Case 18-2814 Document 40 01 07 2019 2469015 Page1 of 205 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 JOINT APPENDIX 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 Benjamin H Torrance UNITED STATES ATTORNEY'S OFFICE FOR THE SOUTHERN DISTRICT OF NEW YORK 86 Chambers Street New York New York 10007 212 637-2703 Counsel for Plaintiffs –Appellants Counsel for Plaintiffs –Appellants Counsel for Defendant – Appellee 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 40 01 07 2019 2469015 Page2 of 205 TABLE OF CONTENTS Appendix Page Docket Entries A-1 Amended Complaint for Injunctive and Declaratory Relief filed September 15 2017 A-17 Defendant’s Notice of Motion filed October 23 2017 A-34 Second Declaration of Kim E Campbell With Exhibits filed October 23 2017 A-36 Exhibits A Letter to FOIA Officer from Kate Doyle Re Expedited Request under the FOIA dated March 10 2017 A-51 Declaration of James M Murray With Exhibit filed October 23 2017 A-60 Exhibit 1 Memorandum of Understanding between The White House Office of Records Management and The United Sates Secret Service Record Management Program dated May 17 2006 A-69 Declaration of Supervisory Information Technology Specialist William Wilson Untied States Secret Service filed October 23 2017 A-74 Declaration of Philip C Drege filed October 23 2017 A-79 i Case 18-2814 Document 40 01 07 2019 2469015 Page3 of 205 Declaration of Charles Christopher Herndon With Attachments filed October 23 2017 A-84 Attachments Memorandum on Establishing the Director of White House Information Technology and The Executive Committee for Presidential Information Technology dated March 19 2015 A-88 Memorandum of Understanding dated September 21 2015 A-92 Attachment to Memorandum of Law filed December 4 2017 Attachment Declaration of Anne L Weismann With Exhibit filed December 4 2017 A-101 Exhibit A Letter to Anne L Weismann from Venessa R Brinkmann dated July 7 2017 A-102 ii Case 18-2814 Document 40 01 07 2019 2469015 Page4 of 205 Exhibit to Letter to The Honorable Judge Failla from Anne L Weismann filed February 20 2018 Exhibit A Public Citizen Settlement and Stipulation of Dismissal With Exhibits dated February 13 2018 114 Opinion and Order of The Honorable Katherine Polk Failla Re Granting in Part and Denying in Part Defendants’ Motion to Dismiss filed July 26 2018 A-128 Civil Judgment filed September 21 2018 A-198 Plaintiffs’ Notice of Appeal filed September 24 2018 A-200 iii Case 18-2814 Document 40 01 07 2019 2469015 Page5 of 205 SDNY CM ECF NextGen Version 1 2 https ecf nysd uscourts gov cgi-bin DktRpt pl 136687503020875-L_1_0-1 Query Reports Utilities Help Log Out CLOSED APPEAL ECF Doyle et al v U S Department of Homeland Security Assigned to Judge Katherine Polk Failla Cause 05 552 Freedom of Information Act Date Filed 04 10 2017 Date Terminated 09 21 2018 Jury Demand None Nature of Suit 895 Freedom of Information Act Jurisdiction U S Government Defendant Plaintiff Kate Doyle represented by Anne L Weismann Citizens For Responsibility and Ethics In Washington 455 Massachusetts Avenue N W Floor 6 Washington DC 20001 202 -408-5565 Fax 202 -588-5020 Email aweismann@citizensforethics org LEAD ATTORNEY ATTORNEY TO BE NOTICED Alexander Abraham Abdo Knight First Amendement Institute at Columbia University 475 Riverside Drive Suite 302 New York NY 10115 646-745-8500 Email alex abdo@knightcolumbia org 1 of 16 A-1 1 3 2019 9 40 AM Case 18-2814 Document 40 01 07 2019 2469015 Page6 of 205 SDNY CM ECF NextGen Version 1 2 https ecf nysd uscourts gov cgi-bin DktRpt pl 136687503020875-L_1_0-1 ATTORNEY TO BE NOTICED Plaintiff National Security Archive represented by Anne L Weismann See above for address LEAD ATTORNEY ATTORNEY TO BE NOTICED Alexander Abraham Abdo See above for address ATTORNEY TO BE NOTICED Plaintiff Citizens for Responsibility and Ethics in Washington represented by Anne L Weismann See above for address LEAD ATTORNEY ATTORNEY TO BE NOTICED Alexander Abraham Abdo See above for address ATTORNEY TO BE NOTICED Plaintiff Knight First Amendment Institute at Columbia University represented by Anne L Weismann See above for address LEAD ATTORNEY ATTORNEY TO BE NOTICED Alexander Abraham Abdo See above for address ATTORNEY TO BE NOTICED V Defendant U S Department of Homeland Security 2 of 16 represented by Brad P Rosenberg U S Department of Justice Civil Division 20 Massachusetts Ave N W A-2 1 3 2019 9 40 AM Case 18-2814 Document 40 01 07 2019 2469015 Page7 of 205 SDNY CM ECF NextGen Version 1 2 https ecf nysd uscourts gov cgi-bin DktRpt pl 136687503020875-L_1_0-1 Washington DC 20530 202 -514-3374 Fax 202 -616-8460 Email brad rosenberg@usdoj gov LEAD ATTORNEY ATTORNEY TO BE NOTICED Elizabeth J Shapiro U S Department of Justice 20 Massachusetts Ave N W Washington DC 20530 202 -514-5302 Email elizabeth shapiro@usdoj gov LEAD ATTORNEY ATTORNEY TO BE NOTICED Sarah Sheive Normand U S Attorney's Office SDNY 86 Chambers St 86 Chambers Street New York NY 10007 212 637-2200 Fax 212 637-2686 Email sarah normand@usdoj gov LEAD ATTORNEY ATTORNEY TO BE NOTICED Casey Kyung-Se Lee United States Attorney's Office SDNY 86 Chambers St 3rd Floor New York NY 10007 212-637-2800 Fax 212-637-2686 Email casey lee@usdoj gov ATTORNEY TO BE NOTICED ADR Provider 3 of 16 A-3 1 3 2019 9 40 AM Case 18-2814 Document 40 01 07 2019 2469015 Page8 of 205 SDNY CM ECF NextGen Version 1 2 Executive Office of the President https ecf nysd uscourts gov cgi-bin DktRpt pl 136687503020875-L_1_0-1 represented by Casey Kyung-Se Lee See above for address ATTORNEY TO BE NOTICED Sarah Sheive Normand See above for address ATTORNEY TO BE NOTICED 4 of 16 Date Filed # Docket Text 04 10 2017 1 COMPLAINT against U S Department of Homeland Security Filing Fee $ 400 00 Receipt Number 0208-13522466 Document filed by Knight First Amendment Institute at Columbia University Kate Doyle Citizens for Responsibility and Ethics in Washington National Security Archive Abdo Alexander Entered 04 10 2017 04 10 2017 2 FILING ERROR - DEFICIENT CIVIL COVER SHEET BLANK CIVIL COVER SHEET - CIVIL COVER SHEET filed Abdo Alexander Modified on 4 11 2017 kl Entered 04 10 2017 04 10 2017 3 RULE 7 1 CORPORATE DISCLOSURE STATEMENT No Corporate Parent Document filed by Kate Doyle Abdo Alexander Entered 04 10 2017 04 10 2017 4 RULE 7 1 CORPORATE DISCLOSURE STATEMENT No Corporate Parent Document filed by National Security Archive Abdo Alexander Entered 04 10 2017 04 10 2017 5 RULE 7 1 CORPORATE DISCLOSURE STATEMENT No Corporate Parent Document filed by Citizens for Responsibility and Ethics in Washington Abdo Alexander Entered 04 10 2017 04 10 2017 6 RULE 7 1 CORPORATE DISCLOSURE STATEMENT No Corporate Parent Document filed by Knight First Amendment Institute at Columbia University Abdo Alexander Entered 04 10 2017 04 10 2017 7 REQUEST FOR ISSUANCE OF SUMMONS as to U S Department of Homeland Security re 1 Complaint Document filed by Citizens for Responsibility and Ethics in Washington Kate Doyle Knight First Amendment Institute at Columbia University National Security A-4 1 3 2019 9 40 AM Case 18-2814 Document 40 01 07 2019 2469015 Page9 of 205 SDNY CM ECF NextGen Version 1 2 https ecf nysd uscourts gov cgi-bin DktRpt pl 136687503020875-L_1_0-1 Archive Abdo Alexander Entered 04 10 2017 04 10 2017 8 NOTICE OF CHANGE OF ADDRESS by Alexander Abraham Abdo on behalf of Knight First Amendment Institute at Columbia University New Address Knight First Amendment Institute at Columbia University 535 West 116th Street 314 Low Library New York New York United States 10027 212 854-9600 Abdo Alexander Entered 04 10 2017 04 11 2017 NOTICE TO ATTORNEY REGARDING DEFICIENT CIVIL COVER SHEET Notice to attorney Alexander Abraham Abdo to RE-FILE Document No 2 Civil Cover Sheet The filing is deficient for the following reason s CIVIL COVER SHEET IS BLANK Re-file the document using the event type Civil Cover Sheet found under the event list Other Documents and attach the correct PDF Use civil cover sheet issued by S D N Y dated July 2016 The S D N Y Civil Cover Sheet dated July 2016 is located at http nysd uscourts gov file forms civil-cover-sheet kl Entered 04 11 2017 04 11 2017 CASE OPENING INITIAL ASSIGNMENT NOTICE The aboveentitled action is assigned to Judge Katherine Polk Failla Please download and review the Individual Practices of the assigned District Judge located at http nysd uscourts gov judges District Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such Please download and review the ECF Rules and Instructions located at http nysd uscourts gov ecf_filing php kl Entered 04 11 2017 04 11 2017 Magistrate Judge Andrew J Peck is so designated kl Entered 04 11 2017 04 11 2017 Case Designated ECF kl Entered 04 11 2017 04 11 2017 9 ELECTRONIC SUMMONS ISSUED as to U S Department of Homeland Security kl Entered 04 11 2017 04 11 2017 10 CIVIL COVER SHEET filed Abdo Alexander Entered 04 11 2017 04 17 2017 11 NOTICE OF INITIAL PRETRIAL CONFERENCE Initial Conference set for 7 14 2017 at 04 00 PM in Courtroom 618 U S Courthouse 40 Centre Street New York NY 10007 before Judge 5 of 16 A-5 1 3 2019 9 40 AM Case 18-2814 Document 40 01 07 2019 2469015 Page10 of 205 SDNY CM ECF NextGen Version 1 2 https ecf nysd uscourts gov cgi-bin DktRpt pl 136687503020875-L_1_0-1 Katherine Polk Failla and as further set forth in this Order Signed by Judge Katherine Polk Failla on 4 17 2017 rjm Entered 04 17 2017 04 20 2017 12 AFFIDAVIT OF SERVICE of Summons and Complaint U S Department of Homeland Security served on 4 18 2017 answer due 5 9 2017 Service was made by Mail Document filed by Knight First Amendment Institute at Columbia University Kate Doyle Citizens for Responsibility and Ethics in Washington National Security Archive Attachments # 1 Exhibit Certified Mail Receipts Abdo Alexander Entered 04 20 2017 04 24 2017 13 FILING ERROR - DEFICIENT DOCKET ENTRY - MOTION for Anne L Weismann to Appear Pro Hac Vice Filing fee $ 200 00 receipt number 0208-13577863 Motion and supporting papers to be reviewed by Clerk's Office staff Document filed by Citizens for Responsibility and Ethics in Washington Kate Doyle Knight First Amendment Institute at Columbia University National Security Archive Weismann Anne Modified on 4 24 2017 ma Entered 04 24 2017 04 24 2017 NOTICE REGARDING DEFICIENT MOTION TO APPEAR PRO HAC VICE Notice to RE-FILE Document No 13 MOTION for Anne L Weismann to Appear Pro Hac Vice Filing fee $ 200 00 receipt number 0208-13577863 Motion and supporting papers to be reviewed by Clerk's Office staff The filing is deficient for the following reason s MISSING AFFIDAVIT OR DECLARATION PURSUANT TO LOCAL RULE 1 3 AND CERTIFICATE OF GOOD STANDING FROM THE COURT OF APPEALS FOR DISTRICT OF COLUMBIA Re-file the motion as a Motion to Appear Pro Hac Vice - attach the correct signed PDF - select the correct named filer filers - attach valid Certificates of Good Standing issued within the past 30 days - attach Proposed Order ma Entered 04 24 2017 04 24 2017 14 FILING ERROR - DEFICIENT DOCKET ENTRY - MOTION for Anne L Weismann to Appear Pro Hac Vice Motion and supporting papers to be reviewed by Clerk's Office staff Document filed by Citizens for Responsibility and Ethics in Washington Kate Doyle Knight First Amendment Institute at 6 of 16 A-6 1 3 2019 9 40 AM Case 18-2814 Document 40 01 07 2019 2469015 Page11 of 205 SDNY CM ECF NextGen Version 1 2 https ecf nysd uscourts gov cgi-bin DktRpt pl 136687503020875-L_1_0-1 Columbia University National Security Archive Attachments # 1 Affidavit # 2 Exhibit Certificate in Good Standing # 3 Text of Proposed Order Weismann Anne Modified on 4 25 2017 ma Entered 04 24 2017 04 25 2017 NOTICE REGARDING DEFICIENT MOTION TO APPEAR PRO HAC VICE Notice to RE-FILE Document No 14 MOTION for Anne L Weismann to Appear Pro Hac Vice Motion and supporting papers to be reviewed by Clerk's Office staff The filing is deficient for the following reason s MISSING CERTIFICATE OF GOOD STANDING FROM THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA Re-file the motion as a Motion to Appear Pro Hac Vice - attach the correct signed PDF - select the correct named filer filers - attach valid Certificates of Good Standing issued within the past 30 days - attach Proposed Order ma Entered 04 25 2017 05 04 2017 15 AFFIDAVIT OF SERVICE of Notice of Initial Pretrial Conference and Court's Individual Rules served on U S Department of Homeland Security on 4 19 2017 Service was made by Mail Document filed by Citizens for Responsibility and Ethics in Washington Kate Doyle Knight First Amendment Institute at Columbia University National Security Archive Attachments # 1 Affidavit Abdo Alexander Entered 05 04 2017 05 11 2017 16 NOTICE OF APPEARANCE by Elizabeth J Shapiro on behalf of U S Department of Homeland Security Shapiro Elizabeth Entered 05 11 2017 05 11 2017 17 NOTICE OF APPEARANCE by Sarah Sheive Normand on behalf of U S Department of Homeland Security Normand Sarah Entered 05 11 2017 05 11 2017 18 NOTICE OF APPEARANCE by Brad P Rosenberg on behalf of U S Department of Homeland Security Rosenberg Brad Entered 05 11 2017 05 16 2017 19 MOTION for Anne L Weismann to Appear Pro Hac Vice Motion and supporting papers to be reviewed by Clerk's Office staff Document filed by Citizens for Responsibility and Ethics in Washington Kate Doyle Knight First Amendment Institute at 7 of 16 A-7 1 3 2019 9 40 AM Case 18-2814 Document 40 01 07 2019 2469015 Page12 of 205 SDNY CM ECF NextGen Version 1 2 https ecf nysd uscourts gov cgi-bin DktRpt pl 136687503020875-L_1_0-1 Columbia University National Security Archive Attachments # 1 Affidavit of Anne L Weismann # 2 Exhibit Certificate in Good Standing # 3 Text of Proposed Order Weismann Anne Entered 05 16 2017 05 16 2017 NOTICE REGARDING PRO HAC VICE MOTION Regarding Document No 19 MOTION for Anne L Weismann to Appear Pro Hac Vice Motion and supporting papers to be reviewed by Clerk's Office staff The document has been reviewed and there are no deficiencies bcu Entered 05 16 2017 05 17 2017 20 ORDER FOR ADMISSION PRO HAC VICE granting 19 Motion for Anne L Weismann to Appear Pro Hac Vice Signed by Judge Katherine Polk Failla on 5 17 2017 rjm Entered 05 17 2017 05 22 2017 21 ANSWER to 1 Complaint Document filed by U S Department of Homeland Security Normand Sarah Entered 05 22 2017 07 06 2017 22 LETTER addressed to Judge Katherine Polk Failla from Sarah S Normand dated 07 06 2017 re Information Requested by Court in Advance of Initial Pretrial Conference Document filed by U S Department of Homeland Security Normand Sarah Entered 07 06 2017 07 14 2017 23 ORDER 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 The Secret Service will complete its search for and processing of responsive records of presidential visitors at Mar-a-Lago and produce any non-exempt responsive records by September 8 2017 Defendant will file its motion for summary judgment by September 29 2017 Plaintiffs will file their opposition which may include an affidavit 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 file a reply in support of any cross-motion by January 12 2018 Cross Motions due by 11 13 2017 Motions due by 9 29 2017 Responses due by 12 13 2017 Replies due by 1 12 2018 Signed by Judge Katherine Polk Failla on 7 14 2017 mro Entered 07 17 2017 8 of 16 A-8 1 3 2019 9 40 AM Case 18-2814 Document 40 01 07 2019 2469015 Page13 of 205 SDNY CM ECF NextGen Version 1 2 07 14 2017 https ecf nysd uscourts gov cgi-bin DktRpt pl 136687503020875-L_1_0-1 Minute Entry for proceedings held before Judge Katherine Polk Failla Initial Pretrial Conference held on 7 14 2017 Court Reporter Rose Prater Lopez Jose Entered 07 17 2017 08 16 2017 24 TRANSCRIPT of Proceedings re CONFERENCE held on 7 14 2017 before Judge Katherine Polk Failla Court Reporter Transcriber Rose Prater 212 805-0300 Transcript may be viewed at the court public terminal or purchased through the Court Reporter Transcriber before the deadline for Release of Transcript Restriction After that date it may be obtained through PACER Redaction Request due 9 6 2017 Redacted Transcript Deadline set for 9 18 2017 Release of Transcript Restriction set for 11 14 2017 McGuirk Kelly Entered 08 16 2017 08 16 2017 25 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 7 14 17 has been filed by the court reporter transcriber in the above-captioned matter The parties have seven 7 calendar days to file with the court a Notice of Intent to Request Redaction of this transcript If no such Notice is filed the transcript may be made remotely electronically available to the public without redaction after 90 calendar days McGuirk Kelly Entered 08 16 2017 08 30 2017 26 FILING ERROR - DEFICIENT DOCKET ENTRY - FIRST MOTION to Amend Correct 1 Complaint Document filed by Citizens for Responsibility and Ethics in Washington Kate Doyle Knight First Amendment Institute at Columbia University National Security Archive Attachments # 1 Memorandum in Support # 2 Exhibit A # 3 Exhibit B # 4 Exhibit C # 5 Exhibit D # 6 Exhibit E # 7 Exhibit F Weismann Anne Modified on 11 8 2017 ldi Entered 08 30 2017 09 07 2017 27 LETTER MOTION for Extension of Time to Produce Records to Plaintiffs addressed to Judge Katherine Polk Failla from Sarah S Normand dated 09 07 2017 Document filed by U S Department of Homeland Security Normand Sarah Entered 09 07 2017 09 08 2017 28 MEMO ENDORSED granting 27 Letter Motion for Extension of Time ENDORSEMENT Application GRANTED Defendant's deadline to produce agency records responsive to Plaintiff's FOIA request is hereby extended from September 8 2017 to September 15 9 of 16 A-9 1 3 2019 9 40 AM Case 18-2814 Document 40 01 07 2019 2469015 Page14 of 205 SDNY CM ECF NextGen Version 1 2 https ecf nysd uscourts gov cgi-bin DktRpt pl 136687503020875-L_1_0-1 2017 at 12 00 p m Signed by Judge Katherine Polk Failla on 9 8 2017 js Entered 09 08 2017 09 13 2017 29 RESPONSE to Motion re 26 FIRST MOTION to Amend Correct 1 Complaint and joint request for amended briefing schedule Document filed by U S Department of Homeland Security Normand Sarah Entered 09 13 2017 09 14 2017 30 MEMO ENDORSED granting 26 Motion to Amend Correct 26 FIRST MOTION to Amend Correct 1 Complaint ENDORSEMENT Application Granted So Ordered Signed by Judge Katherine Polk Failla on 9 14 2017 js Entered 09 14 2017 09 14 2017 Set Reset Deadlines Cross Motions due by 12 4 2017 Motions due by 10 23 2017 Responses due by 1 12 2018 Replies due by 2 2 2018 js Entered 09 14 2017 09 14 2017 31 FILING ERROR - DEFICIENT PLEADING - FILED AGAINST PARTY ERROR -FIRST AMENDED COMPLAINT amending 1 Complaint against U S Department of Homeland Security Document filed by Knight First Amendment Institute at Columbia University Kate Doyle Citizens for Responsibility and Ethics in Washington National Security Archive Related document 1 Complaint Weismann Anne Modified on 9 15 2017 pc Entered 09 14 2017 09 15 2017 NOTICE TO ATTORNEY REGARDING DEFICIENT PLEADING Notice to Attorney Anne L Weismann to RE-FILE re Document No 31 Amended Complaint The filing is deficient for the following reason s all of the parties listed on the pleading were not entered on CM ECF the wrong party parties whom the pleading is against were selected Docket the event type Add Party to Pleading found under the event list Complaints and Other Initiating Documents Re-file the pleading using the event type Amended Complaint found under the event list Complaints and Other Initiating Documents - attach the correct signed PDF select the individually named filer filers - select the individually named party parties the pleading is against pc Entered 09 15 2017 09 15 2017 32 FIRST AMENDED COMPLAINT amending 1 Complaint 31 Amended Complaint against U S Department of Homeland Security 10 of 16 A-10 1 3 2019 9 40 AM Case 18-2814 Document 40 01 07 2019 2469015 Page15 of 205 SDNY CM ECF NextGen Version 1 2 https ecf nysd uscourts gov cgi-bin DktRpt pl 136687503020875-L_1_0-1 Executive Office of the President Document filed by Knight First Amendment Institute at Columbia University Kate Doyle Citizens for Responsibility and Ethics in Washington National Security Archive Related document 1 Complaint 31 Amended Complaint Weismann Anne Entered 09 15 2017 09 20 2017 33 FILING ERROR - DEFICIENT DOCKET ENTRY - MOTION for Order to Show Cause for Failing to Comply With the Court's July 14 Order Document filed by Citizens for Responsibility and Ethics in Washington Kate Doyle Knight First Amendment Institute at Columbia University National Security Archive Attachments # 1 Memorandum of Law in Support # 2 Affidavit of Anne L Weismann # 3 Exhibit A # 4 Exhibit B # 5 Exhibit C # 6 Exhibit D # 7 Exhibit E # 8 Exhibit F Weismann Anne Modified on 11 21 2017 ldi Entered 09 20 2017 09 20 2017 34 LETTER MOTION for Oral Argument addressed to Judge Katherine Polk Failla from Anne L Weismann dated September 20 2017 Document filed by Citizens for Responsibility and Ethics in Washington Kate Doyle Knight First Amendment Institute at Columbia University National Security Archive Weismann Anne Entered 09 20 2017 09 20 2017 35 RESPONSE to Motion re 33 MOTION for Order to Show Cause for Failing to Comply With the Court's July 14 Order Document filed by Executive Office of the President U S Department of Homeland Security Normand Sarah Entered 09 20 2017 09 20 2017 36 MEMO ENDORSED on re 35 Response to Motion filed by U S Department of Homeland Security Executive Office of the President ENDORSEMENT Application GRANTED The deadline for Defendants' response to Plaintiff's motion for an order to show cause is October 4 2017 Signed by Judge Katherine Polk Failla on 9 20 2017 js Entered 09 21 2017 09 20 2017 Set Reset Deadlines as to 33 MOTION for Order to Show Cause for Failing to Comply With the Court's July 14 Order Responses due by 10 4 2017 js Entered 09 21 2017 09 21 2017 37 MEMO ENDORSED terminating 34 Letter Motion for Oral Argument ENDORSEMENT The Court is in receipt of Plaintiffs' request for oral argument ontheir motion for an order to show cause 11 of 16 A-11 1 3 2019 9 40 AM Case 18-2814 Document 40 01 07 2019 2469015 Page16 of 205 SDNY CM ECF NextGen Version 1 2 https ecf nysd uscourts gov cgi-bin DktRpt pl 136687503020875-L_1_0-1 and shall schedule oral argument if after receiving Defendants' response the Court believes oral argument would be of use Signed by Judge Katherine Polk Failla on 9 21 2017 js Entered 09 21 2017 09 29 2017 38 NOTICE OF APPEARANCE by Casey Kyung-Se Lee on behalf of Executive Office of the President U S Department of Homeland Security Lee Casey Entered 09 29 2017 10 04 2017 39 MEMORANDUM OF LAW in Opposition re 33 MOTION for Order to Show Cause for Failing to Comply With the Court's July 14 Order Document filed by Executive Office of the President U S Department of Homeland Security Normand Sarah Entered 10 04 2017 10 04 2017 40 DECLARATION of Kim E Campbell in Opposition re 33 MOTION for Order to Show Cause for Failing to Comply With the Court's July 14 Order Document filed by Executive Office of the President U S Department of Homeland Security Normand Sarah Entered 10 04 2017 10 11 2017 41 REPLY MEMORANDUM OF LAW in Support re 33 MOTION for Order to Show Cause for Failing to Comply With the Court's July 14 Order Document filed by Citizens for Responsibility and Ethics in Washington Kate Doyle Knight First Amendment Institute at Columbia University National Security Archive Attachments # 1 Affidavit # 2 Exhibit A # 3 Exhibit B Weismann Anne Entered 10 11 2017 10 11 2017 42 ORDER denying 33 Motion for Order to Show Cause Consequently Plaintiffs' motion for the same is DENIED The parties shall continue to abide by the schedule provided in the July 14 Order SO ORDERED Signed by Judge Katherine Polk Failla on 10 11 2017 anc Entered 10 11 2017 10 19 2017 43 LETTER MOTION for Leave to File Excess Pages addressed to Judge Katherine Polk Failla from Sarah S Normand dated October 19 2017 Document filed by Executive Office of the President U S Department of Homeland Security Normand Sarah Entered 10 19 2017 10 20 2017 44 ORDER granting 43 Letter Motion for Leave to File Excess Pages Application GRANTED in part The parties' opening memoranda of 12 of 16 A-12 1 3 2019 9 40 AM Case 18-2814 Document 40 01 07 2019 2469015 Page17 of 205 SDNY CM ECF NextGen Version 1 2 https ecf nysd uscourts gov cgi-bin DktRpt pl 136687503020875-L_1_0-1 law shall be no more than 35 pages Reply memoranda if any shall be no more than 15 pages Signed by Judge Katherine Polk Failla on 10 20 2017 mml Entered 10 20 2017 10 23 2017 45 MOTION for Summary Judgment on Plaintiffs' FOIA Claims MOTION to Dismiss Plaintiffs' Remaining Claims Responses due by 12 4 2017 Document filed by Executive Office of the President U S Department of Homeland Security Normand Sarah Entered 10 23 2017 10 23 2017 46 DECLARATION of Kim E Campbell in Support re 45 MOTION for Summary Judgment on Plaintiffs' FOIA Claims MOTION to Dismiss Plaintiffs' Remaining Claims Document filed by Executive Office of the President U S Department of Homeland Security Attachments # 1 Exhibit A Normand Sarah Entered 10 23 2017 10 23 2017 47 DECLARATION of James M Murray in Support re 45 MOTION for Summary Judgment on Plaintiffs' FOIA Claims MOTION to Dismiss Plaintiffs' Remaining Claims Document filed by Executive Office of the President U S Department of Homeland Security Attachments # 1 Exhibit 1 Normand Sarah Entered 10 23 2017 10 23 2017 48 DECLARATION of William Willson in Support re 45 MOTION for Summary Judgment on Plaintiffs' FOIA Claims MOTION to Dismiss Plaintiffs' Remaining Claims Document filed by Executive Office of the President U S Department of Homeland Security Normand Sarah Entered 10 23 2017 10 23 2017 49 DECLARATION of Philip C Droege in Support re 45 MOTION for Summary Judgment on Plaintiffs' FOIA Claims MOTION to Dismiss Plaintiffs' Remaining Claims Document filed by Executive Office of the President U S Department of Homeland Security Normand Sarah Entered 10 23 2017 10 23 2017 50 DECLARATION of Charles Christopher Herndon in Support re 45 MOTION for Summary Judgment on Plaintiffs' FOIA Claims MOTION to Dismiss Plaintiffs' Remaining Claims Document filed by Executive Office of the President U S Department of Homeland Security Attachments # 1 Exhibit A # 2 Exhibit B Normand Sarah Entered 10 23 2017 10 23 2017 51 MEMORANDUM OF LAW in Support re 45 MOTION for Summary Judgment on Plaintiffs' FOIA Claims MOTION to Dismiss 13 of 16 A-13 1 3 2019 9 40 AM Case 18-2814 Document 40 01 07 2019 2469015 Page18 of 205 SDNY CM ECF NextGen Version 1 2 https ecf nysd uscourts gov cgi-bin DktRpt pl 136687503020875-L_1_0-1 Plaintiffs' Remaining Claims Document filed by Executive Office of the President U S Department of Homeland Security Normand Sarah Entered 10 23 2017 12 04 2017 52 MEMORANDUM OF LAW in Opposition re 45 MOTION for Summary Judgment on Plaintiffs' FOIA Claims MOTION to Dismiss Plaintiffs' Remaining Claims Document filed by Citizens for Responsibility and Ethics in Washington Kate Doyle Knight First Amendment Institute at Columbia University National Security Archive Attachments # 1 Affidavit # 2 Exhibit A # 3 Exhibit B Weismann Anne Entered 12 04 2017 12 04 2017 53 LETTER MOTION for Oral Argument addressed to Judge Katherine Polk Failla from Anne L Weismann dated December 4 2017 Document filed by Citizens for Responsibility and Ethics in Washington Kate Doyle Knight First Amendment Institute at Columbia University National Security Archive Weismann Anne Entered 12 04 2017 12 04 2017 54 MEMO ENDORSED terminating 53 Letter Motion for Oral Argument ENDORSEMENT The Court is in receipt of Plaintiffs' request for oral argument and shall order such argument when and if the Court would find it useful Signed by Judge Katherine Polk Failla on 12 4 2017 js Entered 12 05 2017 01 12 2018 55 REPLY MEMORANDUM OF LAW in Support re 45 MOTION for Summary Judgment on Plaintiffs' FOIA Claims MOTION to Dismiss Plaintiffs' Remaining Claims Document filed by Executive Office of the President U S Department of Homeland Security Normand Sarah Entered 01 12 2018 01 18 2018 56 LETTER addressed to Judge Katherine Polk Failla from AUSA Sarah Norman dated January 18 2018 re Courtesy copies of the motion papers Document filed by Executive Office of the President U S Department of Homeland Security Normand Sarah Entered 01 18 2018 01 30 2018 57 NOTICE OF CHANGE OF ADDRESS by Alexander Abraham Abdo on behalf of Citizens for Responsibility and Ethics in Washington Kate Doyle Knight First Amendment Institute at Columbia University National Security Archive New Address Knight First Amendment Institute at Columbia University 475 14 of 16 A-14 1 3 2019 9 40 AM Case 18-2814 Document 40 01 07 2019 2469015 Page19 of 205 SDNY CM ECF NextGen Version 1 2 https ecf nysd uscourts gov cgi-bin DktRpt pl 136687503020875-L_1_0-1 Riverside Drive Suite 302 New York NY United States 10115 646 745-8500 Abdo Alexander Entered 01 30 2018 02 20 2018 58 LETTER addressed to Judge Katherine Polk Failla from Anne L Weismann dated February 20 2018 re Recent settlement in Public Citizen v Secret Service D D C Document filed by Citizens for Responsibility and Ethics in Washington Kate Doyle Knight First Amendment Institute at Columbia University National Security Archive Weismann Anne Entered 02 20 2018 02 27 2018 59 LETTER addressed to Judge Katherine Polk Failla from AUSA Sarah S Normand dated February 27 2018 re Recent Settlement in Public Citizen v Secret Service D D C Document filed by Executive Office of the President U S Department of Homeland Security Normand Sarah Entered 02 27 2018 03 02 2018 60 LETTER addressed to Judge Katherine Polk Failla from Anne L Weismann dated March 2 2018 re Defs ' Letter of Feb 27 2018 Document filed by Citizens for Responsibility and Ethics in Washington Kate Doyle Knight First Amendment Institute at Columbia University National Security Archive Weismann Anne Entered 03 02 2018 07 26 2018 61 OPINION AND ORDER re 45 MOTION for Summary Judgment on Plaintiffs' FOIA Claims MOTION to Dismiss Plaintiffs' Remaining Claims filed by U S Department of Homeland Security Executive Office of the President Defendants' motion for summary judgment is GRANTED IN PART and DENIED IN PART and Defendants' motion to dismiss is GRANTED Within 60 days of the date of this Opinion and Order Defendants are directed to disclose any materials responsive to Plaintiffs' FOIA surviving FOIA claims and the parties are to provide a joint letter to the Court as to how they wish to proceed SO ORDERED Signed by Judge Katherine Polk Failla on 7 26 18 yv Entered 07 26 2018 09 21 2018 62 CONSENT LETTER addressed to Judge Katherine Polk Failla from Anne L Weismann dated September 21 2018 re Response to July 26 2018 Court Order Document filed by Citizens for Responsibility and Ethics in Washington Kate Doyle Executive Office of the President Knight First Amendment Institute at Columbia University National Security Archive Weismann Anne Entered 09 21 2018 15 of 16 A-15 1 3 2019 9 40 AM Case 18-2814 Document 40 01 07 2019 2469015 Page20 of 205 SDNY CM ECF NextGen Version 1 2 https ecf nysd uscourts gov cgi-bin DktRpt pl 136687503020875-L_1_0-1 09 21 2018 63 CIVIL JUDGMENT Accordingly the parties requested that this Court enter a final judgment in this matter The Court hereby enters judgment The Clerk of Court is directed to terminate all pending motions adjourn all remaining dates and close this case SO ORDERED Signed by Judge Katherine Polk Failla on 9 21 2018 anc Entered 09 21 2018 09 21 2018 Terminate Transcript Deadlines re 24 anc Entered 09 21 2018 09 24 2018 64 NOTICE OF APPEAL from 63 Judgment 61 Memorandum Opinion Document filed by Citizens for Responsibility and Ethics in Washington Kate Doyle Executive Office of the President Knight First Amendment Institute at Columbia University National Security Archive Filing fee $ 505 00 receipt number 0208-15608057 Form C and Form D are due within 14 days to the Court of Appeals Second Circuit Weismann Anne Entered 09 24 2018 09 24 2018 Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re 64 Notice of Appeal nd Entered 09 24 2018 09 24 2018 Appeal Record Sent to USCA Electronic File Certified Indexed record on Appeal Electronic Files for 64 Notice of Appeal filed by National Security Archive Kate Doyle Executive Office of the President Citizens for Responsibility and Ethics in Washington Knight First Amendment Institute at Columbia University were transmitted to the U S Court of Appeals nd Entered 09 24 2018 Transaction Receipt 01 03 2019 09 36 59 PACER Login 16 of 16 tl0027 Client Code Docket Description Report Search Criteria 1 17cv-02542KPF Billable Pages Cost 0 90 9 A-16 1 3 2019 9 40 AM Case 18-2814 Document 40 01 07 2019 2469015 Page21 of 205 Case 1 17-cv-02542-KPF Document 32 Filed 09 15 17 Page 1 of 17 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK ____________________________________ KATE DOYLE NATIONAL SECURITY ARCHIVE CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON THE KNIGHT FIRST AMENDMENT INSTITUTE AT COLUMBIA UNIVERSITY Civil Action No 17-2542 KPF Plaintiffs v U S DEPARTMENT OF HOMELAND SECURITY EXECUTIVE OFFICE OF THE PRESIDENT Defendants ____________________________________ AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF 1 This is an action under the Freedom of Information Act “FOIA” 5 U S C § 552 the Declaratory Judgment Act 28 U S C §§ 2201 and 2202 the Administrative Procedure Act “APA” 5 U S C § 706 the Federal Records Act “FRA” 44 U S C §§ 2101 et seq 3010 et seq and 3301 et seq and the Presidential Record Act “PRA” 44 U S C §§ 2201 et seq for injunctive declaratory and other appropriate relief Plaintiffs challenge the failure of the U S Department of Homeland Security “DHS” to disclose to them 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 A-17 Case 18-2814 Document 40 01 07 2019 2469015 Page22 of 205 Case 1 17-cv-02542-KPF Document 32 Filed 09 15 17 Page 2 of 17 DHS maintains Plaintiffs also challenge 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 2 This case seeks declaratory relief that DHS is in violation of the FOIA 5 U S C § 552 a 3 a by refusing to search for and provide plaintiffs with all responsive documents on an expedited basis injunctive relief ordering the defendant DHS to process and release to plaintiffs immediately the requested records declaratory relief that the policies and practices of the EOP and DHS to treat records of visits to agency components of the EOP as presidential records violate both the FRA and the PRA and injunctive relief ordering DHS to manage and maintain these records as agency records pursuant to the FRA Jurisdiction and Venue 3 This Court has both subject matter jurisdiction over this action and personal jurisdiction over the parties pursuant to 5 U S C § 552 a 4 B 5 U S C § 702 and 28 U S C §§ 133 2201 a and 2202 Venue lies in this district under 5 U S C § 552 a 4 B and 28 U S C § 1391 e Parties 4 Plaintiff Kate Doyle is a senior analyst of U S policy in Latin America Based in the New York office of the National Security Archive Ms Doyle works with other scholars journalists human rights groups truth commissions prosecutors and judges to open and analyze government files including through use of the FOIA Ms Doyle has 2 A-18 Case 18-2814 Document 40 01 07 2019 2469015 Page23 of 205 Case 1 17-cv-02542-KPF Document 32 Filed 09 15 17 Page 3 of 17 authored several dozen book chapters and articles that have appeared in scholarly publications such as the World Policy Journal and in media ranging from Harper’s Magazine to Mexico’s Proceso 5 Plaintiff National Security Archive is an independent non-governmental nonprofit research institute organized under section 501 c 3 of the Internal Revenue Code The Archive collects analyzes and publishes U S government documents acquired through the FOIA in order to enrich scholarship and journalism with primary sources and to promote openness and government accountability The Archive won the 1999 George Polk Award one of U S journalism’s most prestigious prizes for – in the words of the citation – “piercing self-serving veils of government secrecy guiding journalists in search for the truth and informing us all ” The Archive is a representative of the news media as defined in 5 U S C § 552 a 4 a ii Prior Archive litigation under the FOIA and the Federal Records Act compelled the preservation and e-archiving of White House e-mail from every Presidential administration from Reagan to Obama 6 Plaintiff CREW is a non-profit non-partisan organization organized under section 501 c 3 of the Internal Revenue Code CREW is committed to protecting the rights of citizens to be informed about the activities of government officials and agencies and to ensuring the integrity of government officials and agencies CREW seeks to empower citizens to have an influential voice in government decisions and in the government decision-making process through the dissemination of information about public officials and their actions To advance its mission CREW uses a combination of research litigation and advocacy As part of its research CREW uses government records made available to it under the FOIA CREW has sought records of White House 3 A-19 Case 18-2814 Document 40 01 07 2019 2469015 Page24 of 205 Case 1 17-cv-02542-KPF Document 32 Filed 09 15 17 Page 4 of 17 visits from the Secret Service in the past and its prior litigation led to the decision of the Obama administration to establish a system for publishing White House visitor logs on an ongoing basis 7 Plaintiff Knight First Amendment Institute at Columbia University is a newly established New York not-for-profit corporation that works to preserve and expand the freedoms of speech and the press through strategic litigation research and public education Research and public education are essential to the Institute’s mission Obtaining information about government activity through the FOIA analyzing that information and publishing and disseminating its analysis to the press and public are among the core activities the Institute was established to perform 8 Defendant DHS is an agency within the meaning of 5 U S C § 552 f and 5 U S C § 701 DHS and its component Secret Service have possession and control of the requested records and are responsible for fulfilling plaintiffs’ FOIA requests 9 Defendant EOP includes the agency known as the EOP and its individual components The agency components of the EOP subject to the FOIA and the FRA include the Council on Environmental Quality “CEQ” the Office of Management and Budget “OMB” the Office of National Drug Control Policy “ ONDCP” the Office of Science and Technology Policy “OSTP” and the Office of the United States Trade Representative “USTR” STATUTORY BACKGROUND The FOIA 4 A-20 Case 18-2814 Document 40 01 07 2019 2469015 Page25 of 205 Case 1 17-cv-02542-KPF Document 32 Filed 09 15 17 Page 5 of 17 10 The FOIA 5 U S C § 552 requires agencies of the federal government to release requested records to the public unless one or more specific statutory exemptions apply 11 An agency must respond to a party making a FOIA request within 20 working days notifying that party which records it will produce which records it is withholding and why and the requester’s right to appeal the agency’s determination administratively and thereafter must make the documents “promptly available ” 5 U S C § 552 a 6 A i 12 In “unusual” circumstances” an agency may delay its response to a FOIA request or appeal but must provide notice and “the date on which a determination is expected to be dispatched ” 5 U S C § 552 a 6 B 13 If the agency fails to comply with these time limits a requester is deemed to have exhausted administrative remedies 5 U S C § 552 a 6 C i The FRA 14 The FRA is a collection of statutes that govern the creation management and disposal of federal or “agency” records 44 U S C U S C §§ 2101-18 2901-09 310107 and 3301-24 The FRA requires that federal agencies establish 1 a program to make and preserve agency records 2 effective controls over the creation maintenance and use of records and 3 safeguards against the removal or loss of records 44 U S C §§ 3101 3102 and 3105 15 Federal or “agency” records are defined to include “all books papers or other documentary materials regardless of physical form or characteristics made or received by an agency of the United States Government under Federal law in connection 5 A-21 Case 18-2814 Document 40 01 07 2019 2469015 Page26 of 205 Case 1 17-cv-02542-KPF Document 32 Filed 09 15 17 Page 6 of 17 with the transaction of public business and preserved or appropriate for preservation by that agency as evidence of the organization functions policies decisions procedures operations or other activities of the Government or because of the information value of data in them ” 44 U S C § 3301 16 Specific provisions of the FRA 44 U S C §§ 3301 et seq govern the disposal of federal records and provide the exclusive procedure by which all federal records may be disposed or destroyed and then only with the authorization of the Archivist of the United States 44 U S C § 3314 17 The FRA imposes on heads of agencies an affirmative duty to implement standards and guidelines for the retention of federal records Each agency head must maintain an active records management program that provides for effective controls over the creation and use of federal records and that ensures the application of the Archivist’s standards and procedures for the preservation of federal records 44 U S C § 3102 18 A member of the public may request the disclosure of agency records subject to the FRA through the FOIA 5 U S C § 552 f 19 An individual record that meets the definition of an agency record and is therefore within the scope of the FOIA cannot also qualify as a presidential record This is because “the definition of ‘agency’ records in the FOIA trumps the definition of ‘presidential records’ in the PRA ” Armstrong v EOP 1 F 3d 1274 1293 D C Cir 1993 The PRA 20 The PRA enacted in 1978 to establish public ownership of presidential and vice presidential records imposes recordkeeping requirements on the President and Vice 6 A-22 Case 18-2814 Document 40 01 07 2019 2469015 Page27 of 205 Case 1 17-cv-02542-KPF Document 32 Filed 09 15 17 Page 7 of 17 President Specifically the PRA directs the President to “take all such steps as may be necessary to assure that the activities deliberations decisions and policies that reflect the performance of his constitutional statutory or other official or ceremonial duties are adequately documented and that such records are maintained as Presidential records ” 44 U S C § 2203 21 The PRA mandates that records created or received in the White House “the function of which is to advise or assist the President shall to the extent practicable be categorized as Presidential records or personal records upon their creation or receipt and be filed separately ” 44 U S C § 2203 b 22 Because the FOIA’s definition of agency record trumps the PRA’s definition of presidential record once a record is determined to be an agency record under the FOIA it cannot be treated as a presidential record This is “absolutely essential to preventing the PRA from becoming a potential presidential carte blanche to shield materials from the reach of the FOIA ” Armstrong v EOP 1 F 3d at 1292 Factual Background 23 In September 2009 then-President Obama announced that starting in a few months he would open up to the public White House visitor logs on a regular basis by posting online every month the names of visitors over the previous 90 to 120 days 24 Under the new policy the posted records would include names of visitors the dates and times they entered and left the White House compound and the names of the persons they visited The logs were subject to several exceptions including purely personal guests of the Obama family the need to protect national security interests and 7 A-23 Case 18-2814 Document 40 01 07 2019 2469015 Page28 of 205 Case 1 17-cv-02542-KPF Document 32 Filed 09 15 17 Page 8 of 17 the temporary need to protect particularly sensitive meetings such as the vetting of a Supreme Court candidate 25 In explaining the policy President Obama said in a written statement “Americans have a right to know whose voices are being heard in the policymaking process ” When he left office President Obama’s administration had released under this policy 5 99 million records of White House visitors 26 President Obama’s decision to provide public access to White House visitor logs was the result of four separate lawsuits brought by CREW under the FOIA 27 When President Trump took office the White House refused to say whether it would continue to provide public access to White House visitor logs In response to this silence on March 6 2017 eight Senators wrote to President Trump and U S Secret Service Deputy Director William J Callahan seeking the ongoing release of White House visitor logs 28 In their letter to the President the senators noted that during President Obama’s tenure “ t hese logs provided the American public an unprecedented look at who was lobbying his Administration without compromising the President’s ability to execute the functions of his office on a day-to-day basis ” The letter also mentioned concerns about transparency at President Trump’s so-called “Winter White House ” Mar-a-Lago and urged President Trump to extend President Obama’s policies on visitor logs “to address your decision to regularly conduct official business at private properties that also provide access to certain members of the public ” 29 The senators’ letter to Mr Callahan echoed these concerns Specifically they noted 8 A-24 Case 18-2814 Document 40 01 07 2019 2469015 Page29 of 205 Case 1 17-cv-02542-KPF Document 32 Filed 09 15 17 Page 9 of 17 It would be a significant setback to efforts to give the public insight into who influences the White House if this policy were to be discontinued or limited Indeed given the unique aspects of how President Trump has decided to conduct official business we believe he needs to do even more just to meet the benchmark of transparency set by President Obama President Trump has already taken four trips to his so-called ‘Winter White House’ at his Mar-a-Lago estate in Florida during which he conducted official business in full view of Mar-a-Lago members and their guests During his transition then President-elect Trump worked at the Trump Tower and the Trump National Golf Club in Bedminster New Jersey two locations that are also open to certain members of the public Recently released audio of one post-election visit to Bedminster captured then President-elect Trump inviting members to ‘come around’ as he interviews people to serve in his administration 30 Both letters sought responses to specific questions Among the information sought from the Secret Service was whether the records systems used to track visitors at the White House complex – the Workers and Visitors Entry System “WAVES” and the Access Control Records system “ACR” – also were being used at Mar-a-Lago and whether their use was being considered for Trump Tower Bedminster and other Trump properties where the President may conduct official business This same question also was posed to President Trump 31 On information and belief neither President Trump nor Deputy Director Callahan responded to these letters 32 Instead on April 14 2017 President Trump through a spokesperson announced the White House would no longer provide public access to White House visitor logs 33 Plaintiffs filed their first complaint in this case on April 10 2017 against DHS Plaintiffs’ complaint challenges the failure of DHS to comply with its obligations under the FOIA with respect to two requests 9 A-25 Case 18-2814 Document 40 01 07 2019 2469015 Page30 of 205 Case 1 17-cv-02542-KPF Document 32 Filed 09 15 17 Page 10 of 17 34 First on January 23 2017 Plaintiff Kate Doyle sent a FOIA request by facsimile to the Secret Service requesting all WAVES and ACR records for three days January 20 January 21 and January 22 2017 From these records Ms Doyle requested 28 fields of data that were displayed in a screenshot of the White House Visitor Records Requests website of President Obama which she included with her request 35 On February 24 2017 Ms Doyle sent by facsimile an administrative appeal based on the refusal of the Secret Service to respond in any way to her request 36 At the time plaintiffs filed their complaint the Secret Service had not responded to either Ms Doyle’s request of January 23 or her appeal of February 24 2017 37 At the time plaintiffs filed their complaint the Secret Service had not provided Ms Doyle with a determination on her request including an identification of what documents the agency plans to release what documents the agency plans to withhold and why The FOIA requires agencies to make this determination within 20 business days of receiving a non-expedited FOIA request 38 Because the Secret Service failed to make a determination under the FOIA on Ms Doyle’s request she had exhausted all applicable administrative remedies at the time plaintiffs filed their complaint 39 Second on March 10 2017 Plaintiffs Doyle the National Security Archive CREW and the Knight First Amendment Institute sent by facsimile a second FOIA request to the Secret Service This request seeks two categories of records 1 all WAVES and ACR records from January 20 2017 until March 8 2017 and 2 10 A-26 Case 18-2814 Document 40 01 07 2019 2469015 Page31 of 205 Case 1 17-cv-02542-KPF Document 32 Filed 09 15 17 Page 11 of 17 records of presidential visitors at Mar-a-Lago and Trump Tower from January 20 2017 to March 8 2017 From these records the request identifies the same 28 fields of data contained in the White House Visitor Records posted by the Obama administration 40 Plaintiffs also requested that the Secret Service expedite this second request in light of the significant concerns raised about how President Trump is using his private properties at Mar-a-Lago and Trump Tower the extensive media coverage of this issue and the refusal of the President to date to commit to releasing the visitor logs data 41 At the time plaintiffs filed their complaint the Secret Service had not responded in any way to the March 10 2017 expedited FOIA request 42 This failure to respond includes a failure to make a determination under the FOIA within 10 calendar days on plaintiffs’ request for expedition as the FOIA and DHS regulations require 43 Further the Secret Service failed to process the March 10 2017 request as soon as practicable and provide plaintiffs with a determination on their request including an identification of what documents the agency plans to release what documents the agency plans to withhold and why as the FOIA requires for expedited requests 44 The Secret Service also failed to make a determination under the FOIA on plaintiffs’ request within 20 business days as the FOIA requires for non-expedited requests 45 Because the Secret Service failed to make a determination under the FOIA on plaintiffs’ second FOIA request under either the standards set out for expedited requests 11 A-27 Case 18-2814 Document 40 01 07 2019 2469015 Page32 of 205 Case 1 17-cv-02542-KPF Document 32 Filed 09 15 17 Page 12 of 17 or those set out for all other requests plaintiffs had exhausted all applicable administrative remedies when they filed their complaint 46 DHS filed its answer to the complaint on May 22 2017 Dkt 21 47 On July 14 2017 following the Initial Pretrial Conference the Court entered an order adopting the parties’ proposed schedule for document production and motions Dkt 23 Under that schedule the Secret Service is to produce all nonexempt responsive records of presidential visitors at Mar-a-Lago by September 8 2017 and the parties’ briefing on the remaining issues is to be completed by January 12 2018 48 On August 17 2017 Public Citizen Inc filed a complaint against the United States Secret Service Civil Action No 17-1669 D D C challenging the failure of the Secret Service under the FOIA to produce records of visits to four EOP agencies subject to the FOIA OMB OSTP ONDCP and CEQ Public Citizen identified its case as related to this lawsuit because they share common issues of fact 49 With its complaint Public Citizen also filed a motion for a temporary restraining order and preliminary injunction to require the Secret Service to maintain copies of the records at issue in that case pending resolution of the litigation Public Citizen’s motion is based on the administrative response of the Secret Service to its FOIA requests that the requested records are presidential and governed by the PRA not agency records subject to the FOIA and that in any event the Secret Service has not maintained the requested records but instead has transferred them – and continues to transfer them – to the White House Office of Records Management a non-agency component of the EOP 12 A-28 Case 18-2814 Document 40 01 07 2019 2469015 Page33 of 205 Case 1 17-cv-02542-KPF Document 32 Filed 09 15 17 Page 13 of 17 50 In its opposition to the motion for a temporary restraining order the Secret Service relied in part on a 2015 Memorandum of Understanding “MOU” that on information and belief has never before been made public That MOU 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 exclusive ownership control and custody of the President Vice President or originating EOP component ” The Secret Service has interpreted this provision as applying to all the records at issue in the Public Citizen lawsuit PLAINTIFFS’ CLAIMS FOR RELIEF CLAIM ONE DHS’s Wrongful Withholding of Non-Exempt Records Requested by Plaintiff Doyle 51 Plaintiffs repeat and re-allege paragraphs 1-50 52 Plaintiff Doyle properly asked for records within the custody and control of the Secret Service a component of DHS 53 Defendant DHS wrongfully withheld agency records requested by Plaintiff Doyle by failing to comply with the statutory time limit for making a determination on non-expedited FOIA requests and by withholding from disclosure records responsive to her FOIA request 54 By failing to release the records as Plaintiff Doyle specifically requested defendant DHS violated the FOIA 55 Plaintiff Doyle therefore is entitled to injunctive and declaratory relief with respect to the prompt processing and disclosure of the requested records 13 A-29 Case 18-2814 Document 40 01 07 2019 2469015 Page34 of 205 Case 1 17-cv-02542-KPF Document 32 Filed 09 15 17 Page 14 of 17 CLAIM TWO DHS’s Wrongful Withholding of Non-Exempt Records Requested by Plaintiffs 56 Plaintiffs repeat and re-allege paragraphs 1-55 57 Plaintiffs properly asked for records within the custody and control of the Secret Service a component of DHS on an expedited basis 58 Defendant DHS wrongfully withheld agency records requested by plaintiffs by failing to act “as soon as practicable” to make a determination on the plaintiffs’ expedited FOIA request and by withholding from disclosure records responsive to their FOIA request 59 By failing to release the records as plaintiffs specifically requested defendant DHS violated the FOIA 60 Plaintiffs therefore are entitled to injunctive and declaratory relief with respect to the expedited processing and disclosure of the requested records CLAIM THREE EOP’s Wrongful Treatment of Agency Records as Presidential Records Not Accessible Through the FOIA 61 Plaintiffs repeat and re-allege paragraphs 1-60 62 Records the Secret Service creates and maintains of visits to agency components of the EOP are agency records under the FRA and subject to disclosure under the FOIA 63 By 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 14 A-30 Case 18-2814 Document 40 01 07 2019 2469015 Page35 of 205 Case 1 17-cv-02542-KPF Document 32 Filed 09 15 17 Page 15 of 17 64 Plaintiffs are therefore entitled to injunctive and declaratory relief with respect to the EOP’s treatment of these records as agency records subject to the FOIA CLAIM FOUR DHS’s Wrongful Treatment of Agency Records as Presidential Records Not Accessible Through the FOIA 65 Plaintiffs repeat and re-allege paragraphs 1-64 66 Records the Secret Service creates and maintains of visits to agency components of the EOP are agency records under the FRA and subject to disclosure under the FOIA 67 By 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 68 Plaintiffs are therefore entitled to injunctive and declaratory relief with respect to DHS’s treatment of these records as agency records subject to the FOIA Requested Relief WHEREFORE plaintiffs respectfully request that this Court 1 Order defendant DHS to fully and promptly process Plaintiff Doyle’s January 23 2017 FOIA request and disclose all non-exempt documents immediately to plaintiff 2 Issue a declaration that Plaintiff Doyle is entitled to prompt processing and disclosure of the requested records 3 Order defendant DHS to fully and immediately process plaintiffs’ March 10 2017 FOIA request and disclose all non-exempt documents immediately to the plaintiffs 15 A-31 Case 18-2814 Document 40 01 07 2019 2469015 Page36 of 205 Case 1 17-cv-02542-KPF Document 32 Filed 09 15 17 Page 16 of 17 4 Issue a declaration that plaintiffs are entitled to expedited processing and disclosure of the requested records 5 Order defendant EOP to treat all records the Secret Service creates and maintains of visits to agency components of the EOP as agency records of DHS 6 Issue 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 7 Order DHS to treat and manage all records the Secret Service creates and maintains of visits to agency components of the EOP as agency records of DHS subject to the FOIA 8 Provide for expeditious proceedings in this action 9 Retain jurisdiction of this action to ensure no agency records are wrongfully withheld 10 Award plaintiffs their costs and reasonable attorneys’ fees in this action and 11 Grant such other relief as the Court may deem just and proper Respectfully submitted s Anne L Weismann Anne L Weismann D C Bar No 298190 Citizens for Responsibility and Ethics in Washington 455 Massachusetts Ave N W Washington D C 20001 Phone 202 408-5565 Facsimile 202 588-5020 Alex Abdo AA-0527 Jameel Jaffer JJ-4653 Knight First Amendment Institute at Columbia University 16 A-32 Case 18-2814 Document 40 01 07 2019 2469015 Page37 of 205 Case 1 17-cv-02542-KPF Document 32 Filed 09 15 17 Page 17 of 17 314 Low Library 535 West 116th Street New York NY 10027 Phone 212 854-9600 alex abdo@knightcolumbia org Dated September 15 2017 Attorneys for Plaintiffs 17 A-33 Case 18-2814 Document 40 01 07 2019 2469015 Page38 of 205 Case 1 17-cv-02542-KPF Document 45 Filed 10 23 17 Page 1 of 2 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK x KATE DOYLE NATIONAL SECURITY ARCHIVE CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON KNIGHT FIRST AMENDMENT INSTITUTE AT COLUMBIA UNIVERSITY Plaintiffs 17 Civ 2542 KPF v U S DEPARTMENT OF HOMELAND SECURITY EXECUTIVE OFFICE OF THE PRESIDENT Defendants x NOTICE OF MOTION PLEASE TAKE NOTICE THAT upon the Declarations of Kimberly E Campbell James M Murray William Willson Philip C Droege and Charles Christopher Herndon the exhibits annexed thereto and the accompanying memorandum of law defendants the Department of Homeland Security “DHS” and the Executive Office of the President by their attorneys Joon H Kim Acting United States Attorney for the Southern District of New York and Chad A Readler Acting Assistant Attorney General will move this Court before the Honorable Katherine Polk Failla United States District Judge at the United States Courthouse 40 Foley Square New York New York 10007 for an order granting summary judgment to defendant DHS with regard to plaintiffs’ FOIA claims pursuant to Federal Rule of Civil Procedure 56 and dismissing plaintiffs’ remaining claims for lack of subject matter jurisdiction A-34 Case 18-2814 Document 40 01 07 2019 2469015 Page39 of 205 Case 1 17-cv-02542-KPF Document 45 Filed 10 23 17 Page 2 of 2 pursuant to Federal Rule of Civil Procedure 12 b 1 and or failure to state a claim pursuant to Federal Rule of Civil Procedure 12 b 6 Dated New York New York October 23 2017 CHAD A READLER Acting Assistant Attorney General By s Elizabeth J Shapiro ELIZABETH J SHAPIRO BRAD P ROSENBERG 20 Massachusetts Ave N W Washington DC 20530 Telephone 202 514-5302 Facsimile 202 616-8470 Elizabeth Shapiro@usdoj gov Brad Rosenberg@usdoj gov JOON H KIM Acting United States Attorney for the Southern District of New York By 2 A-35 s Sarah S Normand SARAH S NORMAND CASEY KYUNG-SE LEE 86 Chambers Street New York NY 10007 Telephone 212 637-2709 Facsimile 212 637-2730 Sarah Normand@usdoj gov Casey Lee@usdoj gov Case 18-2814 Document 40 01 07 2019 2469015 Page40 of 205 Case 1 17-cv-02542-KPF Document 46 Filed 10 23 17 Page 1 of 15 UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK KATE DOYLE et at No 17 Civ 2542 KPF Plaintiffs V U S DEPARTMENT OF HOMELAND SECURITY EXECUTIVE OFFICE OF THE PRESIDENT Defendants SECOND DECLARATION OF KIM E CAMPBELL SPECIAL AGENT IN CHARGE LIAISON DIVISION AND FREEDOM OF INFORMATION AND PRIVACY ACTS OFFICER UNITED STATES SECRET SERVICE I Kim E Campbell make the following declaration in lieu of affidavit pursuant to 28 u s c § 1746 1 I am the Special Agent in Charge of the Liaison Division Office of Government and Public Affairs and the Freedom oflnformation and Privacy Acts FOI PA Officer for the United States Secret Service Secret Service Department of Homeland Security DHS In this position I oversee the Freedom of Information and Privacy Acts Office I have been assigned as the Secret Service FOIIPA Officer since July 2014 and have been employed with the Secret Service since July 1990 and as a Special Agent GS-1811 since April 1992 2 DHS regulations Title 6 Code of Federal Regulations Section 5 4 and Appendix A 11 1 3 68 FR 4056 4058 and 4069 vest authority in the Secret Service FOI PA officer 1 A-36 Case 18-2814 Document 40 01 07 2019 2469015 Page41 of 205 Case 1 17-cv-02542-KPF Document 46 Filed 10 23 17 Page 2 of 15 to make determinations as to whether to grant requests for access to Secret Service records made under the Freedom of Information Act FOIA Title 5 of the United States Code Section 552 b 3 This declaration is submitted to describe the Secret Service's search for and processing of records potentially responsive to Plaintiffs' March I 0 2017 FOIA request seeking 1 Worker and Visitor Entry System WAVES and Access Control Records ACR records and 2 records of presidential visitors at Trump Tower in New York City and Mar-aLago in West Palm Beach and specifically certain fields of data within such records for the period January 20 through March 8 2017 This declaration is based upon my personal knowledge upon review of the documents described in paragraph 28 below upon information contained in the Secret Service's files and upon information acquired by me during the performance of my official duties from other Secret Service employees who were involved in the search for and processing of records potentially responsive to Plaintiffs' FOIA request Plaintiffs' Requests and the Initial Processing of those Requests 4 I am aware that Plaintiffs allege in the above-captioned lawsuit that on January 23 2017 Plaintiff Kate Doyle sent a FOIA request to the Secret Service requesting WAVES and ACR records for January 20 January 21 and January 22 2017 My office does not have a record of receiving this request in the ordinary course ofbusiness I understand however that after filing this lawsuit Plaintiffs provided a document purporting to indicate that a fax was sent to the Secret Service FOINPA Communications Center on January 23 2017 2 A-37 Case 18-2814 Document 40 01 07 2019 2469015 Page42 of 205 Case 1 17-cv-02542-KPF Document 46 Filed 10 23 17 Page 3 of 15 5 I am also aware that Plaintiffs allege that on February 24 2017 PlaintiffDoyle sent an administrative appeal to DHS based on the Secret Service's failure to respond to her January 23 2017 request The Secret Service has no record of receiving or being notified of this appeal in the ordinary course of business I understand however that after filing this lawsuit Plaintiffs provided a document purporting to indicate that a fax was sent to the DHS Office of General Counsel on February 24 2017 6 The Secret Service did receive a March 10 2017 request from Plaintiffs seeking l WAVES and ACR records from January 20 2017 until March 8 2017 assigned as Request Number 20171321 2 records of Presidential visitors at Mar-a-Lago from January 20 2017 to March 8 2017 assigned as Request Number 20171322 and 3 records of Presidential visitors at Trump Tower from January 20 2017 to March 8 2017 assigned as Request Number 20171323 Plaintiffs' request stated that this request the three requests set out above specifically seeks the same 28 fields of data that previously were posted on the White House Visitor Records Request website My office acknowledged receipt of the March 10 2017 request on April 11 2017 Attached to this declaration as Exhibit A is a copy of the March 10 2017 request and my office's April 11 2017letter 7 With respect to the requests of January 23 2017 and March 10 2017 seeking WAVES and ACR records these records are not Secret Service records but rather are Presidential Records pursuant to the Presidential Records Act PRA 44 U S C § 2201 et seq Therefore my office did not seek to search for locate or process these records 8 With respect to the request for records of Presidential visitors at Trump Tower the Secret Service was aware that President Trump had not traveled to Trump Tower during the 3 A-38 Case 18-2814 Document 40 01 07 2019 2469015 Page43 of 205 Case 1 17-cv-02542-KPF Document 46 Filed 10 23 17 Page 4 of 15 requested time period Therefore after confirming this information the Secret Service did not seek to search for the material requested by Plaintiffs 9 With respect to the request for records of Presidential visitors at Mar-a-Lago at the time of Plaintiffs' request the Secret Service's protective efforts at the Mar-a-Lago location and the particular protective situation at that location were newly developed While it could easily be confirmed that the Secret Service does not utilize WAVES or ACR records at Mar-a-Lago it was unclear what if any record systems or record groupings might exist in regard to who visited the President at Mar-a-Lago or where such record systems or record groupings might be located 10 In order to clarify this issue it was determined that a broad set of searches would be conducted to determine what if any record systems or record groupings existed that might contain information potentially responsive to Plaintiffs' request in particular the request for the 28 fields of data found in the previously posted WAVES records 11 This search is described below It is noted however that the below search confirmed that there is no system for keeping track of visitors to Mar-a-Lago as there is at the White House Complex Specifically there is no Secret Service system that controls access to Mar-a-Lago nor is there any grouping listing or set of records that would reflect Presidential visitors to Mar-a-Lago This result is consistent with the fact that the Secret Service is not charged with the protection of Mar-a-Lago as it is with the White House Complex pursuant to title 18 of the United States Code section 3056A a 12 Additionally as for Plaintiffs' specific request for Mar-a-Lago Presidential visitor records containing the same 28 fields of data that previously were posted on the White House Visitor Records Request web site the below search confirmed that the Secret 4 A-39 Case 18-2814 Document 40 01 07 2019 2469015 Page44 of 205 Case 1 17-cv-02542-KPF Document 46 Filed 10 23 17 Page 5 of 15 Service does not maintain nor does it have access to any data system grouping of records listing or document s that contains those 28 fields or any limited subset of those fields 13 As the Secret Service's search revealed that the Secret Service neither maintained nor had access to any Mar-a-Lago visitor record s or listing or database containing the same 28 fields specifically sought by Plaintiffs' request or any subset of those fields the Secret Service maintains no record and has no access to any record directly responsive to Plaintiffs' request for records of presidential visitors at Mar-a-Lago 14 Even after the broad search that the Secret Service conducted in regard to Plaintiffs' request for records of Presidential visitors at Mar-a-Lago and even setting aside Plaintiffs' specific request for the 28 fields of previously posted data the Secret Service's search identified only one record subject to the Federal Records Act FRA and the FOIA that is arguably responsive to Plaintiffs' request and not duplicative of information previously made public by the White House That record is a two page email from the Department of State that was ultimately forwarded to the Secret Service That record was released to Plaintiffs with redactions as described below 15 In order to more fully explain the Secret Service's search efforts and the few scattered and repetitive pieces ofMar-a-Lago Presidential visitor information found in paper or electronic documents located through this search that search and those documents are further described below The Secret Service's Searches 16 In searching for information indicating whether the Secret Service maintained a system or grouping of information indicating that an individual or individuals had visited or met 5 A-40 Case 18-2814 Document 40 01 07 2019 2469015 Page45 of 205 Case 1 17-cv-02542-KPF Document 46 Filed 10 23 17 Page 6 of 15 with the President at Mar-a-Lago during the time period requested the following offices were identified as offices that could potentially have access to responsive documents the Office of Strategic Intelligence and Information SII which oversees the Protective Intelligence Division PID This office conducts background checks pursuant to a sensitive security program the Office oflnvestigations INV which oversees the Miami Field Office FO and the West Palm Beach Resident Office RO These offices would most likely have involvement in President Trump's visits to Mar-a-Lago as they are geographically located in proximity to Mar-a-Lago and the Office of Protective Operations OPO which oversees the Presidential Protective Division PPD This is the division with direct operational responsibility for the protection of the President of the United States including when the President is at Mar-a-Lago 17 The SIIIPID's search for records of background checks for presidential visitors to Mar-aLago for the time period January 20 to March 8 2017 identified no responsive records 18 The INV Miami FO and INV West Palm Beach RO searched for paper and electronic records that reflected that an individual visited with the President at Mar-a-Lago during the time period January 20 to March 8 2017 and forwarded potentially responsive records for further responsiveness review 19 The OPOIPPD searched for paper or electronic records that reflected that an individual visited with the President at Mar-a-Lago during the time period January 20 to March 8 2017 and forwarded potentially responsive records for further responsiveness review 20 In addition to the Division-specific searches requested and conducted as indicated above it was also requested that the Office ofthe Chieflnformation Officer CIO conduct a search ofthe e-mail accounts of employees ofPPD the Dignitary Protective Division 6 A-41 Case 18-2814 Document 40 01 07 2019 2469015 Page46 of 205 Case 1 17-cv-02542-KPF Document 46 Filed 10 23 17 Page 7 of 15 DPD 1 West Palm Beach RO and Miami FO for the time period January 20 to March 8 20 17 in the Enterprise Vault or E-Vault The E-Vault contains e-mails sent received or deleted by all Secret Service employees including during the time period at issue in this case TheE-Vault was searched with the following search terms in the body subject line or attachment MAL OR Mar-a-Lago OR Mar a Lago AND at least one of the following terms guest OR appointment OR visitor OR meet OR meeting OR clear OR cleared OR sweep OR swept OR checkpoint OR check point OR check OR abbreviation for sensitive security program OR background A large volume of e-mails some with attachments were located through this search and forwarded for responsiveness review Further Responsiveness Review 21 E-mails and their attachments retrieved through the above-described word searches were placed into software that allows for reviewing and tagging and duplicate e-mails were removed Duplicates were also removed from the OPO PPD e-mails that had been located through OPO PPD's search and forwarded for review many of which had been also been located through the CIO's word search 22 The e-mails and attachments and other documents remaining after de-duplication were then reviewed for responsiveness Over four thousand e-mails and documents were left to review even after de-duplication 23 In the course of this further review it was determined that many of thee-mails and attachments were merely copies of media reports concerning Presidential visits to Mar-aLago This material was eliminated from further review as non-responsive as it was not 1 E-mail accounts of DPD employees were searched as it appeared that the Prime Minister of Japan had visited Mar-a-Lago to visit with President Trump during the relevant time period 7 A-42 Case 18-2814 Document 40 01 07 2019 2469015 Page47 of 205 Case 1 17-cv-02542-KPF Document 46 Filed 10 23 17 Page 8 of 15 considered an Agency record of a Presidential visit and it was as available to the public as to the Secret Service 24 In reviewing the remaining records questions arose as to who should be considered a Presidential visitor to Mar-a-Lago I was advised however that through discussions between Plaintiffs' counsel and the Department of Justice attorneys representing the Secret Service DOJ it was agreed that the Secret Service need not produce records regarding Presidential family members cabinet members and White House staff who were present at Mar-a-Lago as those individuals' names generally would not have appeared in WAVES Therefore any documents reflecting that such individuals were present at Mar-a-Lago were removed as non-responsive 25 The Secret Service also identified a few records reflecting the names of local law enforcement and support personnel scheduled to have their photographs taken with the President It was uncertain whether these records reflect the names of individuals who in fact visited the President at Mar-a-Lago or were only scheduled to do so It is my understanding however that Plaintiffs agreed after discussions with DOJ that they were not interested in the production of records regarding individuals who were scheduled to have their pictures taken with President Trump at Mar-a-Lago Therefore these records were considered non-responsive to Plaintiffs' request 26 Documents relating to the visit of the Prime Minister of Japan Shinzo Abe to Mar-aLago were the largest remaining category of records captured through the abovedescribed searches This result is consistent with the Secret Service's protective responsibilities as a visiting Head of State traveling with his spouse in the United States Prime Minister Abe and Mrs Abe were Secret Service protectees see 18 U S C 3056 a 8 A-43 Case 18-2814 Document 40 01 07 2019 2469015 Page48 of 205 Case 1 17-cv-02542-KPF Document 46 Filed 10 23 17 Page 9 of 15 Therefore the Secret Service had created and maintained operational records concerning its protective efforts during Prime Minister Abe's visit to the United States and some of these records referred to the visit of the Prime Minister and his wife to Mar-a-Lago 27 Aside from the documents relating to the Japanese Prime Minister's visit the Secret Service's search located only a handful of records that referred to individuals who were scheduled to meet with the President at Mar-a-Lago 28 A page by page review of the documents concerning the Japanese Prime Minister's visit and the few other documents referring to individuals who were scheduled to meet with the President at Mar-a-Lago as identified in paragraphs 26 and 27 above which are each comprised of multiple records was conducted to determine whether they contained any information concerning a Presidential visitor at Mar-a-Lago Based on this review it was determined that the Secret Service's search for material arguably responsive to Plaintiffs' FOIA request had located the following i three White House documents received from the White House Office titled Official Travel Schedule the Visit of the President to Palm Beach Fl for the dates of February 10 2017 February 11 2017 and February 12 2017 respectively hereinafter White House Official Travel Schedules ii a White House document received from the White House Office titled Schedule ofthe President Sunday February 12 2017 iii an e-mail from the White House Office containing the President's schedule for February 10 2017 iv an e-mail from the White House Office containing the White House Chief of Staffs Schedule which includes an entry referring to the President's dinner with the Prime Minister of Japan at Mar-a-Lagoon February 10 2017 v two Secret Service emails containing the President's schedules for February 10 2017 and February 11 2017 respectively obtained from the White House Office 9 A-44 Case 18-2814 Document 40 01 07 2019 2469015 Page49 of 205 Case 1 17-cv-02542-KPF Document 46 Filed 10 23 17 Page 10 of 15 vi three e-mails from the White House Office to PPD each providing specific information concerning the arrival of an individual who was scheduled to meet with the President on February 12 or February 19 2017 and the person s accompanying the individual vii a Secret Service email containing a Final Intelligence Situation Report for the visit of President Donald J Trump to Palm Beach FL from February 1012 20 17 containing the statement that the President and First Lady are traveling to Palm Beach FL to host the Prime Minister of Japan viii a Secret Service intelligence assessment titled Foreign Dignitary Assessment- Japan prepared by the Secret Service's PID for the visit of Prime Minister Abe containing the statement that the Prime Minister will meet with the President at Mar-a-Lago ix a Jetter from the Secret Service to the Federal Bureau of Investigation FBI advising that the President and First Lady would be visiting the FBI's West Palm Beach Resident Office district on February 10-12 2017 and noting that the Prime Minister of Japan and Spouse will stay as guests of President Trump at the Mar-aLago Club x a Secret Service document titled Special Operations Division SOD Joint Tactical Survey for the visit of President Donald Trump and family to Palm Beach Florida February 10-12 2017 containing two references to the fact that the President will be hosting and meeting with the Prime Minister of Japan and Spouse at Mar-a-Lago xi seven internal Secret Service e-mails containing or forwarding Secret Service operational scheduling reporting or Presidential or other event information including Presidential scheduling information obtained from the White House Office and each containing a notation that the Prime Minister of Japan would be meeting or dining with the President at Mar-a-Lago and xii an e-mail from the Department of State Office of the Chief of Protocol that was sent to the White House Office and forwarded to the Secret Service providing a listing of the names of individuals and their titles or job responsibilities who would be accompanying the Prime Minister of Japan and his wife during their visit to Mar-a-Lago 29 All of the documents identified above indicate the possibility of a presidential visit e g a document indicating that a person is scheduled to meet with the President in the future The documents do not reveal whether a visit actually took place 10 A-45 Case 18-2814 Document 40 01 07 2019 2469015 Page50 of 205 Case 1 17-cv-02542-KPF Document 46 Filed 10 23 17 Page 11 of 15 Consultation and Referral of Records for Review 30 With respect to the three White House Official Travel Schedules category i and the other Presidential or White House ChiefofStaft schedules categories ii through v a review of these materials indicated that the documents themselves and or the Presidential schedules contained within the documents had originated from the White House Office Similarly the three e-mails from EOP WHO to PPD providing specific information concerning the arrival of particular individuals scheduled to meet with the President and person s accompanying those individuals category vi had originated from the White House Office and directly relate to the President's schedule In addition discrete portions of some of the seven operational emails category xi consist of Presidential schedule information obtained from the White House Office 31 All ofthe Presidential schedule documents and related information were transmitted through the DOJ to the White House for consultation As a result of this consultation it was determined that all of these records contain reflect or directly relate to Presidential schedules The Presidential schedules and related information were created by the immediate staff ofthe President or a unit or individual ofthe Executive Office ofthe President in the course of conducting activities which relate to or have an effect upon the carrying out ofthe constitutional statutory or other official or ceremonial duties of the President 44 U S C § 2201 and thus they are Presidential records within the meaning of the PRA In addition the Presidential schedules and related information were transmitted by the White House Office to the Secret Service for the narrow and limited purpose of providing the information necessary for the Secret Service to perform 11 A-46 Case 18-2814 Document 40 01 07 2019 2469015 Page51 of 205 Case 1 17-cv-02542-KPF Document 46 Filed 10 23 17 Page 12 of 15 its statutory duty to protect the President As such these materials were not viewed as subject to the FOIA and they were not further processed under the FOIA 32 In regard to the remaining documents the Final Intelligence Situation Report category vii the Dignitary Assessment category viii the letter to the FBI category ix the Joint Tactical Survey category x and the seven operational e-mails category xi it was determined that these documents are not records of Presidential visitors at Mar-a-Lago but rather operational material that merely contain a repeated statement that the Prime Minster of Japan and his spouse would be meeting or dining or present with the President and First Lady at Mar-a-Lago a widely published fact that has already disclosed by the White House This information is also duplicative of the information contained in the State Department email category xii which was processed and released to Plaintiffs with redactions as discussed in paragraph 33 below Therefore it was determined that these materials were not records responsive to Plaintiffs' FOIA request for records of Presidential visitors at Mar-a-Lago 33 In regard to the e-mail that had originated with the Department of State category xii this email was deemed responsive to Plaintiffs' FOIA request because it evidenced potential visitors to Mar-a-Lago some of whom were scheduled to attend a dinner with the President This e-mail was referred to the Department of State for review as to the existing equities of that Department After review the document was returned to the Secret Service and subsequently released to Plaintiffs with the names email addresses and a cell phone number of third parties redacted pursuant to FOIA exemptions b 6 and b 7 C A description of and explanation for the redactions is set out below 2 The emails containing Presidential schedules for February 10 and 11 2017 categories iii-v are also duplicative for the same reasons 12 A-47 Case 18-2814 Document 40 01 07 2019 2469015 Page52 of 205 Case 1 17-cv-02542-KPF Document 46 Filed 10 23 17 Page 13 of 15 FOIA Exemptions Claimed 34 Title 5 United States Code Section 552 b 6 exempts from disclosure personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy Information that applies to or describes a particular individual qualifies as personnel medical or similar files under exemption b 6 This exemption protects both government officials and private third parties whose identities are revealed in government records from unwarranted invasion of their personal privacy that would not shed light on government activities 35 Title 5 United States Code Section 552 b 7 C exempts from disclosure records or information compiled for law enforcement purposes the disclosure of which could reasonably be expected to constitute an unwarranted invasion of personal privacy This exemption protects among other information the identifying information of government personnel and third parties that has been compiled for law enforcement purposes 36 The Secret Service is a criminal law enforcement and security agency created under Title 18 United States Code Section 3056 All of the materials identified as responsive to Plaintiffs' FOIA request were compiled in connection with the Secret Service's protective and or investigative mission As such these Secret Service records meet the threshold requirement of exemption b 7 of having been compiled for law enforcement purposes 37 The Secret Service is invoking exemptions b 6 and b 7 C to withhold the name and email address of one EOP employee and the names certain e-mail addresses and one cell phone number of non-visitor third parties whose names and contact information 13 A-48 Case 18-2814 Document 40 01 07 2019 2469015 Page53 of 205 Case 1 17-cv-02542-KPF Document 46 Filed 10 23 17 Page 14 of 15 appear on these documents and who provided information to be used by the Secret Service in connection with its protective or investigative mission 38 In making the determination to withhold these names e-mail addresses and cell phone number the Secret Service balanced the public's interest in disclosure against the rights ofthese third parties and EOP employee to personal privacy and determined that the privacy rights of the third parties and EOP employee outweighed any public interest in disclosure The Secret Service determined that there is no cognizable public interest in the disclosure of this information because such information reveals nothing about the manner in which the Secret Service conducts its activities Given these factors the Secret Service determined that the privacy rights of the third parties and EOP employee outweigh the public's interest in disclosure Segregation 39 Every effort has been made to provide the Plaintiffs with all reasonably segregable portions of the State Department email No reasonably segregable non-exempt portions of the email have been withheld from Plaintiffs Conclusion 40 The Secret Service has searched for located reviewed and released to Plaintiffs one record responsive to their request The Secret Service has released as much information as possible and has processed the record to withhold only the information that it has determined can be withheld pursuant to valid FOIA exemptions The additional material located and reviewed by the Secret Service is PRA material not subject to the FOIA and or duplicative of information specifically the fact that the Japanese Prime Minister and his wife were scheduled to meet or dine with the President at Mar-a-Lagoon 14 A-49 Case 18-2814 Document 40 01 07 2019 2469015 Page54 of 205 Case 1 17-cv-02542-KPF Document 46 Filed 10 23 17 Page 15 of 15 February 10 and 11 which has already been made public by the White House and or was contained in the State Department email released to Plaintiffs 41 The Secret Service has made every effort to comply with the intent of the FOIA while protecting personal privacy of an EOP employee and third parties I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge and belief td J '1 Ki E amp I Special Agent in Charge Freedom of Information Act and Privacy Act Officer Liaison Division United States Secret Service 15 A-50 Case 18-2814 Document 40 01 07 2019 2469015 Page55 of 205 Case 1 17-cv-02542-KPF Document 46-1 Filed 10 23 17 Page 1 of 9 • # VVf Wf' IIOV A t AU • u '-' The National Security Archive New York Office 120 Wall street 31 Floor New Yorlc NY 10005 nsarchive org Kate Doyle senior Analyst Tel 646 792-7254 lDPSltBO March 10 2017 FOIA Officer Secret Service Commwdcati ons Center FOIAIPA 245 Munay Lane Building T -5 Washington D C 20223 Re Expedited Request under the FOIA Dear FOIA Officer Pursuant to the Freedom of Information Act FOIA Kate Doyle on behalf of herself and the National Security Archive the Knight First Amendment tute at Columbia University and Citizens for Responsibility and Ethics in Washington hereby uest the following Tire Worlcer and Visitor Entrance System WA YES records and Access Control Records System ACR records elatingfrom JanU111' 120 2017 until March 8 20 7 2 Records ofpresidential visitors at Mar-a-Lago and Trump Tower from Jtr11f1JJTY 20 2017 to March 8 2017 This request specifically seeks the same 28 fields of data that previously were posted on the White House Visitor Records Requests website Pursuant to the FOIA and Department of Homeland Security regulations we request expedition of this request because it involves an urgency to inform the public about an actual or alleged federal government activity and is made by entities primarily engaged in disseminating information Further the subject of this request concerns a matter of widespread and exceptional media interest in which there exist possible questions about the government's integrity which affect public confidence White House visitor logs first made available by the Obama administration have proven to be an invaluable resource in determining the outside influences to which the president is subject Countless articles have been written by a wide variety of publications based in part on information gleaned from the visitor logs Moreover significant concerns have been raised about how the president is using his private properties at Mar-a-Lago and Trump Tower The requested records will shed light on this equally important issue Underlining the exceptional interest in accessing these logs eight Senators sent letters to the president and Secret Service on March 6 2017 urging the release of the WAVES data The issue has been covered by media publications including The Daily Beast and Politico Under these circumstances this request An Independent I re ardllftltltute Mel library located at tiKI Gearge WasblnatDn Untverdy tho Arddw coUec ts and publisheS dediiSSified doamlents obtained ltlrough tile Freedom of Jftformation Act Publlcatlon royalties and tax deductible contributions lhrough The National Sealrily Archive Fund Jnc Wlderwrite the Archive's Budget A-51 Case 18-2814 Document 40 01 07 2019 2469015 Page56 of 205 Case 1 17-cv-02542-KPF Document 46-1 Filed 10 23 17 Page 2 of 9 v qualifies for expedition Ifyou regard any of these documents as potentially exempt from the FOIA's disclosure requirements we request that you nonetheless exercise your discretion to disclose them As the FOIA requires please release all reasonably segregable non-exempt portions of documents To permit us to reach an intelligent and informed decision whether or not to file an administrative appeal of any denied material please describe any withheld records or portions thereof and explain the basis for your exemption claims Ms Doyle is the National Security Archive's senior analyst of U S policy in Latin America Based at the Archive's office in New York she works with other scholars journalists hlDJlan rights groups truth commissions prosecutors and judges to open and analyze government files from secret archives that shed light on state violence She is the author of several dozen book chapters and articles that have appeared in scholarly publications such as the World Policy Journal and in media ranging from Harper's Magazine to Mexico's Proceso The Knight First Amendment Institute is a newly established organization at Columbia University dedicated to defending and strengthening the freedoms of speech and the press in the digital age Research and public education are essential to the Institute's mission Obtaining information about government activity anal '2iug that information and publishing and disseminating it to the press and public are among the core activities the Institute was established to perform Citizens for Responsibility and Ethics in Washington CREW is a non-profit cotpemltion organized 1Dlder section 50l c 3 of the Internal Revenue Code CREW is committed to protecting the public's right to be aware of the activities of government officials to ensuring the integrity of those officials and to highlighting and worlcing to reduce the influence of money on politics CREW uses a combination of research litigation and advocacy to advance its mission CREW brought the original Freedom of Information case that persuaded the Obama administration to set up the automatic system of publishing White House visitor logs As a representative of the news media the National Security Archive qualifies for representative of the news media status under 5 U S C Sec SS2 a 4 A ii ll and therefore may not be charged search and review fees See National Security Archive v U S Department ofDefense 880 F 2d 1381 D C Cir 1989 certtknied 110 S Ct1478 1990 This request is made as part of a scholarly and news research project that is intended for publication and is not for commercial use For details on the Archive's research and extensive publication activities please see our website at www nsarchive org The Knight Institute also qualifies for a waiver of search and review fees on the grounds that it qualifies both as a ''representative of the news media and as an educational institution whose purposes include scholarly research and the records are not sought for commercial use 5 U S C § 552 a 4 A ii II Situated within a prominent academic research university the Institute will perform scholarly research on the application of the First Amendment in the digital era The Institute is in the midst of inaugurating a research program that will bring together academics and practitioners of different disciplines to study contemporary First Amendment issues and offer informed non-partisan commentary and solutions It will publish that commentary in many fonns-in scholarly publications in long-foan reports and in shanform essays A-52 Case 18-2814 Document 40 01 07 2019 2469015 Page57 of 205 Case 1 17-cv-02542-KPF Document 46-1 Filed 10 23 17 Page 3 of 9 v Please notifY me before incurring any photocopying costs over $100 If you have any questiollS regarding the identity of these records their location the scope of the request or any other matters please call me by phone at 646 792-7254 or via e-mail at foiamail@gwu edu Cc Jamcel Jaffer Founding Director Knight First Amendment Iosdtute Columbia University Tom Blanton Executive Director National Security Archive Anne Weismann ChiefFOlA Counsel Citizens for Responsibility and Ethics in Washington A-53 Case 18-2814 Document 40 01 07 2019 2469015 Page58 of 205 Case 1 17-cv-02542-KPF Document 46-1 Filed 10 23 17 Page 4 of 9 wtPA1o3 PNG --··- -····-· • ·- ---- -· • -- - - - ---- ·-·· _j - -·-·· • · ···--··---- · · - - -·-· - -- ---- 11 - · Si t1UKUJIB e· A a x ncn __ ___ _ _· - -·- ·· - -- --····'- __ _ -·- ·-· --····--·----·· 101127--IM •· M --·-·SIIMIX - - - - - - - - - lim _ - •·- • _ _ 111 17 21110_ ' CIIIIJ ll1117 1 -- ---- ·-----···· ta5--· ·- -- ·-----·-·- ------ - --- ·- ' ---· -----·--·· ·--··· - -·-- - - lll - u -·- - - ·_ - ·· - ·· AI ___ ___ _ _ _ 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t'2017 v • -··II · - open whitehouse gov '·-----·····-______ ___ ·-· ________ __ -··· _ __ _____ ·---·-·· # _ • I UVU I i f ·- 't· I -i I' - 1§1I ' ' - - -· if j a Yo%1 _ _ _ _ Willi• Hause vaslcot Records llequtiU _J- - - ·----·- · _ _ - _ _ ---- --- _ _ _ _ __ -- --- _ ---- ·----- -- ···i - · 7 - --lilllla-DI · · % - ·t i l SID -·- ·- -- Sf llt-·- --·- ·- -I _ $W11 i C- · - --- - - - -- -- - · ·- - - -- - · - - · - - -·I - - -- -·- - · - - l - IJ •Ja _ ·------cm l --- C IJ71J011·mre- _ ---· • i iltf _ • SWH ll iliftH _ - ------ _ _ ---- ·· -- - -- -- - -·· - a ----· · · s'Gi Oi ai i ·- -- ma- · -···- ··-- ·· ---··- · - - ' iii il ·· · a ' ss- • s -- ··---s- a · ---------··· ----· •• iii ' sGIDUNDS 1151Wi · a - Dil $WI - »5• -5 aWN - _ ·CIItiC - - - - ··- - J- · ' · Slllf-·Slllt-···------ ··--__ ----- _ _ -a -- a a e- ···---· ---- - ---- ·o c -·--- ·-···-- - · - ··------· ------- '· ----·----- _ - - ···-·--· --·· -ntiO- ama - j cma ·· --- -----·--- aJntll- _ tlll_ '27ntl0 ama --- -·-· s- u ·---·· ----· ··-·-- ----··· -· - - _ _ __ _ _ __ _ ---· ·- ---··-·-·-·-· _ __' llll ltott 3 s M -·- · • --·----Sl-·l t-·- ·--- - ama _ _ -·-- - --· •· ··-· -·-· --·- f' - • • - • • • • • • -·· • 111 A-56 Case 18-2814 Document 40 01 07 2019 2469015 Page61 of 205 Case 1 17-cv-02542-KPF Document 46-1 Filed 10 23 17 Page 7 of 9 FOIA From Sent To Subject Attachments FOIA Tuesday Aprilll 201711 00 AM 'foiamail@gwu edu' FOIA File Numbers 20171321-20171323 20171321-20171323 pdf Dear Requester Please see the attached letter regarding the status of your FOIA PA request If you have any questions in regard to this matter please contact this office at 202 406-6370 Thank You Freedom of Information Act Privacy Act Program United States Secret Service 245 Murray lane SW Building T-5 Washington DC 20223 Phone 202 406-6370 Fax 202 406-5586 Email FOIA@USSS DHS GOV A-57 Case 18-2814 Document 40 01 07 2019 2469015 Page62 of 205 Case 1 17-cv-02542-KPF Document 46-1 Filed 10 23 17 Page 8 of 9 v DEPARTMENT OF HOMELAND SECURilY UNITED STATES SECReT SERVICS WASHINGTON D C 20223 Freedom of Information Act Privacy Act Program Communications Center 245 Murray Lane SW BuildingT-5 Washington D C 20223 Date APR 11 2017 The National Security Archive New York Office - 120 Wall Street 31st Floor New York NY 10005 Attn Kate Doyle File Numbers 20171321 - 20171323 Dear Requester This letter is intended to acknowledge the receipt ofyour recent Freedom of Information Act FOIA request received by the United States Secret Service Secret Service on March 10 2017 for infotmation pertaining to File Number 20171321 The Worker and Visitor Entrance System WAVES records and Access Control Records System ACR records from January 20 2017 until March 8 2017 File Number 20171322 Records of presidential visitors at Mar-a-Lago from January 20 2017 to March 8 2017 and File Number 20171323 Records ofpresidential visitors at Trump Tower from January 20 2017 to March 8 2017 You have requested expedited processing of your request under the Department of Homeland Security DHS standard permitting expedition when a requester demonstrates a compelling need Your request for expedited treabnent bas been denied Under the DHS FOIA regulation 6 C F R Chapter I Part 5 § 5 5 expedited processing of a FOIA request is warranted if the request involves circumstances in which the lack of expedited treatment could reasonably be expected to pose an imminent threat to the life or physical safety of an individual d l i or an urgency to inform the public about an actual or alleged federal government activity ifmade by a person primarily engaged in disseminating infoiUlation d l ii Requesters that seek expedited processing must submit a statement explaining in detail the basis for the request Additionally FOIA regulation 6 C F R Chapter I Part 5 § 5 5 d 3 requires that statements be certified by the requester to be ''true and correct to the best of that person's knowledge and belief A-58 Case 18-2814 Document 40 01 07 2019 2469015 Page63 of 205 Case 1 17-cv-02542-KPF Document 46-1 Filed 10 23 17 Page 9 of 9 · · Your request has been denied because you do not qualify under either category Clearly you have not demonstrated that there is a threat to the life or physical safety of an individual nor have you demonstrated there is a particular urgency to infonn the public about the government activity involved in the request beyond the public's right to know about government activity generally Your letter was conclusory in nature and did not present any facts to justify a grant of expedited processing under the applicable standards Additionally provisions ofthe Act allow us to recover part of the cost of complying with your request We shall charge you for the records in accordance with Interim FOIA regulations as they apply to all other requesters The first 100 pages of duplication are free of charge As an all other requester you will be charged 1 0 cents a page for the duplication of each additional page M an all other'' requester the first 2 hours of search time are free of charge after which you will be charged the per quarter-hour rate $4 00 $7 00 $10 25 of the searcher Please be advised the submission ofyolU' request is considered a firm commitment by you to pay all applicable duplication and search time costs charged under 6 C F R Chapter I Part 5 § 5 11 up to $25 00 A search for files responsive to your request is being conducted The appropriate components of the Secret Service are being queried for responsive documents Ifany responsive records are located they will be reviewed for a disclosme determination You wlll be contacted before any additional fees are accrued If you deem the decision to deny expedited treatment to your request an adverse determination you may exercise your appeal rights Should you wish to file an administrative appeal your appeal should be made in writing and received within sixty 60 days ofthe date of this letter by writing to Freedom oflnfonnation Appeal Deputy Director U S Secret Service Communications Center 245 Murray Lane S W Building T-5 Washington D C 20223 If you choose to file an administrative appeal please explain the basis of your appeal and reference the case number listed above Your request has been assigned FOIA File Numbers 20171321 -20171323 We solicit your cooperation and assure you that the search will be conducted as expeditiously as possible To check the status ofyour FOIA request please contact this office at 202 406-6370 Please use the file nmnber indicated above in all future correspondence with this office Sincerely Campbell Special Agent In Charge Freedom of Information Act Privacy Act Officer A-59 Case 18-2814 Document 40 01 07 2019 2469015 Page64 of 205 Case 1 17-cv-02542-KPF Document 47 Filed 10 23 17 Page 1 of 9 UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK KATE DOYLE et al Plaintiffs Civ Action No 17-2542-KPF U S DEPARTMENT OF HOMELAND SECURITY et al Defendants DECLARATION OF JAMES M MURRAY DEPUTY ASSISTANT DIRECTOR OFFICE OF PROTECTIVE OPERATIONS UNITED STATES SECRET SERVICE I James M Murray make the following declaration in lieu of affidavit pursuant to 28 u s c §1746 1 I am employed by the United States Secret Service Secret Service or Agency as a Deputy Assistant Director DAD Office of Protective Operations OPO This is an SES position ES-1811-00 I have been employed by the Secret Service since 1995 and assigned as the DAD ofthe OPO since April of2016 2 In this position I oversee the Presidential Protective Division and protective operations on and around the White House Complex including the Secret Service's involvement with the Worker and Visitor Entrance System WAVES 1 A-60 Case 18-2814 Document 40 01 07 2019 2469015 Page65 of 205 Case 1 17-cv-02542-KPF Document 47 Filed 10 23 17 Page 2 of 9 Functions of the Secret Service 3 The Secret Service is a protective and Jaw enforcement agency operating under the provisions of Title 18 of the United States Code Sections 3056 and 3056A Pursuant to Section 3056 a the Secret Service is charged with the protection of the President and Vice President of the United States and their immediate families major candidates for President and Vice President of the United States and their spouses the President-elect and Vice President-elect and their immediate families fonner Presidents and Vice Presidents of the United States their spouses and minor children visiting foreign heads of state and heads of government and certain other individuals as directed by the President of the United States By statute the Secret Service's protection of the President and Vice President as well as the President-elect and Vice President-elect is mandatory Additionally pursuant to Section 3056A a the Secret Service is authorized to protect the White House Complex and the Vice President's official residence foreign diplomatic missions in the Washington D C area and certain other locations within the United States designated events of national significance as well as other locations The Secret Service does not have a similar statutory authority to protect Mar-a-Lago or Trump Tower 4 OPO is a directorate in the Secret Service that manages various operational and support functions The OPO is responsible for establishing policies related to the Secret Service's protective mission and for overseeing the operational divisions that protect the persons places and events that the Secret Service is authorized to protect In my capacity as the Deputy Assistant Director of the OPO the representations made in this 2 A-61 Case 18-2814 Document 40 01 07 2019 2469015 Page66 of 205 Case 1 17-cv-02542-KPF Document 47 Filed 10 23 17 Page 3 of 9 declaration are made on behalf of the Secret Service as an agency and not solely on behalf of the OPO 5 The White House Complex also Complex for purposes of access as secured by the Secret Service includes the White House the Eisenhower Executive Office Building EEOB which is also known as the Old Executive Office Building the grounds encompassing the EEOB and the White House and the New Executive Office Building NEOB Housed in the White House the EEOB and the NEOB are the offices of various staff of the Executive Office of the President EOP and the Office of the Vice President 6 As part of its function to provide protection for the White House Complex the Secret Service monitors and controls access to the Complex Records Regarding the White House Complex A Record Types 7 The U S Secret Service utilizes two interrelated electronic systems the Executive Facilities Access Control System EFACS - EFACS system for controlling and monitoring access to the White House Complex and the WAYES system for vetting visitor information and granting access to the White House Complex 8 When an authorized White House Complex passholder including but not limited to members of the President's and Vice President's staffs provides visit information to the Secret Service they typically utilize either a system called Appointment Center or the WAVES Request System WRS to submit the request including all required personally identifiable information for the persons requesting access to the White House Complex These systems are web-based applications allowing the users to securely 3 A-62 Case 18-2814 Document 40 01 07 2019 2469015 Page67 of 205 Case 1 17-cv-02542-KPF Document 47 Filed 10 23 17 Page 4 of 9 enter the sensitive information being requested The Appointment Center website sends a link to the prospective visitor and the visitor fills out the required fields which is then returned to the Appointment Center database For most appointments with the exception of East Wing tour groups the information is automatically pulled from the Appointment Center into WAVES and held in draft until approved by an authorized passholder With respect to the WRS the EOP staffer who is requesting the appointment must fill out the required fields for prospective visitors Once completed the information is saved into WAVES directly A Secret Service employee at the WAVES Center verifies that the requestor is authorized to make appointments for the specific location requested for instance an individual may only have authorization to make an appointment in the NEOB fills in any additional necessary information 1 or makes any changes generally with the consent of the requestor conducts background checks and transmits the information electronically to the EFACS server The Secret Service uses the information provided for the limited purposes of performing background checks to determine whether and or under what conditions a visitor may be temporarily admitted to the Complex and to verify the visitor's admissibility at the time ofthe visit 9 WAVES records contain various fields the majority of which contain information an authorized White House Complex passholder has provided to the Secret Service Among those fields is a description field which may contain comments provided by the authorized White House Complex passholder For instance a White House Complex passholder may enter information that the request relates to a large event such as a bill 1 For instance the WAVES Center employee may note that an escort for the visitor is needed 4 A-63 Case 18-2814 Document 40 01 07 2019 2469015 Page68 of 205 Case 1 17-cv-02542-KPF Document 47 Filed 10 23 17 Page 5 of 9 signing The note and description field may be annotated by Secret Service personnel with limited infonnation as a result of background checks perfonned by the Secret Service and or with instructions including coded instructions to Secret Service officers such as security information the name and or initials of Secret Service personnel or notes reflecting the circumstances pursuant to which an individual is to be admitted I 0 Once an individual is cleared into the White House Complex he or she is generally issued an appropriate badge although badges are often not issued for large groups such as East Wing tours Typically an Access Control Record ACR is generated within the EFACS system whenever a badge is swiped over one of the electronic badge readers located at entrances to and exits from the White House Complex ACR records include information such as the entrant's name and badge number the date and time of the swipe and the post at which the swipe was recorded 11 Once a visit takes place WAVES records are typically updated electronically with ACR infonnation showing the time and place of the entry into and exit from the White House Complex The time of arrival may differ slightly however between the WAVES and ACR records The after-visit records that combine WAVES and ACR information are still commonly referred to as WAVES records though they may also occasionally be referred to as EFACS records 12 The WAVES system was implemented at the Vice President's Residence VPR on March 6 2017 The EFACS system is still being configured for the VPR and is not yet in production use at the VPR Therefore WAVES and ACR records are not generated at this time for the VPR 5 A-64 Case 18-2814 Document 40 01 07 2019 2469015 Page69 of 205 Case 1 17-cv-02542-KPF Document 47 Filed 10 23 17 Page 6 of 9 B Presidential Control over White House Access Records and the Maintenance of those Records 13 Once a visit to the White House Complex is complete the Secret Service has no continuing interest sufficient to justify its own preservation or retention of WAVES or ACR records Since at least 2001 it has been the practice of the Secret Service to transfer newly-generated WAVES records to the White House Office of Records Management WHORM generally every 30 to 60 days The note and description fields from prior to 2006 were not initially transferred to the WHORM those fields from 2004 to 2006 were subsequently transferred to the WHORM in 2006 However since at least 2009 the records have been transferred approximately every 30 days It is the intent of the Secret Service that once transferred the WAVES records are to be erased from the computer system Additionally WAVES records older than 60 days are ordinarily purged daily via a type of auto-delete on a rolling basis and overwritten on the servers Data that is auto-deleted includes appointment information visitor information including personally identifiable information times of arrival and departure and through which entry exit points the visitor passed 14 In May 2006 the Secret Service Records Management Program entered into a Memorandum of Understanding 2006 MOU with the WHORM that documented what was then understood to be past practice and interests regarding WAVES and ACR records The 2006 MOU also confirmed WHORM's management and custody of the records under the Presidential Records Act A true and correct copy of the 2006 MOU is attached hereto as Exhibit 1 15 At least as early as 2001 at the end of the Clinton Administration and upon revisiting the issue in 2004 the Secret Service and the White House recognized and agreed that 6 A-65 Case 18-2814 Document 40 01 07 2019 2469015 Page70 of 205 Case 1 17-cv-02542-KPF Document 47 Filed 10 23 17 Page 7 of 9 ACR records should be treated in a manner generally consistent with the treatment of WAVES records The White House and the Secret Service have detennined that ACR records should be transferred to the WHORM and deleted from the Secret Service's computers like WAVES records In May 2006 the Secret Service transferred to the WHORM ACR records covering the period from 12 00 p m on January 20 2001 to April 30 2006 The Secret Service has also transferred to the National Archives and Records Administration ACR records covering the period from 12 00 p m on January 20 1993 to 12 00 p m on January 20 2001 Currently the after-visit records that are transferred to the WHORM constitute a combination of WAVES and ACR infonnation 16 WAVES servers are located at the Secret Service's headquarters in Washington D C and Secret Service personnel operate this machinery However the President is the business owner of the EF ACS and WAVES systems and the Secret Service operates those systems on behalf of the President acting as a service provider This organizational restructuring was undertaken pursuant to the 2015 Memorandum of Understanding 2015 MOU entered into by the Presidential Technology Community regarding Presidentiallnfonnation Technology Community Operations The Secret Service operates turnstiles runs background checks on White House Complex visitors and provides status updates as a service provider to the President 17 The 2015 MOU specifically states that a ll records created stored used or transmitted by on or through the unclassified infonnation systems and infonnation resources provided to the President Vice President and EOP shall remain under the exclusive ownership control and custody of the President Vice President or originating EOP component 7 A-66 Case 18-2814 Document 40 01 07 2019 2469015 Page71 of 205 Case 1 17-cv-02542-KPF Document 47 Filed 10 23 17 Page 8 of 9 18 The Secret Service manages the data regarding access prior to the visit to the White House Complex However once a visit is complete the Secret Service has no continuing interest in WAVES and ACR records 19 In fact because the records do not belong to the Secret Service pursuant to the 2015 MOU the Secret Service must request permission from the White House to view a record once a visit has concluded Once the records have been transferred to the WHORM should the Secret Service need access to the files in addition to obtaining White House approval the Secret Service must contact the WHORM to obtain access to the records 20 Additionally the Secret Service must request permission from the DWHIT to modify in any way the WAVES or EF ACS systems as the President is the business owner of the systems and the Secret Service operates them on behalf of the President C Records Relating to the Current Litigation 21 In light of other pending federal litigation Public Citizen v DHS Civ Action No 171669 pending in the U S District Court for the District of Columbia and with the permission of the White House for litigation hold purposes the Secret Service has shut off the auto-delete of WAVES records effective August 19 2017 The Secret Service will maintain a copy of the WAVES and ACR records that are sent to the WHORM during the pendency of that litigation as well as this case Accessing the President's Schedule 22 The Secret Service relies on information regarding the President's schedule that is provided by the White House Office to fulfill its protective mission Each evening staff from the White House Office including the Office of Presidential Scheduling and the 8 A-67 Case 18-2814 Document 40 01 07 2019 2469015 Page72 of 205 Case 1 17-cv-02542-KPF Document 47 Filed 10 23 17 Page 9 of 9 Office of Advance sends the President's schedule to the Secret Service White House Office staff transmit the daily schedule in two ways First they upload the schedule to an EOP web portal accessible only to a limited number of Secret Service personnel with an operational need to know the scheduling information Second the web portal generates an automated email that is sent to a limited number of Secret Service personnel with an operational need to know the scheduling information 23 A Secret Service employee who needs access to the President's schedule through either the web portal or the email must first request access from the White House Office Only after a Secret Service employee is approved by the White House Office will he or she receive access to the web portal or the auto-generated email 24 The Secret Service uses the Presidential schedule documents and information obtained from the White House Office solely to fulfill its operational needs Such Presidential schedule documents and information belong to the White House Office and not the Secret Service They are provided to and used by the Secret Service solely for the limited purpose of allowing the Secret Service to perform its statutory duty to protect the President Vice President and other protectees as well as the White House Complex I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge and belief cJac a Deputy Assistant Director Office of Protective Operations United States Secret Service 9 A-68 Case 18-2814 Document 40 01 07 2019 2469015 Page73 of 205 Case 1 17-cv-02542-KPF Document 47-1 Filed 10 23 17 Page 1 of 5 MEMORANDUM OF UNDERSTANDING Between the White House Office of Records Management and the United States Secret Service Records Management Program Governl g Records Generated By th e white House ccess Control System ODUCTION 1 · · ThiS MEMORANDUM OF UNDERSTANDING betWeen the White House Office of Recofds Management White House and the United States Secret Service Records Management Program the Se cret Service'' collectively ''The Parties memorializes an« coni irms the agreement g veming the status and bandting of record8 generated through the White ouse A-ccess Control-System · DEFINITIONS 2 The White House Access Control System WHACS includes two interrelated systems used by the Secret Service for controlling and monitoring access to the White House Complex · · a The Worker and Visitor trance System WAVBS'' b The Access Control Records System ACR 3 · WHACS Records' include WAVBS RecOrds and ACR Records 4 'WAVES Records consist of records geneiated when an authorized White House pass holder submits to the Secret Service information about visitors and workers whose business requires their preSence at the White House Complex a WAVBS Records include the following infonnation submitted by the pass holder the visitor's name the visitor's date ofbirth the visitor's Soci l SecuntyNumber the time and location of the planned visit the name of the pass holder submitting b 5 Once a visit' takes place WAVES Records are typically updated electronically with information showing the actual ti e and place of the visitor's ehtry into and exit from the White House·Coii plex · ACR Records consist ofreeords generated when a white House pass holder worker ·or visitor swipes his or her permanent or temporary pass over one of the electronic pass reiulers located at entrances to d exi from the White House Complex · · EXHIBIT Jj_ A-69 Case 18-2814 Document 40 01 07 2019 2469015 Page74 of 205 Case 1 17-cv-02542-KPF Document 47-1 Filed 10 23 17 Page 2 of 5 • ·· ' a ACR Records include the following information the pass holder's name and badge number the time and date of the swipe and the post at which the swipe was recorded 6 Federal Records mean documentary materials subject to the Federal Records Act 44 U S C § 3301 et seq 7 Pre3ideutial Records mean documentary materials subject to the Presid tial Records Act 44 U S C § 2201 et seq means 8 ''The White·House Complex the White HoUse and the Eisenhower Bxecutive Office Building and the secured grounds encompassing them and the New Executive Oijice Building 9 The ''White House Office of Records Management WHORM'' mearis the office in the · White House responsible for preserving Presidential Records BACKGRO 10 WHACS is operated by the Secret Service in order to control and monitor the entry and exit of persons into and out of the White House Complex 11 Tbe information contained in WHACS Records originates with White House pass holders visitors and workers as a result of White House business a 12 Such information reflects the conduct of the President's buainess by providing details about die comings ll ld goings of workers and visitors to the White House · · The authorized White House pass holders provide infonnation contained in WAVBS Records to the Secret Service temporarily for two limited purposes a To allow the Secret Service tO perform background checks to determine whether and under what conditions to authorize the visitor's temporary admittance to the White House Complex · · b To allow the Secret Service to verify the visitor's admissibility at the time oftlie it 13 Once the visit ends the information contained iri WAYES RecordS and ACR Records bas no continuing usefulness to the Secret S ice 14 It bas been the longstanding practice of the Secret Service to tJ anSfer WAYES Records on CD-ROM to WHORM every 30 to 60 days Except as noted in paragraph 16 below once the Secret Service transferred the Y'lAVES Records the Secret Service ensured that those records were erased from itS computer system · A-70 Case 18-2814 Document 40 01 07 2019 2469015 Page75 of 205 Case 1 17-cv-02542-KPF Document 47-1 Filed 10 23 17 Page 3 of 5 a 1S Under this practice the Secret Serviee has retained WAVES Records for completed visits for only a brief period and solely for the purpose of faclliblting an orderly and efficient transfer of those records to WHORM · 1'Jle Secret Service historically bas retained ACR Records in its computer system without transferring those r ords to WHORM In 2004 however the Secret Service apd the White House recognized and agreed that ACR Recorda should be treated in a manner consistent with the treatment ofWAVBS Records lind concluded that ACR Records should be transferred to WHORM and eliminated from the Secret Service's files The Secret Service bas continued to maintain ACR Records pending a legal detennihation of · their status as Presidential Records · · 16 In October 2004 at the request of the National Archives and Records Administmtion NARA the Secret Service began retaining its own copy of the WAVBS Records that it transferred to the White House · a The Secret Service agreed to NARA's request on the understanding that it would be a temporary practice maintained until a legal determination was made confmning the propriety of handling WHACS Records as Presidential Records UNDERSTANDING AND AGREEMENT 17 The purpose of this Memorandum ofUndcrstBnding is to express and e body The Parties' understanding and agreement that WHACS Records whenever created · a 18 b are not Fed ral Records · and c are not the records of an agency ' subject to the Freedom of Infonnation Act S u s c § 552 ·The Parties understand and agree that all WHACS Records are at all times under the elusive legal custody and control of the White House a 19 are at all times Presidential Records Although the Secret Service may at time have physical possess on ofWHACS Records such temporary physical possession does not alter the legal status of those records and does not operate in any way to divest the White House of complete and exclusi c legal control The Partie8 understand and agree that any infonnation provided to the Secret Service for the creation or in the fonn ofWHACS Records is provided under an express reservation of White House control A-71 Case 18-2814 Document 40 01 07 2019 2469015 Page76 of 205 Case 1 17-cv-02542-KPF Document 47-1 Filed 10 23 17 Page 4 of 5 20 21 Tho Parties understand and agree tbat tbe·Wbite House but not the Secret Service has a continuing interest in WHACS Records and that the White House continues t usc tbc infonnation contained in such records for various purposes Specifically a WAVBS Records have historical and other informational v alue to the White House as evidence of who has been invited and or granted admission to tho White House to meet with the President or members of his staff b ACR Records have historical or other informational value to the White House as evidence of the comings and goings of s visitors and workers at the White House Complex iJi the conduct of White Ho business• The Parties understand d a8n e that once a visitor's visit to e White House Complex is complete the Secret Service has no continuing interest in preserving or retaining WAVf 1l Records The Parties also understand and agree that the Secret Service has no interest whatsoever in preserving or retaining ACR Records a 22 The Secret Service understands and agrees that it will regularly tranSfer all WHACS Records in its possession to WHORM and that it will not retain its own copies of any WHACS Records except as is necessary to facilita t' the transfer of those records to WHORM a 23 WHACS Recorda are therefore not appropriate for preservation by the Secret Service either as evidence of the Secret S cc's activities or for their infonnational val c Any temporary retention ofWHACS Records by the Secret Service after the visit entrance or exit memorialized by those records is solely fo the purpose of facilitating an orderly and efficient transfer of those records and does not operate in any way to divest the Whi e House of complete and ex lusive legal control The understandings and a cmcnts expressed herein apply to · a Aity and all WHACS Records currently in the possession or custody of the Secret Service b 24 Any and all WHACS Records that may be generated at any time Subsequent to the execution of s Mcmo dum ofUnderstand ing I is specifically intended by The Parnes that the understandings and agreements set forth herein serve as evidence that the White House at all times asserts and the Secret Service disclaims legal control over any and ail WHACS Records subject to this Memorandum ofUndc rstanding all A-72 Case 18-2814 Document 40 01 07 2019 2469015 Page77 of 205 Case 1 17-cv-02542-KPF Document 47-1 Filed 10 23 17 Page 5 of 5 a ·The foregoing is not ili1ended and should not be construed to suggest that · WHACS Records in the posseasfon or custody of the Secret Service before the execution of this Memorandum of Understanding were under the legal control of the Secret Service · · · · -l M · iefRecordso Director White House Office of Records Management Dated - l United States Secret Service 2006 A-73 Case 18-2814 Document 40 01 07 2019 2469015 Page78 of 205 Case 1 17-cv-02542-KPF Document 48 Filed 10 23 17 Page 1 of 5 UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK ______________________________________________________________________________ KATE DOYLE et al Civ Action No 17-2542 KPF Plaintiffs v U S DEPARTMENT OF HOMELAND SECURITY EXECUTIVE OFFICE OF THE PRESIDENT Defendants ______________________________________________________________________________ DECLARATION OF SUPERVISORY INFORMATION TECHNOLOGY SPECIALIST WILLIAM WILLSON UNITED STATES SECRET SERVICE I William Willson make the following declaration in lieu of affidavit pursuant to 28 U S C §1746 1 I am employed by the United States Secret Service “Secret Service” or “Agency” as the Branch Chief for Mission Applications within the Office of the Chief Information Officer of the United States Secret Service I have a Bachelor of Science Degree in Information Systems Management and a Master’s Degree in Business Administration and Technology Management 2 I joined the Secret Service in May of 2008 as an Information Technology Specialist and was immediately assigned to redesign a replacement for the Worker and Visitor Entrance 1 A-74 Case 18-2814 Document 40 01 07 2019 2469015 Page79 of 205 Case 1 17-cv-02542-KPF Document 48 Filed 10 23 17 Page 2 of 5 System WAVES In this capacity I was tasked with designing developing and deploying a new version of this system 3 In my capacity as the Branch Chief for Mission Applications I manage the WAVES system and am familiar with the information that is obtainable from the WAVES System 4 It is my understanding that the time frame at issue in the above-captioned case is January 20 2017 through March 8 2017 Post-Visit Status of WAVES ACR Records 5 The Secret Service electronically transfers WAVES and ACR Access Control Records records to the WHORM White House Office of Records Management approximately every 30 days I typically send an e-mail to the WHORM with the prior month’s data around the beginning of the next month 6 Records that are older than 60 days are ordinarily auto-deleted from the server operated by the Secret Service on a rolling basis For example on March 31 2017 data from January 30 2017 was auto-deleted from the server operated by the Secret Service 7 An individual WAVES record contains the following fields NameLast NameFirst NameMid DOB SSN UIN BDGNBR Access_Type TOA POA TOD POD Appt_Made_Date Appt_Start_Date Appt_End_Date Last Name of Visitor First Name of Visitor Middle Name of Visitor Date of Birth of Visitor Social Security Number of Visitor Unique Identification Number Badge Number Type of Appointment i e visitor worker Time of Arrival Place of Arrival Turnstile Time of Departure Point of Departure Date Appointment was made Date Appointment starts Date Appointment ends 2 A-75 Case 18-2814 Document 40 01 07 2019 2469015 Page80 of 205 Case 1 17-cv-02542-KPF Document 48 Filed 10 23 17 Page 3 of 5 Appt_Cancel_Date Total_People Escort_Type Escort_Name_Last Escort_Name_F Last_UpdatedBy Post LastEntryDate Terminal_Suffix Visitee_NameLast Visitee_NameFirst Visitee_Phone Meeting_LOC Meeting_Room Caller_Name_Last Caller_Name_First Caller_Phone Caller_Room Note Description AppointmentComments HighlySensitiveMeeting Caller_Email Date Appointment cancelled Number of people in the Appointment Type of Escort Required Last Name of Escort First Name of Escort Person who last updated the record Area of turnstile location at arrival Date of last change to the record Identification of the computer at the post Last Name of Visitee First Name of Visitee Phone Number of Visitee Meeting Location Meeting Room Number Last Name of the Person Making the Appointment First Name of the Person Making the Appointment Phone Number of Person Making the Appointment Room Number of Person Making the Appointment Security Status Code Details regarding security or nature of event Field used by the appointment requestor to pass information to Secret Service WAVES Center personnel about the appointment Notation by the requestor if it is a highly sensitive meeting Email address of the appointment requestor PRA versus FOIA Components 8 It is my understanding that the United States Court of Appeals for the District of Columbia Circuit has determined that records that would disclose visitors to units in the Executive Office of the President whose sole function is to advise and assist the President “PRA Components” are Presidential records not subject to the FOIA The Court also concluded that records that would disclose visitors to offices in the White House Complex that historically have been covered by the Freedom of Information Act are “agency records” subject to disclosure under the Act “FOIA Components” 3 A-76 Case 18-2814 Document 40 01 07 2019 2469015 Page81 of 205 Case 1 17-cv-02542-KPF Document 48 Filed 10 23 17 Page 4 of 5 9 From the information contained in the fields specified above the Secret Service has no definitive method to ascertain whether the visitee is employed by a PRA Component or a FOIA Component There is no field in the WAVES system that indicates what office the visitee is employed by although the requestor’s e-mail address in the Caller_Email field would reflect the component of the requestor However the visitee and the requestor may be different individuals from different components As one example only some individuals are authorized to make appointment requests so a particular visitee may not have that authorization and may request that an authorized passholder from another component submit the request 10 In addition there is no field to indicate the attendees at a meeting So a meeting can include attendees from FOIA components PRA components or some combination of the two An employee of one of the FOIA components may request an appointment for a meeting that is attended by employees of PRA components as well 11 The meeting location would also not provide definitive results as both the PRA Components and the FOIA Components utilize both the Eisenhower Executive Office Building EEOB and the New Executive Office Building NEOB 12 The description field is a “free form” field that allows users to make remarks regarding issues such as security arrangements regarding the visitor or the type of event the visitor is attending These remarks however do not identify whether the event is sponsored by a PRA Component or a FOIA Component 13 For all of 2017 and to the present for the above-stated reasons the Secret Service would have no definitive ability to discern from the WAVES records whether a visitor is making 4 A-77 Case 18-2814 Document 40 01 07 2019 2469015 Page82 of 205 Case 1 17-cv-02542-KPF Document 48 Filed 10 23 17 Page 5 of 5 a visit to an individual that was employed by a PRA Component or to an individual that was employed by a FOIA Component I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge and belief ___________ Date ____________________________ William Willson Branch Chief Mission Applications United States Secret Service 5 A-78 Case 18-2814 Document 40 01 07 2019 2469015 Page83 of 205 Case 1 17-cv-02542-KPF Document 49 Filed 10 23 17 Page 1 of 5 UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK KATE DOYLE NATIONAL SECURITY ARCHIVE CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON KNIGHT FIRST AMENDMENT INSTITUTE AT COLUMBIA UNIVERSITY Plaintiffs No 17 Civ 2542 KPF v U S DEPARTMENT OF HOMELAND SECURITY EXECUTIVE OFFICE OF THE PRESIDENT Defendants DECLARATION OF PHILIP C DROEGE I Philip C Droege hereby declare as follows 1 I am the Director of the White House Office of Records Management WHORM In this capacity I am responsible for managing preserving and forwarding to the National Archives and Records Administration NARA at the appropriate time records reflecting the business of the Presidency and Vice Presidency in accordance with the Presidential Records Act I have held this position since July 2004 and have been an employee ofthe White House Office since July 1990 The statements made herein are based on my personal knowledge and on information made available to me in my official capacity The White House and Presidential Records 2 The United States Secret Service Secret Service provides security for A-79 Case 18-2814 Document 40 01 07 2019 2469015 Page84 of 205 Case 1 17-cv-02542-KPF Document 49 Filed 10 23 17 Page 2 of 5 monitors and controls access to the White House Complex which includes the White House the Eisenhower Executive Office Building EEOB the grounds encompassing the EEOB and the White House and the New Executive Office Building NEOB The White House Complex includes office space for the President and his closest advisors and staff in the White House Office as well as office space for the Vice President and his closest advisors and staff in the Office of the Vice President 3 Since 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 Treatment of WAVES ACR Records 4 Since at least 2001 it has been the practice of the Secret Service to transfer newly-generated WAVES records to the WHORM generally every 30 to 60 days In recent years the transfer of records has occurred approximately every 30 days The note and description fields from prior to 2006 were not initially transferred to the WHORM those fields from 2004 to 2006 were subsequently transferred to the WHORM in 2006 5 At least as early as 2001 at the end of the Clinton Administration and upon revisiting the issue in 2004 the Secret Service and the White House recognized and agreed that Access Control Records ACR records should be treated in a manner generally consistent with WAVES records Since at least 2006 the Secret Service has been transferring ACR records to the WHORM generally every 30 to 60 days and more recently approximately every 30 days similar to the transfer of WAVES records 2 A-80 Case 18-2814 Document 40 01 07 2019 2469015 Page85 of 205 Case 1 17-cv-02542-KPF Document 49 Filed 10 23 17 Page 3 of 5 6 In May 2006 the WHORM entered into a Memorandum of Understanding with the Secret Service Records Management Program 2006 MOU that documented what was then understood to be past practice and interests regarding WAYES and ACR records which at that time were collectively termed White House Access Control System or WHACS records The 2006 MOU confirmed the Secret Service's historical practice of transferring W AYES records to the WHORM within 30 to 60 days after the visit and then deleting those records from its systems as well as the WHORM's management and custody of those records under the Presidential Records Act 7 The 2006 MOU expressly acknowledged that the White House but not the Secret Service has a continuing interest in WAYES and ACR Records 2006 MOUat 20 Such records reflect the activities and official functions of the Presidency and Vice Presidency and the White House continues to use the information contained in such records for various historical and informational purposes Accordingly WAYES and ACR records like other records that reflect the activities of the Presidency and Vice Presidency are maintained as records subject to the Presidential Records Act 8 The 2006 MOU continues to reflect current practices and interests with respect to W AYES and ACR records 9 By contrast o nee the visit ends the information contained in WAYES Records and ACR Records has no continuing usefulness to the Secret Service 2006 MOUat 13 The Secret Service's temporary retention of such records after an individual's visit to the White House Complex is solely for the purpose of facilitating an orderly and efficient transfer 3 A-81 Case 18-2814 Document 40 01 07 2019 2469015 Page86 of 205 Case 1 17-cv-02542-KPF Document 49 Filed 10 23 17 Page 4 of 5 of the records to the WHORM 2006 MOUat 14 a 10 At the conclusion of each Presidential Administration it is the practice of the WHORM to transfer to NARA all WAVES and ACR records the WHORM has received during the course of that Administration 11 I understand that Plaintiffs in this case have sought WAVES and ACR records for the period January 20 through March 8 2017 Pursuant to long-established practice as reflected in the 2006 MOU those records were transferred by the Secret Service to the WHORM on the routine 30 day basis The WHORM will continue to maintain and preserve the records under the Presidential Records Act and the records will be transferred to NARA at the conclusion of the current Administration However the WHORM has assured the Secret Service that should there be a final judgment in favor of Plaintiffs in this matter including any appeal WHORM will provide the Secret Service with the records necessary to satisfy the judgment The Former Voluntary Disclosure Policy 12 In 2009 the White House adopted a policy of voluntarily disclosing certain information contained in a subset of WAVES and ACR records starting on September 15 2009 13 The voluntary disclosure policy was subject to exceptions for 1 information that implicated personal privacy or law enforcement concerns e g dates of birth social security numbers and contact phone numbers 2 records that implicated the personal safety of EOP staff their daily arrival and departure 3 records whose release would threaten national security interests 4 records related to purely personal guests of the first and second 4 A-82 Case 18-2814 Document 40 01 07 2019 2469015 Page87 of 205 Case 1 17-cv-02542-KPF Document 49 Filed 10 23 17 Page 5 of 5 families i e visits that do not involve any official or political business and 5 records related to a small group of particularly sensitive meetings e g visits of potential Supreme Court nominees Records and information falling within these categories were not made public or in the case of particularly sensitive meetings were made public only after the records were no longer sensitive 14 The policy of voluntary disclosure was rescinded on April 14 2017 and is no longer in effect I declare under penalty of perjury that the foregoing is true and correct Executed on October 23 2017 White House Office of Records Management 5 A-83 Case 18-2814 Document 40 01 07 2019 2469015 Page88 of 205 Case 1 17-cv-02542-KPF Document 50 Filed 10 23 17 Page 1 of 4 UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK KATE DOYLE NATIONAL SECURITY ARCHIVE CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON KNIGHT FIRST AMENDMENT INSTITUTE AT COLUMBIA UNIVERSITY Plaintiffs No 17 Civ 2542 KPF v U S DEPARTMENT OF HOMELAND SECURITY EXECUTIVE OFFICE OF THE PRESIDENT Defendants DECLARATION OF CHARLES CHRISTOPHER HERNDON I Charles C Herndon declare as follows I I am the Director of White House Information Technology DWHIT and Deputy Assistant to the President I am the senior officer responsible for the information resources and information systems provided to the President Vice President and Executive Office of the President I report to White House Deputy Chief of Staff and Assistant to the President for Operations and through him to the Chief of Staff and the President I am part of what is known as the White House Office This declaration is based on my personal knowledge and upon information provided to me in my official capacity 2 A number of components make up the Executive Office of the President including the White House Office also referred to as the Office of the President Components of the White House Office include the President's immediate staff the White House Counsel's Office and the Staff Secretary's Office The White House Office serves the President in the performance of the many detailed activities incident to his immediate office and the various A-84 Case 18-2814 Document 40 01 07 2019 2469015 Page89 of 205 Case 1 17-cv-02542-KPF Document 50 Filed 10 23 17 Page 2 of 4 Assistants and Deputy Assistants to the President who aid the President in such matters as he may direct My role is to ensure the effective use of information resources and systems to the President 3 On March 19 2015 President Obama issued a memorandum creating my position and establishing a Presidential Information Technology Community and an Executive Committee for Presidential Information Technology of which I am a member A true and correct copy of this memorandum is attached hereto at Exhibit A 4 As set forth in the Memorandum the purpose of creating a Presidential Infmmation Technology Community was to ensure that information resources and information systems provided to the President Vice President and EOP Executive Office of the President are efficient secure and resilient establish a model for Government information technology management efforts reduce operating costs through the elimination of duplication and overlapping services and accomplish the goal of converging disparate information resources and information systems for the EOP Exh A Section I In particular it was determined that bringing various systems and resources into a single community under the auspices of the DWHIT would enhance the security of those systems and resources 5 The Presidential Memorandum instructs that members of the Presidential Information Technology Community enter into any memoranda of understanding as necessary to give effect to the Presidential Memorandum Accordingly in September 2015 the Community members entered into a Memorandum of Understanding MOU governing its operations A true and correct copy of that MOU is appended hereto at Exhibit B 6 The MOU establishes a framework to enable the DWHIT and the Executive Committee of the Presidential Information Technology Community to implement the necessary policies and procedures for operating and maintaining the information resources and information 2 A-85 Case 18-2814 Document 40 01 07 2019 2469015 Page90 of 205 Case 1 17-cv-02542-KPF Document 50 Filed 10 23 17 Page 3 of 4 systems provided to the President Vice President and EOP Exh Bat 1 5 It does this by among other things identifying the respective roles and responsibilities of the White House Communications Agency the Office of Administration the National Security Council and the U S Secret Service USSS Exh B § 2 7 With regard to the USSS the MOU states that the USSS shall provide without limitation all services which are not otherwise agreed to be provided by any other Party to the MOU and which USSS employees and agents require in order to perform USSS's protective functions as required by law Exh B § 2 08 Among the services provided by the USSS pursuant to the MOU is the management and operation of the Executive Facilities Access Control System EFACS and Worker and Visitor Entrance System WAVES USSS employees and agents require access to both of these information systems in order to perform the USSS's protective functions with regard to the White House Complex 8 In accordance with the MOU although the USSS operates EFACS and WAVES including by housing and operating the WAVES servers it does so on behalf of the President The President through the DWHIT controls and is the business owner of the EFACS and WAVES systems and the USSS operates those systems as a service provider In that capacity the USSS cannot make changes to the systems or make purchases related to the systems without consent of the DWHIT 9 Notwithstanding the USSS 's operation ofEFACS and WAVES on behalfofthe President the USSS does not maintain ownership control or custody of the records generated by the EFACS and WAVES systems The USSS has limited access to EF ACS and WAVES records as necessary to perform its protective functions however once a visit is concluded the USSS may not access EFACS or WAVES records without White House approval As set forth in the MOU a ll records created stored used or transmitted by on or through the 3 A-86 Case 18-2814 Document 40 01 07 2019 2469015 Page91 of 205 Case 1 17-cv-02542-KPF Document 50 Filed 10 23 17 Page 4 of 4 unclassified information systems and information resources provided to the President Vice President and EOP -including EF ACS and WAVES records- remain under the exclusive ownership control and custody of the President Vice President or originating EOP component Exh B § 3 01 I declare under penalty of petjury that the foregoing is true and conect to the best of my knowledge d hi 23 ' '' JZ aLJ Charles C Herndon 4 A-87 Case 18-2814 Document 40 01 07 2019 2469015 Page92 of 205 Case 1 17-cv-02542-KPF Document 50-1 Filed 10 23 17 Page 1 of 4 Administration of Barack Obama 2015 Memorandum on Establishing the Director of White House Information Technology and the Executive Committee for Presidential Information Technology March 19 2015 Memorandum for the Secretary of Defense the Secretary of Homeland Security the Director of the Office of Management and Budget the National Security Advisor and the Director of the Office of Administration Subject Establishing the Director of White House Information Technology and the Executive Committee for Presidential Information Technology By the authority vested in me as President by the Constitution and the laws of the United States of America and in order to improve the information resources and information systems provided to the President Vice President and Executive Office of the President EOP I hereby direct the following Section 1 Policy The purposes of this memorandum are to ensure that the information resources and information systems provided to the President Vice President and EOP are efficient secure and resilient establish a model for Government information technology management efforts reduce operating costs through the elimination of duplication and overlapping services and accomplish the goal of converging disparate information resources and information systems for the EOP This memorandum is intended to maintain the President's exclusive control of the information resources and information systems provided to the President Vice President and EOP High-quality efficient interoperable and safe information systems and information resources are required in order for the President to discharge the duties of his office with the support of those who advise and assist him and with the additional assistance of all EOP components The responsibilities that this memorandum vests in the Director of White House Information Technology as described below have been performed historically within the EOP and it is the intent of this memorandum to continue this practice The Director of White House Information Technology on behalf of the President shall have the primary authority to establish and coordinate the necessary policies and procedures for operating and maintaining the information resources and information systems provided to the President Vice President and EOP Nothing in this memorandum may be construed to delegate the ownership or any rights associated with ownership of any information resources or information systems nor of any record to any entity outside of the EOP Sec 2 Director of White House Information Technology a There is hereby established the Director of White House Information Technology Director The Director shall be the senior officer responsible for the information resources and information systems provided to the President Vice President and EOP by the Presidential Information Technology Community Community The Director shall i be designated by the President ii have the rank and status of a commissioned officer in the White House Office and 1 A-88 Case 18-2814 Document 40 01 07 2019 2469015 Page93 of 205 Case 1 17-cv-02542-KPF Document 50-1 Filed 10 23 17 Page 2 of 4 iii have sufficient seniority education training and expertise to provide the necessary advice coordination and guidance to the Community b The Deputy Chief of Staff for Operations shall provide the Director with necessary direction and supervision c The Director shall ensure the effective use of information resources and information systems provided to the President Vice President and EOP in order to improve mission performance and shall have the appropriate authority to promulgate all necessary procedures and rules governing these resources and systems The Director shall provide policy coordination and guidance for and periodically review all activities relating to the information resources and information systems provided to the President Vice President and EOP by the Community including expenditures for and procurement of information resources and information systems by the Community Such activities shall be subject to the Director's coordination guidance and review in order to ensure consistency with the Director's strategy and to strengthen the quality of the Community's decisions through integrated analysis planning budgeting and evaluation processes d The Director may advise and confer with appropriate executive departments and agencies individuals and other entities as necessary to perform the Director's duties under this memorandum Sec 3 Executive Committee for Presidential Information Technology There is hereby established an Executive Committee for Presidential Information Technology Committee The Committee consists of the following officials or their designees the Assistant to the President for Management and Administration the Executive Secretary of the National Security Council the Director of the Office of Administration the Director of the United States Secret Service and the Director of the White House Military Office Sec 4 Administration a The President or the Deputy Chief of Staff for Operations may assign the Director and the Committee any additional functions necessary to advance the mission set forth in this memorandum b The Committee shall advise and make policy recommendations to the Deputy Chief of Staff for Operations and the Director with respect to operational and procurement decisions necessary to achieve secure seamless reliable and integrated information resources and information systems for the President Vice President and EOP The Director shall update the Committee on both strategy and execution as requested including collaboration efforts with the Federal Chief Information Officer with other government agencies and by participating in the Chief Information Officers Council c The Secretary of Defense shall designate or appoint a White House Technology Liaison for the White House Communications Agency and the Secretary of Homeland Security shall designate or appoint a White House Technology Liaison for the United States Secret Service Any entity that becomes a part of the Community after the issuance of this memorandum shall designate or appoint a White House Technology Liaison for that entity The designation or appointment of a White House Technology Liaison is subject to the review of and shall be made in consultation with the President or his designee The Chief Information Officer of the Office of Administration and the Chief Information Officer of the National Security Council and their successors in function are designated as White House Technology Liaisons for their respective components In coordination with the Director the White House Technology Liaisons shall ensure that the day-to-day operation of and long-term 2 A-89 Case 18-2814 Document 40 01 07 2019 2469015 Page94 of 205 Case 1 17-cv-02542-KPF Document 50-1 Filed 10 23 17 Page 3 of 4 strategy for information resources and information systems provided to the President Vice President and EOP are interoperable and effectively function as a single modern and highquality enterprise that reduces duplication inefficiency and waste d The President or his designee shall retain the authority to specify the application of operating policies and procedures including security measures which are used in the construction operation and maintenance of any information resources or information system provided to the President Vice President and EOP e Presidential Information Technology Community entities shall i assist and provide information to the Deputy Chief of Staff for Operations and the Director consistent with applicable law as may be necessary to implement this memorandum and ii as soon as practicable after the issuance of this memorandum enter into any memoranda of understanding as necessary to give effect to the provisions of this memorandum f As soon as practicable after the issuance of this memorandum EOP components shall take all necessary steps either individually or collectively to ensure the proper creation storage and transmission of EOP information on any information systems and information resources provided to the President Vice President and EOP Sec 5 Definitions As used in this memorandum a Information resources information systems and information technology have the meanings assigned by section 3502 of title 44 United States Code b Presidential Information Technology Community means the entities that provide information resources and information systems to the President Vice President and EOP including i the National Security Council ii the Office of Administration iii the United States Secret Service iv the White House Military Office and v the White House Communications Agency c Executive Office of the President means i each component of the EOP as is or may hereafter be established ii any successor in function to an EOP component that has been abolished and of which the function is retained in the EOP and iii the President's Commission on White House Fellowships the President's Intelligence Advisory Board the Residence of the Vice President and such other entities as the President from time to time may determine Sec 6 General Provisions a Nothing in this memorandum shall be construed to impair or otherwise affect i the authority granted by law to an executive department agency entity office or the head thereof or 3 A-90 Case 18-2814 Document 40 01 07 2019 2469015 Page95 of 205 Case 1 17-cv-02542-KPF Document 50-1 Filed 10 23 17 Page 4 of 4 ii the functions of the Director of the Office of Management and Budget relating to budgetary administrative or legislative proposals b This memorandum shall be implemented consistent with applicable law and appropriate protections for privacy and civil liberties and subject to the availability of appropriations c This memorandum is not intended to and does not create any right or benefit substantive or procedural enforceable at law or in equity by any party against the United States its departments agencies or entities its officers employees or agents or any other person BARACK OBAMA Categories Communications to Federal Agencies White House Information Technology Director memorandum establishing Executive Committee for Presidential Information Technology memorandum establishing Subjects White House Office Assistants to the President White House Information Technology Director White House Office Information Technology Executive Committee for Presidential DCPD Number DCPD201500185 4 A-91 Case 18-2814 Document 40 01 07 2019 2469015 Page96 of 205 Case 1 17-cv-02542-KPF Document 50-2 Filed 10 23 17 Page 1 of 9 Memorandum of Understanding Entered into by the Presidential Information Technology Community Regarding Presidential Information Technology Community Operations This Memorandum of Understanding Memorandum is effective as of the date of the last agreeing entity to sign the Memorandum Recitals 1 On March 19 2015 the President signed a Presidential Memorandum establishing the Director of White House Information Technology DWHIT and the Executive Committee for Presidential Information Technology Committee and designating several entities as members of the Presidential Information Technology Community Community The Presidential Memorandum requires Community entities to “enter into any memoranda of understanding as necessary to give effect” to the Presidential Memorandum 2 This Memorandum is entered into by all Community entities as defined in the Presidential Memorandum and collectively referred to as “Parties ” 3 This Memorandum establishes a framework to enable the DWHIT and the Committee to implement the necessary policies and procedures for operating and maintaining the information resources and information systems provided to the President Vice President and Executive Office of the President EOP 4 Each Party enters into this Memorandum under that Party’s authority to provide information resources and information systems to the President Vice President and EOP 5 This Memorandum incorporates all principles and directives that are set forth in the Presidential Memorandum This Memorandum shall in all instances be interpreted to give full force and effect to the President’s and the DWHIT’s respective authorities to set policies and procedures for the services that are provided as described and agreed upon below The Parties agree as follows Memorandum of Understanding Entered into by Presidential Information Technology Community Entities A-92 Page 1 of 9 Case 18-2814 Document 40 01 07 2019 2469015 Page97 of 205 Case 1 17-cv-02542-KPF Document 50-2 Filed 10 23 17 Page 2 of 9 §1 Joint Program Office Joint Operations Teams 1 01 The Parties establish a Joint Program Office to provide expert and administrative support for the performance of responsibilities under the Presidential Memorandum by the DWHIT the Committee the White House Technology Liaisons and the Parties 1 02 The Joint Program Office consists of those employees and agents of each Party who are assigned by that Party to the Joint Program Office at the DWHIT’s request Unless the Parties agree otherwise not more than 20 individuals may be assigned to the Joint Program Office at any time Section 7 of this Memorandum notwithstanding the Parties may agree to increase or decrease the maximum number of individuals who may be assigned to the Joint Program Office in any manner and by any medium reasonable in the circumstances As used in this subsection the term “employees” includes detailees 1 03 An individual who is assigned to the Joint Program Office works for the benefit of and is performing the work of the individual’s employing authority 1 04 The Joint Program Office is under the DWHIT’s operational supervision Through the Joint Program Office the DWHIT 1 coordinates mission and support programs in a manner that promotes the day-to-day operation and availability of the information resources and information systems provided to the President Vice President and EOP 2 prioritizes work develops technology and policies and aligns procurement and budgetary goals among the Parties 3 coordinates the implementation of requirements that are approved by the DWHIT and 4 provides the Deputy Chief of Staff for Operations and the Committee with the support necessary to review evaluate and approve plans and requirements 1 05 The DWHIT may when appropriate and lawful coordinate the efforts of the Joint Program Office with non-Community entities 1 06 As necessary to execute their responsibilities under law and the Presidential Memorandum and to carry out activities in accordance with policy coordination and guidance by the DWHIT the Parties agree to establish any necessary Joint Operations Teams Section 7 of this Memorandum notwithstanding the Parties may establish or disestablish Joint Operations Teams and specify the maximum number of individuals that may be assigned to a Joint Operations Team in any manner and by any medium reasonable in the circumstances An individual who is assigned to a Joint Operations Team works for the benefit of and is performing the work of his or her employing authority Memorandum of Understanding Entered into by Presidential Information Technology Community Entities A-93 Page 2 of 9 Case 18-2814 Document 40 01 07 2019 2469015 Page98 of 205 Case 1 17-cv-02542-KPF Document 50-2 Filed 10 23 17 Page 3 of 9 1 07 §2 The Parties acknowledge that the DWHIT may promulgate all necessary procedures and rules governing the information resources and information systems provided by each Party to the President Vice President and EOP Each Party agrees that consistent with organization mission and the Presidential Memorandum it will implement the procedures and rules as specified by the DWHIT to the extent permitted by law Lead Activity and Executive Agent Designations 2 01 The White House Communications Agency WHCA shall provide without limitation the following services 1 the acquisition installation operation and accreditation of unclassified information technology infrastructure and 2 core services related to the unclassified information technology infrastructure 2 02 WHCA shall serve as the Parties’ executive agent to perform the duties and functions necessary to discharge WHCA’s responsibility as lead agency under Section 2 01 including the authority to issue policies and procedures related to the discharge of its responsibilities 2 03 As used in Subsection 2 01 1 “information technology infrastructure” includes the unclassified internal information technology plant infrastructure for all EOP and White House Military Office WHMO buildings including copper and fiber backbones LAN routers and switches WAN SONET and transport circuits and supporting power components The term does not include the existing United States Secret Service USSS copper and fiber plant used in support of stand-alone security systems 2 2 04 “core services” includes services necessary to access and use the information technology infrastructure including virtualized computing and storage infrastructure directory services support services messaging telephony video conferencing and the end-user devices required to access the services including laptops and desktops wireless and wired phones printers and scanners and networked multi-function copiers The Office of Administration OA shall provide without limitation the following services 1 the acquisition development deployment and support of business productivity applications to serve the President Vice President and EOP and support the operations of the Parties under the Presidential Memorandum Memorandum of Understanding Entered into by Presidential Information Technology Community Entities A-94 Page 3 of 9 Case 18-2814 Document 40 01 07 2019 2469015 Page99 of 205 Case 1 17-cv-02542-KPF Document 50-2 Filed 10 23 17 Page 4 of 9 2 records management services including maintenance of records created stored used or transmitted by on or through the information resources and information systems provided to the President Vice President and EOP subject to the terms and conditions in Section 3 2 05 OA shall serve as the Parties’ executive agent to perform the duties and functions necessary to discharge OA’s responsibility as lead agency under Section 2 04 including the authority to issue policies and procedures related to the discharge of its responsibilities 2 06 The National Security Council NSC shall provide without limitation the following services 1 all services related to the operation and maintenance of those systems commonly known as “T-Net ” “S-Net ” “CMS ” and “EOP VoSIP” as of the effective date of this Memorandum in order to ensure usage of and access to such systems by the Parties’ authorized personnel 2 other services provided as of the effective date of this Memorandum that are related to communications with heads of state heads of government and other representatives of foreign governments 2 07 NSC shall serve as the Parties’ executive agent to perform the duties and functions necessary to discharge NSC’s responsibility as lead agency under Section 2 06 including the authority to issue policies and procedures related to the discharge of its responsibilities 2 08 USSS shall provide without limitation all services which are not otherwise agreed to be provided by any other Party and which USSS employees and agents require in order to perform USSS’s protective functions as required by law 2 09 USSS shall serve as the Parties’ executive agent to perform the duties and functions necessary to discharge USSS’s responsibility as lead agency under Section 2 08 including the authority to issue policies and procedures related to the discharge of its responsibilities 2 10 Each Party will continue to independently maintain or operate any information resources or information systems which that Party maintains or operates for internal purposes or to fulfill independent responsibilities imposed by law Such maintenance and operation will remain unaffected by this Memorandum unless otherwise agreed to by the Parties or directed by competent authority 2 11 1 Each Party agrees to give reasonable notice to the other Parties and the DWHIT of any proposed acquisition by that Party of information resources or information systems The notice must at a minimum include the nature and amount of expenditures for and the acquisition method of the information resources or information systems to be acquired Memorandum of Understanding Entered into by Presidential Information Technology Community Entities A-95 Page 4 of 9 Case 18-2814 Document 40 01 07 2019 2469015 Page100 of 205 Case 1 17-cv-02542-KPF Document 50-2 Filed 10 23 17 Page 5 of 9 2 Notice is considered reasonable if it is delivered to each Party’s point of contact designated in Section 6 and the DWHIT not later than the 60th day before the date of the proposed acquisition 3 This subsection does not apply to A acquisitions related to those information resources or information systems subject to Section 2 10 and for which the total expenditure does not exceed the simplified acquisition threshold established by 41 USC 134 and adjusted by the Federal Acquisition Regulatory Council from time to time under 41 USC 1908 or B USSS’s acquisition of information resources or information systems in furtherance of its criminal investigative duties as set out in 18 U S C §§ 1029-1030 and 3056 4 §3 The Parties agree that a Party may exempt from the notice requirements of this section any acquisition that is related to a special access program that is operated by or on behalf of that Party For any acquisition by WHCA the WHMO Director may make the exemption Unclassified EOP Records 3 01 All 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 exclusive ownership control and custody of the President Vice President or originating EOP component Such records are hereinafter referred to as “EOP records ” 3 02 WHCA employees and agents shall not and are not authorized to access the content of EOP records except in accordance with paragraphs 1 and 2 of this subsection The DWHIT shall establish a process such that EOP records shall be maintained in a way that prohibits WHCA employees and agents from acquiring physical or electronic access to the content of EOP records WHCA employees and agents who are providing services under this Memorandum may have access to metadata that is associated with EOP records only as necessary to perform security or other technical activities in conjunction with the provision of services under this Memorandum 1 Not more than 10 employees or agents of WHCA at any given time may have permission to access the content of EOP records for the sole purpose of performing security or other technical activities Section 7 of this Memorandum notwithstanding the Parties may agree to increase or decrease the maximum number of such individuals in any manner and by any medium reasonable in the circumstances 2 Before any WHCA employee or agent may access the content of an EOP record pursuant to paragraph 1 approval must be provided by the DWHIT Memorandum of Understanding Entered into by Presidential Information Technology Community Entities A-96 Page 5 of 9 Case 18-2814 Document 40 01 07 2019 2469015 Page101 of 205 Case 1 17-cv-02542-KPF Document 50-2 Filed 10 23 17 Page 6 of 9 or the DWHIT’s designee in accordance with operating procedures that will be agreed upon by WHCA and OA Approval shall be given only in the event of exigent circumstances that make such access necessary §4 §5 3 03 In accordance with policies and procedures issued by the DWHIT the DWHIT shall ensure that audits are conducted to ensure compliance with subsection 3 02 3 04 WHCA must not take any steps to integrate EOP records into its own systems or files WHCA shall maintain EOP records in a manner that separates them from WHCA’s own agency records as well as any other non-EOP records that utilize the same infrastructure or core services as WHCA records WHCA shall not disseminate modify dispose of or archive any EOP records OA shall archive EOP records in conjunction with the originating EOP component No EOP records shall be stored controlled sent shared or received other than in accordance with the policies and procedures of the OA 3 05 If WHCA receives a request demand or order for EOP records or to which EOP records would be responsive WHCA shall not provide EOP records in response and shall instead refer the matter to the EOP Funds and Personnel 4 01 Nothing in this Memorandum affects each Party’s responsibility for the costs of its personnel including pay benefits and support nor its responsibility for supervision and management of its personnel 4 02 This Memorandum does not document or provide for the exchange of funds between the Parties Similarly it does not make any commitment of funds or resources 4 03 Any alterations to the arrangement described in subsection 4 01 will be accomplished by separate instrument s Other Provisions 5 01 Nothing in this Memorandum restricts a Party’s ability to enter into separate agreements with other Parties to fulfill the intent of the Presidential Memorandum or to fulfill responsibilities imposed on a Party by law If a separate agreement may affect another Party’s ability to discharge that Party’s responsibilities imposed by this Memorandum or by law the separately agreeing Parties will disclose the separate agreements as soon as practicable to the affected Parties 5 02 Unless otherwise prohibited by law a Party may in consultation with the DWHIT and subject to the recipient’s White House Technology Liaison’s acceptance assign any agreement right or responsibility to another Party as necessary to permit each Party to perform its responsibilities under this Memorandum and without the need for an amendment to the Memorandum or for a separate Memorandum of Understanding Entered into by Presidential Information Technology Community Entities A-97 Page 6 of 9 Case 18-2814 Document 40 01 07 2019 2469015 Page102 of 205 Case 1 17-cv-02542-KPF Document 50-2 Filed 10 23 17 Page 7 of 9 memorandum Each Party authorizes its White House Technology Liaison to make and accept assignments under this provision 5 03 Each Party acknowledges that it may need certain levels of expertise to discharge its responsibilities under the Presidential Memorandum or this Memorandum that may not be available to that Party through its own employees and agents and that a Party may need to obtain that expertise through separate agreements or interagency orders 5 04 Unless otherwise prohibited by law each Party authorizes the DHWIT after consultation with that Party’s White House Technology Liaison to act as that Party’s non-exclusive agent for identifying and setting a requirement for the provision of services described in this Memorandum §6 Points of Contact 6 01 The White House Technology Liaison for each Party serves as that Party’s point of contact for communicating with the other Parties and the DWHIT to implement this Memorandum The White House Technology Liaison for WHCA serves as the point of contact for WHMO §7 Complete Agreement Amendment 7 01 This Memorandum represents the complete agreement between the Parties regarding the Memorandum’s subject matter 7 02 An amendment to this Memorandum is effective only if the amendment is in writing and signed by the Parties §8 Transferability 8 01 This Memorandum is not transferable except with the written consent of the Parties §9 Termination Expiration Date 9 01 Subject to Subsection 9 02 a Party may terminate this Memorandum for any reason or no reason upon not less than 90 days’ notice to all other Parties stating that Party’s intention to terminate this Memorandum 9 02 Each Party acknowledges that it is entering into this Memorandum in good faith and is justifiably relying upon representations made by the other Parties This reliance has caused and will cause each Party to reorder its operations and modify its decision-making processes including the modification forbearance or discontinuance of hiring actions budget requests acquisition and related expenditure decisions and service provision to non-Parties Before a Party may give notice of termination the Parties must meet and confer concerning the proposed termination of this Memorandum A termination is not effective until the Parties agree that Memorandum of Understanding Entered into by Presidential Information Technology Community Entities A-98 Page 7 of 9 Case 18-2814 Document 40 01 07 2019 2469015 Page103 of 205 Case 1 17-cv-02542-KPF Document 50-2 Filed 10 23 17 Page 8 of 9 9 03 1 the termination does not affect any prior obligation project or activity or any current or proposed action and 2 each Party is again capable of performing that Party’s respective missions and responsibilities to at least the same extent of that Party’s capability and performance as of the effective date of this Memorandum This Memorandum expires on the ninth anniversary of the effective date The Parties will review this Memorandum on the third and sixth anniversaries of the effective date Memorandum of Understanding Entered into by Presidential Information Technology Community Entities A-99 Page 8 of 9 Case 18-2814 Document 40 01 07 2019 2469015 Page104 of 205 Case 1 17-cv-02542-KPF Document 50-2 Filed 10 23 17 Page 9 of 9 For National Security Council Suzanne George For Office of Administration Digitally signed by Catherine Solomon DN dc eop dc gov cn Catherine Solomon email Catherine_G_Solomon@oa eop gov Date 2015 08 04 16 00 16 -04'00' Digitally signed by Suzanne George DN dc eop dc gov cn Suzanne George email Suzanne_A_George@nsc eop gov Date 2015 09 21 08 30 17 -04'00' Suzanne A George Deputy Assistant to the President Executive Secretary and Chief of Staff Catherine G Solomon Deputy Assistant to the President and Director Date Date For United States Secret Service For White House Military Office Digitally signed by George Mulligan cn George Mulligan George Mulligan DN Date 2015 09 10 11 15 35 -04'00' BYNUM JAMES STUART 1 134494677 George D Mulligan Chief Operating Officer James S Bynum Acting Director Date Date Digitally signed by BYNUM JAMES STUART 1134494677 DN c US o U S Government ou DoD ou PKI ou USN cn BYNUM JAMES STUART 1134494677 Date 2015 09 04 16 48 11 -04'00' For White House Communications Agency THOMAS CLEOPHUS JR 1110036520 Donovan L Routsis Cleophus Thomas Jr Commander Digitally signed by THOMAS CLEOPHUS JR 1110036520 DN c US o U S Government ou DoD ou PKI ou USA cn THOMAS CLEOPHUS JR 1110036520 Date 2015 09 09 17 05 04 -04'00' Date Memorandum of Understanding Entered into by Presidential Information Technology Community Entities A-100 Page 9 of 9 Case 18-2814 Document 40 01 07 2019 2469015 Page105 of 205 Case 1 17-cv-02542-KPF Document 52-1 Filed 12 04 17 Page 1 of 1 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK KATE DOYLE eta Plaintiffs V U S DEPARTMENT OF HOMELAND SECURITY eta Defendants Civil No 17-2542 KPF DECLARATION OF ANNE L WEISMANN I Anne L Weismann declare as follows 1 I am an attorney for Plaintiff Citizens for Responsibility and Ethics in Washington CREW and a member in good standing of the bar of the District of Columbia I submit this declaration in support of the Plaintiffs' reply brief 2 Attached as Exhibit A is a true and correct copy of a letter from Vanessa Brinkmann to A1me L Weismann dated July 7 2017 together with pages of calendars from Attorney General Jeff Sessions 3 Attached as Exhibit B is a true and correct copy ofthe Plaintiff CREW's Complaint in Citizens for Responsibility and Ethics in Washington v U S Department of Homeland Security No 06-cv-00883 D D C May 10 20 16 I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct Dated December 4 2017 Annt L Weismann A-101 Case 18-2814 Document 40 01 07 2019 2469015 Page106 of 205 Case 1 17-cv-02542-KPF Document 52-2 Filed 12 04 17 Page 1 of 12 EXHIBIT A A-102 Case 18-2814 Document 40 01 07 2019 2469015 Page107 of 205 Case 1 17-cv-02542-KPF Document 52-2 Filed 12 04 17 Page 2 of 12 U S Department of Justice Office of Information Policy Suite 11050 1425 New York Avenue NW Washington DC 20530-0001 Telephone 202 514-3642 July 7 2017 Ms Anne Weismann Chief FOIA Counsel CREW 455 Massachusetts Avenue NW Washington DC 20001 aweismann@citizensforethics org Re DOJ-2017-002728 AG No 1 17-cv-0599 D D C Dear Ms Weismann This is our third response to your above-referenced Freedom of Information Act FOIA request and related lawsuit dated and received in this Office on March 6 2017 seeking 1 “all records containing or reflecting advice and or recommendations given to Attorney General Jeff Sessions by his staff regarding whether or not he should recuse himself from any matters involving the 2016 presidential campaign ” 2 “all calendars for Attorney General Sessions for the period February 27 2017 through March 3 2017 ” and 3 “all documents effectuating the attorney general’s recusal within the Department of Justice ” This response is made on behalf of the Office of the Attorney General OAG By letter dated June 30 2017 we provided you with an interim response on certain material within the nine pages responsive to part 2 of your request and advised you that we would respond to you again by July 7 2017 on the remaining material within those pages pursuant to the Joint Status Report filed on June 21 2017 See ECF No 15 Please be advised that our review of the remaining material within the nine pages responsive to part 2 of your request is now complete I have determined that this material is appropriate for release with excisions made pursuant to Exemptions 5 and 6 of the FOIA 5 U S C § 552 b 5 and b 6 and copies are enclosed Exemption 5 pertains to certain inter- and intra-agency communications protected by the attorney work-product deliberative process and or presidential communications privileges Exemption 6 pertains to information the release of which would constitute a clearly unwarranted invasion of the personal privacy of third parties For your information Congress excluded three discrete categories of law enforcement and national security records from the requirements of the FOIA See 5 U S C § 552 c 2015 amended 2016 This response is limited to those records that are subject to the requirements of the FOIA This is a standard notification that is given to all our requesters and should not be taken as an indication that excluded records do or do not exist A-103 Case 18-2814 Document 40 01 07 2019 2469015 Page108 of 205 Case 1 17-cv-02542-KPF Document 52-2 Filed 12 04 17 Page 3 of 12 2 If you have any questions regarding this response please contact Kathryn Davis of the Department’s Civil Division Federal Programs Branch at 202 616-8298 Sincerely Vanessa R Brinkmann Senior Counsel Enclosures A-104 Case 18-2814 Document 40 01 07 2019 2469015 Page109 of 205 Case 1 17-cv-02542-KPF Document 52-2 Filed 12 04 17 Page 4 of 12 I February 27 2017 Monday 7 30 AM - 7 30 AM En Route to the AG's Office 8 20 AM - 8 45 A M Senior Meeting -- AG's Office Location AG's office POC Jody Hunt Attendees Jody Hunt Dana Boente Jim Crowell Jesse Panuccio 8 45 A M-9 15AM Leadership Meeting -- AG's Co nference Roo m POC Jody Hunt Attendees Jody Hunt OAG Dana Boente ODAG Jim Crowell ODAG Jesse Panuccio OASG Sam Ramer OLA Peter Carr OPA Ryan Newman OLP Danielle Cutrona Rachael Tucker David Rybicki 9 30AM- 10 15 AM FBI Briefing -- JCC Location JCC POC Tashina Gauhar Attendees OAG Jody Hunt and Rachael Tucker ODAG Acting DAG Boente James Crowell Tashina Gauhar NSD Mary McCord George Toscas Stu Evans Michael Mullaney 10 15 AM - 10 45 AM Meeting w ith Attorney General Doug Peterson Nebraska -- AG's Conference Room Lue liUIL AG' Cunreltlfll tl IUUfll AG POC Danielle POC Dave L01 ez• 1 Attendees AG Dave Lopez Asst Nebraska AG Ryan Post Asst Nebraska AG Mike Murray Jim Crowell Dana Boente Robert Patterson Danielle Cutrona 11 00 AM- 11 15 AM Phone Call Mexican Atto rney General Raul Cervantes Andrade-- AG's Office Location AG's office POC Rachael Tucker Participants Rachael Tucker Jody Hunt In MX AG's office Raul Cervantes Andrade Interpreter MX AG will call Peggi to be connected 11 15AM - 11 45AM GuJierrno Fonseca FISA SIGNATURE TIME-- AG's Conference Room Location OAG conference room Attendees OAG Jody Rachel- ODAG James Crowell Tashina Gauhar NSD Stuart Evans•• •• • • - · Dana Boente 11 45 AM- 12 30 PM LUNCH Desk Time-- AG's Office Location AG's Office 12 30 PM- 12 45 PM case discussion -- AG's Conference Roo m AG's Conference Room POC Rachael Tucker -Attendees Jody Hunt Rachael Tucker Ken Blanco Dana Boente James Crowell Chad Readier and Bruce Swartz 12 45 PM - 12 45 PM En Route to Executive Office Building 1 00 PM - 3 00 PM FYI Judge Neil Gorsuch Supreme Co urt No minee No attendance required -- OLP Conference Roo m 1 00PM-1 20PM Private Appointment -- Executive Office Building First Floor Room 87 1 30 PM - 3 00 PM 3 13 2017 4 20 PM Otus84 AG OAG A-105 Case 18-2814 Document 40 01 07 2019 2469015 Page110 of 205 Case 1 17-cv-02542-KPF Document 52-2 Filed 12 04 17 Page 5 of 12 I February 27 2017 Continued Monday 3 00PM-3 15PM En Route to AG's Office 3 15 PM - 3 30 PM 4 30 PM - 4 45 PM PRESS- - Press Room Location Press Room DOJ POC Jody Hunt 5 00 PM - 5 45 PM Press Phone Call Byron York FOX News Washington Times - - AG's Office Location AG's Office POC Peter Carr Participants Peter Carr 5 45 PM - 6 00 PM Phone Call with Justice Clarence Thomas-- AG 's office 6 00 PM - 6 30 PM Press Phone Call Hugh Hewitt Raclio Show -- AG's Office Location AG's Office POC Peter Carr Participants Hugh Hewitt I February 28 2017 Tuesday 7 30 AM - 7 30 AM En Route to AG's Office 8 20 AM - 8 45 AM Senior Meeting -- AG's Office Location AG's office POC Jody Hunt Attendees Jody Hunt Dana Boente Jim Crowell Jesse Panuccio 8 30 AM - 8 30 AM En Route to Ritz-Carlton •staff attending should assemble in the AG's office Location AG's office to Ritz-Carlton Attendees Sarah Flores and Danielle Tucker 9 00 AM - 10 00 AM National Association of Attorney Generals Speaking Engagement-- The Ritz-Carlton Hotel 1150 22ncl Street NW Location The Ritz-Carlton Hotel 1150 22nd St re l eltl N IW i i i IPiaza l Ballroom POC Noreen Cournoyer Conference Planner 1 1 AG POCs Danielle Cutrona and Sarah Flores EVENT SCHEDULE 8 45 JBS will arrive at Ritz-Carlton and proceed to the hold room 8 50 Sen Luther Strange and NAAG officers will meet with JBS in hold room and take a photo Attendees Sen Luther Strange NAAG President George Jepsen AG-CT NAAG President Elect Derek Schmidt AG-KS NAAG Vice President Jeff Landry AG-LA NAAG lmmediatePast President Marty Jackley AG-SD 9 00 JBS will proceed to speech location 9 05 NAAG President Jepsen to introduce Sen Strange 9 10 Sen Strange to introduce JBS 9 15 JBS remarks 9 35 JBS concludes remarks 9 40 JBS departs 10 00 AM- 10 00 AM En Route to AG's Office Otus84 AG OAG 2 A-106 3 13 2017 4 20PM Case 18-2814 Document 40 01 07 2019 2469015 Page111 of 205 Case 1 17-cv-02542-KPF Document 52-2 Filed 12 04 17 Page 6 of 12 February 28 2017 Continued Tuesday 11 00 AM - 11 10 AM SPEAKING ENGAGEMENT Remarks Introduction of Documentary -- DOJ Conference Center Room 7411 Location DOJ Conference Center Room 7411 AG POC Mary Blanche Hankey POC Richard Toscano AG Role Introduction to film screening of “Too Important to Fail ” ATTENDEES DOJ Employees Agenda 11 00-11 10am Remarks and introduction to film by AG 11 10 AG departs and returns to his office for FISA Signature time 12 00 PM - 1 30 PM Lunch Desk Time -- AG's Office 1 30 PM - 1 45 PM Discussion on national security issue -- AG's Office 3 00 PM - 3 45 PM Antitrust Briefing -- AG's Conference room Location AG’s Conference Room POC Jesse Panuccio Attendees Jody Hunt OAG David Rybicki Jesse Panuccio Bryson Bachman Deputy Associate AG detailee from ATR OASG Rachel Parker Chief of Staff OASG Brent Snyder Acting AAG ATR Patty Brink Director Civil Enforcement ATR Jody Hunt Michael Murray 3 45 PM - 4 15 PM FISA SIGNATURE TIME -- AG's Conference Room Location OAG conference room Time Daily at 11 00 am Attendees Jody and Rachel James Crowell Tashina Gauhar Stuart Evans b b 6 Location AG’s Office POC Rachael Tucker 6 b 6 4 15 PM - 5 15 PM Budget Meeting -- AG's Conference Room Location AG’s Conference Room POC Jody Hunt Attendees Jody Hunt Lee Lofthus Dana Boente James Crowell Jolene Lauria and Danielle Cutrona 5 15 PM - 5 15 PM En Route to the White House Must arrive by 5 30 5 45 PM - 5 45 PM Depart from West Exec in White House Transportation 6 00 PM - 7 55 PM Cabinet Affairs escorts Cabinet to Leader Kevin McCarthy Reception -- H-107 Capitol Location H-107 Capitol Attendees Reception a small group of select Republican House and Senate members 8 00 PM - 8 50 PM Cabinet Affairs will escort Cabinet to holding area -- H-219 Location H-219 Note that press will be set up in Statuary Hall 8 50 PM - 8 50 PM Cabinet Affairs assists in lining Cabinet in Processional order Jim Kaelin will assist Congressional Cabinet Liaison 9 01 PM - 9 01 PM The President enters the Hall of the House announced by the House Sergeant at Arms and escorted to the dais Otus84 AG OAG 3 A-107 3 13 2017 4 20 PM Case 18-2814 Document 40 01 07 2019 2469015 Page112 of 205 Case 1 17-cv-02542-KPF Document 52-2 Filed 12 04 17 Page 7 of 12 February 28 2017 Continued Tuesday 9 10 PM - 10 10 PM Joint Session of Congress -- Capitol House Floor Location Capitol House Floor 10 00 PM - 10 00 PM Potential Press Availability-Cabinet Affairs communications Brad Rateike and Kaelan Dorr will escort some Cabinet Members to Statuary Hall for press availability -- Statuary Hall 10 30 PM - 10 30 PM Cabinet Members will depart via the Memorial Door and return to the White House West Exec 10 35 PM - 10 35 PM AG to Meet detail in East Plaza of the Capitol March 1 2017 Wednesday 8 20 AM - 8 45 AM Senior Meeting -- AG's Office Location AG’s office POC Jody Hunt Attendees Jody Hunt Dana Boente Jim Crowell Jesse Panuccio 8 45 AM - 9 15 AM Leadership Meeting -- AG’s Conference Room POC Jody Hunt Attendees Jody Hunt OAG Dana Boente ODAG Jim Crowell ODAG Jesse Panuccio OASG Sam Ramer OLA Peter Carr OPA Ryan Newman OLP Danielle Cutrona Rachael Tucker David Rybicki 9 30 AM - 10 15 AM FBI Briefing -- JCC Location JCC POC Tashina Gauhar Attendees OAG Jody Hunt and Rachael Tucker ODAG Acting DAG Boente James Crowell Tashina Gauhar NSD Mary McCord George Toscas Stu Evans Michael Mullaney 10 00 AM - 10 30 AM Task Force on Transnational Criminal Organization and Trafficking meeting Prep -- Situation Room in the Justice Command Center Location Situation Room in the Justice Command Center POC Danielle Cutrona Attendees Jody Hunt Danielle Cutrona David Rybicki Rachael Tucker Bruce Ohr Jim Crowell and Ken Blanco 10 30 AM - 11 30 AM Task Force on Transnational Criminal Organization and Trafficking meeting -- Situation Room in the Justice Command Center Room 6100 Location Situation Room in the Justice Command Center POC Danielle Cutrona and Bruce Ohr Attendees State Acting Deputy Secretary Tom Shannon and Christine Ciccone DHS Sec Kelly yes with Kirstjen Nielsen and Ms Dimple Shah Mr David Glawe Acting Under Secretary Intelligence and Analysis DHS ODNI National Intelligence Michael Dempsey John Lombardi Todd Porter Lisa Wardach and Danielle Smallcomb OAG ODAG Attendees Jody Hunt Danielle Cutrona David Rybicki Rachael Tucker Bruce Ohr Tasha Gauhar Jim Crowell and Ken Blanco 12 00 PM - 1 00 PM Otus84 AG OAG LUNCH Desk Time -- AG's Office 4 A-108 3 13 2017 4 20 PM Case 18-2814 Document 40 01 07 2019 2469015 Page113 of 205 Case 1 17-cv-02542-KPF Document 52-2 Filed 12 04 17 Page 8 of 12 I March 1 2017 Continued Wednesday 1 00PM-1 30PM ocation AG's Office Attendees Rod Rosenstein Rachel Brand and Jody Hunt 1 30 PM - 2 00 PM on AG's Office Attendees Jody Hunt Racheal Brand need to have information submitted as a visitor Rod Rosenstein 2 00 PM - 2 30 PM - - - AG's Office ocation AG's Office POC Jody Hunt Attendees Jody Hunt Racheal Brand Rod Rosenstein 2 30 PM - 3 30 PM Interview Discussion-- AG's Office Location AG's Office POC Jody Hunt Attendees Jody Hunt Rachel Brand Rod Rosenstein 3 30 PM - 4 30 PM Meeting with the AAG Ken Blanco and CRM leadership -- AG's Conference Room Location AG's Conference Room POC David Rybicki Attendees David Rybicki Ken Blanco James dden Richard Downing Denise Cheung Bruce Swa Kendall Day Iris Lan NOTES This would be to introduce the AG to the division learn about its components and high-profile matters currently pending Otus84 AG OAG 5 A-109 3 13 2017 4 20PM Case 18-2814 Document 40 01 07 2019 2469015 Page114 of 205 Case 1 17-cv-02542-KPF Document 52-2 Filed 12 04 17 Page 9 of 12 March 1 2017 Continued Wednesday 4 30 PM - 4 45 PM Capital Case Review -- AG's Office 5 30 PM - 6 00 PM FISA SIGNATURE TIME -- AG's Conference Room Location AG’s Office POC David Rybicki Attendee David Rybicki Location OAG conference room Attendees OAG Jody Rachel ODAG James Crowell Tashina Gauhar NSD Stuart Evans b 6 b 6 b 6 b 6 Dana Boente March 2 2017 Thursday 7 00 AM - 7 00 AM En Route to AG's Office 8 20 AM - 8 45 AM Senior Meeting -- AG's Office Location AG’s office POC Jody Hunt Attendees Jody Hunt Dana Boente Jim Crowell Jesse Panuccio 9 15 AM - 9 30 AM Trips and Meeting request discussion with Rachael Tucker -- AG's office 10 30 AM - 11 00 AM National Fraternal Order of Police meeting -- AG's Office Location AG’s Office POC Rachael Attendee Rachael Tucker Location AG’s Office POC Danielle Attendees Danielle Cutrona Chuck Canterbury National President FOP Jim Pasco Senior Advisor FOP Notes The issues to be address are asset forfeiture reform sentencing reform drug legalization and general anti-crime and criminals issues 11 00 AM - 11 30 AM FISA SIGNATURE TIME -- AG's Conference Room Location OAG conference room Attendees OAG Jody Rachel ODAG James Crowell Tashina Gauhar NSD Stuart Evans b b 6 Dana Boente b 6 b 6 11 30 AM - 12 30 PM Lunch Desk time -- AG's Office 1 00 PM - 1 15 PM Meet Greet DOJ Inspector General Michael Horowitz -- AG's Office Otus84 AG OAG 6 Location AG’s Office Location AG’s Office POC Jody Hunt 6 A-110 3 13 2017 4 20 PM Case 18-2814 Document 40 01 07 2019 2469015 Page115 of 205 Case 1 17-cv-02542-KPF Document 52-2 Filed 12 04 17 Page 10 of 12 March 2 2017 Continued Thursday Attendees Jody Hunt and Michael Horowitz 1 30 PM - 2 30 PM FISA SIGNATURE TIME -- AG's Conference Room Attendees OAG Jody Rachel ODAG James Crowell Tashina Gauhar NSD Stuart Evans b b 6 b 6 Dana Boente 3 00 PM - 4 00 PM Interview Prep -- AG's Office 4 15 PM - 5 15 PM Gorsuch nomination discussion -- AG's Office 5 15 PM - 6 15 PM Discussion on recusal issues -- AG's Conference Room 8 15 PM - 8 15 PM En Route to Tucker Carlson Show 8 30 PM - 9 30 PM PRESS Tucker Carlson Show -- 400 N Capitol Street 9 30 PM - 9 30 PM En Route to the AG's home b 6 Location AG’s Office Attendees Jody Hunt Sarah Flores Peter Carr Scott Schools David Rybicki and Rachael Tucker Location AG’s Office POC Jody Hunt Attendees Jody Hunt Jesse Panuccio Rachel Parker Ryan Newman Sam Ramer Gary Barnett and Danielle Cutrona Location AG’s Conference Room POC Jody Hunt Attendees Jody Hunt Dana Boente Jim Crowell Tash Gauhar Scott Schools AG POC Sarah Flores Tucker Carlson POC Charlie Couger b 6 6 March 3 2017 Friday 7 30 AM - 7 30 AM En Route to AG's Office 8 20 AM - 8 45 AM Senior Meeting -- AG's Office Location AG’s office POC Jody Hunt Attendees Jody Hunt Dana Boente Jim Crowell Jesse Panuccio 8 45 AM - 9 15 AM Leadership Meeting -- AG’s Conference Room POC Jody Hunt Attendees Jody Hunt OAG Dana Boente ODAG Jim Crowell ODAG Jesse Panuccio OASG Sam Ramer OLA Peter Carr OPA Ryan Newman OLP Danielle Cutrona Rachael Tucker David Rybicki Otus84 AG OAG 7 A-111 3 13 2017 4 20 PM Case 18-2814 Document 40 01 07 2019 2469015 Page116 of 205 Case 1 17-cv-02542-KPF Document 52-2 Filed 12 04 17 Page 11 of 12 I March 3 2017 Continued Friday 9 30AM- 10 15 AM FBI Briefing -- JCC Location JCC POC Tashina Gauhar Attendees OAG Jody Hunt and Rachael Tucker ODAG Acting DAG Boente James Crowell Tashina Gauhar NSD Mary McCord George Toscas Stu Evans Michael Mullaney 10 00 AM- 10 30 AM Prep for NAACP meeting -- AG's office Attendee Rachael Tucker and John Gore 10 30 AM - 11 00 AM with Cornell William Brook NAACP- - AG's Office Location AG's Office AG POC Rachael Tucker POC Phone - - Atten er John Cornell William Brooks President CEO of the NAACP Bradford Berry General Counsel of the NAACP Cell 11 00 AM- 11 30 AM FISA SIGNATURE TIME-- AG's Conference Room Location OAG conference room Attendees OAG Jody Rachel- ODAG James Crowell Tashina Gauhar NSD Stuart Evans•• •• • - 11 30 AM- 11 4S AM · Dana Boente Phone Call Kevin Sabet President of Smart Approaches to Marijuana-- AG's Office Location AG's Office POC Danielle Cutrona Participants A Call in number 12 00 PM- 12 20 PM a and Kevin Sabet LUNCH Desk Time-- AG's Office Location AG's Office 12 20 PM- 12 20 PM 12 30 PM- 2 4S PM En Route to White House Meeting at White House -- WHCO Attendees AG and Jody Hunt 2 4S PM - 2 4S PM 3 30 PM - 4 30 PM En Route to AG's Office Personnel Discussion -- AG s Office Location AG's Office Attendees Jody Hunt Rod Rosenstein and Rachel Brand Otus84 AG OAG 8 A-112 3 13 2017 4 20 PM Case 18-2814 Document 40 01 07 2019 2469015 Page117 of 205 Case 1 17-cv-02542-KPF Document 52-2 Filed 12 04 17 Page 12 of 12 March 3 2017 Continued Friday 4 30 PM - 5 00 PM Otus84 AG OAG Discussion -- AG's Office Attendees Jody Hunt Scott Schools and James Crowell 9 A-113 3 13 2017 4 20 PM Case 18-2814 Document 40 01 07 2019 2469015 Page118 of 205 Case 1 17-cv-02542-KPF Document 58 Filed 02 20 18 Page 3 of 16 EXHIBIT A A-114 Case 18-2814 Document 40 01 07 2019 2469015 Page119 of 205 Case 1 17-cv-02542-KPF Document 58 Filed 02 20 18 Page 4 of 16 Public Citizen Inc v United States Secret Service No 17-cv-01669 CRC SETTLEMENT AGREEMENT This Settlement Agreement is entered into by and between Plaintiff Public Citizen Inc Public Citizen and Defendant United States Secret Service Secret Service collectively the Parties this 13th day of February 2018 WHEREAS on April 19 2017 June 5 2017 and July 17 2017 Public Citizen submitted Freedom of Information Act FOIA requests to Secret Service seeking records from the Workers and Visitors Entry System WAYES and the Access Control Records System ACR as well as any other system used to track visitors to the White House complex Public Citizen specifically sought records related to visits to the Office of Management and Budget OMB the Office of Science and Technology Policy OSTP the Office of National Drug Control Policy ONDCP and the Council on Environmental Quality CEQ collectively the ·· FOIA Components WHEREAS Secret Service denied the FOIA requests based on its contentions that it is unable to distinguish WA YES and ACR records of visits to the FOIA Components from WAYES and ACR records of visits to other components within the Executive Office of the President ''EOP and that it transfers all WA YES and ACR records to the White House Office of Records Management WHORM WHEREAS Public Citizen filed suit on August 17 2017 and an amended complaint on September 6 2017 alleging violations ofFOIA 5 U S C § 552 FOIA and the Administrative Procedure Act 5 U S C §§ 702 706 and seeking access to records reflecting visits to the FOIA Components A-115 Case 18-2814 Document 40 01 07 2019 2469015 Page120 of 205 Case 1 17-cv-02542-KPF Document 58 Filed 02 20 18 Page 5 of 16 WHEREAS email addresses of employees of the FOIA Components indicate the FOIA Component for which the employee works WHEREAS the Caller_Email field in the WAVES records automatically populates with the email address of the person who approved the appointmt nt ''the requester Wl EREAS the Parties wish to avoid further litigation and to enter into this Settlement Agreement NOW THEREFORE in consideration of the mutual agreements set forth below the Parties agree as follows I The White House will add computer functionality to the existing system containing WA YES records by which it can sort WAVES records by the requester's email address in the Caller_ Emai I tield The White House commits to effectuating the addition of this functionality forthwith and no later than 2 1 days from the date of settlement Responsive WAVES and ACR Records from January 20 2017 to the Date of Settlement 2 Using the new functionality the WHORM which holds a copy of all WAYES records for the current Administration will sort the W AYES and associated ACR records for the period from January 20 20 17 to the date of settlement using the Caller_Email field in the WAVES records rr the email address in the Caller_Email field indicates that the requester is employed by one of the FOIA Components the WAVES and associated ACR record will be presumed to be responsive to Public Citizen's FOIA requests Records in which the Caller_Email field indicates that the requester is employed by one of the FOIA Components are hereinafter referred to as Responsive Records Ifthe Caller_ Email field in the record does not indicate that the requester is employed by one of the FOIA Components the record will be treated as not responsive to the FOJA requests No other records will be considered responsive to Public Citizen's fOIA 2 A-116 Case 18-2814 Document 40 01 07 2019 2469015 Page121 of 205 Case 1 17-cv-02542-KPF Document 58 Filed 02 20 18 Page 6 of 16 For purposes of this settlement Public Citizen' FOIA requests include the requests requests underlying the instant litigation as well as requests pending at the Secret Service for W A YES and ACR records of visits to the FOlA Components as of the date of settlement 3 The parties understand and agree that the definition of Responsive Records in the foregoing paragraph does not necessarily mean that all appointments reflected in the Responsive Records represented visits to the FOIA Components Rather the Responsive Records will be presumed to be responsive solely because the requester's email address indicates that the requester is employed by a FOIA Component subject to further review by the relevant component as described in paragraph 4 below 4 The WHORM will distribute the Responsive Records to the component identified in the Caller_ Email field for each respective component to review and process in accordance with FOIA The components reserve their right to assert applicable FOIA exemptions and or to assert that particular records are not subject to FOIA because on their face they reflect meetings with or other visits to components of the EOP subject to the Presidential Records Act The FOIA Components will process under FOIA those 26 fields in the Responsive Records that were subject to the prior Administration's voluntary disclosure policy which arc set forth in Exhibit A The redactions applied to the Responsive Records by the FOIA components if any will not be subject to litigation in this case or against the Secret Service 5 The FOIA Components other than OMB will post the Responsive Records reflecting visits from January 20 2017 to the date of execution of this Settlement Agreement to their respective FOIA online reading rooms within 90 days of execution of this Settlement Agreement Beginning 60 days after the date of this Settlement Agreement OMB will post its Responsive Records ret1ecting visits from January 20 2017 to the date of this Settlement Agreement to its 3 A-117 Case 18-2814 Document 40 01 07 2019 2469015 Page122 of 205 Case 1 17-cv-02542-KPF Document 58 Filed 02 20 18 Page 7 of 16 FOJA online reading room on a monthly basis to be completed within II months of the date of this Settlement Agreement OMB will make reasonable efforts to post documents at a uniform pace during the production period By 5 months after this Settlement Agreement OMB will have posted approximately 113 of the records By 8 months it will have posted approximately 2 3 of the records Nothing in this paragraph shall prevent OMB from posting the records at a faster pace than set torth in this paragraph 6 Public Citizen reserves the right to request under FOIA from the FOIA Components any Responsive Records that are redacted or withheld and to file actions against the FOIA Components challenging any such redactions or withholdings Responsive WAVES and ACR Records from the Date of Settlement to the End of the Trump Administration 7 The Secret Service will continue its current practice of sending all WAVES and ACR records to the WHORM on a monthly basis Within a week of receiving WAVES and ACR records the WHORM will sort the records by the email address in the Caller_Email field and send Responsive Records to the FOlA Component indicated in the Caller_Email field Each month the FOIA Components will process the WAVES and ACR records received and within a month of receiving the records post them to their respective FOIA online reading rooms The FOIA Components will process under FOIA those 26 fields set forth in Exhibit A If the WAVES system is altered such that the names of the 26 fields are changed or the information contained in the 26 fields as of the time of this Settlement Agreement is moved to other fields the FOIA Components will process the fields containing that information as long as the WAVES system continues to contain that iniormation 4 A-118 Case 18-2814 Document 40 01 07 2019 2469015 Page123 of 205 Case 1 17-cv-02542-KPF Document 58 Filed 02 20 18 Page 8 of 16 8 Nothing in this agreement will prevent Public Citizen from requesting under FOIA any Responsive Records that the FOIA Components do not post or post only in redacted form or from tiling actions against the FOIA Components challenging any such redactions or withholdings 9 To ensure that the Caller_Email field will be the most accurate measure of which WAVES and ACR records reflect visits to the FOIA Components the White House will make an additional change to the visitor approval system That change will require that the requester for a visit to a FOIA component i e the official whose email address populates the Caller_Email field must be from the same component as the person who initiates the visitor request in the program known as Appointment Center In notifying EOP components of this change the White House will instruct EOP that requesters should approve WAVES visits only if the visitor is visiting a person within the same component as the requester I0 The requirement under this Agreement that the FOIA Components process and post their WAVES and ACR records as described herein will last until January 20 2021 at which point this Agreement will expire However if before January 20 2021 EOP alters its email system such that email addresses of employees of the FOIA Components no longer indicate that the employee works for one of those components or if before January 20 2021 the WAVES system is altered such that the Caller_ Email field no longer automatically populates with the email address of the requester the Agreement will expire at the time of that alteration The day the Agreement expires is hereinafter referred to as the Expiration Date Dismissal Release and Fees 11 In consideration for the obligations agreed to above within 3 business days after the execution of this Agreement Public Citizen will file with the Court the Stipulation of Dismissal and Order attached as Exhibit B to this Settlement Agreement 5 A-119 The dismissal will be without Case 18-2814 Document 40 01 07 2019 2469015 Page124 of 205 Case 1 17-cv-02542-KPF Document 58 Filed 02 20 18 Page 9 of 16 prejudice and will be effective upon the Court's entry of the Stipulation of Dismissal and Order on the docket as an order of the Court This settlement agreement will not be attached to the Stipulation of Dismissal and Order 12 After dismissal of this action Public Citizen will not submit to Secret Service or cause to be submitted on its behalf to Secret Service further FOIA requests for copies of WAVES and ACR records documenting visits to the FOIA Components between January 20 2017 and the Expiration Date 13 Between the dismissal of this action and the Expiration Date Public Citizen will not file any action challenging Secret Service's failure to respond to FOIA requests for WAVES and ACR records or Secret Service's practice of sending WAVES and ACR records to the WllORM 14 The Parties' agreement to resolve this action by settlement does not constitute an admission with respect to the merits of the claims or defenses of any party 15 Secret Service will pay to Public Citizen $35 000 in full satisfaction of any claim for attorney fees and costs incurred in connection with this action the Payment payable within 60 days or entry of the Stipulation of Dismissal and Order on the docket as an order of the Court Upon notification that the Court has entered such an order on the docket Public Citizen will provide payment information to Secret Service which will promptly complete and transmit the documentation necessary to effectuate this Payment The Payment will be made by an electronic funds transfer to Public Citizen Inc pursuant to instructions from Public Citizen's counsel Public Citizen agrees that the Payment will constitute full and final settlement of all claims for fees costs and expenses in this action 6 A-120 Case 18-2814 Document 40 01 07 2019 2469015 Page125 of 205 Case 1 17-cv-02542-KPF Document 58 Filed 02 20 18 Page 10 of 16 16 Upon receipt of such Payment Public Citizen will be deemed to have released and forever discharged Secret Service and its successors the United States of America and any department agency or establishment of the United States and any officers employees agents successors or assigns or such department agency or establishment from any and all past present or future claims for fees costs or litigation expenses in connection with the above-captioned litigation 17 Upon dismissal of this action Public Citizen will be deemed to have released and forever discharged Secret Service and its successors the United States of America and any department agency or establishment of the United States and any officers employees agents successors or assigns of such department agency or establishment from any and all past present or future claims that arise out of the FOIA requests on which this action is based 18 The individuals executing this Settlement Agreement do so as agents or attorneys of their respective entities and covenant and represent that they have complete authority to enter into and execute this Settlement Agreement on behalf of their respective principals All terms provisions conditions and covenants herein shall be binding and shall inure to the benefit of the respective successors and assigns of Public Citizen and Secret Service 19 This Settlement Agreement including the Exhibits constitutes the entire agreement between Public Citizen and Secret Service and supersedes any prior oral or written agreement between them regarding this subject matter All representations understandings or agreements between Public Citizen and Secret Service relating to this subject are herein expressed 20 In the event any issues arise regarding performance of this Settlement Agreement by the Secret Service WHORM or the FOIA Components the parties will through cotmsel 7 A-121 Case 18-2814 Document 40 01 07 2019 2469015 Page126 of 205 Case 1 17-cv-02542-KPF Document 58 Filed 02 20 18 Page 11 of 16 make reasonable efforts to resolve those issues outside of court In the event that such effot1s fail the Settlement Agreement will be void except that Public Citizen will retain the fees paid to it under paragraph 15 21 This Settlement Agreement shall be deemed fully executed and effective upon the signature and agreement of all parties to this Settlement Agreement 22 This Settlement Agreement may be executed in counterpat1s each of which shall constitute an original and all of which together shall be deemed to be one and the same document WHEREFORE after having reviewed the temts and conditions of this Settlement Agreement each of the Parties hereto through its undersigned representative hereby consents to and agrees to the terms and conditions of this Settlement Agreement Dated lS '2018 FOR PLAINTIFF Dated Zi2 3 ' 2018 FOR DEFENDANT c i 1_ - A INA H ROSENBAUM PATRICK D LLEWELLYN PUBLIC CITIZEN LITIGATION GROUP 1600 20th Street NW Washington DC 20009 Tel 202 588-1000 UNITED STATES DEPARTMENT OF JUSTICE Civil Division federal Programs Branch P O Box 883 Washington DC 20530 Tel 202 514-5302 Fax 202 616-8470 E-mail d izabct h illruitwJt1usdoj gov 8 A-122 Case 18-2814 Document 40 01 07 2019 2469015 Page127 of 205 Case 1 17-cv-02542-KPF Document 58 Filed 02 20 18 Page 12 of 16 Exhibit A A-123 Case 18-2814 Document 40 01 07 2019 2469015 Page128 of 205 Case 1 17-cv-02542-KPF Document 58 Filed 02 20 18 Page 13 of 16 NAMELAST NAMEFIRST NAMEMID UIN BDGNBR ACCESS_TYPE TOA POA TOD POD APPT- MADE- DATE APPT- START- DATE APPT- END- DATE APPT- CANCEL- DATE Total_people LAST UPDATEDBY POST LastEntryDate TERMlNAL_SUFFIX visitee namelast visitee_namefirst MEETING LOC MEETING_ROOM CALLER_NAME_LAST CALLER_NAME_FIRST Description A-124 Case 18-2814 Document 40 01 07 2019 2469015 Page129 of 205 Case 1 17-cv-02542-KPF Document 58 Filed 02 20 18 Page 14 of 16 Exhibit B A-125 Case 18-2814 Document 40 01 07 2019 2469015 Page130 of 205 Case 1 17-cv-02542-KPF Document 58 Filed 02 20 18 Page 15 of 16 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA PUBLIC CITIZEN INC Plaintiff V UNITED STATES SECRET SERViCE Defendant Civil Action No 1 17-1669 CRC ___________________________ STIPULATION OF DISMISSAL AND ORDER Plaintiff Public Citizen Inc Public Citizen and Defendant United States Secret Service Secret Service having resolved this case through a settlement agreement agree and stipulate as follows 1 This Stipulation of Dismissal and Order shall constitute dismissal of the above- captioned action without prejudice pursuant to Federal Rule of Civil Procedure 41 a l A ii The dismissal of the action shall be effective upon the Court's entry of this Stipulation of Dismissal and Order on the docket as an order of the Court 2 After dismissal of the action Defendant shall pay to counsel for plaintiff a lump sum of $35 000 in attorney tees and costs Plaintiff agrees that payment of this sum shall constitute full and final settlement of all claims by Plaintiff for fees costs and expenses against Defendant in this action A-126 Case 18-2814 Document 40 01 07 2019 2469015 Page131 of 205 Case 1 17-cv-02542-KPF Document 58 Filed 02 20 18 Page 16 of 16 3 The Court retains jurisdiction to enforce the provisions of this Stipulation of Dismissal and Order Dated February _ 2018 Respectfully submitted Rosenbaum s Adina H Adina H Rosenbaum D C Bar No 490928 Patrick D Llewellyn D C Bar No 1033296 Public Citizen Litigation Group 1600 20th Street NW Washington DC 20009 202 588-1 000 Attorneys for Plaintiff CHAD A READLER Acting Assistant Attorney Ge nral ' s Elizabeth J Shapiro _ ELIZABETH J SHAPIRO D C Bar 418925 United States Department of Justice Civil Division Federal Programs Branch 20 Massachusetts Ave NW Room 6118 Washington D C 20530 Tel 202 514-5302 Fax 202 616-8460 E-mail elizabeth shapiro@usdoj gov Attorneys for Defendant SO ORDERED this_ day of _ _ 2018 UNITED STATES DISTRICT JUDGE A-127 Case 18-2814 Document 40 01 07 2019 2469015 Page132 of 205 Case 1 17-cv-02542-KPF Document 61 Filed 07 26 18 Page 1 of 70 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------------------------X KATE DOYLE NATIONAL SECURITY ARCHIVE CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON and KNIGHT FIRST AMENDMENT INSTITUTE AT COLUMBIA UNIVERSITY Plaintiffs v U S DEPARTMENT OF HOMELAND SECURITY and EXECUTIVE OFFICE OF THE PRESIDENT Defendants ----------------------------------------------------- X USDC SDNY DOCUMENT ELECTRONICALLY FILED DOC # _________________ 26 2018 DATE FILED July ______________ 17 Civ 2542 KPF OPINION AND ORDER KATHERINE POLK FAILLA District Judge Plaintiffs Kate Doyle National Security Archive “NSA” Citizens for Responsibility and Ethics in Washington “CREW” and Knight First Amendment Institute collectively “Plaintiffs” initiated this action against the United States Department of Homeland Security “DHS” and the Executive Office of the President “EOP ” and with DHS “Defendants” after Doyle unsuccessfully attempted to obtain under the Freedom of Information Act “FOIA” 5 U S C § 552 records related to visitors of President Trump at the White House Complex as well as at his properties at Trump Tower in New York and Mar-a-Lago in Florida The operative complaint brings claims under FOIA the Administrative Procedure Act “APA” 5 U S C ch 5 the Federal Record Act “FRA” 44 U S C §§ 2102-2118 2901-2910 3101-3107 A-128 Case 18-2814 Document 40 01 07 2019 2469015 Page133 of 205 Case 1 17-cv-02542-KPF Document 61 Filed 07 26 18 Page 2 of 70 3301-3324 and the Presidential Records Act “PRA” 44 U S C §§ 2201-2209 it seeks injunctive relief and under the Declaratory Judgment Act 28 U S C §§ 2201-2202 declaratory relief Defendants have moved for summary judgment on Plaintiffs’ FOIA claims and to dismiss the remainder of Plaintiffs’ claims for lack of subject matter jurisdiction and alternatively for failure to state a claim For the reasons that follow the Court grants in part and denies in part Defendants’ motion for summary judgment and grants Defendants’ motion to dismiss in full BACKGROUND 1 A Factual Background 1 The Parties a The Plaintiffs “Plaintiff NSA is an independent non-governmental non-profit research institute organized under section 501 c 3 of the Internal Revenue Code ” Am Compl ¶ 5 The NSA obtains government documents through FOIA and “collects analyzes and publishes” them “to enrich scholarship and 1 This Opinion draws on factual allegations in the Amended Complaint Dkt #32 “Am Compl ” along with the declarations submitted by the parties in support of and in opposition to the instant motions and the exhibits attached thereto Those declarations consist of the following for Defendants the Second Declaration of Kim E Campbell Special Agent in Charge Liaison Division and FOIA Officer United States Secret Service Dkt #46 “Campbell Decl ” the Declaration of James M Murray Deputy Assistant Director Office of Protective Operations United States Secret Service Dkt #47 “Murray Decl ” the Declaration of Supervisory Information Technology Specialist William Willson United States Secret Service Dkt #48 “Willson Decl ” the Declaration of Philip C Droege Dkt #49 “Droege Decl ” and the Declaration of Charles Christopher Herndon Dkt #50 “Herndon Decl ” and for Plaintiffs the Declaration of Anne L Weismann Dkt #52-1 “Weismann Decl ” For ease of reference the Court refers to Defendants’ memorandum of law in support of their motions for summary judgment and dismissal Dkt #51 as “Def Br ” Plaintiffs’ memorandum of law in opposition to the motions Dkt #52 as “Pl Opp ” and Defendants’ reply to Plaintiffs’ opposition Dkt #55 as “Def Reply ” 2 A-129 Case 18-2814 Document 40 01 07 2019 2469015 Page134 of 205 Case 1 17-cv-02542-KPF Document 61 Filed 07 26 18 Page 3 of 70 journalism … and to promote openness and government accountability ” Id Plaintiff Kate Doyle is a senior analyst focusing on United States policy in Latin America who works in NSA “to open and analyze government files including through the use of the FOIA ” Id at ¶ 4 “Plaintiff CREW is a non-profit non-partisan organization organized under section 501 c 3 of the Internal Revenue Code ” Am Compl ¶ 6 CREW advocates for government openness and accountability through “a combination of research litigation and advocacy ” Id A similar operation Plaintiff Knight First Amendment Institute at Columbia University is a New York not-for-profit corporation seeking “to preserve and expand the freedoms of speech and the press” through “litigation research and public education ” Id at ¶ 7 Both organizations utilize FOIA requests in furtherance of their missions See id at ¶¶ 6-7 b The Defendants DHS is a federal agency that includes as one of its components the United States Secret Service which is required by statute to provide security to the President and Vice President See 18 U S C §§ 3056 a 1 3056A a 4 Acceptance of the Secret Service’s protection is mandatory for the President Vice President President-elect and Vice President-elect See Judicial Watch Inc v U S Secret Serv 726 F 3d 208 211 D C Cir 2013 citing Pub L No 98-587 98 Stat 3110 1984 codified at 18 U S C § 3056 a See also Murray Decl ¶ 3 The Secret Service’s protection also extends to the edifices 3 A-130 Case 18-2814 Document 40 01 07 2019 2469015 Page135 of 205 Case 1 17-cv-02542-KPF Document 61 Filed 07 26 18 Page 4 of 70 associated with the offices of the President and Vice President See 18 U S C § 3056A a The Executive Office of the President the “EOP” comprises various bodies including the White House Office which in turn includes the President’s immediate staff the White House Counsel’s Office and the Staff Secretary’s Office Herndon Decl ¶ 2 The EOP also encompasses the Council on Environmental Quality “CEQ” the Office of Management and Budget “OMB” the Office of National Drug Control Policy “ONDCP” the Office of Science and Technology Policy “OSTP” and the Office of the United States Trade Representative “USTR” Am Compl ¶ 9 2 Records of Presidential Visitors Plaintiffs seek from the DHS records maintained by the Secret Service spanning the period of January 20 2017 through March 8 2017 related to visits to the White House and to President Trump at his Mar-a-Lago and Trump Tower residences See Am Compl ¶¶ 1 34 39 DHS contends that although the security responsibility of the Secret Service extends to the White House Complex it “does not have a similar statutory authority to protect Mar-a-Lago or Trump Tower ” Murray Decl ¶ 3 The declarations that DHS has submitted in support of its motions thus focus on the policies and procedures attendant to records of White House Complex visitors and this section summarizes those guidelines 4 A-131 Case 18-2814 Document 40 01 07 2019 2469015 Page136 of 205 Case 1 17-cv-02542-KPF Document 61 Filed 07 26 18 Page 5 of 70 a Records of White House Complex Visitors In order to vet identify and monitor visitors to the White House Complex the Secret Service employs two interconnected electronic systems i the Executive Facilities Access Control System “EFACS” through which the Secret Service controls and monitors White House Complex access and ii the Worker and Visitor Entrance System “WAVES” which the Secret Service uses to vet visitors to the White House Complex Murray Decl ¶¶ 6-7 Authorized White House Complex passholders may request permission for a visitor to the White House Complex by providing visitor information to the Secret Service through a system called “Appointment Center” or the “WAVES Request System” “WRS” Murray Decl ¶ 8 Through these systems WAVES gathers information related to prospective visitors which information allows a Secret Service member to verify that the requestor is authorized to make appointments for the location requested to acquire additional information to conduct a background check and to transmit the information to the EFACS server Id WAVES records include a variety of information fields such as whether a visit is related to a certain event at the White House Complex or is subject to certain restrictions Id at ¶ 9 When an individual receives approval to visit the White House Complex he or she typically receives a badge to “swipe” over electronic badge readers located at entrances and exits to the White House Complex each swipe generates an “Access Control Record” “ACR” within the EFACS system Murray Decl ¶ 10 An ACR contains information such as the visitor’s name 5 A-132 Case 18-2814 Document 40 01 07 2019 2469015 Page137 of 205 Case 1 17-cv-02542-KPF Document 61 Filed 07 26 18 Page 6 of 70 and the date time and location at which the ACR was generated which “ o nce a visit takes place ” is integrated into the WAVES records Id at ¶¶ 10-11 These aggregated records contain information identifying the visitor visitee and individual who made the appointment as well as details of the visit such as the points of entry and departure the type of escort the visit requires and whether the visit involved a highly sensitive meeting Willson Decl ¶ 7 This dispute principally revolves around WAVES and ACR records b Recordkeeping Practices Related to WAVES and ACR Records DHS contends that because the Secret Service utilizes WAVES records to vet potential visitors and verify visitors’ admissibility at the time of a visit the Secret Service ceases to have an interest in maintaining such information after the completion of a visit See Murray Decl ¶¶ 8 13 Thus “ s ince at least 2001 ” the Secret Service has maintained a practice of transferring WAVES records to the White House Office of Records Management “WHORM” “generally every 30 to 60 days ” Id at ¶ 13 see also Droege Decl ¶ 4 “ A s early as 2001 ” the White House and Secret Service agreed that ACR records “should be treated in a manner generally consistent with WAVES records ” and thus “ s ince at least 2006 ” the Secret Service has transferred ACR records to the WHORM every 30 to 60 days Droege Decl ¶ 5 “ S ince at least 2009 ” the Secret Service has transferred WAVES records to WHORM every 30 days Murray Decl ¶ 13 see also Willson Decl ¶ 5 Droege Decl ¶ 4 After transferring the records “ i t is the intent of the Secret Service” that the records “be erased from their computer system ” and WAVES 6 A-133 Case 18-2814 Document 40 01 07 2019 2469015 Page138 of 205 Case 1 17-cv-02542-KPF Document 61 Filed 07 26 18 Page 7 of 70 records over 60-days old are normally “auto-deleted” and “overwritten on the servers ” Murray Decl ¶ 13 see also Willson Decl ¶ 6 “Records that are older than 60 days are ordinarily auto-deleted from the server operated by the Secret Service on a rolling basis ” 2 “Currently the after-visit records that are transferred to the WHORM constitute a combination of WAVES and ACR information ” Murray Decl ¶ 15 In May 2006 the Secret Service Records Management Program and WHORM entered into a Memorandum of Understanding the “2006 MOU” which reflected the above practices regarding WAVES and ACR records See Murray Decl ¶ 14 Droege Decl ¶ 6 The 2006 MOU also expressed the Secret Service’s and WHORM’s understanding that such records “are at all times Presidential Records ” “are not Federal Records ” and “are not the records of an ‘agency’ subject to the Freedom of Information Act ” Murray Decl Ex A at ¶ 17 The 2006 MOU also provided that i such records “are at all times under the exclusive legal custody and control of the White House” ii only the White House has a “continuing interest” in such records iii “the Secret Service has no continuing interest in preserving or retaining” such records and iv the Secret Service “will regularly transfer” such records to WHORM Id Ex A at ¶¶ 18 20-22 2 Because of pending litigation and with White House permission as of August 19 2017 the Secret Service disabled the auto-delete function for WAVES records Murray Decl ¶ 21 “The Secret Service will maintain a copy of the WAVES and ACR records that are sent to the WHORM during the pendency of that litigation as well as this case ” Id 7 A-134 Case 18-2814 Document 40 01 07 2019 2469015 Page139 of 205 Case 1 17-cv-02542-KPF Document 61 Filed 07 26 18 Page 8 of 70 On March 19 2015 President Obama issued a memorandum creating the position of the Director of White House Information Technology “DWHIT” who is “responsible for the information resources and information systems provided to the President Vice President and EOP ” Herndon Decl ¶¶ 1 3 The memorandum also established the Presidential Information Technology Community in order to “bring various information systems and resources into a single community under the auspices of the DWHIT ” which “would enhance the security of those systems and resources ” Id at ¶¶ 3-4 Pursuant to the authority vested by President Obama’s memorandum and in furtherance of the aims of that memorandum in September 2015 the Presidential Information Technology Community entered into a Memorandum of Understanding with the member-entities of the Presidential Information Technology Community the “2015 MOU” including the Secret Service 3 which MOU purported to provide protocols governing its operations Id at ¶¶ 5-6 The 2015 MOU provides that “ 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 exclusive ownership control and custody of the President Vice President or originating EOP component ” Murray Decl ¶ 17 alteration in original see also Herndon Decl ¶¶ 8-9 Pursuant to the 2015 MOU — and despite the facts that the “WAVES servers are located at the Secret Service’s 3 The other members of the Presidential Information Technology Community consist of the National Security Council the Office of Administration the White House Military Office and the White House Communications Agency Herndon Decl Ex A at 3 8 A-135 Case 18-2814 Document 40 01 07 2019 2469015 Page140 of 205 Case 1 17-cv-02542-KPF Document 61 Filed 07 26 18 Page 9 of 70 headquarters … and Secret Service personnel operate this machinery” — DHS maintains that “the President is the business owner of the EFACS and WAVES systems and the Secret Service operates those systems on behalf of the President acting as a service provider ” Murray Decl ¶ 16 As a result of the 2015 MOU after a visit has concluded the Secret Service must request permission from the White House to view records of the visit and if the records have been transferred to WHORM the Secret Service must also contact WHORM to access the records Id at ¶ 19 The Secret Service must similarly request permission from the DWHIT to modify the WAVES or EFACS systems Id at ¶ 20 Under the Obama Administration on September 15 2009 the White House implemented a policy of voluntarily disclosing certain information contained in WAVES and ACR records Droege Decl ¶ 12 This disclosure policy contained various exceptions including information implicating personal privacy or law enforcement concerns personal safety of EOP staff and national security concerns Id at ¶ 13 The current administration rescinded this policy on April 14 2017 Id at ¶ 14 3 The FOIA Requests Preceding This Litigation a Plaintiffs’ FOIA Requests Plaintiffs allege that on January 23 2017 Plaintiff Kate Doyle sent a FOIA request via facsimile to the Secret Service “requesting all WAVES and ACR records for” January 20 through January 22 2017 Am Compl ¶ 34 More specifically Doyle requested 28 data fields that were previously made 9 A-136 Case 18-2814 Document 40 01 07 2019 2469015 Page141 of 205 Case 1 17-cv-02542-KPF Document 61 Filed 07 26 18 Page 10 of 70 available to the public through the Obama Administration’s Visitor Records Requests website Id After receiving no response from the Secret Service on February 24 2017 Doyle sent an administrative appeal of her request to the Secret Service via facsimile Id at ¶ 35 DHS contends that it has no record of receiving either the initial request or the administrative appeal but it acknowledges that after filing the complaint in this case Plaintiffs provided documentation indicating that both the request and administrative appeal had been faxed to the DHS Campbell Decl ¶¶ 4-5 In any event on March 10 2017 Plaintiffs sent a second FOIA request to the Secret Service seeking the extraction of the same 28 data fields from i “all WAVES and ACR records from January 20 2017 until March 8 2017 ” and ii “records of presidential visitors at Mar-a-Lago and Trump Tower from January 20 2017 to March 8 2017 ” Am Compl ¶ 39 This second request also sought expedited processing “in light of Plaintiffs’ significant concerns … about how President Trump was using his private properties at Mar-a-Lago and Trump Tower the extensive media coverage of this issue and the refusal of the President to date to commit to releasing the visitor logs data ” Id at ¶ 40 Unlike the first request DHS acknowledges receiving this request to which DHS responded by letter on April 11 2017 in which it denied Plaintiffs’ request for expedited treatment See Campbell Decl ¶ 6 id at Ex A b The Secret Service’s Response to the Requests In response to Plaintiffs’ FOIA requests DHS maintains that WAVES and ACR records are not Secret Service records but rather are Presidential Records 10 A-137 Case 18-2814 Document 40 01 07 2019 2469015 Page142 of 205 Case 1 17-cv-02542-KPF Document 61 Filed 07 26 18 Page 11 of 70 not subject to FOIA DHS therefore “did not seek to search for locate or process these records ” Campbell Decl ¶ 7 Further “the Secret Service “was aware that President Trump had not traveled to Trump Tower during the requested time period” and “after confirming this information the Secret Service did not seek to search for the material requested by Plaintiffs ” Id at ¶ 8 4 The Secret Service handled Plaintiffs’ request for information regarding Mar-a-Lago visitors in a different fashion Although the Secret Service “easily … confirmed” that it did not “utilize WAVES or ACR records at Mar-aLago it was unclear what if any record systems or record groupings might exist in regard to who visited the President at Mar-a-Lago or where such record systems or record groupings might be located ” Campbell Decl ¶ 9 The Secret Service thus undertook a set of searches “to determine what if any record systems or record groupings existed that might contain information potentially responsive to Plaintiffs’ request ” 5 but according to DHS this search ultimately revealed “no system for keeping track of visitors to Mar-a-Lago as there is at the White House Complex ” Id at ¶¶ 10-11 DHS therefore contends that regarding the 28 data fields Plaintiffs seek “the Secret Service maintains no record and has no access to any record directly responsive to 4 In light of this information Plaintiffs no longer seek records related to Trump Tower See Pl Opp 2 n 1 5 The Court discusses this search in more granular detail infra 11 A-138 Case 18-2814 Document 40 01 07 2019 2469015 Page143 of 205 Case 1 17-cv-02542-KPF Document 61 Filed 07 26 18 Page 12 of 70 Plaintiffs’ request for records of presidential visitors at Mar-a-Lago ” Id at ¶ 13 Further aside from the 28 data fields that were available under a prior administration DHS contends that its search uncovered only one record that was subject to FOIA — a two-page email from the Department of State that was forwarded to the Secret Service — which DHS provided to Plaintiffs in redacted form Campbell Decl ¶ 14 6 The email “evidenced potential visitors to Mar-aLago some of whom were scheduled to attend a dinner with the President ” Id at ¶ 33 Before turning the email over to Plaintiffs the DHS redacted “the names email addresses and a cell phone number of third parties ” claiming that such information was exempt from disclosure under FOIA Id The Secret Service’s search also revealed records involving a visit by the Prime Minister of Japan Shinzo Abe along with his wife to Mar-a-Lago in addition the search produced “a handful of records that referred to individuals who were scheduled to meet with the President at Mar-a-Lago ” Campbell Decl ¶¶ 26-27 7 DHS contends that documents in the latter category “contain reflect or directly relate to Presidential schedules” and are therefore “Presidential records within the meaning of the Presidential Records Act ” and are not subject to FOIA Id at ¶ 31 As to the records involving Prime 6 The parties also agreed to exclude records involving presidential family members cabinet members and White House staff who visited Mar-a-Lago and records involving “local law enforcement and support personnel scheduled to have their photographs taken with the president ” Campbell Decl ¶¶ 24-25 see also Pl Opp 22 n 8 7 DHS contends that these documents “indicate the possibility of a ‘presidential visit ’” rather than “whether a visit actually took place ” Campbell Decl ¶ 29 12 A-139 Case 18-2814 Document 40 01 07 2019 2469015 Page144 of 205 Case 1 17-cv-02542-KPF Document 61 Filed 07 26 18 Page 13 of 70 Minister Abe DHS decided that they are “not records of Presidential visitors at Mar-a-Lago ” but instead “operational material that merely contain a repeated statement that the Prime Min i ster of Japan and his spouse would be meeting or dining or present with the President and First Lady at Mar-a-Lago a widely published fact that w as already disclosed by the White House ” Id at ¶ 32 DHS also argues that the records involving Prime Minister Abe are “duplicative” of the redacted State Department email that was provided to Plaintiffs Id B Procedural Background On April 10 2017 after receiving no response from the Secret Service within the timeframe required under FOIA 8 Plaintiffs filed the initial complaint in this case See Am Compl ¶¶ 41-45 Dkt #1 On July 14 2017 the parties appeared for an initial pretrial conference pursuant to which the Court issued an order directing the “Secret Service to complete its search for and processing of responsive ‘records of presidential visitors at Mar-a-Lago ’ and produce any non-exempt responsive records by September 8 2017” the Court scheduled summary judgment briefing after such production Dkt #23 The Court later extended the deadline for such production to September 15 2017 Dkt #28 The Court also granted Plaintiffs leave to file an amended complaint and issued a revised summary judgment briefing schedule on September 14 2017 Dkt #30 The next day Plaintiffs amended their complaint which they now 8 An agency generally has 20 days to respond to a FOIA request See 5 U S C § 552 a 6 A i 13 A-140 Case 18-2814 Document 40 01 07 2019 2469015 Page145 of 205 Case 1 17-cv-02542-KPF Document 61 Filed 07 26 18 Page 14 of 70 bring under FOIA the APA the FRA and the PRA in pursuit of injunctive and declaratory relief See Dkt #32 On October 23 2017 DHS moved for summary judgment on Plaintiffs’ FOIA claims and to dismiss the remaining claims for failure to state a claim and lack of subject matter jurisdiction See Dkt #45-51 On December 4 2017 Plaintiffs opposed the motion Dkt #52 and DHS replied to Plaintiffs’ opposition on January 12 2018 Dkt #55 The Court’s analysis will proceed as follows First the Court addresses a request for judicial notice that Plaintiffs made after summary judgment briefing closed second the Court addresses Plaintiffs’ FOIA claims third the Court addresses Plaintiffs’ claims involving the APA FRA and PRA and fourth the Court addresses Plaintiffs’ claim for declaratory judgment DISCUSSION A The Court Denies Plaintiffs’ Request for Judicial Notice Before addressing the merits of Defendants’ motions the Court resolves a late-breaking dispute among the parties On February 20 2018 after summary judgment briefing had concluded Plaintiffs filed a letter requesting that the Court take judicial notice of a settlement into which the Secret Service had entered in Public Citizen Inc v United States Secret Service No 17 Civ 1669 CRC D D C the “Public Citizen Settlement” or the “Settlement” Dkt #58 The Settlement explains that much like the case at bar the plaintiff in that action Public Citizen Inc had submitted FOIA requests to the defendant the United States Secret Service seeking WAVES and ACR records along with records from “any other system used to track visitors to the White House 14 A-141 Case 18-2814 Document 40 01 07 2019 2469015 Page146 of 205 Case 1 17-cv-02542-KPF Document 61 Filed 07 26 18 Page 15 of 70 complex ” Dkt #58 Ex A Settlement Agreement These requests “specifically sought records related to visits” to the following EOP components the OMB OSTP ONDCP and CEQ Id As a result of the Settlement the White House was to “add computer functionality to the existing system containing WAVES records by which it can sort WAVES records by the requester’s email address ” Id 1 The Parties’ Positions on Plaintiffs’ Judicial Notice Request In requesting that the Court judicially notice the Settlement Plaintiffs contend that the agreement establishes that the “Secret Service can distinguish between records of visits to agency components of the EOP from records of visits to non-agency components ” as the Settlement requires the Secret Service “to add a functionality to its system that would allow it to sort WAVES records by the requester’s email address process the records requested by the plaintiff in that separate action and post them in agency online reading rooms ” Dkt #58 On February 27 2018 Defendants responded to Plaintiffs’ request providing no objection to the Court taking judicial notice of the Settlement but arguing that the agreement in fact supported Defendants’ pending motions Dkt #59 In particular Defendants argue that the Settlement expressly acknowledges that an appointment requester’s email address “does not necessarily show that a WAVES record reflects an EOP agency component visit ” and that any functionality changes pursuant to the Settlement would be within the control of the White House rather than the Secret Service Id 15 A-142 Case 18-2814 Document 40 01 07 2019 2469015 Page147 of 205 Case 1 17-cv-02542-KPF Document 61 Filed 07 26 18 Page 16 of 70 Indeed Defendants contend that the Settlement renders moot Plaintiffs’ FRA and PRA claims insofar as they “allege wrongful treatment of agency records by EOP and the Secret Service” for failing to “distinguish between records of visits to Presidential components of EOP which are not subject to FOIA and records of visits to agency components of EOP which are ” Id In Defendants’ view the Settlement “creates a mechanism for doing just that thereby mooting Plaintiffs’ FRA and PRA claims in their entirety ” and “the S ettlement provides virtually all the relief that P laintiffs could achieve under FOIA and more ” Id Further Defendants argue that the only aspect of Plaintiffs’ FOIA claim “that is not moot is the possibility that plaintiffs may wish to challenge any redactions that the EOP agency components may apply to the records before posting ” but because any such redactions and corresponding objections are unknown at this point the Court should hold this portion of Plaintiffs’ FOIA claim in abeyance and dismiss the remainder of Plaintiffs’ claims Id Plaintiffs replied to Defendants’ response on March 2 2018 arguing at the outset that Defendants’ opposition letter improperly raised grounds for summary judgment and dismissal that were not raised in Defendants’ formal briefing Dkt #60 In addition Plaintiffs contend that the Public Citizen Settlement does not render the claims at issue moot for three reasons First the Settlement “expires” if either the EOP modifies its email system so that email addresses no longer indicate that an employee works for an EOP component or the White House modifies the WAVES system so that it does not automatically populate the email address of an appointment requester Id 16 A-143 Case 18-2814 Document 40 01 07 2019 2469015 Page148 of 205 Case 1 17-cv-02542-KPF Document 61 Filed 07 26 18 Page 17 of 70 Second until Defendants have searched for the records that Plaintiffs are seeking and produced all non-exempt records the Settlement does not speak to any challenges Plaintiffs might raise to Defendants’ withholding of records Id Third the Settlement defines “FOIA components” within the EOP more narrowly than Plaintiffs’ operative complaint Id 9 2 Plaintiffs’ Request for Judicial Notice Is Denied Under the Federal Rules of Evidence a “court may judicially notice a fact that is not subject to reasonable dispute” where it “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned ” Fed R Evid 201 b 2 “ B ecause the effect of judicial notice is to deprive a party of the opportunity to use rebuttal evidence crossexamination and argument to attack contrary evidence caution must be used in determining that a fact is beyond controversy under Rule 201 b ” Braun v United Recovery Sys LP 14 F Supp 3d 159 164 S D N Y 2014 alteration in original citation omitted “A court may take judicial notice of a document filed in another court ‘not for the truth of the matters asserted in the other litigation but rather to establish the fact of such litigation and related filings ’” Int’l Star Class Yacht Racing Ass’n v Tommy Hilfiger U S A Inc 146 F 3d 66 70 2d Cir 1998 quoting Liberty Mut Ins Co v Rotches Pork Packers Inc 969 F 2d 1384 1388 2d Cir 1992 9 The operative complaint defines “FOIA components” of the EOP to include the Office of the United States Trade Representative while the Settlement does not Dkt #60 17 A-144 Case 18-2814 Document 40 01 07 2019 2469015 Page149 of 205 Case 1 17-cv-02542-KPF Document 61 Filed 07 26 18 Page 18 of 70 The scope of Plaintiffs’ request for judicial notice of the Public Citizen Settlement far exceeds the purposes for which the Court may properly consider it Although Defendants do not object to judicial notice of the fact of the Settlement the parties’ submissions on the issue make clear that they vehemently disagree as to which facts the Court should glean from the Settlement Agreement Compare Dkt #58 60 with Dkt #59 Because both sides have offered plausible views of the practical implications of the Settlement a fortiori the Court cannot find that the factual purpose for which Plaintiffs urge the Court to consider the Settlement would be beyond “reasonable dispute ” Fed R Evid 201 b Moreover to grant Plaintiffs’ request would not only require the Court to consider the Settlement for the truth of the matters stated therein but to make the inferential leap of drawing facts from the Settlement that are not necessarily borne out by its terms To be sure a court may judicially notice a settlement agreement to establish the fact of a prior litigation See e g Deylii v Novartis Pharm Corp No 13 Civ 6669 NSR 2014 WL 2757470 at 4 S D N Y June 16 2014 collecting cases But it may not do so to take as true any facts contained in such settlement agreement See Int’l Star Class Yacht Racing Ass’n 146 F 3d at 70 The Court therefore denies Plaintiffs’ request that the Court judicially notice the Public Citizen Settlement 18 A-145 Case 18-2814 Document 40 01 07 2019 2469015 Page150 of 205 Case 1 17-cv-02542-KPF Document 61 Filed 07 26 18 Page 19 of 70 B Defendants’ Summary Judgment Motion Is Granted in Part and Denied in Part 1 Applicable Law a FOIA Generally FOIA vests federal courts with “jurisdiction to enjoin a federal agency from withholding agency records and to order the production of any agency records improperly withheld ” 5 U S C § 552 a 4 B 10 The statute mandates disclosure of any requested “agency records” unless they fall within one of FOIA’s enumerated exemptions See Grand Cent P’ship Inc v Cuomo 166 F 3d 473 478 2d Cir 1999 Adamowicz v I R S 672 F Supp 2d 454 461 S D N Y 2009 aff’d 402 F App’x 648 2d Cir 2010 summary order FOIA thus allows public access to information held by agencies of the federal government but such access is not limitless In enacting FOIA Congress sought to strike a balance between the public’s interest in government transparency and accountability and the Government’s need to hold sensitive information in confidence See Nat’l Council of La Raza v Dep’t of Justice 411 F 3d 350 355-56 2d Cir 2005 Nat Res Def Council Inc v U S Dep’t of Interior 36 F Supp 3d 384 397 S D N Y 2014 quoting John Doe Agency v John Doe Corp 493 U S 146 152 1989 10 The Second Circuit has explained that “jurisdiction ” in this context refers to a federal court’s “remedial power not subject-matter jurisdiction ” meaning that 5 U S C § 552 a 4 B “does not speak to the court’s ability to adjudicate a claim but only to the remedies that the court may award ” Main St Legal Servs Inc v Nat’l Sec Council 811 F 3d 542 566 2d Cir 2016 19 A-146 Case 18-2814 Document 40 01 07 2019 2469015 Page151 of 205 Case 1 17-cv-02542-KPF Document 61 Filed 07 26 18 Page 20 of 70 b Resolving FOIA Claims at Summary Judgment Summary judgment is the usual mechanism for resolving a FOIA dispute N Y Times Co v United States Dep’t of Justice 235 F Supp 3d 522 529 S D N Y 2017 Federal jurisdiction over a FOIA action requires “a showing that an agency has i ‘improperly’ ii ‘withheld’ iii ‘agency records ’” and “ o nly when these criteria are met may a district court ‘force an agency to comply with the FOIA’s disclosure requirements ’” Grand Cent P’Ship 166 F 3d at 478 quoting U S Dep’t of Justice v Tax Analysts “Tax Analysts II” 492 U S 136 142 1989 Where as here “the question is whether requested documents are ‘agency records’ subject to disclosure under FOIA ‘ t he burden is on the agency to demonstrate not the requester to disprove that the materials sought are not ‘agency records ’” Id quoting Tax Analysts II 492 U S at 142 n 3 A court reviews de novo an agency’s decision to withhold information N Y Times Co 235 F Supp 3d at 529 citing 5 U S C § 552 a 4 B A district court considering a FOIA claim “may grant summary judgment in favor of an agency ‘on the basis of agency affidavits if they contain reasonable specificity of detail rather than merely conclusory statements and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith ’” Grand Cent P’ship 166 F 3d at 478 quoting Gallant v NLRB 26 F 3d 168 171 D C Cir 1994 see also Garcia v U S Dep’t of Justice Office of Info Privacy 181 F Supp 2d 356 366 S D N Y 2002 “If the agency’s submissions are facially adequate summary judgment is 20 A-147 Case 18-2814 Document 40 01 07 2019 2469015 Page152 of 205 Case 1 17-cv-02542-KPF Document 61 Filed 07 26 18 Page 21 of 70 warranted unless the plaintiff can make a showing of bad faith on the part of the agency or present evidence that the exemptions claimed by the agency should not apply ” “As such where the agency’s submissions are ‘adequate on their face ’ district courts ‘may forgo discovery and award summary judgment on the basis of affidavits ’” N Y Times Co 235 F Supp 3d at 529 quoting Carney v U S Dep’t of Justice 19 F 3d 807 812 2d Cir 1994 Conversely “ s ummary judgment in favor of the FOIA plaintiff is appropriate ‘when an agency seeks to protect material which even on the agency’s version of the facts falls outside the proffered exemption ” Nat Res Def Council Inc 36 F Supp 3d at 398 quoting N Y Times Co v U S Dep’t of Def 499 F Supp 2d 501 509 S D N Y 2007 11 c Defining “Agency Records” Under FOIA The propriety of Defendants’ decision to withhold the WAVES and ACR records at issue turns on whether those records are “agency records ” and thus subject to disclosure under FOIA By all accounts this is an issue of first impression within this Circuit Yet as discussed below the Court of Appeals for the District of Columbia Circuit has addressed this very issue and the parties therefore focus initially on disputing whether the Court should adopt 11 Indeed “‘ t he general rule in this Circuit is that in FOIA actions agency affidavits alone will support a grant of summary judgment ’ and Local Civil Rule 56 1 statements are not required ” N Y Times Co v U S Dep’t of Justice 872 F Supp 2d 309 314 S D N Y 2012 quoting Ferguson v Fed Bureau of Investigation No 89 Civ 5071 RPP 1995 WL 329307 at 2 S D N Y June 1 1995 aff’d 83 F 3d 41 2d Cir 1996 The Court therefore rejects Plaintiffs’ bid to deny Defendants’ summary judgment motion for failure to submit an accompanying Local Civil Rule 56 1 statement along with their motion for summary judgment See Pl Opp 3-4 21 A-148 Case 18-2814 Document 40 01 07 2019 2469015 Page153 of 205 Case 1 17-cv-02542-KPF Document 61 Filed 07 26 18 Page 22 of 70 the D C Circuit’s approach here 12 The Court discusses the various bases of the D C Circuit’s approach and then considers the parties’ arguments supporting and opposing adoption of that approach i Supreme Court Decisions Kissinger Forsham and Tax Analysts II The progenitor of modern FOIA case law is Kissinger v Reporters Commission for Freedom of the Press where the Supreme Court held that Congress did not intend FOIA to define an “agency” to include “the Office of the President ” meaning the President his “immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President ” 445 U S 136 156 1980 quoting H R Rep No 93-1380 at 232 1974 Conf Rep There the Court held in relevant part that notes of telephone conversations of then-Assistant to the President for National Security Affairs Henry Kissinger were not “agency records” subject to FOIA as the requested documents were generated while Kissinger was acting in his capacity as a presidential adviser Id at 157 And this was so even though at the time of the FOIA request the notes were removed from White House files and physically transferred to an agency subject to FOIA — Kissinger’s office at the Department of State where Kissinger was serving as the Secretary of State Id 12 This Court observes that the Second Circuit has previously “acknowledge d the considerable experience of the Court of Appeals for the District of Columbia Circuit” in analyzing FOIA’s application to records generated by units of the Executive Office of the President Main St Legal Servs Inc 811 F 3d at 547 holding that National Security Council is not an agency subject to FOIA 22 A-149 Case 18-2814 Document 40 01 07 2019 2469015 Page154 of 205 Case 1 17-cv-02542-KPF Document 61 Filed 07 26 18 Page 23 of 70 In Forsham v Harris a companion case to Kissinger the Court addressed a separate definitional issue Whether materials generated by a private organization that has received federal funds from an agency but has not transmitted the materials back to that agency are agency records subject to FOIA See 445 U S 169 178 1980 Answering the question in the negative the Court held that “an agency must first either create or obtain a record as a prerequisite to its becoming an ‘agency record’ within the meaning of FOIA ” Id at 182 While noting that FOIA does not define the term “agency records ” the Court drew its conclusion from FOIA’s definition of “agency” and its legislative history both of which indicated that Congress did not intend to subject private organizations receiving federal funds to FOIA Id at 178-79 The Court also noted that the use of the term “record” in related statutes such as the Records Disposal Act and the PRA suggested that an agency record must at least be “create d or obtain ed ” by the agency Id at 182-84 Drawing from Kissinger and Forsham the Supreme Court expanded on what constitutes an “agency record” for FOIA purposes in United States Department of Justice v Tax Analysts 492 U S 136 1989 The Court held that to qualify as an agency record requested materials must i either be “create d or obtain ed ” by an agency and ii be in the agency’s “control … at the time the FOIA request is made ” Id at 144-45 Of particular relevance to the case at bar the Court hewed to the analysis in Kissinger by explaining that sufficient control under the second prong “mean s that the materials have come into the agency’s possession in the legitimate conduct of its official 23 A-150 Case 18-2814 Document 40 01 07 2019 2469015 Page155 of 205 Case 1 17-cv-02542-KPF Document 61 Filed 07 26 18 Page 24 of 70 duties ” Id at 145 Thus considering the FOIA request at issue there the Court held that district court decisions received by the Department of Justice while litigating tax cases were agency records although the Department of Justice did not internally generate the decisions they had received and possessed them at the time of the FOIA request at issue Id at 146-47 ii The D C Circuit’s Decision Judicial Watch In Judicial Watch Inc v United States Secret Service the D C Circuit considered a FOIA claim mirroring the one at bar in which the plaintiffs sought from the Secret Service “ a ll official visitors logs and or other records concerning visits made to the White House from January 20 2009 to August 10 2009 ” 726 F 3d 208 214 D C Cir 2013 first alteration in original After explaining the Secret Service’s recordkeeping procedures and while acknowledging that the circumstances presented “a difficult case ” the court held that WAVES and ACR records “that disclose the kind of information” presented in “documents like the President’s appointment calendar” are not agency records subject to FOIA while WAVES and ACR records “that reveal visitors to those offices within the White House Complex that are themselves subject to FOIA” would constitute agency records See id at 233-34 In reaching its conclusion the D C Circuit first found no dispute that the Secret Service had “obtained” the WAVES and ACR records at issue thus satisfying the first prong of the test set forth in Tax Analysts II Judicial Watch 726 F 3d at 217 The case thus turned on whether the Secret Service had sufficient control over the documents to render them agency records To 24 A-151 Case 18-2814 Document 40 01 07 2019 2469015 Page156 of 205 Case 1 17-cv-02542-KPF Document 61 Filed 07 26 18 Page 25 of 70 answer that inquiry the D C Circuit generally looked to four factors originally announced in the Court of Appeal’s decision in Tax Analysts which the Supreme Court later affirmed albeit on different grounds Id at 218 discussing Tax Analysts v U S Dep’t of Justice “Tax Analysts I” 845 F 2d 1060 D C Cir 1988 and collecting D C Circuit cases applying the four-factor test These four factors consist of the following i the intent of the document’s creator to retain or relinquish control over the records ii the ability of the agency to use and dispose of the record as it sees fit iii the extent to which agency personnel have read or relied upon the document and iv the degree to which the document was integrated into the agency’s record system or files Id quoting Tax Analysts I 845 F 2d at 1069 Applying these factors produced an equivocal result The first factor weighed in the Secret Service’s favor in light of the 2006 MOU which as discussed above expressed the intention of the Secret Service and the White House to place WAVES and ACR records under the control of the White House rather than the Secret Service Judicial Watch 726 F 3d at 218 The second factor considering the Secret Service’s authority to use and dispose of the records weighed in neither party’s favor although the Secret Service used the records to vet potential White House visitors and verify their identities it had a “longstanding practice” of turning those records over to the White House and the 2006 MOU further restricted the Secret Service’s ability to use and dispose of the records as it pleased Id at 218-19 The third factor assessing the extent of the Secret Service’s reliance on the records indicated Secret Service 25 A-152 Case 18-2814 Document 40 01 07 2019 2469015 Page157 of 205 Case 1 17-cv-02542-KPF Document 61 Filed 07 26 18 Page 26 of 70 control as the agency used the records to vet and verify the identity of White House visitors “without restriction ” Id at 219 And the fourth factor taking into account the degree to which the records were integrated into the Secret Service’s systems or files was found by the D C Circuit to weigh in favor of neither party the Court acknowledged that the records were in the Secret Service’s system at least at one point but the physical servers on which the records were stored were located in the White House Complex and the records were removed from those servers within 60 days Id at 219-20 Having found that only two of the four factors yielded decisive answers — and even then pointed in different directions — the Court drew parallels to another line of cases one involving “documents that an agency has either obtained from or prepared in response to a request from a governmental entity not covered by FOIA the United States Congress ” where the four-factor “test does not apply ” Judicial Watch 726 F 3d at 221 In those cases courts consider “special policy considerations ” which in the context of WAVES and ACR records suggested that such records would not fall within the scope of FOIA Id at 220-21 quoting Paisley v C I A 712 F 2d 686 693 n 30 D C Cir 1983 vacated in part on other grounds 724 F 2d 201 1984 As in the context of FOIA requests for congressional records obtained by an agency the Court noted that it should defer to an “affirmatively expressed intent” to control such documents which the White House had expressed toward the WAVES and ACR records Id at 221 quoting Paisley 712 F 3d at 693 n 30 And more importantly subjecting these records to FOIA would force the President 26 A-153 Case 18-2814 Document 40 01 07 2019 2469015 Page158 of 205 Case 1 17-cv-02542-KPF Document 61 Filed 07 26 18 Page 27 of 70 to “either ‘surrender his constitutional prerogative of maintaining secrecy’ regarding his choice of visitors and therefore of outside advisors or to decline to cooperate with the executive branch agency entrusted with and necessary for his personal protection ” Id at 224 quoting United We Stand Am Inc v I R S 359 F 3d 595 599 D C Cir 2004 As a “more fundamental” reason for denying FOIA coverage for the WAVES and ACR records the D C Circuit discussed the separation-of-powers issues that such a state of affairs would precipitate Judicial Watch 726 F 3d at 224 13 Relying on Kissinger the Court explained that it was “undisputed” that a FOIA plaintiff could “not obtain the appointment calendars or visitor logs ” of individuals within the Office of the President as such documents “are simply not ‘agency records’ as FOIA defines the term ” Id at 225 Thus although the Secret Service is subject to FOIA it effectively replicated the schedules of the individuals in the Office of the President through its recordkeeping practices As Kissinger made clear Congress intentionally excluded the President’s documents from FOIA and a FOIA request should not act as a tool to obtain indirectly what it may not obtain directly Id The canon of constitutional avoidance also weighed against holding for the Judicial Watch plaintiffs See generally Clark v Martinez 543 U S 371 13 Although communications between the White House and the Secret Service constitute intra-branch communications Judicial Watch recognized that this dynamic does not lessen the separation-of-powers issues involved 726 F 3d at 224 Indeed in comparison to inter-branch communications between Congress and agencies subject to FOIA Congress would have the option to amend FOIA so as to avoid any such dilemma “No such solution is available to the President if Congress in enacting FOIA authorized an intrusion into the confidentiality of his communications ” Id 27 A-154 Case 18-2814 Document 40 01 07 2019 2469015 Page159 of 205 Case 1 17-cv-02542-KPF Document 61 Filed 07 26 18 Page 28 of 70 381 2005 stating that the canon of constitutional avoidance “is a tool for choosing between competing plausible interpretations of a statutory text resting on the reasonable presumption that Congress did not intend the alternative which raises serious constitutional doubts” As a practical matter the Court reasoned applying FOIA to the records at issue “could substantially affect the President’s ability to meet confidentially with foreign leaders agency officials or members of the public ” and supporting such an application of FOIA would therefore permit a congressional incursion on the President’s constitutional prerogatives Judicial Watch 726 F 3d at 226-27 In other words interpreting FOIA in this manner could present the issue of whether Congress exceeded its constitutional power over the executive branch a worrisome outcome of which Congress was aware when excluding Presidential advisors from FOIA See id at 227 discussing H R Rep No 93-1380 at 232 Conf Rep Finally the D C Circuit considered the PRA to provide a more natural fit for WAVES and ACR records The PRA requires the United States to preserve “complete ownership possession and control of Presidential records ” 44 U S C § 2202 and it defines “Presidential records” to include documents “created or received by the President ” his “immediate staff ” or individuals in the EOP “whose function is to advise or assist the President ” and to exclude “official records of an agency” as defined under FOIA § 2201 2 While noting that “Congress did not intend the PRA to diminish the scope of FOIA ” Judicial Watch 726 F 3d at 228 citing 44 U S C § 2201 2 B the Court reasoned that 28 A-155 Case 18-2814 Document 40 01 07 2019 2469015 Page160 of 205 Case 1 17-cv-02542-KPF Document 61 Filed 07 26 18 Page 29 of 70 the records at issue tracked more closely the definition of presidential records in the PRA which “gives the President ‘virtually complete control’” over such records while in office id quoting Armstrong v Bush 924 F 2d 282 290 D C Cir 1991 For these reasons the D C Circuit squarely held for the Government 2 The Court Adopts the Approach of Judicial Watch The Court finds the reasoning in Judicial Watch to be persuasive and therefore proceeds from the premise that it will adopt the D C Circuit’s approach unless Plaintiffs provide compelling countervailing reasons As discussed herein Plaintiffs have not done so In urging the Court to depart from Judicial Watch Plaintiffs take issue with the four-factor test that the D C Circuit applied to determine whether an agency has sufficient control over materials to render those materials agency records See Pl Opp 7-14 Specifically Plaintiffs argue that this test is inconsistent with the Supreme Court’s framework for determining such control under Tax Analysts II This Court disagrees Preliminarily the Court observes that the outcome in Judicial Watch was driven more by “special policy considerations” related to the prospect of applying FOIA to Presidential documents than by the four-factor test for control with which Plaintiffs take issue Judicial Watch 726 F 3d at 220-21 Indeed as discussed above that test’s indeterminate findings provided the Judicial Watch Court with little guidance in deciding the issue Nevertheless the Court will address Plaintiffs’ arguments 29 A-156 Case 18-2814 Document 40 01 07 2019 2469015 Page161 of 205 Case 1 17-cv-02542-KPF Document 61 Filed 07 26 18 Page 30 of 70 Plaintiffs hone in on a discussion in Tax Analysts II that rejected the notion that “the intent of the creator of a document relied upon by an agency” should determine whether material is an agency record subject to FOIA reasoning that “ s uch a mens rea requirement is nowhere to be found in the Act ” 492 U S at 147 In Plaintiffs’ view this proposition wholly undermines the D C Circuit’s focus on “the intent of a document’s creator to retain or relinquish control over the records ” Judicial Watch 726 F 3d at 218 quoting Tax Analysts I 845 F 2d at 1069 But these statements of law are reconcilable In the discussion above from Tax Analysts II the Court was responding to an argument by the Department of Justice that would “limit ‘agency records ’ at least where materials originating outside the agency are concerned ‘to those documents prepared substantially to be relied upon in agency decisionmaking ’” 492 U S at 147 The Court was thus considering an issue separate and apart from whether a document’s creator intended “to retain or relinquish control” of the document Perhaps more importantly the intent of a document’s creator in retaining or relinquishing control over the document accords with both the Supreme Court and the Second Circuit’s analysis in FOIA cases In Kissinger for instance the Supreme Court did not blind itself to Henry Kissinger’s demonstrated intent to retain control over notes of his phone calls See 445 U S at 140-41 157 holding that Kissinger’s records did not become subject to FOIA when he stored them in his State Department office and considering his efforts to determine whether the documents were “agency records” And the 30 A-157 Case 18-2814 Document 40 01 07 2019 2469015 Page162 of 205 Case 1 17-cv-02542-KPF Document 61 Filed 07 26 18 Page 31 of 70 Second Circuit has similarly looked to the President’s intent in determining whether a governmental entity created in part by the President is an agency subject to FOIA In Main Street Legal Services Inc v National Security Council the Second Circuit held that the National Security Council System parts of which were created by statute and other parts of which were created by presidential directive was not an agency subject to FOIA based in part on the President’s intentions as expressed in a presidential directive 811 F 3d 542 544-45 553 2d Cir 2016 The court reasoned that “separation of powers … counsels a respectful measure of deference to the President’s own statements of intent ” and the presidential directive did not “indicate any intent to transfer presidential authority so that it c ould be exercised by the National Security Council System independent of the President ” Id at 558-59 The case law to which this Court is bound therefore supports consideration of the drafter’s intent in determining whether a document is an agency record subject to FOIA As to Judicial Watch’s remaining three factors Plaintiffs concede that they “are certainly relevant to whether an agency has” sufficient control over materials to render them subject to FOIA Pl Opp 10 but argue that the D C Circuit’s application of those factors goes beyond the Supreme Court’s definition of “control” as “hav ing come into the agency’s possession in the legitimate conduct of its official duties ” Tax Analysts II 492 U S at 145 The Court declines to adopt Plaintiffs’ restrictive reading of Tax Analysts II 31 A-158 Case 18-2814 Document 40 01 07 2019 2469015 Page163 of 205 Case 1 17-cv-02542-KPF Document 61 Filed 07 26 18 Page 32 of 70 Plaintiffs contend that a “strict application” of the second factor — “the ability of the agency to use and dispose of the record as it sees fit ” Judicial Watch 726 F 3d at 218 quoting Tax Analysts I 845 F 2d at 1069 — would render two of the nine enumerated FOIA exemptions superfluous See Pl Opp 10 Those two exemptions shield materials from disclosure under FOIA if they are either i “established by” and “properly classified pursuant to” “an Executive order to be kept secret in the interest of national defense or foreign policy ” 5 U S C § 552 b 1 or ii “specifically exempted from disclosure by statute ” id § 552 b 3 Plaintiffs’ argument however fails to displace the probative value of considering an agency’s ability to use and dispose of a record in determining whether that agency controls such record Moreover the D C Circuit’s analysis under this factor considers as a practical matter how an agency handles particular material to the extent it is authorized to do so see e g Judicial Watch 726 F 3d at 218-19 this does not mean as Plaintiffs would have the Court believe that if an agency’s authorization in this regard were in some way limited such limitation would render materials exempt from FOIA to the same extent as an Executive Order protecting their secrecy or a specific statutory exemption from disclosure under FOIA 14 14 As an example of the broader protections the Government is afforded when claiming an exemption as opposed to maintaining that materials are not agency records recoverable under FOIA when claiming an exemption the Government may submit a “Glomar response ” which “neither confirms nor denies the existence of documents responsive to the request and is permissible ‘where to answer the FOIA inquiry by confirming or denying the existence of responsive documents would cause harm cognizable under a FOIA exception ’” Ctr for Constitutional Rights v C I A 765 F 3d 161 164 2d Cir 2014 alterations in original quoting Wilner v Nat’l Sec Agency 592 F 3d 60 68 2d Cir 2009 32 A-159 Case 18-2814 Document 40 01 07 2019 2469015 Page164 of 205 Case 1 17-cv-02542-KPF Document 61 Filed 07 26 18 Page 33 of 70 On the topic of FOIA’s exemptions Plaintiffs argue that “even if there is reason to credit ‘special policy considerations’ when addressing whether congressionally created documents are ‘agency records ” as Judicial Watch reasoned “executive prerogatives” are sufficiently protected by FOIA’s exemptions 15 and any further protection for presidential documents would be Congress’s responsibility Pl Opp 11 But this argument puts the cart before the horse Notwithstanding the applicability of any FOIA exemption as Kissinger recognized “Congress did not intend for ‘the President’s immediate personal staff or units in the EOP whose sole function is to advise and assist the President’ to be ‘included within the term ‘agency’ under the FOIA ’” Main St Legal Servs Inc 811 F 3d at 546 alteration in original quoting Kissinger 445 U S at 156 This congressional intent speaks to the inapplicability of FOIA to the President and his immediate staff without regard to any statutory exemptions For this reason the Court rejects Plaintiffs’ contention that the D C Circuit’s analysis of agency “control” over materials “is simply inconsistent with FOIA’s text and purposes” and would create “an amorphous tenth exemption” to FOIA Pl Opp 13-14 Mindful of the analysis in Kissinger the Court also disposes of Plaintiffs’ argument that revealing “information about the P resident” does not raise the same concerns as subjecting the President himself to FOIA Pl Opp 12 15 Specifically Plaintiffs rely on the two exemptions discussed above as well as an exemption for privileged documents see Grand Cent P’ship Inc v Cuomo 166 F 3d 473 481 2d Cir 1999 discussing 5 U S C § 552 b 5 as providing sufficient protection for presidential documents 33 A-160 Case 18-2814 Document 40 01 07 2019 2469015 Page165 of 205 Case 1 17-cv-02542-KPF Document 61 Filed 07 26 18 Page 34 of 70 emphasis in original This is a rhetorical sleight-of-hand Surely if the Supreme Court had shared Plaintiffs’ view it would not have interpreted Congress’s intent as carving out from FOIA’s definition of an agency the President’s immediate staff and advisers In addition Plaintiffs’ attempt to distinguish “subjecting the P resident to FOIA” from “subjecting presidential information in the possession of agencies to FOIA” is unpersuasive Id emphases in original Although this difference is certainly relevant to Tax Analysts II’s first prong — whether requested materials are “create d or obtain ed ” by an agency — the mere fact of possession would have much less relevance in deciding the second prong — whether that agency had “control” over such materials 492 U S at 144-45 Finally Plaintiffs argue that “FOIA routinely is applied to records that reveal presidential decision-making” Pl Opp 12 but none of the examples to which Plaintiffs cite such as policy directives or redacted memoranda is as personal to the President as his daily schedule This differentiation “accords with Kissinger’s teaching that the term ‘agency records’ is not so broad as to include personal materials in an employee’s possession even though the materials may be physically located at the agency ” Tax Analysts II 492 U S at 145 Further without citing to any particular cases Plaintiffs argue that many federal agencies obtain information from the President and his aides and that courts treat records generated by such interactions as subject to FOIA though they may be exempt for other reasons 16 The Court derives little from 16 Plaintiffs provide the following examples 34 A-161 Case 18-2814 Document 40 01 07 2019 2469015 Page166 of 205 Case 1 17-cv-02542-KPF Document 61 Filed 07 26 18 Page 35 of 70 Plaintiffs’ contention on this point as it is unable to compare the facts of this case to the abstract examples Plaintiffs have provided Moreover Plaintiffs’ argument is not without examples to the contrary See e g Main St Legal Servs 811 F 3d at 549-53 affirming dismissal of FOIA claims seeking records from National Security Council related to drone strikes of United State citizens and foreign nationals on grounds that Council was not “agency” subject to FOIA because its sole statutory function is to advise and assist the President Having considered and rejected Plaintiffs’ arguments the Court hereby adopts the D C Circuit’s approach as provided in Judicial Watch in determining whether the Secret Service exercises sufficient control over the documents at issue to require disclosure under FOIA In the following section the Court explains how developments since Judicial Watch have underscored the correctness of that holding 3 Post-Judicial Watch Developments Since Judicial Watch President Obama’s establishment of the Director of White House Information Technology and the 2015 MOU have reinforced the conclusion that WAVES and ACR records are within the control of the White House rather than the Secret Service T he O ffice of L egal Counsel renders legal advice directly to the P resident in response to specific requests The Office of Government Ethics renders ethics advice related to prospective White House employees based on information the White House supplies And the Department of Defense implements direct presidential orders relating to among other things the use of drone strikes to kill individuals abroad Pl Opp 13 35 A-162 Case 18-2814 Document 40 01 07 2019 2469015 Page167 of 205 Case 1 17-cv-02542-KPF Document 61 Filed 07 26 18 Page 36 of 70 First the White House’s intention to retain control over WAVES and ACR records is manifest in the relevant memoranda The Memorandum establishing the DWHIT provides that its intention is “to maintain the President’s exclusive control of the information resources and information systems provided to the President Vice President and EOP ” Herndon Decl Ex A at 1 Accordingly the 2015 MOU states that “ 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” — which include WAVES and ACR records — “shall remain under the exclusive ownership control and custody of the President Vice President or originating EOP component ” Id Ex B at § 3 01 see Herndon Decl ¶ 9 As discussed above this intention weighs in favor of finding that the WAVES and ACR records are not agency records subject to FOIA and in determining whether to command disclosure of documents under FOIA “separation of powers further counsels a respectful measure of deference to the President’s own statements of intent ” Main St Legal Servs 811 F 3d at 558 Second pursuant to the White House’s exerted control over the records at issue the Secret Service “cannot make changes to the WAVES or EFACS systems or make purchases related to the systems without the consent of the DWHIT ” Herndon Decl ¶ 8 In addition pursuant to the 2015 MOU the Secret Service’s access to the records is “limited … as necessary to perform its protective functions ” and “once a visit is concluded ” the Secret Service “may not access EFACS or WAVES records without White House Approval ” Id at 36 A-163 Case 18-2814 Document 40 01 07 2019 2469015 Page168 of 205 Case 1 17-cv-02542-KPF Document 61 Filed 07 26 18 Page 37 of 70 ¶ 9 These considerations and particularly the later restriction on the Secret Service compel a finding that the White House rather than the Secret Service controls the WAVES and ACR records as they indicate that the Secret Service’s ability to utilize and dispose of these records is subject to constraints imposed by the White House that were not present at the time that the D C Circuit decided Judicial Watch Cf 726 F 3d at 218-19 Thus the Court holds that WAVES and ACR records are not agency records subject to disclosure under FOIA Having adopted the D C Circuit’s approach articulated in Judicial Watch however the Court must address an additional wrinkle Certain components within the EOP are subject to FOIA and as explained in the following section so are records of visits to such components 4 Records Involving EOP Components That Are Subject to FOIA In Judicial Watch the Court delineated a subcategory of WAVES and ACR records to which its holding did not apply Components of the EOP that are agencies for the purposes of FOIA “EOP Agency Components” and whose records are thus subject to disclosure under FOIA 726 F 3d at 232 Here Defendants contend that the 2015 Presidential Memorandum creating the DWHIT and the 2015 MOU undermine this portion of Judicial Watch and even if not that Defendants are unable to segregate records of visits to EOP Agency Components from EOP components that employ members of the President’s immediate staff whose “sole function” is to “advise and assist the President ” 37 A-164 Case 18-2814 Document 40 01 07 2019 2469015 Page169 of 205 Case 1 17-cv-02542-KPF Document 61 Filed 07 26 18 Page 38 of 70 Kissinger 445 U S at 156 See Def Br 32 Defendants’ arguments miss the mark An EOP component is an “agency” subject to FOIA if it possesses “substantial independent authority in the exercise of specific functions” rather than the “sole function … to advise and assist the President ” Main St Legal Servs 811 F 3d at 547 quoting Soucie v David 448 F 2d 1067 1075 D C Cir 1971 The creation of the DWHIT and terms of the 2015 MOU do not speak to this analysis and the Court therefore dismisses out of hand Defendants’ assertion that such developments undermine Judicial Watch’s determination that records of visits to EOP Agency Components are subject to disclosure under FOIA Although the Secret Service does not exert sufficient control over WAVES and ACR records of visits to the President or EOP components that advise and assist the President the reasoning underlying that conclusion does not extend to WAVES and ACR records of visits to members of EOP components that are themselves subject to FOIA 17 As to Defendants’ contention that they are unable to segregate records of visits to EOP Agency Components Defendants admit that “ i n most cases” a WAVES record will contain the email address of the individual scheduling a visit that “will provide an indication of whether the person making the 17 The parties do not address which EOP components specifically are subject to FOIA Although Judicial Watch indicated that OMB CEQ ONDCP USTR and OSTP are EOP Agency Components that conclusion was based on sources that either are not binding or in the case of a former White House website including a list of units covered by FOIA no longer available See 726 F 3d at 233 n 28 In any event the Court need not decide the issue for the purposes of the instant motion 38 A-165 Case 18-2814 Document 40 01 07 2019 2469015 Page170 of 205 Case 1 17-cv-02542-KPF Document 61 Filed 07 26 18 Page 39 of 70 appointment is employed by” an EOP Agency Component or an EOP component that is not subject to FOIA Def Br 24 According to Defendants this information does not indicate with certainty whether such visit implicated an EOP component that is not subject to FOIA Id But such an assertion proves too much as the Court will not hold that material ceases to be an agency record because of information that it does not contain Indeed the lack of any indication that a visit implicated the President or an EOP component involved in advising and assisting the President should lessen Defendants’ concerns regarding revealing the President’s schedule and related information To the extent that any WAVES or ACR record from an EOP Agency Component contains information that would not constitute agency records in light of its connection to the President Defendants may redact such information Indeed FOIA “expressly authorize s ” redaction and places the burden on “the agency when it seeks to justify the redaction of identifying information in a particular document as well as when it seeks to withhold an entire document ” Associated Press v U S Dep’t of Def 554 F 3d 274 284 2d Cir 2009 quoting U S Dep’t of State v Ray 502 U S 164 173-74 1991 Moreover if disclosure of records from an EOP Agency Component threatened the President’s security it would likely be exempt from FOIA See Judicial Watch 726 F 3d at 233 citing as an example 5 U S C § 552 b 7 F which “exempt s records compiled for law enforcement purposes whose production ‘could reasonably be expected to endanger the life or physical safety of any individual’” In short WAVES and ACR records of visits to EOP Agency 39 A-166 Case 18-2814 Document 40 01 07 2019 2469015 Page171 of 205 Case 1 17-cv-02542-KPF Document 61 Filed 07 26 18 Page 40 of 70 Components are agency records subject to FOIA The Court next considers records of visits to President Trump’s Mar-a-Lago residence 5 Records of Presidential Visitors at Mar-a-Lago The Court’s analysis of this category of records proceeds in two stages First the Court considers the adequacy of Defendants’ search for records responsive to Plaintiffs’ FOIA request and second the Court considers the propriety of Defendants’ withholding of two categories of documents a The Adequacy of Defendants’ Search At the time of Plaintiffs’ request the Secret Service’s approach to providing security at Mar-a-Lago was “newly developed ” and “it was unclear what if any record systems or record groupings might exist in regard to who visited the President at Mar-a-Lago or where such record systems or record groupings might be located ” Campbell Decl ¶ 9 The Secret Service maintains that the ensuing search resulted in only one “arguably responsive” document that is “not duplicative of information previously made public by the White House” id at ¶ 14 and that the search also confirmed that “there is no Secret Service system that controls access to Mar-a-Lago nor is there any grouping listing or set of records that would reflect Presidential visitors to Mar-a-Lago” id at ¶ 11 The Secret Service has provided an affidavit detailing its search for responsive records Early on in its search the Secret Service identified three offices as potentially holding responsive documents the Office of Strategic Intelligence and Information SII which oversees the Protective Intelligence Division PID 40 A-167 Case 18-2814 Document 40 01 07 2019 2469015 Page172 of 205 Case 1 17-cv-02542-KPF Document 61 Filed 07 26 18 Page 41 of 70 This office conducts background checks pursuant to a sensitive security program the Office of Investigations INV which oversees the Miami Field Office FO and the West Palm Beach Resident Office RO These offices would most likely have involvement in President Trump’s visits to Mar-a-Lago as they are geographically located in proximity to Mar-a-Lago and the Office of Protective Operations OPO which oversees the Presidential Protective Division PPD This is the division with direct operational responsibility for the protection of the President of the United States including when the President is at Mar-a-Lago Campbell Decl ¶ 16 A search of the first office resulted in no responsive documents while a search of each of the latter two offices indicated “that an individual visited with the President at Mar-a-Lago during the time period January 20 to March 8 2017” any “potentially responsive documents” proceeded to “further responsiveness review ” Id at ¶¶ 17-19 Separately the Office of the Chief Information Officer “CIO” searched the email accounts of employees within the PPD Dignitary Protective Division as well as the Miami FO and West Palm Beach RO Campbell Decl ¶ 20 The CIO carried out this search by applying a series of search terms to the body subject line or attachment of any email for the period January 20 to March 8 2017 contained in a database of any emails “sent received or deleted by all Secret Service employees including during the time period at issue in this case ” Id Any responsive emails proceeded to “further responsiveness review ” Id 18 18 The search terms consisted of the following 41 A-168 Case 18-2814 Document 40 01 07 2019 2469015 Page173 of 205 Case 1 17-cv-02542-KPF Document 61 Filed 07 26 18 Page 42 of 70 All responsive records from these searches were aggregated and any duplicate emails were electronically removed leaving “ o ver four thousand e-mails and documents” for further responsiveness review Campbell Decl ¶¶ 21-22 Any materials that were “merely copies of media reports concerning Presidential visits to Mar-a-Lago” were removed “as non-responsive as they were not considered Agency record s of a Presidential visit and were as available to the public as to the Secret Service ” Id at ¶ 23 Further winnowing down the universe of responsive documents the parties agreed “that the Secret Service need not produce records regarding Presidential family members cabinet members and White House staff who were present at Mar-aLago ” as well as “the names of local law enforcement and support personnel scheduled to have their photographs taken with the President ” Id at ¶¶ 24-25 After refining the documents in that manner “the largest remaining category of records” consisted of documents related to Prime Minister Abe’s visit to Mar-a-Lago Campbell Decl ¶ 26 These included “operational records” regarding the Secret Service’s security for the Prime Minister’s visit Id Aside from this category of documents the search yielded “only a handful of records” referring to persons scheduled to meet with the President at MAL OR Mar-a-Lago OR Mar a Lago AND at least one of the following terms guest OR appointment OR visitor OR meet OR meeting OR clear OR cleared OR sweep OR swept OR checkpoint OR check point OR check OR abbreviation for sensitive security program OR background Campbell Decl ¶ 20 brackets and emphases in original 42 A-169 Case 18-2814 Document 40 01 07 2019 2469015 Page174 of 205 Case 1 17-cv-02542-KPF Document 61 Filed 07 26 18 Page 43 of 70 Mar-a-Lago Id at ¶ 27 The following section considers the content of these records here the Court considers the antecedent issue of the adequacy of the search To prevail on a summary judgment motion in a FOIA case the defending agency bears the burden of establishing the adequacy of its search and it may satisfy this burden by submitting “ a ffidavits or declarations supplying facts indicating that the agency has conducted a thorough search ” Long v Office of Pers Mgmt 692 F 3d 185 190-91 2d Cir 2012 quoting Carney v U S Dep’t of Justice 19 F 3d 807 812 2d Cir 1994 Agency affidavits are presumed to be made in “good faith ” but must show that the agency’s search was “‘reasonably calculated’ to produce documents responsive to the FOIA request ” Seife v U S Dep’t of State 298 F Supp 3d 592 607 S D N Y 2018 quoting Garcia v U S Dep’t of Justice Office of Info and Privacy 181 F Supp 2d 356 366 S D N Y 2002 “The adequacy of a search is not measured by its results but rather by its methods ” and therefore “a search is not inadequate merely because it does not identify all responsive records ” N Y Times Co v U S Dep’t of Justice 756 F 3d 100 123-24 2d Cir opinion amended on denial of reh’g 758 F 3d 436 2d Cir 2014 supplemented 762 F 3d 233 2d Cir 2014 Based on the affidavit provided by the Secret Service the Court finds the search adequate Because the Secret Service had not established a formal recordkeeping system at the time of Plaintiffs’ FOIA request the search began by identifying the offices that could potentially possess responsive documents 43 A-170 Case 18-2814 Document 40 01 07 2019 2469015 Page175 of 205 Case 1 17-cv-02542-KPF Document 61 Filed 07 26 18 Page 44 of 70 Plaintiffs’ argument that Defendants’ search was inadequate because the affidavit detailing the search failed to “explain why it was reasonable to look only at records from specific components of” the SII INV OPO Pl Opp 24 is simply wrong because the affidavit provides such explanations The PID under the auspices of the SII “conducts background checks pursuant to a sensitive security program” the Miami FO and West Palm Beach RO which are overseen by the INV “would most likely have involvement in President Trump’s visits to Mar-a-Lago as they are geographically located in proximity to Mar-aLago” and the PPD which the OPO oversees has “direct operational responsibility for the protection of the President … including when the President is at Mar-a-Lago ” Campbell Decl ¶ 16 These details easily distinguish this case from those on which Plaintiffs rely Cf Aguiar v Drug Enf’t Admin 865 F 3d 730 739 D C Cir 2017 holding agency search inadequate where declarations describing search did “not explain why the only reasonable place to look for” requested materials was in one record system Rodriguez v Dep’t of Def 236 F Supp 3d 26 36-37 D D C 2017 denying summary judgment where court could not “fathom any legitimate reason for the location limitation” that agency imposed on its search And in addition to the paper and electronic records that the Secret Service searched within these offices it also searched emails through the CIO The Court finds these efforts as a whole to be reasonably calculated to identify any responsive documents Plaintiffs’ second line of argument contends that the search terms that the Secret Service utilized were underinclusive in that they did not contain 44 A-171 Case 18-2814 Document 40 01 07 2019 2469015 Page176 of 205 Case 1 17-cv-02542-KPF Document 61 Filed 07 26 18 Page 45 of 70 certain terms that Plaintiffs would have included and also failed to include variants of certain terms that effectively narrowed the search See Pl Opp 25-26 Yet this challenge amounts to precisely the sort of nit-picking that courts have rejected in the FOIA context An agency’s “burden is to show that its search efforts were reasonable and logically organized to uncover relevant documents it need not knock down every search design advanced by every requester ” DiBacco v U S Army 795 F 3d 178 191-92 D C Cir 2015 citing SafeCard Servs Inc v SEC 926 F 2d 1197 1201 D C Cir 1991 see also Liberation Newspaper v U S Dep’t of State 80 F Supp 3d 137 146-47 D D C 2015 “Where the search terms are reasonably calculated to lead to responsive documents the Court should not ‘micro manage’ the agency’s search ” citing Johnson v Exec Office for U S Attorneys 310 F 3d 771 776 D C Cir 2002 The Secret Service’s search terms here were reasonably calculated to identify records responsive to Plaintiffs’ FOIA request and the Court will not second-guess the formulation of those terms Finally Plaintiffs contend that media reports indicate that Defendants’ search should have yielded more results with respect to presidential visitors at Mar-a-Lago See Pl Opp 26-28 But this too is a line of reasoning that courts have rejected Even assuming the accuracy of the reports to which Plaintiffs cite as mentioned above the proxy for the adequacy of an agency’s search is its methodology not its results See N Y Times Co 756 F 3d at 123-24 The Court therefore refuses to find the search at bar inadequate based on Plaintiffs’ supposition as to what the search should have produced 45 A-172 Case 18-2814 Document 40 01 07 2019 2469015 Page177 of 205 Case 1 17-cv-02542-KPF Document 61 Filed 07 26 18 Page 46 of 70 Because the Court finds the Secret Service’s selection of offices along with the CIO email database and the search terms employed to be reasonable the Court awards Defendants summary judgment as to Plaintiffs’ claim that the search at issue was inadequate b The Propriety of Defendants’ Withholdings In response to Plaintiffs’ request for documents related to presidential visits at Mar-a-Lago Defendants located a variety of documents none of which is contained in formal recordkeeping systems comparable to the WAVES or EFACS systems and the vast majority of which Defendants maintain are not subject to disclosure under FOIA In fact Defendants considered only one such document to be responsive to Plaintiffs’ FOIA request — an email from the State Department to the White House Office and forwarded to the Secret Service listing individuals who would accompany the Japanese Prime Minister to Mar-a-Lago Def Br 10-11 19 Defendants withheld the remainder of the documents maintaining that they were either i “Presidential schedules or information directly relating to Presidential schedules” provided from the White 19 More specifically the Secret Service describes the email as an e-mail from the Department of State Office of the Chief of Protocol that was sent to the White House Office and forwarded to the Secret Service providing a listing of the names of individuals and their titles or job responsibilities who would be accompanying the Prime Minister of Japan and his wife during their visit to Mar-a-Lago Campbell Decl ¶ 28 xii Within this document the Secret Service withheld “the name and email address of one EOP employee and the names certain e-mail addresses and one cell phone number of non-visitor third parties ” Campbell Decl ¶ 37 In support of this withholding the Secret Service invokes FOIA exemptions 6 for protection of “personal privacy ” 5 U S C § 552 b 6 and 7 C for protection of “records or information compiled for law enforcement purposes ” § 552 b 7 C See Def Br 27-28 Plaintiffs’ opposition brief does not challenge this withholding 46 A-173 Case 18-2814 Document 40 01 07 2019 2469015 Page178 of 205 Case 1 17-cv-02542-KPF Document 61 Filed 07 26 18 Page 47 of 70 House to the Secret Service “for the limited purpose of providing information necessary for the Secret Service to perform its statutory duty to protect the President” and thus not agency records under FOIA 20 or ii “operational materials that merely contain a repeated statement that the Prime Minister of Japan and his spouse would be meeting dining or present with the President and First Lady at Mar-a-Lago which had already been publicly released by the White House ” which Defendants consider “non-responsive because they are not records of Presidential visitors at Mar-a-Lago ” Id at 11 21 20 These documents consist of the following i three White House documents received from the White House Office titled “Official Travel Schedule the Visit of the President to Palm Beach Fl ” for the dates of February 10 2017 February 11 2017 and February 12 2017 respectively … ii a White House document received from the White House Office titled “Schedule of the President Sunday February 21 2017 ” iii an e-mail from the White House Office containing the President’s schedule for February 10 2017 iv an e-mail from the White House Office containing the White House Chief of Staff’s Schedule which includes an entry referring to the President’s dinner with the Prime Minister of Japan at Mar-a-Lago on February 10 2017 v two Secret Service e-mails containing the President’s schedules for February 10 2017 and February 11 2017 respectively obtained from the White House Office and vi three e-mails from the White House Office to the Presidential Protective Division each providing specific information concerning the arrival of an individual who was scheduled to meet with the President on February 12 or February 19 and the person s accompanying the individual Campbell Decl ¶¶ 28 i - vi 21 These documents consist of the following i a Secret Service email containing a “Final Intelligence Situation Report for the visit of President Donald J Trump to Palm Beach FL” from February 10-21 2017 containing the statement that the President and First Lady are traveling to Palm Beach FL to host the Prime Minister of Japan ii a Secret Service intelligence assessment titled “Foreign Dignitary Assessment — Japan ” prepared by the Secret Service’s 47 A-174 Case 18-2814 Document 40 01 07 2019 2469015 Page179 of 205 Case 1 17-cv-02542-KPF Document 61 Filed 07 26 18 Page 48 of 70 As with the WAVES and ACR records considered above the parties do not dispute that the Secret Service obtained these records Whether they qualify as agency records subject to FOIA therefore depends on the extent to which the Secret Service as opposed to the White House exerted control over them Tax Analysts II 492 U S at 144-45 or whether special policy considerations necessitate removing such documents from FOIA’s scope Judicial Watch 726 F 3d at 220-21 The Court considers Defendants’ categorical withholdings in turn Protective Intelligence Division for the visit of Prime Minister Abe containing the statement that the Prime Minister will meet with the President at Mar-a-Lago iii a letter from the Secret Service to the Federal Bureau of Investigation FBI advising that the President and First Lady would be visiting the FBI’s West Palm Beach Resident Office district on February 10-12 2017 and noting that the Prime Minister of Japan and Spouse will stay as guests of President Trump at the Mar-a-Lago Club iv a Secret Service document titled “Special Operations Division SOD Joint Tactical Survey” for the visit of President Donald Trump and family to Palm Beach Florida February 10-12 2017 containing two references to the fact that the President will be hosting and meeting with the Prime Minister of Japan and Spouse at Mar-a-Lago and v seven internal Secret Service e-mails containing or forwarding Secret Service operational scheduling reporting or Presidential or other event information including Presidential scheduling information obtained from the White House Office and each containing a notation that the Prime Minister of Japan would be meeting or dining with the President at Mar-a-Lago Herndon Decl ¶¶ 28 vii - xi 48 A-175 Case 18-2814 Document 40 01 07 2019 2469015 Page180 of 205 Case 1 17-cv-02542-KPF Document 61 Filed 07 26 18 Page 49 of 70 i The Presidential Schedule Documents Defendants refer to the first category of withheld documents as “Presidential Schedule Documents ” Def Br 20-23 The Court understands by way of background that a member of the White House transmits the Presidential Schedule Documents to the Secret Service on a nightly basis by “upload ing the schedule to an EOP web portal ” which generates an automated email to certain members of the Secret Service Murray Decl ¶ 22 The White House provides access to the web portal and the automated emails to “a limited number of Secret Service personnel with an operational need to know the scheduling information ” Id To acquire this privilege a Secret Service member must request the access from the White House and obtain approval Id at ¶ 23 Secret Service members who receive the Presidential Schedule Documents utilize the records “solely to fulfill their operational needs ” and the White House similarly provides these records “solely for the limited purpose of allowing the Secret Service to perform its statutory duty to protect the President Vice President and other protectees as well as the White House Complex ” Id at ¶ 24 Defendants urge the Court to extend the rationale behind Judicial Watch to encompass these documents thereby moving them outside of FOIA’s scope for failing to qualify as agency records The Court agrees with Defendants’ position The considerations that render FOIA inapplicable to WAVES and ACR records apply with equal force to the Presidential Schedule Documents The White House’s intent to control these documents is apparent from its selective 49 A-176 Case 18-2814 Document 40 01 07 2019 2469015 Page181 of 205 Case 1 17-cv-02542-KPF Document 61 Filed 07 26 18 Page 50 of 70 disclosure only to approved Secret Service members Moreover these handpicked Secret Service members had no part in creating the documents but only passively received them from the White House To be sure the Court does not read the 2015 MOU along with its requirements for the use and disposal of WAVES and ACR records as applying to the Presidential Schedule Documents and Defendants do not so contend Nor does the Court doubt that the Secret Service members who receive these documents rely on them to carry out their statutory duty to protect the President See Murray Decl ¶ 22 “The Secret Service relies on information regarding the President’s schedule that is provided by the White House Office to fulfill its protective mission ” But these differences do not assuage the Court’s concerns that exposing these documents to disclosure under FOIA would produce the same problems as applying FOIA to WAVES and ACR records Further the same separation-of-powers concerns that animated Judicial Watch apply here Just as “the Secret Service must monitor and control access to the building in which the President lives and works ” which “requires presidential staff to request access from the Secret Service for visitors ” Judicial Watch 726 F 3d at 225 “ t he Secret Service uses the Presidential S chedule D ocuments … solely to fulfill its operational needs” Murray Decl ¶ 2p In one sense subjecting the Presidential Schedule Documents to FOIA would intrude more deeply into the Office of the President than doing so for WAVES and ACR records whereas the latter would allow “a FOIA requester 50 A-177 Case 18-2814 Document 40 01 07 2019 2469015 Page182 of 205 Case 1 17-cv-02542-KPF Document 61 Filed 07 26 18 Page 51 of 70 effectively to receive copies of the President’s calendars ” Judicial Watch 726 F 3d at 225 emphasis added the former would provide direct access to these calendars in their original forms In removing the Office of the President from FOIA’s scope Congress surely did not “intend to require the effective disclosure of the President’s calendars in this roundabout way ” Judicial Watch 726 F 3d at 225 The Presidential Schedule Documents also track the definition of “presidential records” in the PRA even more closely than WAVES and ACR records They are “documentary materials … created … by the President the President’s immediate staff or a unit or individual of the EOP whose function is to advise or assist the President in the course of conducting activities which relate to” the President’s “official or ceremonial duties ” 44 U S C § 2201 2 And by providing them to the Secret Service like WAVES and ACR records “they are essential to ensuring that the President can go about these core activities without risking his security or that of his family and staff ” Judicial Watch 726 F 3d at 228 Plaintiffs counter that adopting Defendants’ position would create an “unsustainable rule that documents that merely relate to information about the president’s schedule are also as a matter of law beyond FOIA’s reach ” Pl Opp 29 This argument is a straw man The Court’s holding is limited to the documents at issue consisting of correspondence detailing the President’s daily schedule that was transmitted from the White House to a select set of Secret Service members It does not speak to or even anticipate a broader set 51 A-178 Case 18-2814 Document 40 01 07 2019 2469015 Page183 of 205 Case 1 17-cv-02542-KPF Document 61 Filed 07 26 18 Page 52 of 70 of documents than those presented here The Presidential Schedule Documents are not agency records subject to FOIA and Defendants properly withheld them ii The Operational Records The Court next considers Defendants withholding of “a small number of operational records related to the Japanese Prime Minister’s visit that also referred to the fact that the Prime Minister and his spouse were scheduled to meet or dine with the President and First Lady at Mar-a-Lago ” Def Br 29 Defendants maintain that “ t he only arguably responsive information in these documents is the statement repeated in each document that the Prime Minister of Japan and his spouse would be meeting dining or present with the President at Mar-a-Lago ” Id Thus Defendants argue they were not required to disclose these records “only to release a minute amount of already public information” that “is also duplicative of the information contained in the State Department email released to P laintiffs ” Id Defendants’ position however does not have a basis in FOIA That the responsive material contained in these documents is relatively slim is of no moment Information that would be valuable in public discourse may be expansive or contracted in either case FOIA expressly provides that “ a ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt ” 5 U S C § 552 b Nor may the Government withhold production of records simply because they are publicly available by other means “If Congress had 52 A-179 Case 18-2814 Document 40 01 07 2019 2469015 Page184 of 205 Case 1 17-cv-02542-KPF Document 61 Filed 07 26 18 Page 53 of 70 wished to codify an exemption for all publicly available materials it knew perfectly well how to do so ” Tax Analysts II 492 U S at 152-53 And although an agency need not “produce multiple copies of the exact same document ” an agency may not withhold documents based on the fact that the documents merely contain similar statements Defs of Wildlife v U S Dep’t of Interior 314 F Supp 2d 1 10 D D C 2004 Defendants therefore have improperly withheld the operational records and must disclose these materials — subject as always to any applicable FOIA exemptions C Defendants’ Motion to Dismiss Plaintiffs’ APA Claims Based on the FRA and PRA Is Granted The Court next considers Defendants’ motion to dismiss Plaintiffs’ APA claims that seek judicial review under the FRA and PRA of the 2015 MOU Specifically Claim Three alleges that the EOP “enter ed 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 ” which violated the EOP’s “mandatory nondiscretionary obligation under the FRA and the PRA to treat WAVES and ACR records as agency records of DHS subject to the FOIA ” Am Compl ¶ 63 Similarly Claim Four alleges that by entering the same MOU “DHS violated its mandatory non-discretionary obligation under the FRA to treat and manage these records as agency records of DHS subject to FOIA ” Id at ¶ 67 Defendants seek dismissal of these claims for lack of subject matter jurisdiction and failure to state a claim In addressing Defendants’ motions the Court first summarizes the law relevant to Plaintiffs’ claims based on the FRA 53 A-180 Case 18-2814 Document 40 01 07 2019 2469015 Page185 of 205 Case 1 17-cv-02542-KPF Document 61 Filed 07 26 18 Page 54 of 70 and PRA It then considers the specifics of Defendants’ motion Because the Court grants Defendants’ motion on jurisdictional grounds it does not — as it may not without a proper jurisdictional basis — consider Defendants’ motion to dismiss for failure to state a claim 1 Applicable Law “A case is properly dismissed for lack of subject matter jurisdiction under Rule 12 b 1 when the district court lacks the statutory or constitutional power to adjudicate it ” Lyons v Litton Loan Servicing LP 158 F Supp 3d 211 218 S D N Y 2016 quoting Makarova v United States 201 F 3d 110 113 2d Cir 2000 In resolving a Rule 12 b 1 motion “the district court must take all uncontroverted facts in the complaint as true and draw all reasonable inferences in favor of the party asserting jurisdiction ” Fountain v Karim 838 F 3d 129 134 2d Cir 2016 quoting Tandon v Captain’s Cove Marina of Bridgeport Inc 752 F 3d 239 243 2d Cir 2014 “A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists ” Id quoting Makarova 201 F 3d at 113 2 The FRA and the PRA As with the FOIA claims in this case the parties’ briefing on these claims focuses on cases from the D C Circuit see Def Br 30-35 Pl Opp 32-35 and the Court’s independent research confirms that courts within the D C Circuit to the near exclusion of any others provide the little case law that illuminates the statutes at issue Two D C Circuit cases in particular provide a framework for evaluating the justiciability of Plaintiffs’ claims Armstrong v Bush 54 A-181 Case 18-2814 Document 40 01 07 2019 2469015 Page186 of 205 Case 1 17-cv-02542-KPF Document 61 Filed 07 26 18 Page 55 of 70 “Armstrong I” 924 F 2d 282 D C Cir 1991 and Armstrong v Executive Office of the President Office of Administration “Armstrong II” 1 F 3d 1274 D C Cir 1993 per curiam Given the dearth of binding case law on the issues presented by Plaintiffs’ claims along with the lack of any dispute by the parties as to the persuasive value of these cases the Court shall adopt the analytical structure that these cases provide for the purpose of ruling on Defendants’ motion a General Statutory Schemes The FRA is composed of a collection of statutes that govern the creation management and disposal of records held by agencies of the federal government See 44 U S C §§ 2102-2118 2901-2910 3101-3107 3301-3324 Armstrong I 924 F 2d at 284 n 1 The FRA requires the head of every federal agency to “make and preserve records containing adequate and proper documentation of the organization functions policies decisions procedures and essential transactions of the agency ” 44 U S C § 3101 Under the FRA agency heads must also establish “an active continuing program for the economical and efficient management of the records of the agency” and “safeguards against the removal or loss of records ” Id §§ 3102 3015 “No records may be ‘alienated or destroyed’ except pursuant to the disposal provisions of the FRA ” Armstrong I 924 F 2d at 285 quoting 44 U S C § 3314 Under the FRA the Archivist of the United States is directed to further the mission of these agency heads by assisting agencies in proper record 55 A-182 Case 18-2814 Document 40 01 07 2019 2469015 Page187 of 205 Case 1 17-cv-02542-KPF Document 61 Filed 07 26 18 Page 56 of 70 disposition issuing “standards procedures and guidelines” regarding record management and evaluating the records and recordkeeping systems and practices of the federal agencies See 44 U S C §§ 2904 a 2904 c 1 If the Archivist discovers any FRA violations by an agency he or she must first notify the offending agency and recommend a curative measure See id § 2115 b If the agency fails to cure the violation in a timely and satisfactory manner the Archivist must report the issue to the President and Congress See id The Archivist’s role in enforcing the FRA also entails if the Archivist learns of any “actual impending or threatened unlawful removal defacing alteration or destruction of records in the custody of an agency ” to “notify the agency head of the problem and assist the agency head in initiating an action through the Attorney General for the recovery of wrongfully removed records or for other legal redress ” Armstrong II 1 F 3d at 1280 alteration in original quoting § 2905 a If the agency head fails to seek legal recourse the Archivist must request that the Attorney General take such action and notify Congress of the request Id citing § 2905 a In contrast to the FRA the PRA governs the maintenance and disposal of “Presidential records ” 44 U S C § 2201 2 In enacting the PRA “Congress sought to establish the public ownership of presidential records and ensure the preservation of presidential records” while “minimiz ing outside interference with the day-to-day operations of the President and his closest advisors and” ensuring “executive branch control over presidential records during the President’s term in office ” Armstrong I 924 F 2d at 290 In furtherance of the 56 A-183 Case 18-2814 Document 40 01 07 2019 2469015 Page188 of 205 Case 1 17-cv-02542-KPF Document 61 Filed 07 26 18 Page 57 of 70 former goal the PRA requires the President to “take all … steps as may be necessary to assure that the activities deliberations decisions and policies that reflect the performance of the President’s constitutional statutory or other official or ceremonial duties are adequately documented and that such records are preserved and maintained as Presidential records ” 44 U S C § 2203 The PRA imposes document retention requirements that differ depending on whether a President is currently in office While in office “the President may dispose of those Presidential records … that no longer have administrative historical informational or evidentiary value ” 44 U S C § 2203 c “If the Archivist thinks it advisable he may notify Congress of the President’s intent to dispose of the records and if the Archivist notifies Congress the President must submit the disposal schedules to the appropriate congressional committees and wait sixty days before destroying the records ” Armstrong I 924 F 2d at 286 citing 44 U S C § 2203 c - d But “neither the Archivist nor the Congress has authority to veto the President’s decision to destroy the records ” Id After the President has left office however the Archivist assumes control over the presidential records and after notifying the Federal Register may dispose of records with “insufficient administrative historical informational or evidentiary value to warrant their continued preservation ” 44 U S C § 2203 g 1 4 57 A-184 Case 18-2814 Document 40 01 07 2019 2469015 Page189 of 205 Case 1 17-cv-02542-KPF Document 61 Filed 07 26 18 Page 58 of 70 b Availability of Judicial Review Courts have recognized that neither the FRA nor the PRA — of their own force — affords a private right of action See Kissinger 445 U S at 148-50 “Congress has not vested federal courts with jurisdiction to adjudicate violations of the FRA upon suit by a private party ” Competitive Enter Inst v Office of Sci Tech Policy 827 F 3d 145 147 D C Cir 2016 “ N either the FRA nor the Records Disposal Act contemplate a private right of action for access to or recovery of federal records ” Citizens for Responsibility Ethics in Washington v Trump No 17 Civ 1228 CRC 2018 WL 1401271 at 7 D D C Mar 20 2018 “The PRA does not itself provide” a cause of action citing Judicial Watch Inc v NARA 845 F Supp 2d 288 299 n 5 D D C 2012 Citizens for Responsibility Ethics in Wash v Cheney 593 F Supp 2d 194 218 D D C 2009 Yet the D C Circuit has recognized that federal courts have jurisdiction to engage in limited review under the APA of agency compliance with the FRA 22 Armstrong I held that a private plaintiff may seek review under the APA of an agency’s “recordkeeping guidelines and directives ” in order to determine whether they “are inadequate because they permit the destruction of ‘records’ that must be preserved under the FRA ” 924 F 2d at 291 Conversely the 22 The APA does not provide an independent basis of federal jurisdiction but “waives the federal government’s sovereign immunity in actions” invoking federal question jurisdiction Lunny v United States 319 F 3d 550 557-58 2d Cir 2003 As relevant to the D C Circuit’s analysis of the FRA “ a court’s jurisdiction to enforce the APA is limited … when a statute ‘preclude s judicial review ’ or the agency decision being challenged ‘is committed to agency discretion by law ’” Kilani-Hewitt v Bukszpan 130 F Supp 3d 858 862-63 S D N Y 2015 quoting 5 U S C § 701 a 1 2 58 A-185 Case 18-2814 Document 40 01 07 2019 2469015 Page190 of 205 Case 1 17-cv-02542-KPF Document 61 Filed 07 26 18 Page 59 of 70 Court held that the FRA “preclud es private litigants from suing directly to enjoin agency actions in contravention of agency guidelines ” as the FRA’s statutory scheme saved this responsibility for administrative enforcement through a request by the agency head or Archivist to the Attorney General Id at 294-95 23 In addition the Court held that the FRA precludes judicial review of actions “to prevent an agency official from improperly destroying or removing records ” as this too would contravene the FRA’s enforcement scheme Id at 294 The D C Circuit has recognized even more limited judicial review of compliance with the PRA In Armstrong I the Court held that “ t he APA does not authorize judicial review of the President’s compliance with the PRA because the President is not an ‘agency’ within the meaning of the APA and because the PRA precludes judicial review of the President’s record creation and management decisions ” 924 F 2d at 297 emphasis added In Armstrong II however it clarified that “the PRA allows limited review to assure that guidelines defining presidential records do not improperly sweep in nonpresidential records ” 1 F 3d at 1278 emphasis added The Court reasoned that “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 23 The court noted however that this conclusion did not mean to preclude “judicial review of the agency head’s or Archivist’s refusal to seek the initiation of an enforcement action by the Attorney General ” Armstrong I 924 F 2d at 295 59 A-186 Case 18-2814 Document 40 01 07 2019 2469015 Page191 of 205 Case 1 17-cv-02542-KPF Document 61 Filed 07 26 18 Page 60 of 70 FOIA would be shielded from its provisions whether wittingly or unwittingly if they were managed as presidential records ” Id at 1293 The Armstrong II Court distinguished “creation management and disposal decisions ” which are not subject to judicial review from “the initial classification of materials as presidential records ” which is subject to judicial review 1 F 3d at 1294 It further clarified that a “creation” decision refers to the determination to make a record documenting presidential activities Thus the courts may not review any decisions regarding whether to create a documentary presidential record “Management decisions” describes the day-to-day process by which presidential records are maintained The courts may likewise not review these particulars of the presidential records management system Finally “disposal decisions” describes the process outlined in the PRA for disposing of presidential records Judicial review of the President’s action under these provisions is also unavailable But guidelines describing which existing materials will be treated as presidential records in the first place are subject to judicial review Id at 1294 internal citations omitted In sum “although the PRA impliedly precludes judicial review of the President’s decisions concerning the creation management and disposal of presidential records during his term in in office the courts may review guidelines outlining what is and what is not a ‘presidential record ’” Id internal citation omitted The parties agree these cases afford limited judicial review of agency recordkeeping guidelines categorizing records under the FRA and PRA See Def Br 31 34 Pl Opp 33 But they dispute whether Plaintiffs’ claims are based on a guideline that the Court may review for compliance with the FRA or 60 A-187 Case 18-2814 Document 40 01 07 2019 2469015 Page192 of 205 Case 1 17-cv-02542-KPF Document 61 Filed 07 26 18 Page 61 of 70 PRA As the following section explains the Court holds that Plaintiffs fail to allege such a guideline which leaves the Court without subject matter jurisdiction over these claims 3 The Complaint Does Not Allege a Guideline That Is Subject to Judicial Review for Compliance with the FRA or PRA a Plaintiffs’ Claims Are Premised Only on the 2015 MOU The Court begins by determining which MOU forms the basis of Plaintiffs’ claims Plaintiffs’ opposition brief urges the Court to review Defendants’ “functional classification of WAVES and ACR records as presidential records” pursuant to the terms of both the 2006 and 2015 MOUs Pl Opp 34 but the operative complaint makes no mention of the 2006 MOU Indeed the only citation to any MOU in the Amended Complaint reads as follows In its opposition to a motion for a temporary restraining order filed in this case the Secret Service relied in part on a 2015 Memorandum of Understanding “MOU” that on information and belief has never before been made public That MOU 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 exclusive ownership control and custody of the President Vice President or originating EOP component ” The Secret Service has interpreted this provision as applying to all the records at issue in a separate lawsuit Am Compl ¶ 50 As mentioned above the claims at issue go on to reference this provision of the 2015 MOU as violating the EOP’s “obligation under the FRA and the PRA to treat records of presidential visitors as agency records of 61 A-188 Case 18-2814 Document 40 01 07 2019 2469015 Page193 of 205 Case 1 17-cv-02542-KPF Document 61 Filed 07 26 18 Page 62 of 70 DHS subject to FOIA” id at ¶ 63 and violating DHS’s “obligation under the FRA to treat and manage these records as agency records of DHS subject to the FOIA” id at ¶ 67 The operative complaint thus does not reference the 2006 MOU The Court recognizes that it may refer to evidence outside of the pleadings in ruling on a motion to dismiss for lack of subject matter jurisdiction to resolve factual disputes on which subject matter jurisdiction depends See Zappia Middle E Const Co Ltd v Emirate of Abu Dhabi 215 F 3d 247 253 2d Cir 2000 But where as here a defendant mounts a facial challenge to jurisdiction — i e a Rule 12 b 1 motion “based solely on the allegations of the complaint” — the district court’s “task … is to determine whether the p leading ‘allege s facts that affirmatively and plausibly suggest’” that it has jurisdiction Carter v HealthPort Techs LLC 822 F 3d 47 56 2d Cir 2016 last alteration in original quoting Amidax Trading Grp v S W I F T SCRL 671 F 3d 140 145 2d Cir 2011 Nor can Plaintiffs inject the 2006 MOU into their pleading by way of their opposition brief as this would constitute an improper amendment of their complaint See Wright v Ernst Young LLP 152 F 3d 169 178 2d Cir 1998 The Court will thus confine its analysis to the language above from the 2015 MOU b The FRA and PRA Preclude the Court’s Review of the 2015 MOU The excerpted language of the 2015 MOU on which Plaintiffs’ claims are premised is not the sort of guideline or directive that courts have reviewed for compliance with either the FRA or the PRA In Armstrong II for instance the 62 A-189 Case 18-2814 Document 40 01 07 2019 2469015 Page194 of 205 Case 1 17-cv-02542-KPF Document 61 Filed 07 26 18 Page 63 of 70 D C Circuit found reviewable for compliance with the FRA instructions from the EOP and National Security Council “NSC” to employees “that when any electronic document meets the definition of a federal record the employee should either print out the information that appears on her computer screen or incorporate that material into a written memorandum ” 1 F 3d at 1282 emphasis added The Court held that this guidance did not comply with the FRA because the hard-copy printouts of the records could omit information that formed “an integral part of the original electronic records ” Id at 1278 This outcome accords with the directive announced in Armstrong I of limiting judicial review under the FRA to guidelines that would permit the improper destruction of records that should otherwise be preserved See 924 F 2d at 291 see also e g Competitive Enter Inst v U S Envtl Prot Agency 67 F Supp 3d 23 33 D D C 2014 holding alleged policy of deleting text messages constituting federal records was subject to judicial review Citizens for Responsibility and Ethics in Wash v Exec Office of the President 587 F Supp 2d 48 53 56-58 D D C 2008 holding that Automated Records Management System was subject to judicial review where it “‘automatically captured preserved and categorized all e-mail sent through the White House e-mail system ’ and separately segregated categorized and archived records subject to FRA and those subject to” PRA As to examples of guidelines subject to review for compliance with the PRA Armstrong II is illuminative That Court considered an EOP policy that “classif ied broad categories of NSC records as federal records ” and declared 63 A-190 Case 18-2814 Document 40 01 07 2019 2469015 Page195 of 205 Case 1 17-cv-02542-KPF Document 61 Filed 07 26 18 Page 64 of 70 that such records “are p residential records if they were received or created for the President ” or certain other White House members thus imposing a definition of “presidential records” not based on the definition found in the PRA 1 F 3d at 1291 To avoid confusion the Court provided a hyperbolic example of a guideline that would surely be reviewable as covering an initial classification of documents as presidential records — “a guideline defining ‘presidential records’ as ‘all records produced or received by or in the possession or under the control of any government agency or employee of the United States ’” Id at 1293 As these examples make clear judicial review for compliance with the PRA extends only to guidelines that categorize materials as presidential records such that by doing so an agency may run afoul of the PRA’s definition of “presidential records” and thus treat records as presidential when they would otherwise fall within the FRA See also e g Cheney 593 F Supp 2d at 201 216 subjecting to judicial review i executive order providing that PRA “applies to the executive records of the Vice President ” and ii policy under which Vice President EOP and Office of Vice President indicated they were “not part of the executive branch” to avoid record preservation under the PRA Am Historical Ass’n v Peterson 876 F Supp 1300 1313-18 D D C 1995 holding alleged agreement between former president and former national archivist was subject to judicial review for compliance with PRA where it provided that certain presidential records as defined under PRA would be subject to president’s control after leaving office 64 A-191 Case 18-2814 Document 40 01 07 2019 2469015 Page196 of 205 Case 1 17-cv-02542-KPF Document 61 Filed 07 26 18 Page 65 of 70 Here Plaintiffs’ claims under the FRA and PRA do not contain a sufficient factual basis for the Court’s review The portion of the 2015 MOU excerpted in the Amended Complaint simply states the understanding of the parties to the MOU that certain records “shall remain under the exclusive ownership control and custody of the President Vice President or originating EOP component ” This section of the MOU thus does not command recordkeeping practices that could result in improper disposal under the FRA cf Armstrong II 1 F 3d at 1282 “encompass the initial classification of materials as presidential records ” id at 1294 or constitute the functional equivalent of such impermissible steps As to judicial review for compliance with the FRA Plaintiffs “challeng e the Secret Service’s failure to treat the WAVES and ACR records as agency records under the FRA ” by transferring those records to the WHORM rather than retaining them Pl Opp 34 But this practice rather than constituting a reviewable guideline is precisely the sort of claim that the FRA as interpreted by the Supreme Court has precluded courts from reviewing As the Kissinger Court noted “‘the FRA establishes only one remedy for the improper removal of a ‘record’ from the agency’ the agency head in conjunction with the Archivist is required to request the Attorney General to initiate an action to recover records unlawfully removed from the agency ” Armstrong I 924 F 2d at 294 quoting Kissinger 445 U S at 148 Nor do Plaintiffs bring a claim seeking review of an agency head’s or the Archivist’s 65 A-192 Case 18-2814 Document 40 01 07 2019 2469015 Page197 of 205 Case 1 17-cv-02542-KPF Document 61 Filed 07 26 18 Page 66 of 70 failure to demand enforcement by the Attorney General See Armstrong I 924 F 2d at 295 Plaintiffs’ claims under the PRA similarly fall short Plaintiffs argue that through the 2015 MOU the EOP improperly categorizes WAVES and ACR records as presidential records and that the Court must be able to review this categorization “ t o maintain the integrity of the line Congress drew between agency records … and presidential records ” Pl Opp 34 But the MOU does no such thing By stating that certain documents “shall remain under the exclusive ownership control and custody of the President Vice President or originating EOP component ” the MOU does not “purport to implement the PRA ” Armstrong II 1 F 3d at 1293 Indeed it says nothing of whether the parties understand these records to constitute presidential records and as discussed above the judicial determination of whether material constitutes an agency record under FOIA and is thus exempt from the PRA by its own terms takes into account the drafter’s intent as just one factor among several others See 44 U S C § 2201 2 defining “Presidential records” as excluding agency records as defined by FOIA Rather this portion of the MOU describes which governmental entities will be responsible for such documents on a day-to-day basis Construing this portion of the MOU as a guideline amenable to review for compliance with the PRA would thus muddy the “narrow clearly defined limitation on the scope of the PRA” that restrains courts only to consider “guidelines describing which existing materials will be treated as presidential records in the first place ” Armstrong II 1 F 3d at 1292 1294 66 A-193 Case 18-2814 Document 40 01 07 2019 2469015 Page198 of 205 Case 1 17-cv-02542-KPF Document 61 Filed 07 26 18 Page 67 of 70 For all of these reasons the Court may not review Plaintiffs’ claims premised on the FRA and PRA and Defendants’ motion to dismiss for lack of subject matter jurisdiction is granted D Defendants’ Motion to Dismiss Plaintiffs’ Claim for Declaratory Judgment Is Granted Having determined that Plaintiffs’ claims under the FRA PRA and APA fail and that certain of Plaintiffs’ FOIA claims shall proceed the Court next considers Defendants’ motion to dismiss Plaintiffs’ claims for declaratory judgment The issue depends on whether a federal court may award declaratory judgment based solely on a FOIA claim Plaintiffs do not address the issue aside from stating that “ t his case presents an actual and adversarial issue that entitles Plaintiffs to declaratory relief ” Pl Opp 35 The Declaratory Judgment Act allows a federal court to “declare the rights and other legal relations of any interested party seeking such a declaration” in “a case of actual controversy ” 28 U S C § 2201 a This does not confer a right on the parties to obtain a declaratory judgment however whether to award such relief remains within the discretion of the district court See Fleisher v Phoenix Life Ins Co 858 F Supp 2d 290 301 S D N Y 2012 Apotex Inc v Sanofi-Synthelabo 386 F Supp 2d 549 551 S D N Y 2005 In determining whether to exercise such discretion courts consider “ i whether the judgment will serve a useful purpose in clarifying or settling the legal issues involved and ii whether a judgment would finalize the controversy and offer relief from uncertainty ” Amusement Indus Inc v Stern 693 F Supp 2d 301 311 S D N Y 2010 quoting Duane Reade Inc v St Paul Fire Marine 67 A-194 Case 18-2814 Document 40 01 07 2019 2469015 Page199 of 205 Case 1 17-cv-02542-KPF Document 61 Filed 07 26 18 Page 68 of 70 Ins Co 411 F 3d 384 389 2d Cir 2005 In addition courts may consider whether the party seeking declaratory judgment has available “a better or more effective remedy ” Id quoting Dow Jones Co v Harrods Ltd 346 F 3d 357 359-60 2d Cir 2003 Courts have come to varying conclusions as to the propriety of declaratory relief for FOIA claims One court within the Second Circuit while declining to grant declaratory relief has noted that “in the FOIA context courts have granted declaratory judgment where a plaintiff has shown that an agency engaged in a pattern or practice of delayed disclosure and that it is possible the violations will recur with respect to the same requesters ” Navigators Ins Co v Dep’t of Justice 155 F Supp 3d 157 168 D Conn 2016 collecting cases outside of the Second Circuit Similarly the D C Circuit has declared that “FOIA imposes no limits on courts’ equitable powers in enforcing its terms ” which district courts have interpreted to allow declaratory and injunctive relief Muttitt v U S Cent Command 813 F Supp 2d 221 227-28 D D C 2011 quoting Payne Enters Inc v United States 837 F 2d 486 494 D C Cir 1988 These courts have limited such relief however to circumstances in which bringing an action to enjoin the withholding of records or to compel their production would fail to provide an adequate remedy See e g Isiwele v U S Dep’t of Health Human Servs 85 F Supp 3d 337 352-53 D D C 2015 “ T he ‘comprehensiveness of FOIA’ forecloses any claims purportedly brought also under the APA the Declaratory Judgment Act and the All Writs Act ” 68 A-195 Case 18-2814 Document 40 01 07 2019 2469015 Page200 of 205 Case 1 17-cv-02542-KPF Document 61 Filed 07 26 18 Page 69 of 70 quoting Johnson 310 F 3d at 777 Inst for Policy Studies v C I A 885 F Supp 2d 120 152-53 D D C 2012 holding declaratory relief improper because FOIA provided adequate remedy to address alleged FOIA violations As one court has explained declaratory relief may be appropriate in a FOIA case even after the claim becomes moot either in a challenge to an “isolated agency action” that becomes moot during the litigation because of the agency’s voluntary cessation of wrongful withholding or in a challenge to “an allegedly illegal agency policy and the future implementation of that policy ” Swan View Coalition v Dep’t of Agric 39 F Supp 2d 42 46 D D C 1999 The Court declines to exercise its discretion to entertain a declaratory judgment action here The relief Plaintiffs seek on this front consists of the following i “a declaration that Plaintiff Doyle is entitled to prompt processing and disclosure of the requested records” ii “a declaration that P laintiffs are entitled to expedited processing and disclosure of the requested records” and iii “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 ” Am Compl Request for Relief ¶¶ 2 4 6 The Court effectively disposed of the last of these three requests in its ruling on the merits of Plaintiffs’ FOIA claims And the first two requested declarations would provide no further practical relief than that which Plaintiffs’ FOIA claims seek Cf Isiwele 85 F Supp 3d at 352-53 Nor have Plaintiffs alleged that Defendants engaged in a pattern or practice of flouting FOIA’s requirements See Swan View Coalition 39 F Supp 2d at 46 The 69 A-196 Case 18-2814 Document 40 01 07 2019 2469015 Page201 of 205 Case 1 17-cv-02542-KPF Document 61 Filed 07 26 18 Page 70 of 70 Court thus grants Defendants’ motion to dismiss Plaintiffs’ claims for declaratory relief CONCLUSION For the above reasons Defendants’ motion for summary judgment is GRANTED IN PART and DENIED IN PART and Defendants’ motion to dismiss is GRANTED Within 60 days of the date of this Opinion and Order Defendants are directed to disclose any materials responsive to Plaintiffs’ FOIA surviving FOIA claims and the parties are to provide a joint letter to the Court as to how they wish to proceed SO ORDERED Dated July 26 2018 New York New York __________________________________ KATHERINE POLK FAILLA United States District Judge 70 A-197 Case 18-2814 Document 40 01 07 2019 2469015 Page202 of 205 Case 1 17-cv-02542-KPF Document 63 Filed 09 21 18 Page 1 of 2 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------------------------X KATE DOYLE NATIONAL SECURITY ARCHIVE CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON and KNIGHT FIRST AMENDMENT INSTITUTE AT COLUMBIA UNIVERSITY Plaintiffs v U S DEPARTMENT OF HOMELAND SECURITY and EXECUTIVE OFFICE OF THE PRESIDENT Defendants ----------------------------------------------------- X USDC SDNY DOCUMENT ELECTRONICALLY FILED DOC # _________________ 21 2018 DATE FILED September ______________ 17 Civ 2542 KPF CIVIL JUDGMENT KATHERINE POLK FAILLA District Judge Plaintiffs initiated this action against Defendants after Plaintiffs Doyle unsuccessfully attempted to obtain under the Freedom of Information Act “FOIA” 5 U S C § 552 records related to visitors of President Trump at the White House Complex as well as at his properties at Trump Tower in New York and Mar-a-Lago in Florida On October 23 2017 Defendants moved for summary judgment on Plaintiffs’ FOIA claims and to dismiss the remaining claims for failure to state a claim and lack of subject matter jurisdiction See Dkt #45-51 On July 26 2018 the Court issued an Opinion granting in part and denying in part Defendants’ motion for summary judgment and granting Defendants’ motion to dismiss See Dkt #61 The Court directed A-198 Case 18-2814 Document 40 01 07 2019 2469015 Page203 of 205 Case 1 17-cv-02542-KPF Document 63 Filed 09 21 18 Page 2 of 2 Defendants within 60 days of the Opinion and Order to disclose any material responsive to Plaintiffs’ FOIA requests and to provide a joint status update to the Court as to how they wish to proceed On September 21 2018 the parties submitted a joint status update See Dkt #62 The parties stated that the Defendants had disclosed the responsive material and that no further issues remain for this Court’s resolution Accordingly the parties requested that this Court enter a final judgment in this matter The Court hereby enters judgment The Clerk of Court is directed to terminate all pending motions adjourn all remaining dates and close this case SO ORDERED Dated September 21 2018 New York New York __________________________________ KATHERINE POLK FAILLA United States District Judge 2 A-199 Case 18-2814 Document 40 01 07 2019 2469015 Page204 of 205 Case 1 17-cv-02542-KPF Document 64 Filed 09 24 18 Page 1 of 2 UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK KATE DOYLE NATIONAL SECURITY ARCHIVE CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON AND KNIGHT FIRST AMENDMENT INSTITUTE AT COLUMBIA UNIVERSITY Plaintiffs v U S DEPARTMENT OF HOMELAND SECURITY AND EXECUTIVE OFFICE OF THE PRESIDENT Defendants ____________________________________ Civil No 17-2542 KPF PLAINTIFFS’ NOTICE OF APPEAL Notice is hereby given that all plaintiffs in this case appeal to the United States Court of Appeals for the Second Circuit from this Court’s Order of September 21 2018 ECF No 63 which entered judgment in this matter and its Opinion of July 26 2018 ECF No 61 granting in part and denying in part defendants’ motion for summary judgment and granting defendants’ motion to dismiss Dated September 24 2018 Respectfully submitted s Anne L Weismann Anne L Weismann Conor Shaw Citizens for Responsibility and Ethics in Washington 455 Massachusetts Avenue N W Washington D C 20001 202 408-5565 aweismann@citizensforethics org A-200 Case 18-2814 Document 40 01 07 2019 2469015 Page205 of 205 Case 1 17-cv-02542-KPF Document 64 Filed 09 24 18 Page 2 of 2 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 Counsel for Plaintiffs 2 A-201