United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Argued September 18 2012 Decided August 30 2013 No 11-5282 JUDICIAL WATCH INC APPELLEE v UNITED STATES SECRET SERVICE APPELLANT Appeal from the United States District Court for the District of Columbia No 1 09-cv-02312 Mark B Stern Attorney U S Department of Justice argued the cause for appellant With him on the briefs were Tony West Assistant Attorney General Ronald C Machen Jr U S Attorney Beth S Brinkmann Deputy Assistant Attorney General and Michael S Raab and Abby C Wright Attorneys Brad P Rosenberg Trial Attorney entered an appearance James F Peterson argued the cause and filed the brief for appellee Paul J Orfanedes entered an appearance David Murray was on the brief for amici curiae Bloomberg L P et al in support of appellee David L Sobel Anne L Weismann and Melanie Sloan were 2 on the brief for amici curiae Citizens for Responsibility and Ethics in Washington et al in support of appellee Before GARLAND Chief Judge and SENTELLE and WILLIAMS Senior Circuit Judges Opinion for the Court filed by Chief Judge GARLAND GARLAND Chief Judge Judicial Watch filed a Freedom of Information Act FOIA request with the Secret Service seeking records of every visitor to the White House Complex over a period of seven months The Secret Service denied the request arguing that the requested documents are not agency records subject to disclosure under FOIA The district court rejected that argument and ordered the agency to release the records or assert specific FOIA exemptions on a document-by-document basis We reverse in part and affirm in part In both the 1974 FOIA Amendments and the 1978 Presidential Records Act Congress made clear that it did not want documents like the appointment calendars of the President and his close advisors to be subject to disclosure under FOIA Granting Judicial Watch's request for certain visitor records however would effectively disclose the contents of those calendars For the reasons discussed below we conclude that such records are not agency records within the meaning of FOIA In addition to the President and his advisors the White House Complex also houses components that Congress did intend to subject to FOIA We conclude that records of visits to those components are agency records subject to disclosure under the Act 3 I In 1951 the year after two men attempted to assassinate President Truman just across the street from the White House Congress permanently authorized the Secret Service to protect the President and Vice President See Pub L No 82-79 4 65 Stat 121 122 1951 codified at 18 U S C 3056 a Upon signing the legislation Truman reportedly remarked Well it is wonderful to know that the work of protecting me has at last become legal PHILIP H MELANSON THE SECRET SERVICE THE HIDDEN HISTORY OF AN ENIGMATIC AGENCY 54 2002 1 In 1984 three years after an attempt on the life of President Reagan Congress made acceptance of such protection by the President Vice President President-elect and Vice Presidentelect mandatory See Pub L No 98-587 98 Stat 3110 1984 codified at 18 U S C 3056 a 2 1 The Secret Service began protecting presidents part-time in 1894 and full-time albeit with only two officers after the assassination of President William McKinley in 1901 See Secret Service History U S SECRET SERVICE http www secretservice gov history shtml 2012 Until 1951 the agency's authority to protect the President derived solely from annual congressional appropriations to the Department of the Treasury of which it was then a component Id In 2002 the Secret Service became a component of the Department of Homeland Security See Homeland Security Act of 2002 Pub L No 107-296 821 116 Stat 2135 2224 codified at 6 U S C 381 2 The statute also authorizes Secret Service protection for other individuals including members of the President's family former presidents and major presidential candidates It provides that protection may be declined by those individuals but does not extend the option to the President Vice President President-elect or Vice President-elect 18 U S C 3056 a 4 The Secret Service's authorizing statute extends protection not only to the persons of the President and Vice President but also to the buildings in which they live and work including the White House Complex See 18 U S C 3056A a 1 - 2 White Decl 5 The White House Complex includes the White House the Eisenhower Executive Office Building EEOB their surrounding grounds and the New Executive Office Building White Decl 4 Those buildings house offices for the President and the Vice President as well as their staff and advisors In order to carry out its statutory responsibilities the Secret Service monitors and controls access to the White House Complex It accomplishes this task through an electronic system known as the White House Access Control System WHACS WHACS has two principal components the Worker and Visitor Entrance System WAVES and the Access Control Records System ACR WAVES records are generated in the following way Generally when the President Vice President or a member of their staffs wants to receive a visitor at the White House Complex an authorized White House pass holder must submit information about the visitor and visit to the Secret Service See Mem of Understanding Between White House Office of Records Mgmt U S Secret Serv Records Mgmt Program 4 May 17 2006 MOU That information includes inter alia the visitor's name the date and location of the planned visit and the name of the pass holder submitting the request Id Ordinarily this identifying information is provided to the Secret Service electronically An authorized pass holder enters the information into a computer that automatically forwards it to the Secret Service for processing Droege Decl 6 The information may also be provided to the Secret Service in other ways including by telephone and email in which case 5 Secret Service personnel transmit the information electronically to the WHACS server Id White Decl 7 3 Once a visitor is cleared into the White House Complex he or she is generally issued a badge ACR records are generated and WAVES records updated whenever the visitor swipes the badge over one of the electronic pass readers located at the White House Complex's entrances and exits MOU 5 Droege Decl 7 White Decl 9 10 ACR records include the pass holder's name the time and date of the swipe and the post at which the swipe was recorded MOU 5 According to the government the information contained in WHACS records is provided to and used by the Secret Service for two limited purposes to perform a background check on the visitor and to verify the visitor's admissibility at the time of the visit MOU 12 White Decl 7 Once the visit ends the information has no continuing usefulness to the Secret Service MOU 13 Because the Secret Service has no continuing interest in the information s ince at least 2001 it has been its practice to transfer newly-generated WAVES records to the White House every 30 to 60 days on compact discs White Decl 11 Droege Decl 10 see MOU 14 Lyerly Decl 10 May 2006 The Secret Service erases the transferred records from the WHACS servers and overwrites them with new records MOU 14 White Decl 11 Prior to October 2004 the Secret Service did not keep copies of the transferred WAVES records Lyerly Decl 10 11 May 2006 see MOU 14 In October 2004 however the Secret Service began retaining copies of the 3 The Secret Service may add additional information to WAVES records that it learns through a background check Lyerly Decl 8 Sept 2006 White Decl 7 8 6 transferred WAVES records on compact discs due in part to then-pending litigation MOU 16 Lyerly Decl 13 Sept 2006 Droege Decl 10 At least as early as 2001 at the end of the Clinton Administration and upon revisiting the issue in 2004 the Secret Service and the White House recognized and agreed that ACR records should be treated in a manner generally consistent with the treatment of WAVES records White Decl 13 Droege Decl 11 In particular t he White House and the Secret Service determined that ACR records should be transferred to the White House and deleted from the Secret Service's computers like WAVES records White Decl 13 see MOU 15 Since at least 2006 the Service has transferred ACR records to the White House generally every 30 to 60 days Droege Decl 11 see White Decl 13 stating that ACR records dating from 2001 were also transferred in 2006 Once again however the Service has retained copies of the records due in part to pending litigation Droege Decl 11 White Decl 13 MOU 15 The volume of FOIA litigation regarding White House visitor records increased in 2006 In that year a FOIA request was filed for all WHACS records pertaining to visits scheduled with Vice President Dick Cheney or his staff See Wash Post v Dep't of Homeland Sec 459 F Supp 2d 61 64 D D C 2006 A steady march of similar requests followed They included requests for records of every visit by lobbyist Jack Abramoff see Judicial Watch Inc v U S Secret Serv 579 F Supp 2d 143 145 D D C 2008 every visit by lobbyist Stephen Payne Citizens for Responsibility Ethics in Wash CREW v U S Dep't of Homeland Sec 592 F Supp 2d 127 129 D D C 2009 and every visit by eighteen health care 7 executives 4 to name only a few 5 The Secret Service refused each request asserting that WAVES and ACR records are not agency records subject to FOIA but rather are Presidential records subject to the more restrictive disclosure regime established by the Presidential Records Act PRA 44 U S C 2201 et seq See e g CREW 592 F Supp 2d at 131 Wash Post 459 F Supp 2d at 65 In May 2006 the White House and the Secret Service executed a Memorandum of Understanding MOU The MOU memorialized the parties' historical practice and intentions regarding WHACS records as described above It also stated the parties' joint agreement that WHACS records are Presidential Records and are not the records of an 'agency' subject to the Freedom of Information Act MOU 17 In 2008 a suit arising out of a FOIA request for WHACS records reached this court for the first time The request sought records of every visit by nine conservative Christian leaders CREW v U S Dep't of Homeland Sec 527 F Supp 2d 76 78 D D C 2007 We dismissed that appeal for lack of jurisdiction See CREW v U S Dep't of Homeland Sec 532 F 3d 860 868 D C Cir 2008 After further proceedings in the district court the parties settled the dispute See Joint Mot to Vacate CREW v U S Dep't of Homeland Sec No 06-1912 D D C Sept 9 2009 4 See Letter from Gregory B Craig Counsel to the President to Anne L Weismann Sept 3 2009 Craig Letter available at http whitehouse gov assets blog 9 3 09 Ltr to Weismann pdf 5 For other such requests see Judicial Watch Inc v U S Secret Serv 579 F Supp 2d 151 152 D D C 2008 every visit by any of eight named lobbyists Craig Letter every visit by sixteen specified coal industry executives 8 The present litigation involves the latest and broadest FOIA request for WHACS records On August 10 2009 Judicial Watch asked the Secret Service for a ll official visitors logs and or other records concerning visits made to the White House from January 20 2009 to present The Service denied the request on October 8 2009 reiterating its position that WAVES and ACR records are not agency records subject to FOIA but rather are Presidential records subject to the PRA The Service noted however that Judicial Watch could secure discretionary release of some of those records pursuant to a voluntary disclosure policy that the Obama administration had announced the previous month See The White House White House Voluntary Disclosure Policy Visitor Access Records Sept 4 2009 http www whitehouse gov VoluntaryDisclosure J A 42 6 On December 7 2009 Judicial Watch filed suit to compel disclosure pursuant to FOIA Thereafter both sides moved for summary judgment The district court ruled in favor of Judicial 6 The Obama administration announced that going forward it would release most WAVES and ACR records 90 to 120 days after they are created The policy excepts the release of records that would threaten national security or the security of staff reveal particularly sensitive meetings or disclose personal guests of the families of the President or Vice President To implement the policy White House Complex staffers who submit visitor information must designate visits regarded as sensitive The White House stated that the new policy would not apply to records created before September 15 2009 because it would be too difficult to retroactively sort those earlier records which do not include such designations See Tibbits Decl 15-16 27-37 But the White House said it would respond to individual requests seeking records created between January 20 2009 and September 15 2009 if the requests are reasonable narrow and specific See White House Voluntary Disclosure Policy http www whitehouse gov VoluntaryDisclosure 9 Watch See Judicial Watch Inc v U S Secret Serv 803 F Supp 2d 51 D D C 2011 The court held that WHACS records qualify as agency records subject to FOIA and it rejected the Secret Service's contentions that disclosure would raise separation-of-powers concerns and place impermissible burdens on senior White House advisors Id at 60-62 The Secret Service then filed an appeal pursuant to 28 U S C 1292 a 1 and the district court issued a stay of its order pending appeal See Order Judicial Watch Inc v U S Secret Serv No 09-2312 Nov 14 2011 7 II Under FOIA agencies must make requested records available to any person unless one of nine specific exemptions applies 5 U S C 552 a 3 A see id 552 b 1 - 9 The Act grants federal district courts jurisdiction to order the production of any agency records improperly withheld from the complainant Id 552 a 4 B emphasis added The question at issue on this appeal is whether WHACS records are agency records 7 A FOIA disclosure order is injunctive in nature and is therefore immediately appealable as an interlocutory order if it requires the disclosure of documents for which the agenc y claim s no basis for non-disclosure beyond the argument already rejected by the district court Judicial Watch Inc v Dep't of Energy 412 F 3d 125 128 D C Cir 2005 see CREW 532 F 3d at 863-64 In this case the district court directed the Secret Service to disclose any records that are not subject to a FOIA exemption see 5 U S C 552 b 1 - 9 and that can be identified as such without undue burden Judicial Watch 803 F Supp 2d at 62 Because the Service represents that it has identified at least one record for which it has no basis for nondisclosure beyond the arguments already rejected by the district court see Ulmer Decl 4 Oral Arg Recording at 14 30 we have jurisdiction under 28 U S C 1292 a 1 10 A We review the district court's grant of summary judgment on this question de novo See Consumer Fed'n of Am v Dep't of Agric 455 F 3d 283 287 D C Cir 2006 A court may grant summary judgment only if there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law FED R CIV P 56 a On summary judgment the inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion Matsushita Elec Indus Co v Zenith Radio Corp 475 U S 574 587 1986 internal quotation marks omitted In FOIA cases ' s ummary judgment may be granted on the basis of agency affidavits if they contain reasonable specificity of detail rather than merely conclusory statements and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith ' Consumer Fed'n 455 F 3d at 287 quoting Gallant v NLRB 26 F 3d 168 171 D C Cir 1994 Although the district court ruled against the Secret Service it nonetheless relied heavily on both the 2006 MOU and declarations by Secret Service and White House officials to describe the purpose generation and use of WHACS records as well as the government's intentions understandings and practice regarding those records See Judicial Watch 803 F Supp 2d at 53-54 56-60 See e g MOU 10-16 Droege Decl 12 stating that the MOU documented what was then understood to be past practice and interests regarding WAVES and ACR records Judicial Watch has never contested any of those factual descriptions And because the case was decided against the Service on summary judgment we are bound by them Oral Arg Recording at 45 45 - 47 00 acknowledgment 11 by Judicial Watch 8 We are not however bound by the MOU's legal assertions that WHACS records are at all times Presidential Records are not the records of an 'agency' subject to FOIA and are under the exclusive legal custody and control of the White House MOU 17-18 B As both the Supreme Court and this court have repeatedly noted while FOIA limited access to 'agency records ' it did not provide any definition of 'agency records ' Forsham v Harris 445 U S 169 178 1980 see U S Dep't of Justice v Tax Analysts 492 U S 136 142 1989 Consumer Fed'n 455 8 See Pa State Police v Suders 542 U S 129 134 2004 reciting the facts in the light most favorable to the respondent b ecause th e case was decided against her on the petitioner's motion for summary judgment Crooker v Bureau of Alcohol Tobacco Firearms 670 F 2d 1051 1054 n 7 D C Cir 1981 Because the appellant did not contest the Government's factual assertions Rule 56 e of the Federal Rules of Civil Procedure requires this court to take the Government's assertions as true In other words failure to raise a genuine issue as to a material fact constitutes a concession that the uncontested fact is true for purposes of summary judgment see also Malik v District of Columbia 574 F 3d 781 783 n 1 D C Cir 2009 In a footnote to its brief Judicial Watch appears to treat the MOU with some skepticism noting that it was executed by the Bush Administration just four months after Judicial Watch and CREW submitted their 2006 FOIA requests relating to visits by lobbyist Jack Abramoff See Judicial Watch Br 10 n 3 see also Judicial Watch 803 F Supp 2d at 58 n 3 Given the summary judgment posture of this case however there is no room for such skepticism in our legal analysis 12 F 3d at 287 Tax Analysts v U S Dep't of Justice 845 F 2d 1060 1067 D C Cir 1988 aff'd 492 U S 136 1989 McGehee v CIA 697 F 2d 1095 1106 D C Cir 1983 Nonetheless we do know two things that help us define the scope of the term The first thing we know is that as the Supreme Court held in Kissinger v Reporters Committee for Freedom of the Press Congress did not intend the word agency to include the President his 'immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President ' 445 U S 136 156 1980 quoting H R REP NO 93-1380 at 232 1974 Conf Rep We have collectively referred to those staff and units as the Office of the President Armstrong v Exec Office of the President 1 F 3d 1274 1295 D C Cir 1993 see also Kissinger 445 U S at 156 and do so here as well for ease of reference 9 Because the Office of the President is not an agency for FOIA purposes documents generated by staff or units within that Office are not 'agency records' when they are made Kissinger 445 U S at 156 10 It is therefore undisputed that a 9 As noted below this court has held that records of the Vice President and his immediate staff are likewise not agency records for purposes of FOIA See infra Part IV A citing Wilson v Libby 535 F 3d 697 708 D C Cir 2008 see also Schwartz v U S Dep't of the Treasury No 00-5453 2001 WL 674636 D C Cir May 10 2001 unpublished order aff'g 131 F Supp 2d 142 147-48 D D C 2000 Meyer v Bush 981 F 2d 1288 1295 D C Cir 1993 We therefore include them within the collective descriptor Office of the President 10 Accord Tax Analysts 492 U S at 143 Armstrong v Exec Office of the President 1 F 3d at 1295 D C Cir 1993 Meyer 981 F 2d at 1293 n 3 McGehee 697 F 2d at 1107 n 53 Ryan v Dep't of 13 requester could not use FOIA to compel the President or his advisors to disclose their own appointment calendars or visitor logs See Oral Arg Recording at 23 45 acknowledgment by Judicial Watch In part Congress exempted such records from FOIA -- and later subjected them to the Presidential Records Act instead -- in order to avoid serious separation-of-powers concerns that would be raised by a statute mandating disclosure of the President's daily activities See e g Armstrong v Bush 924 F 2d 282 290 D C Cir 1991 Ryan v Dep't of Justice 617 F 2d 781 788 n 19 D C Cir 1980 The second thing we know is that not all documents in the possession of a FOIA-covered agency are agency records for the purpose of that Act See Ryan v Dep't of Justice 617 F 2d 781 785 D C Cir 1980 As the Supreme Court instructed in Tax Analysts the term agency records extends only to those documents that an agency both 1 create s or obtain s and 2 control s at the time the FOIA request was made 492 U S at 144-45 From this instruction we know that not all records physically located at an agency are agency records See e g Kissinger 445 U S at 157-58 summaries of Henry Kissinger's telephone conversations as National Security Advisor that he brought from the White House to the State Department Consumer Fed'n 455 F 3d at 288-93 personal appointment calendar kept on an agency computer Goland v CIA 607 F 2d 339 344-48 D C Cir 1978 congressional hearing transcript in the possession of the CIA Nor are all documents that are generated by an agency agency records See United We Stand Am Inc v IRS 359 F 3d 595 600-02 D C Cir 2004 portions of IRS document generated in response to a congressional request Rather to determine whether a document is an agency record under Tax Analysts we must focus on a variety of factors surrounding the creation Justice 617 F 2d 781 788 D C Cir 1980 14 possession control and use of the document Consumer Fed'n 455 F 3d at 287 quoting Bureau of Nat'l Affairs Inc v U S Dep't of Justice 742 F 2d 1484 1490 D C Cir 1984 We discuss each of these points in greater detail in the following two parts In Part III we examine the manner in which Tax Analysts and the control tests this court has adopted to implement the Court's instruction apply to WHACS records In Part IV we examine Congress' intention to exclude the President's appointment calendars from FOIA and the importance of construing the Act to avoid the significant separation-of-powers concerns that would arise if the Act were construed in a way that effectively permitted requesters to reconstruct those calendars Both examinations lead us to conclude that WHACS records that reveal visitors to the Office of the President are not agency records There is a subset of WHACS records however that reveals nothing about visits to the Office of the President Those records are generated by visits to components of the White House Complex that are not part of that Office and that are themselves agencies covered by FOIA We discuss those WHACS records in Part V and conclude that they are agency records subject to FOIA III As noted above Tax Analysts instructs that a document is not an agency record unless an agency both 1 create s or obtain s it and 2 controls it at the time of the FOIA request 492 U S at 144-45 Turning briefly to the instruction's first prong we note some uncertainty as to which entity created the WHACS records That question was not at issue in Tax Analysts a case involving paper documents that were created by one author at one time and in one place See id at 15 139-40 FOIA request for district court tax opinions obtained by the Department of Justice The creator of an electronic record by contrast is more ambiguous WHACS records for example exist only because a White House employee specifically requested that a particular visitor be admitted to the White House Complex Most of those records were not generated by or at the Secret Service but rather by electronic entries made at the White House Complex -- first by staff of the Complex and then by a visitor's swipe See supra Part I Judicial Watch Br 7 ACR records are created when a visitor swipes his or her pass upon entering or exiting the White House Complex cf supra note 3 describing additions the Secret Service may make to WHACS records But we need not delve into the creation question more deeply at this point because there is no dispute that the Secret Service ultimately obtained the WHACS records thus satisfying the first prong of Tax Analysts This leaves us with the second prong whether the Secret Service controlled the records at the time of Judicial Watch's FOIA request A In the usual case this circuit looks to four factors to determine whether an agency has sufficient 'control' over a document to make it an 'agency record ' Tax Analysts 845 F 2d at 1069 They are 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 16 Id The circuit first announced this test in our own decision in the Tax Analysts case which the Supreme Court subsequently affirmed albeit on different grounds Since then we have reaffirmed the four-factor test on several occasions See Judicial Watch Inc v Fed Hous Fin Agency 646 F 3d 924 926-27 D C Cir 2011 United We Stand 359 F 3d at 599 Burka v U S Dep't of Health Human Servs 87 F 3d 508 515 D C Cir 1996 This is the test upon which the district court relied in granting summary judgment in favor of Judicial Watch see Judicial Watch 803 F Supp 2d at 57-60 and it is the test that Judicial Watch urges us to apply on appeal see Judicial Watch Br 9 Oral Arg Recording at 23 00 11 For reasons discussed in Part III B we conclude that this test does not fully capture the control issue in this case Even by its own terms however the four-factor test is indeterminate as applied to WHACS records 1 The district court found that the first factor of the determination intent weighs in favor of the Secret Service's assertion that the records are not under agency control Judicial Watch 803 F Supp 2d at 57 The MOU is unequivocal in asserting that the control over WAVES and ACR records is at all times maintained by the White House and not the Secret Service 803 F Supp 2d at 58 It further states that any information provided to the Secret Service for the creation of such records is provided under an express reservation of White House control MOU 19 And the requisite intent is 11 The Court's decision in Tax Analysts stated that control means that the materials have come into the agency's possession in the legitimate conduct of its official duties 492 U S at 145 We have regarded the four-factor test as a gloss on that statement See Judicial Watch v Fed Hous Fin Agency 646 F 3d at 926-27 17 present regardless of who is regarded as the records' creator as the MOU provides that the White House at all times asserts and the Secret Service disclaims all legal control over any and all WHACS records Id 24 For these reasons we agree with the district court that t he 'intent' factor of the analysis weighs in the defendant's favor 803 F Supp 2d at 58 Judicial Watch does not dispute the point Judicial Watch Br 8 Resolution of the remaining three factors however is more complicated 2 The district court concluded that the second factor the ability of the agency to use and dispose of the records as it sees fit weighs against the Secret Service Judicial Watch 803 F Supp 2d at 58 We are not so sure Although it is undisputed that the Service has authority to use the records it does not have the ability to use and dispose of them as it sees fit According to the MOU the Service may use the records for only two limited purposes to perform background checks to determine whether and under what conditions to authorize a visitor's temporary admittance to the White House Complex and to verify the visitor's admissibility at the time of the visit MOU 12 see Droege Decl 5 Likewise the MOU provides that the Service will transfer the records to the White House within 60 days of the visit and then purge them from its system MOU 14 see White Decl 11 At least with respect to WAVES records this practice predates the MOU See Droege Decl 10-11 And while the agency began retaining copies of WHACS records in 2004 it did so principally because of pending litigation See id MOU 16 It is plain that if the current litigation ends in the Service's favor the agency will revert to its prior practice of transferring all WHACS records to the White House 18 The district court characterized as circular the Secret Service's argument 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 ' Judicial Watch 803 F Supp 2d at 59 quoting Mem in Support of Def 's Cross-Motion for Summ J at 19-20 The court thought the argument circular because it viewed its validity as dependent upon the Service winning its claim that the documents are not agency records Id We think this misapprehends the Service's argument In deciding whether a document is an agency record under FOIA we examine how the agency would treat the records in its normal course of operations in the absence of pending FOIArelated litigation Cf Kissinger 445 U S at 151-52 Most courts which have considered the question have concluded that the FOIA is only directed at requiring agencies to disclose those 'agency records' for which they have chosen to retain possession or control emphasis added The Secret Service has pointed to evidence that demonstrates restrictions on its ability to use and dispose of WHACS records a longstanding practice of turning all such records over to the White House Droege Decl 10-11 and a written agreement restricting the Service from using and retaining those records in ways other than those specified therein MOU 12-14 As we explained in United We Stand -- and as we discuss in more detail in Section III B -- restrictions on use and disposal imposed by a governmental entity not covered under FOIA may have a substantial bearing on the second Tax Analysts factor See United We Stand 359 F 3d at 600 Goland 607 F 2d at 347 examining the conditions attached to a document's possession by its creator 3 The district court concluded that the third factor -- the extent to which Secret Service personnel have read or relied 19 upon the documents -- cuts strongly against the Secret Service Judicial Watch 803 F Supp 2d at 59 With this we agree It is true as the Secret Service argues that its personnel read and rely upon the documents only for the limited purposes the records serve to enable the Service to perform background checks and verify admissibility at the time of a visitor's entrance But the agency reads and relies upon the documents for those purposes without restriction and the third factor requires no more 4 The final of the four factors is the degree to which the document s w ere integrated into the Secret Service's record system or files Tax Analysts 845 F 2d at 1069 The district court concluded that this factor weighs against the Secret Service Judicial Watch 803 F Supp 2d at 60 Given the Service's acknowledgment that WAVES and ACR records do reside on the Secret Service's servers as part of the WHACS data system id quoting Mem of Law in Support of Def 's Cross-Motion for Summ J at 21 see Lyerly Decl 19 20 Sept 2006 we agree that the records were in the agency's files at least at one time But we have some reservations about the degree to which they were or are integrated into the Secret Service's overall record system The WHACS computer servers are physically located in the White House Complex in the EEOB and they contain WAVES- and ACR-related data only Nelson Decl 3 12 Although WAVES and ACR records are uploaded to the WHACS servers when they are created they are removed from those servers within 60 days See MOU 14-15 White Decl 12 Both the primary and secondary backup WHACS servers are located in the EEOB A tertiary server is located at a Secret Service location as a backup to a backup in case of an emergency Nelson Decl 3 20 11 stating that WHACS records are downloaded and burned onto CDs for transfer to the White House every 30 to 60 days and that active WAVES data on the servers older than 60 days are purged daily and overwritten on the servers Droege Decl 11 regarding ACR records Due to pending litigation it appears that the documents are thereafter transferred to compact disc storage where they are no longer used by the Service MOU 16 Droege Decl 10 11 And but for the pending litigation they would be removed from the Service's files entirely Lyerly Decl 26 Sept 2006 5 In sum we conclude that one of the factors in the fourfactor control test unambiguously favors the Secret Service's position one unambiguously favors Judicial Watch's position and two are relatively uncertain This circuit's descriptions of the four-factor test do not make clear what to do when the factors point in different directions with different intensities Nor do our descriptions make clear whether the factors should receive equal weight In Tax Analysts itself we suggested that all four factors must be present before an agency has sufficient 'control' over a document to make it an 'agency record ' 845 F 2d at 1069 But we have also subsequently described the test as a totality of the circumstances test Consumer Fed'n 455 F 3d at 287 quoting Bureau of Nat'l Affairs 742 F 2d at 1490 Our past application of the test reveals its considerable indeterminancy In some cases we have heeded the suggestion in Tax Analysts finding that documents were not agency records when fewer than all four factors pointed in that direction 13 In other cases we have found that documents were 13 See Judicial Watch Inc v Fed Hous Fin Agency 646 F 3d at 928 holding that documents transferred to FHFA by entities for which it was the conservator were not agency records notwithstanding the 21 agency records even though fewer than four factors indicated as much 14 Accordingly if the four-factor test were the only relevant consideration we would be left with an uncertain result That uncertainty would redound to the benefit of Judicial Watch in light of the Supreme Court's instruction that the burden is on the agency to demonstrate not the requester to disprove that the materials sought are not 'agency records ' Tax Analysts 492 U S at 142 n 3 But the four-factor test is not the only test relevant to the FOIA request at issue in this case Rather we have indicated that a somewhat different control test applies when there are special policy considerations at stake Paisley v CIA 712 F 2d 686 693 n 30 D C Cir 1983 vacated in part on other grounds 724 F 2d 201 D C Cir 1984 Such special considerations are at stake here B In a series of cases stretching from 1978 to 2004 this circuit has indicated that the standard four-factor control test does not apply to documents that an agency has either obtained from or prepared in response to a request from a governmental entity not covered by FOIA the United States Congress See United We Stand 359 F 3d at 599 In those cases we have said entities' intent to relinquish control and FHFA's ability to use and dispose of the documents as it saw fit Consumer Fed'n 455 F 3d at 290 293 concluding that an employee's personal electronic calendar was not an agency record notwithstanding that it was on the agency's computer system 14 See e g Burka 87 F 3d at 515 finding that data tapes were agency records notwithstanding that they were not in the agency's files 22 special policy considerations counsel in favor of according due deference to Congress' affirmatively expressed intent to control its own documents Paisley 712 F 3d at 693 n 30 In such cases whether an agency's response is subject to FOIA turns on whether Congress manifested a clear intent to control the document United We Stand 359 F 3d at 596 This focus renders the first two factors of the standard test effectively dispositive The first case in this line was Goland v CIA in which a FOIA requester sought disclosure of the CIA's copy of a congressional hearing transcript that a congressional committee had marked secret 607 F 2d at 343 In concluding that the transcript was not an agency record we explained that Congress exercises oversight authority over the various federal agencies and thus has an undoubted interest in exchanging documents with those agencies to facilitate their proper functioning in accordance with Congress' originating intent Id at 346 Subjecting the document to FOIA we said would force Congress either to surrender its constitutional prerogative of maintaining secrecy or to suffer an impairment of its oversight role Id And because on all of the facts of the case Congress' intent to retain control of the document wa s clear we ruled that the transcript was a congressional document rather than an agency record Id at 348 In light of the conditions attached to its possession we concluded that the CIA is not free to dispose of the Transcript as it wills but holds the document as it were as a 'trustee' for Congress Id at 347 In several subsequent cases we concluded that congressional documents in the hands of agencies were agency records In so doing however we reaffirmed the Goland analysis finding the documents covered by FOIA only because Congress had not clearly expressed an intent to retain control over them See Paisley 712 F 2d at 696 finding that documents 23 created by the CIA in response to congressional requests for information were agency records because there were insufficient indicia of congressional intent to control the documents Holy Spirit Ass'n for the Unification of World Christianity v CIA 636 F 2d 838 840 D C Cir 1980 holding that even if requested CIA documents generated in response to congressional inquires were once excluded from the FOIA as congressional records they were no longer covered by that exemption because Congress failed to express with sufficient clarity its intent to retain control over the m Ryan 617 F 2d at 786 holding that responses to a questionnaire the Attorney General had sent to all Senators were agency records because the Senators gave no indication that they wished to limit the Attorney General's use of them and because there was no evidence that the President in any way diminished the Attorney General's control over the documents The culmination of this line was our decision in United We Stand America Inc v IRS That case concerned documents the IRS had created in response to a request for information from a congressional committee 359 F 3d at 597-98 Direct application of the Supreme Court's decision in Tax Analysts was not so simple we said because the connection between Congress and the requested records implicates considerations not at issue in Tax Analysts Id at 599 15 Reviewing our 15 Tax Analysts did not present the problem of a non-FOIA entity exerting control over documents in the hands of a FOIA agency Although it did involve records that had been created by another Branch -- copies of district court tax decisions that were in the possession of the Justice Department -- the courts did not object to their release We made this clear in our own opinion below noting that the decisions at issue in the case remain unencumbered by judicial limitations on dissemination Tax Analysts 845 F 2d at 1069 and that decisions upon which courts did place limits probably would 24 previous cases we found that their focus on congressional control reflects the considerations that underlie the second factor in the four-factor test the agency's ability to use or dispose of the record as it sees fit Id at 600 Emphasizing that Congress's intent to control and the agency's ability to control 'fit together in standing for the general proposition that the agency to whom the FOIA request is directed must have exclusive control of the disputed documents ' we held that if 'Congress has manifested its own intent to retain control then the agency -- by definition -- cannot lawfully control the documents ' Id quoting Paisley 712 F 2d at 693 Ultimately we found that there were sufficient indicia of congressional intent to control those portions of the IRS documents that would reveal Congress' requests to the agency id and therefore found that those portions were not agency records 16 The instant case resembles United We Stand in several important respects First this case also involves documents that an agency created in response to requests from and information provided by a governmental entity not covered by FOIA WHACS records are created in response to requests by the Office of the President17 to grant visitors access to the White not be considered 'agency records ' id at 1068 n 18 16 At the same time we found that Congress had not manifested an intent to control certain other documents or parts of other documents that would not reveal the requests that Congress had made to the agency United We Stand 359 F 3d at 601 Judicial Watch has not argued that there are WHACS records or parts of any such records that would not reveal visitor information transmitted by the White House to the Secret Service 17 In Part V we address WHACS records created in response to requests by White House components that are not part of the Office of 25 House Complex and they contain visitor information provided by that Office See MOU 11 The information contained in WHACS Records originates with White House pass holders visitors and workers as a result of White House business 18 Second as in United We Stand the non-covered entity -- here the White House -- has manifested a clear intent to control the documents Id at 597 see supra Part III A 1 MOU 19 A ny information provided to the Secret Service for the creation of such records is provided under an express reservation of White House control And that means the agency is not free to use and dispose of the documents as it sees fit See supra Part III A 2 see e g MOU 22 providing that the Secret Service will regularly transfer all WHACS Records in its possession to the White House and that it will not retain its own copies of any WHACS Records 19 Third again as in United We Stand disclosing the records would reveal the the President 18 As noted above the Secret Service may add information to some WAVES records that its own personnel learn through background checks Supra note 3 see Lyerly Decl 8 Sept 2006 White Decl 7 8 But the creation of that information is generated in response to the White House's request for visitors' access its disclosure would reveal information provided by the White House e g the identities of visitors and the White House has asserted control over all WHACS records MOU 18 Those portions of WAVES records therefore also fall within the compass of United We Stand See e g 359 F 3d at 601-02 permitting the agency to withhold portions of its response to Congress that would reveal Congress' request 19 Moreover given the limitations imposed on the Secret Service's use of the documents it is plain that the Service does not have 'exclusive control of the disputed documents ' United We Stand 359 F 3d at 600 quoting Paisley 712 F 2d at 693 emphasis added 26 specific requests made by the non-covered entity -- here the Office of the President's requests for visitor clearance If anything the indicia of White House control in this case are even stronger than the indicia of congressional control in United We Stand There the Joint Committee on Taxation had demanded only a limited scope of confidentiality and hence asserted control over only a limited subset of documents 359 F 3d at 600-01 Here the White House has manifested its intent to control the entirety of the WHACS records all of which it expects the Secret Service to transfer to it See MOU 15 The expression of that intent is not merely general United We Stand 359 F 3d at 602 Rather it explicitly extends to each of the 'particular records' at issue id quoting Paisley 712 F 2d at 695 20 Judicial Watch and its amici argue that the analysis of United We Stand and its predecessors should be limited to documents created by or at the instance of Congress not the White House 21 Subjecting the latter to FOIA they say would 20 Amici for Judicial Watch argue that because the MOU in this case was e xecuted after litigation ensued over the status of White House visitor logs it should be given no weight CREW Br 16 But the MOU was executed well before this litigation ensued and well before the creation and transfer of the documents at issue in this case See Holy Spirit 636 F 2d at 842 holding that a congressional letter written as a result of this litigation long after the actual transfer to the CIA was insufficient but stating that we do not adopt appellant's position that Congress must give contemporaneous instructions when forwarding congressional records to an agency emphasis added 21 Judicial Watch is correct that we have not previously held that the analysis of Goland and its progeny extends to presidential communications But we have certainly suggested that it does See 27 not analogously force the President either to surrender a constitutional prerogative of maintaining secrecy or to suffer an impairment of an oversight role United We Stand 359 F 3d at 599 quoting Goland 607 F 2d at 346 But the Office of the President has comparable constitutional prerogatives which we will discuss in more detail in Part IV In particular the Executive has a constitutional prerogative to maintain the autonomy of its office and safeguard the confidentiality of its communications Cheney v U S Dist Court 542 U S 367 385 2004 see id noting that special considerations control in such circumstances Indeed Congress crafted FOIA to avoid intruding on the confidentiality of presidential communications See Ryan 617 F 2d at 788 n 19 Soucie v David 448 F 2d 1067 1071-72 D C Cir 1971 see also H R REP NO 93-1380 at 232 Conf Rep Bureau of Nat'l Affairs 742 F 2d at 1491-92 W here documents originate within the Congress the judiciary and FOIA-exempt executive agencies sometimes special policy considerations militate against a rule compelling disclosure of such records merely because such documents happen to come into the possession of an agency internal quotation marks omitted Ryan 617 F 2d at 785 stating that the Goland standard also responds to the severe problem that would be created if materials from the President's immediate staff that come into the possession of an agency are automatically deemed agency records see also id at 786 concluding that documents were records of the Justice Department because there was no evidence that the President in any way diminished the agency's control over these documents and no indication that the documents will ever be transmitted to or seen by the President or his staff Nonetheless the question has never been squarely presented See Paisley 712 F 2d at 693 n 30 We express no view here on whether a different analysis would be warranted were the creating body other than Congress 28 It is true as amici argue that our prior cases involved interbranch communications while the communications at issue here are intra-branch CREW Br 11 But that does not make the separation-of-powers issues here any less substantial Indeed in one respect they are more substantial whatever encroachment upon congressional authority we might engender by applying FOIA to congressional communications it was Congress that passed the Act and Congress that can amend it No such solution is available to the President if Congress in enacting FOIA authorized an intrusion into the confidentiality of his communications Subjecting WHACS records to FOIA would thus confront the President with a dilemma similar to the one that concerned us in Goland and United We Stand -- forcing him either to surrender his constitutional prerogative of maintaining secrecy regarding his choice of visitors and therefore of outside advisors or to decline to cooperate with the executive branch agency entrusted with and necessary for his personal protection United We Stand 359 F 3d at 599 quoting Goland 607 F 2d at 346 Given 18 U S C 3056 a -- which bars the President from declining Secret Service protection -- it is not even clear he would have the latter choice These considerations persuade us that the United We Stand test is appropriate in this case And as discussed above we find sufficient indicia of presidential control over WHACS records of visits to the Office of the President to satisfy that test An additional but related consideration discussed in the following Part confirms the wisdom of construing the term agency records to exclude those records from the scope of FOIA 29 IV In this Part we discuss separation-of-powers concerns that provide an additional -- and more fundamental -- reason to find that the logs of visits to the Office of the President are not agency records within the meaning of FOIA A As a result of amendments enacted in 1974 FOIA defines an agency as any establishment in the executive branch of the Government including the Executive Office of the President 5 U S C 552 f 1 In Kissinger the Supreme Court held that the legislative history is unambiguous in explaining that the 'Executive Office' does not include the Office of the President 445 U S at 156 The Conference Report for the 1974 FOIA Amendments the Court said indicates that 'the President's immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President' are not included within the term 'agency' under the FOIA Id quoting H R REP NO 93-1380 at 232 Conf Rep In light of this clear expression of congressional intent the Court held that documents generated by such staff or units are not 'agency records' when they are made Id accord Tax Analysts 492 U S at 143 In the years since the Kissinger case this circuit has applied Kissinger's understanding of the scope of the term agency to find that individuals employed in the Office of the President Armstrong v Exec Office of the President 1 F 3d at 1295 the White House Office Meyer v Bush 981 F 2d 1288 1293 n 3 D C Cir 1993 the National Security Council Armstrong v Exec Office of the President 90 F 3d 553 556 D C Cir 1996 and the Office of the Vice President Wilson v Libby 535 F 3d 697 708 D C Cir 2008 are among those whose 30 documents are excluded from FOIA It is therefore undisputed that Judicial Watch may not obtain the appointment calendars or visitor logs of those individuals -- or of the President or Vice President himself -- by sending a FOIA request to the White House Complex where employees of those units work See Oral Arg Recording at 23 45 Their calendars are simply not agency records as FOIA defines the term As we have explained however the President and his staff cannot retain effective physical control over their calendars Congress requires the President to accept the protection of the Secret Service See 18 U S C 3056 a And in order to protect the President the Secret Service must monitor and control access to the building in which the President lives and works See id 3056A White Decl 2 5 To accomplish this the Service requires presidential staff to request access for visitors and thereafter requires logging of those visitors' entrances to and exits from the White House Complex Those procedures result in WHACS records that replicate in key particulars the content of the President's appointment calendars and those of his staff including the name time and appointment of the visitors who enter the White House Complex to see them See supra Part I MOU 11 The President thus has little choice but to permit the Secret Service to reconstruct his appointment calendars Hence if the Secret Service must disclose WHACS records a FOIA requester will effectively receive copies of those calendars There is good reason to doubt that Congress intended to require the effective disclosure of the President's calendars in this roundabout way As Kissinger noted Congress' exclusion of the papers of the President and his advisors from the coverage of FOIA was quite intentional And where Congress has intentionally excluded a governmental entity from the Act we have been unwilling to conclude that documents or 31 information of that entity can be obtained indirectly by filing a FOIA request with an entity that is covered under that statute 22 As noted in Section III B the cases in which we have barred such end runs have involved special considerations attendant to requiring the disclosure of documents or information generated by Congress itself -- namely separation-of-powers concerns that would arise were we to construe FOIA to cover such documents or information But the Supreme Court has made clear that separation-of-powers concerns can also arise in the context of communications by the President and his close advisors As the Court said in Cheney special considerations control when the Executive Branch's interests in maintaining the autonomy of its office and safeguarding the confidentiality of its communications are implicated 542 U S at 385 emphasis added see id at 382 declaring that the public interest requires that a coequal branch of Government 'afford Presidential confidentiality the greatest protection consistent with the fair administration of justice ' and identifying that interest as a separation-of-powers consideration quoting United States v Nixon 418 U S 683 715 1974 Those concerns are implicated here Construing the term agency records to extend to White House visitor logs -regardless of whether they are in the possession of the White House or the Secret Service -- could substantially affect the 22 See United We Stand 359 F 3d at 603 Congressional documents are not subject to FOIA at all and for the same reason neither are the portions of the agency's response that would reveal the Joint Committee request Goland 607 F 2d at 346 It may be assumed that plaintiffs could not easily win release of the Hearing Transcript from the House of Representatives we will not permit them to do indirectly what they cannot do directly because of the fortuity of the Transcript's location 32 President's ability to meet confidentially with foreign leaders agency officials or members of the public And that could render FOIA a potentially serious congressional intrusion into the conduct of the President's daily operations See Nixon 418 U S at 705-06 1974 T he protection of the confidentiality of Presidential communications has constitutional underpinnings Ryan 617 F 2d at 788 n 19 stating that a f ailure to exempt presidential staff from the FOIA would raise a constitutional issue of separation of powers The Supreme Court has emphasized the importance of interpreting statutes to avoid deciding difficult constitutional questions where the text fairly admits of a less problematic construction Public Citizen v U S Dep't of Justice 491 U S 440 455 1989 see id at 465-67 In Public Citizen it employed that canon in a closely related case involving the Federal Advisory Committee Act FACA That Act requires inter alia that records of advisory committees be made available to the public unless they fall within a FOIA exemption and it defines an advisory committee as any committee utilized by the President or an agency in the interest of obtaining advice or recommendations 491 U S at 451-52 quoting 5 U S C App 2 3 2 Although the Court had no doubt that the Executive utilized -- in one common sense of the term -- the American Bar Association's Standing Committee on the Federal Judiciary to obtain advice regarding judicial nominations the avoidance canon tip ped the balance decisively against FACA's application Id at 452 465 In the Court's view there was no gainsaying the seriousness of the constitutional challenges that applying FACA to the Standing Committee would engender Id at 467 Those included the concern that extending FACA to the President's consultations with the Committee would potentially inhibit the President's freedom to investigate to be informed to evaluate and to consult during the nomination process Id at 488 internal 33 quotation marks omitted The Court was loath it said to conclude that Congress intended to press ahead into dangerous constitutional thickets in the absence of firm evidence that it courted those perils Id at 466 This court sitting en banc has likewise employed the constitutional avoidance canon to resolve a FACA case On remand from the Supreme Court's decision in Cheney we construed FACA narrowly so as not to cover an energy policy group composed of the Vice President and other senior government officials even if private parties were also involved or influential as long as the private parties lacked a vote or a veto In re Cheney 406 F 3d 723 728 D C Cir 2005 en banc Without deciding whether application of FACA to such a committee would be constitutional we concluded that separation-of-powers considerations including 'the Executive Branch's interest in maintaining the autonomy of its office and safeguarding the confidentiality of its communications ' dictated the narrow construction Id at 72728 quoting Cheney 542 U S at 385 See also Ass'n of Am Physicians Surgeons v Clinton 997 F 2d 898 909 910 D C Cir 1993 declining to apply FACA to a presidential health care task force in order to avoid the difficult constitutional issue that would follow from restrict ing the President's ability to seek advice from whom and in the fashion he chooses We have also employed the canon directly in the FOIA context In Judicial Watch v Dep't of Energy we addressed the question of whether certain documents of the same energy policy group at issue in Cheney were agency records for purposes of FOIA 412 F 3d 125 D C Cir 2005 Once again citing Cheney's admonition that 'special considerations control when the Executive Branch's interest in maintaining the autonomy of its office and safeguarding the confidentiality of its 34 communications are implicated ' we concluded that the documents were not agency records Id at 132 quoting Cheney 542 U S at 385 Indeed this court utilized the avoidance canon in the case that was relied on both by Congress in drafting the 1974 FOIA Amendments and by the Kissinger Court in adopting the sole function test that was cited in the legislative history of those amendments Prior to the amendments FOIA contained nothing to indicate whether it applied to the President or his advisors In Soucie v David we interpreted the Act as excluding the President's staff and those units whose sole function is to advise and assist the President 448 F 2d at 1075 We did so in order to avoid the s erious constitutional questions that would be presented if it were necessary for the court to consider whether the disclosure provisions of the Act exceed the constitutional power of Congress to control the actions of the executive branch Id at 1071-72 see McGehee 697 F 2d at 1108 Ryan 617 F 2d at 788 n 19 In subsequently adding the term Executive Office of the President to the Act the Conference Report for the 1974 Amendments cited in Kissinger explained that the conferees intend the result reached in Soucie v David specifically stating that t he term is not to be interpreted as including the staff and units that Soucie had excluded H R REP NO 93-1380 at 232 Conf Rep see Kissinger 445 U S at 156 Meyer 981 F 2d at 1291-92 Thus it appears that not only this court but Congress as well wished to avoid the serious separation-ofpowers questions that too expansive a reading of FOIA would engender When that is the case it is doubly our obligation to seek a construction that avoids constitutional conflict See Hamdan v United States 696 F 3d 1238 1247-48 D C Cir 2012 35 Finally although the preceding considerations suggest that WHACS records may be a poor fit for FOIA the same considerations make them a better fit for the Presidential Records Act PRA which Congress enacted in 1978 to avoid the very separation of powers concerns and outside interference with the day-to-day operations of the President and his closest advisors that we have just described Armstrong v Bush 924 F 2d at 290 H R REP NO 95-1487 at 6 1978 Unlike FOIA's treatment of agency records the PRA gives the President virtually complete control over Presidential records during his term of office Armstrong v Bush 924 F 2d at 290 see also 44 U S C 2204 b 23 And it defines Presidential records to include documentary materials or any reasonably segregable portion thereof created or received by the President his immediate staff or a unit or individual of the Executive Office of the President whose function is to advise and assist the President in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional statutory or other official or ceremonial duties of the President 44 U S C 2201 2 There are good reasons to think that WHACS records fall within this definition of Presidential records First those records are created or received by the President and his staff 44 U S C 2201 2 As we have noted see supra Part III 23 Cf 44 U S C 2203 f 1 Upon the conclusion of a President's term of office the Archivist of the United States shall make Presidential records available to the public as rapidly and completely as possible consistent with the provisions of this Act 36 many WAVES and ACR records are arguably created by White House staff and White House pass readers on servers physically located in the White House Complex See MOU 4-5 White Decl 8-10 Nelson Decl 3 And the White House receives those records from the Secret Service within 30 to 60 days of the visits with which they are associated See MOU 14 Second WHACS records are created in the course of the carrying out of the constitutional statutory official and ceremonial duties of the President 44 U S C 2201 2 They are generated whenever the President consults agency officials negotiates with foreign heads of state or speaks with private organizations or individuals at the White House And they are essential to ensuring that the President can go about these core activities without risking his security or that of his family and staff WHACS records thus track quite nicely the definition of Presidential records found in the PRA We are mindful of the fact that Congress did not intend the PRA to diminish the scope of FOIA See 44 U S C 2201 2 B providing that the term 'Presidential records' does not include any documentary materials that are official records of an agency as defined in 5 U S C 552 e see Armstrong v Exec Office of the President 1 F 3d at 1290 1292 Bloomberg Br 7 But that does not make it irrelevant to our analysis When Congress enacted the PRA in 1978 no case had considered whether materials anything like WHACS records were subject to FOIA Accordingly the PRA's definition of Presidential records bears on Congress' understanding of the scope of FOIA at the time of the PRA's passage and hence on the scope of the records it intended to subject to the quite different disclosure regime of the PRA Cf FBI v Abramson 456 U S 615 626 n 8 1982 noting that Congress' definition of 'records' in the PRA was helpful to us in determining that an agency must create or obtain a record before it can be held subject to FOIA 37 In sum the avoidance canon confirms our conclusion that WHACS records do not fall within the scope of FOIA but are instead subject to the regime established by the PRA B The district court concluded that the Constitutional avoidance doctrine is not applicable here because the Court is not faced with the interpretation of an ambiguous statute Judicial Watch 803 F Supp 2d at 60 E ven if defendant's concerns about the intrusion on the confidentiality necessary for the President and Vice President to discharge their constitutional duties are valid ones the court said they do not serve as a license for the court to transmute the meaning of an unambiguous statute Id at 61 internal quotation marks omitted But as we noted in Part II B the statute is not only ambiguous it is opaque Other than excluding records of the Office of the President the term agency records is defined neither in the Act nor its legislative history Tax Analysts 492 U S at 142 And n either the language of the statute nor the legislative history provides much guidance in fleshing out the meaning of the term Bureau of Nat'l Affairs 742 F 2d at 1488 Indeed as we said in Ryan v Department of Justice when the requested documents are in the possession of an agency but were created by an entity not defined as an 'agency' under the FOIA including the President's immediate personal staff and units in the Executive Office whose sole function is to advise and assist the President FOIA does not specify a test for determining what is an agency record 617 F 2d at 784-85 24 24 See also McGehee 697 F 2d at 1108 T he question whether a document in the possession of one agency that originated in another constitutes an 'agency record' for the purposes of the FOIA is not governed by either the terms of the statute the legislative history or 38 The district court also thought and Judicial Watch and its amici argue here that any separation-of-powers concerns arising from extending FOIA to WHACS records could be mitigated by the Executive's ready recourse to FOIA Exemption 5 Judicial Watch 803 F Supp 2d at 61 CREW Br 20 Oral Arg Recording at 28 00 - 28 40 25 If such an argument applies in this case however it would also have applied in the cases that narrowly construed the coverage of FACA since FACA likewise authorizes the withholding of records under the FOIA exemptions See Public Citizen 491 U S at 446-47 citing 5 U S C App 2 10 b In re Cheney 406 F 3d at 726 Indeed this argument would also have applied in Soucie and the other cases in which we employed the avoidance canon to hold that FOIA does not cover the records of presidential advisors because to do otherwise would present serious constitutional questions Soucie 448 F 2d at 1071-72 see Judicial Watch v Dep't of Energy 412 F 3d at 132 Ryan 617 F 2d at 788 n 19 But it was not applied in any of those cases Of course there might be little consequence to resolving constitutional concerns by relying on the Executive's assertion of Exemption 5 rather than on the meaning of agency records if WHACS records were generally exempt from withholding under that exemption But Judicial Watch and its amici certainly do not think that is so In another district court case precedent 25 Exemption 5 protects from disclosure inter-agency or intraagency memorandums or letters which would not be available by law to a party in litigation with the agency 5 U S C 552 b 5 It incorporates inter alia the presidential communications privilege the state secrets privilege and the deliberative process privilege Baker Hostetler LLP v U S Dep't of Commerce 473 F 3d 312 321 D C Cir 2006 39 presenting almost the identical question they argued -- and the court agreed -- that WHACS visitor records do not fall within Exemption 5 because they consist only of the names of the visitor visitee and date and time of the visit CREW 592 F Supp 2d at 118-19 Although that court said there may exist some hypothetical situation in which the exemption would apply id at 119 Judicial Watch has been hard put to suggest one At oral argument for example it was unwilling to say the exemption would extend to WHACS records revealing visits between Israeli officials and National Security Council personnel who work on issues relating to Iran's nuclear program -- meetings that could be taken to signal discussions about possible military action See Oral Arg Recording at 36 30 44 08 26 In any event there are no decisions of this court that address whether the presidential communications privilege contained in Exemption 5 extends to the names of visitors to the President and his staff And it seems to us that deciding that question would be at least as difficult -- and present separationof-powers questions at least as serious -- as deciding the question now before us We see nothing to be gained by trading one difficult question for another Cf Cheney 542 U S at 38990 Once executive privilege is asserted the inquiry places courts in the awkward position of evaluating the Executive's claims of confidentiality and autonomy and pushes to the fore difficult questions of separation of powers and checks and balances These occasion s for constitutional confrontation between the two branches should be avoided whenever possible internal quotation marks omitted 26 Judicial Watch did suggest that records revealing a visit to the President by and the identities of the Navy SEALs who killed Osama bin Laden would be exempt Oral Arg Recording at 44 08 - 44 41 40 Moreover even if a significant subset of WHACS records would be protected by Exemption 5 the burden of identifying those records on a document-by-document basis is substantial enough to make that an ineffective way of mitigating the kind of separation-of-powers concerns at issue here In this case Judicial Watch's FOIA request covers every visitor record from January through August 2009 -- a total of almost 500 000 records Droege Decl 16 And we cannot be blind to the precedent we would set by holding that those records are covered by FOIA such a holding would in all likelihood be followed by subsequent requests covering the next four years and then each month thereafter 27 In Cheney the Supreme Court reviewed a discovery order issued by a district court in a case in which the plaintiffs alleged a violation of FACA directing the Vice President and other senior officials to produce information about a task force established to give advice to the President 542 U S at 372 Notwithstanding that the district court's order permitted the government to assert privileges to protect individual sensitive documents from disclosure the Court held that mandamus could be available to block such discovery The ability of the 27 The burden is particularly great with respect to the records at issue here because many if not most of the personnel with knowledge of the purpose of the January through August 2009 visits no longer work at the White House See Tibbits Decl 27 33 regarding national security staff The burden going forward is reduced because under the voluntary disclosure policy adopted by the White House in September 2009 employees who thereafter submit visitor requests must designate visits that are sensitive See supra note 6 Tibbits Decl 15-16 But flagging a visit as sensitive is not the same as deciding whether it is covered by a FOIA exemption a decision that still imposes a considerable burden on the senior staff of the President and Vice President who may be the only ones who can make such judgments See Tibbits Decl 35 37 41 recipients to assert privileges the Court said was insufficient to dismiss the separation-of-powers concerns raised by the potential intrusion into Presidential confidentiality Id at 38283 Given the breadth of the discovery requests the Court declined to require the government to bear the burden of invoking executive privilege with sufficient specificity and of making particularized objections Id at 388 internal quotation marks omitted Because the burden at issue here is comparable a similar determination is warranted We therefore find no reason not to and every reason to apply the canon of avoiding serious constitutional questions in construing the meaning of agency records under FOIA C In sum two sets of considerations lead us to conclude that WHACS records disclosing visitors to the Office of the President are not agency records First although application of our usual four-part control test for classifying documents as agency records leads to indeterminate results in this case the modified control test set forth in United We Stand is applicable and indicates that WHACS records are not agency records Second that judgment is confirmed by application of the canon of constitutional avoidance In order to avoid substantial separation-of-powers questions we conclude that Congress did not intend to authorize FOIA requesters to obtain indirectly from the Secret Service information that it had expressly barred requesters from obtaining directly from the President Judicial Watch and its amici fear that this case will open the floodgates to White House efforts to circumvent FOIA See Judicial Watch Br 11 CREW Br 25 Judicial Watch worries that i f an MOU is all that was necessary to remove records from the ambit of FOIA by assigning 'legal custody' away from 42 the agency then wide swaths of agency records are subject to removal from agency access Judicial Watch Br 11 This is a serious argument and if such an MOU were all that were necessary -- or if any record touching on White House communications were necessarily exempt from FOIA -- there would indeed be cause for serious concern But that is not our holding First we grant no deference to the MOU's assertion that WHACS records are at all times Presidential records under the exclusive legal custody and control of the White House MOU 17-18 emphasis added As we have explained that is an issue we decide de novo See supra Part II A Because this case was decided on summary judgment however we do accept the MOU's representations as to the way in which both parties have historically regarded and treated the documents See id Second the circumstances that lead us to give effect to the MOU in this case are rare There are very few instances in which a construction of FOIA would put the President on the horns of a dilemma between surrendering his confidentiality and jeopardizing his safety It is the presence of this unacceptable choice comparable to the choice Congress faced in United We Stand and Goland that is central to our understanding that the President exercises control over these visitor logs Third and most important the kind of information at issue here is in many ways sui generis This case involves a category of documents that effectively reproduces a set of records that Congress expressly excluded from FOIA's coverage We are not confronted with an attempt to protect information that would otherwise be subject to FOIA Rather the White House seeks to protect information that would not even arguably be subject to the Act but for the President's need for Secret Service protection Again we regard these circumstances as unique 43 V Finally we note that there is a subcategory of WHACS records as to which our holding does not apply There are several offices located on the grounds of the White House Complex including the Office of Management and Budget OMB and the Council on Environmental Quality CEQ that this court has held are not part of the President's immediate staff and whose sole function is not to advise and assist the President Those offices are agencies under FOIA and their records are agency records subject to disclosure See e g Armstrong v Exec Office of the President 90 F 3d at 559 Pac Legal Found v Council on Envtl Quality 636 F 2d 1259 1263 D C Cir 1980 28 For the reasons discussed in Part III A application of the four-part control test to WHACS records that reveal visits to those offices is indeterminate And because the burden is on the agency to demonstrate not the requester to disprove that the materials sought are not 'agency records ' Tax Analysts 492 U S at 142 n 3 that indeterminacy resolves the matter in 28 The White House website includes a list of units covered by FOIA In addition to OMB and the CEQ the website lists the Office of National Drug Control Policy ONDCP the Office of the U S Trade Representative USTR and the Office of Science Technology Policy OSTP OSTP FOIA Reading Room http www whitehouse gov administration eop ostp library compliance foia see Center for Int'l Envtl Law v Office of U S Trade Representative 718 F 3d 899 904 D C Cir 2013 adjudicating a FOIA claim regarding the USTR Soucie 448 F 2d at 1075 holding that the Office of Science and Technology predecessor of OSTP was covered by FOIA see also 5 U S C 552 f 1 defining agency to include the Executive Office of the President H R REP NO 93-1380 at 232 Conf Rep See generally Meyer 981 F 2d at 1291-94 44 Judicial Watch's favor -- unless special considerations of the kind discussed in Parts III B and IV counsel otherwise For the White House offices that are themselves covered by FOIA there are no such special considerations First although the White House through the MOU has asserted control over all WHACS records including records relating to those offices it has not asserted control over the information they reveal To the contrary the government acknowledges that the records of those offices -- including the calendars of their personnel -- may be obtained by FOIA requests made directly to them See Oral Arg Recording at 50 50 - 51 17 Gov't Reply Br at 15-16 Thus subjecting the WHACS records of those offices to FOIA would not permit a requester to obtain anything it could not obtain directly from the office itself Second at oral argument the Secret Service acknowledged that revealing the contents of those calendars would not pose separation-of-powers concerns See Oral Arg Recording at 53 15 - 53 40 Accordingly neither of the special considerations that drive our decision to limit the reach of the term agency records applies to WHACS records that reveal visitors to offices that are subject to FOIA but happen to be located in the White House Complex Nor can we discern any other reason for construing agency records not to apply to such records They plainly do not fall within the coverage of the Presidential Records Act See 44 U S C 2201 2 2 B The Secret Service has not suggested that disclosing WHACS records relating to those offices would undermine its ability to protect the President See Oral Arg Recording at 54 33 - 54 40 And if disclosing particular records did threaten the President's security we are confident they would be shielded from disclosure by one or another FOIA exemption See e g 5 U S C 552 b 7 F exempting records compiled for law enforcement purposes whose production could reasonably be expected to endanger the life 45 or physical safety of any individual Such claims can if necessary be raised on remand The government does maintain that it would be less burdensome for the requesters to get the information directly from the offices themselves but that too is a contention that can be made to the district court At oral argument the Secret Service raised the possibility that there may be some visitors whose appointments are with FOIA-subject agencies but who later walk over to the White House Office and meet with the President or his staff See Oral Arg Recording at 57 21 - 57 38 Perhaps so But we have received no indication that WHACS records for such visitors would reveal that they had meetings anywhere other than at the locations of their scheduled visits See MOU 4 stating that the records disclose the time and location of the planned visit and the actual time and place of the visitor's entry into and exit from the White House Complex To the extent the records would reveal such exempt information we agree that they are not agency records Cf United We Stand 359 F 3d at 603-04 holding that portions of agency records may be redacted as nonagency records But it is impossible at this point to determine whether any records might be subject to withholding on this basis We leave it to the district court to make that determination in the first instance aided as necessary by affidavits and further factual development VI Because FOIA contains no definition of agency records and because application of our standard four-part test is indeterminate this is a difficult case The opinion of the district court and the briefs of Judicial Watch and its amici contain serious and substantial arguments in support of that court's holding But Congress did make clear that it intended to place documents like the President's appointment calendar beyond the 46 reach of FOIA Construing the statutory text in light of both that intent and the canon of avoiding constitutional separation-ofpowers concerns we hold that WHACS records that disclose the kind of information contained in such documents are not agency records within the meaning of FOIA At bottom we do not believe Congress intended that FOIA requesters be able to obtain from the gatekeepers of the White House what they are unable to obtain from its occupants We reiterate that our disposition is narrower than that sought by the Secret Service in two important respects We do not attach any legal significance beyond its factual descriptions to the 2006 MOU between the Secret Service and the White House Further we hold that subject to any applicable exemptions the Secret Service may not withhold WHACS records that reveal visitors to those offices within the White House Complex that are themselves subject to FOIA Those documents are agency records The judgment of the district court is reversed as to those WHACS records that would disclose visitors to the Office of the President It is affirmed as to those that would disclose visitors to offices in the White House Complex that are covered by FOIA The case is remanded for further proceedings consistent with this opinion So ordered                     National Security Archive    Suite 701  Gelman Library  The George Washington University    2130 H Street  NW  Washington 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