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Doyle v. U.S. Department of Homeland Security

United States District Court, S.D. New York

July 26, 2018

KATE DOYLE, NATIONAL SECURITY ARCHIVE, CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, and KNIGHT FIRST AMENDMENT INSTITUTE AT COLUMBIA UNIVERSITY, Plaintiffs,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY and EXECUTIVE OFFICE OF THE PRESIDENT, Defendants.

          OPINION AND ORDER

          KATHERINE POLK FAILLA UNITED STATES DISTRICT JUDGE

         Plaintiffs 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.

         Defendants 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.

         BACKGROUND[1]

         A. Factual Background

         1. The Parties

         a. The Plaintiffs

         “Plaintiff [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 ¶ 4).

         “Plaintiff 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).

         b. The Defendants

         DHS is 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).

         The 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).

         2. Records of Presidential Visitors

         Plaintiffs 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.

         a. Records of White House Complex Visitors

         In 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. ¶¶ 6-7).

         Authorized 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).

         When an 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 records.

         b. Recordkeeping Practices Related to WAVES and ACR Records

         DHS 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).

         “[S]ince 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.”)).[2] “Currently, the after-visit records that are transferred to the WHORM constitute a combination of WAVES and ACR information.” (Murray Decl. ¶ 15).

         In May 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, 20-22).

         On 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, [3] which MOU purported to provide protocols governing its operations. (Id. at ¶¶ 5-6).

         The 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).

         Under 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).

         3. The FOIA Requests Preceding This Litigation

         a. Plaintiffs' FOIA Requests

         Plaintiffs 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).

         In any 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. A).

         b. 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 ¶ 8).[4]

         The 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, ”[5] 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).

         Further, 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).[6] 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. (Id.).

         The 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).[7] 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.).

         B. Procedural Background

         On April 10, 2017, after receiving no response from the Secret Service within the timeframe required under FOIA, [8] 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).

         The 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 (Dkt. #55).

         The 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 judgment.

         DISCUSSION

         A. The Court Denies Plaintiffs' Request for Judicial Notice

         Before 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.).

         1. The Parties' Positions on Plaintiffs' Judicial Notice Request

         In 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).

         On 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 Service. (Id.).

         Indeed, 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.).

         Plaintiffs 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.

(Id.).[9]

         2. Plaintiffs' Request for Judicial Notice Is Denied

         Under 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. 1992)).

         The 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.” Fed.R.Evid. 201(b).

         Moreover, 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.

         B. Defendants' Summary Judgment Motion Is Granted in Part and Denied in Part

         1. Applicable Law

         a. FOIA Generally

         FOIA 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).[10] 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)).

         b. Resolving FOIA Claims at Summary Judgment

         Summary 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)).

         A 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)).[11]

         c. Defining “Agency Records” Under FOIA

         The 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.[12] 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.

         i. Supreme Court Decisions: Kissinger, Forsham, and Tax Analysts II

         The 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 ...


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