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

[00:00:11] Speaker 02:
Judge Henderson is participating and should be on the line by audio.

[00:00:16] Speaker 02:
Judge Henderson, are you there?

[00:00:17] Speaker 04:
I am, thank you.

[00:00:19] Speaker 02:
Okay, good morning, you may proceed.

[00:00:20] Speaker 03:
Good morning, your honor.

[00:00:22] Speaker 03:
I just wanted to allude briefly to the fact that on March the 12th we submitted a rule 34.1 I submission and it's been distributed to you.

[00:00:38] Speaker 03:
It relates to the

[00:00:42] Speaker 03:
public benefit issue in particular, which I'm going to come back to later.

[00:00:48] Speaker 03:
I want to take things out of sequence and deal with exemption four first.

[00:00:53] Speaker 03:
But just briefly, Judge Leon's decision did not refer to the photographs that were obtained in the course of this litigation.

[00:01:06] Speaker 03:
And as there's an old saying that a photograph is worth a thousand words, the crux of the ex ante analysis that Judge Leon was to do is the identity of George Ioannidis, the CIA case officer,

[00:01:36] Speaker 03:
And the photographs are critical to that.

[00:01:40] Speaker 03:
But I really want to begin with the fourth factor.

[00:01:47] Speaker 03:
The case was this court very carefully crafted the remand for Judge Leon to consider.

[00:01:56] Speaker 03:
all four factors.

[00:01:58] Speaker 03:
And he was to, in exercising his discretion, was to evaluate them overall and determine whether or not they favored an award of fees for Morley.

[00:02:19] Speaker 03:
Strangely, Judge Leon found that

[00:02:21] Speaker 03:
three of the four factors favored Morley, but he concluded only by a tiny bit, and therefore he would rely upon the fourth factor.

[00:02:38] Speaker 03:
As he said, thankfully, we can break the tie by turning to the fourth factor.

[00:02:45] Speaker 02:
What's wrong with a district judge weighing the factors?

[00:02:49] Speaker 02:
as he or she sees fit.

[00:02:51] Speaker 02:
We haven't told the district court how to balance them.

[00:03:00] Speaker 03:
He can weigh the factors.

[00:03:02] Speaker 03:
The only problem is that he must do it according in a principled fashion.

[00:03:10] Speaker 03:
If he violates the law himself, then he runs afoul of the discretion standard.

[00:03:18] Speaker 03:
And that's what happened here.

[00:03:21] Speaker 03:
If you take the fourth factor, which he says that the fourth factor is dispositive.

[00:03:29] Speaker 03:
He makes it dispositive.

[00:03:30] Speaker 03:
It's the one that counts.

[00:03:33] Speaker 03:
this court has said and in the past, Judge Leon himself conceded that the no one factor is dispositive.

[00:03:48] Speaker 03:
So right off the bat.

[00:03:50] Speaker 01:
So let's talk about factor four before we come to the balancing point.

[00:03:56] Speaker 01:
What's wrong with his analysis that

[00:03:59] Speaker 01:
a lot of the agency positions asserted in this case either ultimately prevailed or were at least reasonably defensible.

[00:04:11] Speaker 03:
Well, neither is true and he

[00:04:15] Speaker 03:
ignored the standard which was set down by the Davy case.

[00:04:19] Speaker 03:
He was supposed to evaluate matters in terms of the Davy case.

[00:04:25] Speaker 03:
And the Davy case said that he cannot, the agency cannot shift the burden even if it has a colorable basis for maintaining that it did things lawfully.

[00:04:39] Speaker 03:
they can't shift that burden to the requester.

[00:04:44] Speaker 01:
Fair enough, but in this case, he made the determination that the agency positions were defensible.

[00:04:53] Speaker 03:
Yes, but in fact, they are not defensible.

[00:04:59] Speaker 01:
Which, I mean, they asserted a bunch of exemptions.

[00:05:04] Speaker 01:
Yes.

[00:05:05] Speaker 01:
And we found that the justifications weren't

[00:05:09] Speaker 01:
adequately developed on the first appeal, but then... Or second appeal.

[00:05:14] Speaker 01:
It went back.

[00:05:15] Speaker 01:
There was further development, and then we affirmed the exemptions by judgment.

[00:05:21] Speaker 01:
The Glomar defense was ultimately upheld.

[00:05:26] Speaker 01:
The failure to search the operational records, they lost on, but it was an issue of first impression.

[00:05:34] Speaker 03:
Well, but the problem is that there are problems with all of those.

[00:05:39] Speaker 03:
The first is that there's black and white letter law here.

[00:05:46] Speaker 03:
If you violate the statutory deadline for making a determination and you release stuff after

[00:05:58] Speaker 03:
long after you should have made the determination then under the Davey precedent that's an abuse of discretion and That happened with respect to basically all of the exemption claims in addition the law requires that you respond to the request in front of you and

[00:06:20] Speaker 03:
They did not make it and do it in a timely fashion.

[00:06:26] Speaker 03:
They did not do it in a timely fashion.

[00:06:29] Speaker 03:
And it's irrational.

[00:06:32] Speaker 03:
There's no reasonable basis why they couldn't have done it.

[00:06:37] Speaker 03:
in that time if they had simply followed the law that said you've got to do it in this time.

[00:06:42] Speaker 03:
The same thing is true of the Glomar defense.

[00:06:44] Speaker 01:
Yeah, I take your point about delay.

[00:06:47] Speaker 01:
The statutory deadline is, what, 20 days?

[00:06:51] Speaker 01:
It's varied over time.

[00:06:53] Speaker 01:
In my experience, agencies never meet that deadline.

[00:06:58] Speaker 01:
Are there cases that award fees simply because

[00:07:04] Speaker 01:
the agency misses the 20-day deadline and then a case is filed?

[00:07:13] Speaker 03:
I believe there are, but I cannot pinpoint one at the moment.

[00:07:23] Speaker 03:
Well, in the Davey case, the court held that

[00:07:32] Speaker 03:
that the agency had failed to meet the deadline.

[00:07:37] Speaker 03:
And so, yes, there is precedent for that.

[00:07:40] Speaker 02:
That wasn't after the statutory 20-day time frame.

[00:07:43] Speaker 02:
That was after the litigation had been filed.

[00:07:46] Speaker 02:
That wasn't after the 20-day deadline.

[00:07:49] Speaker 02:
Davey didn't refer to that.

[00:07:50] Speaker 02:
It referred to after the litigation had been filed, at least as I read Davey.

[00:07:57] Speaker 03:
Yes, they do refer to that, but I believe there is mention of the time period in that decision.

[00:08:18] Speaker 03:
The decision is assuming that there's a colorable basis for some of this.

[00:08:32] Speaker 03:
The rational thing to do, if the CIA, for example,

[00:08:39] Speaker 03:
They directed the request, they directed Morley to file the request with another agency.

[00:08:49] Speaker 03:
They had an obligation under the statute to pursue that request.

[00:08:54] Speaker 03:
They didn't do it.

[00:08:56] Speaker 03:
And that was an obstacle that prevented Morley from timely getting information that he should have had.

[00:09:05] Speaker 03:
With respect to the Glomar defense, they initially didn't invoke it, and then later they came back

[00:09:14] Speaker 03:
and said that the review board had invoked it.

[00:09:22] Speaker 03:
But the fact is that they were simply not telling the truth.

[00:09:28] Speaker 03:
The Glomar defense should have been invoked from the outset if what they are claiming now is true was true, but it wasn't.

[00:09:39] Speaker 03:
So you go through each of these, then with respect, for example, to Exemption 2,

[00:09:44] Speaker 03:
We had an entire remand that was due because the agency refused to recognize the impact of the Milner decision on Exemption 2.

[00:10:00] Speaker 03:
It changed the standard for Exemption 2 after three decades of this circuit applying a different standard.

[00:10:08] Speaker 03:
And this issue came up during the mediation process.

[00:10:16] Speaker 03:
We pointed out that the Exemption 2 had changed, that Milner had changed the standard for Exemption 2.

[00:10:26] Speaker 03:
We went through a whole separate appeal.

[00:10:29] Speaker 03:
The only issue of which was Exemption 2, and it was remanded, and we got the additional

[00:10:35] Speaker 03:
We got additional information under Exemption 2 at that time.

[00:10:40] Speaker 03:
So the same thing happened with respect to Exemption 6, where they initially withheld the name of Mrs. Joanniti's wife.

[00:10:52] Speaker 03:
and relatives claiming that she, that invaded her privacy.

[00:10:59] Speaker 03:
Well, in fact, she was deceased.

[00:11:01] Speaker 03:
They had an obligation under the law to determine whether or not she was deceased.

[00:11:06] Speaker 03:
We called it to their attention they did so.

[00:11:08] Speaker 03:
So there is case after case in which you cannot say that there was a rational basis for delay and for obstruction of the request.

[00:11:23] Speaker 03:
Now, with respect to Exemption 1, the district court was obligated under this court's remand to engage in a fresh analysis, a fresh ex ante analysis of the

[00:11:51] Speaker 02:
Factor one, right?

[00:11:55] Speaker 03:
Factor one, yes.

[00:11:56] Speaker 03:
Factor one.

[00:11:58] Speaker 03:
And he concedes that, in fact, Morley is a journalist and that he was looking for

[00:12:10] Speaker 03:
information he had.

[00:12:13] Speaker 03:
The subject is the Kennedy assassination, but he then gets away from the ex ante and goes into an analysis which is the same old analysis based on the results of the documents.

[00:12:27] Speaker 03:
He gets off into the travel documents and argues that Morley's evidence does not meet the decent chance standard under

[00:12:37] Speaker 03:
the ex-ante analysis, but he's not applying ex-ante.

[00:12:42] Speaker 03:
The ex-ante analysis requires him to look at the requests.

[00:12:46] Speaker 03:
The primary things are, one, the journalist.

[00:12:48] Speaker 03:
He is a journalist.

[00:12:50] Speaker 03:
He therefore fits under the preferred category of requesters.

[00:12:55] Speaker 03:
He ultimately gives you credit for that, though.

[00:13:03] Speaker 03:
He gives it, but he takes it away.

[00:13:05] Speaker 03:
This is a major factor.

[00:13:11] Speaker 03:
When you establish that, unless you can show that the request was frivolous or trivial,

[00:13:20] Speaker 03:
then you are presumed under circuit law to be able to get attorney's fees.

[00:13:28] Speaker 03:
That's the presumption.

[00:13:29] Speaker 03:
You have to show that it's trivial or frivolous, and obviously this request was not trivial or frivolous.

[00:13:37] Speaker 03:
It was supported by a journalist who obviously had a mastery of the subject

[00:13:48] Speaker 01:
who knew what he was looking for and knew that the records... He was looking for information about the JFK assassination, correct?

[00:13:59] Speaker 03:
He was looking about information on George Ioannidis, a CIA case officer, which would shed light... Which he said would be relevant to the assassination.

[00:14:11] Speaker 03:
Pardon?

[00:14:13] Speaker 03:
Yes, which in some measure he thought would be relevant to the assassination controversy, meaning that the controversy over whether or not Oswald had a relationship with the DRE, with Cuban exiles, whether or not he had a financial relationship with the DRE, which was the organization... Right.

[00:14:41] Speaker 03:
And here is a really important point, is that, as I say, the point of this request was to secure the identity of George Ioannidis.

[00:14:59] Speaker 03:
And then you can argue the public, the information is out, the public can go back and forth and decide whether or how to evaluate it.

[00:15:10] Speaker 03:
but it's clearly potentially of great public benefit regardless of whether or not you find that there was definitely a connection or whether you disprove that there was a connection.

[00:15:29] Speaker 01:
What is the connection?

[00:15:33] Speaker 01:
You've established the identity of the

[00:15:36] Speaker 01:
agency officer who had a co, arguably had a covert relationship with a particular.

[00:15:43] Speaker 03:
It's not, it's not arguable.

[00:15:44] Speaker 01:
Who had a relationship with a particular group.

[00:15:48] Speaker 01:
Now how does that tie into the Kennedy assassination?

[00:15:52] Speaker 03:
Because that group was suspected of having been involved in the Kennedy assassination.

[00:15:57] Speaker 03:
The Cuban exiles, it was, first of all, it was a CIA-funded, it was the

[00:16:03] Speaker 03:
by far the most well-funded CIA exile organization.

[00:16:09] Speaker 03:
It was the boldest of the CIA organizations.

[00:16:13] Speaker 03:
It was engaged in propaganda operations against Castro.

[00:16:21] Speaker 03:
Lee Harvey Oswald was part of that.

[00:16:25] Speaker 03:
The first news that breaks after the assassination has to do with Lee Harvey Oswald, with the DRE, immediately upon the word of the assassination.

[00:16:43] Speaker 03:
They contact Joannides, their case officer, who never admitted it until this lawsuit forced that disclosure.

[00:16:52] Speaker 03:
They contact him and want to know if they can proceed with this tape that they had made of Oswald and one of their members, Carl Springier.

[00:17:07] Speaker 03:
uh... uh... before the assassination and joan nides tells them yes uh... you give me a little time i'll check with headquarters and get back to you okay they went ahead and ran it anyway and so that guarantees that it's on headlines around the world the next day it is the original

[00:17:32] Speaker 03:
I think we have your argument on that point.

[00:17:35] Speaker 02:
We'll give you some time on rebuttal.

[00:17:36] Speaker 02:
We'll hear from the government now.

[00:17:38] Speaker 02:
You're over your time.

[00:17:39] Speaker 02:
Thank you, Your Honor.

[00:17:57] Speaker 00:
May I please the Court?

[00:18:00] Speaker 00:
I'll start with an analysis of factor four.

[00:18:05] Speaker 00:
That's what the appellant started with.

[00:18:09] Speaker 00:
And in that analysis, I believe that the district court provided the proper framework in which to view the government's behavior, which is not whether the government was ultimately correct on each position it took.

[00:18:28] Speaker 00:
That is not the standard.

[00:18:29] Speaker 00:
The standard would be whether or not there was an evidence of abdurancy.

[00:18:35] Speaker 02:
How does this case differ from Davie?

[00:18:40] Speaker 00:
In the sense that the positions that the defendant took in this case were either issues dealing with first impression cases, where there were no certain law on the issue of searching operational files,

[00:18:55] Speaker 00:
and factually dealing with the request.

[00:18:59] Speaker 00:
The request itself indicated that it was interested in the connection between the CIA, Mr. Jordanides, and the JFK assassination.

[00:19:09] Speaker 00:
Upon reading the request, a reasonable interpretation of that request would be one where the JFK Act records would be activated.

[00:19:19] Speaker 01:
What is the justification for, what is the reasonable justification for the agency saying these records are publicly available through NARA and therefore we don't have to search our records?

[00:19:39] Speaker 01:
That's the one piece that troubles me because

[00:19:43] Speaker 01:
tax analysts had been on the books for 20 years saying that an agency can't avoid its FOIA obligations by saying that records in their files are available, publicly available, or in another agency's files.

[00:20:01] Speaker 00:
Right.

[00:20:01] Speaker 00:
Understood, Your Honor.

[00:20:02] Speaker 00:
The one factor different from tax analysts and Davey for a large part is that

[00:20:10] Speaker 00:
At the time of Mr. Morley's request, there was a significant effort by the CIA to populate the JFK Assassination Act files pursuant to a statute.

[00:20:24] Speaker 00:
That statute had a purpose.

[00:20:26] Speaker 01:
The JFK statute?

[00:20:28] Speaker 00:
Yes, yes.

[00:20:29] Speaker 00:
And in that case, it was specifically meant to allow the CIA, in this case, to refer requesters

[00:20:37] Speaker 00:
to this reservoir of documents.

[00:20:41] Speaker 00:
There had been significant efforts made to make that particular repository of documents complete.

[00:20:48] Speaker 00:
So upon seeing a request that specifically and explicitly references the assassination, it was a reasonable interpretation to think that those records would be found in that repository.

[00:21:06] Speaker 00:
Yes, Your Honor, and that was a result of, many of that was a result of searching the operational files of the CIA, which had to that point previously not been addressed in this circuit.

[00:21:19] Speaker 00:
And so other documents were produced as a result of the new precedent that was formed by this court.

[00:21:26] Speaker 00:
But it didn't mean that at the time of receiving the request that there was an effort of obduracy or unreasonableness in interpreting that request to be attended to the JFK Act.

[00:21:38] Speaker 01:
Is there anything in the JFK Act

[00:21:41] Speaker 01:
that would support an argument that the general rule of tax analysts doesn't apply here, because Congress has set up this special scheme for JFK requesters to go through NARA?

[00:21:56] Speaker 00:
I don't believe that that was specifically addressed.

[00:21:58] Speaker 00:
The tax analyst precedent was specifically addressed in the Act itself.

[00:22:02] Speaker 00:
I haven't read anything along those lines.

[00:22:05] Speaker 00:
I will say, though, that

[00:22:07] Speaker 00:
The whole reason, the extra of the actual act is to provide one location.

[00:22:16] Speaker 00:
for requesters to go and to search for these particular documents.

[00:22:21] Speaker 00:
And I don't believe that even in that case that there was any effort by the CIA to dissuade any requester from continuing to request of the CIA any other documents they felt were not in the JFK files.

[00:22:37] Speaker 00:
And there was never a

[00:22:41] Speaker 00:
a proposition by the CIA that FOIA requesters could not request these documents from the CIA.

[00:22:48] Speaker 01:
And then to follow up on Judge Henderson's question, the documents that were in your files and not produced to NARA, were those all in the operational records?

[00:23:04] Speaker 01:
Are those all operational records?

[00:23:06] Speaker 01:
In other words, were there any records in your files

[00:23:10] Speaker 00:
not produced an error but not arguably protected by the operational records provision my my understanding your honor that the records that were produced of the vast majority of them were from the operational files in terms of whether there was any but not all right not all that's best for a few

[00:23:34] Speaker 00:
That's what I'm uncertain of right now as to whether there were any overlapping, but I think the analysis there is that in terms of what was brought before the court, in terms of new documents, the travel documents, the photographs, those were all operational file information.

[00:23:58] Speaker 01:
Okay.

[00:24:00] Speaker 01:
What about just the delay?

[00:24:03] Speaker 01:
I mean, you get the request in July, and I think the agency response is four months later as against a 20-day deadline, and then the suit gets filed, and even then, the first tranche of documents isn't provided until a year after the suit is filed.

[00:24:27] Speaker 00:
Right.

[00:24:28] Speaker 00:
And I think the court responded in a likely fashion that it will respond today, that this is the reality of the FOIA litigation today, is that it's not a matter of obdurancy or recalcitrant, which implies some purposeful gaming of the system.

[00:24:49] Speaker 00:
But instead, it's a reality of resources and the unavailability

[00:24:55] Speaker 00:
of providing funds and manpower to respond within the 20-day time limit of the statute.

[00:25:04] Speaker 00:
But even in that context, the delay itself was born in part of the now misinterpretation of the CIA's responsibility to respond directly to the actual FOIA request, as opposed to allowing the JFK Act to handle JFK assassination-related material.

[00:25:28] Speaker 00:
In that sense, that that error

[00:25:32] Speaker 00:
added to the time that it took to respond completely to the FOIA request.

[00:25:40] Speaker 01:
If your opening position was this is a JFK request, those JFK records go through NARA and we don't have to search, it would seem like that's a pretty easy one to answer pretty quickly.

[00:26:01] Speaker 01:
And limited resources is not a great excuse when all you're doing is saying, we don't have to run any searches because the JFK Act makes these records available at NARA.

[00:26:18] Speaker 00:
Right.

[00:26:19] Speaker 00:
Within the FOIA request itself, as the Court knows, that there were

[00:26:25] Speaker 00:
not just a paragraph indicating we would like JFK or JFK assessments from related material.

[00:26:30] Speaker 00:
There were many sub paragraphs and many different angles that had to be analyzed in order to make sure that there weren't any other requests that could be handled by the CIA.

[00:26:43] Speaker 00:
I believe that after the analysis of the letter

[00:26:46] Speaker 00:
in regards to the subparagraphs of information that helped to guide the CIA in its ultimate decision, that that was the time that it took to respond to the request.

[00:26:59] Speaker 01:
But to the extent the request on its face is much broader than JFK documents, right, it's everything about Joe and Edie's.

[00:27:12] Speaker 01:
Doesn't that cut against the reasonableness of your response of, this is about JFK, go to NARA?

[00:27:20] Speaker 01:
Wouldn't there have been a lot of agency records about Joe and Edie's that had nothing to do with JFK that would have been responsive to the request?

[00:27:30] Speaker 00:
In this case, Your Honor, it took time to coordinate with other personnel within the CIA to really establish the connection, if there was one, to Mr. Ioannidis and the JFK assassination.

[00:27:48] Speaker 00:
In this instance, there was an entire review board

[00:27:53] Speaker 00:
that poured through the files of Mr. Jormody's, searching for just these types of documents.

[00:27:59] Speaker 00:
This effort may not have been immediately available to the initial reviewer of the letter, but after analysis, it was determined that in fact, all of the subparagraphs appeared to be subsumed in what would have been provided to the JFK assassination files.

[00:28:19] Speaker 00:
It was only after that analysis that we made the decision.

[00:28:22] Speaker 01:
You do the analysis, you look at all the subparts and pieces of it, and it takes a lot of work, but you eventually conclude that all agency records regarding Joe and Edie's either have gone to CIA through JFK or are operational files, and you have your legal position on that?

[00:28:45] Speaker 00:
That's correct.

[00:28:49] Speaker 00:
And so in terms of the other factors, briefly, I see my time is up.

[00:28:53] Speaker 02:
You can take another minute or two.

[00:28:55] Speaker 02:
Thank you, your honor.

[00:28:56] Speaker 00:
In terms of the public benefit factor, I believe that the only issue that we would like to highlight with that is that this court indicated that after an analysis ex ante of the FOIA request indicating that it had a decent chance to provide new and useful information,

[00:29:17] Speaker 00:
that the analysis ends there with the public benefit analysis.

[00:29:22] Speaker 00:
And then the courts, the district courts are to use whatever decisions they have with regard to that particular factor in the overall balancing of the four factors.

[00:29:33] Speaker 02:
Do you think on the third, on the commercial benefit factor where the district court says

[00:29:39] Speaker 02:
that there was gonna be a commercial benefit because of some compensation for writing news articles.

[00:29:45] Speaker 02:
Do you think that's correct, analysis?

[00:29:51] Speaker 00:
Well, in terms of ultimately being compensated for the articles, I'm not aware of any payment records for that to establish.

[00:30:00] Speaker 02:
No, I'm saying that shouldn't count as commercial benefit, correct?

[00:30:05] Speaker 00:
in terms of receiving remuneration for the information being published.

[00:30:08] Speaker 00:
I would believe that that's akin to any movie deals or book deals that an author may have that the information is going towards that particular remuneration.

[00:30:25] Speaker 00:
I don't have any evidence that

[00:30:27] Speaker 00:
that Mr. Moley was actually paid for these articles.

[00:30:31] Speaker 00:
But I believe the analysis is the same, that if there were to be any remuneration, it would be along the lines of using this information to provide a paycheck for that information in exchange.

[00:30:47] Speaker 00:
But I think ultimately, the amount of what was actually provided to Mr. Morley was not determinative of any particular factor.

[00:30:58] Speaker 00:
I think the district court itself said it was a small, if anything, it was small, and that while it augured in the benefit of the government slightly, it was just as slight as what the district court thought was the actual public benefit analysis.

[00:31:17] Speaker 02:
Do you think when a district court concludes the fourth factor favors the government, can it ever be an abuse of discretion on appeal for the district court to have denied the fees?

[00:31:33] Speaker 00:
Certainly, there are, I can imagine, circumstances where it could be in terms of having an analysis where the other three factors weigh heavily for the plaintiff.

[00:31:48] Speaker 00:
But in this case, I believe that the issue is that there wasn't any ultimate decision that this factor was determinative or dispositive.

[00:32:00] Speaker 00:
and that the other analysis did not count.

[00:32:02] Speaker 02:
You don't think enough said was determinative?

[00:32:05] Speaker 02:
When the district court said enough said, exclamation point?

[00:32:08] Speaker 00:
I believe the court was referring to all the factors and not just one factor.

[00:32:11] Speaker 02:
All right.

[00:32:12] Speaker 02:
Thank you very much.

[00:32:12] Speaker 02:
Thank you, Your Honor.

[00:32:13] Speaker 04:
I do have one question for Mr. Peterson, and that is, in view of, I think it's morning nine, anyway, it's Judge Williams writing, in view of that,

[00:32:25] Speaker 04:
statement that showing potential public value in this case is relatively easy.

[00:32:31] Speaker 04:
That's not long the case, I know, but are you seriously saying that the public value or benefit is what, minimal or what?

[00:32:45] Speaker 04:
If you have this statement that we've already characterized public benefit as being relatively easy to show,

[00:32:56] Speaker 00:
Right.

[00:32:57] Speaker 00:
Your honor, if I understand your question, the district court did not state that the public benefit itself was implausible.

[00:33:11] Speaker 00:
To the contrary.

[00:33:12] Speaker 04:
I thought it said it was slight.

[00:33:15] Speaker 00:
And that's when viewing it in weighting the four factors, I believe, that's the context in which the district court used that terminology in weighing the factors.

[00:33:27] Speaker 00:
No.

[00:33:27] Speaker 02:
It just says it was small, period.

[00:33:31] Speaker 02:
Are you talking about the public interest?

[00:33:34] Speaker 02:
I find that the expectation adjusted value of the public benefit that plaintiffs sought to provide was small.

[00:33:40] Speaker 02:
That's not in context.

[00:33:41] Speaker 02:
That's just in and of itself.

[00:33:46] Speaker 00:
in and of itself, I believe that in that same portion.

[00:33:54] Speaker 00:
I believe that he was referring to it, turning to the analysis of weighing the four factors.

[00:33:59] Speaker 00:
So in this case, I believe that that's the next paragraph.

[00:34:03] Speaker 02:
That's true.

[00:34:03] Speaker 00:
Yes.

[00:34:04] Speaker 00:
So I believe that there wasn't a separate paragraph for weighing the public benefit factor, other than the fact that you're saying that we said it was easy to show, but the district court said it is, but it's small.

[00:34:18] Speaker 00:
I believe that's the ultimate position of the district court.

[00:34:23] Speaker 02:
All right, thank you very much.

[00:34:24] Speaker 00:
Thank you.

[00:34:34] Speaker 03:
Yes, I would like to respond to Chief Judge Henderson's

[00:34:39] Speaker 03:
comment about the, it turns out that the number of documents withheld in full purportedly because of the JFK Act were initially 700 and later 774.

[00:35:01] Speaker 03:
That was, that information was produced

[00:35:06] Speaker 03:
in this lawsuit, the CIA testified to it.

[00:35:11] Speaker 03:
It then, the numbers kept changing.

[00:35:14] Speaker 03:
And the National Archives later changed it to something like 3,000, withheld in full.

[00:35:20] Speaker 03:
They didn't discuss the number of partially withheld documents.

[00:35:25] Speaker 03:
And the fact now is that it's public knowledge that the National Archives itself has admitted

[00:35:37] Speaker 03:
that there are thousands of documents that were withheld, including tens of thousands of pages that were withheld under the JFK Act.

[00:35:49] Speaker 03:
The CIA... I'm sorry, I'm just not following.

[00:35:53] Speaker 03:
NARA is doing a review of... First of all, let me say that the most crucial point here is that

[00:36:02] Speaker 03:
The photograph of Joannides was released as part of the release of administrative records, not operational records.

[00:36:13] Speaker 03:
And secondly, the review board, there's an affidavit in the record by Judge Thunheim in which he says that if

[00:36:30] Speaker 03:
The review board had known what he came to know as a result of Morley's work in this litigation, that the review board would

[00:36:43] Speaker 03:
Now, the other point here is that the representation... But were you talking about records that were in the CIA files and never transferred to NARA?

[00:36:57] Speaker 03:
The agency has never made it clear.

[00:37:00] Speaker 03:
It says that they were transferred and that they were available online.

[00:37:07] Speaker 03:
at NARA.

[00:37:09] Speaker 03:
Now, it's not true that they were available online at NARA.

[00:37:16] Speaker 03:
All NARA had was a public identity, a RIF, a research identification form.

[00:37:23] Speaker 03:
You could go to the RIF and see what a subject pertained to, although there were all kinds of errors in that.

[00:37:30] Speaker 03:
That's why we now know that there are scabs of missing and unaccounted for unaccounted documents.

[00:37:37] Speaker 03:
There are documents under the JFK Act process in order that the CIA main control because it claimed that they were classified.

[00:37:49] Speaker 03:
If the agency that classifies information has control of them.

[00:37:54] Speaker 03:
Of records transferred to NARA.

[00:37:56] Speaker 03:
Of records transferred to NARA.

[00:37:58] Speaker 03:
NARA has not been the reason NARA had not met the October 26, 2017 deadline is because the agencies had not acted to allow NARA to release the stuff to the public.

[00:38:14] Speaker 03:
That's the pure and simple what was going on.

[00:38:22] Speaker 02:
You're over your time.

[00:38:24] Speaker 03:
Is there anything else you want to say on rebuttal?

[00:38:30] Speaker 03:
I think that's it if you don't have any more questions.

[00:38:32] Speaker 02:
Thank you.

[00:38:33] Speaker 02:
The case is submitted.