[00:00:02] Speaker 00: Case number 19-5278, Cable News Network, Inc. [00:00:06] Speaker 00: versus Federal Bureau of Investigation Appellant. [00:00:09] Speaker 00: Mr. Poulham for the appellant, Mr. Tobin for the appellee. [00:00:13] Speaker 02: Before we start, I'd just like to note that this is the first day and the first case that Judge Walker will hear as a member of the DC Circuit. [00:00:23] Speaker 02: We look forward to serving with him for many years. [00:00:26] Speaker 02: Because it is his first day, counsel, please go easy on him. [00:00:31] Speaker 03: Thank you, Judge Garland. [00:00:35] Speaker 00: Good morning, and may it please the court, Thomas Poland for the FBI. [00:00:39] Speaker 00: I'd like to reserve three minutes for rebuttal, please. [00:00:43] Speaker 00: So the central question in this case is whether the common law provides a means of evading FOIA's carefully balanced scheme by offering access to statutorily protected information that is only before a court because of a FOIA lawsuit. [00:00:58] Speaker 00: It has long been accepted that when the government cannot fully justify its withholdings on public record, it may submit an ex parte declaration for the courts in Canberra review. [00:01:10] Speaker 00: This procedure allows the government to defend itself without disclosing the very material it intends to keep secret. [00:01:17] Speaker 00: That purpose would be undermined and FOIA's balance upset if the common law could be used to compel disclosure of that information even when FOIA does not. [00:01:27] Speaker 02: Mr. Pullman, haven't we already held in Metro Life that FOIA itself does not preempt the common law? [00:01:39] Speaker 00: I don't think so. [00:01:40] Speaker 00: I think what was at issue in MetLife, as I understand it, was a more general argument that [00:01:47] Speaker 00: FOIA wholesale displaces the common law. [00:01:52] Speaker 00: Here we have a more narrow argument. [00:01:54] Speaker 02: And in Leopold we held that unless the statute expressly says that the information must be sealed, it doesn't preempt. [00:02:03] Speaker 02: So what section of FOIA says that ex parte filings are always sealed? [00:02:10] Speaker 00: Well, I think there's two provisions to look at in FOIA. [00:02:15] Speaker 00: One is A4B, which provides for the in-camera review of the underlying documents. [00:02:25] Speaker 02: Provides for it, but it doesn't say anything about it permanently staying that way. [00:02:31] Speaker 02: This is a problem we discussed in Leopold, that even where ceiling is permitted, [00:02:37] Speaker 02: The question is whether the common law is displaced with respect to unsealing. [00:02:44] Speaker 02: What language, other than the permission of in-camera proceedings, are you relying on? [00:02:51] Speaker 00: Well, I think the exemptions themselves and the fact that the district court has jurisdiction only to disclose information that's improperly withheld, which in turn depends on the application of the exemptions. [00:03:05] Speaker 00: This court in Hayden said that requiring the district court to provide on public record information that is [00:03:13] Speaker 00: exempt it said in that case that would violate exemption one and that's why the court that was information that was held by the executive [00:03:25] Speaker 00: Well, in Hayden, it was specifically talking about the contents of an ex parte affidavit. [00:03:32] Speaker 00: And it said requiring the filing of that information on the public record would violate Exemption 1. [00:03:39] Speaker 00: This court has also kind of given broad effect to FOIA's exemptions with respect to a [00:03:46] Speaker 00: a Glomar response. [00:03:48] Speaker 00: I'm saying that this is what's needed to effectuate the exemptions. [00:03:51] Speaker 00: So I think it would not make sense or be compatible. [00:03:53] Speaker 02: Well, the Glomar response simply says we're not able to confirm or deny. [00:03:59] Speaker 02: The Glomar response itself is not sealed. [00:04:04] Speaker 02: The Glomar response just permits the government to not reveal under FOIA if it's FOIA exempt. [00:04:12] Speaker 02: But the Glomar filing isn't itself [00:04:16] Speaker 02: forever sealed. [00:04:18] Speaker 00: That's right. [00:04:18] Speaker 00: But I think what we're looking at is the access to information that is protected by statute. [00:04:27] Speaker 00: And I don't think it's consistent with FOIA to say, well- Well, what statute protects it? [00:04:36] Speaker 00: The FOIA itself and also the National Security Act. [00:04:39] Speaker 02: So if you lose on the proposition that FOIA itself protects it because merely providing for in-camera proceedings doesn't forever protect it, what aspect of the National Security Act protects it? [00:04:55] Speaker 02: The language of the National Security Act is an obligation for the [00:05:00] Speaker 02: Director of Central Intelligence or successors are related there too. [00:05:05] Speaker 02: It doesn't say anything about the courts. [00:05:07] Speaker 02: And then Leopold again we said it has to say something about the courts. [00:05:11] Speaker 02: Same in MetLife. [00:05:15] Speaker 00: I'd like to get back to FOIA in a minute. [00:05:17] Speaker 00: But with respect to the National Security Act, the Supreme Court construed that statute in Sims. [00:05:23] Speaker 00: And it said that Congress had deliberately chosen to give control over the disclosure of information protected by that statute to the director of national intelligence and had specifically chosen not to give courts the ability to compel disclosure. [00:05:39] Speaker 00: And it offered several reasons for that. [00:05:42] Speaker 00: One was that the government needs to be able to provide the most secure representation of confidentiality that it possibly could. [00:05:52] Speaker 00: And it said that a compelled disclosure by a court could have a devastating impact on the ability of intelligence agencies to perform their duties. [00:06:00] Speaker 02: Is this information classified? [00:06:05] Speaker 00: No, this information is not classified. [00:06:07] Speaker 02: Why isn't it classified information is classified under the executive order zipping down all the way to confidential if it harms in some degree, the national security. [00:06:22] Speaker 02: Is the fact that you haven't classified this and acknowledgement that there's no injury to the national security. [00:06:27] Speaker 00: No, not at all. [00:06:29] Speaker 00: And I don't, well, I think we can look at SIMS to describe or to understand the harms that can be caused by the release of non-classified information relating to intelligence sources. [00:06:45] Speaker 00: None of the information in addition to SIMS was classified. [00:06:47] Speaker 00: The Supreme Court nevertheless said that the forced disclosure of [00:06:52] Speaker 00: an intelligence source could have a devastating impact on intelligence agencies. [00:06:58] Speaker 00: It said that even the risk that a court could order the disclosure of information relating to a source could deter sources from coming forward and providing information to the government. [00:07:09] Speaker 02: So I have two questions about that. [00:07:11] Speaker 02: One, that sounds like an argument for why those redactions should not be unsealed, not an argument for why the [00:07:19] Speaker 02: Declaration itself isn't a judicial record subject to the common law. [00:07:24] Speaker 02: That is obviously the common law can be overturned in individual situations by a strong interest of the government, which you express in the way that you just did. [00:07:35] Speaker 02: But I'm still interested, why isn't this classified? [00:07:39] Speaker 02: If the national security agencies are obligated to protect this, have they violated their obligation by not protecting it? [00:07:49] Speaker 00: No, so the underlying information that this describes is classified. [00:07:55] Speaker 00: That was the purpose of the Archie Declaration was to explain why certain redactions that had been made to one of the memoranda was classified. [00:08:05] Speaker 00: And it was classified on the basis of pertaining to intelligence sources. [00:08:11] Speaker 00: So the Archie Declaration described that information. [00:08:14] Speaker 00: It did so in terms that was not itself classified [00:08:18] Speaker 00: But that information nevertheless relates to intelligence sources and the Supreme Court explained why even innocuous information when combined with kind of other pieces that a foreign intelligence entity might have [00:08:35] Speaker 00: could lead a foreign entity to discover the identity of an intelligence source. [00:08:42] Speaker 00: And what the Supreme Court was doing in Sims was saying, you know, this is an inquiry that just should not be undertaken by courts because they don't have the expertise necessary to identify which disclosers could be... The specific question in the Sims I'm just going to read it to was whether the Freedom of Information Act requires the agency to disclose. [00:09:05] Speaker 00: That's correct. [00:09:06] Speaker 02: That was the question. [00:09:07] Speaker 02: It wasn't about the common law. [00:09:09] Speaker 00: No, but the Supreme Court was explaining what Congress was doing through the statute, what the statute in fact did, and what it was intended to do. [00:09:18] Speaker 00: And that reasoning applies equally to disclosures under the common law as it would to disclosures under FOIA. [00:09:25] Speaker 02: I'll let my colleagues have a shot at it. [00:09:28] Speaker 04: I just have a question. [00:09:30] Speaker 04: Is the Archie Declaration still in the possession of the court, or was it returned to DOJ? [00:09:36] Speaker 00: I believe the court has a copy of it. [00:09:40] Speaker 00: To my knowledge, it was not returned, but I'm not 100% sure of that. [00:09:44] Speaker 00: It was filed with the court, and I don't know that the declaration itself was returned. [00:09:50] Speaker 04: If it were returned, would that affect the application of the common law for access to judicial records application? [00:10:03] Speaker 00: I don't think so. [00:10:04] Speaker 00: I don't think that that necessarily turns on whether it's physically in the possession of the court or not. [00:10:14] Speaker 00: Many times exhibits or documents are given to a court for a time and then returned. [00:10:20] Speaker 00: Clerk's office does not always hold on to everything that might be considered a judicial record. [00:10:27] Speaker 04: Okay. [00:10:27] Speaker 04: And then, [00:10:30] Speaker 04: Much of your argument, you fault the district court for not applying enough attention or given enough deference or respect to national security. [00:10:40] Speaker 04: But the district court said at a number of junctures in its decision that it was giving great weight to the asserted national security interests, but that the government just hadn't explained itself. [00:10:54] Speaker 04: Couldn't explain why this was. [00:10:57] Speaker 04: covered by the National Security Act, why it implicated intelligence sources and methods. [00:11:03] Speaker 04: And then in large part said that the reasons the Hubbard factors were struck against the government was because the government didn't even argue a lot of the factors and hadn't given it any material to work with. [00:11:16] Speaker 04: So what are we supposed to do with an abusive discretionary view in that setting? [00:11:20] Speaker 00: I mean, with respect, I don't [00:11:22] Speaker 00: I think the district court went wrong in a couple of ways here. [00:11:28] Speaker 00: It said it would give weight to the congressional judgment, but then it said that the government didn't do anything to address the strength of the interests at play. [00:11:41] Speaker 00: The fact is that Congress had determined the strength of the interest at play through the statute. [00:11:47] Speaker 04: But that's not how, that's not, I mean, even under FOIA itself, exemption three, you know, we do have, courts do have the authority to decide whether it's actually triggered by a particular document. [00:11:57] Speaker 04: And oftentimes the government will help us to understand that, but the government, you know, I don't think exemption three has ever been interpreted to say all the government has to do is invoke it and the court says, good, we're done. [00:12:10] Speaker 04: That's not your position, right? [00:12:11] Speaker 04: No, no. [00:12:13] Speaker 04: That's what the court here says. [00:12:14] Speaker 04: I've looked and you haven't told me what to do. [00:12:19] Speaker 00: Well, I don't think the district court said it wasn't covered by the National Security Act. [00:12:25] Speaker 00: What it said is that it wasn't sure why secrecy was important here, and that's on JA65. [00:12:32] Speaker 00: And that's the precise inquiry that the Supreme Court said. [00:12:35] Speaker 04: Well, what it said is, look, it's not self-evident why secrecy is important. [00:12:39] Speaker 04: And then it said perhaps [00:12:41] Speaker 04: There's something here that is superficially innocuous to the untrained judicial eye. [00:12:46] Speaker 04: But if you piece it together with other things, it would be important. [00:12:50] Speaker 04: And then said, the FBI, however, has provided no such rationale. [00:12:55] Speaker 04: And so the FBI hasn't given any basis for concluding that there's anything in here that actually merits protection. [00:13:03] Speaker 04: And in fact, never even invokes Exemption 70, but not 3. [00:13:08] Speaker 00: No, but it invokes specifically the National Security Act, which in the context of this case, the only relevance of that statute was as an Exemption 3 withholding statute. [00:13:19] Speaker 00: And the district court never took issue with the assertion that this information related to intelligence sources. [00:13:27] Speaker 00: And I think it's self-evident from the Archie Declaration itself, which when explaining why this information is classified, redacts two categories of information that are embedded within discussions of a source of an intelligence source. [00:13:47] Speaker 04: Indeed, in paragraph 12- You say it's self-evident, but the district court said in terms, nor is it self-evident. [00:13:54] Speaker 00: It said it's not self-evident why secrecy is important. [00:13:58] Speaker 00: That's a different inquiry from whether information relates to an intelligence source. [00:14:03] Speaker 00: So there can be information that clearly relates to an intelligence source, as in paragraph 12 of the Archie Declaration, where it says, the revelation of the confidential source's name would identify the confidential sources [00:14:16] Speaker 00: redacted. [00:14:18] Speaker 00: That redaction clearly, I think, just from the face of it, relates to the confidential source. [00:14:25] Speaker 00: What the district court said is, I'm not sure why this information should be secret. [00:14:29] Speaker 00: But again, that's the inquiry that Sim said a court doesn't have the expertise to undertake. [00:14:36] Speaker 00: And it's distinct from [00:14:37] Speaker 04: The inquiry of whether information relates to anything that follows the end of that sentence is necessarily automatically going to be protected. [00:14:47] Speaker 04: Really, there are things that could follow that sentence that would not be that could end that sentence that would not implicate national security or intelligence sources and methods. [00:14:57] Speaker 00: Well, again, the standard this court has set in Larson and other cases is whether it relates to an intelligence source and the district court. [00:15:07] Speaker 04: The district court said you haven't shown here is how does this relate to an intelligence source or revealing information about a source or methods. [00:15:17] Speaker 04: I mean, the government does this all the time. [00:15:20] Speaker 04: And it was just sort of striking that the district court here at least said repeatedly, you've given me nothing to work with. [00:15:28] Speaker 04: And so the district court, as I read the opinion, felt like it was left with a choice of either simply taking the government at its word or doing some sort of independent judicial inquiry. [00:15:43] Speaker 04: And your view is it should have just taken the government at its word? [00:15:47] Speaker 00: I think, absent some kind of finding that the information did not relate to an intelligence source, that the district court should not have ordered it disclosed. [00:16:01] Speaker 04: What do you mean, relate to an intelligence source? [00:16:03] Speaker 04: If they said, we have intelligence sources, that relates to an intelligence source. [00:16:10] Speaker 04: But that would strike me as a completely innocuous statement without further help from the FBI. [00:16:15] Speaker 00: Well, I mean, that doesn't relate to a specific intelligence source. [00:16:19] Speaker 04: This one is not the test. [00:16:21] Speaker 04: Is that your test? [00:16:23] Speaker 00: Well, I just think that that's a totally different. [00:16:27] Speaker 04: It's just not what we just don't know. [00:16:30] Speaker 04: That's the problem. [00:16:31] Speaker 04: But you didn't. [00:16:33] Speaker 00: But I mean, the district court had the document, I think, just on its [00:16:39] Speaker 00: Again, I believe that on the space it's true. [00:16:43] Speaker 04: You've got a semicolon there, right? [00:16:45] Speaker 04: So it sounds like a whole new idea is coming. [00:16:47] Speaker 00: Only in paragraph 11, but that's all in the context of things that relate to intelligence sources. [00:16:58] Speaker 00: I mean, the whole point of this paragraph is to explain why information redacted from one of the memoranda pertains to- Well, he said, did identify the confidential sources job. [00:17:11] Speaker 04: Would job have to be protected? [00:17:12] Speaker 04: I know there's more words there, but would job have to be protected? [00:17:17] Speaker 00: I think in some circumstances, it might need to. [00:17:20] Speaker 00: Exactly. [00:17:21] Speaker 00: The FBI would have to explain those circumstances. [00:17:23] Speaker 00: In that case, I'm just not sure here that this falls in one of those cases. [00:17:30] Speaker 00: At a minimum, I mean, the district court committed other errors with respect to the Hubbard balancing test. [00:17:39] Speaker 00: For example, on the second factor, which deals with previous public access, it said that [00:17:46] Speaker 00: that factor weighed, it was not in the government's favor because it had released other material. [00:17:52] Speaker 00: That gets matters exactly backwards. [00:17:54] Speaker 00: This factor asks whether previous access to the information at issue, it says that the court has said that provides a reason why it should be released in this context. [00:18:06] Speaker 00: But the public has never, nor had CNN as a FOIA litigant had access to this specific information. [00:18:13] Speaker 00: On the first factor, the court acknowledged that there was little public interest in this specific information which relates to an intelligence source. [00:18:23] Speaker 00: And I'd like to just underscore here the small amount of material that was withheld. [00:18:29] Speaker 00: We're talking [00:18:30] Speaker 00: of less than five lines, I believe it's around 40 words, the government disclosed all of its briefs are public, the other Archie declaration in full was disclosed, the ex parte proffer was disclosed in full. [00:18:46] Speaker 04: So on that first and second factor, I mean I take your point, but the district court found that you didn't even argue the first [00:18:53] Speaker 04: and second factors. [00:18:54] Speaker 04: Now you're making some interesting arguments, but what do I do with the fact that this is an abuse of discretion review and you did not make those arguments below? [00:19:02] Speaker 00: Well, this court has said that it is enough to put an issue before the Court of Appeals if the district court reached it. [00:19:11] Speaker 04: That's a legal proposition, but in the course of abuse of discretion review of a particular decision, [00:19:18] Speaker 04: It's not whether we can consider it or not. [00:19:20] Speaker 04: It's just how can we say the court abused its discretion on the basis of arguments you tell us now that were not given to the district court. [00:19:28] Speaker 00: Well, because we can see what the district court did and it committed errors in its reasoning. [00:19:35] Speaker 00: So we can't be sure that without those errors, it would have come to the same conclusion. [00:19:42] Speaker 00: And we can turn to other factors that there's no dispute that the government made arguments about. [00:19:49] Speaker 00: On the third factor, [00:19:52] Speaker 00: The court believes that FBI's objection shouldn't have the same strength as a third party objection. [00:19:59] Speaker 00: And I don't think that makes sense with respect to information about intelligence sources that are important to the functioning of an intelligence agency. [00:20:15] Speaker 00: fifth factor, the possibility of prejudice. [00:20:20] Speaker 00: I think Sims kind of outlines the possibility for prejudice, which is that just the risk of disclosure by a court can cause a source in the Supreme Court's words to close up like a clam. [00:20:35] Speaker 02: All right, Mr. Palmer, well over the time, do other judges have further questions at this point? [00:20:41] Speaker 03: Can I just ask one question, Mr. [00:20:44] Speaker 03: I think you may have forfeited at the district court your FOIA Exemption 3 argument, your argument that FOIA Exemption 3 should preempt the common law here. [00:20:58] Speaker 03: I also think that CNN may have forfeited at this appellate court their argument that you forfeited Exemption 3 at the district court. [00:21:09] Speaker 03: I'm going to ask CNN the same question, but what am I, if I think both those things, what am I supposed to do with that? [00:21:17] Speaker 00: Well, a party certainly can forfeit a forfeiture argument. [00:21:21] Speaker 00: We think that the argument that whether the [00:21:26] Speaker 00: FOIA displaces the common law in this circumstance was sufficiently before the court, especially in the context of this case. [00:21:36] Speaker 00: And at a minimum, the court addressed that legal argument, as I was just saying, to Judge Millett. [00:21:43] Speaker 00: It's a recognized exception to forfeiture [00:21:46] Speaker 00: that those general rules don't apply when the district court decides an issue. [00:21:51] Speaker 00: I think the district court did decide the issue and we can bring it up here. [00:21:57] Speaker 00: But just looking at what was offered, I think the government had offered enough in the context of this litigation. [00:22:04] Speaker 00: It identified the relevant statute. [00:22:06] Speaker 00: It had made arguments that that statute was an exemption three statute. [00:22:12] Speaker 00: with respect to the underlying information that Archie declaration discussed, the government had asserted exemption three over that information. [00:22:22] Speaker 00: And just given the way this case developed where facts were constantly shifting on the ground, [00:22:29] Speaker 00: The Archie Declaration was submitted in response to an order from the District Court to just provide a notice saying, you know, if anything had changed on the redactions, the government released some information and provided the declaration to say, you know, this is why the remaining stuff can't be released. [00:22:51] Speaker 00: So I think in these circumstances, especially to the extent the court has discretion to consider this, I would hope that it would exercise its discretion in a way to protect information that relates to intelligence sources whose disclosure could cause some harm to that source. [00:23:10] Speaker 00: And that type of harm is outlined in the declarations that we provided, that sources can lose their utility or willingness to come forward. [00:23:19] Speaker 00: They may be retaliated against if they're uncovered. [00:23:24] Speaker 02: OK. [00:23:25] Speaker 02: All right. [00:23:25] Speaker 02: We'll hear from Mr. Tobin. [00:23:26] Speaker 02: Thank you. [00:23:27] Speaker 02: Thank you, Mr. Pollan. [00:23:30] Speaker 01: Good morning, Your Honors, and may it please the Court. [00:23:32] Speaker 01: Your Honors, the questions of the government really expose the underlying issue here, and that's whether this Court should deviate from its unbroken line for the last 40 years, arguably the last 100 years since the NRAD drawback case. [00:23:47] Speaker 01: and hold that the government does not need to show all six factors under the now standard Hubbard test. [00:23:56] Speaker 02: Could I ask you, I would like to pick up on what Mr. Poland was arguing. [00:23:59] Speaker 02: So the standard of review, which is abuse of discretion, includes, according to our opinion in Leopold, if the district court misunderstood the application of the factors, that is misunderstood the law, that we review de novo, correct? [00:24:18] Speaker 01: The application of the law is a de novo review. [00:24:22] Speaker 01: That's correct. [00:24:22] Speaker 02: So if we could go, I want to pick up on what Mr. Pollum was arguing here. [00:24:28] Speaker 02: I don't blame the district court for this because our cases have not been the clearest. [00:24:34] Speaker 02: And many of them have not presented these precise issues. [00:24:37] Speaker 02: But if you go through each of the judge's applications or the factors, I propose [00:24:44] Speaker 02: have difficulty with whether they're actually what the law should be. [00:24:47] Speaker 02: Leave aside the question of whether a law is completely clear on this or not. [00:24:51] Speaker 02: So the first factor that the judge applied is the need for public access. [00:24:57] Speaker 02: And the judge says, although the court sees little public value in the specific information that remains redacted, there is enormous public interest in the Comey memos. [00:25:06] Speaker 02: Now, it's my view in light of [00:25:09] Speaker 02: what we said in Leopold about everything being particularized. [00:25:13] Speaker 02: The point of the Hubbard test is that we look at the particular information to be sealed or unsealed. [00:25:19] Speaker 02: That the issue we should be looking at is, for each of the factors, is the information that was redacted, not some larger amount of information. [00:25:29] Speaker 02: Is that an unreasonable view of the law that I'm suggesting here? [00:25:37] Speaker 01: Um, not entirely, your honor, but we also look at it as a process issue. [00:25:41] Speaker 01: The public interest could be colossal or it could be quite minute in the actual redacted information. [00:25:47] Speaker 01: Obviously the more important the information, the more important the circumstances, the more that probably agree that we look at the information that is still redacted. [00:25:58] Speaker 02: And the judge says that that information he sees little value in. [00:26:03] Speaker 02: Now, if we're gonna believe, I mean, you want us to take the judge's view that there's not much injury to the national security, but don't we also, and I'll question that for a moment, but don't we also have to take the judge's view that there was little public value in the information that's still being withheld? [00:26:21] Speaker 02: If I'm right, all we're talking about is basically two full lines, maybe two and a quarter out of the entire [00:26:31] Speaker 02: Out of all the material that was once at issue, that's all that's left, right? [00:26:36] Speaker 02: Just those blacked out lines on page JA 146. [00:26:40] Speaker 01: That's correct, John. [00:26:42] Speaker 02: All right. [00:26:42] Speaker 02: So if I go to the next issue, which is the second factor, the judge weighs the extent of the previous public access to the documents. [00:27:01] Speaker 02: And here there's been no public access to the redacted information. [00:27:09] Speaker 02: The judge focuses, again, I don't blame the judge for this, but I'm trying to, I think one value of this case is that we have some clarity here about the law. [00:27:18] Speaker 02: The judge says lots of, you know, the FBI has already released the vast majority of the declaration. [00:27:23] Speaker 02: That's true, but that's not the issue. [00:27:25] Speaker 02: It seems to me that the issue here is the extent of previous public access to the redacted information. [00:27:33] Speaker 02: Isn't that right? [00:27:35] Speaker 01: And your honor, with respect, no. [00:27:36] Speaker 01: And if I could just make an extra point on part one, the need for public access is also a procedural issue. [00:27:43] Speaker 01: The judge made very clear that he relied on the Archie declaration. [00:27:47] Speaker 01: He relied on all of it at several stages in the proceedings. [00:27:51] Speaker 01: There were six portions that we cited in the record where the judge relied on the Archie declaration or the government relied on the Archie declaration. [00:27:59] Speaker 01: to persuade the court to grant its summary judgment in the first summary judgment in the FOIA case. [00:28:05] Speaker 01: The public has a great need for access to understand the underpinnings of judicial decision-making. [00:28:11] Speaker 02: Well, I obviously understand this, having written Leopold and MetLife, but the question here is the judge basically is saying that he didn't rely on those two pieces of information because he didn't think they were important. [00:28:24] Speaker 02: So I'm not sure that's the right analysis, but even if you're right that that's the right analysis, the judge is saying, I'm not, I'm not relying on this on these lines. [00:28:35] Speaker 01: So, uh, I agree that that's not how I read what he, what he said was the added public interest. [00:28:44] Speaker 01: Um, you know, it may, may not be, uh, great in light of the rest of the declaration, but he didn't say that he didn't review it or rely on it. [00:28:52] Speaker 01: I mean, after all, [00:28:53] Speaker 01: He agreed with the government initially that the entire process was covered by a law enforcement exception, exception 7A. [00:29:04] Speaker 02: All of that except for this part has already been released. [00:29:09] Speaker 02: Let me move to the third factor. [00:29:12] Speaker 02: That is someone has objected to disclosure and the identity. [00:29:17] Speaker 02: In Hubbard, this was a national children's, this was a different issue. [00:29:22] Speaker 02: Who else could object to disclosure of sources and methods other than the government? [00:29:29] Speaker 02: In the other cases, the concern was privacy of third parties who are concerned. [00:29:34] Speaker 02: Now, obviously the sources and methods are not going to be coming to court and objecting. [00:29:40] Speaker 02: It seems to me that in a national security situation, the only [00:29:47] Speaker 02: party that really has relevant information about that is the government. [00:29:54] Speaker 01: And granted, Your Honor, there is really nobody else who could stand in. [00:29:57] Speaker 01: So there really is only, in that part of the test, there's only one party to look at. [00:30:02] Speaker 01: But when the government comes in and expresses its interest in an ex parte fashion, this is a case that had eight declarations, an ex parte hearing that we didn't hear about until summary judgment was rendered, exhaustive briefing, in camera review. [00:30:19] Speaker 01: When the government is the party, the court has an especially heightened duty, and I know your honor agrees with that, and especially heightened role in questioning the government and asking the questions. [00:30:30] Speaker 01: And our only point on factor three is that the court should consider in the common law balance that it has an enhanced duty to ask the government questions. [00:30:41] Speaker 01: And that's exactly what Judge Boasberg did. [00:30:44] Speaker 01: He repeatedly asked the government to establish why the information redacted from the Archie Declaration. [00:30:50] Speaker 02: Again, I'm trying to pick at each one of the factors rather than a sort of zeitgeist of this. [00:30:56] Speaker 02: And this particular factor [00:30:58] Speaker 02: The judge says that because it's not a third party, the government's argument doesn't have the same strength. [00:31:07] Speaker 02: But I don't see how that can be the rule in a case involving national security information. [00:31:15] Speaker 01: Well, I think as I interpreted that, he was saying that I have a responsibility to conduct a very much more probing review if the government is a party. [00:31:25] Speaker 01: Not that the government's interest is diminished. [00:31:27] Speaker 01: It certainly is not. [00:31:29] Speaker 02: CNN does not argue the government's interest. [00:31:31] Speaker 02: He ends up by saying, while the court takes the FBI's objection into account, it does not have the same strength as a third party objection. [00:31:43] Speaker 02: strikes me as wrong, again, not the judge's fault, but wrong in a national security circumstance. [00:31:50] Speaker 02: Now, let me ask about the fourth and the fifth factors. [00:31:53] Speaker 02: I'm sorry, I gotta get all the way to the sixth, so just bear with me. [00:31:56] Speaker 02: I'm gonna combine the fourth and the fifth. [00:31:59] Speaker 02: So this is the question of intelligence sources and methods. [00:32:04] Speaker 02: And for this, what we have in the 6th Hardy Declaration is a statement that the information redacted [00:32:13] Speaker 02: on both pages reveals non-public information about intelligence methods. [00:32:18] Speaker 02: The FBI is obligated to protect such information under the National Security Act. [00:32:23] Speaker 02: So isn't that a statement both that that information does reveal non-public information about intelligence sources and because it has to be protected in the National Security Act that it risks harm to the national security. [00:32:39] Speaker 01: With respect, Your Honor, the first statement that the court said is correct. [00:32:43] Speaker 01: Of course, we take it at face value that the material is covered by the National Security Act. [00:32:51] Speaker 01: But the Hardy Declaration goes on to decline to answer parts four and five of the Hubbard test. [00:32:58] Speaker 01: It specifically says the FBI cannot provide any further details publicly about the still withheld information or the potential harms [00:33:07] Speaker 01: from disclosure. [00:33:09] Speaker 01: So the government expressly declined. [00:33:11] Speaker 02: Because such disclosure would reject those would risk those harms occurring. [00:33:16] Speaker 02: The FBI is explaining why you can't publicly disclose it. [00:33:22] Speaker 01: but it certainly had every opportunity and the court invited it to, in numerous occasions, to present non-public explanations for it. [00:33:32] Speaker 01: Your honor, we may not like, CNN obviously stands for the proposition that the court should have maximum openness, that transparency serves the system. [00:33:41] Speaker 01: And I know the court agrees with that. [00:33:43] Speaker 01: That's what MetLife, Harvard, and Leopold, and League of Women Voters all stand for. [00:33:48] Speaker 01: But when it comes to issues of national security, the solution is not for the court to stop asking questions. [00:33:55] Speaker 01: The court should always be asking questions under the common law. [00:33:59] Speaker 01: And the government certainly had opportunities in this case to answer those questions in whatever fashion it needed to safeguard whatever interests. [00:34:09] Speaker 01: The judge, and I will say Judge Boesberg, was very receptive, and there are notations on J-42, 46, 53, 54, 56, 64, to his role. [00:34:23] Speaker 01: He appreciated his role in the sensitivity of national security information. [00:34:29] Speaker 01: But what he said when he accepted the government's rationale under exemption one for a bunch of the redactions and under exemption three for a few of them is that the government provided a plausible rationale tailored to this factual circumstance. [00:34:46] Speaker 01: The Hardy Declaration expressly declines to do that. [00:34:49] Speaker 01: The Hardy Declaration is the only place the government has pointed to where it has met that obligation. [00:34:55] Speaker 01: And so it has not satisfied its burden. [00:34:58] Speaker 02: Let me ask about the sixth factor. [00:35:01] Speaker 02: So for that one, the purposes for which the documents were introduced. [00:35:06] Speaker 02: And the quotation is, the public's entitlement to judicial records is commensurate with the document's importance to the judicial proceeding in question. [00:35:16] Speaker 02: Now, the issue in this as being the single most important factor, the judge says this is the single most important factor. [00:35:27] Speaker 02: I totally agree that this is a relevant factor. [00:35:30] Speaker 02: But the idea that it's a single most important factor, the problem in Hubbard is, from the quotation is, it was the single most important factor in Hubbard [00:35:41] Speaker 02: But Hubbard wasn't saying it was the single most important factor in the test. [00:35:46] Speaker 02: And the reason it was the single most important factor in Hubbard was sort of the opposite of the argument in this case. [00:35:53] Speaker 02: It was an explanation for why the information in the search warrant should be kept secret by a third party was making that argument. [00:36:06] Speaker 02: I think it was a Scientologist. [00:36:09] Speaker 02: And the reason it was the single most important factor there was that that filing would have disclosed the very information they were trying to keep secret. [00:36:20] Speaker 02: That's really the same argument here. [00:36:22] Speaker 02: So I'm concerned that the court saw those words, the single most important factor and said it was when Hubbard didn't mean that to apply across the board and even in Hubbard, [00:36:37] Speaker 02: The way in which it was applied would apply in the opposite way that it was applied in this case. [00:36:43] Speaker 01: Well, Your Honor, whether it's the single most important factor or just a factor, the fact is that the district court relied on the Archie Declaration. [00:36:53] Speaker 01: The district, the government asked the district court in seeking leave at ECF 23 to file the Archie Declaration ex parte. [00:37:02] Speaker 01: It asked to aid the court in the resolution of the exemption claims by filing the Archie Declaration. [00:37:08] Speaker 01: We filed the last week, Your Honor, a supplemental joint appendix. [00:37:13] Speaker 01: It's the transcript of the ex parte hearing that the court held. [00:37:16] Speaker 01: The court opened up the hearing by saying, I have reviewed the Archie Declaration and I need your help. [00:37:21] Speaker 01: I need further help. [00:37:23] Speaker 01: And by the way, that is an instance where the government provided the help, the linkage the judge needed to get over the hurdle, the hump of the argument [00:37:31] Speaker 01: that they were making. [00:37:32] Speaker 01: They were quite capable of making that argument, Your Honor. [00:37:36] Speaker 01: And so, you know, there are other parts, ECF 49, the district court in the original summary judgment ruling relies on the Archie Declaration of three points. [00:37:45] Speaker 01: And Judge Boesberg left no doubt in this ruling at J8-6263, he relied on the Archie Declaration as a fundamental document that influenced his judicial decision-making. [00:37:57] Speaker 01: And that's where we read the argument to lie in part six. [00:38:02] Speaker 01: I might also mention your honor. [00:38:03] Speaker 02: Let me let my colleagues have a chance. [00:38:06] Speaker 02: Please. [00:38:06] Speaker 02: I've taken up all the time. [00:38:07] Speaker 02: Thank you. [00:38:08] Speaker 02: I apologize. [00:38:11] Speaker 03: I'll jump in. [00:38:15] Speaker 03: It seems like the thrust of your argument for a lot of the factors that Judge Garland was going through is that the government should lose because it wasn't specific enough in explaining [00:38:26] Speaker 03: why the redacted lines should stay redacted. [00:38:32] Speaker 03: My worry is if they had been more specific through an ex parte and camera declaration that provided more specifics, you'd be asking for that now. [00:38:51] Speaker 03: You'd be asking us to unredact their explanation of why they [00:38:57] Speaker 03: shouldn't unredact what's now redacted? [00:39:04] Speaker 03: What do I do with that concern? [00:39:08] Speaker 01: Your honor, I can't say that we wouldn't. [00:39:11] Speaker 01: I think it's something that the court has to take argument by argument by argument. [00:39:17] Speaker 01: There is certainly a lot of litigation. [00:39:19] Speaker 01: CNN is involved in a lot of it in the district court, trying to unseal court records. [00:39:24] Speaker 01: That is not an appropriate part of the process. [00:39:27] Speaker 01: It would give Judge Boasberg and the other district court judges the information that they need to make the determination, however, that if that ex parte filing justifies the sealing of the Archie memorandum in this case, then in all likelihood, we would not be able to prevail either under the common law or would be alternatively argued in this case, the First Amendment access standard. [00:39:50] Speaker 01: And the court would have the information that it needs to weigh. [00:39:53] Speaker 01: And so, Your Honor, that is not an unlikely scenario, but it is not an inappropriate one either. [00:40:01] Speaker 01: And it would give the district court every tool it needs to make the right decision. [00:40:06] Speaker 03: Well, it might explain why the FBI here was not more specific. [00:40:11] Speaker 03: They may have thought, well, if we're more specific, [00:40:14] Speaker 03: that will stay redacted under the six factor Hubbard test, but you know, six factor tests are not the most predictable tests and we don't know what judge will get. [00:40:22] Speaker 03: We don't know what panel will get. [00:40:23] Speaker 03: And if we go on bunk, we don't know where the on bunk. [00:40:26] Speaker 03: We just don't know exactly what will happen. [00:40:28] Speaker 03: So we're going to err on the side of not being specific in case that eventually gets underdacted. [00:40:32] Speaker 03: But, but since we're low on time, let me ask you the same forfeiture question today. [00:40:37] Speaker 03: I asked the FBI, assume I think they forfeited their exemption three argument in the district court. [00:40:46] Speaker 03: You didn't make that argument in your appellate brief that they forfeited their exemption three argument in the district court. [00:40:54] Speaker 03: So does that mean that you have forfeited your argument here that they forfeited their argument there? [00:41:01] Speaker 01: Well, we have to go back one more level deep, Your Honor. [00:41:04] Speaker 01: The Exemption 3 argument was raised on the Rule 59E motion. [00:41:10] Speaker 01: The 59E motion was denied. [00:41:12] Speaker 01: The judge said that they had their opportunity, and they waived the argument on summary judgment. [00:41:18] Speaker 01: They also did not appeal. [00:41:19] Speaker 01: They appealed. [00:41:20] Speaker 01: They listed it as an item in the Notice of Appeal, but they did not brief any error in the Rule 59E argument. [00:41:27] Speaker 01: And so I think the waiver balance, if that's how the court is looking, weighs heavily against the government as to whether the exemption three argument is live in this court. [00:41:37] Speaker 01: Your honor, if I may also just go back very briefly to your previous question, Judge Garland, may I just add a couple more sentences? [00:41:44] Speaker 02: Yes, but I want to see if Judge Millett has any questions and then you can do that at the end. [00:41:50] Speaker 04: Okay. [00:41:51] Speaker 04: Well, I'm happy to have them answer yours first, if that's easier. [00:41:53] Speaker 02: Okay, go ahead. [00:41:55] Speaker 01: Mr. Cohen, go ahead. [00:41:56] Speaker 01: Just to Judge Walker's point, [00:41:59] Speaker 01: Your honor, in our view, the FBI has a solemn duty to make its arguments to this court in as narrow a fashion to allow public access to judicial proceedings and under FOIA public access to agency records. [00:42:15] Speaker 01: We would hope that the FBI would use every reflection and introspection in presenting affidavits to the court and in presenting ex parte arguments. [00:42:26] Speaker 01: And so if there is a chilling effect on the FBI, if they are worried about exposure of ex parte information because CNN or Fox or anybody else comes in and asks for public records, I would argue that it's a healthy part of the process, that there is a common law test that this court has fundamentally and rigidly applied for the last 40 years, and that that would have a healthy impact on the process. [00:42:54] Speaker 01: And I have every confidence in Judge Boasberg and the other courts in this district that they will reach the right accommodation when they see the information presented to them. [00:43:05] Speaker 04: I wanted to ask, let's talk about the, let's say you have, let's just assume that you filed a FOIA request for the Archie Declaration, not a common law access. [00:43:17] Speaker 04: And the district court, it's a whole new case, and the district court [00:43:22] Speaker 04: looks at the Archie declaration in camera to try to figure out if exemption three or 70 really applies. [00:43:33] Speaker 04: If they do apply, you agree you couldn't get the declaration under FOIA, correct? [00:43:41] Speaker 01: If it meets the standard under FOIA for the exemption, yes. [00:43:44] Speaker 04: For three and 70. [00:43:46] Speaker 04: Could you still argue that in-camera submission? [00:43:49] Speaker 04: I'm not talking about the affidavit. [00:43:51] Speaker 04: I'm talking about the actual in-camera submission. [00:43:54] Speaker 04: You could still obtain it. [00:43:55] Speaker 04: Even though you couldn't get it under FOIA, you could still obtain it under the common law right of access, as long as the factors broke in your direction. [00:44:05] Speaker 01: Well, Your Honor, nobody appealed the FOIA document issue. [00:44:11] Speaker 04: I'm asking a hypothetical here. [00:44:12] Speaker 04: And that is, can you obtain under the common law [00:44:16] Speaker 04: access to, right of access to judicial records, anything that isn't available under FOIA, just because it was in camera. [00:44:27] Speaker 01: Your honor, I think there are two ways the court could go. [00:44:30] Speaker 01: My preferred route would be to follow the common law analysis. [00:44:33] Speaker 01: And if it broke down and if it broke in the government's favor on factors four or five or any of the others, then no, we could not obtain them. [00:44:42] Speaker 01: The other way that the court could go is to say that as in the FEC case, I think it was in race sealed case, the only reason the document is being filed with the court is to see if it should be sealed or unsealed. [00:44:55] Speaker 01: And under that case, it is not subject to the harbor factors, although [00:45:00] Speaker 04: I guess I'm not quite understanding your argument. [00:45:03] Speaker 04: I don't want you to tell me what the court could do. [00:45:05] Speaker 04: I'd like to know what CNN's position is. [00:45:08] Speaker 04: As soon as that document is filed in camera on a FOIA case, a complaint could be amended to say we'd also like to now get that in-camera filing under the common law right of access. [00:45:23] Speaker 04: and what you could do. [00:45:24] Speaker 04: You could amend the complaint to say that. [00:45:25] Speaker 04: I don't think there's any dispute about that. [00:45:27] Speaker 04: And the question is, is there any case that you can imagine in which the answer to the FOIA question and the common law access question would be different? [00:45:37] Speaker 01: Your Honor, CNN believes that any document filed in a court should be analyzed under both the Hubbard test and the First Amendment. [00:45:45] Speaker 01: So yes, it would be subject to challenge. [00:45:47] Speaker 02: Isn't this exactly the question that was addressed in MetLife? [00:45:54] Speaker 02: Mr. Tobin, in MetLife, the argument was made that the right to the information, that they could seek the right to information through FOIA negated any right to receive it under the common law. [00:46:11] Speaker 02: And the court held that FOIA only applies to documents in the executive's hands. [00:46:16] Speaker 02: And once the executive puts them into a court filing, which is what happened in that case, to the extent the court has control over the document, it's not controlled by the Freedom of Information Act, it's controlled by the court. [00:46:33] Speaker 01: Assuming it's a- That's exactly right, Your Honor. [00:46:36] Speaker 01: Your answer is yes, it could be really- To make that clear, I apologize, but that's exactly right. [00:46:40] Speaker 04: All right, so your position is that the in-camera document itself, [00:46:45] Speaker 04: could be released under judicial common law access standards, even if it would be withheld under FOIA. [00:46:52] Speaker 04: Under the ruling in Medlife, it's a ruling in Medlife. [00:46:59] Speaker 04: MetLife didn't involve an in-camera filing. [00:47:02] Speaker 04: In-camera is this very unique procedure that we have for the resolution of FOIA cases. [00:47:07] Speaker 04: And I'm trying to figure out if your legal position is that as soon as you invoke that process that FOIA allows for for in-camera filings, then immediately that document suddenly becomes available under a [00:47:25] Speaker 04: The district court surely couldn't order the government to release it unless it found no FOIA exemption. [00:47:31] Speaker 04: But if it found a FOIA exemption, it can't order the agency to release it. [00:47:36] Speaker 04: But the court could release it itself. [00:47:39] Speaker 01: Well, in MetLife, Your Honor, the documents were filed in camera under Dodd-Frank in a sealed appendix and sealed brief. [00:47:47] Speaker 04: And in that case, as Judge Garland said, MetLife... A sealed brief isn't the same thing as... When parties seal filings all the time, [00:47:55] Speaker 04: Right. [00:47:56] Speaker 04: But a formal in-camera proceeding is not the same thing as a sealed document. [00:48:00] Speaker 01: But that's what happened in the district court in the MetLife case, that the documents were reviewed in-camera. [00:48:08] Speaker 01: And then on appeal, the party argued that it was subject, or actually in a motion for access and then on appeal, that it was subject to the common law test. [00:48:17] Speaker 01: And Judge Garland and the other judges on that panel held it up. [00:48:20] Speaker 04: There are signs in there that it could not be released under the FOIA provisions. [00:48:25] Speaker 01: I'm sorry, Your Honor. [00:48:26] Speaker 04: Was there a finding there? [00:48:27] Speaker 04: Because Dodd-Frank there sort of incorporated the FOIA process and exemptions. [00:48:32] Speaker 04: And so was there a finding there that it would be forbidden to be released by the agency under FOIA, but it could be released by the court? [00:48:40] Speaker 01: There was not that specific finding. [00:48:42] Speaker 04: That's what I'm asking about. [00:48:44] Speaker 04: OK. [00:48:44] Speaker 04: All righty. [00:48:48] Speaker 04: Would you agree if the information in the Archie Declaration were in fact protected by Exemption 3 [00:48:54] Speaker 04: court should not release it or it still could under the six factors? [00:49:00] Speaker 01: I think your honor that the FOIA the finding under FOIA does not answer the Hubbard test completely. [00:49:06] Speaker 04: I'm just talking about exemption three here I'm not talking about all the other exemptions under FOIA which you know there's a lot of those. [00:49:11] Speaker 04: I'm talking about exemption three and and to be clear of course national security protection under exemption three there's a lot of exemption three statutes but [00:49:20] Speaker 04: No, I think you could re-judge Boasberg's opinion to say that he assumed it fell under Exemption 3, but even arguing... But your position is, even if it's protected by the National Security Act, could not be released under FOIA under Exemption 3, it can be released under the... Put aside the forfeiture issues. [00:49:37] Speaker 04: It can be released under the balancing test. [00:49:40] Speaker 01: That's the command of the MedLife test. [00:49:42] Speaker 01: Yes, Your Honor, that is our position. [00:49:44] Speaker 04: Okay. [00:49:44] Speaker 04: Thank you. [00:49:47] Speaker 02: All right, I know we're out of time on a rebuttal, but that's more our fault than Mr. Pullman's. [00:49:56] Speaker 02: So if you want to take two minutes, go right ahead. [00:49:58] Speaker 00: I'd like to make just a few points very quickly. [00:50:00] Speaker 00: I think Judge Millett has gotten to a key problem with CNN's position here. [00:50:06] Speaker 00: And I think that El Sayegh, this court's case in El Sayegh, indicates that when a document is before the court solely for the purpose of determining whether it should be released, that the common law doesn't apply. [00:50:22] Speaker 00: And the consequences of CNN's position would totally undermine FOIA. [00:50:29] Speaker 00: We would have [00:50:29] Speaker 00: It doesn't take much difficulty to imagine situations where there would be a FOIA request for all kinds of documents. [00:50:35] Speaker 00: The requester would say, district court, please examine them in camera to be sure. [00:50:39] Speaker 00: And anytime that did, the document could be released under the common law under totally different standards than what FOIA provides. [00:50:47] Speaker 00: The second point I'd like to make is CNN hasn't argued that the district court mistakenly accepted the ex parte declaration for in-camera review. [00:51:02] Speaker 00: So there's a real disconnect here between saying the FOIA litigant can't have access to this information [00:51:09] Speaker 00: But after the case is resolved, a member of the public could come in and get it. [00:51:14] Speaker 00: I think that's a real problem with their position. [00:51:18] Speaker 00: And the third point I'd like to make. [00:51:21] Speaker 04: I just don't understand that point because the FOIA litigant is also a member of the public and could always assert common law access rights. [00:51:28] Speaker 00: Right, but [00:51:29] Speaker 00: I think it's just, it's odd to think that you can litigate the FOIA case and the requester can't have access to information for the purpose of kind of a statutory claim, but then later you can apply totally different factors to release it to someone else. [00:51:48] Speaker 00: That seems to be not an ideal situation. [00:51:52] Speaker 00: And the final point I'd like to make is [00:51:56] Speaker 00: CNN acknowledged that it didn't dispute that this information was covered by the National Security Act. [00:52:04] Speaker 00: And I think that should weigh very, very heavily in these four, five, and six factors. [00:52:11] Speaker 00: This court said in the Henry sealed case that where Congress passes a statute restricting an agency's ability [00:52:18] Speaker 00: to put information on the public record that rarely, if ever, should the Hubbard factors overcome that. [00:52:24] Speaker 00: The district court here said that because the government's investigation was at an end, so too is the strength of the Bureau's argument. [00:52:35] Speaker 00: Coverage under the National Security Act, which relates to intelligence sources, doesn't depend on the existence of an ongoing investigation. [00:52:43] Speaker 00: All sources are protected, whether there's a current investigation or not. [00:52:48] Speaker 00: So for those reasons, yes, please. [00:52:49] Speaker 00: Can I ask you a question? [00:52:50] Speaker 04: Because before the district court, the government did invoke 7E to protect law enforcement confidential sources. [00:53:02] Speaker 04: But now we're not hearing about 7E. [00:53:04] Speaker 04: told about the National Security Act on Exemption 3. [00:53:07] Speaker 04: Is every FBI confidential source covered by 7E also an intelligence source covered by the NSA? [00:53:21] Speaker 04: Or why wouldn't, if not, then why, how do we make that jump? [00:53:28] Speaker 00: Well, the National Security Act specifically relates to intelligence sources, and I believe 7E relates to confidential sources in an investigation. [00:53:38] Speaker 00: So you could have a source in an investigation that has nothing to do with intelligence. [00:53:42] Speaker 00: It could be someone, you know, saw someone on the street breaking into a car. [00:53:47] Speaker 00: Someone's in a drug organization that could be a confidential source without being an intelligence source or relating to an intelligence method. [00:53:55] Speaker 04: So I think those, those are trying to understand how we got from the government, you know, wasn't [00:54:01] Speaker 04: presumably was thoughtful in all of its filing, then it was explicit about this is a 7E confidential source for law enforcement. [00:54:09] Speaker 04: And it wasn't until Rule 59 in here that we suddenly heard that the same confidential law enforcement source or method that's supposedly at risk here is also an Exemption 3-1. [00:54:23] Speaker 04: It just strikes me as quite [00:54:26] Speaker 04: hard to believe that the government wouldn't have noticed when it invoked 7E whether that person was also an NSA intelligence source or not. [00:54:35] Speaker 00: So just to be clear, the Archie Declaration was describing information that was withheld under B1 as being classified pertaining to an intelligence source. [00:54:52] Speaker 00: So it was clear from the very beginning that that was an intelligence source material. [00:54:56] Speaker 04: The government also- Sorry, where was this clear that it was an intelligence source? [00:55:01] Speaker 04: I just thought references to 7E. [00:55:03] Speaker 00: If we look in- In the Hardy Declaration. [00:55:06] Speaker 00: In the Hardy Declaration, in the Archie Declaration itself, this was on page JA 146, these redactions come from a section discussing why material in one of the Comey memos that [00:55:19] Speaker 00: was not requested by CNN, was requested by another party and then dropped out of litigation. [00:55:25] Speaker 00: Archie is describing why this information is classified under Section 1.4C of the executive order. [00:55:34] Speaker 00: That same underlying information in the Comey memo [00:55:37] Speaker 00: The government asserted exemption three. [00:55:39] Speaker 00: This was in the first round of summary judgment briefing before it came up to this court and was remanded. [00:55:44] Speaker 00: So that the underlying information was flagged as relating to an intelligence source. [00:55:50] Speaker 04: And this is Because an exemption one classified information is Of a different even higher caliber than an exemption three NSA and you're not claiming that the [00:56:06] Speaker 04: Archie declaration information at issue here as if I heard you right in your response to Judge Garland what you're not claiming that this is classified information or an Exemption one eligible. [00:56:18] Speaker 04: And so the only jump I'm seeing is from the Hardy declaration invoking seven e for this source methods information. [00:56:28] Speaker 04: to exemption three. [00:56:29] Speaker 04: And now you're throwing exemption one on the table, which is making things more confusing for me. [00:56:33] Speaker 00: I'm sorry. [00:56:34] Speaker 00: So I'll walk through kind of step by step. [00:56:37] Speaker 00: Initially, in the first round of this litigation, one of the documents at issue, one of the Comey memos at issue had information that was classified relating to an intelligent source. [00:56:51] Speaker 00: Right, I understand that. [00:56:51] Speaker 04: And that's how one is thinking and thought. [00:56:53] Speaker 04: Are you saying that this Archie, I'm sorry, just because we're short on time, this portion of the Archie declaration is speaking to the Exemption 1 information in the Comey memo? [00:57:04] Speaker 00: It is, it is. [00:57:06] Speaker 04: You can see on the heading on GA 146. [00:57:10] Speaker 00: That's right. [00:57:11] Speaker 00: It's describing why the underlying information is Exemption 1, and it's doing that using information that would be protected by Exemption 3. [00:57:19] Speaker 04: Why did Hardy talk about 70 and not 3? [00:57:22] Speaker 00: So just to move on to the next step, if I could. [00:57:26] Speaker 00: So after the Archie Declaration was filed, [00:57:29] Speaker 00: or at the same time, rather, the government moved for summary judgment with respect to this memo that CNN didn't request. [00:57:37] Speaker 00: And the government said, this is protected by B1. [00:57:40] Speaker 00: And then there was a separate section of its summary judgment. [00:57:43] Speaker 00: I believe this is docket entry 22, something around that. [00:57:47] Speaker 00: There's a separate entry that says, this material is also covered by exemption three because it relates to [00:57:53] Speaker 00: intelligence sources. [00:57:55] Speaker 00: And it's often the case that something that's covered by B1 under section 1.4c will also be B3 because they both relate to intelligence sources. [00:58:03] Speaker 00: So that was the first round. [00:58:06] Speaker 00: So we had already established that the underlying information is B3. [00:58:09] Speaker 00: Then we have the Six-Party Declaration, which says that the information in the Archie Declaration is covered by the National Security Act, and it had already been litigated in this case that the National Security Act was a V3 exemption statute. [00:58:29] Speaker 00: So that's the connection. [00:58:32] Speaker 00: It wasn't just that it was a law enforcement source. [00:58:35] Speaker 00: There's been an ongoing claim this underlying information relates to an intelligence source as well. [00:58:43] Speaker 00: Okay. [00:58:43] Speaker 00: I hope that that was a little more clear. [00:58:45] Speaker 00: I apologize. [00:58:46] Speaker 00: So for those reasons, we ask that the judgment be reversed. [00:58:50] Speaker 02: All right, thank you all very much. [00:58:52] Speaker 02: And I think Judge Walker did an excellent job on his first outing. [00:58:56] Speaker 02: We'll take the matter under submission and the clerk can call the next case. [00:59:00] Speaker 02: Thank you all.