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