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National Freedom of Information Coalition

Second Circuit Sua Sponte Shrinks Definition of “Agency Records”

October 4, 2022

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 disaster for government transparency.

 

The Background

The case, brought by MFIA, arises from FOIA requests filed by Forbes journalist Richard Behar in 2017 and 2018. Behar sought records that the Secret Service obtained from the Trump campaign and transition showing who Trump met with while preparing to assume the presidency, and thus who influenced the administration’s policies and priorities. Interest in this topic has only intensified in the years following Trump’s inauguration due to various scandals related to individuals in his early administration and the conviction of several associates he was reported to have met during the campaign and transition. These issues remain relevant today as he prepares for a 2024 presidential bid and as controversy swirls around the Secret Service’s deletion of the January 6 texts.

Throughout the litigation, the Secret Service denied access to the records under FOIA exemption 7(C), which allows it to withhold law enforcement records if disclosing them would constitute an unwarranted invasion of personal privacy. Courts have engrafted a balancing test onto this exemption that allows withholding only if a person’s privacy interests outweigh the public interest in disclosure. Southern District of New York Judge Lewis Kaplan agreed with the Secret Service that Trump and his visitors had cognizable privacy interests in the records; the former were evidenced by “CONFIDENTIAL” stamps on some of the documents and an “understanding” of confidentiality between the Secret Service and the Trump campaign and transition. However, the court also found that the public had a valid interest in knowing who influenced the Trump administration’s policies and priorities. After examining the records in camera, Judge Kaplan held that the public interest prevailed and ordered the Secret Service to disclose the records.

 

The Decision

In a decision written by Judge Menashi, a Second Circuit panel reversed on two independent grounds. The secondary ground—the issue litigated by the parties—was that the Secret Service properly withheld the records under exemption 7(C). Contrary to the district court (as well as the Supreme Court and the D.C. Circuit), the court took a narrow view of the public interest relevant to the 7(C) balancing test: shedding light on the specific FOIA’ed agency is the only public interest it deemed relevant. Informing the public about the president or other agencies doesn’t count. So because the records only shed light on future president Trump and his administration, and didn’t shed light on the actions of the Secret Service, there was no valid public interest to be balanced. And since Trump and his visitors had cognizable privacy interests, those prevailed.

But before addressing exemption 7(C), the court announced its primary ground for reversal: that the emails and schedules were not “agency records” subject to FOIA. The court’s reaching this issue was extraordinary, as the argument was plainly waived by the government, which bore the sole burden of proof on this point. Never in the litigation did the Secret Service dispute that the documents were “agency records,” and one judge at oral argument acknowledged that the Secret Service “didn’t make” the argument. Further, the court lacked the benefit of any district court analysis or any briefing by the parties, and it was immaterial to the court’s disposition of the case given its holding on exemption 7(C).

Nevertheless, the court reached out to decide an issue not before it and did so in a way that upends FOIA. The court reasoned as follows. A record is an “agency record” if the agency (1) created or obtained it, and (2) controls it at the time of the FOIA request. The Secret Service plainly obtained the records from the Trump campaign and transition. So the question is whether the agency “controlled” them. This much is uncontroversial.

The panel then turned to the “control” analysis of a recent Second Circuit case, Doyle v. DHS. Doyle held that presidential visitor logs given by the White House to the Secret Service were not “agency records” subject to FOIA. According to the Behar panel, Doyle reached this conclusion because the White House (1) was not subject to FOIA; and (2) had “manifested a clear intent to control the documents.” The panel then applied this test to candidate and President-elect Trump’s emails and schedules: (1) Neither is subject to FOIA; and (2) both manifested an intent to control the documents because they placed a “CONFIDENTIAL” stamp on “many” (but not all) of them so that the Secret Service “understood” that all the documents were considered confidential and treated them as such. Taken at face value, this means that any document given to an agency by a non-FOIA-able entity—the President, Congress, the judiciary, a corporation, a private person, a state, or a foreign government—is not subject to FOIA as long as the producing entity tells the agency not to disclose it and that agency “understands” the document to be considered confidential.

The panel’s analysis raises several questions. First, how does the panel’s analysis fit within the Supreme Court’s framework for agency “control”? The Supreme Court established the control framework in DOJ v. Tax Analysts, where it announced: “By control we mean that the materials have come into the agency’s possession in the legitimate conduct of its official duties.” This seems to entail that the Secret Service does control the Behar records: it came to possess them to fulfill its mission of protecting Donald Trump. Further, Tax Analysts rejected the notion that “disclosure restrictions” are relevant to agency control, holding instead that they bear only on whether records are exempt. So that seems to foreclose the significance of the  “CONFIDENTIAL” stamps and the Secret Service’s “understanding” of confidentiality with the Trump campaign and transition. The Second Circuit’s response? It doesn’t discuss the directly controlling decision of Tax Analysts at all.

Second, FOIA exempts certain classes of confidential documents that an agency obtains from non-FOIA-able entities, such as confidential commercial and financial information (exemption 4) and information obtained from a source on a confidential basis (exemption 7(D)). But if FOIA doesn’t apply to any records an agency obtains confidentially, aren’t these exemptions superfluous? The decisions suggests no answer.

Third, why does a third party’s intent to restrict access to a record deprive the agency of control over it? Here the panel relied on Doyle but ignored its reasoning. In Doyle, the Second Circuit found that the agency lacked control because the third party was the President. It held that reading FOIA to require an agency to disclose presidential records when the President manifested an intent to control them would raise serious separation-of-powers problems. So it invoked the canon of constitutional avoidance to carve out an exception to Tax Analysts applicable to the “very narrow circumstances” presented there. Confusingly, the Behar panel recognized that no separation-of-powers principles applied, yet turned the Doyle exception into a rule of general applicability. It thus rejected Tax Analysts without giving any reason for doing so.

 

The Fallout

If taken to its logical conclusion, Behar will be a catastrophe for government transparency and accountability in the Second Circuit. Until now, agencies have not been able to circumvent FOIA by agreeing to keep a document confidential, except within the narrow confines of certain statutory exemptions. That might no longer be the case. The Behar decision will allow agencies to keep more embarrassing facts secret and make fewer, more selective disclosures, limiting public discourse.

But there are already signs that the full court might not have meant what it said. Shortly after deciding Behar, a different panel of the Second Circuit decided Seife v. FDA, a case brought by MFIA in collaboration with the Cornell First Amendment Clinic. Seife is important in its own right as the first appellate case to address the intersection between protection of confidential “commercial and financial  information” in FOIA’s exemption 4 and the 2016 FOIA amendments—what it means to “harm an interest protected by” exemption 4. In Seife, the requester conceded that the FDA obtained the records from a private party on a confidential basis, and the court conducted the harm analysis anyway. If Behar’s “agency records” analysis is now the law in the Second Circuit, the requester’s concession should have ended the case. The records weren’t subject to FOIA at all, and the court’s extensive harm analysis was pointless.

Given the Second Circuit’s apparent equivocation and Behar’s failure to account for Supreme Court precedent, only time will tell how these issues will shake out.