Behar v. Dep't of Homeland SEC.

Nos. 20-3253(L)
Behar v. Dep’t of Homeland Sec.

In the
United States Court of Appeals
FOR THE SECOND CIRCUIT

AUGUST TERM 2021
Nos. 20-3253(L), 20-3256(Con)

RICHARD BEHAR,
Plaintiff-Appellee,

v.

UNITED STATES DEPARTMENT OF HOMELAND SECURITY,
Defendant-Appellant.

On Appeal from the United States District Court
for the Southern District of New York

ARGUED: NOVEMBER 30, 2021
DECIDED: JULY 8, 2022

Before: PARK, NARDINI, and MENASHI, Circuit Judges.

Defendant-Appellant U.S. Department of Homeland Security
appeals the order of the U.S. District Court for the Southern District
of New York to release certain records pursuant to a Freedom of
Information Act (“FOIA”) request submitted by Plaintiff-Appellee
Richard Behar. The Secret Service received the records from a
presidential campaign and transition to facilitate the agency’s
protection of the presidential candidate and President-elect. We hold
that the records are not “agency records” under the FOIA because the
records are not subject to the agency’s control. Even if the records
were subject to the agency’s control, the district court erred in holding
that 5 U.S.C. § 552(b)(7)(C) would not provide protection from
disclosure. Accordingly, we REVERSE the judgment of the district
court to the extent that it required the Secret Service to disclose the
requested documents.

JACKSON BUSCH (David A. Schulz, Charles Crain, on the
brief), Media Freedom & Information Access Clinic,
Abrams Institute, Yale Law School, New Haven, CT, for
Plaintiff-Appellee.

SARAH S. NORMAND, Assistant United States Attorney
(Christopher Connolly, Assistant United States Attorney,
on the brief), for Damian Williams, United States Attorney
for the Southern District of New York, New York, NY, for
Defendant-Appellant.

MENASHI, Circuit Judge:

Defendant-Appellant U.S. Department of Homeland Security
(“DHS”) appeals the judgment of the district court ordering the U.S.
Secret Service, a component of DHS, to release certain records that
Plaintiff-Appellee Richard Behar requested under the Freedom of
Information Act (“FOIA”), 5 U.S.C. § 552. We reverse 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

2
for disclosure under the FOIA, Exemption 7(C), 5 U.S.C.
§ 552(b)(7)(C), would shield the records from disclosure.

BACKGROUND

The FOIA requires a federal agency to disclose an “agency
record” when a member of the public requests such disclosure,
subject to enumerated exemptions. 5 U.S.C. § 552(f)(2)(A), (b)(1)-(9).
This dispute arises from a FOIA request for schedules and visitor
information from the presidential campaign and transition of Donald
J. Trump covering the period in which Trump received Secret Service
protection before his inauguration as President of the United States
on January 20, 2017.

I

Behar, a journalist, submitted two FOIA requests to the Secret
Service seeking visitor and scheduling documents from the campaign
and transition of candidate and President-elect Trump that had been
shared with the Secret Service. Behar first requested “[r]ecords
identifying every individual who was screened and/or noted by the
Secret Service” in connection with the agency’s protection of Trump
from November 1, 2015, to January 21, 2017, as well as “[a]ll records
concerning any communication between the Secret Service and any
individual employed by and/or affiliated with either the Trump
Campaign and/or the Trump Organization regarding any individual”
who had been so screened or noted. J. App’x 30-31.

When the Secret Service did not provide notice of a
determination on his request within twenty days, Behar filed suit in
the U.S. District Court for the Southern District of New York. See
5 U.S.C. § 552(a)(6)(A), (a)(6)(C)(i). The parties entered a joint

3
stipulation, which the district court adopted on February 21, 2018,
that required the agency to conduct searches of potentially responsive
records and to review those records on a rolling basis, with a plan to
produce tranches monthly. During this process, the Secret Service
disclosed in an email that it had identified Trump’s schedules but
deemed those records non-responsive to Behar’s request. 1 As a
result, on May 14, 2018, Behar filed a second FOIA request for “[a]ll
schedules identified by the USSS” in that email. J. App’x 71. 2 The
second request further broadened the category of records sought to
“includ[e] all references to future meetings with Mr. Trump” and
“[a]ny additional documents the USSS locates in conducting the
searches described in the Joint Stipulation and Order that reference
any individuals attending or expecting to attend meetings with Mr.
Trump and/or the Trump family members and/or campaign officials
described” in Behar’s initial request. J. App’x 71 (citation omitted).

After processing Behar’s second request, the Secret Service
responded that it did not consider “the responsive documents” to be
“agency records” because “[t]he schedules of candidate Trump and
President-elect Trump provided to the Secret Service by the campaign
and/or transition team are the property of a private entity which is
not subject to FOIA” and “[t]he Secret Service does not exercise the
requisite control over these records to satisfy the definition of an

1 See J. App’x 77 (“[I]n the course of its review … the USSS identified some
schedules that included references to future meetings with Mr. Trump.
However, none of those schedules reflected any screening or notation of
individuals by the USSS, and thus they were not identified as responsive to
plaintiff’s FOIA request.”).
2 Behar amended his complaint on August 21, 2018, to account for the May
14, 2018, request. J. App’x 55.

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‘agency record.’” J. App’x 87 (citing Jud. Watch, Inc. v. U.S. Secret Serv.,
726 F.3d 208, 231 (D.C. Cir. 2013)). The Secret Service also determined
that “even if the schedules were agency records, they would be
withheld in full” under Exemption 7(C) as “information compiled for
law enforcement purposes the disclosure of which could lea[d] to an
unwarranted invasion of personal privacy,” among other
exemptions. J. App’x 87. 3

The government moved for summary judgment on October 3,
2018, and Behar cross-moved for summary judgment on October 31,
2018. On August 15, 2019, the district court denied Behar’s motion for
summary judgment and denied in part and granted in part the
government’s motion. 4 The district court considered whether Trump
and third parties identified in the records—those who appeared on
Trump’s itineraries or gained access to facilities in Trump Tower—
had privacy interests protected by Exemption 7(C). The district court
explained that any privacy interests were “tempered by the fact that
[Trump] was an aspiring and then successful candidate for federal
office during the relevant period and that there has been no showing
of potential unwelcome consequences on the part of the third party

3 The Secret Service upheld these determinations in an administrative
appeal. See J. App’x 99 (“Having reviewed your argument and the facts of
this matter, it has been determined that the Secret Service does not exercise
the requisite control over the records that were located to satisfy the
definition of an ‘agency record.’”); id. (“Upon review of this matter, it has
been determined that these exemptions are still applicable to the records.
Therefore, your appeal is denied.”).
4 The district court granted the government’s motion for summary
judgment with respect to the identities of law enforcement personnel and
other security information captured in the requested documents. Behar has
not appealed that decision.

5
visitors resulting from disclosure.” Behar v. DHS, 403 F. Supp. 3d 240,
254 (S.D.N.Y. 2019). The district court thought it possible that “the
public interest in disclosure outweighs the relevant privacy interests”
because the documents “could reveal information advancing public
knowledge of whom Mr. Trump relied upon in making cabinet and
other presidential appointments [or in] determining his presidential
priorities.” Id. at 255.

The district court allowed the Secret Service “to provide
additional declarations or other submissions in support of its
exemption 7(C) withholdings,” specifically to explain “whether the
meetings related to Mr. Trump’s candidacy or instead regarded
personal matters” and “whether disclosure of the documents has the
potential to result in unwelcome consequences on the part of the
visitors.” Id. at 255-56.

The Secret Service responded with declarations explaining that
“protectees’ schedules do not reveal anything about the manner in
which the Secret Service conducts its activities.” J. App’x 805. The
Secret Service “assessed that the documents do not shed light on the
workings of the Secret Service” and, because the documents covered
only the campaign and transition, “the documents do not directly
reflect the activities or operations of the Trump administration.”
J. App’x 818. Because the Secret Service was not involved in the
activities of the campaign or transition, it was unable to evaluate
“whether a given meeting was in furtherance of Mr. Trump’s
candidacy, presidency, business or personal interests” or “to make an
informed judgment as to whether disclosure of the occurrence of a
particular meeting or series of meetings would shed light on ‘whom
Mr. Trump relied upon in making cabinet and other presidential
appointments [or in] determining his presidential priorities.’”
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J. App’x 819 (quoting Behar, 403 F. Supp. 3d at 255). To evaluate who
the visitors were and what the significance of their meetings might
have been “would require the Secret Service to engage in
speculation.” J. App’x 819.

The Secret Service emphasized that it had access to the
schedules and visitor information only to facilitate its provision of
security services to the candidate and President-elect and that it had
agreed to keep the documents confidential. Deputy Director Leonza
Newsome III, for example, declared that

[a]ll of the itineraries, schedules, and calendars at issue
in this case, and the information regarding meetings
contained in the remaining emails at issue, were
provided to the Secret Service with the expectation of
privacy and the expectation that they would not be
disseminated beyond the Secret Service personnel who
had the need of the information contained in the
documents to perform their protective functions.

J. App’x 805. He explained that “the Secret Service understood that all
schedules and visitor information provided by candidate and/or
President-elect Trump were provided on a confidential basis, and the
Secret Service treated the schedules and visitor information as
confidential.” J. App’x 805. “Compelled disclosure under FOIA of
these schedules and emails,” he said, “would harm the public interest,
by jeopardizing the flow of information from protectees to the Secret
Service, thereby increasing the difficulty of protecting Presidential
candidates and Presidents-elect.” J. App’x 806.

In addition to the declarations, the Secret Service provided the
records for in camera review by the district court, and the agency

7
renewed its motion for summary judgment. On August 4, 2020, the
district court issued a one-page order granting Behar’s motion for
summary judgment “largely for the reasons identified in its prior
opinion.” S. App’x 29. The government timely appealed.

II

The records that remain at issue in this appeal are private
schedules and visitor information provided by the Trump
presidential campaign and transition to the Secret Service, at the
agency’s request, to facilitate the provision of security services to
candidate and President-elect Trump. The records include (1) email
chains forwarded from the Trump campaign and transition to the
Secret Service and (2) scheduling documents and attachments sent
from the Trump campaign and transition to the Secret Service.

The first category of documents consists of five email chains
between Trump campaign officials and the Secret Service. 5 Four of
the five emails refer to meetings that Trump planned to hold in the
future. 6 The fifth email identifies individuals who needed access to
certain areas within Trump Tower.

5 The district court upheld the withholding of portions of the email chains
that reflected “law enforcement investigative and protective information,”
J. App’x 108, and Behar does not challenge that aspect of the judgment on
appeal. Only the portions of the records not already deemed exempt for
that reason are before us.
6 Specifically, the four “future-meeting” emails include an April 2016 email
chain referring to a future meeting between Trump and an individual
assisting with the preparation of a speech; a July 2016 email referring to an
“ongoing” meeting between Trump, his staff, and another individual at
Trump Tower; a July 2016 email referring to a meeting to occur that day;
and a September 2016 email chain referring to a future meeting between

8
 The second category of records consists of over 600 scheduling
records, including Trump’s calendars, itineraries, line schedules, and
detailed schedules. These records range in detail. The calendars,
itineraries, and line schedules include only general information such
as the time and place of each scheduled meeting. The detailed
schedules reveal the substantive matters at issue in the meetings as
well as the names of attendees.

Most of the scheduling records were provided to the Secret
Service during the transition period in which Trump was President-
elect and bear a seal denoting the office of the President-elect. All the
detailed schedules are marked as “confidential” and “[n]ot to be
copied or shared.” J. App’x 816. Emails attaching itineraries and
calendars likewise note a “reminder to please not distribute this
calendar as it is highly confidential.” J. App’x 817.

STANDARD OF REVIEW

The FOIA authorizes judicial review when “an agency has
(1) ‘improperly’ (2) ‘withheld’ (3) ‘agency records’” so that the district
court may “force an agency to comply with the FOIA’s disclosure
requirements.” Grand Cent. P’ship, Inc. v. Cuomo, 166 F.3d 473, 478 (2d
Cir. 1999) (quoting DOJ v. Tax Analysts, 492 U.S. 136, 142 (1989)). We
review a district court’s summary judgment decision de novo, Ctr. for
Const. Rts. v. CIA, 765 F.3d 161, 166 (2d Cir. 2014), including the
threshold determination of whether the requested records are
“agency records” eligible for disclosure under the statute, Doyle v.
DHS, 959 F.3d 72, 76 (2d Cir. 2020).

Trump and an individual, in which the non-public nature of the meeting is
emphasized in the text of the email.

9
 For those documents properly considered “agency records,”
once the agency has identified an applicable exemption and justified
its application, our review is generally deferential to the agency’s
analysis. While “[t]he defending agency has the burden of showing
that any withheld documents fall within an exemption to the FOIA,”
we “accord a presumption of good faith to an agency’s affidavits or
declarations,” NRDC v. EPA, 19 F.4th 177, 183 (2d Cir. 2021) (internal
quotation marks and alterations omitted), such that “when an agency
provides ‘reasonably detailed explanations’ to support its decision to
withhold a document, its ‘justification is sufficient if it appears logical
and plausible,’” id. (quoting ACLU v. DOD, 901 F.3d 125, 133 (2d Cir.
2018)).

DISCUSSION

The district court’s order granting summary judgment rested
on the assumption that the documents at issue are “agency records”
eligible for disclosure under the FOIA. That assumption was
erroneous. We hold that the records do not qualify as “agency
records” disclosable under the FOIA. Moreover, even if the records
were properly considered “agency records” eligible for disclosure,
the district court erred in weighing the relevant privacy interests and
concluding that Exemption 7(C) did not apply.

I

The district court erred in granting summary judgment to
Behar because the requested records are not “agency records” within
the meaning of the FOIA. That conclusion follows from our recent
decision in Doyle v. DHS, in which we explained that “agency
records” did not include “information provided by[] a governmental
entity not covered by FOIA” when the “non-covered entity … has

10
manifested a clear intent to control the documents, such that the
agency is not free to use and dispose of the documents as it sees fit.”
959 F.3d at 77-78 (internal quotation marks omitted). That principle
applies with equal force in this case, in which the entity not covered
by the FOIA is not even a governmental entity. 7

To decide this case, we start as we did in Doyle by examining
the scope of the term “agency record” under the FOIA. The FOIA
defines “agency” as “each authority of the Government of the United
States” except “the Congress,” “the courts of the United States,” and
other bodies including “courts martial and military commissions.” 5
U.S.C. § 551(1). Additionally, “the term ‘agency’ under the FOIA”
does not include “the Office of the President,” “the President’s
immediate personal staff or units in the Executive Office whose sole
function is to advise and assist the President.” Kissinger v. Reps. Comm.
for Freedom of the Press, 445 U.S. 136, 156 (1980); see also Main St. Legal
Servs., Inc. v. NSC, 811 F.3d 542, 549 (2d Cir. 2016) (holding that the
National Security Council is not an agency subject to the FOIA
because it lacks authority other than to advise and assist the
President).

Though the FOIA does not provide a definition of “agency
records,” “the Supreme Court [has] instructed” that “the term ‘agency
records’ extends only to those documents that an agency both
(1) ‘creates or obtains,’ and (2) ‘controls at the time the FOIA request
was made.’” Jud. Watch, 726 F.3d at 216 (alterations and emphasis

7 In Doyle, we decided that “visitor logs for the White House Complex and
the President’s Mar-a-Lago home in Florida” requested from the Secret
Service were not “‘agency records’ subject to the Freedom of Information
Act.” 959 F.3d at 73.

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omitted) (quoting Tax Analysts, 492 U.S. at 144-45). “Control” by an
agency requires more than mere possession. “[N]ot all documents in
the possession of a FOIA-covered agency are ‘agency records’ for the
purpose” of the FOIA, and “not all records physically located at an
agency are ‘agency records.’” Id. “We have explained that agency
‘control’ is key to determining whether materials qualify as ‘agency
records’ under FOIA.” Doyle, 959 F.3d at 77.

Certain prior cases have involved records obtained from
governmental entities that are not subject to the FOIA, such as
Congress, see Jud. Watch, 726 F.3d at 221, and the Office of the
President, see Doyle, 959 F.3d at 77-78. But the same analysis applies
when, as in this case, the agency obtained the documents from a non-
governmental entity similarly not subject to the FOIA. Neither a
presidential campaign nor a transition qualifies as an “agency” of the
federal government under the FOIA. 5 U.S.C. § 551(1). A transition
receives government funding, 8 but funding “short of Government
control” leaves “grantees free from the direct obligations imposed by
the FOIA.” Forsham v. Harris, 445 U.S. 169, 182 (1980). A transition “is
clearly not in the control of the incumbent President” but “answers
only to the President-elect.” Ill. Inst. for Continuing Legal Educ. v. DOL,
545 F. Supp. 1229, 1232 (N.D. Ill. 1982). Accordingly, the transition “is
not within the executive branch of government and hence not an
‘agency’ within the meaning of § 552(e) of the FOIA.” Id. at 1232-33.

Thus, it is “undisputed that a requester could not use FOIA to
compel” the disclosure of records directly from a campaign or
transition, just as a requester could not compel such disclosure from

8 Presidential Transition Act of 1963, Pub. L. 88-277, § 3, 78 Stat. 153, 154-55
(1964), 3 U.S.C. § 102 note.

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other non-agencies such as Congress or the Office of the President.
Jud. Watch, 726 F.3d at 216. When an entity “is not an agency for FOIA
purposes, documents generated” by that entity “are not agency
records when they are made,” id. (internal quotation marks and
alteration omitted), so we inquire into “control” to determine whether
such documents have become “agency records” after an agency
obtains them.

To determine whether an agency exercises control over
documents obtained from an entity not covered by the FOIA, we ask
whether “‘the non-covered entity … has manifested a clear intent to
control the documents,’ such that ‘the agency is not free to use and
dispose of the documents as it sees fit.’” Doyle, 959 F.3d at 77-78
(quoting Jud. Watch, 726 F.3d at 223). If the document “remains under
the control of and continues to be the property of” the non-covered
entity and the agency “holds the document, as it were, as a ‘trustee,’”
the document is not an agency record subject to the FOIA. Goland v.
CIA, 607 F.2d 339, 347 (D.C. Cir. 1978). A document generated by a
non-covered entity “has become an agency record” only if “the
document has passed from the control of [the entity] and become
property subject to the free disposition of the agency with which the
document resides.” Id.

We have applied this analysis to information that the Secret
Service obtains from a protected entity in order to facilitate its
provision of security services to that entity. We recognized in Doyle
that the Office of the President “cannot retain effective physical
control” of documents that must be shared with the Secret Service to
facilitate the protection of the President, but because the Office of the
President “manifested a clear intent to control the documents,” those
documents do not qualify as agency records. 959 F.3d at 77-78
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(quoting Jud. Watch, 726 F.3d at 223, 225). We reached that conclusion
in part “because it is hard for us to ‘believe Congress intended that
FOIA requesters be able to obtain from the gatekeepers of the White
House what they are unable to obtain from its occupants.’” Id.
(quoting Jud. Watch, 726 F.3d at 233).

The same logic applies here. In this case, the campaign and
transition manifested a clear intent to control the documents. As the
Secret Service explained via Deputy Director Newsome, “[a]ll” of the
records “at issue in this case … were provided to the Secret Service
with the expectation of privacy and the expectation that they would
not be disseminated beyond the Secret Service personnel who had the
need of the information … to perform their protective functions.”
J. App’x 805. The records were regularly marked as “confidential”
and “[n]ot to be copied or shared,” with “[r]eminder[s] to please not
distribute” the records due to their “high[] confidential[ity].” J. App’x
816-17. “Regardless of their markings, however,” the agency
“treated” the information “as confidential.” J. App’x 805. Under these
circumstances, the Secret Service did not take control of the
documents such that the documents were subject to the free
disposition of the Secret Service. 9

9 Doyle emphasized that its holding was necessary to avoid deciding the
“difficult constitutional question” that would arise if the FOIA were
interpreted to require the disclosure via the Secret Service of presidential
records. 959 F.3d at 77. Our decision in this case follows from the control
test and does not depend on constitutional avoidance. But we note that
similarly difficult constitutional questions regarding executive privilege or
other confidentiality interests would arise if the FOIA required the
disclosure of records belonging to a presidential transition, which
deliberates and conducts business in anticipation of assuming the
presidency on inauguration day. The government in this case said that if it

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 This conclusion is consistent with how presidential transition
records have been treated in other cases. In Democracy Forward Found.
v. GSA, the court held that records of a presidential transition were
not “agency records” of the General Services Administration
(“GSA”). 393 F. Supp. 3d 45 (D.D.C. 2019). In that case, as in this one,
the agency had access to the records only because of its statutory
obligation to provide services to the presidential transition. The GSA
“functioned mainly as a ‘warehouse’ for the transition team’s
electronic communications” because “[i]t supplied a network to host
and store records.” Id. at 53. The “GSA might have been exposed to
the content of communications but only incident to its monitoring of
the transition team’s networks to ensure their operation and
security.” Id. (internal quotation marks omitted). In those
circumstances, the “GSA did not sufficiently ‘control’ the emails to
qualify as ‘agency records.’” Id. at 54.

The court also explained that the “FOIA’s central purpose is to
ensure that the Government’s activities be opened to the sharp eye of
public scrutiny, not that information about private citizens that
happens to be in the warehouse of the Government be so disclosed.”
Id. at 53 (quoting DOJ v. Reps. Comm. for Freedom of the Press, 489 U.S.
749, 774 (1989)). The transition’s emails would not “shed any light
about [the] GSA’s operations or decision-making” and “are not
‘agency records’ subject to disclosure under FOIA.” Id.

Similarly, in this case the Secret Service had access to the
documents only incident to its provision of security services to the

did not prevail on its statutory arguments, “we would argue, and in fact we
did reserve the … right to assert … that in fact privilege could be asserted”
over the contested records. Oral Argument Audio Recording at 3:28.

15
campaign and the transition, and those documents do not reveal
information about the Secret Service’s operations or decision-making
as distinct from those of the campaign and the transition. In short, the
records at issue here are not “agency records” subject to disclosure
under the FOIA.

II

Even if the records in this case were properly considered
“agency records,” we still would reverse the judgment of the district
court because Exemption 7(C) would shield the records from
disclosure. The district court erred in holding that Exemption 7(C) did
not apply.

Exemption 7(C) provides that “records or information
compiled for law enforcement purposes” are exempt from disclosure
under the FOIA “to the extent that the production of such … records
or information … could reasonably be expected to constitute an
unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C).
The district court concluded that the records in this case were
compiled for law enforcement purposes, and neither party disputes
that conclusion on appeal. The question is therefore whether
disclosure might reasonably be expected to invade personal privacy
unjustifiably.

If the agency identifies a privacy interest in the requested
documents, “disclosure is unwarranted under Exemption 7(C) unless
the requester can show a sufficient reason for the disclosure.”
Associated Press v. DOD, 554 F.3d 274, 288 (2d Cir. 2009) (internal
quotation marks omitted). To overcome the privacy interest, the
requester “must show that the public interest sought to be advanced
is a significant one,” with “an interest more specific than having the

16
information for its own sake,” and that “the information is likely to
advance that interest.” NARA v. Favish, 541 U.S. 157, 172 (2004). Thus,
“whether disclosure of a private document under Exemption 7(C) is
warranted must turn on the nature of the requested document and its
relationship to the basic purpose of the Freedom of Information Act
to open agency action to the light of public scrutiny,” Reps. Comm.,
489 U.S. at 772 (internal quotation marks omitted), while “[g]oals
other than opening agency action to public scrutiny are deemed unfit
to be accommodated under FOIA when they clash with privacy
rights,” Associated Press, 554 F.3d at 293 (quoting FLRA v. U.S. Dep’t of
Veterans Affs., 958 F.2d 503, 510-11 (2d Cir. 1992)).

In this case, the district court recognized that the government
successfully established that Trump and other third parties had
cognizable privacy interests in the records. 403 F. Supp. 3d at 253. But
the district court proceeded to make two errors. First, the district court
unjustifiably discounted those privacy interests. Second, the district
court overlooked the purpose of the FOIA “to open agency action to
the light of public scrutiny,” Reporters Comm., 489 U.S. at 772
(emphasis added) (quoting Dep’t of the Air Force v. Rose, 425 U.S. 352,
372 (1976)), by including in the purported public interest in disclosure
access to information about the activities of non-agencies.

A

The Secret Service filed declarations that established a basis for
withholding the records. The agency explained that the campaign and
transition provided the records with a clear understanding of
confidentiality such that, in the agency’s view, “the privacy rights
of … Mr. Trump[] and the third parties identified in the documents
outweighed any public interest in disclosure.” Behar, 403 F. Supp. 3d

17
at 246. The understanding between the Secret Service and the
campaign and transition that the records would be treated
confidentially establishes a privacy interest under the FOIA. See U.S.
Dep’t of State v. Ray, 502 U.S. 164, 177 (1991) (holding that the appellate
court gave “insufficient weight to the fact that” witness interviews
taken as part of an investigation “had been conducted pursuant to an
assurance of confidentiality”).

The district court discounted Trump’s privacy interest as
“limited substantially” by his candidacy for public office. 403
F. Supp. 3d at 254. This conclusion relied on an overreading of extra-
circuit precedent. 10 We do not agree that “public figures” who are
protected by the Secret Service have a lesser privacy interest “in
information relating to their candidacies” that the Secret Service
might obtain. 403 F. Supp. 3d at 254 (quoting Common Cause, 628 F.2d
at 184). Many people who receive Secret Service protection are public
figures, see 18 U.S.C. § 3056(a), and we do not think that status limits
their privacy interests in information exchanged with the Secret
Service to facilitate that protection. Cf. Favish, 541 U.S. at 170 (“We
have observed that the statutory privacy right protected by
Exemption 7(C) goes beyond the common law and the
Constitution.”).

10 In Common Cause v. Nat’l Archives & Recs. Serv., the court emphasized that
it was not “suggesting that the presence of these circumstances will always
or even usually tip the balance in favor of disclosure under 7(C)” and then
noted as relevant that the “information sought about” “candidates for
federal office” regarded “campaign contributions” that were
independently “required by law to be reported publicly.” 628 F.2d 179, 184
(D.C. Cir. 1980). The court did not reach any conclusion about whether
disclosure was required. See id. at 186.

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 During a presidential campaign or transition in particular, a
candidate or President-elect may receive advice on which he or she
will rely after assuming the presidency. “[T]he public interest is best
served by holding that communications made by presidential
advisers in the course of preparing advice for the President come
under the presidential communications privilege,” In re Sealed Case,
121 F.3d 729, 751-52 (D.C. Cir. 1997), and Congress has recognized
that the “national interest” in “continuity” requires presidential
transition activities, Presidential Transition Act § 2, 3 U.S.C. § 102
note. Accordingly, we agree with DHS that the privacy interest here
would not be “tempered,” 403 F. Supp. 3d at 254, but heightened “to
the extent any particular record did reveal information that directly
or significantly illuminated President Trump’s post-inaugural
priorities or conduct … given the well-established confidentiality of
presidential meetings and advisors,” Appellant’s Br. 49.

The district court also erred in discounting the privacy interests
of third-party visitors because the Secret Service did not show “that
disclosure of their names would lead to embarrassment, retaliation or
other unwelcome consequences.” 403 F. Supp. 3d at 253. Such
consequences could make a privacy interest “particularly
pronounced,” Associated Press, 554 F.3d at 286, but that showing is not
necessary and its absence did not justify discounting the privacy
interests here. 11 Exemption 7(C) requires only that the agency

11 As made clear in the Secret Service’s supplemental filings, the agency
could describe the privacy interests only generally because it was
unfamiliar with the individuals named in the documents and the substance
of the meetings between those individuals and the candidate or President-
elect. See J. App’x 816-18. The FOIA does not require the Secret Service to

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establish that “[t]he privacy interest protected by [the exemption] is
an interest in ‘avoiding disclosure of personal matters’ and ‘keeping
personal facts away from the public eye.’” Associated Press, 554 F.3d at
286 (quoting Reps. Comm., 489 U.S. at 762, 769). The Secret Service
showed that the disclosed information “is the type of information that
a person would ordinarily not wish to make known about himself or
herself.” Id. at 292; see Behar, 403 F. Supp. 3d at 253 (noting that the
district court was “persuaded that participation in these meetings
with candidates and presidents-elect is the type of information that a
person often would not wish to make known about himself or
herself”). But the district court nonetheless determined that it “should
not give that generalization too much weight in the balance.” Id.

B

The district court further erred in its evaluation of the public
interest in disclosure regarding the Secret Service’s “performance of
its statutory duties.” 403 F. Supp. 3d at 251. The FOIA limits the
public interest in disclosure to “public scrutiny” of “agency action.”
Rose, 425 U.S. at 372; see also 5 U.S.C. § 552(a). Here, the Secret Service
explained that the requested records “do not reveal anything about
the manner in which the Secret Service conducts its activities,”
J. App’x 805, and the district court even agreed that the documents
would not “advance the public’s understanding of the USSS’s
performance of its statutory duties,” 403 F. Supp. 3d at 254.
Nevertheless, the district court proceeded to hold that because the
documents would reveal information about the inner workings of the

gather information about its protectees beyond that required to provide
security services.

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campaign and nascent administration, there was a public interest in
disclosure under the FOIA. That is incorrect.

There is no cognizable public interest to be vindicated through
the FOIA in “advancing public knowledge of whom Mr. Trump relied
upon in making cabinet and other presidential appointments” or in
“determining his presidential priorities.” Id. at 255. To the contrary,
disclosing records that reveal this pre-presidential information would
shed no light on the operations or decision-making of the Secret
Service—as the FOIA requires it must to vindicate a public interest in
disclosure. The district court relied on a loose description of the FOIA
as aiming to disclose “the operations or activities of the
government”—even those parts of the government not subject to the
FOIA—rather than focusing on the statutory purpose to reveal
information about agency action. Id. at 251 (emphasis omitted)
(quoting DOD v. FLRA, 510 U.S. 487, 495 (1994)).

Even the case on which the district court relied does not
describe the purpose of the FOIA so broadly. In DOD v. FLRA, the
Supreme Court “elaborated” on the statement that “the core purpose
of the FOIA … is contributing significantly to public understanding
of the operations or activities of the government.” 510 U.S. at 495
(internal quotation marks, emphasis, and alteration omitted). The
Court explained that the “statutory purpose” of the FOIA was “full
agency disclosure” of “[o]fficial information that sheds light on an
agency’s performance of its statutory duties.” Id. at 495-96 (quoting
Reps. Comm., 489 U.S. at 773). The Court expressly stated that the
statutory purpose “is not fostered by disclosure of information about
private citizens that is accumulated in various governmental files but
that reveals little or nothing about an agency’s own conduct.” Id. at
496 (quoting Reps. Comm., 489 U.S. at 773). For that reason, the public
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interest is not served when “the requester does not intend to discover
anything about the conduct of the agency that has possession of the
requested records.” Reps. Comm., 489 U.S. at 773.

Given these instructions from the Supreme Court, the district
court’s “public interest” analysis should have ended when it
concluded that disclosure of the records in this case “would not
advance the public’s understanding of the USSS’s performance of its
statutory duties.” 403 F. Supp. 3d at 254. Neither a campaign nor a
transition is an agency the records of which the FOIA aims to disclose.
The FOIA does not establish a public interest in revealing information
about such entities.

At the same time, we have said that the FOIA, through
Exemptions 6 and 7(C), recognizes a “strong public interest in
encouraging witnesses to participate in future government
investigations” that would be undermined if investigators could not
assure witnesses that private information would remain confidential.
Perlman v. DOJ, 312 F.3d 100, 106 (2d Cir. 2002), vacated, 541 U.S. 970
(2004), reinstated after remand, 380 F.3d 110 (2d Cir. 2004). In the same
way, Exemption 7(C) recognizes a public interest in encouraging
those officials who receive Secret Service protection to share
information necessary for the Secret Service to perform its protective
function.

Given these considerations, even if the records here were
properly considered agency records, the privacy interests would
outweigh any public interest in disclosure and thereby shield the
records from disclosure under Exemption 7(C).

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 CONCLUSION

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. Even if the records had been so converted,
5 U.S.C. § 552(b)(7)(C) would protect the records from disclosure. For
these reasons, we REVERSE the judgment of the district court to the
extent that it required the Secret Service to disclose the requested
documents.

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