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Behar v. DHS, Nos. 20-3253, 20-3256, 2022 WL 2542015 (2d Cir. July 8, 2022) (Menashi, J.)

Date

Behar v. DHS, Nos. 20-3253, 20-3256, 2022 WL 2542015 (2d Cir. July 8, 2022) (Menashi, J.)

Re:  Request for records concerning presidential campaign and transition from prior presidential administration to subsequent administration

Disposition:  Reversing district court's denial in part of government's motion for summary judgment

  • Procedural Requirements, Entities Subject to the FOIA:  The Court of Appeals for the Second Circuit holds that "[t]he district court erred in granting summary judgment to [the requester] because the requested records are not 'agency records' within the meaning of the FOIA."  The court explains that "[n]either a presidential campaign nor a transition qualifies as an 'agency' of the federal government under the FOIA."  "A transition receives government funding, but funding 'short of Government control' leaves 'grantees free from the direct obligations imposed by the FOIA.'"  "A transition 'is clearly not in the control of the incumbent President' but 'answers only to the President-elect.'"  "Accordingly, the transition 'is not within the executive branch of government and hence not an "agency" within the meaning of § 552(e) of the FOIA.'"
     
  • Procedural Requirements, "Agency Records":  The Court of Appeals for the Second Circuit holds that "[w]hen an entity 'is not an agency for FOIA purposes, documents generated' by that entity 'are not agency records when they are made,' . . . so [the court] inquire[s] into 'control' to determine whether such documents have become 'agency records' after an agency obtains them."  "In this case, the campaign and transition manifested a clear intent to control the documents."  "As the Secret Service explained . . . , '[a]ll' of the records 'at issue in this case . . . were provided to the Secret Service with the expectation of privacy and the expectation that they would not be disseminated beyond the Secret Service personnel who had the need of the information . . . to perform their protective functions.'"  "The records were regularly marked as 'confidential' and '[n]ot to be copied or shared,' with '[r]eminder[s] to please not distribute' the records due to their 'high[ ] confidential[ity].'"  "'Regardless of their markings, however,' the agency 'treated' the information 'as confidential.'"  "Under these circumstances, the Secret Service did not take control of the documents such that the documents were subject to the free disposition of the Secret Service."
     
  • Exemption 7(C):  The Court of Appeals for the Second Circuit holds that, "[e]ven if the records in this case were properly considered 'agency records,' [the court] still would reverse the judgment of the district court because Exemption 7(C) would shield the records from disclosure."  "The district court erred in holding that Exemption 7(C) did not apply."  "In this case, the district court recognized that the government successfully established that Trump and other third parties had cognizable privacy interests in the records."  "But the district court proceeded to make two errors."  "First, the district court unjustifiably discounted those privacy interests."  The court relates that "[t]he district court discounted Trump's privacy interest as 'limited substantially' by his candidacy for public office."  "[The court] do[es] not agree that 'public figures' who are protected by the Secret Service have a lesser privacy interest 'in information relating to their candidacies' that the Secret Service might obtain."  The court "agree[s] with DHS that the privacy interest here would not be 'tempered,' . . . but heightened 'to the extent any particular record did reveal information that directly or significantly illuminated President Trump's post-inaugural priorities or conduct . . . given the well-established confidentiality of presidential meetings and advisors' . . . ."  Also, the court finds that "[t]he district court also erred in discounting the privacy interests of third-party visitors because the Secret Service did not show 'that disclosure of their names would lead to embarrassment, retaliation or other unwelcome consequences.'"  "Such consequences could make a privacy interest 'particularly pronounced,' . . . but that showing is not necessary and its absence did not justify discounting the privacy interests here."  "Exemption 7(C) requires only that the agency establish that '[t]he privacy interest protected by [the exemption] is an interest in "avoiding disclosure of personal matters" and "keeping personal facts away from the public eye."'"  "The Secret Service showed that the disclosed information 'is the type of information that a person would ordinarily not wish to make known about himself or herself.'"

    "Second, the district court overlooked the purpose of the FOIA 'to open agency action to the light of public scrutiny,' . . . by including in the purported public interest in disclosure access to information about the activities of non-agencies."  "There is no cognizable public interest to be vindicated through the FOIA in 'advancing public knowledge of whom Mr. Trump relied upon in making cabinet and other presidential appointments' or in 'determining his presidential priorities.'"  "To the contrary, disclosing records that reveal this pre-presidential information would shed no light on the operations or decision-making of the Secret Service – as the FOIA requires it must to vindicate a public interest in disclosure."  "Neither a campaign nor a transition is an agency the records of which the FOIA aims to disclose."  "The FOIA does not establish a public interest in revealing information about such entities."
Court Decision Topic(s)
Court of Appeals opinions
Exemption 7(C)
Procedural Requirements, Agency Records
Procedural Requirements, Entities Subject to the FOIA
Updated August 11, 2022