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Case number 12-13-5286, Sharif Mobley, Appellant vs. Central Intelligence Agency at Elle.

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Mr. McClanahan for the appellant, Mr. Byron for the appellees.

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Court is prepared to hear argument.

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Your Honors, may it please the Court, my name is Kel McClenahan.

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I'm here on behalf of Sharif Moblin.

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And this case is very factually complicated, but relatively legally simple in our view.

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And so rather than go into any great detail,

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over what has been written in all the briefs on both sides.

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I'm going to attempt to sort of summarize it in the first principles so that I can address anything that the court might be interested in asking more about.

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There's four main issues here.

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The first issue is whether or not the FBI conducted an adequate search for records when it only searched one file system, which it claimed was comprehensive, even though its own testimony in numerous other cases

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listed a laundry list of ways in which it was not comprehensive, and if it can refuse to search other locations solely based on the fact that it searched the one system, the CRS, the central record system, really well.

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That's the argument they're making.

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That's the argument that

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the district court accepted, and we don't believe that that's consistent with any of the case law, let alone good public policy.

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The second issue that we're going to discuss is an issue of waiver.

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The idea that

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Both the FBI and the CIA in their own way waived their rights to invoke certain exemptions.

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The FBI waived its right to invoke an exemption regarding one document at least, which was – as far as the record shows, appears to have been officially released to the Yemeni government.

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and yet is being withheld here by the FBI.

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And when we introduced that information, the FBI claimed that it had no record documenting this release, but we later found out that the reason they had no record documenting the release was that they never actually looked for records.

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documenting the release, as showed in a FOIA response they made to actually me in my own lawsuit for records about the investigation, at which point they came back and said there's no responsive records.

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We have no records about even looking to find out if this was officially released.

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We don't think they can just conclude really

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claim that something was not an official and documented release because they can find no documentation after not looking for any documentation about the release.

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The waiver on behalf of the CIA was, as everyone admits, an inadvertent waiver.

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The CIA accidentally

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confirms that it had records about Sharif Mobley.

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It then backtracked and said, oh, that was an error.

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We meant to say we will not confirm or deny that we had any records about Sharif Mobley.

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But in order to make the first mistake, they would have to have done so many things wrong that it just beggars belief.

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runs up against the presumption of agency regularity.

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They would have to have first stated in two different cases that they found records, then stated that all of those records were exempt under two different exemptions, one of which required checking to make sure it was properly classified.

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Third, then said that there was nothing segregable in any of those records in two different cases.

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That's what they would have to have.

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That's what a FOIA officer who bears a duty and responsibility to properly segregate by line by line review, responsive records and not claiming exemptions except when they are absolutely appropriate would have to have made all of those mistakes.

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And the director of the FOIA office would had to have signed off on both letters claiming all of this.

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Instead, they would have you believe, and they had the district court believe, that it was an accident.

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We really meant to say we couldn't find anything.

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No, we really meant to say that we wouldn't look or confirm that we couldn't find anything.

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So there's nothing to see here.

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Please give us deference.

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and the court gave them deference.

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The third issue pertains to the Privacy Act.

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And the Privacy Act, because these were for records about Sheriff Mobley, as Martin says, when you have a record that is being processed under both FOIA and Privacy Act, it has to be exempt under both.

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Well, the FBI said it did not have to release anything under the Privacy Act because the CRS in its entirety was exempt under the Privacy Act because the FBI did law enforcement.

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Well, this is completely at odds with this court's law, the court's controlling law, and it

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That's the dough case, I believe.

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Hold on, I may have misconstrued the two cases.

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I'm forgetting something, and I do not know what I'm forgetting, and I apologize for that.

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Can I take you back to the initial argument, which is that the FBI search of CRS was inadequate?

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So suppose that we just put to one side, and I know that you have an argument to the contrary, but suppose that we put to one side anything we discover in any other case, anything that comes out of any other case about the scope of the CRS.

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Based on what we know in this case, in the affidavits that were filed in this case, what's your argument as to why the search of CRS was inadequate, given that what CRS professes to do is to supply law enforcement investigators themselves with tools for accessing records that are germane to a particular case?

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This is the Hamden argument that the government just filed a notice of supplemental authority last week.

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The idea that the CRS would not be a very effective law enforcement tool if it were not completely indexed.

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Right.

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Well, number one,

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I would argue that whether or not an agency is properly doing one aspect of its job has absolutely nothing to do with whether or not something is properly indexed for the purposes of FOIA.

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It's already bad enough that... Well, I can't be right.

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I mean, it might be right, but what would be inadequate about this?

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In other words, this is the tool that FBI, that law enforcement investigators do use

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to gain records about a particular subject matter.

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I mean, you might be right in the abstract that just because something serves one purpose doesn't serve another purpose necessarily.

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But what is it about the serving of the law enforcement purposes that would lead us to believe that it's inadequate for purposes of FOIA?

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A couple reasons.

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Number one, and again, I cannot state enough that I think that you cannot ignore the testimony in the court records of how inadequate the CRS is, period.

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But leaving that aside, these requests specifically indicated where records were likely to be located.

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And when the request itself did not, because honestly, the requester at the time didn't know that, or his lawyer in the UK didn't know that.

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Once I came on the case and I did more research, I sent these emails saying, based on everything that I have found, here are the locations these records are likely to be.

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And in the case of the Baltimore office, here's a news article where your Baltimore office stated that it had files on Mobley because it was investigating him.

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The agency then said, we don't have to do anything you want.

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We don't have to search anywhere you want because it's up to us to decide what is reasonable.

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However, and this is where their argument breaks down, and honestly, with due respect to Judge Hell, her argument breaks down.

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We don't have to follow your instructions to search email systems, but we don't have to search email systems because you didn't specifically ask us to.

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So can I ask you this?

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And does from your understanding, CRS, does it include emails?

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CRS includes some emails, but and am I allowed to refer to other cases for this answer?

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Oh, if just as a factual answer.

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Yes, CRS, but by the testimony given in other cases, CRS contains pertinent emails.

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CRS does not contain all emails.

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Even ignoring the testimony in other cases, we know that CRS does not contain all emails from my own case that I alluded to before, where they searched the Washington Field Office email systems and found 36 pages or 26 pages of emails that were not in CRS.

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So in the Crisman case, the agency said,

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We don't search the CRS is what contains all the pertinent emails.

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And this is a recurring theme for things like shared drives.

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The shared drive argument in one of the other cases, they said, we don't search shared drives because those are records that aren't indexed.

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Those are records that are transitory.

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Those are records that people can edit.

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None of these statements means those are not agency records responsive to FOIA.

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And yet in this case, they say, oh, we didn't deem that the shared drive would have anything.

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Well, that's belied by their position in other cases.

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And so.

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So is your understanding of the record that this is not an instance in which the FBI was saying it had already completed its search and then learned of these additional places where documents

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might be located according to your emails.

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Your Honor, that's a complicated question because we don't know when they completed their search.

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I argued many times that they needed to say when they completed the search so the judge could decide if they had completed it at the time they've got these leads to follow.

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The evidence suggests that they had not completed the search at the very least when I sent the email to them pointing out specific locations because they were still conducting it a week later and did not make a release until a year or sorry they were still conducting it a week earlier.

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and did not make a release.

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Well, of course, in the affidavit, at least the first affidavit, in paragraph 23, it says on September 22, 2011, I assume you agree with the date, plan to inform the FBI by email that would like the FBI to include the FBI at Baltimore and FBI at Washington Field Office.

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And then on May 4, 2012, several months later, the FBI sent plaintiff a release of documents.

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Right, and we don't know, we also know, however, that, based on another affidavit, that a week earlier,

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and allow me to find, it's 17 August 2011 letter said, we are searching the indices to our CRS.

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So on August 17th, 2011, they were searching.

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The first email I sent to them was on August 23rd, a week later.

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The second email I sent to them was on August 29th, and the third one was in September.

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And they didn't,

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tell me anything about their search until almost a year later.

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So the question of when they found out about it is up in the air.

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When they completed their search is up in the air.

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They never said it despite my pleas to the district court to make them say on a separate issue.

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They make the same argument about whether or not they have to follow the leads in the State Department records that were released.

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that were copies of emails exchanged with FBI, which were not in the CRS clearly because they weren't released by CRS.

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They say there's no evidence.

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Our plaintiff has provided no evidence that we received any word of this information before we completed our search, but we're not going to tell you

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whether or not we completed our search when we found it.

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All we can say is we had completed it by the time they were released to him.

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And that's a burden issue that I honestly maintain.

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Once we show that there is a question, the court should not have found that there was no genuine issue of material fact as to whether or not they had completed their search before they found out the information in the State Department records.

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And I see that my time is about up.

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I'm going to lose my rebuttal if I keep going.

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So all right, we'll give you some time.

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All right.

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I want to ask the government a couple of questions that I haven't asked you and I want to get your response.

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Okay.

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In that case, your honor, I will hit the other main points when I come back up after this.

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Well, your other main points are those that you've outlined in your brief.

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Oh, yes, ma'am.

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I've covered everything in the brief.

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The only thing that I would draw your attention to is something that I'm not sure to what degree I can talk about it today.

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But today, this morning, last night, technically, I did file a Rule 60B motion with the district court.

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where I found a document that did say that classification authority was not delegable.

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And so if I'm allowed to talk about that, I'll be happy to talk about that.

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If not, we can just wait for the district court.

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All right.

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Thank you.

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Please, the Court.

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Thomas Byron from the Justice Department for the defendant in this case.

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The plaintiff's principal argument is that... Could I just interrupt and take you to your brief statement of jurisdiction?

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Yes, Judge Rogers.

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What is the government's position on jurisdiction?

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Your Honor, our position is that there are some questions raised by some unusual aspects of the materials that we were obliged to point to in our jurisdictional statement.

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And would you like to help the court answer those questions?

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Be happy to discuss them with Your Honor.

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We don't have a firm position that this case must be dismissed for lack of jurisdiction, but we do think that we had an obligation to point those out to the court.

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Well, I can only speak for myself, but I would hope the government would try to help the court answer the questions.

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Certainly, Your Honor.

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All right.

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So looking at the timetable here, as I understand part of this argument,

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It's that when the district court granted summary judgment initially as to the Justice Department, but then also decided that a remand was necessary as to the CIA,

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that the time for filing an appeal of that grant of summary judgment in case number 2073 started to run.

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I think that's right, Judge Rogers.

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February 7, 2013 was the date of final judgment.

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As to the Department of Defense and the Justice Department.

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That's right, Your Honor.

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Those are the defendants in 2073.

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So then on February 26,

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There's a grant of the plaintiff's motion for a stay.

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That's right, Your Honor.

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Did the government oppose that?

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My recollection, Your Honor, is that we did not oppose the stay.

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We did oppose the earlier motion a few days before, seeking consolidation at that point.

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But I would have to check to confirm, because I might not be recalling correctly.

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Well, this all has to do with jurisdiction.

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All right, so then.

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Judgment is granted for the CIA on June 7.

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That's right, Your Honor.

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In fact, for the CIA and the State Department in that earlier case.

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Now, there are no issues presently before the Court concerning the State Department.

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Then on the 11th, the District Court consolidates the two cases.

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Yes.

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Then on the 17th,

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the plaintiff files a motion for reconsideration under 59E and 60B, and the government does oppose that motion.

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That's right, Your Honor.

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As on timely?

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That's right, Your Honor, yes, among other reasons.

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I'm just on jurisdiction here.

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Of course.

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So then the court denies

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reconsideration and addresses three issues, the FBI's search, the DIA database, and the lack of in-camera review.

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Yes, Your Honor.

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To be clear, if I may, on the first issue, it wasn't all of the issues earlier raised concerning FBI's search adequacy, only the email systems in the reconsideration order.

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Okay.

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And in the second issue, whether the DIA's database is a Privacy Act system of records was the specific question addressed there.

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But the motion for reconsideration was broader than that.

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But the district court chose to address those three issues in denying the Rule 59E motion.

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So my only point is, do we have jurisdiction

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with respect to these FBI issues.

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I think there is a fair argument that the court does not have jurisdiction for the reasons we outlined both in our brief and in our opposition to the motion for reconsideration.

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Where in your brief have you outlined these?

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I'm on page four of your brief.

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Yes, Your Honor.

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Pages three to four is where we outline the concerns.

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You outline concerns.

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And my question was, what is the government's position?

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Is the government's position that the court has jurisdiction to consider these FBI issues or not?

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We think there are substantial questions.

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I know you think there are questions.

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And I'm happy to investigate.

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So the government has no position.

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We don't think it's clear that the court lacks jurisdiction.

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We do think there are questions about that, Your Honor.

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Yes.

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And I'd be happy to address them in greater detail if you'd like.

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So specifically, the concern here in the first instance.

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Well, I'm thinking now about the government had full opportunity to present its jurisdictional arguments in its brief.

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And in fairness to the other side, only put what's on page three and four.

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And trying to parse exactly what the government's position was, particularly in light of footnote two,

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was not an easy job.

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So in the reply brief, appellant makes an effort to respond, but it doesn't get to the questions I'm raising now as to whether that Rule 59 e-motion was too late to toll the time to appeal the grant of judgment as to the FBI

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or as to the Department of Justice and Defense.

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That's right.

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I think we did lay out the two aspects of the question that we think are substantial.

[00:21:21] Speaker 00:
So is the government saying it has no position because it failed to object to the stay?

[00:21:28] Speaker 02:
No, Your Honor.

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We did, in fact, again.

[00:21:30] Speaker 00:
From the 11th Circuit, as you know, presumably.

[00:21:33] Speaker 00:
Well, you may not know.

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said the government forfeited this argument because it didn't object to the motion for this day.

[00:21:42] Speaker 00:
So any timeliness argument about the Rule 59E had been forfeited.

[00:21:47] Speaker 02:
I don't think the District Court reached that conclusion in this case, Your Honor.

[00:21:51] Speaker 02:
The District Court addressed our timeliness objection to the reconsideration motion.

[00:21:56] Speaker 00:
I know, but jurisdiction is a question of our jurisdiction here.

[00:22:00] Speaker 02:
Yes, Your Honor, that's right, and we preserved that question in the district court, but of course this court's jurisdiction is not something that's waivable in any event, and we flagged it for the court to consider those issues.

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So first of all, the issue of course is whether the district court's stay had the effect of tolling the time.

[00:22:22] Speaker 02:
That's an unsettled question, one that we were unable to find any dispositive authority concerning.

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Secondly, the question is even if it were to toll the time to file a motion for consideration or for appeal.

[00:22:33] Speaker 00:
What about Rule 6B?

[00:22:36] Speaker 00:
That's not even mentioned in your brief.

[00:22:38] Speaker 02:
Rule 6D, Your Honor?

[00:22:40] Speaker 00:
B as in boy.

[00:22:41] Speaker 02:
B of the Federal Rules of Civil Procedure, Your Honor?

[00:22:43] Speaker 00:
Yeah, that talks about 59E.

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is one of those motions where you can't extend the time.

[00:22:49] Speaker 02:
Right.

[00:22:50] Speaker 02:
We did raise that as an argument opposing the timeliness of the motion for reconsideration in district court, Your Honor.

[00:22:58] Speaker 00:
But decided not to mention it to us?

[00:23:01] Speaker 00:
I mean, seriously, Counsel, I was just surprised by the government's brief.

[00:23:06] Speaker 00:
There's some serious questions here.

[00:23:08] Speaker 00:
And we don't have

[00:23:10] Speaker 02:
We think there are serious questions.

[00:23:13] Speaker 02:
We think that we have flagged those questions for the Court, and we'd be happy to address them further if the Court has specific questions about them, Your Honor.

[00:23:21] Speaker 00:
You agree you had a full opportunity to address them in your brief, and you chose to address them as you did on pages three and four.

[00:23:27] Speaker 02:
That's exactly right, Your Honor.

[00:23:29] Speaker 02:
Yes.

[00:23:30] Speaker 02:
Judge Srinivasan, you had a quick question.

[00:23:32] Speaker 03:
Well, so, if pre-Bowles, before the Supreme Court decision in Bowles, was there an argument to be made that jurisdiction was lacking?

[00:23:39] Speaker 03:
Because pre-Bowles, there was a stay in effect.

[00:23:41] Speaker 03:
And if the stay's in effect, then that gives the litigant a reliance interest in assuming that they could file a Rule 59E motion when they did.

[00:23:49] Speaker 02:
It might give the plaintiffs a reliance interest, Your Honor.

[00:23:53] Speaker 02:
I'm not sure it would suffice even pre-Bowles to establish the court's jurisdiction.

[00:24:00] Speaker 02:
But of course, after the Supreme Court's decision in that case, I think it's quite clear that a reliance interest by itself would not suffice.

[00:24:07] Speaker 02:
The difficult question here is, even if there were such reliance interests, of course, how does one calculate the time?

[00:24:14] Speaker 02:
And the district court post hoc determined that it would calculate the stay, including both the first and last days, which is an unusual way to do so, as we pointed out.

[00:24:24] Speaker 02:
Not clearly precluded, which Judge Rogers, I think, is one of the reasons we did not argue that the court lacks jurisdiction, but only that there are unusual circumstances presented by this case.

[00:24:35] Speaker 02:
with respect to the court's jurisdiction.

[00:24:38] Speaker 00:
Are some of those unusual circumstances the fact that the plaintiff moved to consolidate and had consolidation been granted early on than this timing problem, presumably?

[00:24:53] Speaker 00:
would disappear?

[00:24:54] Speaker 02:
I'm not sure it would have, Judge Rogers.

[00:24:56] Speaker 02:
It might have, but it's not clear that it would have.

[00:24:59] Speaker 02:
For example, consolidation of cases in the district court does not always, I'm sorry, I'm not recalling the name of the case that establishes this.

[00:25:06] Speaker 02:
There's a Supreme Court case, however, that addresses this question and makes clear that consolidation does not render them a single case.

[00:25:12] Speaker 02:
It merely renders them combined for processing procedural purposes.

[00:25:18] Speaker 02:
So it's not clear that it would have, consolidation alone would have solved the problem for plaintiffs, Your Honor.

[00:25:22] Speaker 00:
So once that judgment was entered on February 7th, with regard to... Justice and defense, Your Honor.

[00:25:35] Speaker 00:
Yeah, I mean the FBI, that's the key here.

[00:25:38] Speaker 00:
That's right.

[00:25:39] Speaker 02:
And DIA.

[00:25:41] Speaker 00:
And then the time for appeal ran

[00:25:48] Speaker 00:
unless the rule 59E motion was timely filed.

[00:25:52] Speaker 02:
Yes, Your Honor, that's right.

[00:25:53] Speaker 00:
And given rule 6B.

[00:26:00] Speaker 02:
And frat four, Your Honor, as well.

[00:26:01] Speaker 00:
And frat four.

[00:26:02] Speaker 00:
But 6B is the one that talks about 59E specifically.

[00:26:07] Speaker 00:
Right.

[00:26:08] Speaker 00:
But I wasn't clear in your footnote two, you were suggesting that maybe rule six doesn't even apply?

[00:26:16] Speaker 02:
Well, Your Honor, Rule 6 calculation of the period of time, in other words, whether the court should have counted the first day of the stay for purposes of calculating the days that by its own approach were excluded.

[00:26:30] Speaker 02:
It's not clear that it would have applied, and we felt obliged to point out that there are

[00:26:36] Speaker 02:
Fair arguments on both sides of that question.

[00:26:39] Speaker 02:
Because even though it is a term of days, it's not one stated in days or a longer unit of time.

[00:26:49] Speaker 02:
Instead, it was set forth as an open-ended matter in the court's stay order.

[00:26:54] Speaker 00:
So help me here, Mr. Byron.

[00:26:56] Speaker 00:
Why would it not be in the interest of the government to take a position here?

[00:27:04] Speaker 02:
Your honor, we don't want necessarily to preclude district courts from having the flexibility to manage their dockets appropriately.

[00:27:12] Speaker 02:
We think there are some questions about the extent to which a district court can do that.

[00:27:17] Speaker 02:
I think if I were advising trial counsel

[00:27:20] Speaker 02:
If we were considering a circumstance where we were on the other side in a case like this, I think the prudent thing to do would have been to file a notice of appeal or a Rule 59E motion on a timely basis, assuming the state did not toll that time.

[00:27:35] Speaker 02:
The plaintiffs here took a risk.

[00:27:36] Speaker 02:
We were obliged to point out that that risk entails potential consequences for this court's jurisdiction.

[00:27:43] Speaker 03:
There's no statutory basis for the 59E-6B rule, right?

[00:27:49] Speaker 03:
That's right.

[00:27:50] Speaker 02:
I think that's right.

[00:27:51] Speaker 03:
So that's why I asked the question about pre-votes.

[00:27:54] Speaker 03:
So if pre-votes, you thought there was no argument.

[00:27:56] Speaker 03:
I know you think there might have been.

[00:27:58] Speaker 02:
I think there might have been.

[00:27:59] Speaker 03:
But let's assume there wasn't.

[00:28:00] Speaker 03:
In post-votes, if you assume that goals apply to certain chances in which there's a statutory backing for the rule, there is no statutory backing for the rule.

[00:28:07] Speaker 03:
promulgated by 1590 slash 6B.

[00:28:11] Speaker 03:
And therefore, there would still be an opportunity to give effect to the people's understanding that because of the stay, the time wasn't back.

[00:28:20] Speaker 02:
I think that's an argument that is available to the plaintiff, Your Honor.

[00:28:24] Speaker 02:
I don't understand them to have made that argument, but fair enough, Judge Rogers, I understand your point that these issues have not been fully fleshed out and not objecting to the court's consideration of those concerns.

[00:28:35] Speaker 02:
in any manner.

[00:28:38] Speaker 02:
I will say, Judge Ravassan and Judge Rodger, you both asked whether, or I think your question implied, a sincere question, whether the government opposed the stay motion in this report, and I would need to check the docket and the record to be sure I recall correctly about the answer to that.

[00:28:55] Speaker 02:
So that said, I would like to address plaintiff's principal argument, which concerns the adequacy of the FBI's search.

[00:29:03] Speaker 00:
I looked for an objection, but I couldn't find it.

[00:29:05] Speaker 00:
It doesn't mean it's not there.

[00:29:07] Speaker 00:
If you find it, it would be helpful to let the court know.

[00:29:12] Speaker 02:
Certainly, I'll make a note.

[00:29:19] Speaker 03:
So can I ask you on the adequacy of the FBI search, so the argument being made is that the CRS database may be well insufficient for some purposes, but then you got specific notice to search specific field offices because of some other information that came to light, and yet there was no effort made, or at least there's no explanation, let me put it this way, there's no explanation in the affidavit as to why those field offices weren't searched.

[00:29:44] Speaker 02:
I don't think that's an accurate or complete assessment of plaintiff's argument in the record in this case.

[00:29:51] Speaker 02:
So let me see if I can address the parts of it sequentially.

[00:29:55] Speaker 02:
First of all, with respect to field offices, plaintiffs only requested

[00:30:00] Speaker 02:
not in their initial FOIA request, of course, but in the subsequent email about it a year later, that the Baltimore Field Office should be searched.

[00:30:08] Speaker 02:
And they did so only on the basis of media reporting concerning a statement by the Baltimore Field Office FBI spokesman.

[00:30:18] Speaker 02:
And that concerned – I see my time's expired, because I'm finished answering your question, Your Honor.

[00:30:24] Speaker 02:
And I believe actually that the district court addressed that question on the basis not just of the declarations in the Vaughn Index, but also with respect to the arguments before the court in that case, in the case below, and made clear that the mere reference in media reporting is not by itself a sufficient kind of lead

[00:30:48] Speaker 02:
along the lines of this court in Kowalczyk, was identifying that would compel the agency to conduct additional searches beyond what it reasonably determined were adequate to identify all responsive documents.

[00:31:01] Speaker 02:
So looking at this from the perspective of what FOIA requires, the obligation is on the agency to assess.

[00:31:08] Speaker 02:
Remember, the agency is most familiar with its own record-keeping systems, is most familiar with the sources

[00:31:15] Speaker 02:
of where responsive records are likely to be located.

[00:31:19] Speaker 02:
So the obligations on the agency to demonstrate that it conducted a search reasonably calculated to identify all responsive documents.

[00:31:27] Speaker 02:
The district court here correctly concluded the FBI had done so by explaining why the CRS and the electronic surveillance indices were the likely source of all responsive documents and nothing in the FBI's search

[00:31:41] Speaker 02:
created the kind of extraordinary circumstance, the rare circumstance, I think this court said in that case, that would constitute the kind of lead the agency could not ignore, could not in good faith ignore.

[00:31:52] Speaker 02:
Plaintiffs here.

[00:31:53] Speaker 03:
So suppose that it's apparently the news report comes from the FBI itself.

[00:31:58] Speaker 03:
So suppose that we just take as a given that the Baltimore field office, in fact, was conducting the search.

[00:32:03] Speaker 02:
In fact, was conducting the investigation.

[00:32:06] Speaker 03:
Then the question is, what in the affidavit tells me why the FBI wouldn't look at the documents that were in the possession of the Baltimore Field Office?

[00:32:22] Speaker 02:
First of all, I think that part of the answer is if the FBI field office were conducting an investigation that the records concerning that investigation would be found in the CRS and the electronic surveillance index.

[00:32:38] Speaker 02:
That's the nature, as the colloquy between plaintiffs' counsel and your honor reflected, that's the nature of those systems and that's why those systems exist.

[00:32:50] Speaker 03:
Beyond that, I think I can... And where's the best place I can look in the affidavits to show me that?

[00:32:56] Speaker 02:
Your honor, there are two declarations, I think, from Dennis Argel reflecting the FBI's search and if I may,

[00:33:14] Speaker 02:
There is a description of the CRS in the Argo Declaration, in the first Argo Declaration.

[00:33:20] Speaker 02:
And I would be, it would take me just a moment to find the page number, but not long, because.

[00:33:27] Speaker 03:
So if you look at JA205.

[00:33:29] Speaker 03:
Yes.

[00:33:30] Speaker 03:
So paragraph 25 says, maybe this is what you're referring to me referring us to, but if there's something more, I'd like to hear it.

[00:33:37] Speaker 03:
On paragraph 25 on page 205, which is page six of the declaration.

[00:33:41] Speaker 03:
That's right.

[00:33:42] Speaker 03:
It says, certain records in CRS are maintained at FBI HQ.

[00:33:45] Speaker 03:
Records that are pertinent to specific field offices at FBI are maintained in those field offices.

[00:33:49] Speaker 03:
Although CRS is primarily designed to serve as an investigative tool, the FBI utilizes CRS to conduct searches, etc.

[00:33:55] Speaker 02:
Yes, Your Honor.

[00:33:55] Speaker 02:
So the way to understand that is not to suggest that there are different CRSs in each field office and headquarters, but that the CRS reflects records maintained in different locations,

[00:34:08] Speaker 02:
and that a search of the CRS using the ACS, the automatic case system, I think it's called support system, is a way of identifying where those records are and what the records are as well.

[00:34:22] Speaker 02:
So it is not accurate to the extent plaintiffs might suggest

[00:34:26] Speaker 02:
that there's a limitation on the CRS such that it only includes, for example, headquarters documents, or that there are different searches of CRS.

[00:34:36] Speaker 02:
In light of the ACS, and I remember this is a very different circumstance than where we were 20 years ago when some other CRS cases were being decided by this court, when there were separate searches that needed to be done in each field office in order to identify even what was in the CRS, but with the automation reflected in ACS, which is described

[00:34:56] Speaker 02:
elsewhere in, I think, the following pages of the Oracle Declaration.

[00:35:00] Speaker 02:
That automation allows a search of the CRS that includes both, that includes CRS records that reflect both headquarters and field office.

[00:35:11] Speaker 03:
So is that your main practical response, not a legal response, but a practical response to the reliance on the perceived inadequacies of CRS made manifest in other cases that the CRS has come a long way since then?

[00:35:26] Speaker 02:
Well, first of all, Your Honor, to the extent there are inadequacies reflected in older cases, some of those have been addressed by the ACS, which the Argo Declaration does explain.

[00:35:36] Speaker 02:
Now, plaintiffs seek to introduce what they perceive to be inadequacies that they infer from other current litigation.

[00:35:44] Speaker 02:
And I don't think this is inappropriate, because I don't think they have standing in this case, for example, to bring forward complaints about how other case searches were handled.

[00:35:55] Speaker 02:
But to the extent that the court's interested in specific questions that the plaintiff's brief brings forward, we'd be happy to address them.

[00:36:04] Speaker 02:
But again, I don't think they're properly part of the record.

[00:36:06] Speaker 03:
Well, just as far as that they would suggest that a search of CRS actually doesn't uncover all documents that are germane to a particular request.

[00:36:18] Speaker 02:
Well, Your Honor,

[00:36:20] Speaker 02:
Cases like Kowalczyk and others make clear that the adequacy of search is necessarily a fact-specific question.

[00:36:30] Speaker 02:
It turns on the nature of the request itself.

[00:36:32] Speaker 02:
And so it has to be assessed based on the particular Vaughan explanations.

[00:36:36] Speaker 02:
and in light of the particular request.

[00:36:39] Speaker 02:
Now that request is the request that plaintiff submitted that led to this case, not plaintiff's counsel's subsequent email.

[00:36:47] Speaker 02:
And that's the important thing that I think we want to address in today's

[00:36:52] Speaker 02:
argument in this appeal, because the plaintiffs seek to contend, the plaintiffs contend rather, that a requester, a foyer requester can dictate the nature, the parameters of a search that the agency conducts, but that's not what the case law says, and the district court properly rejected that.

[00:37:10] Speaker 02:
Now, I think what you're asking about is whether, if in a different case there is an indication that the FBI should go beyond a search of the CRS alone, that requires the agency to do so in every case.

[00:37:24] Speaker 02:
And the answer to that, I think, is clearly no.

[00:37:27] Speaker 02:
That reflects the fact-specific nature.

[00:37:29] Speaker 02:
In this case, there is no reason to doubt the adequacy of the search that the FBI did conduct.

[00:37:36] Speaker 02:
And that's why we think all of these questions about searches conducted in other cases, about other requests, are simply irrelevant to the question before this Court here.

[00:37:47] Speaker 02:
I'm sorry if I misunderstood your question, Your Honor.

[00:37:50] Speaker 02:
I'd be happy to take another.

[00:37:51] Speaker 02:
OK.

[00:37:53] Speaker 02:
Thank you.

[00:37:54] Speaker 02:
If the court has no further questions, we think that the district court here correctly granted summary judgment for the government agencies, and we urge the court to affirm.

[00:38:05] Speaker 00:
Could I just ask a couple of questions, then?

[00:38:07] Speaker 00:
Certainly.

[00:38:08] Speaker 00:
So is it the Kowalski?

[00:38:10] Speaker 00:
I may mispronounce it, but a Kowalski, you think,

[00:38:14] Speaker 00:
does not require that the government indicate either A, that the leads that the requester gave came after the agency had completed its search or B, that what the agency did because of the comprehensive post-automation nature of the

[00:38:44] Speaker 00:
it did look at that there is no obligation on the agency to consider these other specific, I'll put leads in quotes,

[00:39:02] Speaker 02:
I appreciate Judge Rogers putting leads in quotes because that was my first concern about the question the way you initially phrased it.

[00:39:08] Speaker 02:
These are not leads when plaintiff seeks to dictate the parameters of a search.

[00:39:13] Speaker 02:
What Kowalshik was talking about in terms of leads is what the court called the rare circumstance where an agency's search that it initially believes to be adequate and reasonable turns out, when you look at the documents themselves,

[00:39:26] Speaker 02:
to make clear that there's something missing that the agency cannot, in good faith, ignore.

[00:39:31] Speaker 02:
That's not what happened.

[00:39:33] Speaker 02:
And so the first part of your question, Your Honor, is whether plaintiff's counsel's email came after the end of the search.

[00:39:41] Speaker 02:
And, frankly, Your Honor, I would need to look back at the timeline more carefully to know the answer to that question.

[00:39:46] Speaker 02:
But I think it doesn't matter.

[00:39:48] Speaker 02:
Because in the end, the kind of effort by plaintiffs' counsel to dictate the parameters of the search is not at all what this court in Kowalshik or in any other case, Mayor Paul and the others we cited in our brief, had in mind when it said that an agency may in the rare circumstance not in good faith be able to ignore certain kinds of leads.

[00:40:10] Speaker 02:
The court was not opening the door, and it made very clear that the normal circumstance for a plaintiff or a requester, I should say, for a FOIA requester who sees information, whether in the agency's own response, in another agency's response, in the media, in the newspaper reporting about the spokesperson's statement, or elsewhere, the proper courses for the requester to make a subsequent FOIA request.

[00:40:34] Speaker 02:
And there are very good reasons for that.

[00:40:36] Speaker 02:
There is a long line.

[00:40:37] Speaker 02:
The FBI alone receives, I think, some 20,000 FOIA requests a year.

[00:40:41] Speaker 00:
So what specifically should the plaintiff here have done?

[00:40:46] Speaker 02:
Instead of sending an email seeking to dictate the terms of what the plaintiff thought was an ongoing search and may in fact have been completed, he should have submitted a new FOIA request and asked for information about, for example, the media reports about the FBI spokesperson's statement or, for example, information that he thought was missing from the search that was ongoing.

[00:41:10] Speaker 02:
And maybe he would have needed to do more than one.

[00:41:12] Speaker 02:
to the extent he had additional information that he received on an ongoing basis.

[00:41:17] Speaker 00:
So where the government acknowledges that with automation and the comprehensive nature of the indices it searched, it has made judgments as to what is in that comprehensive system.

[00:41:35] Speaker 02:
Of course.

[00:41:39] Speaker 00:
The argument in part, as I understood it, is that there is reason to believe, and you will object about standing, but just take the hypothetical.

[00:41:53] Speaker 00:
There is reason to believe that there may be, for example, emails elsewhere that for reasons that the agency recounts, namely they're subject to change, they aren't

[00:42:07] Speaker 00:
deemed adequately significant enough for law enforcement purposes to be included in this comprehensive system.

[00:42:21] Speaker 00:
Would that be enough as a lead?

[00:42:24] Speaker 02:
No, Your Honor.

[00:42:25] Speaker 00:
First of all... It has to be a lead in the actual document that is released?

[00:42:32] Speaker 02:
Yes.

[00:42:33] Speaker 02:
In the documents that are responsive to the initial search, if the agency has reason to believe that there's a lead in there that... I get that one, but what I'm... I'm trying to give this to you as a hypothetical so you won't see yourself as giving anything away, but all I'm getting at is

[00:42:51] Speaker 00:
that the agency says we have a comprehensive system, that we have defined to have 10 parts, that there are other parts, 12, 13, 14, that we have not included because we have decided they are not significant for law enforcement purposes, which is the nature of the index we're talking about.

[00:43:21] Speaker 00:
How does a person have to file another FOIA request saying look for emails that are not in your comprehensive system?

[00:43:34] Speaker 02:
No, Judge Rogers, I don't think actually that a FOIA requester is entitled to dictate the parameters of the search in the way that plaintiff's counsel's emails ought to do.

[00:43:41] Speaker 00:
That's what I thought you were going to tell me.

[00:43:43] Speaker 00:
Even in that situation.

[00:43:45] Speaker 02:
Even in the terms of a FOIA request, as I think your hypothetical suggests.

[00:43:47] Speaker 02:
That's right.

[00:43:48] Speaker 02:
That's right.

[00:43:49] Speaker 02:
Exactly.

[00:43:49] Speaker 00:
So would a FOIA requester... So there's no way to get an agency to search files 12, 13, and 14?

[00:43:57] Speaker 02:
I don't think that's right, Judge Rogers.

[00:43:59] Speaker 02:
First of all, the FBI does search, for example, email systems, field office locations, and other kinds of searches.

[00:44:08] Speaker 00:
But you understood the terms of my hypothetical that's on the question.

[00:44:11] Speaker 00:
That's what I need to be clear about.

[00:44:12] Speaker 02:
No, I understand, Your Honor, but I think I need to address your hypothetical in terms of the way the FBI actually does conduct searches in the real world.

[00:44:19] Speaker 00:
My hypothetical is the FBI has made a judgment.

[00:44:24] Speaker 00:
that 10 things are going to be useful for law enforcement purposes.

[00:44:30] Speaker 00:
That 12, 13 and 14 are not going to be useful.

[00:44:36] Speaker 02:
Yes, Your Honor.

[00:44:39] Speaker 00:
Is there no way to get the agency to look at 12, 13, and 14?

[00:44:43] Speaker 00:
That's all I want to know.

[00:44:44] Speaker 02:
There is a way, Your Honor.

[00:44:46] Speaker 02:
If a FOIA request seeks information that is not likely to be found in the law enforcement investigative context, then the agency will have to search beyond it.

[00:44:58] Speaker 02:
And that's what actually happens, and that's why I was trying to address your question in terms of actual responses.

[00:45:04] Speaker 02:
The plaintiff's own references to other litigation reflects that.

[00:45:08] Speaker 02:
In another case in which he is involved, the FBI has searched its email systems because it determined that that's where responsive records were likely to be located.

[00:45:18] Speaker 02:
That's the way it has to work is that a requester seeks records.

[00:45:22] Speaker 02:
The agency assesses where those records are likely to be found and conducts a search reasonably calculated to find them.

[00:45:31] Speaker 02:
That's what the agency did here.

[00:45:33] Speaker 02:
And remember, it was quite reasonable for the agency to focus on its investigative CRS record system because the FOIA request itself referred to FBI investigations and what the request calls interrogations, which presumably refers to interviews because the request also talks about FBI 302 forms, which are interview reports.

[00:45:57] Speaker 02:
So the FBI was reasonable in determining, well, the most likely place to find records in response to this is going to be in the CRS because that's where investigative records are.

[00:46:08] Speaker 02:
And that's what the plaintiffs appeared to be seeking.

[00:46:11] Speaker 02:
In fact, I think that's what the plaintiff was seeking.

[00:46:13] Speaker 03:
So the request said records pertaining to Sharif Mobley in the Baltimore field office.

[00:46:21] Speaker 02:
Yes, Judge Srinivasan, so there is case law that says that a requester can specify a location, including a field office, and then it would be up to the FBI to determine how to search the field office.

[00:46:34] Speaker 02:
And if, for example, and I'm imagining hypotheticals, let me pause it at first, however, that there will be some circumstances

[00:46:42] Speaker 02:
in which such a request, depending on its particular parameters and specifics, will result in additional searches beyond the CRS.

[00:46:52] Speaker 02:
But I want to also point out that it's not necessarily going to be the case that the CRS will be an inadequate search, even in response to that kind of

[00:47:04] Speaker 02:
request.

[00:47:05] Speaker 02:
That's the kind of fact-specific determination that must be made based on the specifics of the request, the declaration explaining the reasons for the search parameters, and we would just have to see in a particular... Doesn't your argument have to be that the CRS in fact would be adequate in that situation?

[00:47:19] Speaker 03:
Because I thought what the request was for

[00:47:21] Speaker 03:
was records pertaining to Sharif Mobley anywhere?

[00:47:24] Speaker 03:
And then a more specific response was, well, we searched CRS.

[00:47:27] Speaker 03:
And that's why there's another request that comes in and says, you know, what I really want is records pertaining to Sharif Mobley in Baltimore.

[00:47:33] Speaker 03:
Then the answer has to be, well, we already did that.

[00:47:35] Speaker 02:
Yes, you asked for everywhere.

[00:47:37] Speaker 02:
I think that's right.

[00:47:38] Speaker 02:
Yes.

[00:47:39] Speaker 02:
If that's the hypothetical, in other words, merely duplicating exactly what the request is here and saying only in the Baltimore field office, then yes, absolutely right.

[00:47:49] Speaker 02:
No dispute.

[00:47:50] Speaker 00:
So one quick question about the sub-delegation issue.

[00:47:54] Speaker 02:
Yes, Your Honor.

[00:47:55] Speaker 00:
That was raised by a appellant, and now he's filed Rule 60B motion.

[00:48:05] Speaker 02:
Yes, Judge Roderick.

[00:48:06] Speaker 00:
Do you just want to say what we ought to do with that?

[00:48:09] Speaker 02:
Certainly, Your Honor.

[00:48:10] Speaker 02:
So first of all, this came in very late last night, and I've had only very few minutes to look at it.

[00:48:14] Speaker 02:
Of course.

[00:48:15] Speaker 02:
But my understanding of the Rule 60B motion is that it would probably raise a couple of concerns for the district court.

[00:48:22] Speaker 02:
First of all, to the extent it seeks to question the judgment with respect to issues that are before this court, the district court might lack jurisdiction to address it without

[00:48:33] Speaker 02:
an indicative order ruling.

[00:48:35] Speaker 02:
I don't see the need to do that here, however, for a couple of reasons.

[00:48:39] Speaker 02:
I mean, first of all, the district court, I think, can deny such a Rule 60B motion, even in the absence of an indicative ruling procedure, where it's so clear.

[00:48:48] Speaker 02:
And I think it is quite clear here, Judge Rogers, that this is insubstantial.

[00:48:53] Speaker 02:
The reference plaintiff makes is to a 1972 internal DOJ directive concerning a long superseded executive order.

[00:49:03] Speaker 02:
that does not include the same, based again just on my very quick review, it appears not to include the same kind of specific requirements that plaintiff relies on in Executive Order 35268 that's at issue in this case.

[00:49:18] Speaker 02:
So I think it is plainly insubstantial, and there is no reason for this Court to undertake any extraordinary steps.

[00:49:24] Speaker 02:
If the Court has questions about it, of course we'd be happy to submit supplemental briefing if that's appropriate, but again, we don't think it's necessary.

[00:49:35] Speaker 02:
With respect to the delegation question, however, Your Honor, I think it's worth pointing out that the executive order permits, and in fact requires, that the document by document classification review be undertaken with the personal participation or under the direction of one of the three specified officials.

[00:49:55] Speaker 02:
The delegation order that's in the record here from Assistant Attorney General

[00:50:01] Speaker 02:
for administration in 1999 specifies that the document by document review by the FBI section chief will be done under the direction of the assistant attorney general.

[00:50:11] Speaker 02:
So it tracks very specifically the language of the executive order plainly in our view therefore complying with that requirement.

[00:50:18] Speaker 00:
So do you see any difference in the meaning of the language in the executive order and what was done here?

[00:50:26] Speaker 00:
No, Your Honor, we think it plainly complied with the executive order in that the delegation was... So in one, the... I'll get the titles mixed up, but the executive attorney general for administration has to do the document-by-document review.

[00:50:43] Speaker 00:
In another,

[00:50:46] Speaker 00:
he can delegate or she can delegate that to someone else.

[00:50:51] Speaker 02:
No Judge Rogers, I think the dichotomy you're suggesting

[00:50:58] Speaker 02:
actually both parts of that, both alternatives, are provided for in the executive order itself, when it says either with the personal participation of one of those three officials or under the direction of one of those three officials.

[00:51:12] Speaker 02:
And that under the direction of, we think plainly, permits the delegation.

[00:51:15] Speaker 02:
But in any event, what do you call it?

[00:51:17] Speaker 00:
So it delegates it to a GS7.

[00:51:21] Speaker 00:
I mean, I just need to be clear how far you take this.

[00:51:24] Speaker 02:
Well, in the specific circumstances of the record in this case, it was delegated to an SES official, the section chief at the FBI.

[00:51:34] Speaker 02:
So that's how far we take it here, Your Honor.

[00:51:36] Speaker 00:
But it's the decision of the section chief then.

[00:51:42] Speaker 00:
It's not the decision of the assistant attorney general for administration.

[00:51:49] Speaker 02:
I think it's correct to say it's the decision of either Mr. Hardy or Mr. Argo acting under the direction of the Assistant Attorney General for Administration.

[00:52:03] Speaker 03:
There's an executive order that makes special provision for circumstances in which the request is post hoc.

[00:52:09] Speaker 03:
And it does use the words under the direction of, as you rightly emphasize, but everything's under the direction of somebody.

[00:52:15] Speaker 03:
Everything the government does, at least when I work in the government, I was doing it for somebody.

[00:52:20] Speaker 03:
And so you're always acting under the direction of someone, but this has a particular procedure that specifies that we want to go through these exact sequences in order to assure that the response is bona fide.

[00:52:34] Speaker 03:
So it has to be, I think, or well, let me ask you, do you think that

[00:52:39] Speaker 03:
In this kind of, in this strata of cases where you're dealing with these post hoc requests and a special executive order provision kicks in, under the direction of means something more than just that you're doing something as a official who reports to other officials.

[00:52:57] Speaker 03:
Which everybody does.

[00:52:59] Speaker 02:
Oh, I see, Your Honor.

[00:53:00] Speaker 02:
So as I understand your question, Judge Srinivasan, you're asking whether we, by what, under the direction of, in my interpretation, in the government's interpretation here, is anything more than merely reporting to or being supervised by.

[00:53:13] Speaker 02:
Yes, it is.

[00:53:15] Speaker 02:
And the way in which it is something more

[00:53:17] Speaker 02:
is that it is set out in the particular terms of the delegation order that's in the record here.

[00:53:23] Speaker 02:
So the delegation itself is not merely go forth and classify.

[00:53:28] Speaker 02:
The delegation is, do as I tell you, in this delegation order.

[00:53:33] Speaker 02:
And that's why it is very specific.

[00:53:36] Speaker 02:
And that's why I think it's important to recognize that the language of that delegation order under my direction

[00:53:43] Speaker 02:
tracks the language of the executive order.

[00:53:45] Speaker 02:
It does more than merely say you are operating within a hierarchical structure.

[00:53:50] Speaker 02:
Yes.

[00:53:51] Speaker 03:
And practically, what is that?

[00:53:53] Speaker 02:
Well, practically, Your Honor, first of all, it's a recognition of the expertise of Mr. Hardy and Mr. Argel as the section chief and acting section chief in this case.

[00:54:04] Speaker 02:
They are the ones with the appropriate expertise to make these judgments.

[00:54:08] Speaker 02:
The assistant attorney general has no idea on a personal level what particular documents within the FBI are and whether they should be classified.

[00:54:17] Speaker 02:
He's not in an appropriate position, so he has

[00:54:20] Speaker 02:
in the exercise of his authority, not just the authority specified by the executive order, but also his authority within the Justice Department as the AEG for administration, he has specified the right people to make these calls.

[00:54:35] Speaker 02:
And he has said that you should make these calls using the specific requirements I'm setting forth here and making sure that on a document by document basis, the documents

[00:54:47] Speaker 02:
satisfy the requirements of the executive order.

[00:54:49] Speaker 02:
The other thing he's done that's very important here is set forth an audit procedure that was initially conducted by SEPs, the Security Emergency Planning staff, and was in 2008, I think, transferred to the Office of Information and Privacy, now the Office of Information Policy.

[00:55:09] Speaker 02:
That audit procedure ensures that the document by document processing is done under the direction.

[00:55:16] Speaker 03:
So there's something else about the delegation that leaked out to me, which maybe I'm attaching significance to something the government doesn't think is significant, because it says the Chief of the Document Classification Unit, and this is on J392, shall act under my direction, which is the operative language, and

[00:55:31] Speaker 03:
shall keep me apprised in a timely manner of any action taken under this authority.

[00:55:35] Speaker 02:
Yes, that's right, Your Honor.

[00:55:36] Speaker 02:
That's part, I think, of the audit procedure that's established.

[00:55:39] Speaker 02:
Yes.

[00:55:39] Speaker 03:
I thought that was something.

[00:55:41] Speaker 03:
The audit procedure is a spot check.

[00:55:42] Speaker 03:
It doesn't require that every time.

[00:55:44] Speaker 03:
This says every single time, I think, shall keep me apprised in a timely manner of any action taken under the authority.

[00:55:50] Speaker 02:
Oh, I see.

[00:55:50] Speaker 02:
I'm not sure, Your Honor, to what the

[00:55:55] Speaker 02:
What the reporting requirements are is a practical matter, and I don't want to represent one way or the other.

[00:55:59] Speaker 02:
So you may be right that it does require some greater reporting than the audit procedure, or it may be subsumed in that I'm not in a position to say, Your Honors, but I don't want to represent one way or the other.

[00:56:14] Speaker 03:
But if we look at the letter of this, it just says, unless somebody, this has been superseded,

[00:56:19] Speaker 03:
shall keep me apprised in a timely manner of any action taken under this authority.

[00:56:23] Speaker 02:
Right.

[00:56:24] Speaker 03:
It seems like every time the delegate does something, that he or she has to keep the supervising official apprised in a timely manner, which would add some concrete teeth to the notion that they're operating under the direction of the supervising official.

[00:56:38] Speaker 02:
I presume that there is timely reporting, Your Honor.

[00:56:41] Speaker 02:
Yes.

[00:56:42] Speaker 02:
I don't know the details of that, and that's why I'm reluctant to go further.

[00:56:45] Speaker 00:
Who would have the burden?

[00:56:49] Speaker 02:
in litigation, Your Honor?

[00:56:50] Speaker 00:
Yeah, where a challenge is made to a sub-delegation.

[00:56:54] Speaker 02:
Will the burdens on the government to demonstrate that a FOIA exemption applies to the particular documents?

[00:56:59] Speaker 02:
And so here the way the FBI satisfied that burden was through the Argo Declaration, which included these attachments

[00:57:07] Speaker 02:
that explained the delegation, the direction, and reporting the whole procedure, and showed that the actions by Mr. Hardy and confirmed by Mr. Ardahl were done correctly and consistent with the executive order's requirements.

[00:57:22] Speaker 02:
Is that your Honor's question?

[00:57:23] Speaker 02:
I'm not sure if I understood.

[00:57:25] Speaker 00:
Well, I think the answer you gave me is the burden's the government's.

[00:57:28] Speaker 02:
In litigation, that's certainly right, Your Honor.

[00:57:32] Speaker 02:
But here there's been no reason to doubt that the government satisfied that burden, and I think that's the appropriate question at this stage of the case.

[00:57:42] Speaker 02:
Thank you, Your Honor.

[00:57:49] Speaker 01:
Your honors, I'm going to hit that last point first.

[00:57:52] Speaker 01:
I do actually have an answer to the court's question, and then particularly your question.

[00:57:57] Speaker 01:
To the degree that you can consider filings in other cases, in the Crisman case that I referenced earlier, we filed a request for all records in which the AAGA was apprised of these actions.

[00:58:15] Speaker 01:
And the response came back, there are no records.

[00:58:19] Speaker 01:
According to JMD, the AAGA has never once, that they can tell, been apprised of any actions taken under this memo.

[00:58:28] Speaker 01:
So that's something.

[00:58:31] Speaker 01:
Unfortunately, we didn't know that at the time any of this briefing happened, but it is a matter of court record in the Christman case that that's happened.

[00:58:38] Speaker 01:
And they're arguing that it was an adequate church and they did nothing wrong.

[00:58:42] Speaker 01:
So you can take from that what you will.

[00:58:46] Speaker 00:
Any comment on the jurisdictional point?

[00:58:50] Speaker 01:
The jurisdictional point, I avoided mentioning it in the oral ordinance because I didn't want to linger too long on it.

[00:58:57] Speaker 01:
However, the only comments that I can make on that are really

[00:59:03] Speaker 01:
The judge laid out the difference between an extension and a stay, and that a stay is something that's inherent to the court and an extension is something created by FRCP 6.

[00:59:16] Speaker 01:
And FRCP FRAP 4 and FRCP either 6 or 5, I can't remember which one, whichever one says you can't extend a 59E,

[00:59:29] Speaker 01:
pertain to creations of FRCP-6, and they don't purport to limit the inherent power of the court to stop, as Judge Scalia said, the proceedings for an indefinite period of time, which is also supported by the government's point that

[00:59:55] Speaker 01:
It's not, the time period was not set forth in days.

[00:59:58] Speaker 01:
It wasn't set forth in anything.

[01:00:00] Speaker 01:
It was just paused.

[01:00:03] Speaker 01:
And the second issue is even taking all of that aside and ignoring all of that, the issue of whether or not the 59E was timely, if you accept that the stay was valid, the problem of it being perhaps one day late

[01:00:22] Speaker 01:
That's, as they admit, the general practice is to not include those days, unless the court says otherwise that it is doing so, and the court said otherwise that it was doing so.

[01:00:37] Speaker 01:
And so we've satisfied that test, we believe, and we don't think that the court needs to really spend too much time on it.

[01:00:47] Speaker 01:
Now, getting back to the

[01:00:51] Speaker 01:
A couple things that my colleague said that were not entirely accurate.

[01:00:57] Speaker 01:
He said that we only asked for them to search the Baltimore field office.

[01:01:02] Speaker 01:
And yet, in the record is the first email, or actually the second email that was sent on August 29th, specifically says, please search all shared drives, including the I-Drive and S-Drive, especially for FBI headquarters and the New Jersey and New York field offices.

[01:01:22] Speaker 01:
And to hear them tell it, well, that didn't count because we only asked for the Baltimore field office later.

[01:01:29] Speaker 01:
So the question of whether or not we're limited to Baltimore, if you find that they did have to search a field office, they should have to search those others as well.

[01:01:39] Speaker 01:
Which brings us to a point that he said in an answer to one of your two questions, and I can't remember exactly which it was, where he said, if they were conducting an investigation, the CRS would be the most likely place to look for records.

[01:01:55] Speaker 01:
They went to great extremes in this case to avoid using the phrase most likely.

[01:02:03] Speaker 01:
We never said we looked in the most likely place.

[01:02:05] Speaker 01:
We looked in the only likely place.

[01:02:07] Speaker 01:
We would never say that we looked in the most likely place.

[01:02:10] Speaker 01:
Well, he just said,

[01:02:12] Speaker 01:
that they looked in the most likely place.

[01:02:15] Speaker 01:
And as to whether or not it is, in fact, the most likely place, because there was an investigation, and perhaps the only time they would have to look somewhere else is if there wasn't an investigation.

[01:02:26] Speaker 01:
In my case, the McClenahan case, they were doing an investigation.

[01:02:31] Speaker 01:
The request said, this is about the investigation.

[01:02:34] Speaker 01:
And yet, they looked in the Washington Field Office's email systems.

[01:02:41] Speaker 01:
That is the only case I have seen in numerous cases against the FBI where they have searched anywhere except CRS and occasionally the electronic surveillance.

[01:02:54] Speaker 01:
Now, I'm not saying that's the only case out there.

[01:02:56] Speaker 01:
There are several other cases.

[01:02:57] Speaker 01:
That's the only case where my requests have been involved.

[01:03:01] Speaker 01:
And ever since I started doing FOIA, I have made a laundry list in every FOIA request I file with the FBI of us.

[01:03:11] Speaker 01:
the offices that they need to search.

[01:03:14] Speaker 01:
And each and every time, with the exception of that one case, I can say, please search this field office, this field office, this field office, this field office.

[01:03:24] Speaker 01:
Yemen, there are new mobile requests out there that they respond to when we gave them 14 locations to search with reason to believe that there were records in all of them.

[01:03:33] Speaker 01:
We searched the CRS, and we have done an adequate search.

[01:03:38] Speaker 01:
So for them to suggest that

[01:03:42] Speaker 01:
If an email to them is not sufficient to tell them to search somewhere else, a new request would be.

[01:03:52] Speaker 01:
That is patently not the practice of the FBI.

[01:03:56] Speaker 01:
And I laid this out in fairly stark terms in the brief where I can keep filing requests for records about Mobley in the following office.

[01:04:10] Speaker 01:
and they will say, we searched the CRS.

[01:04:12] Speaker 01:
And then I can find new information, I can file a new request, and they will search the CRS.

[01:04:17] Speaker 01:
And each time, they will argue till they're blue in the face, that they don't have to search anywhere else.

[01:04:23] Speaker 01:
And, and this is the most frustrating part of this entire argument, is the argument they make as a caveat for why they didn't search any email systems.

[01:04:35] Speaker 01:
We don't have to search anywhere but the CRS,

[01:04:38] Speaker 01:
because we don't have to follow any directions that the requester gives us, and we don't have to search email systems because he didn't ask us to.

[01:04:48] Speaker 01:
And those two are not compatible.

[01:04:51] Speaker 01:
And there is a case out of the Second Circuit that they went to great lengths to try and distinguish, called Halprin, that said not only are records that they find, or information that they find in their own records

[01:05:05] Speaker 01:
clear leads they have to follow under the terms of Kowalczyk.

[01:05:09] Speaker 01:
But when they asked a requester for more information and the requester did not give them that information, they did not have to follow those leads or they did not have to search for anything that he would have given them because he didn't give it to them.

[01:05:27] Speaker 01:
Had he given it to them, it would have been a clear lead that they would have had to have followed.

[01:05:32] Speaker 00:
Well, yes ma'am.

[01:05:34] Speaker 00:
I think we have the thrust of your argument here.

[01:05:37] Speaker 00:
If there's anything new you'd like to bring to the attention of the court.

[01:05:40] Speaker 01:
Just a couple points.

[01:05:41] Speaker 01:
Number one.

[01:05:42] Speaker 00:
Briefly.

[01:05:44] Speaker 01:
I'll be as brief as I can, I swear.

[01:05:48] Speaker 01:
They make a sort of throwaway argument that it would have been unduly burdensome for them to search four or five other locations, and every case that they come up with for that

[01:05:58] Speaker 01:
is a case where someone had asked them to search every office in existence or every record system.

[01:06:04] Speaker 01:
And they have not given any reason to believe that this would be an unduly burdensome search, which is the exception.

[01:06:12] Speaker 05:
All right.

[01:06:12] Speaker 05:
What else?

[01:06:12] Speaker 01:
The other point is something that I did not get to mention before, is the idea of the in-camera review.

[01:06:21] Speaker 00:
Right.

[01:06:21] Speaker 00:
Can we take your brief?

[01:06:25] Speaker 00:
Take the arguments in your brief.

[01:06:26] Speaker 00:
Yes, ma'am.

[01:06:26] Speaker 01:
I believe so.

[01:06:27] Speaker 00:
All right.

[01:06:28] Speaker 00:
Anything new?

[01:06:31] Speaker 01:
Nothing I can think of, Your Honor.

[01:06:33] Speaker 00:
All right.

[01:06:33] Speaker 00:
Thank you.

[01:06:34] Speaker 00:
We will take the case under advisement.

[01:06:36] Speaker 01:
Thank you.