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Secret Service Appellate Brief

Secret Service Appellate Brief

Page 1: Secret Service Appellate Brief

Category:General

Number of Pages:26

Date Created:April 23, 2012

Date Uploaded to the Library:February 20, 2014

Tags:Visitor, Appellant, stand, peterson, Homeland, control, Cheney, house, SECRET, AGENCY, White, service, president, watch, White House, records, judicial, Supreme Court, district, court, united, EPA, IRS, ICE, CIA


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NOT YET SCHEDULED FOR ORAL ARGUMENT] 
 
NO. 11-5282 THE 
UNITED STATES COURT APPEALS 
FOR THE DISTRICT COLUMBIA CIRCUIT 
__________ 
 
JUDICIAL WATCH, INC. 
 
Plaintiff-Appellee, 
 
UNITED STATES SECRET SERVICE 
 
Defendant-Appellant. 
__________ APPEAL FROM THE U.S. DISTRICT COURT 
FOR THE DISTRICT COLUMBIA 
__________ 
 
BRIEF APPELLEE 
__________ 
 
James Peterson 
JUDICIAL WATCH, INC. 
425 Third Street, S.W., Suite 800 
Washington,  20024 
(202) 646-5172 
 
Counsel for Plaintiff-Appellee 
 
 
CERTIFICATE PARTIES, RULINGS, AND RELATED CASES 
 
 Pursuant D.C. Cir. 28(a)(1), Plaintiff-Appellee Judicial Watch, Inc. (Judicial Watch), counsel, certifies follows: 
 (A) Parties and Amici.  The parties appearing the lower court and this appeal are Judicial Watch and Defendant-Appellant United States Secret Service (Secret Service). intervenors amici appeared before the District Court.  Amici support Judicial Watch are expected this appeal. 
 (B) Rulings Under Review.  The ruling under review this appeal the Memorandum Opinion and Order the District Court issued August 17, 2011.  Judicial Watch, Inc. Secret Service, No. 09-2312 (Judge Beryl Howell), published 803 Supp. and the Joint Appendix page 95. Related Cases.  This case has not previously come before this Court.  Counsel aware other related cases. 
 
      /s/  James Peterson
TABLE CONTENTS 
 
TABLE CONTENTS ............................................................................................                                                                                                                             
 
TABLE AUTHORITIES ................................................................................ iii                                                                                        
 
STATEMENT THE ISSUES PRESENTED .......................................................                                                     
 
TABLE RELEVANT STATUTES AND REGULATIONS ..............................                           
 
STATEMENT THE CASE ..................................................................................                                                                                  
 
STATEMENT FACTS ........................................................................................                                                                                           
 
SUMMARY ARGUMENT ................................................................................. 
ARGUMENT ............................................................................................................. The District Court Correctly Held That Secret Service Visitor Logs    Are Agency Records Subject FOIA .............................................. The Secret Service Created Obtained the Records ............. The Secret Service Controls the Records ................................ The White Houses Assertion Control                                                             Does Not Transform the Status Records                    and Has Legal Effect .................................................. 
   ii. This Case Different Than the Unique        Circumstances United Stand Am.  ........................ The Secret Services Own Actions Demonstrate                                                   Their Actual Control Over the Records ................................... 
  
II. The District Court Correctly Held That Constitutional            Concerns Are Implicated ..................................................................... 
  
CONCLUSION ........................................................................................................ 
 
CERTIFICATE COMPLIANCE 
 
CERTIFICATE SERVICE 
  
TABLE AUTHORITIES 
 
CASES 
 
American Historical Assn Peterson, 876 Supp. 1300                            (D.D.C. 1995)  ............................................................................................... 
Dept Justice Tax Analysts 492 U.S. 136 (1989)  .......................................... 
 
Cheney U.S. District Court, 542 U.S. 367 (2004) ......................................... 16, 
Consumer Fedn Am. Dept Agric., 455 F.3d 287                                                         (D.C. Cir. 2006)  .............................................................................................. 
*CREW U.S. Dept Homeland Security, 527 Supp.  
(D.D.C. 2007)  .................................................................. 12, 13,  
 
CREW U.S. Department Homeland Security, 532 F.3d 860                          (D.C. Cir. 2008)  ...................................................................................... 16, 
CREW U.S. Dept Homeland Sec., 592 Supp. 127                         (D.D.C. 2009)  ............................................................................................. re: Sealed Case, 148 F.3d 1073 (D.C. Cir. 1998)  .............................................. 
INS St. Cyr, 533 U.S. 289 (2001)  ........................................................................  
Judicial Watch, Inc. FHFA, 646 F.3d 924 (D.C. Cir. 2011)  ..........................  
Kissinger Reporters Committee for Freedom Press,                                         445 U.S. 136 (1980)....................................................................................... 
Paisley CIA, 712 F.2d 686 (D.C. Cir. 1983)  ....................................................... 
Ryan Dept Justice, 617 F.2d 781 (D.C. Cir. 1980)  ......................................... Authorities upon which Plaintiff-Appellee chiefly relies are marked with asterisks. 
*The Washington Post U.S. Dept Homeland Sec.,                                          459 Supp. (D.D.C. 2006)  .................................................... 
United States Oakland Cannabis Buyer Coop.,                                                 532 U.S. 483 (2001)....................................................................................... 
United Stand Am., Inc. IRS, 359 F.3d 595 (D.C. Cir. 2004). ........... 11, 
STATUTES U.S.C.  552  ........................................................................................................... 
MISCELLANEOUS Rep. No. 813, 89th Cong., 1st Sess., (1965)  ........................................................ 
Byron Tau, Depp, Burton Not W.H. Visitor Logs, Politico (Jan. 2012)  ......
STATEMENT THE ISSUES PRESENTED 
 
 Whether the District Court correctly held that visitor logs created and controlled the U.S. Secret Service are agency records subject the Freedom Information Act. 
TABLE RELEVANT STATUTES AND REGULATIONS 
 The relevant statute issue the Freedom Information Act. U.S.C.  
 552. 
STATEMENT THE CASE 
 This case concerns Freedom Information Act (FOIA) request for Secret Service visitor logs and whether such records are subject FOIA. date, three different courts have examined this issue, including the District Court below, and all three have concluded that the requested records are agency records and must processed response properly submitted FOIA request.   
 The District Court determined that visitor logs the White House created and controlled Secret Service are agency records and subject FOIA.  The District Court ordered the Secret Service process the FOIA request, disclose all segregable, nonexempt records, and assert specific FOIA exemptions for any records seeks withhold otherwise demonstrate that would unreasonably burdensome search for such withheld records.  Joint Appendix (JA) 93.  The Secret Service then filed this appeal. 
STATEMENT FACTS August 10, 2009, Judicial Watch sent FOIA request the Secret Service seeking access [a]ll visitor logs and/or other records concerning visits made the White House from January 20, 2009 the present.  JA49. October 2009, the Secret Service responded letter stating that the agency interpreted the FOIA request encompass Access Control Records System (ACR) records and/or Workers Visitors Entry System (WAVES) records@ and asserted that the requested records Aare not agency records subject the FOIA.  Id.  The Secret Service further claimed that the records are Agoverned 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.@  Id.  Following the Secret Service=s denial the administrative appeal, this lawsuit was filed December 2009.  Id.  
SUMMARY ARGUMENT 
 
 The Secret Service before this Court arguing claim rejected least three different occasions.  Not only does the Secret Service continue assert that visitor logs are not agency records, but also tries invoke the separation powers doctrine, order remove the records entirely from FOIA.  Hence, according the Secret Service, should not even have process Judicial Watchs FOIA request. 
 The Secret Service has failed respond properly FOIA request for visitor records that the agency creates and maintains part its statutory responsibilities and that now three courts have concluded are agency records.  Rather than rely the statutory scheme that Congress put place when enacted the FOIA and that provides agency opportunity withhold material that falls within nine specified categories, the Secret Service and the White House attempt co-opt agency records and place them beyond the reach this Court and  for the foreseeable future  the public.   
 The issue whether Secret Service visitor logs are agency records has been thoroughly examined the district court level, with three different judges concluding that they are, and that the White House cannot unilaterally decide that records created and maintained federal agency can removed from reach FOIA.  Finally, even certain visitor logs might somehow raise legitimate confidentiality concerns the President, the proper approach under FOIA for the agency process the request and prove that any claims exemption might assert are proper.  The Secret Service failed this. 
 Instead, the Secret Service (parroting the White House) trumpets voluntary disclosure policy under which the White House releases only certain visitor records that sees fit release time its choosing.  This policy entirely irrelevant here does not any way excuse the Secret Service from its 
responsibilities under FOIA.1 agency cannot opt out FOIA simply because the White House has other plans. any event, published reports already have questioned whether the voluntary disclosure process being used prevent certain embarrassing records White House visits from being released.  Byron Tau, Depp, Burton Not W.H. Visitor Logs, Politico (Jan. 2012).  
 Despite the objections raised the Secret Service, the legal issue before this Court remains straightforward  whether Secret Service visitor logs are agency records under FOIA.  If, prior courts below have concluded, the records are subject FOIA, the Secret Service will then simply required process Judicial Watchs request and assert exemptions provided for under FOIA.  The District Court should upheld. 
ARGUMENT set forth the U.S. Supreme Court, materials requested under FOIA are agency records they are (1) either created obtained the agency, and (2) under agency control the time the FOIA request made.  Dept Justice Tax Analysts, 492 U.S. 136, 144-45 (1989).  Importantly, the burden falls the agency establish that documents are not agency records.  492 U.S. 142 n.3 (The burden the agency demonstrate, not the requestor disprove, that the materials sought are not agency records .) (citing Rep. No. 813, 89th Cong., 1st Sess., (1965)). other cases examining whether records are under agency control, this Court has employed four-part test aid its inquiry.  Judicial Watch, Inc. FHFA, 646 F.3d 924 (D.C. Cir. 2011).  Under the test, while considering the totality the circumstances, court balances four factors: (1) the intent the documents creator retain relinquish control over the records, (2) the ability the agency use and dispose the records sees fit, (3) the extent which the agency personnel have read relied upon the document, and (4) the degree which the document was integrated into the agencys record system files.  Id. 926-27; United Stand Am., Inc. IRS, 359 F.3d 595, 599 (D.C. Cir. 2004); Consumer Fedn Am. Dept Agric., 455 F.3d 283, 287 (D.C. Cir. 2006) (noting that the courts totality the circumstances test seeks vindicate Congress purpose to open agency action the light public scrutiny) (internal quotation omitted). The District Court Correctly Held That Secret Service Visitor Logs  Are  Agency Records Subject FOIA. 
 The District Court, like two courts before it, squarely held that Secret Service visitor logs are agency records under FOIA.  JA95-113; CREW U.S. Dept Homeland Security, 527 Supp. 76, (D.D.C. 2007); CREW U.S. Dept Homeland Sec., 592 Supp. 127 (D.D.C. 2009) (reaffirming same conclusion agency records); accord The Washington Post U.S. Dept Homeland Sec., 459 Supp. 61, (D.D.C. 2006) (on motion for preliminary 
injunction, holding plaintiff had likelihood success because White House visitor records sought are agency records subject FOIA) (voluntarily dismissed). material facts were issue, the District Court properly granted partial summary judgment this straightforward legal issue. The Secret Service Created Obtained the Records. 
 The Secret Service does not contest here (or the District Court below) that visitor logs are created the Secret Service furtherance the agencys statutorily mandated protective function.  JA101; CREW U.S. Dept Homeland Sec., 527 Supp. (The Secret Services affidavits show that the visitor records were created obtained the Secret Service.) (citation omitted).  The requested records are generated two electronic systems the Secret Service uses monitor visitors the White House  the Worker and Visitor Entrance System (WAVES) and the Access Control Records System (ACR).  WAVES records include information White House pass holders provide advance the Secret Service  the proposed visitors identifying information (name, date birth, social security number), time and location the scheduled appointment, name the person submitting the request, name the recipient the visitor, date the request, and type visitor expected (e.g., press, temporary worker)  well any additional information the Secret Service adds result background check.  CREW U.S. Dept Homeland Sec., 527 Supp. 
80.  ACR records are created when visitor swipes his her pass upon entering exiting the White House Complex, and include the visitors name and badge number, the time and date his her entry and exit, and the specific post that recorded the swipe.  Id. prior review the issue, the Honorable Royce Lamberth concluded that visitor logs are created obtained the Secret Service  indicating agency record status based the process which the visitor records are generated, 527 Supp. 90-91  and that they are created primarily for the agencys use.  Id. 91.  The identical conclusion was reached The Washington Post U.S. Dept Homeland Sec., 459 Supp. 61, (D.D.C. 2006) (Urbina, J.) (on motion for preliminary injunction, plaintiff had likelihood success that visitor logs were created obtained the Secret Service).  And this case, the District Court held that, despite the fact that information inputted into the records provided the White House the Secret Service, this does not alter that the Secret Service that creates the records fulfillment its statutory duties.  JA102. 
 Thus, the District Court correctly held that, based the undisputed facts how visitor logs are generated, the requested records are created obtained the Secret Service, satisfying the first prong the Tax Analysts test. The Secret Service Controls the Records. 
 The District Court, did the two prior reviewing courts, also properly held that Secret Service visitor logs are under agency control.  Applying this Courts four-part test determine agency control, the District Court concluded that even though the Secret Service intends relinquish control the visitor logs (relevant the first factor), the other three factors weigh favor the records agency records.  JA102-107. 
 The District Courts conclusion was entirely accord with the ruling CREW U.S. Dept Homeland Sec., 527 Supp. 76, (D.D.C. 2007). that case, Judge Lamberth ha[d] difficulty concluding the visitor records are under the Secret Services control.  Id. 97.  While the Secret Service claimed intention control the records, its historical use the visitor records suggests that does fact control the records.  Id.  Accordingly, the Court held use trumps intent.  Id. Judge Lamberth reasoned, [b]ecause the Secret Service creates, uses and relies on, and stores the visitor records, in the legitimate conduct its official duties, they are under its control.  Id. (citing Tax Analysts, 492 U.S. 145).  See also CREW U.S. Dept Homeland Sec., 592 Supp. 127 (D.D.C. 2009) (reaffirming same conclusion agency records); accord Washington Post, 459 Supp. 61. reason exists disturb these rulings. this appeal, the Secret Service does not seriously contest that the application the four-part test determine agency control yields the conclusion that the visitor logs are agency records.  Instead, criticizes the District Court for its rote application the four-part test (Appellant Br. 26) and asserts that the four-part test not applicable all.  The Secret Service argues that (1) Memorandum Understanding between the agency and the White House allegedly shifts control the records, and (2) the request this case comparable the congressional documents issue United Stand Am., Inc. IRS, 359 F.3d 595 (D.C. Cir. 2004).  These claims, however, offer support for abandoning the Courts well-established four-part test determine agency control. The White Houses Assertion Control Does Not      Transform the Status Records and Has Legal Effect. initial matter, agency cannot unilaterally decide that FOIA does not apply agency records generated while serving the President.  See Ryan Dept Justice, 617 F.2d 781, 788 (D.C. Cir. 1980). the Court Ryan held, [the] logical conclusion from the FOIA language and from Soucie2 that particular unit either agency not.  Once unit found agency, this determination will not vary according its specific function each case.  Id. 788.  The Court further stated that federal agency makes determinations about what and not agency record based agencys particular functions Soucie David, 448 F.2d 1067 (D.C. Cir.1971). 
related the President, records could somehow transformed into records not subject FOIA, and that this does not appear either realistic intended distinction under the Freedom Information Act.  Id. 787. 
 The Secret Service (along with the White House) attempting just such transformation this case.  See Appellant Br. (The White House all times maintains exclusive legal custody and control the records and [the records] are thus not agency records subject disclosure under FOIA).  Together they are attempting manipulate the legal status Secret Service records order convert them into non-agency records.  Their argument hinges Memorandum Understanding executed 2006 between the Secret Service and the White House that purports give the White House full exclusive legal custody and control the visitor logs.3  This Court, however, has previously concluded that takes far more than legal custody have control for purposes FOIA.  Judicial Watch, Inc. FHFA, 646 F.3d 924 (D.C. Cir. 2011) (But our cases have never suggested that ownership means control.). Not surprisingly, this MOU was executed approximately four months after Judicial Watch and CREW submitted FOIA requests relating visits the White House convicted lobbyist Jack Abramoff. 
 Further, one court has already found, the White House cannot change the legal status document simply executing MOU.  See American Historical Assn Peterson, 876 Supp. 1300 (D.D.C. 1995) (addressing the legality 
MOU entered into President Bush which purported retain exclusive legal control over materials subject the PRA after left office). MOU all that was necessary remove records from the ambit FOIA, assigning legal custody away from the agency, then wide swaths agency records are subject removal from agency access.  Notably, this precisely the type purposeful routing agency record out agencys possession about which the U.S. Supreme Court warned Kissinger Reporters Committee for Freedom Press, 445 U.S. 136, 155 (1980) (warning that federal agencies may engage such transfers avoid impending FOIA request).   
 The White Houses similar efforts here manipulate the legal status Secret Service records are avail.  Control, for purposes FOIA, not dictated execution self-serving agreement. agency and the White House cannot transform the status agency record executing mere agreement that has legal effect. 
  ii. This Case Different Than the Unique        Circumstances United Stand Am. 
 Relying this supposedly important, but ineffectual, assertion control MOU, the Secret Service argues that this case the equivalent United Stand Am.  Appellant Br. 19-24.  That case, however, distinctly different. United Stand Am., this Court examined a FOIA request for document that the Internal Revenue Service prepared the direction 
congressional committee.  359 F.3d 597.   Finding sufficient indicia congressional intent control the congressional committee's request[,] and those portions the IRS response that would reveal the request, the court concluded that neither Congress nor the agency ha[d] exclusive control over the document.  Id. 600, 604. The court held, result, that only those portions the IRS response that would reveal the congressional request are not subject FOIA.  Id. 597. addition, and critical the Courts conclusion, was specific confidentiality directive that appeared the committees request.  This directive made plain Congress specific intent retain control over the agency-generated document. this case, the Secret Service has relied similar confidentiality directive. fact, undisputed that visitor information transferred the Secret Service many forms many different individuals.  The records issue here are created employees the Secret Service within the scope their official duties.  They are created  
from three distinct sources information: the White House, the Secret Service, and the visitor.  The first source authorized White House pass holder, who may may not member the Presidents Vice-Presidents staff.  The pass holder will transfer the Secret Service, usually electronically, but sometimes telephone, facsimile, e-mail, paper, information upcoming visit.   
527 Supp. 89.  Hence, there contemporaneous request member the Presidents staff, United Stand America, demonstrating specific intent control the records.  The various visitor information transmitted the Secret Service thus lacks the explicit and unambiguous confidentiality limitation that was clearly decisive United Stand America. 
 This case also very different that involves regularly created record the agency fulfillment its statutory duties.  Thus, unlike United Stand America, where specific record was created for congressional committee, the visitor logs are created primarily for the agencys use, order fulfill its statutory duties.  The fact that some the records would not have been created but for visits connected the President does not alter their status diminish the existence Secret Service control.  To hold otherwise would exempt from FOIAs purview broad array materials otherwise clearly categorizable agency records, thereby undermining the spirit broad disclosure that animates the Act.  Paisley CIA, 712 F.2d 686, 696 (D.C. Cir. 1983). The Secret Services Own Actions Demonstrate Their Actual    Control Over the Records 
 Further compelling evidence the Secret Services actual control over the visitor logs that the agency has fact provided visitor logs Judicial Watch and other parties previously. response prior FOIA requests, the Secret Service plainly had control over the records issue such that provided them 
Judicial Watch and other FOIA requestors.  JA50 (Fitton Decl.  JA10 (Declaration Kathy Lyerly, Civ. Action No. 06-0310 (D.D.C.),  14, 19).  See also JA24 (Declaration Kathy Lyerly, Civ. Action No. 06-0883 (D.D.C.),   ([T]he Secret Service released CREW, May 10, 2006 and July 2006, its WAVES and ACR data/records concerning Jack Abramoff.). those instances, the Secret Service had sufficient control produce WAVES and ACR records, including records discovered searches the agencys computer hard drives. time did the Secret Service suggest that had less than full control over its use and disposition the records, which were currently its possession.  For example, describing its search for records responsive one Judicial Watchs prior FOIA requests, Ms. Lyerly stated: 
the FOI/PA Office conducted search for responsive information.  This search was conducted under the direction the Secret Services Presidential Protective Division personnel who conduct FOIA searches part their regular responsibilities. 
 
JA9 ( 9).  Ultimately, Judicial Watch Secret Service, Civ. Action No. 06-310 (D.D.C.), the Secret Service agreed bound court-ordered stipulation that required the agency  not the White House any other entity  produce the visitor logs, action that plainly demonstrates the agencys ability use and dispose the records sees fit.  JA5 (Joint Stipulation and Agreed Order, Civ. Action No. 06-0310 (D.D.C.)).  Pursuant the terms the joint stipulation and 
agreed order, May 10, 2006, the Secret Service produced, without redactions claims exemption, all documents located response Judicial Watchs January 20, 2006 FOIA request. entering into binding stipulation, the Secret Service clearly conceded that had sufficient control over the records issue comply with the terms the stipulation.  Moreover, ultimately producing the requested records Judicial Watch, the Secret Service demonstrated that had the requisite control over the records. directly relevant and persuasive precedent and the agencys own actions make clear, the Secret Service has control the requested records.  Accordingly, the requested visitor logs are clearly agency records subject FOIA.    
II. The District Court Correctly Held That Constitutional Concerns  Are Implicated. 
 
 The District Court properly rejected the Secret Services claims, repeated now this Court, that application FOIA the visitor logs should avoided would raise constitutional concerns.  JA108; Appellant Br. 28. recognized the District Court, the doctrine constitutional avoidance has application here.   
 First, the doctrine, which requires court construe statute avoid serious constitutional problems, applies only statute that fairly subject two potential interpretations, one which raises serious constitutional problems and the other which does not .  INS St. Cyr, 533 U.S. 289, 299 (2001).  
The doctrine, however, has application the absence statutory ambiguity.  United States Oakland Cannabis Buyer Coop., 532 U.S. 483, 494 (2001). 
 Here, the District Court clearly determined, the Secret Service has established ambiguity FOIA that would justify application the constitutional avoidance doctrine.  JA108-109.  The Secret Services concerns, Judge Urbina aptly stated, not serve license for the court transmute the meaning unambiguous statute.  459 Supp. 72.  Echoing this conclusion, Judge Lamberth held that the doctrine constitutional avoidance applies only where the statute open more than one possible interpretation, which not this case here.  527 Supp. (citations omitted).   
 Second, the Secret Services purported constitutional concerns regarding threat the autonomy the President and the confidentiality his communications already have been addressed this Court.  Appellant Br. 28-29 (relying Cheney U.S. District Court, 542 U.S. 367 (2004)).  This Court previously considered and dispensed with this argument, noting that exemptions under FOIA are available the event any legitimate concerns confidentiality.  CREW U.S. Department Homeland Security, 532 F.3d 860, 865 (D.C. Cir. 2008) (dismissing prior appeal Secret Service for lack appellate jurisdiction). this prior review, the Court found unpersuasive the governments argument that [application FOIA Secret Service visitor logs] implicates the same separation-of-powers concerns present Cheney.  Id. 865.  The Court specifically rejected the argument that requiring the Secret Service review FOIA requests for its visitor logs tantamount the discovery request issue Cheney.  Id.  Critical this conclusion was the fact that Cheney involved discovery request the Vice President, whereas the FOIA request issue that case (same here) was directed the Secret Service, agency indisputably subject FOIA.  The Court found significant that the Secret Service conceded that had previously processed visitor logs requests after consulting with the White House (id. 866) and noted the carefully structured process with FOIA deal with requests that might reveal too much about presidential communications.  Id.4  The Court concludes that routine FOIA requests agencies not ring the same alarm bells did the discovery request Cheney.  Id. 867.  This case different. Any suggestion that this case distinguishable from the request before the Court because the number records requested without merit.  The Secret Service itself claims that has process for voluntary release visitor logs that has reviewed now more than million visitor log entries.  Appellant Br. any event, the scope the request was not ruled upon the District Court and not before this Court now. 
 Finally, the Secret Services suggestion that this case somehow puts odds the Presidents right maintain confidentiality with the Secret Services ability protect the President particularly inapt.  Appellant Br. 27. fact, this Court has previously held that blanket right confidentiality applies the Secret Service. re: Sealed Case, 148 F.3d 1073 (D.C. Cir. 1998).  There, the Court denied the Secret Service special protective function privilege exempt employees from testifying before the grand jury convened the Whitewater independent counsel.  Similarly, this case, the Secret Service, and its visitor logs, lack any special exemption from the well-established FOIA law. 
CONCLUSION 
 
 For the foregoing reasons, the District Courts Order and Opinion that Secret Service visitor logs are agency records should upheld. 
 
Dated:   April 23, 2012   Respectfully submitted, 
 
      JUDICIAL WATCH, INC. 
      
 
      /s/  James Peterson        
      425 Third Street, S.W., Suite 800 
      Washington, D.C. 20024 
      (202) 646-5172 
      (202) 646-5199 (fax) 
 
      Counsel for Plaintiff-Appellee 
  
CERTIFICATE COMPLIANCE 
 The undersigned certifies that this brief complies with the type-volume limitations Fed. App. 32(a)(7).  The brief, excluding exempted portions, contains 4,972 words (using Microsoft Word 2010), and has been prepared proportional Times New Roman, 14-point font. 
 
       /s/ James Peterson 
  
CERTIFICATE SERVICE hereby certify that this 23rd day April 2012, filed via the CM/ECF system the foregoing BRIEF APPELLEE with the Clerk the Court.  Participants the case are registered CM/ECF users and service will accomplished the Appellate CM/ECF system. also certify that caused eight copies delivered the Clerk Court via hand delivery. 
 
     /s/ James Peterson