[00:00:00] Speaker 03: Case number 17-5042, Reporters Committee for Freedom of the Press at L Appellants versus Federal Bureau of Investigation at L. Ms. [00:00:09] Speaker 03: Townsend for the Appellants, Mr. Busa for the Appellees. [00:00:15] Speaker 00: Good morning, Your Honors. [00:00:15] Speaker 00: May it please the Court. [00:00:18] Speaker 00: The issue before you today is whether the FBI carried its burden on summary judgment to demonstrate beyond material doubt that it conducted a search reasonably calculated to uncover all relevant documents in response to three FOIA requests submitted by the Associated Press and the Reporters Committee for Freedom of the Press concerning FBI impersonation of members of the news media. [00:00:41] Speaker 04: Counsel, may I ask you, what do you think is your best argument that the [00:00:50] Speaker 00: I would. [00:00:51] Speaker 00: It's so hard to pick just one, Your Honor. [00:00:53] Speaker 04: I just want you to pick the best. [00:00:56] Speaker 00: I think in view of the record before this court, which is replete with positive indications of overlooked materials and locations that the FBI, which location, which specifically, which location you think is the most obvious? [00:01:11] Speaker 00: I would list the following. [00:01:12] Speaker 00: Your Honor, I think the FBI did not search the offices responsible for responding publicly to the outcry. [00:01:19] Speaker 00: in October of 2014. [00:01:21] Speaker 00: The Office of Public Affairs, Your Honor, the Office of the Director. [00:01:27] Speaker 00: I think the failure to search the Office of the Director, given that FBI Director, at that time, Comey, took the unusual step of writing a letter to the editor in November of 2014. [00:01:38] Speaker 04: Is that your best argument that the Director's office wasn't searched? [00:01:42] Speaker 00: I think, Your Honor, that looking at the record as a whole, there are numerous other positive indications of overlooked materials. [00:01:50] Speaker 00: I think if we look to the Inspector General's report, for example, which we were unaware of until September of 2016, [00:01:58] Speaker 00: That indicates that the Inspector General reviewed more than 2,000 pages of records concerning the Seattle Timberline investigation alone, which is far different from the fewer than 300 pages of records that were... But which locations? [00:02:15] Speaker 01: I think Judge Silverman's question. [00:02:17] Speaker 01: So the Director's office, what else specifically in terms of where to search? [00:02:22] Speaker 00: We've identified the St. [00:02:24] Speaker 00: Louis field office as well as other specific field offices that were previously identified in a public filing as having used network investigative techniques like those used in the Seattle Timberline case. [00:02:37] Speaker 00: We pointed to the offices responsible for responding to congressional inquiries in light of Senator Leahy and Senator Grassley's correspondence to the FBI concerning the Seattle Timberline office. [00:02:50] Speaker 00: We pointed to the fact that the FBI failed to locate any documents concerning the creation of its interim policy concerning impersonation of the news media, notwithstanding the fact the Reporters Committee expressly requested [00:03:05] Speaker 00: all records concerning the FBI's guidelines and policies concerning undercover operations and activities in which a person may act as a member of the news media. [00:03:16] Speaker 00: And I want to stress, Your Honor, that [00:03:19] Speaker 00: Under FOIA, the requester has an obligation to reasonably describe the records that the requester is seeking. [00:03:27] Speaker 00: But in the 1974 amendments to FOIA in which Congress set out that requirement, it also made clear that the agency was required to use its expertise and its knowledge to identify the locations. [00:03:41] Speaker 04: How could they do any better than providing every office they were searching with your request, with your exact FOIA request? [00:03:49] Speaker 00: I think with respect to the structure of the search that was conducted by the FBI, the requests were divided into two groups. [00:04:01] Speaker 00: The Reporters Committee, in fact, did not request only records related to the Seattle Timberline incident. [00:04:06] Speaker 00: It used that as an example to seek all records concerning any incident in which the FBI had utilized [00:04:14] Speaker 00: links or what appear to be links to these media articles. [00:04:17] Speaker 04: Why would the FOIA request itself be the appropriate thing to send to the offices, assuming that you sent it, the FBI sent it to all the appropriate offices? [00:04:29] Speaker 00: Well, I don't, I understand your question Judge Silberman. [00:04:34] Speaker 00: With respect to the adequacy of the declarations, the FBI has indicated that with respect to the components, that it tasked with searching for group two records, and as well as group one records. [00:04:46] Speaker 00: So the operational technology division, for example, it provided just the verbatim text of the FOIA requests. [00:04:53] Speaker 00: There's nothing. [00:04:54] Speaker 04: How can you do any better than that? [00:04:55] Speaker 00: We're not objecting to the FBI providing the verbatim text of the FOIA request. [00:05:06] Speaker 00: What we object to is, with respect to the adequacy of the affidavits, we do not know what those components then did. [00:05:12] Speaker 00: We don't know what search terms were then utilized by those components to search for responsive records. [00:05:18] Speaker 00: I think that this case in that respect is very similar to Morley against CIA. [00:05:23] Speaker 00: in which the court found an affidavit inadequate. [00:05:26] Speaker 00: This court found an affidavit inadequate because it merely identified the components that were searched but did not identify the search terms that were utilized by those components or the search performed. [00:05:38] Speaker 04: I was a little confused about what the phrase search terms meant. [00:05:43] Speaker 04: Although we use it over and over in our cases. [00:05:45] Speaker 04: But it's not clear to me whether that's a linguistic phrase. [00:05:51] Speaker 04: Is that what it is? [00:05:52] Speaker 00: I think that for electronic records, I think search terms means the actual terms that are utilized to search an electronic record system. [00:06:01] Speaker 00: So for example, with respect to the central record system, we know that the FBI used three search terms related to Timberline to search that central record system at the litigation stage. [00:06:13] Speaker 00: But we have no indication of the nature of the search that was performed within the components, places like the operational technology division that's not included in the affidavit. [00:06:22] Speaker 00: So we don't know if that search was electronic, of electronic records. [00:06:29] Speaker 00: We don't know if it was of paper records. [00:06:30] Speaker 00: If it was of electronic records, we do not know what search terms were utilized. [00:06:35] Speaker 00: We do not know which of the components turned up records as opposed to which of the components did not. [00:06:42] Speaker 00: We know because no records were identified with respect to the [00:06:47] Speaker 00: first Reporters Committee for your request that OTD did not turn up any records, but for the rest of the components, we don't know what the results were. [00:06:55] Speaker 00: And again, that's similar not only to, I would say, Morley, but this court's very far more recent decision in Aguilar in which the adequacy of the affidavit was challenged in this court. [00:07:05] Speaker 00: Chief Judge Garland held it was inadequate because it did not identify that type of information. [00:07:13] Speaker 00: I would also point the court. [00:07:15] Speaker 00: I know I mentioned the 2,000 pages of records that were reviewed by the inspector general in connection with its investigation into the Seattle Timberline investigation alone. [00:07:27] Speaker 00: I would also note that we pointed out to the district court specific documents that were mentioned in the inspector general's report that were not included on the Vaughn index and were not provided to appellants in response to their FOIA requests, which suggests they were not located. [00:07:42] Speaker 03: I'm a little confused about the dates. [00:07:44] Speaker 03: Does that part of the argument turn on your ability to challenge the date of search? [00:08:00] Speaker 03: Is that dependent on the date of search issue? [00:08:03] Speaker 00: I don't think so, Your Honor. [00:08:05] Speaker 00: We learned during the course of litigation in the second. [00:08:09] Speaker 03: If we think your challenge to the Dave search cutoff is forfeited here, can you still rely on the Inspector General report? [00:08:23] Speaker 00: I think we can, Your Honor, because what we utilize the Inspector General's report for is to point to the fact that there were its evidence of positive indications of overlooked materials. [00:08:35] Speaker 00: So in other words, the Inspector General's gathered information in response to presumably the public outcry surrounding the Seattle Timberline incident [00:08:47] Speaker 00: in the fall of 2014. [00:08:49] Speaker 00: Now we know now that in December that the FBI utilized... But the Inspector General reports were after, came after the cutoff dates. [00:08:59] Speaker 00: That's true, Your Honor, except the documents that we cited to you, the specific documents, predate that. [00:09:05] Speaker 00: So the specific documents are from 2007. [00:09:07] Speaker 00: So while the Inspector General's report brought those to our attention in September of 2016, they were in the possession of the agency [00:09:14] Speaker 00: certainly before the December 2014 and January 2015 search cutoffs that were utilized by the FBI. [00:09:24] Speaker 00: And I would take this opportunity, Your Honor, to stress that we think that those search cutoff dates are arbitrary and unreasonable. [00:09:30] Speaker 03: What about whether your argument about them is worth it? [00:09:33] Speaker 03: Because you say in your reply brief in footnote two, [00:09:39] Speaker 03: You say that you preserve that argument, but I couldn't find it in the blue brief, in your opening brief. [00:09:46] Speaker 03: Did I miss it? [00:09:48] Speaker 00: No, Your Honor, we think that that argument has been fully preserved. [00:09:50] Speaker 00: We raised this issue at the district court level. [00:09:54] Speaker 03: I agree with that, but where did you raise it? [00:09:56] Speaker 03: You have to raise it in your opening brief here. [00:09:59] Speaker 00: Your Honor, I think that under the circumstances where we have raised it at the district court level, where the district court- You can ignore it in the opening brief? [00:10:08] Speaker 00: Well, I think, Your Honor, that we would take the position that to the extent that it is an argument that the FBI is relying on, which we know that it is, to justify the search that it conducted, to argue that the search that it conducted was adequate, we think we fully are entitled to respond to it in our reply brief, which we did. [00:10:29] Speaker 00: I would say that [00:10:33] Speaker 00: given the fact that it was fully raised before the district court. [00:10:38] Speaker 00: And in fact, Judge Leon, at the district court level, rejected that argument. [00:10:42] Speaker 00: He concluded that the data search cutoffs were reasonable. [00:10:46] Speaker 03: See, that's why we require those arguments to be made in your opening brief here. [00:10:51] Speaker 00: I understand, Your Honor. [00:10:52] Speaker 00: And I think that those arguments are part and parcel of the entire reasonableness inquiry. [00:10:58] Speaker 00: I think this Court has made clear, both in McKeehee and Judge Taylor, in your opinion, in Public Citizen, that it is the agency's burden to justify the reasonableness of its search. [00:11:09] Speaker 03: I've written about a dozen Public Citizen pieces. [00:11:11] Speaker 03: Which one? [00:11:12] Speaker 00: Public Citizen against Department of State. [00:11:14] Speaker 03: I've probably got three of those. [00:11:17] Speaker 03: I can narrow it a little more. [00:11:18] Speaker 00: Out of date. [00:11:20] Speaker 00: It is. [00:11:23] Speaker 00: uh... two seventy six after six thirty four uh... two thousand to your honor thanks uh... in that i say that what was the point [00:11:33] Speaker 00: Both public citizen and this court's prior decision in McKee, he addressed the reasonableness of the use of a date of search cutoff that was far distant and removed from the actual date in which, I would say in this case, searches were conducted, but certainly when records were released in response to the request. [00:11:57] Speaker 00: So in this case, [00:11:59] Speaker 00: No records were released to the Associated Press or the Reporters Committee prior to litigation. [00:12:04] Speaker 00: There were searches that were run at the litigation stage, which means after August of 2015, and there were no records released. [00:12:12] Speaker 04: Council, are you challenging the statement in the affidavit as to when the search was started? [00:12:17] Speaker 00: I am challenging the affidavit state that the searches were initiated on those dates. [00:12:24] Speaker 00: We know for a fact from the record, Your Honor, that they were not completed until well after litigation because there were searches that were conducted at the litigation stage. [00:12:34] Speaker 00: It is puzzling to us and we did not learn until well into litigation that these data search cutoffs were utilized. [00:12:40] Speaker 00: these data search cutoffs, which I actually shouldn't. [00:12:43] Speaker 04: Now wait a minute Council, suppose an agency starts a date of search on January 1st, 2017. [00:12:57] Speaker 04: And then litigation develops. [00:13:00] Speaker 04: And so a year later, Council for the Government [00:13:09] Speaker 04: Gee, before we go to court or while we're in court, go back and make absolutely certain you got everything in your initial search. [00:13:17] Speaker 04: Are you suggesting that then you've shifted the date to that later point? [00:13:23] Speaker 00: No, Your Honor, that's not what we're suggesting. [00:13:25] Speaker 00: What we're suggesting, and I would make the point, too, that we're not taking the position that it's improper for the government to ever, under any circumstances, use the date that it initiated a search as a cutoff for that search. [00:13:38] Speaker 00: However, in circumstances such as these, where we were wholly unaware that the state was being used until well into litigation, and in fact, no records were released to us until over a year past those date of search cutoffs. [00:13:50] Speaker 00: eight months later into litigation, I think that raises at least a material factual dispute as to the adequacy or the reasonableness of the use of the state funds. [00:14:01] Speaker 04: They could have been fighting inside as to how much they'd turn over. [00:14:04] Speaker 00: They could have, Your Honor, but there's no indication on the record what was done during that time period. [00:14:09] Speaker 00: There's nothing in the decorations to indicate that. [00:14:11] Speaker 00: I'd like to reserve the remainder of my time for rebuttal. [00:14:13] Speaker 03: Sure. [00:14:21] Speaker 02: Good morning and may it please the court, Joe Buse on behalf of the government. [00:14:25] Speaker 02: I'd like to begin by highlighting why the FBI's search was reasonable. [00:14:30] Speaker 02: There were a number of overlapping FOIA requests in this case. [00:14:34] Speaker 02: Some of them were reasonably well-defined in a concrete context. [00:14:38] Speaker 02: So, for example, when searching for [00:14:40] Speaker 02: Media impersonation to deliver a surveillance tool in the Timberline case, the case we know about. [00:14:46] Speaker 02: The agency was able to search both the central record system and the Seattle field office, obtain the full investigative file in that case, and go through page by page and identify every single responsive record. [00:14:59] Speaker 02: Similarly, when searching for policy and training documents related to media impersonation, the agency was able to go to several divisions in charge of maintaining and implementing those policies and training documents, the inspection division, the training division, the office of general counsel. [00:15:16] Speaker 02: The agency identified the policies that applied at the time and that were within the search cutoff dates in this case. [00:15:25] Speaker 02: But then there's a separate set of requests that is more nebulous and asks for information not even known to exist. [00:15:32] Speaker 02: I'm here referencing the so-called Group 1 search for documents about media impersonation to deliver surveillance technology in general. [00:15:41] Speaker 02: In other cases, other than the different ones. [00:15:43] Speaker 04: Just media impersonation. [00:15:44] Speaker 04: It doesn't have to be electronic. [00:15:46] Speaker 02: No, actually, Your Honor, I believe the Group 1 search was specifically about delivering surveillance technology. [00:15:51] Speaker 02: Media impersonation in order to do that. [00:15:53] Speaker 04: Yes, yes, but Group 2. [00:15:55] Speaker 04: One of the requests asked for any policies relating to impersonation of media, right? [00:16:04] Speaker 02: That's exactly right, Your Honor, and the search conducted of the inspection division, the training division, the Office of General Counsel turned up several policy and training documents related to [00:16:14] Speaker 02: that kind of complex investigative tactic. [00:16:19] Speaker 03: But it didn't turn up any other instances, right? [00:16:21] Speaker 03: Any other one. [00:16:21] Speaker 02: That's correct. [00:16:22] Speaker 02: Any other instances, yeah. [00:16:23] Speaker 02: That's correct. [00:16:24] Speaker 03: But that request... Well, see, the argument the Reporters Committee makes about that is they cite cases like Aguiar, Oglesby, Debru, Morley. [00:16:35] Speaker 03: We've got a lot of these cases which say that... They all say basically that passing along the FOIA request to the office isn't enough. [00:16:44] Speaker 03: that the agency needs actually describe how the search was done. [00:16:50] Speaker 03: That's what all these cases say, right? [00:16:52] Speaker 03: You agree with that, right? [00:16:53] Speaker 03: Isn't that what they said? [00:16:54] Speaker 02: So they do say that, Your Honor, but I think it's important to highlight they say it in a specific context. [00:16:58] Speaker 03: Well, they say it in the context. [00:17:00] Speaker 03: I mean, there's four or five of them here, and they all require that it be that it be described. [00:17:06] Speaker 03: And in [00:17:08] Speaker 03: In paragraphs 38 to 45 where they describe this search in the affidavit, there's no description at all. [00:17:19] Speaker 03: All it says is that it lists the divisions that the FBI thought would be responsive. [00:17:28] Speaker 03: It said, it distributed the substance of the FOIA request to those offices, and it asks each to search. [00:17:35] Speaker 03: And then the last sentence says, it says, it completely concludes by saying, it advised us that they found nothing. [00:17:45] Speaker 03: There's no description of how it was done. [00:17:49] Speaker 03: There's no search terms, there's no specific description, and every one of these cases, in fact this affidavit, I went back and looked at the affidavit in Aguiar in that case, they're identical. [00:18:05] Speaker 02: Your honor, I think it's important to identify the difference in the context between this case and all of your prior cases talking about search terms. [00:18:14] Speaker 02: All of those cases are asking for specific information about an identifiable individual or code word or, you know, [00:18:22] Speaker 02: AGIAR context for administrative warrants known to exist within a single investigative file. [00:18:28] Speaker 02: So if you're dealing with that kind of concrete request for information in... Well, that could be. [00:18:34] Speaker 03: You could be right about those cases, but here there's nothing. [00:18:38] Speaker 03: I mean, it seems to me the affidavit could have said, look, this is more difficult. [00:18:42] Speaker 03: This is a generic search. [00:18:44] Speaker 03: That's a generic question, but here's specifically what we did to overcome that. [00:18:48] Speaker 03: Here's how we searched the documents. [00:18:50] Speaker 03: Here's what we looked for. [00:18:51] Speaker 03: Did we look – I mean, for example, did they search for the word malware? [00:18:56] Speaker 03: Did they search for media impersonation? [00:19:00] Speaker 03: We don't know anything about that. [00:19:01] Speaker 03: We don't know at all what they did. [00:19:03] Speaker 02: Your Honor, we know that when they were searching the central record system, they did search for the term media impersonation, but to step back and look at the targeted search. [00:19:10] Speaker 03: Wait a minute, how, why do we know that? [00:19:11] Speaker 02: We know that from the second party declaration saying that- You specifically asked for media impersonation. [00:19:16] Speaker 02: In the central record system, yes, Your Honor. [00:19:18] Speaker 04: Well, nowhere else, is that nowhere else? [00:19:20] Speaker ?: Yeah. [00:19:21] Speaker 02: So we don't know what specific search terms every single employee in the operational technology. [00:19:26] Speaker 03: That's exactly the point. [00:19:29] Speaker 03: Without the search terms, without the description of how it was done, the FOIA seeker has no way of challenging the adequacy of the search. [00:19:40] Speaker 03: And that's what our cases say. [00:19:42] Speaker 02: But again, Your Honor, in the context of a concrete piece of information known to exist in documents and a specific record, it is reasonable to require specific search terms to be provided. [00:19:51] Speaker 03: Do we have a case that says that this rule we have, that we've stated at least five times, that the agency has to actually describe how the search was done? [00:20:00] Speaker 03: Can you cite a case which says that's not so in a situation where the request is, as you put it, what? [00:20:09] Speaker 03: More generic, is that your point, or less defined? [00:20:12] Speaker 02: Your honor, I don't think you've ever addressed that situation before either way in your precedence. [00:20:17] Speaker 02: But just to explain why I think it actually is reasonable to describe the search at the level of detail that these affidavits do, here we searched, by my count, at least eight different offices and divisions of the FBI. [00:20:30] Speaker 01: But we don't know how. [00:20:32] Speaker 01: I mean, isn't that Judge Tatel's question? [00:20:35] Speaker 02: That is Judge Tatel's question. [00:20:36] Speaker 02: But I think that it's important to recognize the level of detail that would be required if you were to say that the affidavits have to explain every system of records that were searched in those offices and all the search terms. [00:20:49] Speaker 02: So for example, if the bills search. [00:20:51] Speaker 01: But then we don't know. [00:20:52] Speaker 01: I'm sorry to interrupt you for example. [00:20:53] Speaker 01: But we then don't know how the search was conducted. [00:20:56] Speaker 01: The mere fact that certain places [00:20:59] Speaker 01: were contacted and did something doesn't tell us how it was done in those places. [00:21:06] Speaker 01: And I'm questioning, or I have a question about how the context of a case really affects that. [00:21:13] Speaker 01: Okay, we're searching for something specific, we're searching for something more general or vague, but the affidavit could still, in the latter kind of case, describe with specificity what was done. [00:21:25] Speaker 02: So I don't think so, Your Honor, for the following reason. [00:21:29] Speaker 02: If you're searching for something nebulous and vague not known to exist, as these affidavits indicate, the employees were all told to use their best judgment to find these records. [00:21:38] Speaker 02: The FOIA office would have a hard time defining ex ante, what are the best search terms to use when you're searching Kathy's email inbox or Bill's personal file system on a shared drive, say, in a given division. [00:21:50] Speaker 02: Those employees would know best how to go about that specific. [00:21:54] Speaker 04: Why would you describe exactly how they did it? [00:21:57] Speaker 04: Your Honor, I think... This is not an ex-post problem. [00:22:02] Speaker 04: It's an ex ante. [00:22:03] Speaker 04: How did you do it? [00:22:04] Speaker 04: What did Office X use as the search terms based on the FOIA request? [00:22:12] Speaker 04: Your Honor, in this case... Most obvious, of course, is medium personation. [00:22:17] Speaker 02: Your Honor, what we know is that in this case, many employees throughout the operational technology division were asked to reform searches of their own emails, for example, or their own systems of records or their own file cabinets, for example. [00:22:31] Speaker 02: They would actually search every single retrievable system of records. [00:22:34] Speaker 02: In that instance, if the FBI were required to list in gory detail every system of records that was searched and every search term every employee used, I think you'd see an affidavit that would go on at more length than you've [00:22:46] Speaker 02: required before each time. [00:22:47] Speaker 01: But I guess maybe it's a front end question, which is should they be given more specific direction on the front end of what and how to search? [00:22:56] Speaker 02: I think that's right, Your Honor. [00:22:58] Speaker 02: That is the question. [00:22:59] Speaker 02: And I think it's actually more reasonable to tell each individual employee, look, we're searching for a nebulous concept. [00:23:04] Speaker 02: We don't know if there's other instances. [00:23:06] Speaker 02: We need you to use your best judgment about how it has to go. [00:23:09] Speaker 04: Why is it so nebulous? [00:23:10] Speaker 04: Why is it so nebulous? [00:23:11] Speaker 04: Media impersonation doesn't seem very nebulous to me. [00:23:17] Speaker 02: I say nebulous, Your Honor, only because it's in, say, a context we don't know about. [00:23:21] Speaker 02: So, for instance, in the Timberline search, we can find the Timberline case file and go through it page by page as we did. [00:23:26] Speaker 02: If you're searching for other instances not known to exist, when a search of the central record system reveals nothing. [00:23:32] Speaker 04: No, it's not so much instances. [00:23:33] Speaker 04: It's a question of policy. [00:23:35] Speaker 04: What is the policy in the FBI, or what was the policy at the time of the cutoff date? [00:23:41] Speaker 04: with respect to media impersonation. [00:23:43] Speaker 02: Oh, Your Honor, for those, we found a number of policies that apply. [00:23:47] Speaker 02: From reading the Office of Inspector General's report, there's every reason to believe we identified every policy that applied to the 2007 instance. [00:23:56] Speaker 02: Of course, there's an argument to be made about the interim report that came out in 2015. [00:24:00] Speaker 04: I'm not talking about the 2007 incident. [00:24:02] Speaker 04: I'm talking about the general policy. [00:24:05] Speaker 04: Your Honor, again... I'm puzzled about why the... [00:24:09] Speaker 04: The head office wasn't looked at. [00:24:14] Speaker 04: The director's office. [00:24:16] Speaker 02: Why not? [00:24:18] Speaker 02: Your Honor, as a starting position, the FOIA office can restrict itself to the four corners of the FOIA request, and nothing about these FOIA requests pointed to the office of the director as a place likely to have responsive materials. [00:24:33] Speaker 04: But... With respect to the basic policy of media impersonation or not? [00:24:38] Speaker 04: I'm impressed I'm influenced by the fact that many years ago when I was Deputy Attorney General, and maybe even Acting Attorney General at the time, I found the secret and confidential files of J. Edgar Hooves in the outer office of the Director. [00:24:53] Speaker 03: Your Honor, I think that... You weren't suggesting, by the way, in response to Judge Silverman, that the FOIA requester has to identify the offices to be searched within the agency? [00:25:04] Speaker 03: No, Your Honor, I'm just referring to... I don't understand your point. [00:25:07] Speaker 03: I'm referencing... You said the requester has an obligation to be specific. [00:25:14] Speaker 03: You limit yourself to the four corners of the request. [00:25:16] Speaker 03: I agree with that. [00:25:18] Speaker 03: But that doesn't mean there's no obligation for the requester to say, I want you specifically to search the following divisions of the FBI. [00:25:28] Speaker 02: I agree, Your Honor. [00:25:29] Speaker 02: So then what's your point? [00:25:34] Speaker 04: wouldn't search the director's office, when the question is, what is the policy of the FBI with respect to media impersonation? [00:25:42] Speaker 02: Because those policies are maintained and implemented by the other divisions of the FBI. [00:25:47] Speaker 02: There's no reason to think that when we searched the inspection division, the training division, the Office of General Counsel, there was something else we were missing that would have been found in the office of the director, but would not have been found anywhere else. [00:25:57] Speaker 02: There are no positive indications of overlooked materials regarding that question, Your Honor. [00:26:02] Speaker 03: Let me just ask you a related question to what Judge Sorensen is asking. [00:26:06] Speaker 03: So the affidavit says that when it searched for Timberline, it listed a bunch of, the Harding Declaration lists a bunch of divisions, like where they thought they'd find documents. [00:26:19] Speaker 03: the behavioral analysis unit, the training division and national covert operations. [00:26:26] Speaker 03: Okay, so that they thought they would reasonably likely to have that. [00:26:31] Speaker 03: Okay, but the Hardy declaration doesn't explain why they weren't searched for other incidents. [00:26:38] Speaker 03: In other words, why would the FBI think that those three were reasonably likely to have documents about Tenderloin, but were not reasonably likely to have documents about other incidents of immediate impersonation? [00:26:56] Speaker 02: Your Honor, my understanding is that the inspection division, the train division... Let's ask you in two parts. [00:27:00] Speaker 03: Do you agree with me? [00:27:02] Speaker 03: My first point is the affidavit doesn't explain it. [00:27:06] Speaker 03: It doesn't give a reason for that. [00:27:08] Speaker 03: It doesn't go on and say, well, we didn't search those three because it just isn't there. [00:27:12] Speaker 03: There's no explanation. [00:27:14] Speaker 03: You agree with that, right? [00:27:15] Speaker 03: No, I don't think so, Your Honor. [00:27:16] Speaker 02: I think that for those specific divisions, we searched for the policy and training documents regarding media impersonation in general for the specific group one request about media impersonation to deliver a technology, a piece of technology. [00:27:30] Speaker 02: We went to the office that is in charge of developing, implementing, authorizing development of the deployment of that specific piece of technology. [00:27:37] Speaker 02: And I think the Hardy declarations make that quite clear. [00:27:41] Speaker 04: But let me continue on this question of policy. [00:27:45] Speaker 04: If a new director of the FBI comes in and wouldn't he or she wish to know what the policy is with respect to impersonation of the media in investigations? [00:27:58] Speaker 04: And that sort of puzzles me that nowhere is there indication of what the policy is. [00:28:05] Speaker 04: Before the cutoff date? [00:28:06] Speaker 04: No, Your Honor, we identified many policy and training documents and produced them to the... Concerning whether or not the FBI agents were authorized to impersonate media in terms of your investigation? [00:28:24] Speaker 02: The answer is no, those documents don't specifically address that. [00:28:27] Speaker 02: And the OIG report actually explains why that would be the case. [00:28:30] Speaker 02: The OIG report explains that there was no policy specifically on point regarding media impersonation specifically at the time of 2007 until the interim policy was released in 2015. [00:28:42] Speaker 02: So it's not surprising that the search did not reveal policies specifically about media impersonation, Your Honor. [00:28:50] Speaker 02: I see my time is drawing short, and so. [00:28:55] Speaker 03: I don't think you have any more questions here. [00:28:58] Speaker 02: No, thank you, Your Honor, and we'll just ask that you affirm. [00:29:02] Speaker 03: How much time does Ms. [00:29:03] Speaker 03: Townsend have left? [00:29:07] Speaker 03: You could take a minute. [00:29:10] Speaker 00: I'll just respond briefly. [00:29:14] Speaker 00: to the argument that the Group 1 search, which consisted of the Reporters Committee's first request, which was for all incidents of news media impersonation involving the use of links or websites that appear to be news media websites, that that was nebulous and sought records that were not known to exist. [00:29:34] Speaker 00: where that falls apart is the fact that we provided as an example the Seattle Timberline case. [00:29:41] Speaker 00: Certainly Seattle Timberline documents fell within that category, and yet the sole search of one office, the operational technology division, failed to locate those documents. [00:29:53] Speaker 00: At that point, I think the FBI should have said, obviously, our search method here is not adequate, because they pointed us to a specific incident of media impersonation, and our search for everything didn't turn up any records related to that incident. [00:30:08] Speaker 00: Thank you very much, Your Honor. [00:30:09] Speaker 03: Thank you both. [00:30:10] Speaker 03: The case is submitted. [00:30:12] Speaker 03: We will take a brief recess.