Doyle v. DHS, No. 18-2814, 2020 WL 2516644 (2d Cir. May 18, 2020) (Lohier, J.)

Doyle v. DHS, No. 18-2814, 2020 WL 2516644 (2d Cir. May 18, 2020) (Lohier, J.)

Re:  Request for White House visitor logs

Disposition:  Affirming district court's grant of government's motion for summary judgment

• Procedural Requirements, "Agency Records":  The Court of Appeals for the Second Circuit "conclude[s] that the visitor logs that the plaintiffs seek are not agency records subject to FOIA."  "Although the [requesters] urge [the court] to conclude otherwise, [the court is] not persuaded that the term 'agency record' plainly applies to the visitor logs in this case."  "[The court has] explained that agency 'control' is key to determining whether materials qualify as 'agency records' under FOIA."  The court finds that "the case before [it] 'involves documents that an agency created in response to requests from, and information provided by, a governmental entity not covered by FOIA,' namely, the Office of the President; those documents 'contain visitor information provided by that Office'; 'the non-covered entity – here, the White House – has manifested a clear intent to control the documents,' such that 'the agency is not free to use and dispose of the documents as it sees fit'; the Office of the President 'cannot retain effective physical control over' the records because 'Congress requires the President to accept the protection of the Secret Service'; and 'disclosing the records would reveal the specific requests made by the non-covered entity – here, the Office of the President's requests for visitor clearance.'"  "Under these circumstances, the term 'agency records' may reasonably (though not necessarily) be interpreted to exclude the visitor logs at issue, in part because it is hard for [the court] to 'believe Congress intended that FOIA requesters be able to obtain from the gatekeepers of the White House what they are unable to obtain from its occupants.'"  "We . . . declin[e] to compel the disclosure of [the visitor] logs under FOIA given the difficult but avoidable constitutional question that compelling disclosure would raise if we were to interpret 'agency records' in a different way."