Behar v. U.S. Dep't of Homeland Sec.

• Decision Date: 08 July 2022
• Docket Number: s. 20-3253(L),20-3256(Con),August Term 2021
• Citation: 39 F.4th 81
• Parties: Richard BEHAR, Plaintiff-Appellee, v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

39 F.4th 81

Richard BEHAR, Plaintiff-Appellee,

v.UNITED STATES DEPARTMENT OF HOMELAND SECURITY, Defendant-Appellant.

Nos. 20-3253(L)

20-3256(Con)

August Term 2021

United States Court of Appeals, Second Circuit.

Argued: November 30, 2021

Decided: July 8, 2022

Jackson Busch (David A. Schulz, Charles Crain, on the brief), Media Freedom & Information Access Clinic, Abrams Institute, Yale Law School, New Haven, CT, for Plaintiff-Appellee.

Sarah S. Normand, Assistant United States Attorney (Christopher Connolly, Assistant United States Attorney, on the brief), for Damian Williams, United States Attorney for the Southern District of New York, New York, NY, for Defendant-Appellant.

Before: Park, Nardini, and Menashi, Circuit Judges.

Menashi, Circuit Judge:

Defendant-Appellant U.S. Department of Homeland Security ("DHS") appeals the judgment of the district court ordering the U.S. Secret Service, a component of DHS, to release certain records that Plaintiff-Appellee Richard Behar requested under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. We reverse the judgment of the district court on two grounds. First, the records are not "agency records" subject to the FOIA. Second, even if the records were eligible for disclosure under the FOIA, Exemption 7(C), 5 U.S.C. § 552(b)(7)(C), would shield the records from disclosure.

BACKGROUND

The FOIA requires a federal agency to disclose an "agency record" when a member of the public requests such disclosure, subject to enumerated exemptions. 5 U.S.C. § 552(f)(2)(A), (b)(1)-(9). This dispute arises from a FOIA request for schedules and visitor information from the presidential campaign and transition of Donald J. Trump covering the period in which Trump received Secret Service protection before his inauguration as President of the United States on January 20, 2017.

I

Behar, a journalist, submitted two FOIA requests to the Secret Service seeking visitor and scheduling documents from the campaign and transition of candidate and President-elect Trump that had been shared with the Secret Service. Behar first requested "[r]ecords identifying every individual who was screened and/or noted by the Secret Service" in connection with the agency's protection of Trump from November 1, 2015, to January 21, 2017, as well as "[a]ll records concerning any communication between the Secret Service and any individual employed by and/or affiliated with either the Trump Campaign and/or the Trump Organization regarding any individual" who had been so screened or noted. J. App'x 30-31.

When the Secret Service did not provide notice of a determination on his request within twenty days, Behar filed suit in the U.S. District Court for the Southern District of New York. See 5 U.S.C. § 552(a)(6)(A), (a)(6)(C)(i). The parties entered a joint stipulation, which the district court adopted on February 21, 2018, that required the agency to conduct searches of potentially responsive records and to review those records on a rolling basis, with a plan to produce tranches monthly. During this process, the Secret Service disclosed in an email that it had identified Trump's schedules but deemed those records non-responsive to Behar's request.¹ As a result, on May 14, 2018, Behar filed a second FOIA request for "[a]ll schedules identified by the USSS" in that email. J. App'x 71.² The second request further broadened the category of records sought to "includ[e] all references to future meetings with Mr. Trump" and "[a]ny additional documents the USSS locates in conducting the searches described in 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 Behar's initial request. J. App'x 71 (citation omitted).

After processing Behar's second request, the Secret Service responded that it did not consider "the responsive documents" to be "agency records" because "[t]he schedules of candidate Trump and President-elect Trump provided to the Secret Service by the campaign and/or transition team are the property of a private entity which is not subject to FOIA" and "[t]he Secret Service does not exercise the requisite control over these records to satisfy the definition of an ‘agency record.’ " J. App'x 87 (citing Jud. Watch, Inc. v. U.S. Secret Serv. , 726 F.3d 208, 231 (D.C. Cir. 2013) ). The Secret Service also determined that "even if the schedules were agency records, they would be withheld in full" under Exemption 7(C) as "information compiled for law enforcement purposes the disclosure of which could lea[d] to an unwarranted invasion of personal privacy," among other exemptions. J. App'x 87.³

The government moved for summary judgment on October 3, 2018, and Behar cross-moved for summary judgment on October 31, 2018. On August 15, 2019, the district court denied Behar's motion for summary judgment and denied in part and granted in part the government's motion.⁴ The district court considered whether Trump and third parties identified in the records—those who appeared on Trump's itineraries or gained access to facilities in Trump Tower— had privacy interests protected by Exemption 7(C). The district court explained that any privacy interests were "tempered by the fact that [Trump] was an aspiring and then successful candidate for federal office during the relevant period and that there has been 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" because the documents "could reveal information advancing public knowledge of whom Mr. Trump relied upon in making cabinet and other presidential appointments [or in] determining his presidential priorities." Id. at 255.

The district court allowed the Secret Service "to provide additional declarations or other submissions in support of its exemption 7(C) withholdings," specifically to explain "whether the meetings related to Mr. Trump's candidacy or instead regarded personal matters" and "whether disclosure of the documents has the potential to result in unwelcome consequences on the part of the visitors." Id. at 255-56.

The Secret Service responded with declarations explaining that "protectees’ schedules do not reveal anything about the manner in which the Secret Service conducts its activities." J. App'x 805. The Secret Service "assessed that the documents do not shed light on the workings of the Secret Service" and, because the documents covered only the campaign and transition, "the documents do not directly reflect the activities or operations of the Trump administration." J. App'x 818. Because the Secret Service was not involved in the activities of the campaign or transition, it was unable to evaluate "whether a given meeting was in furtherance of Mr. Trump's candidacy, presidency, business or personal interests" or "to make an informed judgment as to whether disclosure of the occurrence of a particular meeting or series of meetings would shed light on ‘whom Mr. Trump relied upon in making cabinet and other presidential appointments [or in] determining his presidential priorities.’ " J. App'x 819 (quoting Behar , 403 F. Supp. 3d at 255 ). To evaluate who the visitors were and what the significance of their meetings might have been "would require the Secret Service to engage in speculation." J. App'x 819.

The Secret Service emphasized that it had access to the schedules and visitor information only to facilitate its provision of security services to the candidate and President-elect and that it had agreed to keep the documents confidential. Deputy Director Leonza Newsome III, for example, declared that

[a]ll of the itineraries, schedules, and calendars at issue in this case, and the information regarding meetings contained in the remaining emails at issue, 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 contained in the documents to perform their protective functions.

J. App'x 805. He explained that "the Secret Service understood that all schedules and visitor information provided by candidate and/or President-elect Trump were provided on a confidential basis, and the Secret Service treated the schedules and visitor information as confidential." J. App'x 805. "Compelled disclosure under FOIA of these schedules and emails," he said, "would harm the public interest, by jeopardizing the flow of information from protectees to the Secret Service, thereby increasing the difficulty of protecting Presidential candidates and Presidents-elect." J. App'x 806.

In addition to the declarations, the Secret Service provided the records for in camera review by the district court, and the agency renewed its motion for summary judgment. On August 4, 2020, the district court issued a one-page order granting Behar's motion for summary judgment "largely for the reasons identified in its prior opinion." S. App'x 29. The government timely appealed.

II

The records that remain at issue in this appeal are private schedules and visitor information provided by the Trump presidential campaign and transition to the Secret Service, at the agency's request, to facilitate the provision of security services to candidate and President-elect Trump. The records include (1) email chains forwarded from the Trump campaign and transition to the Secret Service and (2) scheduling documents and attachments sent from the Trump campaign and transition to the Secret Service.

The first category of documents consists of five email chains between Trump campaign officials and the Secret Service.⁵ Four of the five emails refer to meetings that Trump planned to hold in the future.⁶ The fifth email identifies individuals...