United States District Court, S.D. New York
KATE DOYLE, NATIONAL SECURITY ARCHIVE, CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, and KNIGHT FIRST AMENDMENT INSTITUTE AT COLUMBIA UNIVERSITY, Plaintiffs,
U.S. DEPARTMENT OF HOMELAND SECURITY and EXECUTIVE OFFICE OF THE PRESIDENT, Defendants.
OPINION AND ORDER
KATHERINE POLK FAILLA UNITED STATES DISTRICT JUDGE
Kate Doyle, National Security Archive (“NSA”),
Citizens for Responsibility and Ethics in Washington
(“CREW”), and Knight First Amendment Institute
(collectively, “Plaintiffs”) initiated this
action against the United States Department of Homeland
Security (“DHS”) and the Executive Office of the
President (“EOP, ” and with DHS,
“Defendants”), after Doyle unsuccessfully
attempted to obtain, under the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552, records related to
visitors of President Trump at the White House Complex, as
well as at his properties at Trump Tower, in New York, and
Mar-a-Lago, in Florida. The operative complaint brings claims
under FOIA, the Administrative Procedure Act
(“APA”), 5 U.S.C. ch. 5, the Federal Record Act
(“FRA”), 44 U.S.C. §§ 2102-2118,
2901-2910, 3101-3107, 3301-3324, and the Presidential Records
Act (“PRA”), 44 U.S.C. §§ 2201-2209; it
seeks injunctive relief and, under the Declaratory Judgment
Act, 28 U.S.C. §§ 2201-2202, declaratory relief.
have moved for summary judgment on Plaintiffs' FOIA
claims and to dismiss the remainder of Plaintiffs' claims
for lack of subject matter jurisdiction and, alternatively,
for failure to state a claim. For the reasons that follow,
the Court grants in part and denies in part Defendants'
motion for summary judgment, and grants Defendants'
motion to dismiss in full.
[NSA] is an independent, non-governmental, non-profit
research institute organized under section 501(c)(3) of the
Internal Revenue Code.” (Am. Compl. ¶ 5). The NSA
obtains government documents through FOIA, and
“collects, analyzes, and publishes” them
“to enrich scholarship and journalism …, and to
promote openness and government accountability.”
(Id.). Plaintiff Kate Doyle is a senior analyst
focusing on United States policy in Latin America, who works
in NSA “to open and analyze government files, including
through the use of the FOIA.” (Id. at ¶
CREW is a non-profit, non-partisan organization organized
under section 501(c)(3) of the Internal Revenue Code.”
(Am. Compl. ¶ 6). CREW advocates for government openness
and accountability through “a combination of research,
litigation, and advocacy.” (Id.). A similar
operation, Plaintiff Knight First Amendment Institute at
Columbia University is a New York not-for-profit corporation
seeking “to preserve and expand the freedoms of speech
and the press” through “litigation, research, and
public education.” (Id. at ¶ 7). Both
organizations utilize FOIA requests in furtherance of their
missions. (See Id. at ¶¶ 6-7).
a federal agency that includes, as one of its components, the
United States Secret Service, which is required by statute to
provide security to the President and Vice President.
See 18 U.S.C. §§ 3056(a)(1), 3056A(a)(4).
Acceptance of the Secret Service's protection is
mandatory for the President, Vice President, President-elect,
and Vice President-elect. See Judicial Watch, Inc. v.
U.S. Secret Serv., 726 F.3d 208, 211 (D.C. Cir. 2013)
(citing Pub. L. No. 98-587, 98 Stat. 3110 (1984) (codified at
18 U.S.C. § 3056(a)). (See also Murray Decl.
¶ 3). The Secret Service's protection also extends
to the edifices associated with the offices of the President
and Vice President. See 18 U.S.C. § 3056A(a).
Executive Office of the President (the “EOP”)
comprises various bodies, including the White House Office,
which, in turn, includes the President's immediate staff,
the White House Counsel's Office, and the Staff
Secretary's Office. (Herndon Decl. ¶ 2). The EOP
also encompasses the Council on Environmental Quality
(“CEQ”); the Office of Management and Budget
(“OMB”); the Office of National Drug Control
Policy (“ONDCP”); the Office of Science and
Technology Policy (“OSTP”); and the Office of the
United States Trade Representative (“USTR”). (Am.
Compl. ¶ 9).
Records of Presidential Visitors
seek from the DHS records maintained by the Secret Service
spanning the period of January 20, 2017, through March 8,
2017, related to visits to the White House and to President
Trump at his Mar-a-Lago and Trump Tower residences.
(See Am. Compl. ¶¶ 1, 34, 39). DHS
contends that although the security responsibility of the
Secret Service extends to the White House Complex, it
“does not have a similar statutory authority to protect
Mar-a-Lago or Trump Tower.” (Murray Decl. ¶ 3).
The declarations that DHS has submitted in support of its
motions thus focus on the policies and procedures attendant
to records of White House Complex visitors, and this section
summarizes those guidelines.
Records of White House Complex Visitors
order to vet, identify, and monitor visitors to the White
House Complex, the Secret Service employs two interconnected
electronic systems: (i) the Executive Facilities Access
Control System (“EFACS”), through which the
Secret Service controls and monitors White House Complex
access; and (ii) the Worker and Visitor Entrance System
(“WAVES”), which the Secret Service uses to vet
visitors to the White House Complex. (Murray Decl.
White House Complex passholders may request permission for a
visitor to the White House Complex by providing visitor
information to the Secret Service through a system called
“Appointment Center” or the “WAVES Request
System” (“WRS”). (Murray Decl. ¶ 8).
Through these systems, WAVES gathers information related to
prospective visitors, which information allows a Secret
Service member to verify that the requestor is authorized to
make appointments for the location requested, to acquire
additional information, to conduct a background check, and to
transmit the information to the EFACS server. (Id.).
WAVES records include a variety of information fields, such
as whether a visit is related to a certain event at the White
House Complex or is subject to certain restrictions.
(Id. at ¶ 9).
individual receives approval to visit the White House
Complex, he or she typically receives a badge to
“swipe” over electronic badge readers located at
entrances and exits to the White House Complex; each swipe
generates an “Access Control Record”
(“ACR”) within the EFACS system. (Murray Decl.
¶ 10). An ACR contains information such as the
visitor's name, and the date, time, and location at which
the ACR was generated, which, “[o]nce a visit takes
place, ” is integrated into the WAVES records.
(Id. at ¶¶ 10-11). These aggregated
records contain information identifying the visitor, visitee,
and individual who made the appointment; as well as details
of the visit, such as the points of entry and departure, the
type of escort the visit requires, and whether the visit
involved a highly sensitive meeting. (Willson Decl. ¶
7). This dispute principally revolves around WAVES and ACR
Recordkeeping Practices Related to WAVES and ACR
contends that because the Secret Service utilizes WAVES
records to vet potential visitors and verify visitors'
admissibility at the time of a visit, the Secret Service
ceases to have an interest in maintaining such information
after the completion of a visit. (See Murray Decl.
¶¶ 8, 13). Thus, “[s]ince at least 2001,
” the Secret Service has maintained a practice of
transferring WAVES records to the White House Office of
Records Management (“WHORM”) “generally
every 30 to 60 days.” (Id. at ¶ 13;
see also Droege Decl. ¶ 4). “[A]s early
as 2001, ” the White House and Secret Service agreed
that ACR records “should be treated in a manner
generally consistent with WAVES records, ” and thus,
“[s]ince at least 2006, ” the Secret Service has
transferred ACR records to the WHORM every 30 to 60 days.
(Droege Decl. ¶ 5).
at least 2009, ” the Secret Service has transferred
WAVES records to WHORM every 30 days. (Murray Decl. ¶
13; see also Willson Decl. ¶ 5; Droege Decl.
¶ 4). After transferring the records, “[i]t is the
intent of the Secret Service” that the records
“be erased from [their] computer system, ” and
WAVES records over 60-days old are normally
“auto-deleted” and “overwritten on the
servers.” (Murray Decl. ¶ 13; see also
Willson Decl. ¶ 6 (“Records that are older than 60
days are ordinarily auto-deleted from the server operated by
the Secret Service on a rolling
basis.”)). “Currently, the after-visit records
that are transferred to the WHORM constitute a combination of
WAVES and ACR information.” (Murray Decl. ¶ 15).
2006, the Secret Service Records Management Program and WHORM
entered into a Memorandum of Understanding (the “2006
MOU”), which reflected the above practices regarding
WAVES and ACR records. (See Murray Decl. ¶ 14;
Droege Decl. ¶ 6). The 2006 MOU also expressed the
Secret Service's and WHORM's understanding that such
records “are at all times Presidential Records, ”
“are not Federal Records, ” and “are not
the records of an ‘agency' subject to the Freedom
of Information Act[.]” (Murray Decl., Ex. A at ¶
17). The 2006 MOU also provided that (i) such records
“are at all times under the exclusive legal custody and
control of the White House”; (ii) only the White House
has a “continuing interest” in such records;
(iii) “the Secret Service has no continuing interest in
preserving or retaining” such records; and (iv) the
Secret Service “will regularly transfer” such
records to WHORM. (Id., Ex. A at ¶¶ 18,
March 19, 2015, President Obama issued a memorandum creating
the position of the Director of White House Information
Technology (“DWHIT”), who is “responsible
for the information resources and information systems
provided to the President, Vice President and [EOP].”
(Herndon Decl. ¶¶ 1, 3). The memorandum also
established the Presidential Information Technology Community
in order to “bring various [information] systems and
resources into a single community under the auspices of the
DWHIT, ” which “would enhance the security of
those systems and resources.” (Id. at
¶¶ 3-4). Pursuant to the authority vested by
President Obama's memorandum and in furtherance of the
aims of that memorandum, in September 2015, the Presidential
Information Technology Community entered into a Memorandum of
Understanding with the member-entities of the Presidential
Information Technology Community (the “2015
MOU”), including the Secret Service,  which MOU
purported to provide protocols governing its operations.
(Id. at ¶¶ 5-6).
2015 MOU provides that “[a]ll records created, stored,
used, or transmitted by, on, or through the unclassified
information systems and information resources provided to the
President, Vice President, and EOP shall remain under the
exclusive ownership, control, and custody of the President,
Vice President, or originating EOP component.” (Murray
Decl. ¶ 17 (alteration in original); see also
Herndon Decl. ¶¶ 8-9). Pursuant to the 2015 MOU -
and despite the facts that the “WAVES servers are
located at the Secret Service's headquarters … and
Secret Service personnel operate this machinery” - DHS
maintains that “the President is the business owner of
the EFACS and WAVES systems, and the Secret Service operates
those systems on behalf of the President, acting as a service
provider.” (Murray Decl. ¶ 16). As a result of the
2015 MOU, after a visit has concluded, the Secret Service
must request permission from the White House to view records
of the visit, and if the records have been transferred to
WHORM, the Secret Service must also contact WHORM to access
the records. (Id. at ¶ 19). The Secret Service
must similarly request permission from the DWHIT to modify
the WAVES or EFACS systems. (Id. at ¶ 20).
the Obama Administration, on September 15, 2009, the White
House implemented a policy of voluntarily disclosing certain
information contained in WAVES and ACR records. (Droege Decl.
¶ 12). This disclosure policy contained various
exceptions, including information implicating personal
privacy or law enforcement concerns, personal safety of EOP
staff, and national security concerns. (Id. at
¶ 13). The current administration rescinded this policy
on April 14, 2017. (Id. at ¶ 14).
The FOIA Requests Preceding This Litigation
Plaintiffs' FOIA Requests
allege that on January 23, 2017, Plaintiff Kate Doyle sent a
FOIA request via facsimile to the Secret Service
“requesting all WAVES and ACR records for”
January 20 through January 22, 2017. (Am. Compl. ¶ 34).
More specifically, Doyle requested 28 data fields that were
previously made available to the public through the Obama
Administration's Visitor Records Requests website.
(Id.). After receiving no response from the Secret
Service, on February 24, 2017, Doyle sent an administrative
appeal of her request to the Secret Service via facsimile.
(Id. at ¶ 35). DHS contends that it has no
record of receiving either the initial request or the
administrative appeal, but it acknowledges that after filing
the complaint in this case, Plaintiffs provided documentation
indicating that both the request and administrative appeal
had been faxed to the DHS. (Campbell Decl. ¶¶ 4-5).
event, on March 10, 2017, Plaintiffs sent a second FOIA
request to the Secret Service, seeking the extraction of the
same 28 data fields from (i) “all WAVES and ACR records
from January 20, 2017 until March 8, 2017, ” and (ii)
“records of presidential visitors at Mar-a-Lago and
Trump Tower from January 20, 2017 to March 8, 2017.”
(Am. Compl. ¶ 39). This second request also sought
expedited processing “in light of [Plaintiffs']
significant concerns … about how President Trump [was]
using his private properties at Mar-a-Lago and Trump Tower,
the extensive media coverage of this issue, and the refusal
of the President to date to commit to releasing the visitor
logs data.” (Id. at ¶ 40). Unlike the
first request, DHS acknowledges receiving this request, to
which DHS responded by letter on April 11, 2017, in which it
denied Plaintiffs' request for expedited treatment.
(See Campbell Decl. ¶ 6; id. at Ex.
The Secret Service's Response to the Requests In
response to Plaintiffs' FOIA requests, DHS maintains that
WAVES and ACR records are not Secret Service records, but
rather are Presidential Records not subject to FOIA; DHS
therefore “did not seek to search for, locate, or
process these records.” (Campbell Decl. ¶ 7).
Further, “the Secret Service “was aware that
President Trump had not traveled to Trump Tower during the
requested time period” and “after confirming this
information, the Secret Service did not seek to search for
the material requested by Plaintiffs.” (Id. at
Secret Service handled Plaintiffs' request for
information regarding Mar-a-Lago visitors in a different
fashion. Although the Secret Service “easily …
confirmed” that it did not “utilize WAVES or ACR
records at Mar-a-Lago, it was unclear what, if any, record
systems or record groupings might exist in regard to who
visited the President at Mar-a-Lago, or where such record
systems or record groupings might be located.”
(Campbell Decl. ¶ 9). The Secret Service thus undertook
a set of searches “to determine what, if any, record
systems or record groupings existed that might contain
information potentially responsive to Plaintiffs'
request, ” but according to DHS, this search
ultimately revealed “no system for keeping track of
visitors to Mar-a-Lago, as there is at the White House
Complex.” (Id. at ¶¶ 10-11). DHS
therefore contends that, regarding the 28 data fields
Plaintiffs seek, “the Secret Service maintains no
record and has no access to any record directly responsive to
Plaintiffs' request for records of presidential visitors
at Mar-a-Lago.” (Id. at ¶ 13).
aside from the 28 data fields that were available under a
prior administration, DHS contends that its search uncovered
only one record that was subject to FOIA - a two-page email
from the Department of State that was forwarded to the Secret
Service - which DHS provided to Plaintiffs in redacted form.
(Campbell Decl. ¶ 14). The email “evidenced
potential visitors to Mar-a-Lago, some of whom were scheduled
to attend a dinner with the President.” (Id.
at ¶ 33). Before turning the email over to Plaintiffs,
the DHS redacted “the names, email addresses, and a
cell phone number of third parties, ” claiming that
such information was exempt from disclosure under FOIA.
Secret Service's search also revealed records involving a
visit by the Prime Minister of Japan, Shinzo Abe, along with
his wife, to Mar-a-Lago; in addition, the search produced
“a handful of records that referred to individuals who
were scheduled to meet with the President at
Mar-a-Lago.” (Campbell Decl. ¶¶
26-27). DHS contends that documents in the latter
category “contain, reflect, or directly relate to
Presidential schedules” and are therefore
“Presidential records within the meaning of the
[Presidential Records Act]” and are not subject to
FOIA. (Id. at ¶ 31). As to the records
involving Prime Minister Abe, DHS decided that they are
“not records of Presidential visitors at Mar-a-Lago,
” but instead “operational material that merely
contain a repeated statement that the Prime Min[i]ster of
Japan and his spouse would be meeting or dining or present
with the President and First Lady at Mar-a-Lago, a widely
published fact that [w]as already disclosed by the White
House.” (Id. at ¶ 32). DHS also argues
that the records involving Prime Minister Abe are
“duplicative” of the redacted State Department
email that was provided to Plaintiffs. (Id.).
April 10, 2017, after receiving no response from the Secret
Service within the timeframe required under FOIA,
Plaintiffs filed the initial complaint in this case.
(See Am. Compl. ¶¶ 41-45; Dkt. #1). On
July 14, 2017, the parties appeared for an initial pretrial
conference, pursuant to which the Court issued an order
directing the “Secret Service [to] complete its search
for and processing of responsive ‘records of
presidential visitors at Mar-a-Lago,' and produce any
non-exempt responsive records, by September 8, 2017”;
the Court scheduled summary judgment briefing after such
production. (Dkt. #23). The Court later extended the deadline
for such production to September 15, 2017. (Dkt. #28).
Court also granted Plaintiffs leave to file an amended
complaint and issued a revised summary judgment briefing
schedule on September 14, 2017. (Dkt. #30). The next day,
Plaintiffs amended their complaint, which they now bring
under FOIA, the APA, the FRA, and the PRA, in pursuit of
injunctive and declaratory relief. (See Dkt. #32).
On October 23, 2017, DHS moved for summary judgment on
Plaintiffs' FOIA claims and to dismiss the remaining
claims for failure to state a claim and lack of subject
matter jurisdiction. (See Dkt. #45-51). On December
4, 2017, Plaintiffs opposed the motion (Dkt. #52), and DHS
replied to Plaintiffs' opposition on January 12, 2018
Court's analysis will proceed as follows: First,
the Court addresses a request for judicial notice that
Plaintiffs made after summary judgment briefing closed;
second, the Court addresses Plaintiffs' FOIA
claims; third, the Court addresses Plaintiffs'
claims involving the APA, FRA, and PRA; and fourth,
the Court addresses Plaintiffs' claim for declaratory
The Court Denies Plaintiffs' Request for Judicial
addressing the merits of Defendants' motions, the Court
resolves a late-breaking dispute among the parties. On
February 20, 2018, after summary judgment briefing had
concluded, Plaintiffs filed a letter requesting that the
Court take judicial notice of a settlement into which the
Secret Service had entered in Public Citizen, Inc. v.
United States Secret Service, No. 17 Civ. 1669 (CRC)
(D.D.C.) (the “Public Citizen
Settlement” or the “Settlement”). (Dkt.
#58). The Settlement explains that, much like the case at
bar, the plaintiff in that action, Public Citizen, Inc., had
submitted FOIA requests to the defendant, the United States
Secret Service, seeking WAVES and ACR records, along with
records from “any other system used to track visitors
to the White House complex.” (Dkt. #58, Ex. A
(Settlement Agreement)). These requests “specifically
sought records related to visits” to the following EOP
components: the OMB, OSTP, ONDCP, and CEQ. (Id.). As
a result of the Settlement, the White House was to “add
computer functionality to the existing system containing
WAVES records by which it can sort WAVES records by the
requester's email address[.]” (Id.).
The Parties' Positions on Plaintiffs' Judicial Notice
requesting that the Court judicially notice the Settlement,
Plaintiffs contend that the agreement establishes that the
“Secret Service can distinguish between records of
visits to agency components [of the EOP] from records of
visits to non-agency components, ” as the Settlement
requires the Secret Service “to add a functionality to
its system that would allow it to sort WAVES records by the
requester's email address, process the records [requested
by the plaintiff in that separate action], and post them in
agency online reading rooms.” (Dkt. #58).
February 27, 2018, Defendants responded to Plaintiffs'
request, providing no objection to the Court taking judicial
notice of the Settlement, but arguing that the agreement in
fact supported Defendants' pending motions. (Dkt. #59).
In particular, Defendants argue that the Settlement expressly
acknowledges that an appointment requester's email
address “does not necessarily show that a WAVES record
reflects an EOP agency component visit, ” and that any
functionality changes pursuant to the Settlement would be
within the control of the White House rather than the Secret
Defendants contend that the Settlement renders moot
Plaintiffs' FRA and PRA claims, insofar as they
“allege wrongful treatment of agency records by EOP and
the Secret Service” for failing to “distinguish
between records of visits to Presidential components of EOP
(which are not subject to FOIA) and records of visits to
agency components of EOP (which are).” (Id.).
In Defendants' view, the Settlement “creates a
mechanism for doing just that, thereby mooting
Plaintiffs' FRA and PRA claims in their entirety, ”
and “the [Settlement provides virtually all the relief
that [P]laintiffs could achieve under FOIA, and more.”
(Id.). Further, Defendants argue that the only
aspect of Plaintiffs' FOIA claim “that is not moot
is the possibility that plaintiffs may wish to challenge any
redactions that the EOP agency components may apply to the
records before posting, ” but because any such
redactions and corresponding objections are unknown at this
point, the Court should hold this portion of Plaintiffs'
FOIA claim in abeyance and dismiss the remainder of
Plaintiffs' claims. (Id.).
replied to Defendants' response on March 2, 2018, arguing
at the outset that Defendants' opposition letter
improperly raised grounds for summary judgment and dismissal
that were not raised in Defendants' formal briefing.
(Dkt. #60). In addition, Plaintiffs contend that the
Public Citizen Settlement does not render the claims
at issue moot for three reasons:
■ First, the Settlement “expires”
if either the EOP modifies its email system so that email
addresses no longer indicate that an employee works for an
EOP component, or the White House modifies the WAVES system
so that it does not automatically populate the email address
of an appointment requester. (Id.).
■ Second, until Defendants have searched for
the records that Plaintiffs are seeking and produced all
non-exempt records, the Settlement does not speak to any
challenges Plaintiffs might raise to Defendants'
withholding of records. (Id.).
■ Third, the Settlement defines “FOIA
components” within the EOP more narrowly than
Plaintiffs' operative complaint.
Plaintiffs' Request for Judicial Notice Is
the Federal Rules of Evidence, a “court may judicially
notice a fact that is not subject to reasonable
dispute” where it “can be accurately and readily
determined from sources whose accuracy cannot reasonably be
questioned.” Fed.R.Evid. 201(b)(2). “[B]ecause
the effect of judicial notice is to deprive a party of the
opportunity to use rebuttal evidence, cross-examination, and
argument to attack contrary evidence, caution must be used in
determining that a fact is beyond controversy under Rule
201(b).” Braun v. United Recovery Sys., LP, 14
F.Supp.3d 159, 164 (S.D.N.Y. 2014) (alteration in original)
(citation omitted). “A court may take judicial notice
of a document filed in another court ‘not for the truth
of the matters asserted in the other litigation, but rather
to establish the fact of such litigation and related
filings.'” Int'l Star Class Yacht Racing
Ass'n v. Tommy Hilfiger U.S.A., Inc., 146 F.3d 66,
70 (2d Cir. 1998) (quoting Liberty Mut. Ins. Co. v.
Rotches Pork Packers, Inc., 969 F.2d 1384, 1388 (2d Cir.
scope of Plaintiffs' request for judicial notice of the
Public Citizen Settlement far exceeds the purposes
for which the Court may properly consider it. Although
Defendants do not object to judicial notice of the fact of
the Settlement, the parties' submissions on the issue
make clear that they vehemently disagree as to which facts
the Court should glean from the Settlement Agreement.
(Compare Dkt. #58, 60, with Dkt. #59).
Because both sides have offered plausible views of the
practical implications of the Settlement, a
fortiori, the Court cannot find that the factual purpose
for which Plaintiffs urge the Court to consider the
Settlement would be beyond “reasonable dispute.”
to grant Plaintiffs' request would not only require the
Court to consider the Settlement for the truth of the matters
stated therein, but to make the inferential leap of drawing
facts from the Settlement that are not necessarily borne out
by its terms. To be sure, a court may judicially notice a
settlement agreement to establish the fact of a prior
litigation. See, e.g., Deylii v. Novartis Pharm.
Corp., No. 13 Civ. 6669 (NSR), 2014 WL 2757470, at *4
(S.D.N.Y. June 16, 2014) (collecting cases). But it may not
do so to take as true any facts contained in such settlement
agreement. See Int'l Star Class Yacht Racing
Ass'n, 146 F.3d at 70. The Court therefore denies
Plaintiffs' request that the Court judicially notice the
Public Citizen Settlement.
Defendants' Summary Judgment Motion Is Granted in Part
and Denied in Part
vests federal courts with “jurisdiction to enjoin [a
federal] agency from withholding agency records and to order
the production of any agency records improperly
withheld[.]” 5 U.S.C. §
552(a)(4)(B). The statute mandates disclosure of any
requested “agency records” unless they fall
within one of FOIA's enumerated exemptions. See Grand
Cent. P'ship, Inc. v. Cuomo, 166 F.3d 473, 478 (2d
Cir. 1999); Adamowicz v. I.R.S., 672 F.Supp.2d 454,
461 (S.D.N.Y. 2009), aff'd, 402 Fed.Appx. 648
(2d Cir. 2010) (summary order). FOIA thus allows public
access to information held by agencies of the federal
government, but such access is not limitless: In enacting
FOIA, Congress sought to strike a balance between the
public's interest in government transparency and
accountability, and the Government's need to hold
sensitive information in confidence. See Nat'l
Council of La Raza v. Dep't of Justice, 411 F.3d
350, 355-56 (2d Cir. 2005); Nat. Res. Def. Council, Inc.
v. U.S. Dep't of Interior, 36 F.Supp.3d 384, 397
(S.D.N.Y. 2014) (quoting John Doe Agency v. John Doe
Corp., 493 U.S. 146, 152 (1989)).
Resolving FOIA Claims at Summary Judgment
judgment is the usual mechanism for resolving a FOIA dispute.
N.Y. Times Co. v. United States Dep't of
Justice, 235 F.Supp.3d 522, 529 (S.D.N.Y. 2017). Federal
jurisdiction over a FOIA action requires “a showing
that an agency has [i] ‘improperly' [ii]
‘withheld' [iii] ‘agency records,
'” and “[o]nly when these criteria are met
may a district court ‘force an agency to comply with
the FOIA's disclosure requirements.'” Grand
Cent. P'Ship, 166 F.3d at 478 (quoting U.S.
Dep't of Justice v. Tax Analysts (“Tax
Analysts II”), 492 U.S. 136, 142 (1989)). Where,
as here, “the question is whether requested documents
are ‘agency records' subject to disclosure under
FOIA, ‘[t]he burden is on the agency to demonstrate,
not the requester to disprove, that the materials sought are
not ‘agency records[.]'” Id.
(quoting Tax Analysts II, 492 U.S. at 142 n.3). A
court reviews de novo an agency's decision to
withhold information. N.Y. Times Co., 235 F.Supp.3d
at 529 (citing 5 U.S.C. § 552(a)(4)(B)).
district court considering a FOIA claim “may grant
summary judgment in favor of an agency ‘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.'” Grand Cent. P'ship, 166
F.3d at 478 (quoting Gallant v. NLRB, 26 F.3d 168,
171 (D.C. Cir. 1994)); see also Garcia v. U.S. Dep't
of Justice, Office of Info. & Privacy, 181 F.Supp.2d
356, 366 (S.D.N.Y. 2002) (“If the agency's
submissions are facially adequate, summary judgment is
warranted unless the plaintiff can make a showing of bad
faith on the part of the agency or present evidence that the
exemptions claimed by the agency should not apply.”).
“As such, where the agency's submissions are
‘adequate on their face,' district courts
‘may forgo discovery and award summary judgment on the
basis of affidavits.'” N.Y. Times Co., 235
F.Supp.3d at 529 (quoting Carney v. U.S. Dep't of
Justice, 19 F.3d 807, 812 (2d Cir. 1994)). Conversely,
“[s]ummary judgment in favor of the FOIA plaintiff is
appropriate ‘when an agency seeks to protect material
which, even on the agency's version of the facts, falls
outside the proffered exemption.” Nat. Res. Def.
Council, Inc., 36 F.Supp.3d at 398 (quoting N.Y.
Times Co. v. U.S. Dep't of Def., 499 F.Supp.2d 501,
509 (S.D.N.Y. 2007)).
Defining “Agency Records” Under FOIA
propriety of Defendants' decision to withhold the WAVES
and ACR records at issue turns on whether those records are
“agency records, ” and thus subject to disclosure
under FOIA. By all accounts, this is an issue of first
impression within this Circuit. Yet, as discussed below, the
Court of Appeals for the District of Columbia Circuit has
addressed this very issue, and the parties therefore focus
initially on disputing whether the Court should adopt the
D.C. Circuit's approach here. The Court discusses the
various bases of the D.C. Circuit's approach, and then
considers the parties' arguments supporting and opposing
adoption of that approach.
Supreme Court Decisions: Kissinger,
Forsham, and Tax Analysts II
progenitor of modern FOIA case law is Kissinger v.
Reporters Commission for Freedom of the Press, where the
Supreme Court held that Congress did not intend FOIA to
define an “agency” to include “the Office
of the President, ” meaning 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.)). There, the
Court held in relevant part that notes of telephone
conversations of then-Assistant to the President for National
Security Affairs, Henry Kissinger, were not “agency
records” subject to FOIA, as the requested documents
were generated while Kissinger was acting in his capacity as
a presidential adviser. Id. at 157. And this was so
even though, at the time of ...