Case 1 09-cv-02312-BAH Document 21 Filed 08 17 11 Page 1 of 19 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA JUDICIAL WATCH INC Plaintiff v Civil Action No 09-2312 BAH UNITED STATES SECRET SERVICE Defendant MEMORANDUM OPINION Plaintiff Judicial Watch Inc brought this case to compel Defendant U S Secret Service to respond to a Freedom of Information Act FOIA request The plaintiff's FOIA request sent on August 10 2009 sought all White House visitor logs from the date of President Barack Obama's inauguration January 20 2009 through the present The FOIA generally requires the disclosure upon request of records held by a federal government agency unless the records are protected from disclosure under one of nine FOIA exemptions In this case the defendant has withheld all requested records asserting that while the Secret Service is an executive agency subject to FOIA the documents in question are not agency records subject to FOIA disclosure The plaintiff has moved for partial summary judgment on the issue of whether the requested documents are agency records subject to FOIA The defendant has filed a cross-motion for summary judgment asking the Court to hold that the documents are not subject to FOIA For the reasons discussed below plaintiff's motion for partial summary judgment is granted and the defendant's cross-motion for summary judgment is denied Case 1 09-cv-02312-BAH Document 21 I Filed 08 17 11 Page 2 of 19 BACKGROUND On August 10 2009 Plaintiff Judicial Watch Inc sent a FOIA request to Defendant United States Secret Service seeking access to a ll official visitor logs and or other records concerning visits made to the White House from January 20 2009 to the present Compl 3- 5 The Secret Service responded to Judicial Watch's request with a letter dated October 8 2009 which informed Judicial Watch that the Secret Service interpreted the request to encompass Access Control Records System ACR records and or Workers and Visitors Entry System WAVES records Id 7 These two overlapping sets of records are used by the Secret Service to clear and track visitors to the White House Complex WAVES records consist primarily of information provided to the Secret Service by authorized White House Complex pass holders regarding proposed visitors to the White House Complex Def 's Statement of Mat Facts Not In Dispute Def 's SMF 4 6 The authorized pass holder electronically submits to the Secret Service information such as the identifying information of the visitor including name date of birth and Social Security number the date time and location of the planned visit the name of the staff member submitting the request the name of the person to be visited and the date of the request Id 5 The Secret Service uses this information to perform background checks on the proposed visitors to determine if there are any security concerns and to verify the visitor's admissibility at the time of his or her visit Id 7 Once an individual is cleared into the White House Complex he or she is normally issued a visitor pass The use of these passes at electronic pass readers located at the entrances to and exits from the White House Complex generates the second type of records - ACR records Id 9 The ACR records include information such as the visitor's name and pass number the date 2 Case 1 09-cv-02312-BAH Document 21 Filed 08 17 11 Page 3 of 19 and time of the swipe and the post at which the swipe was recorded Id 10 After a visit WAVES records are normally updated electronically with ACR information regarding the time and place of entry and exit Id 11 On September 15 2009 in the interest of public transparency the White House adopted a policy of voluntary public disclosure for WAVES records subject to certain exceptions See Declaration of Philip C Droege dated April 21 2010 Droege Decl 16-18 In the October 8 2009 response to plaintiff's FOIA request the Secret Service informed Judicial Watch that it had determined that WAVES and ACR records are not agency records subject to the FOIA Compl 7 More specifically the letter stated that the government's position is that these records are records governed by the Presidential Records Act 44 U S C 2201 et seq and remain under the exclusive legal custody and control of the White House Office and the Office of the Vice President October 8 2009 Letter Ex E to Def 's Mem Judicial Watch then sent an administrative appeal letter to the Secret Service contesting the Secret Service's denial of the request and specifically the assertion by the Secret Service that the requested records are not agency records subject to FOIA Compl 8 The Secret Service denied the appeal Id 9 Judicial Watch then filed the action currently before the Court on December 7 2009 On February 22 2010 Judicial Watch moved for partial summary judgment pursuant to Federal Rule of Civil Procedure 56 on the issue of whether the Secret Service visitor logs are agency records subject to the Freedom of Information Act 5 U S C 552 In response on April 21 2010 the Secret Service filed a cross-motion for summary judgment on the same issue 1 1 This case was reassigned to the current presiding judge on January 20 2011 3 Case 1 09-cv-02312-BAH Document 21 II Filed 08 17 11 Page 4 of 19 STANDARD OF REVIEW Congress enacted FOIA to promote transparency across the government See 5 U S C 552 Quick v U S Dep't of Commerce Nat'l Inst of Standards Tech No 09-02064 2011 WL 1326928 at 3 D D C April 7 2011 citing Stern v FBI 737 F 2d 84 88 D C Cir 1984 The Supreme Court has explained that FOIA is a means for citizens to know 'what their Government is up to ' This phrase should not be dismissed as a convenient formalism It defines a structural necessity in a real democracy Nat'l Archives Records Admin v Favish 541 U S 157 171-172 2004 internal quotations and citations omitted The basic purpose of FOIA is to ensure an informed citizenry vital to the functioning of a democratic society needed to check against corruption and to hold the governors accountable to the governed NLRB v Robbins Tire Rubber Co 437 U S 214 242 1978 The strong interest in transparency must be tempered however by the legitimate governmental and private interests that could be harmed by release of certain types of information United Techs Corp v U S Dep't of Defense 601 F 3d 557 559 D C Cir 2010 see also Critical Mass Energy Project v Nuclear Regulatory Comm'n 975 F 2d 871 872 D C Cir 1992 Accordingly Congress included nine exemptions permitting agencies to withhold information from FOIA disclosure 5 U S C 552 b These exemptions are explicitly made exclusive and must be narrowly construed Milner v Dep't of the Navy 131 S Ct 1259 1262 2011 internal quotations and citations omitted citing FBI v Abramson 456 U S 615 630 1982 see also Pub Citizen Inc v Office of Management and Budget 598 F 3d 865 869 D C Cir 2010 Pursuant to Federal Rule of Civil Procedure 56 the Court will grant a motion for summary judgment if the movant shows that there is no genuine dispute as to any material fact 4 Case 1 09-cv-02312-BAH Document 21 Filed 08 17 11 Page 5 of 19 and the movant is entitled to judgment as a matter of law based upon the pleadings depositions and affidavits and other factual materials in the record Fed R Civ P 56 a c Tao v Freeh 27 F 3d 635 638 D C Cir 1994 The Court need consider only the cited materials but it may consider other materials in the record Fed R Civ P 56 c 3 The Court must view all inferences in a light most favorable to the non-moving party Tao 27 F 3d at 638 citing Anderson v Liberty Lobby Inc 477 U S 242 250 255 1986 The burden is on the moving party to demonstrate that there is an absence of a genuine issue of material fact in dispute Celotex Corp v Catrett 477 U S 317 323 1986 A defendant is entitled to summary judgment in a FOIA case if it demonstrates that no material facts are in dispute it has conducted an adequate search for responsive records and each responsive record which is located was either produced to the plaintiff or is exempt from disclosure See Weisberg v U S Dep't of Justice 627 F 2d 365 368-69 D C Cir 1980 To meet its burden the defendant may rely on relatively detailed non-conclusory declarations McGehee v CIA 697 F 2d 1095 1102 D C Cir 1983 The defendant is entitled to summary judgment when it demonstrates that each document sought is not subject to FOIA's disclosure requirements Citizens for Responsibility and Ethics in Wash v U S Dep't of Homeland Sec 527 F Supp 2d 76 88 D D C 2007 hereinafter CREW citing Exxon Corp v F T C 663 F 2d 120 126 D C Cir 1980 Agency decisions to withhold information under the Freedom of Information Act are reviewed de novo by this court Judicial Watch Inc v U S Postal Serv 297 F Supp 2d 252 256 D D C 2004 III DISCUSSION Judicial Watch in moving for partial summary judgment has requested the Court declare that the Secret Service visitor logs are agency records subject to FOIA In response the Secret 5 Case 1 09-cv-02312-BAH Document 21 Filed 08 17 11 Page 6 of 19 Service has filed a cross motion for summary judgment on the same issue Both parties appear to agree that there is no genuine dispute as to any material fact Fed R Civ P 56 a and disagree simply about how the law applies to the facts at hand See Pl 's Mem in Supp of Mot for Partial Summ J Pl 's Mem at 1 N o disputes of material fact exist as to the nature of the records Def 's Cross-Mot for Summ J at 1 T here is no genuine issue as to any material fact Therefore it is appropriate to enter judgment on this specific question now The Secret Service advances three arguments in support of its motion for summary judgment First the Secret Service argues that the WAVES and ACR records are Presidential records and therefore not agency records subject to FOIA Second the Secret Service argues that the FOIA should be construed not to cover the WAVES and ACR records in order to avoid a serious Constitutional separation of powers question Third the Secret Service argues that even if the WAVES and ACR records are subject to FOIA the FOIA request in this case would be virtually impossible to process without creating the unacceptable risk that sensitive records implicating national security concerns would be inappropriately released Def 's Mem in Supp of Cross-Mot for Summ J and in Opp'n to Pl 's Mot for Partial Summ J Def 's Mem at 2 For the reasons explained below the Court will grant the plaintiff's motion for partial summary judgment and will deny the defendant's cross-motion for summary judgment A WAVES and ACR Records are Agency Records Under the FOIA The central argument the Secret Service advances is that the WAVES and ACR records are not agency documents subject to FOIA which is a prerequisite to federal jurisdiction See CREW 527 F Supp 2d at 88 Under 5 U S C 552 a 4 B federal jurisdiction is dependent upon a showing that an agency has 1 improperly 2 withheld 3 agency records quoting 6 Case 1 09-cv-02312-BAH Document 21 Filed 08 17 11 Page 7 of 19 Kissinger v Reporters Comm for Freedom of Press 445 U S 136 150 1980 internal quotations omitted The Court disagrees The Supreme Court has established a two-part test for evaluating whether a record is an agency record within the meaning of FOIA First an agency must either create or obtain the requested materials Second the agency must be in control of the requested materials at the time the FOIA request is made U S Dep't of Justice v Tax Analysts 492 U S 136 144-45 1989 internal quotations omitted Applying this test the Court finds the records are subject to FOIA Two other judges in this District have previously applied this standard to WAVES and ACR records and both determined that the records are agency records subject to FOIA See CREW 527 F Supp 2d 76 Wash Post v U S Dep't of Homeland Sec 459 F Supp 2d 61 D D C 2006 vacated on other grounds 2007 U S App LEXIS 6682 D C Cir Feb 27 2007 2 This Court agrees with the conclusions of the other judges in this District that have considered this question and finds that the records are subject to FOIA 1 The Secret Service Creates or Obtains the Records The Secret Service does not appear to contest that it create s or obtain s the WAVES and ACR records At a minimum the Secret Service obviously obtains the records Therefore the Court's analysis of this first requirement will be brief The Secret Service describes the creation process for WAVES and ACR records as involving multiple steps Normally the process begins when authorized White House Complex pass holders typically members of the Presidential or Vice-Presidential staff provide the Secret Service with the personal information of a proposed visitor through an automated computer 2 The Secret Service is a branch of the U S Department of Homeland Security Therefore the defendant in these prior opinions is effectively the same as in the current action and many of the exact same arguments advanced here by the Secret Service were addressed in those prior opinions 7 Case 1 09-cv-02312-BAH Document 21 Filed 08 17 11 Page 8 of 19 system Droege Decl 4-6 This information can also be provided in other ways such as by e- mail telephone or physical delivery Id 6 In such instances Secret Service personnel enter the information into the WAVES system Id This information is processed by the Secret Service to perform background checks on the proposed visitors and to verify the admissibility of the visitors at the time of visit Id 5-6 In describing this process the Secret Service seeks to emphasize the role that Presidential and Vice-Presidential staff members play by providing much of the information that make up the records By focusing on the contents of the records the Secret Service overlooks the process by which the records are generated however CREW 527 F Supp 2d at 90 citing Wash Post 459 F Supp 2d at 69 D D C 2006 This distinction is important because t he FOIA deals with documents not information Id citing Forsham v Harris 445 U S 169 185 1980 As in CREW the Secret Service invites the Court to elevate the contents of the record ahead of its creation Id at 91 adding that t his would insulate records that contain information supplied perhaps even gleaned from an external non-agency source even if the information represents only a part of the record as it does here Regardless of what information may be supplied by outside actors the WAVES and ACR records are largely generated by the Secret Service and are undisputedly obtained by the Secret Service Indeed the records are generated specifically for use by the Secret Service Therefore the requirement under FOIA that the records be create d or obtain ed is clearly met in this case 2 The Secret Service Controls the Records The Court now moves on to the second prong of the agency records determination In addition to creating or obtaining the records the agency must be in control of the requested 8 Case 1 09-cv-02312-BAH Document 21 Filed 08 17 11 Page 9 of 19 materials at the time the FOIA request is made Tax Analysts 492 U S at 144-45 internal quotations omitted see also Judicial Watch Inc v Fed Hous Fin Agency No 10-5349 2011 WL 3375576 at 2 D C Cir Aug 5 2011 To meet this control requirement the records must have come into the agency's possession in the legitimate conduct of its official duties Tax Analysts 492 U S at 145 To determine whether an agency is in control of the materials the D C Circuit has established a four-part test The Court must consider 1 the intent of the document's creator to retain or relinquish control over the records 2 the ability of the agency to use and dispose of the record as it sees fit 3 the extent to which agency personnel have read or relied upon the document and 4 the degree to which the document was integrated into the agency's record system or files Judicial Watch Inc v Fed Hous Fin Agency 2011 WL 3375576 at 2 quoting Burka v U S Dep't of Health Human Servs 87 F 3d 508 515 D C Cir 1996 Each of these considerations is taken up in turn below i The Secret Service Intends to Relinquish Control The first factor of the determination intent weighs in favor of the Secret Service's assertion that the records are not under agency control See CREW 527 F Supp 2d at 92 The first factor the intent of the document's creator here the Secret Service to retain or relinquish control over the records weighs in favor of the Secret Service The Secret Service points the Court to a Memorandum of Understanding MOU written in May 2006 to memorialize the understanding of both the Secret Service and the White House Office of Records Management ORM as to how the WAVES and ACR records were to be used and who maintained an interest in them 3 Declaration of Donald E White dated April 20 2010 White Decl 12 3 As noted in CREW the MOU was executed after the Secret Service was previously sued for specific WAVES and ACR records under the FOIA 527 F Supp 2d at 92 n 22 The Court regards this self-serving agreement with 9 Case 1 09-cv-02312-BAH Document 21 Filed 08 17 11 Page 10 of 19 The MOU is unequivocal in asserting that the control over WAVES and ACR records is at all times maintained by the ORM and not the Secret Service See MOU 17 stating that the WAVES and ACR records are at all times Presidential Records and are not the records of an 'agency' subject to the Freedom of Information Act Consistent with this stated intent it has been the practice of the Secret Service to regularly transfer copies of the WAVES and ACR records to the ORM White Decl 13 It is worth noting that the actions of the Secret Service have sometimes been misaligned with its stated intent however For example the Secret Service has continued to maintain copies of the WAVES and ACR data after transfer Id According to the Secret Service this retention has been due to among other things then-pending litigation 4 Id The stated intent of the Secret Service is unambiguously to relinquish control of the records however and the Secret Service's actions are not necessarily inconsistent with that intent The intent factor of the analysis therefore weighs in the defendant's favor See CREW 527 F Supp 2d at 93 T he Secret Service's stated intent is clear it does not intend to retain control over these records once the visitor has left the White House Complex Because the Secret Service's actions are not inconsistent with its stated intent the first factor weighs in its favor ii The Secret Service is Able to Use and Dispose of the Records The Court finds however that the second factor the ability of the Secret Service to use and dispose of the records as it sees fit weighs against the Secret Service The Secret Service is skepticism The MOU was executed after the Secret Service created many of the records and after the Secret Service was sued for the records 4 The defendant does not explain specifically what litigation was then-pending See White Decl 11 13 The Court assumes that the referenced litigation may consist of the cases such as CREW and Washington Post cited in this opinion CREW 527 F Supp 2d 76 Wash Post 459 F Supp 2d 61 10 Case 1 09-cv-02312-BAH Document 21 Filed 08 17 11 Page 11 of 19 able to and does use the WAVES and ACR records and also maintains a reasonable amount of flexibility to dispose of the records According to the Secret Service's own declarations the Secret Service uses the records for two main purposes to perform background checks to determine the existence of any protective concern and to verify the admissibility at the time of visit Droege Decl 5 Therefore the Secret Service's ability to use the records is clear The Secret Service is quick to argue that it does not have the ability to dispose of the records as it sees fit It is the practice of the Secret Service regularly to transfer copies of the WAVES and ACR records to the ORM Droege Decl 10 This transfer practice combined with the narrowly constrained use of the records by the Secret Service was enough for another judge of this Court to conclude that 'the ability of the agency to use and dispose of the record as it sees fit' is quite limited Wash Post 459 F Supp 2d at 70 quoting United We Stand Am Inc v IRS 359 F 3d 595 599 D C Cir 2004 Regardless of its stated transfer policy however the Secret Service has consistently continued to maintain copies of these records on its systems and has not sufficiently explained any restriction on its use or disposition of these documents The Secret Service claims that because the President and Vice President retain control of WAVES and ACR records as set forth in the MOU the Secret Service lacks disposal authority over these records Def 's Mem at 19-20 In other words the Secret Service argues that it is unable to dispose of the records freely because they are ultimately White House records and not agency records This argument is circular The claimed restrictions on disposal stem from the defendant's assumption that the documents are under Presidential control--the exact point that the defendant seeks to prove to establish that the documents are not subject to FOIA See 11 Case 1 09-cv-02312-BAH Document 21 Filed 08 17 11 Page 12 of 19 CREW 527 F Supp 2d at 94 Of course the assumption which this argument rests on--that these documents are under the 'exclusive legal control of the President and Vice-President'--is the focal point of this suit The Secret Service is assuming the very point it is trying to prove Therefore the stated intent of the Secret Service to transfer the records to the ORM and then remove them from its system is not in itself dispositive of the Secret Service's ability to use and dispose of the records freely See CREW 527 F Supp 2d at 94 Although an agency's treatment of documents for preservation purposes may provide some guidance an agency should not be able to alter its disposal regulations to avoid the requirements of FOIA quoting Bureau of Nat'l Affairs v U S Dep't of Justice 742 F 2d 1484 1493 D C Cir 1984 While the Court duly recognizes that the Secret Service's freedom to use and dispose of the records is somewhat circumscribed this portion of the calculus does not weigh in the Secret Service's favor iii Secret Service Personnel Have Read and Relied Upon the Documents The third factor--the extent to which Secret Service personnel have read or relied upon the documents--cuts strongly against the Secret Service While the Secret Service does not deny reliance upon the WAVES and ACR records it argues that the purposes for which it relies upon the documents are limited Namely 1 to enable the Secret Service to perform background checks and 2 to enable the Secret Service to verify the admissibility at the time of visit Droege Decl 5 This limited reliance is directly tied to the purpose of the records in the first place The WAVES and ACR records are created--above all else--to facilitate the precise uses for which the Secret Service relies upon them See Wash Post 459 F Supp 2d at 71 While the defendant is correct that the Secret Service's use of the WAVES records is limited the defendant fails to recognize that the very purpose of the WAVES records is limited T he 12 Case 1 09-cv-02312-BAH Document 21 Filed 08 17 11 Page 13 of 19 inquiry as to the agency's use of a document is tethered to the purpose behind the records' creation in the first instance internal citations omitted Therefore the fact that the Secret Service uses the documents for the limited purpose for which they were created strongly suggests the documents are agency records under FOIA iv The Records are Integrated into the Secret Service's Record System The final factor the degree to which the records were integrated into the Secret Service's record system also weighs against the Secret Service The Secret Service acknowledges that WAVES and ACR records do reside on the Secret Service's servers as part of the White House Access Control System data system Def 's Mem at 21 see also White Decl 7 To resist the characterization of this process as integration into the Secret Service's record system the Secret Service notes that the WAVES and ACR records data are downloaded and burned onto CDs for transfer to the ORM every 30 to 60 days White Decl 11 Additionally it is the intent of the Secret Service to erase the WAVES records from their servers after transfer and the Secret Service asserts that active WAVES data on the servers older than 60 days are purged daily and overwritten on the servers Id 11 The fact that the records are transferred is not dispositive in determining whether the records are integrated however See CREW 527 F Supp 2d at 96 The length of time a record is saved skirts the salient issue of whether it was integrated into the agency's record system in the first place It is also worth noting that the Secret Service has retained copies of all of the WAVES and ACR data in question White Decl 11 Even if the Court assumes that all of the records in question have in fact been deleted from the Secret Service's computer system since their initial use the Secret Service does not contest that the records were at one point an integrated portion of its computer system See CREW 527 F Supp 2d at 96 T he notion that 13 Case 1 09-cv-02312-BAH Document 21 Filed 08 17 11 Page 14 of 19 an electronic record is not integrated into the Secret Service's computer system simply because the agency deletes the records 30 or 60 days later misses the point Therefore the Court finds that the WAVES and ACR records were substantially integrated into the Secret Service's record system v Balancing the Factors The Court finds that while the intent of the Secret Service is consistent with its assertion that the WAVES and ACR records are not agency records the other three factors all cut in the opposite direction Consistent with other decisions in this District the Court concludes that use trumps intent CREW 527 F Supp 2d at 97 Therefore the WAVES and ACR records are properly considered agency records subject to FOIA B Constitutional Avoidance The Secret Service also urges the Court to construe FOIA not to cover the WAVES and ACR records to avoid raising serious Constitutional questions The Secret Service asserts that FOIA coverage of WAVES and ACR records would raise serious separation of powers concerns because it would amount to a substantial intrusion on the confidentiality necessary for the President and Vice President to discharge their constitutional duties Def 's Mem at 24 The Constitutional avoidance doctrine is not applicable here because the Court is not faced with the interpretation of an ambiguous statute The Supreme Court has explained that if an otherwise acceptable construction of a statute raises serious constitutional problems and an alternative interpretation of the statute is fairly possible courts are obligated to construe the statute to avoid such problems INS v St Cyr 533 U S 289 299 2001 The Court agrees however with the previous holdings of other judges in this District that even if defendant's concerns about the intrusion on the confidentiality necessary for the President and Vice 14 Case 1 09-cv-02312-BAH Document 21 Filed 08 17 11 Page 15 of 19 President to discharge their constitutional duties are valid ones they do not serve as a license for the court to transmute the meaning of an unambiguous statute Wash Post 459 F Supp 2d at 72 see also CREW 527 F Supp 2d at 98-99 Because Constitutional avoidance applies only where the statute is open to more than one interpretation however it has no application in the absence of statutory ambiguity internal quotations and citations omitted Additionally the Court is skeptical of the underlying premise that the inclusion of WAVES and ACR records under FOIA raises any serious Constitutional problems As has previously been noted by courts in this District t o the extent that a visitor record might if publicly released disclose confidential presidential communications the Secret Service has a ready recourse in Exemption 5 of FOIA which exempts privileged documents from disclosure CREW 527 F Supp 2d at 99 Therefore since the statutory language is unambiguous in relation to this issue and the FOIA has built-in exemptions that mitigate the risk of the precise separation of powers concerns the defendant raises the Court rejects defendant's interpretive argument C National Security Concerns Lastly the Secret Service argues that even if WAVES and ACR records are subject to FOIA--and the Court holds that they are--it would be virtually impossible for the Secret Service to process the plaintiff's FOIA request with respect to records created between January 20 2009 and September 15 2009 without potentially compromising national security interests Def 's Mem at 28 While the Secret Service has been able to process FOIA requests for WAVES and ACR records in the past defendant argues that the unprecedentedly broad nature of this request would make it virtually impossible for the White House to identify and segregate sensitive information from that which can be disclosed Id at 28 The Secret Service 15 Case 1 09-cv-02312-BAH Document 21 Filed 08 17 11 Page 16 of 19 appears to argue that it should not be required to even process the FOIA request simply because the request is massively expansive Def 's Mem at 32 The Secret Service notes that prior to the adoption of the White House's voluntary WAVES disclosure program on September 15 2009 records in the WAVES database that implicated national security concerns were not flagged or identified in any way See Declaration of Nathan D Tibbits dated April 19 2010 Tibbits Decl 14-16 5 Thus the Secret Service objects to the burden that would be imposed on it and other government officials if they must review hundreds-of-thousands of visitor records created between January and September 2009 entry-by-entry to determine whether it is necessary to exclude specific records of particular visits from disclosure Def 's Mem at 32 While the Court is sensitive to the burdens raised by the plaintiff's broad brush request for all records of a certain type over a nine-month period including the need to review such records for applicable exemptions the Court is not persuaded that the plaintiff's request requires a blanket rejection The Secret Service first asserts that a subset of these records would unquestionably be exempt from release pursuant to various FOIA exemptions including Exemption 5 Id at 27 In support of this assertion the Secret Service states that although WAVES and ACR records are not classified a broad-based disclosure of WAVES records could have serious consequences for United States national security interests Id at 28 citing CIA v Sims 471 U S 159 178 1985 Edmonds v Dep't of Justice 405 F Supp 2d 23 33 D D C 2005 ACLU v Dep't of Justice 321 F Supp 2d 24 37 D D C 2004 The Secret Service also cites a case from the Central District of California in which the district court upheld an agency's withholding of 5 The version of the Tibbits Declaration filed on the record was heavily redacted because it contained classified material See ECF No 13-3 The defendant filed an unredacted copy of the declaration with the Court which the Court has reviewed in camera The Court's decision takes into account the information conveyed in the classified portions of the declaration 16 Case 1 09-cv-02312-BAH Document 21 Filed 08 17 11 Page 17 of 19 information where the agency was unable to determine which records in two databases would be exempt from disclosure under FOIA because those databases 'do not contain any information' necessary to make that determination Def 's Mem at 28-29 quoting L A Times v U S Dep't of Labor 483 F Supp 2d 975 986 C D Cal 2007 These arguments are premature In the cases relied upon by the defendant the courts were ruling upon the propriety of government assertions of specific FOIA exemptions in response to FOIA requests See CIA v Sims 471 U S at 178 Exemption 3 Edmonds 405 F Supp 2d at 32-33 Exemption 1 including an assertion of classification based on a mosaic theory ACLU v Dep't of Justice 321 F Supp 2d at 35-37 same L A Times 483 F Supp 2d at 981-86 Exemption 6 In this case the defendant has yet to assert any exemptions specifically While the Court will require defendant to process the FOIA request it is entirely possible that the government will never have to turn over a single document given that the Secret Service may yet be entitled to withhold some or all of the documents under one or more of FOIA's nine exemptions Citizens for Responsibility and Ethics in Wash v U S Dep't of Homeland Sec 532 F 3d 860 863 D C Cir 2008 hereinafter CREW Appeal reviewing an appeal of the district court's denial of a similar government request for summary judgment and dismissing the appeal for lack of jurisdiction The Secret Service denies that it should be required to process the FOIA request because certain records relating to appointments made by members of the President's National Security Staff NSS would implicate national security concerns and because it is not feasible to reaccumulate the necessary information to determine which appointments between January 20 2009 and September 15 2009 could harm our Nation's national security interests if publicly disclosed Def 's Mem at 27-30 The defendant then goes on to generally assert that review of 17 Case 1 09-cv-02312-BAH Document 21 Filed 08 17 11 Page 18 of 19 WAVES records would not end with those generated by the NSS pointing to other components of the Executive Office of the President that also schedule meetings concerning national security Id at 30 citing Tibbits Decl 36 At no point does the Secret Service assert however that there are not at least some records implicated by plaintiff's FOIA request that could be easily searched for separated out and disclosed without raising national security concerns For example there may be certain White House components whose visitors never implicate national security concerns 6 See Pl 's Reply in Supp of Mot for Partial Summ J and Opp'n to Def 's Cross-Mot for Summ J at 10 Thus while there are some limits on what an agency must do to satisfy its FOIA obligations the defendant has not met its burden to establish that the search requested by the plaintiff is so unreasonable as to require a blanket rejection See Nation Magazine Wash Bureau v U S Customs Service 71 F 3d 885 891 D C Cir 1995 finding it unreasonable to require agency to search through 23 years of unindexed files for records cf Ancient Coin Collectors Guild v U S Dep't of State 641 F 3d 504 514 D C Cir 2011 reversing in part district court's grant of summary judgment for agency because agency declarations failed to address the adequacy of search of email backup tapes and archives Therefore the proper course of action by the Secret Service is duly to process plaintiff's FOIA request disclose all segregable nonexempt records and then assert specific FOIA exemptions for all records it seeks to withhold See CREW Appeal 532 F 3d at 863 Of course the Secret Service may well be able to assert certain FOIA exemptions over large numbers of documents covered by the plaintiff's request See e g Edmonds 405 F Supp 2d at 32-33 6 Defendant's reply brief suggests that Secret Service records relating to visits to White House components that do not implicate national security would still require a burdensome review to identify those records reflecting nonnational security meetings that are nonetheless sensitive for other reasons and are subject to executive privilege Def 's Reply in Supp of Cross-Mot for Summ J at 18 referring to FOIA Exemption 5 which relates to civil privileges This argument further underscores the need for the defendant to invoke particular FOIA exemptions and to adduce evidence in support of those exemptions before the Court can rule on their applicability Ancient Coin Collectors Guild v U S Dep't of State 641 F 3d 504 509 D C Cir 2011 An agency withholding responsive documents from a FOIA request bears the burden of proving the applicability of the claimed exemptions 18 Case 1 09-cv-02312-BAH Document 21 Filed 08 17 11 Page 19 of 19 upholding agency's withholding of information under FOIA exemption where disclosure would release a mosaic of classified information L A Times 483 F Supp 2d at 986 finding that a properly asserted FOIA exemption also covered additional records that were not reasonably segregable from the exempt material contained in the same database At this stage however the defendant has not met its burden to show that the requested material either falls within a FOIA exemption or would be unreasonably burdensome to search IV CONCLUSION For the reasons detailed above plaintiff's motion for partial summary judgment is GRANTED and defendant's cross-motion for summary judgment is DENIED Within twenty 20 days of the issuance of this Memorandum Opinion and the accompanying Order the parties are directed to meet and confer and to file a joint report proposing a schedule for the remainder of this litigation The joint report shall also address whether in light of this Court's ruling on the applicability of FOIA to the records at issue and given the likelihood that at least some of those records will be covered by FOIA exemptions the parties are able to agree to resolve this case without the Court's further intervention or to narrow the requests at issue Beryl A Howell DATED August 17 2011 s BERYL A HOWELL United States District Judge 19                     National Security Archive    Suite 701  Gelman Library  The George Washington University    2130 H Street  NW  Washington  D C  20037    Phone  202 994‐7000  Fax  202 994‐7005  nsarchiv@gwu edu