Every year, hundreds of thousands of visitors come and go from the White House for a myriad of reasons, including official policy sessions, ceremonies and personal meetings with the president.

With a nod toward greater transparency, President Barack Obama early in his administration began a voluntary disclosure program, publishing visitor logs online. “Americans have a right to know whose voices are being heard in the policymaking process,” he said in a formal statement in 2009.

But are all of the records open for public review? Confronting a lawsuit over access, a federal trial judge in Washington last year ordered the U.S. Secret Service to process a document request for the visitor logs. The U.S. Department of Justice is now fighting on appeal to keep the information secret, pitching national security and confidentiality concerns.

Last week, a DOJ lawyer tried to convince the U.S. Court of Appeals for the D.C. Circuit that visitor documents are not “agency records” subject to the Freedom of Information Act but, rather, protected presidential documents. A three-judge panel did not immediately rule.

“The White House has made much of its voluntary disclosure policy, but this is really a classic Washington misnomer,” said James Peterson, a lawyer at the conservative watchdog group Judicial Watch, which sued for the visitation records nearly three years ago. “Voluntary disclosure to the White House means: ‘We will disclose what records we want you to see and when we want you to see them.’ ”

The White House website trumpets its public disclosure of more than 2.5 million visitor names since September 2009. But the discretionary program comes with exceptions, including a 90- to 120-day delay in the release of the information. The White House, for instance, will not release the names of visitors “related to a small group of particularly sensitive meetings.” For instance: visits by potential U.S. Supreme Court nominees.


The issue before the D.C. Circuit is whether the visitor logs are “agency records” — that is, whether they belong to the Secret Service or to the office of the president. U.S. District Judge Beryl Howell, appointed by Obama, concluded last year that the logs were created by and under the control of the Secret Service and therefore were subject to public review.

DOJ Civil Division lawyers, including Mark Stern and Abby Wright, contend Judicial Watch is trying to circumvent its inability to access presidential records by going to the gatekeeper for the White House — the Secret Service. The Secret Service is required by law to protect the president and vice president, DOJ said.

Howell’s ruling, DOJ said in court papers, presents the president an “unacceptable” dilemma. Obama, DOJ lawyers argued, must either “surrender his rights to maintain confidentiality” with respect to visitors to the White House complex or decline to cooperate with the Secret Service. “The President cannot otherwise resolve the conundrum presented by the court’s ruling,” DOJ said in a brief in the D.C. Circuit.

A group of media outlets, including Bloomberg L.P., The Washington Post and National Public Radio — represented by a team from Willkie Farr & Gallagher — filed a brief in the D.C. Circuit in support of Judicial Watch.

Willkie litigation partner David Murray in Washington said in a brief that there’s no place under federal public record laws for “fear mongering.” The Secret Service, he said, can assert specific exemptions to argue that certain visitor records should not be publicly released.

“Once courts permit agencies to chip away at the legislative protections, [the Freedom of Information Act] will shrink from its status as an invaluable guarantor of transparency and turn it into a toothless statute that agencies can side-step with unilateral, blanket decisions about what should, and should not, be subject to FOIA,” Murray wrote.

Daniel Metcalfe, executive director of the Collaboration on Government Secrecy at American University Washing­ton College of Law, described the DOJ’s litigation position as “transparently self-serving.” (Metcalfe is not involved in the dispute.)

“It’s just one more in a series of sad examples — starting with poor government implementation of Obama’s new FOIA policy — showing the difference between talking a good openness game and competently playing that game,” he said.

Mike Scarcella can be contacted at mscarcella@alm.com.