Court Slaps Down Secrecy, Rules White House Visitor Logs Subject to FOIA

In an embarrassing defeat for the Obama administration, a federal court ruled on Wednesday that Secret Service White House visitor logs are agency records that are subject to disclosure under the Freedom of Information Act! U.S. District Judge Beryl Howell issued the decision in Judicial Watch v. Secret Service, (No. 09-2312).

Here’s the bottom line: The Obama administration will now have to release all records of all visitors to the White House – or explain why White House visits should be kept secret under law.

In our lawsuit we asked the court to order the release of Secret Service logs of White House visitors from January 20, 2009, to August 10, 2009. The Obama administration’s principal argument had been that the logs were not “agency” records subject to the Freedom of Information Act (FOIA). And just in case that argument didn’t hold water, Obama administration lawyers took a kitchen sink approach in attempting to stop our lawsuit, asserting a number of other arguments regarding why these records should not be released. The court struck them all down, one by one.

Please click here to read Judge Howell’s complete ruling for all of the details, but here’s a quick summary of the court’s conclusions:

• The Obama administration argued the visitor logs are not “agency” records subject to FOIA. The court applied a standard “two-part” test, and ultimately concluded, “…the Secret Service argues that it is unable to dispose of the records freely because they are ultimately White House records and not agency records. This argument is circular. The claimed restrictions on disposal stem from the defendant’s assumption that the documents are under Presidential control–the exact point that the defendant seeks to prove to establish that the documents are not subject to FOIA.”Judicial Watch noted in its complaint filed on December 7, 2009, the Obama administration’s claim “has been litigated and rejected repeatedly.” The court noted precedent in its ruling: “This Court agrees with the conclusions of the other judges in this District that have considered this question and finds that the records are subject to FOIA.”
• The Obama administration argued that Judicial Watch’s request is too massive and broad and cannot be processed. Judge Howell was unconvinced. “While the Court is sensitive to the burdens raised by the plaintiff’s broad brush request for ‘all’ records of a certain type over a nine-month period, including the need to review such records for applicable exemptions, the Court is not persuaded that the plaintiff’s request requires a blanket rejection.”
• The Obama administration argued that Judicial Watch’s request would raise Constitutional, “separation of power” issues. Judge Howell ruled, “…The Court is skeptical of the underlying premise that the inclusion of [visitor logs] under FOIA raises any serious Constitutional problems….since the statutory language is unambiguous in relation to this issue, and the FOIA has built-in exemptions that mitigate the risk of the precise separation of powers concerns the defendant raises, the Court rejects defendant’s interpretive argument.”
• The Obama administration argued that Judicial Watch’s request raises national security concerns. The court noted, “At no point does the Secret Service assert, however, that there are not at least some records implicated by plaintiff’s FOIA request that could be easily searched for, separated out, and disclosed without raising national security concerns.”

Ultimately, Judge Howell concluded that “the proper course of action by the Secret Service is duly to process [Judicial Watch’s] FOIA request, disclose all segregable, nonexempt records, and then assert specific FOIA exemptions for all records it seeks to withhold.”

In other words, release or explain.

Back in September 2009, the Obama administration made a big deal out of its new policy to release the visitor logs voluntarily. But here’s the reality of the situation. The White House insisted that it could release visitor information at its own discretion, the timing and specifics of which was not subject to court review. And despite White House misinformation to the contrary, tens of thousands of visitor logs are being withheld from disclosure by the Obama administration. These records are now subject to disclosure under FOIA.

We’ve come a long way since our October 27, 2009, meeting at the Obama White House. As you may recall, Judicial Watch staff visited with senior White House officials led by Norm Eisen, then-Special Counsel to the President for Ethics and Government, to discuss Judicial Watch’s pursuit of the visitor logs.

During the meeting, White House officials offered to make some accommodations to Judicial Watch on the visitor logs, and encouraged Judicial Watch to publicly praise the Obama administration’s commitment to transparency. However, the White House refused to abandon its legally indefensible contention that the visitor logs are not subject to FOIA law. So we went another way. We sued the Obama administration on December 7, 2009, and ultimately earned a landmark court decision affirming the rule of law. Once again, our legal team deserves congratulations for its persistence. This is a tremendous victory.

This decision, by an appointee of the President Obama himself (!), is a refreshing example of a court reminding the Obama administration that it is indeed subject to the rule of law.