[00:00:02] Speaker 00:
Case number 18 is 5302, Kay Kine at L, Appellants versus United States Department of Homeland Security.

[00:00:10] Speaker 00:
Mr. Cleveland for the Appellants, Mr. Glover for the Appellate.

[00:00:18] Speaker 05:
May it please the Court, I am David Cleveland, Counsel for Kay Kine and Catholic Charities.

[00:00:23] Speaker 05:
I'd like to reserve two minutes of my time for rebuttal.

[00:00:27] Speaker 05:
Ms.

[00:00:27] Speaker 05:
Kay Kine made a very small, short request, just for four items.

[00:00:33] Speaker 05:
In response, the DHS found eight pages.

[00:00:36] Speaker 05:
They counted them out, and then they put them aside and said, we are withholding these pages in full.

[00:00:43] Speaker 05:
We did not tell K-Kind what the pages were.

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And DHS found three more pages.

[00:00:48] Speaker 05:
They counted them out and put them together and said, we're sending these unknown pages, unknown to K-Kind, to another agency.

[00:00:57] Speaker 05:
They've already done the work.

[00:00:59] Speaker 05:
Why can't they tell K-Kind immediately

[00:01:02] Speaker 05:
just what the statute says.

[00:01:04] Speaker 05:
The statute says immediately tell the requester the reasons why you're not going to hand over the document.

[00:01:12] Speaker 03:
Mr. Cleveland, one of the issues that we have to satisfy ourselves about before reaching that is whether you've exhausted by taking an administrative appeal.

[00:01:23] Speaker 03:
And if you haven't, then all the merit of your argument is not really before us.

[00:01:28] Speaker 03:
So can you address the question about exhaustion?

[00:01:31] Speaker 05:
Yes, Your Honor.

[00:01:32] Speaker 05:
As a general principle, we want to exhaust administrative remedies before going to court.

[00:01:37] Speaker 05:
In this case, the purpose of administrative appeal is to get the documents.

[00:01:42] Speaker 05:
We're not seeking the documents right now.

[00:01:44] Speaker 05:
We're challenging the initial response.

[00:01:46] Speaker 05:
If we had filed an administrative appeal, we would have destroyed our standing to challenge the initial response.

[00:01:54] Speaker 03:
I'm not entirely sure why that's your position.

[00:01:59] Speaker 03:
Because Catholic charities, presumably, if this had gone through and been resolved by an administrative appeal, but you thought you still had a meritorious claim on the failure to produce more documents and or information prior to the administrative appeal, couldn't you have raised a policy or practice claim in that posture?

[00:02:23] Speaker 03:
You would still, as Catholic charities, which repeatedly is in this position,

[00:02:29] Speaker 03:
its standing would not have been destroyed, or am I missing something?

[00:02:33] Speaker 05:
Well, yes and no, Your Honor.

[00:02:35] Speaker 05:
Catholic Charities is not seeking asylum.

[00:02:38] Speaker 05:
They're not going to make a request for assignments in the future.

[00:02:41] Speaker 05:
They're making a third-party request.

[00:02:44] Speaker 03:
But it is a FOIA request, or withstanding to make a FOIA request, and it's done this more than once in the past.

[00:02:49] Speaker 03:
In fact, I gather that's where part of the sort of

[00:02:53] Speaker 03:
impetus of the frustration that comes from is that this is not the first time that you've had this experience, and won't be the last.

[00:03:01] Speaker 05:
That's true, Your Honor.

[00:03:04] Speaker 05:
For purposes of class action, Civil Rule 23, Catholic Charities as an institution may have standing to represent a class.

[00:03:12] Speaker 05:
However, Catholic Charities made a third-party request.

[00:03:19] Speaker 01:
Can you explain that to me, Mrs. Maher?

[00:03:21] Speaker 01:
I'm very confused before we even know if we can have a policy or practice claim here.

[00:03:28] Speaker 01:
You opened by saying Kay Kine made a FOIA request.

[00:03:32] Speaker 01:
Indeed.

[00:03:33] Speaker 01:
And the FOIA request, it seems like nobody talks about it consistently.

[00:03:37] Speaker 01:
Sometimes it's talked about as your FOIA request, and Kay Kine has just sort of waived her privacy interest here.

[00:03:45] Speaker 01:
Sometimes it's talked about Kay Kine's FOIA request.

[00:03:48] Speaker 01:
And sometimes it's talked about, like in your complaint, as a joint request.

[00:03:52] Speaker 01:
So who is the FOIA requester, before we go any further?

[00:03:57] Speaker 05:
Kay Kine is the one who had the asylum interview.

[00:03:59] Speaker 05:
The assessment is about her.

[00:04:01] Speaker 01:
No, no, no, no, no.

[00:04:03] Speaker 01:
I get the documents are about her.

[00:04:04] Speaker 01:
Who is the FOIA requester in this case?

[00:04:08] Speaker 05:
Kay Kine is the requester.

[00:04:10] Speaker 01:
Okay, so Cleveland Chair, sorry, Catholic Charities.

[00:04:15] Speaker 01:
Catholic Charities, I apologize.

[00:04:17] Speaker 01:
Catholic Charities is not a FOIA requester.

[00:04:19] Speaker 01:
They're sort of her agent doing it for her.

[00:04:21] Speaker 05:
Indeed, Your Honor.

[00:04:23] Speaker 05:
The request is on page A20.

[00:04:27] Speaker 01:
Right.

[00:04:27] Speaker 01:
It's a little confusing what's going on in that request as to who the requester is.

[00:04:30] Speaker 01:
So Kay Kine is the FOIA requester, and you and Catholic Charity are simply acting as her agent.

[00:04:37] Speaker 01:
You are not independently seeking these documents.

[00:04:40] Speaker 05:
Good.

[00:04:40] Speaker 05:
Correct, Your Honor.

[00:04:41] Speaker 01:
Correct.

[00:04:42] Speaker 01:
All right.

[00:04:42] Speaker 01:
Well, then how can you have a policy or practice claim?

[00:04:44] Speaker 01:
You have to file a FOIA request to be able to bring the lawsuit and then make a policy or practice claim.

[00:04:53] Speaker 01:
You just told me you have not made a FOIA request in this case.

[00:04:56] Speaker 05:
That's true.

[00:04:57] Speaker 05:
Perhaps we could have, in the context of a civil, in a class action, Civil Rule 23, perhaps then we could make that claim.

[00:05:07] Speaker 05:
Perhaps Catholic Charities can represent the class.

[00:05:10] Speaker 03:
It's not clear to me that it would need to if it were to seek the records, but it's done neither.

[00:05:17] Speaker 05:
Well, Your Honor, the assessment is about Kay Kine.

[00:05:22] Speaker 05:
She wants to know what's the story.

[00:05:26] Speaker 05:
Catholic Charities can't make a request for somebody else's documents.

[00:05:31] Speaker 01:
Sure you can.

[00:05:32] Speaker 01:
People do it all the time on their FOIA.

[00:05:34] Speaker 01:
They might run into a privacy issue, or exemptions, or redactions.

[00:05:40] Speaker 01:
People request third party information all the time.

[00:05:43] Speaker 05:
But Kay Kyn is making a request.

[00:05:45] Speaker 05:
She's the name plaintiff.

[00:05:46] Speaker 05:
The first eight causes of action are about what she wants to know.

[00:05:49] Speaker 05:
She wants to know if you have the assessment or not.

[00:05:55] Speaker 07:
I thought it was both.

[00:05:56] Speaker 07:
The way I understood the case, and I thought the way the district court understood the case, is that there's both a request by K-Kind through you, I'm sorry, through Catholic Charities, and then there's also a request by Catholic Charities that's in the form of a pattern or practice claim, a policy or practice claim.

[00:06:20] Speaker 07:
But you're saying that's not right, that all we're dealing with is a request by K-Kind.

[00:06:25] Speaker 05:
The complaint has nine causes of action.

[00:06:28] Speaker 05:
The ninth cause of action deals with policy and practice and class action allegations, and that's where Catholic Charities comes into the picture.

[00:06:34] Speaker 07:
Right.

[00:06:34] Speaker 07:
So when you say when they come into the picture, you mean come into the picture by being a requester?

[00:06:41] Speaker 05:
They're not exactly a requester.

[00:06:43] Speaker 05:
Well, they're a third party requester.

[00:06:45] Speaker 01:
Well, what does third party requester mean?

[00:06:47] Speaker 01:
Does that mean you're their agent?

[00:06:48] Speaker 01:
It sounds like when you're complaining, you're their agent.

[00:06:50] Speaker 01:
You're doing it on her behalf.

[00:06:53] Speaker 05:
Indeed.

[00:06:53] Speaker 05:
Kay Kynes says, mail my papers to somebody else.

[00:06:57] Speaker 05:
So we're the agent.

[00:06:59] Speaker 01:
OK.

[00:07:01] Speaker 01:
I'm sorry.

[00:07:02] Speaker 05:
I am.

[00:07:02] Speaker 01:
So you are not making, I just want to be crystal clear, Catholic Charities has not made its own FOIA request for these documents.

[00:07:12] Speaker 07:
It's owned for your request.

[00:07:13] Speaker 07:
No, it hasn't.

[00:07:15] Speaker 01:
I'm sorry.

[00:07:15] Speaker 01:
Go ahead.

[00:07:15] Speaker 07:
And then as you understand, the ninth cause of action, which is the policy of practice claim, that's being made by K-Kind II.

[00:07:26] Speaker 05:
Yes.

[00:07:27] Speaker 05:
She wants to make that claim.

[00:07:28] Speaker 07:
That's not being made by Catholic Charities.

[00:07:30] Speaker 05:
Well, Catholic Charities is asserted in the ninth cause of action.

[00:07:34] Speaker 05:
We're hoping to somehow to get this to win this case.

[00:07:39] Speaker 05:
And if Kay Kine is insufficient as the plaintiff, then the Catholic Charities will step in and be an organizational plaintiff to represent the class.

[00:07:46] Speaker 05:
We're hoping somehow that there shall be a remedy for this.

[00:07:49] Speaker 03:
I mean, I'm really confused by the characterization, partly by the complaint, which when I read it, Catholic Charities is a party, and it says, for example, at paragraph

[00:08:01] Speaker 03:
15 on A7, Catholic Charities and Plaintiff Kind made a FOIA request.

[00:08:06] Speaker 03:
And then on A14, Catholic Charities has pending FOIA requests.

[00:08:11] Speaker 03:
It is in the business of frequently filing FOIA requests and talks about this pattern of wanting to continue to submit future FOIA requests and will be harmed.

[00:08:23] Speaker 03:
I hear you that you're trying to clarify and say, no, actually, we were there only as

[00:08:31] Speaker 03:
the representative of the plaintiffs and saying that Catholic Charities makes the request, you really meant that only in the way a lawyer

[00:08:39] Speaker 03:
makes a claim for a client.

[00:08:41] Speaker 05:
That's fair in a manner of speaking.

[00:08:43] Speaker 05:
The request speaks for itself.

[00:08:44] Speaker 05:
It says we're making a third-party request and Kay Kynes has nailed the documents to it.

[00:08:48] Speaker 07:
I'm not sure how clearly it speaks for itself given that we've had all these questions.

[00:08:52] Speaker 01:
I don't know, I think you weren't clear what third-party request meant.

[00:08:59] Speaker 01:
You've helped to clarify it for us, thank you.

[00:09:01] Speaker 05:
That's the language that the

[00:09:04] Speaker 05:
In the regulations, I think, they allow a third party.

[00:09:07] Speaker 05:
Somebody else mails the request in with a signature.

[00:09:09] Speaker 01:
On behalf of someone else.

[00:09:10] Speaker 05:
Yes.

[00:09:11] Speaker 05:
I would suggest that there's a suggestion by the district court that even if Kaye Kine can't make, she can't complain about the initial response, somebody else can.

[00:09:25] Speaker 05:
That is not logical.

[00:09:26] Speaker 05:
That does not make any sense.

[00:09:29] Speaker 05:
Well, who is it, this entity?

[00:09:32] Speaker 05:
Kate Kind is the person who's important.

[00:09:33] Speaker 03:
Right.

[00:09:34] Speaker 03:
She's being harmed under your complaint.

[00:09:37] Speaker 03:
And I think the difficulty is that, as you know, for example, when somebody litigates in district court, there may be lots of errors along the way.

[00:09:46] Speaker 03:
But we limit the ability to come on appeal after the final judgment, because a lot of the problems fall away, which isn't to say they aren't problems.

[00:09:56] Speaker 03:
I think the exhaustion.

[00:09:58] Speaker 03:
function similarly in that you may have problems with the initial production or lack thereof, but part of the idea about the exhaustion is that the agency gets another chance and may resolve the issues to K-kind satisfaction.

[00:10:15] Speaker 03:
And then you have a separate claim, which is

[00:10:17] Speaker 03:
wait a minute, this has become the new normal.

[00:10:20] Speaker 03:
They are, because of the chance to fix things on agency appeal, they're ignoring their initial obligations and making people go to appeal to do what they should be doing in the first place.

[00:10:32] Speaker 03:
Is that fair?

[00:10:33] Speaker 05:
But that's... There's some fairness in that.

[00:10:36] Speaker 03:
And so, but then that's a separate kind of harm that I think you're right in your brief when you say,

[00:10:43] Speaker 03:
once Kay kind, if she were to get the relief in her individual case on the Ministry of Appeal, she wouldn't have standing because she would have gotten what she needs, but that somebody that's in the position to suffer systemically might have standing.

[00:11:01] Speaker 03:
Or, I mean, I didn't see you raising capable of repetition yet evading a review as a separate way of preserving her standing.

[00:11:09] Speaker 05:
Maybe that's designed for that kind of situation.

[00:11:14] Speaker 05:
If Kay Kine had made an administrative appeal, she would have destroyed her standing to complain about the initial response.

[00:11:22] Speaker 05:
The DHS agrees with me on that point.

[00:11:24] Speaker 03:
And I'm not sure, I mean, if we agree with you on that point, what would be the basis then for her to be able to come here without having exhausted?

[00:11:33] Speaker 05:
Because there must be a remedy for the bad initial response.

[00:11:38] Speaker 05:
Suppose the initial response had said, you asked for some documents,

[00:11:43] Speaker 05:
Some or all of them are exempt under B1, B2, B3, B6.

[00:11:47] Speaker 05:
In other words, the initial response says nothing.

[00:11:49] Speaker 05:
There must be a remedy for a bad initial response.

[00:11:53] Speaker 05:
The DHS theory, there never shall be a remedy.

[00:11:57] Speaker 05:
There must be a remedy.

[00:11:58] Speaker 05:
The initial response is very flawed.

[00:12:00] Speaker 05:
It talks about materials prepared in contemplation of litigation, attorney client confidential communications.

[00:12:06] Speaker 05:
It talks about J2 and D5 of the Privacy Act.

[00:12:10] Speaker 05:
The Privacy Act has nothing to do with this.

[00:12:12] Speaker 05:
The very confusing initial response, it is flawed, there must be a remedy somehow.

[00:12:17] Speaker 05:
And what is that remedy?

[00:12:18] Speaker 05:
The remedy is the court should examine it and not say you must do an administrative appeal.

[00:12:24] Speaker 01:
Why isn't the remedy the internal appeal?

[00:12:26] Speaker 01:
There's lots of agency action where we wait for the agency to finish.

[00:12:31] Speaker 01:
I know this is a little different, but it's not at all uncommon to say let the agency

[00:12:36] Speaker 01:
go through its own internal processes, which has two steps here, and then the courts will step in.

[00:12:43] Speaker 01:
And no one thinks that that's depriving people of a remedy for their rights.

[00:12:49] Speaker 01:
It would probably have been done a lot faster than this.

[00:12:52] Speaker 05:
The district court and the DHS agree that as soon as you make the administrative appeal complaining about the initial response, you've now destroyed your standing to complain about it.

[00:13:01] Speaker 01:
Right, but just think of the agency response as a two-step response, like in a lot of other

[00:13:06] Speaker 01:
administrative law matters where agencies have two internal, two initial and an appeal or initial and reconsideration before you go to court.

[00:13:17] Speaker 01:
I don't understand why what's so wrong with the agency first correcting its own errors.

[00:13:24] Speaker 05:
Why is that not a remedy?

[00:13:27] Speaker 05:
In theory, yes.

[00:13:29] Speaker 01:
No, in reality, why is that not in reality?

[00:13:32] Speaker 05:
Well, because we've been here many times.

[00:13:34] Speaker 01:
No, Kay Klein has not been here many times.

[00:13:37] Speaker 01:
This is her only time.

[00:13:38] Speaker 05:
That's true.

[00:13:40] Speaker 05:
How can she complain if she files the administrative... She can complain internally.

[00:13:44] Speaker 01:
Why is that not... Right?

[00:13:49] Speaker 01:
If you go before the NLRB, you go before ALJ, and then you complain internally.

[00:13:52] Speaker 05:
It's logical to me in many ways, except the district court said, if you do it, you kill yourself.

[00:13:59] Speaker 03:
No, no.

[00:14:01] Speaker 03:
Go ahead.

[00:14:02] Speaker 05:
Yeah, that's what the court said.

[00:14:03] Speaker 07:
No, but only with respect to whether you have some freestanding complaint about the way this system is structured, is that the first state, it's literally labeled a draft response.

[00:14:14] Speaker 07:
And then in order to get the draft finalized into a final response, you've got to go further within the agency.

[00:14:19] Speaker 07:
I mean, somebody could say, look, we'll never get a determination of whether the draft response does what a draft response is supposed to do unless we seek review right away.

[00:14:28] Speaker 07:
But then the answer to that would be, well, that's because the draft response isn't anything that you get relief based on anyway.

[00:14:34] Speaker 07:
You have to follow the agency process all the way through to get the final response, and then you get to complain about the final response.

[00:14:40] Speaker 07:
Why wouldn't that be the same thing here, that the initial determination is just not something that is the subject of a complaint, because you still have a remedy available to you within the agency.

[00:14:51] Speaker 07:
And then once the agency decides that it's not going to turn over the documents, then that's what you bring before a court.

[00:14:58] Speaker 03:
But it's missing the harm.

[00:14:59] Speaker 03:
I mean, go ahead.

[00:15:00] Speaker 05:
You answer.

[00:15:01] Speaker 05:
Well, there's logic to what you say, Your Honor, except the district court and DHS say, as soon as you do that administrative appeal, then you no longer can complain about the initial response.

[00:15:11] Speaker 05:
You're shifting to the donkeys themselves.

[00:15:14] Speaker 05:
But we want to complain about the initial response.

[00:15:16] Speaker 05:
It is deeply flawed.

[00:15:17] Speaker 05:
They don't even defend it.

[00:15:18] Speaker 05:
It's full of bad things, false and misleading statements.

[00:15:22] Speaker 05:
We cannot let that be un-remedied.

[00:15:24] Speaker 05:
There must be a remedy for it.

[00:15:26] Speaker 05:
Can they say anything they want?

[00:15:28] Speaker 01:
Can you explain to us why the internal appeal is not an adequate remedy?

[00:15:36] Speaker 05:
Because the district court said that it wasn't his shortest answer.

[00:15:39] Speaker 01:
No, no, I'm asking you why, speaking for miskind, taking that internal administrative appeal could not have been a remedy for the missteps by the lower level folks.

[00:15:53] Speaker 05:
Because to have done so would have

[00:15:55] Speaker 05:
destroyed her standing to complain about it.

[00:15:57] Speaker 01:
But no, but it destroyed her standing in court.

[00:15:59] Speaker 01:
I'm asking why.

[00:16:00] Speaker 01:
You said it's not a remedy.

[00:16:02] Speaker 01:
I'm focusing on remedy, not standing.

[00:16:04] Speaker 01:
Why couldn't an internal administrative appeal be a remedy?

[00:16:09] Speaker 01:
Get her the documents she wants, or at least some more of them.

[00:16:11] Speaker 05:
Well, I guess it could be.

[00:16:15] Speaker 01:
It often is, in fact.

[00:16:17] Speaker 05:
But we want the documents, but we want something else first.

[00:16:21] Speaker 05:
We want them to stop.

[00:16:23] Speaker 05:
sending out this boilerplate-laden, misleading statement that they've been doing for years.

[00:16:28] Speaker 01:
Well, but that's not Ms.

[00:16:29] Speaker 01:
Kynes' view.

[00:16:29] Speaker 01:
She's only filed one, and she's never going to file another one again, you've said.

[00:16:32] Speaker 01:
So she has no interest in an ongoing practice.

[00:16:36] Speaker 05:
She has an interest in this case.

[00:16:39] Speaker 05:
She got a bad response.

[00:16:40] Speaker 01:
And she could be remedied by taking an internal appeal, and then, if she still wanted to, coming to court.

[00:16:44] Speaker 01:
And that whole process would have been faster than, I think, what's happening here with district court and this court.

[00:16:50] Speaker 05:
Well, I can't think of anything new to say except she wants to complain about the initial response, but as soon as she does, she can't complain about it anymore.

[00:17:01] Speaker 01:
Why does she want to complain to a court rather than complaining to higher-ups within the agency?

[00:17:08] Speaker 05:
She'll complain to anybody who will listen.

[00:17:10] Speaker 01:
Well, she didn't complain within the agency, to higher-ups within the agency.

[00:17:14] Speaker 05:
That's true, Your Honor.

[00:17:16] Speaker 05:
Because as soon as she did, then she's cut off her legs.

[00:17:20] Speaker 05:
No, she hasn't, because she can still get the documents, which is what she ultimately wants.

[00:17:26] Speaker 05:
She does want the documents, but she also wants to stop this initial response.

[00:17:31] Speaker 05:
In theory, they should send a new initial response that says, by the way, we have the documents you're asking for.

[00:17:37] Speaker 05:
How about that for starters?

[00:17:39] Speaker 05:
Is that so difficult to do?

[00:17:41] Speaker 05:
Why is it that you can segregate nothing out of it?

[00:17:45] Speaker 05:
Four other district courts have said you can segregate things out of the assessment.

[00:17:49] Speaker 05:
How come you can't?

[00:17:50] Speaker 05:
They should tell her that.

[00:17:51] Speaker 01:
But some district courts have also said the entire thing is exempt.

[00:17:54] Speaker 01:
So I don't... I mean, you'd be in a different position if the law was settled, but it's not.

[00:17:59] Speaker 05:
Oh, I think it's settled around other cases.

[00:18:01] Speaker 01:
You know, there are district courts in this very courthouse who have said that these assessments are 100 percent exempt.

[00:18:09] Speaker 05:
decided in 2013 and 2014.

[00:18:11] Speaker 01:
It doesn't matter.

[00:18:13] Speaker 01:
It's not a settled question.

[00:18:15] Speaker 05:
Very well, Your Honor.

[00:18:19] Speaker 05:
Kay kind of deserves to be told they have the assessment or not, and what are the real reasons why they can't desegregate.

[00:18:25] Speaker 05:
And then she could do an administrative appeal based on the real reasons, and perhaps she'd have success then.

[00:18:31] Speaker 05:
Right now, what is she supposed to say to the administrative appeal?

[00:18:34] Speaker 05:
Give me documents that I don't even know if we have them or not.

[00:18:38] Speaker 05:
Give me doc, you're not giving me doc, you're holding your secret documents, and am I supposed to appeal?

[00:18:44] Speaker 01:
Am I supposed to appeal?

[00:18:44] Speaker 01:
Right, but you have that same problem in court.

[00:18:50] Speaker 03:
So.

[00:18:50] Speaker 05:
Well, in court, Jill Eggleston is the person, she knows what's going on.

[00:18:55] Speaker 05:
She tells the court the real reason that the assessment is exempt is a deliberative process privilege.

[00:19:01] Speaker 05:
She said that earlier to the Engromante Court and to the Viola Court.

[00:19:05] Speaker 05:
But what does she tell Kate Kind?

[00:19:07] Speaker 05:
Mumbo jumbo blah blah blah, several paragraphs.

[00:19:10] Speaker 05:
They know the real reason, but they don't tell Kate Kind.

[00:19:12] Speaker 05:
Why is that?

[00:19:14] Speaker 03:
If I'm understanding you correctly, there are two different harms that this client is trying to raise.

[00:19:22] Speaker 03:
One is I didn't get my documents.

[00:19:26] Speaker 03:
And two is I'm entitled to them not after an administrative appeal,

[00:19:32] Speaker 03:
But I'm entitled to them in response to my initial request.

[00:19:36] Speaker 03:
And that what you're complaining about is that the agency has reverted to or has defaulted to a process wherein the initial request has been made meaningless.

[00:19:50] Speaker 03:
And everybody who wants something, even though the statute contemplates that they would get it on the initial request, the agency has effectively, because of the exhaustion requirement,

[00:20:03] Speaker 03:
send out meaningless boilerplates in the first instance and only started to do the work when people bring in administrative appeals.

[00:20:10] Speaker 03:
So on the one hand, K-Kind wants her documents.

[00:20:13] Speaker 03:
On the other hand, K-Kind and or Catholic Charities together want to put pressure on the agency to take seriously its production requirement in the first instance.

[00:20:23] Speaker 03:
Is that right?

[00:20:24] Speaker 05:
That's fair, Your Honor.

[00:20:25] Speaker 05:
It gives effect to the word immediately.

[00:20:27] Speaker 05:
The statute does not say give the stuff to the people

[00:20:30] Speaker 05:
after they file complaints in federal court, it says immediately.

[00:20:32] Speaker 03:
Immediately.

[00:20:33] Speaker 03:
Now, if that's the case, and I think this is why we have so many questions about whether Catholic Charities is a party in its own right, because we do have standing and or exhaustion issues with respect to the individual claim as opposed to the potential pattern or practice claim.

[00:20:52] Speaker 03:
I see the first claim about I want my documents as an individual claim, the second claim potentially as a pattern or practice claim.

[00:20:59] Speaker 03:
You not only did this this time agency, it has become your new normal.

[00:21:03] Speaker 03:
We cafeteria see this all the time.

[00:21:06] Speaker 03:
That's why we're so frustrated.

[00:21:09] Speaker 03:
And she would.

[00:21:10] Speaker 03:
When you say she would lose her standing if she did administrative appeal, you're basically acknowledging that she might get the individual document relief, which is a way of saying there's a real purpose in this agency for the administrative exhaustion, because they actually do wake up and provide things.

[00:21:29] Speaker 03:
So it's hard for us to say, oh, but she didn't need to do that, because we're going to get to the systemic issue.

[00:21:34] Speaker 03:
I don't think that's what our law permits in a case like this.

[00:21:39] Speaker 05:
It seems to me the court is forgetting about Kay Kynes complaint about the initial response and leaping ahead to pattern and practice claims by other parties.

[00:21:50] Speaker 05:
Does Catholic Charities have more rights than Kate Kearns does?

[00:21:52] Speaker 05:
That cannot be the case.

[00:21:53] Speaker 03:
It has different rights, because it's a repeat actor, and she's not.

[00:21:56] Speaker 03:
She, just like the plaintiff in Lions who had an encounter with police, doesn't have standing to complain unless he can say, and I'm going to have future encounters, so I'm in a position to ask them not only to compensate me, but to clean up their process.

[00:22:12] Speaker 03:
So too here, she just isn't in a position, maybe, to ask for that unless

[00:22:18] Speaker 03:
it's part of a pattern.

[00:22:21] Speaker 05:
But that would suggest that Kate Kearn can't do anything, she can't complain, but somebody else can about the police.

[00:22:27] Speaker 05:
Maybe.

[00:22:27] Speaker 05:
That sounds very logical to me.

[00:22:29] Speaker 07:
Suppose that Catholic Charities did bring a policy or practice claim.

[00:22:35] Speaker 07:
Then wouldn't that get some resolution on the question of whether the initial determination that's provided by the agency is enough?

[00:22:45] Speaker 05:
In other words, why wouldn't it?

[00:22:48] Speaker 07:
Because the claim would be you have a policy or practice of just not giving FOIA requesters what they're supposed to get when they make a request and you give your initial determination.

[00:23:00] Speaker 07:
Your initial determination is vacuous.

[00:23:03] Speaker 07:
It doesn't comply with the statute.

[00:23:05] Speaker 07:
And then wouldn't that get error?

[00:23:08] Speaker 01:
Wouldn't that remedy take time?

[00:23:12] Speaker 05:
The Catholic Charities has to be requesting a document.

[00:23:15] Speaker 05:
What would they be requesting?

[00:23:17] Speaker 05:
They have to request something.

[00:23:18] Speaker 05:
And then if Catholic Charities is treated badly, it can make a complaint.

[00:23:24] Speaker 05:
But we need someone to start off with.

[00:23:26] Speaker 05:
We need the person.

[00:23:27] Speaker 03:
But it could be both.

[00:23:28] Speaker 03:
We're sort of asking about this case or the next case like this, because as you've alleged, you do this a lot.

[00:23:34] Speaker 03:
So it could have been in this complaint, and perhaps it could be in the next complaint, that there are these tandem

[00:23:40] Speaker 03:
You know, one is a more localized document related remedy that's being sought and the other is a more systemic clean up your act, pull up your socks remedy.

[00:23:48] Speaker 03:
And those two are sort of natural allies.

[00:23:52] Speaker 03:
I mean, another question I have is why, if Kate Kine is going to be the plaintiff to try to get at that,

[00:24:02] Speaker 03:
process problem that the complaint identifies.

[00:24:06] Speaker 03:
Another way we sometimes see is somebody asserts this is a problem capable of repetition yet evading review because it's fixed so quickly we can't, and I'm not sure that would be, I mean I can ask the government, but I'm not sure that that would work here because once the exhaustion takes place it's not even presented to us.

[00:24:27] Speaker 03:
But.

[00:24:30] Speaker 05:
Kay Kynes is a plaintiff.

[00:24:32] Speaker 05:
She has eight clauses of action.

[00:24:34] Speaker 05:
She wants relief.

[00:24:35] Speaker 07:
So every policy or practice claim under FOIA arises out of a request, right?

[00:24:42] Speaker 07:
Every single one, because otherwise you wouldn't have a case to begin with.

[00:24:46] Speaker 07:
But we do have policy or practice claims under FOIA.

[00:24:49] Speaker 07:
Obviously, we do pain, and we have an entire jurisprudence that's devoted to policy of practice claims under FOIA.

[00:24:55] Speaker 07:
So every single one of them has, at its root, a request.

[00:24:59] Speaker 07:
And then the person who's making the request can also say, and by the way, there's a danger that I'm going to request something in the future, and the same injury is going to attend me again.

[00:25:13] Speaker 07:
Therefore, I'm bringing a policy or practice claim, too.

[00:25:17] Speaker 07:
And so it seems like Catholic Charities is in a position to be able to do that.

[00:25:21] Speaker 07:
And I had initially read the case actually to present that, but I'm obviously going to defer to you.

[00:25:27] Speaker 07:
But why wouldn't that be enough?

[00:25:29] Speaker 05:
Well, in the Payne case, Payne Enterprises made requests for itself.

[00:25:35] Speaker 05:
It wants stuff.

[00:25:36] Speaker 05:
No third party, no nothing.

[00:25:37] Speaker 05:
It wants requests.

[00:25:39] Speaker 05:
And then it got some relief and it also wanted to do a practice in policy because it would make more requests in the future, it itself.

[00:25:47] Speaker 05:
But here we don't, nobody, Catholic Church is not applying for asylum.

[00:25:50] Speaker 05:
We want asylum officer assessments.

[00:25:52] Speaker 01:
You can make a FOIA request for documents whether or not you're, it doesn't matter what your motive is.

[00:25:57] Speaker 01:
You don't have to be interested in applying for asylum to ask for these documents.

[00:26:02] Speaker 05:
Well, the... Or your documents are available to anybody.

[00:26:05] Speaker 01:
If it's available, it's mailed to anybody in public.

[00:26:07] Speaker 01:
It doesn't matter what your reason.

[00:26:09] Speaker 05:
If Kathy Charity said, give us the assessments of strange people, the DHS would say, well, they have great privacy.

[00:26:13] Speaker 01:
Well, no, you can have exactly the type of waiver you did here.

[00:26:16] Speaker 07:
Right, you do exactly.

[00:26:17] Speaker 07:
That's why I had initially read it to do exactly that, because you're in the business of helping people with asylum.

[00:26:24] Speaker 07:
And by being in that business, you have a stake in this enterprise.

[00:26:28] Speaker 05:
Well, there's some truth to that, and you're suggesting that Catholic Charities has standing to do things.

[00:26:32] Speaker 05:
Okay, maybe.

[00:26:34] Speaker 05:
But what about Kate Kine?

[00:26:35] Speaker 05:
What about her?

[00:26:36] Speaker 05:
She, her rights are not being fairly treated here.

[00:26:41] Speaker 05:
How do we challenge this initial response?

[00:26:44] Speaker 05:
We tried in all these different ways, and there must be a remedy.

[00:26:48] Speaker 05:
I hope you will agree with me that the initial response is deeply flawed.

[00:26:51] Speaker 07:
Well, let me ask you a question about that.

[00:26:53] Speaker 07:
And then we'll definitely preserve some time for rebuttal for you.

[00:26:57] Speaker 07:
But on the initial response, suppose that there is a generally accepted principle that an initial response doesn't need to take the form of a Vaughan index.

[00:27:08] Speaker 07:
OK, let's just suppose that's true.

[00:27:10] Speaker 07:
And you may disagree with that, but I'm just asking you to assume that's true.

[00:27:13] Speaker 07:
And a Vaughan index only comes into play at the time of a lawsuit.

[00:27:16] Speaker 07:
And so for purposes of the initial response by the agency, the agency's not required in response to every FOIA request to produce the equivalent of a VON index.

[00:27:24] Speaker 07:
But you think what was produced, what was given to you in initial determination here wasn't enough.

[00:27:29] Speaker 07:
So what you want is something north of what was given here, but south of a VON index.

[00:27:33] Speaker 07:
What is that?

[00:27:34] Speaker 07:
What more would you want that doesn't get to the territory of a VON index?

[00:27:40] Speaker 05:
We asked for a specific document.

[00:27:42] Speaker 05:
They should tell us if they have it or if they don't.

[00:27:44] Speaker 01:
So identifying what they're withholding, just identifying the documents they're withholding is what you want.

[00:27:51] Speaker 05:
Yeah.

[00:27:51] Speaker 05:
They've already counted them, the three pages and the eight pages.

[00:27:53] Speaker 05:
They know what they are.

[00:27:54] Speaker 07:
And then if they identify the document they're withholding, would they also need to identify the reasons that they're withholding that document?

[00:28:04] Speaker 05:
I admit there's case law that says when somebody makes a broad request for hundreds of documents, there's no duty for a VON index.

[00:28:11] Speaker 05:
I admit that.

[00:28:12] Speaker 05:
This is a different case.

[00:28:14] Speaker 05:
We have a very narrow thing.

[00:28:15] Speaker 05:
We're asking if we name the documents, one, two, three.

[00:28:18] Speaker 05:
In that case, the bond index law does not apply.

[00:28:22] Speaker 05:
Instead, the statute applies.

[00:28:23] Speaker 05:
The bond index came from courts.

[00:28:25] Speaker 05:
We should apply the statute.

[00:28:27] Speaker 05:
If somebody says, I want the assessment, you should say we have it or we don't.

[00:28:31] Speaker 05:
That's very easy to do.

[00:28:33] Speaker 05:
Maybe if there's thousands of documents, then that's harder for the agency.

[00:28:36] Speaker 05:
But there's no burden whatsoever.

[00:28:38] Speaker 07:
So when the request is tailored to a specific document, that your argument is tethered to that?

[00:28:43] Speaker 05:
Indeed, that's what makes this case different from all the Vaughn cases.

[00:28:47] Speaker 05:
I think the statute is very easy to comply with.

[00:28:51] Speaker 05:
And why don't they comply?

[00:28:52] Speaker 03:
Maybe that's a good moment to hear from.

[00:28:56] Speaker 07:
Yeah.

[00:28:56] Speaker 07:
We'll give you some time for rebuttal.

[00:29:07] Speaker 06:
I'm Matthew Glover, and I represent the government.

[00:29:12] Speaker 06:
I think the questions this morning have elucidated that there was a little bit of confusion, but I would push back on my friend's contention that we needed to respond with more than what was here.

[00:29:21] Speaker 01:
This was a sufficient response under the CRU standard, and they didn't just request the... Well, CRU says that you need to identify the scope of the documents that you plan to withhold.

[00:29:31] Speaker 01:
Why doesn't that language nationally mean you need to at least say,

[00:29:36] Speaker 01:
some loose description, assuming that itself is not exempt, some loose description that says we are withholding the assessment and if there was something else and these internal emails.

[00:29:49] Speaker 01:
And then you just give, and our withholdings are under, and you just list whatever exemptions are applying to whichever document.

[00:29:56] Speaker 01:
You don't have to match them up with the documents.

[00:29:58] Speaker 01:
But what you do have to do is say, this is the document we're withholding.

[00:30:02] Speaker 01:
So that when they take an internal appeal, they can go, you can't withhold assessments.

[00:30:08] Speaker 01:
And they can make their argument, based on a lot of district court precedent here, but not 100%, that those can't be withheld.

[00:30:16] Speaker 01:
Why isn't that a meaningful administrative appeal?

[00:30:19] Speaker 06:
So, Your Honor, a couple of points to that.

[00:30:21] Speaker 06:
As to the meaningfulness of the administrative appeal, in some of the cases where the assessment has been segregated in part in the appeal, they've received similar responses.

[00:30:31] Speaker 06:
They filed an administrative appeal saying, I asked for my A-file, which is more than just three documents, and I asked for the assessment.

[00:30:38] Speaker 06:
I want to know why you're withholding the assessment, and is any part of it segregated?

[00:30:42] Speaker 06:
So they're able to make those same requests in response here.

[00:30:45] Speaker 01:
There may be other things you're withholding, and they don't know what they are.

[00:30:48] Speaker 01:
How can someone, let's just assume a case where they've asked for x category of information.

[00:30:54] Speaker 01:
It's a small category of information.

[00:30:57] Speaker 01:
And the government says, we're withholding 200 pages of documents, plural.

[00:31:05] Speaker 01:
And they have no idea

[00:31:07] Speaker 01:
what those documents are.

[00:31:09] Speaker 01:
How are they going to appeal?

[00:31:11] Speaker 06:
I'm sorry.

[00:31:12] Speaker 06:
No, I apologize for interrupting.

[00:31:14] Speaker 06:
I would have two responses to that.

[00:31:16] Speaker 06:
First, as to the statement that they're withholding pages.

[00:31:19] Speaker 06:
This court, and no court to my knowledge, has required FOIA to use magic words like we're withholding so many documents as compared to so many pages.

[00:31:27] Speaker 06:
And you see this, there was a case the court decided a couple weeks ago from the Institute for Justice, which was about this AFTRAC database.

[00:31:33] Speaker 06:
The Institute for Justice, and it's in the district court puddings there, often request these databases.

[00:31:37] Speaker 06:
The initial responses they get are often termed in terms of, I think, megabytes or gigabytes.

[00:31:41] Speaker 06:
I'm not that tech savvy.

[00:31:43] Speaker 06:
data, you know, this is the amount of data that's responsive and this is the amount we're withholding.

[00:31:48] Speaker 06:
So this quarter and no quarter has ever required you to define it in terms of documents.

[00:31:52] Speaker 06:
And if I could give an example, think about a request for, you know, the A file and you say, okay, your A file has 25 documents, we're producing 24 and withholding one.

[00:32:02] Speaker 06:
Suppose the 24 documents that were produced were one page each.

[00:32:06] Speaker 06:
You might think the 25th was, so you think you got 96% of the request, but if the 25th document is actually 50 pages or 25 pages, then you've only gotten 48% of your file until we're giving you a sense of what percentage of your file you're getting.

[00:32:20] Speaker 07:
Right, no, I get the point that pages give information.

[00:32:24] Speaker 07:
But the question is, why not get more information, i.e., what's the document that's encompassed by the pages that are being withheld?

[00:32:30] Speaker 06:
So, Your Honor, it's important to remember that we're at the initial determination stage.

[00:32:35] Speaker 06:
And in CRUDE, it did say, review the documents, which they've done, define the scope of what you're producing and the scope of what you're withholding.

[00:32:42] Speaker 06:
The court didn't say that scope needs to be in terms of listed documents.

[00:32:46] Speaker 01:
That's where my question started, is why isn't that the natural meaning for scope in this context, where someone's going to be taking an internal appeal to go, the scope, if you want to tell them how many pages have added, I don't care, but what you need to do is just identify in some way what the documents are that are being withheld so they can actually argue about applicability of exemptions.

[00:33:12] Speaker 01:
What's hard about that?

[00:33:14] Speaker 06:
You know, if you flipped this request and they were producing eight pages and withholding, I think it's 849 pages in full, and suppose those were each one-page documents, that requires significant work.

[00:33:26] Speaker 01:
The statute's initial determination... It's typing.

[00:33:30] Speaker 01:
It's typing.

[00:33:31] Speaker 01:
Maybe even group withholding internal email communications.

[00:33:35] Speaker 01:
50 pages, we're withholding your assessment.

[00:33:39] Speaker 01:
20 pages, we're withholding, and you don't have to match things up like a Vaughn index, but you need to just identify what documents you have.

[00:33:47] Speaker 06:
So I'm aware of no court that has required such identification until the district court.

[00:33:51] Speaker 01:
Are you aware of a court that has said you don't have to do that?

[00:33:54] Speaker 06:
I know that in this circuit, similar responses to this, district courts have found sufficient and there have been administrative appeals.

[00:34:01] Speaker 01:
Are you aware of a circuit precedent that says you don't have to do that?

[00:34:05] Speaker 06:
I think that the district court in Biola, which was obviously reversed on other grounds because the initial determination was no longer an issue in that case, said that and so that wouldn't be... So the answer is there's not... So saying that you're not aware of a court requiring it is really just...

[00:34:20] Speaker 01:
Faking the very question that we have in front of us today.

[00:34:22] Speaker 06:
Yeah.

[00:34:23] Speaker 06:
I'm aware of district courts at least making the statement, and this court making the statement, that you're not required to have a VON index.

[00:34:28] Speaker 06:
And as Judge Srinivasan discussed with my friend, there's something between a VON index and a statement regarding pages.

[00:34:35] Speaker 06:
And I take it to be that's where you're getting.

[00:34:37] Speaker 06:
I'm not aware of any court delineating that one.

[00:34:40] Speaker 04:
My question is you.

[00:34:41] Speaker 06:
Statement recording documents.

[00:34:42] Speaker 06:
Because I think.

[00:34:43] Speaker 07:
Sorry?

[00:34:44] Speaker 07:
No, I apologize.

[00:34:44] Speaker 07:
I just didn't hear.

[00:34:45] Speaker 07:
Statement recording documents, reporting documents.

[00:34:48] Speaker 07:
So in other words.

[00:34:49] Speaker 07:
Avon index, it tells you what's being withheld and then it tells you which exemption is applying to that withholding.

[00:34:55] Speaker 07:
But if you only listed the documents that are being withheld, either by document document or by category or something like that, and it didn't have to tie a particular exemption to the document itself or the category of documents, then that does seem like something that's between what's done here and what Avon index would do.

[00:35:15] Speaker 07:
And the question is, why not do that?

[00:35:18] Speaker 07:
And why functionally does the government not do that?

[00:35:22] Speaker 07:
Is it purely because of the work that it would take?

[00:35:24] Speaker 07:
Which is not to say that's a bad answer.

[00:35:25] Speaker 07:
It's just to ask, is that what's going on?

[00:35:27] Speaker 06:
So I think that's certainly part of the answer.

[00:35:29] Speaker 06:
And again, this request is a little bit easier to talk about because there's only eight pages withheld in full.

[00:35:35] Speaker 06:
But in the request in which many, many documents are withheld in full, it is an additional burden on the agency.

[00:35:41] Speaker 06:
But I would also say,

[00:35:43] Speaker 06:
And this comes up in some of the district court cases dealing with assessments, but in other district court cases, administrative appeals are often taken asking that as the first question.

[00:35:50] Speaker 06:
What are the documents you're withholding?

[00:35:53] Speaker 06:
I want these specific ones.

[00:35:54] Speaker 06:
And what happens when they ask that question?

[00:35:56] Speaker 06:
Does the administrative appeal, does it get an answer?

[00:35:59] Speaker 06:
As I sat at council table, I was trying to remember the case.

[00:36:02] Speaker 06:
I was going through a lot of joint appendices from district court cases last night, and there was one in which they asked, you know, what are the documents are withholding in full?

[00:36:10] Speaker 06:
And I believe it was one of the FBI cases, but the agency answered, were withholding in full, and this is why it was memorable, the resumes and applications of people who applied for jobs and didn't receive them.

[00:36:20] Speaker 06:
And then they also, you know, said, you've received the following documents withheld in part, and, you know, we had our redactions on those.

[00:36:26] Speaker 06:
I identified at least that case where they say that they would call it in full.

[00:36:30] Speaker 07:
So then the question is, if that can be done, then why, if that can be done through the auspices of an administrative appeal, why isn't that just folded into an initial determination?

[00:36:40] Speaker 06:
Again, I think the burden on the agency and the agency is trying to answer as quickly and cleanly as it possibly can, and it wants to further engage.

[00:36:48] Speaker 06:
If, suppose, you know.

[00:36:49] Speaker 01:
Well, hang on.

[00:36:50] Speaker 01:
The administrative appeal is on the same time frame, same 20-day time frame.

[00:36:54] Speaker 01:
So if it can be done in that 20-day period,

[00:36:56] Speaker 01:
than it can be done in the first 25 years.

[00:37:00] Speaker 01:
I get that it's more work.

[00:37:00] Speaker 01:
Anything is more work than doing less.

[00:37:03] Speaker 01:
But the question is whether it's unworkable.

[00:37:06] Speaker 06:
So the – but the administrative appeal only concerns the documents they're contesting, or if they had a policy or practice that pertained to the documents that were produced, I guess in cases of delay or something, it might pertain to that.

[00:37:18] Speaker 01:
But the administrative appeal will already have narrowed because unless it's – No, but we were already talking about that the only time – the only effort that you were talking about was the time it would take to type up some list.

[00:37:28] Speaker 01:
And it could be a grouping, it could be – this is a judgment about some categories, or it could be a label for a document.

[00:37:35] Speaker 01:
And that's going to be the exact same list, whether it's done at the administrative appeals stage.

[00:37:40] Speaker 01:
They're going to type the same list of what didn't go out at the administrative appeals stage as at the initial stage.

[00:37:46] Speaker 06:
Yes, but at the administrative appeal stage in that same time period, they're not reviewing the 400.

[00:37:51] Speaker 06:
However, in a given request, they're not reviewing the documents that went out in full or the documents that the party got maybe in part and chose not to administratively appeal.

[00:38:02] Speaker 06:
So the documents they would need to review in the administrative appeal is going to be narrowed except in the cases where the agency says everything's exempt and or we don't find anything in relation to your search.

[00:38:13] Speaker 07:
So one thing I'm not quite understanding about the

[00:38:16] Speaker 07:
approach to this case is the following, that if the purpose of an administrative appeal, suppose the sole purpose of an administrative appeal is just to make sure that someone else within an agency presumably at a higher rank has a chance to review the request and the response, and the initial response, then it

[00:38:35] Speaker 07:
really, you wouldn't need to supply any information with an initial determination, because all that would have to happen is that the requester would just check a box that says, you know, I'd like someone else to look at this, and the requester doesn't have any idea what's being held, why it's being withheld, but all the purpose is still being served, because the purpose is to have somebody else take a second look.

[00:38:54] Speaker 07:
If that's true, then the content of the initial determination sort of doesn't matter, because it's just we want a second layer.

[00:39:00] Speaker 07:
And a lot of the government's position in this case and elsewhere is matched to that kind of description, because it's things like it allows to correct our initial response.

[00:39:11] Speaker 07:
Well, that can happen as long as it's there.

[00:39:13] Speaker 07:
Then part of the government's response also is it would allow the requester

[00:39:17] Speaker 07:
to get more information so that they can make arguments in the administrative appeal.

[00:39:22] Speaker 07:
Now with that, which seems different to me, it's hard to know what they're supposed to do with the information that you gave them, for example, in this case, because they don't even know what's being withheld.

[00:39:30] Speaker 07:
If they don't know what's being withheld, I'm not sure, and they don't even know which specific, you give a group of exemptions.

[00:39:36] Speaker 07:
You could give all of them, really.

[00:39:37] Speaker 07:
You could just say one through nine as opposed to one through three, but you give them three.

[00:39:42] Speaker 07:
And I don't even know what they're supposed to do with that because they don't have information with which to make targeted arguments in an administrative appeal.

[00:39:50] Speaker 07:
Again, that would still be okay if the purpose of it is just to get a second layer of review.

[00:39:55] Speaker 07:
But once it's designed in part to arm the requester with information with which to tailor its arguments in an administrative appeal, it becomes a little more difficult to understand how that purpose is being served by a response along the lines of the one that we have here.

[00:40:09] Speaker 06:
So I want to answer that, but I see them over time.

[00:40:13] Speaker 06:
If I could start by adding the additional purposes to narrow should it lead to litigation, sort of the disputes between the parties.

[00:40:20] Speaker 06:
So accepting the two purposes you've outlined, I would say that's an additional purpose.

[00:40:25] Speaker 06:
I think CRU is talking about what the statute requires in terms of the scope of the initial determination.

[00:40:31] Speaker 06:
And so a determination that just had a checked box would not meet CRU because it wouldn't tell you, I guess if the box it was checking next to said, we've reviewed all the documents, it would still need to give some sense of what is the scope of those documents.

[00:40:43] Speaker 03:
Would it, in your view, just following up on that, and I know you have more to say, we'll give you time to answer, but would it be enough under that if you had a form in the agency that said, number of pages withheld and a blank,

[00:40:53] Speaker 03:
and then which exemptions claimed and had each of them listed, and all the person had to do was put in, you know, nine in the number of pages and then check, you know, one, two, three, or whatever the exemptions were, and leave others blank.

[00:41:06] Speaker 03:
And then it would go to a reviewer.

[00:41:08] Speaker 03:
Would that, in your view, satisfy crew and the statute?

[00:41:12] Speaker 06:
I think that it could.

[00:41:15] Speaker 06:
Certainly, again, that would be the agency trying to be efficient in responding to the volume of requests.

[00:41:20] Speaker 06:
I would think you would need the number of pages or megabytes if we're talking about data.

[00:41:26] Speaker 06:
Again, maybe data can be put in pages.

[00:41:28] Speaker 06:
You need that sort of, this is the scope of the overall request.

[00:41:33] Speaker 06:
This is the scope of our compliance.

[00:41:35] Speaker 06:
This is the scope of our withholding, I think, in part and in full.

[00:41:38] Speaker 06:
And then you could have, you know, these are the exemptions we apply.

[00:41:43] Speaker 06:
To Judge Srinivasan's point about, they could say they apply one through nine.

[00:41:46] Speaker 06:
That would be problematic here.

[00:41:48] Speaker 06:
Part of what they said in the initial determination in CREW is we're going to produce documents, and they're not required to produce with the initial determination, but we're going to produce them, and as we do, we'll claim exemptions.

[00:41:58] Speaker 06:
If we had cited one through nine here, you know, number nine is about geotechnical information, and I think maps and locations of oil wells and minerals.

[00:42:06] Speaker 06:
You wouldn't expect to find that in an A file.

[00:42:10] Speaker 06:
The exemptions that were listed here dealing with law enforcement and matters like that, the A file has certain FBI background that's done when you apply for asylum or when you seek other visa relief.

[00:42:24] Speaker 06:
So there's going to be law enforcement background check information in there.

[00:42:27] Speaker 06:
There's going to be pre-decisional information.

[00:42:30] Speaker 06:
So in terms of the form,

[00:42:34] Speaker 03:
So your answer so far is yes, it would be fine if it was accurate with respect to which, if somebody had actually looked at the documents and made thoughtful determinations, it's only five that we're applying here, that that kind of form actually would, in your view, satisfy Crew and the statute.

[00:42:55] Speaker 06:
Yes, but if I could step back or perhaps narrow, it's important to remember in this case, the initial determination was not just the, I think it's a three-page letter in the appendix, but it was also the production because they were provided in tandem.

[00:43:09] Speaker 06:
But nobody thinks you had to do that.

[00:43:11] Speaker 06:
I mean, you're not saying that, right?

[00:43:12] Speaker 06:
No.

[00:43:12] Speaker 03:
I think what we're talking about is the universe of withheld.

[00:43:16] Speaker 03:
And what explanation has to be?

[00:43:19] Speaker 03:
Yes, withheld and full.

[00:43:21] Speaker 06:
Yes, but I guess I would just point out that here, when you're looking at the initial determination in this case and whether it meets crew, I understand we're talking about sort of what would apply across the board.

[00:43:30] Speaker 06:
I just wanted to reiterate that here you would look at both the letter and then the production, which included 849 pages in full, but it included 11 pages in part.

[00:43:39] Speaker 06:
And those pages that were provided in part in accordance with the DHS's FOIA regulations, what they do is they print the pages that appears, they put a box, and there's some sort of tech that blocks it out, around that.

[00:43:51] Speaker 06:
I think here it was green.

[00:43:52] Speaker 06:
In some cases, I've seen it be a white box with a black outline.

[00:43:54] Speaker 06:
And then they state the exemptions next to it for each.

[00:43:57] Speaker 07:
Right, but that's the production.

[00:43:58] Speaker 07:
I mean, if the case is about the sufficiency of the initial determination,

[00:44:03] Speaker 07:
I mean, because this could have happened.

[00:44:04] Speaker 07:
You give the initial determination, boom, a lawsuit's filed.

[00:44:07] Speaker 07:
And at that point, the production's irrelevant if the claim is about the sufficiency of the initial determination.

[00:44:13] Speaker 07:
And so if you disaggregate the two, then the question becomes, is what you supplied in that three-page document enough?

[00:44:19] Speaker 06:
True, but I guess I'm just trying to reiterate, for your purposes, you don't need to disaggregate them because they were supplied together.

[00:44:26] Speaker 03:
There were some documents that were repelled in full.

[00:44:28] Speaker 06:
Yes, yes.

[00:44:29] Speaker 03:
So I mean, I take your point that there are indicia here that the agency is not just blowing off its initial

[00:44:36] Speaker 03:
its initial obligation.

[00:44:37] Speaker 03:
I take that.

[00:44:38] Speaker 03:
And that, in fact, much was produced, things were found, they were examined, and some information was communicated about which exemptions apply.

[00:44:48] Speaker 03:
And we do appreciate that.

[00:44:50] Speaker 03:
We see agencies who don't necessarily meet that standard, and we don't mean to disparage the fact that much was done.

[00:45:00] Speaker 03:
And so the question before us then becomes, with respect to the things that were withheld,

[00:45:05] Speaker 03:
What is the obligation of the statute under CRU in terms of identifying when you read CRU, it says you just need to gather and review the documents, determine and communicate the scope of the documents that you intend to produce and withhold and the reasons.

[00:45:18] Speaker 03:
And so the question that we're probing is how

[00:45:23] Speaker 03:
minimally, do we read that?

[00:45:26] Speaker 03:
Or is there anything that's sort of short of a bond index but that's more fulsome, which is what Mr. Cleveland is asking for?

[00:45:33] Speaker 03:
Is there anything more that might be required?

[00:45:36] Speaker 03:
And I take your position to be, if it's done in good faith and if it's accurate, that actually a form that says X number of pages and accurately says, and these are the exemptions, and accurately discloses or prepares to disclose things that aren't exempt would be enough.

[00:45:52] Speaker 06:
Yes, I believe so, with the caveat that, again, we have the full production here.

[00:45:57] Speaker 06:
And your question about the form, I think, goes to the question Judge Millett had for me about what does scope mean in crew.

[00:46:03] Speaker 06:
And again, the district courts here have often found responses like this to be sufficient under crew to require exhaustion.

[00:46:12] Speaker 06:
The district court did in this case.

[00:46:13] Speaker 06:
There have been other exhaustion cases.

[00:46:15] Speaker 06:
And so, as to what the form might look like, you do need to tailor it to that response.

[00:46:22] Speaker 07:
Can I ask you this question?

[00:46:25] Speaker 07:
Your brief says the following at the bottom of page 35.

[00:46:28] Speaker 07:
Such an appeal, meaning an administrative appeal, would have allowed DHS to further explain its withholdings.

[00:46:34] Speaker 07:
And it would, but how would it have allowed DHS to further explain its withholdings in a way that it couldn't have done so already?

[00:46:45] Speaker 07:
Like that's what I'm not understanding is it may still be enough, but in terms of functionally what's allowed by the determination that was made, it's true that an appeal would allow the agency to further explain its withholdings, but the claim that's being asserted on the other side is, but you also could have explained the withholdings more in the initial determination.

[00:47:05] Speaker 07:
You didn't need an administrative appeal to be able to do that.

[00:47:08] Speaker 06:
That's fair, but again, 552A6 Romanat 1 simply says you need to notify them of the determination and the reasons therefore.

[00:47:21] Speaker 06:
And this court interpreted that word determination to include the scope of what's withheld and the scope of what's provided.

[00:47:26] Speaker 06:
Whether you could do more at the initial determination stage or not isn't the issue.

[00:47:31] Speaker 06:
It's whether you've met the crucial.

[00:47:32] Speaker 01:
I don't think we're fighting about more.

[00:47:34] Speaker 01:
I think we're fighting about what scope

[00:47:37] Speaker 01:
So it's not that we're trying to add more to CRU.

[00:47:41] Speaker 01:
We're now addressing something that wasn't addressed, didn't need to be addressed there, because it's just a different problem.

[00:47:47] Speaker 01:
And what is scope?

[00:47:51] Speaker 01:
So the agency takes its first cut, and then there's an administrative appeal.

[00:48:00] Speaker 01:
And as for the documents that the agency decided to withhold,

[00:48:05] Speaker 01:
And let's just assume in full.

[00:48:07] Speaker 01:
Let's assume we don't have any partial ones, just for my hypothetical.

[00:48:10] Speaker 01:
So there's somewhere, you know, 10 released, five withheld.

[00:48:13] Speaker 01:
And here's a list of exemptions that we thought applied in some sort of way.

[00:48:18] Speaker 01:
Something in there applied to each of the documents, maybe more than one.

[00:48:22] Speaker 01:
For the appeal, when the agency hands up its documents to the appellate people, do they give them a list of the stuff that was withheld?

[00:48:32] Speaker 01:
Or do they just hand them a big old,

[00:48:35] Speaker 01:
pile of stuff and a list of exemptions, none matching with anything else.

[00:49:13] Speaker 01:
Thank you, sir, about that.

[00:49:21] Speaker 06:
I'm still getting used to being up here.

[00:49:23] Speaker 06:
A lot of time spent over there and in the back.

[00:49:29] Speaker 06:
So the agency in this case, I guess, and we described in our brief how it's the National Records Office that does the appeal for DHS.

[00:49:35] Speaker 06:
So I'm going to answer your question just as to DHS.

[00:49:37] Speaker 01:
Sure, that's all.

[00:49:39] Speaker 01:
For example.

[00:49:39] Speaker 06:
The FOIA request is made.

[00:49:42] Speaker 06:
The files are pulled.

[00:49:43] Speaker 06:
It's in one system.

[00:49:44] Speaker 06:
And the appeals office, I think it's the National Records Office, but I apologize.

[00:49:48] Speaker 06:
The names are correct in our brief.

[00:49:50] Speaker 06:
It has access to the whole request, including all pages and files that were withheld in full, all that were produced, all that were, I guess in your hypo, they were only withheld in full.

[00:50:00] Speaker 06:
So they see that.

[00:50:01] Speaker 06:
They're not given a separate index saying this is what was or wasn't withheld.

[00:50:05] Speaker 06:
They merely are told this request, which is in the system with the documents that are responsive, is being appealed.

[00:50:13] Speaker 06:
And they would receive the appeal, you know, the request from the plaintiff.

[00:50:17] Speaker 02:
This is a computer system?

[00:50:19] Speaker 02:
Yes.

[00:50:21] Speaker 02:
And the documents aren't named in the computer system?

[00:50:24] Speaker 02:
Documents don't have names?

[00:50:27] Speaker 07:
Presumably there are copies of the documents so you could look at the documents and see what they are.

[00:50:32] Speaker 07:
I assume.

[00:50:42] Speaker 06:
Yes.

[00:50:43] Speaker 06:
Council's informing, there's nothing in the system that names each document.

[00:50:46] Speaker 06:
They have to click into the production and look and see what the document is.

[00:50:51] Speaker 06:
So there isn't an index.

[00:50:53] Speaker 06:
I don't know if I said that before I meant to.

[00:50:55] Speaker 06:
There isn't an index.

[00:50:56] Speaker 01:
I just didn't know if it was like a bunch of PDFs and someone had to label each PDF as.

[00:50:59] Speaker 06:
No, and I know I'm well over time, if I could just make a very quick point in response to something opposing counsel said.

[00:51:05] Speaker 06:
He said the Privacy Act isn't implicated here, and actually the use of the Privacy Act exemplifies how DHS sought to go above and beyond here.

[00:51:12] Speaker 06:
When they were interpreting this as a request by Ms.

[00:51:14] Speaker 06:
Kine for her own documents,

[00:51:16] Speaker 06:
The Privacy Act 552A subsection B2 says nothing can be withheld under the Privacy Act if it would be available under section USC 552.

[00:51:25] Speaker 06:
So it can't be withheld under the Privacy Act if it can be withheld under FOIA.

[00:51:28] Speaker 06:
But in certain instances, the Privacy Act gives the requester a right to information about themselves.

[00:51:34] Speaker 06:
And so by applying Privacy Act exemptions, all the agency was doing was saying, if we're going to withhold anything, we need to both know that it has a Privacy Act and a FOIA exemption.

[00:51:43] Speaker 06:
It would have to have a FOIA exemption under the Privacy Act, but if it has a FOIA exemption and no Privacy Act exemption, the Privacy Act might require us to provide it to her, because the Privacy Act can require disclosure of your own documents, in instances FOIA would not.

[00:51:55] Speaker 06:
Again, I apologize, I know I'm well over time.

[00:51:58] Speaker 04:
Okay.

[00:51:58] Speaker 06:
Thank you, counsel.

[00:52:01] Speaker 07:
We'll give you your two minutes for rebuttal.

[00:52:09] Speaker 05:
I would suggest that the statute is the primary concern here.

[00:52:14] Speaker 05:
CRU did not deal directly with the statute.

[00:52:17] Speaker 05:
The statute says, immediately give the requester the reasons.

[00:52:21] Speaker 05:
And CRU was talking about other stuff.

[00:52:23] Speaker 05:
It was a very broad request.

[00:52:24] Speaker 05:
In the context of a broad request, no VON index is required.

[00:52:28] Speaker 05:
But let's look at the statute directly.

[00:52:30] Speaker 05:
Crew did not do that directly.

[00:52:32] Speaker 05:
But I'm asking you to do this.

[00:52:35] Speaker 05:
Immediately is a word we have to give it a meaning to.

[00:52:38] Speaker 05:
They know the answer.

[00:52:41] Speaker 05:
They counted out the eight pages.

[00:52:43] Speaker 05:
They know what the answer is.

[00:52:44] Speaker 05:
Why can't they say?

[00:52:45] Speaker 05:
And they've counted out three pages.

[00:52:47] Speaker 05:
Why can't they say what they are?

[00:52:48] Speaker 05:
I believe the question was, why don't you?

[00:52:51] Speaker 05:
And then I'm not sure what the answer was, but he's talking about megabytes of data and stuff.

[00:52:55] Speaker 05:
Well, in this case, it's simple.

[00:52:58] Speaker 05:
They know they're holding it in their hands.

[00:52:59] Speaker 01:
Well, maybe in this case, but there's nothing in the text of FOIA that would allow one definition of determination for what you deputize, a small request, and maybe a different one for medium, and then a different answer for large, and then maybe another difference for gargantuan requests, which they do get sometimes.

[00:53:17] Speaker 01:
That's true.

[00:53:18] Speaker 01:
OK, so then we have to have a definition of determination that applies to the

[00:53:24] Speaker 01:
500,000 page responses as well as the five page responses, don't we?

[00:53:29] Speaker 05:
Well, not for the purposes of this case, as we don't.

[00:53:31] Speaker 01:
Well, we don't write opinions for a case.

[00:53:33] Speaker 01:
We write, you're asking us to interpret the law, and that's what we do in a way that applies to all cases.

[00:53:39] Speaker 05:
Well, yes, Your Honor, but I would suggest we decide this case.

[00:53:42] Speaker 05:
She made a small request, and it's easy for the agency to comply.

[00:53:47] Speaker 01:
Do you think FOIA applies differently to her than to everybody else?

[00:53:51] Speaker 05:
When you make a small request, it's different than if you make a large one.

[00:53:54] Speaker 01:
Do you think the text of FOIA applies differently to her than to everybody else?

[00:53:58] Speaker 05:
The text applies to, no, it's the same.

[00:54:02] Speaker 05:
The request itself is what is important.

[00:54:05] Speaker 05:
I would suggest that there's no reason why the agency cannot respond to the, do what the statute says.

[00:54:12] Speaker 05:
It seems to me it's very easy for them to do that, and they have not given a good reason not to.

[00:54:16] Speaker 07:
Thank you, counsel.

[00:54:18] Speaker 07:
Thank you, counsel.

[00:54:19] Speaker 07:
The case is submitted.