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Judicial Watch • JW v USSS Opinion 8172011

JW v USSS Opinion 8172011

JW v USSS Opinion 8172011

Page 1: JW v USSS Opinion 8172011

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Number of Pages:19

Date Created:August 17, 2011

Date Uploaded to the Library:February 20, 2014

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UNITED STATES DISTRICT COURT
 FOR THE DISTRICT COLUMBIA 

JUDICIAL WATCH, INC.,         
Plaintiff, 
Civil Action No. 09-2312 (BAH) UNITED STATES SECRET SERVICE, Defendant. 

MEMORANDUM OPINION 
Plaintiff Judicial Watch, Inc. brought this case compel Defendant U.S. Secret Service respond Freedom Information Act (FOIA) request.  The plaintiffs FOIA request, sent August 10, 2009, sought all White House visitor logs from the date President Barack Obamas inauguration, January 20, 2009, through the present.  The FOIA generally requires the disclosure, upon request, records held federal government agency unless the records are protected from disclosure under one nine FOIA exemptions. this case, the defendant has withheld all requested records, asserting that, while the Secret Service executive agency subject FOIA, the documents question are not agency records subject FOIA disclosure.  The plaintiff has moved for partial summary judgment the issue whether the requested documents are agency records subject FOIA.  The defendant has filed cross-motion for summary judgment asking the Court hold that the documents are not subject FOIA.  For the reasons discussed below, plaintiffs motion for partial summary judgment granted and the defendants cross-motion for summary judgment denied. BACKGROUND August 10, 2009, Plaintiff Judicial Watch, Inc. sent FOIA request Defendant United States Secret Service seeking access [a]ll official visitor logs and/or other records concerning visits made the White House from January 20, 2009 the present.  Compl.  The Secret Service responded Judicial Watchs request with letter, dated October 2009, which informed Judicial Watch that the Secret Service interpreted the request encompass Access Control Records System (ACR) records and/or Workers and Visitors Entry System (WAVES) records.  Id.  These two overlapping sets records are used the Secret Service clear and track visitors the White House Complex.  
WAVES records consist primarily information provided the Secret Service authorized White House Complex pass holders regarding proposed visitors the White House Complex.  Def.s Statement Mat. Facts Not Dispute (Def.s SMF)   The authorized pass holder electronically submits the Secret Service information such the identifying information the visitor, including name, date birth, and Social Security number, the date, time and location the planned visit, the name the staff member submitting the request, the name the person visited, and the date the request.  Id.  The Secret Service uses this information perform background checks the proposed visitors determine there are any security concerns and verify the visitors admissibility the time his her visit. Id.  
Once individual cleared into the White House Complex, she normally issued visitor pass.  The use these passes electronic pass readers located the entrances and exits from the White House Complex generates the second type records  ACR records.  Id.  The ACR records include information such the visitors name and pass number, the date and time the swipe, and the post which the swipe was recorded.  Id.  10. After visit, WAVES records are normally updated electronically with ACR information regarding the time and place entry and exit.  Id.  11. September 15, 2009, the interest public transparency, the White House adopted policy voluntary public disclosure for WAVES records, subject certain exceptions.  See Declaration Philip Droege, dated April 21, 2010, (Droege Decl.)  16-18. the October 2009 response plaintiffs FOIA request, the Secret Service informed Judicial Watch that had determined that WAVES and ACR records are not agency records subject the FOIA. Compl.   More specifically, the letter stated that the governments position that these records are records governed the Presidential Records Act, U.S.C.  2201 seq., and remain under the exclusive legal custody and control the White House Office and the Office the Vice President. October 2009 Letter, Ex. Def.s Mem. 
Judicial Watch then sent administrative appeal letter the Secret Service contesting the Secret Services denial the request and, specifically, the assertion the Secret Service that the requested records are not agency records subject FOIA.  Compl.  The Secret Service denied the appeal.  Id.  Judicial Watch then filed the action currently before the Court December 2009. February 22, 2010, Judicial Watch moved for partial summary judgment, pursuant Federal Rule Civil Procedure 56, the issue whether the Secret Service visitor logs are agency records subject the Freedom Information Act, U.S.C.  552. response, April 21, 2010, the Secret Service filed cross-motion for summary judgment the same issue.1 This case was reassigned the current presiding judge January 20, 2011. 

II. STANDARD REVIEW 
Congress enacted FOIA promote transparency across the government.  See U.S.C.  552; Quick U.S. Dept Commerce, Natl Inst. Standards Tech., No. 09-02064, 2011 1326928, (D.D.C. April 2011) (citing Stern FBI, 737 F.2d 84, (D.C. Cir. 1984)). The Supreme Court has explained that FOIA a means for citizens know what their Government to.  This phrase should not dismissed convenient formalism. defines structural necessity real democracy.  Natl Archives Records Admin. Favish, 541 U.S. 157, 171-172 (2004) (internal quotations and citations omitted). The basic purpose FOIA ensure informed citizenry, vital the functioning democratic society, needed check against corruption and hold the governors accountable the governed.  NLRB Robbins Tire Rubber Co., 437 U.S. 214, 242 (1978). 
The strong interest transparency must tempered, however, the legitimate governmental and private interests [that] could harmed release certain types information.  United Techs. Corp. U.S. Dept Defense, 601 F.3d 557, 559 (D.C. Cir. 2010); see also Critical Mass Energy Project Nuclear Regulatory Commn, 975 F.2d 871, 872 (D.C. Cir. 1992). Accordingly, Congress included nine exemptions permitting agencies withhold information from FOIA disclosure. U.S.C.  552(b). These exemptions are explicitly made exclusive, and must narrowly construed. Milner Dept the Navy, 131 Ct. 1259, 1262 (2011) (internal quotations and citations omitted) (citing FBI Abramson, 456 U.S. 615, 630 (1982)); see also Pub. Citizen, Inc. Office Management and Budget, 598 F.3d 865, 869 
(D.C. Cir. 2010). 
Pursuant Federal Rule Civil Procedure 56, the Court will grant motion for summary judgment if the movant shows that there genuine dispute any material fact and the movant entitled judgment matter law based upon the pleadings, depositions, and affidavits and other factual materials the record.  Fed. Civ. 56(a), (c); Tao Freeh, F.3d 635, 638 (D.C. Cir. 1994). The Court need consider only the cited materials, but may consider other materials the record.  Fed. Civ. 56(c)(3).  The Court must view all inferences light most favorable the non-moving party.  Tao, F.3d 638 (citing Anderson Liberty Lobby, Inc., 477 U.S. 242, 250, 255 (1986)). The burden the moving party demonstrate that there absence genuine issue material fact dispute.  Celotex Corp. Catrett, 477 U.S. 317, 323 (1986). defendant entitled summary judgment FOIA case demonstrates that material facts are dispute, has conducted adequate search for responsive records, and each responsive record, which located, was either produced the plaintiff exempt from disclosure. See Weisberg U.S. Dept Justice, 627 F.2d 365, 368-69 (D.C. Cir. 1980). meet its burden, the defendant may rely relatively detailed, non-conclusory declarations. McGehee CIA, 697 F.2d 1095, 1102 (D.C. Cir. 1983). The defendant entitled summary judgment when it demonstrates that each document sought not subject FOIAs disclosure requirements.  Citizens for Responsibility and Ethics Wash. U.S. Dept Homeland Sec., 527 Supp. 76, (D.D.C. 2007) (hereinafter, CREW) (citing Exxon Corp. F.T.C., 663 F.2d 120, 126 (D.C. Cir. 1980)). Agency decisions withhold information under the Freedom Information Act are reviewed novo this court.  Judicial Watch, Inc. U.S. Postal Serv., 297 Supp. 252, 256 (D.D.C. 2004). 

III. DISCUSSION 
Judicial Watch, moving for partial summary judgment, has requested the Court declare that the Secret Service visitor logs are agency records subject FOIA. response, the Secret Service has filed cross motion for summary judgment the same issue.  Both parties appear agree that there genuine dispute any material fact, Fed. Civ. 56(a), and disagree simply about how the law applies the facts hand.  See Pl.s Mem. Supp. Mot. for Partial Summ. (Pl.s Mem.) ([N]o disputes material fact exist the nature the records. .); Def.s Cross-Mot. for Summ. ([T]here genuine issue any material fact. .).  Therefore, appropriate enter judgment this specific question now.   
The Secret Service advances three arguments support its motion for summary judgment.  First, the Secret Service argues that the WAVES and ACR records are Presidential records, and therefore not agency records subject FOIA.  Second, the Secret Service argues that the FOIA should construed not cover the WAVES and ACR records order avoid serious Constitutional separation powers question.  Third, the Secret Service argues that, even the WAVES and ACR records are subject FOIA, the FOIA request this case would virtually impossible process without creating the unacceptable risk that sensitive records implicating national security concerns would inappropriately released.  Def.s Mem. Supp. Cross-Mot. for Summ. and Oppn Pl.s Mot. for Partial Summ.  (Def.s Mem.) For the reasons explained below, the Court will grant the plaintiffs motion for partial summary judgment and will deny the defendants cross-motion for summary judgment. WAVES and ACR Records are Agency Records Under the FOIA 
The central argument the Secret Service advances that the WAVES and ACR records are not agency documents subject FOIA, which prerequisite federal jurisdiction.  See CREW, 527 Supp. (Under U.S.C.  552(a)(4)(B) federal jurisdiction dependent upon showing that agency has (1) improperly; (2) withheld; (3) agency records. (quoting Kissinger Reporters Comm. for Freedom Press, 445 U.S. 136, 150 (1980)) (internal quotations omitted)). The Court disagrees.   
The Supreme Court has established two-part test for evaluating whether record agency record within the meaning FOIA.  First, agency must either create obtain the requested materials Second, the agency must control the requested materials the time the FOIA request made.  U.S. Dept Justice Tax Analysts, 492 U.S. 136, 144-45 (1989) (internal quotations omitted).  Applying this test, the Court finds the records are subject FOIA. 
Two other judges this District have previously applied this standard WAVES and ACR records, and both determined that the records are agency records subject FOIA. See CREW, 527 Supp. 76; Wash. Post U.S. Dept Homeland Sec., 459 Supp. 
(D.D.C. 2006), vacated other grounds 2007 U.S. App. LEXIS 6682 (D.C. Cir. Feb. 27, 2007).2  This Court agrees with the conclusions the other judges this District that have considered this question and finds that the records are subject FOIA. The Secret Service Creates Obtains the Records 
The Secret Service does not appear contest that create[s] obtain[s] the WAVES and ACR records. minimum, the Secret Service obviously obtains the records.  Therefore, the Courts analysis this first requirement will brief. 
The Secret Service describes the creation process for WAVES and ACR records involving multiple steps.  Normally, the process begins when authorized White House Complex pass holders, typically members the Presidential Vice-Presidential staff, provide the Secret Service with the personal information proposed visitor through automated computer 
system.  Droege Decl.  4-6. This information can also provided other ways, such email, telephone, physical delivery.  Id.  such instances, Secret Service personnel enter the information into the WAVES system.  Id.  This information processed the Secret Service perform background checks the proposed visitors, and verify the admissibility the visitors the time visit.  Id.  5-6. describing this process, the Secret Service seeks emphasize the role that Presidential and Vice-Presidential staff members play providing much the information that make the records. By focusing the contents the records, the Secret Service overlooks the process which the records are generated, however. CREW, 527 Supp. (citing Wash. Post, 459 Supp. (D.D.C. 2006)). This distinction important, because [t]he FOIA deals with documents, not information.  Id. (citing Forsham Harris, 445 U.S. 169, 185 (1980)). CREW, the Secret Service invites the Court elevate the contents the record ahead its creation. Id. (adding that [t]his would insulate records that contain information supplied, perhaps even gleaned, from external, non-agency source, even the information represents only part the record, does here).   
Regardless what information may supplied outside actors, the WAVES and ACR records are largely generated the Secret Service, and are undisputedly obtained the Secret Service. Indeed, the records are generated specifically for use the Secret Service.  Therefore, the requirement under FOIA that the records create[d] obtain[ed] clearly met this case. The Secret Service branch the U.S. Department Homeland Security. Therefore, the defendant these prior opinions effectively the same the current action, and many the exact same arguments advanced here the Secret Service were addressed those prior opinions. The Secret Service Controls the Records 
The Court now moves the second prong the agency records determination. addition creating obtaining the records, the agency must control the requested materials the time the FOIA request made.  Tax Analysts, 492 U.S. 144-45 (internal quotations omitted); see also Judicial Watch, Inc. Fed. Hous. Fin. Agency, No. 10-5349, 2011 3375576, (D.C. Cir. Aug. 2011). meet this control requirement, the records must have come into the agencys possession the legitimate conduct its official duties.  Tax Analysts, 492 U.S. 145. determine whether agency in control the materials, the D.C. Circuit has established four-part test. The Court must consider (1) the intent the documents creator retain relinquish control over the records; (2) the ability the agency use and dispose the record sees fit; (3) the extent which agency personnel have read relied upon the document; and (4) the degree which the document was integrated into the agencys record system files.  Judicial Watch, Inc. Fed. Hous. Fin. Agency, 2011 3375576, (quoting Burka U.S. Dept Health Human Servs., F.3d 508, 515 (D.C. Cir. 1996)). Each these considerations taken turn below. The Secret Service Intends Relinquish Control 
The first factor the determination, intent, weighs favor the Secret Services assertion that the records are not under agency control.  See CREW, 527 Supp. (The first factor, the intent the documents creator (here, the Secret Service) retain relinquish control over the records, weighs favor the Secret Service.).  The Secret Service points the Court Memorandum Understanding (MOU), written May 2006, memorialize the understanding both the Secret Service and the White House Office Records Management (ORM) how the WAVES and ACR records were used, and who maintained interest them.  Declaration Donald White, dated April 20, 2010, (White Decl.)  12.  
The MOU unequivocal asserting that the control over WAVES and ACR records all times maintained the ORM and not the Secret Service.  See MOU  (stating that the WAVES and ACR records are all times Presidential Records and are not the records agency subject the Freedom Information Act).  Consistent with this stated intent, has been the practice the Secret Service regularly transfer copies the WAVES and ACR records the ORM. White Decl.  13. worth noting that the actions the Secret Service have sometimes been misaligned with its stated intent, however.  For example, the Secret Service has continued maintain copies the WAVES and ACR data after transfer.  Id. According the Secret Service this retention has been due to, among other things, then-pending litigation. 
Id. 
The stated intent the Secret Service unambiguously relinquish control the records, however, and the Secret Services actions are not necessarily inconsistent with that intent. The intent factor the analysis, therefore, weighs the defendants favor.  See CREW, 527 Supp. ([T]he Secret Services stated intent clear: does not intend retain control over these records once the visitor has left the White House Complex Because the Secret Services actions are not inconsistent with its stated intent, the first factor weighs its favor.). noted CREW, the MOU was executed after the Secret Service was previously sued for specific WAVES and ACR records under the FOIA.  527 Supp. 2d. n.22 (The Court regards this self-serving agreement with 

ii. The Secret Service Able Use and Dispose the Records 
The Court finds, however, that the second factor, the ability the Secret Service use and dispose the records sees fit, weighs against the Secret Service.  The Secret Service 
skepticism. The MOU was executed after the Secret Service created many the records and after the Secret Service was sued for the records.). The defendant does not explain specifically what litigation was then-pending. See White Decl.  11, 13.  The Court assumes that the referenced litigation may consist the cases, such CREW and Washington Post, cited this opinion. CREW, 527 Supp. 76; Wash. Post, 459 Supp. 61. 
able to, and does, use the WAVES and ACR records, and also maintains reasonable amount flexibility dispose the records. 
According the Secret Services own declarations, the Secret Service uses the records for two main purposes, to perform background checks determine the existence any protective concern and to verify the admissibility the time visit.  Droege Decl.  Therefore, the Secret Services ability use the records clear. 
The Secret Service quick argue that does not have the ability dispose the records sees fit. the practice the Secret Service regularly transfer copies the WAVES and ACR records the ORM. Droege Decl.  10.  This transfer practice, combined with the narrowly constrained use the records the Secret Service, was enough for another judge this Court conclude that the ability the agency use and dispose the record sees fit quite limited.  Wash. Post, 459 Supp. (quoting United Stand Am., Inc. IRS, 359 F.3d 595,599 (D.C. Cir. 2004)). Regardless its stated transfer policy, however, the Secret Service has consistently continued maintain copies these records its systems, and has not sufficiently explained any restriction its use disposition these documents.   
The Secret Service claims that because the President and Vice President retain control WAVES and ACR records (as set forth the MOU), the Secret Service lacks disposal authority over these records. Def.s Mem. 19-20. other words, the Secret Service argues that unable dispose the records freely because they are ultimately White House records and not agency records. This argument circular.  The claimed restrictions disposal stem from the defendants assumption that the documents are under Presidential controlthe exact point that the defendant seeks prove establish that the documents are not subject FOIA.  See CREW, 527 Supp. (Of course, the assumption which this argument rests onthat these documents are under the exclusive legal control the President and Vice-Presidentis the focal point this suit. The Secret Service assuming the very point trying prove.).  
Therefore, the stated intent the Secret Service transfer the records the ORM and then remove them from its system not itself dispositive the Secret Services ability use and dispose the records freely. See CREW, 527 Supp. (Although agencys treatment documents for preservation purposes may provide some guidance agency should not able alter its disposal regulations avoid the requirements FOIA.) (quoting Bureau Natl Affairs U.S. Dept Justice, 742 F.2d 1484, 1493 (D.C. Cir. 1984)). While the Court duly recognizes that the Secret Services freedom use and dispose the records somewhat circumscribed, this portion the calculus does not weigh the Secret Services favor. 

iii. Secret Service Personnel Have Read and Relied Upon the Documents 
The third factorthe extent which Secret Service personnel have read relied upon the documentscuts strongly against the Secret Service.  While the Secret Service does not deny reliance upon the WAVES and ACR records, argues that the purposes for which relies upon the documents are limited:  Namely, (1) enable the Secret Service perform background checks and (2) enable the Secret Service verify the admissibility the time visit.  Droege Decl.  This limited reliance directly tied the purpose the records the first place. The WAVES and ACR records are createdabove all elseto facilitate the precise uses for which the Secret Service relies upon them.  See Wash. Post, 459 Supp. (While the defendant correct that the Secret Services use the WAVES records limited, the defendant fails recognize that the very purpose the WAVES records limited. [T]he inquiry the agencys use document tethered the purpose behind the records creation the first instance. (internal citations omitted)).  Therefore, the fact that the Secret Service uses the documents for the limited purpose for which they were created strongly suggests the documents are agency records under FOIA. 

iv. The Records are Integrated into the Secret Services Record System 
The final factor, the degree which the records were integrated into the Secret Services record system, also weighs against the Secret Service. The Secret Service acknowledges that WAVES and ACR records reside the Secret Services servers part the [White House Access Control System] data system.  Def.s Mem. 21; see also White Decl.  resist the characterization this process integration into the Secret Services record system, the Secret Service notes that the WAVES and ACR records data are downloaded and burned onto CDs for transfer the ORM every days.  White Decl.  11.  Additionally, the intent the Secret Service erase the WAVES records from their servers after transfer, and the Secret Service asserts that active WAVES data the servers older than days are purged daily and overwritten the servers.  Id.  11. 
The fact that the records are transferred not dispositive determining whether the records are integrated, however. See CREW, 527 Supp. (The length time record saved skirts the salient issue whether was integrated into the agencys record system the first place.). also worth noting that the Secret Service has retained copies all the WAVES and ACR data question. White Decl.  11.  Even the Court assumes that all the records question have, fact, been deleted from the Secret Services computer system since their initial use, the Secret Service does not contest that the records were one point integrated portion its computer system.  See CREW, 527 Supp. ([T]he notion that electronic record not integrated into the Secret Services computer system simply because the agency deletes the records days later misses the point.).  Therefore, the Court finds that the WAVES and ACR records were substantially integrated into the Secret Services record system. Balancing the Factors 
The Court finds that, while the intent the Secret Service consistent with its assertion that the WAVES and ACR records are not agency records, the other three factors all cut the opposite direction. Consistent with other decisions this District, the Court concludes that use trumps intent.  CREW, 527 Supp. 97. Therefore, the WAVES and ACR records are properly considered agency records subject FOIA. Constitutional Avoidance 
The Secret Service also urges the Court construe FOIA not cover the WAVES and ACR records avoid raising serious Constitutional questions.  The Secret Service asserts that FOIA coverage WAVES and ACR records would raise serious separation powers concerns because would amount a substantial intrusion the confidentiality necessary for the President and Vice President discharge their constitutional duties.  Def.s Mem. 24. 
The Constitutional avoidance doctrine not applicable here because the Court not faced with the interpretation ambiguous statute.  The Supreme Court has explained that if otherwise acceptable construction statute raises serious constitutional problems, and alternative interpretation the statute fairly possible, [courts] are obligated construe the statute avoid such problems.  INS St. Cyr, 533 U.S. 289, 299 (2001). The Court agrees, however, with the previous holdings other judges this District that, even defendants concerns about the intrusion the confidentiality necessary for the President and Vice President discharge their constitutional duties are valid ones, they do not serve license for the court transmute the meaning unambiguous statute.  Wash. Post, 459 Supp. 72; see also CREW, 527 Supp. 98-99 (Because [Constitutional avoidance] applies only where the statute open more than one interpretation, however, has application the absence statutory ambiguity. (internal quotations and citations omitted)).   
Additionally, the Court skeptical the underlying premise that the inclusion WAVES and ACR records under FOIA raises any serious Constitutional problems. has previously been noted courts this District, [t]o the extent that visitor record might, publicly released, disclose confidential presidential communications, the Secret Service has ready recourse Exemption [of FOIA], which exempts privileged documents from disclosure. CREW, 527 Supp. 99. Therefore, since the statutory language unambiguous relation this issue, and the FOIA has built-in exemptions that mitigate the risk the precise separation powers concerns the defendant raises, the Court rejects defendants interpretive argument. National Security Concerns 
Lastly, the Secret Service argues that, even WAVES and ACR records are subject FOIAand the Court holds that they areit would virtually impossible for the Secret Service process the plaintiffs FOIA request with respect records created between January 20, 2009 and September 15, 2009 without potentially compromising national security interests.  Def.s Mem. 28.  While the Secret Service has been able process FOIA requests for WAVES and ACR records the past, defendant argues that the unprecedentedly broad nature this request would make virtually impossible for the White House identify and segregate sensitive information from that which can disclosed.  Id. 28. The Secret Service appears argue that should not required even process the FOIA request simply because the request massively expansive.  Def.s Mem. 32.  The Secret Service notes that, prior the adoption the White Houses voluntary WAVES disclosure program September 15, 2009, records the WAVES database that implicated national security concerns were not flagged identified any way. See Declaration Nathan Tibbits, dated April 19, 2010 (Tibbits Decl.)  14-16.5  Thus, the Secret Service objects the burden that would imposed and other government officials they must review hundreds-of-thousands visitor records [created between January and September 2009], entry-by-entry, determine whether necessary exclude specific records particular visits from disclosure.  Def.s Mem. 32.  While the Court sensitive the burdens raised the plaintiffs broad brush request for all records certain type over nine-month period, including the need review such records for applicable exemptions, the Court not persuaded that the plaintiffs request requires blanket rejection. 
The Secret Service first asserts that a subset these records would unquestionably exempt from release pursuant various FOIA exemptions, including Exemption 5.  Id. 27. support this assertion, the Secret Service states that although WAVES and ACR records are not classified, broad-based disclosure WAVES records could have serious consequences for United States national security interests.  Id. (citing CIA Sims, 471 U.S. 159, 178 (1985), Edmonds Dept Justice, 405 Supp. 23, (D.D.C. 2005); ACLU Dept Justice, 321 Supp. 24, (D.D.C. 2004)). The Secret Service also cites case from the Central District California which the district court upheld agencys withholding The version the Tibbits Declaration filed the record was heavily redacted because contained classified material. See ECF No. 13-3.  The defendant filed unredacted copy the declaration with the Court, which the Court has reviewed camera.  The Courts decision takes into account the information conveyed the classified portions the declaration.  
information where the agency was unable determine which records two databases would exempt from disclosure under FOIA, because those databases do not contain any information necessary make that determination.  Def.s Mem. 28-29 (quoting L.A. Times U.S. Dept Labor, 483 Supp. 975, 986 (C.D. Cal. 2007)). These arguments are premature. the cases relied upon the defendant, the courts were ruling upon the propriety government assertions specific FOIA exemptions response FOIA requests.  See CIA Sims, 471 U.S. 178 (Exemption 3), Edmonds, 405 Supp. 32-33 (Exemption including assertion classification based mosaic theory); ACLU Dept Justice, 321 Supp. 35-37 (same); L.A. Times, 483 Supp. 981-86 (Exemption 6). this case, the defendant has yet assert any exemptions specifically.  While the Court will require defendant process the FOIA request, it entirely possible that the government will never have turn over single document given that the Secret Service may yet entitled withhold some all the documents under one more FOIAs nine exemptions. Citizens for Responsibility and Ethics Wash. U.S. Dept Homeland Sec., 532 F.3d 860, 863 (D.C. Cir. 2008) (hereinafter, CREW Appeal) (reviewing appeal the district courts denial similar government request for summary judgment and dismissing the appeal for lack jurisdiction). 
The Secret Service denies that should required process the FOIA request because certain records relating appointments made members the Presidents National Security Staff (NSS) would implicate national security concerns, and because it not feasible re-accumulate the necessary information determine which appointments between January 20, 2009 and September 15, 2009 could harm our Nations national security interests publicly disclosed. Def.s Mem. 27-30.  The defendant then goes generally assert that review WAVES records would not end with those generated the NSS, pointing other components the Executive Office the President that also schedule meetings concerning national security.  Id. (citing Tibbits Decl.  36). point does the Secret Service assert, however, that there are not least some records implicated plaintiffs FOIA request that could easily searched for, separated out, and disclosed without raising national security concerns.  For example, there may certain White House components whose visitors never implicate national security concerns.6 See Pl.s Reply Supp. Mot. for Partial Summ. and Oppn Def.s Cross-Mot. for Summ. 10.  Thus, while there are some limits what agency must satisfy its FOIA obligations, the defendant has not met its burden establish that the search requested the plaintiff unreasonable require blanket rejection.  See Nation Magazine, Wash. Bureau U.S. Customs Service, F.3d 885, 891 (D.C. Cir. 1995) (finding unreasonable require agency search through years unindexed files for records); cf. Ancient Coin Collectors Guild U.S. Dept State, 641 F.3d 504, 514 (D.C. Cir. 2011) (reversing part district courts grant summary judgment for agency because agency declarations failed address the adequacy search email backup tapes and archives).  
Therefore, the proper course action the Secret Service duly process plaintiffs FOIA request, disclose all segregable, nonexempt records, and then assert specific FOIA exemptions for all records seeks withhold.  See CREW Appeal, 532 F.3d 863. course, the Secret Service may well able assert certain FOIA exemptions over large numbers documents covered the plaintiffs request.  See, e.g., Edmonds, 405 Supp. 32-33 Defendants reply brief suggests that Secret Service records relating visits White House components that not implicate national security would still require burdensome review to identify those records reflecting non-national security meetings that are nonetheless sensitive for other reasons and are subject executive privilege Def.s Reply Supp. Cross-Mot. for Summ. (referring FOIA Exemption which relates civil privileges).  This argument further underscores the need for the defendant invoke particular FOIA exemptions and adduce evidence support those exemptions before the Court can rule their applicability. Ancient Coin Collectors Guild U.S. Dept State, 641 F.3d 504, 509 (D.C. Cir. 2011) (An agency withholding responsive documents from FOIA request bears the burden proving the applicability the claimed exemptions.). 
(upholding agencys withholding information under FOIA exemption where disclosure would release mosaic classified information); L.A. Times, 483 Supp. 986 (finding that properly asserted FOIA exemption also covered additional records that were not reasonably segregable from the exempt material contained the same database). this stage, however, the defendant has not met its burden show that the requested material either falls within FOIA exemption would unreasonably burdensome search.    

IV. CONCLUSION 
For the reasons detailed above, plaintiffs motion for partial summary judgment GRANTED and defendants cross-motion for summary judgment DENIED. Within twenty 
(20) days the issuance this Memorandum Opinion and the accompanying Order, the parties are directed meet and confer and file joint report proposing schedule for the remainder this litigation. The joint report shall also address whether, light this Courts ruling the applicability FOIA the records issue, and given the likelihood that least some those records will covered FOIA exemptions, the parties are able agree resolve this case without the Courts further intervention narrow the requests issue.  
DATED: August 17, 2011 /s/ Beryl Howell 
BERYL HOWELL 
United States District Judge