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Case number 15-5201, American Immigration Lawyers Association Appellate versus Executive Office for an Immigration Review at Elle.

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Ms.

[00:00:11] Speaker 00:
Murray for the appellate, Mr. Guzman for the appellees.

[00:00:51] Speaker 01:
Good morning, Ms.

[00:00:51] Speaker 01:
Murray.

[00:00:52] Speaker 03:
Good morning, Your Honor, as may it please the Court.

[00:00:54] Speaker 03:
I'm Julie Murray on behalf of the American Immigration Lawyers Association.

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I'd like to begin this morning by addressing what I think should be the most straightforward of the issues before the Court, and that's whether the government can, consistent with its obligations under FOIA, slice and dice responsive records to withhold information within those records that it deems non-responsive to a requester's interests.

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The FOIA request in this case sought two general types of documents, complaints and what we called records related to complaints in a variety of ways.

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There is no way to reconcile what the government did here with what the FOIA request sought unless this court construes record to mean any paragraph

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sentence or word in a document released to ALA.

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That is simply an absurd proposition and should be rejected out of hand by this court.

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In particular, because FOIA is intended to be used by ordinary Americans using ordinary language.

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And no one... So does your argument mean if in the situation of an email chain, there's an email chain that has entirely to do with something outside the fold of the request, nobody disagrees with that?

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It has to do with personal issues.

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You know, which restaurants do you like in the city you visited?

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And then, oh, by the way, how did that hearing go yesterday?

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There's a blurb about that.

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And then it gets back to an exchange about all kinds of other stuff.

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It's all part of the same email chain.

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I think, Your Honor, in that instance, although there's no definition of record under FOIA, and we didn't define it in our FOIA request, but I think the court would need to look at context.

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Context matters.

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And how the agency keeps the record.

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So an agency employee can certainly choose when sending or receiving emails not to append a chain.

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But if they decide to keep it as a chain, I think that's because they see it as a record.

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And so in that instance... What are you talking about?

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What's the choice being made?

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It's just I'm missing a step because I'm just talking about two employees who are having a conversation by email.

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Right.

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And which choices are we talking about?

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I think within an email system, individuals using the system can choose whether as a default matter they're

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previous emails are appended as part of the chain.

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Typically when you send an email back, it's going to hold the chain, but that doesn't necessarily have to be so.

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So what would have to happen is someone would have to use email in a way that no one I'm aware of uses email in order to prevent the possibility that the entire chain is

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subject to disclosure.

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I don't think that that's far-fetched, Your Honor.

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I think there are certainly people, and I would be one of them, where you respond to an email chain, and you realize, what I'm about to say is actually not relevant to what we've been discussing, so I'm going to change the heading, and I'm going to take out the rest of it.

[00:03:40] Speaker 03:
I think that that would be a different case, but here... So in a situation in which somebody didn't do that, didn't have the foresight to do that... Yes, I think that falls into the context how the record is kept by the agency and FOIA's presumption in favor of openness.

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But it's a presumption in favor of openness with respect to things that are requested.

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That's right.

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And it's true that the statute uses the term record, but do you really think that what Congress intended to do was to make sure that when someone has a request that's focused on a particular subject matter, they meant to sweep in everything that by happenstance is part of the same email chain?

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I do, Your Honor, but here's another point.

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Even if Your Honor is not compelled by that, so far as I can tell, and I have looked at each of the pages that still contain information that is being withheld that's not responsive, so far as I can tell, the agency has not withheld entire emails.

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It has, in some instances, withheld

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the text of an email and left in the to from and subject line.

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Sometimes those emails are in the middle of information that the agency concedes is responsive, but that is only a subset of the information that is still being withheld.

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as nonresponsive in this case.

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So there are lots of other examples where the agency has withheld portions of email, portions of a document, half of a sentence, half of a paragraph.

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And I think in that- But they're all part of a record.

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That's right.

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So once we go down the road of saying that there's a difference between what you're calling an email, which is part of an entire record, and a half sentence, and email, which is also part of an entire record,

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we're definitely in the zone of segregating things that are subject to disclosure, even though it's part of one record, and things that are not subject to disclosure, even though it's part of the same record.

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Right.

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I think what Your Honor is getting at is the more difficult question, although we still think it's clear, as to whether in an email chain, a single email that's redacted in full, you could say, well, that's just a different record.

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And we would say, because it's part of a chain, the whole chain is the record.

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But here, at most, what the government can tell, from what I can tell from the records,

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at most what the government has done is left in the the two from subject and date block and then taken out the text of an email sometimes clearly in response to something that somebody has just said that the government concedes was responsive because they released it so that may be it may be that in some situations the lines just not being policed correctly so the things that might seem

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not germane or in fact germane, because if you understood the context better, you would realize that there's actually at least an arguable basis for saying it's germane.

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That could definitely be true.

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I think that's right.

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If Your Honor doesn't agree with our position about an email chain, I think that's correct.

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And I think if you look at the government's second

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bond index of purportedly non-responsive material, you'll see that's at JA-592.

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The information is not, as the government tries to portray it, only about people's vacations, bugs going around in the office.

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Some of it, I mean, the way they describe it is, it relates to a performance improvement plan for a judge, or sorry, what's going to be discussed during an evaluation, why complaints aren't showing up in the complaint database.

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So those things are arguably germane, and then in which case,

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Now, let me just ask one follow-up question, which is I know you disagree with me on emails, at least what I'm hypothesizing on emails, but is there a basis for drawing a distinction between emails and other forms of records?

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In other words, it seems to me that

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If someone were to accept the notion that the fact that the statute refers to a record doesn't mean that every part of an email chain is subject to disclosure just because it happens to be part of it, you could say the same thing about other kinds of documentation separate and apart from emails that the government may have in its possession.

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I think that's right.

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It's certainly a slippery slope.

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If you say that no, with an email chain, you really just look at every single email, what do you do when you get a cover letter that says, here are the five reports you asked for with respect to X issue, and it's paper clipped together, are you going to say, oh no, the four of them, even though they were relevant to the same decision, are not part of that record?

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So I'm not saying they're necessarily the same, but I think doing what Your Honor is suggesting is going to open up lots of other problems.

[00:07:53] Speaker 06:
Well, it just depends on where you start from.

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And where you start from is that there's a problematic slippery slope, and so we shouldn't do this at all.

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Someone might start from the opposite presumption, which is that there's happenstance disclosures that have nothing to do with the scope of the request.

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And that could be the same with respect to non-email documentation as well.

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I mean, if you imagine a situation in which, for example, you have the daily roundup meeting,

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and every component reports to the agency head, one of which the request has only to do with one component, let's say EOIR, and then there's dozens of other components.

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Everybody gives their daily report, and then there's the minutes of the meeting at the end.

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So by definition, nothing else reported has anything to do with the component, let alone the issue.

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It has nothing to do with the component.

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your position, I think, would be that the entire day of the report would be disclosed.

[00:08:40] Speaker 03:
Right.

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Yes, that would be our position.

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But the other thing that I would say in response to this, Your Honor, is I think you have to keep in mind some of the practical effects that are going to be implicated in this decision.

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And it's important to remember, I think this case demonstrates that the government's position is going to invite abuse with respect to these redactions.

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And the government doesn't dispute that it's going to require federal judges

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to police redactions of information, the disclosure of which will have no impact on the interests protected by FOIA.

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I just want to be clear that the redactions you're challenging here were not, in fact, email by email ones.

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They were within emails.

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So as I said, none of them, so far as we can tell.

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There are a couple of pages in complaint 418 that have very large blocks of redactions.

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So that could possibly be an entire email.

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We just don't know.

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Other than those two pages, the remainder of 58 or potentially more pages of information, at most what is being redacted is the full text of an email, but the subject from two is all available.

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And there are many instances that are even less than that.

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I mean, we're talking partial sentences.

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If I could turn to the Exemption 6 issue, I'd like to address that.

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We see two fatal flaws in what the district court did here, and I think the first one is its failure to appreciate the responsibilities of immigration judges.

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The district court likened immigration judges to DEA agents, to AUSAs,

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And that's simply not the case.

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Immigration judges are making life or death decisions in the cases that come before them, and they're required by law to use their independent judgment.

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In many cases, the buck stops with them.

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The final reviewer.

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Even when immigration judges' opinions are appealed, the agency itself is only reviewing those decisions for clear error.

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That's clearly not how an AUSA is interacting in his or her office.

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That's not how a DEA agent is acting.

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Immigration judges are not in the middle of a bureaucratic... What is a legal test?

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that we should apply that would differentiate, obviously one that you want would differentiate immigration judges from other corporations.

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What is the test that we should apply?

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Is it functional?

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If it's functional, what are the elements that function?

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Because I have a lot of, is it reviewability, then is it

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reviewability or legal opportunity for review.

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I'm really having a lot of trouble figuring out how exactly to, I know you think this is different, but you have a legal rule that would say why this is different and why other things aren't.

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So I think, you know, and it may not be as satisfying of an answer, but exemption six, it is a case-by-case analysis, it's a balancing test.

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I think in terms of looking at the responsibilities of employees, it is not enough, as I think the government would have this court say, that if you're not a senior manager or you're not a political appointee, you know, the public interest in disclosure isn't met.

[00:11:52] Speaker 03:
I think that's just not the case.

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And I think this case is an example of why that can't be the bright line rule.

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I think part of why we look to the responsibilities of the employees is both to determine what the public interest is in disclosure.

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We care more about what

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high-ranking people are doing or people who have a big impact on society than we do about people who are just following orders.

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And part of what goes to the responsibilities is also the interest of privacy.

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And as a practical matter, I think the plea bargain statistic, there's something in the high 90 percentile.

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So those cases are not getting ultimately reviewed by juries or appellate judges for the most part.

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So what do I do with the fact that they seem to have enormous authority, discretion, judgment that is as a practical matter?

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very often not subject to much of any material review.

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And I also would like just to throw them both out, what do we do about asylum officers, who again often can make decisions and someone's just turned around at the border and goes back and leaves.

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So how do I have a workable test that tells me who's in and who's out there with consistent legal standard we can apply?

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There's no doubt that there are lots of people within the US government, some of them nameless to most of society who are making important decisions.

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But I do think that the distinction between what is legally their role and what is practically their role is a useful one for the court to make.

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It could be the case that you would consider the practical effects of someone's decision in addition to the legal effects of their decision.

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But certainly here, where you do have, as a matter of law,

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Very little review, both by the agency and in the courts of appeals, and the gravity of the decisions that they're making.

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Again, as a matter of law, the kinds of things that immigration judges are doing.

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Well, I think it's different from prosecutors doing pleas in that, at least in theory, what is going on within a prosecutor's office is that the AUSAs are determining, making decisions, but those decisions are made, you know, with the backing of their bosses.

[00:14:10] Speaker 03:
And if their bosses disagree, their bosses are not reviewing them for clear error.

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That's just not the standard.

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They could flip the decision at any time.

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And so I think, you know, drawing a distinction between the legal reality and the press... So the head of an AUSA unit, chief of narcotics division, would be a different answer than an AUSA unit.

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I think it would.

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I think it would.

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And I don't think that...

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You know, looking to this court's case law, I don't think that that kind of distinction would be precluded.

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I think this court made that kind of distinction, for example, in Stern.

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That wasn't a case dealing with AUSAs, but I think that kind of distinction was present in Stern.

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You know, I would also say it's not

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There are certainly other areas of law where we look to the legal position that someone has in terms of making a decision for a public agency.

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Who is the legal decision maker instead of getting into some of the practical considerations?

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So I don't think that that would be unprecedented in that respect.

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With respect to the other factors, I do want to get into the other factors that I don't think the district court considered in that extension.

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What public interest is there in disclosing unsubstantiated as a category unsubstantiated complaints?

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I think the public interest in this case comes from the evidence that we've submitted about the ineffectiveness of EOIR's complaint process.

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Candidly, I would say, if we knew that EOIR's complaint process were working effectively, if advocates believed that, if we didn't have some of the evidence that we have, for example, in the declaration that I submitted at 338, showing judges who were responsible for 10, 20, 30 complaints,

[00:15:59] Speaker 03:
And effectively, some of them facing no discipline.

[00:16:03] Speaker 06:
They're getting... Why do you need the name for that?

[00:16:06] Speaker 03:
Well, I think that we need the name for the public interest of being able to hold those judges accountable and to engage in effective monitoring with respect to those particular judges.

[00:16:14] Speaker 06:
For unsubstantiated allegations?

[00:16:16] Speaker 03:
For unsubstantiated allegations, because of the evidence with respect to the ineffectiveness of EOIR's complaint process.

[00:16:23] Speaker 04:
Are those hearings where they...

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Because you cited some bad quotes from hearings and things.

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Were those hearings, I assume, a matter of public record?

[00:16:31] Speaker 03:
Generally speaking, yes.

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And the judge is not redacted from those public transcripts?

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I think that when it goes up to the Court of Appeals, if someone goes into the court, they can see the transcripts.

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That is my understanding.

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But here in these records, the names were redacted, of course.

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But I think as a general matter, if you're looking at an immigration case in court, I believe you can get the immigration judge's names.

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And one thing on this point that I think is important to bring out, the judge's names are public.

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EOIR makes them public in a list.

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The list of the courthouses is public.

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They put out press releases when a new immigration judge comes on board.

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So people know who the judges are.

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And the proceedings themselves are also presumptively public.

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There are certain instances where they can be closed, for example, with certain allegations of abuse.

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But the presumption just.

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Given all that public information.

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then what does the name add when you're talking only about revealing unsubstantiated?

[00:17:30] Speaker 03:
I think because of the evidence showing that EOIR's practice is ineffective or the process is ineffective, we believe that the public has an interest in going into, for example, the courtroom of a judge who has been subject to 20 complaints and who has never been disciplined.

[00:17:47] Speaker 03:
There's at least some question.

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as to what's going on in the courtroom.

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And that can't be done here because we don't have the names of the judges.

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We don't know which cities they're in.

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We don't know where to target.

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So that kind of monitoring cannot happen in the absence of names.

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And we think because of the evidence about EOIR's complaint process, that kind of monitoring would be warranted, even with unsubstantiated claims.

[00:18:10] Speaker 04:
What would happen if, in these records, you had an immigration judge that name was in there because they were

[00:18:17] Speaker 04:
a victim from another IJ's sexual harassment or something, or were reporting or turning in their fellow judge.

[00:18:26] Speaker 04:
Their names would be in these records just as well.

[00:18:28] Speaker 04:
Do those come out too?

[00:18:30] Speaker 03:
No, we have expressly disclaimed seeking the names of complainants.

[00:18:35] Speaker 03:
Even if they're immigration judges?

[00:18:36] Speaker 03:
Yes.

[00:18:38] Speaker 03:
And witnesses?

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And witnesses.

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The names of the immigrants, the names of witnesses.

[00:18:43] Speaker 03:
And we've expressly disclaimed seeking a lot of private information of immigration judges as well.

[00:18:48] Speaker 03:
So it's not as if we're saying everything comes out.

[00:18:51] Speaker 03:
We've conceded that some of this stuff is not going to come out.

[00:18:54] Speaker 06:
So for unsubstantiated, it's really the repeat phenomenon that is the focus of your concern?

[00:19:00] Speaker 06:
a one-off unsubstantiated where the key number doesn't match up to any other complaint.

[00:19:08] Speaker 06:
I'm sorry, I'm not.

[00:19:09] Speaker 06:
I thought that the identifiers were key numbers.

[00:19:12] Speaker 06:
So we don't know the names of the judges, but you know that there's a key number.

[00:19:15] Speaker 03:
That's right.

[00:19:16] Speaker 06:
But then you'd also be able to tell whether that key number matches any other key number.

[00:19:20] Speaker 06:
So you would know if there's only a record of a complaint as to one

[00:19:25] Speaker 06:
If there's only a record of complaint one time as to one key number, then you would know it's not a repeat situation where the same person.

[00:19:31] Speaker 03:
That's right.

[00:19:31] Speaker 03:
That's right.

[00:19:32] Speaker 03:
And although this isn't in the record, Your Honor, but we have done some analysis of just how

[00:19:38] Speaker 03:
slicing the data would affect the impact.

[00:19:41] Speaker 03:
We know that among the judges who are in, of these unique identifiers, among those judges, if you took out the judges, the share of judges who were only subject to complaints that were either dismissed, and keep in mind, that's not dismissed as frivolous, that's dismissed for any reason, or concluded, you would still be left with 60% of the judges in the sample who were subject either to discipline or some form of corrective action.

[00:20:07] Speaker 03:
So, while our position is we should get all of the records, I think at a minimum, what would need to be done here is to look at the smaller categories such as that one as to whether the public interest supports disclosure with respect to those judges.

[00:20:25] Speaker 04:
I'm sorry, to be clear, when you say those judges, you're talking about ones where it was substantiated or where they are unsubstantiated but repeat complaints?

[00:20:32] Speaker 03:
substantiated and led to either discipline, so termination, suspension, or reprimand, or led to corrective action, which could be what EOIR calls counseling.

[00:20:42] Speaker 03:
It's like a warning.

[00:20:44] Speaker 04:
We're talking only about the universe of unsubstantiated complaints.

[00:20:48] Speaker 04:
Do you have a sense of how many of those were one-off or one a year, one every couple years, versus, I hear you had a few-year period, are you recovering, or how many of them

[00:20:59] Speaker 04:
How many people out there really have 20 unsubstantiated complaints against them?

[00:21:05] Speaker 03:
I have not looked at that number.

[00:21:06] Speaker 03:
I know that we did, in our declaration, cite evidence that 15 of these judges were responsible for 10 or more complaints, and seven of the judges were responsible for a quarter of all complaints in the sample.

[00:21:20] Speaker 06:
Now, those seven... But those complaints might be ones that were substantiated.

[00:21:23] Speaker 03:
Yes, absolutely.

[00:21:26] Speaker 03:
I believe three or four of those judges were not subject to formal discipline of any kind, though.

[00:21:32] Speaker 03:
So there you have among the seven judges responsible for a quarter of the complaints, at least half or roughly half were never subject to formal discipline.

[00:21:41] Speaker 03:
So I think the court would need to consider as well, are you seeing the kind of repeat complaints against an immigration judge?

[00:21:47] Speaker 03:
And if that's never being substantiated, why?

[00:21:51] Speaker 04:
I guess what I think, because I just wasn't clear, is the conduct that's this issue here by immigration judges only their conduct in their official capacity or on the job, or would it also reach private conduct off working hours?

[00:22:07] Speaker 04:
Drunk driving, or messy violence, or screaming at somebody in the grocery store.

[00:22:12] Speaker 03:
The conduct here, and I haven't seen any such as you suggest, but we do know from the records or the aggregate statistics, and we could also run it with a sample, although we haven't, we do know that it's actually a very small share of the complaints that are for out-of-court conduct or categorized as out-of-court conduct.

[00:22:34] Speaker 03:
That's at page 132, I believe, of the Joint Appendix.

[00:22:38] Speaker 03:
In 2010-2011, the year for which we have data in the record, it was, I believe, 10%, 9 or 10% of the complaints involved out-of-court conduct.

[00:22:48] Speaker 04:
And I guess to be clear, when we talk about out-of-court conduct, does that mean outside the hearing room, or does that actually mean, or do we not know whether that means private?

[00:22:57] Speaker 04:
speeding tickets.

[00:22:59] Speaker 03:
It is not.

[00:23:00] Speaker 03:
It's not defined by EOIR.

[00:23:02] Speaker 03:
I think that it could mean conduct outside of the courtroom, but that's merely by the process of deduction.

[00:23:09] Speaker 03:
The other rationales would be due process problems, legal problems, trying to think of some of the other ones, in-court conduct,

[00:23:20] Speaker 03:
criminal conduct, there is a separate category for criminal conduct that's a very small share.

[00:23:25] Speaker 03:
So to the extent that that would be relevant, and I think it could be relevant if your honors were not persuaded with respect to the full scope of our position, looking to the type of conduct and issue that is known, it's knowable, and we could certainly brief that with respect to the records that we have based on the information available and what's been released.

[00:23:50] Speaker 01:
All right, thank you.

[00:23:52] Speaker 01:
Mr. Guzman.

[00:24:03] Speaker 05:
Good morning, and may it please the court.

[00:24:05] Speaker 05:
The district court here correctly granted summary judgment on all three issues that are presented before the court, and I will just begin the order in which they're briefed, which begins with the Exemption 6, withholding issue of the identities and names of the immigration judges that were subject to these complaints.

[00:24:23] Speaker 05:
What EOIR has done here is what this court and Supreme Court and other courts have recognized is a workable compromise and a reasonable compromise between the privacy interests of government civil service employees and the public interest in knowing what the government is up to.

[00:24:41] Speaker 06:
If you focus on the subcategory of substantiated allegations, and let's just take the worst case scenario where you have substantiated allegations against someone who's a repeat player and it's egregious misconduct.

[00:24:53] Speaker 06:
What's the argument that there's not a public interest in knowing the identity of that individual?

[00:24:58] Speaker 05:
Well, I think we begin with what the public interest is in the context of government misconduct in the way that

[00:25:05] Speaker 05:
the appellant ALA framed it in its FOIA request, which was, is EOR adequately investigating, looking into, and taking corrective action with respect to immigration judge complaints?

[00:25:17] Speaker 05:
So the information that's been released, including in the circumstance where you may have an immigration judge who has been the subject of multiple complaints, substantiated or otherwise, all of the information in connection with that complaint,

[00:25:29] Speaker 05:
The complaint itself, the nature of it, what action the assistant chief immigration judge, typically the investigating individual within EOIR, has taken, and ultimately whether the complaint was substantiated, and what corrective action was taken.

[00:25:46] Speaker 05:
All that information is now in the public domain as a result of the releases that EOIR has done here.

[00:25:53] Speaker 05:
So the overarching public interest, the way it's been defined in the Reporters Committee,

[00:25:57] Speaker 05:
The way it's been defined in the Department of Defense, the FLRA, has been satisfied here.

[00:26:02] Speaker 05:
The public can know what the government is up to.

[00:26:04] Speaker 04:
What if they wanted to know if the government's not vetting people well before they hire them?

[00:26:09] Speaker 04:
And then they have a record of bad conduct and

[00:26:12] Speaker 04:
their private jobs, and then they get hired, and then they're repeating that bad conduct, whether it's biases, inappropriate behavior.

[00:26:20] Speaker 04:
They're continuing that, but the only way to know whether you're not caring about their past practices and then bringing that problem into the system is to know who they were.

[00:26:32] Speaker 05:
Well, Your Honor, that can be deduced at least in part through the way the documents have been released in this case by EOIR.

[00:26:39] Speaker 05:
That is with the provision of a key that allows the public to time.

[00:26:44] Speaker 06:
No, I don't think they can.

[00:26:46] Speaker 06:
I'm sorry.

[00:26:46] Speaker 06:
Go ahead, Jeff.

[00:26:47] Speaker 04:
I'm just going to say that if the problem was that somebody, you know, Mr. X or Ms.

[00:26:53] Speaker 04:
X, had been known for harassing employees at a private law firm,

[00:27:00] Speaker 04:
got fired from that law firm and hired as an immigration judge.

[00:27:05] Speaker 04:
And suddenly there's a bunch of complaints for harassing employees or harassing witnesses and parties.

[00:27:12] Speaker 04:
There's no way without the name, we don't know.

[00:27:14] Speaker 04:
The identifier might show what happened as an immigration judge, but it doesn't show that you let somebody in as an immigration judge that nobody should have hired because they had a past track record.

[00:27:24] Speaker 04:
You have to have the name to tie them to that past misconduct.

[00:27:27] Speaker 05:
Well, Your Honor, but there are, as counsel for appellant explained, the names of the immigration judges are known.

[00:27:34] Speaker 04:
I know, but we don't know that they're continuing, I'm sorry.

[00:27:38] Speaker 04:
We don't know they're continuing that pattern.

[00:27:40] Speaker 04:
But whatever they were doing before is something that continues in their behavior, unless we know who they are.

[00:27:46] Speaker 05:
But we know about the approximately 260 immigration judges that are employed by UIR.

[00:27:51] Speaker 05:
So someone who's interested in that scenario, who are they hiring?

[00:27:55] Speaker 05:
What is the background of these individuals?

[00:27:57] Speaker 05:
Any researcher or any member of the public can look at all 260 and- They can't know if they- I'm sorry.

[00:28:04] Speaker 06:
I mean, you're suggesting that if somebody does the right due diligence, then they can divine the name that you're withholding.

[00:28:10] Speaker 06:
And then if they can divide the name that you're withholding, then they can conduct the follow-on search that Judge Millett is hypothesizing.

[00:28:15] Speaker 06:
But if that's true, then disclose the name.

[00:28:18] Speaker 05:
Well, Your Honor, there's still a privacy interest that has to be taken into account on behalf of the immigration judge before we get to the public interest.

[00:28:25] Speaker 05:
So we begin with the fact that all government employees have a privacy interest in information that relates to their performance at their job or their personnel files.

[00:28:35] Speaker 05:
That includes individuals who either are accused of having

[00:28:39] Speaker 05:
engaged in misconduct, and those accusations prove to be unsubstantiated or unproven, or even in the scenario where a government employee has been accused of misconduct and ultimately is substantiated.

[00:28:50] Speaker 05:
If you look at the cases, for example, Stern, Kimberlin from this court, Lazar, which we cite in our brief, L-E-S-A-R, these are cases where either the government employee acknowledged

[00:29:01] Speaker 05:
that he had engaged or she had engaged in misconduct or had been a determination made somewhere along the line that the individual had engaged in misconduct.

[00:29:10] Speaker 05:
Nevertheless, the court said there's still a privacy interest in that information on the part of the government employee.

[00:29:17] Speaker 05:
and then proceeded to balance the public interest against that privacy interest and then upheld that privacy interest in those circumstances.

[00:29:28] Speaker 04:
Do you think that balance is at least materially changed if you're talking about an example one is going to involve someone who has

[00:29:37] Speaker 04:
repeat substantiated claims of in court abusive and egregious conduct versus an immigration judge who has one complaint entirely unsubstantiated or dismissed as frivolous.

[00:29:51] Speaker 04:
Is the balance the same?

[00:29:53] Speaker 05:
Well, Your Honor, I think the balance, ultimately the balance comes out the same in terms of the privacy interest should outweigh the public interest.

[00:30:03] Speaker 04:
Why is the privacy interest of the person who has one charge of entirely unsubstantiated or frivolous allegations

[00:30:12] Speaker 04:
The exact same as the person who on a public record hearings is repeatedly again and again in the courtroom.

[00:30:20] Speaker 04:
The publicly available transcripts engaging in egregious and outrageous behavior that is substantiated.

[00:30:25] Speaker 04:
Why are their privacy interests the same?

[00:30:27] Speaker 05:
The privacy, well, at least as I understand the decisions of the court, the privacy interests in those circumstances would be the same, even where there is proven misconduct on the part of... Why?

[00:30:37] Speaker 04:
Don't put it on our decisions just so you can help me to understand why.

[00:30:40] Speaker 04:
If that's what we've done, wasn't that silly?

[00:30:42] Speaker 04:
I mean, why would that be the same?

[00:30:43] Speaker 04:
If you asked anybody on the street, would they think that's silly?

[00:30:45] Speaker 05:
Well, rather because they've looked at the public interest in terms of, do we know what the government is up to?

[00:30:49] Speaker 05:
And that question verbally is focused on, is the government adequately investigating allegations of misconduct?

[00:30:56] Speaker 05:
In other words, it's been focused on the activities.

[00:30:58] Speaker 04:
That sounds like the public interest.

[00:30:59] Speaker 04:
I'm talking about the privacy interest.

[00:31:02] Speaker 06:
For the individual.

[00:31:04] Speaker 05:
Well, arguably, the privacy interest of the individual in that circumstance may even be more heightened.

[00:31:09] Speaker 05:
I'm not sure that we have.

[00:31:10] Speaker 04:
Which individual?

[00:31:11] Speaker 05:
The individual who's been subject of repeated substantiated.

[00:31:14] Speaker 04:
Has a higher privacy interest than the one who was?

[00:31:17] Speaker 05:
Well, to the extent that privacy interest ties to the stigma or embarrassment or damaged reputation.

[00:31:25] Speaker 06:
I mean, typically, we talk about stigma when it's unsubstantiated.

[00:31:30] Speaker 06:
Because what we're worried about is the person will have an unfair stigma.

[00:31:33] Speaker 06:
I don't know that we usually talk about stigma in a situation in which we're talking about repeated egregious substantiated situations because at that point

[00:31:41] Speaker 05:
Well, again, not the hide behind the court's decisions, but the court certainly, in speaking about the privacy interest and in terms of stigma or embarrassment, has also invoked that interest in the case of employees found to have engaged and substantiated.

[00:31:57] Speaker 06:
I guess the incentive on a part of a person who's committing misconduct is to do it over and over and over again, because then they have a greater chance of remaining anonymous.

[00:32:05] Speaker 05:
Well, Your Honor, I mean, that

[00:32:07] Speaker 05:
in and of itself is not the only determinant part of the privacy interest.

[00:32:11] Speaker 04:
The court has also made... Well, is that the basis that you referenced involve employees who had engaged...

[00:32:17] Speaker 04:
in a public setting on a public record in their misbehavior or had their misbehavior been presumably within the office and not perceptible to the public?

[00:32:29] Speaker 05:
Well, Your Honor, at least in one case, in the Kimberland case, it involved a public prosecution of an individual.

[00:32:37] Speaker 04:
And was it in the courtroom behavior?

[00:32:38] Speaker 05:
I don't believe it was in courtroom behavior, but it had to do with the AUSA in that case making statements to the press over the course of a pending criminal investigation.

[00:32:49] Speaker 05:
So while it may not have been in court conduct, it was, I think, what could fairly be called conduct in the public sphere, or at least conduct that had a public aspect to it.

[00:33:01] Speaker 05:
In that sense, I think that is analogous to the nature of the misconduct or the nature of the conduct complaints that are at issue here in EOIR.

[00:33:11] Speaker 05:
I'm not aware, and I haven't gone through every complaint, but I'm not aware of any of them having to do with an immigration judge's personal conduct.

[00:33:18] Speaker 05:
I think certainly the lion's share of them have to do with the satisfaction or complaints by a respondent or attorney with respect to how a particular hearing has been conducted.

[00:33:30] Speaker 05:
whether it's demeanor.

[00:33:32] Speaker 04:
I'm just trying to understand what the relevant rules that are placed this process.

[00:33:38] Speaker 04:
They would include all behavior 24-7 by these immigration judges both

[00:33:48] Speaker 04:
in the home, the supermarket, or on the road, as well as in the office?

[00:33:56] Speaker 05:
Well, the EIR has adopted a very broad definition of complaint.

[00:34:01] Speaker 05:
So conceivably, if someone encountered an immigration judge at a grocery store to use your example and found the individual to be disrespectful in some way or to use offensive language,

[00:34:12] Speaker 05:
I suppose that they could go to EOIR and make that type of complaint.

[00:34:15] Speaker 04:
I'm not sure how common that is here, if that in fact is... Well, on JA135, I'm just trying to understand these categories.

[00:34:25] Speaker 04:
When they talk about out of court, does that mean out of the hearing room, so maybe back in the office where they're interacting with staff members and writing opinions, or does that actually mean

[00:34:39] Speaker 04:
off-the-clock.

[00:34:41] Speaker 04:
What does legal mean?

[00:34:43] Speaker 04:
I just don't understand these categories.

[00:34:47] Speaker 05:
Right, Your Honor.

[00:34:49] Speaker 05:
As I sit here, I can't break those down.

[00:34:53] Speaker 05:
I believe they may be contained in the IJ complaint procedure that's part of the record as well.

[00:35:02] Speaker 05:
I believe that the out of court, well I'd be speculating I don't want to do that, but I think it refers to perhaps opinion writing or issues taken with the way an immigration judge ruled or written up the opinion.

[00:35:19] Speaker 05:
Respondents and attorneys are not the only source of possible complaints.

[00:35:22] Speaker 05:
There's also a procedure EOIR set up within EOIR where the Board of Immigration feels the BIA can also refer what are defined as complaints to be reviewed.

[00:35:34] Speaker 05:
And those tend to deal with the quality of the decision that's been rendered.

[00:35:38] Speaker 04:
One thing I'd be interested in your thoughts on is there certainly are some ways in which immigration judges seem to have authority

[00:35:46] Speaker 04:
discretion to exercise is different than a DEA agent.

[00:35:51] Speaker 04:
Most of that is going to be the types of things they do, certainly in a hearing room, and maybe anything that's involved in the decision-making process.

[00:36:03] Speaker 04:
But then when it comes to how they interact with members of their staff or members of the court staff,

[00:36:11] Speaker 04:
maybe in that regard, they're no different than how DEA agents interact with other folks in their office.

[00:36:18] Speaker 04:
Is there any tenable basis for drawing distinctions about their role and deciding how this balance works out and deciding what they were doing?

[00:36:29] Speaker 04:
In some ways, they're like DEA agents and AUSAs, and in other ways, they're not.

[00:36:34] Speaker 04:
Should that be factored into the balance, or do we really have to be categorical as happened here?

[00:36:38] Speaker 05:
I believe, Your Honor,

[00:36:40] Speaker 05:
It is appropriately dealt with categorically here.

[00:36:44] Speaker 05:
If you look at what immigration judges are, the nature of what they are, granted they do have the job title of judge, but ultimately they are career attorneys within the department.

[00:36:54] Speaker 04:
It's not just the job title of judge, they really do judging.

[00:36:57] Speaker 04:
They really do, at least, again, maybe not all day, every day, but a good percentage of the day, they really are exercising enormous amounts of discretion that are incredibly consequential in a way that seems somewhat different from

[00:37:15] Speaker 04:
somebody who's a computer processor inside the Justice Department?

[00:37:18] Speaker 05:
Well, Your Honor, certainly I think there's a difference between an immigration judge and, say, a person who's working in IT within the Department of Justice.

[00:37:28] Speaker 05:
But I think immigration judges, we'd submit, are far more in line with AUSAs or law enforcement agencies, say, FBI special agents or

[00:37:38] Speaker 05:
or DA agents who are also part of the Department of Justice.

[00:37:41] Speaker 05:
These are all positions of trust, and they all have vested with them a tremendous amount of discretion and responsibility with them.

[00:37:47] Speaker 05:
So while the AUSA may not be making a decision in a court setting or an adjudicatory setting, the decisions that an AUSA are making are just as consequential in the case, certainly, of a criminal situation.

[00:38:00] Speaker 04:
Are they made independently?

[00:38:01] Speaker 04:
Do they have that consequence independently when you're an AUSA?

[00:38:05] Speaker 04:
You know, if you decide, here's the plea that we're going to go for, and the sentence we're going to ask for, the plea will accept, the charges we're going to do, because that will affect the plea, and then the plea we're going to accept.

[00:38:16] Speaker 04:
Is that usually made entirely independently by a single AUSA, or is that usually an office decision?

[00:38:21] Speaker 05:
Your Honor, in my experience, there's been both aspects.

[00:38:26] Speaker 05:
I think it depends on the type of case.

[00:38:30] Speaker 05:
I think predominantly in terms of how that review

[00:38:36] Speaker 05:
But I think it's the same with immigration judges.

[00:38:39] Speaker 05:
If one looks at the code of federal regulation creating immigration judges, it makes clear that these judges are acting at the direction of the attorney general.

[00:38:50] Speaker 04:
So there are certain... So does that mean an immigration judge gets a case and goes, wow, this is a tough one.

[00:38:56] Speaker 04:
I'm going to send this person... I think I may have to send this person back to a country where it's a dangerous country.

[00:39:06] Speaker 04:
Let me run it by the AG.

[00:39:08] Speaker 04:
Let me run it even by the chief immigration judge.

[00:39:10] Speaker 04:
Do they do that or do they just make their decisions?

[00:39:12] Speaker 05:
Well, there are manuals and handbooks that EOIR is prepared for handling these cases.

[00:39:19] Speaker 04:
Do they consult with anybody else?

[00:39:21] Speaker 05:
Your Honor, I'm not aware of that, and there was nothing in the record.

[00:39:26] Speaker 04:
There's certainly no supervision of that judgment, the issue.

[00:39:29] Speaker 04:
Pardon me?

[00:39:30] Speaker 04:
There's no supervision of that judgment, the issue, in a particular case.

[00:39:33] Speaker 05:
Well, it certainly can be further review if it can be sought by the respondent.

[00:39:40] Speaker 04:
Right, but the decision they make is independent.

[00:39:43] Speaker 05:
I guess it's their decision that they've made, but it's

[00:39:49] Speaker 05:
with reference to the adjudication handbooks that have been created within the OIR.

[00:39:55] Speaker 05:
So it's not, I guess it has aspects of independence, but I would say it's not an entirely independent decision.

[00:40:01] Speaker 05:
It's a decision that has a tremendous amount of discretion to it.

[00:40:07] Speaker 05:
Again, I think like decisions that AUSAs make every day with respect to cases that they have or matters that they have open.

[00:40:18] Speaker 01:
How similar are these immigration judges to the Social Security judges?

[00:40:24] Speaker 01:
I mean, are these proceedings ex parte?

[00:40:26] Speaker 01:
Are they entitled to a lawyer?

[00:40:27] Speaker 01:
Do we know how many times there have they asked the plaintiffs asked for the records on how many times a judge with the three-letter identification has been appealed or reviewed?

[00:40:45] Speaker 01:
His decisions, I mean.

[00:40:47] Speaker 05:
No, Your Honor.

[00:40:48] Speaker 05:
So with respect to the hearings that are had, the respondent is entitled to have an attorney represent him or her.

[00:40:58] Speaker 05:
They don't have a right to counsel.

[00:41:00] Speaker 05:
And they can also proceed per se.

[00:41:03] Speaker 05:
So it is a proceeding that could be represented there.

[00:41:08] Speaker 05:
It will be an attorney from DHS who's representing the government's position.

[00:41:13] Speaker 01:
So there is someone from the government?

[00:41:16] Speaker 05:
There is someone from the government that's present.

[00:41:18] Speaker 05:
That's correct, Your Honor.

[00:41:19] Speaker 05:
And with respect to the FOIA requests, that's an issue here.

[00:41:23] Speaker 05:
It did not deal with whether certain judges had been appealed or what the outcomes of those appeals had been, either to the BIA or ultimately to a circuit court appeal.

[00:41:32] Speaker 05:
It had been focused on complaints that had been filed against them.

[00:41:36] Speaker 06:
Focused on the internal part rather than the external part?

[00:41:38] Speaker 06:
That's correct.

[00:41:39] Speaker 01:
And all of the merits decisions comply with A2A.

[00:41:44] Speaker 01:
In other words, you keep an index of.

[00:41:50] Speaker 01:
I'm sorry.

[00:41:50] Speaker 01:
Do you keep an index, whatever?

[00:41:53] Speaker 05:
A-to-A requires.

[00:41:54] Speaker 05:
Is this the proactive disclosure provision?

[00:41:58] Speaker 05:
I believe, certainly with respect to BIA decisions, in other words, the appellate body, I'm not sure that's the case with the individual immigration judge decision.

[00:42:08] Speaker 05:
That is, in fact, a self-published document itself.

[00:42:16] Speaker 05:
If I can address briefly the issue of nonresponsive redactions, we believe the court there correctly held, as other district courts had, both within this jurisdiction and other jurisdictions, that it is a proper practice for agencies to redact nonresponsive information within an otherwise responsive document.

[00:42:41] Speaker 04:
Is there any textual basis in FOIA for that?

[00:42:44] Speaker 05:
There is not, Your Honor, but that in our view is something that's a practice like other practices that courts have developed in managing FOIA litigation that are not expressly found in a statute.

[00:42:55] Speaker 05:
For example, bond declarations or global responses or representative sampling, those are things that necessarily are spelled out expressly in the FOIA.

[00:43:03] Speaker 05:
But over the course of adjudicating these cases over the 50 years, FOIA has been in existence.

[00:43:10] Speaker 05:
There are other tools that the courts have developed.

[00:43:12] Speaker 04:
I think FON is a tool that we use to ensure you're complying with the statute.

[00:43:16] Speaker 04:
It doesn't excuse you from disclosing something that's within a definition of record and not exempt.

[00:43:24] Speaker 04:
The difficulty out here is that it says disclose records unless they're exempt.

[00:43:30] Speaker 04:
And the information, I guess, that's being redacted here doesn't meet any exemption.

[00:43:39] Speaker 04:
And so, what is the basis for holding it, if you're not disputing the definition of record, which seem, think that you were, I didn't understand that to be the basis for your decision here, your position here.

[00:43:54] Speaker 05:
No, Your Honor, I don't think there's a dispute with respect to how FOIA defines record.

[00:44:00] Speaker 04:
The email chain is a record, at least for purposes of this case.

[00:44:03] Speaker 05:
I think that's fair, Your Honor.

[00:44:04] Speaker 05:
What the Office of Information Policy has recognized, and I think what the courts have recognized, is that particularly with respect to emails, but not only emails,

[00:44:15] Speaker 05:
other documents as well.

[00:44:16] Speaker 05:
The way government officials communicate in this day and age, it's not in nature of limiting your email or memo to one single, discrete topic.

[00:44:30] Speaker 05:
Lots of instances.

[00:44:31] Speaker 05:
There will be a lot of times when an employee may communicate with someone else on a variety of topics, some that may even be of a personal nature or outside of work.

[00:44:41] Speaker 04:
Oh, they're personally integrated in both exemption six or seven C for them.

[00:44:44] Speaker 04:
I mean, you talked about someone's illness here.

[00:44:47] Speaker 04:
I assume that goes out on six or seven seats.

[00:44:49] Speaker 04:
But it's not that.

[00:44:50] Speaker 04:
Then if the name's redacted, the fact that someone was thinking of a, if you don't have a security reason to protect the safety of traveling judges, the fact that someone was talking about what's the best beach in the Bahamas may be not particularly responsive, but I'm going to, doesn't meet the exemption of exemption.

[00:45:07] Speaker 05:
I think it's entirely fair, Your Honor, but when EOIR was processing these records, they were looking at it as what is responsive information and then dealing with whether that information was subject to any exemption or not.

[00:45:21] Speaker 04:
Why do they get to ask?

[00:45:22] Speaker 04:
responsive.

[00:45:23] Speaker 04:
Why do they get to ask whether it's responsive in the sense of does it fall within the definition of what they asked for but it sounded like you went one other layer and said here's what we why we think they asked for those documents and we use that as a basis.

[00:45:37] Speaker 04:
Maybe they were just curious as to what everyone was talking about.

[00:45:40] Speaker 05:
Well Your Honor, with respect to

[00:45:44] Speaker 05:
how EOIR looked at these documents, Review Global's responsive.

[00:45:47] Speaker 05:
It was in the connection of, is there a complaint against the immigration judge?

[00:45:51] Speaker 05:
Was there a resolution to the complaint, and whether the information or record related to the complaint or its resolution?

[00:45:58] Speaker 05:
So in looking at documents, if there was an email that discussed one immigration judge's vacation plans or personal health issues or some personal matter, just to name two or three examples that are contained therein,

[00:46:12] Speaker 05:
In their view, that was information that just didn't come within the scope of the FOIA request in the first instance, and they understandably, I think, did not, at that point, go the extra step of saying, well, is this information exempt for some reason also?

[00:46:27] Speaker 04:
What if they wanted to know that, look, you had a serious charge that went against Judge X-12, and you had exchanged no other money?

[00:46:35] Speaker 04:
And in the midst of it,

[00:46:38] Speaker 04:
Instead of dealing with the gravity of this problem, we see these government folks going, yeah, yeah, I know he did that horrible, terrible thing, but...

[00:46:47] Speaker 04:
You see a picture from a vacation, and by the way, have you ever been to that place?

[00:46:50] Speaker 04:
Isn't it almost relevant that folks were off in the same chain talking about other things?

[00:46:55] Speaker 04:
Couldn't someone think that was relevant?

[00:46:57] Speaker 04:
How much should they have to say that or do it?

[00:46:59] Speaker 05:
I think there are two pieces to this.

[00:47:03] Speaker 05:
One is whether this practice is permissible.

[00:47:05] Speaker 05:
In other words, whether agencies can properly redact

[00:47:09] Speaker 05:
information that they consider to be non-responsive to a FOIA request.

[00:47:12] Speaker 05:
We think the answer to that is yes, based on the practice that district courts have engaged in for a period of time and also consistent with guidance that the Office of Information Policy has put forward.

[00:47:26] Speaker 05:
So I think that's the first part of what I'd say.

[00:47:28] Speaker 05:
This practice is a recognized one and one that's been sanctioned by the courts.

[00:47:32] Speaker 05:
Not by this one.

[00:47:33] Speaker 04:
No, it has not been, this is an open question in the circuit, that's absolutely correct, Your Honor, but certainly our district courts have been... I have the feeling you're going to say that sometimes it might be misapplied, but I wondered why it's not even the upfront question of deciding why do you get to decide within what you don't dispute as a record that falls within the request for FOIA, but it's something they really don't want.

[00:47:58] Speaker 04:
So I'm actually still at stage one.

[00:48:03] Speaker 05:
I believe, Your Honor, that's of the same degree as making a responsive, non-responsive determination with respect to a record in and of itself.

[00:48:13] Speaker 05:
So there are certainly a, there are, there's a universe of records that, you know, I

[00:48:20] Speaker 05:
has, the four-year request came in, they looked only at a subset that would have immigration judge complaints or resolutions of complaints to them.

[00:48:29] Speaker 05:
So there are records that EOI would not have reviewed at all because they did not believe it would contain that type of information or

[00:48:37] Speaker 05:
Secondly, would have pulled together a universe of records.

[00:48:41] Speaker 06:
What do I look at, because it sounds to me like you're buying into this notion, what do I look at to tell me that each email chain is a separate record?

[00:48:48] Speaker 06:
That if I'm engaging in an email chain and then I decide, you know, I'm going to start a new email chain, what I've done is I've started a new record.

[00:48:57] Speaker 06:
What tells me that in the statute or is there a regulation or something that tells me that?

[00:49:00] Speaker 05:
Well, the FOIA talks about records being information, whether it's electronically stored or not.

[00:49:06] Speaker 02:
Sure.

[00:49:06] Speaker 05:
So someone creates, sends three separate emails as opposed to, as opposed to send a reply.

[00:49:12] Speaker 05:
and then a response to the reply, it seems to me that maybe it will be three separate records.

[00:49:19] Speaker 05:
We would certainly, let's say that the three emails had, each of them had some information that was exempt in them, either let's call it a deliberate process privilege.

[00:49:28] Speaker 05:
Certainly, I think the agency would, in a FOIA context, would be boning those documents as three separate emails.

[00:49:35] Speaker 05:
Email one,

[00:49:37] Speaker 05:
date to from, perhaps, and then the reason for the claimed exception.

[00:49:41] Speaker 05:
I'm not sure that the agency there would simply say emails in an undifferentiated way.

[00:49:47] Speaker 05:
So in my mind, that's why I would do it as stream.

[00:49:50] Speaker 06:
But it just seems like you were buying into some conception of what a record is in an electronic format.

[00:49:54] Speaker 06:
When I assume that it's possible, we've talked about IT people.

[00:49:57] Speaker 06:
I assume that there's IT people out there who could format your email such that every exchange between two individuals just is part of one stream.

[00:50:06] Speaker 06:
We could segregate it by somebody deciding to start a new email, but we could not.

[00:50:11] Speaker 06:
Maybe the electronic formatting works such that we can create a situation where every exchange between two people is part of the same sequence, even if we would sort of hypothesize that you started a new email chain, you could create something that has all of it on one, and it would appear on the screen.

[00:50:28] Speaker 06:
And then would we say that, well, now that we have that formatting instead of some other formatting, we've changed what a record is.

[00:50:34] Speaker 06:
And now the record is everything that's part of that chain, even if somebody tried to start a new email chain.

[00:50:40] Speaker 05:
I suppose record could be formatted that way.

[00:50:45] Speaker 05:
There may be a question as to.

[00:50:46] Speaker 06:
It just seems to me there's some artificiality to applying the term record to emails or to electronic formatting, because it's all subject to reformatting by the system.

[00:50:57] Speaker 06:
So we're operating on the assumption that there's something talismanic about one email as a distinct record.

[00:51:05] Speaker 06:
And I wonder whether that's, maybe that's true.

[00:51:07] Speaker 06:
If it is, definitely tell me, but.

[00:51:10] Speaker 05:
I mean, I'm just understanding the question of if we're talking as each other.

[00:51:14] Speaker 05:
I'm sure you'll point that out.

[00:51:16] Speaker 05:
But to me, it doesn't, I don't believe this practice turns on whether we're talking about a single email

[00:51:22] Speaker 05:
ultimately, or an email chain, or whether it's a reformatted email that IT creates in order to respond to a FOIA request.

[00:51:31] Speaker 05:
Our position is that in any of those circumstances, if there's information that is outside of the scope of the FOIA request, it's not responsive, that the agency does not need to release that information.

[00:51:43] Speaker 05:
It can properly redact it.

[00:51:46] Speaker 05:
It would be our position in the case.

[00:51:49] Speaker 05:
That's how it was presented to the district court.

[00:51:51] Speaker 05:
The district court had the benefit of the bond that was prepared.

[00:51:55] Speaker 05:
District court had the benefit of the explanations contained in the bond about what this information was.

[00:51:59] Speaker 05:
This is not something that was untested in the litigation below.

[00:52:03] Speaker 05:
So at the end of the day, it's not unlike dealing with anything else that has been bond that's an exemption.

[00:52:10] Speaker 05:
The court has the ability to look at that and satisfy itself that there is a reasonable degree of specificity to it

[00:52:16] Speaker 05:
the agency has discharged its burden.

[00:52:21] Speaker 01:
All right, thank you.

[00:52:22] Speaker 01:
Thank you very much.

[00:52:22] Speaker 01:
Does Ms.

[00:52:23] Speaker 01:
Dory have any time left?

[00:52:26] Speaker 01:
All right, why don't you take one minute.

[00:52:33] Speaker 03:
I do want to flag we did have the A2 claim, which we didn't get to discuss.

[00:52:38] Speaker 03:
We'll rest on our briefs.

[00:52:39] Speaker 03:
We think it's fully briefed in that context.

[00:52:41] Speaker 03:
On the point of Exemption 6, the government's position is that the privacy interest is the same regardless of the type of conduct, whether it occurs in court and out of court.

[00:52:50] Speaker 03:
I just want to point out that that's not consistent with this court's decision in prison legal news where the court recognized that, for example, throwing a screw at another employee versus a sexual assault on someone, the privacy interest as well as the public interest is going to be different under those circumstances.

[00:53:05] Speaker 04:
I thought your first position, at least, was that it's categorical.

[00:53:08] Speaker 04:
It's just categorical the other way.

[00:53:10] Speaker 03:
Well, that's true.

[00:53:12] Speaker 03:
Our position is that all of the information should be released.

[00:53:15] Speaker 03:
But we've never said that the public and private interests do not vary.

[00:53:20] Speaker 03:
Our position was, regardless of how you slice the data, it all should come out.

[00:53:26] Speaker 03:
So it wasn't the all or nothing position that the government has suggested that we have.

[00:53:30] Speaker 03:
On the non-responsive points, the government says this is like the Vaughn case, where the courts have overlaid a procedure

[00:53:38] Speaker 03:
I think this case is actually a lot more like, as the government described it without a textual basis, Milner, where the Supreme Court said, you cannot overlay onto FOIA something that is going to lead to more disclosure.

[00:53:52] Speaker 03:
Your Honor's

[00:53:53] Speaker 03:
point about what would the public find out, for example, if someone is joking in the context of describing a complaint that is of seriousness, you know, that would reveal something to the public.

[00:54:06] Speaker 03:
That's not a hypothetical, Your Honor.

[00:54:08] Speaker 03:
If you look at JA-596,

[00:54:09] Speaker 03:
what the government describes an incident where they have have redacted a joke made by an ACIJ and if you look at the page that's referenced there it's actually with respect to a complaint about an anti-muslim remark made by an immigration judge I believe on the bench and we are we have the entire email chain except in that instance the text of the final email the joke that the government has redacted so

[00:54:35] Speaker 03:
It's not hypothetical.

[00:54:36] Speaker 03:
They've gone through the records.

[00:54:38] Speaker 03:
And I think past practice in this case demonstrates that the position by the government here is going to lead to abuse.

[00:54:45] Speaker 04:
I just have a quick question.

[00:54:46] Speaker 04:
Sure.

[00:54:46] Speaker 04:
I wondered whether the fact that your FOIA requests ask for records that reflect reasons.

[00:54:51] Speaker 04:
I use that term instead of just asking all records involving.

[00:54:57] Speaker 04:
Does that mean that they actually

[00:54:59] Speaker 04:
had to undertake some of this sifting to make sure that they were at least in their judgment to confide over things that reflect the disciplinary process as opposed to things that don't reflect disciplinary process.

[00:55:15] Speaker 03:
You mean that our request suggested that they had to do work beyond the just disclosing records?

[00:55:21] Speaker 03:
Records that reflect the reasons.

[00:55:23] Speaker 03:
Right.

[00:55:23] Speaker 03:
And so your question is, did they have to respond to that?

[00:55:27] Speaker 04:
And so when they were trying to take it, what they would say is that as part of this responsiveness determination, they were just determining that at least as to those things, they weren't responsive because in their view, they didn't reflect the reasons for resolving.

[00:55:42] Speaker 04:
the complaint.

[00:55:43] Speaker 04:
And so it really just is not a responsive record, at least in part.

[00:55:48] Speaker 03:
I think they have to rise and fall with what the record is.

[00:55:50] Speaker 03:
The request asks for records that reflect.

[00:55:53] Speaker 03:
And so if a record reflects in any part the reasons underlying the decision, the record in full should be disclosed.

[00:56:00] Speaker 04:
I was going to say, well, if there's one line talking about the

[00:56:04] Speaker 04:
Are you done yet?

[00:56:08] Speaker 04:
Almost.

[00:56:08] Speaker 04:
And then there's an entire page on, by the way, what about the office party that you're organizing?

[00:56:15] Speaker 04:
At some point they have to look and say, is it reflecting the process?

[00:56:21] Speaker 03:
Well, but I think the language has to govern, Your Honor, and especially in light of this court's precedent that an agency should construe a FOIA request liberally.

[00:56:30] Speaker 03:
We did not say records where they reflect or information that reflects.

[00:56:35] Speaker 03:
We said records.

[00:56:36] Speaker 03:
reflect.

[00:56:37] Speaker 03:
And I think even if the requests were ambiguous, this practice should still not be condoned by this court because of some of the practical effects that we've raised.

[00:56:47] Speaker 03:
But particularly on this request, where we have used the term records, I think at that point, once the government knows it has to release some of it because it reflects the underlying rationale, it has to release it all.

[00:57:00] Speaker 03:
With that, we'd ask that this court reverse.

[00:57:02] Speaker 03:
Thank you.