[00:00:01] Speaker 01: Case number 16-5170, Judicial Watch, Inc. [00:00:05] Speaker 01: Appellate versus United States Department of State. [00:00:07] Speaker 01: Ms. [00:00:08] Speaker 01: Burke for the appellate, Mr. Shaw for the appellate. [00:00:48] Speaker 01: Good morning, Your Honors. [00:00:49] Speaker 01: Lauren Burke, arguing for the Appellant Judicial Watch. [00:00:52] Speaker 01: I've reserved two minutes of my time for rebuttal. [00:00:55] Speaker 01: And if it may please the Court, unless there's any questions specifically to the facts, I'll jump right to the issues at hand. [00:01:02] Speaker 01: The crux of the case that's before the Court today is that the State Department knew or should have known what documents the Appellant was seeking in a FOIA request. [00:01:12] Speaker 04: I'm interested in knowing what they were. [00:01:14] Speaker 04: I had in front of me here [00:01:16] Speaker 04: any and all records that identify the number of names of all current and former officials or employees of the U.S. [00:01:21] Speaker 04: Department of State from January 20, 2009 to the President who used email addresses other than their assigned quote state.gov email addresses to conduct their state business. [00:01:33] Speaker 04: They sent back and said look we've heard we didn't find any such documents. [00:01:37] Speaker 04: What kind of document did you expect to get with that kind of request other than the list that they looked for and don't have? [00:01:43] Speaker 01: Your Honor, as I would argue that the request is clear, not that it's seeking a specific list. [00:01:49] Speaker 04: It's not clear to me at all what that request, other than what they look for. [00:01:54] Speaker 04: Since I don't find it clear, tell me what it is you expected to get when you sent that request. [00:01:58] Speaker 01: It's seeking records that would identify officials or employees that... Give me an example. [00:02:03] Speaker 04: The example would be the list that they don't have. [00:02:06] Speaker 04: They looked for it and didn't have it. [00:02:07] Speaker 04: Tell me something that you expected them to have. [00:02:11] Speaker 04: Do you think they are hiding from you here or not finding him? [00:02:15] Speaker 01: Well, perhaps an email that was sent from an official and employee that said, please use my personal email or an email that says it. [00:02:23] Speaker 04: Correct. [00:02:24] Speaker 04: You expect them to look through all the emails they were ever sent without a keyword that would mean you're not looking for a [00:02:33] Speaker 04: I don't understand what it is you think they were supposed to do that they didn't do. [00:02:39] Speaker 04: And I read your brief, and you said, well, this is not right. [00:02:42] Speaker 04: But you don't come up with what it is that would have been right. [00:02:45] Speaker 01: Well, unfortunately, we are on the outside. [00:02:48] Speaker 01: They are on the inside. [00:02:49] Speaker 01: They would know the key search terms. [00:02:50] Speaker 01: There was multiple communications, correspondence, telephone calls explaining what we were looking for, and that would be records. [00:02:57] Speaker 04: Explain to me right now what it is that you think they could have searched that they didn't do. [00:03:03] Speaker 01: I believe that they could have bound or... No, no. [00:03:05] Speaker 04: Tell me what they could have found. [00:03:07] Speaker 04: Tell me what they could have done to find me. [00:03:10] Speaker 01: Again, I argue that they're... I don't know exactly what their search was. [00:03:14] Speaker 01: I know that they used key terms. [00:03:16] Speaker 04: I don't care what their search was right this minute. [00:03:18] Speaker 04: I'm asking you what it is you think they should have done that they didn't do. [00:03:21] Speaker 01: I believe that they should have searched for records that would have identified employees or officials. [00:03:26] Speaker 04: I don't know what that means, unless you mean they're supposed to look at every single email sent by any department of public. [00:03:32] Speaker 01: I'm not saying that they don't need to look. [00:03:35] Speaker 04: What do you think you are saying? [00:03:36] Speaker 04: What kind of search could they have conducted here? [00:03:38] Speaker 01: Again, I'm unable to answer that question because I'm not on the inside of the statement. [00:03:43] Speaker 03: Therefore, you may be very much unable to win this lawsuit. [00:03:45] Speaker 03: What are you asking for? [00:03:46] Speaker 03: I mean, it's not a clear request, nor is the attempt to revise it clear. [00:03:55] Speaker 03: I mean, all this reading this, we don't know what you're asking for. [00:03:58] Speaker 01: We're seeking records that would identify individuals that use non-state.gov email addresses as for to conduct... And they said there was no such thing. [00:04:11] Speaker 01: They said there was no such thing as a document that listed all employees. [00:04:15] Speaker 03: Well, what else are they supposed to look for? [00:04:17] Speaker 03: There are records that could... What are the records you think they have that they haven't disclosed? [00:04:22] Speaker 01: There could be emails or there could be internal memos. [00:04:25] Speaker 01: There could be discussions. [00:04:27] Speaker 03: There could be. [00:04:28] Speaker 03: And they said there weren't any of the people who use personal addresses for business for a list of the where. [00:04:36] Speaker 01: They limited their search to a single document, which likely does not exist. [00:04:41] Speaker 03: Well, the only other way to do it then is to go through everybody's emails. [00:04:45] Speaker 03: Millions. [00:04:47] Speaker 01: Which is why we provided the clarification saying that there's... Well, the clarification didn't help. [00:04:51] Speaker 03: Well, go ahead, tell me what it means, because I didn't get it. [00:04:54] Speaker 03: What did the clarification mean to say? [00:04:57] Speaker 01: It was meant to say this is back and forth communication between councils, several emails and phone calls, that what we were looking for was not the entire expanse of the entire State Department's email system, but rather documents that would show there are individuals that this is an ongoing [00:05:18] Speaker 01: practice. [00:05:18] Speaker 03: It could be some kind of a list, right? [00:05:21] Speaker 01: Not a list, no. [00:05:23] Speaker 03: Really, I work in an institution. [00:05:25] Speaker 03: I used to be chief judge. [00:05:26] Speaker 03: If I got the request, I don't know what you're talking about. [00:05:29] Speaker 03: I called everybody in the building in and said, everybody sit down now. [00:05:33] Speaker 03: Who has a Gmail account? [00:05:36] Speaker 03: Everyone raise your hand if you use it for business. [00:05:38] Speaker 03: And then I create a list and give it. [00:05:39] Speaker 03: Is that what you're talking about? [00:05:40] Speaker 01: That's not what we're talking about. [00:05:41] Speaker 01: Again, we clarified that we're not looking for every single or the entire expansive world of State Department emails and going through all of that. [00:05:48] Speaker 01: We don't want to burden the agency. [00:05:52] Speaker 01: how it can be for example for example we were able to find just through google search that there are oh i g reports that somewhere there is documents we're going to come in and follow a request for oh i d reports of a certain nature of description that they could look for we did not resubmit a request to such extent because there is some information that identifies the document [00:06:27] Speaker 04: You have that description. [00:06:29] Speaker 04: then why in the world did you not file a FOIA request asking for that document or documents of which you have a description? [00:06:36] Speaker 04: Why didn't you tell us when you briefed us? [00:06:38] Speaker 01: Because we did not resubmit a FOIA, a new FOIA request because we were engaging in ongoing communication and thereby we forestall filing a new, submitting a new request because in good faith we were communicating back and forth with the State Department with the understanding that they were- You're not at the appellate stage. [00:06:58] Speaker 04: You're at the- [00:06:59] Speaker 04: submitted any such request if you have a description for that. [00:07:03] Speaker 04: And Judge Edgerton, I've been on a case before where there was a federal employee who was using private email. [00:07:08] Speaker 04: The for you seeker in that case came in and sought the emails from that person on that server. [00:07:16] Speaker 04: And they could, we could tell what they were looking for. [00:07:18] Speaker 04: Here we, we have no idea what you're looking for, anyone within the department. [00:07:22] Speaker 01: Respectfully, I would argue that my client has a number of FOIA requests that maybe are more specific or anything, but we're here before the court for their unreasonable, strict interpretation and for their lack of good faith in continuing to communicate with us. [00:07:50] Speaker 04: I don't see anything you meant. [00:07:52] Speaker 01: But they didn't end it there. [00:07:53] Speaker 01: They continued the conversation, and for several months, we continued the conversation with them and worked with them and reformulated. [00:07:59] Speaker 03: Counsel, that just can't be a response. [00:08:02] Speaker 03: If you know you may come to court, you may be having nice conversations, but any attorney knows, I may have to go to court. [00:08:09] Speaker 03: I better create a record. [00:08:11] Speaker 03: And you can't come in and say, well, I had genial conversations with them, and gee, no. [00:08:16] Speaker 03: I mean, if you really think there's something [00:08:18] Speaker 03: from those conversations that indicates their documents you wanted them to get in and they're not doing it, then you need to make the record. [00:08:25] Speaker 01: And we don't have it. [00:08:27] Speaker 01: We do have the record. [00:08:28] Speaker 01: There is emails. [00:08:28] Speaker 03: So we're trying to tell you that what we have makes no sense in terms of a search, because we can't figure out how to do it. [00:08:35] Speaker 03: And Judge Centella and I have both been chief judges here, and so we've seen stuff like this. [00:08:39] Speaker 03: We can't imagine what you're talking about. [00:08:43] Speaker 03: As far as the request? [00:08:45] Speaker 03: The search, yeah, what you're asking for. [00:08:47] Speaker 03: If we're on the receiving end, I'm in the State Department, I wouldn't know what you're talking about, other than what they gave you. [00:08:55] Speaker 01: I would argue that they are in an attempt to avoid production of records and delay any kind of resubmission. [00:09:03] Speaker 03: The only way you can avoid production of records is you have to start by showing these are the records that they're trying to avoid. [00:09:11] Speaker 03: That's where we get lost. [00:09:13] Speaker 03: I don't know what records you think it is they're trying to hide. [00:09:18] Speaker 03: Unless you're talking about reviewing everybody's email and you make everybody come in and report whether they're using private or personal accounts and then require them to submit everything. [00:09:31] Speaker 01: I don't know what you're talking about. [00:09:32] Speaker 01: There would be some records showing that there is personal use of emails and production of such records would be responsive to our request. [00:09:44] Speaker 04: What kind of record is it you think there is? [00:09:48] Speaker 04: Now this is, boy, about the fifth time you've been asked that. [00:09:51] Speaker 04: What kind of record do you think there is? [00:09:54] Speaker 04: You said you think there's some kind of record that would show that. [00:09:57] Speaker 04: What kind of record would show that other than the list that doesn't exist? [00:10:01] Speaker 01: There could be an internal memo discussing [00:10:05] Speaker 01: employees that are using it. [00:10:07] Speaker 01: There, again, could be an email or an internal report. [00:10:12] Speaker 01: Those would be things that are outside the grasp of what may exist, because we're not within the State Department. [00:10:19] Speaker 01: They are, and those records, I believe, would be responsive to show that there is the existence of... They told you that there is a circuit, nothing. [00:10:30] Speaker ?: There is no... [00:10:30] Speaker 01: They told us that there is no list, but that was what they limited. [00:10:34] Speaker 01: It also goes to the adequacy of the search, which is an argument. [00:10:37] Speaker 01: They have not informed us how many. [00:10:39] Speaker 04: What did they not do that you think they were supposed to do to conduct an adequate search? [00:10:45] Speaker 01: We believe that they should at least inform us what, in response to the search terms that they used, how many documents perhaps were pulled. [00:10:55] Speaker 01: In their determination, maybe it wasn't a list. [00:10:58] Speaker 04: Well, they did give you the search terms they used, right? [00:11:01] Speaker 01: They gave us the search terms, but they did not inform us how many documents were retrieved based on the search terms. [00:11:11] Speaker 02: Thank you, Your Honor. [00:11:13] Speaker 02: Mr. Shaw? [00:11:23] Speaker 00: Willie Shaw for the State Department. [00:11:25] Speaker 00: May it please the Court? [00:11:28] Speaker 00: Just now Judicial Watch said that one of the things that maybe it did want was email or internal reports discussing the practice of unofficial email use. [00:11:39] Speaker 00: Now if that's what they actually wanted, they certainly could have drafted a FOIA request that would have gotten at that. [00:11:45] Speaker 00: They could have asked for [00:11:46] Speaker 00: reports discussing the practice of unofficial email use. [00:11:50] Speaker 00: There are other potential requests they could have submitted. [00:11:52] Speaker 00: They could have asked for emails sent to or from particular addresses or records from investigations or disciplinary proceedings against State Department employees. [00:12:02] Speaker 00: But that's not what they asked for. [00:12:04] Speaker 00: What they asked for was [00:12:05] Speaker 00: the number and names of all current and former officials. [00:12:09] Speaker 00: Now, it's not unreasonable to ask for that record. [00:12:12] Speaker 00: I mean, it is possible that record could have existed. [00:12:14] Speaker 00: If, for example, the State Department had conducted a department-wide review of this practice, then it's possible that would have produced such a record. [00:12:23] Speaker 00: Now, in fact, there is no such record. [00:12:26] Speaker 00: But that doesn't make the original request unreasonable. [00:12:31] Speaker 00: I think that ultimately the principle that decides this case is the principle this court announced in Miller v. Casey, which is that an agency must read a FOIA request as it was drafted and not as either agency officials or the requester wish it was drafted. [00:12:48] Speaker 00: If the court has no further questions, then we ask that the panel affirm the district courts. [00:12:55] Speaker 02: I do have one question, and that is why you didn't rely on [00:13:01] Speaker 02: The provision with respect to electronic records which says in responding under this paragraph to a request for records, an agency shall make reasonable efforts to search for the records in electronic form or format except when such efforts would significantly interfere with the operation of the agency's automated information system. [00:13:24] Speaker 02: Now did you think about relying on that or is that something that goes to a different [00:13:28] Speaker 00: I am not familiar with that provision. [00:13:33] Speaker 00: And I'm not sure if there was any discussion of relying on that provision. [00:13:36] Speaker 00: But certainly, the declaration that was filed in this case did explain why any meaning other than the plain meaning interpretation that the State Department relied on would have made the request unreasonably for the agency to process. [00:13:51] Speaker 02: Well, it looks like this provision was written for this case. [00:13:55] Speaker 02: In other words, it would significantly interfere [00:13:58] Speaker 00: Right. [00:13:59] Speaker 00: I'm not familiar with that provision, but I think this court's precedent gives an independent basis for declining to process a FOIA request based on due burden. [00:14:11] Speaker ?: OK. [00:14:11] Speaker 03: Any questions? [00:14:11] Speaker 03: No. [00:14:13] Speaker 00: OK. [00:14:13] Speaker 00: Thank you. [00:14:15] Speaker 02: Thank you. [00:14:15] Speaker 02: Does Ms. [00:14:15] Speaker 02: Burke have any time left? [00:14:18] Speaker 02: All right. [00:14:19] Speaker 02: Does anyone have any questions? [00:14:21] Speaker 02: No. [00:14:22] Speaker 02: All right. [00:14:22] Speaker 02: Then the case is, thank you.