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Thursday, December 22, 2022
MFIA Fights for Trump’s Visitor Records and the Future of FOIA
The Media Freedom and Information Access Clinic (MFIA) is asking the Supreme Court to review a lower court decision the clinic says dramatically restricts the scope of the Freedom of Information Act (FOIA). The decision of the Second Circuit Court of Appeals allows the Secret Service to withhold records identifying visitors to former President Donald Trump before he took office simply because the Trump campaign requested confidentiality.
“The Second Circuit’s decision that records used by a federal agency are exempt from disclosure under FOIA if they were obtained from a party that wanted them to remain confidential stands FOIA’s disclosure mandate on its head,” said Floyd Abrams Lecturer in Law and MFIA Director David Schulz ’78. “The ruling sets dangerous precedent that threatens to undermine government accountability.”
From November 2015 until he entered office in January 2017, Trump received Secret Service protection as a presidential candidate and President-elect. During this time, news reporting often addressed Trump’s meetings with lobbyists for major corporations and special interest groups. In September 2017, investigative journalist Richard Behar filed FOIA requests seeking records of visitors to Trump and his associates while Trump was under agency protection.
The Secret Service denied the requests, claiming that the records were exempt under FOIA’s exemption for law enforcement records. Their disclosure, the agency argued, would constitute an unwarranted invasion of personal privacy. It relied on the fact that many of the records had been stamped “confidential,” and argued that Trump and his visitors had privacy interests in the records that outweighed the public interest in their disclosure.
Represented by MFIA, Behar filed a complaint in the District Court for the Southern District of New York. After two rounds of summary judgment briefing and oral argument by MFIA students, he prevailed. According to the district court, although Trump and his visitors had privacy interests in the records, those were outweighed by the public’s strong interest in understanding the policies and priorities of the early Trump administration. It thus ordered the Secret Service to disclose the records.
The Secret Service appealed to the Court of Appeals, which reversed the district court. It did so primarily on a ground the Secret Service had not advanced: that because the Trump campaign and transition had marked many of the documents “confidential,” the Secret Service lacked the ability to control them. According to this ground, the documents weren’t “agency records” subject to FOIA at all. The Court also offered an alternative rationale for its decision: that the public lacks any interest in understanding the policies and priorities of the Trump administration because the President is not subject to FOIA.
“The Second Circuit decision came out of left field, setting a dangerous precedent that no one saw coming and no one even had the chance to argue,” said Paul Meosky ’23, a MFIA student who worked on the petition. “FOIA deserves its day in court.”
MFIA’s petition, filed on Dec. 20, asks the Supreme Court to review the Second Circuit’s decision on three grounds.
First, the Second Circuit’s “agency records” holding conflicts with Supreme Court precedent and the plain text of FOIA. According to the petition, the Supreme Court has made clear that documents are agency records as long as the agency came to possess them when conducting its official duties — in this instance, the Secret Service obtained and used the records to protect Trump by screening his visitors.
The petition argues that allowing a “confidential” stamp to remove a record from FOIA’s disclosure mandate would effectively rewrite the statute, as it would render superfluous FOIA’s exemptions for specific categories of confidential records. Crucially, the petition further argues, allowing the ruling to stand would hinder public oversight of the government’s interactions with private parties, leading to a less-informed electorate and removing a vital check on corruption.
Second, MFIA’s petition argues that the Second Circuit committed procedural error by reaching the agency records issue at all. Not only did the Secret Service never press the point, it waived the argument in the district court, according to this argument. The petition thus requests that the Supreme Court take the case to reemphasize that courts generally are required to resolve only the issues raised by the parties.
Third, the petition asks the Supreme Court to reiterate its prior holdings that FOIA exists to shed light on the government more generally, including those parts of it not directly subject to FOIA.
“Journalists and other members of the public rely on FOIA to understand what our government is doing, and a lot of government activities rely on information from third parties,” said MFIA student Tim Tai ’24, who also worked on the petition. “By cutting off access to such information, the Second Circuit decision drastically curbs the public’s ability to learn about those activities. That should set off alarm bells for anyone who cares about government transparency, accountability, or fiscal responsibility.”
Members of the clinic said they are hopeful that the Supreme Court will grant writ of certiorari and review the Second Circuit’s decision.
The Media Freedom and Information Access Clinic (MFIA) at Yale Law School is a law student clinic dedicated to increasing government transparency, defending the essential work of news gatherers, and protecting freedom of expression by providing pro bono legal services, pursuing impact litigation and developing policy initiatives.