United States Court of Appeals
`
`FOR THE DISTRICT OF COLUMBIA CIRCUIT
`
`Argued September 18, 2012
`
`Decided August 30, 2013
`
`No. 11-5282
`
`JUDICIAL WATCH, INC.,
`APPELLEE
`
`v.
`
`UNITED STATES SECRET SERVICE,
`APPELLANT
`
`Appeal from the United States District Court
`for the District of Columbia
`(No. 1:09-cv-02312)
`
`Mark B. Stern, Attorney, U.S. Department of Justice, argued
`the cause for appellant. With him on the briefs were Tony West,
`Assistant Attorney General, Ronald C. Machen Jr., U.S.
`Attorney, Beth S. Brinkmann, Deputy Assistant Attorney
`General, and Michael S. Raab and Abby C. Wright, Attorneys.
`Brad P. Rosenberg, Trial Attorney, entered an appearance.
`
`James F. Peterson argued the cause and filed the brief for
`appellee. Paul J. Orfanedes entered an appearance.
`
`David Murray was on the brief for amici curiae Bloomberg
`L.P., et al. in support of appellee.
`
`David L. Sobel, Anne L. Weismann, and Melanie Sloan were
`
`

`
`2
`
`on the brief for amici curiae Citizens for Responsibility and
`Ethics in Washington, et al. in support of appellee.
`
`Before: GARLAND, Chief Judge, and SENTELLE and
`WILLIAMS, Senior Circuit Judges.
`
`Opinion for the Court filed by Chief Judge GARLAND.
`
`GARLAND, Chief Judge: Judicial Watch filed a Freedom of
`Information Act (FOIA) request with the Secret Service, seeking
`records of every visitor to the White House Complex over a
`period of seven months. The Secret Service denied the request,
`arguing that the requested documents are not “agency records”
`subject to disclosure under FOIA. The district court rejected
`that argument and ordered the agency to release the records or
`assert specific FOIA exemptions on a document-by-document
`basis. We reverse in part and affirm in part.
`
`In both the 1974 FOIA Amendments and the 1978
`Presidential Records Act, Congress made clear that it did not
`want documents like the appointment calendars of the President
`and his close advisors to be subject to disclosure under FOIA.
`Granting Judicial Watch’s request for certain visitor records,
`however, would effectively disclose the contents of those
`calendars. For the reasons discussed below, we conclude that
`such records are not “agency records” within the meaning of
`FOIA.
`
`In addition to the President and his advisors, the White
`House Complex also houses components that Congress did
`intend to subject to FOIA. We conclude that records of visits to
`those components are “agency records” subject to disclosure
`under the Act.
`
`

`
`3 I
`
`In 1951, the year after two men attempted to assassinate
`President Truman just across the street from the White House,
`Congress permanently authorized the Secret Service to protect
`the President and Vice President. See Pub. L. No. 82-79, § 4, 65
`Stat. 121, 122 (1951) (codified at 18 U.S.C. § 3056(a)). Upon
`signing the legislation, Truman reportedly remarked: “Well, it
`is wonderful to know that the work of protecting me has at last
`become legal.” PHILIP H. MELANSON, THE SECRET SERVICE:
`THE HIDDEN HISTORY OF AN ENIGMATIC AGENCY 54 (2002). 1
`In 1984, three years after an attempt on the life of President
`Reagan, Congress made acceptance of such protection by the
`President, Vice President, President-elect, and Vice President-
`elect mandatory. See Pub. L. No. 98-587, 98 Stat. 3110 (1984)
`(codified at 18 U.S.C. § 3056(a)).2
`
`The Secret Service began protecting presidents part-time in
`1
`1894, and full-time (albeit with only two officers) after the
`assassination of President William McKinley in 1901. See Secret
`Service History, U.S. SECRET SERVICE, http://www.secretservice.gov/
`history.shtml (2012). Until 1951, the agency’s authority to protect the
`President derived solely from annual congressional appropriations to
`the Department of the Treasury, of which it was then a component. Id.
`In 2002, the Secret Service became a component of the Department of
`Homeland Security. See Homeland Security Act of 2002, Pub. L. No.
`107-296, § 821, 116 Stat. 2135, 2224 (codified at 6 U.S.C. § 381).
`
`The statute also authorizes Secret Service protection for other
`2
`individuals, including members of the President’s family, former
`presidents, and major presidential candidates. It provides that
`protection “may be declined” by those individuals, but does not extend
`the option to the President, Vice President, President-elect, or Vice
`President-elect. 18 U.S.C. § 3056(a).
`
`

`
`4
`
`The Secret Service’s authorizing statute extends protection
`not only to the persons of the President and Vice President, but
`also to the buildings in which they live and work, including the
`White House Complex. See 18 U.S.C. § 3056A(a)(1)-(2); White
`Decl. ¶ 5. The White House Complex includes the White
`House, the Eisenhower Executive Office Building (EEOB), their
`surrounding grounds, and the New Executive Office Building.
`White Decl. ¶ 4. Those buildings house offices for the President
`and the Vice President, as well as their staff and advisors.
`
`In order to carry out its statutory responsibilities, the Secret
`Service monitors and controls access to the White House
`Complex. It accomplishes this task through an electronic system
`known as the White House Access Control System (WHACS).
`WHACS has two principal components: the Worker and Visitor
`Entrance System (WAVES) and the Access Control Records
`System (ACR).
`
`WAVES records are generated in the following way.
`Generally, when the President, Vice President, or a member of
`their staffs wants to receive a visitor at the White House
`Complex, an authorized White House pass holder must submit
`information about the visitor and visit to the Secret Service. See
`Mem. of Understanding Between White House Office of
`Records Mgmt. & U.S. Secret Serv. Records Mgmt. Program ¶ 4
`(May 17, 2006) (MOU). That information includes (inter alia)
`the visitor’s name, the date and location of the planned visit, and
`the name of the pass holder submitting the request. Id.
`“Ordinarily, this identifying information is provided to the
`Secret Service electronically. An authorized . . . pass holder
`enters the information into a computer that automatically
`forwards it to the Secret Service for processing.” Droege Decl.
`¶ 6. The information may also be provided to the Secret Service
`in other ways, including by telephone and email, in which case
`
`

`
`5
`
`Secret Service personnel transmit the information electronically
`to the WHACS server. Id.; White Decl. ¶ 7.3
`
`Once a visitor is cleared into the White House Complex, he
`or she is generally issued a badge. ACR records are generated
`(and WAVES records updated) whenever the visitor swipes the
`badge over one of the electronic pass readers located at the
`White House Complex’s entrances and exits. MOU ¶ 5; Droege
`Decl. ¶ 7; White Decl. ¶¶ 9, 10. ACR records include the pass
`holder’s name, the time and date of the swipe, and the post at
`which the swipe was recorded. MOU ¶ 5.
`
`According to the government, the information contained in
`WHACS records is provided to and used by the Secret Service
`“for two limited purposes”: to perform a background check on
`the visitor, and to verify the visitor’s admissibility at the time of
`the visit. MOU ¶ 12; White Decl. ¶ 7. Once the visit ends, the
`information “has no continuing usefulness to the Secret
`Service.” MOU ¶ 13.
`
`Because the Secret Service has “no continuing interest” in
`the information, “[s]ince at least 2001, it has been [its] practice
`. . . to transfer newly-generated WAVES records” to the White
`House every 30 to 60 days on compact discs. White Decl. ¶ 11;
`Droege Decl. ¶ 10; see MOU ¶ 14; Lyerly Decl. ¶ 10 (May
`2006). The Secret Service erases the transferred records from
`the WHACS servers and overwrites them with new records.
`MOU ¶ 14; White Decl. ¶ 11. Prior to October 2004, the Secret
`Service did not keep copies of the transferred WAVES records.
`Lyerly Decl. ¶¶ 10, 11 (May 2006); see MOU ¶ 14. In October
`2004, however, the Secret Service began retaining copies of the
`
`The Secret Service may add additional information to WAVES
`3
`records that it learns through a background check. Lyerly Decl. ¶ 8
`(Sept. 2006); White Decl. ¶¶ 7, 8.
`
`

`
`6
`
`transferred WAVES records on compact discs, due in part to
`then-pending litigation. MOU ¶ 16; Lyerly Decl. ¶ 13 (Sept.
`2006); Droege Decl. ¶ 10.
`
`“At least as early as 2001 (at the end of the Clinton
`Administration), and upon revisiting the issue in 2004, the
`Secret Service and the White House recognized and agreed that
`ACR records should be treated in a manner generally consistent
`with the treatment of WAVES records.” White Decl. ¶ 13;
`Droege Decl. ¶ 11. In particular, “[t]he White House and the
`Secret Service . . . determined that ACR records should be
`transferred to the [White House] and deleted from the Secret
`Service’s computers like WAVES records.” White Decl. ¶ 13;
`see MOU ¶ 15. Since at least 2006, the Service has transferred
`ACR records to the White House, generally every 30 to 60 days.
`Droege Decl. ¶ 11; see White Decl. ¶ 13 (stating that ACR
`records dating from 2001 were also transferred in 2006). Once
`again, however, the Service has retained copies of the records
`due in part to pending litigation. Droege Decl. ¶ 11; White
`Decl. ¶ 13; MOU ¶ 15.
`
`The volume of FOIA litigation regarding White House
`visitor records increased in 2006. In that year, a FOIA request
`was filed for all WHACS records pertaining to visits scheduled
`with Vice President Dick Cheney or his staff. See Wash. Post
`v. Dep’t of Homeland Sec., 459 F. Supp. 2d 61, 64 (D.D.C.
`2006). A steady march of similar requests followed. They
`included requests for records of every visit by lobbyist Jack
`Abramoff, see Judicial Watch, Inc. v. U.S. Secret Serv., 579 F.
`Supp. 2d 143, 145 (D.D.C. 2008); every visit by lobbyist
`Stephen Payne, Citizens for Responsibility & Ethics in Wash.
`(CREW) v. U.S. Dep’t of Homeland Sec., 592 F. Supp. 2d 127,
`129 (D.D.C. 2009); and every visit by eighteen health care
`
`

`
`7
`
`executives, to name only a few. The Secret Service refused
`4
`5
`each request, asserting that WAVES and ACR records are not
`“agency records” subject to FOIA, but rather are “Presidential
`records” subject to the more restrictive disclosure regime
`established by the Presidential Records Act (PRA), 44 U.S.C.
`§§ 2201 et seq. See, e.g., CREW, 592 F. Supp. 2d at 131; Wash.
`Post, 459 F. Supp. 2d at 65.
`
`In May 2006, the White House and the Secret Service
`executed a Memorandum of Understanding (MOU). The MOU
`memorialized the parties’ historical practice and intentions
`regarding WHACS records, as described above. It also stated
`the parties’ joint “agreement” that WHACS records are
`“Presidential Records,” and “are not the records of an ‘agency’
`subject to the Freedom of Information Act.” MOU ¶ 17.
`
`In 2008, a suit arising out of a FOIA request for WHACS
`records reached this court for the first time. The request sought
`records of every visit by nine “conservative Christian leaders.”
`CREW v. U.S. Dep’t of Homeland Sec., 527 F. Supp. 2d 76, 78
`(D.D.C. 2007). We dismissed that appeal for lack of
`jurisdiction. See CREW v. U.S. Dep’t of Homeland Sec., 532
`F.3d 860, 868 (D.C. Cir. 2008). After further proceedings in the
`district court, the parties settled the dispute. See Joint Mot. to
`Vacate, CREW v. U.S. Dep’t of Homeland Sec., No. 06-1912
`(D.D.C. Sept. 9, 2009).
`
`See Letter from Gregory B. Craig, Counsel to the President, to
`4
`Anne L. Weismann (Sept. 3, 2009) (Craig Letter), available at
`http://whitehouse.gov/assets/blog/9 3 09 Ltr to Weismann.pdf.
`
`For other such requests, see Judicial Watch, Inc. v. U.S. Secret
`5
`Serv., 579 F. Supp. 2d 151, 152 (D.D.C. 2008) (every visit by any of
`eight named lobbyists); Craig Letter (every visit by sixteen specified
`coal industry executives).
`
`

`
`8
`
`The present litigation involves the latest and broadest FOIA
`request for WHACS records. On August 10, 2009, Judicial
`Watch asked the Secret Service for “[a]ll official visitors logs
`and/or other records concerning visits made to the White House
`from January 20, 2009 to present.” The Service denied the
`request on October 8, 2009, reiterating its position that WAVES
`and ACR records are not “agency records” subject to FOIA, but
`rather are “Presidential records” subject to the PRA. The
`Service noted, however, that Judicial Watch could secure
`discretionary release of some of those records pursuant to a
`voluntary disclosure policy that the Obama administration had
`announced the previous month. See The White House, White
`House Voluntary Disclosure Policy: Visitor Access Records
`(Sept. 4, 2009), http://www.whitehouse.gov/
`VoluntaryDisclosure (J.A. 42).6
`
`On December 7, 2009, Judicial Watch filed suit to compel
`disclosure pursuant to FOIA. Thereafter both sides moved for
`summary judgment. The district court ruled in favor of Judicial
`
`The Obama administration announced that, going forward, it
`6
`would release most WAVES and ACR records 90 to 120 days after
`they are created. The policy excepts the release of records that would
`threaten national security or the security of staff, reveal particularly
`sensitive meetings, or disclose personal guests of the families of the
`President or Vice President. To implement the policy, White House
`Complex staffers who submit visitor information must designate visits
`regarded as sensitive. The White House stated that the new policy
`would not apply to records created before September 15, 2009 because
`it would be too difficult to retroactively sort those earlier records,
`which do not include such designations. See Tibbits Decl. ¶¶ 15-16,
`27-37. But the White House said it would respond to individual
`requests seeking records created between January 20, 2009 and
`September 15, 2009, if the requests “are reasonable, narrow, and
` See White House Voluntary Disclosure Policy,
`specific.”
`http://www.whitehouse.gov/VoluntaryDisclosure.
`
`

`
`9
`
`Watch. See Judicial Watch, Inc. v. U.S. Secret Serv., 803 F.
`Supp. 2d 51 (D.D.C. 2011). The court held that WHACS
`records qualify as “agency records” subject to FOIA, and it
`rejected the Secret Service’s contentions that disclosure would
`raise separation-of-powers concerns and place impermissible
`burdens on senior White House advisors. Id. at 60-62. The
`Secret Service then filed an appeal pursuant to 28 U.S.C.
`§ 1292(a)(1), and the district court issued a stay of its order
`pending appeal. See Order, Judicial Watch, Inc. v. U.S. Secret
`Serv., No. 09-2312 (Nov. 14, 2011).7
`
`II
`
`Under FOIA, agencies must make requested records
`available “to any person,” unless one of nine specific
`exemptions applies. 5 U.S.C. § 552(a)(3)(A); see id.
`§ 552(b)(1)-(9). The Act grants federal district courts
`jurisdiction “to order the production of any agency records
`improperly withheld from the complainant.” Id. § 552(a)(4)(B)
`(emphasis added). The question at issue on this appeal is
`whether WHACS records are “agency records.”
`
`A FOIA disclosure order is injunctive in nature, and is therefore
`7
`immediately appealable as an interlocutory order, if it “requires the
`disclosure of documents for which the agenc[y] claim[s] no basis for
`non-disclosure beyond the argument already rejected by the district
`court.” Judicial Watch, Inc. v. Dep’t of Energy, 412 F.3d 125, 128
`(D.C. Cir. 2005); see CREW, 532 F.3d at 863-64. In this case, the
`district court directed the Secret Service to disclose any records that
`are not subject to a FOIA exemption, see 5 U.S.C. § 552(b)(1)-(9), and
`that can be identified as such without undue burden. Judicial Watch,
`803 F. Supp. 2d at 62. Because the Service represents that it has
`identified at least one record for which it has no basis for non-
`disclosure beyond the arguments already rejected by the district court,
`see Ulmer Decl. ¶ 4; Oral Arg. Recording at 14:30, we have
`jurisdiction under 28 U.S.C. § 1292(a)(1).
`
`

`
`10
`
`A
`
`We review the district court’s grant of summary judgment
`on this question de novo. See Consumer Fed’n of Am. v. Dep’t
`of Agric., 455 F.3d 283, 287 (D.C. Cir. 2006). A court may
`grant summary judgment only if there is “no genuine dispute as
`to any material fact and the movant is entitled to judgment as a
`matter of law.” FED. R. CIV. P. 56(a). On “summary judgment
`the inferences to be drawn from the underlying facts . . . must be
`viewed in the light most favorable to the party opposing the
`motion.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
`475 U.S. 574, 587 (1986) (internal quotation marks omitted). In
`FOIA cases, “‘[s]ummary judgment may be granted 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.’” Consumer Fed’n, 455
`F.3d at 287 (quoting Gallant v. NLRB, 26 F.3d 168, 171 (D.C.
`Cir. 1994)).
`
`Although the district court ruled against the Secret Service,
`it nonetheless relied heavily on both the 2006 MOU and
`declarations by Secret Service and White House officials to
`describe the purpose, generation, and use of WHACS records,
`as well as the government’s intentions, understandings, and
`practice regarding those records. See Judicial Watch, 803 F.
`Supp. 2d at 53-54, 56-60. See, e.g., MOU ¶¶ 10-16; Droege
`Decl. ¶ 12 (stating that the MOU “documented what was then
`understood to be past practice and interests regarding WAVES
`and ACR records”). Judicial Watch has never contested any of
`those factual descriptions. And because the case was decided
`against the Service on summary judgment, we are bound by
`them. Oral Arg. Recording at 45:45 - 47:00 (acknowledgment
`
`

`
`11
`
`by Judicial Watch). We are not, however, bound by the MOU’s
`8
`legal assertions that WHACS records “are at all times
`Presidential Records,” “are not the records of an ‘agency’
`subject to [FOIA],” and “are under the exclusive legal custody
`and control of the White House.” MOU ¶¶ 17-18.
`
`B
`
`As both the Supreme Court and this court have repeatedly
`noted, while FOIA “limited access to ‘agency records,’” it “did
`not provide any definition of ‘agency records.’” Forsham v.
`Harris, 445 U.S. 169, 178 (1980); see U.S. Dep’t of Justice v.
`Tax Analysts, 492 U.S. 136, 142 (1989); Consumer Fed’n, 455
`
`See Pa. State Police v. Suders, 542 U.S. 129, 134 (2004)
`8
`(reciting the facts “in the light most favorable to” the respondent
`“[b]ecause th[e] case was decided against [her] on the [petitioner’s]
`motion for summary judgment”); Crooker v. Bureau of Alcohol,
`Tobacco & Firearms, 670 F.2d 1051, 1054 n.7 (D.C. Cir. 1981)
`(“Because [the appellant] did not contest the Government’s [factual]
`assertions[,] . . . Rule 56(e) of the Federal Rules of Civil Procedure
`requires this court to take the Government’s assertions as true. . . . In
`other words, failure to raise a genuine issue as to a material fact
`constitutes a concession that the uncontested fact is true for purposes
`of summary judgment.”); see also Malik v. District of Columbia, 574
`F.3d 781, 783 n.1 (D.C. Cir. 2009).
`
`In a footnote to its brief, Judicial Watch appears to treat the MOU
`with some skepticism, noting that it was executed by the Bush
`Administration just four months after Judicial Watch and CREW
`submitted their 2006 FOIA requests relating to visits by lobbyist Jack
`Abramoff. See Judicial Watch Br. 10 n.3; see also Judicial Watch,
`803 F. Supp. 2d at 58 n.3. Given the summary judgment posture of
`this case, however, there is no room for such skepticism in our legal
`analysis.
`
`
`

`
`12
`
`F.3d at 287; Tax Analysts v. U.S. Dep’t of Justice, 845 F.2d
`1060, 1067 (D.C. Cir. 1988), aff’d, 492 U.S. 136 (1989);
`McGehee v. CIA, 697 F.2d 1095, 1106 (D.C. Cir. 1983).
`Nonetheless, we do know two things that help us define the
`scope of the term.
`
`The first thing we know is that, as the Supreme Court held
`in Kissinger v. Reporters Committee for Freedom of the Press,
`Congress did not intend the word “agency” to include the
`President, his “‘immediate personal staff[,] or units in the
`Executive Office whose sole function is to advise and assist the
`President.’” 445 U.S. 136, 156 (1980) (quoting H.R. REP. NO.
`93-1380, at 232 (1974) (Conf. Rep.)). We have collectively
`referred to those staff and units as the “Office of the President,”
`Armstrong v. Exec. Office of the President, 1 F.3d 1274, 1295
`(D.C. Cir. 1993); see also Kissinger, 445 U.S. at 156, and do so
`here as well for ease of reference.9
`
`Because the Office of the President is not an agency for
`FOIA purposes, documents generated by staff or units within
`that Office are “not ‘agency records’ when they [are] made.”
`Kissinger, 445 U.S. at 156.
` It is therefore undisputed that a
`10
`
`As noted below, this court has held that records of the Vice
`9
`President and his immediate staff are likewise not agency records for
`purposes of FOIA. See infra Part IV.A (citing Wilson v. Libby, 535
`F.3d 697, 708 (D.C. Cir. 2008)); see also Schwartz v. U.S. Dep’t of the
`Treasury, No. 00-5453, 2001 WL 674636 (D.C. Cir. May 10, 2001)
`(unpublished order), aff’g 131 F. Supp. 2d 142, 147-48 (D.D.C. 2000);
`Meyer v. Bush, 981 F.2d 1288, 1295 (D.C. Cir. 1993). We therefore
`include them within the collective descriptor, “Office of the
`President.”
`
`Accord Tax Analysts, 492 U.S. at 143; Armstrong v. Exec.
`10
`Office of the President, 1 F.3d at 1295 (D.C. Cir. 1993); Meyer, 981
`F.2d at 1293 n.3; McGehee, 697 F.2d at 1107 n.53; Ryan v. Dep’t of
`
`

`
`13
`
`requester could not use FOIA to compel the President or his
`advisors to disclose their own appointment calendars or visitor
`logs. See Oral Arg. Recording at 23:45 (acknowledgment by
`Judicial Watch). In part, Congress exempted such records from
`FOIA -- and later subjected them to the Presidential Records Act
`instead -- in order to avoid serious separation-of-powers
`concerns that would be raised by a statute mandating disclosure
`of the President’s daily activities. See, e.g., Armstrong v. Bush,
`924 F.2d 282, 290 (D.C. Cir. 1991); Ryan v. Dep’t of Justice,
`617 F.2d 781, 788 n.19 (D.C. Cir. 1980).
`
`The second thing we know is that not all documents in the
`
`possession of a FOIA-covered agency are “agency records” for
`the purpose of that Act. See Ryan v. Dep’t of Justice, 617 F.2d
`781, 785 (D.C. Cir. 1980). As the Supreme Court instructed in
`Tax Analysts, the term “agency records” extends only to those
`documents that an agency both (1) “create[s] or obtain[s],” and
`(2) “control[s] . . . at the time the FOIA request [was] made.”
`492 U.S. at 144-45. From this instruction, we know that not all
`records physically located at an agency are “agency records.”
`See, e.g., Kissinger, 445 U.S. at 157-58 (summaries of Henry
`Kissinger’s telephone conversations as National Security
`Advisor that he brought from the White House to the State
`Department); Consumer Fed’n, 455 F.3d at 288-93 (personal
`appointment calendar kept on an agency computer); Goland v.
`CIA, 607 F.2d 339, 344-48 (D.C. Cir. 1978) (congressional
`hearing transcript in the possession of the CIA). Nor are all
`documents that are generated by an agency “agency records.”
`See United We Stand Am., Inc. v. IRS, 359 F.3d 595, 600-02
`(D.C. Cir. 2004) (portions of IRS document generated in
`response to a congressional request). Rather, to determine
`whether a document is an agency record under Tax Analysts, we
`must “focus[] on a variety of factors surrounding the creation,
`
`Justice, 617 F.2d 781, 788 (D.C. Cir. 1980).
`
`

`
`14
`
`possession, control, and use of the document.” Consumer
`Fed’n, 455 F.3d at 287 (quoting Bureau of Nat’l Affairs, Inc. v.
`U.S. Dep’t of Justice, 742 F.2d 1484, 1490 (D.C. Cir. 1984)).
`
`We discuss each of these points in greater detail in the
`following two parts. In Part III, we examine the manner in
`which Tax Analysts and the “control” tests this court has adopted
`to implement the Court’s instruction apply to WHACS records.
`In Part IV, we examine Congress’ intention to exclude the
`President’s appointment calendars from FOIA, and the
`importance of construing the Act to avoid the significant
`separation-of-powers concerns that would arise if the Act were
`construed in a way that effectively permitted requesters to
`reconstruct those calendars. Both examinations lead us to
`conclude that WHACS records that reveal visitors to the Office
`of the President are not “agency records.”
`
`There is a subset of WHACS records, however, that reveals
`nothing about visits to the Office of the President. Those
`records are generated by visits to components of the White
`House Complex that are not part of that Office, and that are
`themselves “agencies” covered by FOIA. We discuss those
`WHACS records in Part V, and conclude that they are “agency
`records” subject to FOIA.
`
`III
`
`As noted above, Tax Analysts instructs that a document is
`not an “agency record” unless an agency both (1) “create[s] or
`obtain[s]” it, and (2) “controls” it at the time of the FOIA
`request. 492 U.S. at 144-45. Turning briefly to the instruction’s
`first prong, we note some uncertainty as to which entity
`“created” the WHACS records. That question was not at issue
`in Tax Analysts, a case involving paper documents that were
`created by one author, at one time, and in one place. See id. at
`
`

`
`15
`
`139-40 (FOIA request for district court tax opinions obtained by
`the Department of Justice). The “creator” of an electronic
`record, by contrast, is more ambiguous. WHACS records, for
`example, exist only because a White House employee
`specifically requested that a particular visitor be admitted to the
`White House Complex. Most of those records were not
`generated by or at the Secret Service, but rather by electronic
`entries made at the White House Complex -- first by staff of the
`Complex, and then by a visitor’s swipe. See supra Part I;
`Judicial Watch Br. 7 (“ACR records are created when a visitor
`swipes his or her pass upon entering or exiting the White House
`Complex.”); cf. supra note 3 (describing additions the Secret
`Service may make to WHACS records).
`
`But we need not delve into the creation question more
`deeply at this point because there is no dispute that the Secret
`Service ultimately “obtained” the WHACS records, thus
`satisfying the first prong of Tax Analysts. This leaves us with
`the second prong: whether the Secret Service “controlled” the
`records at the time of Judicial Watch’s FOIA request.
`
`
`
`A
`
`In the usual case, this circuit looks to four factors to
`determine “whether an agency has sufficient ‘control’ over a
`document to make it an ‘agency record.’” Tax Analysts, 845
`F.2d at 1069. They are:
`
`[1] the intent of the document’s creator to retain or
`relinquish control over the records; [2] the ability of
`the agency to use and dispose of the record as it sees
`fit; [3] the extent to which agency personnel have read
`or relied upon the document; and [4] the degree to
`which the document was integrated into the agency’s
`record system or files.
`
`

`
`16
`
`Id. The circuit first announced this test in our own decision in
`the Tax Analysts case, which the Supreme Court subsequently
`affirmed, albeit on different grounds. Since then, we have
`reaffirmed the four-factor test on several occasions. See Judicial
`Watch, Inc. v. Fed. Hous. Fin. Agency, 646 F.3d 924, 926-27
`(D.C. Cir. 2011); United We Stand, 359 F.3d at 599; Burka v.
`U.S. Dep’t of Health & Human Servs., 87 F.3d 508, 515 (D.C.
`Cir. 1996).
`
`This is the test upon which the district court relied in
`granting summary judgment in favor of Judicial Watch, see
`Judicial Watch, 803 F. Supp. 2d at 57-60, and it is the test that
`Judicial Watch urges us to apply on appeal, see Judicial Watch
`Br. 9; Oral Arg. Recording at 23:00.
` For reasons discussed in
`11
`Part III.B, we conclude that this test does not fully capture the
`“control” issue in this case. Even by its own terms, however,
`the four-factor test is indeterminate as applied to WHACS
`records.
`
`1. The district court found that “the first factor of the
`determination, intent, weighs in favor of the Secret Service’s
`assertion that the records are not under agency control.”
`Judicial Watch, 803 F. Supp. 2d at 57. The MOU “is
`unequivocal in asserting that the control over WAVES and ACR
`records is at all times maintained by the [White House] and not
`the Secret Service.” 803 F. Supp. 2d at 58. It further states that
`“any information provided to the Secret Service” for the creation
`of such records “is provided under an express reservation of
`White House control.” MOU ¶ 19. And the requisite intent is
`
`The Court’s decision in Tax Analysts stated that “control”
`11
`means “that the materials have come into the agency’s possession in
`the legitimate conduct of its official duties.” 492 U.S. at 145. We
`have regarded the four-factor test as a gloss on that statement. See
`Judicial Watch v. Fed. Hous. Fin. Agency, 646 F.3d at 926-27.
`
`

`
`17
`
`present regardless of who is regarded as the records’ creator, as
`the MOU provides that “the White House at all times asserts,
`and the Secret Service disclaims, all legal control over any and
`all WHACS records.” Id. ¶ 24.
`
`For these reasons, we agree with the district court that “[t]he
`‘intent’ factor of the analysis . . . weighs in the defendant’s
`favor.” 803 F. Supp. 2d at 58. Judicial Watch does not dispute
`the point. Judicial Watch Br. 8. Resolution of the remaining
`three factors, however, is more complicated.
`
`2. The district court concluded that the second factor, “the
`ability of the agency to use and dispose of the records as it sees
`fit,” weighs against the Secret Service. Judicial Watch, 803 F.
`Supp. 2d at 58. We are not so sure. Although it is undisputed
`that the Service has authority to use the records, it does not have
`the ability to use and dispose of them “as it sees fit.” According
`to the MOU, the Service may use the records for only “two
`limited purposes”: “to perform background checks to determine
`whether, and under what conditions, to authorize [a] visitor’s
`temporary admittance to the White House Complex,” and “to
`verify the visitor’s admissibility at the time of the visit.” MOU
`¶ 12; see Droege Decl. ¶ 5. Likewise, the MOU provides that
`the Service will transfer the records to the White House within
`60 days of the visit, and then purge them from its system. MOU
`¶ 14; see White Decl. ¶ 11. At least with respect to WAVES
`records, this practice predates the MOU. See Droege Decl.
`¶¶ 10-11. And while the agency began retaining copies of
`WHACS records in 2004, it did so principally because of
`pending litigation. See id.; MOU ¶ 16. It is plain that if the
`current litigation ends in the Service’s favor, the agency will
`revert to its prior practice of transferring all WHACS records to
`the White House.
`
`

`
`18
`
`The district court characterized as “circular” the Secret
`Service’s argument that, “‘because the President and Vice
`President retain control of WAVES and ACR records (as set
`forth in the MOU), the Secret Service lacks disposal authority
`over these records.’” Judicial Watch, 803 F. Supp. 2d at 59
`(quoting Mem. in Support of Def.’s Cross-Motion for Summ. J.
`at 19-20). The court thought the argument circular because it
`viewed its validity as dependent upon the Service winning its
`claim that the documents are not agency records. Id. We think
`this misapprehends the Service’s argument.
`
`In deciding whether a document is an agency record under
`FOIA, we examine how the agency would treat the records in its
`normal course of operations, in the absence of pending FOIA-
`related litigation. Cf. Kissinger, 445 U.S. at 151-52 (“Most
`courts which have considered the question have concluded that
`the FOIA is only directed at requiring agencies to disclose those
`‘agency records’ for which they have chosen to retain
`possession or control.” (emphasis added)). The Secret Service
`has pointed to evidence that demonstrates restrictions on its
`ability to use and dispose of WHACS records: a longstanding
`practice of turning all such records over to the White House,
`Droege Decl. ¶¶ 10-11, and a written agreement restricting the
`Service from using and retaining those records in ways other
`than those specified therein, MOU ¶¶ 12-14. As we explained
`in United We Stand -- and as we discuss in more detail in
`Section III.B -- restrictions on use and disposal imposed by a
`governmental entity not covered under FOIA may have a
`substantial bearing on the second Tax Analysts factor. See
`United We Stand, 359 F.3d at 600; Goland, 607 F.2d at 347
`(examining “the conditions attached
`to [a document’s]
`possession” by its creator).
`
`3. The district court concluded that “the third factor -- the
`extent to which Secret Service personnel have read or relied
`
`

`
`19
`
`upon the documents -- cuts strongly against the Secret Service.”
`Judicial Watch, 803 F. Supp. 2d at 59. With this, we agree. It
`is true, as the Secret Service argues, that its pe