Case Document 23 Filed 07 14 17 Page 1 of 2 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK USDC SDNY DOCUMENT ELECTRONICALLY FILED DOC DATE FILED July 14 2017 KATE DOYLE NATIONAL SECURITY ARCHIVE CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON and KNIGHT FIRST AMENDMENT INSTITUTE AT COLUMBIA UNIVERSITY Plaintiffs 17 Civ 2542 KPF V ORDER US DEPARTMENT OF HOMELAND SECURITY Defendant KATHERINE POLK FAILLA District Judge On July 14 2017 the Court held its Initial Pretrial Conference in this case For the reasons discussed on the record the Court hereby imposes the parties proposed schedule for document production and motions practice 0 The Secret Service will complete its search for and processing of responsive records of presidential visitors at and produce any non exempt responsive records by September 8 2017 0 Defendant will le its motion for summary judgment by September 29 2017 Plaintiffs will le their opposition which may include an af davit or declaration pursuant to Federal Rule of Civil Procedure 56 d and any cross motion for summary judgment by November 13 2017 0 Defendant will le its reply and opposition to any cross motion by December 13 2017 and Case Document 23 Filed 07 14 17 Page 2 of 2 Plaintiffs will le a reply in support of any cross-motion by January 12 2018 SO ORDERED - 7 Dated July 14 2017 New York New York KATHERINE POLK FAILLA United States District Judge Case Document 22 Filed 07 06 17 Page 1 of 5 US Department of Justice United States Attorney Southern District of New York 86 Chambers Street 3rd oor New York New York 10007 July 6 2017 BY ECF The Honorable Katherine Polk Failla United States District Judge Thurgood Marshall United States Courthouse 40 Foley Square New York New York 10007 Re Doyle et al v US Department of Homeland Security N0 17 Civ 2542 KPF Dear Judge Failla We write respectfully on behalf of all parties in the above-referenced action brought pursuant to the Freedom of Information Act 5 U S C 552 in advance of the initial pretrial conference scheduled for 4 00 pm on July 14 2017 Because this is an action brought pursuant to FOIA we understand Local Civil Rule 16 1 to exempt the parties from the requirement of a mandatory scheduling order under Federal Rule of Civil Procedure 16 b Moreover the parties respectfully suggest that the traditional case management structure set forth in the Court s template Civil Case Management Plan and Scheduling Order is not necessary at this time because it may well be possible to resolve this case without discovery as discussed below 1 The parties provide this joint letter in accordance with the Court s Order dated April 17 2017 The numbered paragraphs below correspond to the numbered requests for information in the Court s Order 1 The Court s Civil Case Management Plan and Scheduling Order asks whether the parties consent to conducting all further proceedings before a United States Magistrate Judge The parties do not consent to conducting all further proceedings before a United States Magistrate Judge The parties propose an August 31 2017 deadline for amended pleadings Case Document 22 Filed 07 06 17 Page 2 of 5 1 A brief statement of the nature of the action the principal defenses thereto and the major legal and factual issues that are most important to resolving the case whether by trial settlement or dispositive motion Plaintiffs Statement of Nature of Action Plaintiffs bring this case under the Freedom of Information Act 5 U S C 552 and the Declaratory Judgment Act challenging the failure of Defendant US Department of Homeland Security to disclose to Plaintiffs upon request records of visits to the White House and to President Donald Trump at his Mar-a-Lago and Trump Tower residences that the Secret Service a component of DHS maintains Plaintiffs are Kate Doyle a senior analyst with the National Security Archive the National Security Archive Citizens for Responsibility and Ethics in Washington and the Knight First Amendment Institute at Columbia University Plaintiffs contend that whether the requested Worker and Visitor Entrance System WAVES and Access Control Records system ACR records are agency records of the DHS is a mixed question of fact and law Plaintiffs cannot ascertain whether this issue can be resolved without discovery until the Defendant which bears the burden of proof presents facts in support of its legal claims As to the remaining portions of Plaintiffs requests which seek records of presidential Visits at Mar-a Lago and Trump Tower Plaintiffs will be able to determine if there is any dispute over the adequacy of the Defendant s searches and any claims of exemption once the Defendant has fully responded Defendant s Statement of Defenses Defendant contends that the WAVES and ACR records sought by Plaintiffs are not agency records subject to FOIA 552 U S C as the US Court of Appeals for the District of Columbia Circuit held in Judicial Watch Inc v US Secret Service 726 F 3d 208 211-32 DC Cir 2013 Defendant believes this issue is properly resolved on summary judgment based upon declarations submitted by the agency as it was in Judicial Watch and consistent with the law in this Circuit see e Carney v US Dep t ofJustice 19 F 3d 807 812 2d Cir 1994 With regard to the other records sought by Plaintiffs in their March 10 2017 OIA request records of presidential Visitors at Mar-a-Lago and Trump Tower from January 20 2017 to March 8 2017 the Secret Service is in the process of searching for and processing responsive records 2 Defendant has asserted as a defense that the FOIA request does not reasonably describe all records sought and is conferring with Plaintiffs to clarify and narrow the scope of this aspect of the FOIA request Some or all of the 2 As Defendant has advised Plaintiffs President Trump did not go to Trump Tower during the identi ed time period and thus there are no responsive records relating to Trump Tower Case Document 22 Filed 07 06 17 Page 3 of 5 responsive records may be exempt from disclosure in whole or in part pursuant to one or more of exemptions See 5 U S C 552 b Defendant disputes that the Declaratory Judgment Act applies as FOIA provides the exclusive remedy in this case See e Isiwele v US DHS 85 F Supp 3d 337 352 D D C 2015 Statement of Issues The parties agree the central legal and factual issue to be resolved is whether the WAVES and ACR records of visits to the White House are agency records of the DHS subject to FOIA To the extent Plaintiffs challenge Defendant s response to their request for records of presidential visitors at Mar-a Lago the Court may also be asked to resolve issues regarding whether the Secret Service conducted a reasonable search for responsive records and whether any responsive records are exempt from disclosure under one or more of exemptions 2 A brief explanation of Why jurisdiction and venue lie in this Court This Court has jurisdiction pursuant to 28 U S C 1331 because this action arises under FOIA a federal statute Venue lies in this District pursuant to 5 U S C 552 a 4 B because one of the Plaintiffs the Knight First Amendment Institute at Columbia University has its principal place of business in this District CREW is a non-pro t 501 c 3 corporation incorporated in Delaware with its principal place of business in Washington DC The Knight First Amendment Institute at Columbia University is a not-for-pro t corporation incorporated in New York with its principal place of business in New York New York The National Security Archive is a non-profit research institute incorporated in Washington DC with its principal place of business also in Washington DC 3 A statement of all existing deadlines due dates and 0r cut-off dates There are no existing litigation deadlines 4 A brief description of any outstanding motions None 5 A brief description of any discovery that has already taken place and of any discovery that is necessary for the parties to engage in meaningful settlement negotiations No discovery has taken place and Plaintiffs do not seek discovery at this time FOIA cases are typically resolved on the basis of agency af davits submitted on summary judgment See Carney 19 F 3d at 812 Defendant contends that this case like most FOIA cases will be resolved on cross-motions for summary judgment without any need for discovery Plaintiffs at this time are unable to state whether they will seek Case Document 22 Filed 07 06 17 Page 4 of 5 discovery in this matter and they reserve the right to do so after reviewing Defendant s motion for summary judgment 6 A statement describing the status of any settlement discussions and Whether the parties would like a settlement conference At this time the parties do not anticipate that they will be able to settle the case and they do not request a settlement conference However the parties will attempt to resolve as many issues as possible without the Court s intervention The parties are in the process of conferring regarding the scope of Plaintiffs request for records of presidential visitors at Mar-a-Lago 7 Any other information that the parties believe may assist the Court in advancing the case to settlement or trial including but not limited to a description of any dispositive issue or novel issue raised by the case The parties have conferred and respectfully propose the following schedule for resolution of this case The Secret Service will complete its search for and processing of responsive records of presidential visitors at and produce any non-exempt responsive records by September 8 2017 Defendant will file a motion for summary judgment by September 29 20 1 7 Plaintiffs will le their opposition which may include an af davit or declaration pursuant to Federal Rule of Civil Procedure 56 d and any cross-motion for summary judgment by November 13 2017 Defendant will file its reply and opposition to any cross-motion by December 13 2017 and Plaintiffs will le a reply in support of any cross-motion by January 12 20 1 7 BY Case Document 22 Filed 07 06 17 Page 5 of 5 The parties thank the Court for its consideration of this matter Respectfully submitted CHAD A READLER Acting Assistant Attorney General JOON H KIM Acting United State Attorney for Southern District of New York Brad P Rosenberg ELIZABETH J SHAPIRO BRAD P ROSENBERG 20 Massachusetts Ave NW Washington DC 20530 Telephone 202 514-5302 3374 Facsimile 202 616-8470 Elizabeth Shapiro@usdoj gov Brad Rosenberg@usdoj gov Sarah S Normand SARAH S NORMAND 86 Chambers Street Third Floor New York New York 10007 Telephone 212 637-2709 Facsimile 212 637-2730 Sarah Normand@usdoj gov Attorneys for Defendant Anne L Weismann Anne L Weismann D C Bar No 298190 Citizens for Responsibility and Ethics in Washington 455 Massachusetts Ave N W Sixth Floor Washington DC 20001 Telephone 202 408-5565 Facsimile 202 588-5020 aweismann@citizensforethicsorg Alex Abdo AA-0527 Jameel Jaffer II-4653 Knight First Amendment Institute at Columbia University 314 Low Library 535 West 116th Street New York NY 10027 Telephone 212 854-9600 alex abdo@knightcolumbia org Attorneys for Plainti s Case Document 23 Filed 07 14 17 Page 1 of 2 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK USDC SDNY DOCUMENT ELECTRONICALLY FILED DOC DATE FILED July 14 2017 KATE DOYLE NATIONAL SECURITY ARCHIVE CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON and KNIGHT FIRST AMENDMENT INSTITUTE AT COLUMBIA UNIVERSITY Plaintiffs 17 Civ 2542 KPF V ORDER US DEPARTMENT OF HOMELAND SECURITY Defendant KATHERINE POLK FAILLA District Judge On July 14 2017 the Court held its Initial Pretrial Conference in this case For the reasons discussed on the record the Court hereby imposes the parties proposed schedule for document production and motions practice 0 The Secret Service will complete its search for and processing of responsive records of presidential visitors at and produce any non exempt responsive records by September 8 2017 0 Defendant will le its motion for summary judgment by September 29 2017 Plaintiffs will le their opposition which may include an af davit or declaration pursuant to Federal Rule of Civil Procedure 56 d and any cross motion for summary judgment by November 13 2017 0 Defendant will le its reply and opposition to any cross motion by December 13 2017 and Case Document 23 Filed 07 14 17 Page 2 of 2 Plaintiffs will le a reply in support of any cross-motion by January 12 2018 SO ORDERED - 7 Dated July 14 2017 New York New York KATHERINE POLK FAILLA United States District Judge Case Document 22 Filed 07 06 17 Page 1 of 5 US Department of Justice United States Attorney Southern District of New York 86 Chambers Street 3rd oor New York New York 10007 July 6 2017 BY ECF The Honorable Katherine Polk Failla United States District Judge Thurgood Marshall United States Courthouse 40 Foley Square New York New York 10007 Re Doyle et al v US Department of Homeland Security N0 17 Civ 2542 KPF Dear Judge Failla We write respectfully on behalf of all parties in the above-referenced action brought pursuant to the Freedom of Information Act 5 U S C 552 in advance of the initial pretrial conference scheduled for 4 00 pm on July 14 2017 Because this is an action brought pursuant to FOIA we understand Local Civil Rule 16 1 to exempt the parties from the requirement of a mandatory scheduling order under Federal Rule of Civil Procedure 16 b Moreover the parties respectfully suggest that the traditional case management structure set forth in the Court s template Civil Case Management Plan and Scheduling Order is not necessary at this time because it may well be possible to resolve this case without discovery as discussed below 1 The parties provide this joint letter in accordance with the Court s Order dated April 17 2017 The numbered paragraphs below correspond to the numbered requests for information in the Court s Order 1 The Court s Civil Case Management Plan and Scheduling Order asks whether the parties consent to conducting all further proceedings before a United States Magistrate Judge The parties do not consent to conducting all further proceedings before a United States Magistrate Judge The parties propose an August 31 2017 deadline for amended pleadings Case Document 22 Filed 07 06 17 Page 2 of 5 1 A brief statement of the nature of the action the principal defenses thereto and the major legal and factual issues that are most important to resolving the case whether by trial settlement or dispositive motion Plaintiffs Statement of Nature of Action Plaintiffs bring this case under the Freedom of Information Act 5 U S C 552 and the Declaratory Judgment Act challenging the failure of Defendant US Department of Homeland Security to disclose to Plaintiffs upon request records of visits to the White House and to President Donald Trump at his Mar-a-Lago and Trump Tower residences that the Secret Service a component of DHS maintains Plaintiffs are Kate Doyle a senior analyst with the National Security Archive the National Security Archive Citizens for Responsibility and Ethics in Washington and the Knight First Amendment Institute at Columbia University Plaintiffs contend that whether the requested Worker and Visitor Entrance System WAVES and Access Control Records system ACR records are agency records of the DHS is a mixed question of fact and law Plaintiffs cannot ascertain whether this issue can be resolved without discovery until the Defendant which bears the burden of proof presents facts in support of its legal claims As to the remaining portions of Plaintiffs requests which seek records of presidential Visits at Mar-a Lago and Trump Tower Plaintiffs will be able to determine if there is any dispute over the adequacy of the Defendant s searches and any claims of exemption once the Defendant has fully responded Defendant s Statement of Defenses Defendant contends that the WAVES and ACR records sought by Plaintiffs are not agency records subject to FOIA 552 U S C as the US Court of Appeals for the District of Columbia Circuit held in Judicial Watch Inc v US Secret Service 726 F 3d 208 211-32 DC Cir 2013 Defendant believes this issue is properly resolved on summary judgment based upon declarations submitted by the agency as it was in Judicial Watch and consistent with the law in this Circuit see e Carney v US Dep t ofJustice 19 F 3d 807 812 2d Cir 1994 With regard to the other records sought by Plaintiffs in their March 10 2017 OIA request records of presidential Visitors at Mar-a-Lago and Trump Tower from January 20 2017 to March 8 2017 the Secret Service is in the process of searching for and processing responsive records 2 Defendant has asserted as a defense that the FOIA request does not reasonably describe all records sought and is conferring with Plaintiffs to clarify and narrow the scope of this aspect of the FOIA request Some or all of the 2 As Defendant has advised Plaintiffs President Trump did not go to Trump Tower during the identi ed time period and thus there are no responsive records relating to Trump Tower Case Document 22 Filed 07 06 17 Page 3 of 5 responsive records may be exempt from disclosure in whole or in part pursuant to one or more of exemptions See 5 U S C 552 b Defendant disputes that the Declaratory Judgment Act applies as FOIA provides the exclusive remedy in this case See e Isiwele v US DHS 85 F Supp 3d 337 352 D D C 2015 Statement of Issues The parties agree the central legal and factual issue to be resolved is whether the WAVES and ACR records of visits to the White House are agency records of the DHS subject to FOIA To the extent Plaintiffs challenge Defendant s response to their request for records of presidential visitors at Mar-a Lago the Court may also be asked to resolve issues regarding whether the Secret Service conducted a reasonable search for responsive records and whether any responsive records are exempt from disclosure under one or more of exemptions 2 A brief explanation of Why jurisdiction and venue lie in this Court This Court has jurisdiction pursuant to 28 U S C 1331 because this action arises under FOIA a federal statute Venue lies in this District pursuant to 5 U S C 552 a 4 B because one of the Plaintiffs the Knight First Amendment Institute at Columbia University has its principal place of business in this District CREW is a non-pro t 501 c 3 corporation incorporated in Delaware with its principal place of business in Washington DC The Knight First Amendment Institute at Columbia University is a not-for-pro t corporation incorporated in New York with its principal place of business in New York New York The National Security Archive is a non-profit research institute incorporated in Washington DC with its principal place of business also in Washington DC 3 A statement of all existing deadlines due dates and 0r cut-off dates There are no existing litigation deadlines 4 A brief description of any outstanding motions None 5 A brief description of any discovery that has already taken place and of any discovery that is necessary for the parties to engage in meaningful settlement negotiations No discovery has taken place and Plaintiffs do not seek discovery at this time FOIA cases are typically resolved on the basis of agency af davits submitted on summary judgment See Carney 19 F 3d at 812 Defendant contends that this case like most FOIA cases will be resolved on cross-motions for summary judgment without any need for discovery Plaintiffs at this time are unable to state whether they will seek Case Document 22 Filed 07 06 17 Page 4 of 5 discovery in this matter and they reserve the right to do so after reviewing Defendant s motion for summary judgment 6 A statement describing the status of any settlement discussions and Whether the parties would like a settlement conference At this time the parties do not anticipate that they will be able to settle the case and they do not request a settlement conference However the parties will attempt to resolve as many issues as possible without the Court s intervention The parties are in the process of conferring regarding the scope of Plaintiffs request for records of presidential visitors at Mar-a-Lago 7 Any other information that the parties believe may assist the Court in advancing the case to settlement or trial including but not limited to a description of any dispositive issue or novel issue raised by the case The parties have conferred and respectfully propose the following schedule for resolution of this case The Secret Service will complete its search for and processing of responsive records of presidential visitors at and produce any non-exempt responsive records by September 8 2017 Defendant will file a motion for summary judgment by September 29 20 1 7 Plaintiffs will le their opposition which may include an af davit or declaration pursuant to Federal Rule of Civil Procedure 56 d and any cross-motion for summary judgment by November 13 2017 Defendant will file its reply and opposition to any cross-motion by December 13 2017 and Plaintiffs will le a reply in support of any cross-motion by January 12 20 1 7 BY Case Document 22 Filed 07 06 17 Page 5 of 5 The parties thank the Court for its consideration of this matter Respectfully submitted CHAD A READLER Acting Assistant Attorney General JOON H KIM Acting United State Attorney for Southern District of New York Brad P Rosenberg ELIZABETH J SHAPIRO BRAD P ROSENBERG 20 Massachusetts Ave NW Washington DC 20530 Telephone 202 514-5302 3374 Facsimile 202 616-8470 Elizabeth Shapiro@usdoj gov Brad Rosenberg@usdoj gov Sarah S Normand SARAH S NORMAND 86 Chambers Street Third Floor New York New York 10007 Telephone 212 637-2709 Facsimile 212 637-2730 Sarah Normand@usdoj gov Attorneys for Defendant Anne L Weismann Anne L Weismann D C Bar No 298190 Citizens for Responsibility and Ethics in Washington 455 Massachusetts Ave N W Sixth Floor Washington DC 20001 Telephone 202 408-5565 Facsimile 202 588-5020 aweismann@citizensforethicsorg Alex Abdo AA-0527 Jameel Jaffer II-4653 Knight First Amendment Institute at Columbia University 314 Low Library 535 West 116th Street New York NY 10027 Telephone 212 854-9600 alex abdo@knightcolumbia org Attorneys for Plainti s                     National Security Archive    Suite 701  Gelman Library  The George Washington University    2130 H Street  NW  Washington  D C  20037    Phone  202 994‐7000  Fax  202 994‐7005  nsarchiv@gwu edu