[00:00:11] Speaker ?:
and we have to leave.

[00:00:48] Speaker 04:
Alcorn, whenever you're ready.

[00:00:58] Speaker 00:
Good morning, may it please the court.

[00:01:00] Speaker 00:
My name is Daniel Alcorn.

[00:01:02] Speaker 00:
I'm here for the Appellant to Assassination Archives and Research Center.

[00:01:06] Speaker 00:
I'm joined at council table by James H. Lazar, my co-counsel.

[00:01:11] Speaker 00:
Mr. Lazar is under doctor's orders to limit his activities, so we are particularly pleased that he's able to

[00:01:17] Speaker 00:
attend and join us today.

[00:01:21] Speaker 00:
The issue before the court are claims by the CIA to exempt records under the B-5 exemption.

[00:01:28] Speaker 00:
There are five records in particular they're exempting.

[00:01:31] Speaker 00:
And these five records relate to the search activities that were conducted when the CIA received and began to search for our requests.

[00:01:43] Speaker 00:
We contend that these are factual

[00:01:45] Speaker 00:
materials, and these in fact are at the heart of any FOIA case, the adequacy of search issue, and by the nature of the fact of what the request was, shows that they are related to the search activities that the CIA conducted.

[00:02:03] Speaker 00:
I think the best way to see our concern is to look at one of the documents, which is at page 300 of the Joint Appendix.

[00:02:13] Speaker 00:
And by looking at it, we can see what was released, what was not released.

[00:02:24] Speaker 00:
It's page 300, joint appendix.

[00:02:28] Speaker 04:
At the top is... A big empty box.

[00:02:32] Speaker 00:
Yes, and I would point out that the size of the type is actually very small in the rest of the document.

[00:02:38] Speaker 00:
So assuming the type size is the same, that's a considerable amount of information.

[00:02:42] Speaker 00:
that could fit on that block at that small type size.

[00:02:49] Speaker 03:
In applying exemption five, is it ever dependent upon the sort of gross quality of material that gets exempted?

[00:02:58] Speaker 00:
No, it's the nature of the material.

[00:03:00] Speaker 00:
And of course, exemptions must be narrowly construed.

[00:03:03] Speaker 00:
That's part of the case law.

[00:03:05] Speaker 00:
The Supreme Court has stated that again in the Milner case.

[00:03:09] Speaker 00:
And so these exemptions are not to get broad application.

[00:03:13] Speaker 00:
And the concern originally with the B-5 exemption was it not be used to withhold factual-type information.

[00:03:21] Speaker 00:
And if you look at this document, it's a task information, which I think means a task order, something to be done.

[00:03:29] Speaker 00:
The instructions are, please conduct a search for records on or pertaining to communications by Alan Dulles regarding plots to assassinate Adolf Hitler.

[00:03:42] Speaker 00:
That caused quite a reply, assuming we're right about the type size and the amount of the whiteout.

[00:03:49] Speaker 00:
There's more to that than we don't have any records, which is the ultimate response that we were given.

[00:03:56] Speaker 04:
And in fact, so your position is that the box expands depending on what's typed into it.

[00:04:01] Speaker 04:
And then it also says page one of two, or is

[00:04:04] Speaker 00:
Yes, there is a second page and there's actually the remainder of the sentence on the second page, the next page, which either was deliberately not whited out or it could have been a mistake that it wasn't whited out.

[00:04:21] Speaker 00:
It seems to continue over on the next page.

[00:04:24] Speaker 00:
300 to 301.

[00:04:26] Speaker 04:
Any relevant material, please feel free to contact me if you have any questions.

[00:04:30] Speaker 00:
It looks to me more like a mistake that it got forgotten because it went over to the other side.

[00:04:36] Speaker 00:
But it's not particularly helpful to what we're trying to do.

[00:04:44] Speaker 01:
Mr. Alcorn, so why, though, isn't this something like the summary of a record evidence, which we've said

[00:04:53] Speaker 01:
we can – in mantras, we said would be the same as probing the decision-making process.

[00:05:02] Speaker 00:
I think we're left – we don't really know what is behind the redactions.

[00:05:06] Speaker 00:
That's part of our problem in contesting them.

[00:05:09] Speaker 00:
But given the context of this information, the tasking order with instructions to make a search, the response

[00:05:19] Speaker 00:
It's logical to then believe that there's information here about the search and that indicates whether records existed or did not exist.

[00:05:29] Speaker 00:
And so we're taking what the context of this document is, which the CIA has provided to us.

[00:05:38] Speaker 00:
They also provided it in response to a request asking for information from the search activity.

[00:05:46] Speaker 00:
So they've already made a decision that this is relevant to the search.

[00:05:52] Speaker 00:
In addition, their Vaughn Index, which is on page 219 of the Joint Appendix, the Vaughn Index for this document, and they're essentially identical for the other documents, state internal agency search information and response to Plano's FOIA request.

[00:06:12] Speaker 00:
That's the beginning of the description in the Vaughn Index.

[00:06:17] Speaker 00:
to justify the withholding.

[00:06:20] Speaker 00:
And we would contend that's information.

[00:06:23] Speaker 00:
The B5 exemption, the pre-decisional deliberative process privilege, is designed for policy and legal discussions.

[00:06:34] Speaker 00:
And I don't see where this information is of a policy or legal nature.

[00:06:40] Speaker 00:
There's really no mention of that.

[00:06:43] Speaker 00:
It's a tasking order to make a search and report back to us the results of your search.

[00:06:49] Speaker 00:
And there are five documents that fit that category that are part of the withholding.

[00:06:59] Speaker 00:
I'm concerned that this information may relate because of the subject matter Alan Dulles and the plots to assassinate Hitler.

[00:07:11] Speaker 00:
relate to the issue of the OSS records, which was the predecessor organization of the CIA.

[00:07:17] Speaker 00:
And there's an issue, the CIA has on a number of occasions referred us to the National Archives.

[00:07:25] Speaker 00:
You have to go to the National Archives to get any information.

[00:07:29] Speaker 00:
And that has to do with a process by which the CIA kept the OSS records, and then because of the Nazi War Crimes Disclosure Act of 1998,

[00:07:40] Speaker 00:
they eventually had to transfer a lot of those records to the National Archives.

[00:07:45] Speaker 00:
But the issue becomes then, did they keep copies?

[00:07:49] Speaker 00:
Because if the agency kept a copy, the Morley case in 2007, the 2007 Morley case said that if the CIA has copies, then they must account for those under FOIA because of their records in possession of the agency.

[00:08:04] Speaker 00:
And that issue about whether there were copies

[00:08:08] Speaker 00:
maintained of these records is not addressed anywhere in the case by the submissions of the government.

[00:08:16] Speaker 00:
They just don't mention the issue of the copies.

[00:08:19] Speaker 00:
And it concerns me that this whiteout may involve that issue.

[00:08:24] Speaker 00:
Of course, we don't know because we don't have the information, but it may involve a discussion of whether to account for these copies.

[00:08:38] Speaker 00:
So we are asking for in-camera review of the withheld materials.

[00:08:43] Speaker 00:
We think the issue is such and the circumstances such that in-camera review would be appropriate in this case.

[00:08:53] Speaker 04:
We're also seeking- And that would involve remand to the district court to do that?

[00:08:57] Speaker 00:
We would encourage this court to do it if this court is so inclined or it could be done on a remand.

[00:09:04] Speaker 04:
Do we have authority to do that?

[00:09:06] Speaker 00:
It's in the statute, the FOIA statute provides for in-camera review.

[00:09:12] Speaker 00:
The standard of review at this court is de novo review, and this court undertakes a de novo review under the requirements of the FOIA statute and applies the laws.

[00:09:27] Speaker 00:
I would contend that under the de novo review,

[00:09:31] Speaker 00:
the in-camera review is a possibility.

[00:09:33] Speaker 01:
Do we review the district court's denial of in-camera review under a de novo standard or under an abusive discretion standard?

[00:09:40] Speaker 00:
I would say it's de novo.

[00:09:42] Speaker 00:
The merits of the FOIA request is a de novo review.

[00:09:46] Speaker 01:
But the denial of in-camera review is also de novo?

[00:09:51] Speaker 01:
Is there a case for that?

[00:09:54] Speaker 00:
I would.

[00:09:55] Speaker 00:
The Summers case sets the standard of de novo review.

[00:09:59] Speaker 00:
Not every issue – we know the attorney's fee issue is not – it's not an abuse of discretion.

[00:10:05] Speaker 00:
But the merits of the FOIA case and the in-camera review doesn't involve the merits of the FOIA case, because it's reviewing the material to see whether the exemption should apply.

[00:10:19] Speaker 04:
So Mr. Alcorn, you're not making any argument here that the deliberative process privilege applies differently or is inapplicable to the deliberations in complying with FOIA itself.

[00:10:37] Speaker 00:
No, no.

[00:10:38] Speaker 00:
We're going back to the EPA versus Mink, the case law for the B-5 exemption, which is to construe it narrowly and avoid factual matters that could be

[00:10:49] Speaker 00:
separated out because of the concern that factual matters could then be slipped under a deliberative process privilege.

[00:10:58] Speaker 00:
Right.

[00:10:58] Speaker 00:
And so that is our contention.

[00:11:00] Speaker 04:
Thank you.

[00:11:03] Speaker 00:
And I reserve two minutes for rebuttal.

[00:11:11] Speaker 04:
Thank you.

[00:11:11] Speaker 04:
Morning, Mr. Hammond.

[00:11:12] Speaker 02:
Good morning, Your Honors.

[00:11:18] Speaker 02:
May it please the court, my name is Derek Hammond, and I'm here today on behalf of the FLE, the Central Intelligence Agency.

[00:11:24] Speaker 02:
The issue here is a narrow one.

[00:11:25] Speaker 02:
It is whether the district court correctly concluded that the material contained in five tasking documents qualified for the delivery of process privilege, and whether that material was properly withheld under extension five of the FOIA.

[00:11:38] Speaker 02:
In making that determination, the court had before it two CIA declarations, a VON index, and five redacted versions of the documents themselves.

[00:11:47] Speaker 02:
Taken together, these materials clearly demonstrate that the material is both pre-decisional and deliberative, and therefore qualified for the privilege.

[00:11:55] Speaker 02:
The material was pretty decisional because it was prepared by a agency employee for the purpose of assisting the agency in responding to the appellant's FOIA requests, and it did so prior to the final disposition of those requests.

[00:12:09] Speaker 02:
The material, likewise, is deliberative.

[00:12:12] Speaker 02:
Indeed, the documents themselves call for an internal give and take among agency personnel.

[00:12:18] Speaker 02:
And they call for, as Appelant pointed out, there were instructions, and that prompted a response.

[00:12:26] Speaker 02:
And as the declarations indicate, we know what's behind the response.

[00:12:31] Speaker 02:
It's internal agency discussion regarding the searches conducted.

[00:12:34] Speaker 04:
Is that deliberative or is that more ministerial?

[00:12:39] Speaker 04:
I'm actually having trouble even hypothetically imagining what could be in this box that is deliberative.

[00:12:52] Speaker 04:
If somebody said, well, wait a minute, we don't even have this.

[00:12:56] Speaker 04:
Would they write that if they said,

[00:12:59] Speaker 04:
Actually, legally, we don't think we have to turn it over.

[00:13:01] Speaker 04:
Would they write that in the box?

[00:13:02] Speaker 04:
It's not lawyers sort of talking about the scope.

[00:13:05] Speaker 04:
It's somebody who's in charge of a file who's being asked to look through it.

[00:13:11] Speaker 04:
And they're going to say, I looked.

[00:13:13] Speaker 04:
I did find something, I didn't find something.

[00:13:15] Speaker 04:
I'm just having trouble with the deliberation, characterization, even hypothetically.

[00:13:21] Speaker 02:
I don't know if you could help me out with that.

[00:13:23] Speaker 02:
Absolutely.

[00:13:23] Speaker 02:
So first of all, I would note that the agency employee is exercising some amount of judgment and discretion in actually conducting the search.

[00:13:31] Speaker 02:
The agency has received a FOIA request that broadly seeks various kinds of documents, a class of documents, and now an agency employee is being asked to exercise judgment in determining where those materials might be located in the vast array of documents that any agency may have.

[00:13:47] Speaker 02:
It then calls for a response, and in your hypothetical it could be, I don't, I conducted this search, and it yielded these results.

[00:13:54] Speaker 02:
But as this court has noted in need data,

[00:13:58] Speaker 02:
The purpose of the privilege is to protect the deliberative process itself and not merely documents that contain deliberative material.

[00:14:10] Speaker 02:
So as this court held in me data, discussions among agency personnel that form the raw materials by which the agency goes about making its decision

[00:14:25] Speaker 02:
even if that discussion may be characterized as factual in nature, still qualifies as deliberative material.

[00:14:34] Speaker 02:
And in this case, the agency employee exercised his judgment to perform a search, and then in your hypothetical, he reported what the search was and how he did it.

[00:14:45] Speaker 02:
And that then goes to the deciding official at the agency as to whether or not that qualifies as an adequate search for the FOIA request.

[00:14:54] Speaker 02:
The deciding official could very well say, that's not adequate.

[00:14:58] Speaker 02:
We need additional information.

[00:14:59] Speaker 02:
We should conduct additional inquiries, or we should do additional search terms.

[00:15:04] Speaker 02:
So as is made clear throughout in the Vaughn index and in the various declarations, this was not a final determination about the search that was conducted.

[00:15:13] Speaker 02:
And so for that reason, because essentially the employee's response is tantamount to a recommendation to the deciding official as to what an appropriate response or appropriate search in the context of any given FOIA request would be.

[00:15:32] Speaker 03:
It seemed to me in that answer you embodied in

[00:15:38] Speaker 03:
the thought process that's reflected in the writing, factual findings.

[00:15:46] Speaker 03:
But did I get that right?

[00:15:48] Speaker 03:
In a sense, I could see how that would almost be inevitable.

[00:15:52] Speaker 02:
So to the extent that there is factual material, it is part and parcel of the recommendation made by the employee as to what- Is it non-segregable?

[00:16:05] Speaker 02:
Yes, Your Honor.

[00:16:07] Speaker 02:
Because that is still material that the deciding official has to consider as part of his overall deliberations as to whether or not it's an adequate search.

[00:16:15] Speaker 02:
So if an employee says, I conducted this search and it yielded these results, the results, as well as the means and methods by which the employee wants to go search, are all part of the raw materials that the agency is considering when determining whether the search it conducted was adequate or inadequate or whether additional searches may need to be conducted.

[00:16:34] Speaker 04:
So the difficulty, I think, is it's the government's burden to establish that the exemption applies.

[00:16:41] Speaker 04:
And plenty of our cases have said that cannot be done with a boilerplate recitation.

[00:16:47] Speaker 04:
Now here what we have, as you mentioned, is a bond index and two declarations and the redacted documents themselves, which as far as I can tell, and I'm really not

[00:16:56] Speaker 04:
you know, trying to be smart here, but it's boilerplate.

[00:17:01] Speaker 04:
The Vaughn Index.

[00:17:02] Speaker 04:
Predecisional intra-agency deliberations regarding the search results, not the agency's final determination.

[00:17:08] Speaker 04:
That is a restatement of what the test is, right, under the exemption.

[00:17:13] Speaker 04:
And then in the affidavits, disclosure of any of these documents would reveal the internal decision-making process the agency employs in making its final determinations.

[00:17:21] Speaker 04:
that too seems to me like a statement of what, a generic statement or a boilerplate statement of what the exemption covers.

[00:17:31] Speaker 04:
So as reviewing court with empty boxes and that, is it something about the context that is supposed to further inform our judgment?

[00:17:40] Speaker 04:
I'm just not sure what you're asking us to apply our judgment to.

[00:17:46] Speaker 02:
Yeah, so I think the forms themselves demonstrate that there is a give and take among the agency personnel.

[00:17:53] Speaker 02:
And the declarations indicate that what's in the box is a discussion of the searches conducted.

[00:18:00] Speaker 02:
That's not boilerplate.

[00:18:01] Speaker 02:
That's a description of what's in the box.

[00:18:05] Speaker 02:
It's a discussion of the searches conducted.

[00:18:11] Speaker 02:
the context in which the agency is tasking an employee to conduct a search and that employee is reporting up and we know that that employee is not the deciding official, that's a discussion that is part of the deliberative process of the agency as a whole in making its determination as to adequately see of the search.

[00:18:32] Speaker 04:
What's your position on whether this court has authority to look in camera at the unredacted versions

[00:18:39] Speaker 04:
unredacted insofar as the exemption, deliberate process exemption, is concerned.

[00:18:45] Speaker 02:
So I believe that any court could conduct in-camera review, but I think it would be highly unusual for this court to conduct in-camera review if the lower court did not and has not found that the lower court abused its discretion in declining to conduct such review.

[00:19:02] Speaker 04:
Although there's, I mean, another side of it is I often don't want to conduct a camera review.

[00:19:07] Speaker 04:
I don't want to see things that I don't have to see.

[00:19:09] Speaker 04:
And so to force a judge who's not inclined to do something when we might be willing to take that responsibility is, I don't know, that's the counter argument, I guess.

[00:19:17] Speaker 02:
is that forcing, I mean, it is a discretionary standard.

[00:19:20] Speaker 02:
The judge below had discretion to decide whether or not he wanted to view the documents in camera and he decided not to.

[00:19:26] Speaker 02:
It's only problematic if that discretion was abused.

[00:19:29] Speaker 04:
Now does that mean that we can't unless we find he abused his discretion or do we, in our de novo review, have a de novo authority

[00:19:38] Speaker 04:
to do our own in-camera review if we think that would aid our.

[00:19:41] Speaker 02:
I believe this court could conduct in-camera review if it deemed it necessary in its own discretion.

[00:19:46] Speaker 02:
And we wouldn't have to find that the district court abused his discretion.

[00:19:49] Speaker 02:
I think it would be unusual.

[00:19:51] Speaker 02:
I hear you.

[00:19:52] Speaker 02:
For the court to do that.

[00:19:53] Speaker 04:
I hear you.

[00:19:54] Speaker 04:
So the agency has produced everything it has.

[00:19:59] Speaker 04:
It said what search terms it used.

[00:20:02] Speaker 04:
I think one of the concerns for the requesters is

[00:20:07] Speaker 04:
and that makes it harder for them to just accept at face value the five forms is the back and forth and how hard it was for them to get this information.

[00:20:19] Speaker 04:
That they requested it, they got a final determination saying, no, we've got nothing.

[00:20:26] Speaker 04:
Then they,

[00:20:30] Speaker 04:
I believe they appealed, and they got a determination, again, we have nothing, and then, I probably have this wrong, but you know what I'm referring to, that there, then there was, oh no, actually that was sent to you in error, we are looking, and then, no, actually, we were right the first time, we've got nothing, and then they filed suit, and, you know,

[00:20:57] Speaker 04:
and move for summary judgment, and the Justice Department says, wow, why are you so pushy?

[00:21:03] Speaker 04:
You haven't even called us and asked whether we are still processing.

[00:21:06] Speaker 04:
And their position, I think, is it's been quite a while, and you've already told us you've got nothing.

[00:21:12] Speaker 04:
You mean you're still processing.

[00:21:14] Speaker 04:
So I think there's some concern

[00:21:16] Speaker 04:
on the requester's part with whether the search was done in full compliance with the agency's obligations.

[00:21:26] Speaker 04:
And so they're concerned that that might be reflected in these documents.

[00:21:31] Speaker 02:
Well, Your Honor, the adequacy of the search was decided below, and it's been summarily affirmed by this court that the search was adequate.

[00:21:39] Speaker 02:
So regardless of their concerns, that does not inform the decision about how we go about evaluating the delineated process privilege.

[00:21:46] Speaker 04:
The purpose for which... But you don't dispute that if something were disclosed as a result of this lingering issue, that that might be subject to

[00:21:58] Speaker 04:
reconsideration, the adequacy, if the search is not a closed book, if it were shown that there were reasons to think it wasn't adequate.

[00:22:06] Speaker 02:
Right, but that would be talking about the completed search.

[00:22:08] Speaker 02:
What we're talking about here are documents that reflect an interim step in conducting that completed search.

[00:22:14] Speaker 02:
And these documents do not report to encompass the entirety of the search that the agency completed in regards to these FOIA requests.

[00:22:25] Speaker 04:
The last one would, no?

[00:22:27] Speaker 02:
Not necessarily, Your Honor.

[00:22:28] Speaker 02:
I mean, there could be discussions outside of these tasking forms that were conducted that were not recorded and subject to the FOIA.

[00:22:37] Speaker 02:
Indeed, we know that they consulted with the CIA's chief historian about where documents might be.

[00:22:45] Speaker 02:
And so while the appellant may have concerns about the search, this court has decided it.

[00:22:52] Speaker 02:
And these documents are unlikely to shed any light on that.

[00:22:56] Speaker 02:
And in any regard, this court has held and the Supreme Court has suggested that the purpose for which a requester seeks documents is irrelevant in determining the applicability of any given FOIA exemption.

[00:23:12] Speaker 04:
court has no further questions, the agency would request this court to affirm.

[00:23:24] Speaker 04:
Thank you.

[00:23:27] Speaker 04:
information such that if factual information were revealed, it would impermissibly expose the agency's deliberative process.

[00:23:36] Speaker 02:
Right, and that goes to, I mean, this is material that was provided to the agency decision maker, and that agency decision maker had to consider in determining whether or not a given search was adequate or not.

[00:23:49] Speaker 02:
And that would, so providing any of the detail that was sent to that decision maker would necessarily

[00:23:55] Speaker 02:
invade the deliberative process here.

[00:23:58] Speaker 03:
You seem to be coming close to arguing that if something is in a pre-decisional document, it's, if so facto, not segregable.

[00:24:11] Speaker 02:
I don't mean to suggest that, Your Honor.

[00:24:13] Speaker 02:
I mean to suggest only that the raw material, discussion that forms the raw material by which an agency makes a decision, qualifies for the privilege.

[00:24:22] Speaker 02:
And that was held in need, in need data.

[00:24:25] Speaker 02:
And I would also like to emphasize before I yield the rest of my time that this court found nearly identical types of documents subject to the privilege in Whitaker and found that those documents were properly withheld in our exemption fund.

[00:24:42] Speaker 04:
Even there, though, we had a little more to go on in terms of the declaration.

[00:24:45] Speaker 04:
And what I'm curious about is why more description couldn't have been provided because if we're

[00:24:53] Speaker 04:
making a decision that's gonna be a precedent and it approves this level of rationale, of explanation, it's really unclear what, how we have subtraction to do review in any case.

[00:25:07] Speaker 04:
Other than just say, you've mentioned the privilege and it's in a, something that makes sense that it was prior to a decision and it just, it's not what I read the precedence to approve.

[00:25:23] Speaker 04:
They're pretty rigorous about not casting an invisibility cloak over the entire process.

[00:25:31] Speaker 02:
Understood, Your Honor.

[00:25:31] Speaker 02:
I would just submit that taken together, all of the documents, the records themselves, the interactive form, the context in which they were requested, the bond index, and the declaration submitted by the agency, taken together, they satisfy the burden under Exemption 5.

[00:25:48] Speaker 04:
Thank you.

[00:25:49] Speaker 02:
Thank you, Your Honor.

[00:25:51] Speaker 04:
Mr. Alcorn will give you two minutes in rebuttal.

[00:25:53] Speaker 00:
Thank you, Your Honor.

[00:25:57] Speaker 00:
Our concern is that the five documents that are withheld have a considerable amount of material in them and we were told in that administrative process that there were no records that were located.

[00:26:08] Speaker 00:
Our responses that we did get were no records responses.

[00:26:12] Speaker 00:
We did have this back and forth where they withdrew one of their responses and said it was

[00:26:19] Speaker 00:
One of the affidavits and declarations in the records says it was an administrative error, and we've sought explanation of what was the administrative error, and we've gotten really no substantive explanation.

[00:26:32] Speaker 00:
So the concern is the amount of withheld information does not seem to comport with a no records response, and that there must be something else going on.

[00:26:44] Speaker 01:
But Mr. Alcorn, does that argument go to the adequacy of the search, which is a question that's foreclosed by our earlier summary affirmance?

[00:26:53] Speaker 00:
Well, it potentially does, but the government, even in their brief, says that if there's new evidence, new evidence is a reason to reopen a prior decision in the same case under law of the case.

[00:27:06] Speaker 00:
So it's not foreclosed forever.

[00:27:09] Speaker 00:
And we would contend that if

[00:27:12] Speaker 00:
new information comes out as a result of these redactions that indicates that the search was not adequate, that we would pursue that matter as a matter of new evidence affecting the prior decision.

[00:27:29] Speaker 04:
Thank you.

[00:27:29] Speaker 00:
Thank you, Your Honor.

[00:27:30] Speaker 04:
The case is submitted, and I just wanted to note that the Court appreciates that Mr. Lesar, despite serious health implications, was able to be in court today.