit a "formal invocation" of the presidential communications privilege in a declaration by the President or "someone acting on [his] behalf." See Pl's Opp. at 18-20. Aside from whether that is true in the civil discovery context, it is not correct in the context of this FOIA case. The Supreme Court has held that Exemption 5 applies to records that "fall within the ambit of a privilege" such that they would not be "routinely" or "normally" discoverable in civil litigation. See Department of the Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8-12 & nn.2, 3 (2001). "These principles create a divide between the rules of FOIA and civil discovery." Lardner v. Department of Justice, No. Civ.A.03-0180(JDB), 2005 WL 758267, at *6 (D.D.C. Mar. 31,

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2005). The applicability of Exemption 5 turns on "the content or nature of a document generally," not on "the manner in which the exemption is raised." Id. at *7 (emphasis in original). Thus, this Court has expressly rejected the argument that the President (or someone acting for him) must invoke the presidential communications privilege in the context of FOIA. In Electronic Privacy Information Center v. Department of Justice, for example, the defendant submitted its own declarations explaining the connection of certain records to the President, but no declaration from the White House Office invoking the privilege. See ___ F. Supp. 2d ___, 2008 WL 4757163 (D.D.C. 2008). The Court stated: [The Department of Justice] asserts that the presidential communications privilege applies to [the records at issue]. [Plaintiff] contends that DOJ cannot invoke this privilege because it must be personally invoked by the President. . . . DOJ rejoins that in the FOIA context, the presidential communications privilege does not need to be invoked by the President himself. . . . DOJ has the better argument. . . . There is no indication in the text of FOIA that the decision to withhold documents pursuant to Exemption 5 must be made by the President. Id. at *10-11; accord Loving v. Department of Defense, 496 F. Supp. 2d 101, 108 (D.D.C. 2007) (Department of Defense declarations); Lardner, 2005 WL 758267, at *6-10 (Department of Justice declarations). As this Court has noted in rejecting the same argument in another FOIA case, "[a]n agency does not invoke a privilege against discovery when it withholds a document under one of the exemptions, because there is no discovery to resist. Instead, the agency simply makes the determination that a statutory provision protects the documents from disclosure, and withholds the documents on that ground." Lardner, id. at *8.

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CONCLUSION For the foregoing reasons, this Court should grant defendant’s motion for summary judgment and deny plaintiff’s cross-motion for summary judgment.

Dated: December 15, 2008 Respectfully submitted, GREGORY G. KATSAS Assistant Attorney General 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

DEFENDANTS' RESPONSE TO PLAINTIFF'S STATEMENT OF MATERIAL FACTS NOT IN DISPUTE 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 response to Plaintiff's Statement of Material Facts Not in Dispute, in correspondingly numbered paragraphs: 1. To the extent plaintiff refers to this Court’s decision in Citizens for Responsibility

and Ethics in Washington v. U.S. Department of Homeland Security, 527 F. Supp. 2d 76 (D.D.C. 2007) (“CREW 2"), defendant disputes that the Court’s decision or any legal conclusions therein constitute a material fact or facts. To the extent a response is required, defendant disputes any implication that it does not have a policy of transferring WAVES records to the White House Office of Records Management (“WHORM”). Since at least 2001, it has been the practice of the Secret Service to transfer newly-generated WAVES records on CD-ROM to the WHORM every 30 to 60 days. See Third Declaration of Paul S. Morrissey, Deputy Assistant Director, United

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States Secret Service (“Third Morrissey Decl.”) ¶ 18 (Dkt. No. 9-2); Declaration of Philip C. Droege (“Droege Decl.”) ¶ 9 (Dkt. No. 9-6); Declaration of Clare M. O’Donnell, Assistant to the Vice President and Deputy Chief of Staff, Office of the Vice President (“O’Donnell Decl.”) ¶ 14 (Dkt. No. 9-7). Defendant does not dispute that the Secret Service has not always transferred the entire WAVES record to the WHORM. See Third Morrissey Decl. ¶¶ 18, 19. It does not appear that all of the fields of the WHACS tables from which WAVES and ACRs appear to be drawn are transferred to the CD-ROMs. See Fifth Declaration of Paul S. Morrissey, Deputy Assistant Director, United States Secret Service (“Fifth Morrissey Decl.”) ¶ 10 (Dkt. No. 9-4). 2. To the extent plaintiff refers to this Court’s decision in CREW 2, defendant denies

that the Court’s decision or any legal conclusions therein constitute a material fact or facts. To the extent a response is required, defendant disputes any implication that it does not have a policy for transferring ACRs to the WHORM, and denies that any recognition and agreement between the Secret Service and the White House that ACR records should be treated in a manner generally consistent with the treatment of WAVES records was “purported.” See Third Morrissey Decl. ¶ 22. Defendant admits that the Secret Service did not begin transferring ACR records to the WHORM until May 2006. Id. 3. To the extent plaintiff refers to this Court’s decision in CREW 2, defendant denies

that the Court’s decision or any legal conclusions therein constitute a material fact or facts. To the extent a response is required, defendant does not dispute that it is the “creator” or “generator” of the “United States Secret Service White House Complex Daily Briefing Sheets” and “Name Check Reports,” and does not dispute that it is, at least nominally, the “creator” or “generator” of “Visitor Multiple Entry Reports,” but disputes that it is the “creator” or “generator” as a matter of 2

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law of any of the other visitor records which defendant contends are presidential or vice presidential records, for either the White House Complex or the Vice Presidential Residence. See generally Defendant’s Statement of Material Facts As To Which There Is No Genuine Issue ¶¶ 5-9; 17-18; 28-37 (Dkt. No. 9, filed 11/24/2008). 4. To the extent plaintiff refers to this Court’s decision in CREW 2, defendant denies

that the Court’s decision or any legal conclusions therein constitute a material fact or facts. To the extent a response is required, defendant disputes that visitor information is transferred to the Secret Service “haphazardly at times,” and disputes that there is no confidentiality limitation on the Secret Service’s use of visitor records. See Droege Decl. ¶ 5; O’Donnell Decl. ¶ 21; Third Morrissey Decl. Ex. B. Defendant refers generally to its Statement of Material Facts As To Which There Is No Genuine Issue, which sets forth the basis and procedures by which visitor information is transferred to the Secret Service. Defendant admits that visitor information is provided to the Secret Service in more than one form and by more than one individual. 5. To the extent plaintiff refers to this Court’s decision in CREW 2, defendant denies

that the Court’s decision or any legal conclusions therein constitute a material fact or facts. Moreover, the assertion that “White House visitor records are under the control of the Secret Service” is a legal conclusion, not a material fact. To the extent a response is required, defendant disputes that those White House visitor records which defendant contends are presidential records are under the legal control of the Secret Service, and refers to its Statement of Material Facts As To Which There Is No Genuine Issue, which sets forth that the Secret Service does not control these White House visitor records. See also Third Morrissey Decl. ¶¶ 18, 21, 37 & Ex. B; Droege Decl. ¶¶ 5, 11-13; O’Donnell Decl. ¶¶ 7-9, 13-15. 3

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6.

To the extent plaintiff refers to this Court’s decision in CREW 2, defendant denies

that the Court’s decision or any legal conclusions therein constitute a material fact or facts. Moreover, the assertion that “[t]he Secret Service’s past practices do not demonstrate a clear intent to relinquish control over all the White House records, particularly ACR records,” is a legal conclusion, not a material fact. To the extent a response is required, defendant disputes plaintiff’s statement, and refers to its Statement of Material Facts As To Which There Is No Genuine Issue. See also Third Morrissey Decl. ¶¶ 18, 21-22, 37 & Ex. B; Droege Decl. ¶¶ 5, 1113; O’Donnell Decl. ¶¶ 7-9, 13-15. 7. To the extent plaintiff refers to this Court’s decision in CREW 2, defendant denies

that the Court’s decision or any legal conclusions therein constitute a material fact or facts. Moreover, the assertion that “[t]he 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,” is a legal conclusion, not a material fact. To the extent a response is required, defendant disputes plaintiff’s statement, and refers to its Statement of Material Facts As To Which There Is No Genuine Issue. See also Third Morrissey Decl. ¶¶ 18, 21-22, 24, 37 & Ex. B; Droege Decl. ¶¶ 11-13. 8. To the extent plaintiff refers to this Court’s decision in CREW 2, defendant denies

that the Court’s decision or any legal conclusions therein constitute a material fact or facts. To the extent a response is required, defendant disputes that it “creates,” as a matter of law, most visitor records potentially at issue in this case, see paragraph 3, supra, but admits that the Secret Service uses the information provided to perform background checks and to verify admissibility. See Third Morrissey Decl. ¶¶ 12, 32, 33. 4

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9.

To the extent plaintiff refers to this Court’s decision in CREW 2, defendant denies

that the Court’s decision or any legal conclusions therein constitute a material fact or facts. To the extent a response is required, defendant admits that the Secret Service did not transfer the ACRs to the WHORM until May 2006, when it transferred them en masse covering the period from 12:00 p.m. on January 20, 2001 to April 30, 2006. See Third Morrissey Decl. ¶ 22. It does not appear that all of the fields on all of the WHACS tables from which WAVES and ACRs appear to be drawn are transferred. See Fifth Morrissey Decl. ¶ 10. 10. To the extent plaintiff refers to this Court’s decision in CREW 2, defendant denies

that the Court’s decision or any legal conclusions therein constitute a material fact or facts. To the extent a response is required, defendant admits the statements in this paragraph, except notes that it possesses certain records in these categories that pre-date June 2006, and has since transferred to the Office of the Vice President all permanent access lists, daily access lists, electronic copies of data from its access list database, and requests for access (while retaining copies due to pending litigation and FOIA requests). See Third Morrissey Decl. ¶¶ 39-40 & n.2; Caldwell Decl. ¶ 4. 11. To the extent plaintiff refers to this Court’s decision in CREW 2, defendant denies

that the Court’s decision or any legal conclusions therein constitute a material fact or facts. To the extent a response is required, defendant admits that the Secret Service uses visitor records in its efforts to protect the President and Vice President and admits that those records are relevant to the Secret Service’s protective mission, but denies that all visitor records are created for that purpose, and further denies that the Secret Service uses Visitor Multiple Entry Reports. See, e.g., Second Caldwell Decl. ¶¶ 3-4, 7; Fourth Morrissey Decl. ¶ 4. 5

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12.

To the extent plaintiff refers to this Court’s decision in CREW 2, defendant denies

that the Court’s decision or any legal conclusions therein constitute a material fact or facts. To the extent a response is required, defendant disputes that White House Complex visitor records are integrated into the Secret Service’s record system (though defendant acknowledges that certain WAVES and ACR data/records have been retained and are stored on the Secret Service’s computer system and its servers). See Third Morrissey Decl. ¶¶ 18-20, 22; Fifth Morrissey Decl. ¶ 10; Droege Decl. ¶ 9, 14. 13. To the extent plaintiff refers to this Court’s decision in CREW 2, defendant denies

that the Court’s decision or any legal conclusions therein constitute a material fact or facts. To the extent a response is required, defendant admits that it has retained at least some of the records pertaining to visits to the Vice Presidential Residence, including daily access lists. 14. To the extent plaintiff refers to this Court’s decision in CREW 2, defendant denies

that the Court’s decision or any legal conclusions therein constitute a material fact or facts. To the extent a response is required, defendant does not dispute that (1) in many if not most cases, the precise purpose of a visitor’s (i.e., a non-worker’s) visit to the White House Complex or the Vice Presidential Residence is not apparent from the face of the documents, nor is the relationship of the visitor to the President or Vice President, Presidential or Vice Presidential staff, or any outside organization, and (2) defendant does not dispute that some of the information in WAVES records is personal identifying information about proposed visitors. 15. To the extent plaintiff refers to this Court’s decision in CREW 2, defendant denies

that the Court’s decision or any legal conclusions therein constitute a material fact or facts. To the extent a response is required, defendant does not dispute that documents generated by visits 6

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to the White House Complex and Vice Presidential Residence would relate to individuals visiting for a variety of purposes. Defendant admits that knowledge of these visitors would not disclose the substance of presidential communications, but disputes that knowledge of these visitors would not “shine a light on the president’s or vice president’s policy deliberations.” 16. 17. Admitted. To the extent plaintiff refers this Court to the Worldwide Strategic Partners

Corporate Profile, defendant admits that plaintiff has attached that document to its filings, but denies that any of the information contained therein or referenced in Paragraph 17 of its Statement of Material Facts As To Which There Is No Genuine Issue constitute a material fact or facts. 18. To the extent plaintiff refers this Court to a newspaper article in the Times of

London, defendant admits that plaintiff has attached that document to its filings, but denies that any of the information contained therein or referenced in Paragraph 18 of its Statement of Material Facts As To Which There Is No Genuine Issue constitute a material fact or facts. 19. 20. Admitted. Admitted, but defendant denies that submitting a declaration in this litigation

formally invoking the presidential communications privilege is necessary. 21. Admitted.

7

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Dated: December 15, 2008 Respectfully submitted, GREGORY G. KATSAS Assistant Attorney General 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, et al., Defendants.

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

CIVIL ACTION NO. 1:06-cv-01912-JGP

REPLY MEMORANDUM IN SUPPORT OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

PETER D. KEISLER Assistant Attorney General CARL J. NICHOLS Deputy Assistant Attorney General JEFFREY A. TAYLOR United States Attorney ELIZABETH J. SHAPIRO, D.C. Bar 418925 Assistant Director JOHN R. TYLER, D.C. Bar 297713 Senior Trial Counsel W. SCOTT SIMPSON, Va. Bar 27487 Senior Trial Counsel COUNSEL FOR DEFENDANTS

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TABLE OF CONTENTS

INTRODUCTION .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

I.

White House and VPR Visitor Records Are Not "Agency Records" Subject to the Freedom of Information Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 A. All Relevant Factors Establish that These Are Not "Agency Records" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 1. The President and Vice President Have a Major Role in Creating the Subject Records. . . . . . . . . . . . . . . . . . . . . . . 4 The Secret Service Intends to (and Does) Disclaim Any "Control" Over the Subject Visitor Records . . . . . . . . . . . . . . 6 The Secret Service Lacks Disposal Authority Over the Subject Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 The "Extent to Which" the Secret Service Relies on These Records Is Limited Both Temporally and Functionally.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 The Subject Visitor Records Are Not Integrated into Secret Service Record Systems. . . . . . . . . . . . . . . . . . . . . . . . . . . 14

2.

3.

4.

5.

B.

Alternatively, the FOIA Must Be Construed as Not Reaching the Subject Records in Order to Avoid Serious Questions as to Its Constitutionality. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

II.

Because the Subject Records Are Presidential Records Under the PRA, They Are Also Not Federal Records Under the Federal Records Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

III.

No Discovery Is Needed or Appropriate Here. . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

CONCLUSION .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

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INTRODUCTION Under all of the governing law and circumstances, the types of records of visitors to the White House Complex and the Vice President's Residence ("VPR") at issue here are not "agency records" under the Freedom of Information Act ("FOIA"). Presidential and Vice Presidential staff have a very significant role in the creation of these records, which are under the "control" of the White House and the Office of the Vice President ("OVP") rather than the Secret Service. All three entities recognize that the White House and OVP control the records, and they exercise that control by directing their handling and disposition and by taking permanent possession of the records. Plaintiff's own arguments illustrate another reason why these are Presidential and Vice Presidential records. It contends, on the one hand, that the records should be disclosed because of the President's "pivotal role" as the head of the Executive Branch; the records, plaintiff argues, are "likely to shed light" on the influence of certain third parties on the President. See Plaintiff's Opposition to Defendants' Motion for Summary Judgment 3-4, 25 (docket #35) [hereinafter Pl's Opp.]. But plaintiff also contends, on the other hand, that a FOIA requester's purpose in seeking records is "not relevant" to their disclosability under that statute. Id. at 25. Plaintiff cannot have it both ways: If the records are valuable because of what they show about the Presidency or Vice Presidency rather than an agency, that fact (with which defendants agree) would tend to show that they are Presidential and Vice Presidential records rather than agency records. Although FOIA was "enacted to open up [federal agencies] to the light of public scrutiny," id., it was emphatically not enacted to open the Presidency and Vice Presidency to such scrutiny; that task is left to the Presidential Records Act ("PRA").

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Notwithstanding the contrary rhetoric of plaintiff and proposed amici, the foregoing does not mean that the subject visitor records are in danger of destruction or will be "shield[ed] from public view." Id. Rather, the question here is essentially one of timing: that is, whether these records will immediately be subject to disclosure under the FOIA, or will be made available for disclosure, pursuant to the PRA, no sooner than five years after the President and Vice President leave office. 44 U.S.C. § 2204(b)(2), (c)(1). Similarly, defendants' arguments are based on the circumstances regarding the records at issue here; defendants do not argue — and their arguments cannot reasonably be understood as meaning — that "any record that in any way involves the President or Vice President . . . is a presidential record." See Amicus Curiae Brief of Judicial Watch, Inc. in Support of Plaintiff at 11 (docket #36) [hereinafter Judicial Watch Amicus Brief]; see also Memorandum of National Security Archive, as Amicus Curiae, in Support of Plaintiff at 10 (docket #37) [hereinafter National Sec. Archive Amicus Brief].1 Based on "all of the circumstances" regarding the records in question, plaintiff's challenge under the FOIA should be dismissed. See United We Stand America, Inc. v. IRS, 359 F.3d 595, 600 (D.C. Cir. 2004). Moreover, as plaintiff is admittedly able to oppose defendant's motion for summary judgment on the record now before the Court, the unusual recourse to discovery sought by the plaintiff would be inappropriate.2

Besides addressing plaintiff's opposition memorandum, this reply responds, as necessary, to the briefs submitted by proposed amici curiae Judicial Watch and National Security Archive. In addition to arguing the issues addressed herein, defendants' motion for summary judgment explains why nineteen pages of responsive Secret Service records are covered by certain FOIA exemptions. Plaintiff expressly concedes the propriety of these withholdings, which will not, therefore, be discussed in this reply. See Pl's Opp. at 3. 2
2

1

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ARGUMENT I. White House and VPR Visitor Records Are Not "Agency Records" Subject to the Freedom of Information Act A. All Relevant Factors Establish that These Are Not "Agency Records"

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). 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).3 While acknowledging that the D.C. Circuit "uses" these four factors in "determining agency control," plaintiff argues that U.S. Department of Justice v. Tax Analysts, 492 U.S. 136 (1989), and United We Stand America, Inc. v. IRS, 359 F.3d 595 (D.C. Cir. 2004), somehow call into question the applicability of some of these factors, at least where the materials at issue "[came] into the agency's possession in the legitimate conduct of its official duties." See Pl's Opp. at 15, 17. Both the D.C. Circuit and this Court, however, continue to rely on all four factors of this test. See Burka v. U.S. Dep't of Health & Human Servs., 87 F.3d 508, 515 (D.C. Cir. 1996) (fact that agency would be "tak[ing] physical possession of the [records] at the conclusion of the project" was only one of several factors considered); Summers v. U.S. Dep't of Justice, Civil Action No. 97-1715 (EGS), 2007 WL 1541402, at *9 (D.D.C. May 24, 2007) ("To determine control, the Court must undertake a fact-based inquiry to discern, based upon the totality of the circumstances, who intended to control the records in question."); Washington Post v. Department of Homeland Sec., 459 F. Supp. 2d 61, 70 (D.D.C. 2006) ("court must balance four factors under a totality of the circumstances test"). Plaintiff's singular reliance on an agency's (continued...) 3
3

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Under these principles, the White House and VPR visitor records involved here are not "agency records" subject to the FOIA. Presidential and Vice Presidential personnel have a major role in creating the records, and all four of the D.C. Circuit's factors in analyzing "control" require a finding that the Secret Service lacks sufficient control to classify them as "agency records." 1. The President and Vice President Have a Major Role in Creating the Subject Records

Resolution of the first overall requirement — that the records be "created or obtained by an agency" — is not nearly as straightforward in this case as the plaintiff pretends. Plaintiff vastly understates the role of Presidential and Vice Presidential personnel in creating records of visitors to the White House Complex and VPR — asserting, for example, that the White House, "at most . . . provided some information that led to and was incorporated into the records." See Pl's Opp. at 22 (emphasis added); see also id. at 13, 16. In truth, 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. See id. at 3-4. Indeed, the Presidential and Vice Presidential role in the creation of these records is a necessary product of those officers' statutory direction to accept protection from the Secret Service, extending to the places where they live and work. 18 U.S.C. §§ 3056(a), 3056A(a).

(...continued) "possession" of a record "in the legitimate conduct of its official duties" is also refuted by United We Stand itself. The IRS had received, in the conduct of its official duties, the congressional request that prompted the letter at issue there, but that did not make the request an agency record; indeed, the court held that although the IRS letter was an agency record, those portions of the letter "that would reveal the congressional request" were not. 359 F.3d at 596. 4

3

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Thus, in scheduling a visit at the White House Complex, an authorized pass holder gives the Secret Service, among other information, the name, date of birth, and Social Security number of the visitor; the name of the person to be visited; the time and location of the visit; and the name of the official or employee submitting the request. See Third Declaration of Paul S. Morrissey, Deputy Assistant Director, United States Secret Service ¶ 10 (May 23, 2007) (Attachment 1 to docket #29) [hereinafter Third Morrissey Decl.]. In fact, Presidential and Vice Presidential personnel usually provide this information electronically, by entering it themselves into a computer terminal, which automatically transmits it to the Secret Service. Id. ¶ 11. That information then becomes the bulk of a Worker and Visitor Entrance System ("WAVES") record, which is typically updated electronically later to reflect the times of the visitor's entry and exit. Id. ¶¶ 11, 15. The way in which these visitor records are created differs significantly from the creation of records involved in other "agency records" cases. For example, Presidential and Vice Presidential personnel have a much greater role in creating WAVES records than the congressional committee had in creating the IRS letter involved in United We Stand America, Inc. v. IRS, on which plaintiff relies. 359 F.3d 595 (D.C. Cir. 2004) [hereinafter United We Stand].4 Indeed, Plaintiff's reliance on Paisley v. CIA in this regard is also misplaced. See Pl's Opp. at 23. Paisley involved records of the CIA and FBI reflecting their investigations into the death of a former CIA officer. 712 F.2d 686, 689 (D.C. Cir. 1983). Defendants contended that the records were congressional because a congressional committee had asked the FBI to undertake the investigation; the defendants argued, therefore, that the records were "intimately related to a congressional investigation and may well have not been created but for Congress' investigation of the Paisley death." Id. at 695-96. The court rejected that contention, noting that most of the records were, in fact, "internal agency memoranda about the Paisley investigation and notations of meetings or phone calls between CIA and [congressional] personnel or among CIA personnel alone." Id. at 695. It was in that context that the court said the records were "clearly categorizable as agency records." Id. at 696. This case, in contrast, presents much more than a mere possibility that a body of records "may well have not been created but for" the action of a (continued...) 5
4

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the D.C. Circuit's conclusion in United We Stand that "those portions of the [IRS letter] that would reveal the [congressional] request are congressional documents not subject to FOIA," id. 602-03, suggests that FOIA does not apply to any material in a record that reveals information provided by a non-FOIA entity under a reservation of control — which, in relation to this case, would include the name of the visitor, the date of the visit, and who was visited. At the very least, given that the D.C. Circuit analyzes "agency records" issues based on "all of the circumstances," id. at 600, any uncertainties regarding whether a given set of records was "created" by an agency should simply be weighed with other factors in resolving the issue.5 2. The Secret Service Intends to (and Does) Disclaim Any "Control" Over the Subject Visitor Records

Plaintiff does not address at all the first factor in the appellate court's analysis: the Secret Service's intent to "retain or relinquish" whatever "control" it may ever have over visitor records. See Tax Analysts, 845 F.2d at 1069. The primacy of this factor is reflected in United We Stand, where 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

(...continued) non-FOIA entity. Rather, the creation of each record involved here was occasioned by the transmission of visitor information by a White House pass holder or Vice Presidential personnel at the VPR. Unlike the records in Paisley, moreover, these records reflect primarily Presidential and Vice Presidential business, not agency business. The alarmist warnings of both of the proposed amici, regarding the purported ramifications of a judgment for the defendants, are somewhat puzzling in light of their own emphasis on the D.C. Circuit's "totality of the circumstances" approach to agency records issues. See National Sec. Archive Amicus Brief at 7, 8, 13; Judicial Watch Amicus Brief at 5. That Presidential and Vice Presidential personnel have a major role in creating the subject records is only one of many circumstances leading to the conclusion that they are not agency records. Thus, defendants' argument does not compel or suggest a conclusion that all records "created as the result of external prompts" or reflecting an "exchange of information" with the White House are beyond the reach of FOIA. See National Sec. Archive Amicus Brief at 10, 12-13. 6
5

4

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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 at 600 (emphasis added) (quoting Paisley v. CIA, 712 F.2d 686, 693 (D.C. Cir. 1983)).6 Plaintiff's omission of the "intent to control" factor is not surprising, for this factor requires finding that these records are Presidential and Vice Presidential. The Secret Service disclaims any interest in the key records involved here, after a visitor's visit is complete, sufficient to justify preserving or retaining them (other than materials of protective interest, such as records resulting from background checks). See Third Morrissey Decl. ¶¶ 18, 21-22, 24, 37, 3942 & Ex. B. In contrast, the agency recognizes that such records are under the exclusive legal control of the President and Vice President; that recognition has been acknowledged both by the Deputy Assistant Director of the Secret Service's Office of Protective Operations, in his declaration for this case, and by the Secret Service's Chief Records Officer, in the Memorandum of Understanding ("MOU") between the agency and the White House Office of Records Management ("WHORM"). Id. ¶¶ 18, 21-22, 37, 42 & Exs. B & D.7
6

The court's observation that the "control" factor "reflects the considerations that underlie" the "use" factor, see Judicial Watch Amicus Brief at 6 n.6 (quoting 359 F.2d at 600), does not undercut the court's statements regarding the importance of the "control" factor. The MOU between the Secret Service and the WHORM is entirely unlike the agreement between the Archivist and former President Bush in American Historical Association v. Peterson. See National Sec. Archive Amicus Brief at 17; Judicial Watch Amicus Brief at 8. The court held that the agreement in that case directly contradicted the PRA in several significant respects, such as by stating that the former President would retain "exclusive legal control of all Presidential Information" in certain electronic records. See 876 F. Supp. 1300, 1318-20 (D.D.C. 1995). Compare 44 U.S.C. § 2202 ("The United States shall reserve and retain complete ownership, possession, and control of Presidential records . . . ."). The MOU involved here, by contrast, simply reflects the "understanding" and intent of the Secret Service and the WHORM regarding the handling of visitor records. Similarly, the memorandum of understanding addressed in Allen v. Department of Defense purported to prevent disclosure of certain agency records for up to thirty years, 580 F. Supp. 74, 77 (D.D.C. 1983); see National Sec. Archive Amicus Brief at 19, (continued...) 7
7

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Moreover, the Secret Service's conduct also reflects its "intent [to] relinquish" whatever "control" it might have over visitor records. See Tax Analysts, 845 F.2d at 1069. 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. See Third Morrissey Decl. ¶ 18; Declaration of Philip C. Droege ¶ 9 (May 23, 2007) (Attachment 2 to docket #29) [hereinafter Droege Decl.]; Declaration of Claire M. O'Donnell, Assistant to the Vice President and Deputy Chief of Staff, Office of the Vice President ¶ 14 (May 23, 2007) (Attachment 3 to docket #29) [hereinafter O'Donnell Decl.]. Access Control Records System ("ACR") records, reflecting actual entry into and exit from the White House Complex, are also transferred to the WHORM. See Third Morrissey Decl. ¶ 22; see id. ¶ 24 (transfer of paper records). 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.8 Id. ¶¶ 33, 37;
7

(...continued) whereas handling the visitor records involved here as Presidential and Vice Presidential records would make them available to FOIA requesters within the time periods provided by the PRA. These facts amply refute the assertion by plaintiff and proposed amici curiae that the MOU and the September 13, 2006, letter from the Vice President's Counsel to the Secret Service Chief Counsel were created for purposes of litigation in an attempt to "change the legal status" of the subject records. See Pl's Opp. at 24; see also National Sec. Archive Amicus Brief at 5, 17-20 & n.28; Judicial Watch Amicus Brief at 7-8. The records involved here are Presidential and Vice Presidential records, not simply because of the MOU and the OVP letter, but because of "all of the circumstances." United We Stand, 359 F.3d at 600. Also, both the MOU and the OVP letter actually pre-dated the commencement of this litigation, and even the submission of plaintiff's FOIA request. In any event, plaintiff cannot seriously contend that the existence of litigation related to the control of records freezes the government's ability to address those issues internally. Such a rule would handcuff the government's ability to address any policy or administrative matter once a lawsuit had been filed. See National Ass'n of Home Builders v. Defenders of Wildlife, 127 S. Ct. 2518, 2537-38 (2007) (deferring to agency letters issued after commencement of litigation); see also Auer v. Robbins, 519 U.S. 452, 462-63 (1997) (deferring to federal agency interpretation of regulation first stated in amicus brief in Supreme Court). Furthermore, the erstwhile continuation of discussions about the legal issues within the Executive Branch, see (continued...) 8
8

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O'Donnell Decl. ¶ 18. More recently, the same procedure is followed with respect to other records of visitors to the VPR. See Third Morrissey Decl. ¶¶ 39-41. While acknowledging that the Secret Service "may not have a continuing interest in retaining the records" in question, see Pl's Opp. at 2, plaintiff asserts that that fact is irrelevant to their legal status. But this contention directly contradicts controlling precedent. See Tax Analysts, 845 F.2d at 1069. It is precisely because the Secret Service has no continuing interest in the records sufficient to justify their retention that the agency intends to "relinquish" possession of them to the President and Vice President. 3. The Secret Service Lacks Disposal Authority Over the Subject Records

The undisputed record in this case also establishes that the Secret Service lacks authority to "dispose of [White House and VPR visitor] record[s] as it sees fit." See Tax Analysts, 845 F.2d at 1069. Since WAVES records, ACR records, and VPR visitor records are under the exclusive legal control of the President and Vice President, see Third Morrissey Decl. ¶¶ 18, 21-22, 37, 42 & Exs. B & D; Droege Decl. ¶¶ 8-13; O'Donnell Decl. ¶¶ 7-9, 13-15, the Secret Service necessarily lacks unilateral disposal authority over them. Moreover, as noted above, the Secret Service does not dispose of these records after use — notwithstanding its lack of continuing interest in them sufficient to justify their preservation — but rather transfers them to the White House Office of Records Management and to the OVP. See Third Morrissey Decl. ¶¶ 18, 22, 37, 39-41; Droege Decl. ¶ 9; O'Donnell Decl. ¶¶ 14, 18.

(...continued) Pl's Opp. at 24 n.15, does not change or override the facts as to the treatment of visitor records, as described in the declarations submitted with defendants' motion for summary judgment. 9

8

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Plaintiff's arguments on this factor do not suggest any independent disposal authority on the part of the Secret Service. First, plaintiff cannot rely on the fact that the agency's intent is to dispose of its copy of visitor records after transferring them to the WHORM or the OVP. See Pl's Opp. at 17; see also Judicial Watch Amicus Brief at 7. In this day of rapid document photocopying and nearly ubiquitous electronic records, there will almost always be additional copies of a record, presenting an issue as to the disposition of such copies after the "original" reaches its final destination. Presidential and Vice Presidential personnel are aware of the Secret Service's intent to dispose of its copies of visitor records after transfer, which does not, therefore, suggest any independent authority on the part of the Secret Service. See Third Morrissey Decl. ¶ 21 & Ex. B; Droege Decl. ¶¶ 9, 11 & Ex. A; O'Donnell Decl. ¶ 20 & Ex. A.9 Nor can plaintiff rely on the fact that the Secret Service currently retains its copies of visitor records, in deference to the courts in light of pending litigation and FOIA requests. See Third Morrissey Decl. ¶¶ 19, 20, 22, 24, 39-41. Plaintiff ignores the fact that this temporary retention of records is occurring with the approval of the White House Office and the Office of the Vice President. Id. ¶¶ 26, 44. Moreover, the Secret Service is currently following this temporary practice only to accommodate pending litigation and FOIA requests and to permit this Court (and other courts) to resolve the issues before it; this practice does not reflect the long-term intent of the Secret Service and the President and Vice President with respect to the records. Id. ¶¶ 18-20, 22, 24, 39-41. Further, plaintiff's reliance on the temporary retention of copies of such records is strikingly inappropriate given that the plaintiff has sought, in this very action, to

Contrary to plaintiff's argument, no Secret Service declaration has "explained" that the agency's destruction of its copies of visitor records has "not [occurred] at the request or directive of the White House." See Pl's Opp. at 17. The declaration cited by the plaintiff is simply silent as to any White House direction. 10

9

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compel the Secret Service to refrain from transferring any potentially responsive records to the White House without retaining a copy. See Plaintiff’s Motion for a Temporary Restraining Order, Feb. 15, 2007 (docket #12). Next, plaintiff recites the fact that the Secret Service has previously submitted proposed disposition schedules covering visitor records to the National Archives and Records Administration. See Pl's Opp. at 18. Nothing in those proposed schedules, however, contradicts anything in the declarations submitted on defendants' behalf in this case, or otherwise suggests that the Secret Service actually had disposal authority. The proposed schedules were submitted in 1990, 1993, and 1996. Id., Ex. 4. In contrast, the Secret Service's declaration regarding the status of visitor records states that the agency's practice of transferring WAVES records to the WHORM has existed "[s]ince at least 2001," and that the practice of transferring VPR post entry logs to the OVP has existed "[s]ince 2001." See Third Morrissey Decl. ¶¶ 18, 37. In any event, plaintiff's argument ignores the fact that the Archivist, not the recordholding agency, promulgates a final schedule. 44 U.S.C. §§ 3303, 3303a; 36 C.F.R. §§ 1228.20, 1228.22, 1228.24. Only at that point is an agency authorized to dispose of records. 44 U.S.C. § 3314; 36 C.F.R. §§ 1228.20, 1228.26. Specifically in relation to this case, the proposed Secret Service schedules filed with plaintiff's opposition are marked as "WITHDRAWN." See Pl's Opp., Ex. 4. Finally, plaintiff and proposed amicus Judicial Watch rely on the fact that the Secret Service has, at times, disclosed certain visitor records in other cases. See id. at 18-19; see also id. at 5 n.3; Judicial Watch Amicus Brief at 3–4, 7, 8, 12-13. Prior disclosures of visitor records in recent litigation have occurred, however, with the express authorization of the Office of the

11

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President and the Office of the Vice President. See Third Morrissey Decl. ¶ 23.10 Additionally, in disclosing visitor records in Judicial Watch v. U.S. Secret Service, on which plaintiff and proposed amicus place special reliance, see Pl's Opp. at 5 n.3, 19, the Secret Service stated, through counsel, that the production was not a concession as to the status of the records. See Pl's Mo. to Compel, Judicial Watch v. U.S. Secret Service, Case No. 1:06-CV-00310 (JGP) (D.D.C.), Ex. 3 (Attachment 1 hereto). In any event, the discretionary release of certain documents in response to a FOIA request does not waive arguments for non-disclosure except as to the very records that are released. See Mobil Oil Corp. v. EPA, 879 F.2d 698, 700 (9th Cir. 1989); see also Armstrong v. Executive Office of the President, 90 F.3d 553, 566 (D.C. Cir. 1996) ("That the NSC . . . voluntarily subjected certain of its records to the FOIA . . . does not reflect any intention to concede, and should not be taken to establish as a matter of law, that the NSC is subject to [the FOIA]."); Mehl v. EPA, 797 F. Supp. 43, 47-49 (D.D.C. 1992) (one asserting waiver of FOIA exemption must show that "the withheld information has already been specifically revealed"). 4. The "Extent to Which" the Secret Service Relies on These Records Is Limited Both Temporally and Functionally

The next factor in the D.C. Circuit's analysis is "the extent to which agency personnel have read or relied upon the document." Tax Analysts, 845 F.2d at 1069. Plaintiff seeks to add a substantive gloss to this factor, arguing that the visitor records constitute agency records because

Plaintiff attempts to dismiss the declarant's statement to this effect on grounds that the declarant lacks personal knowledge. See Pl's Opp. at 19-20 & n.11. In the context of FOIA, however, the declaration of "the most appropriate person to provide a comprehensive affidavit" is acceptable. See, e.g., Brophy v. U.S. Dep't of Defense, No. Civ.A. 05-360 (RMC), 2006 WL 571901, at *4 (D.D.C. Mar. 8, 2006). Where many persons are involved in the agency's "efforts in response to [a] FOIA request," a person coordinating those efforts is an appropriate declarant. Id. 12

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they are "essential to the agency's performance of its statutorily mandated function." See Pl's Opp. at 21. But plaintiff cites no authority for this formulation, and, as far as defendants are aware, there is none. Moreover, plaintiff's assertion contradicts the D.C. Circuit's instruction that an agency's use of a record "alone . . . is not dispositive" of its status. See Bureau of National Affairs, Inc. v. U.S. Dep't of Justice, 742 F.2d 1484, 1492 (D.C. Cir. 1984).11 As properly formulated, this factor also demonstrates that visitor records are Presidential and Vice Presidential records rather than agency records.12 As soon as a visitor leaves the White House Complex or the VPR, the Secret Service has no continuing interest in the corresponding WAVES records, ACR records, paper access requests, or VPR visitor records — other than any information of protective interest, such as records resulting from background checks — sufficient to justify preserving or retaining them. See Third Morrissey Decl. ¶¶ 18, 24, 37, 39-41. In contrast, the President and Vice President have a continuing interest, both operationally and historically, in records reflecting who has visited the White House and the VPR — which is why possession of the records is transferred to the WHORM after the visits to which they relate. Id. ¶¶ 18, 21, 22, 24, 37, 39-42 & Exs. B, D; Droege Decl. ¶¶ 9, 12, 14; O'Donnell Decl. ¶¶ 14, 18, 22. The argument of proposed amicus Judicial Watch that "use is the decisive factor" is based on a misquotation from the D.C. Circuit's decision in Consumer Federation of America v. Department of Agriculture. See Judicial Watch Amicus Brief at 5 n.5. The court did not say that use is always the "decisive factor," but that it was considering four factors — "creation, location/ possession, control, and use" — and that it found "use" to be "the decisive factor here." 455 F.3d 283, 288 (D.C. Cir. 2006) (emphasis added). The D.C. Circuit's decision in Ryan v. Department of Justice, 617 F.2d 781 (D.C. Cir. 1980), is not to the contrary. See National Sec. Archive Amicus Brief at 16. The court there held, not that a record in the possession of an "agency" is necessarily an "agency record" — the proposition for which proposed amicus cites it — but rather that all components of an entity determined to be an "agency" for FOIA purposes will also themselves be "agencies." 617 F.2d at 787-88. 13
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Plaintiff largely ignores the limited degree and duration of the Secret Service's use of visitor records, asserting that the agency "regularly and continuously reads and relies" on this type of record. See Pl's Opp. at 21. Apparently plaintiff believes that because the Secret Service "regularly" uses records of the kind sought here, every record of that kind becomes an agency record, notwithstanding the brief and limited nature of the agency's use of it. But there is no authority for such a concept; moreover, what plaintiff argues is contrary to the scope of FOIA, which permits a requester to seek individual records rather than to control what happens to all records of a particular type. 5. The Subject Visitor Records Are Not Integrated 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. While recognizing that the Secret Service holds visitor records only "in the short term," plaintiff argues that this factor militates in favor of an "agency records" finding because the records are "transferred to the agency's computer servers" and remain there "after the White House visits are concluded." See Pl's Opp. at 20, 21. That the records reside temporarily on the Secret Service's servers does not mean, however, 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

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Memorandum of Understanding regarding visitor 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. Finally, the fact that the Secret Service is now retaining copies of visitor records as an accommodation to the courts — and as the plaintiff itself has sought — should not affect the "agency records" analysis. See Pl's Opp. at 20-21. As noted above, both the White House Office and the Office of the Vice President have specifically approved this temporary retention of Presidential and Vice Presidential records. See Third Morrissey Decl. ¶¶ 26, 44; see also Droege Decl. ¶ 9. Further, plaintiff's theory that retention of electronic records on an "agency's computer servers" makes them agency records cannot apply to WAVES records, see Pl's Opp. at 20, which are purged from the Secret Service's servers after 60 days. See Third Morrissey Decl. ¶ 18. B. Alternatively, the FOIA Must Be Construed as Not Reaching the Subject Records in Order to Avoid Serious Questions as to Its Constitutionality

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." INS v. St. Cyr, 533 U.S. 289, 299300 (2001) (emphasis added). Given the constitutionally based and congressionally recognized need for confidentiality in Presidential and Vice Presidential communications and activities, FOIA must be construed as not reaching the subject records — assuming that were not already clear as a statutory matter. Plaintiff's opposition is most notable for what it does not say on this subject. Plaintiff does not, for example, dispute that a statute susceptible to two interpretations, 15

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one of which would raise "serious constitutional problems" and the other of which would not, must be construed so as to avoid those problems. See id. Nor could the plaintiff dispute this principle, which is well-settled and irrefutable here. Plaintiff simply disagrees that the FOIA can fairly be construed as not reaching the subject records. See Pl's Opp. at 27. That, of course, is the ultimate issue discussed above. Plaintiff also does not dispute the constitutional need for confidentiality in Presidential and Vice Presidential communications and activities. This principle, also, is well-settled and irrefutable here. As the Supreme Court has recognized, "a President's communications and activities encompass a vastly wider range of sensitive material than would be true of any 'ordinary individual.'" United States v. Nixon, 418 U.S. 683, 715 (1974). Thus, for example, as the D.C. Circuit has said, en banc, "separation-of-powers concerns" mandate permitting the President and Vice President, "in 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 Cheney v. U.S. Dist. Ct., 542 U.S. 367, 383, 385 (2004) (recognizing "the Executive Branch's interests in maintaining the autonomy of its office and safeguarding the confidentiality of its communications are implicated"); 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."). In short, "the public interest requires that a coequal branch of Government 'afford Presidential confidentiality the greatest protection consistent with the fair administration of

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justice.'" Cheney v. U.S. Dist. Ct., 542 U.S. at 382 (quoting United States v. Nixon, 418 U.S. at 715).13 These very concerns have led Congress to treat Presidential and Vice Presidential records differently from agency records. In enacting the Presidential Records Act, Congress recognized that "premature disclosure" of the former would 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. 5732, 5739. The courts have recognized, in fact, that any other approach to the disclosure of Presidential and Vice Presidential records 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); see Armstrong v. Bush, 924 F.2d 282, 290 (D.C. Cir. 1991) (noting that Congress "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"). While tacitly (and necessarily) acknowledging these principles, plaintiff nevertheless disagrees that disclosure of the visitor records at issue would "reveal[ ] confidential matters deserving of constitutional protection." See Pl's Opp. at 27. Specifically, plaintiff argues that the records do not contain information whose disclosure would violate Presidential or Vice

Notwithstanding that the Cheney case dealt with discovery rather than a FOIA request, see Judicial Watch Amicus Brief at 13, the courts' acknowledgment of the need for confidentiality in Presidential communications applies in both contexts. Indeed, the discovery sought in Cheney was virtually identical to the information sought through the FOIA request here: documents identifying persons with whom government officials had met in formulating policy. See 542 U.S. at 387. 17

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Presidential confidentiality, because they do not reflect the "purpose of the visits" or the relationship of a visitor to any outside organization. Id. at 27-28.14 Plaintiff understates, however, the harm to Presidential and Vice Presidential decisionmaking that would be caused by the disclosure of visitors' names. The President and Vice President and their staffs necessarily carry out much of their constitutional responsibility by meeting and consulting with visitors. The names of many visitors would reveal — merely because of the visitor's well-known or easily ascertainable occupation and views — the likely subject matter and tenor of the visit, if not its precise "purpose." Thus, 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). Disclosure of the names of economists who visit the White House, for example, could reveal economic initiatives under consideration, thus potentially affecting economic markets regardless of whether any such initiative were ultimately adopted. Likewise, disclosure of the names of judges who visit the White House during a vacancy on the Supreme Court could reveal whom the President is considering for the vacancy, and who was seriously considered but not chosen. And, on the most sensitive national security issues, disclosure of the names of security experts who visit the White House might reveal the kinds of anti-terrorism measures under consideration, by virtue, for example, of the visitor's known area or areas of expertise.

Plaintiff also argues that ACR records do not identify the person being visited within the Complex or who scheduled the visit. See Pl's Opp. at 28. WAVES records do contain that information, however, and plaintiff's FOIA request is not limited to ACR records. 18

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In these and a myriad of other ways, "premature disclosure" of the identity of visitors to the White House Complex and the VPR 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 H.R. Rep. No. 95-1487, at 8, reprinted in 1978 U.S.C.C.A.N. at 5739; Nixon v. Adm'r of Gen. Servs., 433 U.S. at 448-49; In re Cheney, 406 F.3d at 728. Accordingly, assuming the status of the subject records were not so clear as a statutory matter, the FOIA would have to be construed as not reaching them to avoid "serious . . . problems" as to its constitutionality. See St. Cyr, 533 U.S. at 299-300. By the same token, even if these records could be seen as having any characteristics of agency records, they should be construed as non-agency records to avoid the same separation of powers concerns that caused Congress to exclude Presidential and Vice Presidential records from the reach of FOIA. Indeed, plaintiff's own allegations and arguments — in both its complaint and its opposition to summary judgment — illustrate that subjecting White House and VPR visitor records to FOIA, without the delay contemplated by the PRA, would violate the necessary confidentiality of Presidential and Vice Presidential communications. The complaint acknowledges, for example, that visitor records constitute "important historical evidence" and that their disclosure would reveal "the influences to which the Bush administration has been subject." See Complaint ¶¶ 9, 48. Likewise, plaintiff's opposition argues that disclosure of these records would "open up" the Presidency and Vice Presidency "to the light of public scrutiny." See Pl's Opp. at

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25. It is precisely that "public scrutiny" that Congress wished to delay by excepting Presidential and Vice Presidential records from the reach of FOIA.15 II. Because the Subject Records Are Presidential Records Under the PRA, They Are Also Not Federal Records Under the Federal Records Act Plaintiff seems to acknowledge, as it must, that the viability of its claims under the Federal Records Act is coextensive with the viability (or lack thereof) of its claims under the FOIA. See Pl's Opp. at 30. Since the visitor records at issue here are "Presidential records" under the PRA, they are not "agency records" under FOIA, and are necessarily also not "federal" records under the FRA. See Armstrong v. Executive Office of the President, 90 F.3d 553, 556 (D.C. Cir. 1996).16 In arguing that it has standing to challenge the transfer of visitor records to the WHORM notwithstanding their preservation under the PRA, plaintiff asserts that it is challenging the Secret Service's destruction of its own copies of the records after transfer to the White House,

That the PRA expressly applies only to those materials that do not constitute "agency records" under the FOIA, see Pl's Opp. at 29, does not obviate the facts that certain records are, indeed, Presidential and Vice Presidential records rather than agency records, and that Congress intended to delay disclosure of the former until after the incumbents leave office. That provision in the PRA — excluding from the term "Presidential records" any materials that constitute "official records of an agency" under the FOIA — simply prevents the two statutes from overlapping. 44 U.S.C. § 2201(2)(B); see Armstrong v. Executive Office of the President, 1 F.3d 1274, 1292 (D.C. Cir. 1993) (noting that provision was intended to prevent "the potential definitional overlap between agency records under the FOIA and Presidential records under the PRA"). Plaintiff ignores (and thereby apparently concedes) defendants' assertion that the courts should defer to the Executive's designation of the subject records as Presidential or Vice Presidential — assuming their status were not so clear as a statutory matter — since those officers are in a position to know whether the records were "created or received . . . in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President [or Vice President]." See 44 U.S.C. § 2201(2). 20
16

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and that it is harmed by the potential for the President to "dispose of those of his Presidential records that no longer have administrative, historical, informational, or evidentiary value," which neither Congress nor the Archivist can "veto." See Pl's Opp. at 31 & n.21. The destruction of a copy of a set of records, when the originals continue to exist, does not, however, constitute a cognizable injury under Armstrong v. Bush, 924 F.2d 282 (D.C. Cir. 1991). The D.C. Circuit found standing there because "one of the reasons that Congress mandated the creation and preservation of federal and presidential records was to ensure that private researchers and historians would have access to the documentary history of the federal government." Id. at 287. The Archivist's preservation of Presidential and Vice Presidential records under the PRA makes them available to "private researchers and historians." Further, the potential for the President to dispose of records having no "administrative, historical, informational, or evidentiary value," is far too speculative as a basis for standing. III. No Discovery Is Needed or Appropriate Here Plaintiff's own actions in this case defeat its argument that discovery is needed. Rather than invoking Rule 56(f) of the Federal Rules of Civil Procedure by stating in an affidavit why it cannot present "facts essential to justify [its] opposition" to defendants' motion for summary judgment — as a party must do to secure discovery in the face of such a motion — plaintiff has opposed defendants' motion on its merits. See Strang v. United States Arms Control & Disarmament Agency, 864 F.2d 859, 861 (D.C. Cir. 1989) (affirming denial of discovery where plaintiff had failed to "state[ ] concretely" why discovery was needed). Indeed, plaintiff affirmatively argues that "defendants' motion for summary judgment must be denied as unsupported by the current record," thus conceding that discovery is unnecessary to oppose it. See Pl's Opp. at 2-3.

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Even without that concession, discovery would be inappropriate here. In the FOIA context, any request for discovery "must" be denied where the government's declarations are "sufficiently detailed and submitted in good faith." Allen v. U.S. Secret Service, 335 F. Supp. 2d 95, 100 (D.D.C. 2004); see Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978) (court may forgo discovery in FOIA case if affidavits are "relatively detailed and nonconclusory" and "submitted in good faith"), vacated in part on other grounds, 607 F.2d 367 (D.C. Cir. 1979) (per curiam). Even where the supporting declarations are inadequate, "the courts generally will request that the agency supplement" its declarations rather than ordering discovery. Judicial Watch, Inc. v. U.S. Dep't of Justice, 185 F. Supp. 2d 54, 65 (D.D.C. 2002); accord Flowers v. IRS, 307 F. Supp. 2d 60, 68 (D.D.C. 2004) ("Even if an agency's affidavits regarding its search are deficient, courts generally do not grant discovery but instead direct the agency to supplement its affidavits."); see also Nation Magazine v. U.S. Customs Service, 71 F.3d 885, 892 (D.C. Cir. 1995) (directing district court to order agency "to submit further affidavits"). Plaintiff has shown no basis for discovery under these standards. In relation to the completeness of defendants' declarations, plaintiff asserts that the record lacks evidence regarding an internal Executive Branch "debate" regarding the status of White House and VPR visitor records. See Pl's Opp. at 32. But the status of these records under the law depends on the facts surrounding their creation, use, and handling, not on any internal government discussions regarding those facts or regarding the government's position. Plaintiff's only hope can be to find something in the internal discussions that might contradict defendants' declarations, but the plaintiff in a FOIA case may not obtain discovery on "a bare hope of falling upon something that might impugn the [agency's] affidavits." Flowers, 307 F. Supp. 2d at 68 (quoting Military Audit Project v. Casey, 656 F.2d 724, 751-52 (D.C. Cir. 1981)). Plaintiff also asserts that the declarants have 22

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submitted declarations in other, similar cases, "with sometimes critically varying facts," see Pl's Opp. at 32; but plaintiff's opposition does not point specifically to any such conflict.17 Nor does plaintiff allege that defendants' declarations have been submitted in bad faith, and there would be no basis for any such allegation. Finally, plaintiff makes much of the fact — both in relation to discovery and elsewhere in its opposition — that the Memorandum of Understanding between the White House and the Secret Service and the letter from the Vice President's counsel to the Secret Service were not filed earlier in FOIA litigation. See Pl's Opp. at 33; see also id. at 6. An agency has no obligation, however, to reveal the existence of an internal government document that supports its position. Additionally, in relation to The Washington Post v. U.S. Department of Homeland Security, see id. at 6, the government can hardly be faulted for failing to file the MOU with its opposition to the motion for preliminary injunction, on October 14, 2006, when the complaint and motion had been filed only four days earlier, on October 10, 2006. The MOU was submitted with the government's next district court filing in The Washington Post, on October 25, 2006. CONCLUSION For the foregoing reasons and for those stated in defendants' opening memorandum, defendants' motion for summary judgment should be granted, and this action dismissed with prejudice. Dated: August 1, 2007

Plaintiff's response to defendants' statement of material facts not in dispute refers to one alleged "inconsistency": that earlier declarations by the Office of the Vice President did not say that that Office provided visitor information to the Secret Service "on a confidential basis." See Plaintiff's Statement and Response to Defendants' Statement of Material Facts as to Which There Is No Genuine Issue ¶ 6 (docket #35). That is not, however, an "inconsistency," but merely an additional fact that was not included in earlier declarations. 23

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Respectfully submitted, PETER D. KEISLER Assistant Attorney General CARL J. NICHOLS Deputy Assistant Attorney General JEFFREY A. TAYLOR United States Attorney ELIZABETH J. SHAPIRO, D.C. Bar 418925 Assistant Director JOHN R. TYLER, D.C. Bar 297713 Senior Trial Counsel

W. SCOTT SIMPSON, Va. Bar 27487 Senior Trial Counsel Attorneys, Department of Justice Civil Division, Room 7210 Post Office Box 883 Washington, D.C. 20044 Telephone: (202) 514-3495 Facsimile: (202) 616-8470 E-mail: scott.simpson@usdoj.gov COUNSEL FOR DEFENDANTS

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Attachment 1
Exhibit 3 to Plaintiff's Motion to Compel, Judicial Watch v. U.S. Secret Service, Case No. 1:06-CV-00310 (JGP) (D.D.C.)

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