Freedom of (Some) Information: Judicial Watch v. U.S. Secret Service and the Balance between Open Information and Confidentiality

September 17, 2013

Tuesday, September 17, 2013, by Ikee Gardner
The U.S. Secret Service – responsible for protecting the safety of the President, Vice President, their families, and various other distinguished visitors to the United States – is usually the subject of news stories concerning its noteworthy investigative operations.  Offering thorough security and protection to prominent politicians and their families both inside and outside of the White House, the Secret Service is a well-known but somewhat veiled entity.  Some organizations believe that this veil is inappropriate and that there should be greater freedom of information concerning the inner workings of the Secret Service and of the White House itself.  In the recently decided case Judicial Watch, Inc. v. U.S. Secret Service, Judicial Watch (a legal activist group) sued the U.S. Secret Service, alleging that White House visitor logs should be opened to the public under the Freedom of Information Act (FOIA).  The D.C. Court of Appeals decided that some visitor logs must be opened to the public, whereas others (visitor logs from offices which are themselves subject to FOIA) will remain closed.  The decision walked the middle of the road between acknowledging the importance of freedom of information and properly establishing the need for restricted access to certain types of information.  A veil over the detailed workings of the Secret Service benefits the politicians and dignitaries protected by the Secret Service, and allows the Secret Service to offer them security and safety.
In Judicial Watch, Inc. v. U.S. Secret Service, Judicial Watch alleged that the Secret Service should grant access to the records of every visitor to the White House Complex over seven months as “agency records” under FOIA.  The Court of Appeals acknowledged that this was a difficult case because there is no concise decision of “agency record” in FOIA.  The U.S. Justice Department characterizes an ”agency record” as a record in the possession of a government agency and must be made available to any person under FOIA.  Prior to the current case, White House visitor records were not considered “agency records” but “Presidential Records” not subject to FOIA.  In the current case, the Court of Appeals ruled that construing the term “agency records” to include visitor logs would potentially severely compromise the President’s ability to meet with various dignitaries or officials in a confidential manner.  The decision established that visitor logs and the President’s schedule were not subject to FOIA, but that FOIA requests for visitor logs would be granted for visitors to specific offices subject to FOIA.

 Judicial Watch opens up key issues of the tension between government accountability and the security of government records necessary for high-ranking public officials to do their jobs.

The case represented a compromise between the U.S.’ interest in the safety, security, and efficiency of the President’s ability to meet with dignitaries and officials, and the push from certain public groups and organizations for more freedom of information.  In its mission statement, Judicial Watch identifies itself as a “a conservative, non-partisan educational foundation, promotes transparency, accountability and integrity in government, politics and the law.” Judicial Watch says that it provides training on making FOIA requests in order to achieve “goals of accountability and openness in government.”  While government accountability is a hallmark of democracy to an extent, open access to every dignitary who has visited the White House as well as the President’s schedule is not beneficial to the safety of the Executive office.
Although the decision represented a compromise, Judicial Watch was not happy with the decision.  The President of Judicial Watch stated that his organization would be seeking an appeal.  A number of other major media companies backed Judicial Watch in their lawsuit.  According to Judicial Watch’s website, this list included Bloomberg.com, CBS Broadcast Inc., Dow Jones & Company Inc., Gannett, Co. Inc., the McClatchy Company, the National Association of Broadcasters; National Public Radio, and the Washington Post, indicating that a large number of media organizations desire greater transparency from government.
The Court of Appeals could have used a different method to compromise with groups like Judicial Watch and media company backers – for example, deciding upon a delayed release of the confidential information   The Court of Appeals could have decided upon release of all White House visitor logs a minimum of 1 year after the visit occurred, or any length of time which the Court of Appeals found suitable.  Since the Secret Service has “no continuing interest” in visitor log information after the visit has occurred, a system of delayed-release of the visitor logs may have been a better way to resolve this case.  Releasing the information after, for example, a 1 year delay preserves the integrity of the Secret Service system of arranging the President’s calendar and schedule, while still opening up the visitor logs to public access.
A decision to make all visitor logs available after a stated period of time may have been a more effective compromise than the White House’s Voluntary Disclosure policy.  In the initial stages of the case, the White House’s response to Judicial Watch was that Judicial Watch could access visitor logs through its the Voluntary Disclosure Policy.  The White House Voluntary Disclosure policy says that visitor logs will be made available 90-120 days after the visit took place.  However, the Voluntary Disclosure policy did not cover records between January 20, 2009 and September 15, 2009 (the first 8 months of President Obama’s term in office), the time period of visitor logs which Judicial Watch sought.  A decision releasing all records after a 1-year delay would have eliminated Judicial Watch’s specific concern regarding the initial 7 months of the President’s term in office.
Judicial Watch opens up key issues of the tension between government accountability and the security of government records necessary for high-ranking public officials to do their jobs. In Judicial Watch, quoting the case Cheney v. U.S. Dist. Court, the DC Court of Appeals said that the Executive “has a constitutional prerogative to maintain the autonomy of its office and safeguard the confidentiality of its communications.”  Should policy drive the legal decision in this case, or should the legal decision drive the policy?  Openness and accountability are key aspects of democracy and of a government that represents its people.  However, It is not possible to offer security and safety if the mechanisms of the Secret Service, the President’s calendar, and the President’s schedule are known to the public.  In order for the Executive branch to do its job, a balance is required between openness and confidentiality.