[00:01:05] Speaker 01:
Your Honors, good morning.

[00:01:06] Speaker 01:
My name is Kel McClenahan.

[00:01:08] Speaker 01:
I am here on behalf of the appellant Juan Machado Amadas.

[00:01:11] Speaker 01:
With me at the table is his Dominican lawyer, Karina Perez, and the lawyer for the amici, Katie Townsend.

[00:01:22] Speaker 01:
Most of my argument today is going to be about big picture arguments.

[00:01:29] Speaker 01:
The parties have already briefed most of the issues in this case to a great degree of detail.

[00:01:35] Speaker 01:
And so I view my job here as basically answering any questions that you have interest in for whatever particular topics you are interested in.

[00:01:46] Speaker 01:
With that in mind, I'm going to jump sort of all around in the briefs to hit the topics that are sort of the most egregious examples of the problems with the district court opinion and the agency's position.

[00:02:01] Speaker 03:
What are the big picture issues in the case?

[00:02:04] Speaker 03:
This seems like a very

[00:02:06] Speaker 03:
narrow set of disputes about whether searches were adequate and remedies were exhausted given the way particular denial letters were framed?

[00:02:18] Speaker 01:
So there are three main big picture issues, one of which I'm not going to really touch on unless you really want to hear from me, and that is the foreseeable harm standard.

[00:02:27] Speaker 01:
the foreseeable harm standard, and that is what Ms.

[00:02:30] Speaker 01:
Townsend is going to primarily talk about.

[00:02:32] Speaker 01:
But the other two, one is the basic underpinning of the lack of evidence, the lack of what Judge Williams in the AFTRAC case called reasonable specificity of detail in declarations viewed on their own terms.

[00:02:53] Speaker 01:
This came up a lot in the search issues where in the case of the DEA, the only piece of evidence for why this one alleged system was likely to be the only one to contain records was a statement that we decided that this one system would be the only one likely to contain records.

[00:03:17] Speaker 01:
And the FBI, sorry.

[00:03:20] Speaker 01:
Not the only one.

[00:03:21] Speaker 03:
They did say the only one.

[00:03:24] Speaker 03:
No, the system that any responsive records would likely be in that system.

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

[00:03:35] Speaker 01:
OK.

[00:03:36] Speaker 01:
I see the distinction that you're making, Your Honor.

[00:03:39] Speaker 01:
And this is, we are not saying, nor really could we say, that if all the records

[00:03:50] Speaker 01:
are likely to be found in one system.

[00:03:52] Speaker 01:
They also have to look in other systems for duplicates of those records.

[00:03:57] Speaker 01:
We are saying that they can't limit it to the one most likely to contain records.

[00:04:04] Speaker 01:
and that if there are systems which are likely to contain records which are not in that one system, they have to search there.

[00:04:12] Speaker 01:
But the more fundamental question is we don't even have to get to that today because they did not provide sufficient specific evidence that why this one system would be the most likely to contain records.

[00:04:27] Speaker 03:
The underlying law, the big picture legal point on this is that

[00:04:34] Speaker 03:
The governing standard is reasonable search, not a perfect search.

[00:04:39] Speaker 03:
And the affidavit in this case says they determined all responsive information was reasonably likely to be found in this database.

[00:04:53] Speaker 01:
Right.

[00:04:54] Speaker 01:
And I would quibble with your statement that the standard is, because while what you said is a standard,

[00:05:03] Speaker 01:
That's not the standard we're focusing on.

[00:05:05] Speaker 01:
We're focusing on the burden of evidence and a conclusory statement that... On the quantum of proof that the search is reasonable?

[00:05:14] Speaker 01:
Right, exactly.

[00:05:15] Speaker 01:
And that is what we're saying.

[00:05:16] Speaker 01:
It may turn out that were you to remand this, as you did in the Institute for Justice case, they may provide more evidence explaining why this would be where all the likely records would be located, and then they win.

[00:05:31] Speaker 01:
or we would even concede that perhaps, but they have not met that burden.

[00:05:36] Speaker 03:
The affidavit is a little bit thin, but the brief tries to shore that up by saying, and the problem, when I just read the affidavit, the problem I thought of was, gosh, we don't know what's in this database.

[00:05:54] Speaker 03:
If we don't know what's in this database, can we assess that this is a reasonably targeted search

[00:06:01] Speaker 03:
They cleaned up that problem in the brief by explaining what the database was by reference to federal register materials that are judicially noticeable.

[00:06:12] Speaker 03:
And it seems like it's perfectly targeted.

[00:06:15] Speaker 03:
It's a database with regard to their FOIA.

[00:06:20] Speaker 01:
Right.

[00:06:21] Speaker 01:
And the problem is that reaching the legal conclusion that they have satisfied their burden here, even with that extra information,

[00:06:31] Speaker 01:
requires a leap to saying that there are not any records anywhere else that would not be in this system.

[00:06:42] Speaker 01:
And that may be true.

[00:06:46] Speaker 01:
We cannot get there from the evidence.

[00:06:48] Speaker 03:
You don't take issue with the judicial notice piece.

[00:06:51] Speaker 03:
We can consider the description of the database.

[00:06:54] Speaker 01:
Oh, totally.

[00:06:56] Speaker 01:
Although I would add, as I clarified in one of the briefs,

[00:07:00] Speaker 01:
That Justice 004 isn't a database the way that most people think of that.

[00:07:06] Speaker 01:
It's a Privacy Act system of records which is not a one server that has records on it.

[00:07:12] Speaker 01:
It's a descriptive of basically the equivalent of a room full of different files that's shared by different agencies.

[00:07:19] Speaker 01:
It is DOJ-wide.

[00:07:22] Speaker 04:
Your argument on that left me scratching my head because

[00:07:26] Speaker 04:
It certainly sounded as if your description of Justice 004 was as something much bigger than one might have supposed it to be.

[00:07:39] Speaker 04:
And that therefore, if they were searching it, all the more likely they would find scraps that they wouldn't find searching a narrower, less than a room, a file cabinet rather than a room.

[00:07:57] Speaker 04:
Why isn't that a reasonable understanding?

[00:08:00] Speaker 04:
Because...

[00:08:03] Speaker 01:
The system of records designation for Justice 004 is sort of like a stamp that you would put on a record.

[00:08:13] Speaker 01:
And there's no guarantee that they're all located together.

[00:08:16] Speaker 01:
They're easy to search at all.

[00:08:17] Speaker 01:
It, you know, the EOUSA has a separate server that is part of Justice 004 but doesn't talk to the other servers, then DEA, then FBI, then what have you.

[00:08:28] Speaker 01:
And so the problem is that it's not broader in that it's not really a system or even a collection of systems.

[00:08:43] Speaker 01:
It's just a label.

[00:08:46] Speaker 01:
And so when you get down to the particular- We're talking about labels in the law.

[00:08:52] Speaker 04:
The question is, what is labeled, and then I guess

[00:08:56] Speaker 04:
what the agency does to find what is signified by the labor.

[00:09:01] Speaker 01:
Right.

[00:09:02] Speaker 01:
And that goes to the second point that is relevant to this, which is that the U.S.

[00:09:13] Speaker 01:
government and DOJ has a long history of considering

[00:09:18] Speaker 01:
e-mails in e-mail systems to not be part of systems of records under the Privacy Act.

[00:09:25] Speaker 04:
You cited a particular passage in the district court, at page 13 of your gray brief, you cited a particular passage of a district court opinion for the proposition that this was a long-held DOJ position.

[00:09:40] Speaker 04:
I found no shred of that.

[00:09:44] Speaker 01:
Which brief are you talking about, the main brief or the reply?

[00:09:46] Speaker 01:
Reply.

[00:09:47] Speaker 01:
Oh, sorry.

[00:09:48] Speaker 01:
Page 13.

[00:09:53] Speaker 04:
It was a very striking thing to assert that DOJ had this long-held position, and that this was, if I looked at that place, I would find how long-held it was.

[00:10:05] Speaker 04:
But I found nothing of the sort.

[00:10:07] Speaker 01:
You mean Krieger, the case.

[00:10:11] Speaker 01:
That's not surprising, honestly, because I will be honest.

[00:10:18] Speaker 01:
When I said it's long held, that's based on my own experience having litigated this.

[00:10:23] Speaker 01:
It doesn't generally get to the opinion stage where somebody talks about it.

[00:10:27] Speaker 01:
Well, it didn't seem to get to it there.

[00:10:29] Speaker 04:
Actually, with respect, it did.

[00:10:32] Speaker 04:
So what's the language that I should be looking at?

[00:10:35] Speaker 01:
So on page 42 and 43 of that opinion, I apologize.

[00:10:38] Speaker 01:
I don't have the opinion in front of me.

[00:10:42] Speaker 01:
Krieger was about whether or not emails can be searched.

[00:10:48] Speaker 01:
The fact that they can be searched by a personal identifier means that they are designed to be searched by a personal identifier.

[00:10:55] Speaker 01:
And that is the discrepancy that crops up a lot.

[00:10:58] Speaker 01:
And honestly, if you were to ask my colleague at DOJ, they could probably give you a more lengthy laundry list of places they've argued this.

[00:11:08] Speaker 01:
The system of records is a deeply complicated, nuanced, controversial part of the Privacy Act.

[00:11:18] Speaker 01:
And many privacy act cases have run aground of this idea that an email server is not part of a system of records even though it might contain a bunch of records that would be considered part of a system of records.

[00:11:32] Speaker 01:
That you have to move emails into some other system and before you can even think about putting the stamp on them of Justice 004.

[00:11:44] Speaker 01:
And that is the tension here.

[00:11:46] Speaker 01:
If they were to explain that in greater detail in a declaration, it might suffice.

[00:11:52] Speaker 01:
But again, this is coming back to the overarching problem of lack of evidence.

[00:11:57] Speaker 03:
But they say the Federal Register description of it is records, the system consists of records created or compiled in response to FOIA requests.

[00:12:11] Speaker 03:
Yes.

[00:12:12] Speaker 03:
And you say in your

[00:12:14] Speaker 03:
before that Krieger site, you described the system as a generic term for the records maintained about FOIA requests across all of DOJ.

[00:12:27] Speaker 03:
And I did paraphrase about, but.

[00:12:29] Speaker 03:
And the underlying request at issue seeks documents memorializing or describing the process of a FOIA request.

[00:12:41] Speaker ?:
Right.

[00:12:42] Speaker 03:
The request maps perfectly onto the system as they describe it in the Federal Register and as you paraphrase it at page 13 of the reply.

[00:12:55] Speaker 01:
The fact that this book contains notes about litigation does not mean that there aren't other books that contain notes about litigation in my library at home.

[00:13:10] Speaker 01:
That's the distinction that I'm trying to make here.

[00:13:12] Speaker 01:
The fact that it does say this system contains these records doesn't mean only this system contains these records.

[00:13:19] Speaker 01:
And while I do very much appreciate the distinction that you're seeing here, as a bit of a cop-out, I admit, I would simply suggest to ask them that and you'll get an answer much like what I'm telling you.

[00:13:39] Speaker 03:
So that's fair.

[00:13:40] Speaker 03:
saying back to me that I am maybe drawing an inference of comprehensiveness which seems to me a fair one but maybe not a compelled one from the sense that this is a system, it's not just some

[00:14:04] Speaker 03:
It's not just some random room or file right here thing.

[00:14:08] Speaker 03:
But then don't they tie that up with the affidavit, which says they determined all responsive information was reasonably likely?

[00:14:16] Speaker 03:
I mean, doesn't that suggest that the system is what one might think, which is a system?

[00:14:24] Speaker 03:
This is something comprehensive with respect to the FOIA stuff.

[00:14:27] Speaker 01:
Conclusory affidavits that parrot the statutory language or the case law language are never

[00:14:34] Speaker 01:
sufficient for summary judgment.

[00:14:36] Speaker 01:
That's straight out of Hayden versus NSA.

[00:14:38] Speaker 01:
And when the question before the court is, was it reasonable, you can't rely on a statement that said we did a reasonable search or we made a reasonable determination.

[00:14:47] Speaker 01:
Trust us.

[00:14:50] Speaker 01:
And that's basically what this is saying.

[00:14:52] Speaker 01:
And it's saying for the same reason that the State Department had the same problem of just, and I'll just finish on this sentence since I'm way past my time, of saying, you know,

[00:15:04] Speaker 01:
These records, these emails are indexed by request number, all include the request number.

[00:15:11] Speaker 01:
And I said, they haven't offered any proof of that.

[00:15:13] Speaker 01:
In fact, here's one that doesn't have the request number in it.

[00:15:17] Speaker 04:
That's true.

[00:15:18] Speaker 04:
On the other hand, it is something that State discovered in the search of a file organized by number.

[00:15:29] Speaker 04:
And there was a reason why it turned up in that file.

[00:15:32] Speaker 04:
And it was that reason was not just someone was wandering around dumping things into a file.

[00:15:39] Speaker 04:
It was part of an exchange that was a chain email, became a chain email with the magic number in it.

[00:15:49] Speaker 04:
So yeah, it's still, it's not inconsistent with the proposition that the records are organized by request number.

[00:15:59] Speaker 04:
And it also, I mean the episode that you pointed to with a sort of a ha expression, seems to suggest that that organization is reasonably close to effective or makes searching by request number reasonably close to effective.

[00:16:18] Speaker 01:
And your honor, I would agree that this, their search probably called the lion's share of the records.

[00:16:25] Speaker 01:
That one in particular,

[00:16:27] Speaker 01:
If you think back, sort of do a little hypothetical exercise and say, okay, well, what if they had not responded to that email?

[00:16:35] Speaker 01:
And I was the one that sent the email.

[00:16:36] Speaker 01:
If they had not responded to that email, it would be sitting in their inbox and would not have been located because their response was what put the name in it.

[00:16:44] Speaker 01:
So that's why agencies are supposed to do things like more than one search term.

[00:16:49] Speaker 04:
If they didn't... Look at what you're saying.

[00:16:52] Speaker 04:
You're talking about an email that comes in.

[00:16:56] Speaker 04:
It apparently never plays any roles.

[00:16:58] Speaker 04:
It's in some computer inbox and nobody ever does anything about it.

[00:17:08] Speaker 04:
It seems to be a sort of non-thing and, I mean, a non-event, certainly, and it's a little hard to expect an agency to collect all the non-events that may have sprung up about a particular request.

[00:17:25] Speaker 01:
With respect, Your Honor, if an email exists discussing a request, it's responsive to a FOIA request.

[00:17:34] Speaker 01:
I understand.

[00:17:36] Speaker 04:
In a world of perfect knowledge, it would undoubtedly be turned over.

[00:17:40] Speaker 04:
But we live in an imperfect world.

[00:17:43] Speaker 01:
And I can see that.

[00:17:45] Speaker 01:
And I don't think that they should manually read every email in the FOIA office.

[00:17:49] Speaker 01:
But I think that they should look for maybe Machado.

[00:17:55] Speaker 04:
I went to school with a kid named Machado and we studied history in which there were a lot of characters named Machado.

[00:18:05] Speaker 04:
I have the sense that it's not exactly a terribly rare name.

[00:18:11] Speaker 01:
I would argue that that is speculation, that it's not rare among FOIA requesters to the State Department.

[00:18:18] Speaker 01:
But it falls on them to do the search and say it was too broad, and then say that in a declaration by admissible evidence.

[00:18:25] Speaker 01:
Fair enough.

[00:18:26] Speaker 05:
All right.

[00:18:26] Speaker 05:
Why don't we hear from counsel for the media immediately.

[00:18:31] Speaker 01:
Thank you, Your Honor.

[00:18:38] Speaker 00:
Good morning, Your Honors.

[00:18:40] Speaker 00:
May it please the court.

[00:18:41] Speaker 00:
A meekie reporters committee and 36 news media organizations sought to participate in this case to address admittedly what is a discrete issue but one of extreme importance to FOIA requesters generally.

[00:18:53] Speaker 00:
The foreseeable harm provision that was added to the act in 2016 is

[00:18:59] Speaker 00:
I feel comfortable saying the most consequential change to FOIA in decades.

[00:19:04] Speaker 00:
Prior to the 2016 amendments, an agency need only demonstrate that a record or information fell within the scope of a FOIA exemption in order to lawfully withhold it.

[00:19:15] Speaker 00:
That is no longer the case.

[00:19:18] Speaker 04:
My understanding is there's legislative history, for what it might be worth, saying that this was intended to make as a matter of law the practice

[00:19:29] Speaker 04:
followed by the Obama administration.

[00:19:32] Speaker 00:
So there's no question, Your Honor, that the foreseeable harm language came from an executive branch policy, former Attorney General Holder's memorandum to Department of Justice concerning when FOIA requests would be, or when FOIA litigation would be defended by DOJ.

[00:19:47] Speaker 00:
There's no question it came from that.

[00:19:49] Speaker 00:
But a statutory mandate on the part of Congress has a very different effect.

[00:19:54] Speaker 00:
It is a statutory mandate requiring disclosure.

[00:19:56] Speaker 04:
Yeah, but it's too critical to figure out what it means.

[00:19:59] Speaker 04:
Right?

[00:20:02] Speaker 00:
Correct, Your Honor.

[00:20:03] Speaker 04:
And if it's modeled on a practice, one might suggest it's intended to embed that practice.

[00:20:13] Speaker 04:
That seemed to be what the legislative history was.

[00:20:15] Speaker 04:
So I mean, it's kind of obvious question is, has there been a falling off, or at least the facts accumulated here, do these represent a deviation from or falling off from

[00:20:29] Speaker 04:
law practice of the Obama administration?

[00:20:32] Speaker 00:
I think the question, the way I would frame it, Your Honor, is that the context of the FOIA Improvement Act of 2016, the reason Congress felt that such legislation was necessary was because, in fact, it needed to alter what Senator Grassley referred to as a culture of government secrecy.

[00:20:50] Speaker 00:
So I think the idea that they were simply trying to

[00:20:53] Speaker 00:
embed a practice because business as usual was working out perfectly fine is simply not bore out by the legislative history at all and I think it would not make much sense.

[00:21:04] Speaker 00:
Congress clearly saw a problem and the problem that they identified was overuse of exemptions that did not require withholding but permitted it by government agencies really across the board an increasing number of withholdings.

[00:21:19] Speaker 00:
They sought to

[00:21:21] Speaker 00:
change that culture from one of default withholding to one of default disclosure, one of transparency.

[00:21:30] Speaker 00:
And therefore, they did that by mandating disclosure, absent a showing of foreseeable harm, assuming that disclosure is not otherwise prohibited by law.

[00:21:40] Speaker 00:
So this is really a sea change in FOIA.

[00:21:42] Speaker 00:
It was intended to be.

[00:21:43] Speaker 00:
It was intended not only to address

[00:21:46] Speaker 00:
too many withholdings, but to address other problems as well, because fewer withholdings means fewer litigation.

[00:21:54] Speaker 00:
The idea was to make a systemic change in FOIA.

[00:21:57] Speaker 03:
It's only a sea change if, with regard to documents that fall within the scope of an exemption, but whose disclosure wouldn't harm the purpose of the exemption.

[00:22:13] Speaker 00:
That's correct.

[00:22:14] Speaker 03:
Why do you think that's

[00:22:17] Speaker 03:
the heartland as opposed to the fringe.

[00:22:20] Speaker 03:
I mean, if there's an exemption for documents whose disclosure would harm national security, you would expect that most documents falling in that category would undermine the purpose of the exemption if they were disclosed.

[00:22:38] Speaker 00:
And I think that cuts against really what Congress was looking to do.

[00:22:41] Speaker 00:
I mean, you are correct, absolutely, Your Honor.

[00:22:43] Speaker 00:
What this was designed to do was to

[00:22:46] Speaker 00:
prohibit agencies from relying on these exemptions where it technically fits, where the document technically falls within the scope of that exemption.

[00:22:56] Speaker 00:
But there would be no harm to the interests.

[00:22:58] Speaker 03:
For some odd, quirky fact, it's on the margin of the exemption, or there's some unusual fact in the case.

[00:23:05] Speaker 03:
I know they solved this problem by other means, but maybe it's a deliberative process document that's really, really old.

[00:23:12] Speaker 03:
But I mean, those are sort of more peripheral applications

[00:23:17] Speaker 00:
I don't think Congress would have worked on a bipartisan manner over the course of two years to address what it saw as problems on the fringes.

[00:23:26] Speaker 00:
I think it saw this as a critically important and major problem, the overuse of discretionary exemptions, saw it as a major problem that needed to be addressed.

[00:23:35] Speaker 00:
And I think these, pardon me, Your Honor.

[00:23:39] Speaker 03:
It's conceptually a major change, no doubt about it,

[00:23:45] Speaker 03:
permissive, whenever the document falls within the scope of the exemption, government doesn't have carte blanche.

[00:23:58] Speaker 03:
They have to make a further justification.

[00:24:01] Speaker 03:
But that doesn't necessarily mean that we're talking about a huge number of documents.

[00:24:09] Speaker 03:
That doesn't necessarily mean that the nature and extent of the burden

[00:24:16] Speaker 03:
of justification on the government is something wholly different in kind from what they normally do in FOIA cases.

[00:24:25] Speaker 03:
It just means that they have to go the extra step and say

[00:24:29] Speaker 03:
is the purpose of the exemption satisfied by withholding?

[00:24:34] Speaker 00:
They have to identify a purpose, a specific purpose, that they believe reasonably, objectively, reasonably, would be harmed by disclosure.

[00:24:41] Speaker 00:
And then they have to tie that.

[00:24:42] Speaker 00:
They have to link that to the specific information at issue here.

[00:24:46] Speaker 00:
So I think with respect to the two blitz forms that we're talking about here,

[00:24:49] Speaker 00:
I don't think it's our position that those blitz forms in general, and I think this is what the declaration goes to, blitz forms in general may fall within the scope of the deliberative process privilege and may, in certain circumstances, the government may be able to demonstrate that the placebo requirement is met.

[00:25:06] Speaker 00:
I think they didn't do that in this case, and that is the issue.

[00:25:10] Speaker 00:
And they can't do that on a categorical basis.

[00:25:12] Speaker 00:
And I would just point to the court, because I think it would be helpful to the court.

[00:25:17] Speaker 00:
We noted that there have been no court of appeals decisions interpreting the foreseeable harm provision.

[00:25:22] Speaker 00:
There have been some district court decisions since Amiki filed its brief.

[00:25:26] Speaker 00:
There have been two additional district court decisions addressing the foreseeable harm provision within the context of the deliberative process privilege, one from Chief Judge Howell and one from Judge Kohler-Katelli.

[00:25:37] Speaker 00:
We have the Westlaw site, so I can give those to you in case they're helpful.

[00:25:41] Speaker 00:
The first is Judicial Watch, Inc.

[00:25:43] Speaker 00:
against Department of Justice 2019 Westlaw 464-4029.

[00:25:47] Speaker 00:
That's a September 24th, 2019.

[00:25:51] Speaker 00:
decision from Judge Kohler-Katelli, and then Center for Investigative Reporting Against U.S.

[00:25:56] Speaker 00:
Customs and Border Protection, 2019 Westlaw 737-2663.

[00:26:00] Speaker 00:
That's a December 31st, 2019 decision from Chief Judge Howell.

[00:26:06] Speaker 00:
In both cases, rejecting the government's showing of foreseeable harm as sufficient.

[00:26:12] Speaker 00:
I would note that in the judicial watch case, there was a declaration from Ms.

[00:26:16] Speaker 00:
Brinkman, quite similar in language,

[00:26:18] Speaker 00:
that the Judge Kolar-Katelli found insufficient on foreseeable harm.

[00:26:24] Speaker 00:
I think we largely agree with the way the district courts generally, maybe not Judge McFadden in this case, but generally have been interpreting the burden that is placed on agencies.

[00:26:34] Speaker 03:
What else would you have them do?

[00:26:36] Speaker 03:
They file the affidavit which talks about disclosure of the information at issue, at issue, in the case.

[00:26:48] Speaker 03:
say it would severely hamper the efficient day-to-day workings of the attorneys, and they explain why that's true.

[00:26:58] Speaker 03:
And it is not only unsurprising, but necessarily true that the explanation for why that is the case is linked directly to the purpose of the exemption, which is to make sure that the government can get candid legal advice.

[00:27:14] Speaker 00:
I think respectfully, Your Honor, I look at the Brickman Declaration, the provisions that were cited by Judge McBadden, and I think that they actually speak to glitz forms generally.

[00:27:24] Speaker 00:
And the argument that is being presented is that these are subject to the deliberative process privilege.

[00:27:29] Speaker 00:
And therefore, they would, of course, necessarily, if they were disclosed, harm an interest to be protected by the deliberative process.

[00:27:36] Speaker 00:
It's a circular argument.

[00:27:38] Speaker 00:
It would render the foreseeable harm provision a nullity in the context of Exemption 5, where it's clear that Congress wanted it to do work, particularly in Exemption 5.

[00:27:49] Speaker 00:
And so I think here what I would say is the specific information.

[00:27:52] Speaker 03:
I mean, just as a matter of how they frame this, they say disclosure of information at issue.

[00:27:59] Speaker 03:
It seems to be it reading.

[00:28:02] Speaker 00:
I would say right in context that it's talking about blitz forms.

[00:28:05] Speaker 00:
It talks about discussion, for example, between supervising attorneys and the attorneys that fill out the blitz form.

[00:28:11] Speaker 00:
Well, if you look at the two blitz forms that issue here, there's no back and forth.

[00:28:15] Speaker 00:
There's no supervising attorney comments or discussion.

[00:28:17] Speaker 00:
And in fact, the recommendation that is redacted, it looks to be a one or two word recommendation.

[00:28:24] Speaker 00:
So if the argument that OIP is making is that it would harm the deliberative process privilege to release a statement by an attorney that says recommendation remand agency, recommendation affirmed, I think that that cuts directly or runs directly against what Congress was intending to do with the foreseeable harm provision.

[00:28:47] Speaker 04:
I mean, I understand what you're saying, but it seems to me the only way the agency can satisfy the foreseeable harm requirement is to give detail that makes this something other than a more or less, not more or less, a completely mundane

[00:29:18] Speaker 04:
example of the deliberative process privilege?

[00:29:25] Speaker 00:
I think that there is the obligation.

[00:29:28] Speaker 00:
It is a meaningful, it is an independent burden that's been placed on the agency.

[00:29:32] Speaker 00:
The agency does have an obligation to provide some level of detail sufficient for the court de novo to review the foreseeable harm finding that was made by the agency.

[00:29:44] Speaker 04:
Could you give an example?

[00:29:45] Speaker 00:
I think the blitz forms here are actually a good example and we don't necessarily... That's because of what's missing, right?

[00:29:55] Speaker 00:
It's because of what is, well, I think what is redacted, and again, I'm not taking the position that the agency cannot meet this burden.

[00:30:03] Speaker 00:
I'm saying the agency did not meet this burden because it did not tie the harms that are sought to be protected by the deliberative process privilege.

[00:30:14] Speaker 00:
It did not tie any specific harm to the specific redacted information here.

[00:30:19] Speaker 00:
It talked about blitzkriegs generally.

[00:30:23] Speaker 04:
Does that mean that

[00:30:26] Speaker 04:
It has to show in some way that this deliberative process information is non-ritualistic.

[00:30:36] Speaker 04:
I mean, it's sort of silly when a bureaucratic ritual becomes encased in preservation.

[00:30:46] Speaker 04:
But on the other hand, as soon as you go beyond that, as you require more

[00:30:54] Speaker 04:
It's hard to see how you do it without getting into the substance of the information not to be disclosed.

[00:31:02] Speaker 00:
I think that the agency can provide through declarations, through Vaughan Indices and other manners, as they do when they establish that exemptions apply, can provide additional information that would allow the court to objectively determine whether they, in fact, reasonably foresee harm from disclosure of this information.

[00:31:19] Speaker 00:
I think a lot of the ritualistic sort of

[00:31:21] Speaker 00:
Monday and everyday information, I think what Congress intended was in fact that that would not be redacted.

[00:31:27] Speaker 00:
That we wouldn't be having to worry about what showing the agency would make for Monday and information because that would be disclosed.

[00:31:34] Speaker 00:
That's the purpose of the foreseeable harm provision is to mandate disclosure unless

[00:31:39] Speaker 00:
Frankly, there's actually a need for this information to be withheld.

[00:31:43] Speaker 00:
And then in those cases, I think it isn't difficult or shouldn't be difficult for the agency to articulate why this specific information in this form or in this document is different and we need to withhold this because it would harm... Without disclosing the information...

[00:32:01] Speaker 04:
Object of which is to prevent disclosure.

[00:32:03] Speaker 00:
They should be able to do that.

[00:32:05] Speaker 00:
And to the extent they can't, the district court can always review documents in camera within its discretion if it feels it needs to to conduct a de novo review.

[00:32:14] Speaker 00:
But I think it is certainly possible, and agencies do it routinely with respect to withholdings, explain their rationale.

[00:32:23] Speaker 03:
And they get no weight out of the fact that

[00:32:27] Speaker 03:
the kind of information at issue here, which is legal advice given by subordinate lawyers to government lawyers up the chain about legal and strategic issues regarding how to handle a legal issue, what to do with the FOIA request.

[00:32:53] Speaker 03:
They get no mileage out of the obvious

[00:32:58] Speaker 03:
sensitivity of that issue.

[00:33:00] Speaker 03:
Right in the heartland of

[00:33:02] Speaker 03:
deliberative process.

[00:33:03] Speaker 00:
Well, I think you're assuming, Your Honor, that it is in fact that kind of information that's been redacted and the government hasn't attempted to say that that's what it is.

[00:33:14] Speaker 00:
And I would actually point the Court to the Coastal States case that's cited by the government.

[00:33:18] Speaker 00:
It is not a foreseeable harm case because it was decided in 1980 by this Court, which is obviously decades before the foreseeable harm provision, but in fact the Court concluded that the deliberative process privilege

[00:33:28] Speaker 00:
did not apply to attorney memoranda that were provided more or less on a routine basis to auditors in the Department of Energy's field offices.

[00:33:37] Speaker 04:
That was secret law.

[00:33:39] Speaker 00:
It was a secret law case.

[00:33:40] Speaker 00:
That's true.

[00:33:40] Speaker 00:
But it is the case the government relies on, Your Honor, to demonstrate that the deliberative process was placed.

[00:33:47] Speaker 00:
It is the only case that the government cites in its brief on the issue of the foreseeable harm provision.

[00:33:55] Speaker 05:
All right.

[00:33:55] Speaker 00:
Thank you.

[00:33:55] Speaker 00:
Thank you, Your Honors.

[00:33:57] Speaker 05:
We'll hear from the government.

[00:34:06] Speaker 02:
Waley Shaw for the government.

[00:34:10] Speaker 02:
May it please the court.

[00:34:12] Speaker 02:
I'd like to start with Amiki's contentions.

[00:34:16] Speaker 02:
I submit to this court that this case really does not provide an occasion for this court to define

[00:34:22] Speaker 02:
the minimum standard of what agencies must provide to satisfy either FOIA Exemption 5 directly or to satisfy the 2016 amendments to FOIA.

[00:34:33] Speaker 02:
What OIP did here in defending its withholdings is really exemplary of what agencies should be doing to defend those exemptions.

[00:34:41] Speaker 02:
I mean, fortunately, it had the

[00:34:42] Speaker 02:
benefit of only having two records before it.

[00:34:45] Speaker 02:
And certainly there are cases in which agencies have, you know, there are many, many more records involved and agencies aren't able to devote the same level of attention to any withholdings.

[00:34:54] Speaker 02:
But in this case, OIP did exactly, it looked to exactly the kinds of factors that this court has recognized as speaking to whether withholding satisfies the purpose of the privilege.

[00:35:07] Speaker 02:
including the factors that are discussed in the Coastal States Gas Corp case.

[00:35:14] Speaker 02:
So really any question of whether there's some, to Judge Katz's question of whether there's some distance between what agencies were doing before and whether, you know, there are sort of additional requirements posed by the 2016 amendments really isn't presented because on either standard what the agency did is sufficient.

[00:35:38] Speaker 02:
I'd also like to turn briefly to some of the contentions raised by plaintiff.

[00:35:46] Speaker 02:
And I think one of the chief complaints that plaintiff has is that there were not certain emails that were turned up in the State Department's and DEA searches for records.

[00:35:58] Speaker 02:
So because he argues, for example, that because the State Department searched by case number, that that wasn't adequate to turn up any emails.

[00:36:08] Speaker 02:
Um,

[00:36:09] Speaker 02:
I think the search was adequate for the reasons that are explained in our brief.

[00:36:14] Speaker 02:
And there's no reason to expect that there are other emails that would exist that would have been responsive to plaintiff's request.

[00:36:21] Speaker 02:
I just want to point out that, first of all, that the one example that plaintiff gives is an email from his counsel to the State Department, which was expressly excluded from the scope of his search and, in fact, was turned up in the search anyway because State Department had added the case number.

[00:36:38] Speaker 02:
But second, that

[00:36:40] Speaker 02:
What about DEA?

[00:36:43] Speaker 03:
Yes.

[00:36:43] Speaker 03:
How do you answer the point that the existence of this database might not comprehensively pick up all documents, all responsive documents, even if it might pick up many?

[00:37:05] Speaker 02:
The question before the court is not whether there might be some other record that was not included in this database.

[00:37:15] Speaker 02:
The question is whether the search was adequate, whether it was reasonably calculated to locate all responsive records.

[00:37:21] Speaker 02:
And we have an express declaration that says exactly that.

[00:37:26] Speaker 02:
It says that all responsive information was reasonably likely to be included in this

[00:37:31] Speaker 02:
system and that records are retrieved from the system by, among other things, case number

[00:37:39] Speaker 02:
In fact, they located the file.

[00:37:41] Speaker 02:
And I would just point out that among the records that DEA actually retrieved from the system is an email from Plaintiff's Council, and that was produced as part of the production of records.

[00:37:55] Speaker 02:
So there's no reason to think that emails were somehow categorically excluded, and there's no reason to doubt the DEA's declaration that all responsive records would have recently been included.

[00:38:05] Speaker 05:
Do you understand our case is basically to place a burden on the requester

[00:38:09] Speaker 05:
that once the declaration comes in in the form, it came in here, then it is up to the requester to suggest that during the request or doing the informal back and forth, it indicated some other likely source

[00:38:27] Speaker 05:
In other words, in other cases we've had situations where there have been some suggestions that there might be emails somewhere else and in those cases the representation has been made on the record that the agency either explained why that was not likely or indeed that they had looked there and not found anything.

[00:38:50] Speaker 02:
And I think the agency effectively did that here.

[00:38:52] Speaker 02:
It said all responsive information was reasonably likely to be included in the system.

[00:38:57] Speaker 02:
That doesn't, the fact that there might be another system that also includes responsive records isn't sufficient to make the search inadequate as so long as... Who knows?

[00:39:08] Speaker 05:
There might be another system where these responsive records might be found.

[00:39:15] Speaker 05:
That's what I'm getting at.

[00:39:16] Speaker 05:
If the agency knows there is another system,

[00:39:19] Speaker 05:
That is, there's some obligation, particularly after 2016, to search there.

[00:39:24] Speaker 02:
Well, the question, certainly the agency has understanding and expertise as to the content of its own systems.

[00:39:33] Speaker 02:
And this court has frequently relied.

[00:39:35] Speaker 05:
That wasn't my question.

[00:39:36] Speaker 05:
That wasn't my question.

[00:39:37] Speaker 05:
It has, quote, a comprehensive system.

[00:39:41] Speaker 05:
All right?

[00:39:42] Speaker 05:
But it also knows that there could be some responsive emails

[00:39:48] Speaker 05:
elsewhere.

[00:39:51] Speaker 05:
Right, the question is...

[00:40:02] Speaker 05:
Not only is this comprehensive, but we don't know of any other place that these emails might be.

[00:40:08] Speaker 02:
Right.

[00:40:08] Speaker 02:
The fact that there might be responsive records located elsewhere is not dispositive.

[00:40:14] Speaker 02:
Under MOBLY, the question is whether those responsive records are likely to be duplicative of records that were already retrieved from the system that was in fact searched.

[00:40:24] Speaker 05:
So in fact... So my hypothetical is the agency knows there are other emails that are not duplicative, that are not.

[00:40:32] Speaker 05:
within this, quote, comprehensive file.

[00:40:35] Speaker 05:
Does the agency have any obligation post-2016 to indicate that?

[00:40:40] Speaker 02:
I'm not sure that the 2016 amendments speak to this question.

[00:40:43] Speaker 05:
Well, I'm trying to understand what Congress had in mind.

[00:40:46] Speaker 02:
Right, I think.

[00:40:47] Speaker 05:
All right, that if the agency, we have said in other cases, if the agency knows, that's not to assure the requester that it's looked and there's nothing there that's relevant.

[00:40:56] Speaker 02:
I think if an agency knows that there are responsive records located in a location that has not been searched, then the agency has an obligation to search in that location.

[00:41:06] Speaker 02:
I don't think that the 2016 amendments have affected that obligation.

[00:41:10] Speaker 05:
So you don't even think the 2016 amendment requires the agency to say, not only do we have this comprehensive system, but we know of no other place

[00:41:22] Speaker 05:
responsive documents are likely to be found.

[00:41:25] Speaker 02:
I think in terms of defending the adequacy of the agency search, the obligations on the agency are the same now as, you know, as they were.

[00:41:33] Speaker 05:
So 2016 made no difference.

[00:41:36] Speaker 02:
What the 26 amendments did was they spoke to the standards that agencies would have to meet in justifying withholdings of records under certain exemptions.

[00:41:46] Speaker 02:
And that, I think, is a

[00:41:48] Speaker 02:
analytically a separate issue from the question of the adequacy of the search.

[00:41:52] Speaker 02:
And so the government, you know, we certainly agree with the meeting.

[00:41:56] Speaker 05:
So you think Congress wasn't concerned about adequacy?

[00:42:00] Speaker 02:
Congress may have been concerned about adequacy, but they did not speak to that issue through this particular statute.

[00:42:06] Speaker 05:
What did you think the 2016 amendment was all about?

[00:42:09] Speaker 02:
Well, it was about a number of things, but specifically the issue that had been raised by me.

[00:42:13] Speaker 05:
You were saying this is a law enforcement record.

[00:42:15] Speaker 05:
It's not disclosable, period.

[00:42:18] Speaker 02:
Right, I think the issue that Miki has principally been discussing at least is a perceived overuse of exemptions in

[00:42:32] Speaker 02:
over withholding of documents.

[00:42:34] Speaker 02:
And specifically what Congress said that it was doing was that it sought to preserve a executive branch policy that was in place since 2009.

[00:42:43] Speaker 02:
And it said, the legislative history says quite expressly that it wanted to preserve that standard against future changes in administrations and reduce possible confusion both to FOIA processors and FOIA requesters.

[00:42:58] Speaker 02:
And so, again, I think that issue is entirely separate from the question of, you know, whether the agency search in this case was accurate.

[00:43:07] Speaker 05:
So then I don't understand what Congress had in mind.

[00:43:10] Speaker 05:
Why amend the statute?

[00:43:11] Speaker 02:
Well, Congress did, Congress very clearly did at least two things that changed the state of the law.

[00:43:17] Speaker 02:
One is it took an executive branch policy and codified it into statute, which means... Okay, but we all remember, I trust, that you did better than I.

[00:43:27] Speaker 05:
that when Holder issued that, that was a change, all right?

[00:43:32] Speaker 05:
And the agencies were supposed to be more responsive and to disclose more.

[00:43:41] Speaker 05:
So that's why I'm trying to understand, what are the practical effect of this?

[00:43:48] Speaker 05:
Because you know as well as I do that this court, the agency files these declarations, either the district court or we remand for more specificity.

[00:43:57] Speaker 05:
You know, that's almost standard operating procedure.

[00:44:00] Speaker 05:
Or the agency responds initially and says we don't find anything and then the plaintiff files the complaint in court and all of a sudden the agency looks further and it finds something.

[00:44:12] Speaker 02:
So the practical effects are, again, to codify this into statute and also make this requirement enforceable in a FOIA action, which is exactly what we have before the court.

[00:44:24] Speaker 02:
So those are two very concrete differences in the law after the 2016 amendments.

[00:44:31] Speaker 02:
So I guess I don't agree with the contention that somehow that doing those two things is superfluous.

[00:44:42] Speaker 02:
I'm open to any more questions, but if the court has none, we ask that the judicial court judgment be affirmed.

[00:44:54] Speaker 02:
Thank you.

[00:45:03] Speaker 01:
Thank you, Your Honors.

[00:45:08] Speaker 01:
To briefly respond to a lot of what was said after I stopped talking last time, from our perspective, and this may be a point where we diverge a little bit from the amici, is that we actually agree in large part with the DOJ

[00:45:29] Speaker 01:
that this isn't necessarily the place for the court to decide, you know, how can an agency meet the foreseeable harm standard?

[00:45:40] Speaker 01:
The only thing that you need to decide is that they haven't done it here.

[00:45:45] Speaker 01:
And that whatever is... That completely avoids the first issue.

[00:45:50] Speaker 01:
Yes, right.

[00:45:52] Speaker 01:
That puts it back in the fact finders' hands to... Yes, but to say that,

[00:45:58] Speaker 04:
implies at a minimum a benchmark of what would be sufficient.

[00:46:02] Speaker 01:
Correct.

[00:46:04] Speaker 01:
And which is something more than this.

[00:46:06] Speaker 01:
That can be helpful.

[00:46:10] Speaker 01:
The big overexemption that a lot of people on the Hill were talking about, and a lot of people in the public were talking about when the amendments were being considered, was this idea of a chilling effect.

[00:46:24] Speaker 01:
Because before 2016, an agency

[00:46:28] Speaker 01:
could get summary judgment on the deliberative process privilege claim by saying that people are chilled who work in fishbowls because fishbowls are chilly.

[00:46:39] Speaker 01:
And 2016 comes along and

[00:46:43] Speaker 01:
the OIP has taken the position that, OK, well, we can't say that fish bowls are chilly.

[00:46:50] Speaker 01:
We have to say that OIP attorneys are chilled by the prospect of working in a fish bowl because fish bowls are chilly.

[00:46:58] Speaker 01:
That is not a significant change.

[00:47:01] Speaker 01:
And to the question that was asked by Judge Rogers, I apologize, the sort of underlying

[00:47:12] Speaker 01:
intention of 2016 for foreseeable harm was that there has to be something.

[00:47:23] Speaker 01:
Congress, we cannot presume that Congress made a law to memorialize what everybody was already doing legally.

[00:47:31] Speaker 01:
There has to be something they meant to change.

[00:47:36] Speaker 01:
And the only way that you can find that there was something they meant to change would be to add a particularized

[00:47:43] Speaker 03:
they have to explain why disclosure in a particular case advances the purpose of the underlying exemption.

[00:47:58] Speaker 03:
That doesn't seem like it's

[00:48:01] Speaker 01:
disclosure of these records or of this information.

[00:48:06] Speaker 01:
And this sort of gets to the idea of you were asking for some hypos about what would be picked up by foreseeable harm that wasn't picked up before.

[00:48:18] Speaker 01:
And I would use the example

[00:48:22] Speaker 01:
You have this, you assumed because the agency said so, that this was legal advice.

[00:48:29] Speaker 01:
I actually would hotly contest that it was legal advice because there was no evidence whatsoever that it was not adopted hook, line, and sinker and rendered as a matter of agency practice the final decision and the fact that it happened to go from a junior to a senior.

[00:48:47] Speaker 05:
I don't understand that.

[00:48:49] Speaker 05:
Pardon me?

[00:48:49] Speaker 05:
I don't understand that why it would be

[00:48:50] Speaker 05:
inconsistent or incompatible, where the declaration says it was legal advice.

[00:48:56] Speaker 01:
Because it becomes a final agency decision if they act on it.

[00:49:00] Speaker 01:
And the fact that Vanessa Brinkman did not write the memo, but instead said, yeah, whatever, and stamped it, doesn't make it any less of a final agency decision.

[00:49:13] Speaker 04:
And very persuasive, subordinate giving advice.

[00:49:17] Speaker 04:
What else does it show besides that?

[00:49:20] Speaker 01:
And if a persuasive subordinate gives advice that is adopted by the agency as an agency policy or an agency action, it becomes not covered by the process privilege because it is a statement of agency, it is a final decision.

[00:49:37] Speaker 04:
And the only exception to that is if... That would be true, I guess, if the persuaded official said,

[00:49:46] Speaker 04:
precisely for the reasons stated below.

[00:49:50] Speaker 04:
I adopt the recommendation.

[00:49:53] Speaker 01:
And that gets to the specific nature of these records, these blitz forms.

[00:49:56] Speaker 01:
And I mentioned this in my reply where I said, you know, blitz forms about the adequacy of the search, you cannot affirm the subordinate attorney's finding for extrinsic reasons.

[00:50:10] Speaker 01:
You can't say that the search that they did, I'm going to say I'm going to affirm the search because it's Friday.

[00:50:18] Speaker 05:
We understand that counsel.

[00:50:21] Speaker 05:
But we have a declaration here saying this is legal advice.

[00:50:25] Speaker 05:
And you want us to look behind that statement, correct?

[00:50:29] Speaker 01:
Yes.

[00:50:30] Speaker 01:
Yes, Your Honor.

[00:50:31] Speaker 05:
So it's not legal advice.

[00:50:33] Speaker 05:
And we have all these decisions saying that the declaration basically is to be taken as true, absent some evidence of bad faith or misrepresentation.

[00:50:46] Speaker 01:
Your honor, that is only part of it, with all due respect.

[00:50:50] Speaker 05:
What is the rest of it?

[00:50:51] Speaker 01:
Why don't you wrap up, counsel?

[00:50:57] Speaker 01:
OK.

[00:50:57] Speaker 01:
A declaration that is lacking on its face cannot be relied on for summary judgment absent any other evidence that I may or may not have.

[00:51:08] Speaker 05:
All right.

[00:51:09] Speaker 05:
What else, counsel?

[00:51:13] Speaker 01:
Honestly?

[00:51:14] Speaker 01:
I think that this is a fairly straightforward case, and I stand behind all of the arguments I made in my brief and adopt the amicable arguments.

[00:51:23] Speaker 06:
Thank you very much.

[00:51:25] Speaker 06:
Thank you, Your Honor.