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Judicial Watch FOIA Request for Presidential Info Denied

By Brett Snider, Esq. on September 03, 2013 | Last updated on March 21, 2019

The Freedom of Information Act (FOIA) has given civilians access to troves of historically secret information, even the location of the famed Area 51.

But the D.C. Circuit confirmed on Friday that there are still some areas that are off-limits even through FOIA, and Secret Service records of the President's schedule and visitors are still on a need-to-know basis.

Secret Service Agency Records

In a week with absolutely no other decisions, the D.C. Circuit decided to tackle a case spearheaded by the superheroic sounding plaintiff, Justice Watch, Inc. Justice Watch requested records from the Secret Service under FOIA of "all official visitors logs" and other visitor records from President Obama's inauguration until the present.

For some context, Judicial Watch's website features exposés on various topics like "Weekly Update: What is Obama Hiding?" and showcases its various projects fighting issues like Obamacare, immigration, and the controversial HPV vaccine. So it may be safe to assume that the group was not interested in the way the Secret Service operates outside the context of the Obama Administration.

The Secret Service argued that these documents were not "agency records," but "presidential records" which are covered by the Presidential Records Act and not subject to the same FOIA disclosure rules.

Limiting White House Access

SCOTUS narrowed the definition of "agency records" in a 1980 decision which explicitly excluded the president and his immediate staff from disclosure under FOIA. So while FOIA does grant Justice Watch access to "agency records" of agencies like the Secret Service, it cannot ask for these disclosures if it effectively would reveal records from the Office of the President.

Due to the sensitive nature of the documents in question, the D.C. Circuit applied an unusual test from United We Stand America Inc. v. IRS, which examined how to deal with disclosures from another protected group, Congress.

The D.C. Circuit opined that since the White House "manifest[ed] a clear intent to control" the visitor information which becomes part of Secret Service agency records, that sensitive information is not free to be disclosed by the Secret Service, even under FOIA.

This rationale didn't apply to all the Secret Service records; Judicial Watch is free to request information about visitors to the White House's subsections which do not involve the President or his immediate staff.

Bottom Line

FOIA requests are not bulletproof, and the President's privileges toward his office's information, even when in agency documents, makes this sort of information difficult to obtain.

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