[00:00:10] Speaker 02: Pellance, Ms. [00:00:11] Speaker 02: Ward for the athlete. [00:01:03] Speaker 04: I will try not to use their numbers henceforth. [00:01:06] Speaker 04: Okay. [00:01:06] Speaker 04: I just want to make a comment about the sealed correspondence from the FEC about what's sealed and what's not sealed. [00:01:14] Speaker 05: As we understand it, I think it's important that we understand what's sealed and what's not sealed. [00:01:25] Speaker 05: The remedy sought in the complaint is redaction only of the true names of the trust and the trustee. [00:01:34] Speaker 05: For that reason, we understand that both sides can talk about anything in the papers other than the actual names, and we would insist that both sides only refer [00:01:47] Speaker 05: I would rather you call it the trust and the trustee rather than John Doe 1 and John Doe 2 because I keep getting confused as to which is which. [00:01:53] Speaker 05: But would that be acceptable to both sides? [00:01:57] Speaker 05: It's certainly acceptable to the trust and the trustee. [00:01:59] Speaker 05: All right, let me just hear from the government. [00:02:00] Speaker 05: Is there any reason why [00:02:02] Speaker 05: Allowing you to say anything you want to say other than the actual names of the trust and the trustee would be a problem. [00:02:09] Speaker 05: Okay, great. [00:02:10] Speaker 04: I think that the description of exactly the relationship may be disclosing, but I think you could generically refer to the relationship between the trust and government integrity as opposed to what exactly the nature of the relationship is. [00:02:23] Speaker 04: I think that that is still under seal. [00:02:25] Speaker 05: I understand it's under seal, but it's not what the remedy that you seek. [00:02:30] Speaker 05: So I don't understand, I mean, [00:02:32] Speaker 05: I would be inclined to unseal that unless there's no argument made anywhere in the briefs that the relationship itself discloses anything. [00:02:44] Speaker 04: I confess that I don't know the record well enough to contest that, so I think that probably we're okay if we stay away from their names. [00:02:53] Speaker 04: But in any event, the Federal Election Commission never even charged the trust or the trustee with violating federal election law, much less make a finding that they actually did violate law. [00:03:03] Speaker 04: The Commission told us only that we were witnesses, not that we were targets of an investigation. [00:03:09] Speaker 04: But even though the Commission has given the plaintiffs none of the procedural protections they'd be entitled to as people accused of wrongdoing under the Federal Election Campaign Act and its implementing regulations, they now seek to disclose documents that name them and allege or claim that they are money launderers who are complicit in federal election violations. [00:03:30] Speaker 04: We believe that disclosing their names would be unlawful for three reasons. [00:03:34] Speaker 05: Can I just ask, so it's not the commission that's accusing them of being money launderers. [00:03:41] Speaker 05: Maybe that's a slight overstatement of what even the accusation is. [00:03:43] Speaker 05: It's a single commissioner. [00:03:45] Speaker 05: And there's three other commissioners who found no reason to believe. [00:03:49] Speaker 05: and two of those made a statement explaining that the law wasn't at all clear, that the facts weren't at all clear, and therefore that kind of conclusion couldn't be reached. [00:04:00] Speaker 05: Am I right about that description of the record? [00:04:02] Speaker 04: You're correct about all of that, but I think that is still something that would implicate their privacy interests. [00:04:07] Speaker 04: This Court has said repeatedly in cases like Safeguard, [00:04:09] Speaker 04: that simply identifying somebody as the target of an investigation implicates privacy interests. [00:04:17] Speaker 04: And when you have people who have come out and said, you know, they're guilty, including a commissioner, I think that that heightens the privacy interests. [00:04:25] Speaker 04: Go ahead, I'm sorry. [00:04:26] Speaker 04: But if you look at the, to head to the first argument, the disclosure would be unlawful under the agency's FOIA regulations, and it would represent an unexplained departure from consistent agency practice. [00:04:40] Speaker 04: If you look at the agency's own FOIA regulations, they state that what they're going to put in the record are documents that are, let me see here, only, quote, non-exempt investigatory materials. [00:04:53] Speaker 04: That's 11 CFR 5.4. [00:04:55] Speaker 04: And that's consistent with the agency's long practice. [00:04:59] Speaker 04: If you look at their privacy statement or their policy, it says for the first 25 years, what they'd put into the record afterward were the documents considered by the agency, quote, minus those materials exempt from disclosure under FOIA, unquote. [00:05:13] Speaker 04: And they make, that's at page A7 of our appendix at the top of the third column. [00:05:17] Speaker 04: And they make very clear that what that means is redaction. [00:05:21] Speaker 04: They frequently, that's the word they use, redact a document. [00:05:25] Speaker 04: I'm sorry, repeat again which regulation you're talking about. [00:05:28] Speaker 04: This is the policy. [00:05:29] Speaker 04: It's at page A7. [00:05:30] Speaker 04: Oh, the policy, yeah. [00:05:31] Speaker 04: Yeah, yeah. [00:05:32] Speaker 04: The first regulation I talked about was 11 CFR 5.4, but this is the policy at page A7 at the top of the third column. [00:05:38] Speaker 04: And they say, also in the third column, that they frequently redacted documents, specifically the general counsel reports that are at issue here. [00:05:46] Speaker 05: But you're focusing on the fact that they say they won't release non-exempt material? [00:05:52] Speaker 04: Minus exempt material. [00:05:54] Speaker 04: Minus exempt material is what they will take out. [00:05:55] Speaker 05: So the government's position is this is an exempt. [00:05:58] Speaker 05: That's their determination of whether it's exempt or not. [00:06:04] Speaker 05: You make a reverse FOIA argument that it's exempt. [00:06:08] Speaker 05: Our cases about reverse FOIA situations require a conclusion that their reading is arbitrary and capricious, not just that they would be permitted to withhold, but that they must withhold. [00:06:23] Speaker 05: SafeCard is a case, as the judge below explained, a straight FOIA case. [00:06:30] Speaker 05: It says that they are permitted to withhold names in a categorical basis. [00:06:36] Speaker 05: And all the cases after safeguard always say permitted. [00:06:40] Speaker 05: There's no case that's compelled an agency to withhold information without a balancing test. [00:06:49] Speaker 05: Is there? [00:06:50] Speaker 04: No, I think that there are cases like, for example, the AT&T case from the Third Circuit and the portion that wasn't reversed by the Supreme Court that say that you can make FOIA essentially mandatory by regulation. [00:07:03] Speaker 04: And our argument is that it's two parts. [00:07:07] Speaker 04: First, that the regulations themselves say that they will put in the record non-exempt material. [00:07:12] Speaker 05: Their view is that this is non-exempt. [00:07:16] Speaker 04: I would disagree. [00:07:17] Speaker 05: The question is whether that's arbitrary and capricious. [00:07:19] Speaker 04: Well, because it's identifying information connecting them to a law enforcement investigation. [00:07:24] Speaker 05: But FOIA doesn't say that. [00:07:26] Speaker 05: FOIA says [00:07:27] Speaker 05: unwarranted. [00:07:28] Speaker 05: It doesn't say, it doesn't make the identification information. [00:07:32] Speaker 05: That comes from one of our cases in a straight FOIA case, not in a reverse FOIA situation. [00:07:37] Speaker 04: Correct, but it says, the court said in safeguard though, that it said as a categorical matter that identifying information in law enforcement files was unwarranted invasion of privacy. [00:07:50] Speaker 04: And I think the agency has room to do this. [00:07:53] Speaker 04: I mean, clearly, because they frequently redact documents, specifically the general counsel reports like we're talking about here, that is an indication that they, in the past, have routinely done this, that they've taken this kind of information out. [00:08:08] Speaker 04: Now, they say, they invoke A5 of FOIA. [00:08:11] Speaker 04: That's the provision about multi-member agencies and votes. [00:08:14] Speaker 04: And they say that that's why this information has to be disclosed. [00:08:17] Speaker 04: But if you look at the policy, that doesn't invoke A5 for the disclosures, it invokes A2. [00:08:23] Speaker 04: You can see that at both page, let me see here, A8 where it says this complies with the requirements of FECA and A2A, that's near the top of the third column on A8. [00:08:36] Speaker 04: And such disclosure is required under FECA and section A2A of FOIA. [00:08:40] Speaker 04: So it only invokes A2. [00:08:42] Speaker 04: Why is that relevant? [00:08:44] Speaker 04: Because A2 specifically provides for redaction. [00:08:47] Speaker 04: It says that it can redact documents to eliminate identifying details and to protect privacy. [00:08:55] Speaker 04: Are you now quoting from FOIA? [00:08:59] Speaker 04: I'm now quoting, well, yes. [00:09:01] Speaker 04: When I'm saying about A2A, that is quoting from FOIA. [00:09:04] Speaker 05: Where is the words you're talking about in A2A? [00:09:07] Speaker 04: Those words are in A2A of FOIA. [00:09:10] Speaker 04: Where is it? [00:09:11] Speaker 04: Pardon me? [00:09:12] Speaker 05: Where I have it open. [00:09:14] Speaker 05: If you could just tell me where. [00:09:16] Speaker 05: The words I see are to the extent required to prevent a clearly unwarranted invasion of personal privacy, and the agency may delete identifying cases. [00:09:25] Speaker 04: Is that what you mean? [00:09:26] Speaker 04: If you're looking at page 26 of Title V, is that about what it is? [00:09:30] Speaker 05: I'm looking at the very large paragraph after 2E. [00:09:35] Speaker 05: Yeah. [00:09:36] Speaker 04: If you look about an inch down, it says, to the extent required to prevent clearly unwarranted invasions of personal privacy, an agency may delete identifying details. [00:09:45] Speaker 05: Yes, that's what I'm looking at. [00:09:46] Speaker 05: So there's two words in there that are significant. [00:09:48] Speaker 05: One is the word clearly unwarranted. [00:09:50] Speaker 05: which is not the word in A7, the law enforcement. [00:09:56] Speaker 05: So this is a tougher standard than the one we addressed in safeguard, harder to meet. [00:10:03] Speaker 05: And secondly, it says an agency may. [00:10:05] Speaker 05: It doesn't say an agency shall. [00:10:07] Speaker 05: So both of these go to the, once again, to the standard of review in a reverse FOIA case, which is only a question of the reasonableness of the agency's decision. [00:10:17] Speaker 04: I don't know off the top of my head whether the word clearly was used anywhere in safeguard and its progeny, but I think it's pretty clear that the court indicated there that that was a very important and they were very pronounced privacy interest. [00:10:30] Speaker 05: It was, but the word clearly is an A6 term about personal information and personnel files. [00:10:37] Speaker 05: not included and We have to assume Intentionally in a seven by Congress which level left the word out Let me ask you another question. [00:10:48] Speaker 05: What about the problem that the trust itself is a corporation which Supreme Court and it is I'm sorry is a trust not a person which in AT&T the court said is not a [00:11:03] Speaker 05: can't take advantage of this A7 protection. [00:11:08] Speaker 04: Well, I think what it said there is that the corporation cannot itself have privacy interests. [00:11:17] Speaker 04: I don't know that it means that they cannot invoke it, because there are other cases where corporations did invoke it. [00:11:25] Speaker 04: In, for example, multi-ag media LLC versus Department of Agriculture, 515 F3, 1224. [00:11:31] Speaker 04: Right, but that, first of all, that is [00:11:33] Speaker 05: before AT&T. [00:11:36] Speaker 05: So several years before AT&T, three years, I think, before AT&T. [00:11:40] Speaker 04: But the point is still the same. [00:11:42] Speaker 04: And it's the point that the government made in its own brief, which is that there can disclose. [00:11:49] Speaker 04: I mean, the corporation doesn't have privacy rights. [00:11:51] Speaker 04: But to the extent that disclosing a name infringes on people's privacy rights, that is still protected. [00:11:58] Speaker 04: I understand that. [00:12:00] Speaker 05: But now we're on the question of the trust itself. [00:12:03] Speaker 05: I thought the district court helpfully broke down the question into one and then the other. [00:12:08] Speaker 05: The language both that we just read together about clearly unwarranted invasions of privacy and the language in A7 about unwarranted invasions of privacy both use the word privacy. [00:12:18] Speaker 05: And the whole point of the FCC versus AT&T case was that there is no personal privacy for a corporation. [00:12:26] Speaker 05: or an artificial entity. [00:12:29] Speaker 05: So if that's the case, I take your pivot to be the argument, well, disclosing the name of the trust might disclose the name of the trustee. [00:12:37] Speaker 05: Is that your argument? [00:12:38] Speaker 04: That is correct. [00:12:39] Speaker 04: And the private, I'm sorry, and the trustee obviously has an interest in keeping the name of the trust private and disclosed. [00:12:47] Speaker 05: Let's go to that for a moment then. [00:12:49] Speaker 05: So if that's the real question, whether the [00:12:52] Speaker 05: Disclosure named the trust reveals the name of the trustee. [00:12:55] Speaker 05: I didn't see any affidavit. [00:12:59] Speaker 05: I didn't see any argument. [00:13:01] Speaker 05: as to why that would be the case. [00:13:04] Speaker 05: And the government, it's brief, raises this point. [00:13:09] Speaker 05: I am able to see the name of the trust, and it doesn't disclose anything. [00:13:13] Speaker 05: It means absolutely nothing to me. [00:13:16] Speaker 05: The government says that trust, as a general matter, don't file documents publicly or anything. [00:13:22] Speaker 05: You haven't made any representation [00:13:25] Speaker 05: from which we could conclude that disclosure of the trust discloses the trustee. [00:13:30] Speaker 05: Am I wrong about that? [00:13:32] Speaker 04: I don't think that we have explicitly addressed filing an affidavit setting forth the mechanism, but I think two responses. [00:13:41] Speaker 04: First, Maltag itself suggests that the court doesn't have to blind itself to the realities of these things. [00:13:46] Speaker 04: They just said basically they're a closely held corporation, of course, that's going to disclose some stuff about the actual owner's finances. [00:13:53] Speaker 04: And I think that, you know, CREW would not be litigating this for hundreds of thousands of dollars on the other side in its own lawsuit if they thought they were going to end that, you know, kind of nondescript trust name. [00:14:05] Speaker 04: It's a simple matter, you know, for people with investigators. [00:14:10] Speaker 05: It's not enough just to say that the other side wouldn't litigate it. [00:14:13] Speaker 05: They don't know what the name says. [00:14:15] Speaker 05: Maybe they think the name says, I don't know, [00:14:18] Speaker 05: John Elwood or something like that. [00:14:19] Speaker 05: They have no idea. [00:14:21] Speaker 05: It doesn't. [00:14:24] Speaker 05: But we can't go on that. [00:14:27] Speaker 05: And the dispute in MultiAg was quite different there. [00:14:36] Speaker 05: The question was the information that would reveal the information about the closely held corporation. [00:14:42] Speaker 05: People knew who the closely held corporation was. [00:14:44] Speaker 05: So it's quite a different information about whether their crop data would end up disclosing finances of the known individuals who owned the company. [00:14:55] Speaker 04: I think two things. [00:14:55] Speaker 04: It suggests that the showing is not that exact. [00:15:00] Speaker 04: And then secondly, I think the court kind of got rid of this case with a fairly, it was not very impressed with even the general argument about the privacy rights because if the trustee was operating simply as a trustee and the corporation or the trust was itself an artificial entity. [00:15:18] Speaker 04: And so I think that what should be done is to send back and tell the court what the proper standard is [00:15:24] Speaker 04: and give us an opportunity to prove it up under that standard. [00:15:27] Speaker 05: I know the court said you had an opportunity. [00:15:32] Speaker 05: You said you don't even need a strong showing. [00:15:34] Speaker 05: I haven't heard of any showing. [00:15:35] Speaker 05: That's what I'm asking you for. [00:15:37] Speaker 05: What is the showing that disclosing the name of the trust [00:15:40] Speaker 05: will disclose the name of the trustee. [00:15:42] Speaker 05: Assuming that's important, I'm not sure whether it is. [00:15:44] Speaker 04: Two things. [00:15:44] Speaker 04: I mean, I think in the simplest case, if you just get an address for the trust, call them up and say, hey, who signed the lease? [00:15:54] Speaker 04: We've got to get in touch with them about something. [00:15:56] Speaker 04: And they might be able to get it that way. [00:15:57] Speaker 04: I mean, there was an NPR story about how internet sleuths just searching the internet for public records figured out the identities of the Russian GRU agents who did the [00:16:08] Speaker 04: the nerve agent attack in Salisbury. [00:16:11] Speaker 04: I mean, there's an enormous amount of information out on the internet that is available to disclose these kind of things. [00:16:17] Speaker 04: And, you know, based on the kinds of showings that were permitted before, I mean, you say it's distinguishable, but still, the multi-ag case suggests that it's not something you have to file some sort of, you know, extended explanation about why it's at risk. [00:16:30] Speaker 04: I think it's a fairly easy to find out. [00:16:31] Speaker 05: No, that's true, but in that case, they knew who the owners were, and the question was the [00:16:36] Speaker 05: whether the crop data would reveal information about this, and since they were the owners, it wouldn't necessarily reveal it. [00:16:44] Speaker 05: That was apparent. [00:16:46] Speaker 05: This, we're getting into speculation. [00:16:49] Speaker 05: But I guess we should now shift on to the trustee. [00:16:56] Speaker 05: I'm not sure what his or her privacy interest in here is either. [00:17:03] Speaker 04: I think that that is answered by the Washington Post case cited by the government where the court said that, you know, even their employees doing their jobs, if they have a privacy interest and not being implicated in criminal wrongdoing in that regard, [00:17:18] Speaker 05: I would have thought that was the worst possible case for you to cite and I was frankly not going to really pay much attention to it because it talks about intimate personal nature. [00:17:29] Speaker 05: That's not what this is about at all. [00:17:30] Speaker 05: This is a purely professional activity. [00:17:33] Speaker 04: Well, it is something he does in his job. [00:17:36] Speaker 04: But it is nonetheless, he is being accused of breaking the law in his job. [00:17:40] Speaker 04: You know, this is not just disclosing simply the fact, you know, without any overlay at all that he is the trustee of a trust. [00:17:48] Speaker 04: It is that he was one of the people who was a law breaker. [00:17:52] Speaker 03: And I think that is... May I interrupt? [00:17:55] Speaker 03: Second counsel, this is Judge Randolph. [00:17:57] Speaker 03: What is to prevent the third party, it was a crew, [00:18:02] Speaker 03: who filed this complaint, what's to prevent them from simply saying that the redacted portion of whatever report gets redacted if you want? [00:18:13] Speaker 03: Why can't crew just think that here's the trust name and here's the trustee's name? [00:18:21] Speaker 04: I'm not sure I understand the question, if it's redacted, how they'd identify the names. [00:18:27] Speaker 03: Who knows who the trust is and who the trustee is? [00:18:34] Speaker 03: Who meant that? [00:18:35] Speaker 03: Why can't the organization simply disclose it to the public if they like? [00:18:41] Speaker 04: No, Your Honor, I don't believe that they do know that. [00:18:44] Speaker 04: I don't think that they've seen the unredacted documents crew. [00:18:47] Speaker 04: I think that that is only the court and the parties in this matter, which does not include crew. [00:18:53] Speaker ?: How about the packs? [00:18:57] Speaker 04: I don't know the answer to that. [00:19:00] Speaker 04: It's not in the record, I think I'd say. [00:19:03] Speaker 03: Well, they received the money, right? [00:19:06] Speaker 04: They ultimately received the money, that is correct, through a number of other entities. [00:19:11] Speaker 04: And I don't think the record says one way or the other whether they had any inkling, because after all, there's no finding by the FEC that the trust was actually the source of the money, much less that it directed the money along its way, that ultimately wound up at the pack. [00:19:27] Speaker 05: But the LLC, [00:19:30] Speaker 05: There's no dispute about that, is there, or is there? [00:19:33] Speaker 04: Government integrity received the money, that's correct. [00:19:35] Speaker 04: So they know. [00:19:37] Speaker 04: There's no LLC. [00:19:39] Speaker 05: I have a little flowchart of how the money is alleged to have, I don't see anything between the trust and the LLC. [00:19:47] Speaker 04: I think that that's true, but I think that this would be kind of one of those things like, you know, the work product privilege in that, you know, if it's, you know, consistent, there's nothing about that that makes it public. [00:19:58] Speaker 04: They haven't disclosed it so far, and so I don't think you can say because they know that nobody else has an interest in keeping private, that information private. [00:20:07] Speaker 03: Doesn't that go to the extent of your privacy interest if it's not a secret? [00:20:14] Speaker 04: I think it is non-public. [00:20:15] Speaker 04: I think it might go to the extent of your privacy interest, but, you know, that's not even an argument that the FEC relied on. [00:20:23] Speaker 04: And I think when you're talking about the, you know, the reasonableness of the agency actions, that's not anything that they have relied on so far. [00:20:32] Speaker 04: But in any event, I wanted to get back to the regular practice that when you're talking about whether or not what happened here is reasonable, you have to look at the fact that they frequently redacted documents to take out identifying information. [00:20:46] Speaker 04: And I think what we have here is an unexplained departure from that practice. [00:20:51] Speaker 04: You know, even though, again, that the agency has invoked A5 when they say you couldn't possibly redact vote certifications, we did a five-minute Google search during the last week just to see what we could find, and we found a dozen of vote certifications which were redacted, suggesting that they, you know, the agency had very much of the view that all of these documents can be redacted. [00:21:12] Speaker 05: But we don't have those, the results of your Google search, so it's not possible for either us or the agency to know whether they are distinguishable or not. [00:21:20] Speaker 04: In any event, I mean, I would be certainly happy to submit them in any form that the court would like. [00:21:25] Speaker 04: And it simply shows, though, that if they're not redactable under A5, they're not redactable. [00:21:31] Speaker 05: I don't think there's any dispute that they are redactable. [00:21:34] Speaker 04: I think the government takes the position that they aren't redactable. [00:21:37] Speaker 04: I think we take the position that it is. [00:21:38] Speaker 05: I thought the government also takes the position that in a reverse FOIA case, subject to arbitrary and capricious reasonableness review. [00:21:48] Speaker 05: And that's really the question that we have before us. [00:21:52] Speaker 05: There is no dispute that the trust made a political contribution in this case, or is there? [00:22:00] Speaker 04: I think we are not taking the position on it. [00:22:02] Speaker 04: All we have said is that they allegedly made a contribution. [00:22:07] Speaker 04: That's what we said in the preliminary injunction motion twice. [00:22:10] Speaker 04: It's all that the district court found. [00:22:13] Speaker 05: I'm not talking about whether they made it to the PAC. [00:22:15] Speaker 05: Did they make something that could be described as a political contribution? [00:22:18] Speaker 04: We don't even take a position on that. [00:22:21] Speaker 04: We think it's up to the agency to demonstrate it, and they haven't done that here. [00:22:24] Speaker 05: But if that's the case, where's the First Amendment interest here at all? [00:22:28] Speaker 05: The First Amendment interest... Where's the standing if you didn't even make a political contribution? [00:22:33] Speaker 04: The standing is that we have been labeled wrongdoers because of what the agency thinks we did. [00:22:39] Speaker 04: And I think that you have standing under a case like Heffernan v. City of Paterson, that even if they're wrong about what happened, the fact that they're taking some... Got a First Amendment claim? [00:22:48] Speaker 04: Yeah, Heffernan was a First Amendment claim. [00:22:51] Speaker 04: It was a First Amendment retaliation claim where the employer mistakenly believed that this man had engaged in speeches of fire. [00:22:57] Speaker 05: That was in retaliation for some First Amendment act. [00:23:00] Speaker 05: Correct. [00:23:01] Speaker 05: I didn't see any allegation here. [00:23:02] Speaker 04: The allegation here is that they're labeling us lawbreakers because of an alleged First Amendment act, which is doing the contribution. [00:23:10] Speaker 05: You just said you didn't make account or you're not willing to concede. [00:23:13] Speaker 04: But Heffernan v. the City of Paterson says it's chilling even if they're factually wrong. [00:23:18] Speaker 04: And it does chill us going forward because it means that we can be labeled as lawbreakers for an action that is entirely lawful without any showing that there was anything wrong with it. [00:23:30] Speaker 04: That is the chilling effect. [00:23:31] Speaker 05: In all the chilling effect cases that we've seen, they all [00:23:36] Speaker 05: require some affidavit other than simply the person saying, I believe that my reputation would be heard. [00:23:47] Speaker 05: This is nothing like the cases referred to in the Supreme Court's opinions, which all go back to the NAACP case, where the chilling effect was belonging to the NAACP in a period in which it was [00:24:05] Speaker 05: targeted for violence and other kinds of things. [00:24:09] Speaker 04: It's true, but I mean, this is a question that is answered by the AFL-CIO case, where the court said it's true, you know, we don't have the kind of strong showing that you're going to be subject to retaliation, but merely disclosure has a chilling effect. [00:24:26] Speaker 05: That is also true, but there the court was talking about tens of thousands of pages of internal documents and strategy, [00:24:34] Speaker 05: Lists of employees, lists of supporters of the AFL-CIO. [00:24:39] Speaker 05: The government has responded to that problem by greatly narrowing what is going to be disclosed here. [00:24:47] Speaker 04: But you still have a disclosure which, in Buckley v. Vallejo, they said that even the mere disclosure can chill First Amendment rights of private association. [00:24:56] Speaker 04: And you combine that with the fact that they are labeling us as lawbreakers, which has a, you know, it has a strongly kind of chilling effect that if you know in the future that you can be labeled as a lawbreaker for engaging in something that no one has ever found fault with. [00:25:10] Speaker 05: Back to the first question, which is who's the they here. [00:25:13] Speaker 05: And one commissioner [00:25:21] Speaker 05: I guess you could arguably say that that's what they're doing. [00:25:24] Speaker 05: But two others, which formed the plurality, three decided the other way and said you weren't lawbreakers. [00:25:32] Speaker 05: So it's not quite the same. [00:25:35] Speaker 05: It's not as if the FEC itself made such a determination. [00:25:39] Speaker 04: That is correct. [00:25:41] Speaker 04: But, you know, there's, you know, safeguard and all of that line of cases say merely disclosure that you are the target of an investigation gives rise to privacy interests. [00:25:50] Speaker 04: And here it's more than that. [00:25:52] Speaker 04: It's that the general counsel's office thought that you should proceed with this and that one of the commissioners thought that you were basically guilty of the violation. [00:26:00] Speaker 04: And I think that that is, you know, there are significant privacy interests in that, and I think that that is something that would ordinarily be recognized as having a chilling effect to have that kind of information put out there in the public. [00:26:12] Speaker 05: All right, I think we're kind of way over, but if any of my colleagues want to ask questions. [00:26:18] Speaker 05: Okay, we'll give you some time at the end anyway. [00:26:20] Speaker 05: Thank you. [00:26:45] Speaker 02: Good morning, Your Honors. [00:26:46] Speaker 02: I am Haven Ward on behalf of the Federal Election Commission. [00:26:49] Speaker 02: May it please the Court. [00:26:51] Speaker 02: The district court's judgment should be affirmed. [00:26:53] Speaker 02: FECA, FEC regulations, and the agency's carefully crafted disclosure policy demonstrate that it is both reasonable under Chevron and constitutional under the First Amendment to disclose the Doe's identities. [00:27:07] Speaker 01: Nor is it. [00:27:08] Speaker 01: Let me ask you about the wording of 111.20b, which you all have promulgated, subject to 4ab, too little, too. [00:27:23] Speaker 01: Where does terminate or otherwise terminate its proceedings come from in the statute? [00:27:32] Speaker 01: And even assuming that it does, what proceeding was terminated as to the two John Doe's here? [00:27:42] Speaker 01: The way I read the sequence of events here is that a proceeding was never initiated. [00:27:50] Speaker 01: The general counsel recommended that they both try to enforce the subpoena and find reason to believe they violated the act. [00:28:00] Speaker 01: That was rejected. [00:28:02] Speaker 01: So a proceeding was never initiated. [00:28:05] Speaker 01: So even assuming this language comes under the statute, which I have a real question about, what proceeding here was terminated that allows you to make the John Doe's names public? [00:28:20] Speaker 02: Your Honor, the proceeding that was terminated was the one in which their subsidiary signed a conciliation agreement and agreed to be one of three that were paying a substantial monetary penalty. [00:28:35] Speaker 02: Due to the nature between the trust and the trustee and their relationship with Government Integrity LLC, they are part and parcel of several documents going in the record that are [00:28:49] Speaker 02: directly a part of those proceedings below. [00:28:53] Speaker 01: So is it your position that when you sweep in several people in the beginning but don't proceed against the two John Doe's that [00:29:12] Speaker 01: that doesn't separate them out from the proceedings. [00:29:15] Speaker 01: In other words, when you go forward with the others, even though there's no reason to believe or there's no finding there's reason to believe and no enforcement of the subpoena, they get carried along in these proceedings. [00:29:30] Speaker 01: Is that your position? [00:29:34] Speaker 01: such that their names can be revealed. [00:29:37] Speaker 02: Right. [00:29:37] Speaker 02: Their names appear as a central actor in both the activity below as well as the enforcement matter. [00:29:45] Speaker 02: So separate and apart from the [00:29:49] Speaker 02: vote on whether or not there was reason to believe that they themselves violated the law. [00:29:55] Speaker 02: They were a part of the proceedings, just as you will see in the conciliation agreement. [00:30:00] Speaker 02: You'll see, for example, the name of Christopher Bird, because he was involved with Government Integrity LLC. [00:30:08] Speaker 02: And you will see other names, both in that document and the record, of people that had a significant factual role in the proceedings below. [00:30:18] Speaker 02: Here, I think the case for disclosure is particularly high because they were themselves the subject of a reason to believe vote for purposes of a matter that is growing out of the litigation. [00:30:35] Speaker 01: Well, they don't fall under the first part of that, which is if the commission makes a finding of no reason to believe or no probable cause to believe, they didn't make that finding. [00:30:46] Speaker 01: That is correct, Your Honor. [00:30:47] Speaker 01: There was not a finding that there was no reason to believe. [00:30:49] Speaker 01: All right. [00:30:50] Speaker 01: And the phrase, or otherwise terminates its proceedings, is, whatever the Latin term is now, I've forgotten, is a companion to a finding of no reason to believe or no probable cause to believe. [00:31:04] Speaker 01: That's directed at the two [00:31:06] Speaker 01: John Doe's. [00:31:08] Speaker 01: And so another question is, why isn't the termination of proceedings directed specifically to the John Doe's? [00:31:17] Speaker 01: You're telling me they're swept in because of the findings you made with respect to the other. [00:31:25] Speaker 02: Yes, sir. [00:31:25] Speaker 02: I mean, they certainly were swept into the termination of the other proceedings, which ended with a conciliation agreement. [00:31:34] Speaker 02: when matters are arising out of an investigation, there is a multi-step process. [00:31:42] Speaker 02: So the first step is that the general counsel makes a recommendation whether or not to find reason to believe. [00:31:52] Speaker 02: And then the next step in that process is a vote by the commission as to whether or not to go forward with that. [00:32:03] Speaker 02: So those were both integral to the proceedings, to the larger proceedings, as well as their own. [00:32:14] Speaker 02: But you don't need to rely necessarily on their disclosure of those proceedings. [00:32:21] Speaker 02: But the definition of proceedings is the multi-step process. [00:32:24] Speaker 02: And here, the regulations specifically set forward that under 11 CFR 111.8, that the first step [00:32:34] Speaker 02: is a recommendation by general counsel as to whether or not to find reason to believe. [00:32:38] Speaker 02: And then the next step is a commission vote. [00:32:41] Speaker 02: And then there are further steps from that point forward. [00:32:45] Speaker 02: So that is a proceeding. [00:32:52] Speaker 02: In terms of the broader authorization for the commission ability to disclose information, [00:32:59] Speaker 02: I think you can look at FICA itself, where it is specifically barring only a very narrow class of documents. [00:33:08] Speaker 02: It is also specifically mandating disclosure of a certain set of documents. [00:33:14] Speaker 02: This is the characteristic gap that is reasonable for the agency to fulfill. [00:33:20] Speaker 02: It's well established that the commission has broad authority to interpret FICA in a reasonable manner [00:33:29] Speaker 02: enact regulations that further its goal. [00:33:35] Speaker 02: And here, as we've explained, the disclosure policy furthers the really important government interests in both accountability and deterrence. [00:33:46] Speaker 02: And this applies as well to these particular does, in addition to being a reasonable basis for the commission policy more broadly itself. [00:33:58] Speaker 01: Can I ask you then, since you brought up B2 in the statute, and it begins, if a conciliation agreement is agreed upon by the commission and the respondent. [00:34:08] Speaker 01: The two John Does are not respondents, correct? [00:34:13] Speaker 01: That's correct, Your Honor. [00:34:13] Speaker 01: All right. [00:34:14] Speaker 01: The commission shall make public any conciliation agreement signed by both the commission and the respondent. [00:34:20] Speaker 01: If the commission makes a determination that a person has not violated this act, [00:34:26] Speaker 01: You made no such determination with respect to John Doe's. [00:34:30] Speaker 02: That is correct, Your Honor. [00:34:31] Speaker 01: Okay. [00:34:32] Speaker 01: The commission shall make public such determination. [00:34:35] Speaker 01: Now, I don't see anywhere where what happened with the John Doe's that is just basically refusing to take the recommendation of the general counsel that that fits into [00:34:51] Speaker 01: the statute, so then you go to terminating proceedings. [00:34:56] Speaker 01: And I think you've told me, well, the proceedings were against all the people, the respondents, the actual respondents who signed the conciliation agreement. [00:35:06] Speaker 01: And swept into that are these two John Doe's against whom we took, or we made no finding and took no action. [00:35:23] Speaker 02: By the fact that FECA mandates the disclosure of particular information, it does not mean that it has therefore barred the disclosure of any other information, Your Honor. [00:35:34] Speaker 01: Well, I think you've got a hard hill to climb on that, but go ahead. [00:35:39] Speaker 02: First thing is that if Congress had limited the FEC's ability to disclose only signed conciliation agreements, then the statement in B1 that information derived in connection with a conciliation attempt would be completely superfluous. [00:36:02] Speaker 02: There would be no point in including that in the regulation [00:36:07] Speaker 02: if it was already understood that the FEC was unable to disclose any other information. [00:36:18] Speaker 01: Let me ask you one thing about B1, because I've had a lot of trouble [00:36:26] Speaker 01: figuring out when this statute uses respondent and when it uses person. [00:36:32] Speaker 01: V1 says, no action by the commission or any person in connection with any conciliation attempt shall be made public without the consent. [00:36:41] Speaker 01: What person is this referring to? [00:36:46] Speaker 01: The general counsel? [00:36:48] Speaker 01: I mean, it's only the commission. [00:36:50] Speaker 02: No, Your Honor. [00:36:54] Speaker 02: That provision pertains to, as I think would be a fair reading, would pertain to other persons involved. [00:37:03] Speaker 02: So for example, and who might be aware and participating in any conciliation attempt. [00:37:11] Speaker 01: So would that include the respondents? [00:37:14] Speaker 02: It would include the respondents, although the commission and the respondents can together agree to disclose that information. [00:37:24] Speaker 02: a written consent signed by both the respondent and the commission, that would apply as well to the respondent, as I interpret this, or as the commission interprets the provision, I believe. [00:37:36] Speaker 02: So would that include crew? [00:37:43] Speaker 02: The crew as the administrative complainant is not a party to the investigatory proceedings. [00:37:53] Speaker 02: So I think it's doubtful, but I think the statute does say any person, so they would be [00:38:02] Speaker 02: It would extend to them as well. [00:38:03] Speaker 01: Would that answer Judge Randolph's question, that is, no action by any person, including the disclosure by crew of the names of the two John Doe's? [00:38:14] Speaker 01: Is that a reading under B1? [00:38:21] Speaker 02: I don't think I'm following you, Your Honor. [00:38:25] Speaker 02: The B1 is directly addressed at information derived in connection with conciliation attempts, specifically. [00:38:32] Speaker 01: That's what we have here, and then a resulting conciliation agreement. [00:38:42] Speaker 02: No, Your Honor. [00:38:44] Speaker 02: The proceedings below, there might have been aspects of it that were pertaining to conciliation, but every single action that the commission took prior to the conciliation, I can't see how it could be read so broadly. [00:38:59] Speaker 02: For example, the finding of reason to believe in the first instance. [00:39:06] Speaker 02: At that point, there's no evidence in the record that there was any attempts at conciliation. [00:39:11] Speaker 02: In fact, [00:39:14] Speaker 02: As I understand the record, conciliation wasn't even raised as a possibility for several months. [00:39:21] Speaker 02: Not to mention, if you're seeking discovery against the trust and the trustee, they were not party to the conciliation agreement. [00:39:34] Speaker 02: So there's no evidence in the record that the information pertaining to them would be falling within [00:39:42] Speaker 02: information derived in connection with the conciliation attempt. [00:39:46] Speaker 02: In fact, the commission found out about both government integrity and the trust from one of the people who was [00:39:57] Speaker 02: a signatory to the conciliation agreement. [00:40:01] Speaker 02: However, at that point in the proceedings, there's no evidence in the record that conciliation attempt had begun, much less that the scope would be so broad as it would encompass every single thing in a matter. [00:40:19] Speaker 01: The sequence set out by the district judge is that on August 10th of 2017, they served the subpoena on the two John Doe's, and they refused to honor it. [00:40:30] Speaker 01: By October 24th of 2017, the commission voted unanimously to approve the conciliation agreement with the respondents. [00:40:39] Speaker 01: So where is this several map you're talking about? [00:40:42] Speaker 02: The complaint was originally filed. [00:40:46] Speaker 02: Oh, from CREW. [00:40:46] Speaker 02: Okay. [00:40:47] Speaker 02: Right. [00:40:47] Speaker 02: Okay. [00:40:47] Speaker 02: And there were extensive proceedings and investigations prior to that. [00:40:54] Speaker 02: And there's no indication in the record when and to what extent the conciliation discussion had begun. [00:41:01] Speaker 02: There's a requirement here that it has to be in connection with a conciliation attempt. [00:41:09] Speaker 02: and applies to information derived from a conciliation attempt. [00:41:15] Speaker 02: Other than the fact that there was an eventual conciliation agreement, there's no indication in the record at what point the parties were attempting to conciliate, nor the scope of the information that was directly derived from that attempt itself. [00:41:32] Speaker 01: All right, let me ask you this. [00:41:33] Speaker 01: I see where CREW began this whole thing in February of 2015, two and a half years before that John Doe's got bragged into it. [00:41:44] Speaker 01: But you do agree that the first appearance they made was this subpoena served on them in August of 2017. [00:41:51] Speaker 01: That's what the district court sets out. [00:41:59] Speaker 02: That, I think that there is a distinction, your honor, between their notice and involvement and the service of a subpoena upon them. [00:42:09] Speaker 02: There were proceedings below regarding, [00:42:14] Speaker 02: regarding prior to that, involving government integrity, who's their wholly owned subsidiary. [00:42:21] Speaker 02: Government integrity was a defunct corporation that is plain in the record, was only resurrected for the purpose of this particular proceeding. [00:42:32] Speaker 02: The same day, originally the commission was serving government integrity through the person who was acting as its agent during the activity that was being investigated. [00:42:42] Speaker 02: Then later at a certain point, they were formally served. [00:42:47] Speaker 02: And in response to that, the trustee entered an appearance, activated government integrity LLC, [00:43:01] Speaker 02: And then from that point forward, the trust and the trustee were involved. [00:43:08] Speaker 02: As the Government Integrities Council indicated, and this is also in the record, he had no documents or information other than what the trust and the trustee were willing to give him. [00:43:22] Speaker 02: The Government Integrities sole manager and officer had died. [00:43:31] Speaker 02: to say that the first notice that they received or their first involvement was the date of the subpoena, I think would be incorrect, Your Honor. [00:43:39] Speaker 02: But more importantly, there is no provision in FECA that expressly bars the disclosure of the information here. [00:43:49] Speaker 02: And because only certain information is [00:44:01] Speaker 02: required to be disclosed is specifically barred and some is specifically mandated, then that is the quintessential gap to be filled by the agency. [00:44:11] Speaker 02: And here the agency is undertaken to address the court's concern, AFL-CIO, none of the documents that concern the court and AFL-CIO are disclosed anymore, not subpoena information. [00:44:23] Speaker 05: I take it that the nature of the questioning a few minutes ago and now that you're bringing up again is [00:44:30] Speaker 05: question of what do we do when a statute requires disclosure under some or a regulation requires disclosure under some circumstances and then is otherwise silent. [00:44:48] Speaker 05: And that is the Expresio Unius [00:44:52] Speaker 05: which this court has generally rejected as having much play in these kind of circumstances. [00:45:03] Speaker 05: So all three of the members of this panel, and no doubt all the members of the court have written on this, and the typical quotation is, whatever it's general, this is from National Shooting Sports Foundation, but is also found in the Cheney case and in the [00:45:24] Speaker 05: that Holland case, which specifically refers to the FEC and the National Association of Manufacturers case, which is the SEC. [00:45:33] Speaker 05: And that is, whatever its general force, we think Expressio Unius is an especially feeble helper in an administrative setting, where Congress is presumed to have left to reasonable agency discretion questions that it is not directly resolved. [00:45:49] Speaker 05: So that should be your answer to the question. [00:45:53] Speaker 05: How is it that the agency can go forward to disclose material that when the statute only lists two particular kinds of material that can be disclosed? [00:46:04] Speaker 02: There's a difference, Your Honor, between mandating that the agency disclose something and removing its discretion from disclosing anything else. [00:46:15] Speaker 02: Particularly given that FICO was enacted at a time when Congress had just [00:46:23] Speaker 02: or had recently revived FOIA and mandated a presumption of agency openness, that Congress here would sub silencio. [00:46:33] Speaker 05: Well, it's not just that there's a context here. [00:46:36] Speaker 05: There's another statute, which is the Freedom of Information Act, which compels this agency and all others to disclose dissenting and concurring opinions unless clearly, but allows [00:46:51] Speaker 05: redaction unless clearly unwarranted in the nature of privacy, and compels disclosure of all other documents unless some exemption applies, which the only one being argued here is seven. [00:47:05] Speaker 05: And those are not just authority for the agency to disclose. [00:47:09] Speaker 05: Those require the agency to disclose. [00:47:14] Speaker 05: So the only question, it seems to be, is whether it's reasonable or arbitrary and capricious [00:47:20] Speaker 05: to not regard this exemption as applying to the trust and the trustees. [00:47:24] Speaker 05: Is that wrong? [00:47:26] Speaker 02: I think that is where the court is appropriate for the court's ultimate inquiry, is whether or not it is an abusive discretion to have not found that it was clearly unwarranted to remove the identifying information of the trust and the trustee. [00:47:45] Speaker 02: As you noted, [00:47:50] Speaker 02: before, the trust does not have privacy rights that are protected by FOIA under the recent Supreme Court case. [00:47:57] Speaker 02: And as to the trustee, the privacy interests are much more limited because he was acting in a business capacity. [00:48:07] Speaker 02: And to the extent that he was named in the proceedings, it was solely in his official capacity. [00:48:13] Speaker 02: At the same time, you have the very important government interests to [00:48:21] Speaker 02: of accountability and deterrence, both of which are furthered here by the disclosure of the name of the trustee. [00:48:31] Speaker 02: Unlike other law enforcement agencies, the central importance of FICA being enforced by a nonpartisan commission [00:48:41] Speaker 02: is repeated over and over and over throughout FICA. [00:48:46] Speaker 02: You have the fact that there's an even number of commissioners, which in itself is unusual. [00:48:51] Speaker 02: You have the mandate that no more than three can be of a particular party. [00:48:55] Speaker 02: You also have the express requirement in FICA that to be eligible to be appointed to the commission requires impartiality. [00:49:06] Speaker 02: And you also have the mandate that both the chair and the vice chair are from different parties. [00:49:13] Speaker 02: Both the open acknowledgement as to the commissioner's party affiliations as well as FICA's attempt [00:49:25] Speaker 02: to assure the public that FICA's being enforced in impartial and nonpartisan way demonstrates why the FEC must be able to disclose significant persons under investigation. [00:49:39] Speaker 02: These are not people that were tangentially related just swept up in a commission investigation. [00:49:45] Speaker 03: Isn't there something in addition, particularly after Citizens United, that one can say that there is [00:49:54] Speaker 03: the statute itself exhibits a general policy that the public should be made aware of the source of political contributions. [00:50:09] Speaker 02: Your Honor, I think that would be a fair reading of Citizens United. [00:50:12] Speaker 02: And while there has been debate in the briefing in this court, there is no debate in the record below that the money at issue came [00:50:24] Speaker 02: from the trust. [00:50:31] Speaker 02: So whether or not they were the true source and whether or not they were potentially subject to liability under the statute, the money did originate from them and that was not disputed below in the district court or in front of the agency. [00:50:49] Speaker 05: Further question. [00:50:50] Speaker 05: I think we've now let you go over as much as we've let opposing counsel go over. [00:50:54] Speaker 05: Are there questions, Judge Randolph or Judge Henderson? [00:50:58] Speaker 05: No. [00:50:58] Speaker 05: Okay, fine. [00:50:59] Speaker 05: Thank you, Your Honor. [00:51:05] Speaker 04: Although you are over, we'll give you two more minutes. [00:51:08] Speaker 04: Thank you, I appreciate it. [00:51:10] Speaker 04: I wanted to just say a word about the government's stated interest in accountability and deterrence. [00:51:16] Speaker 04: I think, to begin with, the argument about deterrence is misplaced because they haven't shown anything that they are deterring. [00:51:23] Speaker 04: They've never been any sort of finding that what we did here was wrong or improper in any way. [00:51:27] Speaker 04: As far as accountability goes, these courts have historically unpacked the names of parties from accountability. [00:51:35] Speaker 04: The idea is that there's nothing about the person's name that is essential for the public to know about. [00:51:41] Speaker 04: You can see that in the Reporters Committee case. [00:51:44] Speaker 04: Just a quick quote, there is no need to identify the individuals involved in a matter if the identification has no bearing or effect [00:51:51] Speaker 04: on the general public. [00:51:52] Speaker 05: So that's a case about rack sheets, which is quite a different question here. [00:51:58] Speaker 05: The issue is, I think, as Judge Randolph put it, political accountability, both of the sources of funds and of the agency, as the agency council was talking about, [00:52:10] Speaker 05: about making sure that the agency isn't preferring one party or another over another one. [00:52:16] Speaker 05: And I'm not saying there's anything in the record because there isn't anything in the record that we can see from the name, but to ensure that the agency, that all the cases in which they find no reason to believe [00:52:31] Speaker 05: They don't come from one party and all the ones where they find reasonably come from another party or something like that. [00:52:36] Speaker 05: So this is different than if you're even on a theoretical level, this seems different than Reporters Committee. [00:52:43] Speaker 04: Reporters Committee, what I was reading there was talking about a hypothetical tax matter and it was saying that as a general matter for all these things. [00:52:50] Speaker 04: three quick points and I'll sit down, which is there's no reason at all to do it any differently in the election contest. [00:52:56] Speaker 04: This court said in AFL-CIO that the FEC is unique and that all it does, its purpose is to regulate constitutionally protected expression. [00:53:08] Speaker 04: Secondly, Congress recognized that disclosure wasn't all that necessary because they only mandated two things, conciliation agreements and findings that people aren't liable. [00:53:18] Speaker 04: And third, [00:53:19] Speaker 04: You don't need to disclose names to have some sort of public interest that things are okay, because it's a multi-member commission with two opposing parties. [00:53:29] Speaker 04: So all six people would essentially have to be on the tape for somebody not to say, this person's getting special treatment because of who they are. [00:53:36] Speaker 04: And the government's rationale... I thought it requires four commissioners to do anything. [00:53:43] Speaker 04: Any one of them could say, this guy's getting special treatment because of who he is. [00:53:47] Speaker 05: Well, I thought that was your complaint about what Weintraub was doing. [00:53:53] Speaker 04: It would be enough to allow him to do judicial review and then they can, you know, they could go up on the court and all of you could see the name. [00:54:00] Speaker 05: So this case, I understand, is also being litigated on the question of whether there's judicial review. [00:54:05] Speaker 05: You think they're entitled to judicial review? [00:54:07] Speaker 04: I think the government and us agree, both parties at the tables agree that they're not entitled to judicial review. [00:54:11] Speaker 04: Okay, so then it's not enough to get up. [00:54:14] Speaker 04: But, I mean, on the facts of this case, again, if it's a dismissal, they might have enough for review. [00:54:20] Speaker 04: There's limited bases for judicial review, and here there was a conciliation agreement. [00:54:24] Speaker 04: But my point is just that there are built-in mechanisms to provide some assurances that it's not just going to be swept under the rug. [00:54:32] Speaker 04: And all of those are reasons why the court should not exempt the Federal Election Campaign Act from the ordinary presumption that names of individuals in files stay private. [00:54:45] Speaker 05: Thank you. [00:54:45] Speaker 05: We'll take the matter under submission. [00:54:47] Speaker 05: Very good argument on both sides. [00:54:48] Speaker 05: We appreciate it.