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Case number 13-5269, Prison Legal News Appellant v. Charles E. Samuels Jr., Director, Federal Bureau of Prisons.

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Mr. London for the appellant, Ms.

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Johnson for the appellee.

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Mr. London, good morning.

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Good morning, Your Honors.

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May I introduce the court?

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I am Ronald London on behalf of the Appellant of Prison Legal News.

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With me at council table is my colleague Lisa Zeicherman and Lance Weber of Prison Legal News.

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I'm going to endeavor to reserve three minutes for rebuttal.

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The district court erred on both sides of the balance required by Exemption Six to the Freedom of Information Act in this case by allowing the Bureau of Prisons to withhold the personal information that remains in dispute in this case.

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Specifically, on the public interest side, the district court seriously undervalued the role that the press and public interest groups play in derivatively using information obtained through the Freedom of Information Act along with other public records and materials.

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Are you making that claim with respect to, as I think your brief says, dings?

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With respect to?

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Dings.

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Settlements arising out of dings.

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I thought that was the term from your opening brief, in terms of objecting to the failure of the Vaughan Index to distinguish between dings and more serious.

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Okay, I'm sorry.

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Yeah, so the difference between a car being dinged versus someone being, say, sexually assaulted.

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Right.

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Well, the argument I'm making is that

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The district court said that the only public interest here was the ability to match certain documents with other documents, because prison legal news had shown no well-publicized scandal, and that that matching of documents with other documents was not a public interest that could justify disclosure.

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Now, putting aside that rather ungenerous characterization of prison legal news is showing, I want to focus on a case that was decided after the district court's decision by this court that specifically speaks to that point.

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In the Gerowitz case, this court specifically recognized that being able to take documents acquired through the Freedom of Information Act, if they are unredacted and are fully usable as a result,

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and using them alongside other public records or conceivably sources gathered elsewhere to shed light on government operations could satisfy the public interest showing under Exemption 6.

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That's exactly what the record here reflects.

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Prison Legal News put forward as a public interest here.

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Prison Legal News explained that without the personally identifiable information that's been withheld in these documents, there is no way to properly analyze the thrust of the documents and what they say about government operations.

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When you say these documents,

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Are you referring to not a single page, but a collection of 102?

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Is it 102?

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Well, it's 102 as described in the district court's decision.

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The 102 documents come from what was attached to Prison Legal News' declaration, which was taken directly off the CD-ROMs that they were provided by the government, arranged in the order of those files appearing on the CD-ROMs.

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as exhibits.

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Now, if you look within those 102 documents... I have looked at them, and I frankly don't understand your legal position in looking at them.

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For example, one of them is the Salmonella, which is referred to, and that's exhibit number 95.

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If you look at exhibit number 95, there's one redaction on the claim

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And it's the name of the claimant.

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But then all the other documents have the individual, I've forgotten her name, a lawsuit, a complainant's file, a stipulated.

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So what's the problem that you have with that?

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You know the name of the claimant.

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It's in the document.

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And in 93, for example, there's no redaction at all in Exhibit 93.

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That's right.

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And where I was going a moment ago on trying to enumerate the number of documents at issue.

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Every other one that I looked at just about, there are settlement agreements.

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And the settlement agreement says that we, you know, neither party admit, we neither admit nor deny.

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It's the usual boilerplate language in the settlement agreement.

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And yet you're saying that the names of the individuals who supposedly perpetrated the wrongdoing have to be disclosed because they're wrongdoers.

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But these documents indicate that there's been no agreement and no

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that they were doing anything wrong.

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OK.

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Let me try and answer those in series.

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First, where I was going on trying to enumerate the documents, yes, within the documents that were provided, there were some where the claimant was disclosed.

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There were some where there were repetition.

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The same document appeared in different exhibits.

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There were others where the government ultimately, through the course of summary judgment, unredacted some of the information.

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At the end of the day, there's probably somewhere in the area of 75 or 80 distinct cases

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where either claimants and or bureau of prison alleged wrongdoers are accused and redacted.

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As to the question of the boilerplate recitation that neither side...

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Is it your position that the district court had the duty to go through these 75 documents, maybe 750 pages, I don't know, and some of them are... It's about 900 altogether.

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900 pages?

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That the district court had to go through page by page by page and do the balancing for each page?

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Oh, no.

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My position is the Bureau of Prisons had the duty to do that, and they failed to do that.

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What they left the district court with was a bond index that went, sure enough, document by document.

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But there was no explanation of any kind of context of what the privacy interest being asserted was.

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They repeatedly said over and over again that the privacy interest was simply that the individual who filed a claim suffered injury, loss, death, or some form of discrimination.

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for the Federal Tort Claims Act cases, which is the minority, they threw in that the very filing of the claim revealed that the claimant filed a claim and received some money from the government.

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And as to the BOP officials, the alleged wrongdoers, all they said over and over again was associating them with a case where they may or may not have been a proof of liability would interfere with their privacy rights.

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And then every single case in both of those categories

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They simply concluded that there was... I'm glad you used the modifier, alleged wrongdoers, because that's... I don't recall seeing that in your brief.

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We switched back and forth.

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It is alleged wrongdoers.

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Many of the 75 documents, cases, were settlements.

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Oh, they're all settlements, because if they went to adjudication, those documents are public.

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The documents are public.

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That's right.

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So they're all settlements, and they're all settlements in which the government, the Bureau of Prisons, does not admit liability.

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Yes.

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Or wrongdoing.

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Well, that's not entirely true.

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There are a couple of documents, in fact, where, for example, exhibit number three to the right declaration, there's an actual memo that says to the alleged wrongdoer, you have been found to have committed sexual harassment.

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You may not work with this claimant anymore.

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There are a couple of things.

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But you're right.

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There are alleged wrongdoers.

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But I think you're kind of hitting the nail on the head here.

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And that is, without getting the identities of those individuals, there's no way to make any assessment as to whether the

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Yeah, as I understand it, your claim is at its strongest with respect to repeat offenders, in quotes, because we don't know if they have offended, or repeat complainants, which doesn't need to be in quotes.

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And at least so far as we're looking at that within Bureau of Prisons activities,

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your interest, well, let me say for myself, not for any of my colleagues, I accept the proposition that the public interest in knowing what's going on at least increases where you have repeat players on either side.

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But wouldn't your interest in that be fully satisfied by coding from

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the BOP just using a bunch of letters for everybody so that you could see repeats.

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I mean, it does seem to me that someone who eight times does something rather that causes the government to have to make a settlement for

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sexual harassment is a problem and maybe the government, maybe that does show that the government is up to something silly when it just keeps paying off the complainants and apparently does nothing about the alleged perpetrator.

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But you haven't explicitly asked for that, have you?

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Well, two questions here.

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Would it satisfy our need and have we asked for it?

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Question, would it satisfy our needs?

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Not entirely.

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It would certainly help within this subset of documents to see if there are repeat offenders, repeat alleged offenders, frequent fliers, whatever you want to call them.

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But don't forget, we also have 10,000 pages of other documents that are the same kinds of settlements that just happen to not be settled at the agency level.

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So in order to see if those individuals are represented.

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I'm sorry, we're not settled at the other agencies.

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They were at the agency level, so they generated public records.

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And therefore, they were released unredacted.

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So we've got 10,000 pages of unredacted material, about 900 pages of redacted material.

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Even if they coded for those 900 pages so they could maintain anonymity, you would still have no ability to match across those documents.

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Second of all,

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That kind of coding is not in the records.

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The agency has no obligation to create records for purposes of responding to FOIA.

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And as this court said in ACOU versus DOJ, which has been up here a couple of times in the last several years, that kind of offer by the government, if it was ever forthcoming, which it hasn't been, might be a grounds for settlement.

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But it's not a grounds for satisfying a FOIA burden that the government has.

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I see that I'm out of time.

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If there are any other questions, I will come back on rebuttal.

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Thank you, Your Honor.

[00:11:06] Speaker 05:
Ms.

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Johnson?

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Good morning.

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May it please the Court?

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From the Governor's perspective, we believe that there are two issues before the Board.

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The first one is whether the BOP should have provided subcategories or

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divided the documents into further smaller groups.

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We believe that such delineation was not required here.

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And the second, the theory of derivative use that's been proposed by the appellant.

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As the Court is aware, the BOP, we believe, and the District Court, properly engaged in the balancing approach that is required by Exemption 6.

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It is our view that the release or disclosure of names and any other personal identifying information tips the balance and for the public interest.

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When you look at the documents, as Judge Randolph referred to, for example, there are settlement agreements, and the settlement agreements contain all the other information required.

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For example, if there was a complaint of discrimination filed and there's a settlement agreement,

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The zone agreement says that the parties have agreed to the following documents, but the complaint of discrimination sets forth any allegations.

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So we believe that any information

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that the appellant would need in terms of looking at a Salem agreement has already been disclosed.

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And so when you look at the Moore Fourth Declaration and you look at the Strobel Bond Declaration, you see that there is a substantial amount of information that has been disclosed

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by the government here.

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Does their argument include the redaction of claimants' names?

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or are they just complaining about the redaction of the alleged wrongdoers' names?

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Or is it both?

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Well, Your Honor, if I may direct the courts to the four-year request here.

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The four-year request says claimant slash litigant in the four-year request.

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Is it in the joint appendix?

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The original four-year request, Your Honor?

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Yes.

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It's in several places.

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I was just referring to the one that's in the brief for the appellee.

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But if you look at the... Now, I just wanted to take a look at it.

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Oh, the original four-year question, Your Honor?

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I believe it's located in the Moore Declaration of the Joint Appendix, JA-60.

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60?

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JA-60.

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And what the FOIA request is for all documents showing all money paid.

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If you look at the FOIA request here, this is a request regarding how the BOP spends money.

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And the BOP in all the release that you have in front of the documents, whether you consider them 98 documents or one or two,

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We have not failed to, we have not redacted any financial information that has been paid out or money's paid out.

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Yeah, but I take it the request is based on an interest in what the payments

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show about the policy of BOP with respect to various kinds of complaints.

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And at least so far as we're talking about repeat players, that information is not available, as I understand it.

[00:15:41] Speaker 06:
Well, what is available, Your Honor, is the monetary amounts of that.

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Yeah, but that doesn't answer the problem of how many times you pay out for alleged perpetrator A. Well, Your Honor, when you look at the interest here as to how many times perpetrator A was

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provided funds, there is a selling point.

[00:16:10] Speaker 04:
I'm sorry.

[00:16:11] Speaker 06:
I misspoke, Your Honor.

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When you look at the amount of money that are provided to the plaintiffs,

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you will see that there were no redactions of the amount of money paid.

[00:16:30] Speaker 04:
I understand, but the aggregative effect is concealed, right?

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Unless I'm completely missing something here.

[00:16:40] Speaker 06:
I'm sorry, Your Honor.

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The inferences from aggregation of settlements for call them perpetrator A are lost, or put more cautiously, are not provided.

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Well, Your Honor, what we would submit is that for each of the documents that's listed here,

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we have provided all of the information that would, the financial information, the facts underlined in the claims, and any other matters regarding litigation or settlement of that issue here, except the names and the other identifying information.

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And it does not, the release of the names does not tip the balance here for the public interest.

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As the, the district.

[00:17:32] Speaker 04:
Well, I mean the, the,

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Plaintiff's argument basically is that, at least as I understand it, and I may be understating the full scope of their claim, but they appear to be claiming that repeat players represent a special problem and that the public interest increases with respect to them and that private interest either doesn't rise or doesn't rise at the same degree.

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Right?

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And I don't see any answer by the government to that.

[00:18:07] Speaker 06:
Well, our response, Sharon, is it's just speculation on their part.

[00:18:12] Speaker 04:
How is it speculation?

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Well, when the search is not challenged here, and what the court found across the country

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The various documents in terms of the 98 are from numerous districts here, numerous separate federal facilities.

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And there is no basis, we believe, for the plaintiff, I'm sorry, for the appellant here to suggest that the arreters were just repaying

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paying sums of money in cases where there are repeat cases.

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There's a case that, for example, if there's a tortfeasor, allegedly, that person's, if there's an FTCA claim, that person's name was not redacted if it led to the disclosure of public documents.

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And any argument regarding

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allegedly repeat offenders.

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It's just simply speculation on that part.

[00:19:17] Speaker 04:
Moreover, Your Honor, with each other... I'm not sure what you mean by speculation.

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One thing you could mean is there's no reason whatsoever to think that there are repeat offenders.

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But I don't see how you can say that.

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At least tell me what the basis for such a statement is.

[00:19:35] Speaker 06:
Well, Your Honor, I don't think that they have identified those.

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How could they identify them?

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Well, what I mean is that when you look at the information regarding each of the exhibits that are set forth, either the 98 or 100, every single exhibit lists the claim, any amount of money that was paid, and any other information.

[00:20:01] Speaker 06:
And you can't just ignore the Salomon agreement in which the parties... I'm sorry.

[00:20:06] Speaker 04:
Is there any...

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any practice in the material that was delivered for BOP to say, well, we had to pay an extra amount because

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the prospect of defending this guy was pretty dim, or something like that, which would suggest, or prospect of defending this guy was pretty dim because of his multiple prior accusations.

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I mean, is there some practice of including information like that?

[00:20:49] Speaker 04:
Well, Your Honor, even if... I mean, if there were such practice, then its omission might be telling.

[00:20:56] Speaker 06:
Well, Your Honor, we would suggest that any time that a case is settled, and response specifically to your question, even whether the parties agree that there is a possible chance that there will be problems with further litigation in the case, the Salomon agreement by both parties says that there's no admission of liability.

[00:21:16] Speaker 06:
And that is the agreement reached by both.

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not only does that say that's the end of the litigation, but it also says that any other matters relating to this have been disclosed.

[00:21:29] Speaker 06:
And here the appellee disclosed every single thing about the case other than the particular name of either the plaintiff, if there was no less tort visa, for example, an FDCA claim, that person's name

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was not omitted.

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For example, there was a prison guard and there was an FDCA claim.

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That prison guard's name is on the FDCA claim, the standard form 50.

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That case also went to the district court.

[00:22:00] Speaker 06:
So in those kinds of cases where you have, that you're talking about, an alleged tortfeasor, the identity of that person is disclosed.

[00:22:09] Speaker 02:
I noticed that on Exhibit 3, counsel referred me to the claimant's name is redacted, but the perpetrator, the alleged perpetrator, Eddie Smith.

[00:22:21] Speaker 06:
Eddie Smith, the guard.

[00:22:23] Speaker 02:
The guard.

[00:22:25] Speaker 02:
His name is disclosed.

[00:22:26] Speaker 06:
Yes, his name is disclosed in the claim, and his name is also disclosed in that exhibit, Your Honor, in the documents that were filed in the district court.

[00:22:36] Speaker 02:
Right.

[00:22:37] Speaker 02:
But the claimant apparently sued under just her initials, because the district court complaint, the complaint she filed was just like VFN, and the actual name was not disclosed in the court filing.

[00:22:57] Speaker 06:
It was not in that complaint.

[00:22:59] Speaker 06:
The court said that in Exhibit 3 that the initials reading M was used because the plaintiff did not want to disclose her identity.

[00:23:07] Speaker 06:
That, I believe, is in the text of the complaint.

[00:23:11] Speaker 06:
And it was a sexual assault?

[00:23:14] Speaker 06:
It was by a prison guard.

[00:23:17] Speaker 06:
I believe it was Lexington County.

[00:23:20] Speaker 05:
Can I ask you to clarify something

[00:23:24] Speaker 05:
At some point in the JA, you say that BOP employee names were redacted if they were not acting in an official capacity.

[00:23:33] Speaker 05:
What do you mean by official capacity?

[00:23:35] Speaker 05:
You're not talking about policymakers versus... No.

[00:23:39] Speaker 05:
Right.

[00:23:39] Speaker 05:
What are you talking about?

[00:23:40] Speaker 06:
Well, you're under the, for example, there is the correctional guard if engaged in some conduct, or there may have been

[00:23:48] Speaker 06:
the head of a cafeteria or something.

[00:23:51] Speaker 06:
We would not disclose the name of anyone who was conducting policies.

[00:23:57] Speaker 05:
Well, then who is acting in an official capacity?

[00:23:59] Speaker 06:
Well, we would think that the, for example, if there is a specific incident involving a high-level official, that person would be disclosed.

[00:24:09] Speaker 04:
Could you pursue that?

[00:24:14] Speaker 04:
Are you saying that the disclosures of names that you made include all names of alleged, I'll use the word perpetrators vaguely, broadly, above a certain

[00:24:33] Speaker 04:
rank were disclosed?

[00:24:36] Speaker 06:
No, what I'm saying, Your Honor, there are three groups of claims here.

[00:24:39] Speaker 06:
There's FDCA claims, there's EEOC claims, and there's MSPB claims.

[00:24:45] Speaker 06:
What's the third?

[00:24:46] Speaker 06:
The Mayor's System Protection Board.

[00:24:48] Speaker 04:
Oh, yeah.

[00:24:49] Speaker 06:
And what was disclosed here was the names of

[00:24:55] Speaker 06:
I'm sorry, what was redacted was the names and personal identifying information of people who were not acting in an official capacity.

[00:25:05] Speaker 06:
Is that what you're asking me?

[00:25:09] Speaker 05:
Your answer to me was I took it to be Bivens.

[00:25:16] Speaker 05:
In other words, if it's a policymaker like the warden, you give that name.

[00:25:20] Speaker 05:
If it's a prison guard, Joe Smith, you don't give that name.

[00:25:24] Speaker 05:
Well, Your Honor, I think that when we say here... I don't know what you mean other than that with official capacity.

[00:25:30] Speaker 04:
Yeah, that's what I was taking from your answer to Judge Henderson.

[00:25:34] Speaker 06:
Well, I think our response, Your Honor, would be that when we did the bond index for both,

[00:25:41] Speaker 06:
We said in there that we redacted only the names of employees who were not acting in an official capacity.

[00:25:53] Speaker 04:
And that is... Are you revoking that statute under which suits against an individual get transformed into suits against the government?

[00:26:08] Speaker 04:
I've forgotten the name of the statute.

[00:26:12] Speaker 04:
on the basis of an assertion by the attorney general that it was within the, that the defendant was operating pursuant to, I forget the terms.

[00:26:27] Speaker 06:
We don't believe, as far as we're aware, that there were no claims here.

[00:26:34] Speaker 06:
with regard to any allegations that were redacted because of any Bivens claims.

[00:26:40] Speaker 06:
The only claims here involved EELC claims, FDCA claims, and the mayor's social protection.

[00:26:48] Speaker 02:
I find in looking through these documents, and I haven't gone through it,

[00:26:53] Speaker 02:
even any more than 10% of them.

[00:26:57] Speaker 02:
I just don't find any rhyme or reason.

[00:26:59] Speaker 02:
In some of them, and I was just looking now, the claimant on the first page of the document, the claimant's name is redacted, and then on subsequent pages, the claimant's name is not redacted.

[00:27:13] Speaker 02:
And some of them I find that a prison official, a guard, whatever, his name is redacted on some of the documents and others not redacted.

[00:27:23] Speaker 02:
What's the rationale that's going on here?

[00:27:26] Speaker 06:
Well, Your Honor, it was our intent that the name would be not redacted if it led to litigation where there would be a public disclosure of the name.

[00:27:37] Speaker 06:
For example, in the one that we talked about earlier, the name remains of the person who committed the act, because later on there was further litigation in the district court.

[00:27:54] Speaker 02:
There's a claim form that gets filed in federal tort claims act cases.

[00:28:00] Speaker 02:
Yes.

[00:28:00] Speaker 02:
There's a claim form.

[00:28:02] Speaker 02:
And that's, I take it, is not a public document.

[00:28:05] Speaker 06:
It is the claim that's filed, the standard form 50, and it's where the claimant sets forth the allegations.

[00:28:15] Speaker 06:
And what we did in those claims, Your Honor, is only to redact a name, not the underlying allegations

[00:28:24] Speaker 06:
that the person is setting forth.

[00:28:25] Speaker 02:
I'm just looking at one here.

[00:28:27] Speaker 02:
I don't know what exhibit this is, but it's the Federal Correction Institute, et cetera, et cetera, in Phoenix.

[00:28:39] Speaker 02:
And the claim form is there's Angela Elder, Box A, Cottage 2, Federal Prison Camp.

[00:28:47] Speaker 02:
It's on page JA 348.

[00:28:50] Speaker 02:
And if I go to others, which I've done, and I find the claim form, if you go to J374, the claimant's name is redacted.

[00:29:01] Speaker 02:
It's not redacted.

[00:29:03] Speaker 02:
Like I said, it just seems totally inconsistent.

[00:29:10] Speaker 06:
I would respond that it was the intention that unless it was just overlooked, where if the person's name remained on the particular form, it was simply because it would be released later.

[00:29:24] Speaker 06:
Because what?

[00:29:24] Speaker 06:
Because it would be released later in a public document.

[00:29:28] Speaker 06:
For example, if the claim led to criminal litigation, the name would not be redacted.

[00:29:36] Speaker 02:
It's not true.

[00:29:38] Speaker 02:
It was at 95.

[00:29:40] Speaker 02:
The claim there, as I recall, the claimant's name is redacted, and then the public documents, the complaint that's filed in the district court, the claimant's name is not redacted.

[00:29:57] Speaker 02:
That's the salmonella.

[00:29:59] Speaker 06:
Right, there's several of, well there's another one involving injury because of food.

[00:30:05] Speaker 06:
I think you're on the, I believe in point is exhibit number 95.

[00:30:24] Speaker 06:
the complaint that was filed in the district court.

[00:30:27] Speaker 06:
It says here in West Virginia that there were no redactions there.

[00:30:30] Speaker 02:
Right, but take a look at the claim form, which I think is the, I don't have them from the, which is the first document there.

[00:30:42] Speaker 02:
And we know it's Janet Wilson, but if you go to

[00:30:46] Speaker 02:
you go to J.A.

[00:30:48] Speaker 02:
1239, which is the form for, I think it's a tort claim act, her name is redacted on that, and then not redacted on the other documents, so.

[00:31:04] Speaker 06:
Your Honor, I don't know the answer to that, other than the intent was that if the name was in,

[00:31:15] Speaker 06:
proceeded to further litigation in the public domain, we would not have redacted the name of it.

[00:31:24] Speaker 06:
Thank you.

[00:31:28] Speaker 05:
Does Mr. London have any time?

[00:31:31] Speaker 05:
Why don't you take a couple minutes?

[00:31:33] Speaker 05:
Can you start by telling us how you interpret the redaction of names of BOP employees who were not acting in an official capacity?

[00:31:45] Speaker 03:
I wish I had, I have no earthly idea what the relevance of that is in this case.

[00:31:50] Speaker 03:
That's a concept out of qualified immunity, Bivens.

[00:31:54] Speaker 05:
I mean, whether someone's actually... Well, let me ask you this, to make it more concrete.

[00:31:59] Speaker 05:
Looking at the documents, have they named the warden, but not the prison guard?

[00:32:03] Speaker 03:
Have they named the... And that's why I have no earthly idea.

[00:32:06] Speaker 03:
Because when you look at the documents, there are cases where they have withheld the name, for example, of a warden.

[00:32:11] Speaker 03:
Of a warden who engaged in

[00:32:13] Speaker 03:
some kind of discrimination or retaliation, that can only be acting in their, let's stay away from the word official, but in their work capacity at a minimum.

[00:32:23] Speaker 03:
And I consider that official capacity.

[00:32:25] Speaker 03:
I don't understand the relevance of that distinction at all.

[00:32:28] Speaker 03:
Almost all of these BOP alleged wrongdoers are doing the wrong in the course of their employment.

[00:32:34] Speaker 03:
I don't understand how you can say, oh, we've disclosed everyone who's acting in their official capacity.

[00:32:38] Speaker 03:
In fact, I don't even know how you can have a discrimination claim against someone who's not acting in their official capacity, because that's the whole basis, is that you're treating a subordinate unfairly or doing something wrong to them because you have that power over them by being their superior.

[00:32:54] Speaker 03:
It's as much of a mystery to me as it is to you.

[00:32:55] Speaker 05:
Well, I was trying to think, perhaps, if an inmate is taken to a private hospital and the hospital

[00:33:05] Speaker 05:
does something.

[00:33:07] Speaker 05:
But even then.

[00:33:08] Speaker 03:
I'm not aware of any record among these that are in dispute where the wrongdoer was a private individual.

[00:33:16] Speaker 03:
A couple other points on subcategories.

[00:33:20] Speaker 03:
This court was very clear as recently as a year ago in Citizens Responsibility and Ethics in Washington that a categorical approach is only appropriate when, and I'm going to quote,

[00:33:31] Speaker 03:
only when a range of circumstances included in the category characteristically support an inference and the statutory requirements for exemption are satisfied.

[00:33:39] Speaker 03:
What that basically means is that the agency has to supply some convincing reason by no matter what the context, a privacy interest trumps the public interest.

[00:33:49] Speaker 03:
The only way for that to be true in this case is if there was no public interest whatsoever.

[00:33:53] Speaker 03:
And I spent a fair bit of time explaining earlier that there is.

[00:33:56] Speaker 03:
Otherwise, you've got a category here.

[00:33:58] Speaker 04:
Can we pursue that?

[00:34:00] Speaker 04:
You tell me that although it's a potential basis of settlement between the government and a requester for the government to create a coded system,

[00:34:14] Speaker 04:
answers the question of repeat players.

[00:34:18] Speaker 04:
But it's not something the court can impose.

[00:34:21] Speaker 04:
And if that's the case, then as I understand it, the choice is between, choice requires the court to weigh whether the privacy interests of all the people involved

[00:34:43] Speaker 04:
outweigh the public interest, including the public interest in catching some unknown number of repeat players and therefore some potential for

[00:34:59] Speaker 04:
seeing that the government is behaving stupidly or corruptly in making these settlements.

[00:35:06] Speaker 04:
Is that correct?

[00:35:08] Speaker 03:
Two points on that, if I may, even though I'm out of time here.

[00:35:10] Speaker 03:
First of all, the coding idea really doesn't entirely solve the problem, because as I mentioned... It doesn't cover the outside, right?

[00:35:16] Speaker 03:
I get that.

[00:35:17] Speaker 03:
And not only that.

[00:35:20] Speaker 03:
It doesn't allow us to conduct the journalistic endeavor of follow-up, because if you don't know who to ask, you can't do follow-up and shed additional light on government behavior.

[00:35:30] Speaker 03:
But putting that aside, in terms of whether you do the balancing in the aggregate, everybody's privacy interests versus the public interest,

[00:35:37] Speaker 03:
That's not the way it works.

[00:35:39] Speaker 03:
This court has said that the privacy interest can be affected by myriad considerations including whether the individual is a government employee or not because government employees have a somewhat reduced expectation of privacy.

[00:35:52] Speaker 03:
You also have to look at the rank of the government employee and you have to look at the nature of the conduct that's relevant to that government employee.

[00:35:58] Speaker 03:
You can't do that on an en masse basis with a group that includes government employee alleged tortfeasers, government employee complainants, inmate complainants, third party witnesses.

[00:36:08] Speaker 03:
Those privacy interests are going to be very different.

[00:36:11] Speaker 03:
And in some ways, the public interest is going to be different.

[00:36:14] Speaker 03:
You've got to conduct that balancing in a way that barely assigns the right weight to the privacy interest of the individual and the public interest in disclosure.

[00:36:23] Speaker 02:
Now, I'm not saying- You mentioned exhibit three.

[00:36:27] Speaker 02:
What just so I understand the only thing that's redacted I looked at it is the name

[00:36:37] Speaker 02:
to claim that she had been sexually assaulted by Eddie Smith, the guard.

[00:36:44] Speaker 02:
The guard's name is there, the warden's name is there, the allegation.

[00:36:48] Speaker 02:
The only thing that's missing is the name.

[00:36:51] Speaker 02:
And what's your argument about that it was her to redact the individual's name?

[00:37:00] Speaker 03:
My argument is not that on that particular record it was errant to redact that particular claimant's name.

[00:37:05] Speaker 03:
My argument is that you can't treat every single other document that's in dispute here the same as that document.

[00:37:13] Speaker 03:
That document seems to be, and I can't guess because there's no explanation in the Vaughan index or in the declarations, but it seems to be we're assuming a privacy interest on behalf of the sexual assault victim.

[00:37:24] Speaker 03:
And I think we can all agree that those kinds of victims are left out of court records.

[00:37:31] Speaker 03:
Journalists don't publish rape victims' names.

[00:37:33] Speaker 03:
There's a privacy interest.

[00:37:34] Speaker 03:
But the case law is clear that you cannot use supposedly self-evident privacy interests to meet your burden as the government.

[00:37:40] Speaker 02:
And then in all the other documents... What is the government supposed to do?

[00:37:44] Speaker 02:
What do you suggest, that they disclose their name?

[00:37:48] Speaker 03:
No, not at all.

[00:37:49] Speaker 03:
But I'm suggesting the government needs to do here, at a minimum, for starters, which hasn't happened in the 10 years this case has been litigated, is at minimum provide an explanation of why the privacy interest is what it is and what its weight is.

[00:38:00] Speaker 03:
Now here, this is an extreme outlier case, and we might be able to surmise that, even though the case law doesn't allow us to.

[00:38:06] Speaker 03:
But the other documents here are rife with claimants and BOP officials whose information is withheld.

[00:38:12] Speaker 03:
There's no explanation, for example, of why a torn bicep on a basketball court has a privacy interest sufficient to overcome the public interest.

[00:38:20] Speaker 03:
What's the public interest?

[00:38:22] Speaker 03:
The public interest is the reason that gentleman walked around with a sling for seven weeks is because he didn't get adequate medical care.

[00:38:27] Speaker 03:
There are multiple documents here where they've withheld the name of the claimant and the staff responsible where there was not adequate medical care.

[00:38:35] Speaker 03:
We have a case where someone had a hernia and they weren't treated for so long that they lost a body part.

[00:38:39] Speaker 02:
Did you file in the district court any pleading memorandum going through

[00:38:48] Speaker 02:
the 900 pages that we have before us in this appeal, giving the argument with respect to each one of the redactions.

[00:39:01] Speaker 03:
We couldn't even get that far because the Bureau's categorical approach didn't allow us for that kind of rebuttal.

[00:39:06] Speaker 03:
It's their burden to show the privacy interest and they didn't do it for 99% of these individuals whose information they redacted.

[00:39:17] Speaker 02:
There are documents in here that there's no redaction.

[00:39:22] Speaker 02:
Right, and those documents are no longer in dispute.

[00:39:24] Speaker 02:
Well, are you referring to the footnote in the district judge's opinion?

[00:39:30] Speaker 02:
Yeah, I mean the district judge had defined some of the documents.

[00:39:36] Speaker 03:
That takes a handful of documents off the table.

[00:39:38] Speaker 02:
It's just a handful.

[00:39:38] Speaker 02:
That's right.

[00:39:39] Speaker 02:
He doesn't mention, for example, I mentioned to you Exhibit 93, there are no redactions in there and yet that's one of the documents that you're complaining about.

[00:39:49] Speaker 02:
I don't get it.

[00:39:50] Speaker 03:
No, and let's be clear, we're not complaining about any documents that don't have any redactions in them.

[00:39:56] Speaker 03:
And we're also not complaining about any documents where, for example, as you noted, the individual's name is not redacted on one document in the record, but several other documents in the record, they're identified.

[00:40:09] Speaker 03:
Those individuals have been identified.

[00:40:12] Speaker 03:
Although I will note, in some of the exhibits you're looking at,

[00:40:15] Speaker 03:
For whatever reason, the government has grouped multiple claims by multiple claimants into one exhibit.

[00:40:22] Speaker 03:
So when you're looking across them and you see in the first document the claimant's name is unredacted and in the next document the claimant is redacted, those aren't necessarily the same claim and not necessarily the same person.

[00:40:33] Speaker 03:
What we're saying is, in the first instance, as a first cut,

[00:40:37] Speaker 03:
The government has the burden to explain what the privacy interest and some way for the court to assign it a weight.

[00:40:44] Speaker 03:
And if you want to use a categorical approach, that's fine.

[00:40:46] Speaker 03:
You don't have to go individual by individual necessarily.

[00:40:49] Speaker 03:
Although I will note we're down to about 73 claims at this point.

[00:40:52] Speaker 03:
But if you're going to use a categorical approach, those categories have to make some rational sense.

[00:40:57] Speaker 03:
They have to group together homogeneous individuals or homogeneous incidences and explain why they're similar and what the privacy interest is.

[00:41:04] Speaker 03:
And you've got to take into consideration.

[00:41:06] Speaker 02:
So your argument, as I understand it now, I don't know why I always confuse people, but it includes, it's not just the alleged wrongdoers, the redaction of their name, but it's also the claimants?

[00:41:18] Speaker 03:
Yes.

[00:41:18] Speaker 03:
And I think you're hitting the nail on the head.

[00:41:20] Speaker 03:
And that is the privacy interest of claimants and the privacy interest of wrongdoers is different.

[00:41:25] Speaker 03:
You can't put them in the same category for waiting purposes.

[00:41:29] Speaker 05:
All right.

[00:41:30] Speaker 05:
Thank you.

[00:41:30] Speaker 03:
Thank you very much, Seaners.