30+ Years of Freedom of Information Action

2nd Circuit Helps White House Hide Visitor Logs

access denied
Published: May 18, 2020

Edited by Tom Blanton and Lauren Harper

For more information, contact:
202-994-7000 or nsarchiv@gwu.edu

Ruling in Doyle v. DHS never mentions Obama published 6 million visitor records

Archive, CREW, Knight Institute lawsuit exposes weak federal records laws

Washington, D.C., May 18, 2020 – The 2nd Circuit Court of Appeals today ruled against the National Security Archive’s lawsuit to restore the routine disclosure, under the Freedom of Information Act (FOIA), of the White House visitor logs that were taken down by the Trump administration in early 2017.

The 2nd Circuit’s 22-page ruling concentrates on the ostensible intrusion on a president’s ability to receive confidential advice, and the supposed burden of using FOIA’s regular exemptions to process the logs for release, while never acknowledging that the Obama White House routinely published its visitor logs some 90 days after the visit – some six million such records in all – with no apparent hindrance on presidential activity.

The ruling highlights severe weaknesses in the Federal Records Act – which apparently does not preclude a president from converting agency records into presidential ones not covered by FOIA through the simple expedient of a memo of understanding – and in the Presidential Records Act – which provides extremely limited forms of external review for White House record-keeping and the lack thereof.

Archive senior analyst Kate Doyle filed FOIA requests for White House visitor logs beginning with the Trump inauguration in January 2017, as part of her work tracking U.S.-Mexico relations from her office in New York.  The requests went to the Secret Service, which checks incoming visitors against various criminal databases, as part of its statutory duties within the Department of Homeland Security to protect the president. 

Anticipating that the new administration’s antipathy for all Obama initiatives could lead to removal of the visitor logs, Doyle and the Archive filed new FOIA requests in March 2017 and went to federal court in April 2017, together with the Knight First Amendment Institute at Columbia University, and Citizens for Responsibility and Ethics in Washington (CREW).  The experienced CREW and Knight attorneys – Anne Weismann, Alex Abdo, Jameel Jaffer, and Conor Shaw – represented the plaintiffs through the federal district court and appeals court arguments.

CREW and Weismann led the original case against Presidents George W. Bush and Barack Obama to open the White House visitor logs, and negotiated the settlement in the first year of the Obama administration that produced the routine publication of some six million of the visitor logs between 2010 and January 2017, with limited redactions under the regular FOIA exemptions that protect, for example, national security or personal privacy.

A subsequent lawsuit against the Obama administration by the Judicial Watch group resulted in a judgment by the D.C. Circuit Court of Appeals that did not overturn the earlier settlement, but in convoluted language (written by Judge Merrick Garland) opened the door for a future president to cease publishing the visitor logs.

The Doyle v. DHS lawsuit by the Archive, the Knight Institute, and CREW argued that protecting the president and vetting White House visitors were so central to the Secret Service’s statutory mission that the records of that vetting were clearly agency records under Supreme Court precedent in the Tax Analysts case.  The government argued that the Garland opinion, plus a memorandum of understanding between the Secret Service and the Obama White House in 2015, established presidential control over the records at issue, and admitted that the Secret Service was keeping no systematic records of visitors at presidential properties such as Mar-a-Lago.

In July 2018, Judge Katherine Polk Failla in the Southern District of New York agreed with the government.  The plaintiffs filed their appeal on January 7, 2019, and oral arguments before Judges Guido Calabresi, Raymond J. Lohier, Jr., and Michael H. Park of the 2nd Circuit took place on September 24, 2019.  

 

The documents

 

2nd Circuit Ruling in Doyle v. DHS
May 18, 2020

Secret Service's Response To Archive's December 11, 2017 Foia Appeal 
July 29, 2019

Reply Brief
May 15, 2019

Appeal, Doyle v. DHS
January 07, 2019

Appendix, Doyle v. DHS
January 07, 2019

Secret Service Declaration
October 04, 2017

Trump Hides Mar-A-Lago Visitor Records
January 07, 2016

 
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2017-09-15
The presidential visitor records for Mar-a-Lago released in response to a FOIA lawsuit brought by the National Security Archive, together with the Knight First Amendment Institute at Columbia University and the Citizens for Responsibility and Ethics in Washington (CREW).
 
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2017-07-14
Court order forcing Secret Service to release non-exempt portions of Mar-a-Lago visitor logs by September 8, 2017, and requiring defendant to files motion for summary judgement by September 29.
 
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2017-04-10
Complaint for injunctive and declaratory relief in Doyle et al. v. DHS, filed in the United States District Court for the Southern District of New York on April 10, 2017.
 
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2017-03-10
Kate Doyle’s March 10, 2017, FOIA request to the Secret Service for White House visitor logs and presidential visitor records for Mar-a-Lago and Trump Tower from January 20, 2017, to March 8, 2017.
 
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2017-01-23
Kate Doyle’s February 24, 2017, FOIA appeal to the Secret Service concerning her January 23, 2017, FOIA request for the White House visitor logs covering Inauguration weekend, for which she received no response.
 
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2009-09-03
Justice Department’s September 3, 2009, letter to CREW’s Anne Weismann, Esq. summarizing the settlement of various FOIA and FRA lawsuits brought by CREW, noting that the following week the White House would announce a voluntary disclosure program, “pursuant to which visitors to the White House and the Vice President’s Residence will be publicly disclosed (subject to certain narrow exemptions).
 
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2011-08-17
Memorandum opinion in Judicial Watch v. Secret Service, filed August 17, 2011, denying the defendant’s cross-motion for summary judgement.
 
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2012-05-08
Amicus brief of the Citizens for Responsibility and Ethics in Washington in Support of the Appellee, Judicial Watch v. United States Secret Service, May 8, 2012.
 
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2013-08-30
Opinion of the Court, Judicial Watch v. United States Secret Service, August 30, 2013.
 
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2017-03-06
Senators Ron Wyden (D-Ore.), Sheldon Whitehouse (D-R.I.), Jack Reed (D-R.I.), Tom Carper (D-Del.), Tom Udall (D-N.M.), Kirsten Gillibrand (D-N.Y.), Richard Blumenthal (D-Conn.), and Chris Van Hollen (D-Md.) letters to President Donald Trump and the Secret Service, March 6, 2017.