[00:00:01] Speaker 00:
This is the second class.

[00:00:56] Speaker 00:
Did you call the case?

[00:01:04] Speaker 00:
All right, Mr. Nazar.

[00:01:40] Speaker 01:
Good morning, Your Honor.

[00:01:42] Speaker 01:
May it please the Court.

[00:01:43] Speaker 01:
James H. Lassauer representing Aaron DeBaco and Barbara Webster, who are the substituted plaintiffs for the initial plaintiff, Carl Oglesky.

[00:01:58] Speaker 01:
This case presents several important issues, both with respect to exemption claims, particularly exemptions B1 and B3, and two exemption three statutes, the CIA Act and the NSA Act.

[00:02:24] Speaker 01:
I will turn first to deal with the exemptions.

[00:02:33] Speaker 01:
The government has citing as standard law where an agency submits affidavits in support of a motion for summary judgment.

[00:02:53] Speaker 01:
summary judgment may be granted solely upon the basis of those affidavits.

[00:03:03] Speaker 01:
However, there are very important qualifications to that assertion.

[00:03:13] Speaker 01:
Particularly, the affidavits must be detailed

[00:03:19] Speaker 01:
And secondly, they must not be conclusory or speculative or simply boilerplate.

[00:03:31] Speaker 03:
If I can ask, am I right that your argument about exemptions, your argument on exemption three

[00:03:38] Speaker 03:
applies to all ten of the redacted documents, your argument about Exemption 1 doesn't apply to all of them.

[00:03:45] Speaker 03:
So if we were to disagree with you on Exemption 3, if we were to say the government

[00:03:55] Speaker 03:
properly exercised its rights under Exemption 3, that's all we would need to look at, right?

[00:04:00] Speaker 01:
Well, you need to look at how narrowly the

[00:04:10] Speaker 03:
Right, but my only point is if we thought that exemption three was properly invoked as to all ten of the documents, that would be the end of the case so far as you're concerned.

[00:04:24] Speaker 01:
No, I don't think it is.

[00:04:26] Speaker 01:
Why?

[00:04:27] Speaker 03:
Why?

[00:04:27] Speaker 03:
We have ten redacted documents and if we thought that exemption three was properly invoked, it makes no difference whether your argument is about exemption one

[00:04:39] Speaker 01:
Well, I think it does because I think that I don't know that you can reach a judgment

[00:04:51] Speaker 01:
on Exemption 3 without having discovered whether they are sabotable or not.

[00:05:00] Speaker 01:
And we would contend that, first of all, let me say that the question directed at me narrows the scope of what is at issue here because

[00:05:14] Speaker 01:
the CIA has relied upon declarations that cover the universe of records that were allegedly released under the National War Crimes Disclosure Act.

[00:05:31] Speaker 01:
And if you look at the supplemental appendix, there are

[00:05:42] Speaker 01:
It is a list of documents that begins, and if you look at the very first of the documents.

[00:06:01] Speaker 02:
Are you in the supplemental joint appendix?

[00:06:02] Speaker 01:
I'm in the supplemental appendix, and this is the Vaughan index that was submitted.

[00:06:09] Speaker 02:
The supplemental joint appendix?

[00:06:12] Speaker 01:
Yes, it's a supplemental.

[00:06:16] Speaker 01:
There are two supplemental.

[00:06:17] Speaker 01:
It's a supplemental addendum, actually.

[00:06:19] Speaker 01:
It's an addendum that was put in when the government filed its brief in this case.

[00:06:26] Speaker 01:
They asked for permission, and I did not object, to put all of the government's affidavits in a single volume.

[00:06:37] Speaker 01:
And so it is that volume that I'm referring to.

[00:06:43] Speaker 01:
And the first page of it has the first entry.

[00:06:51] Speaker 00:
What page are you on, Mr. Lazar?

[00:06:54] Speaker 01:
Well, it's a little hard to tell because there are over-marking, over-writing, but it looks like it's page

[00:07:07] Speaker 01:
Seventy-six of ninety?

[00:07:11] Speaker 00:
Seventy-four is the first page.

[00:07:14] Speaker 00:
Essay seventy-four.

[00:07:15] Speaker 01:
Seventy-four.

[00:07:17] Speaker 01:
Okay.

[00:07:18] Speaker 01:
Anyway, if you look at the beginning of the bond index, the first item is, it says volume one, and then it says it's thirteen pages.

[00:07:30] Speaker 01:
And it says, copies of photo.

[00:07:35] Speaker 01:
And then it says that it's undated and that it is under subject.

[00:07:44] Speaker 01:
It says photos of mounting sheets containing photos and negatives of Gala.

[00:08:01] Speaker 01:
and you go over and it's deleted B3 alone and it has next to that CIA file lockings.

[00:08:14] Speaker 03:
The only issues before us now are the 10

[00:08:20] Speaker 03:
redacted documents and another argument as to whether the search was adequate, but I don't understand the relevance of the Vaughan index for documents that are not at issue here, but I may be missing something, so help me.

[00:08:35] Speaker 01:
Well, these documents were put before the district court

[00:08:42] Speaker 01:
And they are relevant because they bear, among other things, on the credibility of the declarants who have submitted an affidavit.

[00:09:01] Speaker 01:
They have submitted affidavits declaring that, first of all, they have tried to shift the focus

[00:09:12] Speaker 01:
from the nature of Oglesby's original request.

[00:09:18] Speaker 01:
He made several requests, not one request.

[00:09:22] Speaker 01:
And as I point out in my brief, the government and the district court below misrepresented the nature of the request.

[00:09:35] Speaker 01:
The requests are much broader in their scope.

[00:09:42] Speaker 01:
then this court has previously acknowledged, and I go through that in great detail in the brief, the worrying of the actual request.

[00:09:51] Speaker 03:
I thought we were here to maybe to discuss the scope of the read.

[00:09:56] Speaker 03:
The remand was all about these documents.

[00:09:59] Speaker 03:
that have been recently produced.

[00:10:01] Speaker 03:
And your argument is that there was an inadequate search and that exemptions were misapplied.

[00:10:06] Speaker 03:
But I don't think we're here to relitigate the adequacy of searches that we have found in the past were sufficient.

[00:10:18] Speaker 03:
As I understand it, you've got to show us that the newly produced documents somehow should have triggered a greater search than was undertaken, right?

[00:10:36] Speaker 01:
And that we can do very simply because the documents that were remanded to us

[00:10:44] Speaker 01:
contain markings on them, they contain filed designations.

[00:10:50] Speaker 03:
And the government has filed affidavits saying what they tried to do with them.

[00:10:55] Speaker 01:
And basically it boils down to the documents are too old and we don't know what the status of the documents is.

[00:11:05] Speaker 01:
Exactly, that's what they've said.

[00:11:07] Speaker 01:
So they have not done the search.

[00:11:10] Speaker 01:
They have not done a search which is required.

[00:11:13] Speaker 01:
We're here for them.

[00:11:14] Speaker 03:
I thought their argument was that we can't do a search.

[00:11:17] Speaker 03:
We don't know what these markings mean.

[00:11:20] Speaker 01:
And the reason they don't know what they mean is they haven't done a proper search.

[00:11:27] Speaker 01:
And they don't know because among other things, if you read through their various declarations,

[00:11:34] Speaker 01:
They say that they've determined that the information is properly classified and so forth and so on.

[00:11:42] Speaker 01:
And they do not address the issue of whether or not they did a search.

[00:11:54] Speaker 01:
The documents themselves contain information indicating that there are additional files.

[00:12:01] Speaker 01:
they haven't done the search that is required.

[00:12:04] Speaker 01:
And it comes out most dramatically when they have relied upon the 2007 inter-agency report to Congress, which lists the documents that they reviewed.

[00:12:25] Speaker 01:
They claimed that there were only minimal redactions.

[00:12:29] Speaker 01:
because the CIA in its generosity interpreted the, in accordance with the National War Crimes Disclosure Act, interpreted the request to give Obelzee more information than he was entitled to.

[00:12:49] Speaker 01:
What they have done is to eliminate the terms of his

[00:12:54] Speaker 01:
original request and whether they actually complied with that request.

[00:12:59] Speaker 01:
And they did.

[00:13:01] Speaker 01:
Among other things, the National War Crimes Disclosure Act is, excuse me, the National War Crimes Disclosure Act specifically states that

[00:13:24] Speaker 01:
the CIA that it did not review the records of the OSI, the Office of Special Investigation, in the Department of Justice, which holds 450,000 pages of records that are part of the search for war crimes records on the game.

[00:13:49] Speaker 01:
So those haven't been looked at at all.

[00:13:52] Speaker 01:
The archives claims that it did a search, but it didn't do a search.

[00:14:00] Speaker 00:
All right.

[00:14:00] Speaker 00:
Mr. Lazar.

[00:14:01] Speaker 01:
Yes.

[00:14:02] Speaker 00:
The judge has indicated you've answered his question, and you're out of time.

[00:14:07] Speaker 00:
We'll give you a couple minutes in reply.

[00:14:09] Speaker 01:
OK.

[00:14:11] Speaker 01:
All right.

[00:14:11] Speaker 00:
Thank you.

[00:14:14] Speaker 00:
Mr. Lucas.

[00:14:26] Speaker 04:
Good morning.

[00:14:27] Speaker 04:
Prince Lucas of the United States may please the court.

[00:14:30] Speaker 04:
I'd like to start with Judge Griffith with your question, and I think you're absolutely correct to that.

[00:14:34] Speaker 04:
All you need to address here with respect to the redactions is the Exemption 3 issue.

[00:14:38] Speaker 03:
Exemption 3 covers all... Well, let's pick up where Mr. Lazar was with the adequacy of the search.

[00:14:43] Speaker 03:
How do you respond to his arguments that there are these markings on these documents and the government did not conduct an adequate search to see if there are other documents out there?

[00:14:55] Speaker 04:
I would point you to this court's decision in the last appeal in tobacco to where it went through and discussed extensively why the army search for this was entirely adequate and indeed went beyond what FOIA required.

[00:15:07] Speaker 04:
And so the question on remand with respect to the adequacy of the search was whether anything in the new documents that produced call that into question.

[00:15:14] Speaker 04:
And I think the district court, in a very thorough opinion, explained why these top secret replacement sheets did not call that into question.

[00:15:21] Speaker 04:
She found the declaration of Joanne Vanier, who said that she and her staff have no idea where these top secret documents from the late 1940s were taken or placed years ago, and nobody knows where they are.

[00:15:34] Speaker 04:
And the district court reasonably understood and said that, look, given this court's holding in tobacco too, that the government's search went beyond what FOIA required,

[00:15:44] Speaker 04:
if these documents still existed, they certainly would have turned up.

[00:15:47] Speaker 04:
So we think that the presence of these top-secret replacement sheets, especially with the credible affidavit of Ms.

[00:15:52] Speaker 02:
Binier, resolves any sort of question that... What if you have a situation where a search is conducted and a responsive document is produced and it's a memorandum and the author of the memorandum says,

[00:16:10] Speaker 02:
You know, this is a follow-up to my prior memorandum dated January 1st about this same subject, but the January 1st memorandum hasn't been produced in response.

[00:16:25] Speaker 02:
What, if any, obligation does an agency have under those circumstances?

[00:16:32] Speaker 04:
Judge Wilkins, I think it might depend on, I think it would depend on the particular context of the case.

[00:16:37] Speaker 04:
Here, given that there isn't an analogous memorandum or anything along those lines to suggest it, there's no obligation to conduct a further search.

[00:16:44] Speaker 04:
Because I think it's important to remember that the standard under FOIA is adequacy, not perfection.

[00:16:50] Speaker 02:
But you're suggesting that if there were a hypothetical situation like I just posed, if someone from the government said, well, I have no idea how to find that prior memorandum,

[00:17:05] Speaker 02:
that we shouldn't probe that the district court has no responsibility to call that person in for hearing to allow them to be cross examined that they should just kind of take at face value.

[00:17:20] Speaker 02:
Um, a blanket statement that, you know, I have no idea where to look for that memo case close.

[00:17:28] Speaker 04:
I don't know if I go that part of Wilkins, but I think he looks at the specific context of the case.

[00:17:32] Speaker 04:
And I think here, especially given that all

[00:17:34] Speaker 04:
of the search efforts by the government were extensively documented and reviewed by this court and found adequate.

[00:17:40] Speaker 04:
The fact that the government just doesn't know where these documents from the late 1940s is there shouldn't be any concern in this particular case.

[00:17:49] Speaker 02:
There shouldn't be concern even though documents turned up in the middle of the last appeal?

[00:17:55] Speaker 04:
Those documents, some of the reason why those documents turned up in the last appeal is there was a dispute over fee waivers and they were eventually produced for free to plaintiffs and that's why they appeared.

[00:18:06] Speaker 04:
It was just a little ongoing dispute.

[00:18:08] Speaker 04:
I mean, this case has been going on for over three decades at this point and the fact that it came out after an extensive review by the government and search, I don't think that should give this court any pause or concern about the adequacy of the search efforts here.

[00:18:23] Speaker 00:
I've got a question because I'm confused by the affidavit of Ms.

[00:18:31] Speaker 00:
Benir.

[00:18:33] Speaker 00:
And what I'm confused about is this specimen, just a specimen page of these replacement sheets that block out whatever is written there.

[00:18:53] Speaker 00:
Is the microfilm still intact at the archives?

[00:18:59] Speaker 00:
Are the documents that were microfilmed and are blocked out here still in existence?

[00:19:07] Speaker 04:
I don't believe so, Honor.

[00:19:09] Speaker 04:
I understand that the documents from the late 1940s, they don't know where those original documents were.

[00:19:14] Speaker 04:
They belonged to the Army.

[00:19:16] Speaker 04:
And what happened was those documents were only, that sort of transfer documents was only supposed to contain no higher than secrets.

[00:19:23] Speaker 04:
So all the top secret documents were removed sometime during the 1940s.

[00:19:27] Speaker 04:
So my understanding is misdemeanor, and nobody knows exactly where those documents were taken.

[00:19:33] Speaker 00:
Do we know whether they exist?

[00:19:35] Speaker 00:
That is something that's not in her affidavit, whether they even exist.

[00:19:39] Speaker 00:
And do we know, another question, once these documents were microfilmed, what happened to the documents themselves?

[00:19:52] Speaker 00:
Are they, I just keep going back to if we wanted to look at what was redacted on this replacement sheet, could we?

[00:20:03] Speaker 04:
No, Your Honor.

[00:20:04] Speaker 00:
And why not?

[00:20:06] Speaker 04:
Because the government just does not know where those documents went.

[00:20:09] Speaker 04:
They were taken out and put with top-secret replacement sheets back in the 1940s.

[00:20:13] Speaker 00:
As we know that, because there's no date for when these things were microfilmed.

[00:20:19] Speaker 00:
I assume they were turned over to archives within the last 20 years, but it looks like, I don't know this, that they were microfilmed a long, long time ago.

[00:20:28] Speaker 00:
and I don't even know when microfilm was available to the Army, probably before it was available to the rest of us.

[00:20:34] Speaker 04:
Your Honor, to the best of my knowledge, I don't think there's anything in the record that would suggest that these documents still exist or are still available.

[00:20:42] Speaker 04:
What the Army does know is that these documents were taken out sometime in the

[00:20:48] Speaker 04:
close to following World War II, and top secret replacement sheets were inserted in their place.

[00:20:54] Speaker 04:
And all that we have at this point are those top secret replacement sheets.

[00:20:58] Speaker 04:
We don't know where those documents went.

[00:21:00] Speaker 00:
And we also don't know if a microfilm was made of these top secrets.

[00:21:06] Speaker 04:
Your Honor, my understanding is that if a microfilm existed, it would have turned up in those previous searches.

[00:21:12] Speaker 04:
The National Archives has all of the microfilms documents that are available.

[00:21:16] Speaker 04:
So if these still existed, they would have turned up.

[00:21:18] Speaker 04:
And that's what the district court found and said, given how extensive the search efforts were before, surely these documents, if they still existed, would have turned up given the exhaustive nature of the government's searches.

[00:21:32] Speaker 00:
Well, the top secret replacement sheets didn't turn up.

[00:21:36] Speaker 00:
until just recently.

[00:21:39] Speaker 00:
Isn't that correct?

[00:21:40] Speaker 00:
And that's why we remanded it in the first time.

[00:21:43] Speaker 00:
In other words, they found these top secret replacement sheets.

[00:21:47] Speaker 04:
Your Honor, the top secret replacement sheets and this tranche of documents was produced to plaintiffs during the last appeal, but it's not like those documents had just mysteriously been uncovered.

[00:21:58] Speaker 04:
There was just ongoing dispute over a particular set of documents, over the fee waivers for that, and they were produced during the last appeal.

[00:22:04] Speaker 04:
It wasn't sort of a mystery as to where these documents suddenly came from.

[00:22:08] Speaker 04:
I think they actually go back to the declarations of Ms.

[00:22:12] Speaker 04:
Murphy back in 2012, where she references these documents.

[00:22:15] Speaker 04:
The reason they came up on the last appeal was solely due to a fee waiver dispute.

[00:22:21] Speaker 04:
And if I could turn just to the exemption issues, I'd just like to go to point Judge Griffith that exemption three is the main question here.

[00:22:29] Speaker 04:
If you find that these documents and these actions are covered by exemption three, that's the end of the case.

[00:22:34] Speaker 04:
And I'd specifically like to address the CIA Act.

[00:22:37] Speaker 04:
which takes care of 15 out of the 25 redactions.

[00:22:41] Speaker 04:
And the CIA act, very straightforward on its face, covers CIA personnel information.

[00:22:47] Speaker 04:
And indeed, Ms.

[00:22:49] Speaker 04:
Wilson in her declaration explained that the CIA information included names of CIA employees and CIA organizational information.

[00:22:57] Speaker 04:
That's confirmed if you take a look on the face of these documents.

[00:23:00] Speaker 04:
ranging from pages 25 to 41 of the supplemental appendix.

[00:23:04] Speaker 04:
All of them clearly indicate that they're just either names of CIA employees or perhaps and or titles.

[00:23:11] Speaker 04:
And so plaintiffs don't really dispute this, but they do offer two arguments and we don't think either is persuasive.

[00:23:17] Speaker 04:
First, they try and muddy the waters by mixing precedents concerning personnel information with a sort of a new exemption that they want to create.

[00:23:27] Speaker 04:
exceptions to the exemption for personnel documents.

[00:23:30] Speaker 04:
And we just don't think there's any support in the Act for that.

[00:23:33] Speaker 04:
And secondly, they focus on the language employed by the agency and seek to limit that to only CIA personnel who are currently employed.

[00:23:42] Speaker 04:
But that interpretation would be nonsensical on its face.

[00:23:46] Speaker 04:
As soon as a CIA employee left the agency, all the protection for that particular individual and his family and where anybody had come in contact would vanish.

[00:23:54] Speaker 04:
And I think you can find that on page

[00:23:56] Speaker 04:
71 of the supplemental appendix, which is the last declaration, which discusses the harm from disclosing former CIA FOIA information.

[00:24:05] Speaker 04:
Now plaintiff's only response to this is that FOIA exemptions are narrowly construed.

[00:24:10] Speaker 04:
But there's no support for the proposition that that interpretive rule should be extended to derivative statutes under Exemption 3.

[00:24:18] Speaker 04:
And I'd like to give you an analogy.

[00:24:20] Speaker 04:
Under the Tucker Act, the Supreme Court has always said that waivers of sovereign immunity are narrowly construed.

[00:24:26] Speaker 04:
I see my time is up.

[00:24:27] Speaker 04:
May I have the need to finish my point?

[00:24:28] Speaker 04:
Go ahead.

[00:24:29] Speaker 04:
But under the Tucker Act, which says the following statutes and regulations are narrowly construed, the Supreme Court has never said, and in fact said, that the principle of narrow constructions of sovereign immunity do not extend to those substantive statutes themselves.

[00:24:43] Speaker 04:
So unless the Court has any further questions, I ask you to affirm for the reasons set forth in our brief.

[00:24:47] Speaker 00:
I've got one question, just so I'm absolutely certain.

[00:24:50] Speaker 00:
The specimen I showed you of the top secret replacement sheet

[00:24:54] Speaker 00:
If you all at the CIA wanted to see what was redacted, can you tell me whether that's possible or not?

[00:25:01] Speaker 04:
I believe it's not possible.

[00:25:02] Speaker 04:
No, we don't know where those went.

[00:25:06] Speaker 00:
OK.

[00:25:07] Speaker 04:
Thank you.

[00:25:10] Speaker 00:
All right, Mr. Lazar.

[00:25:12] Speaker 00:
You've used your time, but we'll give you two minutes.

[00:25:14] Speaker 01:
Yes.

[00:25:15] Speaker 01:
OK.

[00:25:16] Speaker 01:
Thank you very much, Your Honor.

[00:25:22] Speaker 01:
There are a host of problems.

[00:25:24] Speaker 01:
called attention to a case which the government chiefly relied upon in the Robinson v. Shell oil case in which they used that to argue what he just argued that the statute doesn't include former employees.

[00:25:50] Speaker 01:
that it does include former employees.

[00:25:55] Speaker 01:
As I have pointed out extensively in my brief, that argument, first of all, is pre-Milner.

[00:26:04] Speaker 01:
Secondly, it involved a Title VII Civil Rights Act case.

[00:26:11] Speaker 01:
But it does, in terms of statutory interpretation, have an impact.

[00:26:16] Speaker 01:
But if you analyze it, as we did in our briefs,

[00:26:20] Speaker 01:
the impact goes the opposite direction.

[00:26:23] Speaker 01:
It supports the case that you have to more narrowly interpret the statute.

[00:26:35] Speaker 01:
Even if you concede that it's ambiguous, you have to make a decision.

[00:26:40] Speaker 01:
You analyze the legislative history.

[00:26:43] Speaker 01:
And there's a particular case that's appropriate here, which I

[00:26:48] Speaker 01:
recently reviewed, Alan the CIA, 636 Fed 2nd, 1287, and at 1290, and again at 1296 through 1300, the Chief Judge, Skelly Wright,

[00:27:15] Speaker 01:
analyzed the Exemption 1 and Exemption 3 statutes and said that the wording in them was inherently subject to interpretation, that it required an extra degree of scrutiny to determine the scope of the protection and that in light of the purpose,

[00:27:42] Speaker 01:
of the FOIA to get information out to the public

[00:27:48] Speaker 01:
you have to give priority.

[00:27:50] Speaker 01:
This was in response to the Robinson case, Robinson v. Shavoyle case that he's relying upon.

[00:27:57] Speaker 01:
Their analysis of that misapplies the statutory criterion.

[00:28:02] Speaker 01:
If you look at the FOIA and if you look at the executive order under which this is handed down, it talks about the unauthorized disclosure of information and you have to have extra

[00:28:16] Speaker 01:
degree of scrutiny, greatly enhanced, where the records are more than 25 years old.

[00:28:23] Speaker 01:
And that has not been done here.

[00:28:26] Speaker 01:
It wasn't done initially.

[00:28:27] Speaker 01:
All of this bears on the credibility of the affidavits which this court previously relied upon.

[00:28:36] Speaker 01:
The previous decision in this case simply accepted the fact that

[00:28:42] Speaker 01:
They were old records.

[00:28:44] Speaker 01:
I would call your attention to paragraph 20 of the first LUTs, the 2012 LUTs declaration.

[00:28:58] Speaker 01:
And to note 11, it says, notwithstanding

[00:29:08] Speaker 01:
that information withheld under the categories, under these categories was regarding

[00:29:36] Speaker 01:
was released under the National War Crimes Disclosure Act.

[00:29:46] Speaker 01:
For example, names of... All right, Mr. Hazard, your time is up.

[00:29:54] Speaker 01:
Okay, but the point of it is that this contradicts the claim that they made and the declarations of these opiates is they're not credible, they're conclusory.

[00:30:13] Speaker 01:
They don't address contradictory evidence that is in the record and evidence of bad faith that is in the record.

[00:30:22] Speaker 01:
All of that was put forth in affidavits that we filed, in materials that we filed.

[00:30:28] Speaker 01:
The Linda Hunt materials from her book refer to specific files at the National Archives that had not been searched.

[00:30:38] Speaker 00:
We have your brief, we have your argument.

[00:30:40] Speaker 01:
Thank you very much.