[00:00:07] Speaker 00: Mclanahan as Esquire at Appellant versus United States Department of Justice. [00:00:13] Speaker 00: Mr. Mclanahan to the Appellants. [00:01:26] Speaker 03: Thanks, Victor. [00:01:28] Speaker 03: All right, Mr. McClanahan. [00:01:39] Speaker 02: May it please the court, my name is Kel McClanahan. [00:01:42] Speaker 02: I am representing myself and Corey Crider in this FOIA case. [00:01:45] Speaker 02: This case is a pretty straightforward case when it boils down to it. [00:01:53] Speaker 02: The FBI, as far as everybody can tell, engaged in litigation misconduct in a case. [00:02:00] Speaker 02: And when I filed FOIA requests for information to demonstrate that, [00:02:05] Speaker 02: They threw every procedural trick they could at the request and at the district court and at this court to avoid acknowledging that misconduct. [00:02:16] Speaker 02: They did improper searches. [00:02:18] Speaker 02: They used improper cutoff dates. [00:02:20] Speaker 02: They searched for the wrong terms. [00:02:22] Speaker 02: They withheld information that had been previously disclosed. [00:02:25] Speaker 02: They filed things in camera just as a matter of procedure without ever once asking the court's permission. [00:02:35] Speaker 02: everything they have done in this case is a cautionary tale for how not to litigate a FOIA case. [00:02:42] Speaker 02: And now they're here asking this panel to affirm that decision. [00:02:47] Speaker 02: And so because this has a lot of different moving parts, I will just address things very quickly unless there are particular areas that the panel wishes to discuss. [00:02:59] Speaker 02: Starting with the probably the easiest matter, the ex parte declarations. [00:03:06] Speaker 02: Likens and various other cases from various other circuits make it clear that when you wish to file something in camera, you have to file a motion. [00:03:16] Speaker 02: You have to give the opponent a chance to oppose it and then the judge has to rule on it. [00:03:23] Speaker 02: Local rule, local civil rule, [00:03:25] Speaker 02: 5.1 J1 even states that if something is filed without a motion to seal, it will be filed on the public record. [00:03:35] Speaker 04: I couldn't find any place in the district court where you raised the local rule, did you? [00:03:42] Speaker 02: The sealing mechanism or the in camera? [00:03:45] Speaker 02: Yes, Your Honor. [00:03:46] Speaker 02: The first time they filed it, I filed a motion to strike. [00:03:49] Speaker 04: You motioned a motion to strike, but did you invoke the local rule? [00:03:52] Speaker 02: Pardon me? [00:03:53] Speaker 04: Did you invoke the local rule? [00:03:56] Speaker 02: I do not recall, Your Honor. [00:03:57] Speaker 04: Well, I asked you the question because I didn't see it in there. [00:04:00] Speaker 04: If I'm wrong, you should tell me. [00:04:02] Speaker 02: I do not recall, Your Honor. [00:04:04] Speaker 02: Sorry. [00:04:05] Speaker 04: But you agree if it isn't there, you can't rely on it here, right? [00:04:09] Speaker 02: No, Your Honor, because the local rule states that it shall be filed. [00:04:14] Speaker 04: You can't raise arguments here you haven't raised in the district court. [00:04:18] Speaker 04: That's my point. [00:04:20] Speaker 04: And in any event, I get your point that they didn't file a motion for permission to file a sealed, a classified declaration. [00:04:33] Speaker 04: But even if that was wrong, you moved to strike it, right? [00:04:37] Speaker 02: I moved to strike the first one. [00:04:38] Speaker 04: Yeah, so you got your shot at it, right? [00:04:41] Speaker 04: Even if they made a mistake or should have done it, you had an opportunity to challenge it, right? [00:04:47] Speaker 02: Your Honor, that is not correct. [00:04:50] Speaker 02: I had an opportunity to move to strike it. [00:04:52] Speaker 02: However, that's not what the law requires. [00:04:54] Speaker 02: The law requires that they file a motion to file it. [00:04:57] Speaker 02: I should not have had to file a motion to strike it. [00:05:00] Speaker 04: I was just asking you whether or not, even if they should have filed it, the failure was harmless because you file a motion to strike and an opportunity to challenge [00:05:12] Speaker 02: And even if we were to accept that reading, that would only apply to the first in-camera declaration, not the second or third where they just filed more notices and the judge never even affirmed it. [00:05:27] Speaker 02: never even accepted it until my opposition for summary judgment, I said, and I renew my objection to the filing of these things in camera without permission. [00:05:38] Speaker 02: And she said, for the same reason as before, I find that they have still shown that it's necessary to file in camera, which they never did. [00:05:47] Speaker 02: That was the other thing that the court aired. [00:05:50] Speaker 02: when she stated that these were shown to be necessary for the resolution of the case because the FBI did not show anything. [00:06:00] Speaker 02: They just filed it. [00:06:03] Speaker 02: They did not justify it. [00:06:04] Speaker 02: They did not give any reasons on the public record. [00:06:07] Speaker 02: They may have given reasons in the in-camera declarations, but in-camera declarations can't have legal argument. [00:06:16] Speaker 02: That's another reason that these should have not been allowed because everything that [00:06:22] Speaker 02: the FBI filed on the public record was filled with legal argument. [00:06:28] Speaker 02: And the arguments for some of the points that the judge relied on were solely made in the in-camera declarations. [00:06:36] Speaker 02: And the brief would say something like, for the reasons shown in the in-camera declaration, you should grant this exemption claim. [00:06:46] Speaker 02: And then it moved on to the next topic. [00:06:48] Speaker 02: So there are myriad reasons, but the most pressing reason is the process is clear. [00:06:58] Speaker 02: Everyone can file a motion to strike. [00:07:01] Speaker 02: The fact that everyone can file a motion to strike does not make it any less improper for them not to file a motion for leave. [00:07:09] Speaker 04: I assume you started with this argument about the filing of the classified declarations because you think it's your strongest, right? [00:07:19] Speaker 02: Not necessarily. [00:07:20] Speaker 04: What's your next strongest argument? [00:07:23] Speaker 04: You're right. [00:07:24] Speaker 04: There's lots of arguments here. [00:07:26] Speaker 02: It's not necessarily the strongest. [00:07:27] Speaker 02: It is the thing that has the most effect because if you strike those, you can't [00:07:33] Speaker 02: affirm any of the B3, B5, B6, B7C withholdings because they were based on the classified declarations. [00:07:41] Speaker 02: The search issue is probably the next most pressing issue and this has a few different parts. [00:07:47] Speaker 02: Number one is [00:07:50] Speaker 02: This all boiled down to, as I said, you know, in the previous case, in the Mobley case, I came into possession of information that the FBI said was classified. [00:08:02] Speaker 02: I said it was not classified. [00:08:04] Speaker 02: I said that I had, my client had gotten it from a public source. [00:08:08] Speaker 02: And they said because it's classified, [00:08:11] Speaker 02: you are bound by a non-disclosure agreement from revealing it. [00:08:15] Speaker 02: That's part of this whole procedural nightmare is that I'm bound by a non-disclosure agreement. [00:08:20] Speaker 02: So what I can tell you is limited, even though I still say it's not properly classified. [00:08:28] Speaker 02: So when I filed a FOIA request for information about me, my firm, the investigation number, or the information [00:08:37] Speaker 02: that I'm alleged to have possessed, the allegedly classified information, they did a search based on my name and the name of my firm. [00:08:46] Speaker 02: And they say that, well, when they told Judge Howell that they had found no evidence to support my official disclosure theory, and I clearly aimed this request at getting how they looked for that evidence [00:09:05] Speaker 02: First, they said, well, that's not what he meant. [00:09:10] Speaker 02: He meant that there are no markings on it, which was one of the two reasons Mr. Argo gave and one of the two reasons the district court cited. [00:09:20] Speaker 02: Then they later shifted gears. [00:09:23] Speaker 02: They're doing a bit of a moving target on this and said, oh, well, even if we had done an investigation, records about that would be beyond the scope of this request because it was clearly only about Mr. McClenahan and National Security Counselors. [00:09:34] Speaker 02: It wasn't. [00:09:35] Speaker 02: The plain text of the request had four parts in it, information about me, information about my firm, information about the investigation number they assigned to it, and information about the document that they say was classified. [00:09:52] Speaker 02: Item four would encompass [00:09:56] Speaker 02: records created that did not have my name in it. [00:09:59] Speaker 02: My FOIA request even said my name will probably not appear in all of these documents. [00:10:04] Speaker 02: But they didn't look for that. [00:10:06] Speaker 02: They also did this bizarre thing with a cutoff date where when they got the request they did some kind of cursory search before immediately invoking a B7A categorical denial and then [00:10:24] Speaker 02: We fought that for two years and the judge ordered them to go and do a real search and they did a real search and they did a cutoff date of the date of the very first search two years earlier. [00:10:37] Speaker 02: That's not how cutoff dates work. [00:10:39] Speaker 02: You're doing a cutoff date as of the date of the search, not as of the date of the first search. [00:10:44] Speaker 02: And that's pretty much all I have to say about search. [00:10:50] Speaker 02: Going through the exemptions, I'm not really going to dive into B5 or B6 right now unless you have questions about it. [00:10:58] Speaker 02: But B3, again, is based on the in-camera declaration. [00:11:02] Speaker 02: So if you strike those, then that's done. [00:11:06] Speaker 02: It's not FBI information. [00:11:09] Speaker 02: All of the classified information, all of the information withheld, allegedly classified information, all of the information withheld under B3, or much of it, is information that I provided to the FBI and I provided to the district court to show that it was not properly exempt. [00:11:27] Speaker 02: And the district court agreed that the information could be filed on the public record. [00:11:33] Speaker 02: And the district court agreed that by definition, this information is already available to the public. [00:11:42] Speaker 02: That's a quote from her opinion. [00:11:45] Speaker 02: That's the stuff they're trying to withhold now. [00:11:49] Speaker 02: And they're saying, well, it wasn't FBI that officially disclosed it. [00:11:55] Speaker 02: It was the CIA. [00:11:56] Speaker 02: That doesn't matter. [00:11:57] Speaker 02: It was CIA article titles. [00:11:59] Speaker 02: It was an investigation about CIA classified information. [00:12:04] Speaker 02: And this is not FBI's fight. [00:12:07] Speaker 02: And they can't, even if they could argue that it wasn't their information, it's irrelevant because it's been previously ordered available to the public by the judge. [00:12:20] Speaker 02: And their main thing, and I'll stop on this since I see I'm running out of time before my, and cutting into my rebuttal, they say that when I referred in my arguments to my previous declaration in the other case, in the NSC-VCIA case, that required the judge to root around in the record. [00:12:41] Speaker 02: No, it didn't. [00:12:43] Speaker 02: I wasn't able to state in my briefs in this case what the classified information was because of my non-disclosure agreement. [00:12:52] Speaker 02: That's the problem. [00:12:54] Speaker 02: I did the closest thing I could without violating my non-disclosure agreement. [00:12:58] Speaker 02: I pointed her to the publicly available document that had the information because she had only authorized me to reveal that information in the context of that case. [00:13:11] Speaker 04: By the way, just one quick question on the cutoff date. [00:13:14] Speaker 04: Couldn't you just file another FOIA request for everything after November 1? [00:13:19] Speaker 02: I could, Your Honor. [00:13:20] Speaker 04: So why do we have to deal with all this? [00:13:23] Speaker 02: Because everyone can always file a new request when faced with an inadequate search. [00:13:27] Speaker 04: But if you had done it a year ago, you probably have the information by now. [00:13:32] Speaker 02: That's possible, but I... But you could, you could just... I could. [00:13:36] Speaker 02: I probably would still be in front of you in a couple years over different arguments like the search. [00:13:40] Speaker 02: But yes, I could have filed an before request. [00:13:43] Speaker 04: It might be a different panel. [00:13:45] Speaker 02: I'm sorry, I didn't hear that. [00:13:46] Speaker 04: You mean before this very panel? [00:13:48] Speaker 04: Is that your point? [00:13:49] Speaker 02: I'll be before the circuit, probably, because... Well, you don't know that. [00:13:53] Speaker 02: Well, most of these other arguments would apply to a new request as much as they apply to the old request. [00:14:00] Speaker 02: And honestly, with respect to the court, the fact that I can file any for request doesn't mean they performed an adequate search. [00:14:08] Speaker 04: I understand that. [00:14:10] Speaker 02: Thank you, Your Honor, unless you have any more questions. [00:14:12] Speaker 03: All right. [00:14:13] Speaker 03: Mr. Yellen. [00:14:18] Speaker 05: Good morning, Your Honors. [00:14:19] Speaker 05: May it please the Court? [00:14:20] Speaker 05: I'm Luis Yellen from the Department of Justice here today on behalf of the Department. [00:14:24] Speaker 05: I'd principally like to answer any questions the Court has, but before I do that, if I may, I'd like to address just one point that Mr. McClanahan raised in his opening argument. [00:14:35] Speaker 05: That is about this point that I'm going to address goes both to the B3 argument and to the scope, the terms and the scope of review argument. [00:14:46] Speaker 05: Mr. McClanahan is conflating two different types of classified information. [00:14:51] Speaker 05: He's principally, in his presentation to this panel, he referred to classified information that was at issue in his earlier case that was called National Security Counselors. [00:15:03] Speaker 05: That was information that he purported was CIA information that was classified. [00:15:11] Speaker 05: And he was subsequently interviewed by the FBI about that information. [00:15:15] Speaker 05: This particular suit involves a FOIA request to the FBI about classified information. [00:15:23] Speaker 05: And the FBI conducts investigations when persons who are not authorized to possess classified information may be in possession of classified information. [00:15:34] Speaker 05: Mr. McClanahan reports that the information that's classified in this case is the same information. [00:15:40] Speaker 05: that was at issue in his earlier case. [00:15:43] Speaker 05: That is factually incorrect. [00:15:45] Speaker 05: If the court looks at JA 74, this is the first Hardy declaration, paragraph 54, the declaration explains that with respect to the B3 exemption, [00:15:57] Speaker 05: The declarant determined that the FBI's intelligence sources and methods would be revealed if the withheld records were disclosed. [00:16:05] Speaker 05: That is, the FBI's sources and methods would be disclosed. [00:16:10] Speaker 05: The point that I guess I would like to make, Your Honors, here, or that I would like to underscore is that there are two separate sets of classified information. [00:16:18] Speaker 05: The one that's at issue in this case is classified information that was generated by the FBI in the course of the national security [00:16:25] Speaker 05: investigation that's separate from the CIA information that Mr. McClanahan was referred to. [00:16:32] Speaker 05: That goes to both the B3 argument [00:16:34] Speaker 05: and to the scope argument because Mr. McClanahan's request for information referred continuously at many points to any of the classified information I possessed, which in the context of the overall request, the FBI reasonably construed, liberally I might add, but reasonably construed as records concerning McClanahan's possession of classified information. [00:17:02] Speaker 05: With that, Your Honors, I'd be happy to take any questions the court might have for the government. [00:17:07] Speaker 01: I don't see how your scope is reasonable in the district court's view of the records about any investigation of McClanahan. [00:17:18] Speaker 01: That's not what he asked for. [00:17:20] Speaker 01: He asked for any classified material he's possessed. [00:17:24] Speaker 01: it may or may not have been a record about him. [00:17:29] Speaker 01: And it's very different from the cryo request, which is a copy of records about her. [00:17:37] Speaker 05: So I agree it's different in that respect. [00:17:39] Speaker 01: Well, I think materially so. [00:17:41] Speaker 01: And then the district court's restatement of his request, consistent with what you were arguing, is not the same request he made. [00:17:51] Speaker 05: So, Your Honor, I guess we may have a difference of agreement, and obviously, Your Honor, this is quite... There's no difference of agreement. [00:17:57] Speaker 01: I'm looking at the words. [00:17:59] Speaker 05: Well, if I might, the words refer, the opening paragraph of the request sets out the background for this request. [00:18:09] Speaker 01: It refers... [00:18:11] Speaker 01: of the classified information he possessed. [00:18:14] Speaker 01: He sought records pertaining to any of the classified information he possessed. [00:18:17] Speaker 01: That's not about him. [00:18:19] Speaker 05: Which the FBI construed, if I might spin this out, Your Honor, the FBI construed as records concerning McClanahan's possession of classified information. [00:18:30] Speaker 01: Why are you entitled to construe it that way? [00:18:33] Speaker 01: The case law says you can't narrow down someone's request self-servingly. [00:18:38] Speaker 01: Absolutely. [00:18:40] Speaker 05: We don't dispute that. [00:18:41] Speaker 05: The government has an obligation to liberally construe. [00:18:44] Speaker 01: So then how do you get to where you got? [00:18:47] Speaker 05: Your Honor, the opening paragraph of the request [00:18:50] Speaker 05: If I might read for just a moment from this. [00:18:53] Speaker 05: In 2012, the Federal Bureau of Investigation conducted one or more investigations pertaining to me involving my possession of classified information in the context of two federal court cases. [00:19:04] Speaker 05: I'm skipping a bit. [00:19:05] Speaker 05: Some of the records would mention me or my law firm, National Security Counselors by name. [00:19:11] Speaker 05: Later on, [00:19:12] Speaker 05: The repeated request is information, and I'm again quoting, pertaining to me, national security counselors, any case numbers assigned to the above investigations, or any of the classified information I possessed. [00:19:29] Speaker 05: Your Honor, I don't think that fairly read, that is a request just for any record having to do with classified information. [00:19:36] Speaker 01: Right, three different categories within that sentence that you just described. [00:19:40] Speaker 01: Agree. [00:19:40] Speaker 01: And they're not the same. [00:19:42] Speaker 05: I completely agree, Your Honor. [00:19:44] Speaker 01: And the law is classified information. [00:19:46] Speaker 01: The information. [00:19:47] Speaker 05: That I possessed. [00:19:49] Speaker 05: I think so that the emphasis. [00:19:51] Speaker 01: But the record doesn't have to have the about him. [00:19:56] Speaker 01: It can be a record about information that he possessed. [00:19:59] Speaker 01: It doesn't have to be about him. [00:20:01] Speaker 01: It's about the information. [00:20:02] Speaker 05: Your Honor, I grant that there may be a logical reading of that. [00:20:06] Speaker 05: I do not think, though, however, that the logical possibility means that it's a liberal or reasonable construction of the request in light of the fact that this request was given to the FBI specifically referencing the two prior litigation cases, saying that the request concerns records about those two prior cases. [00:20:28] Speaker 05: And in the context of this request, Your Honor, [00:20:30] Speaker 05: The FBI understood this to be a request about the records in his possession, not about the records unhinged from any connection to Mr. McClanahan's possession. [00:20:47] Speaker 04: He was looking for records involving the possible investigation of him, right? [00:20:52] Speaker 04: That's the way you read this. [00:20:53] Speaker 04: Yes, Your Honor. [00:20:54] Speaker 04: But setting aside even those, even if those few words weren't enough, I mean, it's possible that an investigation of Mr. McClanahan might not have his name in it yet. [00:21:04] Speaker 04: It might talk about the suspect or the accused. [00:21:07] Speaker 04: Yet that document would come up if you searched for the underlying classified documents, right? [00:21:15] Speaker 04: That's his point. [00:21:18] Speaker 01: That's his point. [00:21:20] Speaker 01: Yeah, absolutely. [00:21:21] Speaker 01: I mean, you can't doubt that. [00:21:22] Speaker 01: That's clear. [00:21:24] Speaker 05: I think, Your Honor, I don't know that that is not consistent with the declaration. [00:21:29] Speaker 01: What Judge Taylor just asked you, isn't it clear that [00:21:34] Speaker 01: you could pull that document even though his name might not be mentioned. [00:21:38] Speaker 01: He might be referenced or alluded to in a different way. [00:21:42] Speaker 05: What I'm suggesting, Your Honor, is that that hypothetical, which I agree is a logical possibility, is not consistent with the declaration that the FBI provided about the way in which it creates records. [00:21:55] Speaker 05: The declarant, if I might look, I'll see if I can find Your Honor's an exact quotation. [00:22:05] Speaker 01: You can't pull by reference to a document. [00:22:09] Speaker 05: No, Your Honor, I'm sorry, I'm saying something very specific. [00:22:12] Speaker 05: Judge Tatel was suggesting, I think as a logical matter, quite plausibly, that it is conceivable that there could be a record about a suspect in general in possession of classified information and a search of the classified information would pull that record. [00:22:26] Speaker 05: I do believe that that is possible. [00:22:28] Speaker 05: I think the declaration in this case, however, gave a different explanation for how the FBI creates records and the likelihood of finding records pertaining to [00:22:39] Speaker 05: Mr. McClanahan and I think that what did it say exactly? [00:22:43] Speaker 05: Well, this is what I'm I'm looking for your honor and I may I don't obviously don't want to keep the court here I may need to follow up with the letter if that would be permissible Let me see if I can find it quickly. [00:22:56] Speaker 05: Okay [00:23:16] Speaker 05: Your honors, I'm not finding it immediately, if I might follow up with a very brief. [00:23:19] Speaker 03: Let me ask you a question and tell me if I'm viewing this wrong. [00:23:23] Speaker 03: He asked for classified information I possessed. [00:23:26] Speaker 03: Not records, but classified information. [00:23:29] Speaker 03: All right. [00:23:31] Speaker 03: Let's say in that classified information he possessed, the statement was a Yemen official named Joe Jones killed another Yemen official named Sam Smith. [00:23:46] Speaker 03: He's claiming that you should then look up Sam Smith and Joe Jones to see if there's any information on them. [00:23:56] Speaker 03: That's the way I am reading his request. [00:23:58] Speaker 03: It has nothing to do with him. [00:24:00] Speaker 03: It has nothing to do with any investigation of him. [00:24:06] Speaker 03: I don't know where the logical stopping point would be. [00:24:09] Speaker 03: If everything in the classified information that he possessed, you had to run down by whatever way you could do it, by names in the classified information or by dates or something, where the stopping point would be. [00:24:29] Speaker 05: Well, Judge Henderson, I think you put well [00:24:32] Speaker 05: Some of the background reasoning that the FBI employed to reasonably construe in our view in a liberal manner the request if a. [00:24:42] Speaker 05: If one employee's hip bone is connected to the leg bone is connected to the knee bone sort of approach as Mr. McClanahan seems to be suggesting, there would be no reasonable stopping point. [00:24:54] Speaker 05: And so the FBI understood the request for records concerning the classified information I possessed to provide. [00:25:02] Speaker 05: What reasonably is this requester seeking? [00:25:05] Speaker 01: This requester. [00:25:06] Speaker 01: Let me make sure I'm understanding you. [00:25:07] Speaker 01: Why does a request [00:25:11] Speaker 01: for information documents that you have an indication I possess means that you also have to search with respect to all the content in that document. [00:25:25] Speaker 01: I don't see how that follows. [00:25:27] Speaker 01: In other words, just saying classified information that I possess, whatever it was about. [00:25:33] Speaker 01: I don't care what's in it. [00:25:35] Speaker 01: I don't want you to search that. [00:25:36] Speaker 01: I just want to know [00:25:38] Speaker 01: I want to have those documents. [00:25:40] Speaker 01: Whatever you think I possess, whether they may or may not have been about me, that's all. [00:25:45] Speaker 01: Why is that overly broad? [00:25:47] Speaker 05: Well, as I read, Mr. I think I should say what I'm going to about to explain is our understanding of Mr. Milconahan's briefing in this case. [00:25:57] Speaker 05: Obviously, he would be in a better position to state precisely whether we've understood this correctly or not. [00:26:02] Speaker 05: But I do understand him to be suggesting [00:26:05] Speaker 05: that part of the problem with the government search is that it stopped far short of searching everything that was potentially connected to the classified information. [00:26:15] Speaker 05: And that I don't, we don't understand him to be saying that it wasn't enough that you searched for my possession of classified information, you have to independently search for any references to the classified information itself. [00:26:30] Speaker 01: And so it's not, the stopping point isn't just- References to the content of? [00:26:35] Speaker 01: Yes. [00:26:36] Speaker 05: References to... Any conceivable references, sorry. [00:26:40] Speaker 01: Within. [00:26:41] Speaker 01: No, I mean, we're talking past each other, I think. [00:26:44] Speaker 01: You're talking about references within those... If there are cross-references to the classified information that you requested. [00:26:51] Speaker 01: As opposed to, I just want to know what documents you think I possess. [00:26:54] Speaker 01: Correct. [00:26:55] Speaker 05: Whether or not I'm in them, which is what documents that I've... We understand, and again, Mr. McClanahan's in the best position, but we understand his briefing to suggest that the government had an obligation to find any cross-references to the classified information and to evaluate those for production, and such a request would be incredibly broad. [00:27:18] Speaker 05: And so we understood, the FBI understood this request. [00:27:21] Speaker 05: to be specifically, as Mr. McClanahan said in the opening paragraph of his request, in connection to the two previous cases that he was involved with and his possession of the classified information. [00:27:35] Speaker 03: And didn't you give him that? [00:27:38] Speaker 05: Anything that was not properly withheld, we gave him. [00:27:41] Speaker 05: That's right, Your Honor. [00:27:42] Speaker 05: And I should say, Your Honor, [00:27:44] Speaker 05: We are not imposing any Herculean burden on a requester. [00:27:49] Speaker 05: If Mr. McClanahan genuinely wanted, as he's now saying, the classified, any records concerning the classified information, regardless of his possession of it, that is, to be very precise, records that did not address both the classified information and Mr. McClanahan's possession of that classified information, he could have- Well, in reference, at least the one that I'm looking at, [00:28:14] Speaker 01: talks about his possession of it. [00:28:17] Speaker 05: I understand. [00:28:18] Speaker 05: And he could have had, and this is not to say the government doesn't have any obligations to construe liberally. [00:28:27] Speaker 05: We do. [00:28:28] Speaker 05: But in the context of this letter, if he wanted to make it clear so that a reasonable reader would understand that he wants the classified information, even apart from any records concerning the investigation of him, [00:28:39] Speaker 05: having classified information he could have had, comma, whether or not the records involved the investigation of me or not. [00:28:47] Speaker 05: This is a person who is a frequent FOIA requester and a frequent FOIA litigator. [00:28:53] Speaker 05: He knows that it is his obligation to provide clear requests to the government, which the government has a duty to interpret liberally, but he still has to provide a clear request to the government. [00:29:05] Speaker 05: And the government here did its best to understand the scope of his request in light of the background litigation that Mr. McClannahan identified in the opening paragraph. [00:29:14] Speaker 05: and in light of what the FBI understood to be his interest. [00:29:19] Speaker 05: And again, as soon as it became clear in litigation, [00:29:23] Speaker 05: that there was a difference of opinion here. [00:29:26] Speaker 05: This litigation has now been going on for many years, and Mr. McClanahan knows the government's understanding. [00:29:33] Speaker 05: I'm not saying that as a legal matter he can't continue to press that under his contrary view in this matter. [00:29:38] Speaker 05: Of course he can. [00:29:39] Speaker 05: He could have also, as Judge Tatel suggested a moment ago, file another FOIA request asking for exactly what he's seeking now. [00:29:47] Speaker 04: Well, but has he said that? [00:29:49] Speaker 04: I mean, I asked that about the cutoff only. [00:29:52] Speaker 04: As he said, that doesn't mean that, I mean, if that were true, we wouldn't ever have to decide for the case. [00:29:57] Speaker 05: Well, that's why I gave the caveat, Your Honor, that, of course, Mr. McClanahan can continue to press the legal argument here. [00:30:03] Speaker 05: He has every right to do so, and this court should properly decide whether the government reasonably construed it or not. [00:30:10] Speaker 04: My only point is that- You said there's something, actually, in the declaration that will help us- I believe there is, Your Honor. [00:30:15] Speaker 04: I will search the declaration, and I will file a very short- Or just maybe you could look it up. [00:30:20] Speaker 04: Let me try one more time. [00:30:28] Speaker 03: Let's say the classified information that he possessed consisted of five pages. [00:30:34] Speaker 03: He asked for you to search. [00:30:38] Speaker 03: You gave him, well, you searched those five pages using his name, his firm's name, the case numbers. [00:30:48] Speaker 03: my understanding of what more he wants is for you to take those five pages and if they mention something that has nothing to do with him or his sperm or the case numbers then search those records and produce those records or am I is that how [00:31:09] Speaker 03: I'll ask him if that's his decision. [00:31:10] Speaker 05: So I think there's a both and. [00:31:12] Speaker 05: We do understand Mr. McClinehan to be asking for that, but we also understand Mr. McClinehan. [00:31:17] Speaker 05: I think as, I believe it was Judge Tatel put a moment ago, [00:31:23] Speaker 05: imagine that the FBI has a record that refers to those five classified documents, but apart from Mr. McClanahan entirely, that is for other purposes. [00:31:35] Speaker 04: No, just an investigation of, I thought what he was requesting, we can ask him this, but I thought what he was looking for was any documents relating to the investigation of how that [00:31:48] Speaker 04: those two classified documents got in the hands of Mr. McClanahan. [00:31:53] Speaker 04: That's what I thought he was looking for. [00:31:55] Speaker 04: And I thought his point was, well, you know, those documents might not mention my name because they might refer to the accused or the person we're looking into or something. [00:32:06] Speaker 04: Isn't that what he's looking for? [00:32:07] Speaker 05: So, Your Honor, the FBI understood the request the same way. [00:32:11] Speaker 05: Okay. [00:32:12] Speaker 05: And FBI understood its research methodology to produce the documents that Mr. McClanahan was seeking so understood. [00:32:20] Speaker 04: Ah. [00:32:21] Speaker 05: Okay. [00:32:22] Speaker 04: I'd love to see that part of it. [00:32:23] Speaker 05: I'll do my best to locate it and to provide the court with an updated letter. [00:32:26] Speaker 03: All right. [00:32:27] Speaker 03: And also, opposing counsel. [00:32:29] Speaker 05: I'm sorry, Your Honor. [00:32:29] Speaker 03: And also provide... Oh, yes, of course. [00:32:31] Speaker 05: Of course, Your Honor. [00:32:32] Speaker 03: Okay. [00:32:32] Speaker 05: Thank you, Your Honor. [00:32:33] Speaker 03: Thank you. [00:32:38] Speaker 04: Okay. [00:32:41] Speaker 04: Do we understand your request correctly about this issue? [00:32:44] Speaker 02: Partially. [00:32:45] Speaker 02: You moved between two different interpretations and... Why don't you just tell us... Okay. [00:32:50] Speaker 02: I did not ask for... I'll just focus on the fourth line item, which is what we're really... [00:32:56] Speaker 02: I didn't ask for information that was in the classified documents. [00:33:01] Speaker 02: I asked for records about the classified documents, as in I asked for records about the FD302 form. [00:33:12] Speaker 02: Specifically, that would have encompassed, A, the FD302 form. [00:33:18] Speaker 02: The actual form itself was never turned over because it didn't have my name in it. [00:33:23] Speaker 02: Well, of course it didn't have my name in it. [00:33:24] Speaker 02: It was the document that I got. [00:33:26] Speaker 02: And I asked for records about, and I'll focus on that for a second, the 302 form, because the 302 form, as we showed to Judge Howell, was given by an FBI official to a Umini official to the Umini court to us. [00:33:46] Speaker 02: And in the investigation, [00:33:48] Speaker 02: of how I got it would have to look at how the person who gave it to me got it and how the person who gave it to them got it. [00:33:57] Speaker 02: And if we want to talk about the context of those two cases, the record in those two cases was explicit that I was arguing that that document was [00:34:09] Speaker 02: given to the Yemenis. [00:34:12] Speaker 02: And when I ask for records about that document in the context of that case, it clearly encompasses how that document got out of FBI custody in the first place. [00:34:22] Speaker 04: It's not a fishing expedition for every— I have to tell you, when I read your FOIA request, it just read to me like it read to the FBI. [00:34:32] Speaker 04: That is, that you're looking for documents about you. [00:34:36] Speaker 04: about the investigation of you. [00:34:37] Speaker 04: Now, when I read your brief and I saw, well, there are these couple of words there, then I saw your point. [00:34:43] Speaker 04: But the impression of your whole FOIA request, from the introductory material to your quest for information you're looking for, you're looking for any subpoenas or warrants about you, any case numbers assigned to you, it all seemed to me a beat about you, investigations about you. [00:35:02] Speaker 04: So if I had been the FBI, that's what I would have worked for. [00:35:05] Speaker 02: As Judge Edwards pointed out. [00:35:08] Speaker 04: I understand your argument. [00:35:10] Speaker 04: That's why I asked the government. [00:35:12] Speaker 04: Isn't it logical that maybe a document that didn't mention you was still about the investigation of you, right? [00:35:20] Speaker 01: Yes, Your Honor, but that's not the only point. [00:35:22] Speaker 01: Wait, what did you think I pointed out? [00:35:24] Speaker 01: Oh. [00:35:25] Speaker 01: Well, as you pointed out. [00:35:26] Speaker 01: Maybe that'll help me better understand what your argument is. [00:35:30] Speaker 02: There were four categories of information in this request. [00:35:33] Speaker 02: And they are saying, and Mr. Yellen has just said, that I can file a request for records about the classified information. [00:35:42] Speaker 02: Well, that is saying that I can also file a request for records about A, me, B, and a C, C innovation number, or D, the classified information. [00:35:57] Speaker 01: And that is a form of... The classified information meaning what? [00:36:01] Speaker 01: The specific... You can't go to an agency and say, I want... [00:36:06] Speaker 01: I want you to disclose the classified information. [00:36:09] Speaker 01: That wouldn't mean anything. [00:36:10] Speaker 02: I said I wanted the agency to disclose FBI records about the specific classified information that the FBI accused me of having. [00:36:22] Speaker 02: That would mean records referencing the... Wait, wait, wait. [00:36:25] Speaker 04: Hold on. [00:36:25] Speaker 04: You mean anything or just anything referring to the investigation of how you got it? [00:36:31] Speaker 02: I would say anything because there aren't going to be a whole lot of records... How can they do that? [00:36:35] Speaker 04: I mean, how's that got to do... I mean, that would produce things that have absolutely nothing to do with you. [00:36:40] Speaker 02: Your Honor, that is speculation, respectfully. [00:36:41] Speaker 04: Well, you're speculating more than I am. [00:36:43] Speaker 04: I just, I mean, I get your point that records about the investigation of how Mr. McClanahan, i.e. [00:36:53] Speaker 04: you, got this. [00:36:55] Speaker 04: I get your argument about that, but I don't get your argument about any document having to do with the classified information. [00:37:04] Speaker 04: I don't see why, since what you're looking for is you're trying to find out whether there was an investigation of you, I mean there could be documents that have nothing to do with that investigation. [00:37:15] Speaker 02: Your Honor, you may be right that there would be documents in there that are unrelated to me. [00:37:21] Speaker 02: You may be right, but that doesn't mean that it's not a reasonable request. [00:37:25] Speaker 02: And it was very telling that Mr. Young stated, paraphrasing, that the fact that Judge Edwards' reading is logical doesn't mean that it's covered by a liberal reading. [00:37:39] Speaker 02: Well, how can a logical reading not be covered by a liberal reading? [00:37:43] Speaker 02: And he later on says that a reasonable reader could not construe it that way. [00:37:46] Speaker 02: Well, if it's logical, how could a reasonable reader not construe it that way? [00:37:50] Speaker 02: That is the problem. [00:37:51] Speaker 02: I requested a four-point request. [00:37:54] Speaker 01: Why didn't you ask for records covered by your non-disclosure agreement? [00:37:59] Speaker 02: Because I already had those. [00:38:02] Speaker 02: I don't need the actual classified documents. [00:38:05] Speaker 02: I have them. [00:38:05] Speaker 02: I know it's in them. [00:38:06] Speaker 02: That's how I'm able to say that the B3 arguments are [00:38:11] Speaker 02: Flawed, for lack of a better word, because I sent the emails. [00:38:15] Speaker 02: And I can tell you that it is the same information. [00:38:19] Speaker 02: Contrary to what Mr. Yellen said, pages McClenahan 3, McClenahan 4, and McClenahan 2-1 are subject lines and titles of emails that I sent the FBI. [00:38:32] Speaker 02: It was not new FBI intelligence sources and methods, it was information [00:38:37] Speaker 02: that I copied and pasted from studies and intelligence articles that were published. [00:38:44] Speaker 03: Any more questions? [00:38:45] Speaker 03: No. [00:38:46] Speaker 02: Can I hit one minor point to address something that you said that was mistaken with respect? [00:38:52] Speaker 02: You brought up Joe Jones and Sam Smith and you talked about was I looking for everything on Jones and then everything in Jones' file about somebody else. [00:39:01] Speaker 02: I think I addressed that already by saying it wasn't [00:39:04] Speaker 02: Looking in the request is looking outward. [00:39:07] Speaker 02: The other thing though is There are two things here that they're asking you to argue that