[00:00:01] Speaker 00:
Case number 16-5138, Citizens for Responsibility and Ethics in Washington Appellant versus United States Department of Justice.

[00:00:09] Speaker 00:
Mr. Sobel for the appellant, Mr. Hathman for the appellee.

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Good morning, Your Honors, and may it please the Court, David Sobel for Appellant Crew.

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And I'd like to reserve two minutes of my time for rebuttal.

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The district court reached erroneous conclusions with respect to both the Exemption 5 claim and the agency's privacy claims.

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Five and a half years ago, the FBI articulated numerous exemption claims with respect to the documents.

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But Exemption 5 was not among the claims that the agency articulated.

[00:01:24] Speaker 01:
Can I just make sure I understand the facts?

[00:01:28] Speaker 02:
Certainly.

[00:01:29] Speaker 01:
I mean, as I understand it, the document, there's only one document that they're claiming Exemption 5 for.

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Six pages of one document.

[00:01:38] Speaker 01:
That's correct.

[00:01:38] Speaker 01:
Six pages of one document.

[00:01:40] Speaker 01:
And it seems to be pretty core attorney-client, work-product, deliberative process, whatever you want to call it, type of material, kind of the crown jewels, so to speak, this description of why the FBI ultimately and or DOJ were ultimately going to decline prosecution of delay, correct?

[00:02:05] Speaker 02:
I'm not sure I would characterize it as so clear, Your Honor.

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That's the agency's assertion.

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the agency has asserted that.

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But of course, it's appellant's position that that argument had been waived.

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So I'm not prepared to go to the merits of it because our position is that the merits are not properly before the court.

[00:02:25] Speaker 01:
Well, I guess what I'm trying to understand factually, though, is that the

[00:02:36] Speaker 01:
I guess is the position of, is your position that there's no human error here?

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Because human error is one grounds for, I guess, relief from the waiver.

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And if there's not human error here in the kind of classic context of we didn't know that this document existed before, and now that we do, we're claiming an exemption for it, then what is your exact understanding of the facts or the position here?

[00:03:13] Speaker 02:
Your Honor, if your question concerns whether or not there has been human error, I can't answer that question.

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The government has not asserted that.

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It didn't.

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The government doesn't assert either one of the MEDAC exceptions, correct?

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That is correct, Your Honor.

[00:03:29] Speaker 03:
So we're talking about the new exception created by the district court, right?

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They're not claiming mistake, and they're not claiming change in law, right?

[00:03:40] Speaker 02:
That is correct, Your Honor.

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In fact, the district court expressly found that there had been no mea culpa, as the court put it, or any explanation as to why this occurred.

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So can I ask you, let's assume it doesn't fit within any of the four squares of any of the exceptions that have been laid out before.

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What's served by, what purpose is served by applying waiver of forfeiture here?

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If we know, if no one's making an argument about whether the document's in fact a privilege, the document in fact is privilege, no one is making an argument that the district court has to undergo some burden that it wouldn't otherwise have undergone because the district court went ahead and addressed the merits.

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So what, I'm not saying that it's not, I don't want to deal with precedent right now.

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I'm just saying, what purpose is served by applying forfeiture in this context?

[00:04:30] Speaker 02:
Well, I think it's all about precedent.

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I mean, I think it's this court's interest as it has expressed it in judicial finality.

[00:04:38] Speaker 04:
Well, then suppose I read our precedent to say that these are two exceptions.

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that we've recognized before, but nothing in that, it's not a statute, nothing says we can't recognize another exception if a circumstance comes before us that says, here's a situation in which it just doesn't make sense to apply forfeiture.

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Suppose I read the precedent to say that.

[00:04:55] Speaker 02:
I suppose the court could do that, but I wonder what that exception is and why it wouldn't apply to virtually any situation in which the agency.

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Well, but first of all, you agree, don't you, in response to Judge Srinivas?

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The Maydak exceptions are not the only, the court doesn't say these are the only two, right?

[00:05:14] Speaker 03:
No.

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They don't.

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It doesn't say that.

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So.

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No, that's correct.

[00:05:17] Speaker 03:
OK.

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So courts can fashion third or fourth exceptions to MEDAQ, right?

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As long as they're not inconsistent with you.

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I suspect theoretically that's correct.

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But I am.

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Why theoretically?

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I don't understand.

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Well, the court should do what it does.

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That, of course, is clear and undisputed.

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The question is what that standard would be that the court could possibly articulate in this case where the agency has offered no explanation.

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The agency explicitly itself cited MEDAQ

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Let's just assume the agency's explanation is complete mess up.

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This was something that we always should have recognized was privileged.

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We just messed up.

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It turns out it's privileged.

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We should have asserted the exemption.

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We just didn't.

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But there's no purpose served by applying forfeiture in this context because there's no burden.

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Nobody's got a cost.

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The district court didn't undergo a burden because the district court went ahead and addressed it on the merits.

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So there's just no purpose to it.

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There is a cost.

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There's no judicial finality, as the fact that we're back here the second time indicates.

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But there's never judicial finality whenever you have an exception to forfeiture.

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So the question is, why not?

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You already have some exceptions to forfeiture.

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Why wouldn't you have one here if there's no cost being

[00:06:28] Speaker 04:
Well, Your Honor, maybe I don't understand the question, but I think that could always be said that there's no cost if... No, I don't think so, because if a district court feels that it's been burdened, and then the district court says, you know, I don't want to go down this, you should have raised this a long time ago, I don't want to go down this, and the district court says for whatever reason there's a burden here, then I don't know that an appellate court is in a position to tell a district court, look,

[00:06:55] Speaker 04:
You know, we don't agree with you that you've been burdened, but here we have the opposite circumstance in which the district court went ahead and addressed it.

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And I'm just not, I'm not saying that you lose, I'm just wondering what is the purpose being served by applying forfeiture here?

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Well, I think as the court has articulated, there are two fundamental policy considerations.

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One is judicial finality, which is the court's interest.

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But from the requester and the public interest, it's promptness of resolution of requests for documents.

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And I don't think there can be any argument that this has not been a process that has been prompt.

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I mean, if the agency can continually go back to the drawing board and sort of try out one argument, and if it doesn't succeed,

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come back with a new exemption argument, then there's no end to the process and it's not prompt.

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I guess with respect to promptness, it's just that we've already under, we've already had that cost in this case because we've already reached the merits in the district court.

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So I just, I don't understand, I'm not sure I follow what the purpose is at this stage of the proceedings in this case where this case stands, what is served by applying forfeiture.

[00:08:03] Speaker 04:
That's what I'm not completely understanding.

[00:08:04] Speaker 02:
Well, again, it's promptness, it's judicial finality, it's everything this Court has addressed, and to make an exception under these circumstances would, in my view, render MADOC a dead letter.

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I mean, I don't know what's left of MADOC if under the circumstances present here.

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Any agency could belatedly, five and a half years after the initial proceeding, come back on remand and raise another exemption claim in the first instance in the district court.

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So I think those are the interests that the court has clearly articulated in the past.

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Do you have any questions about that?

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I was going to move you on to the – are you okay?

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Yeah.

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Okay.

[00:08:44] Speaker 03:
I want to change subjects and take you to the 7C question.

[00:08:47] Speaker 02:
Yes, Your Honor.

[00:08:48] Speaker 03:
And specifically, I want to ask you about the Rudy Scanlon – the Rudy – the documents relating to Rudy Scanlon and the names on the press releases, okay?

[00:09:00] Speaker 02:
Yes.

[00:09:01] Speaker 03:
And – okay.

[00:09:04] Speaker 03:
So we know from crew one that they all have privacy interests in the contents of their files, right?

[00:09:12] Speaker 02:
Well, Your Honor, I don't think the status of the third party privacy interests were really addressed head on in crew one.

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But as a general matter, yes, there are privacy interests to consider.

[00:09:24] Speaker 03:
So what I want to ask you about is the second part of the Favish element, which is that the information is likely to advance the public interest, which is strong.

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Crew 1 says there's a powerful public interest here.

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Correct.

[00:09:41] Speaker 03:
Okay.

[00:09:42] Speaker 03:
So tell me exactly how revealing these files, these particular files, with respect to these people is, quote, likely to tell us anything about how the government acted with respect to delay.

[00:10:00] Speaker 02:
Your Honor, I think the government and the FBI and the district court themselves really provided the reason to that.

[00:10:08] Speaker 02:
What is the reason?

[00:10:09] Speaker 03:
What is the reason?

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Tell me.

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That's the question I'm asking you.

[00:10:12] Speaker 02:
Well, what they said was that that information would reveal more about Mr. Delay's activities.

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And of course, Mr. Delay's activities and his associations and his connections were at the heart of the investigation.

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So if there's a public interest in understanding the strength of the evidence that was weighed as the court recognized there was in Crew 1,

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then understanding those connections and associations and relationships is critical.

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I would refer the court to one page from, this is the cover page of the document that's most at issue in this case, the document from which the Exemption 5 withholdings have been made.

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This is in the Joint Appendix at 296.

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It's a partially redacted document, but you see that there are names redacted.

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There are the privacy exemptions claimed.

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And to answer the judge's question specifically in terms of what the names would reveal,

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The document says, blank, conspired with Delay to commit on its services fraud.

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So this was a conspiracy investigation, and if the names of the individuals other than Mr. Delay, who were alleged and investigated for possible conspiracy, are not revealed, particularly individuals who have already been convicted,

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and therefore, in our view, have a very small, if any, privacy interest, then it's clear what the public interest is in understanding the nature of that relationship as it was investigated by the FBI.

[00:11:51] Speaker 04:
Can I ask one follow-up question on that?

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So this document, if we identify the person who's alleged, who's thought to have perhaps conspired to come in on a services fraud, we don't know that

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whatever we already know is public about that person necessarily maps onto the description here.

[00:12:10] Speaker 04:
We don't.

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But this illustrates the importance of names generally that have been withheld.

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Now, there might need to be a balancing made if these names are not individuals who have been identified in the record.

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primarily those who were named in the press releases and who were convicted.

[00:12:30] Speaker 02:
If it's some third party that none of us have ever heard of up until this time, then maybe there is an argument that that should be a hotel.

[00:12:37] Speaker 04:
I guess my point is this.

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Suppose that we know that it is actually a name that has been identified in a press release or something.

[00:12:43] Speaker 04:
We still don't know that

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what has – what was the identification – let's say it was a press release that identified the person with respect to something other than what's described here, then there's still a privacy interest in not being associated with the description here.

[00:12:59] Speaker 02:
I'm not sure I understand what that privacy interest is.

[00:13:01] Speaker 04:
I mean, this is the government's – It's the same one that exists for someone who hasn't been named, which is that they don't want to be implicated in this conduct.

[00:13:07] Speaker 02:
But the government itself, the FBI, has said this was a wide investigation involving a tapestry of relationships of individuals.

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This was part and parcel of one investigation.

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As this document itself says, this was the delayed piece of the larger investigation.

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So I'm not clear what harm would result.

[00:13:28] Speaker 04:
So your view is that as long as someone's been publicly identified as involved in this investigation in some way,

[00:13:34] Speaker 04:
whatever documents, whatever the documents say about that person, they have no longer a privacy interest.

[00:13:40] Speaker 02:
Whatever the documents say with respect to their involvement in the criminal investigation that was relevant to the FBI's conclusion.

[00:13:47] Speaker 04:
Even if the stuff that's in the document that sought to be disclosed has nothing to do with the public release.

[00:13:55] Speaker 04:
They were charged with

[00:13:56] Speaker 04:
you know, viewing a pornography.

[00:13:57] Speaker 04:
There's some suspicion that they're viewing a pornography.

[00:13:59] Speaker 04:
There's just stuff in the 302s or whatever, or other documents that don't have anything to do with the subject of the public release.

[00:14:05] Speaker 02:
Your Honor, if it had nothing to do with the investigation that was being conducted into Mr. DeLay and his relationships as they related to corruption investigations, then maybe there would be that argument.

[00:14:16] Speaker 02:
Okay.

[00:14:16] Speaker 02:
But that doesn't appear to be the case.

[00:14:19] Speaker 02:
Okay.

[00:14:19] Speaker 02:
I elect to reserve the rest of my time.

[00:14:20] Speaker 02:
Thank you, Your Honors.

[00:14:22] Speaker 03:
Okay, thank you.

[00:14:27] Speaker 05:
May it please the Court, we'll have them on behalf of the Department of Justice.

[00:14:31] Speaker 05:
This appeal presents two issues, both of which the District Court resolved correctly, and just to begin with the Exemption 5 issue.

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The District Court did not commit an abuse of discretion in this case when it concluded that, when it allowed the FBI to invoke Exemption 5 on remit.

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And what the District Court did is it recognized the general presumption that this Court has announced.

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that agencies ought not to be allowed to do so in normal circumstances, but recognize the circumstances of this case warranted an exception.

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And that is because the district court concluded that the exemption obviously applied to the material at issue and indeed crew did not dispute

[00:15:07] Speaker 03:
But you agree, right?

[00:15:09] Speaker 03:
Neither of the articulated exceptions in MEDAC apply to this case.

[00:15:14] Speaker 05:
Well, I'm not sure that that's right.

[00:15:17] Speaker 05:
There's not information on the record on that point.

[00:15:20] Speaker 03:
The government doesn't claim either one of them, does it?

[00:15:24] Speaker 05:
Well, we did not claim below, and we have not asserted in our brief that this was an error or that.

[00:15:31] Speaker 03:
Yeah, right.

[00:15:32] Speaker 03:
OK, so that's number one.

[00:15:34] Speaker 03:
And you haven't claimed change in law or anything, correct?

[00:15:37] Speaker 05:
That's correct.

[00:15:38] Speaker 03:
OK, so we now agree, and we all agree that, at least I do, that the two exceptions in MADAC were not

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made acting limited to those two.

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Courts can articulate.

[00:15:51] Speaker 03:
That's right.

[00:15:52] Speaker 05:
As this court described it in August, Maidak announced a flexible approach to these questions.

[00:15:57] Speaker 03:
Yeah, exactly.

[00:15:58] Speaker 03:
So how do you, how do you, doesn't the

[00:16:02] Speaker 03:
approach the district court here to just eviscerate the MEDAC?

[00:16:08] Speaker 03:
It allows agencies to assert exemptions later in the proceedings.

[00:16:19] Speaker 05:
It did in this case, but I do not think that it is fair to characterize that as an evisceration of MADAC.

[00:16:25] Speaker 05:
And the district court recognized that there would be circumstances in which this would not be permitted.

[00:16:31] Speaker 05:
But the court recognized that because this did not cause any delay to the proceedings, and the district court did make a finding on that fact.

[00:16:38] Speaker 05:
That's on page 307 of the joint.

[00:16:39] Speaker 03:
What do you do with our decision in

[00:16:43] Speaker 03:
Washington Post versus HHS, where we said even with a litigation would not be shortened.

[00:16:49] Speaker 03:
It doesn't make any difference because efficiency cannot be purchased at the expense of fairness, the timeliness rule,

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is concerned not just with efficiency in a given case, but also with efficiency in the long run.

[00:17:04] Speaker 03:
That's what we said in Washington Post.

[00:17:06] Speaker 03:
So it doesn't really make any difference, at least under our case law, whether or not the request would delay the particular case.

[00:17:16] Speaker 05:
I think that that is a fair characterization of the Washington Post case, although I do note that in the Washington Post case, the plaintiff in that case, Washington Post, did dispute that the newly invoked exemption, it was exemption four, but it was also a privilege claim, did apply.

[00:17:32] Speaker 05:
And there was a long back and forth in the district court proceedings over whether it applied, and Washington Post continued to maintain on appeal.

[00:17:38] Speaker 04:
And I think that that is relevant to... So that goes to delay in the particular case, but if Washington Post speaks in terms of long-term delay as a linchpin of why you would apply the forfeiture rule, how do you distinguish that for purposes of this case?

[00:17:52] Speaker 05:
Well, I would do it in the same way that the court did a year later in the Senate of Puerto Rico case.

[00:17:57] Speaker 05:
And that was a case where there was indeed a delay.

[00:17:59] Speaker 05:
caused by the new invocation of an exemption.

[00:18:03] Speaker 05:
But what the district court held in that case was that the delay or that the newly invoked exemption was not done for purposes of delay.

[00:18:11] Speaker 05:
It was done in good faith.

[00:18:12] Speaker 05:
And even though the question had already been briefed, even though summary judgment had already been briefed in that case on the 7A issue, the district court allowed an entirely new round of briefings on newly invoked exemptions.

[00:18:23] Speaker 04:
So that also has to do with the possibility of delay in the particular case.

[00:18:27] Speaker 04:
I guess what I'm struggling with is

[00:18:29] Speaker 04:
How do you square the recognition of an exception, not an exemption, an exception here that allows the exemption to be asserted with the language that Judge Tatel pointed to in Washington Post dealing with long-term consequences?

[00:18:43] Speaker 05:
Well, this court has endorsed a flexible approach to these questions.

[00:18:47] Speaker 03:
And one of the questions that I think if you look at it... Well, flexibility doesn't mean that we can ignore Washington Post.

[00:18:53] Speaker 03:
Washington Post says the delay question is a long-term issue, not case-specific.

[00:18:58] Speaker 05:
And I understand that point.

[00:19:00] Speaker 03:
And the district court invoked it in a case specific way in this case.

[00:19:05] Speaker 05:
That is true, but I also think that a number of other factors have been deemed relevant by this court as to whether or not to permit these sorts of belated exemptions.

[00:19:13] Speaker 03:
And one of them is whether this was an attempt to gain the system, whether it was an attempt... The district court thought there was no evidence of gainsmanship because the criminal division had invoked exemption five, right?

[00:19:23] Speaker 05:
That's right.

[00:19:24] Speaker 03:
But the district court also, I mean, I don't understand that.

[00:19:27] Speaker 03:
I mean, the district court itself says that the FBI and the criminal division made their own independent judgment.

[00:19:35] Speaker 03:
in responding to Cruz's FOIA request.

[00:19:38] Speaker 03:
It was a, quote, decentralized process.

[00:19:41] Speaker 03:
So just because the criminal division doesn't mean that there wasn't any gamesmanship.

[00:19:47] Speaker 03:
I don't know whether there was gamesmanship or not.

[00:19:50] Speaker 03:
That's irrelevant.

[00:19:51] Speaker 03:
But the district court said there isn't gamesmanship because the criminal division invoked Exemption 5.

[00:19:57] Speaker 03:
And that makes no sense because the district court himself said these two offices operated totally independently.

[00:20:03] Speaker 05:
I don't know if it's fair to say that it makes no sense.

[00:20:05] Speaker 05:
I mean, both the DOJ and the Criminal Division were represented by DOJ counsel below.

[00:20:10] Speaker 05:
And I also think that there is another factor that goes to gamesmanship, which is, as Crue points out, that the FBI did invoke

[00:20:17] Speaker 05:
fully consistent with its MADAC obligations.

[00:20:20] Speaker 05:
It did evoke various other exemptions below.

[00:20:22] Speaker 05:
And it did make a good faith effort to comply with its MADAC responsibilities.

[00:20:27] Speaker 05:
And this is an exemption that fell through the cracks.

[00:20:29] Speaker 05:
And although that is not information on the record, I do think that that is relevant to the analysis this court has set forth.

[00:20:37] Speaker 05:
This is an exemption that fell through the cracks.

[00:20:38] Speaker 03:
There were thousands of potentially... But you see, of course it did.

[00:20:42] Speaker 03:
But MADAC, that's not

[00:20:45] Speaker 03:
that's not one of the MADAC exceptions.

[00:20:48] Speaker 03:
And if that is an exception, then the two exceptions we articulated in MADAC really don't mean anything.

[00:20:55] Speaker 05:
Again, I don't think that that's right.

[00:20:56] Speaker 05:
And I would urge the court to look at the Senate of Puerto Rico case.

[00:20:59] Speaker 05:
Because I really do.

[00:21:00] Speaker 05:
The Senate of Puerto Rico case, and that is a case where, again, there was an invocation of new exemptions.

[00:21:06] Speaker 03:
By the way, a pre-MADAC case, correct?

[00:21:09] Speaker 05:
No, it's a pre-MADAC case, but it's a post-Washington Post case.

[00:21:13] Speaker 03:
Yeah, but it's a pre-MADAC case.

[00:21:14] Speaker 03:
That's correct.

[00:21:16] Speaker 05:
But because it was a changed circumstance.

[00:21:18] Speaker 03:
It was a changed, completely changed circumstances in that case.

[00:21:22] Speaker 03:
I don't know if that's true.

[00:21:23] Speaker 05:
But in the same situation as here, which is there was an invocation of the exemption 7A.

[00:21:29] Speaker 04:
Now, but the changed circumstance in the Senate case, what was the name of the case again?

[00:21:33] Speaker 04:
The Senate of Puerto Rico.

[00:21:34] Speaker 04:
The Senate of Puerto Rico case.

[00:21:36] Speaker 04:
It wasn't the invocation of the exemption.

[00:21:38] Speaker 04:
That would be true.

[00:21:39] Speaker 04:
If that's the changed circumstance, then the exception spoils the role, right?

[00:21:43] Speaker 05:
Right.

[00:21:43] Speaker 05:
No, I want to be clear.

[00:21:44] Speaker 05:
I think if this court views that as a changed circumstance case, the changed circumstance was that the government had invoked 7A, and then the underlying proceedings and related proceedings went away.

[00:21:55] Speaker 05:
And that is similar to what happened here.

[00:21:57] Speaker 05:
That is, we invoked 7A, the related proceedings went away, and so this court in the last appeal said 7A no longer applies.

[00:22:03] Speaker 05:
And then, on remand, the government invoked a new exception.

[00:22:06] Speaker 05:
And that's what happened, more or less, in Sen.

[00:22:08] Speaker 05:
Puerto Rico, with one distinction, that there was no remand, that this all happened when the case was in district court.

[00:22:14] Speaker 05:
But I do want to emphasize again that that did cause delay to the district court proceedings, but this court concluded on appeal that because the district court had made a finding that this was done in good faith, because the district court had made a finding that there was no attempt to gain the litigation,

[00:22:29] Speaker 05:
that that was not an abuse of discretion.

[00:22:32] Speaker 05:
And what this court would need to do to conclude... Let's go back.

[00:22:35] Speaker 03:
Can we just go back to what MADAC says?

[00:22:38] Speaker 03:
MADAC's the law of this court, the law of this circuit.

[00:22:41] Speaker 03:
The first exception is, first of all, it says it can be an exception in those quote, extraordinary circumstances.

[00:22:50] Speaker 03:
where, for pure human error, it failed to invoke the proper exceptions and will have to release information compromising national security or sensitive personal private information.

[00:23:03] Speaker 03:
Now, none of that applies in this case.

[00:23:05] Speaker 03:
And if the district court's view about this is right, then that exception basically is eviscerate.

[00:23:11] Speaker 05:
I don't think that that's right.

[00:23:12] Speaker 05:
I mean, one of the circumstances that may that contemplates is when the government has made an error.

[00:23:18] Speaker 05:
And that is what happened here.

[00:23:19] Speaker 05:
The government made an error.

[00:23:20] Speaker 05:
And I recognize that that is not in the record below.

[00:23:23] Speaker 05:
But it is a representation that I can make.

[00:23:25] Speaker 03:
Well, we can't deal with that.

[00:23:26] Speaker 03:
I mean, you know, we have a record to deal with.

[00:23:28] Speaker 03:
And besides, the error is not the only thing.

[00:23:30] Speaker 03:
It has to also be release information, compromising national security, or sensitive personal private information.

[00:23:39] Speaker 05:
As this court interpreted that language in the August case, this court interpreted that language as providing a non-exhaustive list and as providing for a flexible approach to these questions.

[00:23:51] Speaker 05:
And this court has always recognized that district courts maintain a great deal of discretion on these issues.

[00:23:57] Speaker 05:
particularly where the district court makes findings of the kind that they made here.

[00:24:01] Speaker 04:
So how did you define, defining the extra, let's say, let's stipulate to the assumption that you need to define an extra exception, that it doesn't fit within any of the two exceptions that were outlined before.

[00:24:12] Speaker 04:
How do you define the extra exception in a way that doesn't render the first two exceptions irrelevant?

[00:24:19] Speaker 04:
What is this category?

[00:24:21] Speaker 05:
stipulating to the fact that we need to create a new exception.

[00:24:26] Speaker 05:
This is a category in which the district court concludes that there is no prejudice to the party who is assertive to the plaintiff in the case.

[00:24:34] Speaker 05:
And that is what the district court concluded here, that there was no prejudice to crew

[00:24:38] Speaker 05:
that this was not litigated during the first proceedings, but that it obviously applied.

[00:24:44] Speaker 05:
It proved in dispute that it didn't apply, that this is important.

[00:24:47] Speaker 05:
It's at the heartland of what Exemption 5 is intended to protect.

[00:24:51] Speaker 05:
And therefore, the court would exercise its discretion to allow it.

[00:24:55] Speaker 05:
And I don't think that this court needs to conclude that it would make the same decision itself.

[00:24:59] Speaker 05:
But this court would need to conclude to reverse the district court's conclusion that that was an abuse of discretion.

[00:25:04] Speaker 03:
Well, district court abuses its discretion when it violates circuit law.

[00:25:08] Speaker 05:
Right, but I think that the district court expressly recognized the MAIDAC responsibilities of the government, recognized the appropriate factors that go into that analysis, and concluded that under the facts of this case.

[00:25:20] Speaker 03:
Let me ask you about 7C.

[00:25:21] Speaker 03:
What's your response to Mr. Sobel's answer to my question about

[00:25:27] Speaker 03:
Why is it likely that this information will tell us anything about the decision not to prosecute Delay?

[00:25:39] Speaker 03:
He said, look, this is a conspiracy.

[00:25:43] Speaker 03:
And that document he read at Joint Appendix 34 says blank, conspired with

[00:25:58] Speaker 03:
Right.

[00:25:58] Speaker 03:
With delay.

[00:25:59] Speaker 05:
That's right.

[00:26:00] Speaker 03:
So what's the argument that that isn't enough?

[00:26:05] Speaker 05:
My argument that it is not enough is that this court has entertained that kind of argument before and it has always concluded that it's not enough.

[00:26:12] Speaker 05:
I would point the court to the Fund for Constitutional Government case.

[00:26:16] Speaker 05:
That was a case in which the plaintiffs were seeking records related to the Watergate scandal.

[00:26:21] Speaker 05:
And just as the plaintiffs here are arguing that there is a conspiracy that knowing the identities of the people at issue would be relevant to the public's learning about a very important matter, the Watergate scandal, this court concluded that that was insufficient.

[00:26:35] Speaker 05:
And this court has always characterized the interest in knowing people's identities

[00:26:41] Speaker 05:
as opposed to the rest of the documents as weak.

[00:26:44] Speaker 05:
And in this court, in the previous appeal of this case, this court, I think, all but recognized that fact.

[00:26:50] Speaker 05:
This court rejected the categorical withholding of all responsive documents.

[00:26:57] Speaker 05:
But it also said, it also recognized, and this is a quote, that disclosure of the identities of private citizens mentioned in law enforcement files constitutes an unwarranted invasion of privacy and thus

[00:27:08] Speaker 05:
Many of the other individuals listed in Cruz's FOIA request have substantial privacy interest in preventing the disclosure of their names in law enforcement files.

[00:27:16] Speaker 03:
And I do also want to pick up... Well, it also said it wasn't deciding the question.

[00:27:19] Speaker 05:
That's right.

[00:27:20] Speaker 05:
So I certainly don't dispute that that was dicta, but I think that it's hard to imagine.

[00:27:23] Speaker 03:
So you mentioned the Watergate case.

[00:27:24] Speaker 03:
Is there another one?

[00:27:25] Speaker 03:
You said there were a couple.

[00:27:27] Speaker 05:
Sure.

[00:27:28] Speaker 05:
I think that it is fair to characterize Cruz's argument here as one that is made in the mind run of these cases.

[00:27:34] Speaker 05:
That is, you have

[00:27:36] Speaker 05:
whenever plaintiffs, or it is common for plaintiffs when they're asserting that they need to know the names of people in law enforcement files, that that will help them not just learn who the people are, but it will help them put together the pieces of what the government has done with respect to those investigations.

[00:27:56] Speaker 05:
And this court, again, has always rejected that fact.

[00:27:59] Speaker 05:
Anything else?

[00:28:01] Speaker 04:
With respect to those people for whom there is some disclosure of their association with the investigation, what's your response?

[00:28:11] Speaker 04:
Because it's not a third party that's remained totally out of the field of vision at that point.

[00:28:15] Speaker 05:
That's true.

[00:28:16] Speaker 05:
They're not totally out of the field of vision.

[00:28:17] Speaker 05:
But my response would be to pick up on a question that you asked my opposing counsel.

[00:28:21] Speaker 05:
There's no showing that the information in these records matches or is any way a tantamount to the same thing.

[00:28:28] Speaker 03:
How would we know unless the district court looked at the document?

[00:28:31] Speaker 05:
The district court did not review the documents in Canva?

[00:28:33] Speaker 03:
Well, that's my question.

[00:28:34] Speaker 03:
We don't know the answer to your question.

[00:28:36] Speaker 03:
It's conceivable, as Judge Srinivasan asked Mr. Sobol, that the information here is absolutely nothing to do with the delay investigation, like maybe looking at pornography.

[00:28:46] Speaker 03:
But suppose these files actually contain specific information about evidence relating to one of the witnesses or one of the people who was convicted or pleaded involved in a conspiracy with delay.

[00:29:02] Speaker 03:
Suppose it showed that.

[00:29:06] Speaker 05:
Again, the information that CREW has pointed to in the public domain is the fact of various people's convictions in certain DOJ press releases.

[00:29:14] Speaker 05:
That's what they've shown.

[00:29:15] Speaker 05:
So with respect to that information that is already in the public domain,

[00:29:20] Speaker 05:
It is certainly true that the people named in the files have a lower interest.

[00:29:24] Speaker 05:
But Crew has made no real attempt to show that the information that it is trying to get matches information in the public domain.

[00:29:33] Speaker 05:
And this court's case law is clear that that is Crew's burden of production.

[00:29:36] Speaker 05:
And the district court, when faced with this kind of argument, said Crew had not met that burden.

[00:29:40] Speaker 05:
is it had not showed that the information that it seeks or that the privacy interests with respect to the people whose identities it wants disclosed is already diminished by virtue of information that's in the public domain.

[00:29:52] Speaker 05:
And this court has again faced that kind of argument before it, faced that kind of argument in the Fitzgibbon case, in which there was information about the person whose identity was at issue already in the public.

[00:30:02] Speaker 01:
Let me just make sure that factually we're on the same page here.

[00:30:08] Speaker 01:
As I understand that there were a couple hundred or so pages of documents that were withheld in their entirety, but those aren't before us on appeal, right?

[00:30:25] Speaker 01:
I thought that all that's before us on appeal are the pages that were provided, but there were redactions of names, as opposed to the pages that were withheld in full.

[00:30:40] Speaker 01:
Am I wrong about that?

[00:30:41] Speaker 05:
All that is on appeal is the exemptions with respect to 7C and 6, and I believe that Your Honor is correct that all of the pages on which that material was at issue are pages that were provided to the plaintiffs but in redacted form, but I'm not positive of that fact.

[00:31:01] Speaker 05:
It may be that there are some pages that were

[00:31:05] Speaker 05:
so sort of rife with private information that they were withheld in their entirety.

[00:31:09] Speaker 01:
And I just don't know.

[00:31:10] Speaker 01:
Well, maybe on rebuttal we can get clarity from appellant on that.

[00:31:15] Speaker 01:
But let's suppose that what we're fighting about here are pages where there were redactions.

[00:31:25] Speaker 01:
I'm putting aside the Exemption 5 issue or the Exemption 7C issue.

[00:31:31] Speaker 01:
And let's suppose

[00:31:34] Speaker 01:
All of the people whose names were redacted on these pages are people who were convicted of some crime as part of this investigation.

[00:31:53] Speaker 01:
Let's suppose that's those artifacts.

[00:31:56] Speaker 01:
What's the argument for why under the balancing that's supposed to take place under 7C that it would be appropriate to redact those things?

[00:32:11] Speaker 05:
I don't want to quibble with the hypothetical, so I will answer it, but then I will quibble with it afterwards.

[00:32:16] Speaker 05:
So the answer is that this Court has always recognized, and the Supreme Court has recognized, that the fact that the public knows something about a person's criminal history does not mean that that person loses all privacy interests in other disclosures with respect to possible crimes that they may have committed.

[00:32:33] Speaker 05:
And you see that in the Reporters Committee for Freedom of the Press case, which of course involved rap sheets, so these were people who were convicted for the...

[00:32:42] Speaker 05:
underlying crimes that were involved in the rap chiefs or at least indicted or otherwise associated in the language of crew.

[00:32:48] Speaker 05:
And I also point again to the Senate of Puerto Rico case, which I do think is really on all fours with this case, because that was a case where the individuals named in the responsive records were people who had been convicted in the related proceedings that had terminated.

[00:33:04] Speaker 03:
I'm a little confused by your answer.

[00:33:06] Speaker 03:
Maybe it's just that I don't understand this, but I thought, I thought the way we were supposed, aren't we all assuming that the name, Sobol, what's the other guy's name?

[00:33:19] Speaker 03:
Sobol, not Sobol, I'm sorry.

[00:33:21] Speaker 03:
Excuse me, Mr. Sobol.

[00:33:27] Speaker 03:
These two named people plus the names in the press release, all right?

[00:33:32] Speaker 03:
All those people have a privacy interest in their files.

[00:33:37] Speaker 03:
We know that.

[00:33:38] Speaker 03:
That's what Crew 1 says, correct?

[00:33:40] Speaker 04:
That's right.

[00:33:41] Speaker 03:
Okay.

[00:33:41] Speaker 03:
So then the question is, how do we balance that against public interest in release, correct?

[00:33:48] Speaker 05:
That's right.

[00:33:49] Speaker 03:
And we know from Crew 1, right?

[00:33:52] Speaker 03:
that the information that the plaintiffs seek here is likely, we know that, is likely to promote that interest, right?

[00:34:01] Speaker 03:
So – but – no, I'm sorry.

[00:34:03] Speaker 03:
We know – we know that there is a weighty public interest.

[00:34:08] Speaker 03:
That's what we know from Crew 1.

[00:34:11] Speaker 03:
We know that there's a privacy interest and a weighty public interest.

[00:34:14] Speaker 03:
The only question – just tell me if I'm wrong – is that – the question is, is what they seek likely to promote the public interest of finding out why Dali was not prosecuted.

[00:34:23] Speaker 05:
That's the question, right?

[00:34:25] Speaker 03:
Okay, and your answer to my question about the conspiracy and the conspiracy and the tapestry and all that is that that's not enough.

[00:34:44] Speaker 03:
The conspiracy, the fact that we know that there was a conspiracy is by itself not enough.

[00:34:50] Speaker 03:
And in support, you cite the Watergate.

[00:34:53] Speaker 05:
That's the right case.

[00:34:54] Speaker 05:
That is right, and I think that it is fair to characterize plaintiffs in these cases as making that argument all the time, and what this Court has said in response to those arguments.

[00:35:04] Speaker 05:
is it has announced a strong presumption that it is even called categorical rule, that the identities of people named in law enforcement files are exempt unless they are needed to corroborate credible evidence that the agency has engaged in illegal conduct.

[00:35:20] Speaker 03:
And again, I think if you- But all the names that I'm talking about, Rudy, Scanlon, and everybody in the press release, they're all in that category, right?

[00:35:27] Speaker 03:
Names are already public.

[00:35:29] Speaker 05:
The people in the press release, yes, although with the caveat that this goes back to Judge Wilkins' question, many of the people named in the press release, including Mr. DeLay's wife and daughter, were never indicted, let alone prosecuted or convicted.

[00:35:43] Speaker 05:
Good point.

[00:35:44] Speaker 05:
And so I don't think it is accurate to say that everyone who is at issue in this case are people whose privacy interests have been reduced in that way, and CREW has made no argument, or CREW has not satisfied its burden,

[00:35:58] Speaker 05:
that anyone who has been, quote, otherwise associated with this case has lost their privacy interest in potentially new information, new damaging information about their possible criminal crimes.

[00:36:09] Speaker 05:
Okay.

[00:36:10] Speaker 05:
Thank you very much.

[00:36:13] Speaker 03:
Okay.

[00:36:13] Speaker 03:
Mr. Sobel, out of time, right?

[00:36:16] Speaker 03:
You can take two minutes.

[00:36:19] Speaker 03:
And maybe you could start out by responding to counsel's citation of this Wargate case.

[00:36:25] Speaker 03:
It says, conspiracy is not enough.

[00:36:28] Speaker 02:
The question is a citation to Fund for Constitutional Government.

[00:36:33] Speaker 02:
I think, as the Court has already recognized, the issue was not addressed in that case.

[00:36:39] Speaker 02:
We discussed this in pages 15 through 16 of our reply brief, the fact that the requester in that case was arguing that because the individuals whose names were at issue were public officials, that they did not have a privacy interest.

[00:36:55] Speaker 02:
There was not the argument that

[00:36:56] Speaker 02:
and those individuals had already been convicted, as is the case here.

[00:37:02] Speaker 02:
And in fact, in summing up the holding, the court said we do not state a per se rule

[00:37:10] Speaker 02:
that in every case where individuals have been investigated but not charged with a crime, that the information is properly exempt.

[00:37:18] Speaker 02:
So that issue was not before the court.

[00:37:20] Speaker 04:
You're not only talking about people who have been convicted, right?

[00:37:24] Speaker 04:
I'm sorry, Your Honor?

[00:37:24] Speaker 04:
We're not only talking about people who have been convicted.

[00:37:27] Speaker 02:
No, but that's an important point to make, that we're talking about people – a number of individuals who are differently situated.

[00:37:34] Speaker 02:
I mean, the government is trying to lump everyone into one per se category, and for some reason they've distinguished Mr. Abramov from everyone else.

[00:37:43] Speaker 02:
So their position, which they haven't explained, is that all third parties except Jack Abramov have to be protected.

[00:37:50] Speaker 02:
But there are individuals who are similarly situated with Mr. Abramov, those individuals

[00:37:55] Speaker 02:
who per the press releases were public – were tried and convicted.

[00:38:00] Speaker 02:
So the government says it's our burden, but we've come forward with our – meet our burden by identifying, I think, at 17 individuals who, as reflected in the press releases, have been convicted.

[00:38:12] Speaker 02:
And the government has not really come back with an answer as to why those individuals should be treated the same as somebody whose name has never publicly surfaced in the context of this investigation.

[00:38:25] Speaker 01:
I guess what I'm trying to understand is the document that's at J.A.

[00:38:32] Speaker 01:
296 that you spoke about in your first party.

[00:38:38] Speaker 01:
It's a summary of why this case is closed.

[00:38:43] Speaker 02:
Correct.

[00:38:45] Speaker 01:
And then it says, at this bottom of the page, it says, the investigation attempted to determine if redacted, conspired to commit honest services fraud by accepting things of value from lobbyists, including Jack Abramoff, et cetera, et cetera.

[00:39:06] Speaker 01:
In addition, the investigation attempted to determine if redacted,

[00:39:12] Speaker 01:
Conspired with delay to commit honest services fraud by providing things of value to delay.

[00:39:21] Speaker 01:
And then it ends.

[00:39:23] Speaker 01:
Correct.

[00:39:29] Speaker 01:
I'm maybe not the sharpest knife in the drawer, but I think I'm pretty smart now.

[00:39:37] Speaker 01:
How is it, if I were to know the names of the people there and the redacted, that that's going to tell me anything about whether the government went easy on Duluth?

[00:39:47] Speaker 01:
Just looking at that.

[00:39:50] Speaker 02:
Well, I think we're all talking somewhat hypothetically, because we don't know what those names are.

[00:39:54] Speaker 02:
But for instance, if those were individuals who were tried and convicted, that's part of the larger picture that is currently not available to the public, that delays relationships with individuals who are ultimately convicted

[00:40:09] Speaker 02:
were investigated and for whatever reason, hopefully we will learn more about the reasons, the underlying reasons for the decision not to prosecute.

[00:40:18] Speaker 02:
But the FBI decided that they didn't have adequate evidence.

[00:40:21] Speaker 02:
I mean, that seems to me that's a pretty large component of the... So they were convicted of something else.

[00:40:31] Speaker 01:
But because they were convicted of something else, that tells us that it's likely then that they actually did commit some crime with respect to delay?

[00:40:42] Speaker 02:
Well, it wasn't something else.

[00:40:43] Speaker 02:
It was part of this larger investigation, which the FBI has always articulated as one large interrelated investigation centering around Abramov.

[00:40:52] Speaker 02:
So if individuals who were convicted of corruption in terms of their relationship with Abramov

[00:41:01] Speaker 02:
investigated with respect to their relationship and involvement with Delay, I would say that's about as relevant as we could imagine to this investigation.

[00:41:11] Speaker 02:
It's not as if we're talking about a child pornography conviction 10 years ago.

[00:41:20] Speaker 02:
We're not trying to tie disparate criminal activity together.

[00:41:26] Speaker 02:
This is part, in the FBI's own telling,

[00:41:29] Speaker 02:
of the same tapestry.

[00:41:31] Speaker 02:
So that's the argument, that this is not unrelated.

[00:41:35] Speaker 01:
And crew one described the public interest here pretty specifically.

[00:41:41] Speaker 02:
It did.

[00:41:41] Speaker 01:
It said that the specific public interest here is material that's going to show what the strength of the case was, so to speak, against the West.

[00:41:55] Speaker 02:
whether the government had the evidence and decided to pull its punches, I think is part of the language.

[00:42:00] Speaker 01:
So just like saying, well, the purpose of the investigation was to determine whether so-and-so, inspired with delay,

[00:42:11] Speaker 01:
And we don't know who the so-and-so was, but if we were to know the so-and-so, that's going to tell us whether they pulled their punches or not.

[00:42:20] Speaker 02:
Potentially, Your Honor, yes, because that then enters into the analysis all of the information that was developed during the trials of the individuals, assuming that these were individuals who were tried and convicted.

[00:42:34] Speaker 02:
So I would say yes.

[00:42:35] Speaker 01:
I can't imagine.

[00:42:36] Speaker 01:
We already know.

[00:42:37] Speaker 01:
You know who was tried and convicted.

[00:42:39] Speaker 01:
We all know that.

[00:42:39] Speaker 02:
Yes, that's the point, but we don't know the extent to which those same individuals were investigated in terms of their relationship with delay as part of the same broad investigation.

[00:42:50] Speaker 02:
So it's clearly a piece of the same picture, and this piece is being obscured.

[00:42:56] Speaker 01:
But I guess we're going to continue to talk past each other.

[00:43:06] Speaker 01:
If you know from from whatever's been revealed in public, whatever the evidence is against these other people.

[00:43:17] Speaker 01:
I don't see how that, you can provide whatever link in the chain from that.

[00:43:26] Speaker 01:
You don't need the names in these documents to show whether or not these people have some additional connection to the delay.

[00:43:38] Speaker 02:
Well, Your Honor, if their names are withheld, if only one name is revealed in these records – two names are revealed in these records at the moment, which are Tom DeLay and Jack Abramoff, it's impossible to assess the – in the agency's words, the connections and associations of Mr. DeLay with anyone else.

[00:43:58] Speaker 02:
So that's the issue.

[00:44:00] Speaker 02:
We're trying to learn the connections and associations that were investigated between Mr. DeLay and, among others, individuals who were convicted.

[00:44:11] Speaker 02:
So that's the best I think I can say in response to the court's question.

[00:44:16] Speaker 03:
Anything else?

[00:44:19] Speaker 03:
No.

[00:44:19] Speaker 03:
Thank you.

[00:44:19] Speaker 03:
Cases submitted.