[00:01:07] Speaker 00:
Morning, Mr. Prins.

[00:01:08] Speaker 04:
Good morning.

[00:01:08] Speaker 04:
May it please the Court.

[00:01:09] Speaker 04:
My name is Andrew Prins, and I represent the Institute for Justice.

[00:01:13] Speaker 04:
Through the Freedom of Information Act, the Institute requested all records in the agency's Abtrak database.

[00:01:21] Speaker 04:
The Institute framed its request in that particular way because multiple agency and Department of Treasury documents refer to Abtrak as a database.

[00:01:31] Speaker 04:
And it's well established that FOIA requesters can request the contents of agency databases.

[00:01:36] Speaker 01:
In response, I mean, I got an offer to a very important topic, obviously.

[00:01:42] Speaker 01:
Yes, sir.

[00:01:44] Speaker 01:
At least the IRS manual simultaneously describes it as a database and a web-based application.

[00:01:54] Speaker 01:
Now, I haven't seen anything in the record endeavoring to

[00:02:01] Speaker 01:
to reconcile those propositions, and it may be that there's absolutely no inconsistency between them.

[00:02:06] Speaker 01:
It may be equally a database and a web-based application.

[00:02:10] Speaker 01:
I haven't seen anything that makes them inherently mutually exclusive.

[00:02:16] Speaker 01:
Can you contribute thoughts on that?

[00:02:19] Speaker 04:
Sure.

[00:02:20] Speaker 04:
Just as a factual matter, the declaration says that the system compiles data.

[00:02:25] Speaker 04:
And a system that compiles data you would expect to have in a database.

[00:02:30] Speaker 04:
In the opposition brief at issue here, the agency's lawyers compared AFTRAC to a system like Google.

[00:02:37] Speaker 04:
That's an interesting analogy, because everybody knows that Google, while it has a web-based component to it, also has a database.

[00:02:44] Speaker 04:
Google's not out there.

[00:02:45] Speaker 04:
crawling the web and then in real time giving that information in its search results, it's storing all the information in a database.

[00:02:53] Speaker 04:
So I think the most likely and the best reading of the evidence certainly construed in the light most favorable to us is that AFTRAC has a web component to it and a database that it's pulling that information from.

[00:03:06] Speaker 01:
I think the broader point, Your Honor, is that... How would one tell

[00:03:14] Speaker 01:
whether a record was in the database or in the web-based application and what difference would it make?

[00:03:31] Speaker 04:
So the records are coming from the database even if they're presented by the web-based application.

[00:03:36] Speaker 04:
So I think there's two separate questions.

[00:03:39] Speaker 04:
It's very clear under the eFOIA amendments that the individual data points in the database are record subject to FOIA.

[00:03:47] Speaker 04:
There's a separate question of whether the sort of output of the screen on the web interface is also a record subject to FOIA, which the agency below conceded at least the open-closed report is a record.

[00:04:01] Speaker 04:
subject to FOIA.

[00:04:03] Speaker 04:
All of these sort of questions and distinctions I think just highlight the fact that the agency's declaration was

[00:04:09] Speaker 04:
not specific enough to enable the court or us to properly adjudicate this case.

[00:04:15] Speaker 04:
And on this point, it's simply there's a big gap about the technical characteristics in AFTRAC and whether the database needed to be searched.

[00:04:23] Speaker 04:
I think your opinion, Your Honor, in Ancient Coin Collectors Guild is directly on point on this point.

[00:04:28] Speaker 04:
In that case, the requester had requested certain emails from the Department of State.

[00:04:34] Speaker 04:
and the requester had identified a document on the Department of State's website that said in certain situations, not all situations, but in some situations emails are stored on backup tape as well.

[00:04:46] Speaker 04:
The requester submitted that evidence to the district court before the agency did its declaration, and yet the agency's declaration remained totally silent on it.

[00:04:55] Speaker 04:
What this court said is that was a gap that was too large for the reasonableness of the search to be determined as a matter of law.

[00:05:02] Speaker 04:
Similarly here, the agency, if AFTRAC is not a database that does not have records, that's all the agency needed to say.

[00:05:09] Speaker 04:
But it didn't say that.

[00:05:12] Speaker 04:
To be sure, the agency's lawyers have made an argument that AFTRAC is not a database.

[00:05:17] Speaker 04:
Of course, that's not summary judgment evidence.

[00:05:20] Speaker 04:
And so their argument is that they gave us the next best thing, which is the open closed report.

[00:05:26] Speaker 04:
But that's not the next best thing, because we requested all data in AFTRAC.

[00:05:31] Speaker 04:
And the open closed report, as described by the declarant, is not synonymous with all data in AFTRAC.

[00:05:38] Speaker 04:
The agency admits

[00:05:40] Speaker 04:
The agency admits that AFTRAC does things other than store information about seized assets.

[00:05:46] Speaker 04:
For example, it has statistical and reporting purposes.

[00:05:50] Speaker 04:
That information does not report to be in the open-closed report.

[00:05:53] Speaker 04:
Likewise, the very fact that the open-closed report is described as a standard report means that the system also has other kinds of reports, non-standard reports.

[00:06:04] Speaker 00:
The agency never explains why... Or maybe things other than reports altogether.

[00:06:08] Speaker 04:
Or things reports other than altogether.

[00:06:11] Speaker 04:
They're simply too big of a gap here.

[00:06:15] Speaker 04:
All of that is even compounded by the fact that we put in affirmative evidence below that there was data that was not searched.

[00:06:23] Speaker 00:
I'm sorry, you mentioned there were certain kinds of statistics that you know they're keeping that didn't show up.

[00:06:28] Speaker 00:
Can you say again what those were?

[00:06:29] Speaker 00:
I don't remember seeing that in the record.

[00:06:33] Speaker 04:
Sure.

[00:06:38] Speaker 04:
If you look at Joint Appendix 100, that is Mr. Martin's declaration at Paragraph 6, he says AFTRAC is also used for statistical and reporting purposes.

[00:06:48] Speaker 00:
If you look further in Paragraph 6, it also suggests that AFTRAC tracks... Paragraph 100, Paragraph 6, a web-based application system designed to track assets seized for forfeiture, evidence, and abandonment.

[00:06:59] Speaker 00:
Is that where you are?

[00:07:04] Speaker 00:
Seven says, monitoring assets in inventory and for law enforcement statistical reporting purposes.

[00:07:12] Speaker 00:
And so you're saying the statistics reporting on... Sure.

[00:07:16] Speaker 04:
Exactly.

[00:07:18] Speaker 04:
And also, going back to what you just said, paragraph six talks about assets that are seized for abandonment.

[00:07:24] Speaker 04:
There's no indication that

[00:07:26] Speaker 04:
abandoned assets are included in the open closed report.

[00:07:30] Speaker 04:
So even taking the agency's declaration on its face there's a lot of gaps.

[00:07:34] Speaker 04:
But we went further below because in this case we know that the open closed report does not contain all information about assets and we know that for two reasons.

[00:07:44] Speaker 04:
One, the agency had previously produced to us in 2014 information about assets that had been seized, which, according to Mr. Martin's declaration, should be included in the open and closed report.

[00:07:56] Speaker 04:
And in that previous FOIA production, there were three additional columns that are not present in this report.

[00:08:02] Speaker 04:
And we discussed this.

[00:08:04] Speaker 04:
This FOIA production is a joint appendix 646 and 1003.

[00:08:09] Speaker 04:
And we discussed this at our opening brief at pages 19 through 20.

[00:08:13] Speaker 00:
In addition, the agency... Wait, you're talking about the email back and forth?

[00:08:18] Speaker 00:
That's a separate issue.

[00:08:21] Speaker 04:
Yes, that's correct.

[00:08:22] Speaker 04:
So we have a previous FOIA production in which we know there's additional columns of information about assets, including the state in which the asset has been seized and including the statute that the property owner is alleged to have violated.

[00:08:37] Speaker 04:
Those are not in the open closed report.

[00:08:40] Speaker 04:
The second point, which I think Judge Pillard is what you were alluding to, is the agency's lawyer below, when she produced a sample of the open-closed report to us that listed all the columns, admitted in response to my question, which is in the record as well at Joint Appendix 498, that the open-closed report does not contain all the information extractable from AFRAC.

[00:09:04] Speaker 00:
That wasn't entirely clear how or whether that was resolved, because

[00:09:09] Speaker 00:
it seemed that the question from you was state property was seized at actual forfeiture amount and primary statute, and then the follow-up from Ms.

[00:09:22] Speaker 00:
Payton says primary statute and value are in the report, leaving, I gather, only state out of it, and you say please provide a sample that contains a complete list, and we don't know whether

[00:09:37] Speaker 04:
That was not provided.

[00:09:39] Speaker 00:
That was not provided.

[00:09:40] Speaker 00:
But given that exchange, it sounds like it does include the statute, which was one of the things that you said your prior FOIA

[00:09:48] Speaker 00:
by contrast, showed wasn't included.

[00:09:51] Speaker 00:
Is that not one of the columns?

[00:09:53] Speaker 04:
No, it's not.

[00:09:54] Speaker 04:
Ms.

[00:09:55] Speaker 04:
Payton was conflating.

[00:09:57] Speaker 04:
There is a column in the open-closed report about the statute that was authorizing the agency to engage in the seizure, sort of the remedial authority that the agency has to do the seizure.

[00:10:11] Speaker 04:
But that is different than the statute that the property owner or the target was alleged

[00:10:18] Speaker 04:
to have violated.

[00:10:19] Speaker 02:
That's helpful.

[00:10:22] Speaker 02:
Can you talk a little bit about the seven effort actions and why you think your arguments there have not been forfeited?

[00:10:31] Speaker 04:
So the 7F arguments relate specifically to one column in the open-closed report, the asset description column, which is just a description of the asset that's being seized.

[00:10:43] Speaker 04:
So I will admit to this day, I'm still not exactly sure what the agency is doing with this column.

[00:10:48] Speaker 04:
It originally redacted the entire column under a combination of 7F, which is the life or safety exemption, and 6 and 7C, which are the privacy exemptions.

[00:10:58] Speaker 04:
The district court below held that the agency's justification for using the privacy exemptions was inadequately supported because the agency had conceded that the information was already public.

[00:11:11] Speaker 04:
Not only does its declaration concede that, but its brief conceded it, and the information is public because it is published in a newspaper of general circulation for three weeks after the seizure.

[00:11:23] Speaker 04:
So the district court told the agency to unredact to the extent it's relying on the privacy exemptions or provide a further justification.

[00:11:31] Speaker 04:
This is all after summary judgment briefing has concluded now, and the agency then produced a new version of the report with some asset descriptions revealed, but the rest still redacted, continuing to rely on the privacy exemptions of 7F.

[00:11:46] Speaker 04:
So to this day, I still think the agency is arguing that it can be...

[00:11:50] Speaker 04:
Yes, right.

[00:11:51] Speaker 04:
And so it's both.

[00:11:52] Speaker 04:
I understand the agency to still be relying on both sets of exemptions.

[00:11:56] Speaker 04:
To the extent it's relying on the privacy exemption still, it's invalid for the reason the district court already concluded and the agency hasn't challenged on appeal.

[00:12:04] Speaker 04:
It's public.

[00:12:05] Speaker 04:
Fair enough, we did not challenge the application of Exemption 7F below because the agency's stated rationale for applying 7F was simply that the column may contain a property address.

[00:12:18] Speaker 04:
So the agency should be allowed to assert Exemption 7F to the extent it can, but that just means that the rest of the information in the column needs to be segregated per the agency's statutory obligation and of course the district court's independent obligation to make a segregability finding, which it declined to do here.

[00:12:35] Speaker 04:
It just didn't do it.

[00:12:37] Speaker 04:
And that argument cannot be waived.

[00:12:39] Speaker 04:
It's not waived and cannot be waived.

[00:12:41] Speaker 01:
But you protested promptly when you had reason to believe that they were over-applying 7F.

[00:12:48] Speaker 04:
That's exactly right.

[00:12:49] Speaker 04:
We did lodge an objection to the district court.

[00:12:52] Speaker 04:
If I might, for a minute, just speak on the question of the open investigations.

[00:12:57] Speaker 04:
Here the agency redacted every row in the open-closed report that relates to an open investigation.

[00:13:06] Speaker 04:
Of course, it did so under Exemption 7A, which is the exemption that protects disclosure information that could reasonably be expected to interfere with an enforcement proceeding.

[00:13:17] Speaker 04:
Critically, it categorically redacted.

[00:13:19] Speaker 04:
So every single one of the 22 columns in the open-closed report, it said it could exempt.

[00:13:27] Speaker 04:
But that's a problem because under this court's precedence, categories, if you're going to use categorical exclusions, need to be drawn very narrowly so they're not sweeping in a bunch of information that isn't unprotected.

[00:13:39] Speaker 04:
And here, you know, the agency's declaration in providing the justification for the categorical withholding didn't even describe

[00:13:46] Speaker 04:
why most of the columns could interfere with an enforcement proceeding.

[00:13:50] Speaker 04:
For example, they're withholding seizure type, which is just a description of whether a seizure is administrative, criminal, or civil.

[00:14:00] Speaker 04:
How could that interfere with an enforcement proceeding?

[00:14:02] Speaker 04:
And I'm not trying to be too cute, but the agency is also withholding the asset status entry, which is itself just an indication of whether the asset is associated with an open or closed investigation, which is the very information that its assertion, categorical assertion of 7A already reveals.

[00:14:20] Speaker 04:
So the point here is not that none of this information could be withheld under 7A.

[00:14:24] Speaker 04:
It's that the agency has just done, painted with too broad of a brush here, and it needs to go back for the agency.

[00:14:30] Speaker 04:
to properly support it or release the rest of the information.

[00:14:34] Speaker 04:
And if there's no further questions, I'll reserve them.

[00:14:36] Speaker 01:
There might be questions on the bottle.

[00:14:38] Speaker 04:
Okay.

[00:14:39] Speaker 04:
Thank you, Your Honor.

[00:14:51] Speaker 00:
Good morning, Mr. Rennie.

[00:14:52] Speaker 03:
Good morning, Your Honors.

[00:14:54] Speaker 03:
Appearing today for the Internal Revenue Service.

[00:14:57] Speaker 03:
Your Honor, AFTRAC is the IRS's criminal investigation division's asset forfeiture tracking and retrieval system.

[00:15:05] Speaker 03:
In other words, it's a law enforcement computer system.

[00:15:08] Speaker 03:
The FOIA request in this case is based on a fundamental misconception of how that system works.

[00:15:14] Speaker 03:
Nonetheless, the IRS liberally construed that request and responded by producing the most comprehensive standard report that it uses that system to generate.

[00:15:24] Speaker 00:
Are there non-standard reports or other records in the database?

[00:15:30] Speaker 03:
It might theoretically be possible that it could generate non-standard reports and I believe that is what my colleague was saying in the email that was discussed earlier.

[00:15:40] Speaker 03:
In other words,

[00:15:43] Speaker 03:
The declaration explains that it pulls information from other systems together for the purposes of tracking these seizures.

[00:15:52] Speaker 03:
And that's what appears in something like the open-closed report.

[00:15:56] Speaker 03:
There might be additional

[00:15:59] Speaker 03:
fields of information that are in those other systems that in theory one could use AFTRAC to pull into a non-standard report.

[00:16:09] Speaker 00:
So it keeps nothing, it stores nothing, it's simply a tool, like a tunnel into other computer systems where it can suck together when needed information.

[00:16:25] Speaker 03:
We have construed their requests broadly such that our position has been that it contains standard reports because those can be quickly generated through a drop-down menu.

[00:16:39] Speaker 03:
And I think as the declaration and the Internal Revenue Manual explained, it contains information to the extent that it has computer code that allows it to pull information from these other systems into a standard report.

[00:16:56] Speaker 01:
Does the distinction the IRS is relying on turn on whether the information is in a particular computer or as opposed to being distributed across various computers or what?

[00:17:17] Speaker 01:
Your Honor, I guess our distinction is... You do call it a database.

[00:17:23] Speaker 01:
in the manual.

[00:17:24] Speaker 01:
It's understandable that people would think that that characterization meant that it was a database, which sounds like something that contains data.

[00:17:36] Speaker 03:
I understand, Your Honor, but that's an imprecise term.

[00:17:38] Speaker 03:
It's not a statutorily defined term, which is what they are treating it as the equivalent of.

[00:17:44] Speaker 01:
In their minds it's... Won't you help us figuring out the line that you're trying to draw between

[00:17:52] Speaker 01:
databases that seem, not to say automatically, but pretty automatically to be understood as containing records to what's going on here.

[00:18:06] Speaker 03:
Your Honor, our point is that a database is something that's susceptible to different definitions and we tried to point this out in our brief and we pointed out that there are a number of definitions even among experts in the information technology field that it can mean a number of different things.

[00:18:25] Speaker 03:
What they want it to mean is that it's the equivalent of a filing cap and our point is

[00:18:33] Speaker 03:
That's not what it is.

[00:18:34] Speaker 03:
It's not what they think it is.

[00:18:36] Speaker 01:
But from what you've said, you seem to be saying that it's different from a filing cabinet, brickless, electronic, not paper, but also that when you go into the room, you pull out a drawer, that's only part of what you get through this.

[00:18:56] Speaker 01:
Is that, have I got the distinction you're resting on there?

[00:19:00] Speaker 03:
I may not be fully understanding you.

[00:19:04] Speaker 01:
The question is, what is it in your view that makes information that a person can get by an IRS employee, can get by using AFTRAC, how is that not a record?

[00:19:28] Speaker 03:
Well, we did interpret it as being a record.

[00:19:32] Speaker 03:
That's why we produced the open-closed report here, because that is what the agency uses it to do.

[00:19:39] Speaker 01:
Yeah, I mean, you sort of take the position as a matter of charity.

[00:19:45] Speaker 01:
You repeated this report, which is pretty much, by definition, just an artifact, not the comprehensive thing itself.

[00:19:56] Speaker 01:
as a record.

[00:19:58] Speaker 01:
But the question is why aren't the data from which it is drawn and data that is not used for creating such reports, why aren't those data records?

[00:20:14] Speaker 03:
Well I think they have

[00:20:16] Speaker 03:
They originally argued that we should have construed their request as reaching the sources that Aftrak pulls information from.

[00:20:24] Speaker 03:
I believe in their reply brief, they explicitly abandoned that argument, Your Honor.

[00:20:30] Speaker 03:
And frankly, it is their burden as the requester to adequately identify and reasonably describe the records sought so that the agent... Well, that's asking quite a lot.

[00:20:43] Speaker 01:
You have a bunch of computers completely under the control of the IRS, and you're saying that they've, without discovery, they have got to explain how it is that they're organized in a way that rejects or butts the IRS's claim that these aren't subject to the request.

[00:21:09] Speaker 03:
Well, Your Honor, their remedy is to make a new request upon realizing that this isn't what they thought it was.

[00:21:16] Speaker 01:
Well, how would you graph that request for them?

[00:21:29] Speaker 01:
I mean, is the only difference you would make, instead of contained in, it would be

[00:21:38] Speaker 01:
contained in and or accessible through?

[00:21:45] Speaker 03:
Part of the problem, Your Honor, is I'm not entirely sure what it is they're after, which has never been clear to me.

[00:21:51] Speaker 01:
I think they want all the FOIA-eligible data in Aftrak.

[00:21:56] Speaker 03:
They want everything under the sun, which is extremely important.

[00:21:59] Speaker 00:
Well, yes.

[00:22:00] Speaker 00:
I'm a little confused by even what you said today.

[00:22:05] Speaker 00:
You've described it as if it's sort of a pipeline system with an empty cistern in information, a report in IRS that nothing lives at the IRS, but that the IRS can pull when it needs information.

[00:22:22] Speaker 00:
And that's, I assume, where the Google analogy comes from.

[00:22:24] Speaker 00:
I don't need to have Wikipedia.

[00:22:27] Speaker 00:
on my computer, when I want to look something up, I go find it, so too with Westlaw, so too with, you know.

[00:22:33] Speaker 03:
To be clear, this is information that's all within the IRS, it's not in AFTRAC is our point.

[00:22:40] Speaker 00:
Okay, okay, so in the IRS it's not in AFTRAC.

[00:22:44] Speaker 00:
So when employees use AFTRAC, as you've described, to input information, that doesn't actually, again, they're just throwing it back down those pipes to the

[00:22:57] Speaker 00:
other electronic filing cabinets where it should live.

[00:23:02] Speaker 00:
It's so abstract, it's just really almost like I'm gonna really do a hatchet job on the terminology, but it's some kind of an interface or program or window into other systems.

[00:23:16] Speaker 03:
That's my understanding, Your Honor, and presumably you could save whatever report it is you generated from the system.

[00:23:25] Speaker 03:
Whether it be something.

[00:23:26] Speaker 01:
Is the difference we're talking about, sticking with the filing cabinet analogy, a database that is the equivalent of a bunch of filing cabinets in one room in Washington DC versus a collection of rooms

[00:23:54] Speaker 01:
with computers all over the United States having data and presumably properly requested records that are all accessible from one computer terminal.

[00:24:17] Speaker 01:
I think I probably botched that description.

[00:24:21] Speaker 00:
I think, and you'll correct me if I'm wrong, that the question is, are the other sites within the IRS that someone making this open and closed report is drawing from, are those part of AFTRAC or they have another name?

[00:24:43] Speaker 03:
Your Honor, I believe those have different names.

[00:24:47] Speaker 00:
Other names.

[00:24:47] Speaker 03:
And they're resident in different offices.

[00:24:50] Speaker 00:
And they're not considered part of the AFTRAC system.

[00:24:53] Speaker 00:
I don't think that's in the record.

[00:24:55] Speaker 00:
I don't see that in the Martin Declaration.

[00:24:57] Speaker 03:
I see I'm out of time.

[00:24:58] Speaker 03:
May I answer, Your Honor?

[00:24:59] Speaker 00:
Absolutely.

[00:25:00] Speaker 00:
You can.

[00:25:00] Speaker 00:
As long as we have questions, you can.

[00:25:04] Speaker 03:
I believe that the Internal Revenue Manual at some point refers to field office systems.

[00:25:12] Speaker 03:
my understanding is that's what it's pulling information from.

[00:25:15] Speaker 01:
I'm sorry, I didn't hear that.

[00:25:17] Speaker 03:
I believe the Internal Revenue Manual refers at some point to field office systems, separate systems, and my understanding is that's what it's pulling information from.

[00:25:29] Speaker 03:
I see.

[00:25:30] Speaker 02:
Well, some of these questions about what AFTRAC is precisely be, is that part of what's in a new case that IJ has brought with some new FOIA requests?

[00:25:42] Speaker 03:
I believe so, Your Honor.

[00:25:43] Speaker 02:
I believe that request is... Does that affect our consideration of these issues?

[00:25:50] Speaker 03:
It isn't relevant to the disposition of the case.

[00:25:53] Speaker 03:
It's more for the Court's information.

[00:25:59] Speaker 00:
If Your Honors have no further questions, we will... What is your response to the various specific ways that A,

[00:26:08] Speaker 00:
The requesters have said they have indicia that the open and closed report is not comprehensive.

[00:26:16] Speaker 00:
They've identified, you know, columns and think kinds of functions that the office says it uses abstract for that

[00:26:25] Speaker 00:
that would generate information that's not reflected about criminal investigations or statistics about criminal activity or the statute that justified the seizure in the first place or the state where it took place.

[00:26:38] Speaker 00:
I may be misremembering, but there were a few items.

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

[00:26:43] Speaker 03:
The statistical and reporting point, Your Honor, I believe that's addressed in Mr. Martin's declaration and also referred to in the Internal Revenue Manual.

[00:26:55] Speaker 03:
And what it says is that ATTRAC is used for monitoring assets and inventory and for law enforcement statistical and reporting purposes.

[00:27:05] Speaker 03:
It's a use for the system.

[00:27:07] Speaker 03:
It's not saying there's separate statistical information in the system.

[00:27:12] Speaker 00:
So your position would be that it draws and organizes the very information that's on the open and closed report or a subset thereof in a way that would inform

[00:27:25] Speaker 00:
or would fulfill reporting duties of the IRS to various other entities.

[00:27:29] Speaker 00:
And so it doesn't, to you, indicate that there's any other information that isn't included in the open and closed report?

[00:27:38] Speaker 03:
Correct.

[00:27:38] Speaker 03:
In other words, you could determine how many open cases are in this office versus that office, that kind of thing.

[00:27:46] Speaker 00:
And what about the rows and columns in the overuse of 7.5?

[00:27:52] Speaker 03:
I believe, Your Honor, that is a reference to a prior FOIA request that was made to the IRS, and I don't believe that request specifically referenced AFTRAC.

[00:28:01] Speaker 03:
It was a request for information concerning seizures regarding structuring violations and

[00:28:12] Speaker 03:
it was a much more specific request about the information that they were looking for.

[00:28:18] Speaker 03:
So whoever was putting together the response just decided the easiest way to deal with it was to pull together that information and provide it to them.

[00:28:29] Speaker 03:
And I don't know specifically that may be a field that is theoretically extractable through AFTRAC, but I don't know that specifically.

[00:28:40] Speaker 00:
And in terms of the assertion of Exemption 7A to redact entire rows related to open investigations, we have very clear law on the need to segregate and only refuse to disclose that which is really supported by the exemption.

[00:29:04] Speaker 03:
Correct, Your Honor, yes.

[00:29:05] Speaker 03:
And I understand that.

[00:29:10] Speaker 03:
Part of the issue here is that when we talk about categorical redactions in the Campbell case is probably the lead case on the subject, the court's main concern there is that you would have

[00:29:32] Speaker 03:
random documents that might find their way into an investigation file that the agency then might serve.

[00:29:39] Speaker 03:
Well, this is all in the file, therefore you never get to find out what was in there and what was redacted.

[00:29:45] Speaker 03:
This information, on the other hand, is not some randomly compiled file.

[00:29:50] Speaker 03:
It is specifically put together by the agency for the purpose of tracking and monitoring these investigations.

[00:29:57] Speaker 03:
It's information that the agency deemed to be important about their investigations.

[00:30:03] Speaker 03:
Regarding segregation specifically,

[00:30:07] Speaker 03:
As we pointed out, there is a presumption of compliance, and that's particularly true, as stated under the Hodge case, when you're dealing with information of a sensitive nature, such as investigatory information.

[00:30:21] Speaker 03:
Here, we're talking about the report itself.

[00:30:25] Speaker 03:
It's 22 columns, approximately 27,000 rows.

[00:30:28] Speaker 03:
That's about 600,000 total cells.

[00:30:35] Speaker 03:
At some point, this becomes unreasonably burdensome, which is something that this court accepted in the Mead data case at footnote 55, essentially said, an agency need not commit significant time and resources to the separation of disjointed words, phrases, or even sentences when taken separately or together.

[00:30:55] Speaker 03:
They have minimal or no information content.

[00:30:58] Speaker 00:
Without having done that, I'm curious what Mr. Martin was doing the many months that he was working on this.

[00:31:06] Speaker 00:
It seems like it was just much more automatic, oh, that's open, open, open, and that there wasn't any actual case-specific or row-specific determination.

[00:31:18] Speaker 03:
There are, Your Honor.

[00:31:20] Speaker 03:
For example, in the asset description column,

[00:31:25] Speaker 03:
pointed out that they claim that it must be generic because various examples they point out within that column are generic, but that indicates that he went through that and segregated out the releasable information.

[00:31:42] Speaker 03:
And additionally, we did release

[00:31:46] Speaker 03:
a fair amount of information after the district court issued its initial order.

[00:31:51] Speaker 03:
It essentially gave us the choice of submitting an additional declaration or providing additional information.

[00:32:00] Speaker 03:
We decided to release the organization abstract number asset description information as well as the program area column, which wasn't even implicated by that.

[00:32:11] Speaker 03:
And just to give you another example,

[00:32:17] Speaker 03:
Take their example, which is page 26 of their reply group.

[00:32:22] Speaker 03:
So they suggest that if the asset description column says 100 gold bars stored at 15 Main Street, we should have gone into there and redacted 15 Main Street.

[00:32:40] Speaker 03:
The problem with that is 100 gold bars is also very specific information about this particular investigation.

[00:32:48] Speaker 03:
Someone is going to be able to look at that and figure out what investigation that was.

[00:32:54] Speaker 03:
And so once you redact that, you're left with something like stored at, which is just a meaningless word, salad.

[00:33:01] Speaker 03:
So we would submit that our redactions complied with this court's standards.

[00:33:08] Speaker 01:
The 15 gold bars, that's an example of the sort of thing that, sort of issue that might be posed if it was actually a cell by cell consideration.

[00:33:21] Speaker 01:
You're not saying Mr. Martin went through all the cells to see, to exclude gold bar cases and others with fingerprints as it were as to what was involved.

[00:33:38] Speaker 01:
to what the specific thing was.

[00:33:42] Speaker 03:
He went through the report, Your Honor.

[00:33:45] Speaker 03:
I wasn't there.

[00:33:45] Speaker 03:
I can't tell you specifically.

[00:33:47] Speaker 00:
But there's no, within the row, there's been no determination whether, for example, in one case if it was a kilo of cocaine, that would probably be not something that would tip off, that that was the one that was being held at

[00:34:07] Speaker 00:
or that was seized at 15 Main Street in Lincoln, Nebraska, it could just as well be the one that was seized on Palm Drive in Miami.

[00:34:16] Speaker 00:
So the question I think is, were those judgments ever made with respect to those rows, or was it just open investigation?

[00:34:28] Speaker 03:
Those rows are all redacted, Your Honor.

[00:34:34] Speaker 03:
Part of the problem with this type of analysis is, and the district court itself alluded to it, is if we knew what they specifically wanted, we could have probably gone through there and tried to pull that information out without revealing as a whole what the particular investigation was into.

[00:34:57] Speaker 03:
But without knowing that, it becomes

[00:35:02] Speaker 03:
like a shifting puzzle where we could reveal one piece of information, but once it's combined with other information, it begins to add up to the point where it basically reveals what investigation we're talking about.

[00:35:20] Speaker 00:
And those are the kinds of explanations that we need in an affidavit in order to be able to review the rationale.

[00:35:27] Speaker 01:
I understand your question.

[00:35:30] Speaker 01:
I just have a question about

[00:35:32] Speaker 01:
part of the Martin affidavit, and this is paragraph 40, page 108 of the Joint Appendix.

[00:35:45] Speaker 01:
Basically, that first sentence is saying, what is required to be in the public notice?

[00:35:50] Speaker 01:
So it relates very closely to this question of what is essentially exempt from exemptions because it has already been publicly disclosed.

[00:36:03] Speaker 01:
Now, it starts out somewhat mysteriously.

[00:36:07] Speaker 01:
The information redacted from most of columns, I take it as most columns, pursuant to 6 and 7C,

[00:36:17] Speaker 01:
Now let's skip the parenthesis for a moment.

[00:36:19] Speaker 01:
It's required to be included in the public notice.

[00:36:22] Speaker 01:
Okay.

[00:36:23] Speaker 01:
And go back to the parenthesis.

[00:36:27] Speaker 01:
All the lead agent, program area, and CCATS number.

[00:36:31] Speaker 01:
So it seems to be the natural, possibly not exclusively possible reading of this is that the categories in the parenthesis

[00:36:46] Speaker 01:
are the only exceptions so that the initial clause would read the information redacted from the columns, from columns pursuant to six and seven C, then the parenthetical, right?

[00:37:05] Speaker 01:
Is that so?

[00:37:05] Speaker 01:
So that the most of is not adding anything to the proposition Mr. Martin is asserting?

[00:37:18] Speaker 01:
I'm not sure if I'm following your question, Your Honor.

[00:37:21] Speaker 01:
Well, I'll tell you what that first sentence means.

[00:37:25] Speaker 01:
And one construction, which I've offered you, seems to me sort of obvious.

[00:37:30] Speaker 01:
But we deal with ambiguities of language all the time here.

[00:37:36] Speaker 01:
And so maybe something else is meant.

[00:37:40] Speaker 01:
I believe you're correct, Your Honor.

[00:37:42] Speaker 01:
That's my understanding.

[00:37:44] Speaker 01:
You can really strike the most of

[00:37:46] Speaker 01:
clause and rely on the parenthesis.

[00:37:53] Speaker 03:
In other words, those are the ones that are not required to be included?

[00:37:57] Speaker 03:
Yes.

[00:37:58] Speaker 03:
Although I believe there is also another declaration or perhaps it was the notice of compliance submitted later that indicated that there might have been one or more other columns that should have been included in that parenthesis.

[00:38:17] Speaker 00:
So you're not sure it's fair to read it as pursuant to Exemption 6 and 7C, all but the lead agent, programmer, and CCAS numbers required to be included in the public notice, or?

[00:38:28] Speaker 01:
In other words, you're saying there might maybe some other qualifying language elsewhere.

[00:38:32] Speaker 03:
Essentially that there may be one or two other columns that should have been included in that group.

[00:38:38] Speaker 03:
That's all.

[00:38:39] Speaker 01:
There's no intended mystery revealed in the word most of, the words most of.

[00:38:48] Speaker 01:
I did not read it that way.

[00:38:58] Speaker 00:
Thank you, Mr. Rennie.

[00:38:59] Speaker 03:
Thank you, Your Honors.

[00:39:08] Speaker 04:
Thank you.

[00:39:08] Speaker 04:
If I might, I might just like to make a couple of points.

[00:39:11] Speaker 04:
This court's precedents require detail, and as Judge Williams, you pointed out, FOIA requesters typically can't get discovery, and the summary judgment standard is that all this evidence needs to be construed in the light most favorable to us.

[00:39:25] Speaker 04:
So all of these ambiguities we are discussing seem to me to require reversal as a starting point.

[00:39:31] Speaker 04:
Our request was

[00:39:32] Speaker 04:
as specific as it could reasonably be expected to be, given how the agency and the department that the agency's in have described the system that we were trying to obtain the records from.

[00:39:44] Speaker 04:
Judge Rao, you asked about a subsequent FOIA request that we submitted.

[00:39:48] Speaker 04:
When the agency started claiming that AFTRAC wasn't a database, we submitted a FOIA request asking for documents describing the technical characteristics of AFTRAC.

[00:39:59] Speaker 04:
Perhaps unsurprisingly, the agency's response was 17 pages of fully redacted information, not a single line in the information revealed.

[00:40:07] Speaker 04:
So I don't know what that says, but we did what we could.

[00:40:12] Speaker 04:
Another point is that even if you accepted the agency's characterization that is... That came in after the close of briefing here?

[00:40:21] Speaker 01:
I think... No, it didn't, it didn't.

[00:40:23] Speaker 01:
Before briefing.

[00:40:25] Speaker 01:
But anyway, it's certainly...

[00:40:27] Speaker 01:
Yes.

[00:40:28] Speaker 01:
It's not technically before us.

[00:40:30] Speaker 04:
No, no, but the whole existence of the subsequent FOIA request itself is not really relevant given the lack of specificity in the declaration.

[00:40:39] Speaker 04:
No, I take your point.

[00:40:39] Speaker 04:
Even if you were to accept what the agency's lawyers say was their reasonable characterization of our request as one for reports, which again, the declarant didn't say.

[00:40:49] Speaker 04:
But even if you accept that, there's no reason to believe that the production of the single open-closed report was reasonable when we know there's other reports.

[00:40:58] Speaker 04:
If you look at Joint Appendix 234, this is also part of the Internal Revenue Service Manual, it is instructing agents to consider the various reports in AFTRAC.

[00:41:08] Speaker 04:
So there's obviously other reports, and I don't even hear agencies counsel to be denying that when you were asking him.

[00:41:16] Speaker 00:
Well, so if I have an electronic medical record system that has the ability to pull the data that I put in about my patients, I can do a report on everyone who's gotten a flu shot.

[00:41:32] Speaker 00:
I can do a report on everyone who's gotten any vaccination.

[00:41:34] Speaker 00:
I can do a report on all my patients under 18, all my patients under 18 who smoke.

[00:41:40] Speaker 00:
Then there would be drop downs or there would be abilities to make reports that would be

[00:41:45] Speaker 00:
really perhaps infinite.

[00:41:48] Speaker 00:
And if that's what we have here and the IRS has said, why don't we do the biggest report that we can do that has everybody under 18, whether they smoke, what shot they've gotten, and everybody over 18 too with all that.

[00:42:07] Speaker 00:
then why isn't that fully responsive?

[00:42:09] Speaker 00:
What else are you suspecting is in there?

[00:42:12] Speaker 04:
So let's assume for the minute that the agency described all that in its declaration, which is what it would have needed to do.

[00:42:19] Speaker 04:
So if it did that, I agree that it is possible that if there was one report which contained the most information you could ever possibly get,

[00:42:27] Speaker 04:
maybe that would be enough, but here the agency doesn't even say that it was doing that.

[00:42:32] Speaker 04:
It says that the open and closed report is the most information about seized assets you could possibly get, but we know that as I mentioned.

[00:42:42] Speaker 01:
Does it go so far as to say that?

[00:42:43] Speaker 01:
I thought it said the most that is disclosed in any report.

[00:42:48] Speaker 01:
Yes, that's standard.

[00:42:51] Speaker 04:
In any standard report.

[00:42:53] Speaker 04:
I take your point, Judge Pillar, that there are some technical characteristics of a reporting system where you could get into a scenario like that, but there's just simply no evidence before this Court that would allow it to conclude that what the agency actually did here was reasonable.

[00:43:10] Speaker 04:
Opposing counsel mentioned something about if they were to segregate out the information, it would be unreasonably burdensome.

[00:43:17] Speaker 04:
Of course, it's also the agency's burden to establish that.

[00:43:20] Speaker 04:
It didn't argue that below.

[00:43:21] Speaker 04:
It's declared it didn't establish the necessary factual predicate for that, so I don't think that argument works.

[00:43:31] Speaker 04:
Judge Williams, you were asking about the situation of gold bars appearing in the asset description column.

[00:43:37] Speaker 04:
Again, I just want to emphasize the information in the asset description column is already public.

[00:43:42] Speaker 04:
So the fact that 100 gold bars might tip, reveal a very specific type of investigation, it's already revealed.

[00:43:51] Speaker 04:
It's in the newspapers of general circulation.

[00:43:54] Speaker 04:
So again, I don't think that argument works.

[00:43:57] Speaker 00:
Yeah, but it puts us in mind of the cases at Jones, the GPS case, where it's one thing to have it in one newspaper in Des Moines when somebody's looking for it.

[00:44:06] Speaker 00:
It's another thing to have it always and everywhere for somebody who says, I'm looking for houses to rob where I might find more gold bars.

[00:44:16] Speaker 00:
Well, I guess that's water under the bridge because the district judge said, okay, if it's public, then you can't assert.

[00:44:22] Speaker 04:
Which was not challenged on appeal.

[00:44:24] Speaker 04:
And more importantly, it would be particularly unfair to adopt that interpretation here because below, the agency tried to use the fact it was public against disclosure, right?

[00:44:34] Speaker 04:
It was trying to turn around the other way.

[00:44:36] Speaker 04:
The last point I'll just make is there was a question about what the supplemental declaration said about information not being public.

[00:44:42] Speaker 04:
What that declaration said is the investigation number is not released in the newspapers.

[00:44:48] Speaker 04:
And if there's no more questions, we'll rest on our briefs for the remainder.

[00:44:51] Speaker 00:
Thank you.

[00:44:51] Speaker 00:
Thank you very much.