[00:00:07] Speaker 04: of the United States Department of Justice. [00:00:14] Speaker ?: Mr. Light for the appellate, Mr. Field for the appellate. [00:00:15] Speaker 05: Good morning. [00:00:15] Speaker 05: Jeffrey Light on behalf of Plaintiff Ryan Noah Shapiro. [00:00:20] Speaker 05: I'd like to begin by discussing the responsiveness of the documents listed in the search slip chart that were actually deemed responsive by the FBI, by an analyst at the FBI, and then later in a conclusion. [00:00:34] Speaker 04: What was the context of that deeming? [00:00:37] Speaker 04: What was the context of? [00:00:39] Speaker 04: You say deemed responsive. [00:00:41] Speaker 04: Yeah, that was an entry, responsive. [00:00:44] Speaker 04: Correct. [00:00:45] Speaker 04: And what stage things got to at the point of that deeming? [00:00:53] Speaker 05: Well, they got as far as having listed which keywords were used and what files were responsive to that search. [00:01:06] Speaker 05: That is, we know that when a search was performed for the term mosaic study, certain file numbers came up in response to that. [00:01:15] Speaker 05: The FBI's declarant later says that notwithstanding that, those are not responsive. [00:01:24] Speaker 05: How did you get the search slip? [00:01:27] Speaker 05: We did a separate FOIA request for search slips, and that's how we got it. [00:01:33] Speaker 03: So maybe we'll ask the FBI. [00:01:35] Speaker 03: I was surprised that you got that. [00:01:37] Speaker 03: That seems to me to be the sort of pre-decisional materials that you might not get. [00:01:44] Speaker 03: But anyway, you have it. [00:01:45] Speaker 05: This may be an unusual case in the sense that plaintiffs don't typically have that kind of information. [00:01:51] Speaker 05: But we do have it here, and there's no dispute about its admissibility or authenticity. [00:01:57] Speaker 05: And so we have [00:01:59] Speaker 05: from the government only a conclusory statement by Mr. Hardy saying these documents that our analysts wrote down were responsive or not responsive without any explanation as to why this search look chart was an error. [00:02:17] Speaker 05: And we have here [00:02:18] Speaker 05: We don't need to simply rely on the word responsive in the search slip chart, because we also have the keywords that are used by the analysts. [00:02:28] Speaker 03: So we have the keyword. [00:02:29] Speaker 03: And your point here is you want some explanation from the FBI why [00:02:34] Speaker 03: A judgment was made at some point by someone that these are responsive, or in one case, potentially responsive. [00:02:40] Speaker 03: And then you get a conclusory statement later that they're not. [00:02:43] Speaker 03: And you want a further explanation. [00:02:45] Speaker 05: We want a further explanation. [00:02:47] Speaker 03: If you didn't have the search slip, just hypothetically, if you didn't have the search slip, is their answer adequate? [00:02:52] Speaker 03: They've looked, not responsive. [00:02:56] Speaker 05: A conclusory statement in an affidavit, at least one that states a legal conclusion, should not [00:03:03] Speaker 03: Well, how much are you expecting of them? [00:03:05] Speaker 03: I mean, all the time, aren't we satisfied with the agency saying, we've looked, it's not responsive? [00:03:14] Speaker 05: Well, when a requester doesn't challenge any aspect of it, then fine, the agency doesn't need to see that. [00:03:23] Speaker 03: Well, that's what I'm getting at. [00:03:24] Speaker 03: So if you didn't have the search slip, [00:03:28] Speaker 03: What's your case look like then? [00:03:30] Speaker 05: We didn't have the search slip as evidence. [00:03:34] Speaker 05: Plaintiffs would still potentially be able to say, these are the specific file numbers that we're challenging. [00:03:41] Speaker 03: And they say, we've looked at that, and it's not responsive. [00:03:45] Speaker 03: And they get a presumption of good faith, right? [00:03:47] Speaker 03: So without the search slip, you have nothing. [00:03:50] Speaker 03: Isn't that right? [00:03:52] Speaker 05: Well, this case comes up to this court with the record as it is. [00:03:57] Speaker 05: And so we're not asking the court to issue any broader of a ruling than what we have here, which is it turns on the search slip. [00:04:06] Speaker 05: I mean, that's what I'm getting. [00:04:10] Speaker 05: Our position is that conclusory statements should not be entitled to wait, period. [00:04:15] Speaker 05: If there's a challenge to the responsiveness, then the government needs to adequately explain how it made a determination. [00:04:22] Speaker 03: For 10,000 documents? [00:04:23] Speaker 03: That's really a burden, isn't it? [00:04:25] Speaker 03: If you go through every document and explain why that's not responsive? [00:04:29] Speaker 05: They wouldn't need to go through every single document. [00:04:32] Speaker 05: They would need to go through whichever particular ones are itemized as a challenge or just state in some fashion how that was the determination was made. [00:04:42] Speaker 05: That is the answer the government might be give is we determined that all of these files were non responsive. [00:04:49] Speaker 05: because you asked for something within a certain time frame, and these fell outside of the time frame. [00:04:56] Speaker 05: That would be an example. [00:04:57] Speaker 05: We're not asking that they go through 10,000 pages. [00:05:01] Speaker 05: It's an explanation of how they arrived at that decision. [00:05:04] Speaker 05: Simply saying, you asked for them, we said they're not responsive, does not fill the basic purpose of the declaration under Vaughan, which is to give plaintiffs enough information [00:05:18] Speaker 05: put forth some sort of challenge. [00:05:20] Speaker 05: Here it does seem that what happened is that the FBI's narrow interpretation of the FOIA-requested issue is what led to them making the non-responsiveness determination. [00:05:30] Speaker 05: Because if you look at the – there are a couple of FOIA-requested issues here, but one of them specifically asks for any and all mosaic studies. [00:05:39] Speaker 05: And we have in the search slip [00:05:41] Speaker 05: file numbers that have mosaic study, that are responsive to the term mosaic study. [00:05:47] Speaker 05: So it's hard to imagine any way that these could have been deemed non-responsive other than the possibility that the FBI construed the request as being solely limited to the particular operation mosaic. [00:06:00] Speaker 05: that was described in the background section, notwithstanding the literal language of the request for any and all operation mosaic. [00:06:10] Speaker 05: I'm sorry, any and all mosaic studies. [00:06:13] Speaker 02: I can't ask you about that. [00:06:13] Speaker 02: So imagine that the FBI had an investigation, an undercover operation, I don't know, in Bolivia called Operation Mosaic. [00:06:26] Speaker 02: It had nothing at all to do with [00:06:29] Speaker 02: kind of piecing together of pieces of information with respect to FOIA or with respect to anything else, they just called it Operation Mosaic. [00:06:37] Speaker 02: Now, are you saying that you're entitled to that document? [00:06:42] Speaker 02: The way that the requests are written, yes. [00:06:44] Speaker 02: Okay, so what I don't understand is you made quite clear in your brief that [00:06:52] Speaker 02: who are seeking, I'm reading from the brief, seeking to learn more about the variety of issues relating to mosaic theory, operation mosaic, the use of mosaic theory, mosaic studies pertaining to context other than FOIA. [00:07:06] Speaker 02: These requests encompass both records pertaining to the operation mosaic described in the Webster article, as well as any mosaic studies, whether or not they related to FBI's FOIA. [00:07:18] Speaker 02: They relate to the FBI's use of the Mosaic concept more generally. [00:07:23] Speaker 02: The Mosaic concept, which you described in extensive detail, is not about an undercover operation in [00:07:32] Speaker 02: Bolivia or any other country or in the United States. [00:07:35] Speaker 02: It's about a theory of how little pieces of information can be put together into bigger pieces. [00:07:41] Speaker 02: It seems quite reasonable for the FBI to use that context, which you described extensively, to explain what you meant by Operation Mosaic. [00:07:52] Speaker 05: As a practical matter, in FOIA cases, requesters are not typically allowed to do a request, say, relating to a particular topic, because that can be anything related to anything else. [00:08:07] Speaker 02: So the way that... But in this case, you explained what you meant by Mosaic Theory and Operation Mosaic. [00:08:16] Speaker 02: You didn't ask... There's no way anybody could read your FOIA request reasonably. [00:08:22] Speaker 02: as being to any operation that happened to use the word mosaic in it. [00:08:27] Speaker 02: In fact, in the two examples where the FBI actually says that, you've given up on those. [00:08:33] Speaker 02: You're not asking for those anymore. [00:08:35] Speaker 02: The one that involves a company that has the word mosaic in the title, for example, you don't want that. [00:08:41] Speaker 05: But it's not that we don't want it. [00:08:42] Speaker 05: We're not challenging it. [00:08:43] Speaker 02: Well, why aren't you challenging it? [00:08:45] Speaker 02: That's my question. [00:08:46] Speaker 02: I mean, why aren't you challenging it? [00:08:47] Speaker 02: If that is really what you want, then why don't you insist on it? [00:08:52] Speaker 02: Well, we make decisions about what issues to present to the court. [00:08:57] Speaker 02: You say arguably you could get that. [00:08:59] Speaker 02: That's the word you said. [00:09:00] Speaker 02: Yes. [00:09:01] Speaker 02: That's a kind of a word to suggest you think if you tried that, the court would say that's not what you asked for. [00:09:07] Speaker 02: Are you saying you would imagine that the FBI explained that these files that contain the word mosaic have nothing to do [00:09:16] Speaker 02: the mosaic theory, with the mosaic method of putting together information, with respect to the FBI, with respect to FOIA or anything else. [00:09:27] Speaker 02: That's the reason why we think they're not responsive. [00:09:31] Speaker 02: That would still not be sufficient for you. [00:09:34] Speaker 05: Well, let me put it this way. [00:09:37] Speaker 05: Our position is that the literal scope of the request governs, and that beyond that, whatever is described in the background is just to evidence heightened interest. [00:09:47] Speaker 05: Notwithstanding that, we are not pressing the full extent of that on the appeal. [00:09:52] Speaker 02: We have specifically focused in on certain issues, because as part of our... So I'm asking you, imagine we sent back the ones where they don't explain it all. [00:10:06] Speaker 02: or where they, I think there are a couple of your examples where if they do say, it has to do with the name of a company, and then other ones where they just say, as you point out, has something to do with intelligence and, I don't remember what the other one was, organized crime or something like that. [00:10:23] Speaker 02: If we sent those back for an explanation and the explanation came back, those are the names of investigations. [00:10:32] Speaker 02: They're not – they have nothing to do with a particular theory of intelligence or of FOIA. [00:10:39] Speaker 02: Would you think that's not sufficient? [00:10:42] Speaker 02: That particular request is worded very specifically. [00:10:46] Speaker 02: It says – So you would require us to say that we reject your position? [00:10:50] Speaker 02: In order to reject this, we need to rule that you're wrong as a matter of law. [00:10:58] Speaker 02: I'm just asking. [00:10:58] Speaker 02: If we were to send it back and say, the question is, what is your reason for finding this responsive? [00:11:07] Speaker 02: And if the reason is that it's the name of an operation and it has nothing to do with the context described, that would be sufficient. [00:11:15] Speaker 02: You're saying we must go further. [00:11:17] Speaker 02: Court must hold that you're wrong as a matter of law. [00:11:20] Speaker 05: Correct. [00:11:20] Speaker 05: Okay. [00:11:21] Speaker 05: And to explain this... [00:11:23] Speaker 05: If I could point to page JA 147, where the specific request says, any and all records responsive to a full text search of the electronic case file for each of the below search terms, one of them is Operation Mosaic. [00:11:37] Speaker 05: That is literally what we have here, documents that are responsive to a full text search of the electronic case file for the term, quote, Operation Mosaic. [00:11:47] Speaker 02: It's then followed by a several pages long description [00:11:53] Speaker 02: from 149 to 150 of the context, explaining what Operation Mosaic was, explaining what Operation Mosaic theory was, quoting from FBI Director Webster's description and explanation of what Operation Mosaic is. [00:12:12] Speaker 02: The question is, if you're a reasonable FBI FOIA responder, [00:12:17] Speaker 02: You don't think you should be influenced at all by the four pages of context that you provided? [00:12:22] Speaker 02: Well, I have two responses to that. [00:12:25] Speaker 05: First of all, that section is premised by the language. [00:12:29] Speaker 05: The following information is provided in order to enable the FBI to locate the requested records. [00:12:34] Speaker 05: It is not intended to limit the scope of my request. [00:12:36] Speaker 05: The purpose of that was to say here is one operation mosaic that you are [00:12:41] Speaker 05: that we're giving you some more information about. [00:12:44] Speaker 05: But second, the question is not what a reasonable FBI agent would determine from this. [00:12:50] Speaker 05: The question is whether a plaintiff's interpretation is reasonable. [00:12:54] Speaker 05: And it may be that our interpretation is quite a bit broader than another reasonable interpretation. [00:13:01] Speaker 05: But the FOIA requests need to be liberally construed. [00:13:04] Speaker 05: And here, the court doesn't even need to go as far as really construing it at all, because the literal language of it [00:13:10] Speaker 05: matches exactly what the FBI did. [00:13:15] Speaker 05: would be hard pressed to say that something, a reasonable agent would read the literal language of this and determine that something other than the literal language governs because of something that was said several pages later with a specific indication that it is not intended to limit the scope. [00:13:36] Speaker 02: Well, but you say even in your own brief, I don't want to beat this to death, but your brief at page six says [00:13:42] Speaker 02: The broad language and these of other requests by Dr. Shapiro reflect his interest in the FBI's use of the mosaic concept more generally. [00:13:53] Speaker 02: That's what you say. [00:13:54] Speaker 02: You don't say they reflect Dr. Shapiro's interest in every document that has the word mosaic in it, in the FBI's files. [00:14:03] Speaker 05: Well, it's going to be up to plaintiff to determine if he receives those documents, which ones are of most interest to him or not of interest to him. [00:14:11] Speaker 02: Well, he can file, yes, and he can file another FOIA request. [00:14:17] Speaker 02: But that's not the FOIA request he filed. [00:14:18] Speaker 02: That's the question. [00:14:20] Speaker 02: You can always refine your request after you get what you ask for. [00:14:25] Speaker 05: I don't know what he would say to indicate he wants everything with the word operation mosaic. [00:14:31] Speaker 02: He could say I want everything with the word operation mosaic and I don't care whether it has anything to do with mosaic theory or concept or anything else. [00:14:43] Speaker 05: wrote that in the request, he'd then... I mean, it's possible a FOIA requester could say, this is what I want, period, and then in order to protect his rights, decline to give the FBI additional information that they could... The problem is that if you'd asked for every document with the word mosaic in it, you would be rejected as being burdensome and would be asked to redefine your request, which is what you did. [00:15:11] Speaker 02: You properly [00:15:13] Speaker 02: I think appropriately limited the request to the things that the requestor really wanted. [00:15:19] Speaker 05: Well, the requestor, the request, as literally written, was not rejected on that basis. [00:15:26] Speaker 05: The FBI did exactly what, which was to do an ECF full-text search for, quote, Operation Mosaic. [00:15:34] Speaker 05: The FBI then said, they're not responsive, notwithstanding the fact that we did the exact thing that you asked us to do. [00:15:43] Speaker 05: because they took a narrower reading than the FOIA request is susceptible to. [00:15:51] Speaker 05: I understand Your Honor's point that a reasonable FBI agent might interpret it that way. [00:15:59] Speaker 02: But the sole question before the court is, is this request susceptible to... I'm puzzled why you're spending so much time on this one rather than what seem like clear winners. [00:16:09] Speaker 02: Why don't you start with the one where you list six or eight files and they don't say anything about them at all? [00:16:16] Speaker 02: They don't say they're not responsive, they don't say they're destroyed. [00:16:20] Speaker 02: Doesn't it seem like the one to lead with? [00:16:23] Speaker 05: Well, if they're clear winners, there's not much for me to say beyond that. [00:16:28] Speaker 02: Well, I appreciate your belief that we have carefully read the briefs. [00:16:35] Speaker 02: Unfortunately, you're six minutes over. [00:16:37] Speaker 04: Did you say in your brief that the [00:16:40] Speaker 04: search that produced the search slips was electronic for the magic words? [00:16:49] Speaker 05: Yes, and Your Honor can see the search terms used on the search slip itself, which is JA-104. [00:16:55] Speaker 05: So the first one is Operation Mosaic, which resulted only in what they deemed analyst-removed. [00:17:02] Speaker 05: The ones at issue here are underneath that. [00:17:05] Speaker 05: Mosaic Study was the search term used. [00:17:10] Speaker 05: and then the file numbers are listed below that with the notation responsiveness, except for one that's listed as potentially responsive, and that's not one that we're challenging because it's listed only as potentially responsive. [00:17:27] Speaker 02: May I ask one more question? [00:17:29] Speaker 02: Yes. [00:17:29] Speaker 02: This has to do with the destroyed files. [00:17:31] Speaker 02: Yes. [00:17:31] Speaker 02: I also think it's a better argument for you, but I wonder why you [00:17:37] Speaker 02: focus on the question of whether they were legally or illegally destroyed. [00:17:42] Speaker 02: So imagine, I know this is from Judge Webster forward, but imagine it was [00:17:47] Speaker 02: during the Hoover period. [00:17:49] Speaker 02: And Hoover just destroyed every file he didn't like. [00:17:53] Speaker 02: And today, you're asking for documents which no longer exist because Hoover destroyed them illegally, as a hypothetical. [00:18:02] Speaker 02: Would that make any difference to whether your FOIA request was appropriately responded to? [00:18:10] Speaker 02: Imagine they said they were illegally destroyed by J. Edgar Hoover. [00:18:13] Speaker 02: Why does it matter whether they were legally destroyed? [00:18:16] Speaker 05: Well, if they were illegally destroyed, then the government would have some obligation to attempt to reconstruct them. [00:18:22] Speaker 05: So obviously, they couldn't give us documents that don't exist. [00:18:25] Speaker 05: But when the court has found that files were destroyed in bad faith, for example, after the litigation began... Ah, totally get it. [00:18:32] Speaker 02: If they were destroyed after you asked for the FOIA request, of course it would matter. [00:18:38] Speaker 02: But if they were destroyed [00:18:40] Speaker 02: 20 years before, many of these began in the 70s, these files. [00:18:47] Speaker 02: Does the question of whether they're legally or illegally destroyed back then matter to the FOIA request? [00:18:52] Speaker 05: Well, first our position is they haven't established that they were destroyed at all. [00:18:56] Speaker 02: I understand. [00:18:56] Speaker 02: That seemed a better position, but I'm pressing on what I thought was the weaker position. [00:19:02] Speaker 05: Understandably. [00:19:04] Speaker 05: I think, I mean, this is the argument that they asserted, is that they were legally destroyed, and then they go on to talk about bad faith. [00:19:12] Speaker 05: So it was clearly placed an issue by the FBI. [00:19:14] Speaker 05: We were responding to it. [00:19:16] Speaker 05: Our position is that it matters because if they were illegally destroyed, it should trigger an obligation. [00:19:22] Speaker 05: I recognize that it is not [00:19:24] Speaker 05: the exact same scenario as when the reason that they're illegally destroyed is that it's illegal to destroy them after a FOIA request, but there may be many reasons that something's illegally destroyed, and they were illegally destroyed for that reason that sort of triggers the same due date. [00:19:41] Speaker 05: I think the purpose of the requirement of looking to whether there's good faith or bad faith [00:19:48] Speaker 05: is to deal with the fact that once a file no longer exists, it simply can't be produced to the requester. [00:19:58] Speaker 05: If files are destroyed in bad faith or illegally, then it should be incumbent upon the agency to do what it can to reconstruct it. [00:20:08] Speaker 05: So for example, if Hoover decided that I'm going to destroy these files because one day somebody might file a FOIA request and they'll find out what the FBI [00:20:18] Speaker 05: was doing, that falls into the same category as destroying them after the FOIA request was received. [00:20:26] Speaker 05: If the purpose of the government is to hide its files, they shouldn't then be able to get a free pass and say, we illegally destroyed them, but that was a long time ago, so [00:20:38] Speaker 05: that absolves us of any obligation to even attempt to reconstruct them. [00:20:43] Speaker 05: What's your argument about the destroyed documents? [00:20:45] Speaker 05: What's inadequate about that explanation? [00:20:50] Speaker 05: Well, there is no explanation of the records retention schedule upon which they were based. [00:20:59] Speaker 05: So there's no way to determine whether they were in fact legally or illegally destroyed. [00:21:04] Speaker 05: Number one. [00:21:04] Speaker 05: Number two, there's no explanation for a lot of them when they were destroyed, so they possibly could have been after FOIA request was filed. [00:21:14] Speaker 05: In this case, we have no idea when they were destroyed. [00:21:18] Speaker 05: Additionally, there's not enough explanation to understand whether they were, in fact, destroyed, such as… [00:21:28] Speaker 04: beyond the conclusion because the conclusion is consistent with a vast range of things, including possibly that they've been mislocated and the renewed search might turn them up. [00:21:43] Speaker 04: That's correct. [00:21:47] Speaker 02: Okay, thank you. [00:22:01] Speaker 00: Good morning, Your Honors, and may it please the Court, Brian Field, on behalf of the Department of Justice. [00:22:05] Speaker 02: Let's start with what I regard as your weakest arguments. [00:22:08] Speaker 02: Of course. [00:22:09] Speaker 02: Therefore their strongest. [00:22:11] Speaker 02: So what about the, I don't know, quite a number of documents for which there is no explanation at all, the ones where every [00:22:23] Speaker 00: file name was redacted. [00:22:25] Speaker 00: Certainly. [00:22:25] Speaker 00: So there's no explanation in the second Hardy Declaration in the chart where the FBI sets forth file numbers that are responsive, non-responsive, and those that are destroyed. [00:22:37] Speaker 00: But earlier in paragraph 13, the FBI states that all file numbers that are cited by plaintiff were destroyed or denominated. [00:22:45] Speaker 02: Is there a file number for these, or these are the ones with redacted file numbers? [00:22:50] Speaker 00: There are file numbers underlying the redactions. [00:22:53] Speaker 00: The redactions are of the file numbers. [00:22:57] Speaker 00: I may be misconstruing Your Honor's question. [00:23:00] Speaker 02: Yes. [00:23:00] Speaker 02: So the declaration lists a bunch of files and says these are, I think this is a J182, nonresponsive, and then lists another group, another eight, that are responsive, that are destroyed. [00:23:19] Speaker 02: Correct. [00:23:20] Speaker 00: But it doesn't list the additional ones in the request. [00:23:25] Speaker 00: That's right, Your Honor. [00:23:25] Speaker 00: It does not list them. [00:23:26] Speaker 00: Earlier in that same paragraph, the FBI states all, uses the word all files, were deemed either non-responsive or destroyed. [00:23:37] Speaker 00: The FBI then charts out the specific ones that were not redacted. [00:23:41] Speaker 00: And in doing this. [00:23:45] Speaker 02: So you're saying that general statement [00:23:49] Speaker 02: was intended to cover the redacted ones as well as these others. [00:23:59] Speaker 02: Is that right? [00:24:01] Speaker 04: Yes, Your Honor. [00:24:03] Speaker 04: And is the reason for the redaction sufficient to justify leaving the requester uncertain as to whether this was destroyed or not responsive? [00:24:18] Speaker 04: Because that seems to be the outcome of the FBI's choice. [00:24:23] Speaker 00: Well, I would step back as an introductory matter with respect to the file numbers. [00:24:28] Speaker 00: The common practice, and this goes to a question I believe Judge Griffith asked, would be that they would have all been redacted. [00:24:36] Speaker 00: And that's the inadvertent release that's referenced in paragraph 26 of the Second Hardy Declaration. [00:24:41] Speaker 00: But the reason for the redaction actually weighs in here. [00:24:47] Speaker 00: and specifically with respect to the B6 redactions. [00:24:50] Speaker 00: So for each of the withheld file numbers, they were redacted because they dealt with third-party investigations or personnel matters. [00:24:58] Speaker 00: And it would stand to reason, the FBI submits, that something that is dealing with a third-party investigation or personnel matter is not going to be responsive to a question about the Operation Mosaic, as that term was used in the, used by then-Director Webster. [00:25:16] Speaker 02: But I do think that I'm still lost on I have to say I did not read this after this declaration is saying what you're saying I'm not saying it doesn't wasn't intended But I don't think anybody reading this would have understood that when they list 16 specific documents, they mean to don't list so [00:25:39] Speaker 02: But that's your representation, that that's the intention of the declarant. [00:25:44] Speaker 00: That is my understanding, yes, in preparation for argument that that is what the FBI is intending by that statement. [00:25:51] Speaker 00: The FBI will need to do that under oath. [00:25:54] Speaker 02: They may need another declaration on that. [00:25:56] Speaker 02: Now with respect to the, not suggest, the under oath part was an unnecessary addition. [00:26:04] Speaker 00: I understand. [00:26:05] Speaker 02: I mean it may need to be a declaration. [00:26:07] Speaker 02: I understand. [00:26:09] Speaker 02: With respect to the documents that came up with hits with the term Operation Mosaic, the FBI explains that two of them, one of them involved the human trafficking organization, or at least two of the hits involved the human trafficking organization, and the term Mosaic was in the business name. [00:26:34] Speaker 02: That's your explanation of why it's not responsive. [00:26:37] Speaker 00: That's, yes, the FBI's explanation. [00:26:39] Speaker 02: Why is there no similar explanation? [00:26:42] Speaker 02: Then you go on, the other hits consisted of counterintelligence and organized crime information. [00:26:47] Speaker 02: It doesn't say something like it was the name of a company or it was the name of a undercover operation. [00:26:55] Speaker 02: It doesn't say anything other than that it consisted of counterintelligence and organized crime operation, which as opposing counsel correctly says, that's what he's looking for. [00:27:07] Speaker 00: I would take issue with that last statement. [00:27:09] Speaker 00: I don't know that I read Dr. Shapiro's requests or filings to be looking for information about counterintelligence matters, but I do think there's a difference here. [00:27:19] Speaker 02: Are you saying there's nothing, again, with respect to those, it has something, it doesn't have anything to do with a mosaic concept or theory of piecing together information. [00:27:31] Speaker 02: either with respect to counterintelligence or with respect to organized crime? [00:27:36] Speaker 00: That's correct, because the preceding sentence says that the – this is the Seidel Declaration – the preceding sentence says that the FBI determined that it does not have to do with the subject matter of Dr. Shapiro's request, and then goes on to add [00:27:51] Speaker 00: one more sentence explaining that to say it's because it is about counterintelligence matters or organized crime matters. [00:27:56] Speaker 00: And I read those together to be stating it is about an operation mosaic in a context that is entirely dissimilar from the way that that term was used in the Webster materials. [00:28:09] Speaker 02: Well, it doesn't say that. [00:28:11] Speaker 02: I mean, you may read it that way, but it doesn't say that. [00:28:14] Speaker 02: All it says is the other hits consisted of counterintelligence and organized crime information. [00:28:20] Speaker 00: Certainly, Your Honor, and I do think that the two sentences read together, I respectfully would submit that that is a reasonable interpretation of those statements that when [00:28:32] Speaker 00: the declaration is read under the good faith presumption that is afforded to it and that the only challenge to it is speculative. [00:28:40] Speaker 02: The problem is not the sentence before. [00:28:43] Speaker 02: It's the sentence before the sentence before. [00:28:46] Speaker 02: Because the middle sentence specifically does explain that one of them involves a company. [00:28:54] Speaker 02: I'm sort of waiting, as I'm reading, to hear something about, and these have something to do with a company, or to do with an operation, specific operation or something, but it doesn't say that. [00:29:06] Speaker 02: But that's what you understand it to mean. [00:29:08] Speaker 00: That is correct. [00:29:09] Speaker 00: It does not have that same parallel explanation. [00:29:12] Speaker 00: I think a reasonable reading of those two sentences together explains that we're talking about Operation Mosaic in a different context than the Webster article. [00:29:23] Speaker 00: If I might, I want to- Let me ask one more. [00:29:27] Speaker 02: with respect to the illegally destroyed documents or the legally destroyed documents? [00:29:31] Speaker 02: Yes. [00:29:31] Speaker 02: So in all of our other cases, as far as I could tell, where the government says they once had the document, they don't have it anymore, or maybe they had it, there's some explanation. [00:29:41] Speaker 02: That is, the declarant says, I went to the office where it should be, and it's not in the files. [00:29:48] Speaker 02: Or I searched the records, and they're not in the files. [00:29:53] Speaker 02: This one just says it was destroyed. [00:29:56] Speaker 02: I take it the FBI must have some reason to know that it's destroyed. [00:30:01] Speaker 02: There must be a slip or an electronic record that says destroyed on this date. [00:30:08] Speaker 02: Is that right? [00:30:10] Speaker 00: To my knowledge, there is a, for lack of a better term, a log, a destruction log. [00:30:15] Speaker 00: A destruction log. [00:30:16] Speaker 00: A destruction log. [00:30:16] Speaker 00: And I can't speak to exactly what shape that takes if it's destroyed. [00:30:22] Speaker 02: So why isn't that detail included? [00:30:25] Speaker 02: We checked the destruction log and it was destroyed. [00:30:29] Speaker 02: The log records that it was destroyed on such and such date rather than just a these were destroyed. [00:30:36] Speaker 00: The declaration says these were destroyed with a footnote pointing to the basis for the destruction. [00:30:43] Speaker 02: Yes, it just says it was carried out. [00:30:45] Speaker 02: I mean, record retention and disposal is carried out. [00:30:50] Speaker 02: It doesn't say this record. [00:30:52] Speaker 02: I mean, if you have evidence that in this case it was actually carried out by the National Archives, that would be very useful and would end the matter. [00:31:08] Speaker 02: But all this says, this is like a general statement. [00:31:11] Speaker 02: The FBI always destroys things in accordance with the rules of the National Archives. [00:31:16] Speaker 00: I think it tethers it to the, not to get into sentences again, but it tethers it to the sentence that it's affixed to, which is we determined that these records were destroyed [00:31:25] Speaker 00: And the FBI destroys records in the context or in some cases sends records to NARA in the context of record retention schedules. [00:31:35] Speaker 00: And there are no doubt cases in which agencies do in fact put forward additional information about the context of the destruction. [00:31:43] Speaker 00: And my friends cite Safeguard and Weisberg, but I do want to take at least just a brief moment to [00:31:50] Speaker 00: to highlight the antecedent facts there that led to the need for that explanation. [00:31:55] Speaker 00: Here we have a statement that the records were destroyed and that they were, as I submit, destroyed pursuant to the NARA guidelines. [00:32:03] Speaker 00: That is entirely dissimilar from Safeguard or Weisberg where we had questions upfront about the nature of the destruction. [00:32:11] Speaker 00: I think it is in those instances where you see more of this explanation offered when something has been destroyed outside of the regular operations of business. [00:32:18] Speaker 00: In both Weisberg and Safeguard, you have destruction from cleaning. [00:32:21] Speaker 04: If it's done within the regular procedure, isn't it fairly easy to have some phrase, which using technology can be just repeated time and again, identifying [00:32:39] Speaker 04: what links it, the destruction, to that. [00:32:45] Speaker 04: Right? [00:32:45] Speaker 04: We know this from the record made of the destruction. [00:32:51] Speaker 00: Right? [00:32:52] Speaker 00: Yes, Your Honor, it would certainly be... I imagine it would certainly be possible to have included an additional sentence to say, these records were destroyed and we know that because we looked at the log. [00:33:08] Speaker 00: I think a reasonable read of the declaration that was submitted is that that was determined. [00:33:14] Speaker 00: This was not Mr. Hardy simply saying in the abstract, we destroy records in accordance with the destruction schedules and we think these were destroyed. [00:33:26] Speaker 00: It doesn't have that think language that you saw in Weisberg. [00:33:28] Speaker 00: It doesn't have anything of that nature and this court has held that. [00:33:34] Speaker 00: destruction of records or transfer of records pursuant to NARA's regulations is entirely sensible and that it doesn't raise a suspect motive that requires additional information. [00:33:44] Speaker 03: I'm concerned about the search slip. [00:33:50] Speaker 03: Search slip says there are a number of files that are responsive and then the affidavit from the bureau is just a conclusory [00:34:00] Speaker 03: determination that they're non-responsive. [00:34:03] Speaker 03: I'm going to read to you some language that we wrote in 1981. [00:34:06] Speaker 03: It is now well established that summary judgment on the basis of such agency affidavits is warranted if the affidavits describe the documents and the justifications for non-disclosure with reasonably specific detail. [00:34:25] Speaker 03: and are not controverted by either contrary evidence of record or evidence of agency bad faith. [00:34:31] Speaker 03: There's no evidence of bad faith here. [00:34:34] Speaker 03: But we do have a record here, right? [00:34:36] Speaker 03: We have a record that someone at the agency at some point in time looked at these files and said, they're responsive. [00:34:44] Speaker 03: The next thing that we have is the agency saying, they're not responsive. [00:34:49] Speaker 03: And we don't have any explanation [00:34:52] Speaker 03: I would fill in the gap. [00:34:54] Speaker 03: It may be too late to fill in the gap, but how does that happen? [00:34:57] Speaker 03: What are we supposed to do with those facts? [00:35:00] Speaker 00: I would direct the court to other portions of the second hearty declaration. [00:35:05] Speaker 00: My friend cites one portion to say that the statement where the FBI indicates these records, the search slip does not reflect the final determinations of the agency. [00:35:16] Speaker 00: does not then note that there is additional information, as we explained in our briefs, explaining the entire search process as a general matter and also as a specific matter here. [00:35:26] Speaker 00: And Your Honor said in describing it that [00:35:29] Speaker 00: somebody within the FBI identified these records as responsive. [00:35:33] Speaker 00: But the Hardy Declaration, this is the second Hardy Declaration at paragraph 26, rather the second paragraph 26, because there's two 26, but it explains that search slip markings are to flag things for further investigation and review. [00:35:50] Speaker 00: And the FBI then goes forward and explains, well, what does that mean? [00:35:54] Speaker 00: That's research into the request, research into where documents [00:35:58] Speaker 00: might be and when you read paragraph 26 with that initial statement we submit that there is in fact no material dispute or genuine dispute of material fact between what is expressly an initial decision. [00:36:12] Speaker 04: I don't think it was in the opening brief but at least counsel indicated here that to make it to the search slips [00:36:22] Speaker 04: a document had to respond to the pinging search using the search terms. [00:36:31] Speaker 04: Is that so? [00:36:32] Speaker 04: That's correct. [00:36:33] Speaker 04: And the search slip that... Well, I mean, so those were, in the broad form, what Dr. Shapiro requested. [00:36:43] Speaker 00: Well, they were responsive to a CRS index search for the word mosaic study. [00:36:49] Speaker 03: Yes. [00:36:49] Speaker 00: And that's what he wanted, which he asked for. [00:36:51] Speaker 00: Well, I'd say two things. [00:36:52] Speaker 00: One is, with respect to that and the questions that the court was exploring with Mr. Light, [00:37:00] Speaker 00: That was about an ECF text search for a specific term, which is different than a CRS index search. [00:37:05] Speaker 00: I don't want to get overly in the weeds of FBI databases. [00:37:10] Speaker 00: But that is, in fact, dissimilar. [00:37:13] Speaker 00: They are two different things, because something that is [00:37:16] Speaker 00: indexed to mosaic study means that somewhere in the file there's something about a mosaic study. [00:37:24] Speaker 00: It may not be the same mosaic study or the mosaic operation that's referenced in the Webster materials, but that's precisely why the FBI explains in paragraph 26 all the inquiry that is done with respect to a record that is initially flagged. [00:37:40] Speaker 00: Okay, let me just follow up. [00:37:43] Speaker 04: It's been suggested that [00:37:45] Speaker 04: If the FBI reviewed these documents, pinged positively, that would be burdensome. [00:37:59] Speaker 04: If it turned them over, that would be burdensome. [00:38:02] Speaker 04: Is there anything in the record that supports that probability? [00:38:09] Speaker 00: That it would be burdensome? [00:38:10] Speaker 00: Right. [00:38:11] Speaker 00: Well, I think the burdensome argument came up with the FOIA request for all text search hits for the word mosaic. [00:38:24] Speaker 00: I think that came up. [00:38:25] Speaker 00: I think that was the context when the burdensome discussion came up this morning. [00:38:30] Speaker 04: I'm just asking about now, regardless of what discussion there has been. [00:38:36] Speaker 04: When you have the literal words of the Shapiro request, do we have something supporting the proposition that if those literal words were followed, either the search or the turning over or the assessment would be burdensome? [00:38:57] Speaker 00: No, it hasn't been addressed as a question of burden in this case. [00:39:03] Speaker 00: It's been addressed as a function of non-responsiveness. [00:39:06] Speaker 00: I understand that. [00:39:07] Speaker 04: But the FBI's definition of non-responsiveness rests on Dr. Shapiro's expression of what he really cares about as opposed to what he actually formally requested. [00:39:22] Speaker 04: I can certainly see if he makes a broad request [00:39:27] Speaker 04: And maybe informally or whatever, the FBI says, oh my God, that will take us years and so forth. [00:39:36] Speaker 04: And he says, well, what I really care about is this. [00:39:39] Speaker 04: Then you've had a shrinking of the request. [00:39:42] Speaker 04: Fine. [00:39:43] Speaker 04: But here, we have an expression from Dr. Shapiro of his keen interest. [00:39:55] Speaker 04: coupled with the broader request, and it's consistent, I think, with the desire to have the things that respond to the broader request, so that they may shed some light. [00:40:11] Speaker 00: Rather dim light, perhaps, but a light. [00:40:16] Speaker 00: Take issue with, so part of the conversation that was had with Mr. Light was about the nature of the FOIA request itself and what was sought there. [00:40:25] Speaker 00: And your honor was just saying that in this case, there has not been narrowing. [00:40:28] Speaker 00: And I would respectfully disagree with that because the complaint itself affected narrowing. [00:40:33] Speaker 00: We had seven requests in this case that each had myriad subparts. [00:40:37] Speaker 00: And when the complaint was filed for each of them, Dr. Shapiro identified a particular portion that he was identifying for the purposes of litigation. [00:40:46] Speaker 00: It is then later in the path of litigation where a document, the search slip comes up and he says, by the way, this document or the ECF text searches for the word Operation Mosaic, hey, that was also responsive to this other portion of the request. [00:41:01] Speaker 04: I'm sorry, you're saying there's language in the complaint that embraces, quote, the narrow version of the request? [00:41:11] Speaker 00: So for each request, the complaint identifies a portion or two that Dr. Shapiro is advancing a claim on. [00:41:22] Speaker 00: For instance, with respect to the chief judge's questions about the Operation Mosaic documents. [00:41:31] Speaker 00: Mr. Light suggests that that was covered by this December 2014 request at page, I think it's 147 of the Joint Appendix. [00:41:38] Speaker 00: But that's not, there are seven other subparts to that request. [00:41:42] Speaker 00: And in bringing the litigation, it was not identified that first prong of the FOIA request. [00:41:49] Speaker 00: I don't want to, I'm not trying to be overly, you know, overly semantical about this, but this is particularly key when you're dealing with requests that are this broad. [00:41:57] Speaker 00: Another one in this case had 50-plus subparts of... Where was the part that was identified? [00:42:02] Speaker 00: You just said... In paragraph, for the Operation Mosaic, with the December 14th, that's at paragraph 27 of the complaint at JA 15. [00:42:10] Speaker 04: JA 15, 15. [00:42:17] Speaker 00: And with respect to the Operation Mosaic text search, Dr. Shapiro does not identify that portion of the FOIA request, but rather reading it as Chief Dred Garland did with the background section, it reasonably explains to the FBI that we're talking about the Operation Mosaic identified in the Webster article. [00:42:39] Speaker 00: And it wasn't until... I'm sorry, where is it on... In paragraph 27. [00:42:47] Speaker 00: is the reference to the December 2014 FOIA request, which is found at Joint Appendix, page 147. [00:42:57] Speaker 00: And you'll see that in this instance, Dr. Shapiro is referencing subparts F and G of this FOIA request, not that initial one that sought text search results. [00:43:14] Speaker 00: How do we tell that from looking at page 147? [00:43:16] Speaker 00: Well, I think from page 147 and 148, Dr. Shapiro has seven subparts of this request, one of which is all records constituting and referring to Operation Mosaic, and then the next one is about Mosaic studies. [00:43:32] Speaker 00: And in paragraph 27 of the complaint, just after the background section about Operation Mosaic, [00:43:39] Speaker 00: He only references records relating to Operation Mosaic and Mosaic Study. [00:43:44] Speaker 00: And I would submit that with respect to the other background section offered there, and then when we get to Summary Judgment Briefing, it is always discussed in the context of the Webster article's Operation Mosaic, that it wasn't until later in the litigation that we ever hear, the FBI hears for the first time, that Dr. Shapiro is also asserting that any literal response to the term Operation Mosaic is responsive. [00:44:08] Speaker 04: Is there any particular word on JA-15 that supports that reading? [00:44:17] Speaker 04: I am pointing it to... It escapes me. [00:44:19] Speaker 04: You point to paragraph 27, and I just submitted a new FOIA request in December 15 for records relating to Operation Mosaic and Mosaic Study. [00:44:29] Speaker 04: That seems to match. [00:44:30] Speaker 04: exactly the broad terms of the request, page 147. [00:44:36] Speaker 00: It, I think, read in the context of the preceding paragraphs that provide all the background. [00:44:41] Speaker 00: This is beginning at paragraph 13 of the complaint, background of Operation Mosaic. [00:44:46] Speaker 00: It set forth the course of this litigation on searches for documents. [00:44:52] Speaker 00: I see. [00:44:52] Speaker 04: You're talking about, say, paragraph 15. [00:44:56] Speaker 00: Yeah, I'm sorry, yeah, so 13th through that background section. [00:44:59] Speaker 01: I see, okay. [00:45:00] Speaker 00: That that set the course of litigation on a particular operation mosaic, and it is not until Dr. Shapiro's reply in support of summary judgment that we first see the suggestion that we're also – Dr. Shapiro is also asking about these [00:45:14] Speaker 00: other responses. [00:45:16] Speaker 00: And I would just note, in that statement in the cross, in the reply, the suggestion is made that you raise this also in the opening motion at page 13, in his opening motion for summary judgment at 13, which we would submit is incorrect. [00:45:30] Speaker 03: I'm still a little bit confused. [00:45:33] Speaker 03: So my notes show there were 13 files identified as responsive on the search slip, but not listed by file number. [00:45:41] Speaker 03: in the affidavit, and these were discussed under exemptions. [00:45:47] Speaker 03: So what's the explanation for why? [00:45:49] Speaker 00: Sure, and admittedly, this is not something that's in the briefs, and so I'm offering it here as we were preparing for oral argument, looking at the exemptions that I wanted to at least note for your honors. [00:46:00] Speaker 00: The argument there is the B6 redactions, B6-2 is a specific type of redaction for [00:46:09] Speaker 00: files that relate to third-party investigations or personnel matters. [00:46:14] Speaker 00: And that's explained in the second-party declaration. [00:46:17] Speaker 00: And I was simply noting that I would submit that it stands to reason that a file discussing a third-party investigation or personnel matter is highly unlikely to have materials about Operation Mosaic as that term was understood in the Webster article. [00:46:37] Speaker 00: Thank you. [00:46:39] Speaker 00: Unless there are any other questions? [00:46:41] Speaker 00: No, thank you. [00:46:42] Speaker 00: Thank you, Your Honor. [00:46:43] Speaker 00: We have requested that the court affirm. [00:46:46] Speaker 02: Well, I'm trying to calculate how much time you have left. [00:46:50] Speaker 02: He went 14 over, you went 12 over, so you get two over. [00:46:55] Speaker 02: Thank you, Your Honor. [00:46:59] Speaker 05: It's a new standard. [00:47:02] Speaker 05: perhaps clarify a little bit why Dr. Shapiro would be interested in records that don't specifically match the things that he has expressed a heightened interest in. [00:47:11] Speaker 05: And that is because of concern that the FBI will make erroneous determinations about what is of interest to him and what is not. [00:47:20] Speaker 05: So going broader than that and asking for everything responsive to a keyword will allow Dr. Shapiro to evaluate for himself. [00:47:29] Speaker 05: I think this is evident [00:47:30] Speaker 05: from this case, there are some problems with how the FBI makes determinations about what's responsive and what's not. [00:47:40] Speaker 05: Your Honor had also suggested that perhaps if Dr. Shapiro had wanted the broader set, then he could submit a separate FOIA request that just said, I want these keywords, period, and not [00:47:52] Speaker 05: go into the background. [00:47:54] Speaker 05: If that were the law, Dr. Shapiro could certainly go forward. [00:47:59] Speaker 05: And whenever he files a FOIA request, have two of them, one of them that gives background and one of them that does not. [00:48:05] Speaker 05: That doesn't seem like it would advance any useful interests here, though. [00:48:11] Speaker 04: What do you say to your friend's argument that the complaint [00:48:18] Speaker 04: The language of page 15, though in principle broad enough to reflect the broad request, is narrowed by the material on page 13, giving Dr. Shapiro's focus. [00:48:35] Speaker 05: intended to describe in somewhat summary format what the actual documents are, since they're fairly lengthy requests. [00:48:46] Speaker 05: The complaints are, of course, not determinative of what the actual document says, and this case comes up on summary judgment. [00:49:02] Speaker 05: I can tell that didn't satisfy you. [00:49:04] Speaker 04: I'm not sure I get it. [00:49:05] Speaker 04: Or rather, I'm sure I don't get it. [00:49:07] Speaker 05: The point was just that a complaint should not be understood to limit what is asked for. [00:49:15] Speaker 05: It could be, for example, a complaint that limits... Well, it's what Dr. Shapiro is complaining about. [00:49:20] Speaker 05: Well, right. [00:49:21] Speaker 05: So, for example, a complaint might say, we're interested in the adequacy of the search and not a fee waiver issue, but to expect that a complaint would [00:49:32] Speaker 05: need to mirror the precise language of the FOIA request in order to capture and preserve for litigation the full scope of it would just require unnecessarily prolix complaints when what is clearly intended here is that the documents, the requested issue, be incorporated by reference. [00:49:57] Speaker 02: Okay, we'll take the matter under submission. [00:49:59] Speaker 02: Thank you. [00:49:59] Speaker 02: We'll take a brief recess while the new council come up and the existing council step back. [00:50:06] Speaker 02: Thank you, Your Honor.