USCA Case #11-5282 Document #1372780 Filed 05 08 2012 RECORD NO 11-5282 Page 1 of 53 ORAL ARGUMENT HAS NOT YET BEEN SCHEDULED In The United States Court of Appeals For The District of Columbia Circuit JUDICIAL WATCH INC Plaintiff - Appellee v UNITED STATES SECRET SERVICE Defendant - Appellant ________________________________________________________________________________ CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON Amicus Curiae for Appellee ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA BRIEF OF AMICI CURIAE CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINTON ELECTRONIC FRONTIER FOUNDATION OPENTHEGOVERNMENT ORG AND PROJECT ON GOVERNMENT OVERSIGHT IN SUPPORT OF APPELLEE Anne L Weismann Melanie Sloan CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON 1400 Eye Street NW Suite 450 Washington DC 20005 202 408-5565 David L Sobel ELECTRONIC FRONTIER FOUNDATION 1818 N Street NW Suite 400 Washington DC 20036 202 797-9009 Scott H Amey PROJECT ON GOVERNMENT OVERSIGHT 1100 G Street N W Suite 500 Washington DC 20005 202 347-1122 Counsel for Amici Curiae Counsel for Amici Curiae Counsel for Amici Curiae THE LEX GROUPDC 202 955-0001 1825 K Street N W Suite 103 Washington D C 20006 800 856-4419 Fax 202 955-0022 www thelexgroup com USCA Case #11-5282 Document #1372780 Filed 05 08 2012 Page 2 of 53 CERTIFICATE AS TO PARTIES RULINGS AND RELATED CASES Pursuant to D C Circuit Rule 28 a 1 amici curiae Citizens for Responsibility and Ethics in Washington CREW Electronic Frontier Foundation EFF OpenTheGovernment org and Project on Government Oversight POGO hereby submit their Certificate as to Parties Rulings and Related Cases as follows A Parties and Amici Plaintiff-appellee is Judicial Watch Inc and defendant-appellant is the United States Secret Service CREW has been granted leave to participate as amicus curiae in this Court Also appearing as amici curiae with CREW are EFF OpenTheGovernment org and POGO No amici appeared before the district court B Rulings Under Review Under review are the order and memorandum opinion of the district court issued on August 17 2011 Judicial Watch Inc v United States Secret Service No 1 09-cv-02312-BAH D D C Judge Beryl A Howell The district court opinion is available at 803 F Supp 2d 51 and page 95 of the Joint Appendix C Related Cases This case has not previously been before this Court or any other court Counsel for amici curiae is aware of no other related cases pending before this Court or any other court within the meaning of D C Circuit Rule 28 a 1 c i USCA Case #11-5282 Document #1372780 Filed 05 08 2012 Page 3 of 53 CORPORATE DISCLOSURE STATEMENT Pursuant to Fed R App P 26 1 amici curiae Electronic Frontier Foundation OpenTheGovernment org and the Project on Government Oversight submit this corporate disclosure statement 1 EFF does not have a parent company and is not a publicly-held company with a 10% or greater ownership interest EFF is a non-profit non-partisan corporation organized under section 501 c 3 of the Internal Revenue Code OpenTheGovernment org is a project of the Fund for Constitutional Government which does not have a parent company and is not a publicly-held company with a 10% or greater ownership interest The Fund for Constitutional Government is a non-profit non-partisan corporation organized under section 501 c 3 of the Internal Revenue Code POGO does not have a parent company and is not a publicly-held company with a 10% or greater ownership interest POGO is a non-profit non-partisan corporation organized under section 501 c 3 of the Internal Revenue Code 1 CREW already has filed a corporate disclosure statement with the Court ii USCA Case #11-5282 Document #1372780 Filed 05 08 2012 Page 4 of 53 TABLE OF CONTENTS Page CERTIFICATE AS TO PARTIES RULES AND RELATED CASES i CORPORATE DISCLOSURE STATEMENT ii TABLE OF CONTENTS iii TABLE OF AUTHORITIES v INTEREST OF AMICI CURIAE 1 RELEVANT STATUTES AND REGULATIONS 3 SUMMARY OF ARGUMENT 4 ARGUMENT 6 I THE RECORDS AT ISSUE ARE NOT EXEMPT FROM THE AGENCY RECORD ANALYSIS MANDATED BY THE SUPREME COURT 6 II RECORDS OF WHITE HOUSE VISITS CREATED AND USED BY THE SECRET SERVICE IN THE PERFORMANCE OF ITS STATUTORY DUTIES ARE AGENCY RECORDS SUBJECT TO THE FOIA 13 A The Secret Service Creates Or Obtains The White House Visitor Records 13 B The Secret Service Controls The White House Visitor Records 14 1 The Intent Of The Documents' Creator 15 2 The Secret Service's Ability To Use And Dispose Of The Records 17 iii USCA Case #11-5282 III Document #1372780 Filed 05 08 2012 Page 5 of 53 3 The Extent To Which Agency Personnel Have Read Or Relied On The Documents 18 4 The Degree To Which The Secret Service Integrated The Records Into The Agency's System Or Files 19 ANY LEGITIMATE INTEREST OF THE WHITE HOUSE CAN BE ADEQUATELY PROTECTED THROUGH THE FOIA'S EXEMPTIONS 20 CONCLUSION 24 CERTIFICATE OF COMPLIANCE CERTIFICATE OF FILING AND SERVICE iv USCA Case #11-5282 Document #1372780 Filed 05 08 2012 Page 6 of 53 TABLE OF AUTHORITIES Page s CASES August v FBI 328 F 3d 697 D C Cir 2003 20 Bureau of Nat'l Affairs Inc v U S Dep't of Justice 742 F 2d 1484 D C Cir 1984 7 Burka v U S Dep't of Health Human Servs 87 F 3d 580 D C Cir 1996 8 9 10 12 18 19 Cheney v U S Dist Court 542 U S 367 2004 21 Consumer Fed'n of Am v Dep't of Agric 455 F 3d 283 D C Cir 2006 5 7 12 18 CREW v U S Dep't of Homeland Sec 527 F Supp 2d 76 D D C 2007 14 15 19 21 25 Dep't of Justice v Reporters Comm for Freedom of the Press 489 U S 749 1989 2 Forsham v Harris 445 U S 169 1980 7 14 Goland v CIA 607 F 2d 339 D C Cir 1978 9 10 12 Holy Spirit Ass'n for the Unification of World Christianity v CIA 636 F 2d 838 D C Cir 1980 vacated in part and remanded 455 U S 997 1982 9 12 16 Authorities Chiefly Relied on are Marked With An Asterisk v USCA Case #11-5282 Document #1372780 Filed 05 08 2012 Page 7 of 53 John Doe Agency v John Doe Corp 493 U S 146 1989 20 Judicial Watch Inc v Dep't of Justice 365 F 3d 1108 D C Cir 2004 22 Judicial Watch Inc v Fed Hous Fin Agency 646 F 3d 924 D C Cir 2011 5 18 McDonnell Douglas Corp v Dep't of the Air Force 375 F 3d 1182 D C Cir 2004 20 NLRB v Sears Roebuck Co 421 U S 132 1975 22 Paisley v CIA 712 F 2d 686 D C Cir 1983 9 10 12 16 17 Ryan v Dep't of Justice 617 F 2d 781 D C Cir 1980 12 Tax Analysts v IRS 214 F 3d 179 D C Cir 2000 20 Tax Analysts v U S Dep't of Justice 845 F 3d 1060 D C Cir 1980 8 U S Dep't of Justice v Tax Analysts 492 U S 136 1989 6 7 11 13 14 20 United States v Nixon 418 U S 683 1974 22 United States v Pollard 416 F 3d 48 D C Cir 2005 22 vi USCA Case #11-5282 Document #1372780 Filed 05 08 2012 Page 8 of 53 United We Stand Am Inc v IRS 359 F 3d 595 D C Cir 2004 vacated in part on other grounds 724 F 2d 201 D C Cir 1984 9 10 11 13 16 STATUTES 5 U S C 552 3 18 U S C 3056 25 18 U S C 3056A 25 26 U S C 501 c 3 1 OTHER AUTHORITY U S Department of Justice FOIA Update FOIA Memo on White House Records 1993 Vol XIV No 3 available at http www justice gov oip foia_updates Vol_XIV_3 page4 htm 23 vii USCA Case #11-5282 Document #1372780 Filed 05 08 2012 Page 9 of 53 INTEREST OF AMICI CURIAE1 CREW is a non-profit non-partisan corporation organized under section 501 c 3 of the Internal Revenue Code Through a combined approach of research advocacy public education and litigation CREW seeks to protect the rights of citizens to be informed about the activities of government officials and to ensure the integrity of those officials Toward that end CREW frequently files Freedom of Information Act FOIA requests to access and make publicly available government documents that reflect on or relate to the integrity of government officials and their actions CREW filed multiple requests in the past with the U S Department of Homeland DHS for Secret Service records of visits to the White House by identified individuals When DHS refused to provide the requested records CREW brought lawsuits that culminated in a settlement with the government whereby the White House agreed to make the majority of visitor logs available on-line dating back to September 2009 with updates made every 90 to 120 days thereafter JA34 Amici confirm that no party's counsel authorized this brief in whole or in part no party's counsel contributed money that was intended to fund preparing or submitting the brief and no person other than amici their members or their counsel contributed money that was intended to fund preparing or submitting the brief This brief is filed on behalf of CREW with leave of the Court and on behalf of the other amici curiae with the consent of counsel for all parties in the case 1 1 USCA Case #11-5282 Document #1372780 Filed 05 08 2012 Page 10 of 53 CREW participates as an amicus in this case to preserve continued public access to these valuable records irrespective of the occupants of the White House Such access permits the public to be informed about 'what their government is up to ' Dep't of Justice v Reporters Comm for Freedom of the Press 489 U S 749 773 1989 quotation omitted an interest at the core of the FOIA EFF is a not-for-profit membership organization with offices in San Francisco California and Washington D C EFF works to inform policymakers and the general public about civil liberties and privacy issues related to technology and to act as a defender of those rights and liberties In support of its mission EFF frequently files FOIA requests to access a broad range of documents created by a variety of federal agencies Because the definition of agency records is a fundamental threshold issue under the FOIA manipulation of the term as this Court has recognized undermines the basic structure and purpose of the statute EFF participates as an amicus in this case to protect the public's ability to access government information access that would otherwise be denied if this Court accepts the government's position here that the White House unilaterally may assert control over records created and possessed by an agency OpenTheGovernment org is a coalition of consumer and good government groups environmentalists journalists library groups labor and others united to make the federal government a more open place in order to make us safer 2 USCA Case #11-5282 Document #1372780 Filed 05 08 2012 Page 11 of 53 strengthen public trust through government accountability and support our democratic principles OpenTheGovernment org's coalition transcends partisan lines and includes progressives libertarians and conservatives Founded in 1981 POGO is a non-partisan independent watchdog that champions good government reforms POGO's investigations into corruption misconduct and conflicts of interest achieve a more effective accountable open and ethical federal government Specifically FOIA is a vital tool that allows for the full or partial disclosure of previously unreleased government documents POGO's interest in this case is to assist this Court in a proper analysis of the consequences of allowing FOIA to be unjustly expanded to throw a blanket of secrecy over the entire White House and agencies operating therein If such a standard is imposed a vast cache of records would be withheld from the public media Members of Congress and others who use FOIA as a tool to learn about the operations of the federal government and seek to hold it accountable These policy implications are supportive of but distinct from the issues raised in Judicial Watch's brief RELEVANT STATUTES AND REGULATIONS The relevant statute at issue is the Freedom of Information Act 5 U S C 552 and has been reproduced in the Addendum to this Brief 3 USCA Case #11-5282 Document #1372780 Filed 05 08 2012 Page 12 of 53 SUMMARY OF ARGUMENT In the fall of 2009 recognizing the value of transparency and the accountability it brings to a democracy President Obama launched a new policy and practice of posting the vast majority of White House visitor records on-line with updates every 90 to 120 days 2 These records have provided unique access to information of great value to the public such as the identities of those with access to White House officials and the corresponding ability to influence White House policies Newspaper articles abound based in part on information gleaned from these records At the same time however the Obama administration has insisted these records are accessible only as a matter of presidential policy and grace refusing to allow access through the FOIA Just as it argued four years ago when this issue first came before this Court the government now maintains such access would implicate serious constitutional and policy concerns by forcing the president to forego either Secret Service protection or confidentiality in those who visit the White House According to the government these special concerns and the president's special status exempt this case from the methodology dictated by the Supreme Court for determining agency record status The records at issue here do not fall within this policy as they were generated prior to September 2009 2 4 USCA Case #11-5282 Document #1372780 Filed 05 08 2012 Page 13 of 53 The intervening years have revealed the fallacy of these arguments The nearly wholesale disclosure afforded by the president's visitor records policy has not led him to forego Secret Service protection nor has this disclosure threatened any of his constitutional prerogatives or national security interests The government's legal arguments expressed in language nearly identical to that of its previous briefs fare no better Precedent makes clear the White House visitor records are in the control of the Secret Service the agency that created the records in the performance of its statutory responsibilities notwithstanding the fact that those records include some information provided by White House staff Not only has the Secret Service integrated the visitor logs into its files but it uses those records for official agency business namely clearing visitors into the White House complex Given that such use is the decisive factor in determining agency record status under the FOIA Judicial Watch Inc v Fed Hous Fin Agency 646 F 3d 924 927-28 D C Cir 2011 quoting Consumer Fed'n of Am v Dep't of Agric 455 F 3d 283 288 D C Cir 2006 the district court properly concluded the visitor logs responsive to Judicial Watch's FOIA request are agency records of the U S Department of Homeland Security DHS the agency within which the Secret Service is housed In arguing to the contrary the government rests primarily on post-hoc documentation created by the White House to buttress its claim of control over the 5 USCA Case #11-5282 Document #1372780 Filed 05 08 2012 Page 14 of 53 requested records This documentation however does not alter the fact that while the Secret Service is in the process of clearing visitors and facilitating their access to the White House complex it uses and exercises control over these records Nor does the burden the government claims White House staff must bear to review requested visitor records for possible exempt material transform these records into non-agency records beyond the reach of the FOIA Accepting this rationale would permit the president to transform any agency records into non-agency records simply by asserting an interest in the records and claiming a burden their review would impose on presidential staff to protect otherwise exempt material Burdens such as these have never been recognized under the FOIA as sufficient to transform agency records into non-agency records and this case should be no exception ARGUMENT I THE RECORDS AT ISSUE ARE NOT EXEMPT FROM THE AGENCY RECORD ANALYSIS MANDATED BY THE SUPREME COURT Under the two-part test enunciated by the Supreme Court in U S Dep't of Justice v Tax Analysts materials requested under the FOIA are agency records if they are 1 either created or obtained by the agency and 2 under agency control at the time the FOIA request is made 492 U S 136 145 1989 The Supreme Court adopted the first factor to ensure consistent with the FOIA's 6 USCA Case #11-5282 Document #1372780 Filed 05 08 2012 Page 15 of 53 legislative history records acquired by an agency in performing its official duties as well as records generated within an agency are available to the public through the FOIA Id at 144 quoting Forsham v Harris 445 U S 169 184 1980 emphasis in original As to the second factor the Supreme Court explained b y control we mean that the materials have come into the agency's possession in the legitimate conduct of its official duties Id at 145 The control requirement also focuses on an agency's possession of the requested materials Id at 147 In fashioning this test the Supreme Court paid close attention to FOIA's goal of giving the public access to all nonexempted information received by an agency as it carries out its mandate Id at 147 The D C Circuit has added a gloss to this analysis looking to the totality of the circumstances and taking care that ' t he term agency records not be manipulated to avoid the basic structure of the FOIA ' Consumer Fed'n of Am v Dep't of Agric 455 F 3d at 287 quoting Bureau of Nat'l Affairs Inc v U S Dep't of Justice 742 F 2d 1484 1494 D C Cir 1984 BNA Rather than a rigid and compartmentalized control or use analysis the inquiry necessarily must focus on a variety of factors surrounding the creation possession control and use of the document by an agency BNA 742 F 2d at 1490 citation omitted 7 USCA Case #11-5282 Document #1372780 Filed 05 08 2012 Page 16 of 53 Toward that end this Circuit has identified four factors bearing on agency control 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 Burka v U S Dep't of Health Human Servs 87 F 3d 580 515 D C Cir 1996 3 Notwithstanding this precedent the government asks this Court to bypass the approach of Tax Analysts and treat the White House's expression of intent to control visitor logs prepared after the issue of their record status had been raised as outcome determinative According to the government because the visitor logs involve information implicating the president who is exempt from the FOIA and are derived from information supplied at least in part from presidential staff the Tax Analysts factors do not apply Subjecting White House visitor records to the Of note the D C Circuit first articulated these factors in Tax Analysts v U S Dep't of Justice 845 F 3d 1060 D C Cir 1980 an articulation undisturbed by the Supreme Court's subsequent decision in the case Specifically the D C Circuit noted agency possession is one necessary facet id at 1067 as is evidence surrounding the creation and transmittal of a document indicating that its creator intended to retain control Id at 1068 In addition a gencies must use or rely on the document to perform agency business and integrate it into their files before it may be deemed an 'agency record ' Id citation omitted 3 8 USCA Case #11-5282 Document #1372780 Filed 05 08 2012 Page 17 of 53 FOIA the government contends is tantamount to subjecting the president to the FOIA something Congress refused to do The government gleans support for its position in prior cases from this Circuit involving records generated by or at the direction of Congress specifically United We Stand Am Inc v IRS 359 F 3d 595 D C Cir 2004 vacated in part on other grounds 724 F 2d 201 D C Cir 1984 per curiam United We Stand Paisley v CIA 712 F 2d 686 D C Cir 1983 Holy Spirit Ass'n for the Unification of World Christianity v CIA 636 F 2d 838 D C Cir 1980 vacated in part and remanded 455 U S 997 1982 Holy Spirit and Goland v CIA 607 F 2d 339 D C Cir 1978 The special policy considerations that played a part in this Circuit's treatment of documents obtained from or at the direction of Congress however do not apply to records like the visitor logs that are agencycreated for agency purposes and at most indirectly implicate presidential interests In Goland for example the court addressed the agency record status of a congressional hearing transcript shared with the agency for a very limited purpose and over which Congress continued to retain control The court applied a more truncated analysis than that subsequently mandated by Burka to look only at the circumstances surrounding the creation of the document and the conditions under 9 USCA Case #11-5282 Document #1372780 Filed 05 08 2012 Page 18 of 53 which it was transferred to the agency Goland CIA 607 F 2d at 347-48 4 From this the court concluded the transcript was not an agency record subject to the FOIA because Congress had never relinquished control over it Id at 347 Policy considerations played a key role in the court's decision namely the dilemma Congress would otherwise face of either surrender ing its constitutional prerogative of maintaining secrecy or suffer ing an impairment of its oversight role Id at 346 But as the D C Circuit explained subsequently in United We Stand these policy considerations are unique to the congressional context United We Stand 359 F 3d at 599 They draw their unique character from the constitutionally authorized oversight Congress exercises over agencies that are part of a separate branch of government See Goland 607 F 2d at 346 See also Paisley 712 F 2d at 694 recognizing the special policy considerations at play with congressionally generated records including maintaining Congress' vital function as overseer of the Executive Branch 5 The Goland court did not consider directly the extent to which the agency had relied on the document or the extent to which the document was integrated into agency files two factors required by Burka but noted the CIA retains the Transcript solely for internal reference purposes 607 F 2d at 347 4 The Paisley court expressly declined to opine on whether a different analysis would be warranted were the creating body other than Congress Id at 694 n 30 5 10 USCA Case #11-5282 Document #1372780 Filed 05 08 2012 Page 19 of 53 Here by contrast the documents at issue raise no such concerns as they were generated by an agency that is subject to the FOIA and at most implicate interests of the president who is part of and indeed heads the same branch of government as the agency Consequently ordering their disclosure raises no comparable dilemma and interferes with no comparable constitutional prerogative as it will not disturb any oversight role one branch of government exercises over another branch of government As a further policy justification the government argues just as Congress has a constitutional 'right to keep its own materials confidential ' so too the president has a right to maintain confidentiality with respect to visitors to the White House Complex Br at 26-27 quoting United We Stand 359 F 3d at 499 internal quote omitted This apples-to-oranges comparison provides no basis to ignore the Tax Analyst approach The interest in confidentiality Congress may have in its own records differs significantly from the interest the president may have in records created by an agency in the performance of agency business If that interest standing alone were enough to transmute the character of otherwise agency records into non-agency records the president would have the power to remove from the reach of the FOIA and therefore the public virtually any and all federal records simply through the assertion of a freestanding interest No precedent here or anywhere else supports such a broad assertion of presidential 11 USCA Case #11-5282 Document #1372780 Filed 05 08 2012 Page 20 of 53 prerogative 6 Indeed were the government's arguments accepted they would subvert the statutory directives of the FOIA a pro-disclosure statute See Consumer Fed'n of Am v Dep't of Agric 455 F 3d at 287 the term 'agency records' should not be manipulated to avoid the basic structure of the FOIA quotation omitted Beyond setting forth the special policy considerations that apply to records generated by or at the direction of Congress these decisions lay down a patchwork of approaches to determine agency record status that at bottom are different iterations of the same theme captured by Burka So for example while Goland Holy Spirit and Paisley focused on congressional control not agency control as part of a two-step analysis that focus reflect s the considerations that underlie the second Burka factor the agency's ability to use or dispose of the record as it In fact this Circuit has rejected the notion that the president's proximity to the records and the purpose for which they were created exempts such records from the FOIA In Ryan v Dep't of Justice 617 F 2d 781 789 D C Cir 1980 the court refused to treat records compiled to advise the president as non-agency records reasoning 6 Many cabinet officers like the Attorney General or the Office of Legal Counsel under him act as advisors to the President for many of their important functions yet they are not members of the presidential staff or exclusively presidential advisors and are thus not exempt from FOIA requirements Id 12 USCA Case #11-5282 Document #1372780 Filed 05 08 2012 Page 21 of 53 sees fit United We Stand 359 F 3d at 600 Further while United We Stand purported to renounce the remaining Burka factors when the agency creates and possesses the document in the legitimate conduct of its official duties id at 603 that language is lifted directly from the Supreme Court's explanation in Tax Analysts of what constitutes control for agency record purposes See Tax Analysts 492 U S at 145 Thus it hardly can we construed as establishing a radical new approach to determining agency record status under the FOIA II RECORDS OF WHITE HOUSE VISITS CREATED AND USED BY THE SECRET SERVICE IN THE PERFORMANCE OF ITS STATUTORY DUTIES ARE AGENCY RECORDS SUBJECT TO THE FOIA A The Secret Service Creates Or Obtains The White House Visitor Records The Secret Service appears to concede the first Tax Analysts factor points to agency record status a concession supported fully by the process by which the visitor records are created The Secret Service creates both the Workers and Visitors Entry System WAVES and the Access Control Records System ACR records from information the agency receives about potential visitors The agency then performs background checks for each potential visitor inputs this information into records stored on agency computers and verifies the identification of visitors at the time of their visits JA8-9 19-20 13 USCA Case #11-5282 Document #1372780 Filed 05 08 2012 Page 22 of 53 Rather than focus on the process by which the records are created the government points to the role White House personnel play in providing the content of the records suggesting implicitly this transforms them into presidential records The FOIA however deals with documents not information in the abstract Forsham v Harris 445 U S 169 185 1980 and elevating the contents of the records over their creation 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 records as it does here CREW v U S Dep't of Homeland Sec 527 F Supp 2d 76 91 D D C 2007 Applying this precedent the district court here properly concluded r egardless 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 JA102 Accordingly the visitor records are created or obtained by the Secret Service B The Secret Service Controls The White House Visitor Records As records under the control of the Secret Service the visitor logs also satisfy the second prong of the Tax Analysts test as expanded upon by the fourfactor Burka test The government disputes this conclusion devoting the bulk of its brief to arguing the visitor logs are under the control of the White House As 14 USCA Case #11-5282 Document #1372780 Filed 05 08 2012 Page 23 of 53 evidence of this control the government points to a memorandum of understanding MOU executed in 2006 that states the WAVES and ACR records are at all times Presidential records not the records of an 'agency' subject to the Freedom of Information Act JA14 According to the government the MOU provides the clearest possible evidence that the White House and not the Secret Service has 'exclusive control of the disputed documents ' Br at 23 citations omitted This reliance is misplaced and ignores the other indicia of control all of which weigh unmistakably in favor of treating these records as agency records subject to the FOIA 1 The Intent Of The Documents' Creator First although the district court concluded here the MOU reflected an intent by the Secret Service to relinquish control to the White House 7 the court failed to take into account the self-serving nature of this evidence The MOU was manufactured after the Secret Service created many of the visitor records sought in previous FOIA requests and after the Secret Service was sued for those records See e g CREW v U S Dep't of Homeland Sec 527 F Supp 2d at 92 n 22 8 7 JA103-104 For these reasons the district court in that case treated the MOU with skepticism but determined the intent of the Secret Service was to relinquish control over the visitor records once a visit was completed Id at 92 and n 22 8 15 USCA Case #11-5282 Document #1372780 Filed 05 08 2012 Page 24 of 53 In a series of cases this Court has emphasized only contemporaneous and specific instructions to the agencies limiting either the use or disclosure of the documents will suffice as evidence of control by some entity other than the agency in possession of the documents United We Stand 359 F 3d at 602 quoting Paisley 712 F 2d at 694 emphasis in original Accordingly in Holy Spirit the court gave no weight to a letter sent from the Clerk of the House of Representatives to the agency in evaluating the agency's control because the letter was written following the FOIA request at issue the resulting litigation and long after the records had been transferred Likewise in Paisley the court rejected one-sided correspondence initiated long after the original creation and transfer of the documents as post hoc rationalization 712 F 2d at 695 And in United We Stand this Circuit found the agency had control notwithstanding the belief of a congressional committee that confidentiality was critical to its work and its practice of retaining control over its communications with the agency 359 F 3d at 602 Under this precedent the MOU between the White House and the Secret Service fails to evidence an intent by the Secret Service to relinquish control over the visitor logs Executed after litigation ensued over the agency status of the 16 USCA Case #11-5282 Document #1372780 Filed 05 08 2012 Page 25 of 53 logs the MOU represents the same kind of post hoc rationalization the Paisley court rejected out of hand 712 F 2d at 695 9 2 The Secret Service's Ability To Use And Dispose Of The Records The second Burka factor the agency's ability to use and dispose of the records as it sees fit also weighs against the Secret Service As the district court noted the agency's own declarations and its actions demonstrate the Secret Service has a clear ability to use the visitor records in performing its statutory responsibilities JA105 Specifically 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 ' Id quoting JA85 5 Similarly the Secret Service disposes of the records as it sees fit as evidenced in part by its longstanding practice of erasing WAVES records once copies are transferred to the White House JA9 Moreover while the MOU reflects a policy that requires the Secret Service to transfer copies of the records to the Office of Records Management once it is done with the records the agency has For similar reasons the letter sent by the vice president's counsel purportedly confirming the vice president's exclusive control over records relating to visits to the vice president's resident and sent months after the MOU was executed carries no weight 9 17 USCA Case #11-5282 Document #1372780 Filed 05 08 2012 Page 26 of 53 nevertheless 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 JA105 Relying on the actual manner in which the Secret Service uses the requested records not its subjective intent the district court properly concluded this factor does not weigh in favor of the agency See Judicial Watch Inc v Fed Hous Fin Agency 646 F 3d at 927-28 quoting Consumer Fed'n of Am v Dep't of Agric 455 F 3d at 288 use is the decisive factor in determining agency record status under the FOIA 3 The Extent To Which Agency Personnel Have Read Or Relied On The Documents In the face of unimpeachable evidence that the Secret Service has relied upon the WAVES and ACR records to perform its statutorily mandated protective function the government argued below that because this use was limited the third Burka factor tips in favor of the Secret Service But as the district court found t his 'limited' reliance is directly tied to the purpose of the records in the first place JA106 Thus regardless of their eventual transfer to another entity the visitor records are agency records under the FOIA because their use by the Secret Service correlates precisely to the purpose for which they were created On appeal the government points to the express language of the MOU granting the Secret Service only temporary physical possession of the 18 USCA Case #11-5282 Document #1372780 Filed 05 08 2012 Page 27 of 53 documents and suggests the White House retains complete and exclusive legal control Br at 24 quoting JA14 18 This of course begs the question of what constitutes legal control for purposes of the FOIA On that issue the agency's actual practices are far more revealing than the post-hoc rationalization contained in the MOU 4 The Degree To Which The Secret Service Integrated The Records Into The Agency's System Or Files The final Burka factor the degree to which the Secret Service has integrated the visitor records into the agency's system or files also demonstrates agency control The records reside on the Secret Service's servers and even after transfer the agency retained copies JA107 quoting JA81-82 11 That the Secret Service retained at least some of the records for only a brief period of time does not alter this conclusion See CREW v U S Dep't of Homeland Sec 527 F Supp 2d at 96 D D C 2007 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 In sum while the Burka analysis requires consideration of four factors at root it is an effort to ascertain agency control based on the totality of the circumstances Here all four factors weigh in favor of treating the White House 19 USCA Case #11-5282 Document #1372780 Filed 05 08 2012 Page 28 of 53 visitor records as agency records subject to the FOIA The Secret Service has actual possession of the records which it uses to perform its statutorily mandated protective function To otherwise allow a post-hoc statement of intent to dictate the status of the records would make the determination of 'agency records' turn on the intent of the creator of the document something the Supreme Court specifically has eschewed Tax Analysts 492 U S at 147 III ANY LEGITIMATE INTEREST OF THE WHITE HOUSE CAN BE ADEQUATELY PROTECTED THROUGH THE FOIA'S EXEMPTIONS Commensurate with the broad range of information falling within the scope of agency records covered by the FOIA the statute's exemptions are intended to protect a broad range of interests that may be asserted by or on behalf of governmental and non-agency sources of information contained in an agency's records See August v FBI 328 F 3d 697 699 D C Cir 2003 quoting John Doe Agency v John Doe Corp 493 U S 146 152 1989 Thus individual tax return information is exempt from disclosure under Exemption 3 Tax Analysts v IRS 214 F 3d 179 D C Cir 2000 while confidential contract pricing information may be withheld under Exemption 4 McDonnell Douglas Corp v Dep't of the Air Force 375 F 3d 1182 1190 D C Cir 2004 even though both categories of information come from non-governmental sources Here the Secret Service's ready recourse in Exemption 5 confirmed for the district court the agency record 20 USCA Case #11-5282 Document #1372780 Filed 05 08 2012 Page 29 of 53 status of the visitor logs JA109 quoting CREW v U S Dep't of Homeland Sec 527 F Supp 2d at 99 Invoking the doctrine of constitutional avoidance the government argues the FOIA's exemptions inadequately protect the constitutional prerogatives of the president As an initial matter this doctrine does not apply because as the district court found the Court is not faced with an interpretation of an ambiguous statute a necessary prerequisite to the doctrine's application JA108 The government also errs in suggesting resort the statutory exemption scheme Congress established in the FOIA for protecting governmental and nongovernmental interests would implicate the President's interest 'in maintaining the autonomy of his office and safeguarding the confidentiality of his communications ' Br at 29 quoting Cheney v U S Dist Court 542 U S 367 385 2004 To the contrary such asserted confidentiality interests are precisely the type of concern to be litigated within the framework of Exemption 5 That process calls upon the court to strike a balance between the twin values of transparency and accountability of the executive branch on the one hand and on the other hand protection of Presidential decisionmaking and the President's ability to obtain candid informed advice 21 USCA Case #11-5282 Document #1372780 Filed 05 08 2012 Page 30 of 53 Judicial Watch v Dep't of Justice 365 F 3d 1108 1112 D C Cir 2004 In language that responds directly to the confidentiality interest asserted by the government here the Court noted a t core the presidential communications privilege is rooted in the President's 'need for confidentiality in the communications of his office ' Id at 115 quoting United States v Nixon 418 U S 683 712-13 1974 Further it is derived from separation-of-powers concerns and anchored in FOIA Exemption 5 United States v Pollard 416 F 3d 48 61 D C Cir 2005 Rogers J concurring in part and dissenting in part emphasis added Therefore Exemption 5 presents the appropriate solution to the separation-of-powers problems raised by the government not the government's radical and unprecedented approach of exempting these records from the FOIA altogether See NLRB v Sears Roebuck Co 421 U S 132 150 1975 That Congress had the Government's executive privilege specifically in mind in adopting Exemption 5 is clear citations omitted Having failed to explain why the available exemptions do not sufficiently protect the president's confidential communications the government falls back on burden arguments suggesting the president vice president and their staff must be protected from bearing the burden of actually processing the records plaintiff seeks Br at 31 There is in fact nothing extraordinary about imposing such a burden on White House staff Indeed a Department of Justice DOJ 22 USCA Case #11-5282 Document #1372780 Filed 05 08 2012 Page 31 of 53 memorandum issued in 1993 explicitly recognizes i n processing FOIA requests agencies searching for responsive records occasionally find White House-originated records or records containing White House-originated information that are located in their files 10 The memorandum instructs that when agency records responsive to FOIA requests contain information that originated in the White House Office or the Office of the Vice President agencies are to forward those records to the Office of the Counsel to the President or the Office of the Counsel to the Vice President for consultation with respect to issues such as the applicability of the FOIA's exemptions and assertion s of privilege Id at 1 2 Adherence to this established and longstanding consultation process is all that the district court's decision here would require 11 As for any undue U S Department of Justice FOIA Update FOIA Memo on White House Records 1993 Vol XIV No 3 at 6-8 available at http www justice gov oip foia_updates Vol_XIV_3 page4 htm emphasis added 10 Notably the DOJ memorandum recognizes when agencies find White House-originated records or records containing White House-originated information in their files they must process disclosure requests for those records in compliance with the FOIA's requirements While the memorandum also recognizes the possib ility that a record originating in the White House Office will be one over which the White House Office has retained control in which case it will not be an 'agency record' subject to the FOIA id at 1 that scenario is not applicable here The government has never suggested the records at issue here originated in the White House Office only that the records contain information provided by authorized White House passholders Br at 30 11 23 USCA Case #11-5282 Document #1372780 Filed 05 08 2012 Page 32 of 53 burden this would impose the district court found on the record below 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 JA112 citation omitted The government offers no basis here to disturb that finding Reinforcing this conclusion is the practice of the past two and one-half years under which the Obama administration has periodically posted visitor records on-line for public access Much like the operation of the FOIA's exemptions the administration's disclosure policy provides the White House the opportunity to redact certain personal and national security information JA32 Having borne that burden already the administration is hard-pressed to argue such a burden alone justifies exempting the records from the FOIA CONCLUSION Accepting the radical position of the government here on the agency record status of White House visitor logs would deny the public access to important records documenting both the manner in which the Secret Service performs its protective function and the influences brought to bear on White House policies As the district court found 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 JA102 24 USCA Case #11-5282 Document #1372780 Filed 05 08 2012 Page 33 of 53 and proposals 12 The government's position raises very troubling implications beyond the facts of this case If as the government maintains the White House can declare by unilateral fiat that it controls an agency's records simply because the president and vice president have an ongoing interest in the records for various historical and informational purposes Br at 30-31 quotation omitted the FOIA will be rendered essentially a dead letter and a substantial amount of government information will be put beyond the public's reach The Court should therefore affirm the judgment of the district court that the visitor logs are agency records within the scope of the FOIA Respectfully Submitted DATED May 8 2012 s Anne L Weismann Anne L Weismann CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON 1400 Eye Street NW Suite 450 Washington DC 20005 202 408-5565 Counsel for Amici Curiae The government contends the request at issue does not implicate the basic purpose of the FOIA to shed light on agency action Br at 30 This is demonstrably false the Secret Service creates and uses these records in fulfillment of its core mission of protecting the president and vice-president See CREW v U S Dep't of Homeland Sec 527 F Supp 2d at 93-94 citing 18 U S C 3056 3056A 12 25 USCA Case #11-5282 Document #1372780 Filed 05 08 2012 Page 34 of 53 CERTIFICATE OF COMPLIANCE 1 This brief complies with the type-volume limitation of Fed R App P 29 d or 32 a 7 B because X this brief contains 5 844 words excluding the parts of the brief exempted by Fed R App P 32 a 7 B iii or this brief uses a monospaced typeface and contains state the number of lines of text excluding the parts of the brief exempted by Fed R App P 32 a 7 B iii 2 This brief complies with the typeface requirements of Fed R App P 32 a 5 and the type style requirements of Fed R App P 32 a 6 because X this brief has been prepared in a proportionally spaced typeface using Microsoft Word 2007 in 14pt Times New Roman or this brief has been prepared in a monospaced typeface using state name and version of word processing program with state number of characters per inch and name of type style Dated May 8 2012 s Anne L Weismann Counsel for Amici Curiae USCA Case #11-5282 Document #1372780 Filed 05 08 2012 Page 35 of 53 CERTIFICATE OF FILING AND SERVICE I hereby certify that on this 8th day of May 2012 I caused this Brief of Amici Curiae to be filed electronically with the Clerk of the Court using the CM ECF System which will send notice of such filing to the following registered CM ECF users Paul J Orfanedes James F Peterson JUDICIAL WATCH INC 425 Third Street SW Suite 800 Washington DC 20024 202 646-5172 Michael S Raab Mark B Stern Abby C Wright Beth S Brinkmann Tony West U S DEPARTMENT OF JUSTICE 950 Pennsylvania Avenue NW Room 3135 Washington DC 20530 202 514-2000 Brad P Rosenberg U S DEPARTMENT OF JUSTICE Post Office Box 883 Washington DC 20044 202 616-8300 Ronald C Machen OFFICE OF THE U S ATTORNEY 555 4th Street NW Washington DC 20530 202 252-6829 USCA Case #11-5282 Document #1372780 Filed 05 08 2012 Page 36 of 53 I further certify that on this 8th day of May 2012 the required number of copies of the Brief of Amici Curiae were hand-filed with the Clerk of this Court s Anne L Weismann Counsel for Amici Curiae USCA Case #11-5282 Document #1372780 Filed 05 08 2012 Page 37 of 53 ADDENDUM USCA Case #11-5282 Document #1372780 Filed 05 08 2012 Page 38 of 53 TABLE OF CONTENTS 5 U S C 552 ADD1 USCA Case #11-5282 Document #1372780 Filed 05 08 2012 Page 39 of 53 5 USC 552 - Public information agency rules opinions orders records and proceedings a Each agency shall make available to the public information as follows 1 Each agency shall separately state and currently publish in the Federal Register for the guidance of the public-- A descriptions of its central and field organization and the established places at which the employees and in the case of a uniformed service the members from whom and the methods whereby the public may obtain information make submittals or requests or obtain decisions B statements of the general course and method by which its functions are channeled and determined including the nature and requirements of all formal and informal procedures available C rules of procedure descriptions of forms available or the places at which forms may be obtained and instructions as to the scope and contents of all papers reports or examinations D substantive rules of general applicability adopted as authorized by law and statements of general policy or interpretations of general applicability formulated and adopted by the agency and E each amendment revision or repeal of the foregoing Except to the extent that a person has actual and timely notice of the terms thereof a person may not in any manner be required to resort to or be adversely affected by a matter required to be published in the Federal Register and not so published For the purpose of this paragraph matter reasonably available to the class of persons affected thereby is deemed published in the Federal Register when incorporated by reference therein with the approval of the Director of the Federal Register 2 Each agency in accordance with published rules shall make available for public inspection and copying-- A final opinions including concurring and dissenting opinions as well as orders made in the adjudication of cases B those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register C administrative staff manuals and instructions to staff that affect a member of the public D copies of all records regardless of form or format which have been released to any person under paragraph 3 and which because of the nature of their subject matter the agency determines have become or are likely to become the subject of subsequent requests for substantially the same records and E a general index of the records referred to under subparagraph D -ADD 1 - USCA Case #11-5282 Document #1372780 Filed 05 08 2012 Page 40 of 53 unless the materials are promptly published and copies offered for sale For records created on or after November 1 1996 within one year after such date each agency shall make such records available including by computer telecommunications or if computer telecommunications means have not been established by the agency by other electronic means To the extent required to prevent a clearly unwarranted invasion of personal privacy an agency may delete identifying details when it makes available or publishes an opinion statement of policy interpretation staff manual instruction or copies of records referred to in subparagraph D However in each case the justification for the deletion shall be explained fully in writing and the extent of such deletion shall be indicated on the portion of the record which is made available or published unless including that indication would harm an interest protected by the exemption in subsection b under which the deletion is made If technically feasible the extent of the deletion shall be indicated at the place in the record where the deletion was made Each agency shall also maintain and make available for public inspection and copying current indexes providing identifying information for the public as to any matter issued adopted or promulgated after July 4 1967 and required by this paragraph to be made available or published Each agency shall promptly publish quarterly or more frequently and distribute by sale or otherwise copies of each index or supplements thereto unless it determines by order published in the Federal Register that the publication would be unnecessary and impracticable in which case the agency shall nonetheless provide copies of such index on request at a cost not to exceed the direct cost of duplication Each agency shall make the index referred to in subparagraph E available by computer telecommunications by December 31 1999 A final order opinion statement of policy interpretation or staff manual or instruction that affects a member of the public may be relied on used or cited as precedent by an agency against a party other than an agency only if-- i it has been indexed and either made available or published as provided by this paragraph or ii the party has actual and timely notice of the terms thereof 3 A Except with respect to the records made available under paragraphs 1 and 2 of this subsection and except as provided in subparagraph E each agency upon any request for records which i reasonably describes such records and ii is made in accordance with published rules stating the time place fees if any and procedures to be followed shall make the records promptly available to any person B In making any record available to a person under this paragraph an agency shall provide the record in any form or format requested by the person if the record -ADD 2 - USCA Case #11-5282 Document #1372780 Filed 05 08 2012 Page 41 of 53 is readily reproducible by the agency in that form or format Each agency shall make reasonable efforts to maintain its records in forms or formats that are reproducible for purposes of this section C In responding under this paragraph to a request for records an agency shall make reasonable efforts to search for the records in electronic form or format except when such efforts would significantly interfere with the operation of the agency's automated information system D For purposes of this paragraph the term search means to review manually or by automated means agency records for the purpose of locating those records which are responsive to a request E An agency or part of an agency that is an element of the intelligence community as that term is defined in section 3 4 of the National Security Act of 1947 50 U S C 401a 4 shall not make any record available under this paragraph to-- i any government entity other than a State territory commonwealth or district of the United States or any subdivision thereof or ii a representative of a government entity described in clause i 4 A i In order to carry out the provisions of this section each agency shall promulgate regulations pursuant to notice and receipt of public comment specifying the schedule of fees applicable to the processing of requests under this section and establishing procedures and guidelines for determining when such fees should be waived or reduced Such schedule shall conform to the guidelines which shall be promulgated pursuant to notice and receipt of public comment by the Director of the Office of Management and Budget and which shall provide for a uniform schedule of fees for all agencies ii Such agency regulations shall provide that-- I fees shall be limited to reasonable standard charges for document search duplication and review when records are requested for commercial use II fees shall be limited to reasonable standard charges for document duplication when records are not sought for commercial use and the request is made by an educational or noncommercial scientific institution whose purpose is scholarly or scientific research or a representative of the news media and III for any request not described in I or II fees shall be limited to reasonable standard charges for document search and duplication In this clause the term a representative of the news media means any person or entity that gathers information of potential interest to a segment of the public uses its editorial skills to turn the raw materials into a distinct work and distributes that work to an audience In this clause the term news means information that is -ADD 3 - USCA Case #11-5282 Document #1372780 Filed 05 08 2012 Page 42 of 53 about current events or that would be of current interest to the public Examples of news-media entities are television or radio stations broadcasting to the public at large and publishers of periodicals but only if such entities qualify as disseminators of news who make their products available for purchase by or subscription by or free distribution to the general public These examples are not all-inclusive Moreover as methods of news delivery evolve for example the adoption of the electronic dissemination of newspapers through telecommunications services such alternative media shall be considered to be news-media entities A freelance journalist shall be regarded as working for a news-media entity if the journalist can demonstrate a solid basis for expecting publication through that entity whether or not the journalist is actually employed by the entity A publication contract would present a solid basis for such an expectation the Government may also consider the past publication record of the requester in making such a determination iii Documents shall be furnished without any charge or at a charge reduced below the fees established under clause ii if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester iv Fee schedules shall provide for the recovery of only the direct costs of search duplication or review Review costs shall include only the direct costs incurred during the initial examination of a document for the purposes of determining whether the documents must be disclosed under this section and for the purposes of withholding any portions exempt from disclosure under this section Review costs may not include any costs incurred in resolving issues of law or policy that may be raised in the course of processing a request under this section No fee may be charged by any agency under this section-- I if the costs of routine collection and processing of the fee are likely to equal or exceed the amount of the fee or II for any request described in clause ii II or III of this subparagraph for the first two hours of search time or for the first one hundred pages of duplication v No agency may require advance payment of any fee unless the requester has previously failed to pay fees in a timely fashion or the agency has determined that the fee will exceed $250 vi Nothing in this subparagraph shall supersede fees chargeable under a statute specifically providing for setting the level of fees for particular types of records vii In any action by a requester regarding the waiver of fees under this section the court shall determine the matter de novo Provided That the court's review of the matter shall be limited to the record before the agency -ADD 4 - USCA Case #11-5282 Document #1372780 Filed 05 08 2012 Page 43 of 53 viii An agency shall not assess search fees or in the case of a requester described under clause ii II duplication fees under this subparagraph if the agency fails to comply with any time limit under paragraph 6 if no unusual or exceptional circumstances as those terms are defined for purposes of paragraphs 6 B and C respectively apply to the processing of the request B On complaint the district court of the United States in the district in which the complainant resides or has his principal place of business or in which the agency records are situated or in the District of Columbia has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant In such a case the court shall determine the matter de novo and may examine the contents of such agency records in camera to determine whether such records or any part thereof shall be withheld under any of the exemptions set forth in subsection b of this section and the burden is on the agency to sustain its action In addition to any other matters to which a court accords substantial weight a court shall accord substantial weight to an affidavit of an agency concerning the agency's determination as to technical feasibility under paragraph 2 C and subsection b and reproducibility under paragraph 3 B C Notwithstanding any other provision of law the defendant shall serve an answer or otherwise plead to any complaint made under this subsection within thirty days after service upon the defendant of the pleading in which such complaint is made unless the court otherwise directs for good cause shown D Repealed Pub L 98-620 title IV 402 2 Nov 8 1984 98 Stat 3357 E i The court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed ii For purposes of this subparagraph a complainant has substantially prevailed if the complainant has obtained relief through either-- I a judicial order or an enforceable written agreement or consent decree or II a voluntary or unilateral change in position by the agency if the complainant's claim is not insubstantial F i Whenever the court orders the production of any agency records improperly withheld from the complainant and assesses against the United States reasonable attorney fees and other litigation costs and the court additionally issues a written finding that the circumstances surrounding the withholding raise questions whether agency personnel acted arbitrarily or capriciously with respect to the withholding the Special Counsel shall promptly initiate a proceeding to determine whether disciplinary action is warranted against the officer or employee who was primarily -ADD 5 - USCA Case #11-5282 Document #1372780 Filed 05 08 2012 Page 44 of 53 responsible for the withholding The Special Counsel after investigation and consideration of the evidence submitted shall submit his findings and recommendations to the administrative authority of the agency concerned and shall send copies of the findings and recommendations to the officer or employee or his representative The administrative authority shall take the corrective action that the Special Counsel recommends ii The Attorney General shall-- I notify the Special Counsel of each civil action described under the first sentence of clause i and II annually submit a report to Congress on the number of such civil actions in the preceding year iii The Special Counsel shall annually submit a report to Congress on the actions taken by the Special Counsel under clause i G In the event of noncompliance with the order of the court the district court may punish for contempt the responsible employee and in the case of a uniformed service the responsible member 5 Each agency having more than one member shall maintain and make available for public inspection a record of the final votes of each member in every agency proceeding 6 A Each agency upon any request for records made under paragraph 1 2 or 3 of this subsection shall-- i determine within 20 days excepting Saturdays Sundays and legal public holidays after the receipt of any such request whether to comply with such request and shall immediately notify the person making such request of such determination and the reasons therefor and of the right of such person to appeal to the head of the agency any adverse determination and ii make a determination with respect to any appeal within twenty days excepting Saturdays Sundays and legal public holidays after the receipt of such appeal If on appeal the denial of the request for records is in whole or in part upheld the agency shall notify the person making such request of the provisions for judicial review of that determination under paragraph 4 of this subsection The 20-day period under clause i shall commence on the date on which the request is first received by the appropriate component of the agency but in any event not later than ten days after the request is first received by any component of the agency that is designated in the agency's regulations under this section to receive requests under this section The 20-day period shall not be tolled by the agency except-- -ADD 6 - USCA Case #11-5282 Document #1372780 Filed 05 08 2012 Page 45 of 53 I that the agency may make one request to the requester for information and toll the 20-day period while it is awaiting such information that it has reasonably requested from the requester under this section or II if necessary to clarify with the requester issues regarding fee assessment In either case the agency's receipt of the requester's response to the agency's request for information or clarification ends the tolling period B i In unusual circumstances as specified in this subparagraph the time limits prescribed in either clause i or clause ii of subparagraph A may be extended by written notice to the person making such request setting forth the unusual circumstances for such extension and the date on which a determination is expected to be dispatched No such notice shall specify a date that would result in an extension for more than ten working days except as provided in clause ii of this subparagraph ii With respect to a request for which a written notice under clause i extends the time limits prescribed under clause i of subparagraph A the agency shall notify the person making the request if the request cannot be processed within the time limit specified in that clause and shall provide the person an opportunity to limit the scope of the request so that it may be processed within that time limit or an opportunity to arrange with the agency an alternative time frame for processing the request or a modified request To aid the requester each agency shall make available its FOIA Public Liaison who shall assist in the resolution of any disputes between the requester and the agency Refusal by the person to reasonably modify the request or arrange such an alternative time frame shall be considered as a factor in determining whether exceptional circumstances exist for purposes of subparagraph C iii As used in this subparagraph unusual circumstances means but only to the extent reasonably necessary to the proper processing of the particular requests-- I the need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request II the need to search for collect and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request or III the need for consultation which shall be conducted with all practicable speed with another agency having a substantial interest in the determination of the request or among two or more components of the agency having substantial subject-matter interest therein iv Each agency may promulgate regulations pursuant to notice and receipt of public comment providing for the aggregation of certain requests by the same requestor or by a group of requestors acting in concert if the agency reasonably believes that such requests actually constitute a single request which would -ADD 7 - USCA Case #11-5282 Document #1372780 Filed 05 08 2012 Page 46 of 53 otherwise satisfy the unusual circumstances specified in this subparagraph and the requests involve clearly related matters Multiple requests involving unrelated matters shall not be aggregated C i Any person making a request to any agency for records under paragraph 1 2 or 3 of this subsection shall be deemed to have exhausted his administrative remedies with respect to such request if the agency fails to comply with the applicable time limit provisions of this paragraph If the Government can show exceptional circumstances exist and that the agency is exercising due diligence in responding to the request the court may retain jurisdiction and allow the agency additional time to complete its review of the records Upon any determination by an agency to comply with a request for records the records shall be made promptly available to such person making such request Any notification of denial of any request for records under this subsection shall set forth the names and titles or positions of each person responsible for the denial of such request ii For purposes of this subparagraph the term exceptional circumstances does not include a delay that results from a predictable agency workload of requests under this section unless the agency demonstrates reasonable progress in reducing its backlog of pending requests iii Refusal by a person to reasonably modify the scope of a request or arrange an alternative time frame for processing a request or a modified request under clause ii after being given an opportunity to do so by the agency to whom the person made the request shall be considered as a factor in determining whether exceptional circumstances exist for purposes of this subparagraph D i Each agency may promulgate regulations pursuant to notice and receipt of public comment providing for multitrack processing of requests for records based on the amount of work or time or both involved in processing requests ii Regulations under this subparagraph may provide a person making a request that does not qualify for the fastest multitrack processing an opportunity to limit the scope of the request in order to qualify for faster processing iii This subparagraph shall not be considered to affect the requirement under subparagraph C to exercise due diligence E i Each agency shall promulgate regulations pursuant to notice and receipt of public comment providing for expedited processing of requests for records-- I in cases in which the person requesting the records demonstrates a compelling need and II in other cases determined by the agency ii Notwithstanding clause i regulations under this subparagraph must ensure-- -ADD 8 - USCA Case #11-5282 Document #1372780 Filed 05 08 2012 Page 47 of 53 I that a determination of whether to provide expedited processing shall be made and notice of the determination shall be provided to the person making the request within 10 days after the date of the request and II expeditious consideration of administrative appeals of such determinations of whether to provide expedited processing iii An agency shall process as soon as practicable any request for records to which the agency has granted expedited processing under this subparagraph Agency action to deny or affirm denial of a request for expedited processing pursuant to this subparagraph and failure by an agency to respond in a timely manner to such a request shall be subject to judicial review under paragraph 4 except that the judicial review shall be based on the record before the agency at the time of the determination iv A district court of the United States shall not have jurisdiction to review an agency denial of expedited processing of a request for records after the agency has provided a complete response to the request v For purposes of this subparagraph the term compelling need means-- I that a failure to obtain requested records on an expedited basis under this paragraph could reasonably be expected to pose an imminent threat to the life or physical safety of an individual or II with respect to a request made by a person primarily engaged in disseminating information urgency to inform the public concerning actual or alleged Federal Government activity vi A demonstration of a compelling need by a person making a request for expedited processing shall be made by a statement certified by such person to be true and correct to the best of such person's knowledge and belief F In denying a request for records in whole or in part an agency shall make a reasonable effort to estimate the volume of any requested matter the provision of which is denied and shall provide any such estimate to the person making the request unless providing such estimate would harm an interest protected by the exemption in subsection b pursuant to which the denial is made 7 Each agency shall-- A establish a system to assign an individualized tracking number for each request received that will take longer than ten days to process and provide to each person making a request the tracking number assigned to the request and B establish a telephone line or Internet service that provides information about the status of a request to the person making the request using the assigned tracking number including-- i the date on which the agency originally received the request and ii an estimated date on which the agency will complete action on the request b This section does not apply to matters that are-- -ADD 9 - USCA Case #11-5282 Document #1372780 Filed 05 08 2012 Page 48 of 53 1 A specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and B are in fact properly classified pursuant to such Executive order 2 related solely to the internal personnel rules and practices of an agency 3 specifically exempted from disclosure by statute other than section 552b of this title if that statute-- A i requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue or ii establishes particular criteria for withholding or refers to particular types of matters to be withheld and B if enacted after the date of enactment of the OPEN FOIA Act of 2009 specifically cites to this paragraph 4 trade secrets and commercial or financial information obtained from a person and privileged or confidential 5 inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency 6 personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy 7 records or information compiled for law enforcement purposes but only to the extent that the production of such law enforcement records or information A could reasonably be expected to interfere with enforcement proceedings B would deprive a person of a right to a fair trial or an impartial adjudication C could reasonably be expected to constitute an unwarranted invasion of personal privacy D could reasonably be expected to disclose the identity of a confidential source including a State local or foreign agency or authority or any private institution which furnished information on a confidential basis and in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation information furnished by a confidential source E would disclose techniques and procedures for law enforcement investigations or prosecutions or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law or F could reasonably be expected to endanger the life or physical safety of any individual -ADD 10 - USCA Case #11-5282 Document #1372780 Filed 05 08 2012 Page 49 of 53 8 contained in or related to examination operating or condition reports prepared by on behalf of or for the use of an agency responsible for the regulation or supervision of financial institutions or 9 geological and geophysical information and data including maps concerning wells Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection The amount of information deleted and the exemption under which the deletion is made shall be indicated on the released portion of the record unless including that indication would harm an interest protected by the exemption in this subsection under which the deletion is made If technically feasible the amount of the information deleted and the exemption under which the deletion is made shall be indicated at the place in the record where such deletion is made c 1 Whenever a request is made which involves access to records described in subsection b 7 A and-- A the investigation or proceeding involves a possible violation of criminal law and B there is reason to believe that i the subject of the investigation or proceeding is not aware of its pendency and ii disclosure of the existence of the records could reasonably be expected to interfere with enforcement proceedings the agency may during only such time as that circumstance continues treat the records as not subject to the requirements of this section 2 Whenever informant records maintained by a criminal law enforcement agency under an informant's name or personal identifier are requested by a third party according to the informant's name or personal identifier the agency may treat the records as not subject to the requirements of this section unless the informant's status as an informant has been officially confirmed 3 Whenever a request is made which involves access to records maintained by the Federal Bureau of Investigation pertaining to foreign intelligence or counterintelligence or international terrorism and the existence of the records is classified information as provided in subsection b 1 the Bureau may as long as the existence of the records remains classified information treat the records as not subject to the requirements of this section d This section does not authorize withholding of information or limit the availability of records to the public except as specifically stated in this section This section is not authority to withhold information from Congress e -ADD 11 - USCA Case #11-5282 Document #1372780 Filed 05 08 2012 Page 50 of 53 1 On or before February 1 of each year each agency shall submit to the Attorney General of the United States a report which shall cover the preceding fiscal year and which shall include-- A the number of determinations made by the agency not to comply with requests for records made to such agency under subsection a and the reasons for each such determination B i the number of appeals made by persons under subsection a 6 the result of such appeals and the reason for the action upon each appeal that results in a denial of information and ii a complete list of all statutes that the agency relies upon to authorize the agency to withhold information under subsection b 3 the number of occasions on which each statute was relied upon a description of whether a court has upheld the decision of the agency to withhold information under each such statute and a concise description of the scope of any information withheld C the number of requests for records pending before the agency as of September 30 of the preceding year and the median and average number of days that such requests had been pending before the agency as of that date D the number of requests for records received by the agency and the number of requests which the agency processed E the median number of days taken by the agency to process different types of requests based on the date on which the requests were received by the agency F the average number of days for the agency to respond to a request beginning on the date on which the request was received by the agency the median number of days for the agency to respond to such requests and the range in number of days for the agency to respond to such requests G based on the number of business days that have elapsed since each request was originally received by the agency-- i the number of requests for records to which the agency has responded with a determination within a period up to and including 20 days and in 20-day increments up to and including 200 days ii the number of requests for records to which the agency has responded with a determination within a period greater than 200 days and less than 301 days iii the number of requests for records to which the agency has responded with a determination within a period greater than 300 days and less than 401 days and iv the number of requests for records to which the agency has responded with a determination within a period greater than 400 days H the average number of days for the agency to provide the granted information beginning on the date on which the request was originally filed the median -ADD 12 - USCA Case #11-5282 Document #1372780 Filed 05 08 2012 Page 51 of 53 number of days for the agency to provide the granted information and the range in number of days for the agency to provide the granted information I the median and average number of days for the agency to respond to administrative appeals based on the date on which the appeals originally were received by the agency the highest number of business days taken by the agency to respond to an administrative appeal and the lowest number of business days taken by the agency to respond to an administrative appeal J data on the 10 active requests with the earliest filing dates pending at each agency including the amount of time that has elapsed since each request was originally received by the agency K data on the 10 active administrative appeals with the earliest filing dates pending before the agency as of September 30 of the preceding year including the number of business days that have elapsed since the requests were originally received by the agency L the number of expedited review requests that are granted and denied the average and median number of days for adjudicating expedited review requests and the number adjudicated within the required 10 days M the number of fee waiver requests that are granted and denied and the average and median number of days for adjudicating fee waiver determinations N the total amount of fees collected by the agency for processing requests and O the number of full-time staff of the agency devoted to processing requests for records under this section and the total amount expended by the agency for processing such requests 2 Information in each report submitted under paragraph 1 shall be expressed in terms of each principal component of the agency and for the agency overall 3 Each agency shall make each such report available to the public including by computer telecommunications or if computer telecommunications means have not been established by the agency by other electronic means In addition each agency shall make the raw statistical data used in its reports available electronically to the public upon request 4 The Attorney General of the United States shall make each report which has been made available by electronic means available at a single electronic access point The Attorney General of the United States shall notify the Chairman and ranking minority member of the Committee on Government Reform and Oversight of the House of Representatives and the Chairman and ranking minority member of the Committees on Governmental Affairs and the Judiciary of the Senate no later than April 1 of the year in which each such report is issued that such reports are available by electronic means 5 The Attorney General of the United States in consultation with the Director of the Office of Management and Budget shall develop reporting and performance -ADD 13 - USCA Case #11-5282 Document #1372780 Filed 05 08 2012 Page 52 of 53 guidelines in connection with reports required by this subsection by October 1 1997 and may establish additional requirements for such reports as the Attorney General determines may be useful 6 The Attorney General of the United States shall submit an annual report on or before April 1 of each calendar year which shall include for the prior calendar year a listing of the number of cases arising under this section the exemption involved in each case the disposition of such case and the cost fees and penalties assessed under subparagraphs E F and G of subsection a 4 Such report shall also include a description of the efforts undertaken by the Department of Justice to encourage agency compliance with this section f For purposes of this section the term-- 1 agency as defined in section 551 1 of this title includes any executive department military department Government corporation Government controlled corporation or other establishment in the executive branch of the Government including the Executive Office of the President or any independent regulatory agency and 2 record and any other term used in this section in reference to information includes-- A any information that would be an agency record subject to the requirements of this section when maintained by an agency in any format including an electronic format and B any information described under subparagraph A that is maintained for an agency by an entity under Government contract for the purposes of records management g The head of each agency shall prepare and make publicly available upon request reference material or a guide for requesting records or information from the agency subject to the exemptions in subsection b including-- 1 an index of all major information systems of the agency 2 a description of major information and record locator systems maintained by the agency and 3 a handbook for obtaining various types and categories of public information from the agency pursuant to chapter 35 of title 44 and under this section h 1 There is established the Office of Government Information Services within the National Archives and Records Administration 2 The Office of Government Information Services shall-- A review policies and procedures of administrative agencies under this section B review compliance with this section by administrative agencies and C recommend policy changes to Congress and the President to improve the administration of this section -ADD 14 - USCA Case #11-5282 Document #1372780 Filed 05 08 2012 Page 53 of 53 3 The Office of Government Information Services shall offer mediation services to resolve disputes between persons making requests under this section and administrative agencies as a non-exclusive alternative to litigation and at the discretion of the Office may issue advisory opinions if mediation has not resolved the dispute i The Government Accountability Office shall conduct audits of administrative agencies on the implementation of this section and issue reports detailing the results of such audits j Each agency shall designate a Chief FOIA Officer who shall be a senior official of such agency at the Assistant Secretary or equivalent level k The Chief FOIA Officer of each agency shall subject to the authority of the head of the agency-- 1 have agency-wide responsibility for efficient and appropriate compliance with this section 2 monitor implementation of this section throughout the agency and keep the head of the agency the chief legal officer of the agency and the Attorney General appropriately informed of the agency's performance in implementing this section 3 recommend to the head of the agency such adjustments to agency practices policies personnel and funding as may be necessary to improve its implementation of this section 4 review and report to the Attorney General through the head of the agency at such times and in such formats as the Attorney General may direct on the agency's performance in implementing this section 5 facilitate public understanding of the purposes of the statutory exemptions of this section by including concise descriptions of the exemptions in both the agency's handbook issued under subsection g and the agency's annual report on this section and by providing an overview where appropriate of certain general categories of agency records to which those exemptions apply and 6 designate one or more FOIA Public Liaisons l FOIA Public Liaisons shall report to the agency Chief FOIA Officer and shall serve as supervisory officials to whom a requester under this section can raise concerns about the service the requester has received from the FOIA Requester Center following an initial response from the FOIA Requester Center Staff FOIA Public Liaisons shall be responsible for assisting in reducing delays increasing transparency and understanding of the status of requests and assisting in the resolution of disputes -ADD 15 -                     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