[00:00:00] Speaker 02:
Case number 17-5122, Ryan Noah Shapiro, appellant, versus United States Department of Justice, Mr. Light, the appellant, and Ms.

[00:00:10] Speaker 02:
Lyons for the respondent.

[00:00:33] Speaker 02:
Good morning.

[00:00:34] Speaker 02:
May it please the court?

[00:00:35] Speaker 02:
Jeffrey Light on behalf of Appellant Ryan Noah Shapiro.

[00:00:39] Speaker 02:
I'd like to begin with the 7E issue.

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In this case, the government withheld in their entirety several reports by a database known as Accurate.

[00:00:49] Speaker 01:
So let me ask you about that.

[00:00:51] Speaker 01:
You know about Accurate.

[00:00:54] Speaker 02:
Yes.

[00:00:56] Speaker 01:
So what more do you want?

[00:00:57] Speaker 02:
The reports.

[00:00:58] Speaker 01:
Right.

[00:00:59] Speaker 01:
And so the government says give some explanations as to why it doesn't want to give you the reports.

[00:01:07] Speaker 01:
Well, I mean, you can understand the theory and you want to take it to the extreme that any time they do anything, they'll just invoke 70.

[00:01:19] Speaker 02:
Well, there are two different explanations they gave.

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One that's in the record in the district court, and then a different explanation they're giving on appeal, which is not supported by the record.

[00:01:29] Speaker 01:
Well, I'm looking at the affidavits in the record, or the declarations in the record, as to why the government did not want to turn over those reports.

[00:01:41] Speaker 02:
The reason that they gave there would be, for example, on Joint Appendix 49, the fourth declaration of David Hardy, they said some portions of the report can be disclosed because they would disclose general information, and other courts

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reports cannot be disclosed because they would disclose detailed information.

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And didn't he say that he had reviewed these reports and determined what could and couldn't be?

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He makes a reference to segregability at some point.

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He does make a conclusory sentence that he reviewed them and determined them they couldn't be segregated and yet portions of

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Now that, you said J.A.

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49?

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J.A.

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489 and 490.

[00:02:30] Speaker 01:
Yeah, that's his first declaration.

[00:02:32] Speaker 01:
I was looking at his fourth declaration.

[00:02:37] Speaker 01:
All right.

[00:02:41] Speaker 01:
Where he's talking about... 489, not 4... Oh, I beg your pardon.

[00:02:48] Speaker 01:
That we're together.

[00:02:49] Speaker 02:
Yes.

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And what Mr. Hardy expresses a concern about there is the scope of the information and the identity of the database.

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We now know the identity of the database, despite Mr. Hardy raising a lot of concerns about... Water over the dam.

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You've got it.

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Right.

[00:03:11] Speaker 02:
We've got it.

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And the revealing of that information shows that his premise about that was incorrect.

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The other part he warns about is the scope of the information.

[00:03:22] Speaker 02:
And that information, the scope of what's contained in the database, is revealed by the manuals.

[00:03:30] Speaker 02:
So the government takes a totally different approach on appeal and says, well, it's not really the scope of the information in the database that's what it's an issue.

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Instead, it is the fact that a particular search was used at a particular time during the investigation.

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And yet that information is something that the declarant, one of the declarants, our goal in this case, specifically said would pose no harm if it were released.

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And then there are releases of this information.

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Portions of accurate report are disclosed along with the fact that it's accurate.

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And for example, at...

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Help me here.

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What has not been disclosed that you can identify specifically?

[00:04:22] Speaker 02:
There are two accurate reports that are, the entirety of them are withheld.

[00:04:30] Speaker 02:
There are separately from that, I guess, there were other searches that were done of the accurate system.

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and the results of those, or at times summaries of the results of those, were disclosed.

[00:04:44] Speaker 02:
And the government never explains the difference between why some of those can be disclosed and others cannot, or to the extent that some of them... So what do you think ought to have happened here?

[00:04:59] Speaker 01:
In other words, I understand your point.

[00:05:00] Speaker 01:
You didn't get everything you wanted, and you're claiming that the government has failed to provide adequate

[00:05:07] Speaker 01:
an adequate explanation.

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But we've got four declarations here in this case, and the judge kept sending it back, and finally they come up with this theory that seems perfectly reasonable, that a prosecutor has many tools available to him.

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How he puts it all together is a different question.

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And that's what the reports would show.

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But the issue here is whether we're talking about a known technique or an unknown technique.

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Prosecutors and law enforcement.

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But you already know the technique.

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Right, so because it's a known technique.

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So that's what I'm trying to understand.

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You know the technique because you've got the accurate.

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You know what types of data are available.

[00:05:51] Speaker 01:
Right.

[00:05:51] Speaker 01:
You don't know how it's been put together in a particular way, right?

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In a particular report.

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We know how every report is put together.

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That's in the appendix.

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And the only thing the government is arguing here is we don't know which particular report was run in this case.

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But that's their theory on appeal.

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They never make that argument in the district court.

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The record doesn't support that.

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Mr. Hardy never made that judgment that that is something that would cause harm.

[00:06:20] Speaker 01:
Well, I'm looking at 489.

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You don't think that's specific enough?

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I'm just asking.

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What doesn't this, in 490?

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Mr. Hardy's concern on 489 and 90 seems to be primarily with the identity of the database because revealing that would reveal what kind of information the FBI can search.

[00:06:47] Speaker 01:
So we already know that.

[00:06:48] Speaker 02:
We already know that.

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And Exemption 70 does not cover known techniques.

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So in order to address that, the government's taken a position on appeal that it's not the scope of the information that is what needs to be protected.

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It is the fact that it's used in a particular case.

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And that is a... That's at the top of 490.

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The database produces comprehensive reports.

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Detailed information the FBI uses as investigations.

[00:07:24] Speaker 02:
Right.

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We know what reports the FBI uses in its investigations.

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They use the accurate reports we have.

[00:07:34] Speaker 01:
Some of them we know, for example, from... Here, counsel, here's what I'm having trouble understanding, and just help me on this.

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We know that a prosecutor interviews witnesses.

[00:07:45] Speaker 02:
Yes.

[00:07:46] Speaker 01:
All right?

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and then puts together a case because he either has it or he doesn't.

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So he files a report saying, I'm recommending we take this to the grand jury for charges one, two, and three.

[00:08:04] Speaker 01:
That's the report you want, right?

[00:08:06] Speaker 02:
Right.

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But this is not a report that reflects the judgment of a prosecutor.

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It is a factual report that would contain information.

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a theory as to why it did indicate a judgment.

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He's heard the witnesses, he's credited some, he hasn't credited others.

[00:08:24] Speaker 02:
That may very well fall within Exemption 5.

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But we're talking about Exemption 7E here.

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That's where I am, on 489 and 90.

[00:08:32] Speaker 02:
Well, the FBI never invoked Exemption 5.

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This is a 7E case.

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And under 7E, what's covered, the statute says techniques and procedures.

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This is B7E.

[00:08:44] Speaker 02:
Yes.

[00:08:45] Speaker 01:
That's where I am.

[00:08:46] Speaker 02:
That's where we are.

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And under B7E, we're talking about techniques and procedures.

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We're not talking about how they're applied in a specific case.

[00:08:55] Speaker 01:
Well, again, I won't belabor this anymore.

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You already know the acronym system.

[00:09:00] Speaker 01:
The question is, do you get the reports?

[00:09:01] Speaker 02:
Right.

[00:09:03] Speaker 01:
And I gave you a hypothetical as to why you might not get the reports under B-17.

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Right.

[00:09:11] Speaker 02:
And as I understand your hypothetical, what you're saying is that a report such as the one that might be produced by a prosecutor would disclose information about the prosecutor's thinking in the particular case.

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Is that correct?

[00:09:29] Speaker 01:
That was one hypothetical.

[00:09:31] Speaker 02:
Right.

[00:09:31] Speaker 02:
And that is something that the prosecutor's thinking would be, deliberative process, privilege, protect under exemption, five.

[00:09:39] Speaker 01:
So intertwined.

[00:09:41] Speaker 01:
I'm just, you know, and Mr. Hardy talks this way in his declarations.

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He uses a lot of generic terms like that.

[00:09:48] Speaker 03:
Can I ask you that?

[00:09:49] Speaker 03:
Yeah.

[00:09:49] Speaker 03:
Go on to something else.

[00:09:50] Speaker 03:
Are you OK to change the subject here?

[00:09:52] Speaker 03:
Please do.

[00:09:52] Speaker 02:
OK.

[00:09:52] Speaker 03:
Yes.

[00:09:52] Speaker 03:
Could you focus on Schwartz 91 on that document?

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As I understand it, what you want is, you want them to search for serial 91, is that right?

[00:10:18] Speaker 02:
I don't know if search is the right term.

[00:10:20] Speaker 02:
We want them to retrieve that document.

[00:10:21] Speaker 03:
That's what I meant.

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That's what you want.

[00:10:24] Speaker 03:
Your view is that document in this case with this very long number, this case number, whatever that is, that really long number, you want them to produce

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That document, right?

[00:10:40] Speaker 03:
Record 91.

[00:10:41] Speaker 02:
They should retrieve it.

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Retrieve it.

[00:10:44] Speaker 02:
Review it.

[00:10:45] Speaker 02:
Review it.

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See if it's responsive.

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And if it's not?

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If it's not responsive, then it's not responsive.

[00:10:50] Speaker 02:
Right.

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It's under the inquiry.

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It is responsive.

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But if it is responsive, that's what you want.

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If it's responsive and not exempt, then to produce it.

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Yes, it's one document.

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You're not asking them to search all their records for his email address or his website.

[00:11:05] Speaker 03:
It's just this document, right?

[00:11:06] Speaker 02:
One specific thing because that is what the... Do you know what this is, by the way?

[00:11:10] Speaker 02:
Do you have any idea?

[00:11:11] Speaker 02:
Excuse me?

[00:11:12] Speaker 02:
Do you know what it is?

[00:11:13] Speaker 01:
Serial 91.

[00:11:15] Speaker 02:
Yeah.

[00:11:16] Speaker 02:
What do you think?

[00:11:17] Speaker 02:
I don't what I can tell you.

[00:11:19] Speaker 02:
I mean, it's not in the record, but I can tell you that the C in the number refers to a control file.

[00:11:24] Speaker 02:
I see.

[00:11:24] Speaker 02:
And the IP appears to refer to internet protocol.

[00:11:28] Speaker 02:
Oh, I see.

[00:11:28] Speaker 02:
The IP address that tells addresses on the internet.

[00:11:32] Speaker 01:
And serial tells us what?

[00:11:32] Speaker 01:
I was just trying to figure out.

[00:11:35] Speaker 01:
We're listing documents in serial order?

[00:11:38] Speaker 01:
Is that what that means?

[00:11:39] Speaker 02:
Yeah, essentially, so each document is assigned a number.

[00:11:43] Speaker 02:
So there's a document 91 in the series.

[00:11:45] Speaker 01:
So you want them to look at 91.

[00:11:47] Speaker 02:
Right.

[00:11:49] Speaker 02:
So it's a very narrow thing that we're asking for because the lead is that specific.

[00:11:55] Speaker 02:
Yeah, OK.

[00:11:58] Speaker 02:
If there are no further questions, I'd like to reserve my time for a bottle.

[00:12:02] Speaker 03:
I don't have any other questions.

[00:12:04] Speaker 01:
All right, thank you.

[00:12:21] Speaker 00:
Good morning.

[00:12:22] Speaker 00:
May it please the court?

[00:12:25] Speaker 00:
Let me start with the second issue first, because I may be able to get it out of the way here relatively easily.

[00:12:31] Speaker 00:
That would be good.

[00:12:32] Speaker 03:
So what about my question?

[00:12:34] Speaker 03:
All they want, that's all they want.

[00:12:37] Speaker 03:
They want nothing more than for the FBI to look at that document and if it's relevant and not exempt, to turn it over.

[00:12:45] Speaker 00:
And if that is all that they want, the FBI is prepared to do that.

[00:12:48] Speaker 00:
That is not how the FBI had understood their argument until this point.

[00:12:50] Speaker 03:
No, I understand that, because that's why I asked them the question, because in your brief, you talk about this would be a big burden, and it certainly would if you had to search beyond it.

[00:12:59] Speaker 03:
So the reason I asked counsel this question was to see whether that's really, because my instinct was all they wanted was this record 91.

[00:13:08] Speaker 03:
He's now confirmed that, and you're prepared to represent that the department will now search for that document.

[00:13:14] Speaker 00:
They will retrieve that document, yes, Your Honor.

[00:13:17] Speaker 03:
And if it's relevant and not exempt, they'll turn it over, right?

[00:13:21] Speaker 00:
Assuming it's a record subject to the FOIA.

[00:13:22] Speaker 00:
Yes.

[00:13:23] Speaker 01:
And it's responsive based on- My question is, why wasn't all this resolved a long time ago?

[00:13:30] Speaker 01:
Because the FOIA has provisions in it that says, when it's not clear what the search is, what the scope is, talk to the requester, get some information.

[00:13:41] Speaker 01:
And we used to have a counsel who used to come here from the Department of Justice and say, I'm happy to tell the court in this FOIA case, seven of the issues have disappeared.

[00:13:49] Speaker 01:
So you only have to deal with one.

[00:13:51] Speaker 01:
So all of us have spent some time on this.

[00:13:55] Speaker 01:
And now you're telling us, no, the FBI's happy to look at serial 91 and decide whether it's relevant and turn it over if it's not exempt.

[00:14:05] Speaker 01:
So we can say that issue's moot.

[00:14:08] Speaker 00:
Yes, Your Honor, I would say that you can.

[00:14:11] Speaker 01:
All right, moving right along.

[00:14:13] Speaker 00:
May I address the substance of your question, briefly?

[00:14:15] Speaker 00:
Which is?

[00:14:16] Speaker 00:
Why did the take so long?

[00:14:17] Speaker 00:
Why are we here, essentially?

[00:14:19] Speaker 01:
I don't think that would help me at this point.

[00:14:22] Speaker 01:
Then I don't need to.

[00:14:23] Speaker 01:
Thank you.

[00:14:25] Speaker 00:
On the question of the application of Exemption 7E, the question is not the scope of the database, it's the scope of the FBI's use of the database.

[00:14:38] Speaker 00:
And as Your Honor's been focused on the Fourth Hardy Declaration, that talks about how queries are made of the database, how the FBI uses the information to gather and develop investigative leads, where it looks and how it uses the data is all of the parts that are revealed in the reports.

[00:14:59] Speaker 00:
And the FBI has given the court evidence about how

[00:15:04] Speaker 00:
how the FBI actually uses it is not well known to the public and how there is a chance that revelation of that information would risk circumvention of the law.

[00:15:17] Speaker 00:
And this is almost on all fours with the court's decision in Blackwell to allow

[00:15:24] Speaker 00:
similar reports using a different database, but it's functionally the same thing, to withhold those same reports.

[00:15:31] Speaker 00:
And so we think this case falls squarely within Blackwell.

[00:15:34] Speaker 01:
So you don't think that case is distinguishable on the grounds that the request here is for any and all and related to it?

[00:15:42] Speaker 01:
I mean, it's much broader.

[00:15:45] Speaker 00:
The request in Blackwell was quite broad.

[00:15:47] Speaker 00:
It was for all documents relating to key witnesses and some other things in the trial.

[00:15:52] Speaker 01:
Yeah, and then it narrows as you keep going.

[00:15:56] Speaker 00:
But based on the case law requiring the FBI to interpret it broadly, that... But if it didn't have to do with airline A, he wasn't asking for it.

[00:16:06] Speaker 01:
So here, he's asking for more.

[00:16:09] Speaker 01:
I'm just trying to understand how far Blackwell goes, that's all.

[00:16:14] Speaker 00:
Well, I think Blackwell, because it covers such a similar database here and the reports generated by it, those are the key facts.

[00:16:24] Speaker 00:
One distinguishing characteristic there is that there's a fact in Blackwell that the company who ran the database had designed particular

[00:16:33] Speaker 00:
I guess software, but don't hold me to that, a way for the FBI to use it in particularly design for the FBI.

[00:16:39] Speaker 00:
That fact is absent here, but just because the FBI is now using its own techniques that it develops without paying for them is not a fact that would make a difference.

[00:16:47] Speaker 00:
So we believe this is squarely within Blackwell.

[00:16:52] Speaker 01:
Then we have five documents.

[00:16:55] Speaker 00:
We have five listed, yes, documents that were relating to 7E.

[00:17:02] Speaker 00:
I think some of them originally are the ones where accurate words originally were held, but then it was released during the litigation.

[00:17:09] Speaker 01:
So what has not been released that is being solved?

[00:17:15] Speaker 00:
The two reports, Your Honor, the two reports that would provide a roadmap into how the FBI uses.

[00:17:21] Speaker 00:
What are those numbers?

[00:17:22] Speaker 03:
Those are numbers what?

[00:17:24] Speaker 00:
I believe those are Schwartz numbers, 83 to 89.

[00:17:27] Speaker 00:
Okay.

[00:17:27] Speaker 00:
All right.

[00:17:27] Speaker 00:
All right.

[00:17:29] Speaker 01:
And so what I'm talking about is the next group of documents raised in the brief.

[00:17:36] Speaker 01:
3A and B, 9A and B, 56.

[00:17:39] Speaker 01:
Those five documents.

[00:17:41] Speaker 00:
I'll be happy to address those, Your Honor.

[00:17:42] Speaker 00:
Thank you.

[00:17:44] Speaker 00:
Actually, this is a good example of your earlier question about what happens in litigation.

[00:17:48] Speaker 03:
Can we just go through them?

[00:17:52] Speaker 03:
What about the list that Judge Rogers just gave?

[00:17:54] Speaker 03:
What about 3A and 3B?

[00:17:55] Speaker 03:
Do you object to those or not?

[00:17:58] Speaker 00:
3A and 3B were processed but withheld in full, and you can see that at JA page 162.

[00:18:04] Speaker 00:
We've got that, yeah.

[00:18:05] Speaker 03:
Okay.

[00:18:06] Speaker 03:
And what about 9B and 9C?

[00:18:09] Speaker 00:
9B and 9C were also an enclosure that the FBI tracked down and released and processed.

[00:18:14] Speaker 00:
It released one page, 9A, and withheld 9B and C in full, and that's covered at JA 163 to 164.

[00:18:21] Speaker 03:
And what about 56?

[00:18:23] Speaker 00:
J.A.

[00:18:24] Speaker 00:
56 is at, I'm sorry, document 46 Schwartz.

[00:18:28] Speaker 01:
Excuse me, before you answer the next part, what was the record site you gave me for 9A and B?

[00:18:34] Speaker 00:
That would be J.A.

[00:18:35] Speaker 00:
163 and 64.

[00:18:36] Speaker 00:
Thank you.

[00:18:37] Speaker 00:
But you don't say anything about you don't say anything about 56 in your brief and you I I when I look back over this trotter I apologize it is dealt with in a footnote that also deals with page 91 and I think I got confused.

[00:18:50] Speaker 00:
Okay so let me just straighten that out.

[00:18:52] Speaker 03:
Okay so what's your position what's the department's position about 56?

[00:18:56] Speaker 03:
Okay.

[00:18:57] Speaker 03:
They've withdrawn their 90 exemption claim right?

[00:19:00] Speaker 03:
Right.

[00:19:00] Speaker 03:
Okay so

[00:19:02] Speaker 03:
Has that been turned over, or?

[00:19:03] Speaker 03:
No.

[00:19:04] Speaker 03:
You have an objection to turning it over?

[00:19:05] Speaker 00:
Yes.

[00:19:06] Speaker 03:
What's the objection?

[00:19:06] Speaker 00:
The objection is, as you can see at JA page 446, there's a deleted page thing there that invokes multiple other exemptions that fully justify withholding the document in full.

[00:19:18] Speaker 03:
And were those exemptions invoked at the beginning?

[00:19:22] Speaker 00:
Yes.

[00:19:22] Speaker 03:
OK.

[00:19:23] Speaker 03:
Yes.

[00:19:24] Speaker 03:
So you still object.

[00:19:26] Speaker 03:
The department still objects.

[00:19:27] Speaker 03:
But the district court hasn't ruled on any of that, right?

[00:19:32] Speaker 03:
Isn't that right?

[00:19:34] Speaker 03:
The district court decision on Rule 56.

[00:19:36] Speaker 00:
The district court did not address it expressly.

[00:19:40] Speaker 00:
This came up originally in the reply brief to the first round of summary judgment briefing in 2013, I think, but then there's another whole big round of summary judgment briefing.

[00:19:49] Speaker 01:
So help us with the district court's opinion, all right?

[00:19:52] Speaker 01:
Because I read that when he granted summary judgment, the final order,

[00:19:59] Speaker 01:
denied everything yes all right basically saying that where the government had invoked an exemption the district court was satisfied it was a proper invocation yes sir all right so we don't have anything specific about 56 but I thought it was within that umbrella correct so then the district court talks about duplicates

[00:20:26] Speaker 00:
Yes, there are other documents on this record that are duplicative.

[00:20:31] Speaker 01:
And going over the record, it turns out, I'm trying to understand whether this was error or not.

[00:20:40] Speaker 01:
because at JAA 16 and at JAA 23, there are references in Mr. Hardy's declaration to duplicates.

[00:20:53] Speaker 01:
And unfortunately, the numbers aren't always associated.

[00:20:57] Speaker 01:
So it's hard to track them.

[00:21:00] Speaker 00:
That's true.

[00:21:01] Speaker 00:
There are instances where the Schwartz numbering bait number don't appear in each copy in the record.

[00:21:06] Speaker 00:
It does make it harder.

[00:21:07] Speaker 01:
So when the district court says there was no problem as to some of these documents because they were duplicates, do you know what he was referring to?

[00:21:18] Speaker 00:
With enough work, you can trace through, I think, everything.

[00:21:22] Speaker 00:
But that doesn't affect the issue with the five documents we just discussed.

[00:21:26] Speaker 01:
So he is not talking about those documents.

[00:21:30] Speaker 00:
Right.

[00:21:32] Speaker 01:
And he may be talking about what Mr. Hardy was talking about in his first declaration.

[00:21:37] Speaker 00:
Yes.

[00:21:37] Speaker 00:
All right.

[00:21:40] Speaker 00:
That's how I understand the record, Your Honor.

[00:21:42] Speaker ?:
OK.

[00:21:45] Speaker 01:
So are you ready to give up anything else at this point?

[00:21:48] Speaker 01:
Any other documents?

[00:21:50] Speaker 01:
No, Your Honor.

[00:21:51] Speaker ?:
All right.

[00:21:51] Speaker 03:
I thought I had another one with 56, but I guess not.

[00:21:57] Speaker 00:
I do apologize for my confusion.

[00:21:59] Speaker 00:
No, I understand.

[00:22:00] Speaker 00:
It's a confusing record.

[00:22:03] Speaker 01:
Anything further?

[00:22:04] Speaker 00:
Nothing further from me, Your Honor.

[00:22:05] Speaker 00:
If there are no further questions, we respectfully ask that the judgment be affirmed.

[00:22:08] Speaker 00:
Thank you.

[00:22:09] Speaker 03:
Subject, of course, to turning over what you've agreed to.

[00:22:13] Speaker 00:
Yes, Your Honor, which we will take care of probably before the decision.

[00:22:17] Speaker 01:
Well, there were some instances where the declaration said, we're turning over something, see Exhibit B, and then you go to Exhibit B, and I think you just explained it here.

[00:22:27] Speaker 00:
The declaration would have been more artful.

[00:22:28] Speaker 00:
As I said in my brief, it might have been more artful and precise to have said, we will review the document and process it and release any exempt material.

[00:22:36] Speaker 00:
All right.

[00:22:37] Speaker 01:
Thank you.

[00:22:38] Speaker 01:
On exempt material.

[00:22:41] Speaker 01:
All right.

[00:22:42] Speaker 01:
Council Member Pellin?

[00:22:45] Speaker 02:
Sure.

[00:22:47] Speaker 02:
those for a very very briefly on the uh... document that they intend to produce uh... i believe you have to be careful you've won on that issue don't say anything okay just i mean procedurally i would ask that the court uh... vacate that aspect of the district court's opinion uh... which may have uh... some implications for seeking attorney fees we understand that okay good point good point what about fifty six

[00:23:17] Speaker 02:
So 56 was also with their deleted page information sheet, has boxes checked for 6 and 7C as well.

[00:23:28] Speaker 02:
Presumably some of the information in that report refers to a person who has privacy interests.

[00:23:36] Speaker 02:
If that is the case, then some of that information may be able to be redacted.

[00:23:42] Speaker 03:
Shouldn't we just send this back to the district court?

[00:23:44] Speaker 03:
Yes.

[00:23:45] Speaker 01:
So you just want him to do a segregability?

[00:23:47] Speaker 03:
You don't want us to decide anything on this.

[00:23:49] Speaker 03:
Just send it back.

[00:23:50] Speaker 03:
District Court didn't focus on it, right?

[00:23:52] Speaker 03:
They're now claiming additional exemptions, right?

[00:23:55] Speaker 01:
Or they claimed exemptions.

[00:23:56] Speaker 01:
And your question is, are some parts of the documents nonetheless releasable?

[00:24:03] Speaker 02:
Yes.

[00:24:04] Speaker 01:
So it's a remand for a segregability determination?

[00:24:09] Speaker 01:
I'm just, I'm asking.

[00:24:10] Speaker 02:
Well, the district court didn't make a specific decision about page 56, about any of the exemptions.

[00:24:18] Speaker 01:
Be granted summary judgment, all right?

[00:24:20] Speaker 01:
Granted summary judgment.

[00:24:22] Speaker 01:
To me, that's a decision.

[00:24:25] Speaker 01:
I understand your point.

[00:24:26] Speaker 01:
He didn't say anything.

[00:24:27] Speaker 01:
But he had, what, three other opinions here.

[00:24:30] Speaker 02:
I believe that the reason that the judge didn't say anything is that he was under the impression that he didn't need a rule because the page was disclosed, because the government said the page was disclosed.

[00:24:41] Speaker 02:
And therefore, the court didn't reach the issue.

[00:24:43] Speaker 01:
All right.

[00:24:44] Speaker 01:
So as to 56, you're suggesting we should consider a remand for the district court to do what?

[00:24:53] Speaker 01:
has to document 56, Schwartz 56.

[00:24:57] Speaker 01:
To rule on whatever assertions the government, whatever exemptions the government asserts and if... No, see counsel here, I'm thinking I'm the district court judge, I've granted summary judgment, now the Court of Appeals is saying granted again.

[00:25:12] Speaker 01:
No, I mean what do we want the district court to do?

[00:25:17] Speaker 01:
He's already granted summary judgment.

[00:25:19] Speaker 01:
I understand the segregability

[00:25:24] Speaker 01:
There's nothing I found in his opinions that specifically addressed that.

[00:25:30] Speaker 02:
Maybe to put it a different way, a segregability analysis I think is proper when there is a finding that some information can be withheld and others may not.

[00:25:42] Speaker 02:
Here there wasn't a finding whether any of the information could be withheld.

[00:25:47] Speaker 02:
So it seems like you have to resolve that question first.

[00:25:50] Speaker 01:
Well, all I'm saying is I'm the district court judge.

[00:25:53] Speaker 01:
I've entered an order granting summary judgment.

[00:25:55] Speaker 01:
I have denied your request for that record.

[00:25:58] Speaker 01:
Now the question is, did I fail to make a segregability analysis?

[00:26:06] Speaker 01:
Because in fact, maybe parts of those documents can be released.

[00:26:11] Speaker 02:
I thought that was your argument.

[00:26:17] Speaker 02:
parts or potentially all of it could be released.

[00:26:20] Speaker 02:
And that's what needs to happen.

[00:26:23] Speaker 02:
I don't think we can assume that it's proper that parts of it.

[00:26:28] Speaker 03:
Let me just suggest, according to my notes, what happened here was that, OK, with respect to 56, the FBI originally invoked 70, right?

[00:26:42] Speaker 03:
Yes.

[00:26:45] Speaker 03:
It withdrew that in response to the district court's direction that the FBI needed to file more justification, right?

[00:26:54] Speaker 03:
Right.

[00:26:54] Speaker 03:
Okay.

[00:26:54] Speaker 03:
So, but there are, so, so presumably

[00:27:04] Speaker 03:
So I assume what happened, am I right?

[00:27:08] Speaker 03:
I mean, this case has gone up, gone back and forth between the district court and the parties.

[00:27:12] Speaker 03:
There's lots of affidavits.

[00:27:14] Speaker 03:
Is 56 something that kind of just got the other exemptions that the FBI had invoked just got lost?

[00:27:22] Speaker 03:
And the district court, because this thing is so confusing, didn't rule on those exemptions.

[00:27:28] Speaker 03:
And so the direction to the district court would be to, we would vacate except with respect to this judgment, with this document, the summary judgment order, and remand it for the district court to evaluate

[00:27:46] Speaker 03:
it under these other exemptions that the FBI has invoked.

[00:27:49] Speaker 03:
Is that what we would do?

[00:27:51] Speaker 03:
Yes, I think that would be the correct instruction.

[00:27:53] Speaker 01:
Do you want to ask the government if she's got a... Yeah, I do want to ask the government.

[00:27:57] Speaker 03:
Yeah, if she's got a problem with that.

[00:27:58] Speaker 01:
Yeah, and we'll let you finish your rebuttal.

[00:28:00] Speaker 01:
Okay.

[00:28:00] Speaker 01:
Then I would ask the government a couple of things about that.

[00:28:07] Speaker 01:
I didn't read the record in this case as district court overlooking something because he asked for

[00:28:12] Speaker 01:
a further justification, he received it.

[00:28:16] Speaker 01:
Now, whether it was adequate or not, presumably you had a chance to address that.

[00:28:24] Speaker 01:
Well, there were a lot of different pages at issue, and when the— No, with all due respect, I mean, we've been spending a lot of time on 489, but, I mean, the point is, Mr. Hardy came back with some more, and then the judge has his rulings.

[00:28:44] Speaker 02:
Well, when the judge issued the opinion, the judge said, my understanding is that these are the pages that remain at issue, and the judge was factually incorrect.

[00:28:56] Speaker 01:
So did you file a motion for reconsideration?

[00:28:59] Speaker 02:
No.

[00:29:00] Speaker 01:
Why not?

[00:29:01] Speaker 01:
I mean, if he's factually incorrect, why not just get him to correct it?

[00:29:07] Speaker 01:
He may not think he's incorrect.

[00:29:08] Speaker 01:
I understand that, but at least it would have saved an appeal.

[00:29:13] Speaker 02:
But I don't think it would save the appeal because there are a lot of other issues we needed to resolve on appeal.

[00:29:17] Speaker 01:
Well, you've already won one that probably could have been worked out in advance.

[00:29:20] Speaker 01:
What?

[00:29:22] Speaker 01:
Number two, we've had this discussion about the exemption.

[00:29:28] Speaker 01:
And you've gotten part of what you wanted.

[00:29:31] Speaker 01:
You just don't have these two reports.

[00:29:33] Speaker 01:
Right.

[00:29:34] Speaker 01:
And now we're talking about one document, 56.

[00:29:39] Speaker 01:
Is that right?

[00:29:42] Speaker 02:
That's right.

[00:29:43] Speaker 02:
Well, 56, there's also the 3A and 3B, right.

[00:29:48] Speaker 01:
What happened to 9A and 9B?

[00:29:51] Speaker 02:
Yeah, those as well, sorry.

[00:29:54] Speaker 01:
So there are five documents.

[00:29:55] Speaker 02:
There are five, right.

[00:29:56] Speaker 01:
So you think the District Court didn't rule properly on any of them or didn't rule at all?

[00:30:00] Speaker 02:
Didn't rule at all on any of those.

[00:30:03] Speaker 02:
The court seemed to be thinking that two of those were duplicates of other pages, when in fact they were not duplicates.

[00:30:10] Speaker 01:
Well, he doesn't say it that way, all right?

[00:30:14] Speaker 01:
And he says, in his summary judgment order, he says Shapiro now challenges only the government's justification for withholding information under 7E.

[00:30:25] Speaker 02:
Right.

[00:30:27] Speaker 01:
So he deals with it.

[00:30:29] Speaker 01:
He cites Blackwell.

[00:30:34] Speaker 01:
And then he says, withheld reports, Schwartz 83 to 89, Schwartz 91.

[00:30:41] Speaker 01:
And he concludes that the government has provided sufficient justification as to the documents that's withheld pursuant to 7E.

[00:31:02] Speaker 01:
So if you thought the district court hadn't ruled on something, I mean, I have three separate opinions here from the district court.

[00:31:13] Speaker 02:
Right.

[00:31:14] Speaker 02:
Yes, we could have asked the district court for a fourth opinion.

[00:31:18] Speaker 02:
But there's no prerequisite that a party seek reconsideration.

[00:31:24] Speaker 01:
No, there certainly isn't.

[00:31:25] Speaker 01:
But, you know, in terms of the district court, probably if he's still familiar with the case when he filed a motion for reconsideration as opposed to getting it back from us, I'm just, I don't understand why these things get dragged out.

[00:31:35] Speaker 01:
You want the information.

[00:31:38] Speaker 01:
Yes.

[00:31:43] Speaker 01:
I'm here to get some of it, that's all my point.

[00:31:46] Speaker 01:
Maybe I'm wrong.

[00:31:47] Speaker 01:
All right, so you want those five documents to go back to the district court.

[00:31:52] Speaker 02:
Right.

[00:31:55] Speaker 01:
And so in his third, let's see, in his second opinion,

[00:32:10] Speaker 01:
He, in his second opinion, he's talking about the adequacy of the search systems that he located, you know, these other pages, 68 pages that had been released to someone else.

[00:32:25] Speaker 01:
And then his first one, he sort of held in advance any final ruling because he wanted more information from the government, more justification from the government.

[00:32:37] Speaker 01:
And there he was dealing with the 23 pages.

[00:32:40] Speaker 01:
So if you take the 23 pages and the 68 pages, are these five pages somewhere in there?

[00:32:49] Speaker 01:
The five pages are 3A, 3B, 9A, 9B, 56.

[00:32:55] Speaker 01:
Are they part of the 68 pages?

[00:32:57] Speaker 02:
No, those were part of the original, well, 3A, 3B.

[00:33:01] Speaker 01:
No, in the Peerley Council, the first production was 23 documents.

[00:33:05] Speaker 02:
Right.

[00:33:05] Speaker 01:
The second production was 68 documents.

[00:33:08] Speaker 02:
Right.

[00:33:09] Speaker 01:
Now, in your brief, you named five documents in your third argument.

[00:33:14] Speaker 01:
Are those five documents part of the 68 documents?

[00:33:19] Speaker 02:
Those are part of the, yes, they were part of the first production, and one of them was part of the second production, so they're within that group.

[00:33:25] Speaker 01:
So the answer to my question is yes.

[00:33:28] Speaker 02:
Yes.

[00:33:29] Speaker 01:
And so the district court had all that before him, according to his opinions.

[00:33:36] Speaker 02:
Well, the district court had the documents but said that these particular ones were not at issue.

[00:33:42] Speaker 01:
Where does he say that?

[00:33:49] Speaker 01:
I mean, his first opinion starts on JA 189, talks about all these documents.

[00:33:58] Speaker 01:
Then his second opinion is after he's gotten further information from the government about its search.

[00:34:07] Speaker 01:
And then the third one is about 78.

[00:34:12] Speaker 01:
So I'm trying to find out why you think the district court overlooked these documents.

[00:34:18] Speaker 02:
So I'm looking at on, uh, JA 190.

[00:34:23] Speaker 01:
Right.

[00:34:24] Speaker 02:
Where at the top it says with, with two exceptions, which the government has withheld in Toto on the ground that they are duplicates.

[00:34:35] Speaker 01:
Right.

[00:34:36] Speaker 02:
So that is incorrect.

[00:34:37] Speaker 02:
The government did not withhold those on the grounds that they are duplicates.

[00:34:40] Speaker 01:
Are they duplicates?

[00:34:42] Speaker 02:
No.

[00:34:43] Speaker 01:
How do you know that?

[00:34:45] Speaker 02:
The government is withholding them under 7E.

[00:34:48] Speaker 01:
No, but Mr. Hardy, in his first declaration, keeps talking, telling me about duplicates.

[00:34:55] Speaker 02:
Other documents are duplicated.

[00:34:56] Speaker 02:
These are not.

[00:34:58] Speaker 02:
These documents exist.

[00:34:59] Speaker 01:
Let me say, I have no idea how I figure that out.

[00:35:03] Speaker 01:
I don't know where the judge... There is a Vaughan index here.

[00:35:07] Speaker 02:
Yes.

[00:35:07] Speaker 01:
All right, that's referenced.

[00:35:10] Speaker 01:
And there's still more references to duplicates by Mr. Hardy.

[00:35:19] Speaker 02:
There are references to duplicates, but there's nothing in the record that says 3A and 3B were duplicates.

[00:35:25] Speaker 01:
How would we ever know?

[00:35:27] Speaker 02:
Well, how would the judge have a factual basis to find that they were duplicates?

[00:35:32] Speaker 01:
Beyond speculating.

[00:35:32] Speaker 01:
Well, you say there's nothing in the record, but there must be something in the record.

[00:35:36] Speaker 01:
I couldn't find it.

[00:35:37] Speaker 01:
It may not be in the record before me, but I mean, I suppose in these FOIA cases, it would be helpful if you're not going to have a, not necessarily you, but the government as well.

[00:35:47] Speaker 01:
you know, a document by document bond index so we can trace these things.

[00:35:52] Speaker 02:
I think that would be great.

[00:35:53] Speaker 01:
I have no idea what we're talking about.

[00:35:54] Speaker 01:
All I know is that 3A and 3B are part of the original 23 and maybe 9A and 9B.

[00:36:02] Speaker 01:
And then you say one of the documents is part of the 68.

[00:36:05] Speaker 01:
Right.

[00:36:07] Speaker 02:
I agree.

[00:36:09] Speaker 02:
A traditional bond index listing page by page, I think would be extremely helpful.

[00:36:15] Speaker 01:
So we know what we're dealing with or the government's brief.

[00:36:20] Speaker 02:
I agree.

[00:36:21] Speaker 02:
But the, to finish that sentence.

[00:36:23] Speaker 01:
Because my point, what I'm trying to get at is, I don't know how we write an opinion where we don't even know which documents we're talking about.

[00:36:29] Speaker 01:
The judge says, the district court says, there was some duplicates.

[00:36:32] Speaker 02:
Right.

[00:36:34] Speaker 01:
There are some duplicates.

[00:36:36] Speaker 01:
Are they these documents or not?

[00:36:37] Speaker 01:
I don't know.

[00:36:38] Speaker 01:
I don't know.

[00:36:38] Speaker 01:
It seems like that would be.

[00:36:39] Speaker 01:
And you don't know either.

[00:36:40] Speaker 01:
Seems like it would be either.

[00:36:41] Speaker 01:
But you know, you haven't seen the documents.

[00:36:44] Speaker 02:
All right.

[00:36:44] Speaker 02:
Well, it seems like it would be appropriate for remand.

[00:36:47] Speaker 01:
All right.

[00:36:48] Speaker 01:
Remember, you've got to convince us to send it back.

[00:36:52] Speaker 01:
All right?

[00:36:52] Speaker 01:
No, I'm serious about that.

[00:36:54] Speaker 02:
I understand, but if there's no basis in the record for the judge to make a factual finding about these, and the judge's entire conclusion is 3A and 3B are duplicates, because Mr. Hardy says there are some duplicates at issue in this case, that factual finding is without support.

[00:37:12] Speaker 01:
All right.

[00:37:13] Speaker 01:
Let me ask counsel for the government, Mrs. Lyon, about this.

[00:37:18] Speaker 01:
Do you have or know where there is a list of all these documents, these 68 documents, so that we know what we're talking about?

[00:37:29] Speaker 00:
I am not aware of anything in the record that lists them in one document like in one chart.

[00:37:36] Speaker 00:
There is no such thing.

[00:37:36] Speaker 00:
That's not how the FBI did the declarations in this case.

[00:37:40] Speaker 01:
That's fine, but I'm talking about when the district court is trying to rule.

[00:37:46] Speaker 00:
Yes, Your Honor.

[00:37:47] Speaker 00:
When the district court ruled, it had before it the declaration, and in its opinion, it addressed the application of both Exemption 6 and Exemption 7C, and it upheld the FBI's application of both of those exemptions in their entirety.

[00:38:01] Speaker 01:
So that's in his first opinion?

[00:38:03] Speaker 00:
Yes, Your Honor.

[00:38:04] Speaker 00:
That opinion begins at JA 188 and it includes those rulings.

[00:38:10] Speaker 00:
It starts at really 195 to 197 of the Joint Appendix is that part.

[00:38:14] Speaker 00:
I'm not aware of any rule or law or case that states that the district court's failure to identify each particular document on which those exemptions are withheld in its opinion is a basis for any question or error.

[00:38:27] Speaker 00:
The question is whether the exemptions are properly applied and whether the evidence is sufficient to grant summary judgment.

[00:38:37] Speaker 00:
And here that ruling has been made, and this ruling on appeal is a sort of a collateral attack.

[00:38:42] Speaker 03:
What do you mean by that?

[00:38:45] Speaker 00:
I mean, Your Honor, that sort of along the lines of what Judge Rogers is saying, if there was a particular

[00:38:51] Speaker 00:
thought that there was a factual error or something had been overlooked, the appropriate way to preserve that error for purposes of appeal would be to move to reconsider and let the district court in the first instance.

[00:39:01] Speaker 03:
But there's no requirement for that.

[00:39:02] Speaker 03:
I mean, it would be nice.

[00:39:04] Speaker 00:
Would be nice.

[00:39:04] Speaker 03:
Do we require that?

[00:39:05] Speaker 03:
No.

[00:39:06] Speaker 00:
But there's also no requirement that the district court identify each document it is upholding the exemptions on.

[00:39:12] Speaker 03:
Sure.

[00:39:12] Speaker 03:
Well, what do we do with 56?

[00:39:14] Speaker 03:
The 9E exemption was withdrawn.

[00:39:22] Speaker 03:
The 9E exemption claim was withdrawn.

[00:39:25] Speaker 03:
Yes, Your Honor.

[00:39:26] Speaker 03:
And the Bureau has invoked other exemptions, right?

[00:39:28] Speaker 03:
But the district court hasn't ruled on those, correct?

[00:39:32] Speaker 00:
The district court has ruled on those exemptions.

[00:39:34] Speaker 00:
Oh, it has?

[00:39:35] Speaker 00:
Yes.

[00:39:35] Speaker 00:
Where did it rule on that?

[00:39:37] Speaker 00:
Those decisions are joint appendix pages 195 to 197.

[00:39:41] Speaker 00:
And it begins its discussion of both exemption 6 and 7C on page 192.

[00:39:46] Speaker 03:
So this one's completely resolved.

[00:39:48] Speaker 03:
This is completely resolved.

[00:39:50] Speaker 03:
Yeah, OK.

[00:39:54] Speaker 00:
And there's no need for a remand.

[00:39:56] Speaker 03:
OK, I got you.

[00:39:58] Speaker 01:
All right.

[00:39:58] Speaker 01:
Thank you.

[00:39:59] Speaker 01:
Thank you.

[00:40:01] Speaker 01:
All right.

[00:40:02] Speaker 01:
We will take the case under advisement.