Case 18-2814 Document 60 05 15 2019 2564907 Page1 of 38 RECORD NO 18-2814 To Be Argued By ANNE L WEISMANN In The United States Court of Appeals For The Second Circuit KATE DOYLE NATIONAL SECURITY ARCHIVE CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON KNIGHT FIRST AMENDMENT INSTITUTE AT COLUMBIA UNIVERSITY Plaintiffs – Appellants v UNITED STATES DEPARTMENT OF HOMELAND SECURITY Defendant – Appellee ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK REPLY BRIEF OF APPELLANTS Anne L Weismann Conor M Shaw CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON 1101 K Street NW Suite 201 Washington DC 20005 202 408-5565 Alexander Abdo Jameel Jaffer KNIGHT FIRST AMENDMENT INSTITUTE AT COLUMBIA UNIVERSITY 475 Riverside Drive Suite 302 New York New York 10115 646 745-8502 Counsel for Plaintiffs - Appellants Counsel for Plaintiffs - Appellants THE LEX GROUP  1108 East Main Street  Suite 1400  Richmond VA 23219 804 644-4419  800 856-4419  Fax 804 644-3660  www thelexgroup com Case 18-2814 Document 60 05 15 2019 2564907 Page2 of 38 TABLE OF CONTENTS Page TABLE OF AUTHORITIES iii INTRODUCTION 1 ARGUMENT 4 I The government’s atextual interpretation of “agency records” would create a sweeping tenth exemption to FOIA and undermine FOIA’s structure and purpose 4 II The government’s interpretation of “agency records” is inconsistent with the Supreme Court’s decision in Tax Analysts II 6 III Treating the Secret Service’s visitor records as presidential records would upend the statutory scheme Congress created which defines “agency records” by reference to their function 11 IV Permitting the White House to contract around the disclosure requirements of FOIA would usurp Congress’ legislative power and raise more significant separation-of-powers concerns than it resolves 17 V Plaintiffs’ Administrative Procedure Act claims should be reinstated 25 VI To the extent that Plaintiffs’ allegations are technically deficient Plaintiffs should be permitted to amend the complaint to include extrinsic evidence establishing the justiciability of Plaintiffs’ claims 28 CONCLUSION 29 i Case 18-2814 Document 60 05 15 2019 2564907 Page3 of 38 CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE ii Case 18-2814 Document 60 05 15 2019 2564907 Page4 of 38 TABLE OF AUTHORITIES Page s CASES Armstrong v Bush 924 F 2d 282 D C Cir 1991 Armstrong I 26 29 Armstrong v EOP 1 F 3d 1274 D C Cir 1993 Armstrong II 25 26 27 29 Clark v Martinez 543 U S 371 2005 24 Consumer Fed’n of Am v Dep’t of Agriculture 455 F 3d 283 D C Cir 2006 8 11 Grand Cent Partnership v Cuomo 166 F 3d 473 2d Cir 1999 11 In re Sealed Case 121 F 3d 729 D C Cir 1997 5-6 Judicial Watch Inc v Dep’t of Justice Inc 365 F 3d 1108 D C Cir 2004 5 Judicial Watch Inc v U S Secret Service 726 F 3d 208 D C Cir 2013 passim Kissinger v Reporters Comm for Freedom of the Press 445 U S 136 1980 21 Mackey v Lanier Collection Agency Serv Inc 486 U S 825 1983 5 iii Case 18-2814 Document 60 05 15 2019 2564907 Page5 of 38 Main Street Legal Services v Nat’l Sec Council 811 F 3d 542 2d Cir 2016 11 14 Makarova v United States 201 F 3d 110 2d Cir 2000 27 Marx v Gen Revenue Corp 568 U S 371 2013 5 NLRB v Robbins Tire Rubber Co 437 U S 214 1978 5 Soucie v David 448 F 2d 1067 D C Cir 1971 passim U S Dep’t of Justice v Tax Analysts 492 U S 136 1989 “Tax Analysts II” passim Youngstown Sheet Tube Co v Sawyer 343 U S 579 1952 18 24 CONSTITUTIONAL PROVISION U S CONST art § I 18 STATUTES 5 U S C § 551 1 13 5 U S C § 552 18 5 U S C § 552 a 3 10 5 U S C § 552 b 19 5 U S C § 552 a 8 A 20 iv Case 18-2814 Document 60 05 15 2019 2564907 Page6 of 38 5 U S C § 552 f 1 13 5 U S C § 552 f 2 A 13 18 U S C § 3056 18 18 U S C § 3056 a 19 28 U S C § 1653 28 44 U S C § 3101 25 44 U S C § 3102 25 44 U S C § 3105 25 44 U S C § 3301 7 44 U S C § 3314 25 RULE Fed R Civ P 12 b 1 27 OTHER AUTHORITIES H R 2395 82nd Cong 1951 18 H R Rep No 1380 93d Cong 2d Sess 14 1974 14 21 Pub L No 82–79 § 4 65 Stat 121 1951 19 Pub L No 98–587 98 Stat 3110 1984 19 v Case 18-2814 Document 60 05 15 2019 2564907 Page7 of 38 INTRODUCTION The government’s interpretation of the term “agency records” would create a sweeping new exception to the Freedom of Information Act “FOIA” for records that the White House decides – by the mere stroke of a pen – should be deemed under the “control” of the president even if obtained and relied upon by federal agencies in the conduct of their official duties The government’s construction of FOIA however contradicts the statute’s text and structure controlling Supreme Court precedent interpreting “agency records ” and the legislative history of that term These sources of statutory interpretation all reflect a clear congressional intent that “agency records” be defined by reference to the relationship of the record in question to the agency in possession of it rather than by the nature of the information contained within it Applying this definition yields the unmistakable conclusion that the requested visitor records are agency records of the Secret Service As explained below the government’s arguments to the contrary lack merit First the text and structure of FOIA reflect Congress’ intent that the term “agency records” apply broadly and that any legitimate interests in secrecy be accommodated by nine carefully enumerated exemptions to disclosure The government’s interpretation would effectively inject a tenth exemption into the term “agency records” for an amorphous category of “presidential schedule Case 18-2814 Document 60 05 15 2019 2564907 Page8 of 38 information ” And while the government claims that requiring the Secret Service to disclose its visitor records would invade presidential prerogatives it has yet to explain why FOIA’s existing nine exemptions – including the protection for presidential communications recognized in Exemption 5 – would not sufficiently protect any legitimate interests it has in secrecy Second the Supreme Court already has defined the term “agency records” in a manner that is consistent with the text and structure of FOIA In U S Dep’t of Justice v Tax Analysts 492 U S 136 141 1989 “Tax Analysts II” the Court established a two-part test for “agency records” that considers an agency’s possession of and control over the records The records Plaintiffs seek here readily satisfy both criteria they were created or obtained by the Secret Service and came into its possession in the legitimate course of one of its official statutory duties – protecting the president The line of D C Circuit cases on which the government instead relies predates Tax Analysts II and defines “agency records” based primarily on the intent of each record’s author an approach Tax Analysts II rejects Third the Supreme Court’s interpretation of “agency records” is consistent with FOIA’s legislative history Through the 1974 amendments to FOIA Congress knowingly and affirmatively elected to make all the records of agency components of the Executive Office of the President “EOP” subject to FOIA’s disclosure requirements even if created by those components in their capacities as 2 Case 18-2814 Document 60 05 15 2019 2564907 Page9 of 38 presidential advisers With this expanded agency definition Congress established that “agency record” status depends on the entity that created or obtained the record not on the content of the information in it Congress’ exclusion of certain EOP components from FOIA’s reach reflects an intent to protect the president and his advisors from the day-to-day intrusion that compliance with FOIA’s processes would impose Congress did not however seek to protect presidential information that made its way into agency records except through FOIA’s exemptions Fourth accepting the government’s interpretation of “agency records” would raise substantial separation-of-powers concerns by permitting the executive branch to contract its way around the broad mandate of disclosure Congress enacted through FOIA Specifically accepting Defendant’s theory of the case would allow the president to shield information from public disclosure simply by entering into memoranda of understanding that purport to give the president control over records obtained by an agency in the legitimate conduct of its official duties Finally the district court’s dismissal of Plaintiffs’ Federal Records Act claims also should be reversed The Amended Complaint plainly states plausible violations of the statute and evidence entered into the record by Defendant reinforces Plaintiffs’ allegations 3 Case 18-2814 Document 60 05 15 2019 2564907 Page10 of 38 ARGUMENT I The government’s atextual interpretation of “agency records” would create a sweeping tenth exemption to FOIA and undermine FOIA’s structure and purpose The government’s interpretation of “agency records” effectively would create an amorphous and sweeping tenth exemption to FOIA that the president could invoke at will to remove whole categories of records from FOIA’s reach In arguing that the requested visitor records are not agency records of the Secret Service the government relied in part on two memoranda of understanding as evidence of the president’s control over and ongoing interest in the records They include a 2006 MOU entered into by the White House and Secret Service purportedly to memorialize White House control over the visitor records Gov’t Br at 10-11 33 and a 2015 MOU the government cited as evidence that the president maintains “exclusive ownership control and custody” of the requested records id at 35 The district court also relied on this evidence characterizing the 2015 MOU as “reinforce ing the conclusion that WAVES and ACR records are within the control of the White House rather than the Secret Service ” Op Order JA 162 Unless overturned the government’s interpretation of “agency records ” effectively adopted by the district court would give the president vast authority to invalidate FOIA’s application to entire categories of records through memoranda of understanding declaring them records of the president and that required 4 Case 18-2814 Document 60 05 15 2019 2564907 Page11 of 38 subordinate agencies to surrender all control over such records Empowering the White House to determine FOIA’s reach would subvert FOIA and run directly contrary to its goal of “ensur ing an informed citizenry vital to the functioning of a democratic society needed to check against corruption and to hold the governors accountable to the governed ” NLRB v Robbins Tire Rubber Co 437 U S 214 242 1978 This approach also would render the presidential communications privilege entirely superfluous at least in the FOIA context violating a canon of statutory construction See Mackey v Lanier Collection Agency Serv Inc 486 U S 825 837 1983 “ W e are hesitant to adopt an interpretation of a congressional enactment which renders superfluous another portion of that same law ” see also Marx v Gen Revenue Corp 568 U S 371 386 2013 “ T he canon against surplusage is strongest when an interpretation would render superfluous another part of the same statutory scheme ” Exemption 5 of FOIA includes within its scope the constitutionally-based presidential communications privilege which protects “documents ‘solicited and received’ by the President or his immediate White House advisors who have ‘broad and significant responsibility for investigating and formulating the advice to be given to the President ’” Judicial Watch Inc v Dep’t of Justice Inc 365 F 3d 1108 1113-1114 D C Cir 2004 quoting In re Sealed Case 121 F 3d 729 752 5 Case 18-2814 Document 60 05 15 2019 2564907 Page12 of 38 D C Cir 1997 The government’s interpretation of “agency records” would make this privilege entirely gratuitous Where now the government must satisfy the presidential communications privilege to withhold White House communications under the government’s theory the White House could recharacterize any agency records it wishes as presidential through the stroke of a pen This would hand the president a tool that would allow him to bypass any need to make a privilege showing creating a withholding power that would swallow FOIA’s mandatory disclosure requirements and its limited exemptions II The government’s interpretation of “agency records” is inconsistent with the Supreme Court’s decision in Tax Analysts II Plaintiffs’ opening brief explained that the Supreme Court’s interpretation of the term “agency records” controls this case and dictates reversal of the district court’s decision In Tax Analysts II the Supreme Court defined that statutory term in deciding the question – also presented here – of whether records that “had originated in a part of the Government not covered by the FOIA ” 492 U S at 141 constituted “agency records ” The Court reviewed its prior precedent on the question and from that precedent distilled “ t wo requirements each of which must be satisfied for requested materials to qualify as ‘agency records ’” Id at 144 First the agency must have “either create d or obtain ed ” the records Id Interpreting “agency records” to extend to records “obtain ed ” by an agency would the Court explained serve “Congress’ desire to put within public reach the 6 Case 18-2814 Document 60 05 15 2019 2564907 Page13 of 38 information available to an agency in its decision-making processes ” Id Second “the agency must be in control of the requested materials ” Id at 145 The Court immediately defined the term “control” “By control we mean that the materials have come into the agency’s possession in the legitimate conduct of its official duties ” Id The Court explained that this capacious definition of “control” would harmonize the definition of “agency record” under FOIA with the definition of “records” under the Records Disposal Act as those “made or received by an agency in connection with the transaction of public business ” Id quoting 44 U S C § 3301 internal quotation marks omitted In short the Supreme Court defined “agency records” broadly to include all records in an agency’s possession obtained in the conduct of the agency’s official duties And the Court did so to serve Congress’ clear purpose of exposing the government’s conduct of its official duties to public scrutiny As explained in Plaintiffs’ opening brief the Supreme Court’s definition of “agency records” easily resolves this case Pls’ Br at 19-20 The Secret Service created or obtained the visitor records in the legitimate conduct of its official statutory duties and those records are therefore “agency records ” FOIA’s exemptions may justify withholding some of them from Plaintiffs but the records clearly are “agency records” under the Supreme Court’s controlling interpretation of that term 7 Case 18-2814 Document 60 05 15 2019 2564907 Page14 of 38 In response the government relies on a line of D C Circuit cases predating Tax Analysts II that hold that agency “control” of a record must be determined by looking to the “intent” of the record’s author Gov’t Br at 27-30 but that interpretation of “control” simply cannot be reconciled with Tax Analysts II The Supreme Court’s definition of “control” turns not on intent but on an objective inquiry into the relationship between the record and the agency’s official duties And in fact the Supreme Court expressly rejected reliance on the author’s intent in defining “agency records ” because intent has no basis in FOIA’s text Tax Analysts II 492 U S at 147-48 The D C Circuit itself has recognized this conflict between Tax Analysts II and its caselaw requiring consideration of “intent ” In Consumer Fed’n of Am v Dep’t of Agriculture 455 F 3d 283 D C Cir 2006 both the majority and the concurrence highlighted the tension See id at 290 n 11 “We focus on the manner in which the documents were used rather than on the subjective ‘intent of the creator of the document ’ because the Supreme Court has rejected reliance upon the latter ” id at 294 Henderson J concurring The government argues that Tax Analysts II did not resolve “whether an agency’s receipt of a record in the conduct of its official duties would be sufficient to demonstrate control when another entity not subject to FOIA asserts control of the record ” Gov’t Br at 39 but that is precisely what Tax Analysts II considered and resolved In that case the Supreme Court noted that the records at issue “had 8 Case 18-2814 Document 60 05 15 2019 2564907 Page15 of 38 originated in a part of the Government not covered by the FOIA ” 492 U S at 141 and considered the government’s argument that the definition of “agency records” should account for the intent of a record’s author as to the agency’s use of the record id at 147-48 The Court rejected that argument holding that “ s uch a mens rea requirement is nowhere to be found in FOIA ” Id at 147 It is of course true that the records at issue here are not the same as the records at issue in Tax Analysts II but the Supreme Court’s definition of “control” leaves no room for the extra-textual limitation the government’s definition of that term would impose The government disputes this last point claiming that the mens rea to which the Supreme Court referred in Tax Analysts II is different from the mens rea on which the government’s interpretation in this case relies Gov’t Br at 40 But this too is incorrect Tax Analysts II rejected consideration of the intent of a record’s author as to how the record would be used 492 U S at 147-48 and an assertion of control is simply a way of limiting use That is considering an author’s intent to retain control of a record is no different than considering an author’s intent that the record be used in a particular way In any event the Supreme Court’s rejection of intent as a proper consideration did not turn on the precise nature of the intent it turned on the lack of a textual foundation in FOIA for the consideration of intent of any kind Id 9 Case 18-2814 Document 60 05 15 2019 2564907 Page16 of 38 Finally the government relies on the D C Circuit’s decision in Judicial Watch Inc v U S Secret Service 726 F 3d 208 D C Cir 2013 to argue that construing “agency records” narrowly is necessary to avoid intruding on the president’s constitutional prerogatives Gov’t Br at 29–32 but this argument fundamentally misunderstands FOIA Through that statute Congress commanded that executive agencies disclose all of their records upon request unless they fall within carefully delineated exemptions See 5 U S C §§ 552 a 3 b As discussed infra though FOIA’s disclosure mandate is broad Congress accommodated the executive branch’s interests in – and constitutional claim to – secrecy through the exemptions which are more than adequate to accommodate any legitimate presidential interests implicated by a request for the Secret Service’s visitor records Indeed Plaintiffs have pointed that fact out since the beginning of this litigation and the government has yet to offer any explanation of why FOIA’s exemptions are insufficient to protect any legitimate interest it has in secrecy It would be extremely difficult for the government to make that showing given that the White House routinely disclosed its visitor records with limited redactions for years And even if the government could make that showing its remedy would be either to seek another exemption to FOIA from Congress or to raise an as-applied constitutional challenge to the compelled disclosure of specific records in which it 10 Case 18-2814 Document 60 05 15 2019 2564907 Page17 of 38 could show a constitutionally valid claim to secrecy that is not addressed by an exemption 1 III Treating the Secret Service’s visitor records as presidential records would upend the statutory scheme Congress created which defines “agency records” by reference to their function The district court’s decision that the visitor records are presidential records flows from the false premise also relied on by the D C Circuit in Judicial Watch that with the 1974 amendments to FOIA Congress expressed its intent that “it did not want documents like the appointment calendars of the President and his close advisors to be subject to disclosure under FOIA ” 726 F 3d at 211 The district court endorsed this reasoning opining that “ t his congressional intent The government claims that Plaintiffs’ interpretation of Tax Analysts II is inconsistent with two of this Court’s cases Gov’t Br at 41 n 11 As explained in Plaintiffs’ opening brief Pls’ Br at 23-24 Main Street Legal Services v Nat’l Sec Council 811 F 3d 542 2d Cir 2016 concerned the status of the National Security Council as an “agency ” not the definition of the term “agency records ” Moreover the factors that this Court considered in Grand Cent Partnership v Cuomo 166 F 3d 473 2d Cir 1999 focused primarily on whether the allegedly personal files at issue were used in an official manner See id at 480 “Thus the importance of a court’s evaluation of the use to which such documents were and might be put by the agency and its staff cannot be overestimated ” That focus is consistent with Tax Analysts II To be sure the Court noted several times that there was not sufficient evidence in the record to determine how the records were “intended to be used” or the like id at 481 but those statements are either dicta given the lack of evidence or no longer good law given their clear conflict with Tax Analysts II In fact the D C Circuit has since Grand Central was decided disavowed the intent-based factors considered in the D C Circuit case that Grand Central discussed See Consumer Fed’n of Am 455 F 3d at 290 n 11 1 11 Case 18-2814 Document 60 05 15 2019 2564907 Page18 of 38 speaks to the inapplicability of FOIA to the President and his immediate staff without regard to any statutory exemptions ” Op Order JA 160 There is no dispute here that Plaintiffs filed their FOIA request with an agency as defined by the statute The dispute centers instead on whether the visitor records Plaintiffs request are records of an agency – the Secret Service – or whether they instead are presidential records The only reason this question is in dispute is that the White House and Secret Service have signed memoranda of understanding “MOUs” that purport to cede control of the Secret Service’s visitor records to the White House The government concedes as it must that the records at issue were created or obtained by the Secret Service in fulfillment of its statutorily mandated duties See e g Gov’t Br at 2 7 11 The government tries to diminish that fact however by suggesting the Secret Service is a mere “service provider ” id at 8 that has “only passively received the records from the White House ” id at 19 The government’s own evidence contradicts these characterizations including the fact that the Secret Service actively uses these records to fulfill its statutory duties including annotating the records with additional information the Secret Service needs to meet those duties See Gov’t Br at 9 n 3 The district court discounted these facts to adopt the approach used by the D C Circuit in Judicial Watch but both courts fundamentally misconstrued the 12 Case 18-2814 Document 60 05 15 2019 2564907 Page19 of 38 purpose and effect of the 1974 amendments to FOIA which expanded the definition of “agency” at 5 U S C § 552 f 1 to include among other entities the EOP With this expansion Congress was building upon a disclosure regime for agency records that starts with a presumption of disclosure subject to narrowly drawn exemptions where essential to protect countervailing interests The definition of “agency” is a building block upon which FOIA defines records to include “any information that would be an agency record subject to the requirements of this section when maintained by an agency in any format ” 5 U S C § 552 f 2 A Prior to the 1974 amendments FOIA defined “agency” as “each authority whether or not within or subject to review by another agency ” 5 U S C § 551 1 Supp V 1970 cited in Soucie v David 448 F 2d 1067 1032 n 13 D C Cir 1971 The Soucie court deemed this language “not entirely clear ” id at 1072 but concluded that the Office of Science and Technology “OST” a component of the EOP was an agency under this definition based on a functional analysis The court reasoned that in addition to advising and assisting the president OST also exercised the independent function of evaluating federal scientific programs an authority conferred on it by Congress 448 F 2d at 1075 and which transformed it into an agency 13 Case 18-2814 Document 60 05 15 2019 2564907 Page20 of 38 Significantly the Soucie court understood that OST also advised and assisted the president and prepared documents in direct response to presidential requests Indeed the request at issue in Soucie sought OST’s assessment of a scientific program prepared “because the President had requested an assessment of it ” 448 F 2d at 1076 Nevertheless the court concluded that “despite any confidential relation between the Director of the OST and the President – a relation that might result in the use of such information as a basis for advice to the President ” id emphasis added OST’s records “made in the performance of the ordinary functions of the agency” – which included its assessment for the president – were subject to FOIA Id at 1075-76 When Congress amended FOIA in 1974 to expand the FOIA’s definition of agency to include inter alia the EOP it intended the same result as Soucie and it said so expressly w ith respect to the meaning of the term ‘Executive Office of the President’ the conferees intend the result reached in Soucie v David 448 F 2d 1067 CA D C 1971 The term is not to be interpreted as including the President’s immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President H R Rep No 1380 93d Cong 2d Sess 14 1974 See also Main Street Legal Servs 811 F 3d at 547 In a February 1975 memorandum on the 1974 amendments the attorney general further explained that the expanded definition of agency “is intended chiefly to clarify and expand the class of organizational 14 Case 18-2814 Document 60 05 15 2019 2564907 Page21 of 38 entities to be deemed ‘agencies’ so that their records will be subject to the Act ” Attorney General’s 1974 FOI Amendments Memorandum emphasis added Neither the language of the amended agency definition nor its legislative history suggests an intent to protect specific documents or document categories from compelled disclosure in the interest of protecting presidential interests Instead Congress endorsed the Soucie court’s focus on the nature of the entity as determinative of whether its records qualify as “agency records ” regardless of the content of any particular record or its relationship to the president 2 Far from protecting particular documents and so-called “presidential information” from disclosure under FOIA Congress was focused on facilitating the broadest possible disclosure of government records while still protecting the president and his close advisors as non-agencies from the day-to-day intrusion that would result from imposing the FOIA process on them Nevertheless the D C Circuit in Judicial Watch posited that “where Congress has intentionally excluded a governmental entity from the Act” it intended to close off all avenues of access to “documents or information of that entity by filing a FOIA request with an entity that is covered under the statute ” 726 F 3d at 225 emphasis in original There simply is no support for this 2 The framework the Supreme Court established in Tax Analysts II is consistent with Soucie because it allows for agency records to originate outside of an agency See supra Section II 15 Case 18-2814 Document 60 05 15 2019 2564907 Page22 of 38 proposition Through the expanded definition of “agency” in the 1974 amendments Congress adopted a functional approach that contemplated that even information that might be “a basis for advice to the President” is to be treated as an agency record subject to FOIA when in the possession of an agency exercising an “independent function ” Soucie 448 F 2d at 1075 In other words function – not content – controls The day-to-day functioning of the executive branch reinforces this conclusion The president must act through subordinate agency officials who implement the president’s agenda a process that necessarily requires frequent contact and communication with the president and his staff and leaves a trail of agency records subject to FOIA Indeed under Soucie such records would be agency records even when in the possession of an EOP component that also exercises independent statutory authority Their status as agency records of the Secret Service is even more compelling here given that the Secret Service is a separate agency and not part of the EOP The visitor records Plaintiffs seek which were created or obtained by the Secret Service “in the performance of the ordinary functions of the agency ” Soucie 448 F 2d at 1076 fit squarely within the framework Soucie established and Congress adopted through the 1974 Amendments to FOIA Any other conclusion would upend the statutory scheme Congress created through FOIA to protect and 16 Case 18-2814 Document 60 05 15 2019 2564907 Page23 of 38 advance the essential principle of democracy through greater government transparency IV Permitting the White House to contract around the disclosure requirements of FOIA would usurp Congress’ legislative power and raise more significant separation-of-powers concerns than it resolves When President Lyndon Johnson signed FOIA into law on July 4 1966 he emphasized that the statute is necessary to protect our democracy by ensuring that “people have all the information that the security of the Nation permits ” and preventing the government from “pull ing curtains of secrecy around decisions which can be revealed without injury to the public interest ” Statement by President Lyndon Johnson Upon Signing Public Law 89-487 on July 4 1966 Yet here with the district court’s concurrence the government seeks to pull a curtain of secrecy around the White House and the agency charged with protecting its occupants under the false claim that secrecy is essential to prevent an unconstitutional intrusion into presidential powers and prerogatives To the contrary construing FOIA to protect the secrecy of the Secret Service’s visitor records perverts FOIA’s language and purpose to achieve an end directly at odds with congressional intent To the extent this case raises separationof-powers concerns they flow from attempts by the executive branch to enter into memoranda of understanding that subvert laws duly enacted by the legislature Permitting the White House and other components of the executive branch to 17 Case 18-2814 Document 60 05 15 2019 2564907 Page24 of 38 contract around laws vesting the Secret Service with responsibility for protecting the president and making the agency’s records subject to disclosure through FOIA does not avoid separation-of-powers concerns – it creates them This Court should not give the executive branch license to fundamentally alter the legislative decisions that Congress made in enacting FOIA and H R 2395 82nd Cong 1951 permanently authorizing the Secret Service to protect the president and codified at 18 U S C § 3056 As the Supreme Court explained in Youngstown Sheet Tube Co v Sawyer Article I of the Constitution vests the legislative authority of the United States in Congress not the president The President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute The first section of the first article says that ‘All legislative Powers herein granted shall be vested in a Congress of the United States ’ 343 U S 579 587-8 1952 Congress exercised that authority when it enacted FOIA “to open agency action to the light of public scrutiny ” Tax Analysts II 492 U S at 142 internal quotations omitted With that statute Congress imposed on agencies – including the Secret Service – the obligation to fulfill requests for records 5 U S C § 552 Separately Congress specified that the “United States Secret Service is authorized 18 Case 18-2814 Document 60 05 15 2019 2564907 Page25 of 38 to protect The President ” Pub L No 82–79 § 4 65 Stat 121 122 1951 codified at 18 U S C § 3056 a Congress later explicitly declined to make this protection optional See Pub L No 98–587 98 Stat 3110 1984 codified at 18 U S C § 3056 a This legislation reflects a conscious decision to establish a protective force that is not under the direct control of the White House The memoranda of understanding between the Secret Service and the White House usurp Congress’ legislative authority because they purport to establish White House control over agency records that should be subject to FOIA Nor are they necessary to protect the president’s interests in those records Through FOIA Congress created specific exemptions that were intended to recognize executive branch equities 5 U S C § 552 b Exemption 1 protects information properly designated by the executive branch as classified Exemption 3 protects information exempted by other statutes including intelligence sources and methods Exemption 5 protects privileged information including deliberative material attorney-client confidences attorney work product and presidential communications and Exemption 7 protects records compiled for law-enforcement purposes In other words FOIA has a wide aperture at the front end that would likely raise many difficult constitutional questions if not for the exemptions And that is how Congress intended the statute to operate with broad application to “agency records” tempered by a number of narrowly construed exemptions Significantly 19 Case 18-2814 Document 60 05 15 2019 2564907 Page26 of 38 Congress created no exemption for “presidential schedule information” – the category of records that the government claims to be beyond FOIA’s reach Instead Congress specified that “ a n agency shall withhold information only if I the agency reasonably foresees that disclosure would harm an interest protected by an exemption described in subsection b or II disclosure is prohibited by law ” 5 U S C § 552 a 8 A emphasis added The core separation-of-powers issue raised here is whether the Secret Service and White House should be allowed to determine contrary to Congress’ intent as expressed in FOIA that records obtained in fulfilment of the agency’s statutory duties are presidential rather than agency records The government urges this Court to grant it that power contending that the Secret Service only has presidential schedule and visitor information “because it is required by law to protect the President and the President is required by law to accept that protection ” Gov’t Br at 43 emphasis added But the “law” the government references is the very legislative enactments it seeks license from this Court to ignore Granting the executive that license would run counter to Supreme Court precedent When the Supreme Court articulated criteria for determining whether requested materials constitute “agency records” for the purposes of FOIA it chose a definition that includes material generated externally and received by the agency To otherwise “restrict the term ‘agency records’ to materials generated internally 20 Case 18-2814 Document 60 05 15 2019 2564907 Page27 of 38 would frustrate Congress’ desire to put within public reach the information available to an agency in its decision-making processes ” Tax Analysts II 492 U S at 144 Similarly while the Supreme Court recognized in Kissinger v Reporters Comm for Freedom of the Press that Congress intended to exclude from the reach of FOIA “the President’s immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President ” 445 U S 136 156 1980 quoting H R Conf Rep No 93-1380 at 15 1974 agency records that contain presidential schedule information or White House communications – the very information the government resists producing here – can be and frequently are obtained through FOIA requests For example in response to a FOIA request submitted by Plaintiff CREW in an unrelated matter the Department of Justice produced records that revealed that Attorney General Sessions visited the White House complex on February 27 February 28 and March 3 2017 JA 105-113 Even though these agency records contained presidential schedule information they were subject to public disclosure through FOIA just as Congress intended Nevertheless the government insists that the president has free rein to assert “a claim of control” over agency records of the Secret Service that “may contain information about the President ” Gov’t Br at 46 emphasis in the original But here lies the problem the control the president has exercised over Secret Service 21 Case 18-2814 Document 60 05 15 2019 2564907 Page28 of 38 records results from self-generated executive branch memoranda drafted for the explicit purpose of subverting legislative authority If this Court sanctions this power grab by the president that forces an agency to relinquish control of agency records containing presidential information to the White House then it is giving the executive a license to effectively amend FOIA to suit its needs rather than the transparency and accountability needs Congress sought to address through the statute’s enactment For these reasons the separation-of-powers concerns that the government would have this Court “avoid” by following the D C Circuit’s decision in Judicial Watch are minimal relative to permitting the executive to functionally re-write FOIA and ignore Congress’ choice to place under agency control not the White House the responsibility to protect the president Moreover implementing Congress’ intent does not leave presidential interests unprotected As detailed above the scheme that Congress enacted contains numerous protections for the executive through FOIA’s nine exemptions This is why the principle of constitutional avoidance that the government advances here actually counsels against deciding any constitutional question unless and until the government has shown that those exemptions do not sufficiently protect its constitutionally-based interests As the Soucie court reasoned while s erious constitutional questions would be presented by a claim of executive privilege as a defense to a suit under the Freedom of Information Act and the court should avoid the unnecessary decision of those questions the court should first consider whether the 22 Case 18-2814 Document 60 05 15 2019 2564907 Page29 of 38 document falls within any statutory exemption Only if the Act seems to require disclosure and if the Government makes an express claim of executive privilege will it be necessary for the court to consider whether the disclosure provisions of the Act exceed the constitutional power of Congress to control the actions of the executive branch 448 F 2d at 1071-2 emphasis added The logic of Soucie applies equally here where the government has neither made any effort to invoke any of FOIA’s exemptions nor explained how those exemptions do not adequately protect any claim of executive privilege Without this foundation there is no basis for this Court to conclude that the requested visitor records must be treated as presidential records to avoid any intrusion on the Article II powers of the presidency In fact the opposition conclusion is more likely the president’s exercise of the executive powers of the United States including commanding the nation’s armed forces granting reprieves and pardons making treaties and nominating inferior officers and judges does not require blanket nondisclosure of the identities of individuals who enter the people’s house to conduct official business Requiring the Secret Service to fulfill FOIA requests seeking after-the-fact disclosure of records of presidential visitors to the White House subject to exemptions for personal privacy classified information law enforcement information and other congressionally-authorized exceptions would not upend our constitutional structure Prematurely concluding that FOIA’s exemptions are inadequate to protect the president’s legitimate constitutional 23 Case 18-2814 Document 60 05 15 2019 2564907 Page30 of 38 interests however would threaten the separation of powers between Congress and the executive Without question the parties’ positions present this Court with radically different visions of where the constitutional doubts lie As the district court below acknowledged the cannon of constitutional avoidance “is a tool for choosing between competing plausible interpretations of a statutory text resting on the reasonable presumption that Congress did not intend the alternative which raises serious constitutional doubts ” Clark v Martinez 543 U S 371 381 2005 see JA 154-55 citing Clark Justice Frankfurter wrote in his famous concurrence in Youngstown Sheet Tube Co that “ t o find authority so explicitly withheld is not merely to disregard in a particular instance the clear will of Congress It is to disrespect the whole legislative process and the constitutional division of authority between President and Congress ” 343 U S at 609 Frankfurter J concurring Following this guidance this Court should uphold Congress’ intent to vest in the Secret Service the responsibility of protecting the president and to make its records subject to disclosure under FOIA and should decline to grant the White House license to subvert these legislative judgments through MOUs that wrest control of agency records from the agencies that created or obtained the records while fulfilling their statutory duties 24 Case 18-2814 Document 60 05 15 2019 2564907 Page31 of 38 V Plaintiffs’ Administrative Procedure Act claims should be reinstated Plaintiffs’ Administrative Procedure Act “APA” claims should be reinstated because they raise justiciable challenges to policies and practices expressed in Department of Homeland Security “DHS” and EOP memoranda that violate the Federal Records Act “FRA” by unlawfully treating agency records as presidential records 3 As the D C Circuit held in Armstrong II an agency record cannot also be a presidential record for “the definition of ‘agency’ records in the FOIA trumps the definition of ‘presidential records’ in the PRA ” Armstrong v EOP 1 F 3d 1274 1292 D C Cir 1993 As Plaintiffs explained in the opening brief the district court committed multiple errors in dismissing Plaintiffs’ APA claims See Pls’ Br at 33-44 None of the arguments advanced by the government save the district court’s flawed analysis First as Defendants acknowledge the D C Circuit has held that “‘courts may review guidelines outlining what is and what is not a presidential record ’” As Plaintiffs explained in the opening brief the FRA requires that agencies establish “ 1 a program to make and preserve agency records 2 effective controls over the creation maintenance and use of records and 3 safeguards against the removal or loss of records ” 44 U S C §§ 3101 3102 and 3105 see also JA 21 The FRA further specifies exclusive procedures by which agency records may be disposed of or destroyed including a requirement that an agency first obtain authorization of the Archivist of the United States JA 22 citing 44 U S C § 3314 3 25 Case 18-2814 Document 60 05 15 2019 2564907 Page32 of 38 Gov’t Br at 52 quoting Armstrong II 1 F 3d at 1294 Availability of this review is necessary to ensure the executive branch implements the careful judgments Congress established when it subjected some records to the FRA and FOIA and others to the PRA As the D C Circuit explained If guidelines that purport to define presidential records were not reviewable the cross-appellees could effectively shield all federal records not only from the FOIA but also from the provisions of the FRA – thus evading this court’s holding in Armstrong v Bush 924 F 2d 282 293 D C Cir 1991 Armstrong I that the courts have jurisdiction to decide whether the NSC’s recordkeeping guidelines adequately describe the material subject to the FRA Armstrong II 1 F 3d at 1293 Defendants mischaracterize Plaintiffs’ APA claims as relying solely on the 2015 MOU Gov’t Br at 49 when in fact the Amended Complaint challenges “as arbitrary capricious and contrary to law the treatment by the EOP and DHS of records of visits to EOP agency components of the EOP as presidential records under the PRA that are not publicly accessible through the FOIA and the failure of DHS to manage and preserve these records under the FRA ” JA 18 This policy is reflected in the 2015 MOU which states that “ a ll records created stored used or transmitted by on or through the unclassified information systems and information resources provided to the President Vice President and EOP shall remain under the exclusive ownership control and custody of the President Vice President or originating EOP component ” JA 29 Defendants advance a pleading 26 Case 18-2814 Document 60 05 15 2019 2564907 Page33 of 38 standard that finds no support in the Armstrong decisions Nowhere do those cases require that a plaintiff identify at the outset of a case precisely how a defendant has memorialized and effectuated the records policy or guidance that is being challenged Indeed that is why the district court erred in refusing to consider evidence of the challenged policy that was fully consistent with the allegations in Plaintiffs’ complaint This error was particularly grave with respect to the 2006 MOU a document that is precisely the kind of guideline or directive that the D C Circuit determined to be justiciable in Armstrong The 2006 MOU states that the Secret Service operates the White House Access Control System “WHACS” JA 69-70 it explains that the Secret Service uses WHACS records to perform one of its core statutory responsibilities – protecting the president JA 70 and it states and implements the very policy Plaintiffs allege is unlawful under the FOIA by deeming WHACS records to be “at all times Presidential Records ” JA 71 Second Circuit precedent clearly permits a district court judge to consider evidence beyond the pleadings when resolving a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12 b 1 See Makarova v United States 201 F 3d 110 113 2d Cir 2000 The district court’s failure to consider evidence substantiating Plaintiffs’ allegations was an abuse of discretion because it did so on the false premise that Plaintiffs introduced the evidence “into their pleading by 27 Case 18-2814 Document 60 05 15 2019 2564907 Page34 of 38 way of their opposition brief ” JA 189 when in fact Defendants introduced this evidence in support of their dispositive motion see JA 69-73 VI To the extent that Plaintiffs’ allegations are technically deficient Plaintiffs should be permitted to amend the complaint to include extrinsic evidence establishing the justiciability of Plaintiffs’ claims In the alternative this Court should permit Plaintiffs to amend their pleadings on appeal The government wrongly states such relief is waived if not requested below Gov’t Br at 54 To the contrary Congress explicitly provided appellate courts with independent authority to permit amendment of pleadings to remedy defective allegations of jurisdiction See 28 U S C § 1653 The interests of judicial economy and expediency would be best served by consideration of evidence in the record that is directly relevant to the legal questions this Court must resolve Although there is substantial overlap between Plaintiffs’ FOIA and FRA claims the government incorrectly suggests that the fates of these claims are intertwined Under the FOIA Plaintiffs have a right to request and obtain nonexempt agency records that are within the agency’s control at the time they are requested As relief for their FOIA claims plaintiffs seek the production of documents unlawfully withheld by the Secret Service See JA 29-30 Under the APA Plaintiffs may challenge agency policies or guidelines that conflict with the agency’s responsibility under the FRA to create and preserve agency records and 28 Case 18-2814 Document 60 05 15 2019 2564907 Page35 of 38 to undergo certain procedures before disposing of agency records See Armstrong I 924 F 2d at 291-94 Armstrong II 1 F 3d at 1282-88 With respect to the APA claims Plaintiffs seek declaratory and injunctive relief clarifying that agency records of visits to the White House are agency records and requiring that they be maintained consistent with the FRA JA 31-32 There is no merit therefore to the government’s argument that publication of certain records requested by other plaintiffs in another FOIA suit pursuant to a settlement there renders moot Plaintiffs’ APA claims here See Gov’t Br at 55-57 The settlement in that other lawsuit did not address or modify the guidelines and policies that Plaintiffs challenge here as contrary to the FRA See JA 115-27 Indeed the fact that the White House continues to exert control over Secret Service records – including by making them public at its discretion – is precisely what Plaintiffs’ APA and FRA claims challenge CONCLUSION For the foregoing reasons and those set forth in Plaintiffs’ opening brief the judgment of the district court should be reversed 29 Case 18-2814 Document 60 05 15 2019 2564907 Page36 of 38 Dated May 15 2019 Respectfully submitted s Anne L Weismann Conor M Shaw Citizens for Responsibility and Ethics in Washington 1101 K Street N W Suite 201 Washington D C 20005 202 408-5565 aweismann@citizensforethics org Alex Abdo Jameel Jaffer Knight First Amendment Institute at Columbia University 475 Riverside Drive Suite 30 New York New York 10115 9646 745-8500 Alex abdo@knightcolumbia org 30 Case 18-2814 Document 60 05 15 2019 2564907 Page37 of 38 CERTIFICATE OF FILING AND SERVICE I hereby certify that on this 15th day of May 2019 I caused this Reply Brief of Appellants to be filed electronically with the Clerk of the Court using the CM ECF System which will send notice of such filing to all the registered CM ECF users I further certify that on this 15th day of May 2019 I caused the required number of bound copies of the Reply Brief of Appellants to be filed with the Clerk of the Court via UPS Next Day Air s Anne L Weismann Counsel for Plaintiffs - Appellants Case 18-2814 Document 60 05 15 2019 2564907 Page38 of 38 CERTIFICATE OF COMPLIANCE 1 This brief complies with the type-volume limitation of Fed R App P 28 1 e 2 or 32 a 7 B because X this brief contains 6 943 words excluding the parts of the brief exempted by Fed R App P 32 a 7 B iii or this brief uses a monospaced typeface and contains state the number of lines of text excluding the parts of the brief exempted by Fed R App P 32 a 7 B iii 2 This brief complies with the typeface requirements of Fed R App P 32 a 5 and the type style requirements of Fed R App P 32 a 6 because X this brief has been prepared in a proportionally spaced typeface using Microsoft Word 2016 in 14pt Times New Roman or this brief has been prepared in a monospaced typeface using state name and version of word processing program with state number of characters per inch and name of type style Dated May 15 2019 s Anne L Weismann Counsel for Plaintiffs - Appellants