The U.S. Court of Appeals for the D.C. Circuit ruled today that records of visitors to the White House were off limits to requests under the Freedom of Information Act (FOIA). Allowing public access to the information would circumvent Congress' intent to give the president discretion to keep his appointments calendar secret, the court said.
The unanimous three-judge panel, however, did affirm a federal district trial judge's finding that the public could submit requests for visitor records related to other agencies housed within the White House complex, such as the Office of Management and Budget.
Tom Fitton, president of Judicial Watch, the group that sued the U.S. Secret Service for access to the records, said the ruling "punched another hole through FOIA." He said the group's lawyers were weighing whether to ask the full D.C. Circuit to hear the case or to pursue a petition in the U.S. Supreme Court.
"We think the decision is weak and that the court did some legal gymnastics to get the result that it got," Fitton said. He added that he was glad the court at least affirmed that other agencies within the complex could be subject to FOIA requests. "The White House didn't get everything they were asking for, which is good," he said.
A spokesperson for the U.S. Department of Justice and for the White House could not immediately be reached for comment.
The U.S. Secret Service controls access to buildings and offices within the White House complex, which includes the White House, the Eisenhower Executive Office Building and the New Executive Office Building. Visitors to the complex typically have to submit certain identifying information to the Secret Service through an authorized White House pass holder.
Beginning in 2006, according to the opinion, litigation over access to the visitor records escalated. The Secret Service routinely denied requests for the records under FOIA, arguing they weren't "agency" records covered under the law, but were instead protected "presidential" records covered by the more restrictive Presidential Records Act.
Citizens for Responsibility and Ethics in Washington, or CREW, was among the groups that filed lawsuits seeking certain visitor records under the FOIA law. In 2009, the group reached a settlement with the White House. The government agreed to post visitor logs online on a regular basis.
Judicial Watch filed the latest suit in December 2009, seeking records of every visitor to the White House complex from January to August of that year. The Secret Service had denied the request, prompting Judicial Watch to sue.
In August 2011, U.S. District Judge Beryl Howell sided with Judicial Watch, finding that the records were largely created and controlled by the Secret Service, making them "agency" records under FOIA, and she rejected the government's argument that FOIA coverage of the records would raise separation of powers issues. The Secret Service either had to release the records or claim specific FOIA exemptions for particular documents, she said. The government appealed.
In today's ruling, Chief Judge Merrick Garland wrote that Congress, in drafting the FOIA law and Presidential Records Act, didn't intend for records such as the president's appointment calendar to be subject to disclosure. The court split Howell's opinion, saying visitor logs related to the Office of the President were off limits under FOIA, but agreed with Howell that the public could still request records for other agencies covered under FOIA that are housed within the White House complex, such as the Office of Management and Budget and the Council on Environmental Quality.
The appellate panel said it wasn't as sure as Howell that the Secret Service "controlled" the records, an important factor in determining whether the documents should be considered agency records. The records were typically turned over to the White House at a certain point. Also, there was uncertainty about the extent to which the documents were integrated into the Secret Service's overall record system.
Garland wrote that making the records subject to FOIA would raise separation-of-powers concerns, because it would force the president to either give up his right to secrecy about his choice of visitors—the president directly isn't subject to FOIA—or stop cooperating with an agency tasked with protecting him.
The court found that Judicial Watch was trying to make an end-run around the exclusion of the appointment calendars of the president and his staff from FOIA. The records were instead covered under the President Records Act, Garland said.
"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 President’s ability to meet confidentially with foreign leaders, agency officials, or members of the public," he wrote. "And that could render FOIA a potentially serious congressional intrusion into the conduct of the President’s daily operations."
Judicial Watch had argued the White House could avoid disclosing sensitive information by invoking an exemption in the FOIA law meant to restrict access to presidential communications, but the D.C. Circuit said there was no case law addressing whether visitor logs would be covered and it declined to find coverage now.
Melanie Sloan, executive director of CREW, which filed an amicus brief in the case supporting Judicial Watch, called today's decision "a great disappointment" and " another win for executive branch secrecy."
"There's no question that it’s a total loss, and while President Obama has decided to post visitor records online, he's not legally obligated to do so and future presidents may not decide to follow that lead," she said.
Senior Judges David Sentelle and Stephen Williams also heard the case.