[00:00:10] Speaker 00:
Thank you, Your Honor.

[00:00:20] Speaker 00:
Good morning.

[00:00:25] Speaker 00:
This case was not moved for two reasons.

[00:00:28] Speaker 00:
First, because with respect to the records that the USDA finally reposted in its reading room,

[00:00:36] Speaker 00:
the agency continues to withhold large amounts of information that the plaintiffs brought this case to obtain, and second, because of the voluntary cessation of unlawful conduct exception to the Moody's Doctrine.

[00:00:52] Speaker 00:
As to the first category, when the agency finally reposted thousands of inspection reports in its electronic reading room that it had taken down, that had been up there for decades, for over a decade,

[00:01:07] Speaker 00:
And the agency took down on February 3rd, 2017.

[00:01:12] Speaker 00:
When it finally reposted those records, it redacted from those records huge categories of information that had already been in the records, but now the agency had decided to redact.

[00:01:25] Speaker 00:
And all of that information was information that my clients brought this case to obtain.

[00:01:30] Speaker 00:
And all of that information is still withheld from them.

[00:01:34] Speaker 00:
And therefore, for that reason,

[00:01:36] Speaker 00:
This case was not moot.

[00:01:39] Speaker 00:
Our complaint clearly covered all of the information that had been taken down from the website.

[00:01:44] Speaker 00:
Our relief asked for declaratory and injunctive relief with respect to all of that information.

[00:01:50] Speaker 00:
And my clients still don't have access to all of that information.

[00:01:54] Speaker 00:
So there really can be no question, given that situation, that we have a live controversy here.

[00:02:01] Speaker 00:
As to the second reason, the voluntary cessation of unlawful conduct

[00:02:06] Speaker 00:
exception to the mootness doctrine.

[00:02:07] Speaker 00:
That also applies here and demonstrates that the case is not moot.

[00:02:12] Speaker 00:
Because what happened here was that after we brought the case and after we briefed the motion to dismiss, the agency began reposting some, albeit not all of the information at issue, and most significantly continued to take the position which it takes before this court, that it has absolutely no obligation

[00:02:36] Speaker 00:
to disclose any of that information affirmatively in the reading room and therefore can take it down at will whenever it wants to.

[00:02:43] Speaker 00:
And for that reason, the agency simply can't meet its heavy burden to demonstrate that the unlawful conduct is not likely to recur and it also can't meet its additional burden to demonstrate that

[00:02:59] Speaker 00:
its actions have completely and irrevocably eradicated the effects of the alleged violation.

[00:03:04] Speaker 00:
Again, we don't have the information.

[00:03:06] Speaker 03:
Just to see where we are.

[00:03:09] Speaker 03:
In a case such as this where the government believes it never had any obligation to provide information,

[00:03:20] Speaker 03:
And it reverses that.

[00:03:21] Speaker 03:
It reverses it's already giving the information, but then it reverses that and provides it, saying, we still don't have any obligation to do it.

[00:03:32] Speaker 03:
It can only be found non-mute by the court reaching the merits.

[00:03:40] Speaker 00:
That's right, Your Honor.

[00:03:41] Speaker 03:
Yeah.

[00:03:42] Speaker 00:
OK.

[00:03:42] Speaker 00:
That's right.

[00:03:42] Speaker 03:
I just wanted to make sure I understood the consequence of your theory.

[00:03:45] Speaker 00:
Yes, particularly.

[00:03:46] Speaker 03:
Go ahead.

[00:03:48] Speaker 03:
So it's a set of cases where mootness really doesn't apply.

[00:03:53] Speaker 00:
Correct.

[00:03:54] Speaker 03:
It's rather odd that mootness doesn't apply in a case where government at least believes it's entirely voluntary.

[00:04:01] Speaker 03:
But what is your theory that there's any obligation on the part of the government to provide these materials?

[00:04:09] Speaker 03:
Well, our theory.

[00:04:10] Speaker 03:
You addressed that in gray, but not an overwhelmingly powerful argument.

[00:04:19] Speaker 00:
You're asking what is our theory on the merits, Your Honor, of whether or not these documents are subject to the affirmative disclosure requirements?

[00:04:24] Speaker 00:
Yes, yes.

[00:04:26] Speaker 00:
Well, our theory is that all of these records, which were for years affirmatively disclosed by the agency, in which the agency said it was obligated to affirmatively disclose, fall within the category of records.

[00:04:41] Speaker 03:
The Senate was obligated to disclose?

[00:04:42] Speaker 00:
Yes, in several instances, yes.

[00:04:45] Speaker 00:
Yes, Your Honor.

[00:04:46] Speaker 00:
In fact, if you look at JA 186 and 177, you'll find two memoranda by agency officials in which they reach the conclusion that inspection reports and annual reports, which are the documents at issue here, are the kinds of documents that must be affirmatively disclosed because they have both been released under FOIA and they are frequently requested by requesters under FOIA.

[00:05:14] Speaker 02:
So for that reason, and because... Can you say, when was that, J.A.

[00:05:20] Speaker 02:
186?

[00:05:20] Speaker 00:
J.A.

[00:05:21] Speaker 00:
177, I think it's J.A.

[00:05:23] Speaker 00:
177 and 186 are the two memoranda.

[00:05:28] Speaker 02:
Is it 187?

[00:05:29] Speaker 00:
186, maybe the first page of the document.

[00:05:36] Speaker 02:
Uh-huh, the other one was 177?

[00:05:37] Speaker 00:
Yes, it's actually, well, if you, sorry, let's start with the first one.

[00:05:41] Speaker 00:
If you look at 179,

[00:05:44] Speaker 00:
For the reasons set forth below, I conclude that the animal care reports, which are, if you have to look at the beginning of the memo, which they're talking about are the inspection reports and the annual reports, qualify as records subject to multiple requests under EFOIA and must be made available to the public via electronic means.

[00:06:05] Speaker 00:
So that's one example of where the agency had previously determined that the information had to be affirmatively disclosed.

[00:06:14] Speaker 00:
And yes, the other one begins on 186, but the pertinent language is on JA 188, where the agency is explaining that prior to September 11, 2001, the animal care and FOIA

[00:06:29] Speaker 00:
departments determined that the animal care inspection reports and ANA reports qualify as reading room records because of the continuing high interest from animal interest groups as well as the general public.

[00:06:40] Speaker 00:
So our position is that this information falls squarely within the category of records that subsection A2 of FOIA requires to be affirmatively disclosed.

[00:06:55] Speaker 01:
Where in the complaint

[00:06:57] Speaker 01:
Do you allege that any of these documents have been released pursuant to a FOIA request under A3?

[00:07:10] Speaker 00:
Well, Your Honor, we, throughout the complaint, allege that all of the records at issue are required to be affirmative to be disclosed, which encompasses all of the requirements that would apply to an affirmative disclosure.

[00:07:26] Speaker 00:
point out that the agency itself has made those determinations in the past, and therefore that they have to be firmly discussed.

[00:07:36] Speaker 00:
We didn't break it out into each of the categories of, we didn't mention the word release in the complaint, but I would say that in addition to, say, pleading in the complaint that these records are all subject to the affirmative disclosure requirements, when the government raised this issue below,

[00:07:54] Speaker 00:
We submitted additional information in response to their argument showing that, in fact, these documents have been released in the past and have been frequently in the past.

[00:08:05] Speaker 01:
But have been released in what manner?

[00:08:09] Speaker 01:
In response to an A3 FOIA request or posted in the reading room under A2?

[00:08:17] Speaker 00:
Well, we've demonstrated that they've been posted in the reading room under A2.

[00:08:22] Speaker 00:
A-2 in response to A-3 requests.

[00:08:26] Speaker 03:
That is what we... That is what we... You're talking about A-3 requests dating back to 2004.

[00:08:32] Speaker 03:
I mean, I guess your theory really is that it goes on indefinitely.

[00:08:39] Speaker 00:
Right, or through 2017 when we brought this case, the agency itself

[00:08:47] Speaker 00:
when these kinds of documents were requested, would point requesters to the reading room for them.

[00:08:52] Speaker 00:
That is clear.

[00:08:53] Speaker 00:
It's in their website.

[00:08:54] Speaker 00:
If you look at JA 173, they say that on the website.

[00:08:57] Speaker 00:
If you look at the affidavit of Kevin Shea, who is the agency official who explains this in a declaration submitted in a different case, he explains that that's what they did.

[00:09:07] Speaker 00:
Instead of dealing with those requests, they sent the requester to the reading room.

[00:09:12] Speaker 00:
So our position is that with respect to everything that was certainly up there at the time, the inspection reports and the ANA reports had already been released under A3 and therefore by virtue of being put in the reading room in response to an A3 request and therefore we have certainly

[00:09:32] Speaker 00:
provided enough information on that.

[00:09:34] Speaker 01:
That issue... So you don't take issue with the proposition that they have to be released in response to an A3 request?

[00:09:44] Speaker 01:
I thought your gray brief was arguing a different legal theory that you don't need an A3 request if they're posted in the reading room under A2 that counts as release regardless.

[00:09:59] Speaker 00:
Our argument is that by virtue of being placed in the reading room, because the agency itself has determined these are the kinds of records that we have released routinely in the past pursuant to an A3 request,

[00:10:12] Speaker 00:
and that will be routinely requested in the future, that those are the categories of records that have to be put in the reading room.

[00:10:21] Speaker 00:
And so therefore, we have no issue with that.

[00:10:23] Speaker 00:
Now, I will say, Your Honor, we don't think that issue is properly before this Court, but the government has asked the Court to reach it.

[00:10:34] Speaker 00:
Court believes there's enough information to rule in our favor.

[00:10:38] Speaker 00:
We're all in favor of the court reaching it.

[00:10:40] Speaker 00:
But I will say we have also sought discovery on this.

[00:10:42] Speaker 00:
Because, of course, the agency is in a unique position to know which of these documents have been released under A3 in the past.

[00:10:50] Speaker 00:
And we've asked for discovery on that.

[00:10:52] Speaker 00:
And we've also challenged the district court's denial of our motion to take discovery as being moved.

[00:10:57] Speaker 00:
So if there's any question about whether or not we have adequately alleged that these documents are released,

[00:11:04] Speaker 00:
or whether the court has jurisdiction over the matter because of that, we would say we are entitled to a remand and so that we can take the discovery that we've requested.

[00:11:11] Speaker 00:
If you look at JA-177, I think it is – I may be mistaken about that – it's JA-143, which is our motion requesting the opportunity to take discovery.

[00:11:24] Speaker 00:
We make it very clear that we want to take discovery on the issue of whether or not the information

[00:11:31] Speaker 00:
at issue in fact qualifies for further disclosure because it meets the criteria under the statute.

[00:11:37] Speaker 00:
So I think you could rule in our favor on that if you want to, but you certainly can't rule against us.

[00:11:43] Speaker 00:
I think you would be entitled to a remand to make a further evidentiary record on that.

[00:11:48] Speaker 00:
I see my time is up.

[00:12:03] Speaker 04:
May it please the Court, and I'm John Capella from the Appellate Staff Service and the U.S.

[00:12:07] Speaker 04:
Department of Justice, representing the Appellee's USDA in Animal and Plant Health Inspection Service.

[00:12:16] Speaker 04:
The district court correctly held that this case is moot by virtue of the reposting of the vast amount of the material sought and the

[00:12:32] Speaker 04:
The plaintiffs only raised a – they were only challenging the temporary wholesale removal of the documents.

[00:12:43] Speaker 04:
They were not challenging a policy.

[00:12:45] Speaker 04:
They were challenging a single action, and the reposting mooted that claim.

[00:12:54] Speaker 04:
As far as the nature of an A2 request goes, as Judge Katzis was emphasizing, the plaintiff – documents can only be disclosed or only fall within A2 if they have previously been the subject – they have been released under A3.

[00:13:21] Speaker 04:
and the plaintiffs haven't even alleged, they've not alleged anywhere in their complaint that that was the case.

[00:13:28] Speaker 03:
Well, the claim, as I understand it, is that the postings on the website and memoranda that they have indicate that the agency has decided that these are frequently under request and therefore they should go into the reading room.

[00:13:51] Speaker 03:
I'm not sure if I fully understand the theory, but it seems to run indefinitely in the sense that it's not clear what could cut it off.

[00:14:02] Speaker 04:
Well, I think that's correct, Your Honor.

[00:14:06] Speaker 04:
It isn't clear what can cut it off.

[00:14:08] Speaker 04:
But again, even with respect to the 2003 and 2004 memoranda,

[00:14:14] Speaker 04:
There's no actual statement in those memoranda that these – the records – the same records we were talking about here have been subject to – have been released under A3.

[00:14:30] Speaker 04:
And also in – I believe it was June of 2009.

[00:14:34] Speaker 02:
Mr. Can we – I mean, we're only at the complaint stage here.

[00:14:38] Speaker 02:
Yes.

[00:14:40] Speaker 02:
Isn't it plausible?

[00:14:41] Speaker 02:
They have a, for example, paragraph 22.

[00:14:43] Speaker 02:
In the past, USDA has acknowledged that the facility inspection reports were the most frequently requested APHIS reports under the FOIA, and that making them available on our website will go a long way toward informing the public, et cetera.

[00:14:56] Speaker 02:
Isn't it at least plausible that if they are the most frequently requested APHIS records under FOIA, that they were actually released under FOIA?

[00:15:04] Speaker 02:
It seems not an enormous jump, logical jump.

[00:15:10] Speaker 02:
and for simply for purposes of plausibility in the complaint, that seems like enough.

[00:15:16] Speaker 04:
Well, Your Honor, I don't think it really would be enough because there still has to be an actual allegation that it was, that the requirements of 832 were met.

[00:15:28] Speaker 02:
Well, they did.

[00:15:29] Speaker 02:
They made that allegation.

[00:15:31] Speaker 02:
They alleged that these are covered by the reading room requirement.

[00:15:35] Speaker 02:
Then you say in response, well, you have to you have to allege every element of what that requirement is.

[00:15:41] Speaker 02:
I'm not sure that's the law.

[00:15:43] Speaker 02:
But even if it is the law, they allege something that makes it plausible that they've been requested.

[00:15:49] Speaker 02:
And unless the government's position is we normally

[00:15:51] Speaker 02:
deny all FOIA requests, even though we acknowledge that they're the most frequently requested ones, and that as a result we're putting them in the reading room, which seems like a surprising denial for the government to make, this seems like a very plausible argument.

[00:16:07] Speaker 02:
Now, they may turn out to be wrong.

[00:16:08] Speaker 02:
I understand that.

[00:16:09] Speaker 02:
But we are only – right now we're talking about the merits.

[00:16:12] Speaker 02:
I want to go back to the mootness for a minute.

[00:16:15] Speaker 02:
But I don't understand why that's insufficient.

[00:16:18] Speaker 02:
for purposes of the complaint?

[00:16:20] Speaker 04:
Well, Your Honor, it's insufficient because the record makes clear that what the agency was talking about both in 2003 and 2004 and in the 2009 publication, which was the most recent statement concerning its approach to this matter, is that the documents were being put up voluntarily.

[00:16:44] Speaker 02:
Now we're on a different question.

[00:16:48] Speaker 02:
We're no longer on the merits.

[00:16:50] Speaker 02:
Now you're going back to mootness.

[00:16:51] Speaker 02:
On the merits question, they were frequently requested under FOIA.

[00:16:58] Speaker 02:
The fact that the government then produced them under FOIA and put them in the reading room, whether it was voluntary or not, doesn't have anything to do with the reading room.

[00:17:07] Speaker 04:
But again, there's no showing that they were released under A3, which is the operative.

[00:17:17] Speaker 02:
Does it matter which way they're released as long as they were requested under FOIA and put in the reading room?

[00:17:24] Speaker 02:
No, Your Honor, it has to be in response to an A3 request.

[00:17:30] Speaker 02:
This seems like a lot to expect in a complaint.

[00:17:33] Speaker 02:
It says they were the most frequently requested.

[00:17:35] Speaker 02:
You mean you think the complaint has to say we're most frequently requested under A2?

[00:17:42] Speaker 04:
It has to say that it met the requirements.

[00:17:46] Speaker 02:
Well, they did meet the allegation that they are required under the reading room requirement.

[00:17:52] Speaker 02:
Now, then what are those requirements?

[00:17:55] Speaker 04:
Well, the requirement is it applies to copies of all records, regardless of form or format, that have been released to any person under paragraph three.

[00:18:05] Speaker 02:
Yes, but I'm just asking whether it's necessary to specify that, to go to that level of detail.

[00:18:12] Speaker 02:
in making an allegation of complaint?

[00:18:14] Speaker 04:
Yes, Your Honor, we believe that it is.

[00:18:16] Speaker 02:
All right, I understand your position.

[00:18:18] Speaker 02:
Now, on the mootness question, first on the question of voluntary cessation, has the government, has any government official of this agency said that from now on they intend to produce these documents and put them on the website in a reading, as a matter of, under their reading room?

[00:18:43] Speaker 04:
That was essentially their unbroken practice until... That's fine.

[00:18:48] Speaker 02:
That's fine.

[00:18:48] Speaker 02:
But has any agency official said that that will be their practice in the future?

[00:18:55] Speaker 02:
The answer is no, right?

[00:19:00] Speaker 02:
I don't think there's anything specific in the record that there's... No, there's nothing specific or vague.

[00:19:05] Speaker 02:
That is, it's not enough to say we did it in the past, period.

[00:19:11] Speaker 02:
I understand the argument that the government should be given some presumption.

[00:19:15] Speaker 02:
I understand that argument.

[00:19:17] Speaker 02:
But all of those cases are ones in which the government said, we're going to do this in the future.

[00:19:23] Speaker 02:
We don't have any affirmative statement like that here.

[00:19:25] Speaker 02:
We don't even have an affirmative statement from you, that is, from a lawyer of the Justice Department, which I doubt would be sufficient anyway.

[00:19:32] Speaker 02:
But we have no statement from the government agency involved that they plan on doing this in the future.

[00:19:40] Speaker 02:
So I don't understand how that gets around voluntary cessation.

[00:19:45] Speaker 04:
Well, again, there's no reasonable expectation that this will recur.

[00:19:51] Speaker 02:
Well, the reasonable expectation is it's because of the history of this.

[00:19:55] Speaker 02:
Well, obviously, there's a new administration.

[00:19:58] Speaker 02:
A new administration makes changes.

[00:19:59] Speaker 02:
A new administration may be entitled to make changes.

[00:20:02] Speaker 02:
And the fact that all previous administrations have done it one way, and then suddenly it was cut off,

[00:20:08] Speaker 02:
Maybe the new administration will continue.

[00:20:10] Speaker 02:
Maybe it won't.

[00:20:11] Speaker 02:
It would have been easy to have an affidavit from a government official of this agency say, we intend to follow the old practice.

[00:20:18] Speaker 02:
Trust us.

[00:20:19] Speaker 02:
We don't have that.

[00:20:20] Speaker 04:
Well, Your Honor, that's because of the way this case was litigated and decided.

[00:20:25] Speaker 04:
The district court, essentially, sue a sponsor.

[00:20:27] Speaker 02:
Yes.

[00:20:28] Speaker 02:
Well, there's a problem with that, I guess.

[00:20:30] Speaker 02:
But you could have put in evidence.

[00:20:34] Speaker 02:
Without that evidence, the question is whether

[00:20:37] Speaker 02:
The district court was correct in doing this.

[00:20:42] Speaker 02:
I mean, I understand the argument and how far it goes, I don't know.

[00:20:47] Speaker 02:
That the government has given more credit with respect to its promises than a private.

[00:20:51] Speaker 02:
But there is no promise here.

[00:20:52] Speaker 02:
That's the problem.

[00:20:53] Speaker 02:
There's no promise at all.

[00:20:55] Speaker 02:
Now, what about on the redacted information?

[00:20:58] Speaker 02:
They asked for all of this information.

[00:21:01] Speaker 02:
You gave them some, not all.

[00:21:04] Speaker 02:
Why isn't at least the redacted information issue not moot?

[00:21:08] Speaker 04:
As the district court held, that's not what this case was about.

[00:21:11] Speaker 02:
The case was about the wholesale removal of the... Well, that doesn't seem... I don't under... I mean, we should read the complaint with some sympathy for the complainants.

[00:21:22] Speaker 02:
And they are asking for all information.

[00:21:25] Speaker 02:
I don't understand why we should read

[00:21:28] Speaker 02:
How could they possibly have known that the response was going to be to produce some but not all of the information?

[00:21:38] Speaker 02:
I don't understand what more they could have said.

[00:21:40] Speaker 02:
They said, we want all of the information that was up before, make all such records that have been removed available.

[00:21:46] Speaker 02:
That's what it says in the complaint.

[00:21:48] Speaker 02:
And all such information, all such records have not been produced.

[00:21:53] Speaker 02:
Only parts of them.

[00:21:54] Speaker 04:
Well, Your Honor, and that's precisely the point.

[00:21:57] Speaker 04:
This case was not about redactions.

[00:21:59] Speaker 02:
That was because there were no redactions before.

[00:22:02] Speaker 02:
Or if there were, they were asking for the document as previously redacted.

[00:22:07] Speaker 04:
Well, they were certainly free to amend their complaint.

[00:22:11] Speaker 04:
once it became clear that all of the stuff, all of the material had been released.

[00:22:16] Speaker 02:
But it hadn't been all released.

[00:22:17] Speaker 02:
This is the part I don't understand.

[00:22:18] Speaker 02:
Well, to make it clear that they were discussing redactions.

[00:22:20] Speaker 02:
I'm reading this complaint, and I can't read it the way you're reading it.

[00:22:24] Speaker 02:
So the question is, what's a reasonable reading of the complaint?

[00:22:28] Speaker 02:
And if a reasonable reading is that they wanted all the material that was in the document to begin with, then it's not moot.

[00:22:36] Speaker 02:
The court can't rewrite the complaint and then declare it moot.

[00:22:40] Speaker 02:
Well, Your Honor, it's certainly moot with respect to the material that was released.

[00:22:45] Speaker 02:
OK, well, that's a separate question.

[00:22:46] Speaker 02:
I understand that.

[00:22:47] Speaker 02:
And that goes to the voluntary cessation question.

[00:22:50] Speaker 02:
But Ms.

[00:22:52] Speaker 02:
Meyer also raises the redaction question.

[00:22:55] Speaker 02:
And I don't think you have an answer as to redacted material.

[00:23:00] Speaker 04:
Well, we're relying on the district court's statement in, I believe it's on page seven, footnote three of its opinion that this case was not about redactions and that the plaintiffs are free to pursue a claim regarding redactions.

[00:23:15] Speaker 02:
When somebody says the case is not about redactions, the only basis for that can be the complaint, since that's what's been dismissed.

[00:23:24] Speaker 02:
And the complaint asks for all such records.

[00:23:28] Speaker 02:
And it talks all about the information that they need, licensees' addresses, et cetera, et cetera.

[00:23:33] Speaker 02:
They explain why they need that information and how they've used that information.

[00:23:38] Speaker 04:
And they had already received the vast majority of that.

[00:23:42] Speaker 04:
The only thing that was redacted was personal privacy information.

[00:23:45] Speaker 02:
Mutinousness is a result by producing the vast majority of what was requested.

[00:23:50] Speaker 04:
Well, it does make it moot with respect to the material that was removed.

[00:23:56] Speaker 02:
Except for their future claims.

[00:23:57] Speaker 02:
So they also have a claim for the future, right?

[00:24:01] Speaker 02:
Yes, Your Honor, they do.

[00:24:03] Speaker 04:
The court made clear in crew that future claims are essentially disfavored.

[00:24:10] Speaker 04:
There has to be some reason to believe that the agency would be delinquent or showing delinquency.

[00:24:16] Speaker 02:
Yeah, right.

[00:24:16] Speaker 02:
Now we're back to the voluntary cessation question.

[00:24:21] Speaker 02:
I guess I would have liked to have seen some affidavit that we're going to continue producing this information now and we don't see it.

[00:24:29] Speaker 02:
I'm sorry, I guess I'm just, I'm asking the same question too many times.

[00:24:35] Speaker 02:
It's not fair to you, I apologize.

[00:24:38] Speaker 02:
Are there further questions?

[00:24:39] Speaker 01:
Just back to the merits for just a second.

[00:24:43] Speaker 01:
Suppose there is an A3 FOIA request and the government looks at it and either

[00:24:52] Speaker 01:
Thinks it's exempt or, yeah, you think it's exempt but you don't really care, you're willing to make a discretionary release and in response to that FOIA request you just put the document in the reading room even though you think it's covered by an exemption.

[00:25:13] Speaker 01:
Would that count as a release under paragraph three

[00:25:19] Speaker 01:
within the meaning of the reading room provision?

[00:25:24] Speaker 04:
Your Honor, I think it probably would, as long as it was done under A3 and it meets the requirements.

[00:25:35] Speaker 04:
If the agency determines that it was likely to be requested and that there was sufficient public interest to warrant it under the first prong of

[00:25:49] Speaker 04:
A to D that probably, probably.

[00:25:54] Speaker 01:
So then what's wrong with their merits theory, which is a combination of the fact of prior postings in the reading room

[00:26:07] Speaker 01:
combined with, in some general sense, the fact of prior A3 requests?

[00:26:14] Speaker 04:
Well, the problem is with the fact of some general sense of an A3 request.

[00:26:21] Speaker 04:
That's not sufficient to comply with the statute.

[00:26:25] Speaker 04:
There has to be an actual showing and an allegation, at least, that the... Document by document.

[00:26:32] Speaker 04:
Document by document, yes.

[00:26:36] Speaker 04:
Or at the very – even categorically, there still has to be an allegation that documents were released pursuant to A3 before the claim can withstand scrutiny.

[00:26:53] Speaker 04:
Any further questions?

[00:26:55] Speaker 04:
There are no further questions.

[00:26:56] Speaker 04:
I urge the court to adjourn.

[00:26:58] Speaker 02:
Thank you.

[00:26:59] Speaker 02:
Is there any time left?

[00:27:01] Speaker 02:
We'll give you another – you have another two minutes.

[00:27:05] Speaker 00:
Thank you.

[00:27:06] Speaker 00:
Just a couple of points.

[00:27:08] Speaker 00:
The reason you can't get the assurance from the government that you asked for, Judge Garland, is because the agency takes the position that it has complete discretion as to whether or not it's going to post these categories of records.

[00:27:25] Speaker 02:
No, I understand that position, and I understand, in Knox,

[00:27:30] Speaker 02:
The unwillingness to concede the law is a reason that the exception applies.

[00:27:38] Speaker 02:
I understand the government to be arguing, well, they get a special case because they're the government and they don't need that.

[00:27:44] Speaker 02:
And I'm assuming for purposes of argument only for that, that they're right about that.

[00:27:50] Speaker 02:
But even if the government takes the position that is in our discretion, the government can decide to disclose things that they don't have to disclose.

[00:27:58] Speaker 02:
White House logs, for example.

[00:28:00] Speaker 02:
Some administrations have released them.

[00:28:03] Speaker 02:
Some haven't.

[00:28:03] Speaker 02:
They've all taken the position they don't have to.

[00:28:07] Speaker 02:
But if they say they're going to be doing it and they're going to say they're going to be doing it for their duration of their administration or whatever it is, there's an argument that we should presumptively

[00:28:20] Speaker 02:
accept, at least for that period.

[00:28:23] Speaker 02:
The reason I'm asking this question here is that they're not even making that argument.

[00:28:26] Speaker 02:
Correct.

[00:28:26] Speaker 02:
So that even if we were to accept the government's argument about paying more attention to their promises than private parties, the discretion thing alone, if we accept that argument, wouldn't solve your problem.

[00:28:43] Speaker 02:
because somebody can voluntarily agree to do something that they don't have to do.

[00:28:47] Speaker 02:
And they can promise to voluntarily do that into the future.

[00:28:51] Speaker 00:
That's right.

[00:28:51] Speaker 00:
But we don't have the second component here.

[00:28:53] Speaker 00:
Second component being?

[00:28:56] Speaker 00:
Any assurance from the government that it's going to continue to post these records in the future.

[00:29:01] Speaker 03:
That's right.

[00:29:02] Speaker 03:
There are a lot of expressions of intent to continue to post them.

[00:29:06] Speaker 00:
Your Honor, I think the best, I think the Knox case is very helpful, the Supreme Court's case.

[00:29:11] Speaker 02:
No, Judge Williams is asking, are there

[00:29:13] Speaker 02:
Expressions of intent.

[00:29:14] Speaker 02:
235 of the Joint Appendix.

[00:29:18] Speaker 00:
Well, let's see what they say.

[00:29:19] Speaker 03:
There's a set of different categories which have treated slightly different wording for each of them.

[00:29:25] Speaker 03:
But for many of them, it says the government intends to continue doing this.

[00:29:30] Speaker 00:
235?

[00:29:33] Speaker 00:
Yeah.

[00:29:35] Speaker 00:
Oh, their report to the court?

[00:29:40] Speaker 00:
They may say they intend to, but at the same time, they say they can take it down whenever they want to.

[00:29:44] Speaker 03:
And I guess the better case... The other case... It seems to me that if they are in an area where they have a choice, you're demanding that they, in order to bring a litigation to an end, will give away a choice that they...

[00:30:03] Speaker 03:
believe they have.

[00:30:05] Speaker 03:
I'm just not sure.

[00:30:05] Speaker 03:
Well, our clients have challenged.

[00:30:07] Speaker 03:
Well, for the foreseeable future, there's actually no conflict.

[00:30:12] Speaker 00:
Well, Your Honor, our clients, this is an emotion to dismiss.

[00:30:15] Speaker 00:
Our clients have challenged the lawfulness of their position that they have the discretion to post these documents.

[00:30:21] Speaker 00:
Our position is they don't have the discretion.

[00:30:23] Speaker 00:
They're required by the affirmative disclosure requirements to post these records.

[00:30:27] Speaker 00:
That's our theory of the case.

[00:30:29] Speaker 00:
And so the question is,

[00:30:31] Speaker 00:
is their decision to discretionarily post those records, does that somehow move out the case?

[00:30:36] Speaker 00:
And then you get to the question of whether or not we have the voluntary cessation principle that applies here.

[00:30:42] Speaker 00:
And given that the government has not made any assurances at all that they're going to continue to disclose these categories of records, let me rely on the Payne Enterprises case, because I think that is really

[00:30:54] Speaker 00:
directly on point, that's a DC Circuit case, in which an agency official had actually put in an affidavit that the agency was going to continue now to process the plaintiff's request, the plaintiff was complaining about delays in processing requests.

[00:31:11] Speaker 00:
And this court said, no, that is not enough of an assurance that this is not going to recur again.

[00:31:17] Speaker 02:
I thought you might answer.

[00:31:18] Speaker 02:
I'm looking at this now.

[00:31:19] Speaker 02:
It is true that as to one category,

[00:31:24] Speaker 02:
annual reports.

[00:31:25] Speaker 02:
They say they intend to continue.

[00:31:27] Speaker 02:
But the others, conspicuously, they do not say that they intend to continue.

[00:31:32] Speaker 02:
They just say APHIS is now posting.

[00:31:36] Speaker 00:
Right.

[00:31:37] Speaker 02:
Especially with the... I'm not sure what to take from the... Inspection reports, in particular.

[00:31:43] Speaker 00:
Right.

[00:31:43] Speaker 02:
And also with the list of entities licensed.

[00:31:45] Speaker 00:
Right.

[00:31:46] Speaker 00:
So I think we squarely meet the criteria of a voluntary cessation here.

[00:31:51] Speaker 00:
And again, it's the government.

[00:31:52] Speaker 00:
The government bears a heavy burden to demonstrate.

[00:31:56] Speaker 02:
Well, maybe the problem is that we need more factual development as to what the government's actual position is.

[00:32:01] Speaker 00:
It's true.

[00:32:01] Speaker 00:
The district court had no briefing on this at all.

[00:32:03] Speaker 00:
The district court just sui sponte dismissed the case.

[00:32:05] Speaker 00:
It's moved.

[00:32:06] Speaker 00:
So there was no briefing by any of the parties on this issue.

[00:32:14] Speaker 02:
All right, we'll take that under submission.

[00:32:16] Speaker 02:
Thank you.