[00:00:03] Speaker 00:
Case number 13-5335, Cause of Action Appellant versus Federal Trade Commission.

[00:00:08] Speaker 00:
Mr. Gavorin for the appellant, Ms.

[00:00:10] Speaker 00:
Townsend for the meekest curiae, and Mr. Mayer for the appellate.

[00:00:16] Speaker 04:
May it please the Court, I'm Aram Gavorin and I represent Cause of Action in this FOIA appeal.

[00:00:22] Speaker 04:
This case prevents a strong example of how important

[00:00:26] Speaker 04:
FOIA fee reduced and waived access to documents is for public interest alternative media nonprofits and the post open government act of 2007 regime.

[00:00:37] Speaker 04:
This court should reverse and remand the district court's grant of summary judgment and building on appellants briefs, it should do so particularly on the grounds of mootness as it relates to cause of actions.

[00:00:49] Speaker 04:
Third, FOIA request.

[00:00:50] Speaker 06:
That one is different than the other two.

[00:00:53] Speaker 06:
It certainly is.

[00:00:55] Speaker 06:
Why isn't it moving?

[00:00:57] Speaker 06:
Why isn't it moving?

[00:00:58] Speaker 06:
You are requesting an order that says you don't owe for that search, right?

[00:01:03] Speaker 06:
Correct.

[00:01:04] Speaker 06:
And they're not charging you for that search, right?

[00:01:07] Speaker 04:
Well, Your Honor, the fee waiver analysis is absolutely necessary for that search because item one of FOIA request three asks for distinctly different materials.

[00:01:19] Speaker 06:
Yeah, and they say that they made the same search they would have made if the one word had been in the other.

[00:01:25] Speaker 06:
The adding of the one word didn't change your search.

[00:01:32] Speaker 06:
Well, Your Honor, I think the record clearly demonstrates that... Nonetheless, they're not charging you for the search.

[00:01:39] Speaker 06:
What is a court going to order in the way of relief that isn't moved out by the fact that they're not charging you for the search?

[00:01:45] Speaker 04:
Because it comes down to the adequacy of that search.

[00:01:48] Speaker 06:
Your Honor, there are certain questions... If we're talking about the adequacy of the search, that's not the record we had before that season.

[00:01:54] Speaker 04:
Your Honor, the search itself and the fee waiver analysis is particularly important and the third request is not moot.

[00:02:01] Speaker 06:
I don't hear your answer to my question as to what relief it would be that a court can order that they haven't already granted.

[00:02:08] Speaker 04:
The relief that would be there would be an appropriate reading of by 52, A4, A2.

[00:02:14] Speaker 06:
Appropriate readings are not what key pages would be in moot.

[00:02:18] Speaker 06:
You have to have something, an injury that's remediable by an order of the court.

[00:02:23] Speaker 04:
The remediable nature of the third FOIA request is that there is materials that the agency did not search for.

[00:02:32] Speaker 04:
Bloggers, in particular, was part of the search term, which was not included in item three of request one, which specifically just stated social media authors.

[00:02:43] Speaker 06:
At least the given position is that they made the same search they would have made with or without the word blogger being in it.

[00:02:50] Speaker 04:
Am I not correct in this?

[00:02:52] Speaker 04:
Your Honor, that is Appellee's arguments, but bloggers are wholly separate from social media authors.

[00:03:01] Speaker 04:
And if you allow me to complete my argument on this, it's very important because there was at least 100 pages.

[00:03:08] Speaker 06:
We don't allow people to make unlimited arguments.

[00:03:11] Speaker 04:
I welcome it, Your Honor.

[00:03:13] Speaker 04:
There's at least 100 pages, at least.

[00:03:16] Speaker 04:
that were produced based on FOIA Request 1, Item 3.

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And if that amount was also considered, if not much larger because of the inclusion of bloggers, which in addition to that... Tell me the order that the district court would draw that would grant remedy based on the third application.

[00:03:34] Speaker 06:
Excuse me, Your Honor?

[00:03:35] Speaker 06:
Tell me the order that the district judge would enter that would grant

[00:03:41] Speaker 06:
justiciable type relief based on the third application, when they've already given what you were asking for.

[00:03:47] Speaker 04:
Well, Your Honor, the justiciable relief would be is that the third FOIA request was indeed not moved because a fee waiver analysis was required because there was more than $25 of reproduction fees.

[00:03:59] Speaker 06:
If you get the fee waiver, you get the service free, right?

[00:04:03] Speaker 04:
Under the fee waiver for news media requester, you get the search and the review for free.

[00:04:08] Speaker 04:
Right.

[00:04:08] Speaker 06:
And you got the search and the review for free, right?

[00:04:10] Speaker 04:
Your Honor, we didn't get the full search.

[00:04:13] Speaker 04:
Cause of action did not get the full search because bloggers was not included.

[00:04:17] Speaker 04:
And specifically... So what would the order say then?

[00:04:21] Speaker 04:
The order would specifically state that the third request is not moot because

[00:04:29] Speaker 04:
In particular, it's not redundant with request one, item three, because the inclusion of the word bloggers in the search term would lead to a different and larger result.

[00:04:40] Speaker 04:
And secondarily, if you take a look at the first request, Your Honor, request three, and the affidavit provided by the Federal Trade Commission,

[00:04:49] Speaker 04:
The FTC specifically states it reviewed and selected 100 pages, which implies, and we can infer reasonably, that there were larger than 100 pages in the first search.

[00:05:00] Speaker 04:
We don't officially know how many pages that search for item 3 of request 1 actually created.

[00:05:08] Speaker 04:
And that's part of the issue here.

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And that is justiciable, and that is appropriate for remand.

[00:05:13] Speaker 04:
But secondarily, the news media requester status

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The standard was anachronistically applied by the district court and the FTC.

[00:05:21] Speaker 06:
You can get to that point without the third application at all, can't you?

[00:05:26] Speaker 06:
You had two prior requests, unless you can litigate that request.

[00:05:30] Speaker 04:
There are two prior requests, but the third request is also important because it stands on its own.

[00:05:35] Speaker 04:
And I see I'm having limited time.

[00:05:38] Speaker 04:
I want to provide my co-counsel with the ability to speak.

[00:05:40] Speaker 04:
But specifically, news media requester status in the Open Government Act of 2007 specifically voids the FTC's regulation.

[00:05:50] Speaker 03:
Before you get to it, we'll give you some more time.

[00:05:52] Speaker 03:
Just on the third request, did you in the third request

[00:05:57] Speaker 03:
may provide more information about your status under either the news meter or the public interest.

[00:06:03] Speaker 04:
Absolutely.

[00:06:04] Speaker 04:
There was a larger track record that caused the action.

[00:06:07] Speaker 03:
Okay, so if that's the case, I was wondering whether you might rephrase what you're really asking for here is, regardless of whether Request 1 of Request 3 is new or not, that is, regardless of whether its addition of bloggers made any difference,

[00:06:24] Speaker 03:
You are now again asking for the same thing you asked for before, but you're now supplementing on the record before the agency the evidence that you come under one or the other of the categories.

[00:06:39] Speaker 04:
Your Honor, that's an excellent way of phrasing it.

[00:06:42] Speaker 03:
Yeah, I appreciate it.

[00:06:43] Speaker 04:
Thank you.

[00:06:44] Speaker 03:
So at least as to that, we would be able to consider the additional record that you made with respect to the third request, even if it makes no overall difference.

[00:06:54] Speaker 03:
It may make a difference in terms of whether you get the waiver for basically the same materials.

[00:07:00] Speaker 04:
Yes, Your Honor, and particularly with regards to the waiver, there's media requests for 552A2A4.

[00:07:08] Speaker 04:
What's most important, or A4A2, what's most important here are three points.

[00:07:13] Speaker 04:
First is that the district court and the FTC anachronistically applied a pre-open government act of 2007.

[00:07:19] Speaker 03:
Let me just say this.

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Since you've persuaded us, at least me, that the rule is de novo, that we review de novo.

[00:07:26] Speaker 03:
Not very hard to persuade me because the statute says so.

[00:07:29] Speaker 03:
It really makes no difference whether the district court made a mistake or didn't or whether the agency regulation is good or bad, does it?

[00:07:39] Speaker 03:
Since we have to review de novo the meaning of the statute, why does it make any difference whether the agency has a regulation that fits the statute or not or whether the district court followed the law?

[00:07:52] Speaker 03:
Why does that matter?

[00:07:53] Speaker 04:
The only thing that matters, Your Honor, is that the Open Government Act of 2007 was followed, and that wasn't followed here because that regulation was voided and the district court and the agency relied upon it.

[00:08:03] Speaker 03:
The only thing that matters is that we follow the Open Government Act today.

[00:08:07] Speaker 03:
Correct.

[00:08:07] Speaker 03:
Correct.

[00:08:07] Speaker 03:
So, if you could make your argument, assuming nothing, assume two things, both required by the statute.

[00:08:14] Speaker 03:
One is that we have to decide this de novo.

[00:08:17] Speaker 03:
and two, that your record is limited to what you filed, and I'm going to give you all three, whatever you filed with respect to the first, second, and third requests.

[00:08:26] Speaker 03:
But none of the additional material that you provided in court, because that's outside the record.

[00:08:31] Speaker 04:
We honor the open government act of 2007, and these particular requests satisfy the news media request for status fee reduction burden because there was a sufficient record, specifically on A-181 of the appendix.

[00:08:48] Speaker 04:
Cause of action clearly states that it has a website that has memoranda, reports, press releases, two active newsletters.

[00:08:58] Speaker 04:
Twitter, Facebook, and with the inclusion of the alternative media definition that is now part of the news media requester status, all three of the elements, first, which the district court agreed with, and this court should as well, entity that gathers information of potential interest to a segment of the public.

[00:09:20] Speaker 04:
Second, it uses its editorial skill to turn raw materials into distinct work.

[00:09:24] Speaker 04:
There is an ample record for that, and specifically a diversity or a multitude of sources is not per se required, but even under that standard, which we don't... Let's talk about each of the actions.

[00:09:37] Speaker 03:
I'm with you that there's a lot of extra words in a lot of the case law that doesn't appear in the statute, so we could just follow the statute itself.

[00:09:46] Speaker 04:
Correct.

[00:09:47] Speaker 03:
So the editorial skills to turn raw materials into a distinct work.

[00:09:51] Speaker 03:
I take it you agree that if all you did was put on your website what you got from FOIA and you didn't do anything with it, that would not be sufficient, right?

[00:10:01] Speaker 04:
Correct, because that would be a repository.

[00:10:03] Speaker 03:
All right, and so what did you do to the material that you would, what have you in the past done or are you planning to do with the material that you get from FOIA?

[00:10:14] Speaker 04:
The FOIA request specifically states that Cause of Action was going to write two reports based on the materials that the Federal Trade Commission would produce in response to the request.

[00:10:26] Speaker 03:
And that's what you said, A181.

[00:10:28] Speaker 04:
I think A181 is the diversity of the sources.

[00:10:33] Speaker 03:
It intends to create two reports.

[00:10:35] Speaker 03:
How the FTC denies fee waivers.

[00:10:37] Speaker 03:
Oh correct, yes.

[00:10:38] Speaker 03:
And the FTC and the guides concerning endorsements, why the change.

[00:10:41] Speaker 04:
Correct.

[00:10:41] Speaker 04:
So those are two reports that Cause of Action specifically stated that it would have the desire to create based on this information.

[00:10:49] Speaker 03:
Anything else?

[00:10:51] Speaker 04:
Anything else with regard to editorial skill turning into raw material into distinct work?

[00:10:56] Speaker 04:
Yes.

[00:10:57] Speaker 04:
There were other pickups of Causative Action's work involving these items.

[00:11:03] Speaker 04:
One example being the Washington Times printed a story involving this exact type of work that Causative Action did.

[00:11:11] Speaker 04:
Now, this is separate from dissemination itself, but it's evidence, further evidence, that it's on the record

[00:11:17] Speaker 04:
of cause of action, taking raw material, editorializing it and creating distinct work.

[00:11:22] Speaker 03:
When you say they picked it up, they published some kind of article that you wrote or they used the FOIA material to write their own article?

[00:11:33] Speaker 04:
They produced an article.

[00:11:35] Speaker 03:
It's not enough that the Washington Times used its editorial skills.

[00:11:40] Speaker 04:
It's based on cause of actions, editorialization, and analysis of raw material.

[00:11:47] Speaker 03:
And in what form was that?

[00:11:49] Speaker 03:
In what form did cause of action

[00:11:53] Speaker 03:
apply its editorial skills and then give it to Washington Times?

[00:11:57] Speaker 03:
Press release or a report or what?

[00:12:01] Speaker 04:
I believe it was a press release at a minimum.

[00:12:07] Speaker 06:
Is that a record somewhere that we could verify your belief had a foundation in fact?

[00:12:12] Speaker 04:
That is not in the record.

[00:12:15] Speaker 04:
However, the Washington Times story is in the record.

[00:12:20] Speaker 03:
And does a Washington Times story say that, does it reference cause of action?

[00:12:26] Speaker 04:
I believe it does.

[00:12:29] Speaker 03:
Unfortunately, our record doesn't have it in it.

[00:12:31] Speaker 04:
Correct, it's not reproduced.

[00:12:33] Speaker 03:
Right, but does it say that cause of action

[00:12:36] Speaker 03:
provided us with this memorandum of its opinion about this or does it quote somebody from Cause of Action saying the FTC is bad or anything that would suggest some statement by Cause of Action other than here's what we got from FOIA.

[00:12:52] Speaker 04:
I believe it does.

[00:12:53] Speaker 04:
And if it doesn't, I'll supplement this court with a 28-J to inform it.

[00:12:57] Speaker 04:
I believe it does.

[00:12:58] Speaker 03:
And then another question I have is the statute requires that the work be distributed to an audience.

[00:13:07] Speaker 04:
Correct.

[00:13:08] Speaker 03:
So do you agree that an audience of one wouldn't be enough?

[00:13:14] Speaker 04:
I would state that under the standard

[00:13:17] Speaker 04:
there shouldn't be a quantitative limitation.

[00:13:20] Speaker 03:
I understand the idea that it doesn't have to be a broad audience.

[00:13:25] Speaker 03:
I completely get that.

[00:13:26] Speaker 03:
But I'm struggling with what Congress meant by audience.

[00:13:30] Speaker 03:
Audience doesn't sound like one.

[00:13:32] Speaker 03:
What does it sound like to you?

[00:13:35] Speaker 04:
I think it sounds like drawing quantitative limitations, particular numbers, I think is very dangerous.

[00:13:42] Speaker 03:
Okay, so what do we do instead?

[00:13:43] Speaker 04:
So what do we do instead is we can take a look at this record and cause of action makes statements that are not refuted and in good faith and the court should presume their veracity, that it had Twitter, Facebook,

[00:13:57] Speaker 04:
You know, its website, yes, the website was viewed twice, and it was under construction at the time FTC viewed it, but the website was there and up.

[00:14:07] Speaker 04:
That's included in Cause of Action's declarations.

[00:14:09] Speaker 03:
By the end of the administrative record?

[00:14:12] Speaker 04:
Certainly, during the administrative record, and that's included in the affidavits.

[00:14:17] Speaker 03:
But do we know anything, even if we can't quantify, we shouldn't use quantification, do we know anything about how many hits on the website, how many Twitter followers, anything at all?

[00:14:26] Speaker 04:
Your Honor, that data is not included in the record, but that data per se should not need to be included in the record.

[00:14:32] Speaker 04:
I think statements that, if you take a look at the entire administrative record in the totality, I think there's sufficient and ample evidence to demonstrate that prong three in the News Media Requesters' Standards distributes that work to an audience is satisfied.

[00:14:49] Speaker 06:
So that... I'm not sure I heard you tell us where it was said.

[00:14:57] Speaker 06:
And I then hear you say that there's dissatisfaction.

[00:15:04] Speaker 06:
Where would I look in the record to find out that there is an audience?

[00:15:10] Speaker 04:
Well, Your Honor, the statements that Cause of Action makes, it does not include quantitative data, but... No, it doesn't include.

[00:15:18] Speaker 06:
Tell me what it is that tells me there is, that you have complied with the audience requirement of Subsection 1, Roman 3.

[00:15:27] Speaker 03:
So you pointed us to 181 for the editorial effect.

[00:15:31] Speaker 03:
Can you, the editorialized skills, can you point us to

[00:15:36] Speaker 03:
J.A.A.

[00:15:36] Speaker 04:
page, which is your best page about your audience, that there is an audience, regardless of the quantification of the audience, but that there is whatever it is we ultimately... Well, Your Honor, pages 48, 157 to 16, and 181 to 184 talks about Twitter and Facebook, but social media contacts, including press releases,

[00:16:02] Speaker 04:
Cause of Action also informed the FTC that its contacts with news media organizations regularly feature its work.

[00:16:10] Speaker 04:
And if you take a look at 167 Note 7, there are 18 specific examples of news media entities that had shown interest in Cause of Action's work.

[00:16:27] Speaker 03:
What page was that?

[00:16:28] Speaker 04:
167 Note 7.

[00:16:35] Speaker 03:
Is that, what's that part of?

[00:16:39] Speaker 03:
I'm sorry.

[00:16:41] Speaker 04:
Sorry, Your Honor.

[00:16:41] Speaker 04:
A167, January 27, 2012 letter.

[00:16:52] Speaker 04:
There are 18 specific examples of news media entities that have shown interest in cause of action's work.

[00:16:58] Speaker 06:
Can you tell me the words in that footnote that support the proposition of just disturbing it far?

[00:17:04] Speaker 06:
I mean, you say that you begin to show that you're incriminating finance employees, both on the phone and VIA news media articles, the fast-permitted links over the seaways.

[00:17:15] Speaker 06:
Then there is a list of citations and a lot of articles, but I don't see how any of them are tied.

[00:17:21] Speaker 06:
means that doesn't mean that they support the proposition that the maker of the article is your own.

[00:17:28] Speaker 04:
Your Honor, those articles are in the record and specifically I refer the court to judicial watch versus Rosati in public integrity, Center for Public Integrity.

[00:17:36] Speaker 04:
These are detailed and nonconclusory demonstration.

[00:17:40] Speaker 04:
You know, how

[00:17:42] Speaker 04:
and through whom the cause of action will disseminate its work.

[00:17:46] Speaker 04:
Specifically, I think the Court should focus on not requiring detailed game plan, with specific metrics and quantification.

[00:17:59] Speaker 06:
Well, we have to focus on defiance from the state.

[00:18:00] Speaker 06:
That's what we're here for.

[00:18:02] Speaker 06:
Absolutely.

[00:18:02] Speaker 06:
And you're giving us

[00:18:09] Speaker 06:
What do you say to this?

[00:18:10] Speaker 06:
I mean, no worry, footnote seven, does it tell us that these articles contain anything that is linked to anything you've published?

[00:18:19] Speaker 06:
Well, Your Honor... Do the articles exist?

[00:18:21] Speaker 06:
I believe that they exist, but how do they support the proposition that the author of the article is your owner?

[00:18:27] Speaker 04:
Well, Your Honor, I think they support the proposition, we believe, because they rely on cause of actions where... How do we know that?

[00:18:35] Speaker 06:
What's in the records that tells us they rely upon?

[00:18:39] Speaker 04:
It's the record before the court.

[00:18:42] Speaker 04:
I can't editorialize myself.

[00:18:45] Speaker 03:
Well, let me ask you about it.

[00:18:46] Speaker 03:
Remind me about what happened.

[00:18:47] Speaker 03:
So here's a long list of articles, which are also many of them in December 12th letter.

[00:18:58] Speaker 03:
And you say that these reflect cause of actions work, right?

[00:19:08] Speaker 03:
Correct.

[00:19:09] Speaker 03:
And we obviously don't have the articles.

[00:19:14] Speaker 03:
That doesn't mean they're not in the record.

[00:19:16] Speaker 03:
That is, in the sense that once you have provided the agency with a list of the articles... That should be sufficient.

[00:19:22] Speaker 03:
That should be sufficient if they say what you say they say.

[00:19:24] Speaker 03:
So I'm just wondering whether it was incumbent on the district court... Do we have any idea whether the district court ever looked at these articles?

[00:19:35] Speaker 04:
To my knowledge, the district court did not look at those articles.

[00:19:39] Speaker 04:
The district court reviewing Danovo probably should have taken a look at the entire record.

[00:19:44] Speaker 04:
Moreover, Your Honor, I'd also add on page 48, A48, Positive Action talks about its own newsletters that it publishes.

[00:19:53] Speaker 04:
And that's also there.

[00:19:56] Speaker 03:
And as far as the audience... Do we need to know whether they publish it into the air or whether anybody is there on the other end?

[00:20:02] Speaker 04:
But I think common sense can dictate that if these newsletters are being published, it's not some sort of subterfuge to defeat a fee waiver status for FOIA.

[00:20:13] Speaker 03:
Wouldn't it have been easy to say how many?

[00:20:15] Speaker 03:
I mean, to be fair, wouldn't it be easy?

[00:20:18] Speaker 03:
Wouldn't you have solved a lot of our problems if you had said that we publish a newsletter and it has an audience of, I don't know, 100?

[00:20:26] Speaker 03:
Then you could say 100 is enough.

[00:20:29] Speaker 04:
Your Honor, that's certainly something that could have been included in the record.

[00:20:32] Speaker 04:
But also, keep in mind, there's evidence in this record that Cause of Action consulted with OGIS for its third FOIA request.

[00:20:41] Speaker 04:
In good faith, it was doing its best at the time to comply with the statute.

[00:20:47] Speaker 04:
So yes, that specific quantification is missing, but there's no law that requires quantification on its face.

[00:20:54] Speaker 06:
But there is a law that requires audience.

[00:20:55] Speaker 06:
Correct.

[00:20:56] Speaker 06:
And I don't know how you think we can determine audience without something that you would call quantification.

[00:21:01] Speaker 06:
That is, if there's only one person, we still have to count that person though there's one of them.

[00:21:06] Speaker 06:
Your Honor... You don't seem to be...

[00:21:09] Speaker 04:
Your Honor, we believe that the court can infer, and the district court should have inferred, based on the record before it, that an audience was there, a sufficiently large audience, to satisfy the statute.

[00:21:23] Speaker 06:
That is the connection.

[00:21:25] Speaker 04:
from the very materials that I just cited to you.

[00:21:29] Speaker 04:
That if newspapers and articles are being produced, newsletters are being disseminated, that they're going to the audience.

[00:21:36] Speaker 06:
We don't know if the news letter is being disseminated in the sense of there being someone on the other end.

[00:21:41] Speaker 06:
I'm looking at 48 and I'm saying the same thing that Chief Judge saw, which does not include something telling me that there is a dissemination.

[00:21:50] Speaker 06:
You use the word disseminate.

[00:21:52] Speaker 06:
But it doesn't tell me, unless somebody's getting it, there isn't an audience, is there?

[00:22:04] Speaker 06:
Correct.

[00:22:05] Speaker 06:
Whether we want to find that person or not, there has to be a person getting it, doesn't there?

[00:22:10] Speaker 04:
Correct.

[00:22:10] Speaker 04:
But I think common sense would dictate that that's occurring here.

[00:22:13] Speaker 04:
But unless the court has further questions.

[00:22:16] Speaker 01:
One further question, I guess.

[00:22:22] Speaker 01:
Without reference to what you specifically put into this record, can you articulate what the standard should be?

[00:22:30] Speaker 01:
Because so far I've only heard what you think should not be required.

[00:22:35] Speaker 01:
You said not a detailed game plan, not a qualitative standard.

[00:22:40] Speaker 01:
What would it look like?

[00:22:42] Speaker 01:
What's the verbal formulation for a district court that's trying to figure out whether this fee waiver was properly done up?

[00:22:51] Speaker 04:
I think the proper standard obviously is drawn from the statute, relies on the National Security Archive, as well as the inclusion of alternative news media as far as methods of dissemination.

[00:23:04] Speaker 01:
I'm sorry to interrupt you, but the problem with the statute is that it seems to be doing two different things.

[00:23:13] Speaker 01:
It uses National Archives kind of expansive language.

[00:23:16] Speaker 01:
It also puts in those examples which are actually kind of back to OMB's very narrow description of what such an entity is.

[00:23:27] Speaker 01:
So what I'm trying to figure out is what after the 07 amendments should that standard look like?

[00:23:35] Speaker 04:
I think that standard should be unburdened of OMB's FIRA 87 guidelines that incorporates and creates for the first time this organized and operated standard.

[00:23:47] Speaker 04:
It should be unburdened specifically because Congress had an opportunity to choose it, and it decided to go to the National Security Archive and draw interference from the Department of Defense standard for alternative news media.

[00:23:59] Speaker 04:
So taking into context that there is ample legislative history

[00:24:04] Speaker 04:
And even in the Open Government Act 2007, the precatory language itself to that statute, FOIA needs to be construed liberally.

[00:24:13] Speaker 04:
And specifically, Senator Patrick Leahy indicates that the amendments in the Open Government Act of 2007, this is the Cause of Actions brief, page 28, cover individuals performing a media function who do not necessarily have a prior publication history.

[00:24:32] Speaker 04:
So that's something that Senator Patrick Leahy specifically stated.

[00:24:36] Speaker 04:
And more so, and I think importantly for this Court to consider, even with the FIRA amendments, which gave rise to OMB's narrow, organized and operated standard,

[00:24:49] Speaker 04:
Senator Leahy also indicated that experience suggests that agencies are most resistant to granting fee waivers when they suspect that the information sought may cast them in a less than flattering light.

[00:25:00] Speaker 04:
And here, where Cause of Action specifically states the reports that it's going to create from the materials, the raw materials that FTC produces,

[00:25:08] Speaker 04:
would lead to that conclusion.

[00:25:10] Speaker 01:
But if you emphasize the Leahy language, don't you get right back to the problem of audience of one?

[00:25:17] Speaker 01:
You know, everybody who thinks there's a blogger now thinks they also should qualify.

[00:25:22] Speaker 01:
So all I'm trying to figure out is somewhere along that spectrum, is there an articulable standard?

[00:25:30] Speaker 04:
I think that with the facts before this court,

[00:25:34] Speaker 04:
when a 501c3 non-profit public interest organization makes FOIA requests indicating that it has not just Twitter or Facebook, but that it has newsletters, memoranda, reports, news releases, and that its work

[00:25:54] Speaker 04:
is being covered by news media itself as well, its editorialized work, that is sufficient to satisfy the news media requester fee reduction.

[00:26:07] Speaker 04:
Unless the court has any further questions.

[00:26:09] Speaker 03:
Yep, I do.

[00:26:10] Speaker 03:
Sorry.

[00:26:11] Speaker 03:
I take it you're not giving up on your public interest request?

[00:26:15] Speaker 04:
No.

[00:26:15] Speaker 03:
Or are you?

[00:26:16] Speaker 04:
No, the cause of action does not concede that, just emphasizing news media requester.

[00:26:23] Speaker 03:
With respect to the word significantly, contribute significantly, do you think that's essentially the same meaning as in the news media?

[00:26:32] Speaker 03:
As in the news media element, significantly must mean that at least more than one person, that they're distributing to more than one person?

[00:26:42] Speaker 03:
Or what do you think the word significantly means?

[00:26:45] Speaker 04:
I think significantly likely means more than one person.

[00:26:51] Speaker 04:
But the request and information, there's a threshold level for public availability.

[00:26:59] Speaker 04:
And it's about the public understanding.

[00:27:02] Speaker 03:
I'm only focusing on the word significantly.

[00:27:07] Speaker 03:
I understand your argument about public understanding of the operations.

[00:27:11] Speaker 03:
I understand, actually I understand all of your other arguments, it's just what does the word significantly mean?

[00:27:15] Speaker 03:
Do you think it's basically the same thing as what we're struggling with with respect to news, that there be some audience that you can't contribute significantly to public if you're not distributing to some significant amount of the public?

[00:27:27] Speaker 04:
I think there needs to be the availability or the ability for the audience to access the information.

[00:27:33] Speaker 04:
And the word significantly likely means more than one.

[00:27:38] Speaker 04:
Again, staying away from the quantitative considerations that Congress did not articulate in the statute itself.

[00:27:45] Speaker 04:
Still, having this information available online and also cause of action to act of dissemination consistent with cause of action to previous arguments is sufficient to meet part four of the public interest fee waiver standard, out of 552.843.

[00:28:04] Speaker 03:
What about the primarily in the commercial interest section with respect to your interest about other people's waivers?

[00:28:13] Speaker 03:
I take the government's argument to be that what you're trying to do in the interest of the requester is to help advance your argument.

[00:28:25] Speaker 03:
We're as good as them, and therefore we're the same as them, and therefore we should get a waiver just like they did.

[00:28:31] Speaker 04:
I think undoubtedly that could be part of it.

[00:28:35] Speaker 04:
But I think what's also important is that Cause of Action specifically stated it was going to write a report on these types of questions.

[00:28:44] Speaker 04:
And I think for its public accountability, advocacy purposes, Cause of Action

[00:28:52] Speaker 04:
genuinely intends, continues to intend, to inform and educate the public on the discrepancies of Federal Trade Commission's practice of potential selective fee waiver provisions and fee reduction and fee waiver decision making.

[00:29:12] Speaker 03:
So how much are we supposed to deal with intent?

[00:29:15] Speaker 03:
You said you intended.

[00:29:17] Speaker 03:
The news media section has a specific set of sentences about freelance journalists.

[00:29:23] Speaker 03:
And it seems clear from that that just intending to write an article isn't enough, right?

[00:29:32] Speaker 03:
Because it says, a freelance journalist shall be regarded as working for a news media entity if the journalist can demonstrate a solid basis for expecting publication through that entity.

[00:29:43] Speaker 03:
So a freelance journalist, what do we do with a freelance journalist section?

[00:29:49] Speaker 03:
Doesn't it tell us something about something more than, does it tell us something that something more than intent is required?

[00:29:56] Speaker 04:
Well, I think that if we take a look at why that provision was added, I think it's the changing realities of how news media and how dissemination methods have evolved since the FOIA of 66, since the FIRA amendments.

[00:30:11] Speaker 04:
We're in an age where newsprint media has essentially been decimated.

[00:30:16] Speaker 04:
Even television news media has been reduced.

[00:30:19] Speaker 04:
And now the medium of dissemination typically is the internet.

[00:30:24] Speaker 03:
I got all that.

[00:30:25] Speaker 03:
So therefore you would think that it would be a very liberal standard for freedom.

[00:30:29] Speaker 04:
It should be liberally construed, Your Honor.

[00:30:31] Speaker 03:
But we still have words that we have to construe.

[00:30:34] Speaker 03:
And so it says, a freelance journalist shall be regarded as working for a news media entity if...

[00:30:40] Speaker 03:
the journalist can demonstrate a solid basis for expecting publication through that entity.

[00:30:46] Speaker 03:
And then this gives us an example.

[00:30:49] Speaker 03:
A publication contract would provide a solid basis.

[00:30:51] Speaker 03:
A past publication record would provide a basis.

[00:30:58] Speaker 03:
But that suggests that merely saying,

[00:31:02] Speaker 03:
I'm a freelance journalist.

[00:31:04] Speaker 03:
I want to do an article about X. I'm going to send it around to a lot of magazines, and I hope one of them publishes it.

[00:31:10] Speaker 03:
Would not be enough.

[00:31:12] Speaker 03:
Do you agree that would not be enough for a freelance journalist?

[00:31:15] Speaker 04:
I think your interpretation is not an unreasonable one.

[00:31:19] Speaker 04:
However, that example is not

[00:31:22] Speaker 04:
is not dispositive of the broader interpretation of the alternative media language that precedes it.

[00:31:28] Speaker 04:
So if we're taking a look at the language of the statute itself, the prior sentence identifies alternative media, of which one example is provided, the freelance journalist.

[00:31:39] Speaker 04:
Cause of action isn't alleging or arguing that it's a freelance journalist.

[00:31:43] Speaker 03:
I don't know whether you're right about that.

[00:31:44] Speaker 03:
I think your argument would be stronger if you said the freelance journalist is not an example of alternative media.

[00:31:49] Speaker 03:
It's just a separate thing, and we're not in that category.

[00:31:52] Speaker 03:
We're in the alternative media category.

[00:31:54] Speaker 03:
Because this seems like it puts a limit.

[00:31:56] Speaker 04:
That's also perfectly plausible.

[00:31:57] Speaker 03:
It's better for you.

[00:31:59] Speaker 03:
I'm not saying it's right, but it does seem to be.

[00:32:01] Speaker 06:
Freelance journalists were around long before the alternative media.

[00:32:04] Speaker 06:
There's nothing new about freelance journalists that has nothing to do with change and dissemination.

[00:32:10] Speaker 04:
Identify an excellent point because the Federal Trade Commission's 2014 regulation does not specifically state alternative media, but just talks about a freelance journalist as an example.

[00:32:24] Speaker 04:
So I think that's an excellent opportunity for this Court to consider these as two separate arguments and two separate bases upon which cause of action could satisfy.

[00:32:35] Speaker 06:
I want to go back just for a moment to the adverb question significantly.

[00:32:40] Speaker 06:
Your discussion with the chief, and I'm not following you or him, but that concerns the audience.

[00:32:47] Speaker 06:
Does the adverb also apply in itself to the content?

[00:32:51] Speaker 06:
That is to say, does it have to significantly contribute to the understanding in the sense that it does something significant with respect to what the knowledge is without respect to how many are in the audience?

[00:33:05] Speaker 06:
I think so.

[00:33:06] Speaker 04:
You're referencing prong four of the public interest waiver, or are you talking?

[00:33:13] Speaker 06:
Yeah, the use of the word significantly on the understanding.

[00:33:16] Speaker 04:
So this would be the public interest waiver, which would be separate provision under the statute of part three.

[00:33:23] Speaker 04:
Well, you know, this court has opined, you know, in judicial watch versus the Department of Justice, the 2004 opinion, I know public interest fee waiver rule and, you know, analogous fee waiver rule

[00:33:35] Speaker 04:
This is, I think, important that the significance of the understanding, the likely contribution, I think goes to the content itself.

[00:33:53] Speaker 06:
quantum or nature of the understanding has been enhanced by the release?

[00:33:57] Speaker 04:
Correct.

[00:33:59] Speaker 04:
And I think that the nature of the request itself and the explanation of why the request is being made is perfectly illustrative that that would occur.

[00:34:07] Speaker 04:
And specifically,

[00:34:09] Speaker 04:
It sort of ties in somewhat with part one of the public interest test, which says, the subject matter of the request and information concerns the operations activities of the federal government.

[00:34:21] Speaker 04:
And two, the disclosure is likely to contribute to an understanding.

[00:34:25] Speaker 04:
So the contribution to the understanding is really part two, which the district court properly viewed, and this court should as well, is satisfied, at least with requests one and two, third being moved.

[00:34:39] Speaker 03:
So we still have the word significantly.

[00:34:43] Speaker 03:
You've left that out of your analysis so far.

[00:34:45] Speaker 03:
You've got part one and part two, but we have the word significantly.

[00:34:49] Speaker 04:
I think significantly goes to the public understanding itself.

[00:34:54] Speaker 04:
The nature of the understanding that would be conveyed with the material that is then made public.

[00:35:02] Speaker 03:
But not how big the audience is.

[00:35:05] Speaker 03:
So imagine that this provided a very significant under, well, we have the word public still, so.

[00:35:15] Speaker 03:
somehow this has to mean for the public.

[00:35:17] Speaker 03:
You couldn't just email it to your friend, and that would greatly enhance your friend's understanding of the FTC's operations, but nobody else's, right?

[00:35:26] Speaker 04:
Correct.

[00:35:26] Speaker 04:
We get into that slippery slope of an audience of one.

[00:35:30] Speaker 04:
However, Cause of Action specifically stated the nature of the reports that it was going to create.

[00:35:36] Speaker 04:
And even the titles themselves and the language preceding those titles, why this is important, why cause of action is concerned, on behalf of the public, as a public interest entity, certainly satisfies part four of 552A4A3.

[00:35:54] Speaker 03:
I take it if we decided the news media, we would not be done.

[00:35:58] Speaker 03:
We'd still have to go on to decide the public interest.

[00:36:01] Speaker 04:
Correct.

[00:36:01] Speaker 04:
To the extent that the court does review de novo, the public interest is a fee waiver, and a fee reduction is a separate and less complete form of relief.

[00:36:13] Speaker 04:
However, it can be an independent basis of relief in the affirmative.

[00:36:18] Speaker 04:
And this is also to the extent that the court can certainly elect or not elect to remand with instructions.

[00:36:24] Speaker 04:
They can remand with instructions on the proper interpretation of these standards to the district court.

[00:36:31] Speaker 04:
Thank you very much.

[00:36:43] Speaker 02:
May it please the Court, Katie Townsend.

[00:36:45] Speaker 02:
I'm counsel for Amicus, the Reporters Committee for Freedom of the Press.

[00:36:49] Speaker 02:
We appreciate the opportunity to speak before you today, Your Honors, and I will utilize the brief time I have to stress how vital it is that FOIA's representative of the news media fee reduction category be interpreted consistently, broadly, and in conformity with congressional intent.

[00:37:07] Speaker 02:
Chief Judge Garland is absolutely correct to say that the standard of review is de novo.

[00:37:12] Speaker 02:
And so in some sense, all that matters is what this court determines today on review.

[00:37:17] Speaker 02:
However, as we detailed in the brief we submitted alongside and along with the Washington Post and PR and six other media organizations, it is critical that district courts interpret

[00:37:33] Speaker 02:
interpret the, apply the correct standard when determining whether a FOIA requester is a representative of the news media and that they utilize the post-2007 statutory language as the touchstone.

[00:37:45] Speaker 03:
Okay, I don't think anybody disagrees with that on either side or either of the bench or of the tables.

[00:37:51] Speaker 03:
The question is what are those standards?

[00:37:55] Speaker 03:
So what do you think

[00:37:57] Speaker 03:
Do you agree?

[00:37:59] Speaker 03:
What do you think using editorial skills to turn raw materials into distinct work means?

[00:38:05] Speaker 03:
And what do you think distributes that work to an audience means?

[00:38:09] Speaker 02:
So we'll start with the editorial skills.

[00:38:11] Speaker 02:
And I don't mean to focus so much on what the district court determined, but I think it's a good example.

[00:38:17] Speaker 02:
The district court, for example, pointed to or pulled out language from National Security Archive where it indicated that in order to demonstrate that you've exercised that tutorial skills,

[00:38:27] Speaker 02:
You need to be pulling information from a range of sources.

[00:38:31] Speaker 03:
We had the same discussion with other counsel.

[00:38:32] Speaker 03:
We know what's wrong with what the district court is.

[00:38:34] Speaker 03:
We're trying to figure out what's the right way to describe the test.

[00:38:39] Speaker 03:
At the end of other counsel's argument, he said, well, you could remand to the district court with what is a correct.

[00:38:47] Speaker 03:
So what is the correct view of what it means to turn raw materials into a distinct work?

[00:38:55] Speaker 02:
editorial skills, and this court has said in EPIC and in National Security Archive that the editorial skills can include analyzing and synthesizing information from one source.

[00:39:07] Speaker 02:
It can

[00:39:08] Speaker 02:
You know, I'd point this court to its statement, albeit addictive, in National Security Archive that surely when a newspaper publisher such as the New York Times brings out the Pentagon papers in the form of a paperback book, adding perhaps an introduction and an index, it is acting as a representative of the news media.

[00:39:24] Speaker 03:
But just doing it alone.

[00:39:25] Speaker 03:
I mean, the New York Times is a

[00:39:27] Speaker 03:
easier case because we're not only dealing with one item.

[00:39:31] Speaker 03:
They may have some editorial conduct and some other editorial content and non-editorial content and the issue isn't what you're going to do with a particular FOIA request but whether you are a news media overall.

[00:39:43] Speaker 03:
So we have to look at what this particular entity has done

[00:39:48] Speaker 03:
or plans to do.

[00:39:49] Speaker 03:
I think you would agree if all they plan to do is put the FOIA, the fruits of the FOIA request on the web with no comment, that wouldn't be good enough, right?

[00:40:00] Speaker 02:
I think the record indicates that

[00:40:03] Speaker 02:
of action certainly had a publication plan of the type the National Security Archive anticipated and would utilize its editorial skills in selecting the documents responsive to the FOIA requests that were of interest to its audience, certainly selecting newsworthy material or determining what's newsworthy.

[00:40:20] Speaker 02:
for a particular audience can be an exercise of editorial skill.

[00:40:23] Speaker 03:
So that would mean selecting them in the form of a FOIA request would alone be enough.

[00:40:29] Speaker 03:
That is, if they issued, obviously they would apply some skill to their request and then they said we're going to dump all of it on our website.

[00:40:37] Speaker 03:
Would that be enough?

[00:40:38] Speaker 02:
I misspoke if that's what I implied.

[00:40:40] Speaker 02:
No, Your Honor.

[00:40:41] Speaker 02:
I think utilizing the editorial skills and selecting documents that are provided in response.

[00:40:47] Speaker 02:
So selecting documents from that raw material you receive in response, highlighting what might be important, might be newsworthy out of those documents, putting those documents in context for an audience, tying them to a larger page.

[00:41:00] Speaker 02:
Okay.

[00:41:00] Speaker 03:
Now what does the audience mean?

[00:41:01] Speaker 03:
This is the word we're having a lot of trouble with, as you can see.

[00:41:04] Speaker 02:
Frankly, it is a difficult question, and I think part of the reason it might be a difficult question is because today, in this sort of new media environment that we're all living in, this sort of active, passive distinction that we've been able to focus on in the past, which is sort of this affirmative intent to publish, or this affirmative actions to publish,

[00:41:24] Speaker 02:
it becomes, it frankly does become more muddy because you can have a website, you can disseminate, you can publish things on a website and that may, you might be able to characterize that potentially as sort of passive in the sense that the audience comes to you, you go, the audience comes to you.

[00:41:43] Speaker 03:
Regardless of whether it's passive or aggressive.

[00:41:46] Speaker 03:
with the word distributes suggests somebody at least has to read it, right?

[00:41:52] Speaker 03:
So even if we would agree that you can distribute by putting it on your website and having people come, you would agree that a website that has one hit and nothing else wouldn't be distributing to an audience, right?

[00:42:06] Speaker 02:
The one point of caution I will say with respect to a numerosity requirement, and I understand Chief Judge's concern,

[00:42:13] Speaker 02:
We don't want to sort of open up this news media request or category so broadly to make it so anyone with a Facebook page can claim to be a member of the news media.

[00:42:24] Speaker 02:
I do understand that concern.

[00:42:26] Speaker 03:
Do you agree with that?

[00:42:27] Speaker 03:
Do you agree that anyone with a Facebook page that's not enough to be a member of the news media?

[00:42:33] Speaker 02:
I agree that's not enough.

[00:42:35] Speaker 02:
I would also say, however... What if I have a lot of friends?

[00:42:38] Speaker 03:
I mean really, let's say, I don't know, just pick somebody out of the audience there and they have a Facebook page and they have a lot of friends and they say I'm going to request these documents, I'm going to put them on my Facebook page.

[00:42:55] Speaker 02:
Well, I agree that Congress anticipated that Facebook and other forms of social media could be the mechanism of dissemination that's utilized.

[00:43:04] Speaker 02:
But you still have to meet all the other prongs of the category in order to qualify.

[00:43:10] Speaker 02:
for news media requesters' status.

[00:43:12] Speaker 02:
So it's not that everyone with a Facebook page follows us.

[00:43:15] Speaker 03:
Because they'd have to use editorial skills, et cetera.

[00:43:18] Speaker 02:
Precisely.

[00:43:19] Speaker 02:
All right.

[00:43:19] Speaker 02:
But what about how many?

[00:43:20] Speaker 03:
I appreciate that you don't want us to quantify, but we all agree one's not enough.

[00:43:27] Speaker 03:
What words should we use for describe?

[00:43:30] Speaker 03:
If we're going to remand with some words, what words would we use?

[00:43:34] Speaker 02:
And I think maybe the best distinction is the distinction that was drawn in National Security Archive between the private repository, the private library, and the sort of public dissemination, the public availability.

[00:43:48] Speaker 02:
I mean, I think if you are taking material that comes from FOIA requests and you're exercising editorial skills, and perhaps all you are doing is blogging about it, posting it on your website, that is a growing source of news for a large number of Americans.

[00:44:06] Speaker 02:
And I think that if you're doing that, you should, even if

[00:44:11] Speaker 02:
three people or a number of people whom you can't prove what number of people are reading your blogs.

[00:44:17] Speaker 02:
You should be entitled because you have that publication plan, that intent and ability to disseminate your work.

[00:44:24] Speaker 02:
You should be entitled to the news media request or status.

[00:44:27] Speaker 02:
The one caution I will say about the numerosity requirement is that

[00:44:32] Speaker 02:
It's important, and I think Congress recognized this when it enacted the amendments in the Open Government Act of 2007, it's important to ensure that there's room for startups, that there's room for the person who is a freelance journalist who may not have a history, a publication history that he or she can point to.

[00:44:53] Speaker 03:
What do you do with the language about, if that's the case with respect to freelance journalists, why do they, why did Congress seem to be somewhat restrictive?

[00:45:04] Speaker 03:
So, a freelance journalist shall be regarded as working for a news media entity if the journalist can demonstrate a solid basis for expecting publication with that entity, for example, contracts.

[00:45:21] Speaker 03:
So the mere intent, would that be enough?

[00:45:25] Speaker 03:
Or the mere hope, would that be enough?

[00:45:27] Speaker 02:
I think a publication plan, similar to that that was articulated by National Security Archive in that case, a plan for disseminating their work would be sufficient.

[00:45:36] Speaker 02:
I don't necessarily read this, and I don't think it's intended to be exclusive, that a freelance journalist only qualifies for news media requester status if they're affiliated with an entity.

[00:45:46] Speaker 02:
In fact, the legislative history indicates

[00:45:51] Speaker 02:
It was Representative Clay, who first introduced the amendment in the House, indicated that the agency should not deny a request for status solely on the basis of the absence of institutional associations of the requester.

[00:46:05] Speaker 02:
So if a freelance journalist states, I'm going to attempt to have my work published by another entity, perhaps if I can't, I will self-publish this piece of work on my own blog, on the internet,

[00:46:20] Speaker 02:
That should qualify.

[00:46:21] Speaker 02:
And to be clear, it's a low bar.

[00:46:24] Speaker 02:
And it should be a low bar, because Congress intended it to be a low bar.

[00:46:28] Speaker 02:
The goal of FOIA and the goal of these provisions is more and more a provision.

[00:46:32] Speaker 06:
Nonetheless, it has to be a bar.

[00:46:34] Speaker 06:
Don't you just say everybody who wants to come in here and get the fee waiver can just come in and ask them to get the fee waiver.

[00:46:41] Speaker 06:
And I understand why you're having trouble.

[00:46:43] Speaker 06:
But we're also having trouble trying to figure out what the standard is.

[00:46:47] Speaker 06:
that we would put in the order that we would send back to the district court and put in the book for president as to how we would determine if we meet the audience requirements, the significant requirements.

[00:46:59] Speaker 06:
Can you add anything more to it?

[00:47:03] Speaker 03:
Do you agree that some track record is a relevant factor, not dispositive factor, but a relevant factor?

[00:47:09] Speaker 02:
I think it can be yes, Your Honor, and I think Congress intended for – and specifically said that a publication record can be – the government may also consider the past publication record of a requester in making such a determination.

[00:47:24] Speaker 03:
Okay.

[00:47:24] Speaker 03:
Further questions?

[00:47:25] Speaker 03:
Thank you.

[00:47:26] Speaker 03:
We'll hear from the government.

[00:47:41] Speaker 05:
May it please the Court, my name is Peter Mayer, Council of the United States Government, here of the Federal Trade Commission.

[00:47:47] Speaker 05:
With respect to the denial of the fee waiver for a representative of the media status, I'd like to begin by making one point.

[00:47:56] Speaker 05:
And that is the FTC only rejected Cause of Action's application for that representative media status waiver with respect to request number one and request number two that they made to the agency.

[00:48:13] Speaker 05:
The material that counsel for cause of action, however, cited in his presentation that he believed demonstrated why his client was entitled to the fee waiver was only submitted by cause of action with respect to the third FOIA request.

[00:48:31] Speaker 05:
That's why the portion of the appendix that he cites at 161 is a portion of a letter that cause of action wrote to the agency on April 4, 2012

[00:48:42] Speaker 05:
By that time, the agency had already taken final action in request number one and request number two.

[00:48:49] Speaker 05:
And those were the only two instances where it rendered a decision on the merits, rejecting cause of actions claim to status as a representative of the media.

[00:49:01] Speaker 05:
With respect to number three,

[00:49:03] Speaker 05:
The agency never reached the merits of that decision, because it found that to render that decision would be an advisory opinion, based on the discussion that counsel had with Judge Santel.

[00:49:14] Speaker 05:
Say that again?

[00:49:15] Speaker 05:
Who said it would be an advisory opinion?

[00:49:17] Speaker 03:
I didn't know the Constitution applied to the FTC under Article 3.

[00:49:22] Speaker 05:
They used the term moot to Judge Garland as a shorthand for the advisory opinion.

[00:49:29] Speaker 05:
That is, to determine whether or not the cause of action was entitled to status as a representative of the media would not make any practical difference because they were not being billed any fees.

[00:49:42] Speaker 03:
Well, with respect to the first, we'll talk about this a lot, but with respect to the first

[00:49:49] Speaker 03:
claim request of the third request.

[00:49:54] Speaker 03:
They didn't get those documents, right?

[00:49:57] Speaker 05:
No, the reason was because the agency had already provided them to the requester with respect to the first FOIA request.

[00:50:05] Speaker 05:
All of the documents in the first category?

[00:50:07] Speaker 05:
No, they gave them 100 documents and they determined that the request was duplicative.

[00:50:12] Speaker 05:
Let me make one point about the duplication, because my opponent made a comment about this.

[00:50:18] Speaker 05:
He claimed that the item one of the third request was not the same.

[00:50:23] Speaker 03:
I understand your argument.

[00:50:25] Speaker 03:
Assume it was the same.

[00:50:27] Speaker 03:
But they didn't get all of those documents with a fee waiver in the past, right?

[00:50:33] Speaker 05:
They didn't.

[00:50:33] Speaker 05:
Let me explain why.

[00:50:35] Speaker 05:
What happened with respect to the first request

[00:50:39] Speaker 05:
was the FTC provided 100 pages to Cause of Action and said, here's 100 pages.

[00:50:45] Speaker 05:
We are rejecting your request for a public interest waiver.

[00:50:49] Speaker 05:
And that, in effect, stopped the music.

[00:50:52] Speaker 05:
So there was no further production.

[00:50:55] Speaker 05:
I agree with the implication that the plaintiff's counsel drew.

[00:50:58] Speaker 03:
There were more than 100 pages responsive.

[00:51:01] Speaker 03:
So now they're applying for it again.

[00:51:05] Speaker 03:
and now they provide more information than they provided the first time, why isn't that in the administrative record in a request for the fee waiver?

[00:51:17] Speaker 05:
It is a request for the fee waiver, but the problem is that the disposition

[00:51:26] Speaker 05:
was not erroneous in and of itself.

[00:51:27] Speaker 03:
The only... It wasn't erroneous the first time maybe, assumed for the moment, and maybe not the second time, but the third time when they provided more information, assuming it was more information, than why it

[00:51:43] Speaker 03:
It's not moot until the court considers whether that additional information is helpful or not.

[00:51:48] Speaker 05:
Well, there's no need to consider the additional information if the agency is right that there are no more documents.

[00:51:55] Speaker 05:
So if the agency made an error... No more than 100 documents.

[00:51:59] Speaker 05:
That's right.

[00:52:00] Speaker 05:
If the agency made an error here, Judge Garland...

[00:52:03] Speaker 05:
It was with respect to the determination that there were no more responsive documents.

[00:52:08] Speaker 03:
No, no.

[00:52:09] Speaker 03:
The question is whether there are no more responsive documents that haven't been provided.

[00:52:12] Speaker 03:
Right.

[00:52:12] Speaker 03:
They gave 100.

[00:52:13] Speaker 03:
Not that they're... I'm not on the issue of whether we're talking about blogs or not.

[00:52:18] Speaker 03:
Just forget about that for a moment.

[00:52:19] Speaker 03:
I understand.

[00:52:20] Speaker 03:
I'm on the question of whether there might be 200 more documents for which they have not yet gotten because they weren't willing to pay the fees and that they want a fee waiver for.

[00:52:29] Speaker 03:
The FTC hasn't really taken a position about that, has it?

[00:52:32] Speaker 05:
No, it hasn't.

[00:52:33] Speaker 03:
And it certainly hasn't said there aren't 200 more documents.

[00:52:35] Speaker 05:
It has not taken that position.

[00:52:37] Speaker 05:
So what I'm saying is this, if the agency made a mistake, it was in determining that

[00:52:44] Speaker 05:
The request for the fee waiver was moot because there were no additional documents.

[00:52:51] Speaker 05:
That is a failure with respect to the underlying FOIA request.

[00:52:57] Speaker 05:
That is that they may have made a mistake in determining that they didn't have to process additional documents.

[00:53:02] Speaker 05:
which would have put them over the 100 number.

[00:53:04] Speaker 03:
Yes, and then therefore the district court may have made a mistake in not asking whether the fee waiver issue with respect to that first category is still alive or not.

[00:53:13] Speaker 03:
Obviously if all the documents in the first category have been provided, and all the documents in the second and third are provided for free, then there is no fee waiver issue.

[00:53:24] Speaker 03:
I can't imagine that they'd be complaining about that.

[00:53:27] Speaker 03:
The problem is they think there are

[00:53:30] Speaker 03:
documents in the first category that they didn't get because it stopped before.

[00:53:35] Speaker 05:
I think what the agency did here was arguably correct, but I can see that this is the most difficult question for the government in this case.

[00:53:41] Speaker 03:
So assume for the moment that we can consider the agency record as of the end of April of 2012.

[00:53:50] Speaker 03:
With respect to request three.

[00:53:53] Speaker 03:
With respect to all, because respect three repeats, as you point out in number one, the previous request.

[00:54:00] Speaker 03:
So I'm on the question of whether they're a news media or not, or whether they have public interest waiver or not.

[00:54:07] Speaker 03:
And I'm asking you to consider all of their submissions by that date on that question.

[00:54:15] Speaker 03:
Now, if what you're going to tell me is that maybe if that's true, then the district court should think about this again, then this will be a very short oral argument.

[00:54:26] Speaker 03:
But if you're going to tell me that even that's not enough, then we want to talk about what's needed.

[00:54:30] Speaker 05:
I'm happy to talk about what's needed, Chief Judge Garland, but we're not in a position to say that this isn't enough because it is a substantially greater showing that they made with requests 1 and 2.

[00:54:42] Speaker 05:
After all, with requests to 1 and 2, it was pretty much bare bones.

[00:54:47] Speaker 03:
With respect to one, it seems bare bones.

[00:54:50] Speaker 03:
January 27, 2012.

[00:54:51] Speaker 03:
What's that letter?

[00:54:53] Speaker 03:
That's relating to the second FOIA request, Judge Garment.

[00:54:57] Speaker 03:
To the second FOIA?

[00:54:58] Speaker 03:
That's right.

[00:54:59] Speaker 03:
So that one has, maybe I'm wrong, but looking at 153 to 154, it's pretty much the same as the third, except it doesn't mention those two specific reports.

[00:55:11] Speaker 03:
Am I wrong or is there, is it different in some other way?

[00:55:14] Speaker 03:
I think the two significant reports, the two reports that they plan to editorialize may change the ball game and I think that's what you're acknowledging.

[00:55:22] Speaker 03:
But leaving that aside, isn't a lot of the stuff

[00:55:27] Speaker 03:
already, other than that, say in footnote seven at A154?

[00:55:33] Speaker 05:
Well, there's a lot to consider there.

[00:55:37] Speaker 05:
Let me first break down what I see is the difference between the proof with respect to number two and number three.

[00:55:45] Speaker 05:
That would be helpful.

[00:55:46] Speaker 05:
Now, with respect to number two,

[00:55:50] Speaker 05:
They had to show not only the exercise of editorial skill, but the dissemination to an audience.

[00:55:57] Speaker 05:
Look at page 154 with respect to request number two.

[00:56:02] Speaker 05:
They'll analyze the information, use professional editorial skills to turn raw materials into a distinct work, and share the resulting analysis with the public, either through memoranda, reports, or press releases.

[00:56:19] Speaker 05:
saying you're going to use professional editorial skills to turn raw materials into distinct work is far less than they say on page 161.

[00:56:29] Speaker 05:
There, they are naming the reports, right?

[00:56:31] Speaker 05:
And they're telling you how the reports are.

[00:56:33] Speaker 03:
161.

[00:56:33] Speaker 03:
I also have this at A176 through 181.

[00:56:36] Speaker 03:
Is it the same?

[00:56:37] Speaker 05:
I'm sorry.

[00:56:37] Speaker 05:
It's 181.

[00:56:38] Speaker 03:
You're off.

[00:56:39] Speaker 03:
Yeah.

[00:56:39] Speaker ?:
OK.

[00:56:39] Speaker 05:
Now there they're talking about two specific reports, right?

[00:56:43] Speaker 05:
And there they're talking about when those things are going to be published.

[00:56:47] Speaker 05:
And they've identified the titles of those reports.

[00:56:50] Speaker 05:
I think that's a far more substantive showing than you have with respect to number two.

[00:56:56] Speaker 03:
So I looked at some hypotheticals.

[00:56:58] Speaker 03:
So on the question of what they pass on to the

[00:57:02] Speaker 03:
say the Washington Times, for example.

[00:57:04] Speaker 03:
If they either by an interview with the Washington Times after reading some document or in a press release to the Washington Times pointed out what they regard as the highlights and the errors in what the government did,

[00:57:18] Speaker 03:
Would that not be an example of editorial, of use of editorial skills to create a distinction?

[00:57:26] Speaker 05:
Yes, it would.

[00:57:26] Speaker 05:
But let me contrast that with what we were talking about on page 154.

[00:57:31] Speaker 05:
We have this long footnote seven.

[00:57:33] Speaker 05:
Now, there is a shorter version of that with respect to request number one, which only mentions four articles.

[00:57:41] Speaker 05:
It's very difficult to tell.

[00:57:43] Speaker 05:
what these articles are all about.

[00:57:46] Speaker 05:
Because I think all they really are are news articles that somehow mention cause of action somewhere in the article.

[00:57:54] Speaker 05:
Now, did the district court look at those articles?

[00:57:56] Speaker 05:
There's no indication that the FDC read those articles thoroughly.

[00:58:00] Speaker 05:
Well, that may be even worse then.

[00:58:02] Speaker 05:
Well, it depends on who the burden is.

[00:58:04] Speaker 03:
I think if the... Well, if you produce a list of articles which you say reflects your editorial content,

[00:58:13] Speaker 03:
Why doesn't that meet your burden if the government doesn't look at those articles?

[00:58:17] Speaker 03:
So for example, we just looked up the Washington Times article that they're referring to.

[00:58:22] Speaker 03:
And it includes quotations from Dan Epstein, Cause of Action's editorial executive editor, which criticizes the government's federal audit on the affiliation between ACORN and ACOA.

[00:58:38] Speaker 03:
and particularly argues that the GAO made a mistake in favoring a dictionary definition over, I don't know, neighbor works accounting.

[00:58:49] Speaker 03:
I don't know what any of that means, but the point is they are criticizing, they got a document somehow, I assume by FOIA, they are criticizing it, and their criticism is picked up by Washington Times, which I think everyone will agree has an audience.

[00:59:03] Speaker 03:
However, that word is defined.

[00:59:04] Speaker 03:
So isn't it the obligation of the agency to look and see whether these articles actually do what they say?

[00:59:14] Speaker 03:
They represent them as being articles that reflect their distribution to an audience of editorialized work.

[00:59:22] Speaker 05:
Well, what footnote seven says, Your Honor, is that the history of disseminating its findings employ requests to the public via news media articles.

[00:59:32] Speaker 05:
It seems to me that given the fact that it is the requester who has the burden to satisfy the standard, whether it's a liberal standard or a high standard, they've got the obligation to provide some meat on the bones in terms of

[00:59:48] Speaker 05:
what that editorial content they're providing to a third party is.

[00:59:54] Speaker 05:
And I don't believe simply a listing of articles without any indication of what those articles say in terms of whether they're actually providing editorial content.

[01:00:03] Speaker 05:
I think that's a burden the applicant should bear and not be.

[01:00:07] Speaker 03:
All right, fair enough.

[01:00:08] Speaker 03:
But you're not disputing that if what they do with the FOIA material is

[01:00:14] Speaker 03:
to package it up in a press release that criticizes the government for what they've done, and then distribute it through the national media, you would agree that that satisfies the audience, distributing our work to an audience?

[01:00:28] Speaker 05:
I would.

[01:00:29] Speaker 05:
I think of it more in terms of the second component, Judge Garment, that is, whether they're at a higher editorial skill.

[01:00:35] Speaker 03:
well what about uh... and distributes that work to an audience can you distribute a work to an audience by sending your press releases to uh... newspaper which in turn distributes to an audience well i was with you and uh... except for the word press releases it will depend on what your press release says yeah i'm talking about a press release of the kind i just described yes now if it's a press release however that just talked about some other things this organization is doing i get it i'm saying assuming that it is one that

[01:01:04] Speaker 03:
applies editorial skills in the sense that it criticizes the government or applauds the government or

[01:01:11] Speaker 03:
make suggestions or anything else, and its method of distributing to an audience is by sending it out to newspapers, which have big audiences.

[01:01:19] Speaker 03:
That's okay.

[01:01:20] Speaker 05:
I think so.

[01:01:20] Speaker 05:
Let me say, I'm only hesitating because it seems to me that the legislative history of this provision suggests that in order to qualify as a representative of the news media, you would do all three of these things yourself, that you would be the distributor.

[01:01:38] Speaker 05:
You're not doing the distribution yourself.

[01:01:41] Speaker 05:
You are giving it to a third party.

[01:01:43] Speaker 05:
And that's one of the things that the district would say.

[01:01:45] Speaker 03:
So the Washington Post, which distributes to me on my doorstep through an independent contractor who they insist is not an employee of the Washington Post, is not distributing to me?

[01:01:57] Speaker 05:
No, I'm not saying that.

[01:01:58] Speaker 03:
Okay.

[01:01:59] Speaker 03:
So that's the way they get it to me.

[01:02:01] Speaker 03:
Assume for the moment that I'm a lot right and don't look on the web.

[01:02:06] Speaker 03:
But in the good old days, before there was a web, they certainly would have been considered a media outlet, even the news media, even though they distribute through independent contractors.

[01:02:14] Speaker 05:
The point that I'm making is slightly different.

[01:02:16] Speaker 05:
It's one that the district court cited, Chief Judge Grana.

[01:02:20] Speaker 05:
And that is, it's not enough to simply say, we have media contacts.

[01:02:25] Speaker 05:
What you do have to show is that your media contacts will get your processed information to an audience.

[01:02:33] Speaker 03:
I agree.

[01:02:33] Speaker 03:
So that really depends in part on looking at these various articles, right?

[01:02:38] Speaker 03:
And seeing whether they do what we've been talking about, correct?

[01:02:41] Speaker 03:
That's right.

[01:02:43] Speaker 03:
All right.

[01:02:43] Speaker 03:
Let me just see what else.

[01:02:47] Speaker 03:
With respect to the...

[01:02:49] Speaker 03:
public interest question, what do you think significantly

[01:02:54] Speaker 03:
means in that content?

[01:02:55] Speaker 03:
I'll tell you there's not – well, first of all, do you dispute any of the other elements?

[01:03:00] Speaker 03:
Do you think that – do you dispute that this supplies – provides public understanding of the operations?

[01:03:05] Speaker 05:
We're talking about the public interest waiver now.

[01:03:08] Speaker 03:
Yes, yes.

[01:03:09] Speaker 03:
Is there – is the real issue here what significantly means, or is there something else?

[01:03:13] Speaker 05:
No, I think that's – and I think in response to the questions you posed for public counsel, I think as a general proposition

[01:03:20] Speaker 05:
It is the same inquiry as the audience inquiry with respect to news media.

[01:03:27] Speaker 05:
The only difference I see is this.

[01:03:30] Speaker 05:
With respect to the news media inquiry, the audience analysis, it seems to me, has to do with what this organization does systematically.

[01:03:41] Speaker 05:
With respect to the public interest exception, as I read it,

[01:03:45] Speaker 05:
That exception is based on the dissemination of a particular FOIA request.

[01:03:51] Speaker 05:
And so an organization could meet the public interest significant requirement if it showed in a particular instance that it got the information to the right segment of society, whether or not it ever did again.

[01:04:06] Speaker 03:
I think it's how often you do it.

[01:04:08] Speaker 03:
That's interesting.

[01:04:09] Speaker 03:
So you're focusing... I couldn't get him to repeat that.

[01:04:12] Speaker 06:
Oh, I'm sorry.

[01:04:13] Speaker 06:
Not because I didn't agree with it.

[01:04:14] Speaker 06:
I didn't quite understand what you said.

[01:04:16] Speaker 05:
The differences I see at Judge Santel with respect to this public interest, significant impact or significant improvement of understanding is this.

[01:04:30] Speaker 05:
that in terms of the representative of the media, they have to make a showing that they do this on some sort of regular basis.

[01:04:39] Speaker 05:
It's not a one-shot deal.

[01:04:40] Speaker 05:
But with respect to the public interest exception, that goes to the particular FOIA request.

[01:04:47] Speaker 05:
And there they have to show both quantitatively and substantively

[01:04:52] Speaker 05:
that that dissemination of information will increase public understanding to some segment of the public.

[01:04:59] Speaker 05:
Will in fact do so, or simply will potentially do so?

[01:05:02] Speaker 06:
I think will in fact do so.

[01:05:03] Speaker 06:
How can they do that until they get the information?

[01:05:07] Speaker 06:
If at the time they're making the application, they don't know what they're going to find out.

[01:05:13] Speaker 06:
It may be that what they find out isn't nearly as rich as what they expected it to be, so it may not, in fact, significantly contribute.

[01:05:23] Speaker 03:
But it only has to say likely, right?

[01:05:24] Speaker 03:
We have the word likely in the statute.

[01:05:27] Speaker 05:
Well, I was going to focus on another aspect of that, and that is the first aspect of the public interest exception, I thought, made some representation.

[01:05:37] Speaker 05:
Well, it's also under the representative of the media.

[01:05:42] Speaker 05:
That is, I think the first aspect of the test for either one, which isn't in controversy here,

[01:05:49] Speaker 05:
suggest that this information has some sort of potential news value.

[01:05:55] Speaker 05:
I think that carries with it, Judge Sentel, a certain inference of a likelihood that there's going to be a group that either creates an audience

[01:06:05] Speaker 05:
or a group that satisfies the increased public understanding?

[01:06:10] Speaker 03:
The definition of news is in a separate section, so we have to rely only on part three.

[01:06:15] Speaker 03:
But it has the word likely in it, so I don't see why this is an issue really.

[01:06:19] Speaker 03:
It expressly includes the question word because it is likely to contribute significantly.

[01:06:23] Speaker 03:
So you're right, it has to be likely, and you're wrong.

[01:06:28] Speaker 03:
It's enough if it's likely.

[01:06:30] Speaker 03:
I agree.

[01:06:31] Speaker 03:
OK.

[01:06:31] Speaker 03:
So let me just ask on the point that you made.

[01:06:33] Speaker 03:
I have two questions about it.

[01:06:38] Speaker 03:
When you say the news has to be regular, now that requirement of regular is not in the statute.

[01:06:44] Speaker 03:
But there is a requirement that it uses and distributes to suggest this maybe isn't a one-shot deal.

[01:06:50] Speaker 03:
I'm with you on that.

[01:06:52] Speaker 03:
But that also suggests that this one, for the news media purpose, doesn't have to be of great public interest.

[01:06:58] Speaker 03:
That is, the request that they're making now doesn't have to be as long as they generally do that, or they've done that in other circumstances.

[01:07:06] Speaker 03:
Is that right?

[01:07:09] Speaker 03:
You were arguing that under part three, the particular request has to be of significant public interest.

[01:07:15] Speaker 03:
And that's different from the news media.

[01:07:17] Speaker 03:
And I'm going to turn it around on you.

[01:07:18] Speaker 03:
Doesn't it also mean that the particular request doesn't have to be of significant interest, as long as, let's say it's the New York Times, for example, just to pick yet another newspaper, since we've now named three.

[01:07:30] Speaker 03:
And they make a FOIA request for something that's not very important.

[01:07:34] Speaker 03:
But there's no doubt that they are a

[01:07:37] Speaker 03:
represented the news media.

[01:07:40] Speaker 03:
They don't have to prove anything about that particular request, do they, to fit within the news media element?

[01:07:47] Speaker 05:
As I recall in our brief, Your Honor, we took the position that there had to be some sort of nexus with the dissemination

[01:07:58] Speaker 05:
to an audience for news representative status of the information that was obtained through the FOIA request.

[01:08:07] Speaker 03:
Where did that come from in the statute?

[01:08:09] Speaker 05:
Well, I was about to say that's the position we took in our brief.

[01:08:14] Speaker 05:
But based on the question that you've posed, I'm not entirely convinced that that's correct.

[01:08:18] Speaker 06:
Aside from that, on page 23 of the brief, you seem to be taking the position that with respect to the material

[01:08:29] Speaker 06:
in the news media that the publication of a distinct work has to be established with respect to material requested here, as opposed to being their practice to create distinct works.

[01:08:42] Speaker 06:
Look at the last paragraph of page 23.

[01:08:45] Speaker 05:
The carryover paragraph that was sent out?

[01:08:47] Speaker 06:
COA also argues that the relevant question is whether the request is published as distinct works in general, not a distinct work from materials received in a given four-year request.

[01:08:57] Speaker 06:
You then take issue with it.

[01:08:59] Speaker 06:
It says it provides, however, no support for this proposition, which is directly contrary to the statutory language, that quote distinct work clothes quote, and that's necessarily the result of the particular four-year request at issue.

[01:09:12] Speaker 06:
Now that seems to be, and then you quote, uses his editorial skills to turn the raw material into distinct work.

[01:09:18] Speaker 06:
It seems to me a position that you have to make that show, and that doesn't seem to be, it isn't.

[01:09:23] Speaker 06:
You're taking a position that they have to make a showing that what they're requesting in this request is going to be part of a distinct work.

[01:09:30] Speaker 06:
That's right.

[01:09:31] Speaker 06:
Now, how can they do that until they know what the material revealed?

[01:09:36] Speaker 05:
Oh, and now I understand.

[01:09:37] Speaker 05:
I think what they have to show, Judge Sentel, and what they failed to show with requests one and two, is one, a question of format.

[01:09:46] Speaker 05:
But more important with respect to your question, what is the topic that they're going to address?

[01:09:52] Speaker 05:
You're absolutely right that they can't know what they're going to say until they get the responses to their FOIA request.

[01:10:01] Speaker 05:
But they ought to be able to come up with a hypothesis about the question that they're hoping to answer.

[01:10:06] Speaker 06:
And that was something... Didn't they do that here?

[01:10:07] Speaker 06:
Didn't they say what they wanted with it here?

[01:10:09] Speaker 06:
I mean, you can't make them tell their absolute purpose.

[01:10:14] Speaker 06:
Didn't they do enough here to let you know that they were exploring something with respect to how FTC gives out its consent data?

[01:10:22] Speaker 05:
I think they did that with respect to the third request.

[01:10:24] Speaker 05:
I don't think they did it with respect to requests one and two.

[01:10:27] Speaker 06:
If the third request is unmuted now by the process

[01:10:32] Speaker 06:
Yes.

[01:10:33] Speaker 06:
What does it matter whether they did it with respect to 1 and 2?

[01:10:36] Speaker 05:
You're right.

[01:10:36] Speaker 05:
I mean, for that matter, they could follow the... One thing that may have been lost in the discussion today is this, that the process for determining either a public interest exemption

[01:10:48] Speaker 05:
or a media exemption is a dynamic process, and that you have to reevaluate it each time.

[01:10:53] Speaker 05:
They could refile the same request now.

[01:10:55] Speaker 05:
There's no question that there'd be no mootness issue because it's happened so much later, we'd have to make a new search, and they'd be entitled to present all this information.

[01:11:04] Speaker 06:
But why can't we just rule on the third request if it's not moved?

[01:11:09] Speaker 06:
I'm not asking you to concede the move.

[01:11:11] Speaker 06:
If it's not moved, why can't we just rule on the third request and obviate the necessity of them making a fourth request?

[01:11:20] Speaker 05:
You could.

[01:11:24] Speaker 05:
Well, the last point that I wanted to make in response to your question, Judge Sintel, is this.

[01:11:29] Speaker 05:
Just because you have been denied media status at one point doesn't mean you can't acquire it later.

[01:11:35] Speaker 05:
And on the other hand, just because you have it at one point doesn't mean you have it in perpetuity.

[01:11:40] Speaker 05:
It always depends on the fact of the time you make your application.

[01:11:46] Speaker 07:
OK.

[01:11:47] Speaker 03:
All right.

[01:11:48] Speaker 03:
Well, how many other sides are there left?

[01:11:50] Speaker 03:
All right.

[01:11:51] Speaker 03:
Somebody?

[01:11:52] Speaker 03:
You're going to represent all of the people at that table now, right?

[01:11:55] Speaker 03:
Okay.

[01:12:03] Speaker 03:
You appear to have gotten a number of concessions from the government.

[01:12:06] Speaker 03:
I wouldn't say too much that might cause you to lose those concessions.

[01:12:11] Speaker 04:
I will try very much not to lose those concessions, but in particular to emphasize, you know, it's remarkable that the government just came up here and said that

[01:12:25] Speaker 04:
government agrees about the topic of what the cause of action is going to write on.

[01:12:30] Speaker 03:
I know you spent a lot of time on this question of whether the government agrees with you or not.

[01:12:34] Speaker 03:
I don't think the panel really cares about that question.

[01:12:37] Speaker 03:
The question is whether we think that it's significant either in the sense that Judge Shintel was talking about significant on the second matter, significant in the sense of significant public understanding or significant in the sense of quantum.

[01:12:53] Speaker 03:
I wouldn't worry about this question that depends on what a particular agency thinks of you.

[01:13:00] Speaker 03:
So I really only have one question for you, which is what about this burden of proof fishing?

[01:13:06] Speaker 03:
Why is it enough, assuming that these articles are, for example, as good as the Washington Times article, which I've found because I'm not a complete Luddite,

[01:13:17] Speaker 03:
Why didn't you have to tell the agency specifically, look, this is what these articles actually do.

[01:13:23] Speaker 03:
They actually take into consideration our editorialized content.

[01:13:28] Speaker 04:
Your Honor, the burden of proof is it's just what's within the administrative record.

[01:13:32] Speaker 04:
This court is reviewing the FOIA as part of the Administrative Procedure Act.

[01:13:37] Speaker 04:
It's codified in Title V.

[01:13:39] Speaker 04:
And even taking a look at the language of that footnote 7 on page 167.

[01:13:45] Speaker 03:
I'm right, though.

[01:13:46] Speaker 03:
The burden of proof is on the requester to show that they're entitled, right?

[01:13:50] Speaker 04:
Correct.

[01:13:50] Speaker 04:
And that was satisfied by the inclusion of these articles.

[01:13:54] Speaker 04:
And if I could reference you to just one of the titles of one of the articles, Accountability Group Seeks IRS Investigation of Acorn Affiliates.

[01:14:02] Speaker 04:
That's cause of action.

[01:14:04] Speaker 04:
That says it straightforward.

[01:14:06] Speaker 04:
And while Federal Trade Commission has enough effort and time to check Cause of Action's website, it doesn't follow simple links.

[01:14:13] Speaker 04:
Simple links in the FOIA request to confirm or deny the existence of the purported assertion that's tied to that footnote in the FOIA request.

[01:14:23] Speaker 06:
Did you furnish the article to the committee?

[01:14:28] Speaker 04:
Your honor, the paper copies were not furnished, but links were.

[01:14:32] Speaker 04:
They were furnished.

[01:14:33] Speaker 06:
We're in the electronic age.

[01:14:36] Speaker 06:
What were those links in?

[01:14:38] Speaker 06:
What we have here is a paper document.

[01:14:41] Speaker 04:
Correct.

[01:14:41] Speaker 06:
Was something sent electronically that gave them those links, or where did they get those links?

[01:14:48] Speaker 04:
So this letter was sent by email and U.S.

[01:14:51] Speaker 04:
mail.

[01:14:52] Speaker 04:
The links could have been typed in.

[01:14:54] Speaker 06:
Could have been or were.

[01:14:56] Speaker 06:
So they would have had to tap in and copy, or at least cut and paste, rather than having an actual link, right?

[01:15:03] Speaker 04:
Because it was sent electronically, it's very easy for any entity, especially the U.S.

[01:15:09] Speaker 04:
government with Adobe PDF, to OCR, optical character, recognize the text of a document that is sent to it.

[01:15:17] Speaker 06:
You didn't have an actual hyperlink there that they could click on.

[01:15:20] Speaker 04:
The hyperlink is written, but it's not blue.

[01:15:22] Speaker 04:
It's not an actual live hyperlink.

[01:15:24] Speaker 06:
But, but, but, but, but, but, but, but, but, but, but, but, but, but, but, but, but, but, but, but, but,

[01:15:51] Speaker 06:
It is a very strong word.

[01:15:53] Speaker 04:
Why is that absolute?

[01:15:54] Speaker 04:
Why is that?

[01:15:55] Speaker 04:
Because that citation itself is part of the administrative record and the burden of proof you're correct.

[01:16:02] Speaker 06:
If you have the burden of proof, why do they have to go get the content?

[01:16:05] Speaker 06:
Why don't you furnish them the content?

[01:16:08] Speaker 04:
The content was furnished via citation.

[01:16:11] Speaker 06:
The content and citation are two different things.

[01:16:13] Speaker 06:
You give them the citation.

[01:16:15] Speaker 06:
Why didn't you have to give them the content?

[01:16:17] Speaker 04:
because there is no positive law.

[01:16:19] Speaker 06:
Either by an attachment or by a paper cut.

[01:16:22] Speaker 04:
Your Honor, there is no positive law that requires it.

[01:16:25] Speaker 04:
There is no opinion in any court that I'm aware of that requires that, and especially construing FOIA, statutorily required, as broadly, that this should be liberally construed.

[01:16:37] Speaker 04:
This should be enough.

[01:16:39] Speaker 04:
Moreover, the burden of production, it's not about a persuasion of proof, it's just about a simple prima facie showing.

[01:16:48] Speaker 04:
Again, this is just a low initial burden.

[01:16:51] Speaker 03:
Could we pause on that, the citation with that proposition, that it's a burden of production?

[01:16:57] Speaker 03:
I'm not saying you're wrong, I just don't know.

[01:17:00] Speaker 04:
I'm not immediately aware of the burden.

[01:17:03] Speaker 03:
I mean, I think the word absolutely would work perfectly if this is only a burden of production question.

[01:17:09] Speaker 03:
It might be a little harder if it's a burden-approved question.

[01:17:11] Speaker 03:
I don't know what the answer is, but we'll find out.

[01:17:14] Speaker 04:
We will 20-J that.

[01:17:16] Speaker 03:
I think we can, using Westlaw, we can do the same.

[01:17:18] Speaker 03:
Thank you.

[01:17:19] Speaker 04:
Thank you, Your Honor.

[01:17:20] Speaker 03:
We'll take the matter under submission.

[01:17:25] Speaker 04:
The citation itself with regard to, I apologize.

[01:17:36] Speaker 04:
To establish a factual element is not the same as carrying a burden to prove the fact.

[01:17:40] Speaker 04:
So this is in the Daily Caller amicus brief, talks about this particularized burden.

[01:17:47] Speaker 04:
And that brief cites directive versus Greenwich Colliery's factual... That's a Supreme Court opinion.

[01:17:53] Speaker 03:
Correct.

[01:17:55] Speaker 03:
Yeah.

[01:17:55] Speaker 03:
But is that on the question of...

[01:17:57] Speaker 03:
Who bears the burden of being a requester?

[01:18:00] Speaker 03:
It's not.

[01:18:00] Speaker 04:
That's a... But it talks about the APA distinction between the burden of persuasion and the burden of production.

[01:18:07] Speaker 03:
There's definitely a difference.

[01:18:08] Speaker 03:
The question is which applies here.

[01:18:11] Speaker 03:
We know there's a difference.

[01:18:12] Speaker 03:
Look, I'm happy to have you do some work, and I see somebody from the Daily Caller waving in the back, so we can ask them.

[01:18:21] Speaker 03:
We'll file a separate amicus brief to provide you with the citations.

[01:18:24] Speaker 03:
If you can provide them to us, it's even better.

[01:18:27] Speaker 03:
And if the government thinks that the burden is different, you can tell us.

[01:18:31] Speaker 03:
I'm not saying this is in any way just positive, but it's worth knowing what the answer to this question is.