Doyle v. U.S. Dep't of Homeland Sec.
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Opinion
KATHERINE POLK FAILLA, United States District Judge
Plaintiffs Kate Doyle, National Security Archive ("NSA"), Citizens for Responsibility *35and Ethics in Washington ("CREW"), and Knight First Amendment Institute (collectively, "Plaintiffs") initiated this action against the United States Department of Homeland Security ("DHS") and the Executive Office of the President ("EOP," and with DHS, "Defendants"), after Doyle unsuccessfully attempted to obtain, under the Freedom of Information Act ("FOIA"),
Defendants have moved for summary judgment on Plaintiffs' FOIA claims and to dismiss the remainder of Plaintiffs' claims for lack of subject matter jurisdiction and, alternatively, for failure to state a claim. For the reasons that follow, the Court grants in part and denies in part Defendants' motion for summary judgment, and grants Defendants' motion to dismiss in full.
BACKGROUND1
A. Factual Background
1. The Parties
a. The Plaintiffs
"Plaintiff [NSA] is an independent, non-governmental, non-profit research institute organized under section 501(c)(3) of the Internal Revenue Code." (Am. Compl. ¶ 5). The NSA obtains government documents through FOIA, and "collects, analyzes, and publishes" them "to enrich scholarship and journalism ..., and to promote openness and government accountability." (Id. ). Plaintiff Kate Doyle is a senior analyst focusing on United States policy in Latin America, who works in NSA "to open and analyze government files, including through the use of the FOIA." (Id. at ¶ 4).
"Plaintiff CREW is a non-profit, non-partisan organization organized under section 501(c)(3) of the Internal Revenue Code." (Am. Compl. ¶ 6). CREW advocates for government openness and accountability through "a combination of research, litigation, and advocacy." (Id. ). A similar operation, Plaintiff Knight First Amendment Institute at Columbia University is a New York not-for-profit corporation seeking "to preserve and expand the freedoms of *36speech and the press" through "litigation, research, and public education." (Id. at ¶ 7). Both organizations utilize FOIA requests in furtherance of their missions. (See
b. The Defendants
DHS is a federal agency that includes, as one of its components, the United States Secret Service, which is required by statute to provide security to the President and Vice President. See
The Executive Office of the President (the "EOP") comprises various bodies, including the White House Office, which, in turn, includes the President's immediate staff, the White House Counsel's Office, and the Staff Secretary's Office. (Herndon Decl. ¶ 2). The EOP also encompasses the Council on Environmental Quality ("CEQ"); the Office of Management and Budget ("OMB"); the Office of National Drug Control Policy ("ONDCP"); the Office of Science and Technology Policy ("OSTP"); and the Office of the United States Trade Representative ("USTR"). (Am. Compl. ¶ 9).
2. Records of Presidential Visitors
Plaintiffs seek from the DHS records maintained by the Secret Service spanning the period of January 20, 2017, through March 8, 2017, related to visits to the White House and to President Trump at his Mar-a-Lago and Trump Tower residences. (See Am. Compl. ¶¶ 1, 34, 39). DHS contends that although the security responsibility of the Secret Service extends to the White House Complex, it "does not have a similar statutory authority to protect Mar-a-Lago or Trump Tower." (Murray Decl. ¶ 3). The declarations that DHS has submitted in support of its motions thus focus on the policies and procedures attendant to records of White House Complex visitors, and this section summarizes those guidelines.
a. Records of White House Complex Visitors
In order to vet, identify, and monitor visitors to the White House Complex, the Secret Service employs two interconnected electronic systems: (i) the Executive Facilities Access Control System ("EFACS"), through which the Secret Service controls and monitors White House Complex access; and (ii) the Worker and Visitor Entrance System ("WAVES"), which the Secret Service uses to vet visitors to the White House Complex. (Murray Decl. ¶¶ 6-7).
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KATHERINE POLK FAILLA, United States District Judge
Plaintiffs Kate Doyle, National Security Archive ("NSA"), Citizens for Responsibility *35and Ethics in Washington ("CREW"), and Knight First Amendment Institute (collectively, "Plaintiffs") initiated this action against the United States Department of Homeland Security ("DHS") and the Executive Office of the President ("EOP," and with DHS, "Defendants"), after Doyle unsuccessfully attempted to obtain, under the Freedom of Information Act ("FOIA"),
Defendants have moved for summary judgment on Plaintiffs' FOIA claims and to dismiss the remainder of Plaintiffs' claims for lack of subject matter jurisdiction and, alternatively, for failure to state a claim. For the reasons that follow, the Court grants in part and denies in part Defendants' motion for summary judgment, and grants Defendants' motion to dismiss in full.
BACKGROUND1
A. Factual Background
1. The Parties
a. The Plaintiffs
"Plaintiff [NSA] is an independent, non-governmental, non-profit research institute organized under section 501(c)(3) of the Internal Revenue Code." (Am. Compl. ¶ 5). The NSA obtains government documents through FOIA, and "collects, analyzes, and publishes" them "to enrich scholarship and journalism ..., and to promote openness and government accountability." (Id. ). Plaintiff Kate Doyle is a senior analyst focusing on United States policy in Latin America, who works in NSA "to open and analyze government files, including through the use of the FOIA." (Id. at ¶ 4).
"Plaintiff CREW is a non-profit, non-partisan organization organized under section 501(c)(3) of the Internal Revenue Code." (Am. Compl. ¶ 6). CREW advocates for government openness and accountability through "a combination of research, litigation, and advocacy." (Id. ). A similar operation, Plaintiff Knight First Amendment Institute at Columbia University is a New York not-for-profit corporation seeking "to preserve and expand the freedoms of *36speech and the press" through "litigation, research, and public education." (Id. at ¶ 7). Both organizations utilize FOIA requests in furtherance of their missions. (See
b. The Defendants
DHS is a federal agency that includes, as one of its components, the United States Secret Service, which is required by statute to provide security to the President and Vice President. See
The Executive Office of the President (the "EOP") comprises various bodies, including the White House Office, which, in turn, includes the President's immediate staff, the White House Counsel's Office, and the Staff Secretary's Office. (Herndon Decl. ¶ 2). The EOP also encompasses the Council on Environmental Quality ("CEQ"); the Office of Management and Budget ("OMB"); the Office of National Drug Control Policy ("ONDCP"); the Office of Science and Technology Policy ("OSTP"); and the Office of the United States Trade Representative ("USTR"). (Am. Compl. ¶ 9).
2. Records of Presidential Visitors
Plaintiffs seek from the DHS records maintained by the Secret Service spanning the period of January 20, 2017, through March 8, 2017, related to visits to the White House and to President Trump at his Mar-a-Lago and Trump Tower residences. (See Am. Compl. ¶¶ 1, 34, 39). DHS contends that although the security responsibility of the Secret Service extends to the White House Complex, it "does not have a similar statutory authority to protect Mar-a-Lago or Trump Tower." (Murray Decl. ¶ 3). The declarations that DHS has submitted in support of its motions thus focus on the policies and procedures attendant to records of White House Complex visitors, and this section summarizes those guidelines.
a. Records of White House Complex Visitors
In order to vet, identify, and monitor visitors to the White House Complex, the Secret Service employs two interconnected electronic systems: (i) the Executive Facilities Access Control System ("EFACS"), through which the Secret Service controls and monitors White House Complex access; and (ii) the Worker and Visitor Entrance System ("WAVES"), which the Secret Service uses to vet visitors to the White House Complex. (Murray Decl. ¶¶ 6-7).
Authorized White House Complex passholders may request permission for a visitor to the White House Complex by providing visitor information to the Secret Service through a system called "Appointment Center" or the "WAVES Request System" ("WRS"). (Murray Decl. ¶ 8). Through these systems, WAVES gathers information related to prospective visitors, which information allows a Secret Service member to verify that the requestor is authorized to make appointments for the location requested, to acquire additional information, to conduct a background check, and to transmit the information to the EFACS server. (Id. ). WAVES records include a variety of information fields, such as whether a visit is related to a certain *37event at the White House Complex or is subject to certain restrictions. (Id. at ¶ 9).
When an individual receives approval to visit the White House Complex, he or she typically receives a badge to "swipe" over electronic badge readers located at entrances and exits to the White House Complex; each swipe generates an "Access Control Record" ("ACR") within the EFACS system. (Murray Decl. ¶ 10). An ACR contains information such as the visitor's name, and the date, time, and location at which the ACR was generated, which, "[o]nce a visit takes place," is integrated into the WAVES records. (Id. at ¶¶ 10-11). These aggregated records contain information identifying the visitor, visitee, and individual who made the appointment; as well as details of the visit, such as the points of entry and departure, the type of escort the visit requires, and whether the visit involved a highly sensitive meeting. (Willson Decl. ¶ 7). This dispute principally revolves around WAVES and ACR records.
b. Recordkeeping Practices Related to WAVES and ACR Records
DHS contends that because the Secret Service utilizes WAVES records to vet potential visitors and verify visitors' admissibility at the time of a visit, the Secret Service ceases to have an interest in maintaining such information after the completion of a visit. (See Murray Decl. ¶¶ 8, 13). Thus, "[s]ince at least 2001," the Secret Service has maintained a practice of transferring WAVES records to the White House Office of Records Management ("WHORM") "generally every 30 to 60 days." (Id. at ¶ 13; see also Droege Decl. ¶ 4). "[A]s early as 2001," the White House and Secret Service agreed that ACR records "should be treated in a manner generally consistent with WAVES records," and thus, "[s]ince at least 2006," the Secret Service has transferred ACR records to the WHORM every 30 to 60 days. (Droege Decl. ¶ 5).
"[S]ince at least 2009," the Secret Service has transferred WAVES records to WHORM every 30 days. (Murray Decl. ¶ 13; see also Willson Decl. ¶ 5; Droege Decl. ¶ 4). After transferring the records, "[i]t is the intent of the Secret Service" that the records "be erased from [their] computer system," and WAVES records over 60-days old are normally "auto-deleted" and "overwritten on the servers." (Murray Decl. ¶ 13; see also Willson Decl. ¶ 6 ("Records that are older than 60 days are ordinarily auto-deleted from the server operated by the Secret Service on a rolling basis.") ).2 "Currently, the after-visit records that are transferred to the WHORM constitute a combination of WAVES and ACR information." (Murray Decl. ¶ 15).
In May 2006, the Secret Service Records Management Program and WHORM entered into a Memorandum of Understanding (the "2006 MOU"), which reflected the above practices regarding WAVES and ACR records. (See Murray Decl. ¶ 14; Droege Decl. ¶ 6). The 2006 MOU also expressed the Secret Service's and WHORM's understanding that such records "are at all times Presidential Records," "are not Federal Records," and "are not the records of an 'agency' subject to the Freedom of Information Act[.]" (Murray Decl., Ex. A at ¶ 17). The 2006 MOU also provided that (i) such records "are at all times under the exclusive legal custody and control of the White House"; (ii) only the White House has a "continuing interest"
*38in such records; (iii) "the Secret Service has no continuing interest in preserving or retaining" such records; and (iv) the Secret Service "will regularly transfer" such records to WHORM. (Id. , Ex. A at ¶¶ 18, 20-22).
On March 19, 2015, President Obama issued a memorandum creating the position of the Director of White House Information Technology ("DWHIT"), who is "responsible for the information resources and information systems provided to the President, Vice President and [EOP]." (Herndon Decl. ¶¶ 1, 3). The memorandum also established the Presidential Information Technology Community in order to "bring[ ] various [information] systems and resources into a single community under the auspices of the DWHIT," which "would enhance the security of those systems and resources." (Id. at ¶¶ 3-4). Pursuant to the authority vested by President Obama's memorandum and in furtherance of the aims of that memorandum, in September 2015, the Presidential Information Technology Community entered into a Memorandum of Understanding with the member-entities of the Presidential Information Technology Community (the "2015 MOU"), including the Secret Service,3 which MOU purported to provide protocols governing its operations. (Id. at ¶¶ 5-6).
The 2015 MOU provides that "[a]ll records created, stored, used, or transmitted by, on, or through the unclassified information systems and information resources provided to the President, Vice President, and EOP shall remain under the exclusive ownership, control, and custody of the President, Vice President, or originating EOP component." (Murray Decl. ¶ 17 (alteration in original); see also Herndon Decl. ¶¶ 8-9). Pursuant to the 2015 MOU-and despite the facts that the "WAVES servers are located at the Secret Service's headquarters ... and Secret Service personnel operate this machinery"-DHS maintains that "the President is the business owner of the EFACS and WAVES systems, and the Secret Service operates those systems on behalf of the President, acting as a service provider." (Murray Decl. ¶ 16). As a result of the 2015 MOU, after a visit has concluded, the Secret Service must request permission from the White House to view records of the visit, and if the records have been transferred to WHORM, the Secret Service must also contact WHORM to access the records. (Id. at ¶ 19). The Secret Service must similarly request permission from the DWHIT to modify the WAVES or EFACS systems. (Id. at ¶ 20).
Under the Obama Administration, on September 15, 2009, the White House implemented a policy of voluntarily disclosing certain information contained in WAVES and ACR records. (Droege Decl. ¶ 12). This disclosure policy contained various exceptions, including information implicating personal privacy or law enforcement concerns, personal safety of EOP staff, and national security concerns. (Id. at ¶ 13). The current administration rescinded this policy on April 14, 2017. (Id. at ¶ 14).
3. The FOIA Requests Preceding This Litigation
a. Plaintiffs' FOIA Requests
Plaintiffs allege that on January 23, 2017, Plaintiff Kate Doyle sent a FOIA request via facsimile to the Secret Service "requesting all WAVES and ACR records for" January 20 through January 22, 2017. (Am. Compl. ¶ 34). More specifically, Doyle *39requested 28 data fields that were previously made available to the public through the Obama Administration's Visitor Records Requests website. (Id. ). After receiving no response from the Secret Service, on February 24, 2017, Doyle sent an administrative appeal of her request to the Secret Service via facsimile. (Id. at ¶ 35). DHS contends that it has no record of receiving either the initial request or the administrative appeal, but it acknowledges that after filing the complaint in this case, Plaintiffs provided documentation indicating that both the request and administrative appeal had been faxed to the DHS. (Campbell Decl. ¶¶ 4-5).
In any event, on March 10, 2017, Plaintiffs sent a second FOIA request to the Secret Service, seeking the extraction of the same 28 data fields from (i) "all WAVES and ACR records from January 20, 2017 until March 8, 2017," and (ii) "records of presidential visitors at Mar-a-Lago and Trump Tower from January 20, 2017 to March 8, 2017." (Am. Compl. ¶ 39). This second request also sought expedited processing "in light of [Plaintiffs'] significant concerns ... about how President Trump [was] using his private properties at Mar-a-Lago and Trump Tower, the extensive media coverage of this issue, and the refusal of the President to date to commit to releasing the visitor logs data." (Id. at ¶ 40). Unlike the first request, DHS acknowledges receiving this request, to which DHS responded by letter on April 11, 2017, in which it denied Plaintiffs' request for expedited treatment. (See Campbell Decl. ¶ 6;
b. The Secret Service's Response to the Requests
In response to Plaintiffs' FOIA requests, DHS maintains that WAVES and ACR records are not Secret Service records, but rather are Presidential Records not subject to FOIA; DHS therefore "did not seek to search for, locate, or process these records." (Campbell Decl. ¶ 7). Further, "the Secret Service "was aware that President Trump had not traveled to Trump Tower during the requested time period" and "after confirming this information, the Secret Service did not seek to search for the material requested by Plaintiffs." (Id. at ¶ 8).4
The Secret Service handled Plaintiffs' request for information regarding Mar-a-Lago visitors in a different fashion. Although the Secret Service "easily ... confirmed" that it did not "utilize WAVES or ACR records at Mar-a-Lago, it was unclear what, if any, record systems or record groupings might exist in regard to who visited the President at Mar-a-Lago, or where such record systems or record groupings might be located." (Campbell Decl. ¶ 9). The Secret Service thus undertook a set of searches "to determine what, if any, record systems or record groupings existed that might contain information potentially responsive to Plaintiffs' request,"5 but according to DHS, this search ultimately revealed "no system for keeping track of visitors to Mar-a-Lago, as there is at the White House Complex." (Id. at ¶¶ 10-11). DHS therefore contends that, regarding the 28 data fields Plaintiffs seek, "the Secret Service maintains no record and has no access to any record directly responsive to Plaintiffs' request for records of presidential visitors at Mar-a-Lago." (Id. at ¶ 13).
Further, aside from the 28 data fields that were available under a prior administration, *40DHS contends that its search uncovered only one record that was subject to FOIA-a two-page email from the Department of State that was forwarded to the Secret Service-which DHS provided to Plaintiffs in redacted form. (Campbell Decl. ¶ 14).6 The email "evidenced potential visitors to Mar-a-Lago, some of whom were scheduled to attend a dinner with the President." (Id. at ¶ 33). Before turning the email over to Plaintiffs, the DHS redacted "the names, email addresses, and a cell phone number of third parties," claiming that such information was exempt from disclosure under FOIA. (Id. ).
The Secret Service's search also revealed records involving a visit by the Prime Minister of Japan, Shinzo Abe, along with his wife, to Mar-a-Lago; in addition, the search produced "a handful of records that referred to individuals who were scheduled to meet with the President at Mar-a-Lago." (Campbell Decl. ¶¶ 26-27).7 DHS contends that documents in the latter category "contain, reflect, or directly relate to Presidential schedules" and are therefore "Presidential records within the meaning of the [Presidential Records Act]" and are not subject to FOIA. (Id. at ¶ 31). As to the records involving Prime Minister Abe, DHS decided that they are "not records of Presidential visitors at Mar-a-Lago," but instead "operational material that merely contain a repeated statement that the Prime Min[i]ster of Japan and his spouse would be meeting or dining or present with the President and First Lady at Mar-a-Lago, a widely published fact that [w]as already disclosed by the White House." (Id. at ¶ 32). DHS also argues that the records involving Prime Minister Abe are "duplicative" of the redacted State Department email that was provided to Plaintiffs. (Id. ).
B. Procedural Background
On April 10, 2017, after receiving no response from the Secret Service within the timeframe required under FOIA,8 Plaintiffs filed the initial complaint in this case. (See Am. Compl. ¶¶ 41-45; Dkt. # 1). On July 14, 2017, the parties appeared for an initial pretrial conference, pursuant to which the Court issued an order directing the "Secret Service [to] complete its search for and processing of responsive 'records of presidential visitors at Mar-a-Lago,' and produce any non-exempt responsive records, by September 8, 2017"; the Court scheduled summary judgment briefing after such production. (Dkt. # 23). The Court later extended the deadline for such production to September 15, 2017. (Dkt. # 28).
The Court also granted Plaintiffs leave to file an amended complaint and issued a revised summary judgment briefing schedule on September 14, 2017. (Dkt. # 30). The next day, Plaintiffs amended their complaint, which they now bring under FOIA, the APA, the FRA, and the PRA, in pursuit of injunctive and declaratory relief. (See Dkt. # 32). On October 23, 2017, DHS moved for summary judgment on Plaintiffs' FOIA claims and to dismiss the remaining claims for failure to state a claim *41and lack of subject matter jurisdiction. (See Dkt. # 45-51). On December 4, 2017, Plaintiffs opposed the motion (Dkt. # 52), and DHS replied to Plaintiffs' opposition on January 12, 2018 (Dkt. # 55).
The Court's analysis will proceed as follows: First , the Court addresses a request for judicial notice that Plaintiffs made after summary judgment briefing closed; second , the Court addresses Plaintiffs' FOIA claims; third , the Court addresses Plaintiffs' claims involving the APA, FRA, and PRA; and fourth , the Court addresses Plaintiffs' claim for declaratory judgment.
DISCUSSION
A. The Court Denies Plaintiffs' Request for Judicial Notice
Before addressing the merits of Defendants' motions, the Court resolves a late-breaking dispute among the parties. On February 20, 2018, after summary judgment briefing had concluded, Plaintiffs filed a letter requesting that the Court take judicial notice of a settlement into which the Secret Service had entered in Public Citizen, Inc. v. United States Secret Service , No. 17 Civ. 1669 (CRC) (D.D.C.) (the "Public Citizen Settlement" or the "Settlement"). (Dkt. # 58). The Settlement explains that, much like the case at bar, the plaintiff in that action, Public Citizen, Inc., had submitted FOIA requests to the defendant, the United States Secret Service, seeking WAVES and ACR records, along with records from "any other system used to track visitors to the White House complex." (Dkt. # 58, Ex. A (Settlement Agreement) ). These requests "specifically sought records related to visits" to the following EOP components: the OMB, OSTP, ONDCP, and CEQ. (Id. ). As a result of the Settlement, the White House was to "add computer functionality to the existing system containing WAVES records by which it can sort WAVES records by the requester's email address[.]" (Id. ).
1. The Parties' Positions on Plaintiffs' Judicial Notice Request
In requesting that the Court judicially notice the Settlement, Plaintiffs contend that the agreement establishes that the "Secret Service can distinguish between records of visits to agency components [of the EOP] from records of visits to non-agency components," as the Settlement requires the Secret Service "to add a functionality to its system that would allow it to sort WAVES records by the requester's email address, process the records [requested by the plaintiff in that separate action], and post them in agency online reading rooms." (Dkt. # 58).
On February 27, 2018, Defendants responded to Plaintiffs' request, providing no objection to the Court taking judicial notice of the Settlement, but arguing that the agreement in fact supported Defendants' pending motions. (Dkt. # 59). In particular, Defendants argue that the Settlement expressly acknowledges that an appointment requester's email address "does not necessarily show that a WAVES record reflects an EOP agency component visit," and that any functionality changes pursuant to the Settlement would be within the control of the White House rather than the Secret Service. (Id. ). Indeed, Defendants contend that the Settlement renders moot Plaintiffs' FRA and PRA claims, insofar as they "allege wrongful treatment of agency records by EOP and the Secret Service" for failing to "distinguish between records of visits to Presidential components of EOP (which are not subject to FOIA) and records of visits to agency components of EOP (which are)." (Id. ). In Defendants' view, the Settlement "creates a mechanism for doing just that, thereby mooting Plaintiffs' FRA and PRA claims in their entirety,"
*42and "the [S]ettlement provides virtually all the relief that [P]laintiffs could achieve under FOIA, and more." (Id. ). Further, Defendants argue that the only aspect of Plaintiffs' FOIA claim "that is not moot is the possibility that plaintiffs may wish to challenge any redactions that the EOP agency components may apply to the records before posting," but because any such redactions and corresponding objections are unknown at this point, the Court should hold this portion of Plaintiffs' FOIA claim in abeyance and dismiss the remainder of Plaintiffs' claims. (Id. ).
Plaintiffs replied to Defendants' response on March 2, 2018, arguing at the outset that Defendants' opposition letter improperly raised grounds for summary judgment and dismissal that were not raised in Defendants' formal briefing. (Dkt. # 60). In addition, Plaintiffs contend that the Public Citizen Settlement does not render the claims at issue moot for three reasons:
• First , the Settlement "expires" if either the EOP modifies its email system so that email addresses no longer indicate that an employee works for an EOP component, or the White House modifies the WAVES system so that it does not automatically populate the email address of an appointment requester. (Id. ).
• Second , until Defendants have searched for the records that Plaintiffs are seeking and produced all non-exempt records, the Settlement does not speak to any challenges Plaintiffs might raise to Defendants' withholding of records. (Id. ).
• Third , the Settlement defines "FOIA components" within the EOP more narrowly than Plaintiffs' operative complaint.
(Id. ).9
2. Plaintiffs' Request for Judicial Notice Is Denied
Under the Federal Rules of Evidence, a "court may judicially notice a fact that is not subject to reasonable dispute" where it "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b)(2). "[B]ecause the effect of judicial notice is to deprive a party of the opportunity to use rebuttal evidence, cross-examination, and argument to attack contrary evidence, caution must be used in determining that a fact is beyond controversy under Rule 201(b)." Braun v. United Recovery Sys., LP ,
The scope of Plaintiffs' request for judicial notice of the Public Citizen Settlement far exceeds the purposes for which the Court may properly consider it. Although Defendants do not object to judicial notice of the fact of the Settlement, the parties' submissions on the issue make clear that they vehemently disagree as to which facts the Court should glean from the Settlement Agreement. (Compare Dkt. # 58, 60, with Dkt. # 59). Because both sides have offered plausible views of the practical implications of the Settlement, a *43fortiori , the Court cannot find that the factual purpose for which Plaintiffs urge the Court to consider the Settlement would be beyond "reasonable dispute." Fed. R. Evid. 201(b).
Moreover, to grant Plaintiffs' request would not only require the Court to consider the Settlement for the truth of the matters stated therein, but to make the inferential leap of drawing facts from the Settlement that are not necessarily borne out by its terms. To be sure, a court may judicially notice a settlement agreement to establish the fact of a prior litigation. See, e.g., Deylii v. Novartis Pharm. Corp. , No. 13 Civ. 6669 (NSR),
B. Defendants' Summary Judgment Motion Is Granted in Part and Denied in Part
1. Applicable Law
a. FOIA Generally
FOIA vests federal courts with "jurisdiction to enjoin [a federal] agency from withholding agency records and to order the production of any agency records improperly withheld[.]"
b. Resolving FOIA Claims at Summary Judgment
Summary judgment is the usual mechanism for resolving a FOIA dispute. N.Y. Times Co. v. United States Dep't of Justice ,
A district court considering a FOIA claim "may grant summary judgment in favor of an agency 'on the basis of agency affidavits if they contain reasonable specificity of detail rather than merely conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith.' " Grand Cent. P'ship ,
c. Defining "Agency Records" Under FOIA
The propriety of Defendants' decision to withhold the WAVES and ACR records at issue turns on whether those records are "agency records," and thus subject to disclosure under FOIA. By all accounts, this is an issue of first impression within this Circuit. Yet, as discussed below, the Court of Appeals for the District of Columbia Circuit has addressed this very issue, and the parties therefore focus initially on disputing whether the Court should adopt the D.C. Circuit's approach here.12 The Court discusses the various bases of the D.C. Circuit's approach, and then considers the parties' arguments supporting and opposing adoption of that approach.
i. Supreme Court Decisions: Kissinger , Forsham , and Tax Analysts II
The progenitor of modern FOIA case law is Kissinger v. Reporters Commission for Freedom of the Press , where the Supreme Court held that Congress did not intend FOIA to define an "agency" to include "the Office of the President," meaning the President, his "immediate personal *45staff[,] or units in the Executive Office whose sole function is to advise and assist the President[.]"
In Forsham v. Harris , a companion case to Kissinger , the Court addressed a separate definitional issue: Whether materials generated by a private organization that has received federal funds from an agency, but has not transmitted the materials back to that agency, are agency records subject to FOIA. See
Drawing from Kissinger and Forsham , the Supreme Court expanded on what constitutes an "agency record" for FOIA purposes in United States Department of Justice v. Tax Analysts ,
ii. The D.C. Circuit's Decision: Judicial Watch
In Judicial Watch, Inc. v. United States Secret Service , the D.C. Circuit considered a FOIA claim mirroring the one at bar, in which the plaintiffs sought from the Secret Service "[a]ll official visitors logs and/or other records concerning visits made to the White House from January 20, 2009 to [August 10, 2009]."
In reaching its conclusion, the D.C. Circuit first found no dispute that the Secret Service had "obtained" the WAVES and ACR records at issue, thus satisfying the first prong of the test set forth in Tax Analysts II . Judicial Watch ,
[i] the intent of the document's creator to retain or relinquish control over the records; [ii] the ability of the agency to use and dispose of the record as it sees fit; [iii] the extent to which agency personnel have read or relied upon the document; and [iv] the degree to which the document was integrated into the agency's record system or files.
Applying these factors produced an equivocal result. The first factor weighed in the Secret Service's favor in light of the 2006 MOU, which as discussed above expressed the intention of the Secret Service and the White House to place WAVES and ACR records under the control of the White House rather than the Secret Service. Judicial Watch ,
Having found that only two of the four factors yielded decisive answers-and even then pointed in different directions-the Court drew parallels to another line of cases, one involving "documents that an agency has either obtained from, or prepared in response to a request from, a governmental entity not covered by FOIA: the United States Congress," where the four-factor "test does not apply[.]" Judicial Watch ,
As a "more fundamental" reason for denying FOIA coverage for the WAVES and ACR records, the D.C. Circuit discussed the separation-of-powers issues that such a state of affairs would precipitate. Judicial Watch ,
The canon of constitutional avoidance also weighed against holding for the Judicial Watch plaintiffs. See generally Clark v. Martinez ,
Finally, the D.C. Circuit considered the PRA to provide a more natural fit for WAVES and ACR records. The PRA requires the United States to preserve "complete ownership, possession, and control of *48Presidential records,"
2. The Court Adopts the Approach of Judicial Watch
The Court finds the reasoning in Judicial Watch to be persuasive, and therefore proceeds from the premise that it will adopt the D.C. Circuit's approach unless Plaintiffs provide compelling countervailing reasons. As discussed herein, Plaintiffs have not done so.
In urging the Court to depart from Judicial Watch , Plaintiffs take issue with the four-factor test that the D.C. Circuit applied to determine whether an agency has sufficient control over materials to render those materials agency records. (See Pl. Opp. 7-14). Specifically, Plaintiffs argue that this test is inconsistent with the Supreme Court's framework for determining such control under Tax Analysts II . This Court disagrees.
Preliminarily, the Court observes that the outcome in Judicial Watch was driven more by "special policy considerations" related to the prospect of applying FOIA to Presidential documents than by the four-factor test for control with which Plaintiffs take issue. Judicial Watch ,
Plaintiffs hone in on a discussion in Tax Analysts II that rejected the notion that "the intent of the creator of a document relied upon by an agency" should determine whether material is an agency record subject to FOIA, reasoning that "[s]uch a mens rea requirement is nowhere to be found in the Act."
Perhaps more importantly, the intent of a document's creator in retaining or relinquishing control over the document accords with both the Supreme Court and the Second Circuit's analysis in FOIA cases. In Kissinger , for instance, the Supreme Court did not blind itself to Henry Kissinger's demonstrated intent to retain control over notes of his phone calls. See 445 U.S. at 140-41, 157,
In Main Street Legal Services, Inc. v. National Security Council , the Second Circuit held that the National Security Council System, parts of which were created by statute and other parts of which were created by presidential directive, was not an agency subject to FOIA based in part on the President's intentions as expressed in a presidential directive.
As to Judicial Watch 's remaining three factors, Plaintiffs concede that they "are certainly relevant to whether an agency has" sufficient control over materials to render them subject to FOIA (Pl. Opp. 10), but argue that the D.C. Circuit's application of those factors goes beyond the Supreme Court's definition of "control" as "hav[ing] come into the agency's possession in the legitimate conduct of its official duties," Tax Analysts II ,
Plaintiffs contend that a "strict application" of the second factor-"the ability of the agency to use and dispose of the record as it sees fit," Judicial Watch ,
*50On the topic of FOIA's exemptions, Plaintiffs argue that "even if there is reason to credit 'special policy considerations' when addressing whether congressionally created documents are 'agency records,' " as Judicial Watch reasoned, "executive prerogatives" are sufficiently protected by FOIA's exemptions,15 and any further protection for presidential documents would be Congress's responsibility. (Pl. Opp. 11). But this argument puts the cart before the horse. Notwithstanding the applicability of any FOIA exemption, as Kissinger recognized, "Congress did not intend for 'the President's immediate personal staff or units in the [EOP] whose sole function is to advise and assist the President' to be 'included within the term 'agency' under the FOIA.' " Main St. Legal Servs., Inc. ,
Mindful of the analysis in Kissinger , the Court also disposes of Plaintiffs' argument that revealing "information about the [P]resident" does not raise the same concerns as subjecting the President himself to FOIA. (Pl. Opp. 12 (emphasis in original) ). This is a rhetorical sleight-of-hand: Surely, if the Supreme Court had shared Plaintiffs' view, it would not have interpreted Congress's intent as carving out from FOIA's definition of an agency the President's immediate staff and advisers. In addition, Plaintiffs' attempt to distinguish "subjecting the [P]resident to FOIA" from "subjecting presidential information in the possession of agencies to FOIA" is unpersuasive. (Id. (emphases in original) ). Although this difference is certainly relevant to Tax Analysts II 's first prong-whether requested materials are "create[d] or obtain[ed]" by an agency-the mere fact of possession would have much less relevance in deciding the second prong-whether that agency had "control" over such materials.
Finally, Plaintiffs argue that "FOIA routinely is applied to records that reveal presidential decision-making" (Pl. Opp. 12), but none of the examples to which Plaintiffs cite, such as policy directives or redacted memoranda, is as personal to the President as his daily schedule. This differentiation "accords with Kissinger 's teaching that the term 'agency records' is not so broad as to include personal materials in an employee's possession, even though the materials may be physically located at the agency." Tax Analysts II ,
Having considered and rejected Plaintiffs' arguments, the Court hereby adopts the D.C. Circuit's approach, as provided in Judicial Watch , in determining whether the Secret Service exercises sufficient control over the documents at issue to require disclosure under FOIA. In the following section, the Court explains how developments since Judicial Watch have underscored the correctness of that holding.
3. Post- Judicial Watch Developments
Since Judicial Watch , President Obama's establishment of the Director of White House Information Technology and the 2015 MOU have reinforced the conclusion that WAVES and ACR records are within the control of the White House rather than the Secret Service.
First , the White House's intention to retain control over WAVES and ACR records is manifest in the relevant memoranda. The Memorandum establishing the DWHIT provides that its intention is "to maintain the President's exclusive control of the information resources and information systems provided to the President, Vice President, and EOP." (Herndon Decl., Ex. A, at 1). Accordingly, the 2015 MOU states that "[a]ll records created, stored, used, or transmitted by, on, or through the unclassified information systems and information resources provided to the President, Vice President, and EOP"-which include WAVES and ACR records-"shall remain under the exclusive ownership, control, and custody of the President, Vice President, or originating EOP component." (Id. , Ex. B, at § 3.01; see Herndon Decl. ¶ 9). As discussed above, this intention weighs in favor of finding that the WAVES and ACR records are not agency records subject to FOIA, and in determining whether to command disclosure of documents under FOIA, "separation of powers further counsels a respectful measure of deference to the President's own statements of intent[.]" Main St. Legal Servs. ,
Second , pursuant to the White House's exerted control over the records at issue, the Secret Service "cannot make changes to the [WAVES or EFACS] systems, or make purchases related to the systems, without the consent of the DWHIT." (Herndon Decl. ¶ 8). In addition, pursuant to the 2015 MOU, the Secret Service's access to the records is "limited ... as necessary to perform its protective functions," and "once a visit is concluded," the Secret Service "may not access EFACS or WAVES records without White House Approval." (Id. at ¶ 9). These considerations, *52and particularly the later restriction on the Secret Service, compel a finding that the White House (rather than the Secret Service) controls the WAVES and ACR records, as they indicate that the Secret Service's ability to utilize and dispose of these records is subject to constraints imposed by the White House that were not present at the time that the D.C. Circuit decided Judicial Watch . Cf.
Thus, the Court holds that WAVES and ACR records are not agency records subject to disclosure under FOIA. Having adopted the D.C. Circuit's approach articulated in Judicial Watch , however, the Court must address an additional wrinkle: Certain components within the EOP are subject to FOIA, and, as explained in the following section, so are records of visits to such components.
4. Records Involving EOP Components That Are Subject to FOIA
In Judicial Watch , the Court delineated a subcategory of WAVES and ACR records to which its holding did not apply: Components of the EOP that are agencies for the purposes of FOIA ("EOP Agency Components") and whose records are thus subject to disclosure under FOIA.
An EOP component is an "agency" subject to FOIA if it possesses "substantial independent authority in the exercise of specific functions" rather than the "sole function ... to advise and assist the President[.]" Main St. Legal Servs. ,
As to Defendants' contention that they are unable to segregate records of visits to EOP Agency Components, Defendants admit that "[i]n most cases" a WAVES record will contain the email address of the individual scheduling a visit that "will provide an indication of whether the person making the appointment is employed by" an EOP Agency Component or an EOP component that is not subject to FOIA. (Def. Br. 24). According to Defendants, this information does not indicate with certainty whether such visit implicated an EOP component that is not subject to *53FOIA. (Id. ). But such an assertion proves too much, as the Court will not hold that material ceases to be an agency record because of information that it does not contain. Indeed, the lack of any indication that a visit implicated the President or an EOP component involved in advising and assisting the President should lessen Defendants' concerns regarding revealing the President's schedule and related information.
To the extent that any WAVES or ACR record from an EOP Agency Component contains information that would not constitute agency records in light of its connection to the President, Defendants may redact such information. Indeed, FOIA "expressly authorize[s]" redaction and places the burden on "the agency when it seeks to justify the redaction of identifying information in a particular document as well as when it seeks to withhold an entire document." Associated Press v. U.S. Dep't of Def. ,
5. Records of Presidential Visitors at Mar-a-Lago
The Court's analysis of this category of records proceeds in two stages: First , the Court considers the adequacy of Defendants' search for records responsive to Plaintiffs' FOIA request, and second , the Court considers the propriety of Defendants' withholding of two categories of documents.
a. The Adequacy of Defendants' Search
At the time of Plaintiffs' request, the Secret Service's approach to providing security at Mar-a-Lago was "newly developed," and "it was unclear what, if any, record systems or record groupings might exist in regard to who visited the President at Mar-a-Lago, or where such record systems or record groupings might be located." (Campbell Decl. ¶ 9). The Secret Service maintains that the ensuing search resulted in only one "arguably responsive" document that is "not duplicative of information previously made public by the White House" (id. at ¶ 14), and that the search also confirmed that "there is no Secret Service system that controls access to Mar-a-Lago, nor is there any grouping, listing, or set of records that would reflect Presidential visitors to Mar-a-Lago" (id. at ¶ 11).
The Secret Service has provided an affidavit detailing its search for responsive records. Early on in its search, the Secret Service identified three offices as potentially holding responsive documents:
the Office of Strategic Intelligence and Information (SII), which oversees the Protective Intelligence Division (PID).
This office conducts background checks pursuant to a sensitive security program;
the Office of Investigations (INV), which oversees the Miami Field Office (FO) and the West Palm Beach Resident Office (RO). These offices would most likely *54have involvement in President Trump's visits to Mar-a-Lago as they are geographically located in proximity to Mar-a-Lago; and
the Office of Protective Operations (OPO), which oversees the Presidential Protective Division (PPD). This is the division with direct operational responsibility for the protection of the President of the United States, including when the President is at Mar-a-Lago.
(Campbell Decl. ¶ 16). A search of the first office resulted in no responsive documents, while a search of each of the latter two offices indicated "that an individual visited with the President at Mar-a-Lago during the time period January 20 to March 8, 2017"; any "potentially responsive documents" proceeded to "further responsiveness review." (Id. at ¶¶ 17-19).
Separately, the Office of the Chief Information Officer ("CIO") searched the email accounts of employees within the PPD, Dignitary Protective Division, as well as the Miami FO and West Palm Beach RO. (Campbell Decl. ¶ 20). The CIO carried out this search by applying a series of search terms to the body, subject line, or attachment of any email, for the period January 20 to March 8, 2017, contained in a database of any emails "sent, received, or deleted by all Secret Service employees including during the time period at issue in this case." (Id. ). Any responsive emails proceeded to "further responsiveness review." (Id. ).18
All responsive records from these searches were aggregated, and any duplicate emails were electronically removed, leaving "[o]ver four thousand e-mails and documents" for further responsiveness review. (Campbell Decl. ¶¶ 21-22). Any materials that were "merely copies of media reports concerning Presidential visits to Mar-a-Lago" were removed "as non-responsive, as [they were] not considered [ ] Agency record[s] of a Presidential visit, and [were] as available to the public as to the Secret Service." (Id. at ¶ 23). Further winnowing down the universe of responsive documents, the parties agreed "that the Secret Service need not produce records regarding Presidential family members, cabinet members, and White House staff who were present at Mar-a-Lago," as well as "the names of local law enforcement and support personnel scheduled to have their photographs taken with the President." (Id. at ¶¶ 24-25).
After refining the documents in that manner, "the largest remaining category of records" consisted of documents related to Prime Minister Abe's visit to Mar-a-Lago. (Campbell Decl. ¶ 26). These included "operational records" regarding the Secret Service's security for the Prime Minister's visit. (Id. ). Aside from this category of documents, the search yielded "only a handful of records" referring to persons scheduled to meet with the President at Mar-a-Lago. (Id. at ¶ 27). The following section considers the content of these records; here, the Court considers the antecedent issue of the adequacy of the search.
To prevail on a summary judgment motion in a FOIA case, the defending agency bears the burden of establishing the adequacy of its search, and it may satisfy this burden by submitting "[a]ffidavits or declarations supplying facts indicating *55that the agency has conducted a thorough search[.]" Long v. Office of Pers. Mgmt. ,
Based on the affidavit provided by the Secret Service, the Court finds the search adequate. Because the Secret Service had not established a formal recordkeeping system at the time of Plaintiffs' FOIA request, the search began by identifying the offices that could potentially possess responsive documents. Plaintiffs' argument that Defendants' search was inadequate because the affidavit detailing the search failed to "explain why it was reasonable to look only at records from specific components of" the SII, INV, OPO (Pl. Opp. 24) is simply wrong, because the affidavit provides such explanations: The PID, under the auspices of the SII, "conducts background checks pursuant to a sensitive security program"; the Miami FO and West Palm Beach RO, which are overseen by the INV, "would most likely have involvement in President Trump's visits to Mar-a-Lago as they are geographically located in proximity to Mar-a-Lago"; and the PPD, which the OPO oversees, has "direct operational responsibility for the protection of the President ..., including when the President is at Mar-a-Lago." (Campbell Decl. ¶ 16). These details easily distinguish this case from those on which Plaintiffs rely. Cf. Aguiar v. Drug Enf't Admin. ,
Plaintiffs' second line of argument contends that the search terms that the Secret Service utilized were underinclusive, in that they did not contain certain terms that Plaintiffs would have included and also failed to include variants of certain terms that effectively narrowed the search. (See Pl. Opp. 25-26). Yet this challenge amounts to precisely the sort of nit-picking that courts have rejected in the FOIA context. An agency's "burden [is] to show that its search efforts were reasonable and logically organized to uncover relevant documents; it need not knock down every search design advanced by every requester." DiBacco v. U.S. Army ,
*56("Where the search terms are reasonably calculated to lead to responsive documents, the Court should not 'micro manage' the agency's search.") (citing Johnson v. Exec. Office for U.S. Attorneys ,
Finally, Plaintiffs contend that media reports indicate that Defendants' search should have yielded more results with respect to presidential visitors at Mar-a-Lago. (See Pl. Opp. 26-28). But this, too, is a line of reasoning that courts have rejected. Even assuming the accuracy of the reports to which Plaintiffs cite, as mentioned above, the proxy for the adequacy of an agency's search is its methodology , not its results. See N.Y. Times Co. ,
Because the Court finds the Secret Service's selection of offices along with the CIO email database and the search terms employed to be reasonable, the Court awards Defendants summary judgment as to Plaintiffs' claim that the search at issue was inadequate.
b. The Propriety of Defendants' Withholdings
In response to Plaintiffs' request for documents related to presidential visits at Mar-a-Lago, Defendants located a variety of documents, none of which is contained in formal recordkeeping systems comparable to the WAVES or EFACS systems, and the vast majority of which Defendants maintain are not subject to disclosure under FOIA. In fact, Defendants considered only one such document to be responsive to Plaintiffs' FOIA request-an email from the State Department to the White House Office and forwarded to the Secret Service listing individuals who would accompany the Japanese Prime Minister to Mar-a-Lago. (Def. Br. 10-11).19 Defendants withheld the remainder of the documents, maintaining that they were either (i) "Presidential schedules or information directly relating to Presidential schedules" provided from the White House to the Secret Service "for the limited purpose of providing information necessary for the Secret Service to perform its statutory duty to protect the President" and thus not agency records under FOIA,20 or (ii)
*57"operational materials that merely contain a repeated statement that the Prime Minister of Japan and his spouse would be meeting, dining, or present with the President and First Lady at Mar-a-Lago, which had already been publicly released by the White House," which Defendants consider "non-responsive because they are not records of Presidential visitors at Mar-a-Lago[.]" (Id. at 11).21
As with the WAVES and ACR records considered above, the parties do not dispute that the Secret Service obtained these records. Whether they qualify as agency records subject to FOIA therefore depends on the extent to which the Secret Service, as opposed to the White House, exerted control over them, Tax Analysts II ,
i. The Presidential Schedule Documents
Defendants refer to the first category of withheld documents as "Presidential Schedule Documents." (Def. Br. 20-23). The Court understands by way of background that a member of the White House transmits the Presidential Schedule Documents to the Secret Service on a nightly *58basis by "upload[ing] the schedule to an EOP web portal," which generates an automated email to certain members of the Secret Service. (Murray Decl. ¶ 22). The White House provides access to the web portal and the automated emails to "a limited number of Secret Service personnel with an operational need to know the scheduling information." (Id. ). To acquire this privilege, a Secret Service member must request the access from the White House and obtain approval. (Id. at ¶ 23). Secret Service members who receive the Presidential Schedule Documents utilize the records "solely to fulfill [their] operational needs," and the White House similarly provides these records "solely for the limited purpose of allowing the Secret Service to perform its statutory duty to protect the President, Vice President and other protectees, as well as the White House Complex." (Id. at ¶ 24). Defendants urge the Court to extend the rationale behind Judicial Watch to encompass these documents, thereby moving them outside of FOIA's scope for failing to qualify as agency records. The Court agrees with Defendants' position.
The considerations that render FOIA inapplicable to WAVES and ACR records apply with equal force to the Presidential Schedule Documents. The White House's intent to control these documents is apparent from its selective disclosure only to approved Secret Service members. Moreover, these handpicked Secret Service members had no part in creating the documents, but only passively received them from the White House.
To be sure, the Court does not read the 2015 MOU, along with its requirements for the use and disposal of WAVES and ACR records, as applying to the Presidential Schedule Documents, and Defendants do not so contend. Nor does the Court doubt that the Secret Service members who receive these documents rely on them to carry out their statutory duty to protect the President. (See Murray Decl. ¶ 22 ("The Secret Service relies on information regarding the President's schedule that is provided by the White House Office to fulfill its protective mission.") ). But these differences do not assuage the Court's concerns that exposing these documents to disclosure under FOIA would produce the same problems as applying FOIA to WAVES and ACR records.
Further, the same separation-of-powers concerns that animated Judicial Watch apply here. Just as "the Secret Service must monitor and control access to the building in which the President lives and works," which "requires presidential staff to request access [from the Secret Service] for visitors," Judicial Watch ,
In removing the Office of the President from FOIA's scope, Congress surely did not "intend[ ] to require the effective disclosure of the President's calendars in this roundabout way." Judicial Watch ,
Plaintiffs counter that adopting Defendants' position would create an "unsustainable rule that documents that merely relate to information about the president's schedule are also, as a matter of law, beyond FOIA's reach." (Pl. Opp. 29). This argument is a straw man. The Court's holding is limited to the documents at issue, consisting of correspondence detailing the President's daily schedule that was transmitted from the White House to a select set of Secret Service members. It does not speak to, or even anticipate, a broader set of documents than those presented here. The Presidential Schedule Documents are not agency records subject to FOIA, and Defendants properly withheld them.
ii. The Operational Records
The Court next considers Defendants withholding of "a small number of operational records related to the Japanese Prime Minister's visit that also referred to the fact that the Prime Minister and his spouse were scheduled to meet or dine with the President and First Lady at Mar-a-Lago." (Def. Br. 29). Defendants maintain that "[t]he only arguably responsive information in these documents is the statement, repeated in each document, that the Prime Minister of Japan and his spouse would be meeting, dining, or present with the President at Mar-a-Lago." (Id. ). Thus, Defendants argue, they were not required to disclose these records "only to release a minute amount of already public information" that "is also duplicative of the information contained in the State Department email released to [P]laintiffs." (Id. ). Defendants' position, however, does not have a basis in FOIA.
That the responsive material contained in these documents is relatively slim is of no moment. Information that would be valuable in public discourse may be expansive or contracted; in either case, FOIA expressly provides that "[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt[.]"
C. Defendants' Motion to Dismiss Plaintiffs' APA Claims Based on the FRA and PRA Is Granted
The Court next considers Defendants' motion to dismiss Plaintiffs' APA claims that seek judicial review, under the FRA and PRA, of the 2015 MOU. Specifically, Claim Three alleges that the EOP "enter[ed] into an MOU that declares that the records of visits to agency components of the EOP are under the exclusive ownership, *60control, and custody of the President, Vice President, or originating EOP component," which violated the EOP's "mandatory, nondiscretionary obligation under the FRA and the PRA to treat [WAVES and ACR records] as agency records of DHS subject to the FOIA." (Am. Compl. ¶ 63). Similarly, Claim Four alleges that by entering the same MOU, "DHS violated its mandatory, non-discretionary obligation under the FRA to treat and manage these records as agency records of DHS subject to FOIA." (Id. at ¶ 67).
Defendants seek dismissal of these claims for lack of subject matter jurisdiction and failure to state a claim. In addressing Defendants' motions, the Court first summarizes the law relevant to Plaintiffs' claims based on the FRA and PRA. It then considers the specifics of Defendants' motion. Because the Court grants Defendants' motion on jurisdictional grounds, it does not-as it may not without a proper jurisdictional basis-consider Defendants' motion to dismiss for failure to state a claim.
"A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Lyons v. Litton Loan Servicing LP ,
2. The FRA and the PRA
As with the FOIA claims in this case, the parties' briefing on these claims focuses on cases from the D.C. Circuit (see Def. Br. 30-35; Pl. Opp. 32-35), and the Court's independent research confirms that courts within the D.C. Circuit, to the near exclusion of any others, provide the little case law that illuminates the statutes at issue. Two D.C. Circuit cases in particular provide a framework for evaluating the justiciability of Plaintiffs' claims: Armstrong v. Bush ("Armstrong I "),
a. General Statutory Schemes
The FRA is composed of a collection of statutes that govern the creation, management, and disposal of records held by agencies of the federal government. See
Under the FRA, the Archivist of the United States is directed to further the mission of these agency heads by assisting agencies in proper record disposition, issuing "standards, procedures, and guidelines" regarding record management, and evaluating the records and recordkeeping systems and practices of the federal agencies. See
The Archivist's role in enforcing the FRA also entails, if the Archivist learns of any "actual, impending, or threatened unlawful removal, defacing, alteration, or destruction of records in the custody of [an] agency," to "notify the agency head of the problem and assist the agency head in initiating an action through the Attorney General for the recovery of wrongfully removed records or for other legal redress." Armstrong II ,
In contrast to the FRA, the PRA governs the maintenance and disposal of "Presidential records."
The PRA imposes document retention requirements that differ depending on whether a President is currently in office. While in office, "the President may dispose of those Presidential records ... that no longer have administrative, historical, informational, or evidentiary value[.]"
b. Availability of Judicial Review
Courts have recognized that neither the FRA nor the PRA-of their own force-affords *62a private right of action. See Kissinger , 445 U.S. at 148-50,
Yet the D.C. Circuit has recognized that federal courts have jurisdiction to engage in limited review, under the APA, of agency compliance with the FRA.22 Armstrong I held that a private plaintiff may seek review under the APA of an agency's "recordkeeping guidelines and directives," in order to determine whether they "are inadequate because they permit the destruction of 'records' that must be preserved under the FRA."
The D.C. Circuit has recognized even more limited judicial review of compliance with the PRA. In Armstrong I , the Court held that "[t]he APA does not authorize judicial review of the President's compliance with the PRA because the President is not an 'agency' within the meaning of the APA and because the PRA precludes judicial review of the President's record creation and management decisions. "
The Armstrong II Court distinguished "creation, management, and disposal decisions,"
*63which are not subject to judicial review, from "the initial classification of materials as presidential records," which is subject to judicial review.
[a] "creation" decision refers to the determination to make a record documenting presidential activities. Thus, the courts may not review any decisions regarding whether to create a documentary presidential record. "Management decisions" describes the day-to-day process by which presidential records are maintained. The courts may likewise not review these particulars of the presidential records management system. Finally, "disposal decisions" describes the process outlined in [the PRA] for disposing of presidential records. Judicial review of the President's action under these provisions is also unavailable. But guidelines describing which existing materials will be treated as presidential records in the first place are subject to judicial review.
The parties agree these cases afford limited judicial review of agency recordkeeping guidelines categorizing records under the FRA and PRA. (See Def. Br. 31, 34; Pl. Opp. 33). But they dispute whether Plaintiffs' claims are based on a guideline that the Court may review for compliance with the FRA or PRA. As the following section explains, the Court holds that Plaintiffs fail to allege such a guideline, which leaves the Court without subject matter jurisdiction over these claims.
3. The Complaint Does Not Allege a Guideline That Is Subject to Judicial Review for Compliance with the FRA or PRA
a. Plaintiffs' Claims Are Premised Only on the 2015 MOU
The Court begins by determining which MOU forms the basis of Plaintiffs' claims. Plaintiffs' opposition brief urges the Court to review Defendants' "functional classification of WAVES and ACR records as presidential records" pursuant to the terms of both the 2006 and 2015 MOUs (Pl. Opp. 34), but the operative complaint makes no mention of the 2006 MOU. Indeed, the only citation to any MOU in the Amended Complaint reads as follows:
In its opposition to [a] motion for a temporary restraining order [filed in this case,] the Secret Service relied in part on a 2015 Memorandum of Understanding ("MOU") that, on information and belief, has never before been made public. That MOU states in relevant part: "[a]ll records created, stored, used, or transmitted by, on, or through the unclassified information systems and information resources provided to the President, Vice President, and EOP shall remain under the exclusive ownership control, and custody of the President, Vice President, or originating EOP component." The Secret Service has interpreted this provision as applying to all the records at issue in [a separate] lawsuit.
(Am. Compl. ¶ 50). As mentioned above, the claims at issue go on to reference this provision of the 2015 MOU as violating the EOP's "obligation under the FRA and the PRA to treat [records of presidential visitors] as agency records of DHS subject to FOIA" (id. at ¶ 63), and violating DHS's "obligation under the FRA to treat and manage these records as agency records of *64DHS subject to the FOIA" (id. at ¶ 67). The operative complaint thus does not reference the 2006 MOU.
The Court recognizes that it may refer to evidence outside of the pleadings in ruling on a motion to dismiss for lack of subject matter jurisdiction to resolve factual disputes on which subject matter jurisdiction depends. See Zappia Middle E. Const. Co. Ltd. v. Emirate of Abu Dhabi ,
b. The FRA and PRA Preclude the Court's Review of the 2015 MOU
The excerpted language of the 2015 MOU on which Plaintiffs' claims are premised is not the sort of guideline or directive that courts have reviewed for compliance with either the FRA or the PRA. In Armstrong II , for instance, the D.C. Circuit found reviewable, for compliance with the FRA, instructions from the EOP and National Security Council ("NSC") to employees, "that when any electronic document meets the definition of a federal record , the employee should either print out the information that appears on her computer screen or incorporate that material into a written memorandum."
As to examples of guidelines subject to review for compliance with the PRA, Armstrong II is illuminative. That Court considered an EOP policy that "classif[ied] broad categories of NSC records as federal records," and declared that such records "are [p]residential records if they were received or created for the President," or certain other White House members, thus imposing a definition of "presidential records" not based on the definition found in the PRA.
As these examples make clear, judicial review for compliance with the PRA extends only to guidelines that categorize materials as presidential records, such that by doing so, an agency may run afoul of the PRA's definition of "presidential records" and, thus, treat records as presidential when they would otherwise fall within the FRA. See also, e.g., Cheney ,
Here, Plaintiffs' claims under the FRA and PRA do not contain a sufficient factual basis for the Court's review. The portion of the 2015 MOU excerpted in the Amended Complaint simply states the understanding of the parties to the MOU that certain records "shall remain under the exclusive ownership, control, and custody of the President, Vice President, or originating EOP component." This section of the MOU thus does not command recordkeeping practices that could result in improper disposal under the FRA, cf. Armstrong II ,
As to judicial review for compliance with the FRA, Plaintiffs "challeng[e] the Secret Service's failure to treat the WAVES and ACR records as agency records under the FRA," by transferring those records to the WHORM rather than retaining them. (Pl. Opp. 34). But this practice, rather than constituting a reviewable guideline, is precisely the sort of claim that the FRA, as interpreted by the Supreme Court, has precluded courts from reviewing. As the Kissinger Court noted, " 'the [FRA] establishes only one remedy for the improper removal of a 'record' from the agency': the agency head, in conjunction with the Archivist, is required to request the Attorney General to initiate an action to recover records unlawfully removed from the agency." Armstrong I ,
Plaintiffs' claims under the PRA similarly fall short. Plaintiffs argue that through the 2015 MOU, the EOP improperly categorizes WAVES and ACR records as presidential records, and that the Court must be able to review this categorization "[t]o maintain the integrity of the line Congress drew between agency records ... and presidential records[.]" (Pl. Opp. 34). But the MOU does no such thing. By stating that certain documents "shall remain under the exclusive ownership, control, and custody of the President, Vice President, or originating EOP component," the MOU does not "purport to implement the PRA." Armstrong II ,
For all of these reasons, the Court may not review Plaintiffs' claims premised on the FRA and PRA, and Defendants' motion to dismiss for lack of subject matter jurisdiction is granted.
D. Defendants' Motion to Dismiss Plaintiffs' Claim for Declaratory Judgment Is Granted
Having determined that Plaintiffs' claims under the FRA, PRA, and APA fail, and that certain of Plaintiffs' FOIA claims shall proceed, the Court next considers Defendants' motion to dismiss Plaintiffs' claims for declaratory judgment. The issue depends on whether a federal court may award declaratory judgment based solely on a FOIA claim. Plaintiffs do not address the issue, aside from stating that "[t]his case presents an actual and adversarial issue that entitles Plaintiffs to declaratory relief." (Pl. Opp. 35).
The Declaratory Judgment Act allows a federal court to "declare the rights and other legal relations of any interested party seeking such a declaration" in "a case of actual controversy[.]"
Courts have come to varying conclusions as to the propriety of declaratory relief for FOIA claims. One court within the Second Circuit, while declining to grant declaratory relief, has noted that "in the FOIA context, courts have granted declaratory judgment where a plaintiff has shown that an agency engaged in a pattern or practice of delayed disclosure and that it is possible the violations will recur with respect to the same requesters." Navigators Ins. Co. v. Dep't of Justice ,
These courts have limited such relief, however, to circumstances in which bringing an action to enjoin the withholding of records or to compel their production would fail to provide an adequate remedy. See, e.g., Isiwele v. U.S. Dep't of Health & Human Servs. ,
The Court declines to exercise its discretion to entertain a declaratory judgment action here. The relief Plaintiffs seek on this front consists of the following: [i] "a declaration that Plaintiff Doyle is entitled to prompt processing and disclosure of the requested records"; [ii] "a declaration that [P]laintiffs are entitled to expedited processing and disclosure of the requested records"; and [iii] "a declaration that all records the Secret Service creates and maintains of visits to agency components of the EOP are agency records of DHS and any MOU to the contrary is unlawful and unenforceable." (Am. Compl. Request for Relief ¶¶ 2, 4, 6). The Court effectively disposed of the last of these three requests in its ruling on the merits of Plaintiffs' FOIA claims. And the first two requested declarations would provide no further practical relief than that which Plaintiffs' FOIA claims seek. Cf. Isiwele ,
CONCLUSION
For the above reasons, Defendants' motion for summary judgment is GRANTED IN PART and DENIED IN PART, and Defendants' motion to dismiss is GRANTED. Within 60 days of the date of this Opinion and Order, Defendants are directed to disclose any materials responsive to Plaintiffs' FOIA surviving FOIA claims, and the parties are to provide a joint letter to the Court as to how they wish to proceed.
SO ORDERED.
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