Case 18-2814 Document 39 01 07 2019 2469007 Page1 of 56 RECORD NO 18-2814 In The United States Court of Appeals For The Second Circuit KATE DOYLE NATIONAL SECURITY ARCHIVE CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON KNIGHT FIRST AMENDMENT INSTITUTE AT COLUMBIA UNIVERSITY Plaintiffs – Appellants v UNITED STATES DEPARTMENT OF HOMELAND SECURITY Defendant – Appellee ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK BRIEF OF APPELLANTS Anne L Weismann Conor M Shaw CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON 1101 K Street NW Suite 201 Washington DC 20005 202 408-5565 Alexander Abdo Jameel Jaffer KNIGHT FIRST AMENDMENT INSTITUTE AT COLUMBIA UNIVERSITY 475 Riverside Drive Suite 302 New York New York 10115 646 745-8502 Counsel for Plaintiffs - Appellants Counsel for Plaintiffs - Appellants THE LEX GROUP  1108 East Main Street  Suite 1400  Richmond VA 23219 804 644-4419  800 856-4419  Fax 804 644-3660  www thelexgroup com Case 18-2814 Document 39 01 07 2019 2469007 Page2 of 56 CORPORATE DISCLOSURE STATEMENT Appellants Citizens for Responsibility and Ethics in Washington the National Security Archive and the Knight First Amendment Institute at Columbia University have no parent corporation none have stock and therefore no publicly held corporation owns 10% or more of any of them The Knight Institute is a nonprofit non-partisan organization governed by a nine-member board of directors of whom five are associated with Columbia University i Case 18-2814 Document 39 01 07 2019 2469007 Page3 of 56 TABLE OF CONTENTS Page CORPORATE DISCLOSURE STATEMENT i TABLE OF AUTHORITIES iv INTRODUCTION 1 JURISDICTIONAL STATEMENT 3 STATEMENT OF THE ISSUES 3 STATEMENT OF THE CASE AND THE FACTS 4 I Nature of the case and proceedings below 4 II Statement of the facts 5 III The district court’s opinion 9 SUMMARY OF ARGUMENT 12 STANDARD OF REVIEW 14 ARGUMENT 15 I The Secret Service’s Visitor Records Are “Agency Records” Subject to the FOIA 15 A Under Supreme Court precedent “agency records” are those “created or obtained” by an agency “in the legitimate conduct of its official duties ” 15 B The Secret Service’s visitor records are “agency records” under the Supreme Court’s definition of that term 19 C The definition of “agency records” the district court adopted contradicts the Supreme Court’s definition 21 ii Case 18-2814 Document 39 01 07 2019 2469007 Page4 of 56 D II The district court erred by relying on other grounds as a reason to ignore the Supreme Court’s two-part test for “agency records ” 26 The District Court Erred in Dismissing Plaintiffs’ APA Claims Challenging the Secret Service’s and EOP’s Recordkeeping Policies and Directives as Contrary to Law 32 A Plaintiffs adequately pleaded justiciable APA claims alleging that Defendants’ recordkeeping policies were contrary to law 33 B The district court committed clear error in failing to consider additional evidence Defendants introduced that supports the justiciability of Plaintiffs’ recordkeeping claims 41 C To the extent Plaintiffs’ jurisdictional allegations are deficient Plaintiffs should be afforded an opportunity to amend the complaint to reflect the evidence in the record 45 CONCLUSION 46 CERTIFICATE OF FILING AND SERVICE CERTIFICATE OF COMPLIANCE iii Case 18-2814 Document 39 01 07 2019 2469007 Page5 of 56 TABLE OF AUTHORITIES Page s CASES Amidax Trading Grp v S W I F T SCRL 671 F 3d 140 2d Cir 2011 15 Armstrong v Bush 924 F 2d 282 D C Cir 1991 “Armstrong I” 33 34 Armstrong v Exec Office of the President 1 F 3d 1274 D C Cir 1993 “Armstrong II” passim Aurecchione v Schoolman Transp Sys Inc 426 F 3d 635 2d Cir 2005 45 Consumer Fed’n of America v Dep’t of Agriculture 455 F 3d 283 D C Cir 2006 21 Dep’t of the Air Force v Rose 425 U S 352 1976 27 Forsham v Harris 445 U S 169 1980 9 15 17 18 Jaen v Sessions 899 F 3d 182 2d Cir 2018 15 Judicial Watch Inc v Dep’t of Justice 365 F 3d 1108 D C Cir 2004 31 Judicial Watch Inc v U S Secret Service 726 F 3d 208 D C Cir 2013 passim Judicial Watch Inc v U S Secret Service 803 F Supp 2d 51 D D C 2011 24 iv Case 18-2814 Document 39 01 07 2019 2469007 Page6 of 56 Judicial Watch Inc v Nat’l Archives Records Admin 845 F Supp 2d 288 D D C 2012 38 Kissinger v Reporters Comm for Freedom of the Press 445 U S 136 1980 9 17 18 Main Street Legal Servs Inc v Nat’l Sec Council 811 F 3d 542 2d Cir 2016 23 Makarova v United States 201 F 3d 110 2d Cir 2000 41 NLRB v Robbins Tire Rubber Co 437 U S 214 1978 27 Paisley v CIA 712 F 2d 686 D C Cir 1983 26 Soucie v David 448 F 2d 1067 D C Cir 1971 29 30 Tax Analysts v U S Dep’t of Justice 845 F 2d 1060 D C Cir 1988 “Tax Analysts I” 21 Troupe v Chicago D G Bay Transit Co 234 F 2d 253 2d Cir 1956 45 U S Dep’t of Justice v Tax Analysts 492 U S 136 1989 “Tax Analysts II” passim United We Stand Am Inc v IRS 359 F 3d 595 D C Cir 2004 22 26 27 Woodward Governor Co v Curtiss Wright Flight Sys Inc 164 F 3d 123 2d Cir 1999 14 v Case 18-2814 Document 39 01 07 2019 2469007 Page7 of 56 STATUTES 5 U S C § 552 43 5 U S C § 552 a 4 B 3 15 5 U S C § 552 f 2 43 5 U S C § 702 3 18 U S C § 3056 5 18 U S C § 3056A 5 28 U S C § 1291 3 28 U S C § 1331 3 28 U S C § 1653 14 45 44 U S C § 2201 et seq 44 44 U S C § 2203 38 44 U S C § 2204 38 44 U S C § 3301 16 43 RULE Fed R Civ P 12 b 1 14 15 40 42 REGULATION 36 C F R § 1225 16 20 vi Case 18-2814 Document 39 01 07 2019 2469007 Page8 of 56 OTHER AUTHORITIES Administrative Procedure Act Hearings on S 1160 et al before the Subcommittee on Administrative Practice and Procedure of the Senate Committee on the Judiciary 89th Cong 1st Sess 244 1965 15 H R Conf Rep No 93-1380 1974 29 S Conf Rep No 93-1200 1974 29 vii Case 18-2814 Document 39 01 07 2019 2469007 Page9 of 56 INTRODUCTION The Plaintiffs in this case seek access under the Freedom of Information Act “FOIA” to the Secret Service’s documentation of who visited the White House and when – records the Secret Service has created or received while performing its statutory function of protecting the president at the White House complex and at President Donald Trump’s so-called “Winter White House” at Mar-a-Lago The records would give the public crucial insight into who has influence over the most powerful office in the land at a time of unparalleled public need to know the forces that are shaping the policies of that office and to what end The requested visitor logs as records the Secret Service created or acquired while performing its core protective function meet the Supreme Court’s two-part bright-line test for “agency records” announced in U S Dep’t of Justice v Tax Analysts 492 U S 136 1989 “Tax Analysts II” They were “created or obtained” by the Secret Service and they “c a me into the agency’s possession in the legitimate conduct of its official duties ” 492 U S at 145 Nevertheless the district court ruled that both records of visitors to the White House complex except for records involving agency components of the Executive Office of the President “EOP” and Secret Service records reflecting the president’s schedule that the Secret Service relied on in providing protection for the president at Mar-aLago are not agency records subject to disclosure under the FOIA To reach this Case 18-2814 Document 39 01 07 2019 2469007 Page10 of 56 conclusion the district court elevated caselaw from the U S Court of Appeals for the D C Circuit that places nearly dispositive weight on the intent of the records’ creator over Supreme Court precedent that expressly rejects intent as a factor to be considered The district court also erroneously credited “special policy considerations” to conclude that requiring disclosure of agency records that reveal information about the president would raise the same concerns as subjecting the president himself to the compelled disclosure regime the FOIA embodies In so doing the court essentially fabricated a new exemption to the FOIA’s disclosure requirements and carved out a whole category of records that Congress did not intend to protect from FOIA requests With this ruling the district court erred The FOIA as interpreted by the Supreme Court applies to the Secret Service’s visitor logs and other visitor records and requires reversal of the district court’s grant of summary judgment The district court compounded its error by dismissing Plaintiffs’ challenge to the policy and practice embodied in memoranda of understanding between the EOP and the Department of Homeland Security “DHS” of treating the visitor logs as presidential records subject to the Presidential Records Act “PRA” and not as agency records within the scope of the Federal Records Act “FRA” First by purporting to classify the Secret Service’s visitor records as presidential 2 Case 18-2814 Document 39 01 07 2019 2469007 Page11 of 56 records the memoranda of understanding constitute the kind of guidance courts have found is subject to judicial review Armstrong v Exec Office of the President 1 F 3d 1274 D C Cir 1993 Second the district court’s interpretation of that guidance creates the very danger Congress sought to legislate against when it enacted the PRA it allows that statute to become “a potential presidential carte blanche to shield materials from the reach of the FOIA ” Id at 1292 These errors require reversal JURISDICTIONAL STATEMENT The district court had jurisdiction under 5 U S C § 552 a 4 B based on the two FOIA requests Plaintiffs filed with DHS 5 U S C § 702 for their allegations that Defendants’ policy and practice of treating federal records as presidential records was arbitrary capricious and contrary to law and 28 U S C § 1331 On September 21 2018 the district court entered judgment against the Plaintiffs Civil J JA 198-99 On September 24 2018 Plaintiffs timely filed their notice of appeal from this final judgment JA 200-01 This Court has jurisdiction pursuant to 28 U S C § 1291 STATEMENT OF THE ISSUES 1 Did the district court err in holding that visitor logs maintained by the Secret Service and Secret Service records reflecting the president’s schedule used 3 Case 18-2814 Document 39 01 07 2019 2469007 Page12 of 56 by the Secret Service to provide protection for the president at Mar-a-Lago are not “agency records” within the meaning of the FOIA 2 Did the district court err in holding that Plaintiffs’ challenge to the policy and practice embodied in memoranda of understanding between the EOP and DHS of treating Secret Service visitor logs as within the scope of the PRA was not subject to judicial review STATEMENT OF THE CASE AND THE FACTS I Nature of the case and proceedings below This appeal arises from two FOIA requests Plaintiffs sent to the Secret Service a component of DHS for records for the period January 20 2017 through March 8 2017 from two automated systems the Secret Service uses to track visitors at the White House complex and for records of presidential visitors at Mar-a-Lago and Trump Tower for that same period Op Order JA 136-37 Exhibit A to Second Decl of Kim E Campbell JA 51-56 After receiving no response Plaintiffs filed a complaint against DHS on April 10 2017 challenging DHS’s failure to respond to their FOIA requests Op Order JA 137 On September 14 2017 Plaintiffs amended their complaint to add EOP as a defendant and to add claims against DHS and the EOP under the Administrative Procedure Act “APA” challenging Defendants’ failure to manage and preserve these records under the FRA Id JA 140-41 See also Am Compl JA 17-33 4 Case 18-2814 Document 39 01 07 2019 2469007 Page13 of 56 In October 2018 Defendants moved for summary judgment on the FOIA claims arguing the requested records are not agency records subject to the FOIA Op Order JA 141 ECF Dkt No 45 Defendants also moved to dismiss the APA claims as not subject to judicial review based on their characterization of the claims as not challenging written guidelines Id On July 26 2018 District Court Judge Katherine Polk Failla entered an opinion and order granting in part and denying in part Defendants’ motion for summary judgment and concluding that both the visitor logs for non-agency EOP components and the Secret Service records reflecting the president’s schedule are not agency records subject to the FOIA Op Order JA 146-80 The district court also granted Defendants’ motion to dismiss Plaintiffs’ APA claims under the PRA and FRA finding Plaintiffs had failed to allege a guideline subject to judicial review Id JA 180-97 The court ordered Defendants to disclose within 60 days materials responsive to Plaintiffs’ surviving FOIA claims Id JA 197 On September 21 2018 following the court-ordered production the district court entered final judgment Civil J JA 198-99 II Statement of the facts As part of its statutory responsibilities to protect the president vice president and their immediate families 18 U S C §§ 3056 3056A the Secret Service monitors visitors to the White House complex and the vice president’s 5 Case 18-2814 Document 39 01 07 2019 2469007 Page14 of 56 residence Decl of James M Murray “Murray Decl ” JA 62 ¶ 6 Within the White House complex the Secret Service employs two web-based electronic systems to monitor visitors the Executive Facilities Access Control System “EFACS” and the Worker and Visitor Entrance System “WAVES” Op Order JA 132 The Secret Service uses the EFACS system to control and monitor access to the White House complex and the WAVES system to vet visitor information and grant access to the White House complex Murray Decl JA 62 ¶ 7 The Secret Service begins creating these records when a White House passholder – who may or may not be a member of the president’s staff – provides the agency with information about the visitor including inter alia personally identifying information and the location of the visit Id JA 62-63 ¶ 8 The Secret Service uses this information to perform background checks to determine whether the visitor should be admitted Id Thereafter Secret Service personnel annotate the WAVES records with the results of the background checks and any instructions to Secret Service officers Id JA 63-64 ¶ 9 The Secret Service stores the WAVES records electronically on computer servers located at Secret Service headquarters and Secret Service personnel operate those servers Id JA 66 ¶ 16 The Secret Service clears each scheduled visitor for entry into the White House complex upon their arrival and issues a badge that the visitor swipes over an 6 Case 18-2814 Document 39 01 07 2019 2469007 Page15 of 56 electronic badge reader at entrances and exits to the complex Id JA 64 ¶ 10 This generates an electronic Access Control Record “ACR” that records the visitor’s name badge number date and time of entrance or exit and the post at which the badge was swiped Murray Decl JA 64 ¶ 10 The ACR records do not include either who requested clearance for the visitor or who the visitor was seeing Upon the completion of a visit the Secret Service updates the WAVES records with the ACR information Id JA 64 ¶ 11 The Secret Service claims only a temporary interest in the WAVES and ACR records once a visit is completed the Secret Service transfers these records to the White House Office of Records Management every 30 to 60 days Id JA 65 ¶ 3 The Secret Service purges WAVES records more than 60 days old on a rolling basis Id Over the years these practices have varied but in May 2006 the Secret Service and the White House entered into a Memorandum of Understanding “2006 MOU” that purports to memorialize their “agreement” that these records are “not the records of any ‘agency’ subject to the Freedom of Information Act ” Id JA 65-66 ¶¶ 14 15 2006 MOU JA 69-73 Notwithstanding the 2006 MOU in 2009 President Barack Obama announced that starting on September 15 2009 the White House would begin voluntarily disclosing the majority of information in the WAVES and ACR records subject to certain exceptions Decl of Philip C Droege “Droege Decl ” 7 Case 18-2814 Document 39 01 07 2019 2469007 Page16 of 56 JA 82-83 ¶¶ 12 13 On April 14 2017 a spokesperson for President Trump announced the White House was rescinding the voluntary disclosure policy Id JA 83 ¶ 14 In September 2015 following President Obama’s creation of a Presidential Information Technology Community “the Community” the Community entered into a Memorandum of Understanding “2015 MOU” that established a framework for implementing policies and procedures governing “the information resources and information systems provided to the President Vice President and EOP ” Decl of Charles Christopher Herndon “Herndon Decl ” JA 85-87 ¶ 6 2015 MOU JA 92-100 Under the terms of the 2015 MOU the Secret Service manages and operates the EFACS and WAVES systems but the 2015 MOU designates the president as their “business owner” and purports to vest control of these systems and the records created on them in the president Herndon Decl JA 86 ¶ 8 The Secret Service has no system in place for monitoring presidential visitors to Trump Tower or Mar-a-Lago Second Decl of Kim E Campbell JA 39 ¶ 11 In searching for records responsive to Plaintiffs’ FOIA requests the Secret Service located a handful of documents related to Mar-a-Lago visits which included White House travel schedules emails containing presidential schedule information emails with information about scheduled presidential visitors and 8 Case 18-2814 Document 39 01 07 2019 2469007 Page17 of 56 other presidential event information Id JA 44-46 ¶¶ 28 30 The Secret Service described these documents as “contain ing reflect ing or directly relat ing to Presidential schedules” that were transmitted to the Secret Service so that the agency could “perform its statutory duty to protect the President ” Id JA 46-47 ¶ 31 The Secret Service did not perform a search for visits to Trump Tower because President Trump had made no such visits during the period of time covered by Plaintiffs’ FOIA requests Id JA 38-39 ¶ 8 III The district court’s opinion With one exception described below the district court granted Defendants’ summary judgment motion as to the Secret Service’s logs of visitors to the White House and its documentation reflecting or pertaining to visitors to Mar-a-Lago Op Order JA 164-80 197 The court began its analysis by examining three Supreme Court cases addressing the meaning of the term “agency record” under the FOIA Kissinger v Reporters Comm for Freedom of the Press 445 U S 136 1980 “Kissinger” Forsham v Harris 445 U S 169 1980 “Forsham” and U S Dep’t of Justice v Tax Analysts 492 U S 136 1989 Op Order JA 14951 The district court then turned to a decision from the D C Circuit Judicial Watch Inc v U S Secret Service 726 F 3d 208 D C Cir 2013 “Judicial Watch” involving a FOIA request for Secret Service visitor logs and that decision’s application of the D C Circuit’s four-factor test for agency control 9 Case 18-2814 Document 39 01 07 2019 2469007 Page18 of 56 which considers 1 the document creator’s intent 2 the agency’s ability to use and dispose of the record as it sees fit 3 reliance by agency personnel on the document and 4 the extent to which the agency integrated the document into its system or files Op Order JA 151-56 The district court noted that the Judicial Watch court ultimately found that because the four-factor test failed to yield “decisive answers ” id JA 153 it went on to apply “special policy considerations” to conclude the records did not constitute agency records Id Here the district court relying in part on the 2015 MOU executed by the White House and the Secret Service and applying “special policy considerations ” followed the D C Circuit’s approach to conclude the requested EFACS and WAVES records are not agency records because they are not within the control of the Secret Service Id JA 162-63 The district court reached a similar conclusion as to the Secret Service documentation reflecting visitors to Mar-a-Lago reasoning that those records “track the definition of ‘presidential records’ in the PRA even more closely than WAVES and ACR records ” Id JA 178 The court limited its holding to the specific documents at issue characterizing the argument that this approach creates an unsustainable rule as “a straw man ” without explaining how the scheduling documents could meaningfully be distinguished from other documents that relate to or reflect the president’s schedule or indeed anything about the president Id 10 Case 18-2814 Document 39 01 07 2019 2469007 Page19 of 56 For those records of EOP components that are agencies the district court concluded their records are subject to disclosure under the FOIA Op Order JA 165-67 The court also concluded however that to the extent any of these records “contain information that would not constitute agency records in light of its connection to the President Defendants may redact such information ” Id JA 166 The court further noted “if disclosure of records from an EOP Agency Component threatened the President’s security it would likely be exempt from FOIA ” Id The district court also granted Defendants’ motion to dismiss Plaintiffs’ APA claims challenging Defendants’ failure to treat and manage the visitor logs as agency records under the FRA Id JA 180-97 In reaching this conclusion the court refused to consider the 2006 MOU characterizing the complaint as failing to specifically reference that document Id The court however ignored its own reliance on that MOU in describing the relevant factual background on which the court’s opinion is based id JA 129 134 and the fact that the government’s argument for why the records are presidential not agency records rests in critical part on the 2006 MOU Op Order JA 188-89 As to the 2015 MOU the district court concluded that both the FRA and the PRA preclude judicial review Id JA 189-94 11 Case 18-2814 Document 39 01 07 2019 2469007 Page20 of 56 SUMMARY OF ARGUMENT I The Supreme Court’s two-part definition of “agency records” in Tax Analysts II disposes of the legal issue presented here by Plaintiffs’ requests for WAVES and ACR records and Secret Service records reflecting the president’s schedule These records were “created or obtained” by the Secret Service and they “c a me into the agency’s possession in the legitimate conduct of its official duties ” Tax Analysts II 492 U S at 145 Notwithstanding this controlling precedent the district court looked beyond Tax Analysts II to apply a four-factor control test the D C Circuit employs to accommodate the “special circumstances” the court believed this case presents The Supreme Court’s two-part test flatly contradicts this approach and instead yields the conclusion that the requested records are agency records subject to disclosure under the FOIA Specifically the D C Circuit’s test on which the district court relied places nearly dispositive weight on the intent of the creator of the records at issue in determining whether they are “control led ” by an agency subject to the FOIA The Supreme Court has said however that “a mens rea requirement is nowhere to be found in the Act ” Tax Analysts II 492 U S at 147 a clear repudiation of the D C Circuit’s intent-focused test The district court’s approach not only contravenes controlling Supreme Court caselaw but it also sets a precedent that effectively would render any 12 Case 18-2814 Document 39 01 07 2019 2469007 Page21 of 56 information about the president or revealing his conduct beyond the public’s reach merely because such information could not be obtained directly from the president The judicially imposed limitations the court applied here contravene the FOIA’s text and purpose and ignore the reality that the president must act through and communicate with subordinate agency officials creating a documentary record to which the public is entitled through the FOIA To the extent the government has a legitimate basis to withhold responsive records it may do so if those records fall within the exemptions to the FOIA that Congress has established II In dismissing as nonjusticiable Plaintiffs’ APA claims asserting that the recordkeeping policies of the Secret Service and EOP contravene the requirements of the FRA and PRA the district court erred in two respects First the district court erred in finding that the Amended Complaint fails to articulate justiciable claims that Defendants’ recordkeeping policies violate the Federal Records Act and Presidential Records Act Consistent with D C Circuit precedent that was adopted by the district court Plaintiffs properly alleged that the Secret Service and EOP had an unlawful policy of treating agency records as presidential records as evidenced by a 2015 Memorandum of Understanding that was cited and quoted in the Amended Complaint Judicial review of the executive’s policies on what constitutes an agency or presidential record is 13 Case 18-2814 Document 39 01 07 2019 2469007 Page22 of 56 necessary to uphold the recordkeeping and transparency regime that Congress established for agencies through the FRA and the FOIA Second the district court erred in failing to consider evidence extrinsic to the Amended Complaint that provided further support for Plaintiffs’ claims This evidence includes a 2006 Memorandum of Understanding that in direct conflict with both the FRA and the PRA states that certain records created by the Secret Service shall at all times be deemed presidential records Although consideration of such materials is discretionary in ruling on a motion to dismiss under Rule 12 b 1 the court refused to do so premised on the false assertion that Plaintiffs introduced this evidence into the record when in fact those materials were exhibits to Defendants’ dispositive motion In the alternative Plaintiffs respectfully request that pursuant to 28 U S C § 1653 this Court grant them leave to amend the complaint so that it reflects the extrinsic evidence offered by Defendants and already in the record that clearly establishes the justiciability of Plaintiffs’ claims STANDARD OF REVIEW In an appeal of a dismissal for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12 b 1 this Court reviews the district court’s factual findings for clear error and its legal conclusions de novo Woodward Governor Co v Curtiss Wright Flight Sys Inc 164 F 3d 123 126 2d Cir 1999 14 Case 18-2814 Document 39 01 07 2019 2469007 Page23 of 56 In considering a Rule 12 b 1 motion to dismiss this Court must draw all facts from the complaint and “assume them to be true unless contradicted by more specific allegations or documentary evidence ” Amidax Trading Grp v S W I F T SCRL 671 F 3d 140 145 2d Cir 2011 This Court also reviews de novo a question of statutory interpretation Jaen v Sessions 899 F 3d 182 185 2d Cir 2018 ARGUMENT I The Secret Service’s Visitor Records Are “Agency Records” Subject to the FOIA A Under Supreme Court precedent “agency records” are those “created or obtained” by an agency “in the legitimate conduct of its official duties ” Under the FOIA’s bedrock jurisdictional requirement courts can review only those challenges to the improper withholding of “agency records ” 5 U S C § 552 a 4 B Although the phrase “agency record” is an essential term in the statute neither the language of the FOIA nor its legislative history defines the term Tax Analysts II 492 U S at 142 1 The Supreme Court filled in this gap by 1 There is at least one reference to the definition of record in the Senate hearings that led to the FOIA’s passage that the Court cited in Forsham “‘ s ince the word ‘records’ is not defined we assume that it includes all papers which an agency preserves in the performance of its functions ’” Forsham 445 U S at 184 quoting Administrative Procedure Act Hearings on S 1160 et al before the Subcommittee on Administrative Practice and Procedure of the Senate Committee on the Judiciary 89th Cong 1st Sess 244 1965 15 Case 18-2814 Document 39 01 07 2019 2469007 Page24 of 56 developing a two-part test that considers 1 whether the requested records were created or obtained by the agency and 2 whether the agency controls the records Id at 143-45 The Court in turn construed the word “control” to mean “that the materials have come into the agency’s possession in the legitimate conduct of its official duties ” Id at 145 The control test the Court announced in Tax Analysts II stems in part from the definition of agency records in the Record Disposal Act 44 U S C § 3301 which forms part of the Federal Records Act and defines agency records as those “made or received by an agency of the United States Government under Federal law or in connection with the transaction of public business ” 492 U S at 145 emphasis in original quoting 44 U S C § 3301 By focusing exclusively on the reason that the agency created or obtained the records in question – for the transaction of public business – the two-part Tax Analysts II test presents a straight-forward easy-to-apply test that reduces the concept of “control” to its very essence Indeed the Court anticipated that after applying its test “disputes over control should be infrequent” “ b ecause requested materials ordinarily will be in the agency’s possession at the time the FOIA request is made ” 492 U S at 146 n 6 In other words the Court viewed agency possession as typically coextensive with agency control 16 Case 18-2814 Document 39 01 07 2019 2469007 Page25 of 56 The Tax Analysts II Court was not writing on a blank slate Its earlier Kissinger decision had addressed the different but related question of whether written summaries of Henry Kissinger’s telephone conversations prepared while he was serving in the White House as National Security Adviser were agency records subject to production under the FOIA because Kissinger took the summaries with him when he later worked at the State Department The Supreme Court concluded their mere physical location did not dictate their status as agency records reasoning The papers were not in the control of the State Department at any time They were not generated in the State Department They never entered the State Department’s files and they were not used by the Department for any purpose Kissinger 445 U S at 157 Stated differently the State Department did not acquire the requested documents “under Federal law or in connection with the transaction of public business ” Tax Analysts II 492 U S at 145 In the companion decision Forsham v Harris the Supreme Court faced the question of whether raw data relied on in a private but federally funded study constituted agency records of the agency funding the study Again the Court concluded the records were not agency records reasoning that the records “ha d never passed from private to agency control ” Forsham 445 U S at 185 That the agency had a right of access to the records did not alter this conclusion because “the FOIA applies to records which have been in fact obtained and not to records 17 Case 18-2814 Document 39 01 07 2019 2469007 Page26 of 56 which merely could have been obtained ” Id at 186 emphasis in original As in Tax Analysts II the Forsham Court drew guidance from the definition of agency record in the Records Disposal Act as well as the PRA and those statutes’ focus on records that have been created or obtained by the relevant agency See id at 183184 And as in Kissinger and Tax Analysts II the agency in question in Forsham did not acquire the requested documents “under Federal law or in connection with the transaction of public business ” Tax Analysts II 492 U S at 145 placing them outside the scope of agency records subject to the FOIA Two aspects of the control test dictated by Tax Analysts II bear particularly on the status of the Secret Service’s visitor records at issue here First as the Court made clear possession alone is nearly dispositive on the issue of “control ” In Tax Analysts II the Court rejected the government’s argument that because the requested opinions the Department of Justice had received while litigating tax cases remained in the ultimate control of the issuing court they were not agency records of DOJ The Court emphasized “The control inquiry focuses on an agency’s possession of the requested materials not on its power to alter the content of the materials it receive d ” Tax Analysts II 492 U S at 147 emphasis added As a result records in the legitimate possession of the agency as part of conducting agency business are “agency records ” 18 Case 18-2814 Document 39 01 07 2019 2469007 Page27 of 56 Second the Court directly rejected a definition of “agency records” that turns on “the intent of the creator of a document ” Id at 147 “Such a mens rea requirement ” the Court reasoned “is nowhere to be found in the Act ” Id The Court characterized “discerning the intent of the drafters of a document” as “an elusive endeavor” that the Court ultimately declined to require Id at 147-48 B The Secret Service’s visitor records are “agency records” under the Supreme Court’s definition of that term The visitor logs requested here readily meet the two-part Tax Analysts II test for “agency records ” First the Secret Service actually “created or obtained” the electronic records they reside on computer servers located at Secret Service headquarters and Secret Service personnel operate those servers Murray Decl JA 66 ¶ 16 This possession alone satisfies a key component of the test for agency records Second the Secret Service obtained the WAVES and EFACS records in performing its core statutory function to protect the president and the White House complex by performing background checks on White House visitors and verifying a visitor’s admissibility at the time of the visit Id JA 62 ¶ 6 2006 MOU JA 70 ¶ 12 This satisfies the control requirement “that the materials have come into the agency’s possession in the legitimate conduct of its official duties ” Tax Analysts II 492 U S at 145 even if through memoranda of understanding the White House 19 Case 18-2814 Document 39 01 07 2019 2469007 Page28 of 56 claims some level of continuing or eventual control id at 146 2 This is all that Tax Analysts II requires regardless of the documents’ ultimate disposition as provided by the 2006 and 2015 Memoranda of Understanding Tax Analysts II 492 U S at 147-48 3 Similarly the Secret Service’s records reflecting the president’s schedule including those the agency uses to clear visitors to Mar-a-Lago meet the Supreme Court’s two-part test for agency records The Secret Service receives these documents by email from the White House on a nightly basis Murray Decl JA 67-68 ¶ 22 thereby satisfying the possession requirement The agency in turn uses these records “to fulfill its operational needs ” id JA 68 ¶ 24 specifically “to perform its statutory duty to protect the President Vice President and other protectees as well as the White House Complex ” id JA 68 ¶ 24 thereby satisfying the control requirement 2 Notably guidance from the National Archives and Records Administration recognizes that agency records can be temporary a status that may not require the possessing agency to maintain the records permanently but still mandates that they be maintained and disposed of pursuant to the requirements of the FRA See e g 36 C F R § 1225 16 3 Moreover as discussed infra Defendants’ efforts to transform agency records into presidential records through memoranda of understanding to avoid disclosure under the FOIA contravene both the PRA and the FRA 20 Case 18-2814 Document 39 01 07 2019 2469007 Page29 of 56 C The definition of “agency records” the district court adopted contradicts the Supreme Court’s definition The district court ignored these facts and the controlling Supreme Court precedent to rely instead on a four-factor control test the D C Circuit initially applied when the Tax Analysts II case was before it Tax Analysts v U S Dep’t of Justice 845 F 2d 1060 D C Cir 1988 “Tax Analysts I” and that the Supreme Court declined to adopt The repudiated test looks well beyond the fundamental feature of control Tax Analysts II established to instead rely most heavily on the intent of the records’ creator to retain control Tax Analysts I 845 F 2d at 1068 “ W e look for evidence surrounding the creation and transmittal of a document indicating that its creator intended to retain control ” id at 1069 the D C Circuit’s four-factor test begins with “the intent of the document’s creator to retain or relinquish control over the records ” As even one member of the D C Circuit has acknowledged however the Supreme Court’s decision in Tax Analyst II directly contradicts that approach by deeming ‘the author’s intent a s irrelevant to whether a document is an ‘agency record ’” thereby undermining the precedential value of D C Circuit precedent that “relie s heavily on the authors’ purpose in creating the documents ” Consumer Fed’n of America v Dep’t of Agriculture 455 F 3d 283 294 D C Cir 2006 Henderson J concurring The district court refused to recognize this conflict between the D C Circuit’s four-factor test and the two-part Tax Analysts II test and instead 21 Case 18-2814 Document 39 01 07 2019 2469007 Page30 of 56 construed the Supreme Court’s reasoning as limited to the situation where documents originated outside the agency Op Order JA 157 This limitation draws no support from the Court’s broad language in Tax Analysts II that a “determination of ‘agency records’” should not “turn on the intent of the creator” because “a mens rea requirement is nowhere to be found in the Act ” 492 U S at 147 Quite simply the FOIA makes no mention of an intent requirement a conclusion in harmony with the Supreme Court’s reliance on the Records Disposal Act – which also lacks a mens rea requirement – to determine the meaning of “agency record” under the FOIA Moreover the D C Circuit’s four factors and their focus on intent are indeterminate and difficult to apply Courts can readily assess whether an agency has acquired records in the legitimate conduct of its activities an ease the Tax Analysts II Court recognized in its prediction that “disputes over control should be infrequent ” 492 U S at 146 n 6 By contrast as the D C Circuit’s tangled decisions concerning congressional and presidential records show application of the four-factor test requires a fundamentally subjective analysis that is particularly ill-suited for the FOIA context where issues typically are resolved on summary judgment motions with no preceding discovery See e g United We Stand Am Inc v IRS 359 F 3d 595 599-601 D C Cir 2004 Judicial Watch 726 F 3d at 220 “Our past application of the test reveals its considerable indeterminacy ” 22 Case 18-2814 Document 39 01 07 2019 2469007 Page31 of 56 The district court also attempted to draw support from the decision of this Court in Main Street Legal Servs Inc v Nat’l Sec Council 811 F 3d 542 2d Cir 2016 which it characterized as also resting on intent in its conclusion that an entity created in part by the president and subcomponents of that entity were not agencies subject to the FOIA See Op Order JA 158 That case however presented a very different issue not present here namely whether the National Security Council “NSC” and the NSC System parts of which were created by statute and parts of which were created by presidential directive constituted an agency under the FOIA Because the entities’ organic statute and the presidential directive creating them did not grant either the NSC or the NSC System any independent authority the Court concluded they were not an agency subject to the FOIA Main Street Legal Servs Inc 811 F 3d at 569 In reaching this conclusion the Court necessarily had to consider the president’s intent because “the President alone decides the extent and conditions of any delegation” to an entity he controls id at 558 requiring the Court to determine whether the directive establishing the NSC System “indicates any intent to transfer presidential authority so that it can be exercised independent of the President ” Id The Main Street Legal Services decision considered intent in the context of determining whether an entity that solely advised and assisted the president was an agency because of the authority the president had conferred on that entity Id at 23 Case 18-2814 Document 39 01 07 2019 2469007 Page32 of 56 551-2 That analysis required the Court to determine the president’s intent in establishing the NSC and the NSC System in the first place The district court erred here in relying on this authority to consider intent in the entirely different context of determining whether a document in an agency’s possession is an agency record an analysis that under Supreme Court precedent is objective not intent-based Even if the district court properly could have considered intent – a factor the Supreme Court unambiguously has rejected – it erred by relying on the 2015 MOU as evidence of the White House’s intent to retain control The 2015 MOU supplements and enhances the 2006 MOU and the district court construed both as evidence that the visitor records were not subject to the Secret Service’s control As discussed infra however those memoranda represent unlawful attempts by the Defendants to transform agency records into presidential records so as to place them beyond the FOIA’s reach in violation of both the FRA and the PRA 4 4 Moreover the district court should have followed the better-reasoned decision of the district court in Judicial Watch which concluded that even applying the D C Circuit’s four-factor test the visitor logs are agency records Judicial Watch Inc v U S Secret Service 803 F Supp 2d 51 D D C 2011 In reaching this conclusion the court relied on the ability of the Secret Service to use and dispose of the records the fact that Secret Service personnel had read and relied on the documents in performing their statutory responsibilities and the fact that the records were integrated into the Secret Service’s record system even if they were eventually transferred to the White House Id at 58-60 Those same factors compel the identical conclusion here The court also rejected the idea that constitutional avoidance required construing the FOIA to not cover the Secret Service records reasoning that because the court was not facing the task of interpreting an ambiguous statute “ t he Constitutional avoidance doctrine is not applicable ” Id 24 Case 18-2814 Document 39 01 07 2019 2469007 Page33 of 56 The district court employed a similarly flawed approach to reach an equally erroneous conclusion in evaluating the agency record status of Secret Service records reflecting the president’s schedule Because the Secret Service did not create these records in the first instance “but only passively received them from the White House ” the district court concluded they were not agency records Op Order JA 177 But this conclusion conflicts directly with Tax Analysts II which established as a prerequisite for agency record status that an agency “either create or obtain the requested materials ” 492 U S at 144 emphasis added quotations omitted Without question the Secret Service obtained the Secret Service records reflecting the president’s schedule and it did so “in the legitimate conduct of its official duties ” Id at 145 Again this is all that Tax Analysts II requires Finally the district court appeared to create an entirely new exception to the definition of “agency record” out of whole cloth information that has a “connection to the President ” Op Order JA 166 For those visitor logs involving EOP components that are agencies the court recognized they are subject to compelled disclosure under the FOIA Yet the court also deemed as non-agency records – and therefore not available under the FOIA – information in EOP agency records “that would not constitute agency records in light of its connection to the at 60 Here too there is no ambiguity and as in Judicial Watch “the Secret Service has a ready recourse in Exemption 5” to protect its interests Id at 61 25 Case 18-2814 Document 39 01 07 2019 2469007 Page34 of 56 President ” Id The court cited no precedent and Plaintiffs know of none for this novel approach of excluding from the FOIA information that merely has some connection to the president Moreover as discussed infra exempting from the FOIA any information that merely has a “connection” to the president essentially would create a tenth exception to the FOIA with a potentially vast reach that Congress has declined to adopt For example the president flies Air Force One are all Defense Department records related to that aircraft and all those flights no longer agency records because they have a connection to the president The district court’s approach – which would answer this question in the affirmative – applies an entirely unworkable test with potentially unlimited results that conflicts directly with the Supreme Court’s straightforward two-part test for agency records D The district court erred by relying on other grounds as a reason to ignore the Supreme Court’s two-part test for “agency records ” The district court compounded its error in its determination of “agency records” by embracing the D C Circuit’s reliance on “special policy considerations ” See e g United We Stand Am Inc 359 F 3d 595 599 D C Cir 2004 “ W e relied on policy considerations unique to the congressional context” Judicial Watch 726 F 3d at 221 “ A somewhat different control test applies when there are ‘special policy considerations’ at stake ” quoting Paisley v CIA 712 F 2d 686 693 n 30 D C Cir 1983 In Judicial Watch which also 26 Case 18-2814 Document 39 01 07 2019 2469007 Page35 of 56 involved a FOIA request for the Secret Service’s White House visitor records the D C Circuit believed that because the Secret Service in creating its visitor records had obtained information from the White House an entity not covered by the FOIA and because through the 2006 MOU the White House had “‘manifested a clear intent to control’ the documents ” 726 F 3d at 223 quoting United We Stand Am Inc 359 F 3d at 597 special policy considerations dictated that the visitor records be treated as non-agency records outside the scope of the FOIA The D C Circuit considered those special policy considerations as necessary to protect the “constitutional prerogatives” of the president Judicial Watch 726 F 3d at 223-4 By following this course charted by the D C Circuit and ignoring Supreme Court precedent the district court here employed a process fundamentally at odds with the FOIA’s language and purpose The FOIA’s default is disclosure Congress enacted the statute “to ensure an informed citizenry vital to the functioning of a democratic society needed to check against corruption and to hold the governors accountable to the governed ” NLRB v Robbins Tire Rubber Co 437 U S 214 242 1978 Toward that end Congress intended that records held by agencies in the discharge of their official duties be publicly available Tax Analysts II 492 U S at 144 At the same time Congress recognized the need to protect certain executive prerogatives and interests and did so through carefully calibrated and narrowly construed exemptions Dep’t of the Air Force v Rose 425 U S 352 361 1976 27 Case 18-2814 Document 39 01 07 2019 2469007 Page36 of 56 Those exemptions include inter alia protection for properly classified information Exemption 1 for statutorily protected information Exemption 3 and for deliberative and other privileged materials Exemption 5 The D C Circuit’s four-factor control test inverts the operation of the statute by infusing the definition of “agency records” with “special” policy considerations and limitations of the sort Congress accommodated through the FOIA’s exemptions The district court applied these considerations without examining whether the existing exemptions sufficiently protect any presidential interests found in the visitor records thereby deepening the conflict between the D C Circuit’s four-factor test and the approach the Tax Analysts II decision dictates See Op Order JA 160-62 In essence the district court engrafted onto the FOIA an amorphous tenth exemption that improperly narrows the FOIA’s definition of “agency records ”5 Nor do separation of powers concerns dictate otherwise as the district court concluded based on the flawed reasoning in Judicial Watch that subjecting presidential information in the possession of agencies to the FOIA is the equivalent of subjecting the president himself to the FOIA See Judicial Watch 726 F 3d at 231-32 This reasoning in turn flows from the flawed assumption that by 5 Notably while Congress has amended the FOIA and enacted other legislation containing Exemption 3 statutes since the status of Secret Service visitor records was first raised it has not chosen to exempt those records 28 Case 18-2814 Document 39 01 07 2019 2469007 Page37 of 56 exempting the president from the FOIA Congress was attempting to insulate presidential information from the FOIA Amendments to the FOIA in 1974 expanded the definition of agencies subject to the statute’s requirements to include inter alia the EOP The drafters explained that the purpose of the expanded agency definition at least as to the EOP was to reach “the result reached in Soucie v David 448 F 2d 1067 D C Cir 1971 ” H R Conf Rep No 93-1380 1974 14-15 S Conf Rep No 93-1200 1974 7 That decision resolved the question of whether the Office of Science and Technology “OST” a component of the EOP was an agency for purposes of the FOIA Applying a functional analysis that considered whether the “sole function” of the OST was “to advise and assist the President ” the Soucie court concluded that because the OST had a separate independent function to evaluate federal programs it “must be regarded as an agency subject to the APA and the Freedom of Information Act ” 448 F 2d at 1075 Significantly the court reached this conclusion notwithstanding “any confidential relation between the Director of the OST and the President – a relation that might result in the use of such information as a basis for advice to the President ” Id emphasis added As this conclusion makes clear the determination of whether the FOIA should apply depends not on the character of any particular information contained in the documents – even if that information is provided directly to or from the president – but on the degree to 29 Case 18-2814 Document 39 01 07 2019 2469007 Page38 of 56 which the entity creating or possessing the documents is functionally independent from the president The Soucie decision exposes the fundamental flaw in the district court’s reasoning that the Secret Service’s visitor records cannot be subject to the FOIA because Plaintiffs could not obtain them directly from the president By exempting certain EOP components from the FOIA Congress was not seeking to protect presidential information but rather to protect components that advise and assist the president from the FOIA process Any other conclusion would be unworkable and fail to reflect the reality that presidents carry out their agendas through executive agencies Whenever a president issues a directive to federal agencies to implement policy authorizes an agency to carry out a course of action or communicates or visits with agency officials the president leaves a trail of agency records subject to the FOIA While some of those records may be exempt from compelled production because they fall within one or more of the FOIA’s exemptions they nevertheless are “agency records” even if they reveal information relating to or emanating from the president For example the Office of Legal Counsel renders legal advice directly to the president in response to specific requests While that advice may fall within FOIA Exemption 5 it nevertheless constitutes an agency record of the DOJ Similarly the Office of Government Ethics renders ethics advice regarding prospective White 30 Case 18-2814 Document 39 01 07 2019 2469007 Page39 of 56 House employees based on information the White House supplies yet its advice is subject to the FOIA Moreover the district court’s treatment of the requested Secret Service records has no limiting principle If “correspondence detailing the President’s daily schedule” is not an agency record because it reflects or references information about the president that could not be obtained directly from the president see Op Order JA 178 then under the district court’s logic any information an agency creates or obtains that mentions references or reflects something about the president and exempt EOP components also would be beyond the FOIA’s reach Yet experience and caselaw demonstrate otherwise For example pardon documents from DOJ that included documents solicited and received by the president and top aides regarding individual pardon petitions were held to be subject to the FOIA but exempt as presidential communications under FOIA Exemption 5 Judicial Watch Inc v Dep’t of Justice 365 F 3d 1108 1123 D C Cir 2004 Those same documents could not have been requested directly from the president yet that fact did not alter their characterization as agency records Similarly CREW filed a FOIA request with the Department of Justice for calendars of the attorney general for specified dates See Decl of Anne Weismann “Weismann Decl” JA 101 The disclosed records included entries for White House visits Exhibit A to Weismann Decl JA 102-113 – information CREW 31 Case 18-2814 Document 39 01 07 2019 2469007 Page40 of 56 could not have requested directly from the White House but which in the possession of DOJ was considered to be an agency record The district court rejected this argument as “a straw man ” Op Order JA 178 but failed to offer an explanation for why the logic of its conclusion is “limited to the documents at issue ” Id The short answer is that it is not II The District Court Erred in Dismissing Plaintiffs’ APA Claims Challenging the Secret Service’s and EOP’s Recordkeeping Policies and Directives as Contrary to Law The district court also erred in granting Defendants’ motion to dismiss Plaintiffs’ APA claims as nonjusticiable Those claims challenge the policy and practice embodied in memoranda of understanding between the EOP and DHS of treating Secret Service visitor logs as within the scope of the PRA and outside the reach of the FOIA The district court erred in two critical respects First the district court erred in finding that Plaintiffs failed to adequately plead their APA claims see Op Order JA 189-94 ignoring the express challenges in the Amended Complaint to Defendants’ unlawful policies of treating agency records as presidential records and the 2015 Memorandum of Understanding implementing and reflecting these unlawful policies Second the district court committed clear error in failing to consider evidence that Defendants introduced with their dispositive motion that further supports Plaintiffs’ APA claims see Op Order JA 188-89 specifically a 2006 32 Case 18-2814 Document 39 01 07 2019 2469007 Page41 of 56 Memorandum of Understanding between the EOP and the Secret Service that purports to define agency records as presidential records in direct contravention of the FRA and PRA see 2006 MOU JA 69-73 ¶ 17 as well as declarations providing further evidence of Defendants’ unlawful policies A Plaintiffs adequately pleaded justiciable APA claims alleging that Defendants’ recordkeeping policies were contrary to law This Court has not yet had an opportunity to consider which kinds of FRA and PRA challenges are justiciable under the APA The D C Circuit has however and the framework established by that court clearly encompasses the claims Plaintiffs raise here This Court should follow that framework on this issue Plaintiffs properly alleged that the Secret Service and EOP had an unlawful policy and practice of treating agency records as presidential records Not only does this policy undermine any reliance on it as evidence that the requested Service records were not within the agency’s control but Plaintiffs’ APA claims challenging that policy fall squarely within the scope of justiciable claims under the D C Circuit’s framework for FRA and PRA violations that the district court adopted In reasoning set forth in a series of opinions and adopted by the district court the D C Circuit established a framework for the kinds of FRA and PRA challenges that are justiciable under the APA See Armstrong v Bush 924 F 2d 282 D C Cir 1991 “Armstrong I” and Armstrong v EOP 1 F 3d 1274 D C 33 Case 18-2814 Document 39 01 07 2019 2469007 Page42 of 56 Cir 1993 “Armstrong II” The plaintiffs in these cases were seeking to prevent the president the Archivist of the United States and the National Security Council from erasing material stored on the NSC computer system during the final days of President Ronald Reagan’s administration In Armstrong I the D C Circuit held that the APA created a justiciable cause of action for challenging agency recordkeeping guidelines and policy as failing to comply with the FRA 924 F 2d 291-94 6 Two years later in Armstrong II the D C Circuit affirmed the district court’s findings that electronic records were “records” for the purposes of the FRA and that both the agency’s practices for preserving electronic records and the agency's supervision of electronic recordkeeping practices fell short of what the FRA required Armstrong II 1 F 3d 1282-88 In addition the D C Circuit reversed the district court’s refusal to adjudicate the Armstrong plaintiffs’ PRA “claim that NSC guidelines did not adequately distinguish between federal records and presidential records ” Id at 1281 The D C Circuit held that the district “may review the EOP guidelines for the limited purpose of ensuring that they do not encompass within their operational definition of presidential records materials property subject to the FOIA ” Id at 1290 6 The D C Circuit separately held that although specific instances of noncompliance with agency recordkeeping guidelines were not reviewable a litigant could challenge an agency’s failure to take enforcement action to remedy noncompliance Armstrong I 924 F 2d 295-296 This portion of the Armstrong decision is not at issue here 34 Case 18-2814 Document 39 01 07 2019 2469007 Page43 of 56 Although the Armstrong II court held that APA claims alleging that “creation management and disposal” decisions violate the PRA were not justiciable the D C Circuit explained that courts have a critical role in policing executive branch guidelines and policies purporting to specify what is or is not a presidential record to ensure that those definitions harmonize with the PRA FRA and the FOIA Id at 1292-93 Plaintiffs’ claims challenging the recordkeeping policies of the Secret Service and the EOP fall well within the scope of justiciable APA claims recognized in the Armstrong opinions These claims plainly challenge a recordkeeping policy that Plaintiffs allege is unlawful under the FRA and PRA The first paragraph of the Amended Complaint describes as arbitrary capricious and contrary to law “the treatment by the Executive Office of the President ‘EOP’ and DHS of records of visits to agency components of the EOP as presidential records under the PRA that are not publicly accessible through the FOIA and the failure of DHS to manage and preserve these records under the FRA ” Am Compl JA 17-18 ¶ 1 In support of this assertion the Amended Complaint references a passage from the 2015 MOU to which the EOP and Secret Service are both signatories That document states in relevant part a ll records created stored used or transmitted by on or through the unclassified information systems and information resources provided to the President Vice President and EOP shall remain under the 35 Case 18-2814 Document 39 01 07 2019 2469007 Page44 of 56 exclusive ownership control and custody of the President Vice President or originating EOP component Am Compl JA 29 ¶ 50 quoting 2015 MOU During briefing on Plaintiffs’ motion to dismiss Defendants did not contest the veracity of these allegations Instead the government confirmed that the 2015 MOU reflects the current policy of the White House and Secret Service Def ’s Opening Br at 4 ECF Dkt No 45 and even attached declarations to its motion supporting that claim See e g Murray Decl JA 66 ¶ 17 The Amended Complaint articulates two claims premised on these allegations Claim Three alleges that “ b y entering into an MOU that declares that the records of visits to agency components of the EOP are under the exclusive ownership control and custody of the President Vice President or originating EOP component the EOP violated its mandatory non-discretionary obligation under the FRA and the PRA to treat these records as agency records of DHS subject to the FOIA ” Am Compl JA 30 ¶ 63 Similarly Claim Four alleges that “ b y entering into an MOU that declares that the records of visits to agency components of the EOP are under the exclusive ownership control and custody of the President Vice President or originating EOP component DHS violated its mandatory non-discretionary obligation under the FRA to treat and manage these records as agency records of DHS subject to the FOIA ” Id JA 31 ¶ 67 36 Case 18-2814 Document 39 01 07 2019 2469007 Page45 of 56 As relief for these claims Plaintiffs seek injunctive and declaratory relief including 1 an order requiring the EOP to treat the visitor records as agency records of DHS 2 a declaration that “all records the Secret Service creates and maintains of visits to agency components of the EOP are agency records of DHS and any MOU to the contrary is unlawful and unenforceable ” and 3 an order requiring DHS to treat and manage the visitor records “as agency records of DHS subject to the FOIA ” Id JA 31-32 emphasis added In short the Amended Complaint expressly and unambiguously challenges a policy namely the treatment of agency records as presidential records cites a document that reflects and implements that policy articulates why the policy is contrary to law and requests declaratory and injunctive relief to remedy the violations Plaintiffs allege The district court’s efforts to distinguish the 2015 MOU from policies and guidance that have been subject to justiciable challenges elsewhere are unpersuasive First the district court failed to appreciate the significance of a policy that functionally classifies agency records as presidential records For instance the district court reasoned that the 2015 MOU does not constitute a policy or guidance properly subject to challenge because it “does not command recordkeeping practices that could result in improper disposal under the FRA or constitute the functional equivalent of such impermissible steps ” Op Order JA 192 But this assertion fails to account for the significant differences outlined in 37 Case 18-2814 Document 39 01 07 2019 2469007 Page46 of 56 the Amended Complaint between recordkeeping under the FRA and that under the PRA See Am Compl JA 21-23 ¶¶ 14-22 Under the FRA records can be removed or destroyed only with the permission of the archivist and enforcement action by the archivist and the agency head to remedy improper removal is mandatory and subject to justiciable APA claims under Armstrong I 7 By contrast courts have held that the PRA contains essentially no enforcement mechanism see e g Judicial Watch Inc v Nat’l Archives Records Admin 845 F Supp 2d 288 301 D D C 2012 leaving the president with largely unfettered discretion to determine what is and what is not a permanent record Those records the president deems permanent are transferred to the archivist for preservation at the end of an administration and are released to the public only after a lengthy delay See 44 U S C §§ 2203 2204 For that reason the policy – reflected in the 2015 MOU – of treating agency records as presidential records could be expected to have precisely the effect the district court claimed it would not recordkeeping practices based on the discretion the PRA affords the president that could result in improper disposal in violation of the FRA Indeed the concern that the executive branch might undermine Congress’s efforts to establish different regimes for agency records and presidential records 7 In addition as explained above agency records of an administration are subject to contemporaneous FOIA requests and therefore can be obtained by members of the public long before presidential records become publicly available 38 Case 18-2814 Document 39 01 07 2019 2469007 Page47 of 56 was one of the principal rationales cited by the D C Circuit when it held in Armstrong II that recordkeeping policies and guidance could be challenged The D C Circuit explained Our holding today is also consonant with the relationship between the FRA and the PRA The FRA defines a class of material that are federal records subject to its provisions and the PRA describes another mutually exclusive set of material that are subject to a different and less rigorous regime In other words no individual record can be subject to both statutes because their provisions are inconsistent If guidelines that purport to define presidential records were not reviewable the cross-appellees could effectively shield all federal records not only from the FOIA but also from the provisions of the FRA—thus evading the court holding in Armstrong I that the courts have jurisdiction to decide whether the NSC’s recordkeeping guidelines adequately describe the material subject to the FRA Armstrong II 1 F 3d at 1293 Despite purporting to adopt the Armstrong framework the district court ignored its fundamental lesson the entire recordkeeping regime that Congress established for agency and presidential records requires judicial scrutiny of executive branch policies that determine how different records are treated The district court’s contention that “Plaintiffs’ claims under the FRA and PRA do not contain a sufficient factual basis for the Court’s review ” Op Order JA 192 also rings hollow As explained above the Amended Complaint identifies the policy Plaintiffs are challenging as well as a specific document the 2015 MOU reflecting and implementing that policy and seeks declaratory and 39 Case 18-2814 Document 39 01 07 2019 2469007 Page48 of 56 injunctive relief under the APA because the policy contravenes both the FRA and the PRA See Am Compl JA 17-18 29-31 ¶¶ 1 50 63 67 To the extent that the district court’s reasoning rests on the fact that Plaintiffs challenge the “treatment by the Executive Office of the President ‘‘EOP’” and DHS of records of visits to agency components of the EOP as presidential records” without explicitly referring to it as a “policy” or “guideline ” the court exalted form over substance More to the point neither the requirements of Rule 12 b 1 nor the D C Circuit’s Armstrong opinions require incantation of those magic words to render an FRA and PRA claim justiciable What matters is that Plaintiffs allege facts stating a plausible claim that Defendants have a policy or guidelines that violate the FRA and or PRA That bar is one that the Amended Complaint easily passes Nor is there any reason for this Court to depart from the balanced outcome that the D C Circuit reached in Armstrong II By permitting judicial review of policies or guidelines establishing what records are presidential records the court sought to preserve Congress’s “clear limitation on just which materials the President could legitimately assert control over” and to safeguard “the pre-existing body of FOIA law governing the disclosure of government agency records ” Armstrong II 1 F 3d at 1292 As the D C Circuit explained This narrow clearly defined limitation on the scope of the PRA is absolutely essential to preventing the PRA from becoming a potential presidential carte blanche to shield materials from the reach of the FOIA Of course we presume that executive officials will act in good 40 Case 18-2814 Document 39 01 07 2019 2469007 Page49 of 56 faith But if guidelines that purport to implement the PRA were not reviewable for compliance with the statute’s definition of presidential records non-presidential materials that would otherwise be immediately subject to the FOIA would be shielded from its provisions whether wittingly or unwittingly if they were managed as presidential records Moreover in light of the fact that disposal decisions under the PRA are unreviewable a non-presidential document subject to the FOIA could be forever removed from that statute’s provisions if it were improperly classified as a presidential record and destroyed Id at 1292-93 internal citations omitted emphasis in original Judicial review of policies that establish which records are agency records and which are presidential records is critical to upholding the entire recordkeeping regime that Congress established Because the Amended Complaint properly alleges that Defendants’ recordkeeping policies violate the FRA and the PRA and therefore fall squarely within the framework for justiciable claims that Armstrong II established this Court should reverse the district court’s decision to dismiss Plaintiffs’ APA claims B The district court committed clear error in failing to consider additional evidence Defendants introduced that supports the justiciability of Plaintiffs’ recordkeeping claims The district court also committed clear error in failing to consider additional evidence that Defendants introduced into the record and that clearly demonstrates the justiciability of Plaintiffs’ claims Although consideration of evidence extrinsic to a complaint is discretionary see Makarova v United States 201 F 3d 110 113 2d Cir 2000 “In resolving a motion to dismiss for lack of subject matter 41 Case 18-2814 Document 39 01 07 2019 2469007 Page50 of 56 jurisdiction under Rule 12 b 1 a district court may refer to evidence outside the pleadings ” in this case the district court declined to do so on the demonstrably false premise that Plaintiffs introduced this evidence “into their pleading by way of their opposition brief ” Op Order JA 189 To the contrary Defendants introduced this evidence in support of their dispositive motion See e g 2006 MOU JA 69-73 Murray Decl JA 65 67 ¶¶ 14 19 Droege Decl JA 88-81 ¶¶ 5-6 Herndon Decl JA 85-86 ¶ 6 In addition the district court ignored this evidence when ruling on the APA claims but relied on the very same materials as the factual basis for its decision to grant summary judgment on Claims One and Two See Op Order JA 131-36 152 163-64 In so doing the district court selectively and erroneously ignored additional evidence substantiating the justiciability of Plaintiffs’ recordkeeping claims The most important piece of extrinsic evidence that the district court declined to consider is a 2006 Memorandum of Understanding that reflects the precise policy Plaintiffs challenge the treatment by the White House and DHS of agency records as presidential records The 2006 MOU plainly states that the Secret Service an agency whose records are subject to the FRA and the FOIA operates the White House Access Control System “WHACS” 2006 MOU JA 69-70 ¶¶ 2 10 That system contains information submitted by White House pass holders as well as records generated when permanent or temporary White House 42 Case 18-2814 Document 39 01 07 2019 2469007 Page51 of 56 passes are swiped over electronic pass readers id JA 69-70 ¶¶ 4-5 the WAVES and EFACS records sought here The 2006 MOU also explains that the Secret Service uses WHACS records to perform duties that are central to its mission performing background checks on White House visitors and verifying a visitor’s admissibility at the time of the visit Id JA 70 ¶ 12 The FRA defines records as “all recorded information regardless of form or characteristics made or received by a Federal agency ” 44 U S C § 3301 emphasis added 8 The 2006 MOU however states and implements a policy that conflicts directly with this definition by deeming WHACS records to be “at all times Presidential Records” that are neither federal records nor “the records of an ‘agency’ subject to the Freedom of Information Act 5 U S C § 552 ” 2006 MOU JA 71 ¶ 17 In other words the 2006 MOU embodies the precise policy that Plaintiffs allege violates the FRA and PRA – the treatment of agency records as presidential records See Am Compl JA 17-18 29-31 ¶¶ 1 62 66 JA 31-32 Requested Relief 5 - 7 Nor is there any doubt based on the record that either the 2006 MOU or the policy is still in place See Droege Decl JA 81 ¶ 8 “The 2006 MOU continues to reflect current practices and interests with respect to WAVES and ACR records ” 8 The FOIA defines “record” to mean in relevant part “any information that would be an agency record subject to the requirements of this section when maintained by an agency in any format including an electronic format ” 5 U S C § 552 f 2 43 Case 18-2814 Document 39 01 07 2019 2469007 Page52 of 56 Defendants also submitted several declarations that contain additional facts substantiating the justiciability of Plaintiffs’ claims and indeed the district court relied on those very declarations in granting Defendants summary judgment on Claims One and Two For instance the district court cited the Murray and Willson Declarations for the proposition that the Secret Service normally “auto-deletes” records over 60-days old from its servers See Op Order JA 133-34 citing Murray Decl JA 65 ¶ 13 Declaration of William Willson JA 75 ¶ 6 Another of Defendants’ declarants attested that “ s ince at least 1990 throughout the last five Presidential administrations it has been the policy and practice of the White House Office in accordance with the Presidential Records Act 44 U S C § 2201 et seq to retain and maintain control over records generated by the Worker and Visitor Entrance System ‘WAVES’ ” Droege Decl JA 80 ¶ 3 emphasis added In sum this is not a case where evidence extrinsic to the complaint conflicts with Plaintiffs’ allegations To the contrary the evidence proffered by Defendants and selectively ignored by the district court unambiguously supports the justiciability of Plaintiffs’ APA claims The district court’s failure to consider this evidence is further grounds for reversal 44 Case 18-2814 Document 39 01 07 2019 2469007 Page53 of 56 C To the extent Plaintiffs’ jurisdictional allegations are deficient Plaintiffs should be afforded an opportunity to amend the complaint to reflect the evidence in the record Alternatively Plaintiffs respectfully request that this Court grant Plaintiffs leave to amend the complaint so that it reflects the extrinsic evidence that clearly establishes the justiciability of Plaintiffs’ claims Section 1653 of Title 28 permits amendment of pleadings in federal trial or appellate courts to remedy defective allegations of jurisdiction Such relief is “construed liberally to permit the action to be maintained if it is at all possible to determine from the record that jurisdiction does in fact exist ” Aurecchione v Schoolman Transp Sys Inc 426 F 3d 635 639 2d Cir 2005 see also Troupe v Chicago D G Bay Transit Co 234 F 2d 253 258 n 6 2d Cir 1956 “The whole record may be looked to for the purpose of curing a defective averment of jurisdiction ” As detailed above Defendants introduced additional evidence in their briefing on their dispositive motion that substantiates Plaintiffs’ allegations that Defendants’ recordkeeping policies violate both the PRA and the FRA To the extent that this Court declines to consider this additional evidence supporting Plaintiffs’ claims without its formal addition to the operative complaint Plaintiffs respectfully request leave to amend 45 Case 18-2814 Document 39 01 07 2019 2469007 Page54 of 56 CONCLUSION For the foregoing reasons this Court should reverse the judgment of the district court Dated January 7 2019 Respectfully submitted s Anne L Weismann Anne L Weismann Conor M Shaw Citizens for Responsibility and Ethics in Washington 1101 K Street N W Suite 201 Washington D C 20005 202 408-5565 aweismann@citizensforethics org Alex Abdo Jameel Jaffer Knight First Amendment Institute at Columbia University 475 Riverside Drive Suite 30 New York New York 10115 646 745-8500 Alex abdo@knightcolumbia org 46 Case 18-2814 Document 39 01 07 2019 2469007 Page55 of 56 CERTIFICATE OF FILING AND SERVICE I hereby certify that on this 7th day of January 2019 I caused this Brief of Appellants and Joint Appendix to be filed electronically with the Clerk of the Court using the CM ECF System which will send notice of such filing to all the registered CM ECF users I further certify that on this 7th day of January 2019 I caused the required number of bound copies of the Brief of Appellants with Joint Appendix to be filed with the Clerk of the Court via UPS Next Day Air s Anne L Weismann Counsel for Plaintiffs - Appellants Case 18-2814 Document 39 01 07 2019 2469007 Page56 of 56 CERTIFICATE OF COMPLIANCE 1 This brief complies with the type-volume limitation of Fed R App P 28 1 e 2 or 32 a 7 B because X this brief contains 10 926 words excluding the parts of the brief exempted by Fed R App P 32 a 7 B iii or this brief uses a monospaced typeface and contains state the number of lines of text excluding the parts of the brief exempted by Fed R App P 32 a 7 B iii 2 This brief complies with the typeface requirements of Fed R App P 32 a 5 and the type style requirements of Fed R App P 32 a 6 because X this brief has been prepared in a proportionally spaced typeface using Microsoft Word 2016 in 14pt Times New Roman or this brief has been prepared in a monospaced typeface using state name and version of word processing program with state number of characters per inch and name of type style Dated January 7 2019 s Anne L Weismann Counsel for Plaintiffs - Appellants