[00:00:00] Speaker 01: Case number 14-5044. [00:00:04] Speaker 01: James E. Murphy, Appellant versus Executive Office for United States Attorneys. [00:00:08] Speaker 01: Mr. Baha Baha for the Appellant and Mr. Mayor for the Appellee. [00:00:31] Speaker 03: room cleared. [00:00:33] Speaker 03: All right, Mr. Baha, good morning. [00:00:43] Speaker 00: May it please the court, Ishan Barbar, as amicus in support of appellant James Murphy, I'd like to reserve two minutes for a bottle. [00:00:50] Speaker 00: Your Honors, in this case, the government has failed to meet its limited burden under FOIA to show a logical connection between the information Mr. Murphy sought at times at which two grand juries convened in 2008 and the exemption, in this case, exemption number three, the government asserts to prevent that disclosure. [00:01:07] Speaker 04: So is your argument not that this couldn't be a logical explanation, but that it is not tied to your client's case? [00:01:19] Speaker 00: That's correct, Your Honor. [00:01:21] Speaker 00: Not that the government is required to provide specific information showing that Mr. Murphy would definitely be able to identify the grand jury witnesses. [00:01:29] Speaker 00: But what the government hasn't done here, either in the Brandon declarations, in any in-camera submission, or in an argument before this Court, is give any indication Mr. Murphy's case isn't even any way related to these worst-case hypotheticals. [00:01:42] Speaker 00: For example, the government hasn't even said that there were live grand jury witnesses before this grand jury. [00:01:48] Speaker 06: We understand the way FOIA works, is that if one person can get it, anybody can get it. [00:01:52] Speaker 06: We can't look at the individualized circumstances of the requester, so it happens to be one area of the law where we actually have to think about worst case scenarios. [00:02:02] Speaker 06: So what do we do then with that? [00:02:04] Speaker 00: That may be correct, Your Honour, in the sense that grand jury secrecy is very important, but in a number of cases, this Court has drawn lines even as applying exemption number three to grand juries. [00:02:13] Speaker 00: For example, in Hodge, where the specific identities of grand jury witnesses were going to be disclosed, there the Court said absolutely, as with the substantive direction of grand jury investigations. [00:02:24] Speaker 00: By contrast, in a case we cite in our brief, this was in the District Court, it wasn't appealed here, [00:02:29] Speaker 00: but for example in North versus Department of Justice there, the Department of Justice did turn over heavily redacted transcripts which showed the dates on which grand jury testimony was given. [00:02:39] Speaker 00: So I think that are fine-line distinctions that can be drawn here and the real question is when substantive information for grand juries can be turned over then certainly, then in that situation the exemption is properly applied. [00:02:51] Speaker 06: Will 6E doesn't require that there be [00:02:55] Speaker 06: It's not limited to substantive matters. [00:02:58] Speaker 06: It says any revelation of a matter occurring before the grand jury. [00:03:04] Speaker 06: How is that revealing that at 3 o'clock the grand jury convened to discuss case in Ray X? [00:03:12] Speaker 06: Doesn't reveal a matter occurring before the grand jury. [00:03:16] Speaker 00: Your Honor, while I agree, that is the language of Rule 6E. [00:03:20] Speaker 00: Looking at this Court's precedence, interpreting that rule, even in the context of Exemption 3, the Court has said there isn't a grand veil of secrecy over everything. [00:03:28] Speaker 06: So for example... That's right, but matters occurring before the grand jury, this is not just a rule. [00:03:33] Speaker 06: We all know Congress has codified it as a statute, so I have to take it at its word. [00:03:37] Speaker 06: I can't go, you didn't really mean that. [00:03:39] Speaker 06: I guess I'd like to hear an answer to how saying that at 3 o'clock they discussed this case is not revealing a matter occurring before the grand jury. [00:03:52] Speaker 00: Your Honor, as a literal matter, just the words a matter before the grand jury, I agree with you. [00:03:57] Speaker 00: But I think this court's precedents indicate that it isn't any matter before a grand jury, because again, then that would draw this grand veil of secrecy. [00:04:05] Speaker 00: And for example, documents placed before a grand jury [00:04:08] Speaker 00: would in any situation not be discoverable under FOIA, but there are counterexamples, or North versus Department of Justice. [00:04:14] Speaker 00: There, the times at which certain, and again, this is a district court case, so I'm not representing it was this court, but there, the times at which, I'm sorry, the dates at which testimony were given, were turned over by the government. [00:04:25] Speaker 00: And we cite other cases too. [00:04:26] Speaker 06: Maybe they shouldn't have done that either, but the purposes of the statute [00:04:32] Speaker 06: It seems to me it falls squarely within it, and yes, documents may come out, they usually come out in the course of another, they don't normally get handed out on the streets or released under FOIA, they come out in ordinarily a criminal prosecution, and Rule 6 has an exception for other court proceedings. [00:04:52] Speaker 00: That's correct, Your Honour, but I think in order for this exemption number three, as this Court has said, to be narrowly drawn, there does need to be a fact-specific focus on whether or not this would implicate grand jury secrecy, because I think this Court's precedents indicate that is the concern with Rule 6C, and it's not just, and I can see certainly that there is [00:05:10] Speaker 00: in general, a presumption of grand jury secrecy. [00:05:13] Speaker 00: But here, I don't think that secrecy is implicated. [00:05:16] Speaker 00: And the substantive point, though not in the words of the rule, I think can be divine from this court's precedence. [00:05:21] Speaker 00: And the government, which has the grand jury transcript, the identities of the witnesses, has made no argument, say, for these two worst-case hypotheticals, which again could be completely and utterly inapplicable [00:05:32] Speaker 00: And the government, if it can sustain the FOIA exemption on that alone, essentially would be drawing a broad veil of supersede. [00:05:41] Speaker 06: I get your point about what they've said, and this is not a worst case scenario. [00:05:46] Speaker 06: I'm trying to figure out if you were to hold that you can have these times here, and then the next case comes along and it is. [00:05:56] Speaker 06: the worst case scenario. [00:05:57] Speaker 06: It is the guy with the cellmate or the guy next door. [00:06:02] Speaker 06: Was he out on work release or was he out on the grand jury? [00:06:05] Speaker 06: Let's figure out what day and time they met. [00:06:09] Speaker 06: How do they say no? [00:06:10] Speaker 06: Because Rule 6 is a 3A [00:06:13] Speaker 06: statute where there's no discretion in the agency. [00:06:16] Speaker 06: They don't get to make a balance and it's not 3B. [00:06:19] Speaker 06: So how would the answer be different in that worst case? [00:06:23] Speaker 00: Your Honor, I think the government could make a submission to the district court and simply say that grand jury secrecy, which we believe 6E is meant to protect, really could be implicated here because [00:06:33] Speaker 00: There were live witnesses in the grand jury, and the live witness was anybody but the arresting officer, who of course the defendant would know the identity of. [00:06:40] Speaker 00: That's just an example, but it's the government's burden to make this FOIA exemption showing. [00:06:45] Speaker 06: But either way, whether it's a police officer before the grand jury or the guy in an Excel block before the grand jury, it is revealing a matter occurring before the grand jury. [00:06:55] Speaker 00: In that case, Your Honor, at least making a statement that there were witnesses before the grand jury. [00:06:59] Speaker 00: I mean, that's the government's argument here, is that witness identity could be disclosed. [00:07:03] Speaker 00: The government hasn't even said if there were live witnesses here. [00:07:06] Speaker 00: It's given two hypotheticals that the district court accepted, despite the fact that there is no time. [00:07:11] Speaker 06: Well, but if they got in a pattern of releasing it whenever there weren't live witnesses and not releasing it when they were, then we're going to figure it out. [00:07:19] Speaker 06: This matter before the grand jury, did this grand jury rely on live witnesses or did it rely on documents? [00:07:25] Speaker 00: Again, Your Honor, I think the government could make that argument. [00:07:28] Speaker 00: They could say even revealing the existence of the presence of a witness or not could implicate grand jury secrecy. [00:07:34] Speaker 00: But before the district court, the government, which has all the information in this matter, submitted two worst case hypotheticals and has never indicated anything beyond that. [00:07:43] Speaker 00: In addition, the district court's inextricability finding, to the extent that this court might find that as an alternate ground to uphold the district court, should also be rejected. [00:07:52] Speaker 04: But I just go back on one point. [00:07:55] Speaker 04: And I'll ask the government about this as well. [00:07:57] Speaker 04: I'm not really clear what we're talking about here. [00:08:03] Speaker 04: He has the information about the dates. [00:08:08] Speaker 04: And just hypothetically, he knows the grand jury met on Monday, Wednesday, and Friday. [00:08:13] Speaker 04: of the first week of May. [00:08:18] Speaker 04: And the government says in its brief basically something to the effect that it's not too clear what more information would be useful, acknowledging that that's not the government's [00:08:33] Speaker 04: role here, and you take no position on the importance of the information. [00:08:39] Speaker 04: But if the information is simply that the grand jury convened at 8 a.m. [00:08:43] Speaker 04: at recess at noon for lunch, it came back at 1 p.m., and then it recessed for the day at 4 p.m., that's a very different type scenario than if it's simply that, you know, at 10 a.m. [00:08:59] Speaker 04: to 11 a.m., that was [00:09:02] Speaker 04: the only time the grand jury was in session, or it only met that morning. [00:09:09] Speaker 04: And I'm just wondering whether or not, given that the exemptions are supposed to be narrowly construed, if your argument, or the point of your argument, isn't that what the government has said isn't a rational and reasonable explanation, but doesn't it [00:09:31] Speaker 04: consistent with the construction of the exemption have to be quite specific in each case. [00:09:39] Speaker 04: Because in one case disclosing, and we're over the hump at this point that they're disclosing the dates, that the grand jury sort of worked a normal, I'll call it nine to five day, doesn't really tell you much more than that they met on that particular day. [00:09:59] Speaker 04: Whereas if the convening is, [00:10:01] Speaker 04: more discreet than it might convey information. [00:10:07] Speaker 00: If I might just answer the factual part of your question first, because I think there was some confusion in the District Court briefing when Mr. Murphy was, per se, on this issue and somewhat in the District Court decision. [00:10:18] Speaker 00: We addressed this on page 17 and 18 of our brief. [00:10:21] Speaker 00: In Mr. Murphy's first FOIA request, which is on page 12 of the Joint Appendix, he asks for a variety of information, including when the grand jury set in general. [00:10:30] Speaker 00: I think that was a period of something like 21 months for one grand jury and 90 months for the other. [00:10:35] Speaker 00: He also asks when the grand jury convened and issued the indictment. [00:10:39] Speaker 00: And the government, in its first FOIA response, that's on page 43 of the Joint Appendix, at the beginning of July 2013, indicated the time that the grand jury sat in general and also the date on which the indictment issued. [00:10:52] Speaker 00: So you can derive then, obviously, that the grand jury sat on his case. [00:10:55] Speaker 00: And I think the first grand jury, it was a seven-month period. [00:10:58] Speaker 00: The second, it was a nine-month period. [00:11:00] Speaker 00: Mr. Muffy then asks, in his second FOIA request on page 31 of the record, for the dates and times of the sessions of the grand jury. [00:11:09] Speaker 00: That, I think, is fairly read to ask not merely when in a nine-month, you know, did the grand jury sit for a nine-month period, but rather what specific dates. [00:11:18] Speaker 00: And the government, in its response on page 47, declines to provide that information. [00:11:23] Speaker 00: So, it's a somewhat long-winded answer, I'm sorry, Your Honour, but [00:11:25] Speaker 00: even though they discuss below purely in terms of times, and we use that same nomenclature to be consistent in our brief, I think the fairer reading of what he wants are the dates and times, i.e. [00:11:37] Speaker 00: on Monday, it's sat at this time. [00:11:41] Speaker 00: I see my time has expired. [00:11:42] Speaker 06: Sorry. [00:11:43] Speaker 06: May I ask one quick question? [00:11:44] Speaker 06: Are you seeking an unredacted copy of the bird indictment? [00:11:49] Speaker 00: I'm sorry. [00:11:50] Speaker 06: Are your clients seeking an unredacted copy of the bird indictment? [00:11:54] Speaker 00: He's not my client, your friend. [00:11:59] Speaker 00: Yes, Your Honor, my understanding is that he wants unredacted copies. [00:12:02] Speaker 00: I should say that in one of the cases, it's his own case, in the other cases, but that's my understanding of what he wants. [00:12:09] Speaker 06: And does he or you have any argument as to why the information that's been redacted would not fall within 60? [00:12:17] Speaker 00: Your Honour, I think it's impossible for us to make an argument because we haven't seen the in-camera submission, but in addition... Well, that happens. [00:12:24] Speaker 06: You don't see it all the time. [00:12:25] Speaker 06: And you're not going to if, you know, that's how in-camera works. [00:12:28] Speaker 00: Agreed, Your Honour, but I think that this Court in Juarez recognising the position a FOIA requester could be in, so the Government has to submit an affidavit explaining why certain things have to be redacted. [00:12:39] Speaker 00: in the district court submitted no affidavit. [00:12:41] Speaker 00: And as far as we can tell, the district court essentially made a sua sponte inextricability finding. [00:12:46] Speaker 00: And so as an alternate ground, that can't stand. [00:12:49] Speaker 00: We would ask the court, if it determines this information is not protected, to remand and ask the government to at least submit in open court an explanation for why this is inextricable so we could then, or Mr. Murphy, I should say, could then make an argument about that. [00:13:04] Speaker 03: All right. [00:13:04] Speaker 03: We'll give you a couple of minutes. [00:13:06] Speaker 03: Mr. Mayor, good morning. [00:13:11] Speaker 02: I may please the Court. [00:13:12] Speaker 02: My name is Peter Mayer, Counsel for the United States Government. [00:13:15] Speaker 02: I'm here in the Executive Office for United States Attorneys. [00:13:19] Speaker 02: Let me begin where the amicus left off with respect to the inextricability finding. [00:13:25] Speaker 02: We agree with the amicus to the extent that the amicus is only saying the following. [00:13:30] Speaker 02: If the Court does reverse [00:13:33] Speaker 02: the finding that the times were properly withheld, then the inextricably intertwined information with those times is also disposable. [00:13:46] Speaker 02: We agree with that. [00:13:47] Speaker 02: But that does not, it seems to me, challenge the district court's finding that if you find that the times are withholdable, [00:13:58] Speaker 02: Then the other information that the district court also withheld was properly withheld because it was inextricably intertwined. [00:14:06] Speaker 02: In a sense, the tenants aren't challenging the inextricably intertwined finding. [00:14:11] Speaker 02: They're only saying, if you reverse the predicate, then you reverse the remainder as well. [00:14:16] Speaker 02: And with that, we fully agree. [00:14:19] Speaker 06: Can you talk about the predicate and explain why on earth the dates [00:14:27] Speaker 06: are revealable, but the times are not. [00:14:32] Speaker 02: At one point, Judge Millett, the government was also defending the disclosability of the dates. [00:14:41] Speaker 02: And the fact of the matter was we lost those cases. [00:14:43] Speaker 02: The courts in those instances found, pardon me. [00:14:46] Speaker 02: In this court. [00:14:47] Speaker 02: They did not lose at the court of appeals level. [00:14:49] Speaker 02: We lost those cases and did not appeal. [00:14:53] Speaker 06: Why not? [00:14:54] Speaker 06: It seems to me, quite frankly, that if I'm concerned about the cellmate, it's much more the date and the time. [00:15:00] Speaker 06: If you've got 3, 12, 1, 5, you don't give any dates to go with it, it's absolutely meaningless. [00:15:06] Speaker 02: I think there's a reasonable argument to be made, Judge Ballett, but I disagree with you as to which is the most sensitive. [00:15:13] Speaker 02: As the hypotheticals that appear in the Brandon Declaration suggest, [00:15:18] Speaker 02: It may not tell you very much to know what a grand jury met on a particular day if you're worried about whether a particular person was present before the grand jury that day. [00:15:30] Speaker 06: That makes no sense to me if you think about prisoners, all right? [00:15:33] Speaker 06: They don't operate on, they don't have Uber come pick them up, zip into the grand jury room and go back home, right? [00:15:39] Speaker 06: When they're going to court, it's an all-day affair. [00:15:42] Speaker 06: And then they come and they sit in the holy zone until it's time to talk. [00:15:45] Speaker 06: So if they're gone, they're probably gone for the day. [00:15:47] Speaker 06: And it's not going to be a question of was he here in the morning and not here in the afternoon. [00:15:51] Speaker 06: And so revealing the date, they don't get that many field trips. [00:15:56] Speaker 06: If Joe was gone that day, [00:16:00] Speaker 06: And he's back, and they met that day. [00:16:03] Speaker 06: I'm going to put two and two together, I should think. [00:16:05] Speaker 02: Well, I think that point is well taken, but the situation and the problem with respect to the disclosure of the identity of witnesses, Judge Millett, is not confined to the possible revelation or disclosure of witnesses who are incarcerated. [00:16:23] Speaker 06: It's not the only hypothetical, Judge Millett. [00:16:30] Speaker 02: For example, the second hypothetical that Ms. [00:16:32] Speaker 02: Brandon pointed out had to do with the possibility of the testimony of a family member. [00:16:38] Speaker 02: if a prisoner knows that a family member has a particular schedule during the day and it knows that a grand jury met at a particular time. [00:16:51] Speaker 06: I have the same question. [00:16:53] Speaker 06: Tell me if I'm wrong. [00:16:56] Speaker 06: Are grand juries working on that precise [00:16:59] Speaker 06: I don't know if that's a good thing. [00:17:17] Speaker 06: and not four o'clock or morning rather than afternoon. [00:17:20] Speaker 06: Am I just wrong about how grand jury presentations work? [00:17:23] Speaker 06: Are they that predictable? [00:17:25] Speaker 02: My experience with the grand jury was limited to six months, Judge Malat, but my understanding is the same as yours. [00:17:31] Speaker 02: You're making a good case. [00:17:32] Speaker 02: Okay, so then that point doesn't help you. [00:17:35] Speaker 02: The point that I think they're making is dates might very well be subject to nondisclosure as well. [00:17:40] Speaker 06: Right, but once you revealed that they talked that day about this case, [00:17:43] Speaker 06: then whether it was 1 AM or 2 PM isn't revealing, adding anything. [00:17:49] Speaker 02: I think it can, particularly because these are not the only instances of where this information might be sensitive. [00:17:56] Speaker 02: That's where I think I disagree with the amicus in terms of the way he's treating these hypotheticals. [00:18:01] Speaker 02: It's not whether these hypotheticals would apply specifically to Mr. Murphy's FOIA request in his situation. [00:18:08] Speaker 02: It's whether these hypotheticals show [00:18:11] Speaker 02: that the times in which the grand jury met might be sensitive and might under certain circumstances indicate who the grand jury's witnesses were. [00:18:20] Speaker 06: But the problem now is that you're changing the test, because the test has always been articulated as I've seen it, tell me if I'm wrong, in terms of this information would reveal matters before the grand jury, not could reveal matters before the grand jury, and that's a big difference under FOIA. [00:18:41] Speaker 02: Your honor, I can't recall the formulations in this court's president's as clearly as... I've seen them as would, I'll assure you. [00:18:48] Speaker 06: Sorry? [00:18:49] Speaker 06: I've seen would. [00:18:50] Speaker 06: And in your brief it's would, but then your arguments are about could. [00:18:53] Speaker 02: I don't think that the court's use of the term would in these situations in its precedence indicates that the court was intimating that there was a certainty, a certainty that disclosure of the information would always reveal. [00:19:11] Speaker 02: I think what the court must admit when it used that term [00:19:14] Speaker 02: was that it poses substantial probability or possibility. [00:19:18] Speaker 02: It was posing a risk. [00:19:20] Speaker 02: That's what, after all, the entire focus of grand jury secrecy is about. [00:19:24] Speaker 06: So there's a lot more concreteness than a couple lawyers coming up with a couple hypotheticals that actually don't even hold together once you've probed them, right? [00:19:32] Speaker 06: It has to be something more than, well, I can think of a situation, which is really all the government has offered here, now that the dates are out of the bag. [00:19:40] Speaker 06: Now that the dates are out, all they've offered is, well, [00:19:42] Speaker 06: Maybe, but then now you're telling me that's actually not how grand juries work. [00:19:46] Speaker 06: So how has any showing been made that the times are going to add anything different to anything to the dates here? [00:19:53] Speaker 02: Well, Judge Muller, I think you and I just disagree, notwithstanding the fact that we agree with the way that grand juries often operate. [00:20:00] Speaker 04: Let me ask you, since you say you served in the grand jury, has a grand jury subpoena [00:20:07] Speaker 04: If it's issued to a person, does it simply list the date you are to appear, or is it a time-specific subpoena? [00:20:15] Speaker 04: Time, meaning hour of the day. [00:20:18] Speaker 02: This was more than 20 years ago, Judge. [00:20:20] Speaker 04: Well, then, no need to respond. [00:20:22] Speaker 04: But, I mean, I just haven't seen that type of subpoena. [00:20:28] Speaker 02: My recollection is that they state both a date and a specific time, but maybe at the same time. [00:20:34] Speaker 02: But like 9 a.m. [00:20:35] Speaker 02: That's right. [00:20:35] Speaker 02: Yeah. [00:20:36] Speaker 02: It's not like the times are staggered during the day, I understand that. [00:20:38] Speaker 04: That's right. [00:20:39] Speaker 04: So you're basically on call all day until the prosecutor comes out and says, we're ready for you. [00:20:46] Speaker 02: I think that's right. [00:20:47] Speaker 04: Yeah. [00:20:47] Speaker 04: So what does the hour? [00:20:49] Speaker 04: And I guess the point, just following up on Judge Millett's point to the extent the standard is would, if the two hypotheticals [00:20:58] Speaker 04: that the government has come up with don't withstand analysis, then how have you met your burden? [00:21:10] Speaker 02: I agree with you, Judge Rogers, that if the hypotheticals that were presented to the district court don't convince this body that there is a substantial risk that disclosing the times [00:21:25] Speaker 02: would allow the identification of a grand jury witness. [00:21:29] Speaker 02: And we have not met our burden. [00:21:31] Speaker 02: But I believe that the district court found- What's the right remedy then? [00:21:35] Speaker 06: A win or is there a remand for our explanation? [00:21:37] Speaker 06: How does it work under Claire? [00:21:43] Speaker 02: It seems to me, Judge Mallett, that if the district court's decision [00:21:53] Speaker 02: based on the declarations was incorrect that the disclosure of the times would reveal matters occurring before the grand jury. [00:22:06] Speaker 02: That, I believe, the relief is to not just remand for further proceedings, but with a remand consistent with this Court's opinion, which would, I suppose, indicate that the times in which the grand jury convened or issued an indictment, which is the terms of the FOIA request, aren't inconsistent with 6A. [00:22:31] Speaker 06: You don't get another chance to try to explain it? [00:22:34] Speaker 06: Is that your view? [00:22:40] Speaker 04: But you already had one chance. [00:22:43] Speaker 02: To be honest with you, Judge Rogers, it seems to me that I can't think of a reason why, in this situation, the government ought to be given another opportunity to add to the declaration things that it could have presented in the initial instance. [00:23:01] Speaker 06: Can I ask on this question about the dates? [00:23:03] Speaker 06: When you said there hasn't been an appeal of court orders [00:23:07] Speaker 06: requiring disclosure of dates. [00:23:11] Speaker 06: So does that mean it's the official position? [00:23:13] Speaker 06: Is there a determined position of the United States government that dates are not protected? [00:23:18] Speaker 02: Not to my knowledge, but to the extent that there are only decisions upholding the disclosability of dates. [00:23:27] Speaker 02: We certainly haven't argued, to my knowledge, that 6E precludes the disclosure of dates. [00:23:35] Speaker 06: Well, there's at least one other Court of Appeals decision that has said dates and times can be withheld. [00:23:42] Speaker 06: And it must have been the US government that got that decision. [00:23:45] Speaker 06: So I'm just very curious as to how these dates, which seems to be very revealing, what day did you talk about in Ray Millett? [00:23:56] Speaker 06: I hope you never are. [00:23:58] Speaker 06: What day did that happen? [00:24:00] Speaker 06: It seems very revealing. [00:24:01] Speaker 06: And whether it was nine or three or two seems to tell me very little. [00:24:06] Speaker 02: Judge Millett, I'm not privy to the deliberations in terms of why those decisions have not been the subject of further review. [00:24:15] Speaker 05: But it wasn't resisted here. [00:24:17] Speaker 05: It wasn't resisted here. [00:24:18] Speaker 05: There was apparently no resistance on days. [00:24:20] Speaker 05: No. [00:24:21] Speaker 04: So just to be clear, you're resisting my suggestion that the government could be more specific [00:24:29] Speaker 04: as regards to this case as to why releasing times. [00:24:40] Speaker 04: I just want to be clear on that because what you're suggesting, I mean, I suppose I don't know what the court will write, but if the court were to say we're not persuaded [00:25:02] Speaker 02: No, upon reconsideration, Judge Rogers, there may be factors that are related to this specific case, which the amicus suggests was the proper focus of the government's burden to show succeed. [00:25:20] Speaker 02: In responding to the earlier questions, [00:25:22] Speaker 02: I was really thinking in terms of whether the government ought to be given a possibility or the chance to make a more generic showing. [00:25:30] Speaker 02: My instinct is that we've had our chance to make a generic showing. [00:25:33] Speaker 02: Your question suggests, should the government be given an opportunity to show facts that are specific to this case? [00:25:40] Speaker 04: Well, my first question to counsel was to hint that that's where I was going in terms of what I was concerned about. [00:25:48] Speaker 04: And so I was a little surprised when you answered as you did to Judge Millett. [00:25:53] Speaker 04: But if that's the government's position, that's the government's position. [00:25:55] Speaker 04: Fine. [00:25:56] Speaker 02: I would really like to revise that to this extent. [00:25:59] Speaker 02: I believe the government has had its fair opportunity to make its case with respect to the generic situation. [00:26:05] Speaker 02: I do believe that it ought to be given the opportunity to show them with respect to the applicability to succeed that are based on facts that are specific [00:26:15] Speaker 02: to the convening of these two grand juries. [00:26:16] Speaker 04: So the argument against that would simply be the government filed a motion for reconsideration. [00:26:21] Speaker 04: It filed a second declaration. [00:26:25] Speaker 04: It knows that the exemptions are to be narrowly construed. [00:26:30] Speaker 04: So it was on notice at that point that it had to address this case specifically as to why releasing [00:26:39] Speaker 04: of hours would be a problem. [00:26:42] Speaker 04: What's causing me a little concern here is that the district court commendably looked at the documents in camera and I have no idea what's in those documents. [00:26:59] Speaker 04: And she may have found something [00:27:03] Speaker 04: even and decided for whatever reason not to reveal it on the record, we simply don't know. [00:27:10] Speaker 02: I think that's a fair point, Your Honor. [00:27:12] Speaker 02: That is, the focus that I initially had with respect to the in-camera review was that it was particularly valuable in terms of assessing the determination [00:27:23] Speaker 02: as to whether the records had reasonably seguable information. [00:27:28] Speaker 02: But the district court also, it seems to me, as I reread the memorandum of opinion this morning, [00:27:35] Speaker 02: seems to be relying on the in-camera review for the basic determination with respect to 6E. [00:27:42] Speaker 02: I was unable yesterday to locate the documents that were submitted in-camera. [00:27:49] Speaker 02: I think we secrete them carefully in the U.S. [00:27:52] Speaker 02: Attorney's offices for purposes of protection of security. [00:27:55] Speaker 02: But your point is well taken. [00:27:57] Speaker 02: That is, the documents themselves that the district court reviewed [00:28:00] Speaker 02: may be eliminating with respect to the applicability of 6Z beyond the factors that are set forth in the Brandon Declaration. [00:28:07] Speaker 04: You knew that was going to be my next question. [00:28:12] Speaker 04: Had you seen the documents? [00:28:13] Speaker 04: Yeah. [00:28:14] Speaker 04: All right. [00:28:15] Speaker 04: So we don't know what's in those documents. [00:28:18] Speaker 02: I'm afraid I do not, Judge. [00:28:21] Speaker 06: We don't seem to have it either. [00:28:24] Speaker 06: I tried to find it and we don't seem to have it in the district court record. [00:28:27] Speaker 06: I'm sorry, Judge Miller, I can't hear you. [00:28:28] Speaker 06: We don't seem to have it here in the district court record. [00:28:30] Speaker 06: I tried to find it, to look at it and couldn't find it. [00:28:33] Speaker 02: We were speculating about that yesterday. [00:28:34] Speaker 02: We thought that you probably would. [00:28:38] Speaker 02: If there's anything we can do to assist the court's process with that, we'll be glad to do that. [00:28:42] Speaker 06: Is there anything you can do? [00:28:44] Speaker 06: I mean, is there anything you can do? [00:28:46] Speaker 06: Is there another copy of these somewhere? [00:28:48] Speaker 02: I can inquire. [00:28:49] Speaker 02: I tried to listen. [00:28:50] Speaker 06: Because they're gone, we got nothing to turn over, right? [00:28:53] Speaker 02: From a practical standpoint, the problem is that the attorneys who handled that in the district court are no longer in the attorney's office. [00:28:59] Speaker 02: I attempted to contact one of them late yesterday afternoon. [00:29:03] Speaker 02: He's not around this week, but he may be around next week. [00:29:06] Speaker 02: I think we can track them down if we're given more time. [00:29:08] Speaker 06: I think it would be very helpful, at least for me, to know when you found them and can we see them. [00:29:13] Speaker 02: We will report back to the court. [00:29:15] Speaker 04: This is not very... This is concerning information. [00:29:24] Speaker 04: The U.S. [00:29:24] Speaker 04: Attorney's Office doesn't know where these records are. [00:29:28] Speaker 04: Probably former members of the office did not take them, would they? [00:29:31] Speaker 02: No, I'm sure there remain, Judge Rogers, but with respect to the preparation of these briefs. [00:29:38] Speaker 04: Yes, and I also wondered whether or not any sort of records destruction schedule got in here. [00:29:47] Speaker 02: I don't think that's very likely, Judge Rogers. [00:29:51] Speaker 02: If there are no further questions, other than the report that we've indicated we will make, we're prepared to submit the court a case for this court's disposition. [00:30:00] Speaker 03: When is this person coming back? [00:30:02] Speaker 02: My recollection is that he'll be back in his home office at the beginning of next week. [00:30:07] Speaker 03: All right. [00:30:07] Speaker 03: Can you get it in then by the end of next week? [00:30:09] Speaker 02: I will. [00:30:09] Speaker 03: And if for some reason he hasn't returned by then, let us know that. [00:30:13] Speaker 02: I will report back one way or the other by a week from Friday. [00:30:15] Speaker 03: Thank you. [00:30:17] Speaker 03: All right. [00:30:17] Speaker 03: Does Mr. Vaha have any time to? [00:30:21] Speaker 03: All right, why don't you take a minute. [00:30:24] Speaker 00: Your Honor, in my capacity as amicus, I just want to make sure the court is clear. [00:30:28] Speaker 00: The government did not turn over the specific dates at which the grand jury sat in this case, or in either of the two cases. [00:30:34] Speaker 00: The government turned over the date when the grand jury was impaneled and the date when the indictment issued. [00:30:41] Speaker 00: So that's a seven-month period. [00:30:41] Speaker 06: Those are the only dates. [00:30:43] Speaker 06: OK, I was under the impression. [00:30:44] Speaker 06: It got very confusing in the briefing. [00:30:45] Speaker 06: I was under the impression that they also revealed the dates [00:30:48] Speaker 06: that they considered the two cases? [00:30:51] Speaker 00: No, Your Honor, I didn't want the court to have that impression. [00:30:53] Speaker 00: They did not turn over that information. [00:30:55] Speaker 04: So what precisely was turned over? [00:30:58] Speaker 04: The date the indictment was issued in your friend's case, but not in the other case? [00:31:08] Speaker 00: No, Your Honor. [00:31:10] Speaker 00: What was turned over was, in both cases, the date when the grand jury was convened, the date when that term ended, some 20, 24 months hence. [00:31:19] Speaker 00: But also, in both cases, the date the indictment issued. [00:31:23] Speaker 00: So Mr. Murphy has, at this point, the information for how many months [00:31:28] Speaker 00: was the grand jury deliberating on each case. [00:31:30] Speaker 00: What he does not have and what I think is the fair reading of his request is which days was the grand jury deliberating on these cases or receiving evidence and what times. [00:31:40] Speaker 00: And I think that's really the request before the court and I think it wasn't clear below. [00:31:44] Speaker 04: Okay, thank you for clarifying. [00:31:45] Speaker 04: So given that clarification, what is your position then about the second Brandon Declaration? [00:31:56] Speaker 00: Your Honor, I think it's insufficient in this case for the reasons we've said, because it contains worst case hypotheticals. [00:32:03] Speaker 00: And I was saying the government has all the information. [00:32:05] Speaker 00: It's now unclear what the government actually does. [00:32:07] Speaker 00: But theoretically, assuming the government has these records, the government could put before the district court something more than just these two potentially completely disconnected hypotheticals from the facts of this case. [00:32:18] Speaker 00: And we submit that that would be consistent with the purpose of FOIA and the narrow construing of the FOIA exemptions, as this Court has said. [00:32:26] Speaker 06: I'm sorry. [00:32:28] Speaker 06: No, thank you. [00:32:30] Speaker 06: Do you have a view on FOIA procedure? [00:32:32] Speaker 06: If we were to determine the Brandon Declaration is insufficient, I assume your position is they had their chance, they're done. [00:32:40] Speaker 00: Yes, Your Honor, they've had two chances with the Brandon Declarations. [00:32:43] Speaker 00: I think the third time maybe with a charm, but I don't think it's fair in this case. [00:32:48] Speaker 03: All right. [00:32:52] Speaker 03: Let me just finish with Mr. Bach. [00:32:54] Speaker 03: You were appointed by the court as a friend of the court, and we thank you for your very able assistance. [00:33:00] Speaker 03: Thank you, Your Honor. [00:33:04] Speaker 02: All right. [00:33:07] Speaker 02: Go ahead. [00:33:09] Speaker 02: Do you want to make sure it gets recorded? [00:33:14] Speaker 06: Sorry. [00:33:15] Speaker 06: I want to make sure it gets recorded. [00:33:17] Speaker 02: At page 20 of the Joint Appendix, there appears the second FOIA request of the plaintiff, which asks for the disclosure of the dates and grand jury issued the indictments and the dates and times of sessions the grand jury convened. [00:33:33] Speaker 02: And on page 47 of the Joint Appendix, you have the response of the EA to say that, saying in effect, we're providing the dates, we're withholding the time. [00:33:45] Speaker 06: All right. [00:33:46] Speaker 06: Did you reveal [00:33:47] Speaker 06: What day they talked about case 8CR00433, or only when the grand jury was convened, when it was disbanded or whatever, dismissed, and when the indictment issued, did you just reveal any additional dates? [00:34:05] Speaker 02: I think not. [00:34:07] Speaker 06: And you're arguing that those further dates as to [00:34:12] Speaker 06: Friday, March 7th, we talk about case X. Those are protected. [00:34:17] Speaker 02: I think they're protected, but it's not clear to me, based on the nature of the request, Judge Millett, that that's what's being sought. [00:34:25] Speaker 02: That is, the request asks for the dates and times of sessions the grand jury convened. [00:34:31] Speaker 04: Convened to consider. [00:34:33] Speaker 04: Yeah. [00:34:33] Speaker 04: Well, pro se, global request. [00:34:36] Speaker 06: I understood from the briefing that he wanted to know not just who cares when the grand jury started and ended in the 20-month period, when an indictment issue is a matter of public record. [00:34:46] Speaker 06: I thought my understanding from the briefing all along was that he also wanted to know what days he talked about these cases. [00:34:53] Speaker 06: Otherwise, there's no point to talk about it. [00:34:55] Speaker 02: I think the briefing follows that, Your Honor. [00:34:57] Speaker 02: I'm simply making a point in terms of the [00:35:00] Speaker 02: relative narrowness of the reforia request itself. [00:35:04] Speaker 04: No, counsel for repellent had cited us to these very pages of the joint appendix that you just cited us to. [00:35:10] Speaker 06: Yes. [00:35:11] Speaker 06: It says when the grand juries convened in cases 108, this is your answer, right? [00:35:16] Speaker 06: This is how you understood, convened in cases. [00:35:20] Speaker 06: Not when they convene generally in her own legacies. [00:35:22] Speaker 02: No, no, no, no. [00:35:23] Speaker 02: I understand that. [00:35:24] Speaker 02: I'm simply using that in terms of that. [00:35:26] Speaker 02: I understand it's limited to those cases. [00:35:28] Speaker 02: It's simply an application of what it means to say they convene. [00:35:37] Speaker 03: OK. [00:35:37] Speaker 03: All right. [00:35:38] Speaker 03: Mr. Baja, did you have something you wanted to add? [00:35:42] Speaker 06: I'm sorry, can I ask you, do you understand the request to be for just when the grand jury's go for a long time period? [00:35:54] Speaker 06: Day one and day when they disbanded 20 months later and the date of the indictment, or do you understand the FOIA request, and you're not your client, but do you understand it to also include, and what day did you talk about Inray Lewis, Inray Smith? [00:36:11] Speaker 00: Absolutely, the latter, Your Honor. [00:36:13] Speaker 00: And I don't think the concerns the government are raising about identifying grand jury witnesses would even be implicated necessarily by knowing that a grand jury sat for over a 20-month period. [00:36:23] Speaker 06: And the date and indictment issues is normally a matter of public record. [00:36:27] Speaker 00: That's correct, Your Honor. [00:36:28] Speaker 00: And I think, to be clear, on page 47, the government's latter response maybe mistakenly or imprecisely suggests that the date's information has already been turned over, but it hasn't. [00:36:37] Speaker 00: And so I think his request for the specific dates and times is really what's at stake. [00:36:42] Speaker 06: Thank you very much.