msnbc.com
updated 10:05 a.m. ET, Tues., June 16, 2009
The Obama administration is fighting to block access to names of visitors to the White House, taking up the Bush administration argument that a president doesn't have to reveal who comes calling to influence policy decisions.

Despite President Barack Obama's pledge to introduce a new era of transparency to Washington, and despite two rulings by a federal judge that the records are public, the Secret Service has denied msnbc.com's request for the names of all White House visitors from Jan. 20 to the present. It also denied a narrower request by the nonpartisan watchdog group Citizens for Responsibility and Ethics in Washington, which sought logs of visits by executives of coal companies.

CREW says it will file a lawsuit Tuesday against the Department of Homeland Security, which oversees the Secret Service. (Updated: Here's a copy of CREW's complaint.)

"We are deeply disappointed," said CREW attorney Anne L. Weismann, "that the Obama administration is following the same anti-transparency policy as the Bush administration when it comes to White House visitor records. Refusing to let the public know who visits the White House is not the action of a pro-transparency, pro-accountability administration."

Groups that advocate open government have argued that it's vital to know the names of White House visitors, who may have an outsized influence on policy matters. The visitor logs have been released in only a few isolated cases, most notably records of visits by lobbyist Jack Abramoff to the Bush White House, and in the "filegate" investigation of the Clinton White House.

The Obama administration is arguing that the White House visitor logs are presidential records — not Secret Service agency records, which would be subject to the Freedom of Information Act. The administration ought to be able to hold secret meetings in the White House, "such as an elected official interviewing for an administration position or an ambassador coming for a discussion on issues that would affect international negotiations," said Obama spokesman Ben LaBolt.

These same arguments, made by the Bush administration, were rejected twice by a federal judge. The visitor logs are created by the Secret Service and maintained by the Secret Service, U.S. District Judge Royce Lamberth ruled in 2007 and again this January. CREW had requested records of visits to the Bush White House, as well as the residence of Vice President Dick Cheney, by leaders of Religious Right organizations.

The Bush administration appealed Lamberth's decision, and the Obama administration has continued to press that appeal.

"It is the government's position," the Secret Service wrote last week to msnbc.com in denying access to the visitor logs, "that the vast majority, if not all, of the records ... are not agency records subject to the FOIA. Rather, these records are records governed by the Presidential Records Act" and "remain under the exclusive legal custody and control of the White Office and the Office of the Vice President. After the resolution of this litigation, we will respond further to your request if necessary."

The visitor records are kept in two databases:

Worker and Visitor Entry System (WAVES). This Secret Service database includes information submitted to the Secret Service about individuals who have a planned visit to the White House. This information includes the name of the pass holder submitting the request, the date of the request, the time and location of the planned visit and the nature of the visit or the person to be visited. This information may be updated with the actual date and time of entry and exit. Msnbc.com also requested lists submitted to the Secret Service of groups or delegations of visitors with planned visits to the White House.
Access Control Records System (ACES). This Secret Service database includes information generated when a pass holder, worker or visitor swipes a permanent or temporary pass over an electronic reader at entrances or exits. This information includes the name of the visitor, the badge number, the post or location, and the date and time of entry or exit.
No private information requested
Msnbc.com excluded from its request any private information on the White House visitors. It asked that the Secret Service delete from the logs any dates of birth, Social Security numbers, and home addresses (other than city and state).

In addition, msnbc.com asked the Secret Service to exclude information on security precautions and the results of background checks on prospective visitors.

The Bush White House had taken several steps to close off access to the visitor logs, steps repeatedly rejected by the federal judge.

In May 2006, the Bush White House signed a memorandum of understanding with the Secret Service, declaring that the logs are agency records, under White House control.

In October 2006, CREW sought records of visits by nine religious leaders: James Dobson, Gary L. Bauer, Wendy Wright, Louis P. Sheldon, Andrea Lafferty, Paul Weyrich, Tony Perkins, Donald Wildmon and Jerry Falwell.

The Bush position was rejected in December 2007 by Judge Lamberth, a former federal prosecutor who was appointed to the bench by President Ronald Reagan. Lamberth gave the White House 20 days to hand over the public records. But CREW did not get the visitor logs.

In September 2008, Homeland Security said that it did not plan to release the visitor logs, claiming that the visitor logs were protected by the presidential communication privilege in the law.

Judge Lamberth ruled again, denying that claim on Jan. 9. The judge wrote that a simple list of visitors is not a communication at all, because it includes no details on the topics discussed during a meeting, and therefore is not protected by a presidential communication privilege.

The Bush administration appealed on Jan. 14, a week before the end of President Bush's term of office.

In late January and again in May, the Obama administration had opportunities to change course, when it filed papers in the appeals court, but stuck with the Bush position.

In February, the White House spokesman, LaBolt, told msnbc.com that the policy was under review. "We are reviewing our policy on access to visitor logs and related litigation involving the previous administration to determine how we can ensure that policymaking in this administration happens in an open and transparent way, and that we take appropriate measures to ensure that we are operating in a secure environment."

But last week, in denial letters to msnbc.com and CREW, the Secret Service continued to cite the Bush position.

Asked Monday whether the White House plans to continue to oppose release of the records, White House spokesman LaBot said the policy is still under review. He also cited a list of "the unprecedented steps the administration has taken to promote openness and transparency." These include instructing all agencies to adopt a presumption in favor of disclosure in Freedom of Information Act decisions, and overturning the practice of allowing other executives, aside from the president, to assert executive privilege to block access to an administration's records.

Unpersuaded was the attorney for the watchdog group CREW, which was formed in 2003 during the Bush administration to increase open government.

"It's great that President Obama made this commitment to transparency," attorney Weismann said. "But now you need to make good on it."