RTDNA Participates As Amicus Curiae In Appeal of FOIA Decision by U.S. Secret Service

By Kathleen A. Kirby and Maria L. Mullarkey, Wiley Rein LLP

On May 8, 2012, RTDNA along with a group of media organizations filed a brief as amici curiae in support of Judicial Watch, Inc. urging the U.S. Court of Appeals for the District of Columbia Circuit to uphold a lower court decision finding that White House visitor logs are agency records subject to the Freedom of Information Act (FOIA).  Judicial Watch, Inc. v. United States Secret Service, Case No. 11-5282 (D.C. Cir.).   

In 2009, the U.S. Secret Service denied Judicial Watch, Inc.’s FOIA request seeking access to official visitor logs and records concerning visits made to the White House, claiming that the requested records were not agency records subject to FOIA, but instead were presidential records governed by the Presidential Records Act.  Judicial Watch challenged the Secret Service’s denial in an administrative appeal letter, and subsequently filed suit in the U.S. District Court for the District of Columbia Circuit.  The court ruled in favor of Judicial Watch, holding that the requested visitor logs and related records are indeed agency documents subject to FOIA.  Judicial Watch, Inc. v. United States Secret Service, 803 F. Supp. 2d 51 (D.D.C. Aug. 17, 2011).  The Secret Service appealed the district court decision, again invoking the Presidential Records Act, national security concerns, and the purported burden of searching and producing the White House visitor logs pursuant to the FOIA request. 

In their brief, RTDNA and fellow amici provide the court with the media’s perspective on the critical role that FOIA plays in ensuring an informed citizenry vital to the functioning of our democracy, bolstering public confidence in government, and holding government accountable for its actions through openness and transparency.  Permitting the Secret Service to end-run the statutory requirements of FOIA, the brief argues, would significantly reduce information available to the media and, consequently, to the public and degrade the ability to assess government conduct, contrary to the history and purpose of the statute.  Further, the Secret Service’s attempt to shift the White House visitor logs beyond FOIA’s reach by redesignating them as presidential records is contrary to the Presidential Records Act, which likewise is intended to increase government transparency and preserves FOIA’s applicability to agency documents.  The Secret Service’s conclusory contention that disclosure of the visitor logs will threaten national security should not be used a means to avoid FOIA obligations, as any legitimate concerns about national security or confidentiality can be raised in the context of the enumerated exemptions to FOIA.

Fellow amici curae on the brief include Bloomberg L.P., CBS Broadcasting Inc., Dow Jones & Company, Inc., Gannett Co., Inc., The McClatchy Company, National Association of Broadcasters, National Freedom of Information Coalition, National Public Radio, The Newspaper Guild – CWA, The Reporters Committee for Freedom of the Press, and The Washington Post.