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Case number 15-5128, Competitive Enterprise Institute Appellant vs. Office of Science and Technology Policy.

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Mr. Bader for the Appellant, Ms.

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Townsend for Lucas-Caray, and Mr. Tenney for the Appellate.

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May it please the court, I'm Hans Bader, counsel for the appellant.

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The issue in this case is whether agency records maintained by an agency director are beyond the reach of FOIA simply because they're in a non-governmental email account.

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The court below held that they were.

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In so doing, it created a loophole for officials to evade FOIA while conducting agency business.

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It found that refusal to produce such records is not a withholding under FOIA because their storage on a non-governmental server puts them beyond the agency's control.

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That ruling is wrong under any plausible interpretation of the word control.

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One plausible interpretation is that control has the same meaning under both the agency records and withholding prongs of the three-part test for liability announced by the Supreme Court in Kissinger.

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If that's true, then the court below erred by failing to apply the fact-specific four-part test for control announced by this court in Berko.

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Another plausible interpretation is presented by the media coalition Amiki that the standard for possession, custody, or control of Kissinger mirrors the civil discovery standard for determining possession, custody, or control.

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If so, then the district court erred by failing to apply that standard.

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Either way, the district court's ruling that an agency head can place agency records outside the reach of FOIA just by storing them in a non-official email account is contrary to law.

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What would you have the agency do in a situation if, by assumption, the records are outside their physical control, dominion and control, because they're on a separate entity server?

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What does your theory of FOIA require the agency to do in that situation?

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Well, I think the agency should do what it does when employees have emails on their personal work computer, which is ask them to produce them.

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So it's an ask.

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The bottom line of your position is that they have to ask.

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Right.

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And, you know, the fact that they're not in the agency's official record-keeping system doesn't put them beyond the reach of FOIA.

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I mean, J. Edgar Hoover's secret files were not in the agency's official record-keeping system, and they were unknown to... They were in the agency.

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That's true.

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But it illustrates that there's not a distinction based on practical ability in this case.

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And under this court's decision in McGeehy v. CIA, the question is custody or control, not custody.

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And under the Supreme Court's Kissinger decision, it says six times, says possession or control.

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So we don't have to show possession.

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who has the private server has left the government service before the request is made.

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What do they do then?

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Well, that's a very different situation in this case.

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I know it is.

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I know it is.

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But under agency theory, he is the alter ego of the agency.

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He's not just his employee.

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But if he's left, that's like Kissinger.

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He may be gone and you may not be able to show the control, whether or not they were previously agency records, right?

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That might be, but in this case, he's still the director.

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Now, we understand the differences, but my colleague was asking you about a hypothetical.

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So answer the hypothetical.

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If he's gone, then it's a different situation, right?

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Very different.

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But here, he's still the director, and under agency theory, he's the agency's alter ego.

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So if he leaves while the case is pending, does that just adjust the case?

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So if he left tomorrow?

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I mean, things that happen after the FOIA request is received are treated differently.

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For example, under this court's decision in chambers, where the documents were destroyed.

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What, after the FOIA request is received or after the litigation starts?

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After the FOIA request is received.

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In chambers, this court treated it as a violation, even though the records were destroyed after the request, because the

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because the agency had improperly destroyed the records.

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So there was still jurisdiction, even though the agency no longer had possession.

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In Kissinger, when the FOIA request was received, was Kissinger still Secretary of State?

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Yes, he was, but there he had deeded the paper records to a third party which held him under a claim of right.

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The only way to get them back in that case was through a retrieval lawsuit.

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And that time-consuming and speculative prospect did not give the agency control over the records, much less the ability to produce them within FOIA's short deadline.

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Here, by contrast, OSTP's director can instantly access these emails using his office computer, and they can be produced without the need for any retrieval action.

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But what does that have to do with whether the agency has to ask?

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Because I thought your bottom line is what the agency needs to do is to ask, and then if the relevant timeline is the point in time at which the FOIA request is filed.

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And in Kissinger, he was still Secretary of State at the time.

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in which the FOIA request was filed, then wouldn't the Supreme Court have required that the agency ask?

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Well, they did ask in Kissinger.

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It was rebuffed twice.

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Yeah, it was asked.

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Whereas here, the agencies never apparently asked him.

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So it's distinguishable on that basis.

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But again, in Kissinger, they didn't have present control over the records because they'd have to bring a retrieval lawsuit.

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Here, all that has to happen is that the OSDP's director just has to go and instantly access the emails using his office computer.

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So I mean, implicit in your argument is this court's failure was not to consider constructive control.

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That's right.

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I mean, this court's decision in Berka lays down a constructive control test.

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And under the four-part test in Berka, there is control in this case.

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And we know from what's in the joint appendix that he used this email account.

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That would be to be determined.

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Yes, Your Honor.

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That would be determined.

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The trial court didn't even want to decide whether this was an agency record.

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Absolutely, Your Honor.

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So, I mean, if you're right, we couldn't do anything more than send it back and say, you've got the wrong theory here.

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You've got to figure out whether there's an agency record and then whether there's control and possession or control.

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That's what I'm understanding your theory to be.

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Well, absolutely.

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It's a question, we think, for a factual one, for summary judgment, not one to be decided in the pleading stage based on the four factors.

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But you're asking for remand for those determinations.

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That is, the district court was wrong in saying, I'm not going to decide whether it's an agency record and then decide whether or not there's constructive control or possession.

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I think that's right.

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If it's an agency, if we're talking about agency records.

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I think that's right.

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I mean, the amicus does make up a plausible argument that the standard is instead one that mirrors civil discovery, where it might be within his control as a matter of law.

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But either way, the district court needs to be reversed.

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Kissinger referred to the civil discovery, didn't it?

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Yes, it referred to rules 34 and 45, and the court's historic equity power, and it analogized FOIA obligations to discovery obligations.

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And under discovery case law, federal courts have held that documents within the control of an entity's officers are also within the entity's own control on cases like Puerto Rico Telephone versus San Juan Cable.

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But in the discovery context,

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I take it that the company sometimes would have to institute legal proceedings.

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or face the possibility of discovery sanctions, legal proceedings in order to obtain the employee's documents, or face the possibility of discovery sanctions.

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I mean, in the cases that I read, I didn't see that potentiality presented.

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It just seemed like the agencies have that ability to obtain the records of their officers.

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And of course, they have a strong incentive to do so, given things like adverse inferences that can be drawn against them for failing to produce such evidence in their possession.

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And here, the agencies never argued that he get, you know, I don't think

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OSTP has not claimed that its director would refuse to produce these records if a court ordered it to do so, and such a claim would be implausible.

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Moreover, courts have the power to enjoin individual officials like OSTP's director to comply with FOIA.

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Can I just ask one clarification question about Kissinger?

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So if the theory is that there's an agency notion in which the entity controls the individual, or that there's sufficient association between the two,

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In Kissinger, did the agency ask for the documents to be returned, or was it the archivist?

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I just don't remember.

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I thought the agency did twice.

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I've forgotten exactly how many different entities asked him for the records.

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But he was certainly asked and rebuffed the request twice.

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And he was gone from the agency by the time of the second request.

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And he was essentially out the door when the request came in.

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He was an outgoing employee.

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Whereas here, Director Holdren remains the director.

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He is the agency's alter ego under agency theory.

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But you said the relevant – we're getting back on this – you said the relevant time was when the request was made, and with the time the request was made in Kissinger, he was still Secretary of State.

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That is the most relevant time.

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But again, this case is distinguishable because he is still the director now.

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I mean, the practical control – the function is to consider practical ability.

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Rather than just agency theory, the agency has much more leverage here to obtain these documents because he remains the agency's director.

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But in any event, it's the agency, not the plaintiff, that bears the burden on any factual issues about whether the records were covered by FOIA.

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As the Supreme Court emphasized in tax analysts, the burden is on the agency to demonstrate, not the requester to disprove, that the materials sought are not agency records or have not been improperly withheld.

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And here, the court below made no findings on those relevant factors like the BRCA factors, nor is there evidence on them to support its ruling.

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So accordingly, its ruling should be reversed.

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The court below seemed to view our... On the Kissins, you just made sure we read it.

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Part of the ruling was that some of what they were seeking were not agency records.

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That's correct.

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So the court had to make that determination.

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I don't know how we don't do that here.

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And with respect to the others, they were no longer in the possession or control of the government at the time when the court was looking at it.

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No matter who had possession or control when the FOIA request was initially made, the court, as I understand it, was saying,

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the agency does not have possession or control now of the other set of documents.

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That's right.

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I mean, with respect to one of the three sets of records, they said it was not agency records at all, because I believe that was from his time as national security advisor, whereas the others were deemed to be agency records, but for other reasons were beyond the ample FOIA.

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Beyond the control or possession of the agency.

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Right.

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Whereas here, the trial judge specifically declined to find that they were not agency records.

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And I believe the examples in the joint appendix

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are very clearly agency records, like the example at Joint Appendix 153 to 158, where he sends material that is redacted under deliberative process privilege from his Woods Hole Research Center email account.

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I mean, the very fact that they redacted pursuant to privilege shows that it is an intra- or intra-agency memorandum that, under this Court's decision in Bond v. Rosen, directly relates to agency policymaking.

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So I think it's very clear that their agency record is a matter of law, and to the extent that the same factors under BIRCA, the same control...

[00:11:01] Speaker 07:
Well, my guess is if you're right, the most you get is remand for the district court to take this under consideration, because we have no determination on whether or not there are agency records.

[00:11:11] Speaker 07:
We're not going to do a facial review as if it's summary judgment now, right?

[00:11:16] Speaker 05:
I mean, those factual issues are for summary judgment, not the pleading stage.

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In this case, it was dismissed at the pleading stage without evidence on those factors, but frankly, it wasn't even the appropriate time or place to consider the facts underlying those four BRCA factors, because those are for summary judgment.

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You look at the cases that go in favor of the agencies, they're on summary judgment.

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But I thought what the district court's rationale was.

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was that your own allegations say that the documents that you're seeking access to, the virtual documents that you're seeking access to, are beyond the physical custody and control of the agency.

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But is this court, right, is this court explaining in Force 10 versus Califano in footnote 19 the fact that documents are outside the possession of the agency

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doesn't place them beyond the reach of FOIA, because if they did, agencies could just avoid FOIA by avoiding possessing documents.

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So if they're having someone else store them, like an independent contractor, they're still within the scope of FOIA.

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And the difference between the Federal Records Act and FOIA is that FOIA, according to Judge Edwards' opinion in Nagihi... But it has to be right, of course.

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that just because the documents physically aren't located on your premises, that can't be enough.

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Because if you still have the ability to physically go get the documents, as you would with an independent contractor, then you can be required to turn them over.

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That's a different question from a distinction between physical control and legal control.

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The idea that you could exert pressure on somebody to turn them over because they're your employee, you may or may not be right about that.

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But I don't think our prior decisions established

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that the ability to exert pressure necessarily means they're sufficiently within your control that you're obligated to turn them over.

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I mean, I think this is an easier case because, like in Balenciaga Center versus U.S.

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Coast Guard, they had to go 600 miles away to a non-agency storage facility to get them, and that was not deemed an undue burden.

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And in Berkett itself, they had to go to the premises of an independent contractor, and still, those were deemed to be within the agency's control.

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I think this is a much easier case because he can just instantaneously access these emails on his computer.

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It seems rather plain that the storage contractor is holding them as the agent of the

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Agency.

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That may not be quite as plain when we're talking about it being on a private, virtual document on a private server of an agency employee.

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Now, I understand it's the head of a unit, so maybe that might make the tipping difference, but suppose it weren't.

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Suppose it were somebody further down the chain who had it on a private entity.

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But I think that cuts in our favor, because in a paper records case like Kissinger, you really can't have two people to simultaneously control them or readily access them.

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Whereas electronic documents, many people can have control over them simultaneously.

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Would you have a lawsuit, and I don't want to beat the same horse after it died, but would you have a lawsuit if the person in question had already left the agency?

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If he had left the agency before the FOIA request in question, that would be a very different case.

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But he remains the director.

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He was the director at the time of our FOIA request.

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Let's forget about that distinction.

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All right, go back to, he quits the day before the FOIA request.

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Would you have a case?

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That's a very different case.

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It's a hypothetical.

[00:14:20] Speaker 05:
I know that.

[00:14:21] Speaker 06:
You keep telling me my hypothetical.

[00:14:23] Speaker 05:
I know it's a hypothetical.

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I'm not absolutely certain, because there's a footnote nine of the Kissinger decision.

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They suggest that some action is taken deliberately just to avoid a FOIA request, that that could nonetheless be within the reach of FOIA, even if it otherwise wouldn't.

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It's a kind of Delphic footnote.

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And I don't know how it would apply in that situation, where they're deliberately doing that just to frustrate FOIA.

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Unlike Kissinger itself, where the State Department legal advisor had blessed

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Kissinger's transfer of the documents, so it was held under a, you know, apparently a good faith claim of right by the library.

[00:14:53] Speaker 04:
Just to be clear, and this is also a hypothetical, I know it's not this case, but if the person leaves after the FOIA request is filed, but before any court enters any order, does that make a difference?

[00:15:05] Speaker 04:
Because then there's no practical ability to control the person, they just voluntarily left the agency.

[00:15:09] Speaker 05:
I think it should still be decided the same way, but I admit it's distinguishable.

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But I think under cases like this court's decision in chambers versus Department of Interior and the district court's decision in judicial watch versus Department of Commerce, jurisdiction isn't key to its current possession.

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And even if there's destruction or removal of the documents, which may make it hard for the agency to get them, nevertheless, there can be FOIA or Privacy Act violations based on such conduct.

[00:15:33] Speaker 05:
So I think that there would still potentially be a FOIA claim, but it's a very different case than this one.

[00:15:43] Speaker 05:
Thank you.

[00:15:43] Speaker 05:
Thank you.

[00:15:47] Speaker 05:
Yeah.

[00:15:52] Speaker 03:
May it please the court.

[00:15:53] Speaker 03:
My name is Katie Townsend and I'm counsel for the coalition of 27 media organizations led by the Reporters Committee for Freedom of the Press that filed an amicus brief in this matter.

[00:16:03] Speaker 03:
I'd like to emphasize the procedural posture of this case.

[00:16:07] Speaker 03:
The district court dismissed the FOIA claims at issue here at the pleading stage, concluded that records maintained by the head of an agency on a non-governmental email account are as a matter of law outside the reach of FOIA.

[00:16:20] Speaker 03:
That's regardless of whether they meet the definition of agency records under FOIA and regardless of whether they were placed on a non-governmental email account in a deliberate effort to evade FOIA.

[00:16:33] Speaker 03:
Treating as the district court did the mere location of records on a non-governmental email account as dispositive of the three-part jurisdictional test announced by the Supreme Court in Kissinger directly conflicts with Kissinger as well as the decisions of this court.

[00:16:49] Speaker 03:
If countenance by this court, the district court's decision will have a disastrous effect on government transparency.

[00:16:57] Speaker 03:
A bright-line rule that carves out agency records maintained on nongovernmental email accounts from the scope of FOIA will cut off press and public access to scores of important government records.

[00:17:08] Speaker 03:
It will also encourage government officials who seek to shield their conduct from public view to use nongovernmental email accounts to conduct the public's business.

[00:17:17] Speaker 03:
Such a result cannot be reconciled with FOIA's purpose, which is to... Let me make sure I understand you.

[00:17:23] Speaker 07:
Are you suggesting as a premise of your argument that you have to be able to show that was an intention to avoid FOIA?

[00:17:29] Speaker 07:
Does that matter?

[00:17:31] Speaker 03:
No, Your Honor.

[00:17:32] Speaker 07:
Well, you stated that starting out.

[00:17:35] Speaker 07:
Where there's an intention to avoid FOIA, I would have thought your argument was it doesn't matter whether intending to avoid FOIA, the question is whether the agency records properly within the possession or control of the government.

[00:17:49] Speaker 02:
And that's right, Your Honor, and I think that that goes

[00:17:52] Speaker 07:
Well, I'll start by saying that the Kissinger case... In other words, is your nasty motive part of your theory?

[00:17:57] Speaker 07:
Nasty motive just makes it a better-looking case, but is that really part of your theory?

[00:18:03] Speaker 03:
It's not, Your Honor, but this Court has found, and Kissinger left the door open in footnote 9 of that opinion and in the Chamber's decision

[00:18:10] Speaker 03:
referred to by Mr. Bader, this court has indicated that a deliberate intent to evade FOIA, in fact, Judge Edwards, in your opinion, in the McGeehee case, you suggested that if an agency sets up a system that's deliberately designed to evade FOIA, that can constitute a withholding.

[00:18:29] Speaker 03:
I understand.

[00:18:29] Speaker 07:
That's one kind of case.

[00:18:31] Speaker 07:
But are you suggesting that's it?

[00:18:34] Speaker 07:
I thought the start of your argument, I thought your argument was that

[00:18:40] Speaker 07:
That doesn't matter.

[00:18:43] Speaker 07:
It matters in the sense that it's a better looking case if we have a bad motive.

[00:18:47] Speaker 07:
But if we have agency records that meet the test of control, constructive control, that that's enough.

[00:18:56] Speaker 07:
I thought that was your argument.

[00:18:57] Speaker 03:
That's right, Your Honor.

[00:18:58] Speaker 03:
It does not matter.

[00:18:59] Speaker 03:
I think the district courts focus on withholding alone in a way that swallowed the agency records prong.

[00:19:06] Speaker 03:
the agency records analysis was incorrect.

[00:19:09] Speaker 07:
And by carving out that... Well, there was no analysis of whether it was an agency record, which is perplexing, but... I agree completely, Your Honor.

[00:19:17] Speaker 03:
The agency records portion, the agency records prong of the Kissinger analysis is the driver, as it should be.

[00:19:24] Speaker 03:
The question of whether the records being sought are

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agency records, the type of documents the FOIA is supposed to reach, is the most important question.

[00:19:33] Speaker 03:
That's the critical inquiry.

[00:19:35] Speaker 03:
The withholding inquiry really is a practical question.

[00:19:39] Speaker 03:
If they're agency records, can the agency produce them, release them in response to a FOIA request?

[00:19:46] Speaker 04:
And then the Supreme Court said in Kissinger that the practical answer to that apparently was no.

[00:19:52] Speaker 03:
And Kissinger is distinguishable

[00:19:55] Speaker 03:
entirely honest facts.

[00:19:56] Speaker 03:
It's an extremely unique set of facts.

[00:19:58] Speaker 03:
And to respond to some of the questions that you posed to Mr. Bader earlier in Kissinger, Dr. Kissinger, at the time he was at the Secretary of State, when the two requests, so there are three requests, when the two requests, one by the Military Audit Project, one by the Reporters Committee, came in that were decided on the withholding prong, there was a prior request that was not decided on the withholding prong, when those requests came in, those documents,

[00:20:23] Speaker 03:
Dr. Kissinger had already deeded them.

[00:20:26] Speaker 03:
He believed legally to the Library of Congress, based on an opinion by the State Department legal advisor, had already deeded them and transferred not only physical possession, but legal right to those documents to the Library of Congress.

[00:20:40] Speaker 03:
It was at that point that the Supreme Court said,

[00:20:44] Speaker 03:
that because the Library of Congress was, quote, holding those documents under a claim of right, that there was no need to pursue legal action, to pursue litigation in an attempt to clear up that question or to re-obtain legal right over those documents in order to comply with the FOIA request.

[00:21:03] Speaker 03:
The highly unusual set of facts.

[00:21:05] Speaker 03:
And the Kissinger holding itself is quite narrow.

[00:21:09] Speaker 03:
the court holds expressly that withholding does not mean instituting a retrieval action.

[00:21:15] Speaker 04:
So before the documents went over to the Library of Congress, they were held at the New York estate of Nelson Rockefeller.

[00:21:24] Speaker 03:
That's right, a private estate.

[00:21:25] Speaker 04:
So at that point, your theory would be that the case would have turned out completely differently.

[00:21:31] Speaker 03:
That's correct.

[00:21:32] Speaker 03:
So it wasn't until the documents were actually

[00:21:35] Speaker 03:
sort of ostensibly legally deeded or legally provided under a contract to the Library of Congress, that the dynamic really changed.

[00:21:43] Speaker 04:
And in that situation, when the documents are with the estate of Nelson Rockefeller, what is the agency's obligation under FOIA, in your view?

[00:21:52] Speaker 03:
The agency has control, it still has control at that point, over its own records.

[00:21:56] Speaker 03:
And it's not a matter of control over the individual, per se.

[00:22:00] Speaker 03:
It's a matter of control over its own records.

[00:22:03] Speaker 03:
And that's why the agency records analysis is so important.

[00:22:06] Speaker 03:
At that point, they would have the same obligation that they would have in this situation.

[00:22:10] Speaker 04:
Which is practically what do they do?

[00:22:12] Speaker 04:
There's documents that are, by hypothesis, agency documents.

[00:22:17] Speaker 04:
the individual has taken them and put them in the estate of an Elson Rockefeller.

[00:22:20] Speaker 04:
Somebody comes in and says, I'd like to see those documents.

[00:22:22] Speaker 04:
Then what practically what is the agency obligated to do?

[00:22:26] Speaker 03:
The agency tells its employee to bring those documents back or in the case of electronic records to comply with what is now law under the Federal Records Act since 2014, which is to

[00:22:38] Speaker 03:
send copies or make copies of those documents, of those emails, and put them on a governmental account to make them more accessible.

[00:22:46] Speaker 04:
Okay, the employee says no.

[00:22:48] Speaker 04:
The employee says no.

[00:22:48] Speaker 04:
Let's just deal with the physical world just to make it easy.

[00:22:51] Speaker 04:
Yeah.

[00:22:51] Speaker 04:
So we're dealing with physical documents.

[00:22:53] Speaker 04:
I took them, I put them over in the estate of Nelson Rockefeller.

[00:22:55] Speaker 04:
The agency says those are agency documents.

[00:22:58] Speaker 04:
Bring those back.

[00:22:59] Speaker 04:
The employee says no.

[00:23:00] Speaker 04:
Then what?

[00:23:01] Speaker 03:
I think, and I'll say in the ordinary course, I think it's a really unusual or unlikely scenario.

[00:23:06] Speaker 03:
I think it's unlikely that an agency employee is going to say, I'm violating federal law.

[00:23:10] Speaker 03:
I'm violating the policy of this agency.

[00:23:12] Speaker 03:
I'm violating the regulations of this agency.

[00:23:14] Speaker 03:
But I'm still going to do it.

[00:23:15] Speaker 03:
And I refuse to provide these agency records to you.

[00:23:18] Speaker 03:
I think in that situation, the agency is still

[00:23:21] Speaker 03:
At that point, at least obligated to, I mean, at that point, there is a dispute between the employee and the agency over whether or not the documents can be provided.

[00:23:31] Speaker 03:
And maybe that presents a closer question.

[00:23:34] Speaker 03:
But at some point, I'm sorry.

[00:23:37] Speaker 07:
Suppose you can get copies of all of what are reportedly agency records on the private server.

[00:23:45] Speaker 07:
Copies have been made, and the agency has copies of it.

[00:23:48] Speaker 07:
Does that satisfy you?

[00:23:50] Speaker 03:
And I think that that is the idea behind the amendments to the Federal Records Act, which is if employees, I think this only becomes an issue if employees are not complying with that provision in the Federal Records Act.

[00:24:04] Speaker 03:
So if employees are, in fact, complying with that, and if they are copying their, if they're using a nongovernmental email account, they're copying their official government email account, the same substance is there.

[00:24:14] Speaker 07:
Does that satisfy, again, just to answer my question directly, does that satisfy the FOIA request?

[00:24:19] Speaker 07:
If the agency says, and the record's really unclear as to what was being rolled out and what was not being rolled out, and I couldn't get a handle on that, if their rollout includes copies of all the material off of the private server that are agency records, and they say here, that satisfy the FOIA request?

[00:24:39] Speaker 02:
It should satisfy the FOIA request, Your Honor.

[00:24:42] Speaker 06:
So what we would need to do then is remand it for findings on that and the related subjects of it being an agency record?

[00:24:51] Speaker 03:
I think the case needs to be remanded.

[00:24:52] Speaker 07:
I think that... But wait, we need to know what your theories are.

[00:24:55] Speaker 07:
I mean, if we're saying remand and continue the rollout, if what you mean by rollout is you're pulling everything off the private server that is an agency record, you're saying that satisfies us, that's all we need.

[00:25:06] Speaker 03:
It should, and I think on a motion for summary judgment,

[00:25:09] Speaker 03:
if the party wishes to challenge the sufficiency of the search based on

[00:25:14] Speaker 03:
You didn't adequately search a non-governmental email account, which is how district courts have been dealing with these issues on summary judgment when it's raised.

[00:25:22] Speaker 07:
So your answer is yes.

[00:25:23] Speaker 07:
That satisfies your request.

[00:25:25] Speaker 07:
Your answer is yes.

[00:25:26] Speaker 07:
It does, but there can be- I understand all the fights you can have along the way, but assuming there aren't any fights and you got everything that was an agency record by a copy of what was on the server.

[00:25:37] Speaker 07:
In other words, you can't otherwise go in and probe around the private server just because you want it, because it would be fun to do it.

[00:25:43] Speaker 07:
They asserted, and you can't prove otherwise, that we pulled everything off the private server.

[00:25:48] Speaker 07:
That is an agency record.

[00:25:50] Speaker 07:
Here it is.

[00:25:51] Speaker 07:
You're done, right?

[00:25:52] Speaker 07:
That's correct.

[00:25:53] Speaker 03:
And that could be done through an affidavit at the summary judgment stage by the officials.

[00:25:57] Speaker 07:
Is that not what the government was doing?

[00:26:00] Speaker 07:
What was the rollout?

[00:26:01] Speaker 07:
What were they rolling out?

[00:26:02] Speaker 07:
Weren't they rolling that kind of stuff out?

[00:26:04] Speaker 07:
No?

[00:26:04] Speaker 07:
Yes?

[00:26:05] Speaker 07:
I'll ask them.

[00:26:07] Speaker 03:
And I'm not sure I'm in the best position to respond to those factual questions, Your Honor.

[00:26:11] Speaker 04:
No, but I think you can at least respond to this, even though you're an amicus and not the party, which is that I thought the way that this arose is that the government was producing what the government had.

[00:26:21] Speaker 04:
And what the government has on its server is, at least some,

[00:26:26] Speaker 04:
of the stuff that's on the private server because it was copied to the government server.

[00:26:29] Speaker 04:
But the theory behind this shoot is that, well, we don't know that it's everything.

[00:26:34] Speaker 04:
There may be stuff on the private server that's also an agency record, but that was never copied to the government server.

[00:26:40] Speaker 04:
And then that's where the dispute arises, because the government says, well, we can't get that stuff.

[00:26:46] Speaker 04:
We only have the stuff that we were copied on.

[00:26:49] Speaker 04:
And the requester is saying, no, the government has to take steps to make sure that stuff is turned over from the private server.

[00:26:56] Speaker 03:
I think that is the dispute.

[00:26:57] Speaker 03:
The dispute is, is there a gap between what's on the nongovernmental account and what's on the government servers?

[00:27:03] Speaker 03:
And I think, again, that is an issue that is properly addressed on summary judgment under a sufficiency in the search analysis and can be dealt with through affidavits.

[00:27:12] Speaker 03:
If Dr. Holdren submits an affidavit that says, I've copied every document that is, every record that is work-related is on a government server,

[00:27:21] Speaker 03:
Maybe that results.

[00:27:23] Speaker 03:
I would think that that would resolve this.

[00:27:24] Speaker 04:
It would also be resolved on the pleadings if the director had deeded everything on the private server over to the Library of Congress.

[00:27:34] Speaker 03:
And I think that would depend on the timing of those actions.

[00:27:38] Speaker 03:
And I think that does go to Judge Edwards' question earlier about motive.

[00:27:44] Speaker 03:
Again, this court has said in chambers and in

[00:27:52] Speaker 03:
I believe safeguard, another case, Safeguard Services, Inc., the SEC, that if the agency is no longer in the possession of a document for a reason that is not itself suspect, then the agency is not improperly withholding that document, and the court will not order the agency to take further action in order to produce it.

[00:28:11] Speaker 03:
So there can be other factual issues.

[00:28:12] Speaker 03:
The court in Kissinger and this court have not delineated the full, false contours of what a withholding might be.

[00:28:21] Speaker 03:
Thank you, Your Honor.

[00:28:28] Speaker 01:
Thank you.

[00:28:28] Speaker 01:
May it please the Court, I just want to start by clarifying the facts of Kissinger, because there were some questions that arose about that, and I think the answers illustrate how close this case is to Kissinger.

[00:28:39] Speaker 01:
In Kissinger, the FOIA requests came in when Kissinger was still the Secretary of State.

[00:28:45] Speaker 01:
Kissinger had sent the materials in question to the Library of Congress, but

[00:28:51] Speaker 01:
access to those materials was permitted by anybody who had

[00:28:56] Speaker 01:
the written permission from Kissinger himself.

[00:29:00] Speaker 01:
So Kissinger himself was still the Secretary of State and himself had access to all of the materials that were at issue in the case and could provide access to any third party by providing written permission.

[00:29:12] Speaker 01:
How do we know that?

[00:29:14] Speaker 01:
It says so in the Supreme Court's opinion.

[00:29:16] Speaker 01:
If you look at page 141 of the Supreme Court's opinion, it says,

[00:29:22] Speaker 01:
Public access would begin 25 years after the transfer.

[00:29:25] Speaker 01:
Until that time, access is restricted to, one, employees of the Library of Congress, two, persons who have received the written permission of Mr. Kissinger.

[00:29:35] Speaker 07:
Yeah, but they're essentially saying the agency no longer had possession or control.

[00:29:39] Speaker 07:
That's all.

[00:29:40] Speaker 07:
It's not interesting.

[00:29:41] Speaker 07:
They deeded it away.

[00:29:43] Speaker 01:
Well, I mean.

[00:29:44] Speaker 07:
Dr. Holdren hasn't deeded anything away, as far as I know.

[00:29:47] Speaker 01:
Well, I guess what I'm saying is that is a complete answer to their assertion that if the head of an agency has access to the material... That can't be... Yeah, I understand, but that's not what the heart of this case is about.

[00:30:01] Speaker 07:
We're talking about whether they're agency records and whether they're within the possession or control of the agency.

[00:30:07] Speaker 07:
And your view of control is really strange in your brief.

[00:30:11] Speaker 07:
It's a really very narrow, bizarre kind of, in my own view, observation in light of our constructive control theories and how you measure control.

[00:30:23] Speaker 07:
And I don't know how the district court couldn't decide whether this was an agency record.

[00:30:26] Speaker 07:
That's utterly implausible.

[00:30:27] Speaker 07:
Kissinger did that.

[00:30:29] Speaker 01:
Kissinger, for the two sets of documents that had been transferred,

[00:30:33] Speaker 01:
before the FOIA request was sent in, the Supreme Court did not decide whether they were agency records.

[00:30:38] Speaker 01:
It assumed for sake of argument that they were agency records and said that even if they were agency record and even if they were wrongfully removed from the agency in violation of the Federal Records Act, plaintiffs still got no relief under the FOIA.

[00:30:52] Speaker 01:
That's what they said, and that's the same thing that the district court did in this case.

[00:30:55] Speaker 07:
It caused no possession or control.

[00:30:57] Speaker 01:
Right.

[00:30:57] Speaker 07:
Okay, so that's the question here.

[00:31:00] Speaker 07:
That question's not being answered.

[00:31:02] Speaker 07:
Merely because they're on a private server doesn't answer the question as to whether or not there's possession or control of the agency, because you have notions of constructive control that are in play.

[00:31:12] Speaker 07:
This is someone who's working at the agency,

[00:31:16] Speaker 07:
Still there, the director, some stuff, I'm giving, I'm painting a picture that's not necessarily perfectly accurate with the facts here.

[00:31:25] Speaker 07:
Some materials that may be allegedly our agency records go on a private server.

[00:31:31] Speaker 07:
Others are being put on the agency server.

[00:31:33] Speaker 07:
That's not the picture that Kissinger was talking about.

[00:31:36] Speaker 07:
And so they didn't have to address the constructive control.

[00:31:39] Speaker 07:
We're talking about whether the agency in that situation can say, hey, you're here.

[00:31:43] Speaker 07:
You're working here.

[00:31:45] Speaker 07:
Some of those materials on that server are our materials.

[00:31:49] Speaker 07:
Give them to us so that we can respond to the FOIA request.

[00:31:53] Speaker 07:
Well, just to... And as I read Kissinger, the court wouldn't have hesitated one second at saying, absolutely, you have to give it to them.

[00:32:00] Speaker 01:
Well, just to be clear, at the time the FOIA request was submitted in Kissinger, Kissinger was still there, still worked there, was the head of the agency.

[00:32:09] Speaker 07:
I understand, but I'm going to the possession and control part of it.

[00:32:13] Speaker 01:
But the possession of control, I believe the other side agrees, and Kissinger stated, is assessed at the time that the FOIA request is made to the agency.

[00:32:22] Speaker 01:
And that's what the Supreme Court did in Kissinger.

[00:32:24] Speaker 01:
And if the plaintiffs are going to win this case, they need a way to distinguish Kissinger.

[00:32:30] Speaker 01:
And so one thing they've said is, well, Dr. Holdren's still there.

[00:32:33] Speaker 01:
Well, at the time that the FOIA request was

[00:32:36] Speaker 01:
if she was sent to the agency in Kissinger, Kissinger was still there.

[00:32:39] Speaker 06:
Kissinger had sent the documents in question, we're talking about physical documents there, somewhere else.

[00:32:46] Speaker 06:
Right.

[00:32:47] Speaker 06:
To somebody else, and he had

[00:32:49] Speaker 06:
a paper the CDA controller let people come in to see him.

[00:32:53] Speaker 06:
But as far as where the documents were, he didn't have them anymore.

[00:32:56] Speaker 06:
So why haven't they already found a way to distinguish them?

[00:33:00] Speaker 01:
Why don't you move on to something else?

[00:33:03] Speaker 01:
The materials here were never in the agency's files.

[00:33:06] Speaker 01:
There's no allegation that they were ever, they are now or were ever in the agency's file.

[00:33:11] Speaker 04:
Before you move on to something else, just one point of clarification for me.

[00:33:15] Speaker 04:
Do you see a distinction between a situation in which the physical documents are with another entity, physically located with another entity, but the person who put them there, apparently, based on what Kissinger's opinion says, could always go get the documents?

[00:33:31] Speaker 04:
and one in which virtual documents are on a private server, but the person who put them there, i.e.

[00:33:38] Speaker 04:
the progenitor of the email, could always get their own emails and give them back to the agency.

[00:33:44] Speaker 04:
Do you see a distinction between these two?

[00:33:45] Speaker 01:
I mean, I'm not sure what the basis for the distinction would be.

[00:33:51] Speaker 01:
You know, there are some circumstances in which, you know, as was described in terms of sort of a federal record center somewhere where they're not physically at the agency, but that it's still the agency's to do with what they please.

[00:34:01] Speaker 01:
Just another factual clarification from Kissinger.

[00:34:04] Speaker 01:
A question was posed earlier whether the Department of State itself had asked Kissinger to return the documents.

[00:34:11] Speaker 01:
And the answer to that question, as appears from the Supreme Court's opinion, is no.

[00:34:15] Speaker 01:
The archivist had asked.

[00:34:16] Speaker 01:
In Justice Stevens' dissent in footnote 8, he says,

[00:34:19] Speaker 01:
The Secretary of State never asked, and we don't have reason to believe on this record that if the Department of State had never asked, if the Department of State had asked his agenda to return the documents, we don't have reason to believe that the request would have been refused.

[00:34:34] Speaker 01:
Now just to sort of go back to plaintiff's theory here, plaintiff's theory here is that they have to ask for the documents.

[00:34:42] Speaker 01:
And the mere fact that you have to ask is evident that you don't already have control.

[00:34:49] Speaker 01:
You have to make a request.

[00:34:50] Speaker 06:
Just a moment, just a moment.

[00:34:52] Speaker 06:
I suppose it was a real document instead of a virtual one.

[00:34:55] Speaker 06:
And he had it in his house.

[00:34:57] Speaker 06:
The employee does, the judge himself.

[00:34:59] Speaker 06:
And the agency says, hey, bring back that file that you had.

[00:35:02] Speaker 06:
We need to turn it over and for you.

[00:35:05] Speaker 06:
Are you saying that that takes it out of the agency category because you took the document home?

[00:35:10] Speaker 06:
And because they had to ask for it?

[00:35:11] Speaker 06:
Because they had to ask for it, I mean?

[00:35:12] Speaker 06:
That makes no sense.

[00:35:13] Speaker 07:
Of course they have to ask for it.

[00:35:15] Speaker 07:
You say we got a court order.

[00:35:17] Speaker 07:
The court has determined that some of what you have are agency records based on the law.

[00:35:22] Speaker 07:
And we want them back.

[00:35:23] Speaker 07:
And you're saying, well, if they have to ask, that's the whole theory.

[00:35:27] Speaker 07:
That's what the dish is essentially saying, which makes no sense.

[00:35:30] Speaker 07:
Judge Sendt tells the example, it is exactly right.

[00:35:32] Speaker 07:
It's in a box, take it off the file.

[00:35:35] Speaker 07:
And you're saying because the agency has to ask the employee, bring the records back here, that they lose.

[00:35:42] Speaker 07:
That makes much sense.

[00:35:44] Speaker 01:
The case in which there is a document that is in the agency's files is temporarily taken by an employee, but not in a manner that... What does he mean to take it home for good?

[00:35:54] Speaker 06:
He wasn't going to bring it back.

[00:35:56] Speaker 06:
He said, hell, I don't want this hanging around the office.

[00:35:58] Speaker 01:
People might get it under for you.

[00:35:59] Speaker 01:
Well, that gets a lot closer to Kissinger, because if... Kissinger had deeded away the materials.

[00:36:06] Speaker 07:
And apparently, lawfully, at least no one was claiming otherwise,

[00:36:11] Speaker 07:
He apparently was in a position to give away what he gave away.

[00:36:15] Speaker 07:
And so it's not helpful here.

[00:36:19] Speaker 07:
We're talking about a situation where the government is not claiming that Dr. Holdren is in a position or has the authority to give away agency materials.

[00:36:28] Speaker 07:
And I don't think Dr. Holdren would suggest that either.

[00:36:31] Speaker 07:
So what?

[00:36:33] Speaker 07:
The case really is what Judge Santel is saying.

[00:36:35] Speaker 07:
A box is at his home.

[00:36:37] Speaker 07:
And you're arguing, well, if they have to ask him to bring the box back, then... Well, let's just be clear about what they're asking for.

[00:36:44] Speaker 01:
What they're asking for is a search

[00:36:47] Speaker 01:
of his non-governmental email account.

[00:36:50] Speaker 07:
Of his private box at home.

[00:36:52] Speaker 07:
Yes, he bought the box.

[00:36:54] Speaker 07:
Yes, they're asking for someone to get that box and confirm, because there's good reason to believe there's some agency records in there, confirm that they are or not.

[00:37:05] Speaker 07:
And if there are some, then we're now on the floor.

[00:37:08] Speaker 01:
Well, I mean, there are federal... The Supreme Court in Kissinger talked about the fact that there is a federal statute that addresses a circumstance in which

[00:37:17] Speaker 01:
agency records or things that should be agency records have escaped the federal agency either because they were wrongfully taken away in the case of Kissinger and the question was

[00:37:28] Speaker 01:
How and does the federal agency need to go about getting those materials back?

[00:37:33] Speaker 01:
And what the court was very, very clear about in Kissinger was the way to get those materials back is through the Federal Records Act, and that the FOIA does not require the agency to obtain documents that the agency is not already exercising control.

[00:37:46] Speaker 07:
And the word, the statutory... He's not exercising control in FOIA because the Supreme Court accepted the assertion that he acted on a claim of right to give it away.

[00:37:56] Speaker 07:
So they didn't have, they may have been formally agency records, but they gave it away permissibly.

[00:38:02] Speaker 07:
And so the control, they said, was with the library, not with the agency.

[00:38:07] Speaker 01:
Well, in this circumstance, the server is held by, I mean, the allegations of the complaint say, this is paragraph 23 of the complaint, say correctly, this email server is under the control of a private entity.

[00:38:22] Speaker 01:
It is inaccessible by the government.

[00:38:25] Speaker 07:
It's like Judge Sentel's box.

[00:38:27] Speaker 07:
It's in my daughter's house, and I don't have a key.

[00:38:32] Speaker 07:
Is that an answer?

[00:38:34] Speaker 01:
I mean, it really would depend on the factual circumstances.

[00:38:38] Speaker 01:
That's a lot closer if you have materials that were the agency's materials.

[00:38:41] Speaker 01:
If somebody stole a box of agency records... It's not an accusation.

[00:38:48] Speaker 07:
It's in my daughter's house.

[00:38:49] Speaker 07:
And yes, there is a plausible claim there are agency records there.

[00:38:53] Speaker 07:
And your arguments, he keeps coming back to, you can't make the government ask for it.

[00:38:58] Speaker 07:
That's silly.

[00:38:59] Speaker 07:
At least it makes no sense to me.

[00:39:01] Speaker 01:
I don't get that.

[00:39:01] Speaker 01:
Well, there's two more points from Kissinger that might help to clarify our position here.

[00:39:06] Speaker 01:
One is, when you're talking about asking for materials that are not

[00:39:11] Speaker 01:
The agency doesn't have possession.

[00:39:13] Speaker 01:
It has it already exercised control over.

[00:39:15] Speaker 01:
The court was quite clear in Kissinger that they said the FOIA is about the agency disclosing records that it already has.

[00:39:25] Speaker 01:
And it does not require the agency to obtain additional materials.

[00:39:28] Speaker 01:
And then the statutory term that's at issue here is withhold.

[00:39:33] Speaker 01:
And the court said, so withhold, you can't read the word hold out of withhold.

[00:39:38] Speaker 01:
That was almost a quote from Kissinger, and they said, the point is, if the agency holds the document, the agency has it.

[00:39:44] Speaker 06:
Now, if it's escaped the agency's possession... If these were created on premises, on the email device, whichever, whatever computer the person's using,

[00:39:54] Speaker 06:
created on premises while he's on government time doing a government job, why doesn't that fall within the description that you're providing there for what kind of... Well, I guess two inches to that.

[00:40:04] Speaker 01:
Just factually, there's no assertion that that's the case.

[00:40:08] Speaker 01:
Well, we don't have a factual record.

[00:40:10] Speaker 01:
It's on a motion to dismiss.

[00:40:11] Speaker 01:
We don't have a factual record.

[00:40:12] Speaker 06:
We're here on a motion to dismiss.

[00:40:14] Speaker 06:
But they didn't allege in their complaint that before... We need to remand it to develop the facts.

[00:40:18] Speaker 01:
No, but just legally, in answer to your question,

[00:40:21] Speaker 01:
The question isn't was this created on government time.

[00:40:24] Speaker 01:
That was true in Kissinger, too.

[00:40:26] Speaker 01:
The question is whether the materials right now or at the not right now, but at the time of the FOIA request, which is here with allegations that government records are on this private.

[00:40:38] Speaker 06:
Those allegations appear to concern the making of those email transfers by somebody on government time and probably government premises.

[00:40:47] Speaker 07:
And the district court declined to decide whether they're agency records.

[00:40:51] Speaker 07:
And in the context of this case, it makes no sense.

[00:40:54] Speaker 07:
I don't know how we could decide this case without at least knowing that as a starting point.

[00:40:58] Speaker 01:
Well, the question that the district court was trying to answer is the question that the Supreme Court answered in Kissinger, which is, is the agency withholding these materials?

[00:41:07] Speaker 07:
And so the question is not where... And you're saying, and you keep saying, if they have to ask for the materials, then the plaintiff can't win under FOIA.

[00:41:15] Speaker 01:
And what I'm getting at is, the question is whether the agency has them.

[00:41:21] Speaker 01:
It's not whether they were created in the agency.

[00:41:23] Speaker 04:
Can I ask this question about, because it seems to me that at least a fair amount would turn on whether there's a meaningful distinction between the fact that in Kissinger, the physical document was given to the Library of Congress subject to some ability for Kissinger to get the document back.

[00:41:40] Speaker 04:
and a situation in which Kissinger keeps the document at home, which of course he can get back because he hasn't.

[00:41:46] Speaker 04:
So is there a difference between a situation in which Kissinger himself puts the document in his house and keeps it, and a situation in which instead of keeping it in his house, he gives it to the Library of Congress subject to his ability to get it back?

[00:41:58] Speaker 04:
So, and I think your view is that there's no meaningful distinction between those two, but one question that perhaps points that up is, is it the same thing to have the ability to give people access to a document that you've turned over to the Library of Congress, by which I assume it means you can go look at it, as opposed to actually having the ability to go retrieve the document itself?

[00:42:23] Speaker 01:
I guess it seems to me that the thing that makes the question about whether he's taken to his house a harder one relates to whether that constitutes an action that takes it out of the control of the agency.

[00:42:39] Speaker 01:
for example, bring an agency document home overnight and then bring it back the next day, it hasn't sort of eluded the control because the agency has exercised control of it consistently and I haven't done anything inconsistent with the agency still having control of it.

[00:42:53] Speaker 01:
If Kissinger said,

[00:42:55] Speaker 01:
It is a box of documents.

[00:42:56] Speaker 01:
I'm taking it away from the agency.

[00:42:58] Speaker 01:
I'm never giving it back, and I'm locking it up in my house.

[00:43:01] Speaker 01:
You might have a Federal Records Act problem with that, and the agency could maybe address that under the Federal Records Act.

[00:43:06] Speaker 01:
But to say under the FOIA, the federal agency has an obligation to search materials

[00:43:11] Speaker 01:
that it does not have the ability, because it has an exercise, is an exercise in control over them right now.

[00:43:17] Speaker 07:
It does have, you're assuming an answer to the question that's not necessarily correct.

[00:43:22] Speaker 07:
It does have the ability to say, we're the agency, you're not, bring the box back.

[00:43:26] Speaker 07:
But I don't get why you're not getting that.

[00:43:29] Speaker 07:
You're assuming the worst that the employees are going to say go fly a kite.

[00:43:33] Speaker 07:
Most of the rest of us in the room assume that if the agency says to someone working for the agency, those are our records, bring them home, they'll bring them home.

[00:43:41] Speaker 01:
Well, that's why I clarified that in Kissinger itself,

[00:43:44] Speaker 01:
the court did not say you have to ask for the materials.

[00:43:48] Speaker 01:
And in Justice Stevens's dissent, he said the agency never asked for the materials, and the majority apparently didn't consider that relevant.

[00:43:58] Speaker 01:
And I'm also pointing out that there is a difference.

[00:44:01] Speaker 01:
The question is not whether

[00:44:02] Speaker 01:
the agency upon request could obtain documents.

[00:44:06] Speaker 01:
The question is whether the agency is withholding documents.

[00:44:09] Speaker 01:
That's the statutory term.

[00:44:10] Speaker 01:
And withholding doesn't mean that there's something that you could get if you asked for it.

[00:44:15] Speaker 01:
Withholding means that you have it, and you're not giving it up.

[00:44:18] Speaker 06:
That is what the lawsuit's about.

[00:44:20] Speaker 06:
Right.

[00:44:21] Speaker 06:
Yeah.

[00:44:21] Speaker 06:
If we assume that the answer to that question is what you want it to be, then maybe you win.

[00:44:26] Speaker 06:
If we assume it's not what you want it to be, then maybe you don't win.

[00:44:28] Speaker 06:
But you're reasoning in a circle here.

[00:44:30] Speaker 06:
You're starting out with the proposition that the agency can't be made to turn over things it doesn't have in its physical control.

[00:44:38] Speaker 06:
Why?

[00:44:38] Speaker 06:
Because the agency can't be made to turn over things it doesn't have in its physical control.

[00:44:42] Speaker 06:
You're not getting very far though.

[00:44:43] Speaker 06:
That's exactly right.

[00:44:45] Speaker 01:
I mean, I'm not just saying physical control, but... You are, really.

[00:44:48] Speaker 06:
You are.

[00:44:48] Speaker 06:
You are.

[00:44:49] Speaker 06:
You are.

[00:44:49] Speaker 06:
If they can ask for it and get it back, then it's in their control.

[00:44:52] Speaker 07:
It's in their control if they can ask for it and get it back.

[00:44:54] Speaker 07:
It absolutely is.

[00:44:55] Speaker 07:
And you keep assuming, no, that's not plausible.

[00:44:58] Speaker 07:
It is plausible.

[00:44:59] Speaker 07:
Well, but if... It would be... To write an opinion the way you're describing it would really be an embarrassment.

[00:45:06] Speaker 07:
Given the world in which we live, to say that with the hypotheticals that you're running through and essentially saying, no, you can't get access to it, that would be... I want no part of that.

[00:45:18] Speaker 07:
I don't know how it comes out in the end, but I can't imagine writing an opinion on a motion to dismiss no finding on the agent, whether it's an agency, a record or not, and write an opinion that's what you're talking about.

[00:45:30] Speaker 07:
A lot of people would be laughing at us.

[00:45:31] Speaker 01:
Well, let me just be, because the key part of Kissinger is not, we're not asking this court to hold that if an employee has documents that should be in the agency's files and aren't, then there's nothing to be done about it.

[00:45:44] Speaker 01:
What Kissinger was about was whether the way to do that was through the FOIA

[00:45:49] Speaker 01:
or whether the agency has to take action under the Federal Records Act.

[00:45:53] Speaker 06:
Well, the agency has to take action.

[00:45:56] Speaker 07:
These are people who want and have the right to certain kinds of information in the possession or control of the agency.

[00:46:05] Speaker 07:
The Records Act is a different question.

[00:46:07] Speaker 01:
But the point is, if the reason that an employee would give the materials back that the employee has taken away is that the employee has an obligation under the Federal Records Act,

[00:46:16] Speaker 01:
then that is what was going on in Kissinger.

[00:46:18] Speaker 06:
They said... Is there a private right of action under the Records Act?

[00:46:22] Speaker 01:
There's not.

[00:46:23] Speaker 06:
There is not, right.

[00:46:24] Speaker 06:
And the Supreme Court... And FOIA has given the greatest, broadest statutory spending of any statute I know of, that any citizen, any Reporters Committee that wants documents that are government records that come within the Act... Can you come and give them?

[00:46:40] Speaker 06:
So I don't see why the fact that the agency would have a...

[00:46:44] Speaker 06:
relief under the records act has anything to do with what we're doing today?

[00:46:48] Speaker 01:
Well, in Kissinger, the reason we know there's no private right of action under the Federal Records Act is that the Supreme Court held that in Kissinger.

[00:46:54] Speaker 01:
Yeah.

[00:46:55] Speaker 06:
And then they said... They having held that, what does it have to do then with what there's a for you?

[00:46:59] Speaker 01:
Well, then they said in Kissinger, well, can entities who believe

[00:47:03] Speaker 01:
that there have been materials that have been removed from the agency in violation of the Federal Records Act.

[00:47:11] Speaker 01:
Can they get the agency to try to get those documents back under the FOIA?

[00:47:14] Speaker 01:
And the answer the court gave in Kissinger was no.

[00:47:17] Speaker 07:
On the facts of that case, they also talked about civil discovery rules, too.

[00:47:21] Speaker 01:
Yeah.

[00:47:22] Speaker 07:
Well, what the court... I mean, it's not making sense what you're saying.

[00:47:26] Speaker 07:
Well, what the majority... I mean, Kissinger just doesn't get you where you're trying to go.

[00:47:30] Speaker 01:
Well, just to be clear about what the majority's opinion said about discovery rules, they said if you issue a subpoena to somebody and that person doesn't have the materials, then that person does not have an obligation to go out and get the materials.

[00:47:46] Speaker 04:
What does happen in the case in which we know

[00:47:49] Speaker 04:
We're talking about a physical document and we know that the physical document is located at the residence of an agency employee and a FOIA request is lodged and then the agency responds by saying, we don't have the document.

[00:48:04] Speaker 04:
What's the government's view on whether the agency wins in that situation?

[00:48:11] Speaker 01:
You'd have to add a few facts to the hypothetical about the circumstances in which it's at a private residence.

[00:48:17] Speaker 04:
We don't know, because it's an emotion that it's misstaged.

[00:48:19] Speaker 04:
So all we know is that the allegations made in the complaint that the individual employee has the document in their residence.

[00:48:28] Speaker 04:
And it's a plausible allegation.

[00:48:29] Speaker 04:
Suppose there's a newspaper article

[00:48:31] Speaker 04:
reports that.

[00:48:33] Speaker 04:
So it's a plausible allegation.

[00:48:35] Speaker 04:
So we know that.

[00:48:36] Speaker 04:
We take that to be true for purposes of the motion to dismiss stage.

[00:48:39] Speaker 04:
And the government responds by saying, look at the allegations and complaint.

[00:48:43] Speaker 04:
The allegations and complaint themselves tells us that the document's not within our physical agency confines.

[00:48:48] Speaker 04:
It's located at our employees' residence.

[00:48:51] Speaker 04:
Therefore, we reject the FOIA request because we're not withholding it.

[00:48:56] Speaker 01:
I mean, I think that that would be a closer case to the, I mean, because the question there is whether something has been done to take it out of the, you know, somebody, the employee has done something, I'm assuming you're talking about a record sort of removed from the agency, that it's sort of, it's just a piece of paper.

[00:49:15] Speaker 04:
It's just a piece of paper and what all we know is that it's at the employee's house because the complaint alleges that.

[00:49:23] Speaker 04:
And the other thing we know is that the agency says,

[00:49:26] Speaker 04:
We're not withholding it because we don't have the document.

[00:49:30] Speaker 01:
I guess the factual question that comes up there is, has the employee taken it home and said, you know, I'm taking this out of the agency control, this is mine now, in which case it's more like the Kissinger case.

[00:49:40] Speaker 07:
No, no, no motive.

[00:49:41] Speaker 07:
No motive.

[00:49:42] Speaker 07:
I'm curious to hear your answer, too.

[00:49:43] Speaker 07:
No motive.

[00:49:44] Speaker 07:
It's a piece of paper that no one in the world would doubt as an agency record.

[00:49:47] Speaker 07:
It's at the employee's home.

[00:49:49] Speaker 07:
There's a plausible allegation that that's where it is.

[00:49:51] Speaker 07:
There's no claim that the employee is doing anything devious.

[00:49:55] Speaker 07:
And the agency comes back with the answer you all gave is, well, we can't possibly be seen to be withholding anything because we don't have it.

[00:50:02] Speaker 07:
It's at the guy's house.

[00:50:04] Speaker 01:
I mean, again, we would need to know why it's at his house and why he hasn't brought it back to the agency.

[00:50:09] Speaker 01:
Do we know that it's a pleading state or not?

[00:50:11] Speaker 01:
We don't know that it's at the same stage as this case.

[00:50:13] Speaker 06:
So then it might be.

[00:50:14] Speaker 06:
Even if we did need to know that, which is rather questionable, does it matter at the pleading state?

[00:50:21] Speaker 01:
Again, I'm saying this is a closer case.

[00:50:23] Speaker 01:
I'm not sure exactly what the plaintiff would have alleged.

[00:50:24] Speaker 04:
Well, I guess the one way to ask the question is, which way does it cut that we don't know?

[00:50:28] Speaker 04:
In other words, if we don't know, if literally that's the only allegation of the complaint, and then the government, the other fact we know is that the government responds by saying, we're not withholding it, then, I mean, you may be right, or I'm willing to assume that there's some fertile ground to be mined by looking to see what the motivation is.

[00:50:46] Speaker 04:
But literally, we just don't know.

[00:50:48] Speaker 04:
So who wins?

[00:50:50] Speaker 04:
Do you think in that situation the government wins because it just says your own allegation of the complaint says it's at somebody's residence, not in my physical confines?

[00:51:01] Speaker 04:
We're not withholding it.

[00:51:02] Speaker 04:
We win?

[00:51:04] Speaker 01:
Again, I think that's harder.

[00:51:05] Speaker 01:
And I guess just to go to the distinction here to just clarify what I think matters about this.

[00:51:09] Speaker 01:
What we're talking about here is an email account housed on a nongovernmental server.

[00:51:15] Speaker 01:
And what they're asking to do is search the email account.

[00:51:18] Speaker 01:
And the notion, in the case of a single document that an employee takes home, the notion that the employee

[00:51:27] Speaker 01:
The notion that that represents an act of taking that document out of the control of the agency, as opposed to everybody understanding that even though it is physically in my house, it's still in the agency's document.

[00:51:39] Speaker 01:
The employee gets that.

[00:51:40] Speaker 01:
The agency gets that.

[00:51:41] Speaker 01:
It's going to come back.

[00:51:42] Speaker 01:
That would be sort of one scenario.

[00:51:43] Speaker 01:
What we're talking about here, this is a nongovernmental email server.

[00:51:47] Speaker 07:
The position of the plaintiffs... Well, the man's house is nongovernmental, incidentally, in the hypothetical.

[00:51:53] Speaker 07:
Well, but I mean, it's a non-governmental house, and that's where the material is.

[00:51:57] Speaker 01:
Well, just to take their hypothetical and analogize it perfectly to this case then, then their allegation is not, there's a document and we want the agency to turn over the document, it's, we know that at some point this person took agency records home, so we want the agency to search this man's house for

[00:52:14] Speaker 01:
just in case there are other agency records there, because we think that it's under the control of the agency.

[00:52:19] Speaker 01:
That's the analogy, because here what they're saying is the agency should search the nongovernmental email account of a federal employee.

[00:52:28] Speaker 07:
It is extraordinary for plaintiffs to be... No, no, no, no, the claim would be, we know there's this document, we're alleging there is this document, we're alleging that it's an agency record, seems to be undisputed, and our best information is that it's at this person's home.

[00:52:44] Speaker 07:
Well, to equate... It doesn't matter.

[00:52:46] Speaker 07:
What they're essentially saying is we don't care whether it's at his home or anywhere else.

[00:52:50] Speaker 06:
We're not at the adequacy of search stage yet.

[00:52:53] Speaker 06:
That may come along, but we're not there yet.

[00:52:55] Speaker 07:
But that is... Yeah, it is a perfect example, and it's one that's not helpful to you.

[00:52:59] Speaker 01:
No, no, but if you look at the complaint here, the complaint here is the exact opposite of that.

[00:53:04] Speaker 01:
The complaint here doesn't say there is a document.

[00:53:06] Speaker 01:
It doesn't say we're looking for this document and we don't care where it is.

[00:53:09] Speaker 07:
It says the only thing we care... The four claims don't have to know all of what's there?

[00:53:14] Speaker 07:
You've changed FOIA.

[00:53:16] Speaker 07:
You don't have to say, I know there are these specific documents there and I want them.

[00:53:20] Speaker 07:
You say, I want the agency records relating to it, whatever.

[00:53:23] Speaker 01:
Right, but that's not what this FOIA request says.

[00:53:27] Speaker 01:
It's not asking for materials on a particular topic.

[00:53:29] Speaker 01:
It's not asking for particular documents.

[00:53:31] Speaker 01:
It's saying, all we want to do, anything that the government already has on its email servers, that's not what we're interested in.

[00:53:38] Speaker 04:
But I think what's germane is that your response to the FOIA request is that

[00:53:44] Speaker 04:
We're not withholding because the complaint alleges that the stuff is located on a private server, that we can't just go into the private server because it's not our server, which just seems to be the same response as saying we can't go into a private home, that's not our home.

[00:54:04] Speaker 01:
And at that level of generality, if somebody's, I mean, again, then it is a good analogy to say, okay, we have evidence that an employee brought records home sometimes.

[00:54:19] Speaker 01:
He always brought them back because the allegations of this complaint don't suggest that there were any, don't allege that there are any materials that were on the private server that weren't properly recorded in the government files, which the district court noted.

[00:54:31] Speaker 01:
So the allegation of the complaint is this employee brought materials home at some point and therefore under the FOIA the agency has to search his house.

[00:54:41] Speaker 01:
And you could say whether that's a reasonable search and offer.

[00:54:44] Speaker 07:
Before you even get to that, the question is just- No, the agency just has to produce the document.

[00:54:48] Speaker 07:
That's all.

[00:54:49] Speaker 07:
They can ask him for it and get it that way.

[00:54:50] Speaker 07:
You're assuming all these horrible scenarios.

[00:54:52] Speaker 07:
He wants the document.

[00:54:54] Speaker 07:
And it's no answer for the agency to say, but it's at somebody's home.

[00:54:58] Speaker 07:
You flipped it.

[00:54:59] Speaker 07:
I mean, you're not, well, we're not getting- I thought it was supposed to be interpreted.

[00:55:05] Speaker 06:
with a view to disclosure, not concealment.

[00:55:08] Speaker 06:
There's plenty of authority on that, and you seem to be interpreting it toward the concealment side, the way you are asking us to so interpret.

[00:55:15] Speaker 01:
No, because it's not a question of concealment.

[00:55:18] Speaker 01:
This is a question of the... Non-disclosure.

[00:55:21] Speaker 07:
You are adding a meaning to withhold that is beyond anything that I could ever imagine a court might say.

[00:55:27] Speaker 04:
I mean, there's one way to look at the statute, which is that the way that the Supreme Court laid it out in Kissinger was that there's three aspects to it.

[00:55:35] Speaker 04:
There's withholding, and then one other aspect is improper.

[00:55:39] Speaker 04:
It has to be improper.

[00:55:40] Speaker 04:
So one way to view it is to say that if the government can't get home under withholding,

[00:55:47] Speaker 04:
Maybe you can bake in some of the factual considerations that you're asking about into improper and say in a situation in which the employee just steadfastly refused to turn it over.

[00:55:59] Speaker 04:
if it's a physical document.

[00:56:01] Speaker 04:
The government doesn't have a means of going into the house and getting it, but it's not improper.

[00:56:05] Speaker 04:
They have to do some other stuff.

[00:56:06] Speaker 04:
They have to ask.

[00:56:08] Speaker 04:
They have to do some things to render it a withholding that's not improper.

[00:56:12] Speaker 04:
But you're wanting to win at the threshold stage of whether it's a withholding at all.

[00:56:18] Speaker 04:
And on whether it's a withholding at all,

[00:56:20] Speaker 04:
If there's no meaningful distinction between a situation in which all you know is that, or all that's plausibly alleged, is that the physical document is located at somebody's house and that the virtual document is located on a private server, then it seems a tougher solution.

[00:56:37] Speaker 01:
I mean, the problem with if all you know is that it's at somebody's house is that in that scenario, it's quite plausible, indeed likely, that it's temporarily at the person's house that the agent.

[00:56:47] Speaker 06:
That may be plausible or likely.

[00:56:49] Speaker 06:
We don't know that.

[00:56:51] Speaker 01:
But I mean, I guess the reason I keep having difficulty with this hypothetical is that it is a much more difficult case.

[00:56:58] Speaker 06:
You want to fight the hypothetical.

[00:56:59] Speaker 06:
You don't like the results you get with the hypothetical.

[00:57:01] Speaker 01:
No, I just want to clarify the hypothetical.

[00:57:03] Speaker 01:
But my point is,

[00:57:04] Speaker 01:
You don't get to do that.

[00:57:06] Speaker 01:
You have to think you're out of purpose.

[00:57:08] Speaker 01:
Well, I mean, the question was, in this scenario, does FOIA cover it or not?

[00:57:12] Speaker 01:
And you could talk about what the pleading standards would be.

[00:57:14] Speaker 01:
But just in terms of if there is a document at somebody's home, if the question is, does the agency have control of that for purposes of FOIA, I don't know that I can give you a categorical answer to that.

[00:57:25] Speaker 01:
I do think that if you had evidence that there were materials that were at somebody's home and we knew that that person was never going to give them back to the agency,

[00:57:33] Speaker 01:
or at least, and that the agency hadn't said, or you could take this home, but everybody understands this is coming back to us, then that's sort of one scenario.

[00:57:42] Speaker 01:
But a private email server, just the fact of it, there is no allegation here, there could be no plausible allegation,

[00:57:50] Speaker 01:
And it's just not true, as a matter of fact, that there's any expectation that any materials, either related to OSTP or otherwise, that are on the email server are sort of the agency's materials, that they're all going to come back.

[00:58:04] Speaker 01:
If he resigned tomorrow, nobody assumes that these materials are going to all go, if there are any, which we don't know, are all going to go back to the agency.

[00:58:11] Speaker 01:
And that just makes it very different.

[00:58:13] Speaker 06:
Be nice if we knew some of those things, wouldn't you?

[00:58:16] Speaker 06:
Well, I mean... Therefore, shouldn't we remand and find out some of those things?

[00:58:20] Speaker 01:
Well, the only thing that's in the... in the complaint... I mean, the complete...

[00:58:23] Speaker 01:
It strikes me as quite implausible that you would presume that somebody after leaving government service.

[00:58:29] Speaker 06:
Well, I'm sure that strikes you as unbelievable.

[00:58:31] Speaker 01:
Well, but the only allegations we have in the complaint on the subject, because we are on a motion to dismiss, the allegation we have in the complaint is that the materials have been placed outside the control of the federal agency and are inaccessible to the federal government.

[00:58:44] Speaker 01:
And so that's what we've got on the complaint.

[00:58:45] Speaker 01:
So that is the opposite of what they would need to show.

[00:58:48] Speaker 06:
Is that the words of the complaint?

[00:58:49] Speaker 06:
What?

[00:58:49] Speaker 06:
Is that the words of the complaint?

[00:58:51] Speaker 01:
Yeah, almost exactly.

[00:58:54] Speaker 01:
I'll read the words of the complaint exactly so that there can be no confusion.

[00:58:58] Speaker 01:
This practice of creating work-related, I'm on J9, paragraph 23.

[00:59:06] Speaker 01:
This practice of creating work-related correspondence, which absent the required copying of an employee's office, is solely under the control of private parties and generally unknown to and inaccessible by the federal government.

[00:59:20] Speaker 07:
Yeah, so?

[00:59:21] Speaker 07:
That doesn't mean it's not under government control if it's an agency record.

[00:59:25] Speaker 01:
I mean, it's only under the control of private parties.

[00:59:28] Speaker 01:
I would submit it does mean it's not under government control.

[00:59:30] Speaker 06:
You referred to the Kissinger opinions, references to civil procedure.

[00:59:37] Speaker 06:
Didn't that explicitly leave open the question of how the subpoena would operate if there had been a removal of something from the controls?

[00:59:46] Speaker 01:
Yeah.

[00:59:47] Speaker 01:
I'm sorry.

[00:59:48] Speaker 01:
I didn't catch the question.

[00:59:50] Speaker 06:
You used the example a while ago of the Kissinger opinion's references to the subpoena power.

[00:59:58] Speaker 06:
Didn't the Kissinger Supreme Court expressly leave open the question of how the subpoena power would operate if something had been taken away for the purpose of taking it away outside the subpoena power?

[01:00:12] Speaker 01:
The court left open the question, specifically with respect to the FOIA, of whether if a record was removed in response to a FOIA request, there's no allegation of that kind here.

[01:00:26] Speaker 06:
There has to be an allegation of that particular kind to raise the question of what happens if it's taken away.

[01:00:34] Speaker 06:
the question being left open, but the majority didn't come back at him on that.

[01:00:43] Speaker 01:
Well, what Justice Stevens said was the majority seems to acknowledge that if there were a pending FOIA request and the materials were taken away in an effort to evade that.

[01:00:54] Speaker 01:
then the answer might be different.

[01:00:58] Speaker 06:
But you want us to make the assumption that there isn't something taken away in evasion of the FOIA request?

[01:01:05] Speaker 01:
Well, the FOIA request here was made a long time after the materials that are actually were created.

[01:01:12] Speaker 01:
And if they alleged in the complaint, you know,

[01:01:14] Speaker 01:
he knew we were about to file a FOIA request on this, and then he took away the documents, then that would tee up this issue.

[01:01:20] Speaker 01:
But they haven't teed up that issue at all.

[01:01:23] Speaker 01:
And the other thing Justice Stevens said in dissent was that he thought that doing this sort of

[01:01:31] Speaker 01:
taking away all of these records could plausibly be understood to be evading the FOIA.

[01:01:37] Speaker 01:
Not a particular FOIA request, but just the FOIA generally.

[01:01:40] Speaker 01:
And that apparently didn't trouble the majority.

[01:01:42] Speaker 01:
And the majority didn't say, no, that's not true.

[01:01:44] Speaker 01:
They just apparently thought that that didn't matter.

[01:01:46] Speaker 01:
And so we would understand that footnote to allude to a circumstance where it was a specific request.

[01:01:53] Speaker 04:
Thank you.

[01:01:53] Speaker 01:
Thank you.

[01:01:57] Speaker 04:
Does Mr. Bader have time left?

[01:02:01] Speaker 04:
We'll ramp it up to a robust two minutes.

[01:02:04] Speaker 04:
OK.

[01:02:05] Speaker 05:
Your honors, in paragraph 47 of the complaint, we specifically allege uncopy of OSTP records and private accounts.

[01:02:12] Speaker 05:
So that distinguishes this case from the Kissinger case, where the Department of State's legal advisor stated in response to the archivist's request that Kissinger had complied with agency retention obligations.

[01:02:23] Speaker 05:
By contrast, in this case, in a 2010 memo, OSTP's director warned agency staff not to use

[01:02:30] Speaker 05:
personal email accounts to conduct agency business, and if they did, to forward them to their official accounts, suggest indicating that those non-governmental accounts were subject to federal record-keeping rules and control.

[01:02:43] Speaker 05:
And in addition,

[01:02:46] Speaker 05:
The agency's claim that it lacks control over these emails is implausible because agencies have repeatedly produced emails from employees' private accounts in the past, and that's relevant because the government conceded on page 29 of its brief that the withholding analysis focuses on the agency's practical ability.

[01:03:01] Speaker 05:
or legal authority to disclose the requested record.

[01:03:04] Speaker 05:
And so we think that practice of agencies of producing emails from employees' non-governmental accounts is relevant as well.

[01:03:11] Speaker 04:
But just to be clear, of course an agency has to turn over materials from a private email account if the agency already has those private emails.

[01:03:19] Speaker 04:
In this case, we allege that there are uncopied emails in existence in paragraph 47.

[01:03:24] Speaker 04:
Which means that those emails the agency doesn't have.

[01:03:27] Speaker 04:
It would have to do something to get them.

[01:03:29] Speaker 05:
But they're within his control under agency theory and under the discovery analogy in Kissinger.

[01:03:35] Speaker 05:
I mean, he's the alter ego of the agency.

[01:03:37] Speaker 05:
He is the agency and his control over those work-related records in his personal email account

[01:03:42] Speaker 05:
constitutes the agency's control under traditional principles of agency law.

[01:03:46] Speaker 04:
So then if that's true, then in your view, if the agency does ask, we started out by asking you what does the agency have to do.

[01:03:54] Speaker 04:
If the agency does ask, let's say the agency does ask, and then the person says no.

[01:04:00] Speaker 04:
In your view, has the agency satisfied for you, or are they violating for you?

[01:04:05] Speaker 05:
I mean, I can't imagine that that would happen, and they haven't asserted that it was.

[01:04:07] Speaker 04:
Yeah, well, just imagine it for humor me, and I don't think the situation in which that happens.

[01:04:13] Speaker 05:
I don't think so, because the agency has leverage, and, you know, the special counsel can bring disciplinary action.

[01:04:20] Speaker 05:
It's within the ambit of, you know, the record.

[01:04:22] Speaker 04:
Well, he's willing to be fired.

[01:04:24] Speaker 04:
He's worried.

[01:04:25] Speaker 04:
There's something embarrassing on the personal.

[01:04:27] Speaker 04:
He doesn't even want to go down this road.

[01:04:29] Speaker 04:
In fact, he's going to quit tomorrow anyway.

[01:04:30] Speaker 04:
Why does he care?

[01:04:32] Speaker 04:
So he says no.

[01:04:33] Speaker 04:
Is the agency violating FOIA or is it complying with FOIA because it asked?

[01:04:38] Speaker 05:
I think that this court's precedents in cases like Chambers versus Department of the Interior show that the fact that there may be practical difficulties in complying with the agency doesn't preclude a FOIA violation.

[01:04:48] Speaker 04:
So asking is not enough.

[01:04:50] Speaker 04:
It's not this, you have to ask, but that's necessary but not sufficient.

[01:04:55] Speaker 04:
You actually have to produce in this context.

[01:04:57] Speaker 04:
That's your view.

[01:04:58] Speaker 04:
Or else the agency is violating for it.

[01:05:00] Speaker 05:
But I think that's a very different case in this one, because I can't imagine that he would refuse to answer and refuse to provide them upon request, and the agency hasn't argued to do that.

[01:05:07] Speaker 06:
What would the imagination do?

[01:05:09] Speaker 04:
You can't.

[01:05:09] Speaker 04:
Would the agency in that situation just carry out the imagination a little further?

[01:05:13] Speaker 04:
Would the agency have to institute some sort of legal action to get the documents?

[01:05:17] Speaker 04:
To comply with FOIA, I believe that it would.

[01:05:19] Speaker 04:
No, but that can't be right, because Kissinger tells us that the agency doesn't have to do that.

[01:05:22] Speaker 05:
Well, it depends on when the request is received.

[01:05:24] Speaker 05:
You know, if they destroy the documents after the request is received, and under cases like Chambers v. Department of the Interior, and also under the District Court's 1998 decision in Judicial Watch v. Department of Commerce, then there is a FOIA violation.

[01:05:36] Speaker 04:
And there's also the issue of... What do you mean?

[01:05:40] Speaker 04:
The request in Kissinger was received at the time that I think you think is relevant, and yet the one thing we know from Kissinger is that the agency didn't have to institute legal proceedings to try to get the documents.

[01:05:50] Speaker 05:
Well, the case was decided on the premise, which I don't think we can have the liberty to question, that the only way you could obtain these records was through a retrieval lawsuit, which is a time-consuming and speculative prospect.

[01:06:00] Speaker 05:
It didn't give the agency any present control over the documents, much less the ability to do so within four years' short deadline.

[01:06:05] Speaker 07:
But, I mean, isn't your answer to Judge Winnivasan that this record judges handle messes like this all the time, and you may indeed be in a situation where the agency comes in and says, first they said, this guy said no, he's just that kind of a person, and then he burned up everything.

[01:06:21] Speaker 07:
Well, this record would rule in those circumstances as no improper withholding.

[01:06:27] Speaker 07:
And you gotta have both.

[01:06:28] Speaker 07:
There can't be an improper withholding if you got that kind of a person, they burned everything and there's nothing else to be found.

[01:06:34] Speaker 07:
So, you could be in a situation where the agency ends up giving nothing.

[01:06:39] Speaker 07:
It's possible, and again... But my point is, I think your answer to Judge Schwinn-O'Boss, and who knows, a district court will have to take on each case as it comes and see what the parties are saying.

[01:06:48] Speaker 04:
Yes, it's true, Your Honor.

[01:06:49] Speaker 04:
Also, the court... But you put it under improper in that situation, not under whether there's a withholding in the first place.

[01:06:54] Speaker 05:
And the courts do have the power to enjoin agency officials to stop violating FOIAs, like in Union Pacific versus EPA, where the court issued injunction covering individual EPA employees when they violated FOIA.

[01:07:03] Speaker 05:
So the court is not without leverage of its own to deal with this.

[01:07:06] Speaker 05:
But I guess I have nothing further.

[01:07:08] Speaker 05:
Thank you, Your Honors.

[01:07:09] Speaker 05:
Thank you.

[01:07:10] Speaker 05:
The case is submitted.