Cox v. Dep't of Justice

111 F.4th 198

Douglas COX, Plaintiff-Appellant, v. DEPARTMENT OF JUSTICE, Federal Bureau of Investigation, Department of Defense, Office of the Director of National Intelligence, Department of State of the United States, Defendants-Appellees.

No. 22-1202

August Term, 2023

United States Court of Appeals, Second Circuit

Argued: September 18, 2023

Decided: August 5, 2024

On Appeal from a Judgment of the United States District Court for the Eastern District of New York. (Rachel P. Kovner, District Judge)

Douglas Cox, pro se, Long Island City, NY.

Thomas Pulham (Brian M. Boynton, Principal Deputy Assistant Attorney General, Sharon Swingle, Attorney, Appellate Staff, Civil Division, on the brief), Attorney, Appellate Staff, Civil Division, U.S. Department of Justice, Washington, D.C., for Defendants-Appellees.

Before: Chin, Nardini, and Nathan, Circuit Judges.

William J. Nardini, Circuit Judge:

Under the Freedom of Information Act ("FOIA"), a federal agency is required to produce "an agency record," subject to enumerated exemptions, when a member of the public requests disclosure. 5 U.S.C. § 552(f)(2)(A); see id. § 552(a)(3), (b). Records belonging to entities not covered by FOIA, such as the United States Congress, are not "agency records" and therefore are not subject to FOIA disclosure requirements. This case presents the issue of whether documents created by Congress and subsequently transmitted to FOIA-covered agencies constitute "agency records" subject to disclosure under FOIA.

The United States Senate Select Committee on Intelligence ("SSCI" or the "Committee") generated a report on the Detention and Interrogation Program (the "Program") conducted by the Central Intelligence Agency ("CIA") after September 11th. The Committee transmitted draft and final versions of the report to various federal agencies including the Department of Justice ("DOJ"), the Federal Bureau of Investigation ("FBI"), the Department of Defense ("DOD"), the Office of the Director of National Intelligence ("ODNI"), and the Department of State (collectively, the "Agencies"). Plaintiff-Appellant Douglas Cox submitted FOIA requests for the Agencies' copies of the report as well as other related communications. The Agencies denied the requests for copies of the report, arguing that those documents are congressional records, rather than agency records, and are therefore not subject to FOIA disclosure requirements.

The United States District Court for the Eastern District of New York (Rachel P. Kovner, District Judge) granted summary judgment in favor of the Agencies, concluding, inter alia, that the report is a congressional record not subject to the FOIA disclosure requirements. The district court also denied Cox's request for discovery. Cox challenges these two decisions on appeal.

We agree with the district court. "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." Behar v. U.S. Dep't of Homeland Sec., 39 F.4th 81, 90 (2d Cir. 2022), cert. denied, ___ U.S. ___, 143 S. Ct. 2431, 216 L.Ed.2d 415 (2023) (internal quotation marks and alteration marks omitted). If so, then "the document is not an agency record subject to the FOIA." Id. Here, the record shows that the Committee manifested a clear intent to control the report at the time of its creation and that the Committee's subsequent acts did not vitiate that intent. The report therefore constitutes a congressional record not subject to FOIA disclosure requirements.

We note that although Cox disputes the proper test for agency records, he did not cite Behar in his opening brief even though it had been decided months earlier. At oral argument, Cox explained that he thought the decision might be overturned on rehearing or by the Supreme Court. We join our sister circuits in holding that a published opinion becomes binding precedent when it is decided, regardless of whether the mandate has issued or of any pending petitions for rehearing or for writ of certiorari. It remains so until it is vacated or overruled.

We further conclude that the district court did not abuse its discretion by denying discovery to Cox, as he failed to make any of the showings necessary to warrant discovery in a FOIA case.

We therefore AFFIRM the district court's judgment.

I. Background

A. Facts

The following facts are drawn from the summary judgment record.

In the aftermath of the terrorist attacks of September 11, 2001, the CIA implemented the Detention and Interrogation Program in an effort to gather intelligence for the purpose of preventing future terrorist attacks. Through the Program, which was operational between September 2001 and January 2009, the CIA detained more than 100 people and used "enhanced interrogation techniques" to acquire intelligence. J.A. at 115. In March 2009, the United States Senate Select Committee on Intelligence, chaired by the late Senator Dianne Feinstein, initiated an investigation of the Program.

Pursuant to its investigation, the Committee requested access to millions of highly sensitive and classified documents from the CIA. The investigation could not proceed without the Committee and the CIA first reaching consensus on a set of terms to govern the Committee's review of the documents, given their highly confidential nature. To that end, on May 28, 2009, the CIA sent the Committee a proposed memorandum of understanding, which required the Committee staffers to, among other things, review relevant documents in a designated "Reading Room" and prepare all versions of any reports for the investigation on a "CIA approved stand-alone computer system" in the Reading Room. Id. at 26.

The Committee responded to the CIA with a letter dated June 2, 2009, proposing a series of "procedures and understandings" to govern its investigation. Id. at 28. The letter required the CIA to, inter alia, make available relevant documents, provide the aforementioned stand-alone computer system in the Reading Room "with a network drive for Committee staff and Members" to conduct their investigation, and restrict access by CIA employees to that computer system. Id. at 29. The letter also addressed the issue of the ownership of any materials generated by the Committee staff in connection with the investigation:

Any documents generated on the network drive ..., as well as any other notes, documents, draft and final recommendations, reports or other materials generated by Committee staff or Members, are the property of the Committee and will be kept at the Reading Room solely for secure safekeeping and ease of reference. These documents remain congressional records in their entirety and disposition and control over these records, even after the completion of the Committee's review, lies exclusively with the Committee. As such, these records are not CIA records under the Freedom of Information Act or any other law. The CIA may not integrate these records into its records filing systems, and may not disseminate or copy them, or use them for any purpose without the prior written authorization of the Committee. The CIA will return the records to the Committee immediately upon request in a manner consistent with paragraph 9 [of the letter]. If the CIA receives any request or demand for access to these records from outside the CIA under the Freedom of Information Act or any other authority, the CIA will immediately notify the Committee and will respond to the request or demand based upon the understanding that these are congressional, not CIA, records.

Id. at 29-30.

On June 8, 2009, the CIA sent a letter to the Committee that sought clarification regarding some of the procedures described in the June 2, 2009, letter. The CIA agreed with the Committee on the ownership issue, stating that "[t]he SSCI retains ownership of anything created on [the network] drive, it is SSCI property and will be handled accordingly vis-à-vis the FOIA." Id. at 36.

After additional negotiations, the CIA and the Committee finally reached agreement on all the procedures governing the investigation, and the Committee began its investigation of the Program. Under the agreed-upon procedures, the Committee staff members drafted a report on the investigation on the segregated network drive in the Reading Room. The Committee, with the help of the CIA, eventually transferred draft versions of the report to the Committee's secure facilities at the United States Capitol to enable the Committee to complete the drafting process in its own workspace.

In December 2012, the Committee completed its investigation and produced a report totaling over 6,000 pages, which included an executive summary (the "Executive Summary") and a section with the findings and conclusions (the "Findings and Conclusions"). The Committee approved the report by a vote of 9-6 on December 13, 2012. Later the same day, a Committee staff member emailed various executive agencies to notify them of the approval of the report and of the Committee's plan to transmit "a limited number of hard copies of the report for review" to the White House, the ODNI, the CIA, and the DOJ. Id. at 204. The staff member noted that the Committee would "only provide copies of the report to specific individuals who are identified in advance to the [Committee] Chairman." Id.

On December 14, 2012, Senator Feinstein sent a letter to the White House and then-President Barack Obama to inform them of the completion of the investigation and the accompanying report. Senator Feinstein indicated that the Committee would provide copies of the report to the White House and appropriate agencies for the purpose of soliciting feedback and, after receiving and considering that feedback, she would "present [the] report with any accepted changes again to the Committee to consider how to...