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Case number 18-5047 at L, National Security Counselors Appellant versus Central Intelligence Agency.

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Mr. McClanahan for the appellant, Mr. Hinchelwood for the appellate.

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Good morning, Your Honors.

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Thank you.

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My name is Phil McClanahan.

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I'm here for National Security Counselors.

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This case, as you can tell from the large stack of bindings in front of you, is fairly complex, but it really boils down to a few core precepts that I'll hit in relatively brief fashion and then hopefully answer any questions that you have.

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This case altogether is really about

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finding out how the CIA and to a certain degree other agencies conduct their FOIA requests, how they process FOIA requests, either by requesting records about processing or requesting records that would reveal processing, and then using that information to challenge some of the more pervasive problems that the agencies have.

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The first one that I'm going to hit is this policy of refusing to process records.

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That every agency refuses to process records that aren't reasonably descriptive.

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This is allowed by FOIA, but CIA takes it to another level.

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And they take such positions as saying that sorting a database requires them to create a record.

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because Congress in 1996 redefined that shorting a database constitutes a search, but did not mean to say that anything that was found during that search was a record that they had to process.

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This type of hair splitting is really sort of nonsensical.

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It violates the canon against surplusage.

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It basically gives no meaning.

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Canon against what?

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Surplusage.

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It renders the terms of the amendments moot, basically makes them just an afterthought.

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And it doesn't give meaning to the words of the amendment, which is directly prohibited by binding precedent.

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reserve the right to say that something both

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If too general, if not reasonably descriptive, they would have to search every agency system in existence.

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But at the same time, they could do a limited search, and do do limited searches in other cases, and then argue with a long list of case law about how that's all that is required.

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They don't have to do a perfect search.

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They don't have to do an adequate search.

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And when they do this,

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It basically gives them the choice to decide whether or not to process a request based on how they choose to interpret it.

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And the best way to look at this policy is just to look at the examples that we've given.

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On page 163 of the Joint Appendix, you have them saying that they can't understand a request for all reports of the Open Source Center for one month.

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On the- Sorry, what did you say?

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Pardon me?

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What did you say?

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I didn't hear it.

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Which part?

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The lessons.

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Oh, that on Joint Appendix 163, they say that a request for all reports of the Open Source Center, which is a specific office, in one month was not reasonably descriptive.

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They did not know where to look for those records.

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Oddly enough, we requested records – we requested denial letters for requests in which they had decided that something was not reasonably descriptive.

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And they said they could not search for those.

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They could not search for the records about how they can't search for records.

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And the number of times they said that.

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Page 176, one particular office, a requester asked for records generated by the – one office mentioning Dearborn, Michigan, because it was about violent extremism.

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They said they could not find those records.

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They could not think of where to look for those records.

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They refused to process it.

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And to show how finely they cut this, page 177 is perhaps the most interesting one, because we requested all emails sent to or received by the head of the FOIA office for a one-week period.

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We said it was in her email account.

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It was basically all emails in her email account for the last week.

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And they said, this does not reasonably describe the record.

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So we cannot search for this because we don't possibly know where to look for records about what email she received.

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And she's the head of the FOIA office.

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So let me ask you, is your basic argument that the agency is hiding records and making it, or is it that you don't want to

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Set out your request in the level of detail the agency is requiring.

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It's not that there's a lack of desire to make them – make requests as specific as they require.

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It's that they don't – they're not consistent.

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They will take the same request and process it on Monday and then say it's not reasonably descriptive on Tuesday.

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There is no degree of detail that they cannot explode into unreasonableness, because they – Do we have an example of the Monday, Wednesday?

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Not in the record, but I have gotten records about... No, not in the record.

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Pardon me?

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If it's not in the record, then it's not before us.

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I just want to be clear.

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I understand you don't approve of the way the agency is doing it, but the question is, from our point of view, is that a violation of FOIA?

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And the agency, I don't think you're arguing that the agency is deliberately hiding records contrary to law.

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Rather, you're objecting to the way they respond to requests.

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No, Your Honor.

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I am objecting to the fact that they do not process requests at all.

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So they are hiding records in that they refuse to process the request.

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Why?

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Why?

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Why do they refuse?

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Yes.

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You'd have to ask them, obviously.

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No, no, no, no.

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What I'm trying to get at here is I understand an argument if the agency just got your request and said, deny, deny, deny, or we can't process it.

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But that's not what the agency has been doing.

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And you and the agency, as I read some of the record at any rate, have been quarreling over how detailed your request needs to be.

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In other words, asking for all the emails that a director received in a week.

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I mean, suppose she gets 5,000 emails a day.

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Then they have to process 35,000 pages.

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That is still reasonably describing the record song.

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Well, you might think it is, but if they have to do it manually and go through each of her emails,

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You could see where the agencies could reasonably say, tell us what you want.

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Your Honor, I can see why they would want to, but it's frankly not allowed by FOIA.

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They are not allowed.

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How do you find that out of FOIA?

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Because FOIA requires that you reasonably describe the record sought in terms that a professional agency employee familiar with the subject matter can determine what you're looking for.

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Well, my example.

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So they have 35,000 emails a day.

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There is ample case law that says that the sheer size of a request.

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No, no, no.

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But what I'm getting at, suppose half of those emails are all about the director's travel plans.

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And that's not what you're looking for.

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That's not what you're interested in.

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You're interested in something else.

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So the agency says, tell us what it is you want.

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Why isn't that reasonable?

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I just need to understand why that's not reasonable.

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So I'm going to step back a second to draw an analogy here.

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First of all, why I want the records is immaterial.

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And if I want all of the records that she received in a week to know what kind of records she received and what kind of emails she received in the week, that is a legitimate FOIA request.

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It doesn't matter.

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And in this particular case, had they... I understand it doesn't matter what your reason is, but I'm just getting at the notion from the agency saying the request is supposed to be, the statute, the request is supposed to be reasonably descriptive of the nature of the information you're receiving.

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Now, if you just want to know what the director's been doing for a week and you want to see that information

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through her emails, that's one thing.

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But isn't it reasonable for the agency at least to challenge that and say, what is it you're looking for so we can focus our search?

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And if they did that, that would be fine.

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And that gets to the work with policy.

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They don't ask what you're looking for.

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They say, we are not going to reprocess this request, full stop.

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Sometimes they say, you would have to write a new request that complies with our regulations and the way our record systems are configured, which is not

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asking what you're looking for.

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It is just we are not going to process your request.

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We're done here.

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So is this coming up in the context of the search related to Watson?

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The search related to Watson is the second point.

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It was the second point that I made of the idea of not the database searching, but that they will say we have to look in every single account because somebody might have said something about Watson.

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So yes, that was where that goes.

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And then what's the first point?

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Because I thought with this

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part of the case, there's two things going on.

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One is with respect to the search related to Watson, the determination was made that the search is too broad.

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And then the dispute, I don't think that the search is too broad, just if you take the search literally as described, it's that you think there's other things that put some parameters on the scope of that search.

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But the other piece of it is the question of whether the agency was required to create a record.

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that of this part of the case.

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So do you want me to answer my time is up?

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It's getting in my head.

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Yeah, help me frame what are the two things that you're talking about.

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So the Watson search, I would push back and say, I don't agree that it was unreasonably burdensome or something.

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I'm saying that they chose to interpret it in such a way, but a reasonable person, a reasonable professional agency employee would have said, OK, this is where we can search.

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Those are the places that are reasonably likely to have records.

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In other words, your view was the agency was obliged to reduce your request to a manageable level?

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No, Your Honor.

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My belief is that the agency was required to reasonably describe or to reasonably search for records that it believed, with its superior knowledge of its own record system,

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would be likely to get records.

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No requester is required to say, I want records in that particular box, because none of us will know that that box even exists.

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No, no, that's not my point.

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You requested any information relating to Watson, pertaining to Watson.

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Yes.

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That's an enormously broad request.

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Now, I thought I understood you to say it was the obligation of the agency

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to help you narrow that request?

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No, Your Honor.

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It was the duty of the agency to determine where in its systems those records are likely to be found.

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And you are assuming, with all due respect, that it's a massive request.

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But that is not in the record anywhere.

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NSA had something like five pages.

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But I thought I read your brief to say that there was an obligation on the agency to help you narrow the request to those

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references to Watson that you wished to gain?

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So, yes, Your Honor, and I see where the confusion is.

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So that is the work with policy that I mentioned earlier.

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That policy is only triggered when something is unreasonably described.

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My position is that the Watson request was not unreasonably described, but even if it were, they had a duty to reach out and try to work with us, and they did not.

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And my time passed a while back, so unless you want me to continue, I'll hit the restaurant button.

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I want to highlight a few points about that.

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So first of all, this claim that the CIA has some sort of general policy of

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unreasonably applying the reasonably described requirement, which is, I believe, how it's described in plaintiff's complaint.

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The examples that counsel was citing a few moments ago to you with JA citations are all from material that was not actually part of plaintiff's complaint and was only provided to the district court initially in response to a motion to dismiss.

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And the district court actually declined to consider that material because it actually wasn't part of the record, even in district court.

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Even aside from Judge Rogers, your questions about the other references counsel was making to material outside the record.

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Then more specifically as to some of the other questions, I mean part of the issue here is of course that it's very difficult to and really impossible to sort of litigate these other requests in a vacuum.

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I mean the question here is whether plaintiff has actually demonstrated any particular harm

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from any of the purported policies or practices that it alleges exist, and it actually hasn't demonstrated any such harm to it in the first instance.

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I mean, the Watson request is actually an excellent example, both because as

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We were discussing with counsel earlier, the request is far too broad and the agency properly declined to process it in its form, initial form, but also with respect to plaintiff's other claim about this work with policy.

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The Watson letter is actually an example.

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of a time when the CIA actually did provide fairly specific advice to a requester about ways to potentially narrow a search.

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So recommended that the plaintiff provide a narrower search by, for example, identifying contracts pertaining to Watson, if they exist, which might explain what records the plaintiff was seeking.

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Suppose the request had asked for all contracts regarding Watson.

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Would that have still been too broad from the agency's point of view?

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It's hard to know in the abstract, you know, the CIA... Well, what I'm trying to get at is this whole notion is that, you know, the agency can say, we want you to identify the box date, you know, et cetera, to the point where a requester is not going to know them.

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And the agency has authority to set up records, systems, but, arguably, not in a manner that keeps legitimately

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requested information from the requester.

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And I'm trying to decide in my own mind what's really at stake here.

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And I gather from the appellant's point of view, his Watson request he thinks is legitimate and consistent with Foyer's reasonably described.

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And how detailed must the requester be?

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Well, your honor, that's obviously a question that's going to vary in context, but certainly a request that seeks any record within an entire agency that's related to Watson or some similar target is going to be

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I'm sorry, go ahead.

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No, you go ahead.

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I was going to say, particularly in this context where you have an extremely large agency, going to be unreasonably burdensome and not something the agency can really process in a reasonable way.

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And so requesting that a requester narrow that request or somehow provide additional information about what exactly is being sought would

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you know, would be beneficial.

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And Plaintiff's brief, I think, actually sort of tries to make this point.

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At one point, it references a part of the request letter for Watson, where it referred to sort of specific applications of Watson in artificial intelligence.

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But that was in the context of asking for a fee waiver, not the request itself.

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Would that request have been okay if it were not made in the context of asking for a fee waiver, but it were wrapped into the request itself?

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Again, I, you know,

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The CIA doesn't sort of try to prejudge, you know, requests that might come to it.

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It's sort of difficult to know whether... But in terms of over-breath, in terms of this point that it's unduly burdensome.

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It would certainly be a narrower request than one for all agency records pertaining to Watson.

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Certainly, there are any number of ways you could narrow

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Now, whether the agency would be able to process a particular narrow request would be a determination the agency would have to make when it received it, but just about anything would be narrower than a request for all CIA records pertaining to Watson, which is what the original request saw.

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And, you know, despite the fact that, say, did provide, you know, some general direction or guidance about how, you know, a request might be narrowed, depending on what plaintiff was actually seeking, you know, plaintiff didn't actually try to, you know, narrow that request or do anything to put a finer point on what exactly it was seeking to enable the agency to process the request.

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Counsel, I understood, perhaps in more, that counsel argued

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that if it required the agency to do a search to determine whether material in response to its request existed.

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After making a search, you would have de facto a list of what you searched, which could also be disposable.

[00:19:01] Speaker 06:
Is that correct?

[00:19:02] Speaker 06:
That's his argument, I think.

[00:19:05] Speaker 06:
Are you still talking about the Watson request?

[00:19:07] Speaker 03:
No, I'm talking more generally.

[00:19:09] Speaker 03:
I'm sorry, I'm not sure I follow quite which claims we're referring to.

[00:19:15] Speaker 06:
My understanding of counsel's position was that if he requests information to which the CIA conducts a search,

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At the end of the search, your computers could be tasked to create a list of what you searched.

[00:19:40] Speaker 03:
Oh, I see.

[00:19:42] Speaker 06:
And why is that not true?

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Your Honor, this is getting to the so-called aggregate data, the database claim.

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I see, Your Honor.

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So the issue here is really a question about what constitutes creation of a record in this context.

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Exactly.

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And as plaintiff's opening brief recognizes,

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The same, well, let me back up.

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The same principles apply to a computer stored record as would apply to a paper record.

[00:20:08] Speaker 03:
And I think that's, I mean, that was the position in our brief and that's the position this court just reached on Friday in the Institute for Justice case that was just decided last week.

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And so our position has been if, even if it's technically possible or even technically simple to create a new record in response to a FOIA request, the agency's still not required to do that because the principles here are the same.

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And plaintiff's brief appears to recognize that, acknowledges that the district court's decision here would be correct in the context of paper records or electronic records not stored in a database, but says that somehow there ought to be some different rule in this context, and we don't think there's any basis in the FOIA.

[00:20:48] Speaker 03:
this court's case law before Friday and now a post-Friday for suggesting that that's actually true.

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So independent of whether it would be technically feasible or easy, it would still be record creation.

[00:21:00] Speaker 03:
And I think the district court's example through creating an index of paper files is very helpful.

[00:21:05] Speaker 03:
As the district court pointed out, if you ask the CIA, give me an index of your Cuban Missile Crisis files, and an index didn't exist, and you'd have to create one, no one thinks that's a legitimate request under FOIA.

[00:21:17] Speaker 03:
The same is true in the database context where, you know, that material, that index, that listing doesn't exist already.

[00:21:24] Speaker 03:
There's no obligation on the agency to create it in response to a FOIA request.

[00:21:28] Speaker 01:
So if you have a situation in which somebody makes a request to search and the request implicates electronic database materials and so then the agency conducts an electronic database search and then it gives the results of that search under FOIA and then in the course of doing that it creates its own index.

[00:21:46] Speaker 01:
because, you know, the agency does a search, it sorts, the sort itself, the act of sorting itself creates a new set of information, which is the segregated categories of things that have been sorted, and then the agency spits out the documents and gives it in response to request one, that can someone come along and request two and say, you know what I'd like now?

[00:22:05] Speaker 01:
I'd like the sort.

[00:22:07] Speaker 01:
Like, I'd like the thing that was created that, as part of the search that you conducted to respond to request one, and I know that you created this new record

[00:22:16] Speaker 01:
as part of request, as part of the answer to request one, and so you didn't have to create that record.

[00:22:21] Speaker 01:
But now you have created the record, and as part of request two, I'd like that record.

[00:22:25] Speaker 03:
Right.

[00:22:25] Speaker 03:
Well, that gets to the second part of what counts as a record, which is not only just a record that the agency created, but one that it retained.

[00:22:31] Speaker 03:
So then the question would be whether the agency retained it in some format.

[00:22:35] Speaker 03:
If it did retain it, then presumably it would be subject to a future request.

[00:22:39] Speaker 01:
In the ordinary course of business.

[00:22:40] Speaker 01:
So it's up to the agency.

[00:22:42] Speaker 01:
to determine what it ordinarily does with those kinds of products.

[00:22:46] Speaker 03:
Right.

[00:22:46] Speaker 03:
I think the district court pointed out the fact that an agency may have conducted a search at some time, even if it's one identical to the plaintiff's request, wouldn't necessarily render that search a record, because it's not one the agency has created and retained.

[00:23:00] Speaker 03:
And so that, I think, is responsible.

[00:23:04] Speaker 06:
Is there a possibility that we're looking to the possibility of a never-ending

[00:23:11] Speaker 06:
process whereby there is a request for information and then a request for how you delivered that information and then a request for how you delivered that information and we would go sequentially ad infinitum.

[00:23:28] Speaker 03:
You know, it's possible that you could have, if the agency were to retain, create and retain each time all that information, that there would be future requests.

[00:23:36] Speaker 03:
And I think this also gets, Your Honor, to a concern the district court raised, which is that, you know, even assuming that it's possible for the agency to create this particular record, which of course in district court, you know, we explained that it wasn't, the, or at least not without huge manual effort, the FOIA is not designed to be a statute that enables sort of

[00:23:56] Speaker 03:
individuals to take advantage of agency FOIA staff to engage in sort of big data research or things of that nature.

[00:24:03] Speaker 03:
And so there was a concern that District Court expressed, which I think is a very valid one, about turning agency FOIA staff into sort of research assistants who sort of run these kinds of searches and sorts and produce results at the behest of requesters.

[00:24:18] Speaker 05:
How do you distinguish the whole Vaughn index process?

[00:24:23] Speaker 03:
Well, Your Honor, the Vaughn index process

[00:24:27] Speaker 03:
I mean, certainly that's a response to a properly formulated request.

[00:24:32] Speaker 05:
I mean, it's creating a record in the sense that it, you know... It gives me a list, tells me what exemptions you're invoking, something that didn't exist before.

[00:24:46] Speaker 03:
Right.

[00:24:46] Speaker 03:
I mean, it's a document the agency creates in order to meet its obligations in litigation, which are sort of independent

[00:24:54] Speaker 03:
in a sense, from having a requester come in and request documents.

[00:24:58] Speaker 05:
So you're clear that once the requester files suit, you may have an obligation to, quote, in your view, create a record, close quote, in the nature of a Vaughn index.

[00:25:10] Speaker 03:
Certainly you have to create a Vaughn index in many circumstances.

[00:25:14] Speaker 03:
But that's always been true.

[00:25:15] Speaker 03:
I mean, even with respect to paper records, nobody believes you have to create a record in this Vaughn request.

[00:25:20] Speaker 03:
I understand entirely.

[00:25:21] Speaker 05:
And that's my point.

[00:25:24] Speaker 05:
If that's not creating a record in regard to fulfilling your obligations under the statute, then why is it for some reason an impermissible suggestion that the agency is being forced to create a record?

[00:25:50] Speaker 05:
in a manner that's inconsistent with its obligations under FOIA.

[00:25:55] Speaker 03:
I think maybe the distinction there is what is, again, the purposes for which the records are created.

[00:25:59] Speaker 03:
So in one instance, as in this case, or the index of the Cuban Missile Crisis files, what you're talking about is creating a record in response to a FOIA request and to sort of

[00:26:10] Speaker 03:
produce that record to the plaintiff to satisfy the request as opposed to, you know, a post-initiation of suit obligation to explain the agency's actions in not producing certain records or portions of certain records to a plaintiff.

[00:26:26] Speaker 06:
Wouldn't your response to my colleague's very good question be that the courts have never

[00:26:35] Speaker 06:
thought there was an inconsistency in requesting a FON index and at the same time stating over and over again, an agency doesn't have to create a record.

[00:26:47] Speaker 03:
Right.

[00:26:47] Speaker 03:
I think that's correct, Your Honor.

[00:26:49] Speaker 03:
Yes, absolutely.

[00:26:50] Speaker 01:
In other words, when somebody makes a request, it's not like they make a FOIA request and say, the thing I'm requesting is the FON index that you're going to create in response to this request.

[00:26:58] Speaker 01:
Right.

[00:26:58] Speaker 01:
The FON index is created as part of the processing of the request.

[00:27:02] Speaker 01:
I suppose, though, but then if

[00:27:03] Speaker 01:
create a bond index in response to a request, and it's the agency's practice to preserve, to keep bond indexes, then you could have a subsequent search request, FOIA request, that asks for bond indices.

[00:27:15] Speaker 03:
Right.

[00:27:15] Speaker 03:
And of course, you know, if these sentos are filed in court, they become publicly available documents.

[00:27:19] Speaker 03:
I mean, you know, there's no shortage of that information out there.

[00:27:22] Speaker 03:
Bond indices are

[00:27:23] Speaker 01:
So I have a question on a different aspect of the case unless I'm diverting track here.

[00:27:29] Speaker 01:
So the attorney-client privilege with the DOJ documents.

[00:27:32] Speaker 01:
So one thing I'm not entirely clear on is the way to conceptualize that, because as I understand what happened,

[00:27:40] Speaker 01:
There were OLC opinions in the past, portions of which were deemed by the district court to have been put in the public domain.

[00:27:48] Speaker 01:
And then with respect to those portions, the district court then said, well, then that has to be disclosed because there's a general principle under FOIA that if something's already out there in the public domain, then you disclose it in response to a FOIA request.

[00:28:01] Speaker 01:
And then the question comes up, well, wait a minute.

[00:28:03] Speaker 01:
If that's out there already, then the way the attorney-client privilege typically works is when you have a snippet of a communication that's disclosed, then the privilege is waived as to that communication.

[00:28:15] Speaker 01:
And I think everybody agrees that that's generally how attorney-client privilege law works, that when a part of a communication is disclosed, then there's a waiver as to that communication.

[00:28:25] Speaker 01:
So then the question becomes, well, why doesn't that mean that you have to disclose the whole LLC opinion, a portion of which

[00:28:32] Speaker 01:
was previously deemed to have been disclosed and therefore has to be disclosed here.

[00:28:35] Speaker 01:
And the only way I could think about thinking through that is that the reason that the disclosure happens now, it just doesn't have anything to do with the waiver of the attorney-client privilege.

[00:28:44] Speaker 01:
It's that there's this separate principle under FOIA that says that when something's out there in the public domain, you have to turn it over.

[00:28:50] Speaker 01:
But there's been no waiver of any part of the privilege as to that document.

[00:28:55] Speaker 01:
Because if there were, then why wouldn't the general idea kick in that says that once there's been a waiver of the privilege as a part of the document, well, then there's a waiver of the privilege as to the entire document.

[00:29:04] Speaker 03:
Well, Your Honor, I want to back up.

[00:29:05] Speaker 03:
I'm not certain that the sort of general principle is necessarily the disclosure of a discrete piece of communication that's otherwise attorney-client privilege is actually a waiver as to the entire

[00:29:15] Speaker 03:
communication and everything that goes along with it.

[00:29:17] Speaker 01:
You don't know that that's right about attorney-client law?

[00:29:19] Speaker 01:
Is that what you think?

[00:29:20] Speaker 03:
Right, so I mean, for example, the case that I think plaintiffers relied on is Inrei von Bulo, which is from the Second Circuit, and that actually has examples of some situations where there are sort of specific disclosures of attorney-client communications that were made in a book, and the court said, well, those specific communications are waived, but it's not that the entire universe of communications on that topic is waived.

[00:29:39] Speaker 01:
So on topic I get, so I think on subject matter, I take the point with respect to subject matter, but with respect to A, communication.

[00:29:47] Speaker 01:
Suppose it's an email.

[00:29:49] Speaker 01:
I thought the way attorney-client privilege, but correct me if I'm wrong, I thought the way it worked is if there's a disclosure of a part of an email in the context in which the privilege could have been asserted but wasn't, well then there's a waiver of the privilege as to that email.

[00:30:04] Speaker 03:
I'm not certain exactly how that would play out in that particular context, but what we have here is sort of waiver over, you know,

[00:30:12] Speaker 03:
and disclosure of particular aspects of communications that took place through other formats, not the opinions themselves in most instances.

[00:30:22] Speaker 03:
And so generally, when you're asserting that there's going to be a broad waiver that's going to sweep beyond the portions that have been specifically disclosed, you generally have to demonstrate that there's some sort of litigation type advantage being gained.

[00:30:37] Speaker 03:
And that's the kind of principle under FOIA that we don't normally

[00:30:41] Speaker 03:
that's the kind of analysis we don't really engage in in the FOIA context.

[00:30:45] Speaker 03:
I mean, that's the lesson of Sears and Grolier and these sorts of cases that talk about not disputing over what a particular plaintiff might be able to obtain in litigation when there's a showing of disclosure sort of for cause.

[00:31:00] Speaker 03:
And the same principle's been applied by this court in the work product context, cases like Linton Connolly and Rockwell, and there's no real difference

[00:31:07] Speaker 03:
here, I mean, the only difference is that we're talking about the attorney-client privilege, so the work product privilege, but the two things are essentially the same.

[00:31:13] Speaker 03:
And plaintiff's contention is that subject matter waiver is what's doing the work here, and there's no doubt that that's the kind of thing you can't import into the FOIA context.

[00:31:23] Speaker 01:
So the way you view it is, it's subject matter waiver or it's waiver of the particular snippet that's previously been disclosed, there's not a principle that says

[00:31:33] Speaker 01:
something between, which is to say, not all the subject matter, but the communication.

[00:31:37] Speaker 01:
If there's been a snippet of a communication that's been disclosed, then the way attorney-client privilege generally works is there's a way of arresting that communication.

[00:31:44] Speaker 01:
Right.

[00:31:45] Speaker 03:
You know, I think in the FOIA context, no, I think it's, you know, it's going to be specific to the particular disclosures that were made, you know, or you're kicked into this.

[00:31:53] Speaker 01:
But how about outside the FOIA context?

[00:31:54] Speaker 01:
I mean, do you know just the matter of privilege law generally?

[00:31:56] Speaker 01:
Is that

[00:31:58] Speaker 01:
right, that when there's a disclosure of a particular, a piece of a particular communication, then the general understanding is that that communication is, the assertion of the privilege is waived as to that communication?

[00:32:10] Speaker 03:
I'd have to go back and review, I don't know off the top of my head exactly how that's normally adjudicated, but at least in this context, we think the normal principles in FOIA dictate either sort of the narrow waiver or this sort of thing.

[00:32:21] Speaker 06:
Let's talk here, Hassan.

[00:32:22] Speaker 06:
Did you argue that

[00:32:24] Speaker 06:
the same matter could be covered by both the lawyer client and deliberative process?

[00:32:31] Speaker 06:
We did, Your Honor.

[00:32:32] Speaker 06:
That's why my recollection.

[00:32:34] Speaker 03:
Yeah, the district court concluded that the agencies, the DOJ's declarations on that point weren't sufficient for deliberative process privilege, so presumably we'd have the opportunity to try again.

[00:32:45] Speaker 06:
Why did the district court think that was true?

[00:32:49] Speaker 03:
that the declarations weren't sufficient.

[00:32:51] Speaker 03:
I think the district court seemed to think they were too conclusory or general in their descriptions of where the documents were sort of used in the process.

[00:32:58] Speaker 03:
But those questions were presented here.

[00:33:01] Speaker 01:
You didn't challenge the district court's conclusion on that, right?

[00:33:03] Speaker 03:
Well, it was just a denial of summary judgment, but we were granted summary judgment on the same documents under attorney-client privilege.

[00:33:09] Speaker 03:
And if there are no further questions?

[00:33:19] Speaker 05:
All right, counsel for a pillar.

[00:33:23] Speaker 02:
So Your Honor, I'm actually going to respond to your question that you just asked him, because you have gotten to the exact point of this matter.

[00:33:32] Speaker 02:
And even the district court recognized that voluntary disclosure of privileged material subjected to the attorney-client privilege to unnecessary third parties waives the privilege not only as to the specific communication disclosed, but often as to all other communications relating to the same subject matter.

[00:33:50] Speaker 02:
And that's from N. Ray Seale case of this court.

[00:33:53] Speaker 02:
And the distinction that CIA is trying to make is that, well, just because it's been waived in attorney-client privilege context doesn't mean it's been waived for FOIA.

[00:34:08] Speaker 02:
But that is the wrong distinction.

[00:34:09] Speaker 02:
That's like saying that something that has been de-classified, formally de-classified, can still be withheld under B-1 because it wasn't un-B-1ed.

[00:34:20] Speaker 02:
B1 allows them to withhold all material that is not currently and properly classified.

[00:34:25] Speaker 02:
B5 allows them to withhold all material that is currently and properly privileged.

[00:34:31] Speaker 02:
It is not privileged if there's been a waiver.

[00:34:34] Speaker 02:
They are trying to avoid this by throwing up arguments about how litigation advantage happens in our brief.

[00:34:40] Speaker 02:
We said that's not true.

[00:34:42] Speaker 02:
The case law does not support that.

[00:34:44] Speaker 02:
There are certain limited situations where subject matter waiver would not apply, but

[00:34:50] Speaker 02:
It definitely would apply if they released part of a formal opinion and then tried to withhold the rest of the opinion, like the reasoning that got to the conclusions.

[00:35:00] Speaker 01:
I guess one of the questions would be, is the reason that the snippet has to be disclosed now, is that reason, in fact, because there's a waiver of the privilege?

[00:35:09] Speaker 01:
Because if that were true, then it would trigger this consequence that you're highlighting, which is that then maybe the entire communication becomes, or is it that FOIA

[00:35:19] Speaker 01:
just has a principle out there that cuts across all privileges that just says, look, if there's something out there in the public domain, if there's a snippet of something that's out there in the public domain, then what's the point of saying that there's not going to be a disclosure of that now?

[00:35:31] Speaker 01:
It's already out there.

[00:35:32] Speaker 01:
So you just disclose it again in response to this FOIA request, and then we're just not going to engage on the privilege.

[00:35:37] Speaker 01:
So there's been no waiver of the privilege as to that snippet.

[00:35:40] Speaker 01:
It's just that that snippet is already out there, so we just let it come back out again.

[00:35:44] Speaker 02:
So the prior disclosure doctrine is basically a futility doctrine.

[00:35:47] Speaker 02:
And as you say, there's no point in withholding something that's already out there.

[00:35:51] Speaker 02:
The problem with this case was that the judge, when she denied summary judgment to the CIA the first time, laid out both arguments and said, on one argument, there's the FOIA prior disclosure.

[00:36:06] Speaker 02:
On the other argument, there's attorney-client subject matter waiver.

[00:36:09] Speaker 02:
Either way, they got to release stuff.

[00:36:13] Speaker 02:
And then they came and they applied the prior disclosure argument and released only narrowly quoted things.

[00:36:22] Speaker 02:
And then the second time it comes around,

[00:36:25] Speaker 02:
For whatever reason, Judge Howell said, okay, I find it in favor, and he ignored the subject matter waiver issue.

[00:36:35] Speaker 02:
So we don't know why she found that at least part of it had to be released.

[00:36:41] Speaker 02:
We just know that she found that under either analysis,

[00:36:45] Speaker 02:
Part of it had to be at least part of it had to be released.

[00:36:49] Speaker 02:
And then something happened in the next year or so that obscured that.

[00:36:53] Speaker 02:
But now we're back here to the de novo question, as she's saying, if something is not privileged.

[00:37:01] Speaker 02:
full stop, you cannot withhold it under FOIA.

[00:37:04] Speaker 02:
If it's not covered by the Delivered Process Privilege, you cannot withhold it under FOIA.

[00:37:08] Speaker 02:
If it's not covered by the Prespendigent Privilege, you can't withhold it under B-5.

[00:37:12] Speaker 02:
And if it's not covered by the Attorney's Line Privilege, because it has been waived, you can't apply B-5.

[00:37:20] Speaker 02:
And I am over time, but I have a couple more points if I could hit them quickly.

[00:37:26] Speaker 02:
So I'm not going to hit all the arguments that we've got here because there's lots of arguments.

[00:37:30] Speaker 02:
The other main thing that I wanted to say in response to the CIA's argument is that they're trying to obscure the fact that in a database,

[00:37:44] Speaker 02:
There is not, they aren't files.

[00:37:46] Speaker 02:
There's just information in the database.

[00:37:48] Speaker 02:
It is impossible to get information out of a database without transforming it into some kind of record.

[00:37:56] Speaker 02:
And they're saying that if you file a request for all information about

[00:38:01] Speaker 02:
FOIA requesters whose names started with K this year, that because they would have to do a search for the K and then cut that out and print it, that that would be creating a record.

[00:38:13] Speaker 02:
But if you don't do that, it makes it functionally impossible.

[00:38:18] Speaker 06:
What do you do about the word retain?

[00:38:21] Speaker 02:
It's in the database, therefore it is retained.

[00:38:24] Speaker 02:
They're trying to say that they have not retained a list of all the requesters that start with K, but FOIA is, Meet Data Central said FOIA is about information, not records.

[00:38:34] Speaker 06:
And the information- That's a little bit like saying if we could develop a human being that had this capacity to recall all facts that, and we asked this human being

[00:38:49] Speaker 06:
give us this search of X, Y, and Z, and he gives us a search, and then it's in his brain.

[00:38:58] Speaker 06:
So therefore, there's a record.

[00:39:00] Speaker 06:
That's your theory, right?

[00:39:01] Speaker 02:
No, for you, it doesn't allow you to request thoughts.

[00:39:05] Speaker 06:
No, no, no, but if we develop somebody who's had a brain equivalent to the computer, that would be your theory.

[00:39:14] Speaker 06:
That once he conducted that search, that list was in his brain.

[00:39:20] Speaker 02:
If a database or an AI system has information in it, then that information is subject to FOIA, the Freedom of Information Act.

[00:39:31] Speaker 06:
And it doesn't have to be made into a list, in your view.

[00:39:35] Speaker 02:
If there's some way to export records from a database without making it a list, I don't know it.

[00:39:40] Speaker 06:
That would be an extraordinary expansion of the liability of the agencies.

[00:39:47] Speaker 02:
If they had an AI that did that, it would be an expansion.

[00:39:50] Speaker 02:
But currently they do not.

[00:39:52] Speaker 02:
They just have a database and the information in that database is subject to FOIA.

[00:39:56] Speaker 06:
No, that itself would be an enormous expansion.

[00:40:01] Speaker 02:
Saying that information in a database is subject to FOIA?

[00:40:04] Speaker 06:
Saying that a search constitutes a list.

[00:40:08] Speaker 02:
No one has said that a search, okay, so first of all, Congress said that a search constitutes, that applying software and conducting a search of a database and sorting a database constitutes a search under FOIA.

[00:40:23] Speaker 02:
It's a search, no question.

[00:40:25] Speaker 02:
And what do you search for?

[00:40:27] Speaker 02:
You search for releasable information.

[00:40:28] Speaker 02:
It is nonsensical to say that you can, this constitutes a search

[00:40:34] Speaker 02:
But anything we find in that church, we don't have to release because we can't get it out of the database without creating or without putting it in a list or printing it or taking a screenshot.

[00:40:45] Speaker 06:
You're overstating.

[00:40:46] Speaker 02:
Pardon me?

[00:40:47] Speaker 02:
You're overstating.

[00:40:49] Speaker 02:
With respect, I'm not.

[00:40:50] Speaker 02:
This is the argument they're making, Your Honor.

[00:40:54] Speaker 02:
And I agree that it is a ludicrous argument.

[00:40:57] Speaker 02:
It is not my argument.

[00:41:00] Speaker 02:
And on that note,

[00:41:02] Speaker 02:
I've already taken up way too much of your time.

[00:41:05] Speaker 02:
I've written too many words on this argument.

[00:41:08] Speaker 02:
So unless you have any further questions, I'm done.

[00:41:12] Speaker 05:
Thank you.

[00:41:13] Speaker 05:
Thank you very much.