In the United States Court of Appeals For the Second Circuit

August Term, 2023 No. 22-1202

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.

On Appeal from a Judgment of the United States District Court for the Eastern District of New York.

ARGUED: SEPTEMBER 18, 2023 DECIDED: AUGUST 5, 2024

Before: CHIN, NARDINI, and NATHAN, Circuit Judges.

Under the Freedom of Information Act (“FOIA”), a federal agency is required to produce “an agency record” when a member of the public requests disclosure, subject to certain exemptions. 5 U.S.C. § 552(f)(2)(A); see id. § 552(a)(3), (b). Records belonging to entities not covered by FOIA, such as 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 that are subsequently transmitted to FOIA-covered agencies constitute “agency records” subject to disclosure under FOIA. The United States Senate Select Committee on Intelligence generated a report on the Detention and Interrogation Program conducted by the Central Intelligence Agency after September 11th. The Committee transmitted the report to various FOIA-covered federal agencies. Plaintiff-Appellant Douglas Cox submitted FOIA requests to the defendant agencies for their copies of the report. The agencies denied the requests, contending that the report is a congressional record rather than an agency record and is thus not subject to FOIA disclosure. The United States District Court for the Eastern District of New York (Rachel P. Kovner, District Judge) agreed with the agencies, granted summary judgment in their favor, and denied Cox’s request for discovery. Cox appeals these rulings. We agree with the district court. Pursuant to the test we articulated in Behar v. United States Department of Homeland Security, 39 F.4th 81 (2d Cir. 2022), cert. denied, 143 S. Ct. 2431 (2023), the Committee manifested a clear intent to control the report at the time of its creation, and because the Committee’s subsequent acts did not vitiate that intent, the report constitutes a congressional record not subject to FOIA. 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

2 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, as Cox failed to make any of the showings necessary to warrant discovery in a FOIA case. We therefore AFFIRM the district court’s judgment.

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