Behar v. Dep't of Homeland Sec., No. 20-3253 (2d Cir. 2022)
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Defendant-Appellant U.S. Department of Homeland Security (“DHS”) appealed the judgment of the district court ordering the U.S. Secret Service, a component of DHS, to release certain records that Plaintiff-Appellee requested under the Freedom of Information Act (“FOIA”), 5 U.S.C. Section 552.
The Second Circuit reversed 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. Sec. 552(b)(7)(C), would shield the records from disclosure. The court explained that the Secret Service obtained records from the campaign and transition subject to an understanding of confidentiality in order to provide security services to the presidential candidate and President-elect. Under these circumstances, the agency did not exercise control sufficient to convert the records into agency records subject to disclosure under the FOIA.
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