Digital Media and Data Privacy Law Blog

The Obama Administration has denied msnbc.com and the Citizens for Responsibility and Ethics in Washington ("CREW") access to the names of White House visitors. The Obama Administration’s position on visitor logs is consistent with that of the Bush Administration—but appears to be inconsistent with President Obama’s promise of transparency and openness declared earlier this year.

Msnbc.com has the complete story, including its own FOIA request for the visitor logs, CREW’s related FOIA request, and a copy of the complaint filed by CREW on June 15, 2009, in the District Court for the District of Columbia seeking, among other things, an order compelling the government to release the records requested by CREW.

CREW has been litigating the visitor log issue for some time. As reported on msnbc.com, CREW previously locked horns with the Bush Administration over access to the names of visitors to the White House and Vice President Dick Cheney’s residence. In its lawsuit against the Department of Homeland Security (the agency under which the Secret Service, the keeper of the visitor records, falls), a federal judge ruled that visitor logs are records subject to FOIA, not privileged presidential communications, and ordered DHS to process CREW’s FOIA request and release all responsive and nonexempt records.  

Here’s an excerpt of the district court’s January opinion concerning the presidential communications privilege:

The presidential communications privilege, as its name and the [D.C.] Circuit [Court]’s opinions suggest, extends only to communications. The visit records sought by plaintiff need only consist of the visitor’s name, date and time of visit, and in some cases the name of the person requesting access for the visitor and in some cases the name of the person visited. Such information sheds no light on the content of communications between the visitor and the President or his advisors, whether the communications related to presidential deliberation or decisionmaking, or whether any substantive communications even occurred. “The presidential communications privilege should never serve as a means of shielding information regarding governmental operations that do not call ultimately for direct decisionmaking by the President.”

Msnbc.com links to the full district court opinion here.

DHS filed an appeal of the district court’s January 2009 ruling to the D.C. Circuit on January 14, 2009—just a few days before President Obama’s inauguration. In April, the D.C. Circuit gave the new administration an opportunity to let the appeal go by issuing an order to show cause why the appeal should not be dismissed for lack of appellate jurisdiction.  Rather than backing away, the Obama Administration filed a brief in May 2009 requesting that the D.C. Circuit take jurisdiction to review the district court’s order. 

Stay tuned to see how the Obama Administration responds to CREW's FOIA lawsuit filed on June 15.  Thehill.com is reporting that the White House is now, as of June 16, "reviewing" its policy on access to visitor logs.