Cox v. DOJ, No. 22-1202, 2024 WL 3642871 (2d Cir. Aug. 5, 2024) (Nardini, J.)

Cox v. DOJ, No. 22-1202, 2024 WL 3642871 (2d Cir. Aug. 5, 2024) (Nardini, J.)

Re:  Request for report prepared by United States Senate Select Committee on Intelligence (“SSCI”) concerning CIA’s post-9/11 detention and interrogation program, as well as associated documents

Disposition:  Affirming district court’s grant in part of government’s motion for summary judgment and denial of requester’s request for discovery

• Procedural Requirements, “Agency Records”:  The Court of Appeals for the Second Circuit holds that “the district court properly found that the draft and final versions of the report are congressional records not subject to FOIA disclosure requirements.”  “At issue here are documents created by Congress and subsequently transmitted to various agencies.”  “There is no dispute that the agencies obtained the draft and final versions of the report, satisfying the first prong of the Tax Analysts test.”  “The central question before [the court], then, is whether the agencies controlled the draft and final versions of the report under the second prong of the Tax Analyst[s] test, transforming those documents from congressional records into agency records.”  “To determine whether such control existed in this case, the district court applied the D.C. Circuit’s test for control.”  “The D.C. Circuit has set forth a four-factor test ‘to determine whether an agency has sufficient control over a document to make it an agency record’ . . . .”  “[The requester] argues that the district court erred by applying the D.C. Circuit’s intent test to decide whether the Agencies controlled the draft and final versions of the report.”  “He argues that under the Tax Analysts test, control simply means ‘that the materials have come into the agency’s possession in the legitimate conduct of its official duties.’”  “This argument is squarely foreclosed by [the court’s] precedent.”  “In [Behar v. U.S. Dep’t of Homeland Sec., 39 F.4th 81, 90 (2d Cir. 2022)], this Court rejected the contention that mere possession of documents is sufficient to show control over them and adopted the D.C. Circuit's intent test.”
  
  “[The requester] next contends that, even under the intent test, the district court erred by finding that the draft and final versions of the report constitute congressional records not subject to FOIA.”  “[The court] disagree[s].”  “The D.C. Circuit has had an opportunity to determine whether the draft and final versions of the report are agency records under FOIA.”  “[T]he D.C. Circuit concluded that the Committee intended to retain control of the report and therefore that the copies of the report were congressional records not subject to disclosure under FOIA.”  “[The court is] persuaded by our sister circuit’s reasoning, which should come as no surprise given that [the court is] applying the same test to a nearly identical set of facts.”  “Like the D.C. Circuit, [the court] conclude[s] that the Committee ‘manifested a clear intent to control,’ . . . the draft and final versions of the report through its June 2, 2009, letter.”  “The letter provides that ‘[a]ny 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.’”  “The letter contains no temporal limitations on the Committee’s control over the documents, stating that ‘[t]hese 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.’”  “And if it was not clear already, the letter explicitly states that these documents are ‘not CIA records’ under FOIA.”  “It is difficult to imagine a clearer manifestation of an intent to control documents than the one expressed in the June 2, 2009, letter.”  “Having found that the Committee ‘manifested a clear intent to control,’ . . . the report, [the court] turn[s] to the question of whether the Committee ‘subsequently acted to vitiate the intent to maintain exclusive control over the documents that was manifested at the time of the documents’ creation,’ . . . .”  “To answer this question, [the court] look[s] to evidence concerning the report’s transmittal.”  “There are three transmittal letters accompanying the various versions of the report.”  “None of the transmittal letters effectively retract the strong congressional intent to control the draft and final versions of the report expressed in the June 2, 2009, letter.”  “In sum, the record shows that Congress ‘manifested a clear intent to control the [draft and final versions of the report], such that the agenc[ies] [are] not free to use and dispose of the documents as [they] see[ ] fit.’”  “Nothing in the record demonstrates that the Committee ever acted to vitiate that clear intent.”
   
• Litigation Considerations, Discovery:  The Court of Appeals for the Second Circuit relates that “[t]he district court held that [the requester] failed to satisfy that standard because he did not identify ‘contrary evidence’ or evidence ‘suggestive of bad faith.’”  “Additionally, the district court had already found that [the requester] failed to demonstrate that summary judgment was inappropriate.”  “[The requester] maintains that he did present evidence demonstrating bad faith, citing letters from Senator Feinstein that, in his view, contradicted the district court’s interpretation of the June 2, 2009, Letter.”  “This contention merely repackages [the requester’s] arguments concerning the district court’s summary judgment ruling on the draft and final versions of the report.”  “And for the reasons [that the court analyzed there], [it] find[s] those arguments to be without merit.”