[NOT YET SCHEDULED FOR ORAL ARGUMENT]

No. 07-5406

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

CITIZENS FOR RESPONSIBILITY AND ETHICS

IN WASHINGTON,

Plaintiff-Appellee,

v.

DEPARTMENT OF HOMELAND SECURITY, et al.,

Defendants-Appellants.

ON APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

BRIEF FOR APPELLANTS

JEFFREY S. BUCHOLTZ
Acting Assistant Attorney General

JONATHAN F. COHN
Deputy Assistant Attorney General

MARK B. STERN
MICHAEL S. RAAB
MARK R. FREEMAN
CHRISTOPHER J. WALKER
(202) 514-5089
Attorneys, Appellate Staff
Civil Division, Room 7531
Department of Justice
950 Pennsylvania Ave., N.W.
Washington, D.C. 20530-0001
 CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

Pursuant to D.C. Circuit Rule 28(a)(1), the undersigned

counsel certifies as follows:

A. Parties And Amici. Plaintiff-appellee is Citizens for

Responsibility and Ethics In Washington, a non-profit

organization. Defendants-appellants are the United States

Department of Homeland Security and Allen Weinstein, in his

official capacity as Archivist of the United States.

The Washington Post has filed notice of intent to

participate as amicus curiae in this Court. The following

parties appeared as amici curiae in the district court: Judicial

Watch, Inc., and the National Security Archive.

B. Rulings Under Review. The rulings under review are the

order and memorandum opinion of the district court issued on

December 17, 2007. The order and opinion appear as items #44 and

#45 on the district court docket (D.D.C. No. 06-cv-1912). The

district court’s opinion is available at 2007 WL 4374023.

C. Related Cases. This matter has not previously come

before this Court. The following cases pending in the district

court involve requests for similar records under the Freedom of

Information Act: Judicial Watch, Inc. v. United States Secret

Service, No. 06-cv-310 (D.D.C.); and Citizens for Responsibility

and Ethics in Washington v. Department of Homeland Security, No.

06-cv-883 (D.D.C.) (consolidated with No. 06-cv-310). There are

no other related cases of which we are aware.

______/s/_____________
Mark R. Freeman
 TABLE OF CONTENTS
Page

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

GLOSSARY

STATEMENT OF JURISDICTION.. . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE ISSUE. . . . . . . . . . . . . . . . . . . . . 2

STATUTES AND REGULATIONS. . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE CASE.. . . . . . . . . . . . . . . . . . . . . 3

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . 4

I. FACTUAL BACKGROUND. . . . . . . . . . . . . . . . . . 4

A. Secret Service Protection of the

President and Vice President.. . . . . . . . . . 4

B. White House Complex Records. . . . . . . . . . . 6

C. Vice President’s Residence Records.. . . . . . 10

D. Records At Issue On Appeal.. . . . . . . . . . 12

II. PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . 13

A. FOIA Requests Relating To WAVES and

ACR Records. . . . . . . . . . . . . . . . . . 13

B. Plaintiff’s FOIA Request.. . . . . . . . . . . 14

C. The District Court’s Decision. . . . . . . . . 14

SUMMARY OF ARGUMENT.. . . . . . . . . . . . . . . . . . . . . 16

STANDARD OF REVIEW. . . . . . . . . . . . . . . . . . . . . . 20

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . 21

THE RECORDS AT ISSUE, WHICH AS A CATEGORY PROVIDE

A REMARKABLE WINDOW INTO THE DAILY ACTIVITIES
OF THE PRESIDENT, VICE PRESIDENT, THEIR STAFFS
AND ADVISORS, ARE NOT “AGENCY RECORDS” SUBJECT
TO THE FOIA. . . . . . . . . . . . . . . . . . . . . . . 21

i
 A. Plaintiff Seeks Appointment Information
That It Could Not Obtain Directly From
The White House That Is Provided To The
Secret Service To Permit The Screening
Of Visitors.. . . . . . . . . . . . . . . . . . . . 21

B. The Disclosure Of Appointment Information

To The Secret Service As A Prerequisite
For Receiving Visitors Does Not Transform
That Information Into Agency Records
Subject To The FOIA.. . . . . . . . . . . . . . . . 23

C. The District Court’s Decision Renders

Irrelevant The Intent Of The White
House And OVP To Control Appointment
Information And Deprives Them Of Any
Means To Ensure Confidentiality.. . . . . . . . . . 28

D. The District Court’s Ruling Improperly

Creates, Rather Than Avoids, Constitutional
Concerns. . . . . . . . . . . . . . . . . . . . . . 35

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . 43

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

ADDENDUM

ii
 TABLE OF AUTHORITIES

Cases: Page

* Armstrong v. Executive Office of the President,

1 F.3d 1274 (D.C. Cir. 1993). . . . . . . . . . 2, 21, 35, 36

* In re Cheney,
406 F.3d 723 (D.C. Cir. 2005) (en banc).. . . . 19, 37, 39, 40

* Cheney v. U.S. District Ct.,

542 U.S. 367 (2004).. . . . . . . . . . . . . . 35, 36, 37, 41

Citizens for Responsibility and Ethics

In Washington v. DHS,
__ F. Supp. 2d __, 2007 WL 4374023 (D.D.C. 2007).. . . 12, 15

Citizens for Responsibility and Ethics in Washington v.

Department of Homeland Security,
No. 06-cv-883 (D.D.C.). . . . . . . . . . . . . . . . . . . 13

Consumer Federal of America v. Department of Agriculture,

455 F.3d 283 (D.C. Cir. 2006).. . . . . . . . . . . . . . . 24

Department of Justice v. Reporters’ Committee for

Freedom of the Press, 489 U.S. 749 (1989). . . . . . . 22, 37

District of Columbia v. Wical Ltd. Partnership,

630 A.2d 174 (D.C. 1993). . . . . . . . . . . . . . . . . . 4

Edward J. DeBartolo Corp. v. Florida Gulf Coast Building &

Construction Trades Council,485 U.S. 568 (1988).. . . . . . 35

Goland v. CIA,
607 F.2d 339 (D.C. Cir. 1978), vacated in part
on other grounds, 607 F.2d 367 (D.C. Cir. 1979)
(per curiam). . . . . . . . . . . . . . . . . . . . . . 24, 33

INS v. St. Cyr,

533 U.S. 289 (2001).. . . . . . . . . . . . . . . . . . . . 35

Judicial Watch, Inc. v. Department of Energy,

412 F.3d 125 (D.C. Cir. 2005).. . . . . . . . . . . . . 35, 36

* Authorities chiefly relied upon

iii
 Judicial Watch, Inc. v. Department of Justice,
365 F.3d 1108 (D.C. Cir. 2004). . . . . . . . . . . . . . . 29

Judicial Watch, Inc. v. U.S. Naval Observatory,

160 F. Supp. 2d 111 (D.D.C. 2001).. . . . . . . . . . . . . 35

Judicial Watch, Inc. v. United States Secret Service,

No. 06-cv-310 (D.D.C.). . . . . . . . . . . . . . . . . . . 13

Kaseman v. District of Columbia,

444 F.3d 637 (D.C. Cir. 2006).. . . . . . . . . . . . . . . 20

Kissinger v. Reporters Committee for Freedom of the Press,

445 U.S. 136 (1980).. . . . . . . . . . . . . . . . . . . . 2

National Institute of Military Justice v. Department

of Defense,__ F.3d __, 2008 WL 108734
(D.C. Cir. Jan. 11, 2008). . . . . . . . . . . . . . . . . 38

Nixon v. Administrator of General Services,

433 U.S. 425 (1977).. . . . . . . . . . . . . . . . . . . . 38

* Paisley v. CIA,
712 F.2d 686 (D.C. Cir. 1983), vacated in part
on other grounds, 724 F.2d 201 (D.C. Cir. 1984)
(per curiam). . . . . . . . . . . . . . . . . . . . 24, 25, 26

Public Citizen v. Department of Justice,

491 U.S. 440 (1989).. . . . . . . . . . . . . . . . . . 35, 41

* Ryan v. Department of Justice,

617 F.2d 781 (D.C. Cir. 1980).. . . . . . . . . 22, 29, 35, 36

Schwarz v. Department of the Treasury,

131 F. Supp. 2d 142 (D.D.C. 2000), affirmed,
2001 WL 674636 (D.C. Cir. 2001).. . . . . . . . . . . . . . 21

United States Department of Justice v. Tax Analysts,

492 U.S. 136 (1989).. . . . . . . . . . . . . . . . . . . . 23

* United We Stand America v. IRS,

359 F.3d 595 (D.C. Cir. 2004).. . . . . 18, 24, 25, 26, 30, 34

Walker v. Cheney,
230 F. Supp. 2d 51 (D.D.C. 2002). . . . . . . . . . . . . . 35

iv
 Washington Post v. Department of Homeland Security,
459 F. Supp. 2d 61 (D.D.C. 2006), vacated as moot,
No. 06-5337 (D.C. Cir.).. . . . . . . . . . . . 13, 20, 38, 39

Watts v. United States,

394 U.S. 705 (1969).. . . . . . . . . . . . . . . . . . . . 4

Statutes:

3 U.S.C. § 106 .. . . . . . . . . . . . . . . . . . . . . . . 35

5 U.S.C. § 552(a)(3). . . . . . . . . . . . . . . . . . . . . 2
5 U.S.C. § 552(b).. . . . . . . . . . . . . . . . . . . . . . 2
5 U.S.C. § 552(a)(4)(B).. . . . . . . . . . . . . . . . . . . 1
5 U.S.C. § 552(f).. . . . . . . . . . . . . . . . . . . . . . 21

18 U.S.C. § 3056(a).. . . . . . . . . . . . . . . . . . . 4, 22
18 U.S.C. § 3056(a)(1). . . . . . . . . . . . . . . . . . . . 5

28 U.S.C. § 1291. . . . . . . . . . . . . . . . . . . . . . . 1
28 U.S.C. § 1292(a)(1). . . . . . . . . . . . . . . . . . . . 1
28 U.S.C. § 1331. . . . . . . . . . . . . . . . . . . . . . . 1

44 U.S.C. § 2201 et seq.. . . . . . . . . . . . . . 2, 8, 18, 33

44 U.S.C. § 2203(a).. . . . . . . . . . . . . . . . . . . . . 34
44 U.S.C. § 2204(a).. . . . . . . . . . . . . . . . . . . . . 15
44 U.S.C. § 2204(b).. . . . . . . . . . . . . . . . . . . . . 15
44 U.S.C. § 2207. . . . . . . . . . . . . . . . . . . 9, 12, 34

Rules:

Fed. R. App. P. 4(a)(1)(B). . . . . . . . . . . . . . . . . . . 1

Legislative Materials:

H.R. Conf. Rep. No. 93-1380 (1974). . . . . . . . . . . . . . 21

v
 GLOSSARY

ACR Access Control Record

FOIA Freedom of Information Act

JA Joint Appendix

MOU Memorandum of Understanding Between the White

House Office of Records Management and the
United States Secret Service Records
Management Program Governing Records
Generated by the White House Access Control
System

OVP Office of the Vice President

WAVES Worker and Visitor Entrance System

WHACS White House Access Control System

WHORM White House Office of Records Management

 [NOT YET SCHEDULED FOR ORAL ARGUMENT]

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 07-5406

CITIZENS FOR RESPONSIBILITY AND ETHICS

IN WASHINGTON,

Plaintiff-Appellee,

v.

DEPARTMENT OF HOMELAND SECURITY, et al.,

Defendants-Appellants.

ON APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

BRIEF FOR APPELLANTS

STATEMENT OF JURISDICTION

Plaintiff invoked the district court’s jurisdiction under

5 U.S.C. § 552(a)(4)(B) and 28 U.S.C. § 1331. JA10.1 The order

under review was issued on December 17, 2007. JA149. The

government filed a notice of appeal on December 19, 2007, within

the time provided by Fed. R. App. P. 4(a)(1)(B). JA190. This

Court has jurisdiction under 28 U.S.C. §§ 1291 and 1292(a)(1).

1
“JA __” denotes a citation to the joint appendix.
 STATEMENT OF THE ISSUE

To effectuate the Secret Service protection that Congress

has mandated, the President, the Vice President, and their staffs

notify the Secret Service when they wish to receive visitors at

the White House Complex or the Vice President’s Residence. The

resulting records, taken together, provide a detailed chronicle

of sources of advice and information received by the President

and Vice President and by their staffs on their behalf. The

question presented is whether such records are “agency records”

subject to the Freedom of Information Act.

STATUTES AND REGULATIONS

Subject to several statutory exemptions, the Freedom of

Information Act (“FOIA”) requires an “agency” to make “agency

records” available upon request unless it can show they come

within one of the nine exemptions in the Act. See 5 U.S.C.

§ 552(a)(3), (b). Records of the President, the Vice President,

and their immediate staffs are not subject to disclosure under

the FOIA, and are instead subject to the provisions of the

Presidential Records Act (“PRA”), 44 U.S.C. §§ 2201 et seq.

(President) and § 2207 (Vice President). See generally Kissinger

v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 156

(1980); Armstrong v. Executive Office of the President, 1 F.3d

1274, 1292 (D.C. Cir. 1993). The relevant statutory provisions

are reprinted in the addendum to this brief.

2
 STATEMENT OF THE CASE

This appeal arises from a FOIA request filed with the Secret

Service, a component of the Department of Homeland Security, in

October 2006. The request seeks “all records related to any

visit” by nine named individuals to any part of the White House

or the Vice President’s Residence from January 2001 to the

present, including any visit to “any office within the Executive

Office of the President” and any visit to “the residence of the

President.” JA38. Plaintiff has explained that the purpose of

its request is to reveal “the influence that conservative

Christian leaders have, or attempt to have, on the President in

the exercise of his authority.” JA39.

The government moved for summary judgment, relying on

declarations from the White House, the Office of the Vice

President, and the Secret Service. The declarations explained

that the President and Vice President are required by statute to

accept protection from the Secret Service of their persons,

offices, and residences. As a result, the President, Vice

President, and their staffs and advisors provide the Secret

Service with advance notice when they wish to receive visitors.

A Memorandum of Understanding memorializes the shared

understanding of the White House and the Secret Service that such

visitor records are subject to the Presidential Records Act, and

are not within the authority of the Secret Service to control.

3
Because the records are subject to the PRA and are not controlled

by the Secret Service, they are not “agency” records subject to

the FOIA.

The district court concluded that the records are,

nevertheless, “agency” records, and directed the government to

“immediately process Plaintiff’s [FOIA] request and produce all

responsive records that are not exempt from disclosure within 20

days” of the court’s order. JA149. The court later stayed its

disclosure order pending resolution of this appeal.

STATEMENT OF FACTS

I. FACTUAL BACKGROUND

A. Secret Service Protection of the President

and Vice President.

Because the safety of the President and Vice President

implicates national security and other governmental interests of

the highest order, Congress has by statute directed both

constitutional officers to accept protection from the Secret

Service. See 18 U.S.C. § 3056(a); cf. Watts v. United States,

394 U.S. 705, 707 (1969) (per curiam) (“The Nation undoubtedly

has a valid, even an overwhelming, interest in protecting the

safety of its Chief Executive and in allowing him to perform his

duties without interference from threats of physical violence.”);

District of Columbia v. Wical Ltd. Partnership, 630 A.2d 174, 185

(D.C. 1993) (“An order which creates substantial and completely

unnecessary peril to the nation’s second highest elective officer

4
cannot be sustained under any reasonable standard of review.”).

No other official is required by law to accept such protection.

The Secret Service’s mandatory responsibilities extend not

only to the physical persons of the President and Vice President,

but also to the places where they live and work, including the

White House Complex — which contains the President’s residence,

the offices of the President and most of his staff, and offices

for the Vice President and most of his staff — as well as the

Vice President’s Residence at the Naval Observatory.2 See 18

U.S.C. §§ 3056(a)(1); JA41-43 (Third Declaration of Paul S.

Morrissey, Deputy Assistant Director of the Secret Service, ¶¶ 3,

5, 6).

To accommodate this protection, the President, Vice

President, and their respective staffs have arranged for the

Secret Service to be notified when they intend to receive

visitors in their offices or official residences. This appeal

concerns records that exist because — and only because — the

President, the Vice President, a member of their respective

staffs, or other authorized person has specifically requested

that a visitor be admitted. JA43-44, JA52 (Third Morrissey Decl.

¶¶ 8, 10-12, 32).

2
The “White House Complex” includes the White House itself
along with the Eisenhower Executive Office Building, the New
Executive Office Building, and the grounds encompassing the White
House and the Eisenhower Executive Office Building. JA42-43.

5
 B. White House Complex Records

1. When the President or Vice President intends to receive

a visitor in the White House Complex, an authorized employee

typically enters the details of the visit into a White House

computer system, which in turn electronically transmits the

information to the Secret Service.3 JA44 (Third Morrissey Decl.

¶ 11); JA79 (Declaration of Philip C. Droege, Director of White

House Office of Records Management, ¶ 6); JA68 (Declaration of

Claire M. O’Donnell, Assistant to the Vice President and Deputy

Chief of Staff, Office of the Vice President, ¶ 12). These

details include the visitor’s identity (name, date of birth, and

Social Security number), as well as the time and location of the

planned visit, the name of the person to be visited, and the type

of visitor (e.g., a worker, a member of the press, or an

individual with an appointment). JA43-44, JA68.

After verifying that the requestor is authorized to make the

requested appointment, a Secret Service employee may annotate the

record with information from criminal background checks,

instructions to Secret Service officers, or other incidental

details. JA44-45 (Third Morrissey Decl. ¶¶ 12-13). This record,

which exists in a Secret Service computer system known as the

Worker and Visitor Entrance System (“WAVES”), is used to

3
Visitor information is also occasionally submitted by
telephone, fax, e-mail, or on paper, in which case Secret Service
personnel may enter the information manually. See JA44, JA79.

6
determine whether admission raises protective concerns, and to

verify admissibility at the time of the visit. JA43-44 (Third

Morrissey Decl. ¶¶ 8, 11, 12); JA68 (O’Donnell Decl. ¶ 12).

After the visit takes place, the information is typically updated

electronically to show the time and place of the visitor’s entry

and exit. JA45 (Third Morrissey Decl. ¶ 15).

Once a visitor is cleared into the White House Complex, the

individual typically receives an electronic pass to be swiped

over pass-readers at the gates to the Complex. JA45 (Third

Morrissey Decl. ¶ 14). Swiping the pass automatically creates a

record in the Access Control Records System (“ACR”). Ibid. An

ACR record includes the entrant’s name and badge number, the time

and date of the swipe, and the post at which the swipe was

recorded. Ibid. The WAVES and ACR systems, together, comprise

the White House Access Control System (“WHACS”). JA43.

2. Taken together, WAVES and ACR records “provide a roadmap

to the meetings, contacts, and sources of input, information, and

advice sought or received” by the President and Vice President,

and “help chronicle the course and timing of substantive policy

discussions” among the President, the Vice President, and their

respective staffs. JA72 (O’Donnell Decl. ¶ 22). Thus, for

example, the WAVES records corresponding to the President’s daily

appointments are sent each day to the President’s official

diarist. See JA50 (Third Morrissey Decl. ¶ 25).

7
 The President, Vice President, and Secret Service uniformly

regard WAVES and ACR records as subject to the Presidential

Records Act, 44 U.S.C. § 2201 et seq., and not as “agency”

records belonging to the Secret Service. The White House has

long made clear that it maintains control of “records documenting

the movements, appointments, and schedule of the President and

his advisers and staff, as well as records of visitors gaining

access to the White House Complex.” JA78, JA79-81 (Droege Decl.

¶¶ 3, 8-12). Similarly, since at least January 2001, “it has

been the intent and actual practice of the OVP to retain and not

relinquish to anyone control over the records created or received

by Vice Presidential personnel. * * * This policy of maintaining

control over records applies in particular with respect to the

movements, appointments and schedule of the Vice President and

Vice Presidential personnel.” JA66-67 (O’Donnell Decl. ¶¶ 7-8).

The Secret Service, which obtains appointment information only as

provided by authorized passholders, “recognize[s] that [WAVES and

ACR] records are under the exclusive legal control of the

President and Vice President.” JA47 (Third Morrissey Decl.

¶ 18).

The Secret Service and the White House memorialized this

understanding in a May 2006 Memorandum of Understanding. See

generally JA59-63 (“MOU”). The Memorandum sought to document the

consensus understanding “that the White House at all times

8
asserts, and the Secret Service disclaims, all legal control over

any and all [WAVES and ACR] Records,” including those that

predate the memo itself.4 JA62-63 (MOU ¶ 24); see also JA61 (MOU

¶ 17).

The Memorandum provides that WAVES and ACR records are “at

all times under the exclusive legal custody and control of the

White House,” JA61 (MOU ¶ 18), and that “any information provided

to the Secret Service for the creation” of such records “is

provided under an express reservation of White House control,”

JA61 (MOU ¶ 19). The Memorandum explains that “[a]lthough the

Secret Service may at times have physical possession of [WAVES

and ACR] Records, such temporary physical possession * * * does

not operate in any way to divest the White House of complete and

exclusive legal control.” JA61 (MOU ¶ 18).

The Memorandum also memorialized the agreement between the

Secret Service and the White House regarding the physical

transfer of WAVES and ACR records to the White House Office of

Records Management (“WHORM”). See JA62 (MOU ¶ 22). Since at

least 2001, it has been the practice of the Secret Service to

transfer newly-generated WAVES records on CD-ROM to the WHORM

4
This includes records of visits to the Vice President’s
Office. The White House Office of Records Management has
historically managed the records of the Office of the Vice
President as well, in accordance with the Vice Presidential
provisions of the Presidential Records Act, 44 U.S.C. § 2207.
See JA69 (O’Donnell Decl. ¶ 14).

9
every 30 to 60 days.5 JA47 (Third Morrissey Decl. ¶ 18).

Likewise, since at least May 2006, ACR records have been

transferred to the WHORM on a regular basis. JA49 (Third

Morrissey Decl. ¶ 22). The records are transferred because the

Secret Service has no continuing law enforcement interest

sufficient to justify their retention. However, because of this

litigation and other pending FOIA requests, the agency continues

to retain copies of the transferred records.6 JA47, JA49.

C. Vice President’s Residence Records

1. Visitor-access records are also generated when the Vice

President receives visitors at his official residence. The

Secret Service monitors and controls access to the Vice

President’s Residence through the use of a permanent access list,

daily access lists, and post entry logs, as well as lists of

invited guests for special events. JA52-53 (Third Morrissey

Decl. ¶¶ 32-34).

5
The Secret Service previously removed two data fields
relating to the results of its background investigations before
transferring WAVES records to the WHORM. In July 2006, the
Secret Service ceased this practice, and also retroactively
transferred to WHORM records dating back to October 2004 with
these two fields restored. JA47-48 (Third Morrissey Decl. ¶ 19).
6
In addition, the Secret Service retains certain types of
records and information occasionally generated as part of the
background investigation process. See JA45-46 (Third Morrissey
Decl. ¶¶ 16-17). As to these records, the Secret Service
processed plaintiff’s FOIA request and asserted applicable
exemptions, which plaintiff did not contest. See JA51-52 (Third
Morrissey Decl. ¶¶ 27, 29); JA85-94 (Lyerly Decl. ¶¶ 8-9, 12-27);
see also JA189 (upholding asserted exemptions as uncontested).

10
 When the Vice President intends to receive a visitor at his

residence, an authorized staff member typically supplies the

necessary details to the Secret Service, including the visitor’s

name, birth date, and Social Security number, the date of the

visit and the expected time of arrival. JA52; JA70 (O’Donnell

Decl. ¶ 17). The Secret Service enters this information into a

database in order to perform necessary background checks and to

generate the daily access list of cleared visitors. JA52-53

(Third Morrissey Decl. ¶¶ 32-34); JA70 (O’Donnell Decl. ¶ 17).

When visitors on the daily access list actually enter the Vice

President’s Residence, Secret Service officers at the gates

record their entry in post entry logs, which are maintained only

in paper form.7 JA53 (Third Morrissey Decl. ¶ 33).

2. The Vice President’s staff identifies visitors to the

Secret Service “solely for the limited purpose of facilitating

the Secret Service’s statutory duty to protect the Vice

President,” and supplies the necessary information “on condition

of confidentiality, and with the information and records

containing it remaining under the ownership, custody, and control

of the Vice President, exclusive of the Secret Service.” JA71

(O’Donnell Decl. ¶ 21). As with visitor-access records at the

7
In addition, the Secret Service creates and uses certain
records known as “hit reports” and “Watch Commander Journals” for
investigative and security-related purposes at the Vice
President’s Residence. JA53-54 (Third Morrissey Decl. ¶¶ 35-36).
A search of these records identified no responsive documents.
See JA86-87 (Lyerly Decl. ¶¶ 8(C), 8(D)).

11
White House Complex, the Secret Service since 2001 has returned

all post entry logs to the Vice President’s Office, generally on

a monthly basis. JA71 (O’Donnell Decl. ¶ 18). The OVP preserves

all such records under the Presidential Records Act. JA67, JA71

(O’Donnell Decl. ¶¶ 9, 19); see 44 U.S.C. § 2207. This practice

was confirmed in a September 2006 letter to the Secret Service

from the Vice President’s counsel. See JA75 (reiterating that

the Office of the Vice President retains “exclusive control over

any and all documents and information held by USSS relating to

visitors to the [Residence]”).

D. Records At Issue On Appeal

In sum, the principal types of records at issue on appeal

are (1) with respect to the White House Complex, WAVES and ACR

records; and (2) with respect to the Vice President’s Residence,

daily and permanent access lists, post entry logs, and event

lists.8

8
The district court also addressed several related types
of records, including requests for visitor access submitted by
fax, email, or on paper, see supra n.3; and certain investigative
and security-related documents used at the White House Complex
and Vice President’s Residence, see supra nn.6-7. See generally
JA161-163, JA189. In addition, the government recently filed a
supplemental declaration in district court identifying additional
categories of documents. See No. 06-1912 (D.D.C.), docket entry
#50, ¶ 9. As the declaration reflects, those documents have been
searched and no responsive records have been found.

12
II. PROCEDURAL HISTORY

A. FOIA Requests Relating To WAVES and ACR Records

This is one of several recent FOIA cases seeking to compel

the Secret Service to disclose records relating to visits to the

President, Vice President, and their senior advisors.

In Washington Post v. Department of Homeland Security, 459

F. Supp. 2d 61 (D.D.C. 2006), vacated as moot, No. 06-5337 (D.C.

Cir.), the plaintiff sought to compel the disclosure of records

that would identify, for a period of more than a year, every

visitor to the Vice President and his senior advisors at the

White House and every visitor (other than family) to the Vice

President’s Residence. The district court ordered the government

to process the request. After this Court granted an emergency

stay and the government filed its opening brief, the plaintiff

withdrew its complaint and the appeal was dismissed as moot. See

No. 06-5337 (D.C. Cir.).

In Judicial Watch, Inc. v. United States Secret Service, No.

06-cv-310 (D.D.C.), the plaintiff seeks all White House visitor

logs from January 2001 to the present reflecting visits to the

White House by lobbyist Jack Abramoff. This suit remains pending

in district court.

And in Citizens for Responsibility and Ethics in Washington

v. Department of Homeland Security, No. 06-cv-883 (D.D.C.)

(consolidated with No. 06-cv-310 above), the plaintiff seeks all

13
records of visits to the White House or Vice President’s

Residence by Jack Abramoff, Michael Scanlon, and six other

individuals. The action also remains pending in district court.

B. Plaintiff’s FOIA Request

This appeal arises from a FOIA request to the Secret Service

dated October 4, 2006, in which plaintiff sought “all records

relating to any visit” by nine named individuals to “the White

House or the residence of the Vice President from January 1, 2001

to the present.”9 JA38. The request specifically defined “White

House” to include “any office within the Executive Office of the

President,” as well as “the residence of the President” and “any

other office or space on the grounds of the White House.” JA38.

In seeking a fee waiver for this request, plaintiff

explained that “the requested records are likely to contribute to

the public’s understanding of the influence that conservative

Christian leaders have, or attempt to have, on the President in

the exercise of his authority.” JA39.

C. The District Court’s Decision

Plaintiff filed this action to compel disclosure in November

2006.10 The government moved for summary judgment, explaining

9
The nine named individuals are James Dobson, Gary L.
Bauer, Wendy Wright, Louis P. Sheldon, Andrea Lafferty, Paul
Weyrich, Tony Perkins, Donald Wildmon, and Jerry Falwell. JA38.
10
Plaintiff’s complaint also asserted APA claims against
DHS and the Archivist of the United States. JA19-20. Those
(continued...)

14
that the records plaintiff seeks are not “agency” records subject

to the FOIA, but are instead subject to the Presidential Records

Act, and thus protected from disclosure for a period of years

following the President’s and Vice President’s terms in office.

See 44 U.S.C. § 2204(a), (b).

On December 17, 2007, the district court rejected that

contention and directed the Secret Service to process plaintiff’s

FOIA request.11 Citizens for Responsibility and Ethics In

Washington v. DHS, __ F. Supp. 2d __, 2007 WL 4374023 (D.D.C.

2007) (JA150-189).

The district court did not dispute that the President and

Vice President are obliged by law to accept Secret Service

protection. Nor did it doubt that the records at issue are

created at the instance of the President, Vice President, their

respective staffs and advisors, and other authorized persons.

Moreover, the court specifically found that the Secret Service

has no intention of retaining control over the records generated

in the process of clearing visitors. JA174-176.

The district court concluded, however, that the records are

“agency” records subject to the FOIA because they are used to

10
(...continued)
claims are not at issue in this appeal.
11
The district court granted summary judgment to the
government with respect to certain security-related documents as
to which the Secret Service asserted FOIA exemptions, without
objection from plaintiff. JA189; see also supra n.6. These
documents are not at issue on appeal.

15
facilitate the visits requested by the President, Vice President,

and other authorized persons. JA176-180. The court dismissed as

“self-serving” the Memorandum of Understanding between the White

House and the Secret Service, JA175 n.22, and accorded no

significance to the common intent of the President, Vice

President and the Secret Service.

The district court stated that its ruling raised no

constitutional concerns, opining that it was “unlikely” that

disclosing visitor records would impinge on the confidentiality

of Executive Branch deliberations. JA187. In any event, the

district court reasoned, the Secret Service is free to assert

appropriate privileges on a record-by-record basis under

Exemption 5. JA188.

The district court accordingly directed the Secret Service

to “immediately process Plaintiff's [FOIA] request and produce

all responsive records that are not exempt from disclosure within

20 days.” JA149. The court subsequently stayed its order

pending this appeal.

SUMMARY OF ARGUMENT

To perform their constitutional duties, the President and

Vice President must be able to obtain advice and information in

confidence and to protect the confidentiality of their

decisionmaking process. It should therefore be beyond dispute

that a statute requiring the President and Vice President to

16
disclose their appointment calendars to the public would raise

grave constitutional concerns. Congress has avoided such

potential difficulties by restricting the Freedom of Information

Act to records of an “agency,” thus excluding the President, the

Vice President and their staffs from the scope of the statute.

Plaintiff’s suit seeks to obtain from the gatekeeper what it

cannot obtain from the President or the Vice President: a list

of visitors to the White House Complex or Vice President’s

Residence. In obtaining presidential and vice presidential

appointment information through the medium of the Secret Service,

plaintiff’s explicit purpose is to expose the alleged “influence

that conservative Christian leaders have, or attempt to have, on

the President in the exercise of his authority.” JA39 (emphasis

added). Plaintiff does not seek to learn more about the Secret

Service, but only about constitutional officers who are not

subject to the FOIA.

This Court’s decisions do not countenance this circumvention

of statutory limitations and this unwarranted intrusion into the

Presidency and the Vice Presidency. The records at issue are

generated only because the President and Vice President must

provide scheduling information to the Secret Service if they are

to receive visitors safely. As the district court recognized,

provision of this information is “the sine qua non of the Secret

Service’s supervision of visitors to the Complex and Residence.”

17
JA180 (Op.31). The declarations of the White House, OVP and

Secret Service leave no doubt that each of these entities regards

the resulting records as subject to the Presidential Records Act,

44 U.S.C. §§ 2201 et seq., and that the Secret Service itself

neither controls nor intends to control the records. To

memorialize this joint understanding, the White House and the

Secret Service executed a Memorandum of Understanding that

expressly addresses these issues of control. Pursuant to that

Memorandum, as the district court recognized, once the records at

issue are used for screening purposes, they are to be transferred

to the WHORM, which stores them for preservation and eventual

disclosure under the terms of the Presidential Records Act.

JA174-176 (Op.25-27).

As this Court’s decisions make clear, when a non-FOIA entity

such as the President or Congress asserts control over documents

in an agency’s possession, a court must determine the

applicability of the FOIA by examining the intent of the non-FOIA

entity to exercise control of the records and the actual ability

of the agency to exercise control. See United We Stand Am. v.

IRS, 359 F.3d 595, 600 (D.C. Cir. 2004). The President and Vice

President can hardly have been more clear in asserting their

control over the records at issue here, and the Secret Service

has been equally clear in recognizing that the Secret Service

does not control the records.

18
 The district court nevertheless concluded that the use of

the appointment records by the Secret Service, however limited

and transitory, renders them “agency records” subject to

disclosure, reasoning that “use trumps intent.” JA184 (Op.35).

The court’s ruling thus stands the governing analysis on its

head, rendering irrelevant the issues of control and intent to

control that should be dispositive.

The district court’s ruling should thus be set aside even

without reference to the doctrine of constitutional avoidance.

If any doubt existed as to the status of the records, however,

the canon of constitutional avoidance would require a

construction of the FOIA that avoided the substantial

separation-of-powers problems implicated by the district court’s

order.

As this Court has recognized, the Constitution protects the

ability of the President and Vice President “to seek confidential

information from many sources, both inside the government and

outside.” In re Cheney, 406 F.3d 723, 728 (D.C. Cir. 2005) (en

banc). Plaintiff’s theory would rob the President and Vice

President of virtually all discretion in determining whether to

make public the identity of visitors or the times and dates of

their visits, thus re-creating the same type of separation-of-

powers concerns that motivated Congress to exclude the President

19
and the Vice President from the FOIA’s requirements in the first

place.

Moreover, although plaintiff’s present request is limited to

nine individuals, the logic of plaintiff’s argument would permit

FOIA requesters to seek records relating to all Presidential and

Vice Presidential appointments. Indeed, the plaintiff in

Washington Post v. Department of Homeland Security, 459 F. Supp.

2d 61 (D.D.C. 2006), vacated as moot, No. 06-5337 (D.C. Cir.),

filed just such a sweeping request, seeking records relating to

all visitors to the Vice President and other officials over more

than a year. A detailed list of visitors would create a mosaic

by which observers could chart the deliberations and daily

practices of the White House and OVP. Such a regime would pose

an unprecedented intrusion into the daily operations of the

Presidency and Vice Presidency, impinging on the confidentiality

necessary for the President and Vice President to execute their

constitutional responsibilities and revealing patterns of

activities that might aid those who would threaten their safety.

STANDARD OF REVIEW

This case presents a question of statutory interpretation

subject to de novo review. Kaseman v. District of Columbia, 444

F.3d 637, 640 (D.C. Cir. 2006).

20
 ARGUMENT

THE RECORDS AT ISSUE, WHICH AS A CATEGORY PROVIDE A

REMARKABLE WINDOW INTO THE DAILY ACTIVITIES OF THE
PRESIDENT, VICE PRESIDENT, THEIR STAFFS AND ADVISORS,
ARE NOT “AGENCY RECORDS” SUBJECT TO THE FOIA.

A. Plaintiff Seeks Appointment Information That It

Could Not Obtain Directly From The White House
That Is Provided To The Secret Service To Permit
The Screening of Visitors.

It is common ground that plaintiff cannot compel the

President, the Vice President or their advisors to disclose their

appointment calendars. Congress limited the reach of the FOIA to

records of an “agency,” 5 U.S.C. § 552(f), a term that does not

encompass the President, Vice President or their immediate

staffs. See H.R. Conf. Rep. No. 93-1380, at 14-15 (1974);

Armstrong v. Executive Office of President, 1 F.3d 1274, 1292

(D.C. Cir. 1993); Schwarz v. Dep’t of the Treasury, 131 F. Supp.

2d 142, 147-48 (D.D.C. 2000), aff’d, 2001 WL 674636 (D.C. Cir.

2001) (Office of the Vice President not subject to the FOIA).

In crafting the statutory disclosure requirements, “Congress

was ‘keenly aware of the separation of powers concerns that were

implicated by legislation regulating the conduct of the

President’s daily operations,’ and thus sought ‘to minimize

outside interference with the day-to-day operations of the

President and his closest advisors and to ensure executive branch

control over presidential records during the President’s term of

office.’” Armstrong, 1 F.3d at 1292 (citation omitted). As this

21
Court has observed, a “[f]ailure to exempt presidential staff

from the FOIA would raise a constitutional issue of separation of

powers.” Ryan v. Department of Justice, 617 F.2d 781, 788 n.19

(D.C. Cir. 1980).

Unable to compel the President and Vice President themselves

to publish a list of their visitors, plaintiff seeks the same

information from the Secret Service. Plaintiff does not suggest

that disclosure would cast any light on what the Secret Service

is “up to.” Dep’t of Justice v. Reporters’ Comm. for Freedom of

the Press, 489 U.S. 749, 773 (1989). To the contrary, as

plaintiff declared in seeking a fee waiver, “the requested

records are likely to contribute to the public’s understanding of

the influence that conservative Christian leaders have, or

attempt to have, on the President in the exercise of his

authority.” JA39 (emphasis added).

Plaintiff seeks to circumvent the limitations of the FOIA by

exploiting a separate statutory mandate that requires the Secret

Service to protect the Nation’s highest elected constitutional

officers.12 To facilitate that protection, the President and

Vice President must disclose their daily schedules to the Secret

Service, including the identities of any visitors with whom they

12
Although Congress has authorized the Secret Service to
protect additional categories of individuals, it has allowed such
persons to decline protection. See 18 U.S.C. 3056(a).

22
plan to meet. See JA41-44 (Third Morrissey Decl. ¶¶ 3-12); JA78-

79 (Droege Decl. ¶¶ 5-6); JA68 (O’Donnell, Decl. ¶¶ 11-12).

As described above, the visitor information provided by

authorized White House passholders to the Secret Service is

stored in the WHACS computer system, which is used to screen

visitors for admittance. JA43-44 (Third Morrissey Decl. ¶¶ 8,

11, 12). Visitor information supplied by the OVP likewise forms

the basis for the daily and permanent access lists that are used

to screen visitors at the Vice President’s Residence. JA52

(Third Morrissey Decl. ¶ 32); JA70 (O’Donnell Decl. ¶ 17). As

the district court emphasized, this information is “the sine qua

non of the Secret Service’s supervision of visitors to the

Complex and Residence.” JA180 (Op.31).

B. The Disclosure of Appointment Information to

the Secret Service as a Prerequisite for
Receiving Visitors Does Not Transform That
Information Into Agency Records Subject to
the FOIA.

1. As the Supreme Court has explained, “agency records” (a

term not defined by statute) must not only be created or obtained

by an agency, but must also be under the agency’s control at the

time the FOIA request is made. United States Department of

Justice v. Tax Analysts, 492 U.S. 136, 144-45 (1989).

Ordinarily, the requisite “control” exists when the records “have

come into the agency’s possession in the legitimate conduct of

its official duties.” Id. at 145. As this Court has stressed,

23
however, where a non-FOIA entity such as the President or

Congress asserts control over documents in an agency’s hands, the

inquiry “is not so simple.” United We Stand Am., Inc. v. IRS,

359 F.3d 595, 598-99 (D.C. Cir. 2004).

In such cases, the Court’s inquiry focuses on the non-FOIA

entity’s “intent to control” and on “the agency’s ability to

control” the records at issue. Id. at 600. These factors “‘fit

together in standing for the general proposition that the agency

to whom the FOIA request is directed must have exclusive control

of the disputed documents.’” Id. at 600 (quoting Paisley v. CIA,

712 F.2d 686, 693 (D.C. Cir. 1983), vacated in part on other

grounds, 724 F.2d 201 (D.C. Cir. 1984) (per curiam)). Thus, a

document becomes subject to the FOIA only if “under all the facts

of the case the document has passed from the control of [the non-

agency] and become property subject to the free disposition of

the agency with which the document resides.” Goland v. CIA, 607

F.2d 339, 347 (D.C. Cir. 1978), vacated in part on other grounds,

607 F.2d 367 (D.C. Cir. 1979) (per curiam). See generally

Consumer Fed. of Am. v. Dep't of Agriculture, 455 F.3d 283, 287

(D.C. Cir. 2006) (looking to “totality of the circumstances” to

determine the agency status of records); see also Paisley, 712

F.2d at 695-96 (applying the legal standard set out in Goland to

records created by an agency in connection with a congressional

investigation).

24
 The Court’s analysis in United We Stand illustrates the

application of these principles. In that case, the Court was

required to determine whether documents prepared by the IRS in

response to a congressional inquiry were agency records or

congressional records. The Court stressed that “resolution of

this dispute turns on whether the IRS has control of the

documents,” 359 F.3d at 598, concluding that if “‘Congress has

manifested its own intent to retain control, then the agency — by

definition — cannot lawfully ‘control’ the documents.’” Id. at

600 (quoting 712 F.2d at 693). Accordingly, the Court barred the

plaintiff from recovering under the FOIA any part of the records

at issue over which the Court found “sufficient indicia of

congressional intent to control.” Ibid.

2. The Court’s reasoning in United We Stand applies with at

least equal force here. The President and Vice President could

hardly have provided more “sufficient indicia” of their “intent

to control,” as well as their actual control over, the records at

issue. As the Director of the White House Office of Records

Management explained: “Throughout the presidency of George W.

Bush, it has been the policy of the White House Office * * * to

retain and maintain legal control over all Presidential Records

* * * * This includes, but is not limited to, records

documenting the movements, appointments, and schedule of the

President and his advisers and staff, as well as records of

25
visitors gaining access to the White House Complex.” JA78

(Droege Decl. ¶ 3); see also JA79-81 (id. ¶¶ 8-12).

Likewise, the Vice President’s Deputy Chief of Staff

explained that, since at least January 2001, “it has been the

intent and actual practice of the OVP to retain and not

relinquish to anyone control over the records created or received

by Vice Presidential personnel. * * * This policy of maintaining

control over records applies in particular with respect to the

movements, appointments and schedule of the Vice President and

Vice Presidential personnel.” JA66-67 (O’Donnell Decl. ¶¶ 7-8).

Nor is there any doubt that the Secret Service itself

“recognizes that such records are under the exclusive legal

control of the President and Vice President.” JA47 (Third

Morrissey Decl. ¶ 18).

To memorialize this mutual understanding, the White House

and Secret Service executed a formal Memorandum of Understanding,

which provides the clearest possible evidence that it is the

White House, and not the Secret Service, that has “‘exclusive

control of the disputed documents.’” United We Stand, 359 F.3d

at 600 (quoting Paisley, 712 F.2d at 693).

Executed in May 2006, before the filing of plaintiff’s FOIA

request in this case, the Memorandum reflects the unanimous

understanding within the Executive Branch that “the White House

at all times asserts, and the Secret Service disclaims, all legal

26
control over any and all [WAVES and ACR] Records,” including

those “in the possession or custody of the Secret Service before

the execution” of the Memorandum itself. JA62-63 (MOU ¶ 24); see

also JA61 (MOU ¶ 17). The Memorandum provides that WAVES and ACR

records are “at all times under the exclusive legal custody and

control of the White House,” JA61 (MOU ¶ 18), and that “any

information provided to the Secret Service for the creation” of

such records “is provided under an express reservation of White

House control,” JA61 (MOU ¶ 19). The Memorandum further

stipulates that “[a]lthough the Secret Service may at times have

physical possession of [WAVES and ACR] Records, such temporary

physical possession * * * does not operate in any way to divest

the White House of complete and exclusive legal control.” JA61

(MOU ¶ 18).

The Vice President’s Office has similarly established in

unequivocal terms its control over the permanent access lists,

daily access lists, and post entry logs at the Vice President’s

Residence. See JA66-67 (O’Donnell Decl. ¶¶ 7-9). In a September

2006 letter to the Secret Service, the Vice President’s counsel

“confirm[ed] and reiterate[d]” the principle that the Office of

the Vice President, and not the agency, “exercis[es] exclusive

control over any and all documents and information held by USSS

relating to visitors to the [Residence].” JA75; see also JA71.

27
 Consistent with this mutual understanding, it has been the

practice of the Secret Service, since at least 2001, to transfer

newly-generated WAVES records on CD-ROM to the White House Office

of Records Management every 30 to 60 days. JA47 (Third Morrissey

Decl. ¶ 18). ACR records are likewise regularly transferred to

the WHORM, JA49 (Third Morrissey Decl. ¶ 22),13 and post entry

logs from the Vice President’s Residence are promptly turned over

to the Vice President’s Office, JA71 (O’Donnell Decl. ¶ 18). The

district court thus correctly recognized that the Secret Service

does not intend to maintain control over the records, but rather

to relinquish control to the WHORM. JA174-176 (Op.25-27).

C. The District Court’s Decision Renders Irrelevant

The Intent Of The White House And OVP To Control
Appointment Information And Deprives Them Of Any
Means To Ensure Confidentiality.

1. The explicit statements of intent and the procedures

described in the declarations and Memorandum of Understanding

should be dispositive of the records’ status. The district

court, however, found them immaterial, and dismissed the

Memorandum of Understanding as “self-serving.” JA175 n.22.14 In

13
The White House and Secret Service agreed as early as the
end of the Clinton Administration that ACR records would be
treated similarly to WAVES records. In May 2006 (before the FOIA
request in this case was filed), the Secret Service transferred
to the WHORM copies of all ACR records dating back to January
2001, and began regularly transmitting ACR records to the WHORM
on a prospective basis. See JA49 (Third Morrissey Decl. ¶ 22).
14
The district court regarded the Memorandum with
(continued...)

28
the court’s view, any expression of intent by the White House and

OVP to control their appointment information, and any effort to

structure and cabin the Secret Service’s use of that information,

can have no bearing on the records’ status under the FOIA.

The decision thus robs the President and Vice President of

any discretion in maintaining the confidentiality of their

appointment lists. This is plainly not a situation in which the

President or Vice President “has a choice between using his staff

to perform a function and using an agency to perform it.” Ryan,

617 F.2d at 789; see also Judicial Watch, Inc. v. Dep’t of

Justice, 365 F.3d 1108, 1118 (D.C. Cir. 2004). It is unclear

what additional steps the President could have taken to assert

control over the appointment information, and the district

court’s ruling leaves open no means by which he can assure their

confidentiality.

Disregarding the efforts of the White House, OVP and Secret

Service to clarify the status of the records, the court found it

determinative that the Secret Service uses the appointment

information, declaring that “use trumps intent.” JA184 (Op.35).

14
(...continued)
“skepticism” because it was executed in May 2006, before the FOIA
request in this case but after different plaintiffs had begun to
request similar records. JA175 n.22. As the declarations make
clear, however, the Memorandum simply memorialized an existing
understanding. See JA78 (Droege Decl. ¶ 3); JA66, JA69-70
(O’Donnell Decl. ¶¶ 7, 13-15); JA48 (Third Morrissey Decl. ¶ 21).
The district court identified nothing in the record that casts
doubt on these statements.

29
That the Secret Service uses the records for the limited purpose

of screening visitors invited or approved by the White House or

OVP, and subject to the restrictions in the Memorandum of

Understanding, was of no significance to the court.

This analysis cannot be squared with this Court’s decisions.

As United We Stand makes clear, the extent to which the White

House and OVP have asserted control over the information it must

provide to the Secret Service should be crucial in determining

the status of the records. The district court’s reasoning, in

contrast, renders the assertion of control irrelevant.

2. In reaching its conclusion, the district court purported

to apply four factors identified in United We Stand as germane to

determining a record’s agency status.15 As United We Stand

itself demonstrates, however, these factors, which involve

overlapping inquiries, are not to be applied mechanically and are

merely a means to resolving the ultimate issue of control. See

359 F.3d at 599-603. But even assuming that it were necessary to

15
The four factors are:

(1) the intent of the document's creator to

retain or relinquish control over the
records; (2) the ability of the agency to use
and dispose of the record as it sees fit;
(3) the extent to which agency personnel have
read or relied upon the document; and
(4) the degree to which the document was integrated
into the agency's record system or files.

United We Stand, 359 F.3d at 599.

30
engage in a factor-by-factor analysis, the district court’s error

is plain.

The first factor concerns the intent of the document’s

creator to retain or relinquish control. Although the district

court regarded the agency as the “creator” of the records at

issue, the Secret Service creates WAVES and ACR records only in

the most limited and formalistic sense. The records are not

created in the agency’s discretion, but are generated exclusively

at the impetus of the President, Vice President, and authorized

passholders who invite visitors to the Complex. In most

instances, moreover, WAVES records are automatically generated,

and the principal data fields populated, when an authorized

passholder types the proposed visitor’s information directly into

a White House Complex computer terminal, which automatically

transmits the information to a Secret Service server. JA44

(Third Morrissey Decl. ¶ 11). Those data are later

electronically supplemented with ACR records of the visitor’s

entry and exit, which are again automatically generated upon each

swipe of the visitor’s badge on a gate sensor. JA45 (Third

Morrissey Decl. ¶¶ 14-15).

In most instances, therefore, the Secret Service itself

“creates” information in the WAVES files only to the extent that

Secret Service officers may annotate the records with information

from criminal background checks, including any necessary

31
instructions to Secret Service officers, and other incidental

information.16 JA44 (Third Morrissey Decl. ¶¶ 12-13). And in

any event, whether the White House or the Secret Service is

properly deemed the “creator” of the records in the first

instance, they intend the same result: the White House and the

OVP intend to retain control of the records, and the Secret

Service intends to relinquish control.

The second and third factors — the agency’s ability to “use

or dispose of the document as it sees fit,” and the extent to

which the agency has relied on the document — are likewise

resolved by the shared intent of the White House, OVP and the

Secret Service. The Secret Service uses the records as

contemplated by the Memorandum of Understanding, and it is

obliged to dispose of them in the manner contemplated by the

Memorandum. Indeed, the Memorandum merely memorializes

longstanding agreements. See JA78 (Droege Decl. ¶ 3); JA66,

JA69-70 (O’Donnell Decl. ¶¶ 7, 13-15); JA48 (Third Morrissey

Decl. ¶ 21). To the extent the Secret Service does use the

records, moreover, it does so for the limited purpose of

16
Indeed, a Secret Service employee could only “create” a
WAVES record in the limited circumstance in which the employee is
himself an authorized passholder and arranges a visit to the
White House Complex on his own initiative. Such visits, to the
extent they occur, are plainly not the focus of plaintiff’s FOIA
request. See JA38 (purpose of FOIA request is to uncover
“influence[s]” on “the President in the exercise of his
authority”).

32
providing the security that is mandated by statute so that the

President and Vice President may safely discharge their

constitutional responsibilities.

Finally, “the degree to which the document was integrated

into the agency's record system or files,” similarly negates the

implication of Secret Service control. The WAVES and ACR records

are stored in transitory fashion on Secret Service computers for

the purposes outlined in the Memorandum of Understanding, and the

Memorandum provides for the systematic transfer of the records

back to the WHORM for preservation pursuant to the Presidential

Records Act.

3. Thus, as relevant here, all four related factors

underscore the passing and highly circumscribed nature of the

agency’s role with respect to the records at issue. Like the CIA

in Goland, the Secret Service possesses the records essentially

“as a ‘trustee,’” and the decision to disclose the records, if at

all, belongs to the President or Vice President alone. See

Goland, 607 F.2d at 347.

At the same time, the President and the Vice President have

a substantial ongoing interest in protecting the confidentiality

of their decisionmaking processes, preventing unwarranted

intrusions into the functioning of their offices, and preserving

their records for historical and informational purposes under the

terms of the Presidential Records Act, 44 U.S.C. §§ 2201 et seq.

33
See JA78, JA81 (Droege Decl. ¶¶ 3, 12); JA69, JA71 (O’Donnell

Decl. ¶¶ 13-14, 19); see also JA62 (MOU ¶ 20). Under the

Presidential Records Act, the President has the responsibility to

“take all such steps as may be necessary to assure” that all

records reflecting “the performance of his constitutional,

statutory, or other official or ceremonial duties” are preserved

and “maintained as Presidential records.” 44 U.S.C. § 2203(a).

The Vice President likewise must preserve records reflecting the

performance of his official duties. 44 U.S.C. § 2207. The

WAVES, ACR, and other records that plaintiff seeks plainly meet

this definition: taken as a class, the visitation records

provide a detailed historical chronicle of the daily activities

of the President and Vice President. Indeed, it is presumably

for this reason that copies of each day’s WAVES records are sent

to the President’s official diarist. JA50 (Third Morrissey Decl.

¶ 25).

In sum, as in United We Stand, “resolution of this dispute

turns on whether the [agency] has control of the documents.” 359

F.3d at 598. The Secret Service lacks the requisite “exclusive

control” over the records plaintiff seeks, id. at 600, and, as in

United We Stand, the records are not those of the agency. The

district court’s reliance on factors identified in United We

Stand to subvert the mutual and unambiguous intent of the White

34
House, OVP and Secret Service cannot be reconciled with this

Court’s rulings.

D. The District Court’s Ruling Improperly Creates, Rather

Than Avoids, Constitutional Concerns.

As we have shown, the district court’s ruling is not

compelled by the statutory text and cannot be reconciled with

this Court’s precedent. If there were any doubt regarding the

proper status of the records, however, the doctrine of

constitutional avoidance would require a construction of the FOIA

term “agency records” that avoided a substantial intrusion on the

confidentiality necessary for the President and Vice President to

discharge their constitutional duties. See, e.g., INS v. St.

Cyr, 533 U.S. 289, 299-300 (2001); Edward J. DeBartolo Corp. v.

Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568,

575 (1988); see also 3 U.S.C. § 106 (recognizing the executive

functions of the Vice President, who also has legislative

functions in presiding over, and in case of a tie, voting in, the

Senate). A court’s “reluctance to decide constitutional issues

is especially great where, as here, they concern the relative

powers” of other officers of the government. Public Citizen v.

Dep’t of Justice, 491 U.S. 440, 466 (1989).17

17
This is not the first instance in which a plaintiff has
sought to impose unwarranted burdens upon the Vice Presidency in
attempting to chronicle the President’s and Vice President’s
interactions with others. See, e.g., Cheney v. U.S. Dist. Ct.,
542 U.S. 367 (2004); Judicial Watch, Inc. v. Dep’t of Energy, 412
(continued...)

35
 As this Court has recognized, Congress’s exclusion of the

President and Vice President from the FOIA’s definition of

“agency” was compelled by appropriate respect for the separation

of powers. See Armstrong v. Executive Office of the President, 1

F.3d 1274, 1292 (D.C. Cir. 1993); Ryan v. Department of Justice,

617 F.2d 781, 788 n.19 (D.C. Cir. 1980). Reviewing the

interrelationship of the FOIA and the Presidential Records Act,

this Court observed in Armstrong that Congress was “keenly aware

of the separation of powers concerns that were implicated by

legislation regulating the conduct of the President’s daily

operations,” and thus sought “‘to minimize outside interference

with the day-to-day operations of the President and his closest

advisors and to ensure executive branch control over presidential

records during the President’s term of office.’” 1 F.3d at 1292

(citation omitted).

A court cannot properly engage in a mechanistic application

of the FOIA that loses sight of the congressional purpose

reflected in FOIA and, in particular, Congress’s concern to avoid

intrusions inconsistent with the separation of powers.

“[S]pecial considerations control” when a ruling implicates the

interests of the Presidency or Vice Presidency “in maintaining

17
(...continued)
F.3d 125 (D.C. Cir. 2005); Walker v. Cheney, 230 F. Supp. 2d 51
(D.D.C. 2002); Judicial Watch, Inc. v. U.S. Naval Observatory,
160 F. Supp. 2d 111 (D.D.C. 2001).

36
the autonomy of its office and safeguarding the confidentiality

of its communications, are implicated.” Cheney v. U.S. District

Court, 542 U.S. 367, 385 (2004); see also Judicial Watch v. Dep’t

of Energy, 412 F.3d 125, 132 (D.C. Cir. 2005) (holding that

routine White House practice of detailing employees from agencies

does not transform those detailees’ documents into agency

records, observing that “it is not for a court to burden that

practice when not under statutory compulsion”). The requested

records provide no insight into the workings of the Secret

Service, and do not provide the public with knowledge of what the

agency is “up to.” Dep’t of Justice v. Reporters’ Comm. for

Freedom of the Press, 489 U.S. 749, 773 (1989). The Court is,

instead, confronted with an overt effort to use the FOIA to

investigate what the President and Vice President are “up to.”

Plaintiff’s request, moreover, intrudes into the privacy of the

President, the Vice President, and their families in their homes.

Notwithstanding the unique circumstances and constitutional

concerns implicated in the relationships between the Secret

Service and the President and Vice President, the district court

purported to resolve the scope of the FOIA as if this were a

routine request for agency records. In this way, the district

court’s order undercuts Congress’s care in drafting the FOIA to

exclude the President and Vice President and “pushes to the fore

37
difficult questions of separation of powers” that “should be

avoided whenever possible.” Cheney, 542 U.S. at 389-90.

As this Court has explicitly recognized, the Constitution

protects the ability of the President and Vice President “to seek

confidential information from many sources, both inside the

government and outside,” to facilitate the effective performance

of their respective official duties, including the Vice

President’s executive functions in support of the President. In

re Cheney, 406 F.3d 723, 728 (D.C. Cir. 2005) (en banc). The

specter of each and every appointment record immediately becoming

the subject of forced public disclosure would surely cast a chill

over the ability of the President and Vice President to collect

information and advice from people in the performance of their

official functions, and over the willingness of others to

interact with them. Cf. Nixon v. Adm’r of Gen. Servs., 433 U.S.

425, 448-49 (1977) (“Unless he can give his advisers some

assurance of confidentiality, a President could not expect to

receive the full and frank submissions of facts and opinions upon

which effective discharge of his duties depends.”); Nat’l

Institute of Military Justice v. Department of Defense, __ F.3d

__, 2008 WL 108734, at *6 (D.C. Cir. Jan. 11, 2008) (observing

that “the expectation that communications will remain

confidential is crucial to eliciting candid and honest advice

from outside consultants”).

38
 As the FOIA request in Washington Post v. Department of

Homeland Security, 459 F. Supp. 2d 61 (D.D.C. 2006), illustrates,

this concern is hardly abstract. Plaintiff in that case sued to

compel the Secret Service to produce all records pertaining to

all visitors to the Vice President and specific senior members of

his staff over the course of more than a year, and persuaded the

district court that the records were “agency” records subject to

the FOIA. Although the plaintiff subsequently dismissed its

complaint, thereby mooting the government’s appeal, see No. 06-

5337 (D.C. Cir.), acceptance of the district court’s theory here

would permit precisely this type of request to proceed.

Constitutional concerns apply with particular force here

because, as discussed, the district court’s order leaves the

White House and OVP with no apparent practicable means to prevent

appointment calendar information from becoming a matter of agency

record. Congress has already excluded from the FOIA the records

of the President, the Vice President, and their respective

staffs. The visitor information at issue is shared with the

Secret Service only because of statutorily mandated Secret

Service protection, only for limited and passing use in the

Secret Service’s narrow access-control function, and only subject

to the retention of Presidential and Vice Presidential control.

Given the constitutional concerns that form the backdrop to the

carefully crafted information disclosure statutes, the Court

39
should be at pains to avoid anomalous results that the President,

Vice President, or Secret Service cannot obviously rectify.

The constitutional defects in the district court’s

interpretation are not avoided, as the district court believed,

because the government “has a ready recourse in Exemption 5.”

JA188. The opportunity to assert privileges on a record-by-

record basis cannot be a basis for permitting an intrusion of

constitutional dimensions that Congress sought to avoid. See In

re Cheney, 406 F.3d at 728, 731 (holding that a suit intruding

into the President’s ability to obtain advice from a group led by

the Vice President justified mandamus relief, notwithstanding the

opportunity to assert privileges).

The Secret Service by itself is plainly not in a position to

assert deliberative process, presidential communications, or any

other privileges with regard to the records of particular

visitors, because in most cases the Secret Service will not be

privy to the reason or purpose for the visit or to the substance

of any pertinent deliberations or communications inside the White

House Complex or Vice President’s Residence. Rather, the burden

of processing the records and asserting exemptions would fall

squarely on the President, the Vice President, and their senior

advisors — the only persons with the information necessary to

make the requisite privilege determinations.

40
 The district court’s order thus effectively forces the

President, Vice President, and their staffs to review their own

visitor records on a case-by-case basis to assess claims of

privilege. In amending the FOIA to exclude the President and

Vice President, Congress made clear that the statute does not

establish such a requirement. If Congress had believed the

protections of the FOIA exemptions to be adequate, there would

have been no need to exclude the President and Vice President

from the statute’s coverage. Instead, Congress declined to

require the President and Vice President to search for, review,

and process records in the first place, and, by excluding them

from the FOIA altogether, accorded a protection that sweeps more

broadly than those of the individual exemptions.

As the Supreme Court’s decision in Cheney makes clear,

requiring the President or Vice President to consider the

assertion of privileges over requested documents is an injury

separate from the disclosure of the documents themselves. The

Court was keenly aware of “the burden imposed by * * * discovery

orders * * * directed to the Vice President and other senior

Government officials,” and emphasized that nothing in its

precedents required the Vice President “to bear the onus of

critiquing unacceptable discovery requests line by line.” 542

U.S. at 385, 388. The Court stressed that its precedents provide

no support for the proposition that the President or Vice

41
President “shall bear the burden” of invoking privilege “with

sufficient specificity and of making particularized objections.”

Id. at 388 (citations omitted); see also id. at 389 (noting the

“burden” of “asserting specific claims of privilege and making

more particular objections”).

The district court’s order installs the regime rejected by

Congress. This Court should be “loath to conclude that Congress

intended to press ahead into dangerous constitutional thickets in

the absence of firm evidence that it courted those perils.”

Public Citizen, 491 U.S. at 466.

42
 CONCLUSION

For the foregoing reasons, this Court should reverse the

district court’s order of December 17, 2007.

Respectfully submitted,

JEFFREY S. BUCHOLTZ
Acting Assistant Attorney General

JONATHAN F. COHN
Deputy Assistant Attorney General

MARK B. STERN
MICHAEL S. RAAB /s/
MARK R. FREEMAN /s/
CHRISTOPHER J. WALKER
(202) 514-5089
Attorneys, Appellate Staff
Civil Division, Room 7531
Department of Justice
950 Pennsylvania Ave., N.W.
Washington, D.C. 20530-0001
JANUARY 2008

43
 CERTIFICATE OF COMPLIANCE WITH RULE 32(a)(7)(c)
OF THE FEDERAL RULES OF APPELLATE PROCEDURE

I hereby certify pursuant to Fed. R. App. P. 32(a)(7)(C)

that the foregoing brief contains 9,327 words, according to the

count of Corel WordPerfect 12.

_____/s/_______________
MARK FREEMAN
 CERTIFICATE OF SERVICE

I hereby certify that on this 28th day of January, 2008, I

caused copies of the foregoing brief to be filed with the Court

by hand delivery, and served upon the following counsel by

electronic mail and hand-delivery:

Anne L. Weismann
Citizens for Ethics and Responsibility
in Washington
1400 Eye St. NW
Suite 450
Washington, D.C. 20005
202-408-5565
aweismann@citizensforethics.org

and served upon the following counsel by electronic mail and

first-class U.S. mail:

David Sobel
Law Office of David L. Sobel
1875 Connecticut Ave NW
Suite 650
Washington, D.C. 20009
202-246-6180
sobel@att.net

_____/s/__________________
MARK FREEMAN
A D D E N D U M
 STATUTORY ADDENDUM

Page

Freedom of Information Act, 5 U.S.C. § 552 . . . . . . 1

18 U.S.C. § 3056 . . . . . . . . . . . . . . . . . . . 25

44 U.S.C. § 2201 . . . . . . . . . . . . . . . . . . . 30

44 U.S.C. § 2203 . . . . . . . . . . . . . . . . . . . 33

44 U.S.C. § 2204 . . . . . . . . . . . . . . . . . . . 36

44 U.S.C. § 2207 . . . . . . . . . . . . . . . . . . . 40

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5 U.S.C.A. § 552 Page 1

Effective: December 31, 2007

United States Code Annotated Currentness

Title 5. Government Organization and Employees (Refs & Annos)
Part I. The Agencies Generally
Chapter 5. Administrative Procedure (Refs & Annos)
Subchapter II. Administrative Procedure (Refs & Annos)
§ 552. Public information; agency rules, opinions, orders, records, and
proceedings

(a) Each agency shall make available to the public information as follows:

(1) Each agency shall separately state and currently publish in the Federal Register for the guidance
of the public--

(A) descriptions of its central and field organization and the established places at which, the
employees (and in the case of a uniformed service, the members) from whom, and the methods
whereby, the public may obtain information, make submittals or requests, or obtain decisions;

(B) statements of the general course and method by which its functions are channeled and
determined, including the nature and requirements of all formal and informal procedures
available;

(C) rules of procedure, descriptions of forms available or the places at which forms may be
obtained, and instructions as to the scope and contents of all papers, reports, or examinations;

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(D) substantive rules of general applicability adopted as authorized by law, and statements of
general policy or interpretations of general applicability formulated and adopted by the agency;
and

(E) each amendment, revision, or repeal of the foregoing.

Except to the extent that a person has actual and timely notice of the terms thereof, a person may
not in any manner be required to resort to, or be adversely affected by, a matter required to be
published in the Federal Register and not so published. For the purpose of this paragraph, matter
reasonably available to the class of persons affected thereby is deemed published in the Federal
Register when incorporated by reference therein with the approval of the Director of the Federal
Register.

(2) Each agency, in accordance with published rules, shall make available for public inspection and
copying--

(A) final opinions, including concurring and dissenting opinions, as well as orders, made in the
adjudication of cases;

(B) those statements of policy and interpretations which have been adopted by the agency and
are not published in the Federal Register;

(C) administrative staff manuals and instructions to staff that affect a member of the public;

(D) copies of all records, regardless of form or format, which have been released to any person
under paragraph (3) and which, because of the nature of their subject matter, the agency
determines have become or are likely to become the subject of subsequent requests for
substantially the same records; and

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(E) a general index of the records referred to under subparagraph (D);

unless the materials are promptly published and copies offered for sale. For records created on or
after November 1, 1996, within one year after such date, each agency shall make such records
available, including by computer telecommunications or, if computer telecommunications means
have not been established by the agency, by other electronic means. To the extent required to
prevent a clearly unwarranted invasion of personal privacy, an agency may delete identifying
details when it makes available or publishes an opinion, statement of policy, interpretation, staff
manual, instruction, or copies of records referred to in subparagraph (D). However, in each case
the justification for the deletion shall be explained fully in writing, and the extent of such deletion
shall be indicated on the portion of the record which is made available or published, unless
including that indication would harm an interest protected by the exemption in subsection (b)
under which the deletion is made. If technically feasible, the extent of the deletion shall be
indicated at the place in the record where the deletion was made. Each agency shall also maintain
and make available for public inspection and copying current indexes providing identifying
information for the public as to any matter issued, adopted, or promulgated after July 4, 1967, and
required by this paragraph to be made available or published. Each agency shall promptly publish,
quarterly or more frequently, and distribute (by sale or otherwise) copies of each index or
supplements thereto unless it determines by order published in the Federal Register that the
publication would be unnecessary and impracticable, in which case the agency shall nonetheless
provide copies of such index on request at a cost not to exceed the direct cost of duplication. Each
agency shall make the index referred to in subparagraph (E) available by computer
telecommunications by December 31, 1999. A final order, opinion, statement of policy,
interpretation, or staff manual or instruction that affects a member of the public may be relied on,
used, or cited as precedent by an agency against a party other than an agency only if--

(i) it has been indexed and either made available or published as provided by this paragraph; or

(ii) the party has actual and timely notice of the terms thereof.

(3)(A) Except with respect to the records made available under paragraphs (1) and (2) of this
subsection, and except as provided in subparagraph (E), each agency, upon any request for records

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5 U.S.C.A. § 552 Page 4

which (i) reasonably describes such records and (ii) is made in accordance with published rules
stating the time, place, fees (if any), and procedures to be followed, shall make the records
promptly available to any person.

(B) In making any record available to a person under this paragraph, an agency shall provide the
record in any form or format requested by the person if the record is readily reproducible by the
agency in that form or format. Each agency shall make reasonable efforts to maintain its records
in forms or formats that are reproducible for purposes of this section.

(C) In responding under this paragraph to a request for records, an agency shall make reasonable
efforts to search for the records in electronic form or format, except when such efforts would
significantly interfere with the operation of the agency's automated information system.

(D) For purposes of this paragraph, the term “search” means to review, manually or by automated
means, agency records for the purpose of locating those records which are responsive to a request.

(E) An agency, or part of an agency, that is an element of the intelligence community (as that term
is defined in section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4))) shall not make
any record available under this paragraph to--

(i) any government entity, other than a State, territory, commonwealth, or district of the United
States, or any subdivision thereof; or

(ii) a representative of a government entity described in clause (i).

(4)(A)(i) In order to carry out the provisions of this section, each agency shall promulgate
regulations, pursuant to notice and receipt of public comment, specifying the schedule of fees
applicable to the processing of requests under this section and establishing procedures and
guidelines for determining when such fees should be waived or reduced. Such schedule shall

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5 U.S.C.A. § 552 Page 5

conform to the guidelines which shall be promulgated, pursuant to notice and receipt of public
comment, by the Director of the Office of Management and Budget and which shall provide for
a uniform schedule of fees for all agencies.

(ii) Such agency regulations shall provide that--

(I) fees shall be limited to reasonable standard charges for document search, duplication, and
review, when records are requested for commercial use;

(II) fees shall be limited to reasonable standard charges for document duplication when records
are not sought for commercial use and the request is made by an educational or noncommercial
scientific institution, whose purpose is scholarly or scientific research; or a representative of the
news media; and

(III) for any request not described in (I) or (II), fees shall be limited to reasonable standard
charges for document search and duplication.

In this clause, the term “a representative of the news media” means any person or entity that
gathers information of potential interest to a segment of the public, uses its editorial skills to turn
the raw materials into a distinct work, and distributes that work to an audience. In this clause, the
term “news” means information that is about current events or that would be of current interest to
the public. Examples of news-media entities are television or radio stations broadcasting to the
public at large and publishers of periodicals (but only if such entities qualify as disseminators of
“news”) who make their products available for purchase by or subscription by or free distribution
to the general public. These examples are not all-inclusive. Moreover, as methods of news delivery
evolve (for example, the adoption of the electronic dissemination of newspapers through
telecommunications services), such alternative media shall be considered to be news-media
entities. A freelance journalist shall be regarded as working for a news-media entity if the
journalist can demonstrate a solid basis for expecting publication through that entity, whether or
not the journalist is actually employed by the entity. A publication contract would present a solid
basis for such an expectation; the Government may also consider the past publication record of the

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5 U.S.C.A. § 552 Page 6

requester in making such a determination.

(iii) Documents shall be furnished without any charge or at a charge reduced below the fees
established under clause (ii) if disclosure of the information is in the public interest because it is
likely to contribute significantly to public understanding of the operations or activities of the
government and is not primarily in the commercial interest of the requester.

(iv) Fee schedules shall provide for the recovery of only the direct costs of search, duplication, or
review. Review costs shall include only the direct costs incurred during the initial examination of
a document for the purposes of determining whether the documents must be disclosed under this
section and for the purposes of withholding any portions exempt from disclosure under this
section. Review costs may not include any costs incurred in resolving issues of law or policy that
may be raised in the course of processing a request under this section. No fee may be charged by
any agency under this section--

(I) if the costs of routine collection and processing of the fee are likely to equal or exceed the
amount of the fee; or

(II) for any request described in clause (ii)(II) or (III) of this subparagraph for the first two hours
of search time or for the first one hundred pages of duplication.

(v) No agency may require advance payment of any fee unless the requester has previously failed
to pay fees in a timely fashion, or the agency has determined that the fee will exceed $250.

(vi) Nothing in this subparagraph shall supersede fees chargeable under a statute specifically
providing for setting the level of fees for particular types of records.

(vii) In any action by a requester regarding the waiver of fees under this section, the court shall
determine the matter de novo: Provided, That the court's review of the matter shall be limited to

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5 U.S.C.A. § 552 Page 7

the record before the agency.

(B) On complaint, the district court of the United States in the district in which the complainant
resides, or has his principal place of business, or in which the agency records are situated, or in the
District of Columbia, has jurisdiction to enjoin the agency from withholding agency records and
to order the production of any agency records improperly withheld from the complainant. In such
a case the court shall determine the matter de novo, and may examine the contents of such agency
records in camera to determine whether such records or any part thereof shall be withheld under
any of the exemptions set forth in subsection (b) of this section, and the burden is on the agency
to sustain its action. In addition to any other matters to which a court accords substantial weight,
a court shall accord substantial weight to an affidavit of an agency concerning the agency's
determination as to technical feasibility under paragraph (2)(C) and subsection (b) and
reproducibility under paragraph (3)(B).

(C) Notwithstanding any other provision of law, the defendant shall serve an answer or otherwise
plead to any complaint made under this subsection within thirty days after service upon the
defendant of the pleading in which such complaint is made, unless the court otherwise directs for
good cause shown.

[(D) Repealed. Pub.L. 98-620, Title IV, § 402(2), Nov. 8, 1984, 98 Stat. 3357]

(E)(i) The court may assess against the United States reasonable attorney fees and other litigation
costs reasonably incurred in any case under this section in which the complainant has substantially
prevailed.

(ii) For purposes of this subparagraph, a complainant has substantially prevailed if the complainant
has obtained relief through either--

(I) a judicial order, or an enforceable written agreement or consent decree; or

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(II) a voluntary or unilateral change in position by the agency, if the complainant's claim is not
insubstantial.

(F)(i) Whenever the court orders the production of any agency records improperly withheld from
the complainant and assesses against the United States reasonable attorney fees and other litigation
costs, and the court additionally issues a written finding that the circumstances surrounding the
withholding raise questions whether agency personnel acted arbitrarily or capriciously with respect
to the withholding, the Special Counsel shall promptly initiate a proceeding to determine whether
disciplinary action is warranted against the officer or employee who was primarily responsible for
the withholding. The Special Counsel, after investigation and consideration of the evidence
submitted, shall submit his findings and recommendations to the administrative authority of the
agency concerned and shall send copies of the findings and recommendations to the officer or
employee or his representative. The administrative authority shall take the corrective action that
the Special Counsel recommends.

(ii) The Attorney General shall--

(I) notify the Special Counsel of each civil action described under the first sentence of clause (i);
and

(II) annually submit a report to Congress on the number of such civil actions in the preceding
year.

(iii) The Special Counsel shall annually submit a report to Congress on the actions taken by the
Special Counsel under clause (i).

(G) In the event of noncompliance with the order of the court, the district court may punish for
contempt the responsible employee, and in the case of a uniformed service, the responsible
member.

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5 U.S.C.A. § 552 Page 9

(5) Each agency having more than one member shall maintain and make available for public
inspection a record of the final votes of each member in every agency proceeding.

(6)(A) Each agency, upon any request for records made under paragraph (1), (2), or (3) of this
subsection, shall--

(i) determine within 20 days (excepting Saturdays, Sundays, and legal public holidays) after the
receipt of any such request whether to comply with such request and shall immediately notify
the person making such request of such determination and the reasons therefor, and of the right
of such person to appeal to the head of the agency any adverse determination; and

(ii) make a determination with respect to any appeal within twenty days (excepting Saturdays,
Sundays, and legal public holidays) after the receipt of such appeal. If on appeal the denial of the
request for records is in whole or in part upheld, the agency shall notify the person making such
request of the provisions for judicial review of that determination under paragraph (4) of this
subsection.

(B)(i) In unusual circumstances as specified in this subparagraph, the time limits prescribed in
either clause (i) or clause (ii) of subparagraph (A) may be extended by written notice to the
person making such request setting forth the unusual circumstances for such extension and the
date on which a determination is expected to be dispatched. No such notice shall specify a date
that would result in an extension for more than ten working days, except as provided in clause
(ii) of this subparagraph.

(ii) With respect to a request for which a written notice under clause (i) extends the time limits
prescribed under clause (i) of subparagraph (A), the agency shall notify the person making the
request if the request cannot be processed within the time limit specified in that clause and shall
provide the person an opportunity to limit the scope of the request so that it may be processed
within that time limit or an opportunity to arrange with the agency an alternative time frame for
processing the request or a modified request. Refusal by the person to reasonably modify the
request or arrange such an alternative time frame shall be considered as a factor in determining

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whether exceptional circumstances exist for purposes of subparagraph (C).

(iii) As used in this subparagraph, “unusual circumstances” means, but only to the extent
reasonably necessary to the proper processing of the particular requests--

(I) the need to search for and collect the requested records from field facilities or other
establishments that are separate from the office processing the request;

(II) the need to search for, collect, and appropriately examine a voluminous amount of
separate and distinct records which are demanded in a single request; or

(III) the need for consultation, which shall be conducted with all practicable speed, with
another agency having a substantial interest in the determination of the request or among two
or more components of the agency having substantial subject-matter interest therein.

(iv) Each agency may promulgate regulations, pursuant to notice and receipt of public comment,
providing for the aggregation of certain requests by the same requestor, or by a group of
requestors acting in concert, if the agency reasonably believes that such requests actually
constitute a single request, which would otherwise satisfy the unusual circumstances specified
in this subparagraph, and the requests involve clearly related matters. Multiple requests involving
unrelated matters shall not be aggregated.

(C)(i) Any person making a request to any agency for records under paragraph (1), (2), or (3) of
this subsection shall be deemed to have exhausted his administrative remedies with respect to
such request if the agency fails to comply with the applicable time limit provisions of this
paragraph. If the Government can show exceptional circumstances exist and that the agency is
exercising due diligence in responding to the request, the court may retain jurisdiction and allow
the agency additional time to complete its review of the records. Upon any determination by an
agency to comply with a request for records, the records shall be made promptly available to such
person making such request. Any notification of denial of any request for records under this

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5 U.S.C.A. § 552 Page 11

subsection shall set forth the names and titles or positions of each person responsible for the
denial of such request.

(ii) For purposes of this subparagraph, the term “exceptional circumstances” does not include
a delay that results from a predictable agency workload of requests under this section, unless the
agency demonstrates reasonable progress in reducing its backlog of pending requests.

(iii) Refusal by a person to reasonably modify the scope of a request or arrange an alternative
time frame for processing a request (or a modified request) under clause (ii) after being given an
opportunity to do so by the agency to whom the person made the request shall be considered as
a factor in determining whether exceptional circumstances exist for purposes of this
subparagraph.

(D)(i) Each agency may promulgate regulations, pursuant to notice and receipt of public
comment, providing for multitrack processing of requests for records based on the amount of
work or time (or both) involved in processing requests.

(ii) Regulations under this subparagraph may provide a person making a request that does not
qualify for the fastest multitrack processing an opportunity to limit the scope of the request in
order to qualify for faster processing.

(iii) This subparagraph shall not be considered to affect the requirement under subparagraph (C)
to exercise due diligence.

(E)(i) Each agency shall promulgate regulations, pursuant to notice and receipt of public
comment, providing for expedited processing of requests for records--

(I) in cases in which the person requesting the records demonstrates a compelling need; and

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5 U.S.C.A. § 552 Page 12

(II) in other cases determined by the agency.

(ii) Notwithstanding clause (i), regulations under this subparagraph must ensure--

(I) that a determination of whether to provide expedited processing shall be made, and notice
of the determination shall be provided to the person making the request, within 10 days after
the date of the request; and

(II) expeditious consideration of administrative appeals of such determinations of whether

to provide expedited processing.

(iii) An agency shall process as soon as practicable any request for records to which the agency
has granted expedited processing under this subparagraph. Agency action to deny or affirm
denial of a request for expedited processing pursuant to this subparagraph, and failure by an
agency to respond in a timely manner to such a request shall be subject to judicial review under
paragraph (4), except that the judicial review shall be based on the record before the agency at
the time of the determination.

(iv) A district court of the United States shall not have jurisdiction to review an agency denial
of expedited processing of a request for records after the agency has provided a complete
response to the request.

(v) For purposes of this subparagraph, the term “compelling need” means--

(I) that a failure to obtain requested records on an expedited basis under this paragraph could
reasonably be expected to pose an imminent threat to the life or physical safety of an
individual; or

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5 U.S.C.A. § 552 Page 13

(II) with respect to a request made by a person primarily engaged in disseminating

information, urgency to inform the public concerning actual or alleged Federal Government
activity.

(vi) A demonstration of a compelling need by a person making a request for expedited processing
shall be made by a statement certified by such person to be true and correct to the best of such
person's knowledge and belief.

(F) In denying a request for records, in whole or in part, an agency shall make a reasonable effort
to estimate the volume of any requested matter the provision of which is denied, and shall
provide any such estimate to the person making the request, unless providing such estimate
would harm an interest protected by the exemption in subsection (b) pursuant to which the denial
is made.

(b) This section does not apply to matters that are--

(1) (A) specifically authorized under criteria established by an Executive order to be kept secret
in the interest of national defense or foreign policy and (B) are in fact properly classified
pursuant to such Executive order;

(2) related solely to the internal personnel rules and practices of an agency;

(3) specifically exempted from disclosure by statute (other than section 552b of this title),
provided that such statute (A) requires that the matters be withheld from the public in such a
manner as to leave no discretion on the issue, or (B) establishes particular criteria for
withholding or refers to particular types of matters to be withheld;

(4) trade secrets and commercial or financial information obtained from a person and privileged
or confidential;

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(5) inter-agency or intra-agency memorandums or letters which would not be available by law
to a party other than an agency in litigation with the agency;

(6) personnel and medical files and similar files the disclosure of which would constitute a
clearly unwarranted invasion of personal privacy;

(7) records or information compiled for law enforcement purposes, but only to the extent that the
production of such law enforcement records or information (A) could reasonably be expected
to interfere with enforcement proceedings, (B) would deprive a person of a right to a fair trial or
an impartial adjudication, (C) could reasonably be expected to constitute an unwarranted
invasion of personal privacy, (D) could reasonably be expected to disclose the identity of a
confidential source, including a State, local, or foreign agency or authority or any private
institution which furnished information on a confidential basis, and, in the case of a record or
information compiled by criminal law enforcement authority in the course of a criminal
investigation or by an agency conducting a lawful national security intelligence investigation,
information furnished by a confidential source, (E) would disclose techniques and procedures
for law enforcement investigations or prosecutions, or would disclose guidelines for law
enforcement investigations or prosecutions if such disclosure could reasonably be expected to
risk circumvention of the law, or (F) could reasonably be expected to endanger the life or
physical safety of any individual;

(8) contained in or related to examination, operating, or condition reports prepared by, on behalf
of, or for the use of an agency responsible for the regulation or supervision of financial
institutions; or

(9) geological and geophysical information and data, including maps, concerning wells.

Any reasonably segregable portion of a record shall be provided to any person requesting such
record after deletion of the portions which are exempt under this subsection. The amount of

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5 U.S.C.A. § 552 Page 15

information deleted, and the exemption under which the deletion is made, shall be indicated on the
released portion of the record, unless including that indication would harm an interest protected
by the exemption in this subsection under which the deletion is made. If technically feasible, the
amount of the information deleted, and the exemption under which the deletion is made, shall be
indicated at the place in the record where such deletion is made.

(c)(1) Whenever a request is made which involves access to records described in subsection
(b)(7)(A) and--

(A) the investigation or proceeding involves a possible violation of criminal law; and

(B) there is reason to believe that (i) the subject of the investigation or proceeding is not aware
of its pendency, and (ii) disclosure of the existence of the records could reasonably be expected
to interfere with enforcement proceedings,

the agency may, during only such time as that circumstance continues, treat the records as not
subject to the requirements of this section.

(2) Whenever informant records maintained by a criminal law enforcement agency under an
informant's name or personal identifier are requested by a third party according to the informant's
name or personal identifier, the agency may treat the records as not subject to the requirements of
this section unless the informant's status as an informant has been officially confirmed.

(3) Whenever a request is made which involves access to records maintained by the Federal Bureau
of Investigation pertaining to foreign intelligence or counterintelligence, or international terrorism,
and the existence of the records is classified information as provided in subsection (b)(1), the
Bureau may, as long as the existence of the records remains classified information, treat the records
as not subject to the requirements of this section.

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5 U.S.C.A. § 552 Page 16

(d) This section does not authorize withholding of information or limit the availability of records
to the public, except as specifically stated in this section. This section is not authority to withhold
information from Congress.

(e)(1) On or before February 1 of each year, each agency shall submit to the Attorney General of
the United States a report which shall cover the preceding fiscal year and which shall include--

(A) the number of determinations made by the agency not to comply with requests for records
made to such agency under subsection (a) and the reasons for each such determination;

(B)(i) the number of appeals made by persons under subsection (a)(6), the result of such appeals,
and the reason for the action upon each appeal that results in a denial of information; and

(ii) a complete list of all statutes that the agency relies upon to authorize the agency to withhold
information under subsection (b)(3), the number of occasions on which each statute was relied
upon, a description of whether a court has upheld the decision of the agency to withhold
information under each such statute, and a concise description of the scope of any information
withheld;

(C) the number of requests for records pending before the agency as of September 30 of the
preceding year, and the median and average number of days that such requests had been pending
before the agency as of that date;

(D) the number of requests for records received by the agency and the number of requests which
the agency processed;

(E) the median number of days taken by the agency to process different types of requests, based
on the date on which the requests were received by the agency;

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5 U.S.C.A. § 552 Page 17

(F) the average number of days for the agency to respond to a request beginning on the date on
which the request was received by the agency, the median number of days for the agency to
respond to such requests, and the range in number of days for the agency to respond to such
requests;

(G) based on the number of business days that have elapsed since each request was originally
received by the agency--

(i) the number of requests for records to which the agency has responded with a
determination within a period up to and including 20 days, and in 20-day increments up to
and including 200 days;

(ii) the number of requests for records to which the agency has responded with a
determination within a period greater than 200 days and less than 301 days;

(iii) the number of requests for records to which the agency has responded with a
determination within a period greater than 300 days and less than 401 days; and

(iv) the number of requests for records to which the agency has responded with a
determination within a period greater than 400 days;

(H) the average number of days for the agency to provide the granted information beginning on
the date on which the request was originally filed, the median number of days for the agency to
provide the granted information, and the range in number of days for the agency to provide the
granted information;

(I) the median and average number of days for the agency to respond to administrative appeals
based on the date on which the appeals originally were received by the agency, the highest
number of business days taken by the agency to respond to an administrative appeal, and the

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5 U.S.C.A. § 552 Page 18

lowest number of business days taken by the agency to respond to an administrative appeal;

(J) data on the 10 active requests with the earliest filing dates pending at each agency, including
the amount of time that has elapsed since each request was originally received by the agency;

(K) data on the 10 active administrative appeals with the earliest filing dates pending before the
agency as of September 30 of the preceding year, including the number of business days that
have elapsed since the requests were originally received by the agency;

(L) the number of expedited review requests that are granted and denied, the average and median
number of days for adjudicating expedited review requests, and the number adjudicated within
the required 10 days;

(M) the number of fee waiver requests that are granted and denied, and the average and median
number of days for adjudicating fee waiver determinations;

(N) the total amount of fees collected by the agency for processing requests; and

(O) the number of full-time staff of the agency devoted to processing requests for records under
this section, and the total amount expended by the agency for processing such requests.

(2) Information in each report submitted under paragraph (1) shall be expressed in terms of each
principal component of the agency and for the agency overall.

(3) Each agency shall make each such report available to the public including by computer
telecommunications, or if computer telecommunications means have not been established by the
agency, by other electronic means. In addition, each agency shall make the raw statistical data used
in its reports available electronically to the public upon request.

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5 U.S.C.A. § 552 Page 19

(4) The Attorney General of the United States shall make each report which has been made
available by electronic means available at a single electronic access point. The Attorney General
of the United States shall notify the Chairman and ranking minority member of the Committee on
Government Reform and Oversight of the House of Representatives and the Chairman and ranking
minority member of the Committees on Governmental Affairs and the Judiciary of the Senate, no
later than April 1 of the year in which each such report is issued, that such reports are available by
electronic means.

(5) The Attorney General of the United States, in consultation with the Director of the Office of
Management and Budget, shall develop reporting and performance guidelines in connection with
reports required by this subsection by October 1, 1997, and may establish additional requirements
for such reports as the Attorney General determines may be useful.

(6) The Attorney General of the United States shall submit an annual report on or before April 1
of each calendar year which shall include for the prior calendar year a listing of the number of
cases arising under this section, the exemption involved in each case, the disposition of such case,
and the cost, fees, and penalties assessed under subparagraphs (E), (F), and (G) of subsection
(a)(4). Such report shall also include a description of the efforts undertaken by the Department of
Justice to encourage agency compliance with this section.

(f) For purposes of this section, the term--

(1) “agency” as defined in section 551(1) of this title includes any executive department, military
department, Government corporation, Government controlled corporation, or other establishment
in the executive branch of the Government (including the Executive Office of the President), or
any independent regulatory agency; and

(2) ‘record’ and any other term used in this section in reference to information includes--

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5 U.S.C.A. § 552 Page 20

(A) any information that would be an agency record subject to the requirements of this
section when maintained by an agency in any format, including an electronic format; and

(B) any information described under subparagraph (A) that is maintained for an agency by
an entity under Government contract, for the purposes of records management.

(g) The head of each agency shall prepare and make publicly available upon request, reference
material or a guide for requesting records or information from the agency, subject to the
exemptions in subsection (b), including--

(1) an index of all major information systems of the agency;

(2) a description of major information and record locator systems maintained by the agency; and

(3) a handbook for obtaining various types and categories of public information from the agency
pursuant to chapter 35 of title 44, and under this section.

(h)(1) There is established the Office of Government Information Services within the National
Archives and Records Administration.

(2) The Office of Government Information Services shall--

(A) review policies and procedures of administrative agencies under this section;

(B) review compliance with this section by administrative agencies; and

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5 U.S.C.A. § 552 Page 21

(C) recommend policy changes to Congress and the President to improve the administration
of this section.

(3) The Office of Government Information Services shall offer mediation services to resolve
disputes between persons making requests under this section and administrative agencies as a
non-exclusive alternative to litigation and, at the discretion of the Office, may issue advisory
opinions if mediation has not resolved the dispute.

(i) The Government Accountability Office shall conduct audits of administrative agencies on the
implementation of this section and issue reports detailing the results of such audits.

(j) Each agency shall designate a Chief FOIA Officer who shall be a senior official of such agency
(at the Assistant Secretary or equivalent level).

(k) The Chief FOIA officer of each agency shall, subject to the authority of the head of the
agency--

(1) have agency-wide responsibility for efficient and appropriate compliance with this section;

(2) monitor implementation of this section throughout the agency and keep the head of the
agency, the chief legal officer of the agency, and the Attorney General appropriately informed
of the agency's performance in implementing this section;

(3) recommend to the head of the agency such adjustments to agency practices, policies,
personnel, and funding as may be necessary to improve its implementation of this section;

(4) review and report to the Attorney General, through the head of the agency, at such times and
in such formats as the Attorney General may direct, on the agency's performance in

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5 U.S.C.A. § 552 Page 22

implementing this section;

(5) facilitate public understanding of the purposes of the statutory exemptions of this section by
including concise descriptions of the exemptions in both the agency's handbook issued under
subsection (g), and the agency's annual report on this section, and by providing an overview,
where appropriate, of certain general categories of agency records to which those exemptions
apply; and

(6) designate one or more FOIA Public Liaisons.

(l) FOIA Public Liaisons shall report to the agency Chief FOIA Officer and shall serve as
supervisory officials to whom a requester under this section can raise concerns about the service
the requester has received from the FOIA Requester Center, following an initial response from the
FOIA Requester Center Staff. FOIA Public Liaisons shall be responsible for assisting in reducing
delays, increasing transparency and understanding of the status of requests, and assisting in the
resolution of disputes.

CREDIT(S)

(Pub.L. 89-554, Sept. 6, 1966, 80 Stat. 383; Pub.L. 90-23, § 1, June 5, 1967, 81 Stat. 54; Pub.L.
93-502, §§ 1 to 3, Nov. 21, 1974, 88 Stat. 1561 to 1564; Pub.L. 94-409, § 5(b), Sept. 13, 1976, 90
Stat. 1247; Pub.L. 95-454, Title IX, § 906(a)(10), Oct. 13, 1978, 92 Stat. 1225; Pub.L. 98-620,
Title IV, § 402(2), Nov. 8, 1984, 98 Stat. 3357; Pub.L. 99-570, Title I, §§ 1802, 1803, Oct. 27,
1986, 100 Stat. 3207-48, 3207-49; Pub.L. 104-231, §§ 3 to 11, Oct. 2, 1996, 110 Stat. 3049 to
3054; Pub.L. 107-306, Title III, § 312, Nov. 27, 2002, 116 Stat. 2390; Pub.L. 110-175, §§ 3, 4(a),
5, 8, 9, 10(a), 12, Dec. 31, 2007, 121 Stat. 2525, 2527, 2530.)

AMENDMENT OF SUBSEC. (A)(4)(A)

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5 U.S.C.A. § 552 Page 23

<Pub.L. 110-175, § 6(b)(1)(A), (2), Dec. 31, 2007, 121 Stat. 2526, provided that, effective
one year after December 31, 2007, subsec. (a)(4)(A) is amended by inserting after clause (vii)
the following:>

<(viii) An agency shall not assess search fees (or in the case of a requester described under
clause (ii)(II), duplication fees) under this subparagraph if the agency fails to comply with
any time limit under paragraph (6), if no unusual or exceptional circumstances (as those
terms are defined for purposes of paragraphs (6)(B) and (C), respectively) apply to the
processing of the request.>

AMENDMENT OF SUBSEC. (A)(6)(A)

<Pub.L. 110-175, § 6(a), Dec. 31, 2007, 121 Stat. 2526, provided that, effective one year
after December 31, 2007, subsec. (a)(6)(A) is amended by inserting after clause (ii) the
following:>

<The 20-day period under clause (i) shall commence on the date on which the request is first
received by the appropriate component of the agency, but in any event not later than ten days
after the request is first received by any component of the agency that is designated in the
agency's regulations under this section to receive requests under this section. The 20-day period
shall not be tolled by the agency except-->

<(I) that the agency may make one request to the requester for information and toll the
20-day period while it is awaiting such information that it has reasonably requested from the
requester under this section; or>

<(II) if necessary to clarify with the requester issues regarding fee assessment. In either case,
the agency's receipt of the requester's response to the agency's request for information or
clarification ends the tolling period.>

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AMENDMENT OF SUBSEC. (A)(6)(B)(II)

<Pub.L. 110-175, § 6(b)(1)(B), (2), Dec. 31, 2007, 121 Stat. 2526, provided that, effective
one year after December 31, 2007, subsec. (a)(6)(B)(ii) is amended by inserting after the first
sentence the following: “To aid the requester, each agency shall make available its FOIA
Public Liaison, who shall assist in the resolution of any disputes between the requester and
the agency.”>

ADDITION OF SUBSEC. (A)(7)

<Pub.L. 110-175, § 7, Dec. 31, 2007, 121 Stat. 2527, provided that, effective one year after
December 31, 2007, subsec. (a) is amended by adding at the end the following:>

<(7) Each agency shall-->

<(A) establish a system to assign an individualized tracking number for each request received
that will take longer than ten days to process and provide to each person making a request the
tracking number assigned to the request; and>

<(B) establish a telephone line or internet service that provides information about the status of
a request to the person making the request using the assigned tracking number, including-->

<(i) the date on which the agency originally received the request; and>

<(ii) an estimated date on which the agency will complete action on the request.>

<June 23, 1987, 52 F.R. 23781>

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18 U.S.C.A. § 3056 Page 1

Effective: March 9, 2006

United States Code Annotated Currentness

Title 18. Crimes and Criminal Procedure (Refs & Annos)
Part II. Criminal Procedure
Chapter 203. Arrest and Commitment
§ 3056. Powers, authorities, and duties of United States Secret Service

(a) Under the direction of the Secretary of Homeland Security, the United States Secret Service
is authorized to protect the following persons:

(1) The President, the Vice President (or other officer next in the order of succession to the
Office of President), the President-elect, and the Vice President-elect.

(2) The immediate families of those individuals listed in paragraph (1).

(3) Former Presidents and their spouses for their lifetimes, except that protection of a spouse
shall terminate in the event of remarriage unless the former President did not serve as President
prior to January 1, 1997, in which case, former Presidents and their spouses for a period of not
more than ten years from the date a former President leaves office, except that--

(A) protection of a spouse shall terminate in the event of remarriage or the divorce from, or
death of a former President; and

(B) should the death of a President occur while in office or within one year after leaving
office, the spouse shall receive protection for one year from the time of such death:

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Provided, That the Secretary of Homeland Security shall have the authority to direct the
Secret Service to provide temporary protection for any of these individuals at any time if the
Secretary of Homeland Security or designee determines that information or conditions
warrant such protection.

(4) Children of a former President who are under 16 years of age for a period not to exceed ten
years or upon the child becoming 16 years of age, whichever comes first.

(5) Visiting heads of foreign states or foreign governments.

(6) Other distinguished foreign visitors to the United States and official representatives of the
United States performing special missions abroad when the President directs that such protection
be provided.

(7) Major Presidential and Vice Presidential candidates and, within 120 days of the general
Presidential election, the spouses of such candidates. As used in this paragraph, the term “major
Presidential and Vice Presidential candidates” means those individuals identified as such by the
Secretary of Homeland Security after consultation with an advisory committee consisting of the
Speaker of the House of Representatives, the minority leader of the House of Representatives,
the majority and minority leaders of the Senate, and one additional member selected by the other
members of the committee. The Committee shall not be subject to the Federal Advisory
Committee Act (5 U.S.C. App. 2).

The protection authorized in paragraphs (2) through (7) may be declined.

(b) Under the direction of the Secretary of Homeland Security, the Secret Service is authorized to
detect and arrest any person who violates--

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18 U.S.C.A. § 3056 Page 3

(1)section 508, 509, 510, 871, or 879 of this title or, with respect to the Federal Deposit
Insurance Corporation, Federal land banks, and Federal land bank associations, section 213, 216,
433, 493, 657, 709, 1006, 1007, 1011, 1013, 1014, 1907, or 1909 of this title;

(2) any of the laws of the United States relating to coins, obligations, and securities of the United
States and of foreign governments; or

(3) any of the laws of the United States relating to electronic fund transfer frauds, access device
frauds, false identification documents or devices, and any fraud or other criminal or unlawful
activity in or against any federally insured financial institution; except that the authority
conferred by this paragraph shall be exercised subject to the agreement of the Attorney General
and the Secretary of Homeland Security and shall not affect the authority of any other Federal
law enforcement agency with respect to those laws.

(c)(1) Under the direction of the Secretary of Homeland Security, officers and agents of the Secret
Service are authorized to--

(A) execute warrants issued under the laws of the United States;

(B) carry firearms;

(C) make arrests without warrant for any offense against the United States committed in their
presence, or for any felony cognizable under the laws of the United States if they have reasonable
grounds to believe that the person to be arrested has committed or is committing such felony;

(D) offer and pay rewards for services and information leading to the apprehension of persons
involved in the violation or potential violation of those provisions of law which the Secret
Service is authorized to enforce;

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18 U.S.C.A. § 3056 Page 4

(E) pay expenses for unforeseen emergencies of a confidential nature under the direction of the
Secretary of Homeland Security and accounted for solely on the Secretary's certificate; and

(F) perform such other functions and duties as are authorized by law.

(2) Funds expended from appropriations available to the Secret Service for the purchase of
counterfeits and subsequently recovered shall be reimbursed to the appropriations available to the
Secret Service at the time of the reimbursement.

(d) Whoever knowingly and willfully obstructs, resists, or interferes with a Federal law
enforcement agent engaged in the performance of the protective functions authorized by this
section or by section 1752 of this title shall be fined not more than $1,000 or imprisoned not more
than one year, or both.

(e)(1) When directed by the President, the United States Secret Service is authorized to participate,
under the direction of the Secretary of Homeland Security, in the planning, coordination, and
implementation of security operations at special events of national significance, as determined by
the President.

(2) At the end of each fiscal year, the President through such agency or office as the President may
designate, shall report to the Congress--

(A) what events, if any, were designated special events of national significance for security
purposes under paragraph (1); and

(B) the criteria and information used in making each designation.

(f) Under the direction of the Secretary of Homeland Security, the Secret Service is authorized, at

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18 U.S.C.A. § 3056 Page 5

the request of any State or local law enforcement agency, or at the request of the National Center
for Missing and Exploited Children, to provide forensic and investigative assistance in support of
any investigation involving missing or exploited children.

(g) The United States Secret Service shall be maintained as a distinct entity within the Department
of Homeland Security and shall not be merged with any other Department function. No personnel
and operational elements of the United States Secret Service shall report to an individual other than
the Director of the United States Secret Service, who shall report directly to the Secretary of
Homeland Security without being required to report through any other official of the Department.

CREDIT(S)

(June 25, 1948, c. 645, 62 Stat. 818; July 16, 1951, c. 226, § 4, 65 Stat. 122; Aug. 31, 1954, c.
1143, § 2, 68 Stat. 999; Aug. 18, 1959, Pub.L. 86-168, Title I, § 104(h), 73 Stat. 387; Oct. 10,
1962, Pub.L. 87-791, 76 Stat. 809; Oct. 15, 1962, Pub.L. 87-829, § 3, 76 Stat. 956; Sept. 15, 1965,
Pub.L. 89-186, 79 Stat. 791; Sept. 29, 1965, Pub.L. 89-218, 79 Stat. 890; Oct. 21, 1968, Pub.L.
90-608, c. XI, § 1101, 82 Stat. 1198; Jan. 2, 1971, Pub.L. 91-644, Title V, § 19, 84 Stat. 1892; Jan.
5, 1971, Pub.L. 91-651, § 4, 84 Stat. 1941; July 12, 1974, Pub.L. 93-346, § 8, as added Dec. 27,
1974, Pub.L. 93-552, Title VI, § 609(a), 88 Stat. 1765; Sept. 11, 1976, Pub.L. 94-408, § 2, 90 Stat.
1239; Oct. 12, 1982, Pub.L. 97-297, § 3, 96 Stat. 1318; Oct. 14, 1982, Pub.L. 97-308, § 2, 96 Stat.
1452; Nov. 14, 1983, Pub.L. 98-151, § 115(b), 97 Stat. 977; Oct. 30, 1984, Pub.L. 98-587, § 1(a),
98 Stat. 3110; Sept. 30, 1994, Pub.L. 103-329, Title V, § 530, 108 Stat. 2412; Oct. 11, 1996,
Pub.L. 104-294, Title VI, § 605(i), 110 Stat. 3510; Dec. 19, 2000, Pub.L. 106-544, § 3, 114 Stat.
2716; Oct. 26, 2001, Pub.L. 107-56, Title V, § 506(b), 115 Stat. 367; Nov. 25, 2002, Pub.L.
107-296, Title XVII, § 1703(a)(1), 116 Stat. 2313; Apr. 30, 2003, Pub.L. 108-21, Title III, § 322,
117 Stat. 665; Mar. 9, 2006, Pub.L. 109-177, Title VI, §§ 604, 607, 608(a), 120 Stat. 253, 256.)

18 U.S.C.A. § 3056, 18 USCA § 3056

END OF DOCUMENT

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44 U.S.C.A. § 2201 Page 1

Effective:[See Text Amendments]

United States Code Annotated Currentness

Title 44. Public Printing and Documents (Refs & Annos)
Chapter 22. Presidential Records (Refs & Annos)
§ 2201. Definitions

As used in this chapter--

(1) The term “documentary material” means all books, correspondence, memorandums,
documents, papers, pamphlets, works of art, models, pictures, photographs, plats, maps, films,
and motion pictures, including, but not limited to, audio, audiovisual, or other electronic or
mechanical recordations.

(2) The term “Presidential records” means documentary materials, or any reasonably segregable
portion thereof, created or received by the President, his immediate staff, or a unit or individual
of the Executive Office of the President whose function is to advise and assist the President, in
the course of conducting activities which relate to or have an effect upon the carrying out of the
constitutional, statutory, or other official or ceremonial duties of the President. Such term--

(A) includes any documentary materials relating to the political activities of the President or
members of his staff, but only if such activities relate to or have a direct effect upon the
carrying out of constitutional, statutory, or other official or ceremonial duties of the
President; but

(B) does not include any documentary materials that are (i) official records of an agency (as
defined in section 552(e) of title 5, United States Code); (ii) personal records; (iii) stocks of

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44 U.S.C.A. § 2201 Page 2

publications and stationery; or (iv) extra copies of documents produced only for convenience
of reference, when such copies are clearly so identified.

(3) The term “personal records” means all documentary materials, or any reasonably segregable
portion therof, [FN1] of a purely private or nonpublic character which do not relate to or have
an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial
duties of the President. Such term includes--

(A) diaries, journals, or other personal notes serving as the functional equivalent of a diary
or journal which are not prepared or utilized for, or circulated or communicated in the course
of, transacting Government business;

(B) materials relating to private political associations, and having no relation to or direct
effect upon the carrying out of constitutional, statutory, or other official or ceremonial duties
of the President; and

(C) materials relating exclusively to the President's own election to the office of the
Presidency; and materials directly relating to the election of a particular individual or
individuals to Federal, State, or local office, which have no relation to or direct effect upon
the carrying out of constitutional, statutory, or other official or ceremonial duties of the
President.

(4) The term “Archivist” means the Archivist of the United States.

(5) The term “former President”, when used with respect to Presidential records, means the
former President during whose term or terms of office such Presidential records were created.

CREDIT(S)

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44 U.S.C.A. § 2201 Page 3

(Added Pub.L. 95-591, § 2(a), Nov. 4, 1978, 92 Stat. 2523.)

[FN1] So in original. Probably should be “thereof,”.

44 U.S.C.A. § 2201, 44 USCA § 2201

END OF DOCUMENT

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44 U.S.C.A. § 2203 Page 1

Effective: August 20, 1996

United States Code Annotated Currentness

Title 44. Public Printing and Documents (Refs & Annos)
Chapter 22. Presidential Records (Refs & Annos)
§ 2203. Management and custody of Presidential records

(a) Through the implementation of records management controls and other necessary actions, the
President shall take all such steps as may be necessary to assure that the activities, deliberations,
decisions, and policies that reflect the performance of his constitutional, statutory, or other official
or ceremonial duties are adequately documented and that such records are maintained as
Presidential records pursuant to the requirements of this section and other provisions of law.

(b) Documentary materials produced or received by the President, his staff, or units or individuals
in the Executive Office of the President the function of which is to advise and assist the President,
shall, to the extent practicable, be categorized as Presidential records or personal records upon their
creation or receipt and be filed separately.

(c) During his term of office, the President may dispose of those of his Presidential records that
no longer have administrative, historical, informational, or evidentiary value if--

(1) the President obtains the views, in writing, of the Archivist concerning the proposed disposal
of such Presidential records; and

(2) the Archivist states that he does not intend to take any action under subsection (e) of this
section.

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44 U.S.C.A. § 2203 Page 2

(d) In the event the Archivist notifies the President under subsection (c) that he does intend to take
action under subsection (e), the President may dispose of such Presidential records if copies of the
disposal schedule are submitted to the appropriate Congressional Committees at least 60 calendar
days of continuous session of Congress in advance of the proposed disposal date. For the purpose
of this section, continuity of session is broken only by an adjournment of Congress sine die, and
the days on which either House is not in session because of an adjournment of more than three
days to a day certain are excluded in the computation of the days in which Congress is in
continuous session.

(e) The Archivist shall request the advice of the Committee on Rules and Administration and the
Committee on Governmental Affairs of the Senate and the Committee on House Oversight and the
Committee on Government Operations of the House of Representatives with respect to any
proposed disposal of Presidential records whenever he considers that--

(1) these particular records may be of special interest to the Congress; or

(2) consultation with the Congress regarding the disposal of these particular records is in the
public interest.

(f)(1) Upon the conclusion of a President's term of office, or if a President serves consecutive terms
upon the conclusion of the last term, the Archivist of the United States shall assume responsibility
for the custody, control, and preservation of, and access to, the Presidential records of that
President. The Archivist shall have an affirmative duty to make such records available to the public
as rapidly and completely as possible consistent with the provisions of this Act.

(2) The Archivist shall deposit all such Presidential records in a Presidential archival depository
or another archival facility operated by the United States. The Archivist is authorized to designate,
after consultation with the former President, a director at each depository or facility, who shall be
responsible for the care and preservation of such records.

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44 U.S.C.A. § 2203 Page 3

(3) The Archivist is authorized to dispose of such Presidential records which he has appraised and
determined to have insufficient administrative, historical, informational, or evidentiary value to
warrant their continued preservation. Notice of such disposal shall be published in the Federal
Register at least 60 days in advance of the proposed disposal date. Publication of such notice shall
constitute a final agency action for purposes of review under chapter 7 of title 5, United States
Code.

CREDIT(S)

(Added Pub.L. 95-591, § 2(a), Nov. 4, 1978, 92 Stat. 2524, and amended Pub.L. 104-186, Title
II, § 223(9), Aug. 20, 1996, 110 Stat. 1752.)

44 U.S.C.A. § 2203, 44 USCA § 2203

END OF DOCUMENT

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44 U.S.C.A. § 2204 Page 1

Effective:[See Text Amendments]

United States Code Annotated Currentness

Title 44. Public Printing and Documents (Refs & Annos)
Chapter 22. Presidential Records (Refs & Annos)
§ 2204. Restrictions on access to Presidential records

(a) Prior to the conclusion of his term of office or last consecutive term of office, as the case may
be, the President shall specify durations, not to exceed 12 years, for which access shall be restricted
with respect to information, in a Presidential record, within one or more of the following
categories:

(1) (A) specifically authorized under criteria established by an Executive order to be kept secret
in the interest of national defense or foreign policy and (B) in fact properly classified pursuant
to such Executive order;

(2) relating to appointments to Federal office;

(3) specifically exempted from disclosure by statute (other than sections 552 and 552b of title
5, United States Code, provided that such statute (A) requires that the material be withheld from
the public in such a manner as to leave no discretion on the issue, or (B) establishes particular
criteria for withholding or refers to particular types of material to be withheld;

(4) trade secrets and commercial or financial information obtained from a person and privileged
or confidential;

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44 U.S.C.A. § 2204 Page 2

(5) confidential communications requesting or submitting advice, between the President and his
advisers, or between such advisers; or

(6) personnel and medical files and similar files the disclosure of which would constitute a
clearly unwarranted invasion of personal privacy.

(b)(1) Any Presidential record or reasonably segregable portion thereof containing information
within a category restricted by the President under subsection (a) shall be so designated by the
Archivist and access thereto shall be restricted until the earlier of--

(A)(i) the date on which the former President waives the restriction on disclosure of such record,
or

(ii) the expiration of the duration specified under subsection (a) for the category of information
on the basis of which access to such record has been restricted; or

(B) upon a determination by the Archivist that such record or reasonably segregable portion
thereof, or of any significant element or aspect of the information contained in such record or
reasonably segregable portion thereof, has been placed in the public domain through publication
by the former President, or his agents.

(2) Any such record which does not contain information within a category restricted by the
President under subsection (a), or contains information within such a category for which the
duration of restricted access has expired, shall be exempt from the provisions of subsection (c)
until the earlier of--

(A) the date which is 5 years after the date on which the Archivist obtains custody of such record
pursuant to section 2203(d)(1); or

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44 U.S.C.A. § 2204 Page 3

(B) the date on which the Archivist completes the processing and organization of such records
or integral file segment thereof.

(3) During the period of restricted access specified pursuant to subsection (b)(1), the determination
whether access to a Presidential record or reasonably segregable portion thereof shall be restricted
shall be made by the Archivist, in his discretion, after consultation with the former President, and,
during such period, such determinations shall not be subject to judicial review, except as provided
in subsection (e) of this section. The Archivist shall establish procedures whereby any person
denied access to a Presidential record because such record is restricted pursuant to a determination
made under this paragraph, may file an administrative appeal of such determination. Such
procedures shall provide for a written determination by the Archivist or his designee, within 30
working days after receipt of such an appeal, setting forth the basis for such determination.

(c)(1) Subject to the limitations on access imposed pursuant to subsections (a) and (b), Presidential
records shall be administered in accordance with section 552 of title 5, United States Code, except
that paragraph (b)(5) of that section shall not be available for purposes of withholding any
Presidential record, and for the purposes of such section such records shall be deemed to be records
of the National Archives and Records Administration. Access to such records shall be granted on
nondiscriminatory terms.

(2) Nothing in this Act shall be construed to confirm, limit, or expand any constitutionally-based
privilege which may be available to an incumbent or former President.

(d) Upon the death or disability of a President or former President, any discretion or authority the
President or former President may have had under this chapter shall be exercised by the Archivist
unless otherwise previously provided by the President or former President in a written notice to
the Archivist.

(e) The United States District Court for the District of Columbia shall have jurisdiction over any
action initiated by the former President asserting that a determination made by the Archivist
violates the former President's rights or privileges.

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44 U.S.C.A. § 2204 Page 4

CREDIT(S)

(Added Pub.L. 95-591, § 2(a), Nov. 4, 1978, 92 Stat. 2525, and amended Pub.L. 98-497, Title I,
§ 107(b)(7), Oct. 19, 1984, 98 Stat. 2287.)

<Nov. 1, 2001, 66 F.R. 56025>

44 U.S.C.A. § 2204, 44 USCA § 2204

END OF DOCUMENT

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44 U.S.C.A. § 2207 Page 1

Effective:[See Text Amendments]

United States Code Annotated Currentness

Title 44. Public Printing and Documents (Refs & Annos)
Chapter 22. Presidential Records (Refs & Annos)
§ 2207. Vice-Presidential records

Vice-Presidential records shall be subject to the provisions of this chapter in the same manner as
Presidential records. The duties and responsibilities of the Vice President, with respect to
Vice-Presidential records, shall be the same as the duties and responsibilities of the President under
this chapter with respect to Presidential records. The authority of the Archivist with respect to
Vice-Presidential records shall be the same as the authority of the Archivist under this chapter with
respect to Presidential records, except that the Archivist may, when the Archivist determines that
it is in the public interest, enter into an agreement for the deposit of Vice-Presidential records in
a non-Federal archival depository. Nothing in this chapter shall be construed to authorize the
establishment of separate archival depositories for such Vice-Presidential records.

CREDIT(S)

(Added Pub.L. 95-591, § 2(a), Nov. 4, 1978, 92 Stat. 2527.)

44 U.S.C.A. § 2207, 44 USCA § 2207

END OF DOCUMENT

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