Access to Public Information, Defamation / Reputation
Aécio Neves da Cunha v. Twitter Brasil
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The District Court for the District of Columbia held that White House and Vice Presidential Residence visitor records are “agency records” subject to FOIA disclosure because such records are generated and maintained by the Secret Service. Citizens for Responsibility and Ethics in Washington filed a request for all records documenting the visits of nine conservative Christian leaders to the White House and the Vice President’s Residence as part of an effort to evaluate their potential influence over the administration. The Court rejected the Secret Service’s argument that they did not constitute “agency records,” and ruled that although some of the contents originated with White House and Vice Presidential staff, all the records were generated by the Secret Service. Further, the Court reasoned that the records were under the agency’s control because they were integral to its protective mission and it had used them, routinely preserving and selectively disposing of them, on-and-off for years. The Government appealed the decision, but it was dismissed on July 11, 2008 for lack of jurisdiction.
This analysis was contributed by Right2Info.org.
A self-described government watchdog—Citizens for Responsibility and Ethics in Washington (CREW)—filed a request pursuant to the Freedom of Information Act (FOIA) with the U. S. Secret Service for all records documenting the visits of nine conservative Christian leaders to the White House and the Vice President’s Residence. CREW asserted that its request was likely to contribute to the public’s understanding of the influence that conservative Christian leaders have, or attempt to have, on the President. After the Secret Service failed to timely respond or discuss the status of CREW’s request, CREW filed suit. In response, the Secret Service argued that the visitor records were not subject to FOIA because they are not “agency records” as defined by FOIA and, alternatively, that the doctrine of “constitutional avoidance” requires the Court to construe FOIA such that it does not encompass the visitor records.
The United States District Court for the District of Columbia ruled that (1) the Secret Service failed to meet its burden of demonstrating that the records were not “agency records” and (2) the doctrine of constitutional avoidance was not applicable in this situation.
With regard to the first ruling, the Court applied a two-part test to determine that, under FOIA, agency records are documents that are (a) either created or obtained by the agency, and (b) under agency control at the time the FOIA request was made. Despite the Secret Service’s argument that it alone was not the creator of the records, the Court reasoned that although some of the contents originated with the White House and Vice Presidential staff, the relevant inquiry looks to the record’s creator, not the source of the record’s information. In this case, all records were generated by the Secret Service, so the first part of the “agency record” test was met. Addressing the second part of the test, the court used a four-factor analysis to identify whether an agency exercises sufficient control over a document to render it an “agency record”: (a) the intent of the document’s creator to retain or relinquish control over the records; (b) the ability of the agency to use and dispose of the record as it sees fit; (c) the extent to which agency personnel have read or relied upon the document; and (d) the degree to which the document was integrated into the agency’s record system or files. After noting that the Secret Service had been routinely preserving and selectively disposing of its records on-and-off for years, and that the records were integral to their protective mission, the Court balanced the four factors and concluded that “use trumps intent,”observing that despite the Secret Service’s professed lack of intent to control the visitor records,its historical use of the records indicated the opposite.
With regard to the second ruling, the doctrine of constitutional avoidance provides that where an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of the legislature. Because the doctrine applies only where the statute is open to more than one interpretation, and because the Secret Service identified no ambiguity in the FOIA statute, the doctrine did not apply to this case. Further, the Court rejected the Secret Service’s presumption that a serious constitutional problem is raised when FOIA is interpreted to include these kinds of visitor records as “agency records”. The Court went on to state that to the extent a visitor record might, if publicly released, disclose confidential presidential communications, the Secret Service can resort to Exemption 5, which protects state secrets and other privileged communications.
The Government’s appeal against the decision was dismissed by the Court of Appeals for the District of Columbia Circuit on July 11, 2008.
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