D.C. Circuit Rejects Public Access to WH Visitor Logs
Washington, D.C. — Today in Judicial Watch, Inc. v. U.S. Secret Service, the D.C. Circuit ruled that White House visitor logs are not agency records and, therefore, not subject to disclosure under the Freedom of Information Act. In reaching this conclusion, the appellate court disagreed with every district court to have considered this issue. The court’s ruling means that except for a small subset of visitor records concerning White House agency components, the public has lost the right to see these records.
Central to the court’s ruling was a 2006 memorandum of understanding (MOU) the White House and Secret Service entered into after CREW made requests and then sued for access to the visitor logs. That MOU specified that White House visitor records are controlled at all times by the White House. The timing and circumstances surrounding the creation of the MOU strongly suggest it was manufactured solely to buttress the government’s litigation posture, but the D.C. Circuit refused to consider the government’s motives. The court appeared to excuse its reliance on an MOU of dubious merit by saying this is an unusual situation. Nevertheless, the court cites this MOU throughout the opinion in justifying its holding.
In analyzing the status of the visitor records, the court first employed a four-factor test recognized by Circuit precedent to initially conclude visitor logs would be considered agency records subject to the FOIA. Unfortunately, the court’s analysis did not end there. Instead, the court turned to “special policy considerations,” namely, that the Office of the President is not covered by the FOIA and has a “constitutional prerogative” to “safeguard the confidentiality of its communications.” The court also noted that separation of powers played a role in its decision to hold that White House visitor logs are not “agency records” under the FOIA.
CREW Executive Director Melanie Sloan stated, “White House visitor records have proven of enormous value to the public in exposing the outside influences brought to bear on presidential decisions and policies. With this ruling, that window on the White House is now shut. Although President Obama has chosen to make the visitor logs public, future presidents can freely leave the public in the dark.”
Citizens for Responsibility and Ethics in Washington (CREW) is a non-profit legal watchdog group dedicated to holding public officials accountable for their actions. For more information, please visit www.citizensforethics.org or contact David Merchant at 202.408.5565 or email@example.com