Behar v. U.S. Department of Homeland Security

Court: U.S. Court of Appeals for the Second Circuit

Date Filed: Aug. 26, 2022

Update: On Sept. 22, 2022, the U.S. Court of Appeals for the Second Circuit denied journalist Richard Behar’s petition for rehearing by the panel or the entire bench of the appeals court. After Behar petitioned the U.S. Supreme Court to hear the case, the Reporters Committee and 21 media organizations filed a friend-of-the-court brief on Jan. 20, 2023, urging the Court to grant the journalist’s petition and reverse the Second Circuit’s ruling. The brief expands on arguments the media coalition made in its Second Circuit brief. On May 1, 2023, the Supreme Court issued an order declining to hear the case. 

Background: Investigative journalist Richard Behar submitted two federal Freedom of Information Act requests to the U.S. Secret Service for records covering the period in which then-presidential candidate Donald Trump received Secret Service protection leading up to his inauguration in January 2017. The requests specifically sought campaign visitor and scheduling records that were shared with the Secret Service around the time of Trump’s transition from candidate to president.

Behar sued when the government failed to issue a determination within 20 working days, as is required under FOIA. As litigation progressed, the Secret Service identified records responsive to the journalist’s request but withheld all responsive records except for two heavily redacted emails.

A federal district court in New York required the disclosure of the records at issue. The government appealed to the U.S. Court of Appeals for the Second Circuit, which reversed the district court’s decision. The panel held, in part, that the records at issue were not “agency records” subject to disclosure under FOIA and that the lower court erred in granting summary judgment in favor of Behar.

The journalist petitioned the Second Circuit panel, seeking rehearing by the panel or the entire bench of the appeals court.

Our Position: The court should grant Behar’s petition to rehear the case.

• The panel’s interpretation of “agency records” under FOIA is contrary to U.S. Supreme Court precedent.
• The panel’s narrow interpretation of “agency records” has broad ramifications for the public’s right to know how non-governmental entities influence government conduct.

Quote: “[T]he Panel’s decision threatens to limit the news media’s ability to obtain information about, and thus report on, third-party influence on government decision-making — reporting that is necessary to ensuring that government agencies are accountable to the public.”

U.S. Supreme Court brief:

Second Circuit brief: