[00:00:01] Speaker 01:
Case number 14-5230, Jefferson Morley, Appellant vs. Central Intelligence Agency.

[00:00:07] Speaker 01:
Mr. Losar for the appellant, Mr. Peterson for the appellee.

[00:00:13] Speaker 01:
Thank you.

[00:00:14] Speaker 01:
And just to let everybody know, Judge Williams is participating by telephone today, and Judge Ginsburg will consider the cases based on the audio recordings of the arguments.

[00:00:23] Speaker 03:
Good morning, Your Honor.

[00:00:25] Speaker 03:
Thank you very much for you and Judge Williams.

[00:00:31] Speaker 03:
I'm James H. Lassar representing the plaintiff appellant Jefferson Morley.

[00:00:39] Speaker 03:
Mr. Morley?

[00:00:40] Speaker 00:
I have a question for you.

[00:00:42] Speaker 00:
I may as well start right in right now.

[00:00:45] Speaker 00:
I think it's clear under our cases that the question of the utility of the information gathered

[00:00:53] Speaker 00:
is evaluated ex ante.

[00:00:57] Speaker 03:
Excuse me, I missed the two words there.

[00:01:03] Speaker 00:
The value of the information gathered is

[00:01:08] Speaker 00:
considered ex ante, in other words, the prospect of some useful information, not whether useful information, interesting information, publicly needed information is obtained.

[00:01:22] Speaker 00:
That needs to be cleared from David.

[00:01:24] Speaker 00:
But in figuring out what information judged ex ante is of interest

[00:01:35] Speaker 00:
I noticed David says, the information David requested about individuals allegedly involved in President Kennedy's assassination serves a public benefit.

[00:01:46] Speaker 00:
And I'm trying to figure out what is really intended with allegedly involved.

[00:01:53] Speaker 00:
Someone alleges that the whole assassination was engineered by Stephen Williams.

[00:01:59] Speaker 00:
Does that mean an inquiry?

[00:02:04] Speaker 00:
a FOIA inquiry into every activity of Stephen Williams before the assassination date would be covered?

[00:02:15] Speaker 03:
I think that would be an insufficient nexus.

[00:02:21] Speaker 03:
I reviewed yesterday the oral argument in 2013 at which you were present.

[00:02:35] Speaker 00:
Okay, same question then.

[00:02:40] Speaker 03:
Similar maybe.

[00:02:42] Speaker 03:
But what struck me about essentially the issue then was whether or not

[00:02:52] Speaker 03:
the district court had complied with the law of the circuit as expressed in Davie.

[00:03:00] Speaker 03:
And the court remanded to require him to comply with the law of the circuit.

[00:03:11] Speaker 03:
Now, the law of the circuit

[00:03:14] Speaker 03:
Judge Edwards, who was a member of the panel at that hearing, repeatedly expressed the issue in a little bit different terminology than is used in

[00:03:32] Speaker 03:
the Davey opinion itself.

[00:03:36] Speaker 03:
He referred to the test as being the, let me see, I've got it here, that the topic

[00:03:56] Speaker 03:
of the request and the purpose of the request as opposed to the contents of the request.

[00:04:05] Speaker 03:
And he pointed out that in Davie, the dissenting judge had based his opinion, Judge Randolph, had based his opinion on the contents of the document.

[00:04:25] Speaker 00:
I think there's no doubt at this point that you look at the request for particular documents are delivered.

[00:04:33] Speaker 00:
But what I'm trying to figure out is how much of a burden the requester has to show that there was a prospect of something valuable.

[00:04:44] Speaker 00:
In other words, everyone agrees that the Kennedy assassination was, A, a terrible event, and, B, something of

[00:04:53] Speaker 00:
of enormous consequence and thoughts about it, understanding of it, is very important even in modern America.

[00:05:01] Speaker 00:
So that's a given.

[00:05:02] Speaker 00:
But what I'm trying to inquire is how serious a connection to that event has to be shown to fit within the idea that it has

[00:05:20] Speaker 00:
the requisite probability of turning up something of public interest.

[00:05:26] Speaker 00:
Well, I thought the hypothetical I gave was clearly beyond range.

[00:05:37] Speaker 03:
I would agree to that.

[00:05:38] Speaker 03:
I think if it's wholly irrelevant to the controversy, that certainly would disqualify it.

[00:05:59] Speaker 01:
that there was any involvement.

[00:06:00] Speaker 03:
Yes.

[00:06:00] Speaker 03:
And that's why I think that the liberal standard adopted by Davy is the appropriate standard.

[00:06:09] Speaker 03:
And in any case, however you try to draw the boundaries on that nexus, it's met here and met here.

[00:06:22] Speaker 01:
That may be true.

[00:06:24] Speaker 01:
At least we'll assume that for purposes of the question.

[00:06:28] Speaker 01:
The question Judge Willings raises is an important one, because we have to ask ourselves about the implications of a regime that we adopt.

[00:06:35] Speaker 01:
And we probably want to avoid adopting a regime that's going to open the floodgates in this kind of context.

[00:06:41] Speaker 01:
But I wonder if part of, and you tell me since you're in the business of, or at least in this particular instance, of formulating FOIA requests, I take it we only get to the question of public interest if somebody substantially prevailed in the first place.

[00:06:57] Speaker 01:
So because we're only talking about the fees aspect of the case.

[00:07:00] Speaker 01:
Yes.

[00:07:01] Speaker 01:
So in order to even get down the road to where we'd ask whether there is public interest in asking whether Steve Williams' association with the Kennedy assassination is something that passes the bar, we'd have to assume the circumstance in which there was a FOIA request made that went to litigation and the requestor substantially prevailed.

[00:07:22] Speaker 03:
Yes.

[00:07:22] Speaker 03:
That's certainly, and that is the first of two things that are mentioned in Davey.

[00:07:33] Speaker 03:
The first one is the effect on the litigation.

[00:07:37] Speaker 03:
And here, the effect on the litigation, the fruit of the litigation was that new information was released.

[00:07:50] Speaker 03:
That's one of the changes since this case was last argued in this court, is that the CIA and the district court judge now concede that new information was released.

[00:08:03] Speaker 01:
And I guess what I'm trying to ask is,

[00:08:05] Speaker 01:
Is it true, and I just don't know the answer, that's why I put it to you, is it true that one check against the possibility that we would have

[00:08:15] Speaker 01:
requests that bear an insufficient nexus, one check against that possibility is that it's unlikely that you'd have a situation in which the requests are substantially prevailed in the first place.

[00:08:26] Speaker 01:
So you never get to that question.

[00:08:28] Speaker 03:
Yes, that's the first thing.

[00:08:30] Speaker 03:
Another thing that I would point out is that the CIA, in responding to the request,

[00:08:41] Speaker 03:
in effect held that there was a connection to the JFK assassination because it referred the request, trying to force the requester to refer the request to the National Archives because of its JFK Act

[00:09:01] Speaker 03:
collection was there.

[00:09:04] Speaker 03:
So the CIA in its response assumed that.

[00:09:12] Speaker 03:
I would also point out that it's not just the JFK assassination that is at issue here.

[00:09:19] Speaker 03:
The beginning of this court's last opinion lays out three or four factual findings.

[00:09:31] Speaker 03:
that the requester had made a request for JFK assassination records, that he hadn't obtained the records, that records relating to the Kennedy assassination were released as a result.

[00:09:45] Speaker 03:
So in a sense, I think this Court has already foreclosed that avenue.

[00:09:51] Speaker 03:
It has found that these records were related

[00:09:55] Speaker 03:
to the Kennedy assassination.

[00:09:58] Speaker 03:
The question is whether the Kennedy assassination is a significant historical event.

[00:10:04] Speaker 00:
I don't think that's been spewed.

[00:10:08] Speaker 03:
I'm sorry, I'm having a little difficulty hearing you.

[00:10:11] Speaker 00:
I think everyone agrees that it was an incredibly important historical event.

[00:10:19] Speaker 00:
But the question is, how close was the relationship between the request

[00:10:25] Speaker 00:
and the event has to be, my guess is it's something of a sliding scale, that is to say something digging deeper into the Kennedy administration probably gets more slack than digging deeper into the BP oil spill.

[00:10:45] Speaker 03:
Yes, I think this.

[00:10:48] Speaker 03:
Did you say more flack or more slack?

[00:10:52] Speaker 03:
More slack.

[00:10:53] Speaker 00:
In other words, a lower probability of hitting any pager is acceptable.

[00:11:00] Speaker 03:
I think that's true because the stakes are very great.

[00:11:06] Speaker 03:
Basically, you have a situation in which there has been investigation after investigation that has discounted the original findings of the Warren Commission.

[00:11:21] Speaker 03:
And you have numerous questions arising as a result of that.

[00:11:28] Speaker 03:
The activities of Mr. Joannides are related to that because one of the things that was learned after the Warren Commission report was that it had never inquired about the assassination plots against Castro.

[00:11:51] Speaker 03:
Here there is a nexus because the request is directed at Joannides, and he was in charge of a Cuban exile group that was responsible for plotting those assassination efforts against Castro.

[00:12:09] Speaker 03:
And he was also involved directly with the House Select Committee on Assassinations.

[00:12:19] Speaker 03:
He kept information

[00:12:20] Speaker 03:
from the House Select Committee on Assassinations, including the fact that he was the case officer they were looking for so they could investigate the connections between Lee Harvey Oswald and this Cuban exile group.

[00:12:39] Speaker 01:
Can I ask the following question about the point that Judge Williams started with, which is that

[00:12:45] Speaker 01:
In applying the public benefit part of the standard, the first prong, we look to the request as it's framed ex ante rather than ex post at what's in fact released because, and there's certainly some sense to that because from the perspective of the requester, they don't know what they're going to get until they make the request and the government responds.

[00:13:05] Speaker 01:
But in Davey, there's certainly language to that effect.

[00:13:10] Speaker 01:
But there was also mention, at least, of what in fact was released ex post.

[00:13:17] Speaker 01:
And I'm just wondering what you think the relevance of the mention in Davey of what in fact was released ex post is if we're only looking at ex ante.

[00:13:29] Speaker 03:
I think that the real focus is on the relationship between the documents released and the event, and the documents released there showed that

[00:13:46] Speaker 03:
that they related to a person who had been charged with conspiring to commit the assassination of President Kennedy Clayshaw.

[00:14:03] Speaker 03:
So there was a clear nexus

[00:14:06] Speaker 03:
between an obvious matter of public interest, the prosecution of a citizen of the United States for having conspired to assassinate the president, and the documents.

[00:14:20] Speaker 03:
There is the same kind of relationship here, where you have documents that indicate

[00:14:31] Speaker 03:
extol Jolanides for his accomplishments at times when he was

[00:14:38] Speaker 03:
one in 1961, 62 through 64 period when he was involved in running the DRE, the CIA-funded exile organization that was... Right, all of which goes to, and you have arguments to this effect, all of which goes to what in fact was released.

[00:14:58] Speaker 01:
Yes.

[00:14:59] Speaker 01:
What in fact you obtained.

[00:15:00] Speaker 01:
I guess my question is,

[00:15:01] Speaker 01:
The framing of this public interest, the public benefit criterion, could focus on not necessarily what in fact was released, but what was requested at the outset, because the idea being that the requester doesn't know at the outset what's going to come out of the endeavor, because that's why they're asking, because they don't know what's behind the wall, and so they put in a request.

[00:15:26] Speaker 01:
And so I take it part of your argument is we should be looking ex ante of what was requested.

[00:15:32] Speaker 01:
And there's certainly a lot of language in Davey.

[00:15:35] Speaker 01:
that would support that frame of reference rather than looking at ex-post and what was released.

[00:15:39] Speaker 01:
I guess my question is, but Davey's not entirely lacking in language that points to what was in fact released after the fact.

[00:15:46] Speaker 01:
Also, it seems to have both.

[00:15:49] Speaker 03:
I would agree with that assessment.

[00:15:51] Speaker 03:
It does have to seem both.

[00:15:53] Speaker 03:
But the holding of the case, I think, is pretty clear.

[00:15:57] Speaker 03:
that Judge Edwards' summarization of it is, I think, right on the mark, that it is not the contents of the documents, it is the nexus between the request and the event.

[00:16:14] Speaker 03:
Okay, thank you.

[00:16:15] Speaker 03:
Yes.

[00:16:19] Speaker 00:
I have another question, and that is, some of these documents

[00:16:25] Speaker 00:
were available in the archives for a copying fee of, what, $0.25 a page?

[00:16:34] Speaker 03:
My recollection is it's even more expensive than that now.

[00:16:37] Speaker 00:
Even, say, $0.50.

[00:16:41] Speaker 00:
But low compared to lawyer fees, right?

[00:16:45] Speaker 03:
That's the point you made at the last hearing.

[00:16:47] Speaker 00:
Yes, yes.

[00:16:48] Speaker 00:
And at least insofar as litigation

[00:16:53] Speaker 00:
revolved around that issue.

[00:16:58] Speaker 00:
Doesn't US tax analysts prevent the awarded fees for any segregable part of litigation directed to documents that are available in the archives?

[00:17:14] Speaker 03:
No, I don't think so.

[00:17:16] Speaker 03:
The tax analyst's decision, it comes down

[00:17:23] Speaker 03:
the way it did because the requester had a very strong direct personal financial interest in obtaining the documents.

[00:17:39] Speaker 03:
He was essentially running a subscription service

[00:17:44] Speaker 03:
And he wanted a quick and easy way to get the documents for a private entity that was making money off getting the documents.

[00:17:54] Speaker 03:
That's a far cry from the circumstances here, where you can argue that Jefferson Morley had something of a commercial interest, what Judge Edwards referred to as a quasi-commercial interest.

[00:18:09] Speaker 03:
But the quasi-commercial interest

[00:18:12] Speaker 03:
is still in the favored category of public interest requesters, that quasi-commercial category is not discounted for qualification under the public benefit analysis or under any of the four factors.

[00:18:30] Speaker 01:
Well, this is also where the potential distinction between ex ante and ex post starts to confuse the mind a bit, because I can understand the impetus

[00:18:39] Speaker 01:
behind segregating the documents that are available otherwise from another agency from those that are new.

[00:18:47] Speaker 01:
But ex ante, nobody knows.

[00:18:50] Speaker 01:
Or at least the requester doesn't know.

[00:18:51] Speaker 03:
Well, the situation with the National Archives is that, first of all, there have been new developments since the last hearing with regard to the National Archives.

[00:19:04] Speaker 03:
I went into, with Judge Williams, I think in some detail at the last hearing about the procedures for trying to obtain

[00:19:13] Speaker 03:
JFK assassination documents at the National Archives.

[00:19:18] Speaker 03:
There is no electronic facility for accessing the documents.

[00:19:25] Speaker 03:
In fact, not all of the records that are part of that collection have research identification forms, which are posted on the NARA website.

[00:19:39] Speaker 03:
But those are highly unreliable.

[00:19:42] Speaker 03:
And what we have learned in recent weeks

[00:19:45] Speaker 03:
is that after telling the public for the past several years over great skepticism by myself and others that the CIA had only withheld 1,100 or 1,176 documents,

[00:20:08] Speaker 03:
from being released by the deadline of the JFK Act in 2017, that in fact we now know, they've now admitted, that there are thousands upon thousands of documents that are not accounted for, that are still being withheld.

[00:20:28] Speaker 03:
So the system is unreliable.

[00:20:30] Speaker 03:
It can't be trusted.

[00:20:32] Speaker 03:
And in this case, the CIA initially told us that there were 78 JFK documents to go look for them at NARA.

[00:20:44] Speaker 03:
But when we got the request, when they first did the search after we got instructions that they were to search, they came back with 88 documents.

[00:20:55] Speaker 01:
Is this going to the point that the benefit from getting documents, even with respect to the documents that are already in the public domain in NARA, is not just the saving on copying costs?

[00:21:11] Speaker 01:
If you were to go over there and do the search yourself, you still wouldn't come up with the same documents that the government has in its possession.

[00:21:18] Speaker 03:
Yes, and you would be reliant upon someone to guide you and try to find the appropriate place to go, and it's very complicated.

[00:21:28] Speaker 03:
There are five million pages of records there.

[00:21:31] Speaker 03:
And there are all kinds of problems with that collection that hopefully at some point we'll be able to get a congressional hearing on.

[00:21:41] Speaker 03:
But at the moment, you have to go through this process of you either make a FOIA request in which the agency that is, and it's not necessarily the CIA, it could be the State Department or the FBI,

[00:21:55] Speaker 03:
The agency has to be responsible for conducting the search.

[00:21:59] Speaker 03:
There you've got some handle on the search without having to do it yourself.

[00:22:04] Speaker 03:
That's all I have to say unless you have any further questions.

[00:22:11] Speaker 03:
Thank you.

[00:22:12] Speaker 03:
Thank you, Your Honor.

[00:22:27] Speaker 02:
Good morning, Your Honor.

[00:22:30] Speaker 02:
May I please the Court?

[00:22:32] Speaker 02:
The public benefit factor favors awarding of a petition of attorney's fees when the production of the responsive documents from the FOIA requests

[00:22:46] Speaker 02:
has been found to have added to the fund of information that the public can use to make the vital political choices.

[00:22:53] Speaker 01:
So that formulation focuses on what's in fact produced.

[00:22:57] Speaker 01:
And if I can just start with where Judge Williams started, which is let's assume that what Davey stands for is the proposition that you look ex ante at what was requested.

[00:23:08] Speaker 01:
And I know you may have a disagreement with that, but just indulge me.

[00:23:11] Speaker 01:
If you approach it from that perspective,

[00:23:14] Speaker 01:
What's the argument that the public interest, the public benefit criterion, is not squarely implicated here?

[00:23:22] Speaker 02:
Yes.

[00:23:22] Speaker 02:
Well, assuming that the request is the fulcrum, and we use that as the starting point, the request itself, paraphrasing, asked for all the documents concerning Mr. Jolini.

[00:23:36] Speaker 02:
And it's a very broad request and a broad sweeping request.

[00:23:45] Speaker 02:
here that request could also be

[00:23:49] Speaker 02:
looked at in terms of where are the connective tissues between Mr. Joinedes and the assassination request, because the request also referenced in the request that the purpose of the request for the documents from Joinedes was to add further light on the assassination, not just a expose on Mr. Joinedes life and his times, but to bring light on the JFK assassination plot.

[00:24:17] Speaker 02:
even under that light.

[00:24:21] Speaker 02:
The evidence that Mr. Joannidis had anything to do with a plot to kill the president is scant at best.

[00:24:30] Speaker 02:
The evidence that's presented in this case talks about how Mr. Joannidis shared a city with Mr. Oswald at a certain point in time that no one knows and no one can demonstrate.

[00:24:44] Speaker 02:
And that is one of the nexus that's used to prove that there is a

[00:24:49] Speaker 02:
a connection between Mr. Joannides and Mr. Oswald.

[00:24:52] Speaker 02:
It also talks about a career ward where the 30-year career of a CIA employee was used to make a very weak connection between a two-year period in that career and that the CIA therefore, assuming that there was some sort of a legal activity in that two-year

[00:25:13] Speaker 02:
that the CIA endorsed that illegal activity to have a plot to kill the president.

[00:25:21] Speaker 01:
So now we're talking about what in fact was produced.

[00:25:22] Speaker 01:
I understand.

[00:25:23] Speaker 01:
But even if we are, as to that, as to the award, my understanding from the record is that

[00:25:29] Speaker 01:
somebody thought that was interesting because didn't weren't there a bunch of media sources that in fact republished the photograph of the award recipient with the award or as my understanding is that the district court was never presented

[00:25:46] Speaker 02:
the photograph itself, but there was evidence that there was a photographer at their award ceremony, and there may very well be a photograph out in the open.

[00:25:55] Speaker 01:
Oh, is that not in the record?

[00:25:56] Speaker 01:
I thought it was represented.

[00:25:57] Speaker 01:
Is it at least represented in the briefing that the photograph was reproduced in multiple media sources?

[00:26:02] Speaker 01:
that's not in the record.

[00:26:04] Speaker 02:
I'm unaware of that.

[00:26:06] Speaker 02:
I was just referencing a footnote in the memorandum and opinion of the district court where it indicated that it did not receive the photograph itself, but took it for granted that there was a photographer there, and even assuming that there was a photograph.

[00:26:20] Speaker 01:
But do you know the record of the case?

[00:26:22] Speaker 01:
Are the photographs

[00:26:24] Speaker 01:
the reproductions of the photograph and media sources.

[00:26:26] Speaker 01:
Were they at least cited or are they in the... Yeah, they are cited.

[00:26:29] Speaker 02:
And there was a photograph that I believe that the appellant is referencing.

[00:26:34] Speaker 02:
I'm just simply alerting the court that the district court never had that photograph in its hands, according to the footnote that it provided in its memorandum of opinion.

[00:26:43] Speaker 01:
I know what the footnote says, but I guess the question is whether the footnote's right based on what the district court was presented with.

[00:26:51] Speaker 01:
I understand.

[00:26:52] Speaker 01:
So you're not taking the position that the district court did not, in fact, did not have the photographs either before or available to it.

[00:26:58] Speaker 01:
You're just saying that the district court

[00:27:01] Speaker 01:
indicated in his opinion that it was unaware of that.

[00:27:03] Speaker 02:
That's exactly right.

[00:27:04] Speaker 02:
That's what the district court represented.

[00:27:07] Speaker 02:
But even assuming the existence of the photograph, I think that the analysis is correct.

[00:27:13] Speaker 02:
And I don't want to provide any short shrift to the court's hypothetical of ex ante consideration of what is

[00:27:22] Speaker 02:
What's before the actual production and the request itself?

[00:27:30] Speaker 02:
As the court indicated, we do disagree with that formulation.

[00:27:34] Speaker 02:
But the downside of having a regime where the request itself is the fulcrum does open the door to a broad request, such as the one we have here before us,

[00:27:52] Speaker 00:
Well, that doesn't depend upon how serious the connection must be between the documents requested and some at least plausible or not completely implausible theory of actually an involvement with the Kennedy assassination.

[00:28:17] Speaker 02:
right.

[00:28:18] Speaker 02:
So the dichotomy between plausible and implausible, those are considerations, of course.

[00:28:27] Speaker 02:
I think the district court used a different standard as to whether or not it was likely to add

[00:28:34] Speaker 02:
to the public fund, not whether it was truthful or not truthful in terms of its actual content or its result.

[00:28:43] Speaker 02:
The district court, I think, specifically demurred when it

[00:28:49] Speaker 02:
the subject of whether the information itself was truthful or not truthful, but instead try to focus on whether or not the information, assuming the truthfulness of it, whether the information itself and getting back to the ex-coast production, whether that, those documents, those four documents,

[00:29:06] Speaker 02:
to the public discourse that could help inform the public at large about the political choices it needs to make.

[00:29:16] Speaker 02:
And the court is absolutely right that the topic area of this needs to be separated from the actual production of what we have before us after a decade of litigation.

[00:29:28] Speaker 02:
we're going to do is we're going to reduce the amount of documents that are being produced.

[00:29:32] Speaker 02:
On this particular case after the decade of the from from the very beginning of the court request to now.

[00:29:35] Speaker 02:
And over 1200 documents being produced.

[00:29:37] Speaker 02:
We were reduced down for documents.

[00:29:41] Speaker 02:
those four documents pertain to the topic areas outlined before, which is the career ward and travel forms.

[00:29:48] Speaker 02:
And none of those documents have the connective tissue that you find in Davie.

[00:29:55] Speaker 02:
In Davie, there's no dispute, at least the court found that there was no dispute, that the connective tissue was there and that there was a

[00:30:07] Speaker 02:
there was a focus of the produced document that bared on the actual truth or the falsity of the event in question.

[00:30:18] Speaker 02:
And that was the fulcrum that that court used in order to make the decision as to whether or not there was a public benefit.

[00:30:27] Speaker 01:
Here we have a dispute.

[00:30:28] Speaker 01:
One of the points that was made in Davey and echoed, I think, in our prior decision in this case that affected the remand,

[00:30:35] Speaker 01:
was that, to use your language of connective tissue, you may not know at one particular point in time what the connective tissue is.

[00:30:43] Speaker 01:
It might spawn subsequent inquiries that in turn spawn subsequent inquiries that then draw the connections.

[00:30:48] Speaker 01:
And that is at least a possibility in a situation like this where we're already talking about

[00:30:53] Speaker 01:
I don't want to use a pejorative term, but we're talking about conspiracies to some extent by nature.

[00:31:00] Speaker 01:
And so part of the enterprise here is we want to look to see whether there happen to be travel documents that put people in the same place in the same rough window of time.

[00:31:07] Speaker 01:
And if there are, then maybe that leads somebody to look into it, scrutinize it a little bit more.

[00:31:11] Speaker 01:
And then they're not going to look at the government.

[00:31:13] Speaker 01:
Maybe they go interview some people that were on site.

[00:31:15] Speaker 01:
And that spawns some things.

[00:31:17] Speaker 01:
And so part of the reason that I think

[00:31:21] Speaker 01:
A lot of AV suggests looking ex ante is married with this proposition that you don't know the connective tissue based on a particular frame of reference in point in time.

[00:31:32] Speaker 01:
You have to just understand that they could lead to subsequent increase that could bear fruit.

[00:31:36] Speaker 02:
And I want to address that point in two ways.

[00:31:40] Speaker 02:
First, I want to get to what I believe the case law in the circuit talks about in terms of the purpose of the actual fee petition in FOIA.

[00:31:51] Speaker 02:
And the fact that the initial purpose of the FOIA fee shifting provision

[00:32:00] Speaker 02:
was to not incentivize the requesters to come forward with legitimate requests or otherwise, but to incentivize the agencies not to hide behind a bureaucracy and essentially wait out those requesters who could not afford the lengthy litigation.

[00:32:19] Speaker 02:
And so when looked at it from that point of view, it's not focused on the request at all in terms of the reason or the trigger for the attorney's fees provision to kick in.

[00:32:33] Speaker 02:
But furthermore, in a case like this, you're absolutely right.

[00:32:40] Speaker 02:
You'll never know when you're requesting what the documents will produce.

[00:32:44] Speaker 02:
But if you ask a broad enough question,

[00:32:48] Speaker 02:
the chances are great that you will find something that's been withheld that will be produced and at that point you are considered a substantially prevailing party and you're in this situation again and I think maybe more so than one may

[00:33:05] Speaker 02:
then maybe the appellant wants to admit that this is a repeatable situation where after a decade of litigation you have four documents that have weak to tenuous connections to the actual event in hand and the fees are on the table for the taxpayer to pay at that point.

[00:33:24] Speaker 01:
But it only took a decade and there were only four documents because it's not entirely the requester's fault, right?

[00:33:31] Speaker 01:
No.

[00:33:31] Speaker 01:
I mean, we're only here because we went to litigation in the first place.

[00:33:34] Speaker 01:
Yes.

[00:33:35] Speaker 01:
If everything had been done in the way that it turned out at the back end, then we never would have gotten the litigation.

[00:33:41] Speaker 02:
Well, you know, that brings up to the point of the agency's conduct, correct?

[00:33:44] Speaker 02:
Because in this case, the agency had a reasonable basis to withhold certain documents or to not serve certain indices because of case law that was, at the time, relevant.

[00:34:00] Speaker 02:
that's what we're trying to do.

[00:34:01] Speaker 02:
We're trying to make sure that we're not controlling in this circuit.

[00:34:05] Speaker 02:
The.

[00:34:05] Speaker 02:
The agency resisted that search and.

[00:34:08] Speaker 02:
With the guidance of his court and the changing of that precedent.

[00:34:11] Speaker 02:
The agency comply.

[00:34:12] Speaker 02:
You know, it was things like that in the initial the initial shifting of the, um of the

[00:34:21] Speaker 02:
The district court found that that was also reasonable, too, given the fact that this was not a expose on joint needies, but in fact an effort to bring light to the JFK assassination, that there is a repository that is actually meant to help the citizens to find information in that sense.

[00:34:41] Speaker 02:
So it wasn't as if the agency gave a completely irrelevant source to go to.

[00:34:48] Speaker 02:
that's not the case.

[00:34:48] Speaker 02:
It's not the case.

[00:34:49] Speaker 02:
It's not the case.

[00:34:49] Speaker 02:
So those things that did elongate this process, but it was it was all along.

[00:34:53] Speaker 02:
Along the lines of a reasonable conduct that is also one of the factors in dealing with, you know, the fee petition, and it goes to the other point that, you know, even second side, the public benefit factor.

[00:35:05] Speaker 02:
There are there are three other factors that you know the district court found in the favor of the

[00:35:15] Speaker 02:
and that's the reason was of the agency's conduct.

[00:35:20] Speaker 02:
And I don't believe that there was any serious argument that this agency acted in an irrational way or some sort of nefarious way to frustrate the purposes or the attempts of the plaintiff without cause.

[00:35:39] Speaker 02:
So understanding that context of the purpose of the fee shifting provision and the weakness of the connection in this particular case, and the fact that, in general, these kinds of inquiries need to be very fact-specific, case-specific, and review the documentation.

[00:36:05] Speaker 02:
a case law that says that, well, deemphasizes the results and just talks about the intent of the request.

[00:36:16] Speaker 02:
doesn't adequately protect against the abuse of that possibly happening down the road with broad requests and confusing and inconsistent results as a result of the fact that the requests themselves are not tenable for the agency to search such a broad request.

[00:36:36] Speaker 00:
I don't think anyone is suggesting that the intent of the requester is controlling and perhaps not even relevant.

[00:36:44] Speaker 00:
The question is,

[00:36:46] Speaker 00:
the objective link of the request to something that might be of public interest.

[00:36:55] Speaker 02:
Yes, and in this case, you know, the linkage to the JFK assassination

[00:37:03] Speaker 02:
obviously makes a connection to a very important topic area.

[00:37:09] Speaker 02:
And if that's the topic area, then there are certain things that are so de minimis as to the actual results of that search that should cause for the public benefit factor to be called into question.

[00:37:25] Speaker 02:
And in this case, there's no question that, you know, while reasonable minds can differ as to the import of the conclusion of what these documents pretend, that is exactly what the district court is called upon to do, which is in their zone of discretion to determine.

[00:37:43] Speaker 02:
what is actually connected to the overarching subject matter, in this case, the JFK assassination.

[00:37:52] Speaker 02:
And the district court determined that travel records and a career medal for a lifelong career in the CIA are too tenuous and too scant to justify a public benefit analysis in the favor of the appellant.

[00:38:10] Speaker 01:
How does the, if we're talking about degrees of remove or degrees of remoteness, in our initial opinion in this case, or at least in the 2007 opinion in this case, part of what came up because of the way the statutes work together, was how remote the connection was between the request made by Morley and the function of the Church Committee?

[00:38:31] Speaker 01:
And I think that the decision that we handed down said that, well, if it was only a remote relationship, that would be one thing.

[00:38:39] Speaker 01:
But it's not merely a remote relationship.

[00:38:41] Speaker 01:
It's actually a pretty direct relationship to what the church committee was investigating.

[00:38:46] Speaker 01:
And that's something of public interest, because that committee dealt generally with the subject of assassinations.

[00:38:55] Speaker 01:
So is there something to the fact that our prior opinion, in this case, documented a direct connection rather than a remote connection, at least vis-a-vis the Church committee?

[00:39:06] Speaker 02:
Right.

[00:39:06] Speaker 02:
So to the extent that the Church committee is involved, then we're talking about the investigation of the assassination.

[00:39:15] Speaker 02:
Yeah.

[00:39:15] Speaker 02:
And the subject matter of this litigation is John Edes.

[00:39:20] Speaker 02:
And the involvement of Mr. John Edes in that process

[00:39:24] Speaker 02:
has already been exposed prior to this litigation ever even commencing.

[00:39:30] Speaker 02:
And the CIA has already acknowledged the joint that he served on or was a liaison with the House Select Committee in that capacity.

[00:39:40] Speaker 02:
So we get to the fact of whether this is new information now, again, whether Joe and Edie's connection with the investigation is really new information, even though, as the court says, it is a direct connection.

[00:39:50] Speaker 02:
Is this new information adding to the actual fund of the public information fisc?

[00:39:57] Speaker 02:
And that's where we say we've argued that no, that since it's not new information as Davy,

[00:40:02] Speaker 02:
It should be.

[00:40:04] Speaker 02:
It should be new information that it was, while directly connected, it wasn't new to add to the fund of public information.

[00:40:12] Speaker 01:
It didn't turn out to be new?

[00:40:14] Speaker 02:
Right.

[00:40:15] Speaker 02:
You're absolutely right.

[00:40:16] Speaker 02:
It didn't turn out to be new.

[00:40:17] Speaker 02:
If the lens is what did the requester know at the time it asked versus what it actually turned out to be, you're absolutely right.

[00:40:26] Speaker 02:
It turned out not to be new.

[00:40:28] Speaker 02:
But the but because the information was already in the public record, um, the request or had a chance to determine that this was this was at least on his face that this information was already out there.

[00:40:43] Speaker 02:
The subject matter of Mr Julian Edes and his involvement investigation was already out in the public domain.

[00:40:50] Speaker 02:
So if there are no, I see my time has elapsed.

[00:40:54] Speaker 02:
If there are no further questions, we ask the court to affirm the district court's decision.

[00:40:59] Speaker 01:
Thank you.

[00:41:03] Speaker 01:
We'll give you two minutes for rebuttal.

[00:41:06] Speaker 03:
Thank you very much, Your Honor.

[00:41:07] Speaker 03:
I just want to...

[00:41:09] Speaker 03:
say that it's somewhat mind boggling for me to hear that there is no connection, significant connection, between the newly released information and the Kennedy assassination.

[00:41:30] Speaker 03:
We have the fact that

[00:41:36] Speaker 03:
During the proceedings of the Assassination Records Review Board, the CIA could not locate the case officer who was in charge of the DRE.

[00:41:49] Speaker 03:
The House Select Committee had tried to find him.

[00:41:53] Speaker 03:
Jefferson Morley was eventually able to get the Assassination Records Review Board to produce some documents, and eventually, Joannides was identified.

[00:42:10] Speaker 03:
However, it was not known that Joannides was working in an undercover capacity

[00:42:18] Speaker 03:
at the same time that he was working with the congressional committee investigating the assassination, that the congressional committee was inquiring as to who the case officer was, and he did not inform them, and the CIA did not inform them.

[00:42:36] Speaker 03:
and that he had a direct conflict, Joannides had a direct conflict of interest here because he was the person responsible for paying funds to the DRE with which Oswald was involved.

[00:42:56] Speaker 03:
We have the fact that there was an award of a medal to Joannides

[00:43:04] Speaker 03:
which covers the period of time that he was the liaison with the House Select Committee, not informing them what it was his obligation to inform them of.

[00:43:15] Speaker 03:
That is a very direct, very substantial connection that is new information, and under any definition of what potentially contributes to the political, to the public benefit, it meets that standard.

[00:43:32] Speaker 03:
The same with the travel records.

[00:43:34] Speaker 03:
the CIA disputes on the basis of what evidence we don't know because there's been no affidavit in the record declaring that the travel record forms say what the government now represents to the court.

[00:43:53] Speaker 03:
They say the records themselves say travel records and regardless of whether or not

[00:44:00] Speaker 03:
They established precisely what the CIA claims they did or what Morley thinks they did.

[00:44:08] Speaker 03:
They established that Joe Anidis was in New Orleans on home leave.

[00:44:17] Speaker 03:
And that is critically important because the DRE activities and the Oswald activities leading up to the assassination of President Kennedy were carried out in part in New Orleans and in part in Miami.

[00:44:34] Speaker 03:
So there's just simply no question that this is all related.

[00:44:42] Speaker 03:
Now, one final point.

[00:44:43] Speaker 03:
On the issue of the photograph, the judge said he didn't have a copy of the actual photograph.

[00:44:50] Speaker 03:
What he had was a citation to the website for the New York Times.

[00:44:58] Speaker 03:
The print edition of the New York Times did not carry the photograph.

[00:45:04] Speaker 03:
of it did.

[00:45:06] Speaker 03:
And the link to the digital version was put in the record for the district court.

[00:45:13] Speaker 03:
So it is straining credulity to claim that that was not part of what was before the court.

[00:45:22] Speaker 01:
Thank you.

[00:45:23] Speaker 01:
Thank you.

[00:45:23] Speaker 01:
Case is submitted.

[00:45:24] Speaker 03:
Thank you.