Behar v. DHS, Nos. 17-8153, 18-7516, 2019 WL 3841916 (S.D.N.Y. Aug. 15, 2019) (Kaplan, J.)

Behar v. DHS, Nos. 17-8153, 18-7516, 2019 WL 3841916 (S.D.N.Y. Aug. 15, 2019) (Kaplan, J.)

Re:  Request for records identifying visitors to Donald Trump during periods in which Mr. Trump was presidential candidate receiving USSS protection and while he was president-elect

Disposition:  Granting in part and denying in part defendant's motion for summary judgment; granting in part and denying in part plaintiff's motion for summary judgment

• Exemption 7, Threshold:  The court holds that "[t]he threshold requirement of exemption 7 . . . is satisfied."  "'The ordinary understanding of law enforcement includes . . . proactive steps designed to prevent criminal activity and to maintain security.'"  "And '[t]here can be no doubt . . . that the Secret Service acts with a law enforcement purpose when it protects federal officials [and presidential candidates] from attack, even though no investigation may be ongoing.'"
   
• Exemption 7 (C):  The court holds that "[t]he requested documents contain personal and confidential schedules of Mr. Trump and the names of individuals scheduled to meet with him in confidence."  "This satisfies the 'more than de minimis' threshold of exemption 7(C)."  The court then finds that "[i]t would be wrong to overstate the privacy interests of the third party visitors in question, as there has been no showing that disclosure of their names would lead to embarrassment, retaliation or other unwelcome consequences."  The court "[is] persuaded also that candidates and presidents-elect have some cognizable privacy interest in 'maintaining the confidentiality of their personal schedules and the identity of individuals with whom they meet.'"  "But that does not decide this case because the weight to be given that interest is limited substantially by the fact that candidates for federal office are not merely private citizens."  "They are 'public figures with less privacy interest than others in information relating to their candidacies.'"  The court finds that "contrary to plaintiff's assertion, disclosure would not advance public understanding of how the USSS spends taxpayer funds, vets visitors, conducts background checks or any other USSS function."  "Rather, the information would reveal only who met with Mr. Trump at a given time."  "Had plaintiff been interested in information concerning how the USSS performs its protective mandate, he would have tailored his FOIA request accordingly."  "There remains plaintiff’s contention that the documents would shed light on whom Mr. Trump relied upon in selecting his initial cabinet and perhaps other presidential appointees and determining the priorities of his administration, and that the public interest in disclosure outweighs the relevant privacy interests."  "That may be so."  "But the Court is unable to make that determination on the basis of the current USSS declaration."  "The USSS declaration is similarly lacking with respect to information needed for the Court to consider properly the privacy interests of the individuals meeting with Mr. Trump, and Mr. Trump himself."  "At this stage, the Court finds it appropriate to allow the USSS to provide additional declarations or other submissions in support of its exemption 7(C) withholdings, taking into account the deficiencies discussed above."