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Second Circuit Sua Sponte Shrinks Definition of “Agency Records”
In Behar v. DHS, the Second Circuit upheld a Secret Service decision to withhold emails and schedules identifying people Donald Trump met with while under the agency’s protection as a presidential candidate and president-elect. The court’s primary ground was revolutionary: it held that the records, though used by the agency to fulfill its protective mission, were not “agency records” subject to FOIA because the Trump campaign and transition provided them with an expectation of confidentiality and the agency honored that expectation. The ruling bowls over text and precedent and is a potential