Behar v. U.S. Dep't of Homeland Sec.
| Decision Date | 15 August 2019 |
| Docket Number | 18-cv-7516 (LAK),17-CV-8153 (LAK) |
| Citation | 403 F.Supp.3d 240 |
| Parties | Richard BEHAR, Plaintiff, v. U.S. DEPARTMENT OF HOMELAND SECURITY, Defendant. |
| Court | U.S. District Court — Southern District of New York |
John Langford, David Schulz, Charles Crain, Media Freedom & Information Access Clinic, Abrams Institute,1 Attorneys for Plaintiff.
Sarah S. Normund, Assistant United States Attorney, Geoffrey S. Berman, United States Attorney, Attorneys for Defendant.
This case involves Freedom of Information Act ("FOIA") requests of Richard Behar—an investigative reporter and contributing editor at Forbes magazine—to obtain records from the United States Secret Service ("USSS") identifying visitors to Donald Trump during the periods in which Mr. Trump was a presidential candidate receiving USSS protection and while he was president-elect. For the reasons explained below, defendant's motions for summary judgment are granted in part and denied in part and plaintiff's cross-motion is denied.
In September 2017, plaintiff submitted a FOIA request to the Department of Homeland Security ("DHS") seeking records and communications identifying individuals who were screened and/or noted by the USSS because they either (a) sought to visit Donald Trump or certain of his family members or campaign officials, and/or (b) sought access to any secured area where those individuals were present.2 The request was "limited to records of individuals screened or noted by the USSS between November 1, 2015, and January 21, 2017," which is understood to be the time during which Mr. Trump received USSS protection until the date of his inauguration.3 Plaintiff requested expedited processing of the request.4
In early October 2017, DHS advised Mr. Behar that his request was being transferred to the FOIA officer for the USSS.5 By late October, plaintiff had not yet received the requested documents and filed suit to challenge defendant's failure to disclose them.6
In February 2018, the Court entered a Joint Stipulation and Order pursuant to which defendant reviewed a narrowed email set collected from the USSS detail leaders, assistant detail leaders and operations supervisors assigned to protectee Donald Trump.7 Defendant identified nine emails responsive to the FOIA request, and two of those emails were produced with redactions.8 The redactions on those emails are not being challenged in this action. Of the remaining seven emails, five are from the campaign period and two are from the transition period.9 As described in a declaration submitted by the FOIA and privacy acts officer for the USSS,10 these documents include:
In May 2018, defendant's counsel notified plaintiff of schedules reflecting potential meetings with Mr. Trump while he was a candidate and president-elect and that defendant did not consider them to be responsive to the FOIA request because they did not "reflect[ ] any screening or notation of individuals by the USSS."14 These documents reflect, to some extent, the evolution of Mr. Trump's schedules over time.15 Shortly thereafter, plaintiff filed a second FOIA request seeking production of the schedules and any additional documents that the USSS located in connection with the search and review conducted pursuant to the Joint Stipulation and Order that "reference any individuals attending or expecting to attend meetings with Mr. Trump and/or the Trump family members and/or campaign officials described in [the first FOIA request]."16
The USSS did not identify any additional documents responsive to plaintiff's second request apart from the schedules.17 In June 2018, defendant informed plaintiff that it was withholding the schedules in full.18 Plaintiff submitted an administrative appeal,19 and the USSS upheld its decision to withhold the schedules.20 In August 2018, plaintiff filed the second of these actions to compel disclosure of the schedules.21 In October 2018, defendant filed motions for summary judgment dismissing both actions, and plaintiff cross-moved for summary judgment.22
Defendant has withheld from production or redacted certain information from the responsive documents described above pursuant to three FOIA exemptions. Exemption (6) applies to "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy."23 Exemption (7)(C) applies to "records or information compiled for law enforcement purposes" the disclosure of which "could reasonably be expected to constitute an unwarranted invasion of personal privacy."24 Exemption 7(E) applies to "records or information compiled for law enforcement purposes" the disclosure of which "would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law."25
With regard to the responsive emails described above, the USSS invoked exemptions (6) and (7)(C) to "withhold the names of the visitors and information concerning the nature and/or circumstances of the visits, and the names, certain email addresses, and phone numbers of law enforcement personnel and non-visitor third parties whose names and contact information appear on these documents."26 The USSS withheld all of the schedules pursuant to exemptions (6) and (7)(C). It determined that the privacy rights of the law enforcement personnel, Mr. Trump, and the third parties identified in the documents outweighed any public interest in disclosure.27
The USSS withheld the italicized portions of certain emails described above pursuant to exemption (7)(E), on the grounds that they "contain specific information concerning law enforcement techniques and procedures, including: (1) staffing of protective details, including numbers of security personnel assigned to particular details; (2) responsibilities of individual USSS agents; (3) specific security arrangements for an upcoming trip by candidate Trump; and (4) security arrangements for access by certain individuals to secure areas of Trump Tower."28
FOIA confers upon federal courts "jurisdiction to enjoin [a federal] agency from withholding agency records and to order the production of any agency records improperly withheld[.]"29 Disclosure of "agency records" is mandated unless they fall within one of FOIA's enumerated exemptions.30
However, "[s]ummary judgment in favor of [a] FOIA plaintiff is appropriate when an agency seeks to protect material which, even on the agency's version of the facts, falls outside the proffered exemption."34
As explained above, defendant withheld all of the schedules and certain information from the responsive emails pursuant to exemptions 6 and 7(C). Plaintiff does not contest that these records constitute "similar files" that meet the threshold requirement of exemption 6. Plaintiff, however, argues that the records cannot be withheld under exemption 7(C) because defendant has failed adequately to demonstrate that they were "compiled for law enforcement purposes."35
"To show that particular documents qualify as ‘records or information compiled for law enforcement purposes,’ an agency must establish a rational nexus between the agency's activity in compiling the documents and ‘its law enforcement duties.’ "36
The USSS submitted a declaration stating:
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Behar v. U.S. Dep't of Homeland Sec.
...no showing of potential unwelcome consequences on the part of the third party visitors resulting from disclosure." Behar v. DHS , 403 F. Supp. 3d 240, 254 (S.D.N.Y. 2019). The district court thought it possible that "the public interest in disclosure outweighs the relevant privacy interests......