Inconsistent Access to Visitor Logs Back in the Spotlight, NSArchive Busboys and Poets Event, and More: FRINFORMSUM 1/19/2023

President Biden Does Not Keep Visitor Logs for Private Residence, in Keeping with Trump’s Practice

The Biden administration announced this week that it maintains no visitor logs for President Biden’s personal residence. The news comes in response to a request for the logs from House Republicans following the discovery of classified records at the president’s home. The practice, or lack thereof, of not chronicling official visits to a president’s private residence may be an oversight, but it is not one unique to Biden. The National Security Archive learned during the course of its lawsuit for the Trump visitor logs that the Trump administration had no system for keeping track of presidential visitors at Mar-a-Lago, or any of the other Trump properties, where the president regularly conducted business. 

White House visitor logs are created by the Secret Service and are not currently subject to Freedom of Information Act (FOIA) requests, despite the fact that they are agency-created records that provide the public a window into information to which it is fundamentally entitled – who seeks to influence the most powerful person in government. The Obama administration, after a 2009 settlement with Citizens for Responsibility and Ethics in Washington (CREW) concerning the visitor logs, agreed to post the records voluntarily 90 – 120 days after the visits took place (with some exceptions). The Obama White House ultimately posted nearly 6 million rows of data on who visited the president, without any compromise to personal privacy or national security. The records allowed journalists and citizens to track lobbyists and interest groups, and even determine the relative influence of, for instance, Google, versus the other tech companies. 

A suit brought by Judicial Watch seeking a binding determination on access to White House visitor logs under the FOIA ultimately resulted in a 2013 appeals court decision, authored by current Attorney General Merrick Garland, that found “the president’s constitutional right to confidential communications means FOIA doesn’t apply to visitor logs kept by the Secret Service, even though a standard four-factor analysis of whether the logs are ‘agency records’ subject to FOIA was favorable to Judicial Watch.”

President Trump immediately reversed the Obama practice of voluntarily posting the logs, prompting a FOIA lawsuit brought by the National Security Archive, together with CREW and the Knight First Amendment Institute at Columbia University.  The 2nd Circuit Court of Appeals ultimately ruled against us, focusing on the ostensible intrusion on a president’s ability to receive confidential advice. Despite this short-sighted ruling, the public has at last gotten a glimpse of the Trump-era logs. Recent Trump visitor logs released by the January 6 select committee, covering a handful of critical days surrounding the siege of the Capitol, “capture key moments pertaining to the Jan. 6 probe, such as the Oval Office meeting on Dec. 18, in which outside advisers, including Sidney Powell and Patrick Byrne, discussed the prospect of seizing voting machines.”

President Biden has resumed the Obama practice of voluntarily publishing visits to the White House complex, and they can be reviewed here. 

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How to Rein in Overclassification: Simplify, Automate, and Fund Declassification 

The discovery of classified records at several Biden sites has spawned a bevy of opinion pieces on how to further prevent such embarrassing and potentially compromising discoveries, namely be reducing overclassification. Some excellent reads include:

• Professor Matthew Connelly’s New York Times piece, “Why Do Documents Marked Secret Keep Showing Up in Strange Places?” My favorite suggestion is the following: “A rule with real teeth would require departments and agencies to match spending on public relations and advertising — in the case of the Pentagon, some $600 million a year — with spending on reviewing and releasing formerly secret information to the public.”
• The Washington Post’s Editorial Board opinion, “Another scandal regarding classified material: There’s too much of it,” says “The whole system needs to be fixed, and its dysfunction should not be ignored for another decade.”
• Josh Meyer’s USA Today article, “Biden and Trump documents expose wider problem: Missing classified records not uncommon,” which pays close attention to the serious funding and staffing problems plaguing NARA. 

Generally speaking, the best bet to reduce overclassification (in a world where it would be politically feasible to do so) would be to: simplify the classification system, eliminating the “confidential” category, as suggested in the most recent report to the president by the Information Security Oversight Office, and adopting a more manageable two-tiered system; automate declassification and fulfill the requirement of the current executive order on classified national security information (EO 13526): and fund declassification programs, namely by investing in AI and other technological modernization. 

That said, the Biden and Trump situations also highlight the equally urgent need to reform both the Presidential Records Act, and ensure that the White House also works with the National Archives (NARA) to appropriately prepare for transitions, much the same way agencies are required to do under the Presidential Transition Improvement Act of 2015. 

Law Enforcement Access to Huge Money Transfer Database Without Court Oversight A Cause for Concern

More than 600 federal, state, and local law enforcement entities purportedly have access to the public Transaction Record Analysis Center (TRAC) database containing information on more than 150 million money transfers between people the U.S. and abroad – all without court oversight.  (This TRAC is not to be confused with the Transactional Records Access Clearinghouse, which regularly publishes excellent FOIA data.) The Wall Street Journal exclusive, which is based on documents obtained by Senator Ron Wyden’s office and internal records obtained by the ACLU, notes that TRAC, a nonprofit established in 2014 by the Arizona state attorney general’s office, notes that the data includes personal information, like full names of both the sender and recipient and the amount of money sent (there is a minimum threshold of $500 to be captured in the database) – information that usually requires a warrant or subpoena to access. Agencies can search for information without a warrant, and the database “could be used to scan for categories such as ‘Middle Eastern/Arabic names’ in bulk transaction records.” The database can also capture domestic money transfers, including when “an American living in a border state” sends money to an American elsewhere in the United States. 

Join the Archive’s Kate Doyle at Busboys and Poets on January 26 to Discuss the Ayotzinapa Disappearances

Kate Doyle, along with colleagues Anayansi Díaz-Cortes, from Reveal from the Center for Investigative Reporting, Mexican human rights lawyer Omar Gómez Trejo, and the director of the Washington Office on Latin America (WOLA), Stephanie Brewer, will be holding a panel discussion at Busboys and Poets in Washington, D.C. on January 26. The conversation will concern the 2014 forced disappearance of 43 Mexican college students, the “After Ayotzinapa” podcast, and the new investigation. Register for the event here.