Amicus Brief: Behar v. DHS (What Are Agency Records Under FOIA?)

The Freedom of Information Act, enacted in 1966, provides the public with access to government information and the ability to better understand its operations and activities. Despite being over 50 years old, constant tensions exist between the government, the public, and third parties that submit information to the government regarding what information the federal government should conceal and what it should release. The result of that tension is extensive litigation and court rulings, sometimes at the Supreme Court, most recently in 2019.  

The U.S. Court of Appeals for the Second Circuit has created the latest tension, after it ruled that visitor logs and scheduling documents, stamped confidential and turned over by then-candidate and President-elect Donald Trump to the Secret Service, were not agency records. If these records are not agency records, then FOIA doesn’t apply and the public is left in the dark. The court’s ruling — which came as a surprise because the government did not argue that Trump visitor logs turned over to the Secret Service were not agency records — was based on the documents being marked “confidential” and the fact that Trump did not intend the government to control or disseminate the records. The court added that even if those records were in the agency’s control, a law enforcement personal privacy exemption to FOIA applied. So either way, the FOIA requestor wasn’t obtaining the records.

Richard Behar, a contributing editor at Forbes, filed the FOIA requests and recently petitioned the Supreme Court to hear the case and reverse the underlying ruling. The Project On Government Oversight (POGO), along with Citizens for Responsibility and Ethics in Washington; Government Accountability Project, Inc.; National Security Archive; and Open the Government, filed an amicus brief in support of Behar’s petition to the court to hear the case.

Our brief argues that the Second Circuit’s ruling should be reversed because it ignores precedent and the test to determine what is an agency record. We argued:

Allowing non-governmental entities and individuals to avoid the FOIA by the simple act of stamping a document “confidential” would subvert Congress’ clear purpose of exposing the conduct of government agencies and officials to public scrutiny through the FOIA and would undermine the role of the Courts.

Third parties turn over documents, data, and information all the time, some of which is vitally important to government operations and activities. If information can be concealed from the public with a simple “confidential” or “do not disseminate” marking, the public will be denied information about very important government issues — issues related to public health, safety, and transportation, as well as criminal activity, corruption, and federal spending. We hope the Supreme Court takes the case and ensures that the public retains its right to access government information, even information that a private entity submits to the government and doesn’t want the public to see. 

POGO is grateful to Anne Weismann for representing the amici.