[00:00:14] Speaker 00: Case number 16-5029. [00:00:17] Speaker 00: Steven Aguilar, Appellant versus Drug Enforcement Administration. [00:00:21] Speaker 00: Ms. [00:00:21] Speaker 00: Hansford for the amicus cari, Mr. Walker for the appellee. [00:00:28] Speaker 01: Ms. [00:00:28] Speaker 01: Hansford. [00:00:30] Speaker 07: Thank you, Chief Judge Garland, and may it please the Court. [00:00:33] Speaker 07: Masha Hansford, Court-appointed amicus in support of Appellant. [00:00:38] Speaker 07: At issue in this case is information that falls at the heart of FOIA's purpose, the very information on which the DEA relied in its extensive official investigation of Mr. Aguilar's activities, an investigation that resulted in his criminal conviction. [00:00:56] Speaker 07: Mr. Aguirre primarily seeks the software that the DEA used in its investigation. [00:01:02] Speaker 07: And it is undisputed in this case that the software is a record within the meaning of FOIA and that no exemptions apply. [00:01:10] Speaker 07: And although the DEA had every opportunity in district court to build a record to establish that this software was not an agency record within its control, it has failed to do so. [00:01:23] Speaker 01: I quite agree with you. [00:01:26] Speaker 01: There's some confusion about what the software is, and I have to signal that's what I'm going to be asking the other side. [00:01:32] Speaker 01: But I'd like to get your view about what kind of software is an agency record and what kind isn't. [00:01:39] Speaker 01: So imagine that your client just asked for their copy of Microsoft Word. [00:01:44] Speaker 01: Yes or no? [00:01:45] Speaker 01: Is that an agency record? [00:01:47] Speaker 07: Microsoft Word would be a record under FOIA. [00:01:51] Speaker 07: Whether it's disclosable would depend on whether it's an agency record, and that would really depend on the facts that came out about the type of contract that Microsoft Word had with the agency and how the agency used Microsoft Word. [00:02:06] Speaker 01: What kind of contract would prevent it from being an agency record? [00:02:12] Speaker 07: Factors that would help the government would be, for instance, if the contract said the software is the intellectual property of Microsoft Word, Microsoft Word retains full control over it and is only giving it to the government for a limited purpose, and then on [00:02:28] Speaker 07: If it limited the agency's ability to dispose of the software, that would go to the use and dispose factor. [00:02:36] Speaker 01: So if it's a site license that can't be distributed outside of the site in terms of what the agreement was, it would not be an agency record? [00:02:43] Speaker 07: That would be one of the factors. [00:02:46] Speaker 07: There are four factors, and it's possible that they would weigh in different directions. [00:02:50] Speaker 01: I'm giving you the hypothetical. [00:02:52] Speaker 01: It's just Microsoft Word. [00:02:54] Speaker 01: It's not any of the documents produced by Microsoft Word. [00:02:57] Speaker 01: It's nothing else. [00:02:57] Speaker 01: We both know exactly what Microsoft Word is. [00:03:01] Speaker 01: Can you give me an answer? [00:03:03] Speaker 01: Weigh them all in your mind, the four factors, and tell me, is it an agency record? [00:03:08] Speaker 07: I cannot, without more information, give an answer. [00:03:11] Speaker 01: So we can't even be sure whether Microsoft, so if a FOIA requester asks every government agency for a copy of their, we'd like a copy of your Microsoft Word, please, we have to have a big discovery on what the question is. [00:03:27] Speaker 01: It's not even an easy answer on that. [00:03:31] Speaker 01: It seems like one you can give up, but you don't have to, but it seems like one that's easy to give up on. [00:03:36] Speaker 07: Given the agency's burden at the summary judgment stage with just that information, I don't believe it would be enough to make all the factors sufficiently point in the direction. [00:03:48] Speaker 07: Ultimately, it may turn out [00:03:50] Speaker 07: that with some more information and some more description of how it uses Microsoft Word and the like, that the agency would be able to meet that burden. [00:03:58] Speaker 07: Also, exemption four likely would apply. [00:04:01] Speaker 07: But I believe that simply that assertion standing alone would not be enough to carry an agency's burden at summary judgment. [00:04:10] Speaker 01: What if the software isn't on the agency's computer at all, but it just contracts with a vendor, pays a vendor, [00:04:19] Speaker 01: With an agreement, vendor says, you give us this amount of money, we will do this for you. [00:04:24] Speaker 01: Would that be an agency record? [00:04:26] Speaker 01: Not the results, but the software itself. [00:04:30] Speaker 07: Again, that would depend on the details of that particular contract. [00:04:34] Speaker 07: And in this case, the district court invited the DEA to provide that information. [00:04:39] Speaker 07: And the district court indicated that certain facts about the contract, if the DEA could establish them, those facts would suffice. [00:04:48] Speaker 07: But the DEA declined to provide that information. [00:04:51] Speaker 07: So again, on this record, summary judgment cannot be sustained to the DEA. [00:04:55] Speaker 07: I readily concede that there are many types of [00:04:58] Speaker 07: contracts once sufficiently described by the agency that would suffice to carry its burden at the summary judgment stage. [00:05:06] Speaker 07: And not nearly all software would be an agency record even before you get into the exemption analysis, which for commercially valuable software of the sort may come out fairly easily for the government, especially given contractual provisions indicating an intent to control by the originator. [00:05:26] Speaker 03: It's the fact that it's a widely used form of software, nationally, internationally, public, private, factory. [00:05:36] Speaker 07: No, I don't believe it's relevant whether it's widely used or not. [00:05:41] Speaker 07: The agencies have had to turn over things like district court opinions. [00:05:46] Speaker 07: Once an agency obtains something by accessing it and relies on it in its decision making, whether the requester could get it through other means isn't the issue. [00:05:59] Speaker 03: No, but I'm trying to figure out. [00:06:00] Speaker 03: There's not much question that district court decisions are governmental records in some form. [00:06:05] Speaker 03: And so the question is, when you have something that's a commercial product, widely available on the market internationally as well as nationally, and the government simply happens to use that generic software and will stipulate they don't modify it in any way, does that factor in? [00:06:32] Speaker 03: software in any relevant way for FOIA purposes. [00:06:34] Speaker 07: It may, once again, it may weigh into the particular factors based on the contracts on which they receive the software. [00:06:42] Speaker 03: Wouldn't you worry a bit about putting too much weight on the software because the government could then just decide, even if it's having [00:06:50] Speaker 03: specialized software made for the government. [00:06:54] Speaker 03: We'd like the vendor who's creating that for us to be sure to include in the contract and the license that, oh, don't turn this over to anybody else. [00:07:03] Speaker 03: So I'm not sure what we rely on, other than if it's a widely available product with consistent contractual terms for private as well as government. [00:07:13] Speaker 03: It's just hard to figure out what Microsoft Word or Microsoft Outlook is telling us about what the government does. [00:07:20] Speaker 07: It is true that if the agency is trying to circumvent FOIA requirements, that would be an issue at least running a file of executive orders, trying to make them more widely. [00:07:31] Speaker 07: But focusing on the software in this case, it is software that the agency relied on heavily that was so integral [00:07:41] Speaker 07: to its official investigation that they actually described it to the jury at Mr. Aguirre's trial. [00:07:47] Speaker 07: It's software that's essential to understand the DEA's investigation in this case. [00:07:52] Speaker 07: So the more generic software at issue is really far-flung here. [00:07:59] Speaker 07: And that is significant because, again, it's the DEA's burden on summary judgment. [00:08:04] Speaker 07: And everything in the record establishes that the software here satisfies these particular factors. [00:08:10] Speaker 07: There aren't really [00:08:11] Speaker 07: the countervailing considerations. [00:08:13] Speaker 07: This is a case where it really does shed light on what the agency is doing. [00:08:18] Speaker 03: Can you clarify something for me? [00:08:19] Speaker 03: I get that he wants the software. [00:08:22] Speaker 03: Does he want also or the alternative that the software be identified? [00:08:28] Speaker 03: Or does he just actually want the software? [00:08:31] Speaker 03: He's talking about a government contract here which would just identify the software. [00:08:35] Speaker 07: He is seeking the actual software so he can use it and apply it to the data in the way the DEA itself did and so he can view the data that was provided in the very ways the DEA itself viewed that data. [00:08:50] Speaker 03: And so he doesn't, he wouldn't be satisfied by them identifying software that he himself could obtain on the market. [00:08:56] Speaker 07: No, the ability to obtain something from a different source does not satisfy an agency's obligation. [00:09:02] Speaker 07: Here it's undisputed that the software is a record and so the presumption of disclosure applies and the agency needs to establish that it's not something that it [00:09:11] Speaker 03: controls in order. [00:09:30] Speaker 03: is Acme Super Cheapo and it always gets it wrong. [00:09:35] Speaker 03: The fact that that's a software, you may want the software, but knowing which software they use, would that itself be an agency record? [00:09:45] Speaker 07: Information about? [00:09:47] Speaker 07: In the contract itself. [00:09:49] Speaker 07: If there's some record that contains that information, absolutely. [00:09:52] Speaker 07: And that could be something that a requester is seeking. [00:09:55] Speaker 07: But what Mr. Aguirre here is seeking is more than that. [00:09:58] Speaker 07: He's seeking the actual software, which will also convey information about which software the government uses. [00:10:05] Speaker 07: But going back to the tax analyst example, [00:10:10] Speaker 07: The district court opinions were undisputedly not records when they were within the courts and the requester could have pulled the district court opinions from other sources, but they were still entitled to get them from the agency because once the agency accessed them and relied on them in official agency decision-making, they became records. [00:10:33] Speaker 03: Even something as generic as Microsoft Word or some generic processing program could itself reveal information about how the government did its job if, for example, they were using something known to be very outmoded or unreliable, even if it were generic and you had to contract and these types of things. [00:10:55] Speaker 03: wouldn't your theory then require disclosure, even with something like Microsoft Word? [00:11:00] Speaker 07: That's right, and it could, but depending on the particular record the agency built about its control and depending on exemptions, there may be situations where something like Microsoft Word would be revealed. [00:11:11] Speaker 07: And it's hard to draw a bright line rule, which is the situation we're in, given the government's failure to carry its burden here. [00:11:18] Speaker 01: I still want to see if I can find a bright line rules here. [00:11:23] Speaker 01: Imagine that what the agency does is input street addresses into Google Maps over the internet. [00:11:32] Speaker 01: Is Google Maps a government record? [00:11:35] Speaker 07: Likely not. [00:11:37] Speaker 01: So imagine that there's something like Google Maps that puts in longitudinal latitude. [00:11:42] Speaker 01: Instead of typing in your address, you type in longitudinal latitude, and there's some program on the internet that you can go to. [00:11:48] Speaker 01: Type it in. [00:11:49] Speaker 01: That's it. [00:11:50] Speaker 01: That's all that happens. [00:11:51] Speaker 01: Same, likely not. [00:11:54] Speaker 07: The reason that I say likely not has to do with the kind of, the contract and the terms of access that are likely governing that, that are likely to be governing that software. [00:12:06] Speaker 07: It's not impossible that just because software has a certain basic functionality does not mean it could not be a record. [00:12:13] Speaker 01: No, but I'm telling you what the example is. [00:12:15] Speaker 01: All the agency does, they don't pay for it just like they don't pay for Google Maps, my hypothetical. [00:12:19] Speaker 01: They just enter [00:12:20] Speaker 01: They type them on their keyboard and they enter into a program that's kept on Google's server and instead of it being addresses, it's longitudes and latitudes. [00:12:33] Speaker 01: That's all I'm talking about. [00:12:33] Speaker 01: That's everything there is. [00:12:35] Speaker 01: Plus whatever Google says about its own software, which is no doubt copyrighted to begin with. [00:12:43] Speaker 07: And again, because of the likely terms and conditions that govern that, the agency would be in a strong position to establish that that's not an agency record. [00:12:53] Speaker 07: It's not integrated in its files, for instance, if it's accessed purely on the internet. [00:12:57] Speaker 07: But on a record like the one here, that would not be enough to sustain the DEA's burden on summary judgment. [00:13:04] Speaker 07: And just to give an example that may be getting at some of Judge Millett's questions, [00:13:10] Speaker 07: If an agency has a formula, for instance, for calculating certain fees and its interactions with the public, and it writes down that formula in a manual, that's an agency record. [00:13:22] Speaker 07: If it instead chooses to purchase a prepackaged [00:13:26] Speaker 07: software that applies that same formula, it can't shield the information of what formula it uses because it's applying it through a program as opposed to writing it down. [00:13:37] Speaker 07: That's the implication of 552F that says information in any one format remains a record if it's in a different format. [00:13:45] Speaker 07: So it's hard to draw [00:13:46] Speaker 07: a bright line rule across the board, given the breadth that the definition of record has, which is undisputed here. [00:13:53] Speaker 01: Can you give us a rule for your alternative? [00:13:56] Speaker 01: So your alternative fallback position was, imagine they don't have it or... [00:14:03] Speaker 01: They don't control it or whatever. [00:14:05] Speaker 01: And you want them to produce images of the coordinates plotted onto maps. [00:14:09] Speaker 01: That's your fallback position. [00:14:11] Speaker 01: Where is the line between creating a new document and something in an alternative form or format? [00:14:18] Speaker 01: Where would you draw the line? [00:14:19] Speaker 07: Sure, there are two requirements for a request to fall within 552A3B. [00:14:25] Speaker 07: The first is that it has to be readily reproducible, so it needs to be done without excessive difficulty by the agency that's undisputed here, with good support in the record. [00:14:36] Speaker 07: The second aspect is that it has to be a form or format of the existing record. [00:14:42] Speaker 07: And the line, this court's decision in public citizen versus Carlin is helpful, it has some [00:14:47] Speaker 07: dictionary definitions of form that shed light on this. [00:14:51] Speaker 07: There's a distinction between just the physical attributes and the visual presentation of information versus the substance of content. [00:14:59] Speaker 07: Here we clearly fall in the physical. [00:15:02] Speaker 01: But I want you to tell me what the test is before we determine whether we fall into it. [00:15:05] Speaker 01: So would you agree that if you have to add information not in one document, regardless of its format, that the new document is not just a [00:15:16] Speaker 01: change in form or format, but is a different document. [00:15:19] Speaker 07: Yes, I would agree that if you have to add information that alters the content of the underlying record, it is. [00:15:26] Speaker 07: And there's one caveat there, which is that any format request you make adds information in some sense. [00:15:33] Speaker 07: For instance, if you take a physical document and you scan it, you're going to add metadata. [00:15:38] Speaker 07: If you put it on CD, you reveal what CDs the agency uses. [00:15:42] Speaker 07: And similarly in this case, by plotting it on any map, you're going to add information about whatever that map happens to be. [00:15:49] Speaker 01: The metadata question, if the agency has a written document and scans it, it has to produce the metadata to you? [00:16:01] Speaker 01: In other words, it is converting it into an electronic format [00:16:06] Speaker 01: as a consequence of the statute. [00:16:09] Speaker 01: It must produce the metadata also or not? [00:16:11] Speaker 07: No, it doesn't need to present it, but it may not have a choice but present the metadata. [00:16:16] Speaker 01: Assume for the moment that it has the choice. [00:16:18] Speaker 01: So if it adds new information, obviously it has to add coding information in order to switch from [00:16:26] Speaker 01: pieces of paper to electronics to pixels to whatever we're transforming it into. [00:16:32] Speaker 01: But if you add actually substantive information, what if you combine, what if it requires combining two different documents? [00:16:39] Speaker 01: In other words, you have two documents, can you be required to combine the two documents? [00:16:46] Speaker 01: You meaning the agency, I'm sorry. [00:16:47] Speaker 07: If there's any analysis required, no. [00:16:49] Speaker 07: If it's simply copying and pasting into a single document, then yes. [00:16:53] Speaker 01: So now just, again, I don't know what the facts are in this case, which is part of the problem, as you've very astutely pointed out. [00:17:04] Speaker 01: You now have, your client has anyway, the latitudes and longitudes. [00:17:09] Speaker 01: They've got a bunch of dots on paper, I guess, or not dots on paper, numbers, which define longitude and latitude, right? [00:17:16] Speaker 01: And that's all you have. [00:17:17] Speaker 01: And say that that is all they have. [00:17:20] Speaker 01: That's all that the agency has. [00:17:23] Speaker 01: Now, if they add what you want, which is a satellite image plot on Google Maps, you get satellite imagery and you also get streets. [00:17:36] Speaker 01: Isn't that adding information that was not on the original piece of paper, which just includes launch student latitude? [00:17:43] Speaker 07: No, that falls within that second ancillary category I was talking about. [00:17:48] Speaker 07: Mr. Aguirre has no right to demand that these be plotted on Google Maps as opposed to other maps. [00:17:55] Speaker 07: All that he can ask is that this latitude and longitude information, which all that is, [00:18:01] Speaker 07: inherently is defining the location of that coordinate on a map. [00:18:06] Speaker 07: It assumes the existence of a map with a certain grid. [00:18:09] Speaker 07: That's what the information means. [00:18:11] Speaker 07: Plotting it on a map just alters it visually. [00:18:14] Speaker 07: The agency can choose what map to plot on. [00:18:17] Speaker 01: So it doesn't have to provide street addresses and it doesn't have to provide [00:18:21] Speaker 01: enough of a focus to know anywhere other than here's the world and here is where our longitude and latitude cross. [00:18:34] Speaker 07: Mr. Aglier would be able to request that it be provided sufficiently zoomed in, for instance, [00:18:40] Speaker 07: that it helps him see it, but he won't be able to require that it's satellite or not or that it has, that it's a certain type of map. [00:18:50] Speaker 07: So because he doesn't have any ability to ask for information beyond the information and the latitude and longitude on this alternative ground. [00:18:58] Speaker 02: I guess what troubles me, and I realize you're being pushed by our questions, is since the record here is virtually nil, [00:19:08] Speaker 02: It's difficult to know what the bright line might be. [00:19:11] Speaker 02: And as I understood your argument, it's simply this is not suitable for summary judgment, period. [00:19:18] Speaker 02: What I'm concerned about is some of the answers you're giving means that an agency could simply erase information and say, we don't have it. [00:19:30] Speaker 02: Or, as in this case, give you something or your client something that's virtually useless to him. [00:19:37] Speaker 02: even though the agency did something to produce information that was useful to it in investigating and prosecuting him. [00:19:53] Speaker 02: So I think we have to be careful here in this electronic age because everything can disappear, number one, but number two, [00:20:05] Speaker 02: The cost to the agency of trying to recreate something that's been, if I can put it this way, deleted, while possible, can be enormous. [00:20:17] Speaker 07: And let me address both parts of that. [00:20:20] Speaker 07: As to the first part, that's exactly right. [00:20:22] Speaker 07: This information falls at the heart of both FOIA's presumption of disclosure and Congress's intent in the 96 amendments to ensure that technology facilitates access to information as opposed to hampering the access. [00:20:37] Speaker 07: And because the government has failed to build a record despite the district courts [00:20:41] Speaker 07: repeated requests that it do so, this court to rule for the government would have to adopt a bright line rule that could have very troubling consequences. [00:20:50] Speaker 07: The Microsoft Word and Excel cases I believe likely would be quite easily disposed of when they actually came up on a full record, but a rule in the other direction could really exclude a lot of things that Congress intended to keep in and shield agency action. [00:21:06] Speaker 07: And as to the second part of your question, Judge Rogers, the cost to the agency, of course, if the cost is really significant, which in this case, the record indicates it wasn't and the government has not disputed it would be, this is something that could be done automatically, perhaps even by hitting control all and just saying print as ping reports. [00:21:27] Speaker 07: The record doesn't reflect, but some of the exhibits indicate that the software may have that functionality. [00:21:33] Speaker 07: If there is a cost issue, the readily reproducible aspect of the requirement would resolve it for Mr. Aguilar's narrow request. [00:21:43] Speaker 02: I wasn't sure it was clear what the limits of that clause are. [00:21:50] Speaker 02: I mean, it might be readily producible if you're seeking it from Microsoft, for example, but if you're seeking it from DEA and they have a very limited technology operation, [00:22:04] Speaker 02: Are they nonetheless forced to go to the Department of Justice, which in turn has to go? [00:22:09] Speaker 02: I don't know what the limits of that are. [00:22:12] Speaker 07: With the caveat that of course that's not disputed here, normally an agency is not required to go to other components. [00:22:19] Speaker 07: It just has to do things within the particular component. [00:22:23] Speaker 02: But now we're talking about this new language Congress has enacted. [00:22:26] Speaker 07: Yes, and that language hasn't been, there aren't that many decisions that have addressed this language. [00:22:32] Speaker 07: Most courts, virtually all courts impose a burden requirement in addition to a technical feasibility requirement that would look at this particular agency's ability to do it easily, as the Ninth Circuit has said in its leading decision in TPS. [00:22:48] Speaker 07: When an agency does something routinely in the course of official agency business, [00:22:52] Speaker 07: It's going to be very difficult for it to show that it's not readily reproducible. [00:22:57] Speaker 07: And this is such a case because Agent Carter testified that he viewed these maps around the clock and the software did it automatically and the like. [00:23:06] Speaker 07: And that is probably why it's not disputed here. [00:23:09] Speaker 07: But ultimately, readily reproducible is a factual question. [00:23:13] Speaker 07: And the statute does provide that the agency gets substantial weight in its determination. [00:23:18] Speaker 07: So that's a way to resolve a lot of those issues, which again are not implicated here. [00:23:22] Speaker 03: Can I ask you one other question? [00:23:23] Speaker 03: Is there any authority you're aware of for the government to have to translate documents from one language into another for someone who didn't speak English? [00:23:36] Speaker 07: Yes, there's a Third Circuit decision that's cited in the brief that imposed that obligation that, of course, those... That was a decoding, encrypted information, correct? [00:23:48] Speaker 07: I believe, I believe that was a, that was how we have it in English. [00:23:52] Speaker 01: It's described as translation, but it's decoding. [00:23:54] Speaker 07: Okay. [00:23:55] Speaker 03: I apologize. [00:23:56] Speaker 03: You're not aware of any authority that would require, if for example your client didn't speak Chinese instead of English or whatever, they wouldn't have to, that would be considered creating a record to translate it into a new language? [00:24:08] Speaker 07: That would likely be considered a record because both it wouldn't be readily reproducible because it would require analysis and effort and time by a human being. [00:24:21] Speaker 01: Just put it into Google Translate. [00:24:23] Speaker 07: If all that's asked is put into Google Translate, then the readily reproducible would be satisfied. [00:24:29] Speaker 07: it would probably not fall within the different form or format because you're altering the content. [00:24:36] Speaker 07: It depends on how you think of language. [00:24:38] Speaker 07: So, I think that's a harder case. [00:24:40] Speaker 03: If you're just trying to change the font or... You're asking for a translation here from written to visual. [00:24:47] Speaker 07: But the translation from a list versus visual is precisely a form or form of translation. [00:24:53] Speaker 07: It's like having XY coordinates and then asking for them plotted on an axis. [00:24:59] Speaker 07: It's the same information, just viewed different ways. [00:25:02] Speaker 07: And that's the whole point of the provision, that sometimes data is easier to view in a particular way. [00:25:09] Speaker 01: Okay, thank you. [00:25:09] Speaker 01: We'll hear from Mr. Walker. [00:25:27] Speaker 06: Good morning. [00:25:27] Speaker 06: May it please the court. [00:25:28] Speaker 06: Johnny Walker on behalf of the Drug Enforcement Administration. [00:25:32] Speaker 06: I want to begin by noting that the DEA did not withhold from Mr. Aguiar any information that it had that was relevant to his investigation. [00:25:42] Speaker 01: Let me move to that, which you're obviously moving to the question I asked, which is, what is this software? [00:25:49] Speaker 01: So as far as I can tell, [00:25:52] Speaker 01: You are going to have to square a very big circle with respect to all the different statements that the government has made describing it. [00:26:00] Speaker 01: Maybe the right thing to do is say square the hexagon, because there are six different ones. [00:26:04] Speaker 01: And the most recent one, which is the one that gave us in the brief, is the DEA did not release the software, not because of its nature or the DEA's relationship to it, but because the DEA determined that it simply had no such software. [00:26:19] Speaker 01: The DEA wasn't able to find the software. [00:26:22] Speaker 01: that Mr. Aguiar believes to exist. [00:26:25] Speaker 01: I think probably everybody would agree if that's the case. [00:26:27] Speaker 01: You don't have it, you can't find it, you don't know where it is, that would be fine. [00:26:32] Speaker 01: But let me just give you the five other descriptions that the DEA has given the court. [00:26:37] Speaker 01: In the motion for summary judgment, it says DEA did not produce the software because it is licensed proprietary software. [00:26:46] Speaker 01: In the replying motion, it says, the software is generic or prefabricated out of the box. [00:26:52] Speaker 01: That's now April 2015 and then May 2015. [00:26:55] Speaker 01: In the September 2015 notice of compliance, the government says, DEA is unsure whether the software is licensed, purchased, or used through another methodology. [00:27:06] Speaker 01: However, upon information and belief, the defendant believes the software is licensed to the DEA only for official purposes and may not be released to any other party for personal use. [00:27:18] Speaker 01: In the third MIRAC statement, it says, the response from both offices was that DEA was not in possession or control of any software. [00:27:31] Speaker 01: And then in the third Myrick affidavit in another paragraph, it says, DEA does contract for a service that allows viewing the location of a GPS tracking device. [00:27:42] Speaker 01: So that makes six, what I would say, relatively different descriptions. [00:27:47] Speaker 01: Does the government now know what this software is, or is the government's position is just can't find it, doesn't know anything about it? [00:27:55] Speaker 06: Your Honor, I think that the various statements that you read, while the facts did develop over time and the court ultimately reached the relevant facts at issue, which is common in a FOIA case for there to be an iterative process. [00:28:09] Speaker 01: I'm not blaming. [00:28:09] Speaker 01: This is not a question of you did a bad job before or anything like that. [00:28:12] Speaker 01: That's not what I'm asking. [00:28:13] Speaker 01: I just want to know, what's the deal on the software? [00:28:16] Speaker 01: Can you not find it? [00:28:17] Speaker 01: Does it not exist? [00:28:19] Speaker 01: Or is that a different way of saying it's proprietary, it's licensed, it's in a contract, or something else? [00:28:27] Speaker 01: Give us an English where we are here. [00:28:29] Speaker 06: I think the record in the lower court can be read in conjunction, and I think the various statements ultimately can be read consistently. [00:28:36] Speaker 06: There is no software. [00:28:37] Speaker 06: The Supplemental MIRAC Declaration on which the court ultimately bases ruling on summary judgment in favor of defendant establishes unequivocally that there is no responsive software in the possession or control of the DEA. [00:28:51] Speaker 01: So are you saying the only thing that you know is what's in the MIRAC? [00:28:54] Speaker 01: Is that right? [00:28:55] Speaker 06: We do also know that there is a service that the DEA uses and that it appears Agent Carter used during the investigation in order to track GPS coordinates. [00:29:06] Speaker 06: So we know that there is a service that is used, but we know that there is no responsive software within the DEA's possession or control. [00:29:14] Speaker 01: Okay, so that's the part I'm not clear that saying that it's not in possession or control is not the same thing as saying you don't have the software. [00:29:24] Speaker 01: Right, because control is a legal term, and as opposing counsel accurately pointed out, control is a consequence of four factors which have to apply, four legal factors, factual factors which are applied. [00:29:36] Speaker 01: So when you say that you, I'm just trying to get the word, [00:29:44] Speaker 01: It had no such software. [00:29:46] Speaker 01: Can you tell us what this means? [00:29:49] Speaker 01: Does that mean there's no physical software? [00:29:53] Speaker 01: Actually, software, of course, is not physical, but there's no representation of it physically either on a disk or on a server of the DEA? [00:30:00] Speaker 01: Is that the first thing you're saying? [00:30:01] Speaker 06: That's precisely how I read the Myrick Declaration, Your Honor, yes. [00:30:05] Speaker 01: That may be, but I'm not sure I can read it that way because that's not what it says. [00:30:11] Speaker 01: Let's step outside of the box here just for a minute. [00:30:14] Speaker 01: Maybe you can provide a supplemental affidavit. [00:30:17] Speaker 01: Maybe you can provide a supplemental affidavit to the court. [00:30:20] Speaker 01: What do you know about this thing? [00:30:22] Speaker 06: My understanding, Your Honor, of how the software works is there is a third-party vendor. [00:30:26] Speaker 06: And again, this is not necessarily in the record, but my understanding is there's a third-party vendor that supplies a computer system. [00:30:33] Speaker 06: And it's not like it's just one piece of software that can go on a disk. [00:30:36] Speaker 06: This is a complex system, seemingly involving multiple different types and installations of software. [00:30:42] Speaker 06: but there is a server provided by a third party which has the capability of receiving data from GPS devices installed by the DEA. [00:30:53] Speaker 06: An agent at the DEA can then access those third party servers, which likely have some kind of software on them to control and organize this data in order to track those GPS devices in real time. [00:31:06] Speaker 06: And they can save the data from that tracking to DEA servers. [00:31:11] Speaker 06: That's what Mr. Aguiar received in this case, is he received a spreadsheet of the data gained by the agent as part of that tracking activity. [00:31:20] Speaker 06: But the software itself, from what I understand, is on a third-party server that is remotely accessed by DEA. [00:31:27] Speaker 01: And does the DEA have the ability to take the data which it has saved within the DEA and turn that into a picture? [00:31:37] Speaker 01: A map. [00:31:38] Speaker 01: There's no indication that the software provided by the third party can actually do that with the click of a button When you say there's no indication so this is a problem for the government right because the burden is on the government Obviously no indication the other way either What's your best understanding this? [00:31:56] Speaker 06: My best understanding is that Agent Carter used the software to track the device in real time and was able to create screenshots of maps in real time during the course of the investigation. [00:32:08] Speaker 06: There's nothing to indicate that someone can go back into this program and spit out a bunch of maps using the spreadsheet data. [00:32:15] Speaker 06: Agent Carter also testified [00:32:16] Speaker 06: that he created some of the maps that were prepared for trial using the publicly available Google Maps software. [00:32:24] Speaker 06: That's just as available to Mr. Aguiar as it was to... And he did that by inputting longitudes and latitudes? [00:32:30] Speaker 06: You can input longitudes and latitudes into the Google Mac search bar and you will get a map. [00:32:35] Speaker 06: I've done it myself. [00:32:37] Speaker 01: And do we know what the contractual agreement is between the contractor who has this software on its servers and the DEA? [00:32:47] Speaker 06: I don't know the full contractual agreement. [00:32:50] Speaker 06: I only know it to the extent that I've just described to you. [00:32:55] Speaker 06: But I can tell you that I can't imagine a licensing agreement from a software provider that would allow the government to just, or anyone, to just give copies of the software out to anyone that it shows. [00:33:07] Speaker 01: What about printing from the software? [00:33:10] Speaker 06: printing from the software is another issue. [00:33:12] Speaker 06: This is the Mr. Aguiar's request that the DEA create maps. [00:33:17] Speaker 06: I don't think that is readily reproducible. [00:33:19] Speaker 06: I don't think it is another form or format. [00:33:21] Speaker 06: I'm happy to get into that if Your Honor would like to. [00:33:24] Speaker 01: But what you're saying is that the software itself is not physically at the DEA, is at some contractor which you think owns that software and [00:33:37] Speaker 01: as licensed only its use by the DEA, but not its ability to transfer. [00:33:42] Speaker 01: Is that right? [00:33:42] Speaker 06: There may be some client software on the DEA's computers that allow it to access the remote server, but the heart of the server, the heart of the software, yes, Your Honor, my understanding is that's not remote. [00:33:54] Speaker 01: You see the problem here of us not really knowing what we're dealing with. [00:33:58] Speaker 06: Yes, admittedly, Your Honor, the record does not fully describe what the nature of this software is and what the licensing arrangement is. [00:34:04] Speaker 06: But I do think that there has to be some indication that the software is an agency record. [00:34:11] Speaker 03: The only indication that's been- Well, I thought in the trial testimony, the DEA agent was using software on his own computer to generate these maps. [00:34:20] Speaker 03: Now, whether that means software that talks to other software on another server, [00:34:24] Speaker 03: is sort of the open question that you don't have any evidence on, but there is evidence that there was something on a DEA computer that a DEA official used to generate information, is there not? [00:34:38] Speaker 06: There certainly is, and my point is that [00:34:41] Speaker 06: in the complex world of computer software in which we exist, that the fact that a DEA agent was able to use software on a computer is not enough to require the government to conduct a search, if you will, of a third-party server and to provide evidence about its licensing. [00:35:00] Speaker 01: Why? [00:35:01] Speaker 01: Why isn't it enough to... [00:35:05] Speaker 01: to just require it to describe the terms of the licensing agreement. [00:35:09] Speaker 01: Now, maybe there is some trade secret or something that you want to protect, okay, but I haven't heard that argument. [00:35:14] Speaker 01: How hard is it to say we can't, we don't control this software because, and fill in the blank, not with upon information and belief, which is what was done in the notice of compliance and is certainly not enough for an affidavit, but instead with the terms that [00:35:32] Speaker 01: prevent the agency from producing the document to [00:35:36] Speaker 01: The FOIA request for that doesn't seem very hard. [00:35:39] Speaker 01: It seems less hard, actually, than searching all your records for these subpoenas, which you did. [00:35:45] Speaker 06: Correct. [00:35:46] Speaker 06: There are two reasons, Your Honor. [00:35:48] Speaker 06: The first reason is that even if the DEA had the ability to take this record from a third-party provider and give it to Mr. Aguiar, that ability to control or access or obtain the software is not enough. [00:36:03] Speaker 06: It must also possess the software [00:36:05] Speaker 01: Well, why do you say that? [00:36:07] Speaker 01: That we have a case about computer program HHS, which is in the hands of a contractor. [00:36:16] Speaker 01: And the court held that, notwithstanding that it didn't possess it in the sense of physical possession, it had control, which, another word for which, and the government knows well in its drug cases, is constructive possession. [00:36:30] Speaker 01: So it's not enough that it's not physically at the headquarters. [00:36:34] Speaker 01: Or do you think differently about that? [00:36:35] Speaker 06: I do think differently, Your Honor. [00:36:37] Speaker 06: I think you're referring to the Consumer Enterprises case. [00:36:39] Speaker 06: And there are a couple of differences between that case and this case. [00:36:42] Speaker 06: One is that in Consumer Enterprises, you had an agency head who was receiving and sending emails. [00:36:50] Speaker 01: Oh, no. [00:36:50] Speaker 01: I'm sorry. [00:36:50] Speaker 01: I'm not talking about the email case. [00:36:52] Speaker 01: I'm talking about Berka. [00:36:53] Speaker 01: I'm sorry. [00:36:54] Speaker 01: Oh, I'm sorry. [00:36:56] Speaker 06: I apologize. [00:36:56] Speaker 06: I'm not familiar with the facts of Berka. [00:36:59] Speaker 01: OK. [00:36:59] Speaker 01: Well, it's about computer tape. [00:37:03] Speaker 01: with survey responses that were held by a contractor and not HHS. [00:37:07] Speaker 01: And the court held that notwithstanding that it wasn't in the agency, it was under the agency's control. [00:37:13] Speaker 01: Because of the degree of agreement between the agency and the contractor and the agency's use and the various other things that Ms. [00:37:21] Speaker 01: Hensford described with respect to expectations about getting it later, ability to control it. [00:37:30] Speaker 01: But we don't have any information like that here. [00:37:32] Speaker 06: Well, I think the case that you're describing sounds like the Forshen case, which was a Supreme Court decision in which the Department of Health, Education, and Welfare had a regulatory right to obtain studies from the recipients of federal grant funds. [00:37:47] Speaker 06: And the Supreme Court, in that case, held that there was no obligation on the part of HEW to obtain those studies in order to provide them in response to a FOIA request. [00:37:59] Speaker 06: So I think that situation, as I say, I'm not fully familiar with the facts of the Berka case, but I think applying the Forshem case, that even if the DEA had the ability to obtain the software that is in the possession of a third party and provide it to Mr. Aguilar, it's not necessarily under an obligation to obtain records to satisfy a FOIA request. [00:38:21] Speaker 01: So you're saying regardless of the facts, there are no facts? [00:38:25] Speaker 01: in terms of a description of the relationship between the software and the DEA, none, that would allow the court to order the production under FOIA? [00:38:35] Speaker 01: Is that what you're saying? [00:38:36] Speaker 06: That's what I'm saying. [00:38:37] Speaker 06: I think that the supplemental MIRAC declaration on which the district court relied and in which the DEA made clear that it has no possession or custody of software responsive to Mr. Aguilar's request is sufficient for summary judgment in this case. [00:38:53] Speaker 03: What do we have in the record that shows us that the description you're using of this system and its relationship between DEA agents and their computers and the server is the system that existed at the time of this trial? [00:39:08] Speaker 06: There are bits and pieces in the record, Your Honor. [00:39:10] Speaker 06: Agent Carter, when he testified about how he operated the software at Mr. Aguilar's trial, testified that he accessed it through the internet and that he obtained the GPS data through the internet. [00:39:29] Speaker 06: So that supports the understanding that this is software that is remotely accessed by the DEA. [00:39:36] Speaker 03: Well, there's no plans that someone can get through. [00:39:38] Speaker 03: The Internet, it sounds to me like you're describing this sort of specialized contract between a vendor and the DEA right now, as opposed to the pre-applicated software that we were told about in an earlier stage of this litigation. [00:39:50] Speaker 03: At times it was described as something that sounded like you could pull off the shelf. [00:39:54] Speaker 03: And so I'm trying to figure out which one is, even if what you're telling us now is even relatively responsive to his request for information about how his maps were created. [00:40:09] Speaker 06: Frankly, we don't know precisely how his maps were created. [00:40:13] Speaker 06: We're reconstructing what we know from the record, from Agent Carter's testimony, and what we know about the services that the DEA contracts for now. [00:40:22] Speaker 03: Where did the district court notion this was prefabricated off-the-shelf software come from? [00:40:26] Speaker 06: I believe, Your Honor, that that came from the notice of compliance, and that the DEA, in response to a request from the Court, filed a notice of compliance that I believe is the source of those words. [00:40:39] Speaker 01: It's actually from, I hate to tell you this, from your own brief, the reply motion, quote, the software is generic or prefabricated out of the box. [00:40:48] Speaker 01: I don't mean you personally, but the U.S. [00:40:50] Speaker 01: Attorney's Office. [00:40:51] Speaker 06: And I know that subsequent to that, there was, as I said, it was an iterative process in the district court. [00:40:58] Speaker 06: The district court asked for additional documentary evidence in the form of a declaration establishing that the software was proprietary and met the description that you have given. [00:41:11] Speaker 06: And ultimately, Ms. [00:41:13] Speaker 06: Myrick produced a supplemental declaration saying that there was no possession or custody of the software, and the district court ended up entering. [00:41:27] Speaker 06: I don't know. [00:41:29] Speaker 06: I wouldn't characterize as a conclusory, Your Honor. [00:41:31] Speaker 06: I don't know how you can be more detailed about the absence of a record. [00:41:35] Speaker 06: You simply, the only way to state the absence of a record is to state the absence. [00:41:40] Speaker 03: And there's all this stuff about, oh yeah, we know what it is. [00:41:42] Speaker 03: We know exactly what it is. [00:41:44] Speaker 03: But someone else controls it. [00:41:46] Speaker 03: So no possession or control is just conclusory legal labels. [00:41:50] Speaker 03: I don't know how we can credit that at all. [00:41:55] Speaker 06: There's a bit more to it. [00:41:56] Speaker 06: There's the declaration that there's no possession or control of any such software. [00:42:01] Speaker 06: There's the description of what steps were taken to ascertain those facts, what offices were consulted. [00:42:07] Speaker 06: And there's the distinction with the service the DEA knows that it contracts for. [00:42:11] Speaker 06: So there's a bit more than just the conclusory assertion that there was no possession or control. [00:42:16] Speaker 03: I don't think it does or as I said I think that the the [00:42:40] Speaker 06: The declarations and the previous filings are, in some ways, describing two different things. [00:42:46] Speaker 06: They're describing software that is remotely accessed by the DEA and in the possession of a third party. [00:42:53] Speaker 06: And they're describing what's in the possession and custody of the DEA. [00:42:57] Speaker 06: I think, ultimately, at the end of the day, there's no contradiction in those. [00:43:01] Speaker 03: If we thought there were, would that complete summary judgment? [00:43:04] Speaker 06: I don't think so, Your Honor. [00:43:05] Speaker 06: I think that you can affirm the district court based on the basis that the district court concluded that there was no agency record responsive to Mr. Aguilera. [00:43:16] Speaker 03: Because she thought it was prefabricated. [00:43:20] Speaker 06: Well, ultimately, the district court concluded that there was no agency record responsive to Mr. Edgier's request based on the supplemental declaration of Ms. [00:43:29] Speaker 06: Myrick. [00:43:30] Speaker 06: The district court did note in its opinion that it was concluding no agency record for a different reason than it had initially contemplated. [00:43:37] Speaker 01: So that would have to be possession or control, right? [00:43:40] Speaker 01: That has to be the ground, right? [00:43:41] Speaker 06: Possession, correct. [00:43:43] Speaker 01: Well, possession or possession or control? [00:43:45] Speaker 06: I think right now the record is very clear about possession, the issues of control. [00:43:50] Speaker 01: How is it clear about possession? [00:43:52] Speaker 01: It uses the word or, which can be exclusive or inclusive. [00:43:56] Speaker 06: I'm sorry, Your Honor. [00:43:58] Speaker 01: There's two uses of the word or, exclusive use and the inclusive use of or. [00:44:03] Speaker 01: And all the affidavit says is no possession or control, which could mean there is possession, but there's no control, or it could mean neither possession nor control. [00:44:14] Speaker 06: As I said, Your Honor, I think that you would have to have both in order for the record to be an agency record. [00:44:19] Speaker 06: The agency would have to have created or obtained the record and have control over it. [00:44:24] Speaker 01: So you think our case, Burka, which I've now been able to read, because it's right here, which distinguished the Forshamp case, is just wrong? [00:44:31] Speaker 01: Because in that case, we expressly said possession is not required, the issue is controlled. [00:44:39] Speaker 01: So unfortunately, you know that this panel is bound, and it's not the only decision where we've said this. [00:44:46] Speaker 01: We've said this several other times. [00:44:48] Speaker 01: Let me ask you about your other, the alternative, her fallback argument you were about to tell me. [00:44:55] Speaker 01: So if we take what I think she said, she being your opposing counsel, that all they want as a fallback is longitude and latitudes printed out [00:45:07] Speaker 01: They're not asking for streets. [00:45:08] Speaker 01: They're not actually asking for satellite imagery. [00:45:11] Speaker 01: Although, of course, that wasn't the original request. [00:45:13] Speaker 01: But we take that all out in the form of some concession at oral argument. [00:45:17] Speaker 01: And all that has to be produced now is longitudes and latitudes on some kind of map of the world. [00:45:27] Speaker 01: Do you think that that is not the same document in another format? [00:45:31] Speaker 06: it is not the same document in another format. [00:45:34] Speaker 06: As Amica's counsel notes, there are not a lot of cases specifically addressing this issue. [00:45:39] Speaker 06: But I do think that the statute itself offers two clues on what it means by a readily reproducible form or format. [00:45:48] Speaker 06: The first is in the very next subparagraph following 552A3C, [00:45:58] Speaker 06: following A3b, which is where the readily reproducible form or format language comes from. [00:46:04] Speaker 06: The statute says, an agency shall make reasonable efforts to search for the records in electronic form or format. [00:46:11] Speaker 06: And I think that gives context to the words form or format as in the nature of distinguishing between hard copy and electronic copy. [00:46:20] Speaker 06: And that's the leading case in this circuit, the sample case. [00:46:23] Speaker 06: That is what it dealt with. [00:46:24] Speaker 06: It dealt with whether or not documents were needed to be produced in hard copy or an electronic copy was readily produced. [00:46:32] Speaker 01: I think it's fair to say that's what they were contemplating in Congress, but they didn't say electronic format. [00:46:38] Speaker 01: They said form or format. [00:46:39] Speaker 01: Is the government's position that the only alternative format is electronic? [00:46:43] Speaker 01: That is, and I'm not sure even what that means when you say it's electronic. [00:46:47] Speaker 06: No, Your Honor, but I believe that former format are in that nature. [00:46:51] Speaker 06: The other clue is the word reproducible. [00:46:54] Speaker 06: I think what amicus council is asking that the government to do is not to reproduce information, but to transform that information into another record, to transform a spreadsheet of data into maps. [00:47:07] Speaker 06: And she even indicated an oral argument that Mr. Aguilar could even specify in his request what zoom level those maps would take. [00:47:15] Speaker 06: Now, that's clearly requiring an agency to reproduce a record, which it's not required to do under FOIA. [00:47:22] Speaker 06: The other clue in this statute is that at section 552D4B, the statute specifies that an agency declaration on what is reproducible is entitled to great weight. [00:47:34] Speaker 06: And here, Ms. [00:47:35] Speaker 06: Myrick's declaration states that the DEA informed Mr. Aguiar that in order to create the maps, it would have to engage a third-party vendor [00:47:43] Speaker 06: which he invited to do, above and beyond its FOIA obligations, if he would prepay the estimated cost of $608.25 for the agency to do that. [00:47:53] Speaker 06: He declined to pay those costs, and so the maps were not created. [00:47:56] Speaker 01: So I thought you just told me that you yourself personally have put longitudes and latitudes into Google Maps and produced the results, presumably at less than $630. [00:48:12] Speaker 01: The court here is not in a settlement mode, but given the lack of information about the nature of the software, which is their leading request, the government might think about whether it would be easier to just push that button, as you say, or go back to the district court for discovery on the meaning of the contract, on the meaning of the relationship between DEA and the contractor. [00:48:41] Speaker 01: Is there any further questions? [00:48:42] Speaker 03: I actually want to ask you about the search for the subpoenas. [00:48:49] Speaker 03: Why isn't this a situation where there's so many positive indications that these records have to exist? [00:48:58] Speaker 03: And there's virtually no explanation of how these records in Vermont were searched. [00:49:03] Speaker 03: Was it paper? [00:49:04] Speaker 03: Was it electronic? [00:49:05] Speaker 03: Was it both? [00:49:07] Speaker 03: And I went and looked, and his request came in before his conviction was even affirmed on direct appeal. [00:49:13] Speaker 03: So it strikes me as extraordinary that the DEA would not have records somewhere of subpoenas issued in a case. [00:49:21] Speaker 03: that is still pending criminal cases hasn't even yet been resolved on direct criminal appeal. [00:49:29] Speaker 03: And your notice of compliance said we can talk to the agent. [00:49:33] Speaker 03: We found him. [00:49:34] Speaker 03: He's on a bike trip. [00:49:35] Speaker 03: When he gets back, we can talk to him. [00:49:37] Speaker 03: Why isn't this just like Valencia where it's just not sufficient explanation of what was done in Vermont and the indicia of something is wrong with how this search was done are so powerful. [00:49:51] Speaker 06: Your Honor, I believe the agent that was on a bike trip was Agent Carter, who was the agent who conducted the investigation. [00:50:02] Speaker 06: The agent who issued the subpoenas was Agent Justin Kocher, who was retired at the time of the search. [00:50:12] Speaker 06: The search did uncover some administrative subpoenas, which I think indicates that the agency looked in the right spot. [00:50:20] Speaker 06: The merit of a search is certainly not judged by its fruit. [00:50:23] Speaker 06: It's judged based on whether or not it's... No, no. [00:50:25] Speaker 03: The direct criminal appeal is still pending. [00:50:27] Speaker 03: This is not the case that's 10 years after the criminal case. [00:50:32] Speaker 03: Surely, if the Second Circuit had reversed to go back to trial, you would have had [00:50:38] Speaker 03: all your trial information somewhere, and where am I assured that all electronic and paper trial records or some explanation of how you keep track of your administrative subpoenas other than we threw some stuff into a database? [00:50:51] Speaker 03: Maybe I'm wrong, but this stretch is extraordinary that the government wouldn't be more careful with appending criminal appeals. [00:50:57] Speaker 06: Your Honor, I'm speculating that it could be that the subpoenas were in the possession of the United States Attorney's Office, the prosecuting office at the time, given that the direct appeal was pending. [00:51:05] Speaker 03: But I think the important thing... Was it the Burlington, Vermont DEA office? [00:51:10] Speaker 06: I believe it was the Burlington, Vermont U.S. [00:51:12] Speaker 06: Attorney's Office. [00:51:14] Speaker 06: In fact, the longitude and latitude data that were provided to Mr. Aguirre were ultimately obtained by the DEA from the Burlington, Vermont, U.S. [00:51:22] Speaker 06: Attorney's Office, which it was not obligated to do under FOIA, but it did that in the interest of satisfying his request. [00:51:28] Speaker 03: The problem here is he didn't submit a FOIA request to the U.S. [00:51:30] Speaker 03: Attorney's Office? [00:51:31] Speaker 06: He did not. [00:51:32] Speaker 06: He did not. [00:51:34] Speaker 06: But I do think Ms. [00:51:35] Speaker 06: Myers' declaration describes an adequate search. [00:51:39] Speaker 06: She describes the databases. [00:51:41] Speaker 06: She describes what case filing system those records would be in. [00:51:45] Speaker 06: They would not be anywhere else. [00:51:46] Speaker 06: She describes the search terms and how those... Well, they would be somewhere else. [00:51:49] Speaker 03: They'd be in, not somewhere else in the DEA, but in the U.S. [00:51:52] Speaker 03: Attorney's Office. [00:51:54] Speaker 06: Of course, the DEA, however, is only obligated to search the DEA. [00:51:56] Speaker 01: Okay, thank you. [00:52:00] Speaker 01: I know she had no time left, but we'll give Ms. [00:52:03] Speaker 01: Handsword another few minutes. [00:52:08] Speaker 01: I can't even borrow it from the previous case. [00:52:10] Speaker 01: We used it all up. [00:52:12] Speaker 07: I'd like to make three points on rebuttal and a few factual clarifications about the record as well. [00:52:18] Speaker 07: So first, Mr. Walker's argument has made crystal clear the inadequate record in this case to, again, sustain the DEA's motion for summary judgment, not an ultimate resolution. [00:52:31] Speaker 07: of whether anything is turned over. [00:52:33] Speaker 07: But on this record, it cannot be sustained. [00:52:37] Speaker 07: Of course, this court cannot rely on factual representations that aren't in the record, which have been shifting potentially because they're not in the record and made for the first time an oral argument on appeal. [00:52:52] Speaker 07: Even addressing the merits just a little bit of those representations, [00:53:00] Speaker 07: fact that if it turns out ultimately when somebody actually has to put pen to paper under oath that the software is access to third-party servers, that cannot be enough under competitive enterprises where the court said, well, yes, something might be in a third-party domain, but is that what really as a practical matter is driving control? [00:53:22] Speaker 01: And the whole point of FOIA is that- To be fair, that's about emails. [00:53:28] Speaker 01: That's not about the software itself. [00:53:31] Speaker 01: It's about the subsequent content of emails. [00:53:33] Speaker 01: And it's one thing to say that you control your personal emails, regardless of what server they're on. [00:53:39] Speaker 01: And it's another thing to say that, I don't know, Google Mail has to produce its software for generating and sending emails over the internet. [00:53:50] Speaker 01: Those are two quite different things. [00:53:51] Speaker 07: Absolutely. [00:53:52] Speaker 07: And I don't mean to suggest that competitive enterprise would buy. [00:53:55] Speaker 01: I'm sorry to focus on Google all the time. [00:53:58] Speaker 07: I don't mean to suggest that it would bind the result here. [00:54:00] Speaker 07: But that decision, like many others from this court, recognizes that the inquiry is a practical one about who actually has control as opposed to what server gets hit in the background, which has nothing to do with the purpose of FOIA. [00:54:15] Speaker 07: And the reason this is important is it would really let an agency circumvent [00:54:20] Speaker 07: an agency could store its data in incomprehensible encrypted forms and rely on third-party software to decrypt it every single time an agency official wanted to pull it up on its computer but not be able to provide it to FOIA requesters or store videos as lists of pixels. [00:54:38] Speaker 07: and use a third-party software to put those pixels together in a video. [00:54:43] Speaker 07: There are real problems that can come from a technical interpretation of FOIA, and the court need not address any of those because there's no record of this here to sustain the burden. [00:54:55] Speaker 07: But there are issues that, in a case where there is a record, would need to be addressed about such an interpretation. [00:55:03] Speaker 07: The second point I'd like to make is the request for maps [00:55:08] Speaker 07: Mr. Aguirre's request for maps is a narrower request. [00:55:11] Speaker 07: So even if the score does conclude that he's entitled to the maps, it still does need to resolve the software question because the software gives him a lot more information than just the maps. [00:55:23] Speaker 07: The maps give him one view [00:55:25] Speaker 01: This is not a good alternative for the government to simply produce the maps to you, right? [00:55:32] Speaker 01: Because now that I think about it, it's not a fallback. [00:55:36] Speaker 01: In the alternative, it's only if there is no software, is that right? [00:55:39] Speaker 07: I don't want to represent what Mr. Aguiar would agree to as a compromise position. [00:55:44] Speaker 07: He may well agree to it as some kind of settlement. [00:55:47] Speaker 01: But the argument, the way in which your argument was made in the briefs is it's only if there is no software. [00:55:52] Speaker 07: Exactly. [00:55:52] Speaker 07: But as a legal matter, what he's entitled to under FOIA, it's only if he's not entitled to the software. [00:56:02] Speaker 07: And then just a few factual clarifications. [00:56:06] Speaker 07: First, Agent Couture, the agent who issued the subpoenas, is not retired. [00:56:10] Speaker 07: There's no indication in the record that he is Agent Carter. [00:56:13] Speaker 01: I didn't see it anywhere. [00:56:14] Speaker 01: I looked. [00:56:16] Speaker 01: But I didn't see anywhere in the lower court, I'm sorry, in the district court, where this argument was raised, that they should have asked this agent. [00:56:26] Speaker 01: Is that right? [00:56:27] Speaker 07: That's correct. [00:56:28] Speaker 07: But Mr. Aguilar argued that the search for the subpoenas was insufficient because the subpoenas that should have existed did not turn up. [00:56:40] Speaker 01: Yes, but he didn't suggest. [00:56:41] Speaker 01: In the other cases in which we've required asking an agent, asking somebody else, the FOIA requester at some level either during the FOIA request or in the district court said you need to ask the agent. [00:56:55] Speaker 01: And that was not done here, correct? [00:56:57] Speaker 07: That is correct, Judge Garland, but Mr. Aguilar was, of course, proceeding pro se below and under this court's decision in Abdel Fattah and the generous interpretation of a pro se litigants arguments, the argument that the search was inadequate because subpoenas known to exist were not found should be viewed as encompassing the argument that an agency has an obligation. [00:57:20] Speaker 01: So this is not so much a question of [00:57:22] Speaker 01: our normal deference to pro se advocacy. [00:57:26] Speaker 01: This is a question because it's FOIA of having put the government on some kind of notice of where to look. [00:57:32] Speaker 01: So it wouldn't matter if we're going to take the position that in every case the government needs to look at agents even if they don't know which agents you're talking about. [00:57:39] Speaker 01: It wouldn't matter whether it was pro se or not. [00:57:42] Speaker 01: I don't know of a case where we've done what you're suggesting in the FOIA context. [00:57:48] Speaker 07: Our position would be that from this court's decisions, the government should be on notice when it doesn't find documents that should have been known to exist, that in those cases it should contact a person who has a close nexus and it should do it even absent a specific request. [00:58:03] Speaker 07: Of course, here there's an additional inadequacy to the search that the declarations that the DEA provided do not themselves sufficiently establish the adequacy of the search. [00:58:15] Speaker 07: And in those circumstances, again, the fact that they're missing documents carries additional weight. [00:58:20] Speaker 03: Do they have a burden of showing adequacy, or does Mr. Agra have a burden of showing inadequacy? [00:58:26] Speaker 07: I believe it's the DEA's burden to show an adequate search to sustain its grant of summary judgment. [00:58:33] Speaker 07: and another factual clarification about the $608.25. [00:58:38] Speaker 07: The record actually reflects that Mr. Aguirre was never offered the maps for the charge of $608.25. [00:58:47] Speaker 07: The DEA actually initially wouldn't open the CD at all to see what it contained for $608 until he paid $608.25. [00:58:59] Speaker 07: And you can see that on pages 136 through 137. [00:59:03] Speaker 07: And as Chief Judge Garland pointed out, it wouldn't make any sense that it would cost the DEA $608 to do this. [00:59:10] Speaker 01: I thought they opened in the end the CD and all it has is the long tubes and latitude, isn't that right? [00:59:17] Speaker 07: Yes, and after they opened the CD and learned what it had, there was never any subsequent request for payment to convert it. [00:59:24] Speaker 07: So there's no agency record on how much that would cost. [00:59:27] Speaker 07: It appears it would be free both from counsel's representations here and from Agent Carter's testimony about how he did it automatically. [00:59:34] Speaker 07: Presumably every time the DEA is conducting an investigation, it's not charging a vendor to create these maps. [00:59:42] Speaker 07: It's doing it automatically. [00:59:44] Speaker 07: And Department of Justice regulations [00:59:46] Speaker 07: 28 CFR 1610 does require that search and duplication be done in the least expensive and most efficient manner, so the DEA can't kind of drum up the charges that it does not actually need to incur. [01:00:00] Speaker 07: And just one final factual point. [01:00:04] Speaker 07: The record does not reflect that the server was a third-party server, as Mr. Walker indicated. [01:00:11] Speaker 07: To the contrary, Agent Carter's testimony [01:00:14] Speaker 07: It's clear as on pages 16 and 25 of the joint appendix indicates there was a DEA server. [01:00:20] Speaker 07: The software saved things into the DEA server, and it was actually the ping information that was transmitted over the internet. [01:00:27] Speaker 07: So it's unclear how the software itself was functioning, but the internet information was just about how he received the data from the trackers. [01:00:37] Speaker 01: Okay, further questions? [01:00:39] Speaker 01: All right, Ms. [01:00:39] Speaker 01: Hansford, you were appointed by the court to represent the appellants in this case, and you are a former law clerk of judges of the court, none of the three of us. [01:00:47] Speaker 01: We are grateful for your assistance. [01:00:48] Speaker 01: Thank you. [01:00:49] Speaker 01: We are always grateful for the United States for its assistance. [01:00:51] Speaker 01: Thank you. [01:00:52] Speaker 01: We'll take the case under submission.