[00:00:00] Speaker 02:
Case number 16-5315, Hall and Associates Appellant vs. Environmental Protection Agency.

[00:00:07] Speaker 02:
Mr. Hall for the appellant, Mr. Feathernroff for the appellate.

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May it please the court?

[00:00:35] Speaker 01:
Good morning.

[00:00:36] Speaker 01:
My name is John Hall and I'm counsel for Hall and Associates in this matter.

[00:00:40] Speaker 01:
We'd like to reserve two minutes for rebuttal.

[00:00:44] Speaker 01:
This is not your typical FOIA case.

[00:00:48] Speaker 01:
That's true.

[00:00:48] Speaker 01:
EPA's post-summary judgment document release and findings confirm that the agency's legal and factual averments accepted by the district court at summary judgment

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were either baseless or significant issues of material fact existed that should have precluded a grant of summary judgment.

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And I can give you the specifics of those regarding the various FOIAs that were submitted.

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Regarding the October 4th FOIA, which is what we called our broad all-inclusive FOIA request,

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It's now understood that a narrow reading of that request caused the release of only a single one page of internal agency records, not the nonexistence of additional responsive records as the lower court had assumed.

[00:01:37] Speaker 05:
Is it accurate to say that your request in this case asked for all documents that

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proved or disproved a particular fact?

[00:01:47] Speaker 05:
Well, there was a group of – Is that an accurate paraphrase of what your request was?

[00:01:55] Speaker 01:
There were different – in a way, Your Honor, but there were different groups of FOIA requests.

[00:02:00] Speaker 05:
And before the district court, you got to the point where you said what we really wanted, any documents that were responsive to our letter

[00:02:07] Speaker 01:
With regard to the October 4th requests, we said the agency concluded that science misconduct had not occurred and there was a very, very detailed submission given in on the science misconduct issues.

[00:02:24] Speaker 05:
What the agency is concerned about is that you're requesting, not based on a description of the documents originally,

[00:02:32] Speaker 05:
but on something that would have required an analysis by their staff.

[00:02:36] Speaker 01:
Well, Your Honor, that was an analysis that the agency had already conducted.

[00:02:41] Speaker 05:
The agency had already concluded science... So you're admitting that it would have required an analysis as they asked for, as they said.

[00:02:48] Speaker 05:
Well, we were asking... And you got the court, you told the court you'd be satisfied if you got documents that were responsive or were generated because of a particular letter.

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Is that correct?

[00:02:58] Speaker 01:
Well, Your Honor, we certainly were looking for the documents that the agency used to conclude that science misconduct had not occurred.

[00:03:08] Speaker 05:
Why didn't you just ask for that and make this a typical for you case instead of, you've already said this is not a typical for you case, it's not.

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Because usually there's a description that can be followed by the FOIA personnel in an agency, and they can find what you're asking.

[00:03:23] Speaker 05:
Why don't you just answer that to begin with?

[00:03:25] Speaker 01:
Well, Your Honor, we did provide a detailed description of the documents you were looking for.

[00:03:29] Speaker 01:
There were numerous points, technical points, within the record that was submitted, and we were simply asking for, did you analyze this point?

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If there was a record that analyzed that,

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and then please give us that record.

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If there was never an analysis... Like a set of interrogatories.

[00:03:52] Speaker 05:
Like a set of interrogatories.

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Well, Your Honor, the FOIA requests often ask for documents that the agency is using to indicate one thing or another.

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I mean... We know what FOIA requests usually look like because we see an awful lot of them.

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And usually, they're a description that the FOIA personnel, as the agency can handle, without bringing

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the lawyers and the tech personnel in to analyze what the document proves or disproves.

[00:04:19] Speaker 01:
Well, Your Honor, we were very clear on our submission that we were not asking for the creation of any new documents.

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We were not asking for the creation of any new analyses.

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We just wanted the analyses they had already done.

[00:04:33] Speaker 00:
Well, that's not, I mean, your December 22nd requests don't say provide us with all records you look at.

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even if we accept your statement is correct approach.

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You say, provide us with all records or factual analysis that shows a statement is incorrect.

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Would that not sweep in any document anywhere in the agency, even if it was unrelated to this particular letter exchange, that would bear on the correctness or not?

[00:05:03] Speaker 01:
Well, Your Honor, we made it very clear when the agency, the initial FOIA request goes in, and the agency... I'm just asking you what that FOIA request means.

[00:05:12] Speaker 00:
I don't think you made it very clear.

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If you made it very clear, it's very sweet.

[00:05:15] Speaker 01:
Well, I think we made it quite clear to the agency that we were not asking them to create any documents.

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I'm not trying to create it.

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I'm saying...

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This is a, EPA is a good-sized agency and they have lots of records on lots of things and you didn't confine your December 22 request to even this exchange about the scientific misconduct letter.

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You said anything that shows this representation to be false.

[00:05:36] Speaker 01:
Well, Your Honor, no.

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The lead-in on the FOIAs all referenced the science misconduct submission.

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They specifically attached a piece of the submission that had gone in and said, the agency has concluded that science misconduct did not occur and we wanted the documents that addressed, if they had them, that addressed a particular issue.

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No, the way you would phrase that is give us all documents you considered in issuing your responsive letter.

[00:06:06] Speaker 01:
Well, yes.

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I mean... Well, go ahead and do that.

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When an agency completes an analysis of a submission, they look at documents and information and reach a conclusion whether or not... So why don't you just ask for all documents?

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that were involved in preparation of your response to our letter.

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In the October 4th request, that's precisely what we did.

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No, you said all documents relied on in that request.

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Relyed on is not the same thing as all documents before you.

[00:06:37] Speaker 01:
Well, Your Honor, the relied on language was just precatory language that we used to say, what did you rely on in order to reach this conclusion?

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What was confusing to the client

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The Great Bay Municipal Coalition was, we got a two page response to a very detailed submission that simply said, science misconduct did not occur.

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So the question was, all right.

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what was the basis for that conclusion given the very detailed submission that went in.

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And fact of the matter is, the only thing we got back on October 4th response, even though we listed categories of email, what emails, email exchanges, did you do any drafts?

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Did you do any analysis of individual issues?

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We asked for all of those things and we got

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a single one-page internal document.

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Then you get the documents and then I'm trying to figure out the stipulation.

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Why the stipulation?

[00:07:40] Speaker 01:
The stipulation at that point, Your Honor, the judge had already ruled that EPA's October 4th response was sufficient with the one-page.

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the judge had said the October 22nd responses were improper because they didn't like the way they were worded, not because of the... Then she rewards them, and then they produce a bunch of documents, and then you stipulate... Right.

[00:08:06] Speaker 01:
That produces the stack of documents that, in fact, EPA had originally collected when the FOIA request went in.

[00:08:13] Speaker 04:
In other words, it was an open... As of today, do you have everything you think you're entitled to?

[00:08:17] Speaker 01:
Well, quite frankly, Your Honor, we don't know.

[00:08:20] Speaker 01:
The response, when we stipulated that there was nothing further, it was to the FOIA, the reworded FOIA, which EPA's own filing made very clear was not the same as the October 4th request or the October 22nd request.

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completely different.

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But what's the point other than for fees, which might be what's the issue here?

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The point other than... Once it gets reworded, let me finish.

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October 4th request, October 22nd request, there's confusion whether it's understandable or not.

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The district court plows through it all, reformulates the request, and that generates a lot of documents.

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You get the documents.

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And why aren't we, at least on the FOIA side of the case, as opposed to the fees side of the case, over?

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Because, number one, we never got a response to the October 22nd FOIAs, ever.

[00:09:20] Speaker 04:
The court ruled that there was... So you're arguing, as you stand here today, that the reformulation of the October 22nd request

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did not produce documents that you should have gotten under the original October 22nd request.

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Or a response that a document did not exist with regard to a particular issue, which by the way, as the court might understand, is a valuable response.

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But she said the district court concluded that these were not properly formulated.

[00:09:49] Speaker 01:
Right.

[00:09:50] Speaker 01:
And that was one of the main legal mistakes of the underlying decision you're on.

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It's the linchpin test that applies to decide whether or not a request is valid, as in the Ninth Circuit dealt with this recently in Yagman.

[00:10:04] Speaker 01:
Whether or not you word something as a question, which sometimes it comes out that way, or you word it kind of complexly because it was a complex issue you were asking about, that's not the issue.

[00:10:16] Speaker 01:
It's whether or not the people who got the request understood what you were looking for.

[00:10:22] Speaker 05:
If the wording of the question or wording of the submission as a question, as an interrogatory, is that really consistent with the FOIA?

[00:10:29] Speaker 05:
Before you deal with asking for data, asking for documents, asking for evidence, it does not deal with asking questions and requiring an answer.

[00:10:42] Speaker 01:
Well, Your Honor, we didn't ask them to produce the response to a question.

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You had to phrase things a certain way given their prior action.

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Their prior action was something did not occur.

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So we said, give us the documents that showed X did not occur.

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If they would have said something did occur, we would have phrased it that way.

[00:11:04] Speaker 01:
It was a function of the underlying decision.

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And fact of the matter is,

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It is very clear in the record that the FOIA custodians, I mean, here's the quote.

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As you see, these requests focus specifically on certain assertions in EPA correspondence or other documents related to Great Bay.

[00:11:27] Speaker 01:
He handed it out and he actually got a set of responsive documents.

[00:11:33] Speaker 01:
It wasn't.

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So they actually had the documents.

[00:11:35] Speaker 00:
They understood what we were looking for.

[00:11:36] Speaker 00:
Well, to be clear, I think the affidavit says potentially responsive.

[00:11:40] Speaker 00:
And then when they were trying to figure out what was responsive, and obviously to think about exemptions, is when they, at least from their perspective, got tied up in knots by the nature of your question, which seemed to be making, asking them to make a value judgment about the

[00:11:54] Speaker 00:
Proof value according to each particular document.

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I might have might observe your honor the EPA region one who got the same We have submitted for a request like this Numerous times to the agency in the past on this same case.

[00:12:11] Speaker 01:
We sent the virtually the same they weren't

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of those prior requests before us in this case?

[00:12:21] Speaker 01:
Almost certainly, Your Honor.

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They're in the record.

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A matter of fact, in the district court itself noted, EPA was previously able to respond to these kind of requests.

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And in fact, Region 1, who got similar requests, was able to respond as soon as we clarified

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We're not asking for anybody to generate any new records, answer any new questions.

[00:12:44] Speaker 01:
We just want to know.

[00:12:45] Speaker 01:
You just went through a science misconduct analysis.

[00:12:48] Speaker 04:
Can I ask a question about something the district court said and then get your reaction to?

[00:12:53] Speaker 04:
So the district court said on September 27th,

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2016 ruling.

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Hall neither seeks a single additional document nor for the EPA to perform a single additional search.

[00:13:04] Speaker 04:
Instead, the sole result that Hall seeks from the courts for vision of its entire summary judgment decision would be an increase in the attorney's fees that Hall contemporaneously applied for.

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your reaction?

[00:13:16] Speaker 01:
Well, that's just simply not true, Your Honor.

[00:13:20] Speaker 01:
The fact that the court ruled just because the way you formed a request, not whether the person understood it, means the agency can just go, I don't like the way it's worded.

[00:13:33] Speaker 01:
That was a key issue.

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We were asking for the summary judgment decision in our Rule 54B motion to be overturned given the prior

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given the documents that we now knew.

[00:13:44] Speaker 01:
I have to say that in particular with regard to the October 4th FOIA, it was extremely frustrating.

[00:13:54] Speaker 01:
We've been practicing for 35 years on Clean Water Act issues that the agency would have one page.

[00:14:01] Speaker 03:
I know, but then you got it.

[00:14:02] Speaker 03:
I mean, why does it matter now?

[00:14:07] Speaker 01:
That right, but the agency narrowly construed and said, I understand, but you got it eventually.

[00:14:16] Speaker 01:
Well, with regard to October 4th, I assume.

[00:14:21] Speaker 01:
I assume at this point there's probably no other records.

[00:14:25] Speaker 01:
That's what I assume.

[00:14:25] Speaker 03:
Right.

[00:14:26] Speaker 01:
With regard to October 22nd, true.

[00:14:29] Speaker 01:
And with regard to the court's ruling on the validity of EPA's October 4th response, also incorrect.

[00:14:37] Speaker 01:
EPA actually had collected all these records.

[00:14:41] Speaker 01:
And, you know, Your Honor, your point made about exemptions, they collect what they believe to be responsive records.

[00:14:49] Speaker 01:
and then rather than tell you that they're doing an exemption of some sort or that they collected records, they just decide, I'll read the FOIA to say that none of those should be disclosed.

[00:15:02] Speaker 01:
That's not proper under any number of cases.

[00:15:06] Speaker 05:
Following up on Judge Kavanaugh's question, what is it you're really asking of us today?

[00:15:11] Speaker 05:
Your final sentence in your prayer for relief asks about the attorney fees.

[00:15:16] Speaker 05:
The lead-ins to it

[00:15:18] Speaker 05:
I'm not sure what it is you're asking for in your concluding paragraph in your brief.

[00:15:26] Speaker 01:
We clearly want the summary judgment ruling overturned.

[00:15:32] Speaker 05:
And then what happens after it's overturned?

[00:15:35] Speaker 01:
Well, what would happen at that point, certainly with regard to October 22nd, because the

[00:15:41] Speaker 01:
the agency staff understood what we were looking for, it would go back to the... Can you give me a short answer to what it is you would get after the summary judgment?

[00:15:52] Speaker 01:
After summary judgment, it would be the October 22nd responses were valid for a request, and the agencies required to answer them as worded.

[00:16:00] Speaker 00:
Well, what basis do you have for believing that there's any gap between

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what you would have gotten with your formulated October 22nd request and the reformulated October 22nd request done by the district court.

[00:16:15] Speaker 01:
Oh, I think the answer to the vast majority of the October 22nd request, so we have no documents.

[00:16:21] Speaker 01:
There are no responses.

[00:16:23] Speaker 01:
In other words.

[00:16:23] Speaker 00:
Well, how do you, I mean, it was done as a more global request, and she rejected your claim to say, you know, which documents go with rich question.

[00:16:30] Speaker 00:
And so, and you got, what, 50-something documents.

[00:16:34] Speaker 00:
And you have a basis, you say, for believing that that was not an adequate response?

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That they're holding something back?

[00:16:45] Speaker 01:
Well, Your Honor, a response that I don't have documents addressing an issue is not the same as handing me a set of documents saying here's the response.

[00:16:55] Speaker 00:
It's important for the clients to know which... So then is your objection to the reformulation of the request or do you accept the reformulation of the request and you're challenging that part of the district court's decision that said they don't have to say this document goes with this question and this one goes with that question?

[00:17:10] Speaker 01:
We certainly don't agree that the district court should have reformulated our request

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and especially in light of the ability of the agency staff to have understood exactly what we submitted.

[00:17:22] Speaker 00:
Okay, so if your objection is to reformulation, not to her refusal to have them designate which documents went with which of your original questions.

[00:17:30] Speaker 00:
So we put that aside.

[00:17:31] Speaker 00:
And so it's really just the reformulation, then why, again, how do we know that you would have gotten, at that point, that you have to have some basis for believing that there were more documents you would get if you hadn't reformulated your request?

[00:17:43] Speaker 01:
Well, I guess we'll find out when the agency is actually required to respond to the request as it was submitted.

[00:17:48] Speaker 01:
Again, October 4th, I presume the pile of documents is really the complete record of what they had, which is what we were trying to get, and actually would have completely obviated any, even raising the October 4th issue.

[00:18:03] Speaker 01:
I mean, had we gotten that, we would have said, fine, I guess that's their full set of information, but that's not what we got.

[00:18:10] Speaker 01:
And October 22nd, they just refused to respond as submitted.

[00:18:16] Speaker 04:
Okay, why don't we hear from the government, and then we'll give you some time in rebuttal.

[00:18:19] Speaker 04:
Thank you.

[00:18:25] Speaker 02:
May it please the Court, Peter Pfaffenroth for the EPA.

[00:18:29] Speaker 02:
This case is really about an attempt to weaponize FOIA, as Judge Santel recognized.

[00:18:34] Speaker 02:
you cannot make contention interrogatories and pretend that they are a FOIA request.

[00:18:39] Speaker 02:
EPA did, in fact, in good faith, respond once finally

[00:18:44] Speaker 02:
after much prodding by the district court and their agreement on the record to the reformulation of the request.

[00:18:50] Speaker 00:
Why does it matter how it's formulated as long as the request is understood and can be responded to?

[00:18:57] Speaker 00:
I understand there could be arguments about that here given the judgment about disproving something that was asked.

[00:19:04] Speaker 00:
But I don't know why if someone had a perfectly clear FOIA request and they just happened to, like some Jeopardy question, put a question mark at the end of it, it would be a problem.

[00:19:13] Speaker 02:
Right.

[00:19:14] Speaker 02:
The issue here is not about whether it was formulated as a question.

[00:19:18] Speaker 02:
Frankly, their citation to the Ninth Circuit's Yadmin decision... Or is it an interrogatory?

[00:19:21] Speaker 00:
I'm sorry?

[00:19:21] Speaker 00:
Or is it an interrogatory?

[00:19:22] Speaker 00:
As long as it's clear what they want.

[00:19:24] Speaker 00:
Right.

[00:19:25] Speaker 00:
Okay, well, you're starting out with that it was all about their formulation, and that's how EPA initially seemed to respond.

[00:19:30] Speaker 00:
That's my concern.

[00:19:31] Speaker 02:
It's about whether it was vague.

[00:19:33] Speaker 02:
It's about whether it was sufficiently clear.

[00:19:35] Speaker 02:
And the law is clear that the agencies upon receiving a FOIA request are not required to go out and create records.

[00:19:44] Speaker 02:
They're not required to go out and do analysis.

[00:19:47] Speaker 02:
They have to be able to understand the request, and if it's vague, as it was in Yagman, which a case which obviously is not binding on this court, but which I think a fair reading of actually supports how EPA proceeded in this case.

[00:19:59] Speaker 02:
Yes?

[00:20:00] Speaker 04:
I'm trying to figure out why we're here.

[00:20:02] Speaker 02:
I agree.

[00:20:03] Speaker 04:
And I think why we're here, once I went through everything, is the fees.

[00:20:08] Speaker 04:
Because they do the request, the multiple requests.

[00:20:10] Speaker 04:
You say they're confusing.

[00:20:11] Speaker 04:
They say they're not confusing.

[00:20:14] Speaker 04:
But in any event, the documents eventually get produced because the district court manages the case through.

[00:20:22] Speaker 04:
So why aren't they eligible for fees?

[00:20:25] Speaker 04:
Frankly, because they submitted a request

[00:20:31] Speaker 04:
that two requests that eventually produce some documents and isn't that enough to at least make them eligible as opposed to entitled?

[00:20:41] Speaker 02:
Right.

[00:20:41] Speaker 02:
First of all, there's been, as you know, no entitlement analysis here.

[00:20:45] Speaker 04:
I understand that, but there could be a remand for entitlement analysis.

[00:20:50] Speaker 04:
But the eligibility analysis

[00:20:53] Speaker 04:
You make the FOIA requests, as is often the case, there's a lot of back and forth in the district court, a little different in this case, and then documents end up getting produced.

[00:21:05] Speaker 04:
That usually clears eligibility.

[00:21:09] Speaker 02:
It often does, but not always.

[00:21:12] Speaker 02:
As Weisberg, which is cited extensively in our papers, makes clear, there is really quite a bit of analysis of the back and forth.

[00:21:21] Speaker 02:
And it is the district court, which, as the Supreme Court has recognized, is much, much closer to these issues.

[00:21:26] Speaker 02:
And so... That's particularly true on the entitlement prong, but the eligibility, not so much.

[00:21:33] Speaker 02:
At the same time, the district court

[00:21:35] Speaker 02:
saw the, frankly, intransigence of the other side in agreeing to phrase the request in a way that was a typical FOIA request.

[00:21:44] Speaker 02:
What records concern, what records did the agency generate in looking at this issue, as opposed to is this true or not?

[00:21:54] Speaker 02:
And that's because, I mean, if you look, for instance, at Joint Appendix 208, that is an email from plaintiff's counsel

[00:22:03] Speaker 02:
expressly refusing to reformulate the request in a way that would allow... Well, why wouldn't that all go to entitlement?

[00:22:12] Speaker 00:
They go, look, some of this litigation was their fault.

[00:22:15] Speaker 00:
But some of it was EPA's fault, because it didn't follow its own regulations on how it responds to confusing requests, where it's supposed to affirmatively, proactively reach out and work with the claimant.

[00:22:25] Speaker 00:
So, you know, both of you had something to contribute.

[00:22:28] Speaker 00:
That sounds to me like an entitlement analysis.

[00:22:31] Speaker 00:
So they were eligible, but we're not going to give them all.

[00:22:33] Speaker 00:
We give them a little bit here.

[00:22:33] Speaker 00:
It takes them off here.

[00:22:34] Speaker 00:
Isn't that what the district court was doing?

[00:22:36] Speaker 00:
Was she collapsing the eligible entitlement prongs?

[00:22:40] Speaker 02:
I don't think so, Your Honor.

[00:22:41] Speaker 02:
First of all, I will quibble with the district court's statement that EPA did not engage appropriately in an attempt to work with the other side to reformulate even before litigation.

[00:22:53] Speaker 02:
You'll see on the record there are multiple requests to go back and forth and say, you know, can you please clarify

[00:22:59] Speaker 02:
For instance, also, I want to point out.

[00:23:01] Speaker 00:
You have not challenged any aspect of the district court summary.

[00:23:03] Speaker 00:
We have not.

[00:23:03] Speaker 00:
We have not.

[00:23:04] Speaker 00:
So I'm taking her at her word that EPA did not follow its procedures.

[00:23:07] Speaker 00:
I understand.

[00:23:08] Speaker 00:
And they made mistakes at the summary judgment stage.

[00:23:10] Speaker 00:
So if we take that as a given, then I'm back to my original question, which was to get back to the fees question.

[00:23:15] Speaker 00:
And that is when you start saying, well, they caused some of the extra litigation.

[00:23:21] Speaker 00:
EPA caused some extra litigation.

[00:23:23] Speaker 00:
That sounds to me like what you do at entitlement, not eligibility stage.

[00:23:27] Speaker 02:
Certainly one could look at those same issues at the entitlement stage.

[00:23:31] Speaker 02:
I don't disagree with that.

[00:23:33] Speaker 02:
I do want to also take issue with something that my counterpart said about the Region 1 request was able to be responded to.

[00:23:41] Speaker 02:
And as we've emphasized in our brief and as the record likewise makes clear, Region 1 in Boston only responded after they did in fact clarify their request in order to make it sound like a normal request.

[00:23:55] Speaker 04:
I might be going back to the prior issue, but.

[00:23:59] Speaker 04:
Don't didn't they substantially prevail?

[00:24:05] Speaker 02:
They.

[00:24:05] Speaker 02:
Did not know not based upon the way that the district court has decided these issues.

[00:24:13] Speaker 04:
They file the FOIA litigation.

[00:24:15] Speaker 04:
They try to get some documents before they file the suit.

[00:24:18] Speaker 04:
They don't.

[00:24:18] Speaker 04:
They file the FOIA litigation.

[00:24:20] Speaker 04:
They get the documents.

[00:24:21] Speaker 02:
Right.

[00:24:21] Speaker 02:
But if they would have gotten the documents anyway, under Weisberg, they have not substantially failed.

[00:24:25] Speaker 04:
Why do you say they would have gotten the documents anyway?

[00:24:27] Speaker 04:
That's the part I want to make sure.

[00:24:29] Speaker 02:
Because there was part of an interactive process that was ongoing and that would have continued, notwithstanding the litigation.

[00:24:36] Speaker 05:
So you're saying that if they had followed the modification that the court eventually imposed, they would have gotten the documents without the litigation.

[00:24:42] Speaker 02:
Exactly.

[00:24:43] Speaker 04:
Okay, that's what I wanted to make sure I understood.

[00:24:47] Speaker 04:
Okay, so if they continued through the administrative process, I think I'm saying what Judge Sentel just said, but I'm thinking through this, they continued through the administrative process and had

[00:24:58] Speaker 04:
formulated a request in the way the district court ultimately did, they would have gotten the documents, therefore they didn't need the litigation, therefore they didn't substantially prevail.

[00:25:05] Speaker 02:
Exactly.

[00:25:06] Speaker 02:
And the Region 1 experience is illustrative of how that can happen, right?

[00:25:09] Speaker 02:
You know, eventually they wrote a letter saying, yes, what we really meant was the documents that were looked at in responding to this, and they got those records through the administrative process.

[00:25:21] Speaker 00:
These same types of what you call interrogatory requests.

[00:25:24] Speaker 00:
Here's this scientific fact thing.

[00:25:27] Speaker 00:
Show me what's incorrect.

[00:25:28] Speaker 00:
Did they get that?

[00:25:28] Speaker 00:
I haven't seen all.

[00:25:29] Speaker 02:
I believe there were 20-some requests to Region 1, but I believe that they were similar.

[00:25:34] Speaker 00:
And then... Give me the documents to show this is incorrect.

[00:25:37] Speaker 02:
Again, I haven't seen all of them, but I believe that is the case.

[00:25:40] Speaker 02:
They're not actually in the record in this case.

[00:25:42] Speaker 00:
But what is in the record in this case is... But I saw it going to them look more like the October 4 request.

[00:25:48] Speaker 00:
No, I don't think so.

[00:25:49] Speaker 02:
I mean, I believe, frankly, just by logic, if there were 20-some requests, there were four details.

[00:25:56] Speaker ?:
All right.

[00:25:56] Speaker 00:
Okay.

[00:25:56] Speaker 00:
Well, what about the argument then with respect to summary judgment that if they... The thing that they came back to clarify was, say, we're not asking you to create any documents.

[00:26:07] Speaker 00:
And your argument here has never been that they were asking us to create documents and so you were to make

[00:26:13] Speaker 00:
so I'm not quite sure how your argument that Region 1's response is helpful to you, because all they did was say, we don't want you to create documents, but you weren't under the illusion that they wanted you to create documents, were you?

[00:26:27] Speaker 02:
No, no, the reformulation that mattered in Region 1 was not whether or not we were creating documents, but rather not, they were simply asking for records that pertain to a general subject, and that is different than asking

[00:26:41] Speaker 02:
does give us documents that either prove or disprove X.

[00:26:47] Speaker 00:
Well then why wouldn't all these fifty documents, because that sounds like their October 4th request.

[00:26:52] Speaker 00:
Right, give us everything you relied on in making this decision.

[00:26:54] Speaker 00:
So why didn't all these fifty documents come out in response to the October 4th request?

[00:26:58] Speaker 02:
Because they asked specifically what was relied upon for the decision and they got what was relied upon for the decision based upon the search that was reasonably undertaken in response to that request.

[00:27:11] Speaker 02:
These are sophisticated plaintiffs and under Kowalsik this court says

[00:27:17] Speaker 02:
agencies should not give records that requesters don't want and that agencies are reasonably entitled to assume that the requester didn't ask for them because they either already have them or they're not interested.

[00:27:31] Speaker 02:
And so when a sophisticated plaintiff like Hall and Associates asks, what was relied upon

[00:27:39] Speaker 02:
they get what actually was relied upon in rendering the decision.

[00:27:42] Speaker 02:
Not everything, if they had asked, give us everything that was considered in response to the scientific misconduct allegations, they would have gotten a different production, one that looked, that was probably exactly the same as what they got in response to the October 22 court reformulated request.

[00:28:04] Speaker 02:
And if I do want to mention the argument that this is an untimely appeal, if the court looks at Rule 58, Rule 58 is... We have your brief on that, so I don't think you need to elaborate.

[00:28:17] Speaker 02:
Okay.

[00:28:17] Speaker 02:
If the court has nothing further, let me just...

[00:28:21] Speaker 02:
Also, I just want to emphasize that the stipulation by Hall and Associates does mean something.

[00:28:27] Speaker 02:
That really did close the litigation, and that was an agreement.

[00:28:30] Speaker 02:
They reserved appeal rights as to the underlying district court decisions.

[00:28:37] Speaker 02:
If you look at what they say, they're reserving appeal rights as to, they say, the district court's orders.

[00:28:41] Speaker 04:
But they agreed to the... I couldn't understand that stipulation given the reservation, but... I... Yeah.

[00:28:48] Speaker 04:
Okay.

[00:28:49] Speaker 02:
And finally, one other point is just that in responding to a request, there are multiple phases that have to be undertaken by an agency.

[00:28:58] Speaker 02:
You know, simply going out and asking a bunch of potential custodians, do you have records on this, doesn't mean that the records that come back are responsive.

[00:29:06] Speaker 02:
That means they're potentially responsive.

[00:29:09] Speaker 02:
And that's, anyway, I would ask that the decision be affirmed.

[00:29:12] Speaker 02:
Thank you.

[00:29:12] Speaker 02:
Thank you.

[00:29:17] Speaker 04:
Can I start with a question?

[00:29:18] Speaker 04:
On the fees point, the district court, page 10 of its opinion, says the following, and I'll just get your reaction.

[00:29:26] Speaker 04:
There's no basis for the court to conclude that Hall, before commencing this suit three years ago, could not simply have offered the same clarification it did to EPA Region 1 and thus attained the requested documents without the involvement of this court.

[00:29:40] Speaker 01:
Your Honor, we completely disagree with that observation.

[00:29:46] Speaker 01:
We did, in fact, give the precise clarification to EPA Region 1 and headquarters.

[00:29:54] Speaker 01:
They both raised the same exact issue when they refused to respond to the detailed FOIAs.

[00:30:01] Speaker 01:
And a question was, are any of the Region 1 FOIAs in?

[00:30:04] Speaker 01:
Yes.

[00:30:05] Speaker 01:
Exhibit 26 is one of those.

[00:30:07] Speaker 01:
As soon as we told Region 1

[00:30:11] Speaker 01:
We are not asking for any documents to be created, generated, nothing new, just what you did on those specific issues.

[00:30:22] Speaker 01:
Exhibit 30, response from Region 1.

[00:30:25] Speaker 01:
We will process this request and give you the specific documents, quote, refuting the specific scientific allegations.

[00:30:33] Speaker 01:
So the exact

[00:30:36] Speaker 01:
clarification that we gave EPA Region 1, headquarters just said, no, I'm not accepting that clarification, even though it was the form of FOIA request was identical for all practical purposes.

[00:30:52] Speaker 01:
And then the headquarters in their denial at the administrative level switched the argument

[00:31:00] Speaker 01:
to not that you're making us create new documents, to I don't like the form of the request.

[00:31:07] Speaker 01:
That was the complete basis.

[00:31:08] Speaker 05:
They never said that.

[00:31:10] Speaker 05:
You say that repeatedly in your brief, that they said, I don't like the form of the request.

[00:31:14] Speaker 05:
They never said that.

[00:31:15] Speaker 01:
Oh, in the administrative, in their final?

[00:31:18] Speaker 05:
They said what they thought was wrong with the request, but just to say, I don't like it.

[00:31:23] Speaker 05:
Well, as a generic way of putting it, Your Honor, that the way it was phrased, I would observe that the Court itself— I read you saying that they said it many times in the brief, but they didn't say that.

[00:31:39] Speaker 01:
Well, Your Honor, we believe that the administrative record with regard to at the administrative level, when they rejected the same response that Region 1 had accepted, said, we don't like the form in which you have posed an interrogatory-like question.

[00:31:58] Speaker 01:
It posed no problem to EPA Region 1.

[00:32:00] Speaker 01:
They didn't call it that.

[00:32:02] Speaker 01:
They immediately responded.

[00:32:03] Speaker 05:
And I might observe that that- I still don't see why we should assume they were correct.

[00:32:08] Speaker 05:
Well, at that point, since EPA had... The Region 1 did one thing and Central did another, and I don't see why we should assume Region 1 was correct.

[00:32:17] Speaker 01:
Well, Your Honor, EPA has the burden of demonstrating that they can't respond to a Florida request.

[00:32:23] Speaker 01:
Saying that...

[00:32:25] Speaker 01:
It's interrogatory-like, so I'm not answering, when in the past the agency has responded to these type of requests.

[00:32:32] Speaker 01:
Region 1 was presently, the court itself, the district court itself noted it's, the exact quote, something like, it's perplexing or confusing that Region 1 could actually respond to these, and yet headquarters could not.

[00:32:47] Speaker 01:
Right.

[00:32:48] Speaker 04:
It's a little more than could not depends on whether they had to, I suppose.

[00:32:52] Speaker 04:
I mean, those are two different things.

[00:32:54] Speaker 04:
And it depends, I suppose, on the form of the request.

[00:32:57] Speaker 01:
Well, you're right.

[00:32:58] Speaker 04:
The sentence I read you about the fees may ultimately turn on whether headquarters was correct to say the form of the request is not proper.

[00:33:08] Speaker 01:
And Your Honor, and the guiding principle on that is the linchpin test that the district court itself pointed to.

[00:33:15] Speaker 01:
Did a knowledgeable employee who was processing, could they reasonably identify the records being sought within a reasonable amount of time?

[00:33:24] Speaker 01:
They in fact did that.

[00:33:27] Speaker 01:
That is precisely what the record that was released showed.

[00:33:32] Speaker 01:
So in terms of the burden, since

[00:33:36] Speaker 01:
The record custodians, there's no indication in any affidavit or any record, any document in this record.

[00:33:46] Speaker 01:
None.

[00:33:47] Speaker 01:
that there was actual confusion over what was sought.

[00:33:50] Speaker 01:
Now, at the end of the process, when all the documents were collected, the attorneys jumped in and said, we don't like it as a question.

[00:33:58] Speaker 01:
We think you're making us make new documents.

[00:34:01] Speaker 01:
No one, when they were processing this request, raised that point.

[00:34:07] Speaker 01:
It took them, I want to say, three hours to collect all the documents.

[00:34:12] Speaker 01:
They didn't ask a single question.

[00:34:16] Speaker 01:
As the permit – as the FOIA officer himself said, these requests focus specifically on certain assertions in EPA correspondence and related documents.

[00:34:26] Speaker 01:
Nobody said, well, I'm confused, I can't do this.

[00:34:29] Speaker 01:
They got the documents.

[00:34:31] Speaker 04:
When you get the FOIA administrative determination that says that they're not properly formulated,

[00:34:39] Speaker 04:
And then they say, if you would like to clarify or modify these seven requests in a non-question form by providing specific information, such as a subject matter, please resubmit.

[00:34:49] Speaker 01:
Each of these requests, if there was one fault,

[00:34:55] Speaker 01:
They were overly detailed.

[00:34:57] Speaker 01:
We took exact, specific issues.

[00:35:01] Speaker 01:
I mean, this isn't something where it was like a vague request of, you know, generally hand, you know, it wasn't a vague request for all records anywhere in the agency.

[00:35:11] Speaker 01:
It was a specific issue, specifically defined, which is what... But you could have done that, right?

[00:35:15] Speaker 01:
Well, we did do that.

[00:35:17] Speaker 01:
That's what the requests were.

[00:35:18] Speaker 01:
The Region 1 requests were identical.

[00:35:21] Speaker 01:
A very specific issue was phrased and said,

[00:35:24] Speaker 01:
What documents did you hand EPA headquarters to say that scientifically this did not occur?

[00:35:33] Speaker 01:
And the region said, oh, we can answer that question.

[00:35:35] Speaker 01:
Sure, here are the documents that address these issues.

[00:35:40] Speaker 01:
And quite frankly, had we not filed our FOIA appeal,

[00:35:45] Speaker 01:
There's no chance EPA would have given us any records.

[00:35:49] Speaker 01:
In fact, we never even knew that they used the relied upon language to limit.

[00:35:55] Speaker 01:
We had three categories.

[00:35:57] Speaker 01:
One said, and what did you rely on?

[00:36:00] Speaker 01:
The other one said, give us any documents on this, any documents you created on that.

[00:36:04] Speaker 01:
We didn't even know.

[00:36:05] Speaker 01:
Had they, at the administrative level, called us and said,

[00:36:11] Speaker 01:
You know, we're going to take your FOIA.

[00:36:13] Speaker 01:
We're reading it.

[00:36:14] Speaker 01:
And we think you only want specific things we relied upon and didn't do A, B, and C. We would have said, whoa, whoa, whoa, that's not correct.

[00:36:21] Speaker 01:
And that would have never been appealed.

[00:36:23] Speaker 01:
We didn't even find that out until we followed our Rule 54B motion.

[00:36:29] Speaker 01:
And then they said, oh, the reason this pile of documents was collected but you didn't get it

[00:36:35] Speaker 01:
is because you stuck the word relied on in there.

[00:36:39] Speaker 01:
And that's narrowly reading a four.

[00:36:41] Speaker 01:
I mean, the court can read this four itself and ask yourself whether when you look at those three categories, that's reasonable.

[00:36:48] Speaker 01:
I mean, if you conclude it's completely reasonable and no one else would read it any differently, fine.

[00:36:54] Speaker 01:
Then we lose on that.

[00:36:55] Speaker 01:
But I don't think that that's an even close reading.

[00:36:58] Speaker 01:
And we certainly had no notice of it, which is why we ended up in court.

[00:37:03] Speaker 01:
And he could have told us earlier that they were doing that.

[00:37:06] Speaker 04:
Okay.

[00:37:07] Speaker 04:
Thank you very much.