[00:00:32] Speaker 03:
Stand please.

[00:00:42] Speaker 03:
OEA, OEA, OEA, a person who's having business before the honorable, the United States Court of Appeals for the District of Columbia Circuit, hires minors to drive near and give their attention for the court that's now sitting, God save the United States and its honorable court, be seated please.

[00:01:01] Speaker 03:
Case number 16-5333, Gregory Barco, appellant versus United States Department of Justice at L. Ms.

[00:01:08] Speaker 03:
Brill for the Amicus Cari, Ms.

[00:01:10] Speaker 03:
Kolski, Mr. Kolski, excuse me, for the Appellees.

[00:01:16] Speaker 06:
Good morning.

[00:01:18] Speaker 01:
Good morning.

[00:01:21] Speaker 01:
I'm Sophia Brill, presenting argument as appointed amicus counsel for the appellant Mr. Gregory Bartko.

[00:01:28] Speaker 01:
I'd like to reserve three minutes of my time for rebuttal.

[00:01:30] Speaker 01:
I'll be discussing three issues presented in this appeal.

[00:01:33] Speaker 01:
First, the district court's decision allowing the Office of Professional Responsibility neither to confirm nor deny the existence of records pertaining to AUSA Wheeler apart from those about his handling of Mr. Bartko's case.

[00:01:45] Speaker 01:
Second, OPR's decision to withhold under Exemption 6 and 7C OPR's records about AUSA wheelers handling of Mr. Barco's case.

[00:01:53] Speaker 01:
And third, the government's denial of a fee waiver to Mr. Barco.

[00:01:57] Speaker 01:
On the first issue, the district court should not have allowed the government to neither confirm nor deny the existence of other records related to AUSA Wheeler.

[00:02:05] Speaker 01:
The government's invocation of Exemption 7C is squarely foreclosed by this court's decision in Jefferson, in which the court held that the government cannot categorically claim that all potential records about a particular assistant U.S.

[00:02:17] Speaker 01:
attorney are law enforcement records and are therefore covered by Exemption 7C.

[00:02:22] Speaker 01:
The government needed to make a more particularized showing in this case that any records, if they pertained to AUSA Wheeler, if they existed, would have been compiled for law enforcement purposes.

[00:02:32] Speaker 06:
You don't think the Barnett Declaration does that?

[00:02:34] Speaker 06:
Doesn't the Barnett Declaration make this case look a little bit more like Kimberland than it does Jefferson?

[00:02:40] Speaker 01:
Well, with respect to the declaration that was submitted by the government, essentially what the government said was it recited the Office of Professional Responsibility's mission and its basic functions, and then it simply stated the records here were compiled under this authority and are law enforcement records.

[00:02:56] Speaker 01:
And there was nothing more that was particular to this case, nothing about the kind of misconduct that OPR may have been investigating.

[00:03:03] Speaker 01:
nothing that would have given the court a more specific reason to think that OPR was investigating possible violations of law.

[00:03:11] Speaker 01:
And what the court held in Jefferson was that a more particularized showing needed to be made than a flat declaration that all records were law enforcement records.

[00:03:18] Speaker 04:
So where are the allegations as here in

[00:03:22] Speaker 04:
include a spectrum of conduct ranging from potentially just failure to comply with department policies or the U.S.

[00:03:32] Speaker 04:
Attorney's Manual all the way down to civil or criminal liability.

[00:03:36] Speaker 04:
Isn't it going to be the case that every time OPR undertakes an investigation with that range of possibilities, that range of possible outcomes, that it's for the purpose of law enforcement under Jefferson and Cumberland?

[00:03:50] Speaker 01:
So I think what the court said in Jefferson is that because OPR can have responsibilities that range from violations of DOJ policy up to potential criminal violations, that that means that the government is required to specify what side of the line the investigation in any given case falls on.

[00:04:08] Speaker 01:
And it's certainly possible that there are a range of outcomes and there's a potential for a criminal investigation.

[00:04:13] Speaker 05:
What happens in a case where, I mean, I suspect it's not the

[00:04:17] Speaker 05:
the different functions aren't hermetically sealed off from each other and so they'll be looking at materials both with an eye to was this illegal conduct or did this violate professional standards of the bar or did it violate Justice Department standards and I don't know that they're going to do that in separable

[00:04:35] Speaker 05:
So what do you do then if they're doing all of those things at the same time?

[00:04:41] Speaker 01:
Well, I think what the court said in rural housing is important here.

[00:04:44] Speaker 01:
And what the court said in that case is there's a need to distinguish between routine oversight or monitoring of government employees on the one hand and investigations into law breaking on the other hand.

[00:04:54] Speaker 01:
And the court recognized that there's going to be a spectrum there.

[00:04:56] Speaker 01:
And it pointed out, conceivably, almost any investigation of the government's employees could turn into a law enforcement investigation.

[00:05:04] Speaker 01:
But what you need is something more particularized.

[00:05:06] Speaker 05:
I'm not asking about the spectrum.

[00:05:07] Speaker 05:
What I'm suggesting is that, in fact, they're doing, it's not a range, is that they're doing all three or four simultaneously.

[00:05:15] Speaker 01:
Right.

[00:05:16] Speaker 01:
Well, I think in that instance, there would at least need to be something submitted by the government that would say that there was at least a possibility that this would morph into a criminal investigation, at least some

[00:05:27] Speaker 01:
lead about misconduct that they believe could potentially violate criminal laws, and that that was part of the scope of their investigation when they undertook it.

[00:05:35] Speaker 01:
And I think it's important here to note that the government itself doesn't appear to have believed that a criminal investigation into something like subwarning perjury might have been warranted, because when they sought rehearing before the Fourth Circuit, after Mr. Barco's direct appeal, the government said, we think anything that happened here would have been- They weren't speaking for OBR.

[00:05:54] Speaker 05:
I mean, it could very well be that

[00:05:57] Speaker 05:
the office in which the attorney is employed says nothing bad happened here and that OPR could come to a different conclusion, correct?

[00:06:05] Speaker 01:
Sure, so they certainly could come to a different conclusion, but I think, again, it goes to the purpose of the investigation when it was initially referred to OPR, and it makes it seem that much more unlikely that OPR would have been handed a referral and told, we want you to look into whether this AUSA was potentially suborning perjury.

[00:06:23] Speaker 01:
And that might have been what OPR did, but if that's the case, then their declaration should have been more specific about that.

[00:06:30] Speaker 06:
You keep faulting them for lack of specificity.

[00:06:34] Speaker 06:
I'm reading from the Barnett Declaration, committed specific acts of professional misconduct, which, if proved, could result in civil or criminal penalties.

[00:06:46] Speaker 06:
That's far more specific than in Jefferson, which was saying, everything we collect is for law enforcement purposes.

[00:06:52] Speaker 06:
So what's inadequate about that?

[00:06:53] Speaker 01:
Well, the language about could result in in civil or criminal penalties is in fact the language that the court used in rural housing to define what counts as a law enforcement investigation.

[00:07:05] Speaker 01:
And so the sort of recitation of just what the legal standard is I think doesn't really answer the question about whether that was what OPR was doing when it undertook this investigation.

[00:07:15] Speaker 01:
It's more of a conclusory statement to say

[00:07:18] Speaker 01:
these are investigations that could have resulted in civil or criminal penalties without specifying what types of criminal penalties and what OPR was really looking at and determining whether there was potentially deliberate misconduct in this case, the sort of thing that would allow an inference that that was a real possibility.

[00:07:35] Speaker 01:
But if I could move very quickly to the documents that OPR produced and withheld under Exemption 6 and 7C,

[00:07:43] Speaker 01:
Again, so there's the set of documents for which OPR took a Glomar response and neither confirm nor deny, and those are ones pertaining to AUSA Wheeler apart from his handling of Mr. Barco's case.

[00:07:54] Speaker 01:
Then there's the category of records pertaining to that case.

[00:07:58] Speaker 01:
And what OPR said, again, is that these are law enforcement records.

[00:08:01] Speaker 01:
Now, even if the court were to accept the argument that these were compiled for law enforcement purposes, there are compelling interests in disclosure here that should outweigh any privacy interests retained by AUSA Wheeler.

[00:08:13] Speaker 01:
And I think a couple of things are particularly relevant.

[00:08:15] Speaker 06:
And you recognize that as AUSA, he has some significant privacy interests here, right?

[00:08:20] Speaker 01:
Yes.

[00:08:21] Speaker 06:
This isn't a high-level public figure government official.

[00:08:24] Speaker 06:
So it has to be a pretty compelling showing of public interest, right?

[00:08:28] Speaker 06:
Yes, Your Honor, and the court... I think beyond any individual misconduct in which he would be engaged.

[00:08:34] Speaker 01:
Yes, Your Honor, and I think, as the court did say in Kimberlin, those interests are somewhat diminished by the fact that the allegations here have already been made public, his name has already been made public.

[00:08:45] Speaker 05:
Now, he certainly retains some residual privacy interests against... Well, he's not, I mean, he may not be a high-level supervisor, but he was a head of a unit or a section, and so maybe mid-level or something like that, correct?

[00:08:59] Speaker 01:
Yes, your honor, most definitely that that is relevant to this case.

[00:09:02] Speaker 01:
He was the head of the economic crimes unit in the office.

[00:09:06] Speaker 01:
And as particularly relevant here, this was in an office that the Fourth Circuit faulted for having a pattern of potential discovery violations and discovery abuses.

[00:09:14] Speaker 01:
So

[00:09:14] Speaker 01:
He had a supervisory role in an office that the Fourth Circuit found had a troubling pattern of misconduct that occurred not just in this case, but in several cases that the court had seen before it.

[00:09:24] Speaker 01:
And in that type of circumstance, when someone has a supervisory role, I think there's all the more interest in knowing about whether that person committed misconduct in this case, and if he did, what, if anything, OPR did about it.

[00:09:36] Speaker 01:
Knowing whether there's been a thorough investigation is also a cognizable public interest that this Court has pointed out.

[00:09:43] Speaker 05:
Because the FOIA request was just for any OPR referrals or investigations of him.

[00:09:49] Speaker 05:
Is there a privacy difference between substantiated and unsubstantiated?

[00:09:55] Speaker 01:
Yes, Your Honor.

[00:09:57] Speaker 01:
The court delineated and favished what the sort of threshold showing was that one needs to show to be able to show that there is a public interest in disclosure.

[00:10:06] Speaker 01:
And what the court said is that the FOIA requester has to make a meaningful evidentiary showing that would enable a reasonable belief that misconduct may have occurred.

[00:10:15] Speaker 06:
And in this case, that showing really... But it has to be more than just individual misconduct, doesn't it?

[00:10:19] Speaker 06:
It's got to be some showing that there's some systemic problem.

[00:10:24] Speaker 01:
I don't think the court has required systemic misconduct in order to find a public interest.

[00:10:28] Speaker 01:
And in some cases where it has required disclosure, like in Stern versus FBI, the court didn't find systemic misconduct.

[00:10:35] Speaker 01:
It found that that particular case, there was something significant enough that warranted disclosure.

[00:10:40] Speaker 01:
And in this instance, I would say that systems are made up of people.

[00:10:43] Speaker 01:
And this was someone who was in charge of a unit in this office.

[00:10:47] Speaker 01:
And it's a request for records that go to whether this person committed serious potential discovery abuses.

[00:10:53] Speaker 01:
So Ms.

[00:10:53] Speaker 04:
Brill, it sounds like you're asserting a kind of two-tiered public interest.

[00:10:58] Speaker 04:
One is the public interest in whether the misconduct that the Fourth Circuit charges in its opinion actually occurred.

[00:11:06] Speaker 04:
And relatedly, maybe they're not entirely distinct, but I heard you kind of making a distinction, relatedly an interest in how did the government respond and whether its response to that was adequate.

[00:11:18] Speaker 04:
Is that right, that you could have a two-tiered?

[00:11:21] Speaker 01:
Yes, Your Honor.

[00:11:23] Speaker 01:
what the OPR actually found about this AUSA and also an interest in knowing about how it handled that type of allegation and the circumstances here.

[00:11:32] Speaker 04:
And the public.

[00:11:33] Speaker 04:
Under Favish, there's a burden on the requester to articulate grounds that would make a reasoned person think that there was something wrong.

[00:11:42] Speaker 04:
And the grounds, it seems like the Fourth Circuit pretty squarely gives grounds on the first of those two tiers.

[00:11:48] Speaker 04:
Does Mr. Barco have to and did he meet the famous standard with respect to the sort of related question of whether the government adequately investigated?

[00:12:00] Speaker 01:
Well, I wouldn't say that the showing has to be sort of spliced up into a particular showing of wrongdoing with respect to AUSA Wheeler and a showing that OPR somehow mishandled this.

[00:12:10] Speaker 01:
In Stern, for example, the court did say that there was an interest in knowing about the thoroughness of an internal investigation.

[00:12:17] Speaker 01:
I think it said the same thing in

[00:12:19] Speaker 01:
and the request for records on the case involving former Congressman Tom DeLay.

[00:12:25] Speaker 01:
It said there's an interest in knowing about the thoroughness of an investigation.

[00:12:28] Speaker 01:
And if I can just add, if I have one minute to or less than a minute to say this, the public interest here also warrant in favor of granting at the very least a fee waiver in this case.

[00:12:39] Speaker 01:
It's been submitted that the public interests here are substantial, and the threshold required for a fee waiver is really a lesser showing than is required to override someone's privacy interests.

[00:12:50] Speaker 01:
The Court has no further questions.

[00:12:51] Speaker 06:
We'll give you some time back.

[00:12:53] Speaker 06:
Thank you.

[00:12:54] Speaker 00:
We'll hear from the government.

[00:12:58] Speaker 00:
Good morning.

[00:12:59] Speaker 00:
May it please the Court, I'm Josh Kolski on behalf of the FLEs.

[00:13:03] Speaker 00:
In this case, OPR investigated specific alleged acts of a particular individual, and those acts could, if proved, result in civil or even criminal sanctions.

[00:13:14] Speaker 05:
Therefore, the records generated... What OPR investigation won't that be true?

[00:13:18] Speaker 05:
I'm sorry, I couldn't... For what OPR investigation will you not be able to say that same thing?

[00:13:23] Speaker 00:
An OPR investigation into conduct that was purely a potential violation of DOJ rules, such as if OPR investigated someone for not getting their appellate brief reviewed before filing them.

[00:13:37] Speaker 05:
Is that how, I mean, when a referral comes, do you only investigate if someone says, I want this investigated for misconduct?

[00:13:45] Speaker 05:
Do you know up front whether you're going to look at violations of internal rules, bar rules, civil rules, criminal rules, or do you sort of have to get into it and see what someone may think it looked like, just a failure to follow internal policy, but then you could very well discover something more?

[00:14:04] Speaker 05:
I assume that happens sometimes.

[00:14:05] Speaker 00:
I think that there are some instances where the conduct is just clearly of the sort that would not lead to civil or criminal sanctions, like the example I gave.

[00:14:16] Speaker 00:
But in most situations... You really get a lot of referrals.

[00:14:19] Speaker 05:
I'm sorry?

[00:14:20] Speaker 05:
You get a lot of referrals for not checking with the supervisor before filing briefs.

[00:14:24] Speaker 05:
I would think the supervisor would take care of that directly.

[00:14:26] Speaker 00:
I don't think there's many of those.

[00:14:28] Speaker 05:
No, I would think that most, if not all, your referrals would be, you know, pretty serious by the time something gets referred to OPR.

[00:14:35] Speaker 00:
I think that's... Okay.

[00:14:36] Speaker 05:
And so then everything's going to be on it.

[00:14:38] Speaker 05:
At least civil or bar.

[00:14:41] Speaker 05:
Do you consider bar enforcement proceedings to count as a form of civil liability?

[00:14:46] Speaker 00:
Yes, Your Honor.

[00:14:47] Speaker 05:
Okay.

[00:14:47] Speaker 05:
So then just about anything that comes to you,

[00:14:50] Speaker 05:
You can be able to say it's just always going to be law enforcement.

[00:14:54] Speaker 00:
I think it would typically be the case that it would be a law enforcement investigation.

[00:14:57] Speaker 05:
More than typically.

[00:14:59] Speaker 05:
It seems like, again, if you're only getting, I'm assuming you're not getting the trivial referrals that a supervisor can handle herself, but that you're getting things that are more substantial, at which point

[00:15:09] Speaker 00:
My understanding is that there are some circumstances where OPR is investigating purely potential violations of DOJ policy.

[00:15:18] Speaker 04:
Does OPR make a determination upfront?

[00:15:23] Speaker 04:
I mean, it seems like you might conduct an investigation differently if OPR believed that there really were criminal stakes.

[00:15:33] Speaker 04:
and or going to court kind of civil stakes.

[00:15:38] Speaker 04:
Is that the case that OPR internally has sort of any kind of points of determination putting things on the kind of internal investigations track versus putting it on the this is more serious track?

[00:15:55] Speaker 00:
My understanding is that there's no differentiation and there's no threshold determination that this is a, you know, we're going to investigate criminal liability here.

[00:16:05] Speaker 00:
They investigate the conduct and that may not yield a very lengthy investigation because they may look at it and decide there's nothing there.

[00:16:17] Speaker 00:
It may evolve into something much more serious, where they find evidence of criminal wrongdoing and they make a referral to another office.

[00:16:28] Speaker 00:
So I think what's important for the Exemption 7 threshold issue is it's looking at the conduct,

[00:16:35] Speaker 00:
It's not that the agency makes some sort of determination that this is a potentially criminal investigation.

[00:16:42] Speaker 00:
They're looking at the conduct and they follow the evidence where it may lead.

[00:16:48] Speaker 04:
But didn't we, in rural housing, there was some acknowledgement that to read the rule the way that you appear to be asking us to read it, the exception would swallow the rule, that there really wouldn't be situations in which an OPR completely internal disciplinary employee investigation would be treated as non-law enforcement under Section 7C.

[00:17:17] Speaker 00:
And I think there could be those situations.

[00:17:21] Speaker 00:
I would agree it's not going to be typical.

[00:17:24] Speaker 04:
What if there were a situation in which an allegation of misconduct comes in to OPR, and OPR looks at all the information before it and says, this is really overblown, this is not going to be a problem, investigates it with that template in mind, and lo and behold, nothing illegal, civil or criminal, comes to light.

[00:17:47] Speaker 04:
And, you know, in the end a report is made that indeed this was, if anything, a little bit of a lapse in judgment.

[00:17:56] Speaker 04:
In that case, would you be here arguing that that was protected by 7C as a law enforcement investigation?

[00:18:03] Speaker 00:
If the conduct that they were investigating is such that civil or criminal sanctions could result, then yes.

[00:18:11] Speaker 04:
If OPR's view of the conduct, as opposed to the referring court or entity's view, if OPR's view is

[00:18:21] Speaker 04:
nothing law breaking about this, but we will do an investigation.

[00:18:26] Speaker 04:
Of course, if something serious comes up, we will step it up.

[00:18:31] Speaker 04:
But if OPR's assessment from the outset is, no, this is not going to be a violation of law,

[00:18:42] Speaker 04:
because the referring entity might have thought so?

[00:18:44] Speaker 04:
Would you still be here saying this is a law enforcement investigation?

[00:18:48] Speaker 00:
Yes, and I think that gets to the added protections under Exemption 7C compared to Exemption 6.

[00:18:54] Speaker 00:
There's a stronger protection because of the nature of law enforcement proceedings.

[00:19:01] Speaker 00:
There's greater harm to a person if they are associated with those proceedings.

[00:19:07] Speaker 00:
You can't always explain that, well, those allegations didn't amount to very much, or there wasn't a lot of evidence to support.

[00:19:14] Speaker 04:
That really relates to the privacy interest.

[00:19:17] Speaker 04:
If it were, as I hypothesized, there were some situation in which some other entity thought that they were a very serious concern, maybe reaching criminal, but OPR did not.

[00:19:29] Speaker 04:
And then OPR did a complete investigation, and indeed OPR

[00:19:33] Speaker 04:
thought that its view, not the view of the referring entity, was vindicated, what privacy interest would the subject of such investigation have if the referral had been public, basically impugning that individual's reputation

[00:19:54] Speaker 04:
And OPR's investigation clears that individual.

[00:19:57] Speaker 04:
Is there a privacy interest on that individual's part of not having that investigative result made public?

[00:20:05] Speaker 00:
Your Honor, saying if the outcome of the investigation was favorable to the subject.

[00:20:11] Speaker 04:
Yeah, and no law enforcement activity recommended or ensuing.

[00:20:16] Speaker 00:
I think that there is still a privacy interest, even if the information is favorable.

[00:20:24] Speaker 00:
For one thing, there could be an instance where someone is very dissatisfied with the fact that the agents that OPR did not find liability.

[00:20:38] Speaker 00:
And that could result in repercussions for the subject of the investigation.

[00:20:44] Speaker 00:
where someone feels like, you know, justice wasn't done.

[00:20:49] Speaker 00:
So whether the information is favorable or disfavorable, I think there's a privacy interest regardless.

[00:20:55] Speaker 04:
Although I think Ms.

[00:20:56] Speaker 04:
Brill would say, well, that's a public interest.

[00:20:59] Speaker 04:
You know, that runs up against a public interest in the broader public, at least in a case like this where the Fourth Circuit says, we have a problem.

[00:21:08] Speaker 04:
We think there's a lot of

[00:21:09] Speaker 04:
of failings here, and it leaves the public in a kind of cliffhanger position.

[00:21:15] Speaker 04:
What does the executive branch do about this?

[00:21:18] Speaker 04:
So there is a public interest there too, no?

[00:21:20] Speaker 04:
At least if we were going to apply that analysis to this case.

[00:21:24] Speaker 00:
A public interest in understanding the thoroughness of the investigation.

[00:21:28] Speaker 04:
Precisely.

[00:21:30] Speaker 00:
This court has recognized public interests of that sort.

[00:21:34] Speaker 00:
I think that it's difficult to say that that public interest would be significantly advanced here, where this is one isolated investigation.

[00:21:47] Speaker 00:
There's already a great deal of public information out there about this issue.

[00:21:52] Speaker 00:
And also, there's public information about OPR's investigations.

[00:21:57] Speaker 00:
And that information is at the aggregate level.

[00:22:01] Speaker 00:
It's not one data point, like here.

[00:22:03] Speaker 00:
We cited two.

[00:22:04] Speaker 06:
Are you suggesting that had Mr. Barton just made his inquiry broader than Wheeler?

[00:22:14] Speaker 06:
have a better case in your mind?

[00:22:17] Speaker 00:
I'm not suggesting that, and we would always have to evaluate if the FOIA requests were different, we would have to evaluate that and consider that.

[00:22:27] Speaker 06:
But it sounds like you're saying because he was focused on alleged misconduct by AUSA Wheeler, that it doesn't get to the public interest issue.

[00:22:36] Speaker 00:
Yeah, well what I'm saying is the

[00:22:38] Speaker 00:
What OPR did in any one case is not very probative, particularly when there's already a lot of public information about OPR's practices generally.

[00:22:47] Speaker 00:
We cited to an OPR annual report in our brief.

[00:22:50] Speaker 00:
That contains a great deal of aggregate-level information.

[00:22:54] Speaker 00:
How many matters are referred to OPR?

[00:22:58] Speaker 00:
What were the outcomes?

[00:22:59] Speaker 00:
And it has, in fact, even descriptions of summaries of many of the investigations without revealing personally identifiable information.

[00:23:07] Speaker 05:
I don't understand that argument at all.

[00:23:10] Speaker 05:
Because whatever general statistics there are about what OPR does, how they handled a particular case in which there had been sort of a public

[00:23:21] Speaker 05:
denunciation of attorney conduct is something of acute public interest.

[00:23:28] Speaker 05:
It doesn't matter how well you did in other cases.

[00:23:31] Speaker 05:
People want to know what you did

[00:23:33] Speaker 05:
when that landed in your lap, right?

[00:23:37] Speaker 05:
That's a legitimate public interest in its own right, is it not?

[00:23:40] Speaker 00:
I'm not saying there's no public interest.

[00:23:42] Speaker 05:
No, it's a serious interest when a court of appeals unanimously refers a matter to OPR.

[00:23:49] Speaker 05:
The U.S.

[00:23:49] Speaker 05:
Attorney refers the matter to OPR, and the federal government tells the Fourth Circuit we're changing policies as a result of this situation.

[00:23:59] Speaker 05:
It's hard for me to think of

[00:24:01] Speaker 05:
you know, many stronger interests.

[00:24:03] Speaker 05:
And that's a pretty strong public interest.

[00:24:07] Speaker 00:
And yet there are also strong privacy interests.

[00:24:10] Speaker 00:
And this same type of public interest has been raised in other cases, including Kimberlin.

[00:24:17] Speaker 00:
It was raised in PETA versus HHS and Bloomgarden.

[00:24:21] Speaker 00:
And in each of those cases, the privacy interests were found to outweigh that public interest.

[00:24:25] Speaker 05:
Do they have announced policy changes by the government in those two cases, in those three cases?

[00:24:31] Speaker 00:
I don't believe so.

[00:24:32] Speaker 05:
And weren't those before OPR's role narrowed?

[00:24:36] Speaker 05:
I mean, back then, OPR was investigating civil and criminal liability, whereas here, now, OPR is really confined to the sort of internal disciplinary and maybe bar referral type of investigation, right?

[00:24:51] Speaker 00:
Well, no.

[00:24:51] Speaker 00:
OPR, so OPR investigates allegations of attorney misconduct.

[00:24:56] Speaker 00:
And if those allegations involve possible civil or criminal liability, they still investigate.

[00:25:01] Speaker 05:
Has LPR's role changed between the two cases?

[00:25:05] Speaker 05:
Pursuant to regulatory changes?

[00:25:08] Speaker 00:
Well, its role changed with the creation of OIG in 1989.

[00:25:11] Speaker 00:
The rule changes that I believe Your Honor is referring to were in 2006, and that was to codify the changes that had been in place since 1989.

[00:25:20] Speaker 05:
Right, and those changes are?

[00:25:22] Speaker 00:
matters after the creation of OIG, certain matters were referred directly to OIG instead of to OPR.

[00:25:30] Speaker 05:
But OPR's... And if you pick up an investigation, OPR picks up an investigation and they say, whoa, there's a real criminal issue here.

[00:25:38] Speaker 05:
Does OPR just keep going along or does it refer to OIG?

[00:25:42] Speaker 00:
OPR would make findings and if it believed there was a basis for criminal liability, it would refer that to either United States.

[00:25:51] Speaker 05:
Would it do the whole investigation or would it, when it looks and opens a file and let's say it becomes pretty clear or quite clear early on, this is a criminal matter?

[00:26:02] Speaker 05:
Does OPR just keep going or does it refer that criminal matter to OIG?

[00:26:08] Speaker 00:
I believe it's still, it keeps going.

[00:26:10] Speaker 00:
It makes its findings, but it would, for I guess the criminal portion of that, it would refer that to a United States attorney's office or the public.

[00:26:18] Speaker 05:
And its investigation would then be focused on internal.

[00:26:21] Speaker 05:
Its findings and investigation would be focused on the presumably attendant violations of internal standards or professional standards.

[00:26:30] Speaker 00:
I'm not sure how, sort of at what point it sort of breaks off, if it does or if it just all happens at the end, if this OPR concludes its investigation and at that time makes its referral.

[00:26:43] Speaker 00:
I'm not sure of the sequence.

[00:26:44] Speaker 05:
I'm just trying to connect.

[00:26:45] Speaker 05:
My understanding is OPR's role is to figure out whether internal disciplinary rules or maybe a bar referral, professional standards have been violated.

[00:26:54] Speaker 05:
And beyond that, if its findings point to something else, it sets that over to

[00:26:59] Speaker 05:
OIG or elsewhere.

[00:27:00] Speaker 00:
I guess I don't believe OPR's mission is quite that.

[00:27:08] Speaker 05:
Is OPR doing a criminal investigation?

[00:27:11] Speaker 00:
Well, it investigates conduct that may result in criminal sanctions, but it certainly can't bring criminal charges.

[00:27:18] Speaker 04:
So Mr. Kolesky, just to get clear what you think we should be looking to to determine whether the purpose of an investigation was for law enforcement,

[00:27:30] Speaker 04:
should we look to the way the referral is framed or should we look to

[00:27:37] Speaker 04:
any possible consequences from the conduct identified in the referral, or is there a purpose that attaches at the threshold for OPR?

[00:27:50] Speaker 04:
How is one to determine, what are we even supposed to be focusing on?

[00:27:55] Speaker 04:
Because what I'm concerned about, let me just put it out, is that the way you frame the standard, it appears that any conduct

[00:28:03] Speaker 04:
that's been identified that could conceivably be packaged as a violation of the civil or the criminal law within that investigation would then come under 7C and that's broader I think than our court has yet framed it.

[00:28:19] Speaker 00:
Well, I look back to the test from rural housing, which it talks about investigations focusing, quote, directly on specifically alleged illegal acts, illegal acts of particularly identified officials, acts which could, if proved, result in similar criminal sanctions, end quote.

[00:28:37] Speaker 00:
And so I think the focus is on the acts.

[00:28:40] Speaker 00:
What acts or what conduct is being investigated?

[00:28:43] Speaker 00:
And if that is conduct that could, if proven, result in civil or criminal sanctions, then I think that is a law enforcement investigation.

[00:28:53] Speaker 04:
And does OPR typically, when it begins an investigation and interviews an employee, do they typically merandize the employee?

[00:29:03] Speaker 04:
And or counsel them that they should have a lawyer?

[00:29:08] Speaker 06:
I don't know the answer to that, Your Honor.

[00:29:11] Speaker 06:
Can I go back to the public interest question that I had earlier?

[00:29:15] Speaker 06:
In your brief, you rely on Boyd versus criminal division.

[00:29:19] Speaker 00:
Yes.

[00:29:19] Speaker 06:
In light of your colloquy with Judge Millett, do you think Boyd is still going to be?

[00:29:25] Speaker 06:
Boyd says a single instance of a Brady violation doesn't trigger the public interest.

[00:29:32] Speaker 06:
Is that what we're dealing with here, or are we dealing with something more significant than a single instance of a Brady violation?

[00:29:38] Speaker 00:
The Fourth Circuit certainly raised the issue of whether there was a pattern of discovery abuse, and I think that may be what Your Honor is getting to.

[00:29:54] Speaker 06:
And so Boyd doesn't really work here, does it?

[00:29:57] Speaker 06:
I mean, Boyd is all about a single instance of a Brady violation.

[00:30:00] Speaker 06:
That's not this case, is it?

[00:30:02] Speaker 00:
Well, the district court reviewed all of the OPR records in camera and determined that they didn't show anything more systemic, broader prosecutorial abuse within the Department of Justice.

[00:30:17] Speaker 00:
So even if there was a showing of something more broad generally,

[00:30:22] Speaker 00:
These particular records, the OPR records, according to the district court, did not show, would not advance that public interest.

[00:30:31] Speaker 04:
But the public has, if there has been, if a reasonable person looking at the circumstances might think that there was

[00:30:38] Speaker 04:
a pattern of violation of law, the public has an interest in knowing how the government addressed that either way, right?

[00:30:46] Speaker 04:
If it turns out not to be true, the public would want to know that.

[00:30:50] Speaker 04:
And if it turns out to be true, the public would want to know that.

[00:30:54] Speaker 04:
I mean, it's not that there's an asymmetry where it turns out that there wasn't any such pattern, that the public has no interest in so learning.

[00:31:02] Speaker 04:
I thought in Rosati that we said, either way, public interest.

[00:31:08] Speaker 00:
Well, the government has responded to that determination by the Fourth Circuit in its petition for rehearing.

[00:31:17] Speaker 00:
And the government stated its position there and stated why it didn't believe that the three cases that were cited were examples of discovery abuse.

[00:31:25] Speaker 00:
And in fact, in one of those cases, the Fourth Circuit expressly found that there was no bad faith.

[00:31:31] Speaker 00:
In another one, the Fourth Circuit had determined that a document, a transcript that had not been turned over to the defense didn't have to be turned over.

[00:31:41] Speaker 05:
Did the government apologize or not apologize for the attorney's conduct in that rehearing petition?

[00:31:47] Speaker 00:
In the Barco case?

[00:31:48] Speaker 05:
In the recurring petition, did it apologize to the attorney's conduct?

[00:31:52] Speaker 00:
I don't think it used those words.

[00:31:54] Speaker 00:
It stated that it regretted that there had been some discovery failures.

[00:31:58] Speaker 05:
And did it say that in light of the Fourth Circuit's decision, it was making a number, three or four of them as I counted, policy changes?

[00:32:05] Speaker 00:
Yes, it did.

[00:32:07] Speaker 05:
And so why then is there not a substantial public interest in understanding the OPR investigation

[00:32:17] Speaker 05:
and how this AUSA's head of the environmental crime section was investigated and the outcome.

[00:32:27] Speaker 05:
I'm just declaring that we didn't find anything

[00:32:30] Speaker 05:
given the contrast between the Fourth Circuit decision, the rehearing petition, and that is itself a matter of public interest, is it not?

[00:32:38] Speaker 05:
At least on the question of how OPR is doing its job.

[00:32:41] Speaker 05:
Which might be perfectly fine, to be clear.

[00:32:43] Speaker 05:
It might be exactly right.

[00:32:44] Speaker 05:
I'm not saying one thing one way or the other, but there's certainly an extraordinary public interest.

[00:32:49] Speaker 00:
And I agree that there's some public interest in knowing how OPR does its job.

[00:32:53] Speaker 00:
Some?

[00:32:53] Speaker 05:
What do you mean by some?

[00:32:54] Speaker 00:
Well, the issue, I guess,

[00:32:58] Speaker 00:
The public interest question has two parts.

[00:33:01] Speaker 00:
There needs to be a significant public interest, and it needs to be advanced by disclosure of the particular records at issue.

[00:33:06] Speaker 00:
And so the question is, how much is that public interest advanced by these records?

[00:33:13] Speaker 00:
Given that there's already public information, there's numerous filings in Mr. Bartko's criminal case, the Fourth Circuit's opinion, the government's petition for rehearing.

[00:33:22] Speaker 05:
What do any of those reveal about OPR's investigation?

[00:33:26] Speaker 05:
How do they show that OPR

[00:33:27] Speaker 05:
did his job without influence, thoroughly, you know, did it thoroughly, without influence, without favoritism, and I'm not suggesting that happens at all.

[00:33:38] Speaker 05:
I'm just, that's, you know, what the public's going to be wondering.

[00:33:42] Speaker 05:
How do any of those records show that?

[00:33:44] Speaker 05:
That's what he's trying to get, to the extent he's trying to get at that aspect of this inquiry.

[00:33:47] Speaker 00:
Well, I think to some extent, well, the documents that reflect more specifically on OPR's investigation would be records that it did release.

[00:33:56] Speaker 00:
It did release some records here.

[00:33:58] Speaker 00:
And the Vaughn Index, in this case, actually, you know, it lists the documents, at least the ones that were generated by OPR relating to this investigation.

[00:34:09] Speaker 00:
And there's a fair amount of information that one could glean

[00:34:13] Speaker 00:
about the investigation from that Vaughn index.

[00:34:16] Speaker 05:
That's nothing like the sufficient external or public information that you had in the Favish.

[00:34:23] Speaker 05:
A Vaughn index is nothing remotely like.

[00:34:25] Speaker 05:
There were Vaughn indexes in Favish.

[00:34:28] Speaker 00:
Right, and I'm not suggesting that certainly there would be additional information disclosed if the records themselves were revealed.

[00:34:36] Speaker 00:
uh... but again it's it's a balancing there are significant privacy interests here and in other cases this court has found that public interest in learning about the thoroughness of an investigation did not outweigh the privacy interests involved

[00:34:51] Speaker 05:
Can I ask one quick question on the grand jury, Exemption 3, the thumb drive issue?

[00:34:57] Speaker 05:
How does either the declaration that was submitted here or the district court's explanation of in-camera review satisfy our Laveau decision, which, to be fair to everyone, came after the district court's decision?

[00:35:12] Speaker 00:
I think particularly the Hardy declaration that was submitted in camera explains that the documents on the thumb drive, if they were combined with certain public information, could identify the fact that they were subpoenaed by a grand jury.

[00:35:37] Speaker 00:
Great.

[00:35:37] Speaker 00:
Thank you very much.

[00:35:39] Speaker 06:
I think we used up all your rebuttal time, but we'll give you back a minute.

[00:35:48] Speaker 01:
Thank you.

[00:35:48] Speaker 01:
So just a couple of quick points I'd like to raise.

[00:35:51] Speaker 01:
It is the case that the cases that the government has relied on, where the court has come out and said that there is an insufficient public interest, have all involved what the court has characterized as isolated incidents.

[00:36:03] Speaker 01:
And that was true in Kimberlin, it was true in Bloomgarden, and it was true in Boyd.

[00:36:08] Speaker 01:
And I think that makes those cases fundamentally different from this one, where you had one substantiated incident where there are reasonable grounds to believe there was misconduct, but also a pattern that was found by the Fourth Circuit, by the unanimous panel in that opinion.

[00:36:22] Speaker 01:
And the connection between a substantiated incident of misconduct coupled with a broader pattern

[00:36:28] Speaker 01:
creates a public interest that should be sufficient to override any privacy interests at stake here.

[00:36:33] Speaker 01:
For similar reasons, Mr. Barco is at the least entitled to a fee waiver for his additional requests that were made for documents pertaining to his case from OPR.

[00:36:43] Speaker 01:
And for those reasons, I urge the court to reverse the decisions of the district court.

[00:36:47] Speaker 06:
Thank you.

[00:36:47] Speaker 06:
Thank you very much.

[00:36:48] Speaker 06:
Ms.

[00:36:48] Speaker 06:
Barco, you were appointed by the court to represent the appellant in this case, and we thank you for your assistance.

[00:36:54] Speaker 06:
Thank you.

[00:36:54] Speaker 06:
The case is submitted.