[00:00:06] Speaker ?: Stand please. [00:00:41] Speaker 00: Case number 14-5220. [00:01:02] Speaker 00: Jeffrey LeBeau, Appellate versus United States Department of Justice. [00:01:08] Speaker 00: Mr. Light for the Appellate, Mr. Interonte for the Appellate. [00:01:12] Speaker 00: Good morning. [00:01:13] Speaker 03: Good morning. [00:01:13] Speaker 03: Jeffrey Light on behalf of Appellate Jeffrey LeBeau. [00:01:17] Speaker 03: May it please the court. [00:01:19] Speaker 03: In this FOIA case, there are several exemptions at issue, as well as the procedure for adjudicating FOIA's exclusion provision. [00:01:27] Speaker 03: I'd like to start by addressing Exemption 3 as it applies to the pen register statute. [00:01:33] Speaker 03: The court's first task in assessing whether an asserted statute is an Exemption 3 statute is to look at the threshold question of whether that statute is a non-disclosure statute at all. [00:01:48] Speaker 03: In this respect, the pen register statute has two provisions that may be relevant. [00:01:55] Speaker 03: One requires a court or directs the court entering the pen register order to place that order under seal. [00:02:03] Speaker 03: The second is a non-disclosure provision, which only applies to the recipient of the order that is the telephone company, essentially, that they not disclose the existence of the order. [00:02:16] Speaker 03: Neither of these provisions, however, direct the government not to disclose the information. [00:02:24] Speaker 03: There hasn't been a single case from this Court in which the Court has found a statute to qualify under Exemption 3, where the alleged non-disclosure portion didn't say anything about the government. [00:02:39] Speaker 02: And the... So the government could release a document that the District Court has placed under seal? [00:02:45] Speaker 03: That's correct. [00:02:46] Speaker 03: And that depends on what the terms of the sealing order are. [00:02:50] Speaker 02: So as this case... This order shall not be released, period. [00:02:57] Speaker 03: Well, it looks... This court has explained that seals operate differently and that the mere existence of a seal is not enough. [00:03:07] Speaker 02: How about this case? [00:03:10] Speaker 03: In this case, there's no evidence at all about what the seal says. [00:03:13] Speaker 03: The only thing that we know is that the seal was issued pursuant to the statute. [00:03:18] Speaker 03: And so we can make certain guesses about what it says based on that. [00:03:23] Speaker 03: That is, it probably has all the information that the statute requires it to have. [00:03:28] Speaker 03: But there's no information that there's anything beyond that. [00:03:31] Speaker 03: And the information that the statute requires it to have is fairly minimal. [00:03:36] Speaker 03: The name of the person who's [00:03:40] Speaker 03: on whose line the pen register is being placed, their phone number, and even those things only if they're known. [00:03:47] Speaker 03: So we have almost no information to go off of here. [00:03:51] Speaker 05: But I'm not following, if under D1 it says the order be sealed unless otherwise ordered by the court? [00:03:57] Speaker 05: Correct. [00:03:58] Speaker 05: And so if there has been no otherwise order by the court, and so the pen register order itself is sealed, [00:04:07] Speaker 05: then your view is that the government can nonetheless release it publicly? [00:04:13] Speaker 03: So the question, yes, that would be our position. [00:04:17] Speaker 03: But at any rate, there is not in this case a pen register order at issue. [00:04:23] Speaker 03: That's not the document that we're talking about here. [00:04:26] Speaker 03: The document at issue here is an FBI document that describes how a pen register was placed onto a phone. [00:04:35] Speaker 05: Right, but in addressing the threshold question of whether this is a statute that even comes within the fold of [00:04:40] Speaker 05: Well, that's correct. [00:04:42] Speaker 05: Then you'd have to say that at least with respect to the order itself. [00:04:46] Speaker 05: So I take your point. [00:04:47] Speaker 05: I get your point that we're not talking about the order itself. [00:04:49] Speaker 05: We're talking about documents that are surrounding the order. [00:04:52] Speaker 05: But with respect to the order itself, you're suggesting that we read the statute that says that the order be sealed to mean that the order be sealed, but that the government can still disclose the order. [00:05:02] Speaker 03: There could be some cases in which the terms of the seal or the context in which it was issued might suggest that the government cannot disclose it. [00:05:13] Speaker 03: But in the absence of any information at all in the record about what's in the seal, there's just not a sufficient record to have granted summary judgment to the government in this case. [00:05:28] Speaker 03: If the seal simply says, [00:05:31] Speaker 03: This order shall be sealed. [00:05:33] Speaker 03: The mere existence of a seal is not enough to show that the government itself is prohibited from disclosing it. [00:05:41] Speaker 03: This court's clear holding in Morgan is moreover that the government is the one that bears the burden of showing that seal is intended to prohibit the agency from disclosing the records. [00:05:54] Speaker 03: In this case, it seems clear to me that the purpose of the seal would be to prevent the individual who's being investigated from going to the court and finding out that they're investigated by looking through public court records. [00:06:10] Speaker 03: It's not clear what purpose would ever be served by a [00:06:15] Speaker 03: a pen register order, sealing order, that prohibits the government from doing what it pleases with the order itself. [00:06:25] Speaker 03: That is, if the government wanted to, if the FBI wanted to give this information to a witness or to another agency or to a foreign government, [00:06:36] Speaker 03: that they couldn't do it without permission of the district court. [00:06:39] Speaker 03: That's something that would inhibit the ability of law enforcement to do its job, and that clearly wasn't the intention of passing the statute. [00:06:48] Speaker 03: In fact, the legislative history makes clear that one of the reasons for this statute was to allow the government the ability to gather some preliminary information to help it develop probable cause for further investigation. [00:07:01] Speaker 02: What about Mr. Hardy's declaration where he says [00:07:06] Speaker 02: This is JA-93. [00:07:10] Speaker 02: The information with HELL, under Exemption 3, consists of details surrounding FBI's essays making arrangements to set up and install and trap. [00:07:28] Speaker 02: That's talking about, as I understand it, what you describe as Prong 2. [00:07:36] Speaker 02: which clearly isn't directed to the government. [00:07:40] Speaker 03: Well, the other thing is the non-disclosure portion relating to the telephone companies. [00:07:47] Speaker 02: I thought that's what you described as prom, too. [00:07:50] Speaker 03: Right. [00:07:51] Speaker 03: And so with respect to that, that is targeted specifically at the telephone companies. [00:07:58] Speaker 02: So I'm reading Mr. Hardy's declaration where he says that [00:08:04] Speaker 02: Some of the information that was withheld, this is paragraph 73, consists of details surrounding arrangements. [00:08:12] Speaker 02: Isn't that prong two, not prong one? [00:08:18] Speaker 02: Details surrounding arrangements to set up and install a pen, register, and trap device during a criminal investigation. [00:08:34] Speaker 03: So yeah, that would perhaps be more relevant to the nondisclosure portion. [00:08:39] Speaker 03: But that nondisclosure portion, by its terms, the statute is not directed at the government. [00:08:47] Speaker 02: Well, I'm assuming that the government is going to argue that, well, the next sentence says that what they withheld were the identities and phone numbers of the individuals subject to the Penn Register. [00:08:59] Speaker 02: Is there any indication they withheld more? [00:09:04] Speaker 03: You know, it's a little unclear what Mr. Hardy's saying, because if we look at the actual documents, it appears that they have revealed, I mean, the government's already revealed the existence of a pen register in this case. [00:09:20] Speaker 03: They asserted the exemption. [00:09:21] Speaker 03: That's how we know about it. [00:09:23] Speaker 03: And if you look at in the supplemental appendix, this is LeBeau, [00:09:34] Speaker 03: The last paragraph there, where the B3-1 is asserted, clearly identifies this individual, Mr. Kuhn, and his phone number there within the context of talking about the arrangements for the pen officer. [00:10:01] Speaker 03: So it does appear that there is something beyond the identity of the individual and the phone number that is being protected by the government. [00:10:10] Speaker 02: And you find that from what? [00:10:13] Speaker 02: I'm looking at this last paragraph. [00:10:16] Speaker 03: Right. [00:10:16] Speaker 03: And it identifies this individual. [00:10:20] Speaker 03: So the beginning and end part, it looks like, or at least the beginning part of that paragraph is withheld under B3-1, the pen register. [00:10:29] Speaker 02: You're talking about? [00:10:31] Speaker 02: The bottom of a page? [00:10:33] Speaker 03: The bottom of page 329. [00:10:34] Speaker 02: Right. [00:10:36] Speaker 02: And what does that identify other than the identities and phone numbers of individuals subject to the pen register? [00:10:43] Speaker 03: Well, that's what it does. [00:10:45] Speaker 03: It identifies that. [00:10:47] Speaker 02: And nothing more? [00:10:49] Speaker 03: Right. [00:10:51] Speaker 03: But that's already identified. [00:10:52] Speaker 03: What they're withholding, then, is something beyond the identity of the individual. [00:10:58] Speaker 02: And we know that because? [00:11:02] Speaker 03: Because they've already revealed the identity, so what it is they're withholding is obviously not the identity. [00:11:11] Speaker 02: And let me just be clear, they had revealed the identity at the time of this first affidavit? [00:11:26] Speaker 03: They didn't. [00:11:27] Speaker 03: They don't believe that this document was revealed until that's that's my point. [00:11:35] Speaker 02: All right. [00:11:36] Speaker 02: So that at the time, Mr Hardy prepared this declaration. [00:11:43] Speaker 02: They hadn't revealed what you just showed me on supplemental 3 29. [00:11:51] Speaker 03: I can't be, I'm sorry, I can't be positive of the date. [00:11:54] Speaker 02: All right, I'm not trying to, I just wanted to see what indication we had that something more was being withheld, that's all. [00:12:03] Speaker 03: Well, it is also, I mean, there is the sentence in the Hardy Declaration referring to the name and identity, but then there's also the portion that talks about the details of the installation of the Penn Register. [00:12:15] Speaker 03: And at least that portion, it is clear, is unrelated to things that would typically go into a pen register order based on what statute says. [00:12:32] Speaker 03: Does the court have more questions at the pen register, or I can continue on to the grand jury? [00:12:38] Speaker 01: Oh, you're out of time, but go ahead with the grand jury. [00:12:41] Speaker 03: Excuse me? [00:12:41] Speaker 01: Go ahead with the grand jury. [00:12:43] Speaker 03: OK. [00:12:45] Speaker 03: Oh, I'm sorry. [00:12:45] Speaker 03: I see I'm out of time. [00:12:47] Speaker 03: Well, just to put it very briefly, then, our position is that even though a grand jury subpoena could be categorically withheld, in this case, the government is attempting to immunize the information that [00:13:01] Speaker 03: was provided to the grand jury from FOIA by affirmatively stating that the information was given to the grand jury. [00:13:09] Speaker 03: Had it just been released to us, there's no way that we would have known among all the hundreds of pages of information that was released that this was grand jury material. [00:13:20] Speaker 05: So in the Second Hardy Declaration at JA 132 to 133, [00:13:27] Speaker 05: The statements made that to the extent that any such documents were presented to a grand jury, they were not withheld merely because of such presentation. [00:13:35] Speaker 05: So if that's true, doesn't that account for what you just said? [00:13:39] Speaker 03: So that quote, I think, was intended to address our argument that the mere existence of sign being to the grand jury doesn't immunize it. [00:13:52] Speaker 03: And so his response is, well, there were other reasons for presenting it to the grand jury. [00:13:58] Speaker 03: What that doesn't address is whether the documents on their face [00:14:03] Speaker 03: are associating it with the grand jury. [00:14:05] Speaker 03: We only know that the documents are associated with the grand jury because Mr. Hardy's now told us that. [00:14:13] Speaker 05: Right, but I thought your point is that [00:14:17] Speaker 05: In the first party declaration, the indication is made that certain documents were not turned over because they were submitted to the grand jury. [00:14:25] Speaker 05: Right. [00:14:26] Speaker 05: And mere submission to the grand jury wouldn't be enough under our cases if the documents had an independent existence and there would be a way to disclose them without revealing that they were bound up with the grand jury. [00:14:38] Speaker 05: Right, that's your argument. [00:14:39] Speaker 03: That was the initial argument, right? [00:14:41] Speaker 05: And then I thought that this Hardy Declaration, the part that I just quoted, is a response to that. [00:14:45] Speaker 05: Because it says they were not withheld merely because of this presentation, i.e. [00:14:49] Speaker 05: presentation to the grand jury. [00:14:51] Speaker 05: And so it seems like the assertion's being made that you're not right. [00:14:56] Speaker 05: You might have been able to read the first Hardy Declaration to support the argument that you're making. [00:15:02] Speaker 05: But in the second Hardy Declaration, we the government have now cleared up that [00:15:06] Speaker 05: merely the presentation of information to the grand jury isn't enough for us to withhold it. [00:15:11] Speaker 05: We recognize that. [00:15:12] Speaker 05: But that's not why we're withholding it. [00:15:14] Speaker 05: It would reveal something about the scope of the grand jury investigation or something like that, which I think you would agree is something that did need not be revealed. [00:15:22] Speaker 03: Right. [00:15:22] Speaker 03: I mean, if the documents on their face would reveal the inner workings, but it wasn't even said that. [00:15:28] Speaker 03: It was said that they could reveal the inner workings. [00:15:33] Speaker 03: And further, the [00:15:37] Speaker 03: Well, Mr. Hardy, I guess, clarified the applicable standard, but statement is far too conclusory, just saying, if we gave you this, it would reveal the inner workings, or could reveal the inner workings of the grand jury, doesn't provide a sufficient basis for the plaintiff or the court to make a determination whether that's correct or not. [00:15:59] Speaker 05: But why? [00:16:00] Speaker 05: Because if it's true that it could, [00:16:03] Speaker 05: Does it have to be shown that it in fact would? [00:16:06] Speaker 05: I mean, if there's a risk, if there's a danger that it would reveal the scope of a grand jury investigation or something like that, is that not enough? [00:16:18] Speaker 03: I guess they wouldn't have to say it with absolute certainty. [00:16:22] Speaker 03: But simply saying it could is, on the other hand, too vague. [00:16:27] Speaker 03: Anything could have that ability. [00:16:29] Speaker 05: So it has to be north of could, but south of what? [00:16:31] Speaker 03: Somewhere in there. [00:16:33] Speaker 03: I mean, at least it just needs to be something upon which the court can make a determination whether it's reasonable. [00:16:40] Speaker 03: It's not really so much whether Hardy says could or would. [00:16:44] Speaker 03: It's the substance of what he's [00:16:46] Speaker 05: Now if the documents are such, if there are documents and if the documents are such that they have a stamp on them that indicates that they were subpoenaed by the grand jury or issued to the grand jury, then looking at the documents would reveal. [00:17:02] Speaker 05: So then in that situation, you would agree that that's not something that needs to be disclosed. [00:17:08] Speaker 03: Right, if there's a clear indication on the face of the document, this is something that was presented to a grand jury. [00:17:13] Speaker 05: Even if the document has an independent existence, it may be that the only copy that the government has is one that's stamped as of consequence to the grand jury. [00:17:25] Speaker 03: If it has an independent existence, then the government's burden is a little bit different. [00:17:30] Speaker 03: But in general, if the document would reveal what's going on and it's stamped, that should be sufficient. [00:17:37] Speaker 03: We don't have that information here. [00:17:40] Speaker 03: Thank you. [00:17:41] Speaker 05: Actually, is that right? [00:17:44] Speaker 05: I wanted to ask you about the exclusion argument. [00:17:49] Speaker 05: So with the exclusion argument, you're- No, he's coming. [00:17:53] Speaker 05: Is that a representative procedure? [00:17:54] Speaker 01: Oh, yeah. [00:17:55] Speaker 01: I was just asking if she had any. [00:17:56] Speaker 05: Oh, thanks. [00:17:57] Speaker 05: Thanks. [00:17:58] Speaker 05: With the exclusion argument, your position is that the procedure that should be followed is something that mimics the GLOMAR procedures? [00:18:07] Speaker 03: In a very narrow class of cases, this being one of them, something similar to the GLOMAR procedure would be possible and would best serve the interests of the adversary system, yes. [00:18:23] Speaker 05: So can I ask you just the following hypothetical? [00:18:24] Speaker 05: So suppose you have a situation in which the individual who's making the request files something that says, look, to the extent that there's documents that are being withheld under this exclusion on the theory that there's an investigation that I don't know about, I actually know about it, which is, I think, the thrust of your submission. [00:18:45] Speaker 05: So that can't be the basis for withholding the documents from me because it's an investigation about which I know. [00:18:51] Speaker 05: Right. [00:18:51] Speaker 03: Well, so the question would then be, how speculative is that claim? [00:18:55] Speaker 03: If it's purely speculative, no. [00:18:57] Speaker 03: In this case, we have sworn deposition testimony from FBI agents, so it's far from speculative. [00:19:03] Speaker 05: Right. [00:19:03] Speaker 05: So let's just give you the benefit of the doubt for purposes of spinning this out. [00:19:07] Speaker 05: So the benefit of the doubt such that it's true that you, in fact, know an investigation and you show that you know of it with sufficient objective evidence that we can be reliably assured that you know of the investigation. [00:19:20] Speaker 05: But then, suppose that there's a second investigation that you don't know about, and the documents that are being requested are kind of commingled so that they deal with both investigations. [00:19:34] Speaker 05: Well, in that situation, how would your suggested process work out? [00:19:38] Speaker 03: So what would happen is the district court would adjudicate the issue as framed by the plaintiff. [00:19:44] Speaker 03: So the plaintiff says, I know about this particular investigation. [00:19:48] Speaker 03: And if that is the basis for the withholding, then the government needs to turn over the information. [00:19:57] Speaker 03: The district court then says, for example, I agree with you. [00:20:01] Speaker 03: If that is the basis for the withholding, they would need to turn it over. [00:20:06] Speaker 03: Documents then would not be turned over because there was a second independent basis for it. [00:20:11] Speaker 03: So the government would respond, that's not our basis. [00:20:16] Speaker 03: you wouldn't get the documents, and you still wouldn't know what the basis was or was not. [00:20:21] Speaker 05: What does the government say in its response? [00:20:23] Speaker 05: I take it that the court by hypothesis doesn't know about what's in the documents at this point, right? [00:20:32] Speaker 05: Because we're not at the point yet where there's been an in-camera investigation of the documents. [00:20:38] Speaker 05: So what would the government say in response in the circumstance in which [00:20:42] Speaker 05: the reason that it's withholding, the hypothetical reason it's withholding the documents is that they might reveal the existence of a second investigation as to which the individual who's the subject of it hasn't shown that he or she knows. [00:20:54] Speaker 03: The government would have two choices there, neither of which would include [00:21:00] Speaker 03: revealing the existence of the second investigation. [00:21:02] Speaker 03: They can either say, plaintiff, we agree with you as a matter of law. [00:21:07] Speaker 03: If that was our basis, we would have to turn it over to you. [00:21:10] Speaker 03: Or they would say, we disagree with you. [00:21:12] Speaker 03: If that was our basis, it would be justified. [00:21:15] Speaker 03: The district court would then adjudicate that issue. [00:21:19] Speaker 03: And if the hypothetical matches the reality, [00:21:23] Speaker 03: then the agency turns it over. [00:21:25] Speaker 03: If it doesn't match because the agency has some other basis for withholding it, then the agency would not turn it over, and that would be the end of the issue. [00:21:36] Speaker 05: So for your sake, the government could respond just by saying, that's not our basis, at that level of generality, without any indication that, you know, something to the effect of, well, it's true that [00:21:50] Speaker 05: knowledge of an investigation would be enough, but there may or may not be other investigations. [00:21:56] Speaker 03: I mean, as long as they, if the parties agree as a matter of law on the issue, then [00:22:04] Speaker 03: If there's no question of fact at issue, then that would be it. [00:22:07] Speaker 03: If there is a question of fact at issue, like there was in Benavides, where there was a question of, I think it was about an informant, how much information is enough to show that the informant was officially confirmed? [00:22:20] Speaker 03: So if there was a question here, how much information is enough to show that you actually know about the investigation, then that could be litigated. [00:22:30] Speaker 03: The hypothetical you posed to me, though, [00:22:32] Speaker 03: We assume that that had been met. [00:22:35] Speaker 03: So that's why I was saying, just as a matter of law, that's all they would have to say, is that's not our basis. [00:22:39] Speaker 03: And then that would be the end of it. [00:22:41] Speaker 03: OK. [00:22:44] Speaker 03: Thank you. [00:22:44] Speaker 01: All right. [00:22:44] Speaker 01: We'll give you a couple of minutes in reply. [00:22:47] Speaker 01: Thank you. [00:22:48] Speaker 01: Mr. Interonte. [00:22:50] Speaker 04: Good morning. [00:22:51] Speaker 04: May it please the Court, Council, John and Tarante for the Department of Justice. [00:22:55] Speaker 04: The Court should affirm the District Court's grant of summary judgment in favor of the Department of Justice. [00:23:01] Speaker 04: As the District Court correctly held, the FBI properly asserted Exemption 3 to withhold information obtained pursuant to a pen register order, which must be sealed pursuant to the pen register statute, and also to withhold material obtained pursuant to grand jury subpoenas [00:23:20] Speaker 04: which may not be disclosed subject to Criminal Rule 6E. [00:23:25] Speaker 04: And the district court, I'll limit my comments to the issues actually addressed by appellant. [00:23:31] Speaker 04: The district court did not abuse its discretion in following the well-established procedure of reviewing in-camera ex parte declarations provided by the FBI. [00:23:43] Speaker 04: to address Mr. LeBeau's speculative claim that the FBI invoked a statutory exclusion under FOIA. [00:23:51] Speaker 05: On the Penn Register, can we start with the Penn Register? [00:23:53] Speaker 05: Absolutely. [00:23:55] Speaker 05: On the Penn Register, the Hardy Declaration [00:23:59] Speaker 05: at JA 93, I guess, paragraph 73, says here the information with help and disclosure pursuant to Executive 3 consists of details surrounding FBI essays making arrangements to set up and install a pen register and trap and trace device during a criminal investigation. [00:24:16] Speaker 05: And then what the statute talks about is disclosure of the pen register itself. [00:24:20] Speaker 04: Well, the statute [00:24:22] Speaker 04: describes the pen register order. [00:24:24] Speaker 04: First, as to the issue of non-disclosure, the statute is entitled non-disclosure of existence of pen register or a trap. [00:24:33] Speaker 04: and trace device. [00:24:35] Speaker 04: It's clearly a non-disclosure statute. [00:24:37] Speaker 04: And the pen register order is described in the statute as one authorizing or approving the installation and use of a pen register or a trap and trace device. [00:24:49] Speaker 04: And the court is directed by statute [00:24:54] Speaker 04: that the order be sealed until otherwise ordered by the court. [00:24:57] Speaker 04: That's clearly evidence of congressional intent, precluding the government from disclosing any information about the existence and use of a pen register or trapping trace device. [00:25:10] Speaker 04: And the information withheld was limited to that. [00:25:13] Speaker 05: But why are you saying all of that? [00:25:15] Speaker 05: Because what the statute says is the order be sealed. [00:25:18] Speaker 05: So what's the, isn't there a gap? [00:25:21] Speaker 05: Or maybe there's not a gap. [00:25:22] Speaker 05: As I read the declaration, it says here the information with health and disclosure consists of details surrounding FBI essays making arrangements to set up and install a PEN register. [00:25:34] Speaker 05: Which would extend to the existence of a PEN register. [00:25:41] Speaker 05: That's material that there must be an existence of a pen register because the exemptions men invoked correct on a pen register and information surrounding the existence of the register itself. [00:25:53] Speaker 04: was disclosed under Exemption 3. [00:25:55] Speaker 04: To provide information about the application process, which incorporated into an order we would submit, would also be sealed by the order itself. [00:26:05] Speaker 05: But you just said incorporated into the order. [00:26:07] Speaker 05: Is it actually incorporated into the order? [00:26:09] Speaker 05: Maybe you can't say, but I [00:26:12] Speaker 05: It just seems to me that there's a difference between the order itself and what the declaration is talking about. [00:26:18] Speaker 05: Are you saying that there is a difference, but let me ask this, are you saying that there is a difference, but that difference doesn't matter because everything is subject to non-disclosure, or are you saying there's actually no difference because the stuff that's described in paragraph 73 is in fact part of the order? [00:26:35] Speaker 04: Well, the application for a pen register, and I want to stay with the record, would be ex parte, presumably, if the order entered is sealed. [00:26:43] Speaker 04: So any information to the extent that it pre-existed the issuance of the order we would submit is part of the order. [00:26:55] Speaker 04: Part of the order? [00:26:56] Speaker 04: It's part of the order, yes. [00:26:58] Speaker 04: I mean, it would be part of the application to the extent it predated. [00:27:02] Speaker 05: Right, but that gets to the nub of the issue. [00:27:06] Speaker 05: Is that the government's position that all of that stuff is actually part of the order that's to be sealed? [00:27:11] Speaker 05: It would be part of, yes. [00:27:14] Speaker 04: That it would be subject to the non-disclosure provision of the Penn Register statute. [00:27:19] Speaker 04: For the government to release information about the application or any information, [00:27:26] Speaker 04: predating the issue of the order would disclose the existence of the order, presumably. [00:27:35] Speaker 02: So the government asked for, you know, 20 locations, and the district court says, I approve five and puts that in the order under seal. [00:27:49] Speaker 02: And your position is all 20 are sealed. [00:27:54] Speaker 02: And so as Mr. Hardy states, you draw no distinction between the first part of the statute and the second part, namely the first part referring to the order under seal and the second part referring to people who are installing the telephone company, not disclosing anything relating to what they're doing pursuant to this order. [00:28:20] Speaker 04: Correct. [00:28:22] Speaker 04: I mean, the position would be that the application for a pen register order, if it describes certain instrumentality numbers that were not incorporated into the order, to release that information would, in effect, disclose information about the subsequent order that was issued. [00:28:43] Speaker 04: Because part of the order. [00:28:44] Speaker 02: Well, the order, my hypothetical, the order only talks about five locations. [00:28:50] Speaker 02: And that's under seal. [00:28:52] Speaker 02: So that's what the government is authorized to do. [00:28:56] Speaker 02: And you're saying it wouldn't make sense. [00:28:59] Speaker 02: I'm putting words in your mouth, but I just need to understand what the government's position is, that if it were disclosed if you asked for 20 and only five were approved and then the 15 were disclosed, then the public would know where the other five were. [00:29:19] Speaker 02: Is that your position? [00:29:20] Speaker 02: I believe that would be the case. [00:29:21] Speaker 04: I don't think that's these facts here. [00:29:23] Speaker 02: Well, Mr. Hardy's declaration that Judge Srinivasan has been focusing on is a little unclear about this, because he's blended these two prongs together. [00:29:35] Speaker 02: And we're just trying to understand how you're reading this statute. [00:29:39] Speaker 04: If the court's hypothetical were the case, which I don't believe it is the case, then Mr. Hardy would have had to address that particular issue, the issue of whether or not several of the lines that were requested were not actually approved by the court. [00:29:57] Speaker 02: So even if the application says we want 20 locations and the court says fine, and then [00:30:07] Speaker 02: Other information develops regarding the location, et cetera, which telephone company is going to install all those types of things. [00:30:19] Speaker 02: That's also covered under the seal of the order? [00:30:23] Speaker 04: To the extent it's not. [00:30:27] Speaker 04: And in this case, I would submit that it is covered. [00:30:32] Speaker 02: Because Mr. Hardy says so? [00:30:34] Speaker 04: Well, it's his declaration, yes. [00:30:37] Speaker 04: And to the extent that there were lines that were not incorporated, that's not part of the declaration. [00:30:43] Speaker 02: No, I'm just dealing with Mr. Hardy's declaration now. [00:30:45] Speaker 02: I've finished with my hypothetical. [00:30:49] Speaker 02: But I'm trying to understand what Mr. Hardy is telling us. [00:30:53] Speaker 04: that the requested lines were approved by the pen register order. [00:31:01] Speaker 04: And he's not distinguishing between lines that may have been requested and the application not. [00:31:06] Speaker 02: I'm with you, all right? [00:31:08] Speaker 02: You asked for 20. [00:31:09] Speaker 02: The judge approved 20. [00:31:11] Speaker 04: OK. [00:31:12] Speaker 02: But the judge doesn't know anything about [00:31:16] Speaker 02: and we're talking in old terms, Sprint or ATT, MCI, who's going to do this, when they're going to do it, how long. [00:31:27] Speaker 02: None of that is in the application. [00:31:28] Speaker 02: None of that is in the sealed order. [00:31:33] Speaker 02: Yet Mr. Hardy's declaration suggests that the government is reading the statute to allow non-disclosure of this post-order information. [00:31:46] Speaker 02: or information that's not included in the order. [00:31:50] Speaker 04: Well, the statute described the order as authorizing or approving the installation and use. [00:31:56] Speaker 04: So it would be approving the application. [00:31:59] Speaker 04: And so to the extent it approves the entirety of the application, we would submit as part of the sealing order. [00:32:05] Speaker 04: And to disclose that additional application information would be to reveal the information that cannot be disclosed, the existence of an order. [00:32:13] Speaker 04: It is possible that part of it, in another case, maybe wasn't. [00:32:17] Speaker 04: approved by the court in which case there may be another exemption that the judge... No, you keep wanting to go back to my federal... Okay. [00:32:24] Speaker 02: I'm trying to stick with this case now as to exactly what is subject to non-disclosure under your reading of the Penn Register Act. [00:32:34] Speaker 04: Well, to turn to Prompt 2, which specifically talks about the third parties that are subject that may not disclose, subject to non-disclosure, they're described as person owning or leasing a line, as the court indicated, and also [00:32:50] Speaker 04: any person who is obligated by the order to provide assistance to the applicant. [00:32:55] Speaker 04: So the applicant would be the government in this case. [00:32:57] Speaker 04: So it would extend to those particular lines that are approved and any disclosure of those lines would be subject to the sealing order. [00:33:07] Speaker 04: That would be the government's position. [00:33:09] Speaker 04: So that Mr. Hardy correctly withheld all of the information described in the declaration. [00:33:15] Speaker 05: So when he says that, I'm sorry, I didn't mean it. [00:33:22] Speaker 05: Just to continue on this theme, when he says in the affidavit of paragraph 73, details surrounding FBI essays making arrangements to set up and install a pen register and trap and trace device, then what you're saying is the way to construe that language is that [00:33:40] Speaker 05: those details are the kinds of details that would tell us or disclose to the public what line the Penn Register was installed in. [00:33:52] Speaker 04: Absolutely. [00:33:52] Speaker 04: And it would implicate Prompt 2 because of the participation of the owners or leasers of the line in any [00:34:00] Speaker 04: third party that would have to provide assistance to the applicant. [00:34:04] Speaker 04: So any arrangements to set up install would necessarily disclose the information that cannot, the existence of the pen register and use of it as well. [00:34:14] Speaker 04: If there are no further questions on the pen register, I'll turn briefly to the grand jury exemption three. [00:34:19] Speaker 04: In this case, the material that was withheld was subject to grand jury subpoenas. [00:34:29] Speaker 04: specific records indeed that were provided to a federal grand jury in response to this subpoena. [00:34:34] Speaker 04: So this is not a case where there are exhibits that were presented to the grand jury within the 302s or material gotten pursuant, obtained pursuant to search warrants that may have an independent existence. [00:34:47] Speaker 04: The very documents here were produced subject to the authority of the grand jury [00:34:53] Speaker 04: through subpoenas returnable to the grand jury, clearly the release of this information would reveal, as the district court found, the strategy or direction of the investigation. [00:35:04] Speaker 05: So you're saying the documents were created in response to the grand jury subpoena? [00:35:08] Speaker 05: They were produced, presumably, but not necessarily. [00:35:11] Speaker 05: Well, then I don't understand how we can know that they don't have an independent existence because the documents that's produced, unless I'm misunderstanding the procedure, a document that's produced in response to a subpoena could be a document that exists out there already. [00:35:26] Speaker 04: Absolutely. [00:35:27] Speaker 04: Right. [00:35:28] Speaker 04: But it's not a case where the prosecutor presented exhibits to the grand jury. [00:35:33] Speaker 04: This is material subpoenaed by the grand jury itself through the government. [00:35:37] Speaker 04: The prosecutor is an attorney advisor, likely. [00:35:40] Speaker 04: But in any event, it is generated through the grand jury. [00:35:43] Speaker 04: It's not something presented. [00:35:45] Speaker 02: Suppose the grand jury subpoenas the calendar of the US Congress. [00:35:53] Speaker 02: Clearly, that has an independent existence. [00:35:56] Speaker ?: Correct. [00:35:58] Speaker 04: But the very fact that the grand jury subpoenaed that to reveal that particular document would reveal, for whatever reason, that would reveal the strategy or direction of the grand jury and therefore. [00:36:10] Speaker 02: So the independent existence doctrine has no play under grand jury subpoena? [00:36:20] Speaker 04: It would tend, and we would submit in this case, to reveal the strategy or direction of the grand jury. [00:36:26] Speaker 05: And I believe. [00:36:27] Speaker 05: How? [00:36:28] Speaker 05: Because if it has an independent existence, and it doesn't want the disclosure. [00:36:32] Speaker 05: Suppose a bunch of stuff is disclosed, including the congressional calendar. [00:36:37] Speaker 05: If the person to whom it's disclosed has no indication on the face of the document that it was in response to a grand jury subpoena, then how is it going to reveal anything about a grand jury? [00:36:48] Speaker 04: Well, in this case, the parameters of, for example, phone records were subpoenaed during bank records or something. [00:36:55] Speaker 04: The statements that were subpoenaed, the date, the time frame, the information that is specified in the grand jury subpoena and then reflected in the documents that are produced and returned to the grand jury would certainly reveal the strategy or direction. [00:37:10] Speaker 05: Why? [00:37:10] Speaker 05: I'm not understanding, because if the documents have an independent existence, [00:37:15] Speaker 05: and nothing in the disclosure of them necessarily tells you that they were the subject of a grand jury subpoena, why would the FOIA requester suppose that they had anything to do with a grand jury? [00:37:28] Speaker 04: Well, the request is to the government, and if the government, in this case the FBI, in reviewing its investigative files, finds grand jury material and material returnable by a subpoena, [00:37:42] Speaker 04: is entitled to withhold that information because of 6E. [00:37:47] Speaker 05: That's the question. [00:37:48] Speaker 05: Why is it entitled? [00:37:49] Speaker 05: Because if the government has the document already for some other entirely independent reason having nothing to do with the grand jury subpoena, search warrant. [00:38:00] Speaker 05: The document's already in the government's possession. [00:38:02] Speaker 05: And then it also happens that it's responsive to a grand jury subpoena. [00:38:07] Speaker 05: Are you saying that any time that something that's in the government's possession is responsive to a grand jury subpoena, then the government can invoke the grand jury exemption and say that we don't have to disclose it any longer? [00:38:18] Speaker 04: Well, in the example the court had, if the government has a copy that a material that it obtained by a search warrant or public records or something, those are available from a different source or the same source. [00:38:31] Speaker 04: If that material [00:38:34] Speaker 04: If information is obtained through a grand jury subpoena, the material returned to the grand jury should not be disclosed. [00:38:44] Speaker 04: If the government has it in a separate location... But we're talking about the same material. [00:38:48] Speaker 05: It's the same document. [00:38:49] Speaker 05: It just happens that it's also within the fold of a grand jury subpoena. [00:38:54] Speaker 04: Then the government would be required to turn over the material that wasn't returned to the grand jury. [00:38:59] Speaker 04: It's not immunizing. [00:39:01] Speaker 04: The government can't return it to the grand jury as an exhibit and then take a document that by itself in the government's possession would be disclosable and say, well, we can't disclose that because it happened to the grand jury. [00:39:13] Speaker 04: That's not what we have. [00:39:14] Speaker 05: How do we know that? [00:39:15] Speaker 05: How do we know that's not what we have? [00:39:16] Speaker 05: Because all the declaration says is that the records were provided in response to subpoenas. [00:39:21] Speaker 05: which is equally true of records that otherwise exist, but they just happen to be provided in response to subpoenas. [00:39:27] Speaker 04: Well, if the government had these records and then got a grand jury subpoena to get them for whatever reason, then the government would be required to turn over the first set of documents, but not the material that was provided pursuant to the subpoena. [00:39:41] Speaker 04: That would be the government's position. [00:39:44] Speaker 05: I guess my question is, how do we know, looking at the declaration, that that's not exactly what's going on? [00:39:49] Speaker 05: Because all the declaration tells us is that we're withholding the documents because the records were provided in response to grand jury subpoenas. [00:39:57] Speaker 05: And that's equally true of a situation in which there's independent possession of the records. [00:40:02] Speaker 05: Those records are provided in response to grand jury subpoena. [00:40:05] Speaker 05: And this could be read to say, but we're still withholding them because there happened to be a grand jury subpoena that requested those documents. [00:40:11] Speaker 04: But there's no indication in the declaration that the government already had the records independent of the grand jury, in which case those materials would be disposable. [00:40:20] Speaker 04: If the search warrant materials, for example, if the government then subpoenaed them for whatever reason to get an official copy that they may want to use with a certification that they're authentic. [00:40:34] Speaker 02: All that may be true, but the declaration doesn't tell us that. [00:40:41] Speaker 02: Oh, it says it was produced. [00:40:43] Speaker 02: So the FOIA request is give me all information about Joe Jones that you have. [00:40:48] Speaker 02: And one of the things you have is a search warrant. [00:40:51] Speaker 02: And that search warrant was subject to a grand jury subpoena. [00:40:56] Speaker 02: So you release the search warrant. [00:40:58] Speaker 02: doesn't say anything about what the grand jury is looking into. [00:41:03] Speaker 04: Correct. [00:41:04] Speaker 04: To use an example that Judge Sreenivasan had, if the government took the documents returnable by the grand jury and scanned them and put them on a PDF and stamped them returnable by grand jury subpoena, I believe the concession, those would be protected. [00:41:21] Speaker 04: Yeah. [00:41:21] Speaker 04: So in this case, the fact that that wasn't done, but those documents in the records of the FBI were [00:41:28] Speaker 04: returnable by grand jury subpoena. [00:41:31] Speaker 04: That's what Mr. Hardy describes. [00:41:33] Speaker 04: The mere fact that they weren't stamped as an additional step does not render them disclosable. [00:41:38] Speaker 04: The government wouldn't have an obligation to pour through grand jury material and put it in another stack so that it's not [00:41:46] Speaker 04: mixed in with the grand jury material the government would submit. [00:41:49] Speaker 04: So in this case, the fact that as we read the declaration, they're not stamped subject to a grand jury subpoena or obtained through grand jury subpoena, but the material was, in fact, obtained through a subpoena. [00:42:02] Speaker 04: And we would submit that it's subject to 6E and not to be disclosed. [00:42:06] Speaker 05: OK, let me just read it out just one second. [00:42:08] Speaker 05: So page JJ 94, paragraph 74 of Hardy's declaration. [00:42:14] Speaker 05: That's where the grand jury issue comes up. [00:42:17] Speaker 05: And in the sentence towards the middle of that paragraph that begins specifically in describing the things that are not disclosed, specifically the investigative data files contained, and then you go to the last clause, copies of specific records provided to a federal grand jury in response to a federal grand jury subpoenas. [00:42:34] Speaker 05: Correct. [00:42:35] Speaker 05: So copies of specific records provided. [00:42:37] Speaker 05: Now when I read that, it just reads to me like, [00:42:40] Speaker 05: These are copies of specific records that were provided in response to a federal grand jury subpoena. [00:42:46] Speaker 05: We might otherwise have copies of those records too, but we don't have to disclose them because they were provided to a federal grand jury in response to a federal grand jury subpoena. [00:42:55] Speaker 05: You could say that about a search warrant, right? [00:42:58] Speaker 04: You could, perhaps not artful. [00:43:01] Speaker 04: The indication here, as I read it, is copies are a single set of documents provided [00:43:09] Speaker 04: to a grandeur in response to a subpoena, not records that were independently available from some other source that the government happened to also have a copy of. [00:43:19] Speaker 02: Well, let's assume that's not what the language compels, then what's your answer? [00:43:30] Speaker 02: Given that hypothetical, if there is... No, given the language of the... He says copies of specific records. [00:43:39] Speaker 02: provided to the grand jury in response to federal grand jury subpoenas. [00:43:45] Speaker 02: Copies of documents. [00:43:47] Speaker 02: Well, not originals, not singular copies. [00:43:51] Speaker 02: That's what we're trying to understand how far this goes. [00:43:55] Speaker 04: Well, the originals of the records may not have been provided in response to the subpoena. [00:43:59] Speaker 04: I would assume, based on the language here, I would read it that copies were provided in response to the subpoena, and the copies are what are being withheld, that there is not an original or some other documents that separately exist. [00:44:15] Speaker 02: So in this computer age, where you look at the FBI computer directories and you scan a name in, [00:44:25] Speaker 02: and you see search warrant issued 2014, and it tells you where to find it. [00:44:32] Speaker 02: And it happens to be in a box that says these documents were submitted to the grand jury, and you find it. [00:44:43] Speaker 02: And it doesn't say anything about the grand jury and the document itself. [00:44:46] Speaker 02: The document is not stamped grand jury, but still no obligation to turn it over. [00:44:56] Speaker 02: under 6E. [00:44:58] Speaker 04: I believe, given that hypothetical, if the records reflected that information was obtained pursuant to a search warrant, which is not using the power of the grand jury, the return of the search warrant material would not be subject to 6E. [00:45:17] Speaker 04: If that same material were presented as an exhibit to a grand jury, [00:45:23] Speaker 04: then we get into the Senate of Puerto Rico case. [00:45:26] Speaker 04: And I think that's why I make the distinction between the process used here, grand jury subpoena in obtaining the material. [00:45:35] Speaker 04: It is coming from a source, not a source, it is being obtained through the grand jury using its power. [00:45:42] Speaker 04: Material that may be gotten from other sources, that indication of that language [00:45:48] Speaker 04: in the FBI records would signal that there is an independent source and that the government would have records not limited to the material provided to the grand jury. [00:45:59] Speaker 02: So your position would be that if the grand jury asked for a document combining several records, for example, that would be something newly created [00:46:15] Speaker 02: for the grand jury in response to its subpoena. [00:46:19] Speaker 04: Correct. [00:46:19] Speaker 04: And that would certainly reveal the direction and thinking of the grand jury if they're asking to combine. [00:46:24] Speaker 02: But if each of those documents was on your computer base in connection with criminal files, then they would be individually releasable? [00:46:37] Speaker 04: Unless subject to some other exemption. [00:46:38] Speaker 02: Yeah, right. [00:46:39] Speaker 05: Unless subject to some other exemption. [00:46:41] Speaker 05: Even as to the combined document that was hypothesized by Judge Rogers' question, if the disclosure of that document wouldn't reveal that it was created or produced in response to a grand jury subpoena, then would you still say that comes within the fold of the exemption? [00:47:01] Speaker 05: In other words, you could look at the document, you just look at the document on its face, it doesn't tell you anything about a grand jury. [00:47:06] Speaker 04: True. [00:47:07] Speaker 04: If the agents obtain material, public sources, search warrants, at that point it's not grand jury. [00:47:16] Speaker 04: If it's used as an exhibit or if it's subpoenaed through the grand jury, then we run into exemption three. [00:47:22] Speaker 05: But even if it's used as an exhibit, the exhibit itself doesn't tell you, if all you saw was [00:47:28] Speaker 05: If there were a cover on it that says grand jury response, tab A of grand jury response, if you have that whole document, then of course, I think everybody agrees that the government can't be required to disclose that because that would tell you exactly what the grand jury is looking at. [00:47:42] Speaker 05: But if all you looked at was what's in the tab, [00:47:45] Speaker 05: And it doesn't say anything. [00:47:46] Speaker 05: There's no cover that says grand jury on it. [00:47:48] Speaker 05: There's no header that says grand jury on it on the document itself. [00:47:51] Speaker 05: It's just literally the tab, which is just the compilation of documents. [00:47:55] Speaker 05: True. [00:47:56] Speaker 05: Then that wouldn't reveal that there would be no revealing that that has some connection to the grand jury investigation. [00:48:05] Speaker 04: That's true. [00:48:06] Speaker 04: That's not this case we would submit. [00:48:09] Speaker ?: OK. [00:48:10] Speaker 04: The last point, and I'll be very brief on the exclusion, the district court employed a well-established procedure of accepting an in-camera ex parte declaration in response to an allegation, a speculative allegation, that the government invoked a statutory exclusion. [00:48:30] Speaker 04: This court has not ruled on that. [00:48:36] Speaker 04: procedure in the context of exclusions, but the Sixth and Third Circuit have. [00:48:41] Speaker 02: Why would we say anything about it in this case? [00:48:46] Speaker 02: Little advisory opinion. [00:48:49] Speaker 04: I agree. [00:48:51] Speaker 04: There's really no reason in this particular case in the district court review the material found no exclusion. [00:48:58] Speaker 04: The government will submit on its paper and ask that the court affirm the district court judgment below. [00:49:04] Speaker 01: All right, thank you. [00:49:05] Speaker 01: Why don't you take two minutes, Mr. Light? [00:49:16] Speaker 03: Thank you. [00:49:17] Speaker 03: Let me start with the grand jury portion. [00:49:23] Speaker 03: This court's [00:49:24] Speaker 03: been pretty clear about what is required in the Washington Post case that I cite in my reply brief. [00:49:33] Speaker 03: This court says that the documents themselves need to reveal the inner workings. [00:49:39] Speaker 03: So how do we know here that the documents themselves would reveal the inner workings? [00:49:45] Speaker 03: We don't know that they were stamped. [00:49:47] Speaker 03: We don't know anything about the contents of them. [00:49:50] Speaker 03: The only thing we know is that they were subpoenaed by a grand jury. [00:49:54] Speaker 03: And if that were the case, that that was enough to exclude them or to make them exempt, then this would cover virtually everything that this court has not construed the statute in that way. [00:50:12] Speaker 03: With respect to the pen register, I think a lot of, [00:50:24] Speaker 03: difficult line drawing questions about what exactly is going to count under the pen register statute if the court finds it to be an exemption three statute, such as what's in the application versus what's in the order. [00:50:40] Speaker 03: What about an FBI document that incorporates the same information? [00:50:45] Speaker 03: We would suggest that the court doesn't need to decide all of those today. [00:50:50] Speaker 03: It's fairly straightforward here. [00:50:52] Speaker 03: We're talking about an FBI document that is not the order, that contains information, hard to say exactly what it is, but perhaps of the nature of how they would go about installing the device online. [00:51:07] Speaker 03: Any of that kind of information, if the government has [00:51:10] Speaker 03: Concerns about that revealing an ongoing investigation could be withheld under 7A. [00:51:17] Speaker 03: If it's information that would reveal law enforcement techniques could be revealed under 7E. [00:51:24] Speaker 03: What we're dealing with here is a very narrow category of things that neither of those exemptions were asserted for. [00:51:31] Speaker 03: And there is no discernible reason that the statute would prohibit that information from being released. [00:51:40] Speaker 01: Thank you.