MANHATTAN (CN) — The Second Circuit upheld a ruling Monday that records of who has visited President Donald Trump’s White House and private Florida resort are exempt from government watchdog groups’ Freedom of Information Act requests.
Trump has referred to his Mar-a-Lago club in Palm Beach, Florida, as the "Southern White House" — and it's where he's hosted foreign leaders like President Xi Jinping of China, directed the launch of a strike against a Syrian airbase and recently welcomed Brazilian President Jair Bolsonaro for dinner during the Covid-19 global pandemic.
In a 22-page opinion, a three-judge Second Circuit panel found the Secret Service’s electronic visitor records for the White House Complex and Mar-a-Lago do not qualify as “agency records” that are subject to public release under the Freedom of Information Act.
Disclosure the visitor log under the act threatens the president’s “constitutional prerogative of maintaining secrecy,” the panel found
“Though certainly not without limits, that prerogative serves under the circumstances of this case to ensure that the President receives frank and honest advice,” U.S. Circuit Judge Raymond Lohier Jr. wrote for the panel, affirming a lower court finding that the agency properly withheld the records from FOIA requests.
“Compelled disclosure of the visitor logs would affect a president’s ability to receive unfettered, candid counsel from outside advisors and leaders, both domestic and foreign, who were aware that their visits to the White House would be subject to public disclosure,” added Lohier, an Obama appointee.
The opinion shoots down FOIA claims brought by the Washington-based Citizens for Responsibility and Ethics in Washington, or CREW, who filed a lawsuit in Manhattan federal court in April 2017, seeking to restore daylight over months of these records.
The Obama administration began releasing White House visitor logs in September 2009 to settle four lawsuits brought by CREW.
Responding to the opinion on Monday afternoon, a CREW spokesperson said the group is “obviously disappointed with today's ruling.”
“We believe it is of the utmost importance that Americans know who is meeting with their president, and we will continue to work, as we have for more than a decade, to ensure a more transparent government,” communications director Jordan Libowitz said in a statement.
The watchdog group sought electronic records maintained by the Secret Service that included the names of expected White House visitors, their date of birth, and Social Security number; the date, time, and location of the planned visit; the name of the White House Complex employee who notified the Secret Service of the impending visit; and the name of the person to be visited.
CREW was joined in their FOIA suit by the Knight First Amendment Institute, a press-advocacy group at Columbia University; the National Security Archive, a Washington-based nonprofit; and the archive’s senior analyst Kate Doyle.
In July 2018. U.S. District Judge Katherine Polk Failla granted the Department of Homeland Security’s motion to dismiss in full.
In her 70-page opinion, Failla, an Obama appointee, agreed with the Secret Service that the logs were not agency records subject to FOIA and ruled that the agency were within their rights to retain the records.
CREW was represented on their appeal by their chief in-house counsel Anne Weisman, who argued that the requested logs qualified as “agency records” under Supreme Court interpretation of FOIA that held applicable records would be those “created or obtained” by an agency “in the legitimate conduct of its official duties.”
“First, the Secret Service actually ‘created or obtained’ the electronic records: they reside on computer servers located at Secret Service headquarters, and Secret Service personnel operate those servers,” she wrote in a January 2019 appeals filing.
“Second, the Secret Service obtained the WAVES and EFACS records in performing its core statutory function to protect the president and the White House complex by performing background checks on White House visitors and verifying a visitor’s admissibility at the time of the visit,” Weisman added.
Lohier was joined by U.S. Circuit Judge Michael H. Park, a Donald Trump appointee, and Senior U.S. Circuit Judge Guido Calabresi, who was appointed by Bill Clinton 1994.
The Second Circuit also concluded that plaintiffs failed to state claims under Presidential Records Act (PRA) and the Federal Records Act (FRA) and denied the plaintiffs’ request for leave to amend their complaint.
Enacted in 1978, four years after President Richard Nixon resigned amid the Watergate scandal, the Presidential Records Act established ownership of presidential and vice presidential records.
It imposed record-keeping requirements on the president and vice president and authorizes the National Archives and Records Administration to preserve and make presidential records publicly available.
Jane Kirtley, a professor of media ethics at University of Minnesota Law School said in an interview Monday that the opinion exemplifies a reluctance of many federal judges to construe FOIA expansively, as well as their general deference to the presidency.
“It reflects the constitutional tension between the White House's autonomy and Congress's necessary oversight,” she said.
“That's the perennial problem: judges have been vilified for creating law, and therefore, many of them are hesitant to go beyond plain language, even if failing to do so means they aren't honoring the drafters' intent,” Kirtley said in an email. “If Congress hasn't made clear that these kinds of logs are ‘agency records,’ judges are reluctant to construe the statute to say that they are.”
In a separate interview Monday, David Cuillier, president of the National Freedom of Information Coalition and a professor at the University of Arizona School of Journalism, said the ruling demonstrates the “legal machinations and loopholes” that can allow the president to conceal information that was provided by the previous administration and “has huge importance to understand who is influencing our government.”
“What’s ironic is that President Obama’s administration, in many ways, was more secretive than any other in modern history, and journalism groups complained mightily about that, including overzealous controls on information and poor response to FOIA requests. But at least Obama provided visitor logs,” Cullier said. “Now it appears that the Trump administration is the most secretive in modern history, and usually bad things happen when governments go secret.”
“If Obama could do it, seems like President Trump could, too. What does he have to hide?” Cullier added.
A three-year FOIA fight brought the government watchdog group Public Citizen found that U.S. Secret Service — and by extension, taxpayers — has been billed at least $628,000 by Trump’s clubs and properties, including Mar-a-Lago, since he took office in 2017.
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