[00:00:01] Speaker 01: Case number 14 is 5279. [00:00:04] Speaker 01: Florent Baila, Appellant versus United States Department of Homeland Security, Office of the General Counsel. [00:00:10] Speaker 01: Mr. Cleveland for the Appellant. [00:00:12] Speaker 01: Mr. Addis Bonageau for the Appellate. [00:00:33] Speaker 07: Morning. [00:00:36] Speaker 03: Good morning. [00:00:36] Speaker 03: May it please the court, I am David Cleveland, counsel for Appellant Mr. Vialla. [00:00:40] Speaker 03: I'd like to reserve three minutes of my time for rebuttal. [00:00:43] Speaker 03: The means the. [00:00:45] Speaker 03: I think we can all agree on that. [00:00:48] Speaker 07: I'm sorry, what was that? [00:00:50] Speaker 03: The means the. [00:00:53] Speaker 03: Congress said the agency must give the reasons for its actions. [00:00:56] Speaker 03: This means the real reasons, not a blunderbuss expectoration of possibilities. [00:01:01] Speaker 05: Can I get clear of something? [00:01:03] Speaker 05: You said in your filing that you do not now contest the current withholding of the assessment. [00:01:14] Speaker 05: Did you just mean not now because you want to fight about getting a determination letter and then you're willing to do your exhaustion? [00:01:22] Speaker 05: Or in fact, did you mean that now that they've done their in-court release, [00:01:30] Speaker 05: The former, Your Honor. [00:01:33] Speaker 03: We very much contest that the assessment is not exempt. [00:01:42] Speaker 03: We wanted to focus on the initial response of the agency runner. [00:01:46] Speaker 03: That is what is key here. [00:01:47] Speaker 03: They must give us the real reason so we can have a meaningful administrative appeal. [00:01:52] Speaker 03: Yes, indeed, the assessment is not exempt, and certainly parts can be segregated out of it, but we want to focus on the initial response. [00:02:00] Speaker 03: The agency is doing this continuously. [00:02:02] Speaker 03: You have in the record 25 letters from Jill Eggleston. [00:02:05] Speaker 03: They keep doing this, even though one judge [00:02:08] Speaker 03: in the aptu case said that parts of the assessment are easily segregable. [00:02:13] Speaker 03: That's what the judge said, but the agency continues to say nothing can be segregated. [00:02:17] Speaker 03: So we want to focus on the individual, the initial response. [00:02:21] Speaker 05: Mr. Baila, I know he's obviously filed this FOIA request. [00:02:25] Speaker 05: Does he plan to file other FOIA requests? [00:02:29] Speaker 05: Or is he a one-time FOIA filer? [00:02:33] Speaker 03: Most likely, he's a one-time FOIA filer. [00:02:35] Speaker 03: However, he wants to file an administrative appeal. [00:02:38] Speaker 06: He wants to file an administrative appeal. [00:02:39] Speaker 03: He does. [00:02:40] Speaker 03: He wants to file a meaningful administrative appeal. [00:02:42] Speaker 03: And that's what he's after. [00:02:43] Speaker 03: If he can win this case, if they issue a new letter, he then will file an administrative appeal of the letter. [00:02:50] Speaker 05: Why would he file an appeal of a letter that's essentially been mooted by the fact that they took a whole new position in district court? [00:02:59] Speaker 05: When they came in in district court, [00:03:02] Speaker 05: Here's a more particularized assertion of exemptions and here's some more documents you should have given me the first time. [00:03:10] Speaker 05: So what's the point of going back to the appeal letter? [00:03:13] Speaker 05: Or would you go back and exhaust their disclosure in district court? [00:03:18] Speaker 03: We believe that we possibly could win at the administrative appeal. [00:03:21] Speaker 03: I don't see how they can fight us on the segregation issue. [00:03:27] Speaker 03: Congress says you must give the reasons, and we want to hear the reasons, and then we will make an administrative appeal. [00:03:32] Speaker 03: We think we can win. [00:03:32] Speaker 03: If we lose, then we'll come back to district court and ask for a ruling. [00:03:39] Speaker 03: The reasons means the reasons. [00:03:41] Speaker 03: That phrase is used in other places. [00:03:43] Speaker 03: When prosecutors make peremptory challenges of a juror, they must give the real reasons, not possible reasons. [00:03:48] Speaker 03: Employers must give the real reasons for adverse employment actions. [00:03:52] Speaker 03: The phrase the reasons is used in other places. [00:03:54] Speaker 07: So is your argument that the reason you did not exhaust administratively yet is you didn't know what target to shoot after? [00:04:01] Speaker 07: Is that the point? [00:04:02] Speaker 07: I mean, why couldn't you be making the argument to make it here in the administrative process? [00:04:11] Speaker 03: It's unfair to force the requester to make an administrative appeal when we have the initial response. [00:04:18] Speaker 03: The initial response is very confusing. [00:04:20] Speaker 03: It says exemptions are applicable, and it lists a large number of them. [00:04:26] Speaker 03: And it says, under B5, under this exemption, it may include materials prepared in contemplation of litigation. [00:04:34] Speaker 03: How do we appeal that? [00:04:36] Speaker 03: Is the assessment materials prepared in anticipation of litigation? [00:04:40] Speaker 03: Under – it says B-6 is in the letter. [00:04:42] Speaker 03: Is the assessment exempt under B-6? [00:04:44] Speaker 03: How do we appeal? [00:04:45] Speaker 03: What would we say in the appeal? [00:04:47] Speaker 05: We'd have to argue that – The same thing – He'd be making the same arguments you're making here, right? [00:04:58] Speaker 07: And isn't that the point of – one of the points of the administrative exhaustion is those arguments get played out in detail here – there before they're reviewed here. [00:05:09] Speaker 03: Well, in theory, Your Honor, that could happen. [00:05:13] Speaker 03: However, as Jill Eggleston pointed out... I'm sorry, what do you mean in theory that could happen? [00:05:20] Speaker 07: If in response to the letter you had exhausted your administrative remedies, what argument would you be making there that you're not making here? [00:05:32] Speaker 07: The same arguments, right? [00:05:33] Speaker 07: You're talking about the inadequacy of the response, [00:05:37] Speaker 07: That's true. [00:05:38] Speaker 07: You didn't do that. [00:05:39] Speaker 03: That's true, Your Honor. [00:05:40] Speaker 03: As Jill Eggelson pointed out, referring to the Anguamate case, if we had made an administrative appeal, then we would lack standing to complain about the initial response. [00:05:52] Speaker 04: So you want to bring a policy and practice challenge. [00:05:54] Speaker 03: Nice. [00:05:55] Speaker 03: Indeed. [00:05:56] Speaker 03: Ms. [00:05:56] Speaker 03: Anguimati complained about the initial response. [00:05:59] Speaker 03: She filed an administrative appeal. [00:06:00] Speaker 03: And the judge, there's dicta in his opinion that he agrees this is wrong for these people to blunderbuss a listing of possibilities. [00:06:08] Speaker 03: However, Ms. [00:06:09] Speaker 03: Anguimati, since you did the administrative appeal, forget about the initial response. [00:06:13] Speaker 03: We're going to go directly to the merits of these documents. [00:06:17] Speaker 03: That decision that Jill Eggleston points out is binding on us. [00:06:23] Speaker 03: That's why we did not file an administrative appeal. [00:06:25] Speaker 03: We wanted to avoid that problem. [00:06:27] Speaker 03: We want the court to focus on the initial response. [00:06:30] Speaker 03: I think the DHS agrees the initial response is very defective. [00:06:36] Speaker 03: In regard to segregation, they say it in their June [00:06:41] Speaker 03: The June 2015 brief at page 25, the agency must show a reasonable specificity why something cannot be segregated. [00:06:49] Speaker 03: At page 26, they say we must show a detailed justification for why you're not going to segregate something. [00:06:55] Speaker 03: Under that standard, their standard, [00:06:58] Speaker 03: The initial response fails. [00:06:59] Speaker 03: The initial response doesn't say anything useful about segregation. [00:07:04] Speaker 05: Does the appeal process have any jurisdiction or authority to address a policy or practice argument, or can it only be raised in district court? [00:07:13] Speaker 05: If you were to go back on the appeal, you could say, this letter this time, I don't know what you mean about v6, could you also raise before the agency [00:07:23] Speaker 05: cut it out. [00:07:24] Speaker 05: You're doing it in all of these cases. [00:07:26] Speaker 05: This is ridiculous. [00:07:27] Speaker 05: You're not doing your job. [00:07:28] Speaker 05: You've got these boilerplate things where you're just spewing them out, and you're not making any effort whatsoever to provide specific exemption explanations. [00:07:38] Speaker 05: Could you do that for the agency? [00:07:40] Speaker 03: Perhaps theoretically. [00:07:42] Speaker 05: I'm really asking, does the agency itself have jurisdiction to decide? [00:07:48] Speaker 05: Does it have the authority to say not only [00:07:56] Speaker 05: the exemption in your case, but the practice here is invalid as well. [00:08:04] Speaker 03: I believe they might have that authority. [00:08:07] Speaker 03: We do have, in the record, six appeals, administrative appeals, that we did make, resulting in nothing, resulting in short boilerplate denials. [00:08:15] Speaker 03: It's very unlikely the agency would do anything like that. [00:08:18] Speaker 05: I'm not sure of the jurisdiction of the agency, but... Well, I'm curious as to why you said you want to go back to the agency. [00:08:23] Speaker 05: If you have a policy or practice argument, [00:08:26] Speaker 05: I'm just confused about your, you can't trust their process as boilerplate, but I'm here fighting because I want to go back, I want my opportunity to have a real meaningful administrative process. [00:08:37] Speaker 03: So if they reform their initial response, we have a better chance of a meaningful administrative appeal. [00:08:44] Speaker 03: I'm somewhat pessimistic, but is, I don't know, possible that they would actually read what the Out2K said and they would come to a different result? [00:08:51] Speaker 07: It's possible. [00:08:52] Speaker 07: But you've said that your client is a one-time filer. [00:08:57] Speaker 07: Isn't that a problem for making a policy and practice argument? [00:09:01] Speaker 07: You've gotten what you wanted. [00:09:03] Speaker 07: You've gotten the documents you wanted. [00:09:05] Speaker 03: He's not directly making a policy and practice argument. [00:09:10] Speaker 03: He's making an argument for himself. [00:09:12] Speaker 03: He wants the opportunity to make it a meaningful administrative appeal. [00:09:17] Speaker 03: If the agency will rewrite its initial response, then he's able to do that. [00:09:21] Speaker 03: That's what he's asking for. [00:09:23] Speaker 03: He wants the right to a meaningful administrative appeal. [00:09:26] Speaker 03: I believe the agency agrees with me that nobody can make a meaningful administrative appeal based on this initial response. [00:09:33] Speaker 03: I think they'll agree with me on that. [00:09:35] Speaker 03: What would we say in the appeal to have any chance of success? [00:09:40] Speaker 03: When the initial response says, undescribed documents have no segregable portions, how can you appeal that? [00:09:46] Speaker 03: When the initial response says, undescribed documents are sent elsewhere, how do we appeal that? [00:09:53] Speaker 03: Was the assessment sent to the Department of State or to the ICE? [00:09:56] Speaker 03: We don't know. [00:09:57] Speaker 03: So we appeal things we don't even know what we're talking about. [00:10:00] Speaker 03: The agency has the documents in its hand in the file. [00:10:04] Speaker 03: They know exactly what they are. [00:10:06] Speaker 03: It is easy for them to say, concerning this document, these are the reasons why you can't have this one. [00:10:12] Speaker 03: These are the reasons why this document has nothing that is segregable. [00:10:17] Speaker 03: And by the way, we asked for the notes of the asylum officer. [00:10:21] Speaker 03: And they say to us, the notes are entirely exempt under several exemptions. [00:10:26] Speaker 03: Nothing can be segregated out of the notes. [00:10:28] Speaker 03: Then, after the lawsuit, the notes come out. [00:10:31] Speaker 03: All of the notes are all of a sudden discoverable, and everything can be segregated. [00:10:37] Speaker 05: With respect to the position, so put aside the letter, with respect to the disclosures they made in district court and the exemptions they asserted in district court, do you have the same objection, they're still withholding the assessment, and you want that? [00:10:54] Speaker 05: Indeed. [00:10:55] Speaker 05: Do you have the same sort of objection to the assertion of exemptions they've made in district court with respect to the assessment? [00:11:01] Speaker 05: It's boilerplate or they didn't make a sufficient segregability analysis. [00:11:06] Speaker 05: Do you have either of those? [00:11:08] Speaker 03: Our better argument is the segregability argument. [00:11:12] Speaker 03: Why indeed can't something be segregated out of the assessment? [00:11:16] Speaker 03: The aptu court was able to do that. [00:11:18] Speaker 03: We have in the record 10 assessments that I've gotten earlier that is easy to segregate. [00:11:24] Speaker 03: I don't see why they say they can't. [00:11:26] Speaker 03: I think it's very annoying when they use the same 19 words in the fifth sentence of 25 letters. [00:11:32] Speaker 03: That is, bore the plate with a capital B. They're not trying to segregate. [00:11:37] Speaker 03: The fact that they use the exact same 19 words. [00:11:40] Speaker 03: In our review of these pages, we have determined that they contain no reasonably segregable portions of non-exempt information. [00:11:45] Speaker 03: The same 19 words, that means a computer is incidental. [00:11:48] Speaker 05: Well, that's not a U, but I don't know why it was not a Mr. Maela if he's not a repeat filer. [00:11:53] Speaker 05: That's true, Your Honor. [00:11:58] Speaker 03: But the fact that they do this in 25 letters is evidence of what they're doing inside the agency, which is to say they're not doing anything thoughtful. [00:12:07] Speaker 03: They're giving very little attention to this request, and they're answering with boilerplate. [00:12:12] Speaker 03: They're not even trying to fulfill the intent of Congress. [00:12:17] Speaker 03: is for the fact that they hand over the notes after the lawsuit is filed, it's annoying to me. [00:12:23] Speaker 03: We have to file lawsuits to get things they should give us. [00:12:25] Speaker 03: Why don't they give it to us promptly? [00:12:28] Speaker 03: Congress wants prompt disclosure of information and prompt disclosure of the reasons. [00:12:33] Speaker 03: And the agency is not trying hard to do this. [00:12:36] Speaker 03: And so I think they should be told, follow what Congress said. [00:12:41] Speaker 07: OK. [00:12:41] Speaker 07: Thank you very much. [00:12:52] Speaker 02: Good morning and may it please the court Kenneth Adibondager for the government. [00:12:57] Speaker 02: The issues before the court are whether there remains a case or controversy and whether the whether DHS's letter of December 17th 2013 satisfied the constitution the [00:13:12] Speaker 02: the statutory requirement, as well as this court's ruling in CRU versus FEC. [00:13:20] Speaker 02: And respectfully, the government submits that the answers to those questions are no and yes, respectively. [00:13:27] Speaker 05: Well, you just said that they're still want to fight over the assessments, so they're trying, but they would [00:13:35] Speaker 05: to win, and so they would prefer to fight first before the agency on an agency, a meaningful agency appeal. [00:13:43] Speaker 05: So they're not giving up on their request for the assessment. [00:13:46] Speaker 05: Their FOIA claim's not moot in that regard. [00:13:49] Speaker 05: They just want every shot they can have to try to get this thing disclosed, both administratively and then judicially. [00:13:55] Speaker 02: Well, statutorily they had an opportunity to do that because the other, another name for what the plaintiff's relief that the plaintiff's actually asking for is exhaustion and Congress intended. [00:14:07] Speaker 02: But I think the question is on a moodness. [00:14:11] Speaker 00: I think, I don't understand the response because the question is one of, your threshold argument is mootness. [00:14:17] Speaker 00: And I think we probably have to address mootness first. [00:14:20] Speaker 00: And as to mootness, if they're still seeking the underlying document, how is it moot? [00:14:26] Speaker 00: I'm sorry, I misunderstood the question, Your Honor. [00:14:28] Speaker 02: In the record, the record indicates that they've said that they're not challenging any withholdings. [00:14:36] Speaker 02: That's clear. [00:14:37] Speaker 02: That's replete. [00:14:39] Speaker 02: So if they're not challenging any withholdings... No, no. [00:14:41] Speaker 05: What they say is we're not now, because right now we're just trying to get our procedure. [00:14:46] Speaker 05: And then when we have our procedure... I mean, that's the first question I asked them. [00:14:50] Speaker 05: They use that word now in their brief. [00:14:53] Speaker 05: That's a very important word, it turns out. [00:14:55] Speaker 02: Well, he would have been required to continue to allege that throughout the action in order for the action to remain a case on controversy, but they haven't. [00:15:04] Speaker 02: It's almost as if it's been waived or withdrawn. [00:15:08] Speaker 00: I think we may be saying the same thing. [00:15:10] Speaker 00: I don't understand. [00:15:10] Speaker 00: What if he specifically says, I'm doing this sequentially. [00:15:14] Speaker 00: I just want to do step one first and then step two second. [00:15:17] Speaker 00: Step two is that, yeah, there's a prospect of getting the document at the end of the day. [00:15:21] Speaker 00: But step one is I want to go through this proceeding first. [00:15:23] Speaker 00: At that point, you may have some arguments on the merits. [00:15:26] Speaker 00: Maybe there's a problem with doing it that way. [00:15:29] Speaker 00: I don't know. [00:15:30] Speaker 00: But in terms of mootness, I'm not understanding how it can be moot because they decided to do it sequentially. [00:15:36] Speaker 02: Well, the statutory scheme, as this court looked at in Crewe, says that you have to go through certain steps for the entire scheme to make sense. [00:15:46] Speaker 02: And so if they're not, if at some point during the litigation they're saying that we don't want the documents and the statute itself grants the court jurisdiction to either enjoin a withholding or order a production, [00:16:03] Speaker 02: and they're not alleging that, then the action is, in essence, moot. [00:16:07] Speaker 02: I'm not sure I understand. [00:16:08] Speaker 00: But I don't think they're saying they don't want the documents. [00:16:12] Speaker 00: I think you're presuming that what they mean by don't want the documents is we never want the documents. [00:16:21] Speaker 00: And as I understood the exchange with Judge Millett at the beginning, that's not what they're saying. [00:16:26] Speaker 00: They're not saying we don't ever want the documents. [00:16:28] Speaker 00: They're saying we're going to focus on the here and now for present purposes, and then we'll deal with that stuff later. [00:16:33] Speaker 00: But we're not abandoning the notion that we'd like to get the documents. [00:16:36] Speaker 00: In fact, this is all bound up in that we're just taking it one step at a time. [00:16:40] Speaker 02: Well, that was not the record before the district court. [00:16:43] Speaker 02: The district court ruled on the record it had and it ruled that part of the district court's consideration was that they said that they didn't want the documents. [00:16:54] Speaker 02: The statute does not [00:16:56] Speaker 02: permit them to choose whatever process they want. [00:17:01] Speaker 02: The statute has specific provisions about what you need to go through, what the government has to do after you file, which happened in this case. [00:17:10] Speaker 02: And they have to go through that process. [00:17:14] Speaker 05: It seems a bit much, I guess, for the government to be hanging its hat on procedural regularity. [00:17:23] Speaker 05: with respect to the exhaustion argument. [00:17:27] Speaker 05: How can you argue exhaustion when you chose to come into district court and essentially confess error on your initial letter and completely change what the FOIA decision is that's an issue in this case? [00:17:43] Speaker 05: We have a whole new letter. [00:17:45] Speaker 05: We have a whole, we have new disclosures. [00:17:47] Speaker 05: We have new exemption assertions. [00:17:50] Speaker 05: I don't understand what on earth the exhaustion argument is. [00:17:54] Speaker 02: Well, I disagree with that, Your Honor. [00:17:57] Speaker 02: There were no new. [00:18:00] Speaker 02: We stuck with the original with regard to the assessment. [00:18:04] Speaker 05: I understand, but they were thinking a lot of things, not just the assessment. [00:18:08] Speaker 05: And you made new disclosures. [00:18:10] Speaker 05: You made new exemption assertions. [00:18:13] Speaker 05: You made new explanations for prior exemption assertions. [00:18:16] Speaker 05: You dropped out some prior exemptions. [00:18:18] Speaker 05: It's a whole new decision. [00:18:20] Speaker 05: I don't know what he goes back to exhaust. [00:18:22] Speaker 05: Does he go back to exhaust the letter? [00:18:25] Speaker 05: Or does he go back to, you say he needs to, if it's not good, he needs to exhaust. [00:18:28] Speaker 05: Does he exhaust, does that exhaustion appeal address the original letter, or does it address your position in district court? [00:18:35] Speaker 02: He's required to exhaust the letter. [00:18:38] Speaker 05: Why does he exhaust the letter when you've completely displaced that FOIA decision? [00:18:42] Speaker 05: That's no longer the relevant FOIA decision. [00:18:44] Speaker 05: That makes no sense to me at all. [00:18:46] Speaker 02: I'm not sure I understand the question, Your Honor. [00:18:48] Speaker 05: Maybe I'm misunderstanding the record here. [00:18:50] Speaker 05: My understanding is there was the FOIA letter. [00:18:52] Speaker 05: Right. [00:18:53] Speaker 05: Had some disclosures. [00:18:54] Speaker 05: Had the very boilerplate language about exemptions. [00:18:57] Speaker 05: He files in court. [00:18:59] Speaker 05: And am I correct that you then came into, the government came into court and said, oh, have some more documents. [00:19:08] Speaker 05: And here's a new letter, a new explanation, or a new explanation of what we're withholding and why we're withholding it, asserting new exemptions, abandoning some of the prior exemptions. [00:19:19] Speaker 05: Is that correct? [00:19:20] Speaker 05: That's not correct, Your Honor. [00:19:21] Speaker 05: Did you disclose any additional arguments after they filed suit and district court? [00:19:25] Speaker 02: Your Honor, initially there were 159 documents that were found responsive. [00:19:31] Speaker 02: Mr. Biala got 129 of those documents immediately, which is actually ahead of him. [00:19:37] Speaker 05: Had it all. [00:19:37] Speaker 05: Some of those were in part. [00:19:38] Speaker 02: Yes, 10 of those documents were in part, which is actually ahead. [00:19:41] Speaker 02: That was a contemporaneous production. [00:19:44] Speaker 02: And then 10 documents were withheld. [00:19:48] Speaker 02: I believe 14 were referred. [00:19:51] Speaker 02: And of those 10 documents, [00:19:53] Speaker 02: The ten documents constituted, essentially, the notes and the assessment. [00:20:00] Speaker 02: And after the litigation begun, we—as part of the process, we gave him—we gave Mr. Bialy the notes. [00:20:10] Speaker 02: But we stuck to the argument that [00:20:14] Speaker 02: that the assessment is protected under B-5. [00:20:17] Speaker 02: We didn't change that. [00:20:18] Speaker 05: I understand, but when he filed the lawsuit, he was filing for the assessment and the notes and a particularized explanation of exemptions and a particularized explanation of segregability. [00:20:28] Speaker 05: And you came into court and said, whoops, you're right, he is entitled to the notes. [00:20:34] Speaker 05: But you gave him the notes, correct? [00:20:35] Speaker 05: Correct. [00:20:36] Speaker 05: Okay, so that's a different FOIA decision than the one the agency initially made. [00:20:40] Speaker 05: And when you did that, you also provided a more particularized explanation of the exemptions, did you not? [00:20:46] Speaker 05: Or was it boilerplate and district court? [00:20:48] Speaker 02: No, it wasn't boilerplate, Your Honor. [00:20:50] Speaker 05: It was more particularized. [00:20:51] Speaker 02: That's a different... It wasn't boilerplate, Your Honor. [00:20:54] Speaker 02: The letter said that... mentioned pre-decisional. [00:21:00] Speaker 02: Mr. Biala wanted the letter to say what he wants it to say, which is deliberative process, but the letter did say pre-decisional. [00:21:08] Speaker 05: But that's not the point. [00:21:09] Speaker 05: The point is that you, in that letter, in the original administrative letter, [00:21:13] Speaker 05: You said you couldn't disclose the notes. [00:21:16] Speaker 05: Correct. [00:21:16] Speaker 05: Even though you had already taken a position in litigation that those things were disposable and would not be subject to protection under B-5. [00:21:25] Speaker 05: I don't care whether you call it pre-decisional or deliberative process, B-5. [00:21:30] Speaker 05: Yet you are asserting B-5 to protect the very notes. [00:21:34] Speaker 05: Once you got to court, you said, whoops. [00:21:37] Speaker 05: Those things, of course you can have those. [00:21:39] Speaker 02: But Your Honor, doesn't that highlight the reason why he should have exhausted in the first place? [00:21:44] Speaker 02: Because perhaps if he had exhausted, the process, he would have given OIP an opportunity, sorry, not OIP, the appeal entity, an opportunity to say, well, you know, in light of recent decisions or whatever, you can have the [00:22:02] Speaker 02: You can have the notes, but you can't have the assessment because there's no, we know of no law that permits that. [00:22:09] Speaker 05: That's a great argument, Meg. [00:22:10] Speaker 05: You've shown up in district court and said that, that would be fine. [00:22:13] Speaker 05: But once you came to district court and said, anyhow, we're no longer, that's no longer our FOIA position in this case. [00:22:21] Speaker 05: Here's our new FOIA position in this case. [00:22:23] Speaker 05: He gets the notes. [00:22:25] Speaker 05: We've got more particularized exemptions. [00:22:27] Speaker 05: We're dropping some out. [00:22:28] Speaker 05: We're adding some in. [00:22:30] Speaker 05: That's the new decision. [00:22:31] Speaker 05: That's the decision. [00:22:32] Speaker 05: I mean, it would make no sense to go back and fight about the notes on the appeal because he's got them. [00:22:37] Speaker 05: We've got a new FOIA decision in district court. [00:22:39] Speaker 02: I'm sorry. [00:22:41] Speaker 02: I disagree that it's a different decision. [00:22:43] Speaker 02: It's the same decision. [00:22:44] Speaker 02: He did get the notes, but it's the same decision as is customary in FOIA litigation that the statute only requires [00:22:58] Speaker 02: A6A1 requires, as this court said in crude, to just give reasons, give an idea what the documents are, and give some reasons. [00:23:09] Speaker 02: And that's what was done at the time. [00:23:12] Speaker 02: And subsequently, the agency decided that it was okay to have the notes, but stopped its position. [00:23:21] Speaker 05: All right, so just to be clear that your position is, if we were to say he failed to exhaust and needs to go back and exhaust, that exhaustion appeal should be about the original letter and not about the status of what's been disclosed and what has been withheld now. [00:23:42] Speaker 02: The, if he was required to exhaust, first of all, had he exhausted, the process of him getting the notes could have happened. [00:23:53] Speaker 06: I got that, I got that, but you all made a strategic decision and it's very important. [00:23:56] Speaker 02: If he, at this point, if he were required to exhaust, the exhaustion issue would be about the assessment. [00:24:04] Speaker 05: Just about the assessment. [00:24:06] Speaker 05: Right, because that's the only thing y'all are left fighting about, is I understand it. [00:24:10] Speaker 05: that's the only thing left [00:24:23] Speaker 02: Well, Your Honor, that's just a creature of the way that he's chosen to go around the statute. [00:24:30] Speaker 02: Had he just exhausted, this anomaly would not have happened. [00:24:36] Speaker 02: What has happened so far, essentially what has happened is that the district court and this court are essentially the exhaustion process for him. [00:24:44] Speaker 02: And had he done that earlier, that situation might not have presented itself. [00:24:49] Speaker 05: He's going to say, [00:24:51] Speaker 05: And you made the same decision you made in district court originally. [00:24:55] Speaker 05: Instead of this thing where you just cut and paste for 20 letters at a time, we wouldn't be here either. [00:25:02] Speaker 05: So that sort of question is whether just as a matter of law, exhaustion can still be argued when the government has changed the content of the original agency decision in district court. [00:25:14] Speaker 05: I just don't know the answer to that. [00:25:16] Speaker 02: I couldn't find cases where that had happened. [00:25:21] Speaker 02: If FOIA requests are coming in and they're essentially a request for the assessment or the notes, it stands to reason that the responses to those requests would be fairly similar. [00:25:32] Speaker 02: I don't think that there's anything much to be taken from the fact that responses have some similar language, and I wouldn't call that boilerplate, Your Honor. [00:25:43] Speaker 05: Well, it might be similar. [00:25:44] Speaker 05: It's going to depend on the requester. [00:25:45] Speaker 05: If a news organization asks for it, you're going to have a lot more privacy exemptions than if the individual who's actually the subject of the immigration proceeding is the one that asked for it, aren't you? [00:25:55] Speaker 02: I believe that what was submitted or what's in the record is that the private individual's requested. [00:26:01] Speaker 05: No, I understand. [00:26:01] Speaker 05: But so, in fact, we could have, it's not going to be. [00:26:05] Speaker 07: In that case, it would be a different requester, correct? [00:26:09] Speaker 07: Tell me how this works. [00:26:11] Speaker 07: Why wasn't it the case that the subsequent explanation that was given, the one that was given in district court, why wasn't that given in the first instance? [00:26:19] Speaker 07: What's the reason for it? [00:26:22] Speaker 07: Why wasn't the initial response to the request? [00:26:27] Speaker 07: Why didn't it look more like the explanation that was given in the district court that Judge Millett's been talking about? [00:26:38] Speaker 07: It's more fulsome, it's obviously more work and care and attention to detail has gone on. [00:26:43] Speaker 02: Why wasn't that done in the first instance? [00:26:46] Speaker 02: Your Honor, my only answer to that is that Congress's intent was that was for the request to get two bites at the apple. [00:26:54] Speaker 02: And had he done that, that may very well be what would have happened. [00:26:59] Speaker 02: And that happens all the time. [00:27:01] Speaker 07: That happens... Well, that makes it sound like you're saying, so the way the system is set up is that the agency gives boilerplate the first time, and then we go to the administrative procedure, and that's where we really duke it out, and that's where we get serious about finding out what's segregable and not. [00:27:17] Speaker 07: Isn't that... That's what it sounds to me like you're saying. [00:27:19] Speaker 00: No, you're right. [00:27:20] Speaker 07: So I'm asking, why wasn't the second response, the one that's more satisfying, the one that... That's proper. [00:27:26] Speaker 07: Yeah, the proper, thank you. [00:27:28] Speaker 07: Why wasn't that done in the first instance instead of waiting to the district court? [00:27:32] Speaker 07: I understand your, I think your point is you didn't choose the form of the district court, right? [00:27:37] Speaker 07: You didn't choose it. [00:27:38] Speaker 07: You gave a response there because that was the question in front of you. [00:27:41] Speaker 07: My only question is why did the agency wait till then? [00:27:47] Speaker 07: Why wasn't that the initial response that the agency gave? [00:27:50] Speaker 07: Is it a question of manpower or [00:27:54] Speaker 07: personnel, the statutory time period too short. [00:27:57] Speaker 02: What's why? [00:27:58] Speaker 02: Your Honor, it's my understanding that the agency has recently taken a position on notes as a result of some litigation. [00:28:07] Speaker 02: And that's perfectly within their purview to do that. [00:28:10] Speaker 02: And that's essentially the only dip besides your characterization, Your Honor. [00:28:15] Speaker 07: So you're saying there was a change in policy by the agency between the first and second [00:28:22] Speaker 02: I don't know specifically what the timeline was, Your Honor. [00:28:31] Speaker 05: Pardon me, Your Honor? [00:28:36] Speaker 02: I can't say for certain, Your Honor, but at some point recently, the agency has released notes. [00:28:47] Speaker 02: And I think that that's perfectly within the agency's purview to do that. [00:28:52] Speaker 02: But again, I hate to sound like a broken record. [00:28:54] Speaker 05: Had exhaustion happened- Your position was February 11, 2013, and your first FOIA response [00:29:01] Speaker 05: was December 17th, so it was 11 months later? [00:29:08] Speaker 02: I'm sorry, Your Honor. [00:29:10] Speaker 05: Your first FOIA letter, the two-pager, was, I think, about 11 months after the change in position. [00:29:19] Speaker 05: Isn't that enough time to process it? [00:29:22] Speaker 05: Particularly because the change in position said this will be effective in three months. [00:29:29] Speaker 02: Your Honor, I can't answer the question as to why. [00:29:33] Speaker 02: I think I've answered the question, but I don't know what the answer is with regard to the timeline. [00:29:40] Speaker 02: But I think, again, we're getting further down the road than we should be. [00:29:47] Speaker 02: This is a lot simpler, a lot easier than it has turned out to be. [00:29:53] Speaker 02: had he taken the opportunity that the statute gives him and this court has said in avocado plus that it would give deference to to uh that it owes deference to the cost to the to congressional intent with regard to exhaustion that had he just followed that process we probably there's a good chance we wouldn't be here and this change this [00:30:14] Speaker 02: quote unquote, change in position is so slight with regard to the notes. [00:30:18] Speaker 02: The real issue is the assessment that he wants, and there's been no change in position with regard to that. [00:30:23] Speaker 05: I don't think he gets to decide what the real issue is. [00:30:24] Speaker 05: I think he gets to decide what he wants, and he wants them both, right? [00:30:28] Speaker 02: Well, he got one, but this assessment is still contested. [00:30:33] Speaker 02: And he hasn't argued anything with regard to the propriety of the agency's withholdings [00:30:40] Speaker 02: under B5 in the district court. [00:30:43] Speaker 02: He posited no arguments. [00:30:46] Speaker 05: To fight for the assessor? [00:30:54] Speaker 02: Yes, he is. [00:30:55] Speaker 02: That's what the exhaustion process is all about. [00:30:57] Speaker 02: And perhaps [00:31:01] Speaker 02: as we see with the notes, how the notes issue was handled, perhaps, you know, I don't know that he would have gotten the assessment had he gone through the exhaustion process, but that's what the process is supposed to serve. [00:31:15] Speaker 02: He's supposed to be required to go through that process, and for good reason, too, in order for there to avoid premature [00:31:26] Speaker 02: prematurely seeking judicial review for there to be a proper administrative record and to allow the agency to exercise its discretion. [00:31:36] Speaker 02: Those are the purposes. [00:31:37] Speaker 00: Do you know as a practical matter, does this happen, that the shape of what's at issue changes when litigation ensues? [00:31:45] Speaker 00: But then there's an exhaustion requirement that wasn't satisfied, and so you go back to exhaust, and then everything just gets reconfigured based on what happens in litigation so that you only litigate the open issues. [00:31:55] Speaker 00: Is that something that actually happens as a matter of practice? [00:31:58] Speaker 00: I don't think so, Your Honor. [00:31:59] Speaker 02: I don't think that litigation necessarily changes the way that the agency reviews FOIA requests. [00:32:07] Speaker 02: But the nature of litigation is that the agency has to provide a more robust [00:32:13] Speaker 02: explanation of the decisions it's made. [00:32:15] Speaker 00: Oh yeah, no, I guess I'm talking about what would happen down the road under your approach to this case. [00:32:20] Speaker 00: So what you'd say is that the district court should be affirmed? [00:32:23] Speaker 02: Correct. [00:32:24] Speaker 00: And then once that gets affirmed, then we have an exhaustion issue to deal with before the agency. [00:32:28] Speaker 02: That would be the remedy that Congress intended for him to have. [00:32:33] Speaker 00: Right, and I guess I'm just asking, as a practical matter, does it happen, does this sequence of events happen in the real world where [00:32:39] Speaker 00: when you go back then to think about what happens before the agency, it turns out the state of play has changed because of what happened in litigation. [00:32:46] Speaker 00: And so then you start thinking about exhausting the thing that should have been exhausted before. [00:32:49] Speaker 00: It's no longer that thing anymore. [00:32:50] Speaker 00: It's something new. [00:32:52] Speaker 00: And I take it what you were suggesting is that, well, then what should happen is it automatically kind of gets updated so that all that's left at issue is the assessment. [00:33:01] Speaker 00: And I'm just wondering, does that actually happen? [00:33:03] Speaker 02: OK, well, because this is an anomaly, that's what it's turned out to be. [00:33:08] Speaker 02: I can't cite any specific examples, Your Honor. [00:33:11] Speaker 00: In your experience, you don't know of situations that have unfolded in this way. [00:33:14] Speaker 02: I don't have any specific reference, but that's what would happen. [00:33:20] Speaker 02: And in this case, the exhaustion process would be about the assessment, I believe. [00:33:24] Speaker 05: I don't know anything, your honor. [00:33:41] Speaker 02: I'm not aware of anything that would prevent that from happening. [00:33:45] Speaker 07: Thank you very much. [00:33:48] Speaker 07: Give you about two minutes. [00:33:55] Speaker 03: The case is not moot. [00:33:56] Speaker 03: The district court so held a 444 and there's no been no cross appeal. [00:34:01] Speaker 03: He says he gave us 159 documents. [00:34:03] Speaker 03: He photocopied copies the asylum application. [00:34:06] Speaker 03: They gave us documents we didn't ask for. [00:34:08] Speaker 03: We asked for the notes and the assessment. [00:34:09] Speaker 03: They didn't give them to us. [00:34:10] Speaker 05: Well, you asked for his assessment in all other documents about his application. [00:34:14] Speaker 03: That were not given to, that the asylum officer used, not given by the applicant. [00:34:20] Speaker 03: They gave us back photocopies of our own application, wasting their own time, as well as ours. [00:34:26] Speaker 03: Jill Eggleston wrote the initial response. [00:34:30] Speaker 03: And then she's the one who later gave the fuller response at changing things around. [00:34:35] Speaker 03: So she knows what's going on. [00:34:36] Speaker 03: And Your Honor, Judge Griffith, a good question by you, which she didn't answer. [00:34:40] Speaker 03: How come Jill Eggleston didn't give the knowledge that she had an initial response? [00:34:46] Speaker 03: Instead she gives false information. [00:34:49] Speaker 03: The district court said what the agency said in this initial response is not relevant. [00:34:56] Speaker 07: Some would characterize our case law on exhaustion as requiring a really low bar for the agency. [00:35:05] Speaker 07: They just need to give some minimum reasons for excluding the documents and then notice of appeal. [00:35:12] Speaker 07: Some would criticize that as being quite lax. [00:35:19] Speaker 07: Why didn't – why can't you say they fall within that here? [00:35:23] Speaker 07: Not as careful as you would like or as they eventually came around to, but aren't you asking us to hold them to a much higher standard than we've ever required before? [00:35:34] Speaker 03: Your Honor, I'm asking you to make them follow what Congress said. [00:35:37] Speaker 03: Congress said give the reasons. [00:35:39] Speaker 03: That means the real reasons, not a list of possibilities. [00:35:42] Speaker 03: It seems very easy for me for them to do that. [00:35:45] Speaker 03: I don't – easy. [00:35:46] Speaker 03: Why don't they do it? [00:35:47] Speaker 04: In the 129 documents you received, did you receive anything you didn't already have that you had yourself filed with the government? [00:35:55] Speaker 03: Yes. [00:35:57] Speaker 03: Yes, we did a few pages of computer printouts that were meaningless and not important. [00:36:04] Speaker 07: Great. [00:36:05] Speaker 07: Thank you very much. [00:36:05] Speaker 07: The case is submitted.