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FITTON: Obama can’t keep a secret

Court orders White House to release visitor logs

- The Washington Times - Friday, September 23, 2011

In an embarrassing defeat for the Obama administration, a federal court ruled on Aug. 17 that Secret Service White House visitor logs are agency records subject to disclosure under the Freedom of Information Act. U.S. District Judge Beryl A. Howell issued the decision in a lawsuit filed by Judicial Watch.

Here is the bottom line: The Obama administration will now have to release all records of all visitors to the White House or explain why White House visits should be kept secret under law.

Judicial Watch asked the court to order the release of Secret Service logs of White House visitors from Jan. 20, 2009, to Aug. 10, 2009. The Obama administration's principal argument had been that the logs were not "agency" records subject to the Freedom of Information Act (FOIA).

Just in case that argument didn't hold water, administration lawyers took a kitchen-sink approach in attempting to stop the lawsuit, asserting a number of other arguments regarding why those records should not be released. The court struck them all down, one by one:

c The administration argued that the visitor logs are not "agency" records subject to FOIA. The court applied a standard "two-part" test, and ultimately concluded that "the Secret Service argues that it is unable to dispose of the records freely because they are ultimately White House records and not agency records. This argument is circular. The claimed restrictions on disposal stem from the defendant's assumption that the documents are under Presidential control - the exact point that the defendant seeks to prove to establish that the documents are not subject to FOIA."

As Judicial Watch noted in its original complaint, the Obama administration's claim "has been litigated and rejected repeatedly." The court noted precedent in its ruling: "This Court agrees with the conclusions of the other judges in this District that have considered this question and finds that the records are subject to FOIA."

c The administration argued that Judicial Watch's request was too massive and broad and could not be processed. Judge Howell was unconvinced. "While the Court is sensitive to the burdens raised by the plaintiff's broad brush request for 'all' records of a certain type over a nine-month period, including the need to review such records for applicable exemptions, the Court is not persuaded that the plaintiff's request requires a blanket rejection."

c The administration argued that Judicial Watch's request would raise constitutional "separation of power" issues. Judge Howell ruled, "The Court is skeptical of the underlying premise that the inclusion of [visitor logs] under FOIA raises any serious constitutional problems ... since the statutory language is unambiguous in relation to this issue, and the FOIA has built-in exemptions that mitigate the risk of the precise separation of powers concerns the defendant raises, the Court rejects defendant's interpretive argument."

c The administration argued that Judicial Watch's request raises national security concerns. The court noted, "At no point does the Secret Service assert, however, that there are not at least some records implicated by plaintiff's FOIA request that could be easily searched for, separated out, and disclosed without raising national security concerns."

Ultimately, Judge Howell concluded that "the proper course of action by the Secret Service is duly to process [Judicial Watch's] FOIA request, disclose all segregable, nonexempt records, and then assert specific FOIA exemptions for all records it seeks to withhold." In other words, release or explain.

Back in September 2009, the Obama administration made a big deal out of its new policy to release the visitor logs voluntarily. But here's the reality of the situation: The White House insisted that it could release visitor information at its own discretion, the timing and specifics of which were not subject to court review. And despite White House misinformation to the contrary, tens of thousands of visitor logs are being withheld from disclosure by the Obama administration.

But now, thanks to a decision by a judge Mr. Obama himself appointed, these records are subject to disclosure under the Freedom of Information Act. This is a key victory in the battle for transparency - a battle on which the president was on the wrong side.

Tom Fitton is president of Judicial Watch.

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