White House visitor logs should remain open to public

FIRST & FOREMOST

The records system used to track visitors to the White House is maintained by the Secret Service, a component of the U.S. Department of Homeland Security, an agency fully subject to the Federal Freedom of Information Act (FOIA).

In 2009, then-President Barack H. Obama announced that visitor logs, including the names of visitors, the dates and times they entered and left the White House, and the names of the person they visited, would be posted online monthly. The policy was in response to several lawsuits filed under the FOIA by Citizens for Responsibility and Ethics in Washington (CREW) and others. (Those suits included requests for logs of visits with then-Vice President Dick Cheney and his staff, and every visit by lobbyists Jack Abramoff and Stephen Payne.) The policy of disclosure was subject to several exceptions, such as purely personal guests of the Obama family and the need to protect national security interests, among others. In explaining the policy, Obama said, "Americans have a right to know whose voices are being heard in the policymaking process."

On April 14, White House officials announced that President Donald J. Trump will not be continuing the policy of disclosing White House visitor logs. This despite a letter penned by eight U.S. senators urging Trump and the Secret Service to release the logs: "These logs provide the American public an unprecedented look at who was lobbying his Administration without compromising the President's ability to execute the functions of his office on a day-to-day basis." The senators urged Trump to extend Obama's policy on visitor logs to meetings at Trump's "Winter White House" - Mar-a-Lago.

In reversing course, Trump relied on a 2013 U.S. Court of Appeals for the D.C. Circuit decision written by Judge Merrick Garland, who was later nominated unsuccessfully to the U.S. Supreme Court by Obama, overturning a district court ruling granting summary judgment under the FOIA to Judicial Watch, a conservative group who sought access to visitor logs to the Obama White House over a seven-month period.

That decision was criticized by many transparency proponents as judicial overreach. Writing for the three-judge panel, Garland held that visitor logs to the Office of the President within the White House complex were not "agency records" within the meaning of FOIA, while visitor logs maintained by the Secret Service under the same system but recording visits to offices within the White House complex that themselves are subject to FOIA, such as the Office of Management and Budget, were "agency records." In so holding, the panel disregarded a well-established four-factor test utilized for determining whether records are "agency records" under FOIA and the Secret Service's own role in managing the visitor logs.

While FOIA does not define "agency records," case law holds that Congress did not intend the word "agency" to include the president, his personal staff or units in the Executive Office whose sole function is to advise the president. The president's personal calendar, for example, would not be an agency record under FOIA.

In the usual case, however, courts look to whether a covered agency either "created or obtained" the record and "controls" it at the time of the request in determining what constitutes an "agency record" under FOIA. Control turns on application of four factors: the intent of the document's creator to retain control over the record, the ability of the agency to use and dispose of the record as it sees fit, the extent to which agency personnel have read or relied upon the document, and the degree to which the document was integrated into the agency's record system or files.

Applying these factors to the visitor logs the district court found factor one favored the Secret Service since a memorandum of understanding (MOU) between the White House and Secret Service reserved control over the logs in the White House, and that factors two to four favored Judicial Watch. It was undisputed that the Secret Service used the logs to perform background checks to determine whether to authorize visitors' admission to the White House complex and to verify admissibility at the time of the visitor's entrance. It also was undisputed that the records reside on the Secret Service's servers.

While the panel agreed with some of the district court's findings, it nevertheless departed from the well-established four-factor control test and applied its own control test "when there are 'special policy considerations' at stake." Those policy considerations centered on separation of powers concerns and the confidentiality of presidential communications. The panel's test turned on the noncovered agency's expression of intent to control the records regardless of the covered agency's actual use and possession of the records. The panel found a sufficient indicia of presidential control over the logs in the MOU, which was drafted after earlier FOIA suits over the logs were filed.

Critics of the decision worry that the exception to the usual four-factor test will swallow the rule of disclosure and allow agencies to evade disclosure through artful expressions of intent to control records. Confidentiality can be addressed through FOIA's exemptions as opposed to precluding application of FOIA altogether, they contend.

Garland's decision soon will be tested in, arguably, a more favorable venue - the Southern District of New York. There, in April of this year, CREW (along with the Knight First Amendment Institute at Columbia University, National Security Archive and policy analyst Kate Doyle) filed a lawsuit under FOIA seeking access to Trump White House visitor logs on specific dates in late January of 2017 and, in a separate request, from January through March. The Secret Service declined to respond to the requests, giving the requesters standing to sue.

The case (1:2017-cv-02542) will be closely watched by those interested in a more transparent White House and in knowing who has Trump's ear on any given day. Application of the traditional four-factor test should yield the same results as reached by the district court in D.C. What test the court will apply remains to be seen.