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Case number 18-5356, Stephen Aguirre, appellant versus drug enforcement administration.

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Ms.

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Fassel for the appellant, Mr. Walker for the appellate.

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Good morning.

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Good morning, Judge Rogers.

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Thank you, and may it please the court, Stacey Fassel, court appointed amicus in support of appellant.

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At issue in this case is Mr. Aguiar's request for GPS tracking data.

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in the form that the DEA itself viewed that data during its investigation of Mr. Aguiar and the form in which the DEA presented the data to the jury during Mr. Aguiar's trial, that is plotted on a map.

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In response to Mr. Aguiar's request, the DEA provided Mr. Aguiar with 351 pages of longitude and latitude coordinates and has refused to provide Mr. Aguiar with the data in the usable map form that he has requested.

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It is undisclosed where the agency has not said that the records it used for the investigation and the trial are no longer in existence.

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Correct, Your Honor.

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The agency has said that the map images that it used at trial are no longer, that they were unable to locate those.

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And the DEA has not disputed in this case that it can readily convert the GPS data into map images.

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And by its plain language, FOIA requires the DEA to provide the data in that readily reproducible form.

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Talking about a piece of physical evidence and the agency searched for it, or even a description of a piece of physical evidence that was introduced at trial,

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and the agency was unable to locate it, what would the result be?

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If the agency conducted a reasonable search and was unable to locate it, then the requester would not necessarily be entitled to that information, but for the provision at issue here, which is 552A3B and which entitles a requester to the form or format that he or she requests as long as it is readily reproducible.

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in that former format.

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And here, the information at issue is the GPS tracking data, which presupposes a map.

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A map is simply another way of viewing, displaying, manifesting that very data.

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And in fact, that is why when the DEA was tracking Mr. Aguiar in real time, it viewed a map image of the coordinates.

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It didn't view a list of the coordinates, even though it has stored them in that way.

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That's one idea, but another idea is simply a tracking idea.

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You know, if you're on a boat, where are you?

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And you write it down, but there's no map as such necessarily.

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I just want to be clear, is it your position then that the text of the statute is such that, in my hypothetical of a written description of a physical piece of evidence, for example, a gun, the agency would be required to recreate that?

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No, Your Honor, I think if you're actually having to change the substance of the information that the agency actually has, that would be creating a new record and would not be a former format.

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I'm trying to make this hypothetical clear, and I'm not.

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If there had been a memorandum describing the gun that, let's say, was introduced at his trial, and now the government

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A FOIA request has been made that's specific enough, and the agency has conducted a reasonable search and is unable to find either the gun or the memorandum describing the gun.

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I want to be clear what you think the law is in terms of what is the agency's responsibility.

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regarding that request?

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I don't think, Your Honor, that the agency would have to recreate that.

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I think the agency's obligations only extend to information that it has in its possession and control.

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And so here, the agency undisputedly has the GPS tracking data.

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It has it in one particular form.

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It has it in the coordinate form, but it is required to produce that in another

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form or format that is requested.

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And so I don't think that the agency is obligated to create information that it no longer has.

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But where it does have that information, the 1996 FOIA amendments make clear that the way in which the information is stored does not matter anymore.

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And the requester is entitled to his or her preferred form or format of that information.

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And so I do think that map images very easily fit into the statutory language here for the very reason that the DEA regularly in its business views those coordinates in that very map form.

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And we have any reason to think that they ever use or view it in anything but the map form.

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I mean, Agent Carter talked about being able to

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view these maps and see these patterns of travel on Mr. Aguiar's part.

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And we also have pretty illegible copies in the record of the maps that were introduced at trial.

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Do we know whether they ever look at the numbers, for example, to see patterns or look at it in the form that they provided it?

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I don't think so, Your Honor.

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The DEA certainly has never argued that and the record does not reflect that it does.

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What the record reflects is that when the DEA uses GPS monitoring in its business, it uses an interface now, a software before that allows it to view that data in real time in the map image and not as a list of coordinates.

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And I think this is similar to a situation where now within the modern era of technology,

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Agencies may store information in a way that is readable by a computer.

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For example, the GPS coordinates here or a binary code.

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But then when they actually use that information in a way that's understandable to the human eye, it requires some sort of processing.

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And that is exactly what the GPS data here requires and how it is intended to be viewed in the map form.

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Here's what my first question was all about.

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He asked for a CD from the DEA containing the DEA computer files of all tracking information collected via GPS devices.

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between these two dates, about six months apart, the very same file used by DEA to prepare exhibits for trial.

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Isn't that what he got?

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No, Your Honor.

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I believe his request, which must be construed broadly,

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was for all images associated with the tracking information.

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And the DEA, once it provided the CD with only the longitude and latitude coordinates, it has always been understood, as it was by the district court, that Mr. Aguiar's alternative request is for the agency to use its mapping technology to put that data

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into map form.

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And the DEA has certainly never indicated that that was not included within Mr. Aguiar's original request or that his original request was not specific enough to require the DEA to put the GPS coordinates into map form.

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In your brief on page 30, you refer to the district courts

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decision, taking the view that quote, creating the maps would involve inputting data into a computer program to generate thousands of individual map images.

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And you respond that visual maps are required, but you never dispute the notion that thousands of images would be required.

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And one of the issues in contention is whether the agency is being called on to exercise judgment in creating new documents.

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And I had been assuming until I read that page that, and you didn't take issue with the characterization of thousands of individual map images, that what Mr. Aguiar was seeking was

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not one separate map for every ping, but a map showing all the coordinates of a particular journey.

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That's right, Your Honor.

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Mr. Aguirre is seeking, he's not seeking a map for every ping.

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He would need to be able to see, to differentiate the coordinates

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from one another.

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So it may be that it can't be that all the coordinates, I assume that it would not be that all the coordinates could fit on one map.

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Not in the record exactly how many maps would be required, but certainly the DEA could

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produce maps that contain multiple coordinates consistent with Mr. Aguiar's request.

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So the question is, I think the legal question for you is, to the extent that the case law says, you know, differentiates an existing document from a document generated in response to a FOIA request, one of the factors that the cases look at is whether the

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government would have to use judgment in kind of creating new records.

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And what's your response to that on this issue where obviously Mr. Aguirre would not find useful a separate map for each ping and he also would not find useful one map with all the coordinates on it.

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So what's the unit and why is that not requiring the

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the DEA to make a new judgment that is essentially creating records for the FOIA response.

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I think, Your Honor, the test for former format is whether there's a change in the content in which it would not be a new form of format or just a change in the physical attributes.

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And likewise, when we're talking about judgment, if

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If the request requires the agency to make judgments or analysis about the content, like summarizing information, that's creating a new record.

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But if there's no change in the underlying content, but there may be some judgments about the physical attributes that have to be made, that does not take us out of the former format language.

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And in fact, even under the DEA's narrower reading that is not in the text that would limit it to electronic or not electronic or coded or uncoded or the like,

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you would still have the problem of there's always going to be certain judgments about the type of CD or the weight of paper or what kind of Excel spreadsheet or Google spreadsheet.

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And so a lot of times that will just be a factor of what the tools the agency uses to readily reproduce the document.

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And here, of course, the agency has not disputed that it could do so and has not said here that really this request would require

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all kinds of judgments.

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Mr. Aguiar is only seeking that the agency use the tools to put the GPS coordinates into map form.

[00:12:18] Speaker 05:
No, in fact, they don't seem to be disputing that.

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They seem to be preparing if they lose to give you thousands of individual map images, each with one ping.

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I think, Your Honor, I read the DEA as saying that it would need to

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It would need to create put enough maps that the pings would be discernible from from one another.

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But I do think that that that judgment would be up to the agency likely and I do think there's guidance in In the 1996 amendments purpose, which is to enhance the usefulness of information and use technology.

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to make sure that requesters are getting access to information in usable form.

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So I think as long as the DEA is providing the information in a usable form that satisfies the requested issue, that would be satisfying the agency's obligation.

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So it would satisfy its obligation if each PING were discernible but not mapped as a journey?

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I think, Your Honor, what Mr. Aguilar is seeking here is

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is just to see the GPS coordinates plotted on maps.

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And so I don't think that it needs to be, he has not requested that they be plotted as a journey, though he is again seeking it in the form that the DEA viewed it.

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And presumably that form and the way that it is presented at trial often includes multiple pings, for example, from the same day on a map.

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So I do think

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the form that the agency views it and the form that its technology would use, presumably would have multiple pings on the same map.

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Oh, I had my hypothetical about the gun because I thought it was easy.

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I thought here, and the reason I went back to his original request was I thought the language he used was attempting to eliminate

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the concerns about agencies having to exercise judgment when he said, I want exactly the very same file that the agency used.

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So the agency knows how many pings it put on a map, which ones it introduced, et cetera.

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So the argument, as I understand it, is that a map form

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is not simply another form or format.

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It's a completely new representation of information.

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And the agency is not obligated to do that.

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And I thought that was sort of the district court's concern that Mr. Aguiar would be getting this additional information.

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What's the best response to that?

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I think, Your Honor, that the test cannot be whether the form creates or requires creation of additional information.

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And the reason why is because I think all forms inherently require additional information that is particular to that form.

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So, for example, if the agency kept data sets but regularly produced them into graphs or pie charts that would be other forms, those need to add the pie or the X and Y axis.

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Those are sort of

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features, physical features that are particular to that form.

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Here, the GPS coordinates, which presuppose a map, which are simply the longitude and latitude, a position on a map, presuppose that there's a map that allows a user to understand the physical location of those GPS coordinates.

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And so as long as the information that is added is not altering or analyzing the content at issue, then it is simply another form or format where the added information is incidental to as part and parcel of the very form that's being requested.

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And that is the case with a map.

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And here the agency would read limitations into the statute that simply

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are not there.

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And it is undisputed that an agency, for example, would have to print paper that's only kept electronically.

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And so just as that's not creation of a record, putting the GPS coordinates in the way that the agency usually views them is not creation of a record.

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So you draw the line at adding or changing information?

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I would draw the line at whether you are changing the substance of the underlying information.

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And as you just said, I believe the way, the touchdown would be the way the agency ordinarily uses the data.

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Yes.

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Yes, Your Honor.

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In a case such as this one where the agency ordinarily in its business uses the data in that way, it's very easy to see that the requested form or format fits within that broad any form or format language.

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Do we, I mean, what do we know about the way, I mean, obviously we can ask Mr. Walker, but what do we know about the way the agency ordinarily uses the data?

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We have the trial exhibits, but more, you know, in Mr. Carter's testimony, he talks about referencing maps.

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Can you tell us to the extent that you know

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the specifics about where and how?

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Was it back at the office?

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Was it in the car?

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Was it on the smartphone?

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Just remind us what the record has on this.

[00:18:08] Speaker 00:
Yes, Your Honor.

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I believe that Agent Carter's testimony was that he would view the maps in real time at a computer.

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I don't recall that he specified, but I got the sense that it was from an office.

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And so in real time, when he would want to request a ping or send up the satellite to show the coordinate,

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he would view that on the computer and would view Mr. Aguiar's movements on a computer.

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And then of course, in addition, in map form, would view them on a computer in map form.

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Showing, I mean, like I can look at a car calling app and see that my child has used my account to go drop a friend off and another friend and come home.

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And I see the whole trip.

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Do we know whether when Mr. Carter was looking, was he just seeing the car or was he seeing that he had been down, you know, route seven and across Spear Street?

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He would see it for as many times as he put in the ping.

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So sometimes he was monitoring Mr. Aguiar around the clock.

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And so in that case, he would be putting in pings every minute or so.

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And he would see the car traveling somewhere, for example.

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So he would only see what

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someone with a helicopter and a lot of time on their hands would see.

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He would see where the car was, as you say, in real time, but not the path, the journey.

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Correct, Your Honor.

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The only way he would see the path is by repeatedly pinging while he was monitoring.

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and seeing the path in that way while he was monitored.

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Does that make sense?

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Yeah, but it's also different from the trial exhibits.

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Well, correct, Your Honor.

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Because there's no such thing now as producing the real time.

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They could produce that, and they'd presumably show Mr. Aguirre's car in some impoundment lot somewhere.

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Correct, Your Honor.

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What Mr. Aguirre is seeking is the coordinates that the DEA has given him, the 351 pages that tracked his movements from 2009 plotted on a map.

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On many maps?

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On potentially many maps.

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The same maps, but potentially it would need to be, if they were printed, would need to be printed multiple pages.

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Yes, Your Honor.

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But of course, the DEA hasn't disputed that it can readily do that, and printing a large volume of documents is often required for complying with a FOIA request.

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And to your question, I think a second way that the DEA used the GPS coordinates was by

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I believe the record reflects putting them into a software and printing those images for trial and that might be much closer to what Mr Aguiar is requesting here.

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The agency, in fact, I believe the record shows that at least their old technology couldn't necessarily print from the same software that they were using in real time, but they would often

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put the GPS coordinates into a web-based interface and print it on Google Maps or the like to, again, make those GPS coordinates readable and understandable to the jury and to the DEA itself.

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Do you know offhand what happens when agency records are destroyed pursuant to agency retention

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standards and guidelines and rules and regulations, et cetera.

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So a lot of documents existed at the time of his trial.

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Pursuant to the standard federal government agency destructions timetable, they no longer exist.

[00:22:18] Speaker 04:
How does that affect you, Mr?

[00:22:21] Speaker 00:
I don't think it does affect Mr. Aguiar's request.

[00:22:24] Speaker 00:
I actually think, Your Honor, that that's exactly what the 1996 amendments were intended to cover, is a situation where an agency may only keep an electronic form of the record as it did here.

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It only kept the GPS coordinates, even though that's not how it viewed the coordinates or used them at trial.

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And so even in that circumstance, the 1996 FOIA amendments make clear that regardless of the form that something is stored,

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a requester is entitled to it, and he or she is entitled to it in the requested form or format.

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And so here, again, Mr. Aguirre would be entitled to the MAP form, even though it is no longer saved in that form.

[00:23:08] Speaker 04:
And what happens as a result of the fact that because he is incarcerated, he does not have the access that an unincarcerated person would have to a computer if he could?

[00:23:23] Speaker 04:
paying and print?

[00:23:26] Speaker 00:
I don't think, Your Honor, that an agency is required to consider the characteristics of the individual requester or the access they may or may not have.

[00:23:34] Speaker 00:
But I do think that Mr. Agriar's situation does show exactly why Congress enacted this provision, because the GPS coordinates are meaningless to anybody.

[00:23:47] Speaker 00:
They're meaningless to the DEA.

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They're meaningless to a requester who has access to a computer.

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And the statute makes clear that the DEA, that the agency is to maximize the usefulness of the information.

[00:24:00] Speaker 00:
And so for anyone, regardless of access to a computer, the DEA required to provide that information in the readable, usable form that it itself use it.

[00:24:10] Speaker 05:
Wait a minute, you say it's meaningless even to someone who had access to a computer.

[00:24:15] Speaker 05:
I assume that someone who had the resources, the time could hire

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someone to plot these, the coordinates come with a time specification, right?

[00:24:28] Speaker 05:
So they could plot these on a map and it would be actually quite useful.

[00:24:33] Speaker 05:
As Judge Rogers said, if people are in the nautical world, they write down longitude and latitude and it's precisely because that can be decoded, if you will, by reference to a map.

[00:24:48] Speaker 00:
Yes, Your Honor.

[00:24:49] Speaker 00:
I only meant to say that they are meaningless to anyone in their current form.

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And so some manipulation would be required.

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And some individuals may have the ability to do that.

[00:25:00] Speaker 00:
And that's why the statute provides the protection that the agency can pass direct costs onto the requester.

[00:25:08] Speaker 00:
So the DEA is required to put the information into the usable form that it does.

[00:25:14] Speaker 00:
But it can, of course,

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as long as it can readily do so, which is not disputed, but it can of course pass the direct costs of reproducing that information onto the requester.

[00:25:24] Speaker 00:
So I only meant to say that this current information, the way it is stored is meant to be read by a computer and to put into the usual form that is readable by the human eye.

[00:25:37] Speaker 02:
As Judge Rogers pointed out, the maps from the trial are destroyed.

[00:25:43] Speaker 02:
So at this point,

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unless someone there had a photographic memory and could remember exactly what those maps looked like, you're asking the DEA to take these coordinates and to plot them on a map.

[00:26:00] Speaker 02:
What if they produced a map of the world and it had every country labeled, but no more detail than that.

[00:26:11] Speaker 02:
And

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it plotted all these coordinates on it.

[00:26:14] Speaker 02:
And let's say that it zoomed in and it wasn't just one map with all these 351 pages of coordinates, but however many pages you anticipate eventually being produced, let's say that that is produced.

[00:26:28] Speaker 02:
But I think you're imagining a Google map that says like, you know, Broadway and Main Street and Second Avenue, but they don't give you that much detail.

[00:26:38] Speaker 02:
They just say, here's a map.

[00:26:40] Speaker 02:
It's a map of the world.

[00:26:42] Speaker 02:
and hear your coordinates plotted.

[00:26:45] Speaker 02:
That's not going to satisfy you, correct?

[00:26:48] Speaker 00:
Correct, Your Honor.

[00:26:49] Speaker 00:
And to make sure I understand, it would be a map of the world, but it would be sufficiently zoomed so that you could tell the coordinates apart.

[00:26:54] Speaker 02:
You could tell the coordinates apart, but there would be no streets, no rivers, no even state lines, let's say.

[00:27:03] Speaker 02:
So that's not satisfactory.

[00:27:04] Speaker 02:
And I understand why it would

[00:27:06] Speaker 02:
do your client no good, or at least it wouldn't do your client any more good than the coordinates themselves would do.

[00:27:14] Speaker 02:
But isn't the fact that that is unsatisfactory, doesn't that suggest that what you want is more than coordinates plotted on a map?

[00:27:22] Speaker 02:
You want coordinates plotted on a map and additional descriptions of what's around the coordinates, streets in particular.

[00:27:35] Speaker 02:
And that's exactly what you're not allowed to ask for.

[00:27:37] Speaker 02:
You're not allowed to ask the agency to summarize or describe.

[00:27:41] Speaker 00:
I don't think so, Your Honor.

[00:27:42] Speaker 00:
I think that all that Mr. Aguiar is seeking is the coordinates plotted in a map form that the same way that the DEA regularly does it, which presumably... We don't know how the DEA did it in the trial.

[00:27:52] Speaker 02:
Nobody remembers exactly how much detail there was.

[00:27:56] Speaker 00:
Correct, Your Honor.

[00:27:57] Speaker 00:
But using the tools that the agency has at its disposal now, it is in the record that it has access to

[00:28:03] Speaker 00:
A web based interface that allows it to to plot maps and presumably they're not of the world and they can and they contain street names and the like.

[00:28:12] Speaker 00:
And I, and I do think I do think that that information.

[00:28:17] Speaker 00:
Fits into the sort of the it is particular to the form of a map.

[00:28:22] Speaker 00:
So in the same way that if someone asked for a scatter plot.

[00:28:25] Speaker 00:
the agency couldn't give it without an X or Y axis or a scale.

[00:28:29] Speaker 00:
I think that that information is just part and parcel of what makes it a map.

[00:28:34] Speaker 00:
Or if a requester asked for a native format of a document and the agency had both, I don't think the agency could wipe the additional formulas and the other kind of metadata that is part of the native format.

[00:28:48] Speaker 02:
Let me ask.

[00:28:50] Speaker 02:
In my head, I have that there was a record before trial, the coordinates.

[00:28:55] Speaker 02:
The agency created a second record for trial, the maps with the coordinates plotted on it.

[00:29:02] Speaker 02:
That second record was destroyed.

[00:29:04] Speaker 02:
Now we only have the first record.

[00:29:06] Speaker 02:
And you're asking, you know, this is how I'm viewing it.

[00:29:09] Speaker 02:
I know this is not how you view it.

[00:29:11] Speaker 02:
You're asking the agency to take the record that exists and to create a second record.

[00:29:16] Speaker 02:
And your argument is, well, they created a second record once at trial, so it's fair to ask them to create a second record again.

[00:29:23] Speaker 02:
But FOIA does not require an agency to create any records, any new records.

[00:29:29] Speaker 02:
So tell me why I'm thinking about that wrong.

[00:29:32] Speaker 00:
I don't think, Your Honor, that my argument is that because they created it once at trial, they need to create it again.

[00:29:37] Speaker 00:
My argument is that it is not creation of a new record when it is simply reproducing

[00:29:44] Speaker 00:
the same underlying information, which here is the GPS tracking data in a new form.

[00:29:49] Speaker 00:
So the 1996 amendments say that regardless, the record at issue is the information, regardless of its form or format.

[00:29:58] Speaker 00:
So the record at issue here is the GPS coordinates, the latitude and longitude.

[00:30:03] Speaker 00:
That can be in a form of a spreadsheet or that can be in a form of a map.

[00:30:07] Speaker 00:
And so the agency currently has the form of a spreadsheet, but has to reproduce that

[00:30:13] Speaker 00:
in the form of a map image.

[00:30:14] Speaker 02:
You told me earlier that the form of a map is not sufficient.

[00:30:17] Speaker 02:
It has to be in the form of a map with enough detail that you like it.

[00:30:22] Speaker 02:
But let me write.

[00:30:24] Speaker 00:
I think it has to be in the form of a map with the characteristics that make a map form a map and make it recognizable as such.

[00:30:31] Speaker 02:
Well, I mean, my hypothetical map was a map.

[00:30:34] Speaker 02:
There are a million maps of the world that just have countries on them.

[00:30:37] Speaker 02:
Let me ask one more hypothetical.

[00:30:41] Speaker 02:
Imagine that an agency has a document, 351 pages worth of it, and it has nothing but addition problems on it.

[00:30:49] Speaker 02:
So it has 2 plus 2, and the next line is 3 plus 5, on and on.

[00:30:54] Speaker 02:
And they turn this over to a FOIA requester.

[00:30:56] Speaker 02:
And the FOIA requester says, you know what?

[00:30:58] Speaker 02:
I want this in a different form.

[00:31:00] Speaker 02:
I want it to say 4 instead of 2 plus 2.

[00:31:03] Speaker 02:
And I want it to say 8 instead of 5 plus 3.

[00:31:09] Speaker 02:
I think if I apply your logic, that four-year requester should get his way, because all you would have to do is enter that data, two plus two, five plus three, into a very basic computer program, and that very basic computer program will spit out four and eight and on and on and on.

[00:31:27] Speaker 02:
Would you agree that if we apply your logic to that hypothetical, the agency would have to produce a document that says four and eight?

[00:31:36] Speaker 00:
I don't think so, Your Honor, or I at least think that's a closer question because that requires some analysis of the actual underlying information in a way that this doesn't.

[00:31:48] Speaker 00:
The latitude and longitude are staying exactly the same, in the same way that a requester might not be able to ask for the mean, median, and mode of a set of data, but they would be able to ask for a scatter plot of a set of data.

[00:32:03] Speaker 00:
And so I really think it gets to whether the underlying information is being manipulated or if it's just a different way of displaying or viewing that information.

[00:32:13] Speaker 02:
I think that the, let's put ourselves in the days before there were computers, because in the computer age, both of the hypotheticals can be done in two seconds, I think.

[00:32:24] Speaker 02:
There's a program that already exists and you just enter the data and it spits out what we're talking about spitting out, whether it's a Google map or whether it's the addition

[00:32:32] Speaker 02:
But back before there were computers, each of those, I think, would have required some analysis.

[00:32:38] Speaker 02:
I mean, it would have taken someone with math skills to figure out that 2 plus 2 equals 4.

[00:32:43] Speaker 02:
And it would have taken a cartographer or a navigator or an explorer familiar with cartography to analyze these individual coordinates and plot them with precision on a map.

[00:32:55] Speaker 02:
And, you know, history is full of explorers who weren't good enough at that, and they got lost, you know?

[00:33:02] Speaker 02:
How is how is it that your request does not involve the analysis that you think is not required under the statute?

[00:33:13] Speaker 00:
I think, Your Honor, because the coordinates just sort of presuppose a map, the longitude and latitude, although it might require, you know, if someone were doing it by hand, finding that spot, it is it is all that those are are showing a position on a map.

[00:33:30] Speaker 00:
Whereas when you're talking about

[00:33:32] Speaker 00:
Um, adding, adding numbers.

[00:33:34] Speaker 00:
Um, I do think there is a certain type of creating a new, a new type of content.

[00:33:40] Speaker 02:
If you're talking about then adding what if I gave you the two thing, two sets of data, the coordinates and the addition problems.

[00:33:50] Speaker 02:
And I also gave you an Atlas.

[00:33:53] Speaker 02:
Which do you think you would be able to do easier plot the coordinates or do the math?

[00:33:58] Speaker 02:
Sure.

[00:33:59] Speaker 02:
The math, right?

[00:33:59] Speaker 00:
That does seem right, but I don't think that that is the test for former format.

[00:34:04] Speaker 02:
I think it's the test for analysis.

[00:34:07] Speaker 02:
How much analysis is required.

[00:34:10] Speaker 00:
Correct.

[00:34:10] Speaker 00:
But I don't think that the test is whether the analysis can be done easily or automatically or not.

[00:34:16] Speaker 00:
I think it's just whether you're

[00:34:18] Speaker 00:
having to really kind of manipulate that data.

[00:34:21] Speaker 00:
And I will grant you that that is a tougher question because I do think that if an agency were to, for example, store images in binary code, it would need to produce the image that that binary code would show.

[00:34:34] Speaker 00:
And obviously, that's something that a computer could only do.

[00:34:39] Speaker 00:
And I think that is what the purpose of the 1996

[00:34:41] Speaker 02:
What's the answer to that?

[00:34:43] Speaker 02:
Let's say the computer has it in binary code.

[00:34:46] Speaker 02:
And the FOIA requester wants it in something more user-friendly.

[00:34:51] Speaker 02:
The FOIA requester wins that case?

[00:34:54] Speaker 00:
Yes, I believe so, Your Honor.

[00:34:55] Speaker 00:
I think that's exactly what the 1996 FOIA amendments require is for the agency to provide it.

[00:35:01] Speaker 00:
Surely they are viewing the image in the readable format and would need to provide it in that usable form to the requester.

[00:35:09] Speaker 02:
Thank you very much.

[00:35:10] Speaker 05:
I just have one more question, if I might.

[00:35:15] Speaker 05:
It's already been 30 minutes here, so.

[00:35:20] Speaker 05:
I'll ask you on rebuttal.

[00:35:22] Speaker 04:
Great.

[00:35:24] Speaker 04:
Thank you, Your Honors.

[00:35:26] Speaker 04:
Council, for the agency.

[00:35:31] Speaker 03:
Yes, good morning, your honors, and may it please the court.

[00:35:32] Speaker 03:
I'm assisting United States Attorney Johnny Walker, arguing on behalf of the Drug Enforcement Administration.

[00:35:37] Speaker 03:
I want to reorient to what Mr. Aguirre actually requested in this case, because it's actually very specific.

[00:35:44] Speaker 03:
It's not just any map.

[00:35:45] Speaker 03:
What he wants, as Judge Rogers noted, is the images and proprietary software associated with the information collected from the GPS device from January 23rd, 2009 through July 30th, 2009,

[00:35:58] Speaker 03:
the very same file used by DEA to prepare exhibits by trial.

[00:36:03] Speaker 03:
And he makes clear in the preceding paragraph of his FOIA request, and this is at JA 105, that he is looking for the exact data and images that DEA monitored while agents were tracking his vehicles.

[00:36:15] Speaker 03:
And in his FOIA appeal,

[00:36:17] Speaker 03:
to the denial of that request, which is at JA 114, he makes further clear that he is looking for a corresponding satellite image plot for each ping on Google Maps at the lowest available altitude between 550 and 100 feet on the versions of Google Maps in place at the time the GPS tracking of my vehicles was performed by agents in 2009.

[00:36:40] Speaker 03:
So what Mr. Aguilar is looking for is very specific documents.

[00:36:45] Speaker 03:
He wants Google satellite images showing the pings of his vehicle, the very same images.

[00:36:53] Speaker 03:
You may not even be able to characterize that as a map, but the very same satellite images of his vehicle that agents viewed in 2009 while tracking it.

[00:37:03] Speaker 04:
Oh, it's not vague.

[00:37:04] Speaker 04:
It's very specific.

[00:37:06] Speaker 03:
Correct.

[00:37:07] Speaker 04:
The agency knows exactly

[00:37:09] Speaker 04:
what he is seeking, because he has described it with such great particularity.

[00:37:16] Speaker 04:
But he doesn't have access to this one translating machine that he needs.

[00:37:24] Speaker 04:
And so the statute says, pay for it, you can get it in a different form.

[00:37:31] Speaker 03:
I think, Your Honor, what the statute says is that you can have records that are in the agency's possession, custody, or control.

[00:37:37] Speaker 03:
And these are images that the agency no longer has.

[00:37:41] Speaker 03:
It conducted a search, the adequacy of which is not disputed.

[00:37:44] Speaker 03:
And it did not locate these images.

[00:37:47] Speaker 03:
What Mr. Aguilar is asking the government to do is to make them.

[00:37:51] Speaker 03:
He wants these images that the DEA saw.

[00:37:53] Speaker 03:
The EDEA doesn't have them.

[00:37:55] Speaker 03:
And so he is requesting that the DEA

[00:37:57] Speaker 03:
create these images a new for him.

[00:38:01] Speaker 03:
And that is the creation of a record, plain and simple, and it goes against decades of FOIA precedent precedent that this court has recently affirmed, by the way, in a case that post dated the briefing in this matter.

[00:38:14] Speaker 03:
and that's National Security Counselors versus CIA, 969F3406, 2020 DC Circuit case from August in which this court cited the long line of precedent from Kissinger to Forsham to Sears Roebuck to Yeager emphasizing that an agency is not obligated to create records.

[00:38:37] Speaker 03:
Now what amicus must argue then

[00:38:39] Speaker 03:
is that generating these Google satellite images is not the creation of a record.

[00:38:45] Speaker 03:
And Amicus acknowledges that, I think her quote was, that a change in the substance of information associated with a record is not a reproduction.

[00:38:57] Speaker 03:
It's not another form or format of the record.

[00:38:59] Speaker 03:
And that's exactly right.

[00:39:00] Speaker 03:
But there's no way that you can contend, I think, that a satellite image at a given location in time

[00:39:09] Speaker 03:
does not add to the substance of a longitude and latitude pair.

[00:39:13] Speaker 02:
Let me let me ask you, Mr. Walker, some kind of technical questions, facts, questions.

[00:39:20] Speaker 02:
If you if we ordered you to do what Mr. Aguiar wants in my head, I think it is this simple.

[00:39:31] Speaker 02:
But tell me, tell me if I'm wrong.

[00:39:34] Speaker 02:
You pull up the document with the 351 pages of coordinates.

[00:39:40] Speaker 02:
You select all, that takes a second, Control-A.

[00:39:45] Speaker 02:
You copy, that takes another second, Control-C.

[00:39:49] Speaker 02:
You go to Google Maps, that takes another second.

[00:39:52] Speaker 02:
And you paste, Control-V, that takes a fourth second.

[00:39:56] Speaker 02:
You press Enter, and it pops up on the Google Map, all these coordinates.

[00:40:00] Speaker 02:
Now, I've never done anything like this.

[00:40:04] Speaker 02:
what I think might take five seconds may actually take five minutes or five hours.

[00:40:09] Speaker 02:
And I guess, am I wrong?

[00:40:12] Speaker 02:
And if I'm wrong, walk me step by step how you would comply with the order if the order were what Mr. Aguiar wants.

[00:40:21] Speaker 03:
Frankly, Your Honor, there's nothing in the record that indicates there is any way to comply, even if the DEA were able to... You did it at trial, right?

[00:40:30] Speaker 03:
Well, the U.S.

[00:40:32] Speaker 03:
Attorney's Office presented evidence at trial, and what Agent Carter testified was that he assisted in the preparation of those exhibits.

[00:40:38] Speaker 02:
Those were not prepared by... How is it readily reproducible?

[00:40:43] Speaker 02:
Let me ask that.

[00:40:44] Speaker 02:
The district court said that you can see that this is readily reproducible.

[00:40:48] Speaker 02:
Is that district court statement correct?

[00:40:50] Speaker 03:
No, we have not conceded it's readily reproducible.

[00:40:52] Speaker 02:
Is it readily reproducible?

[00:40:56] Speaker 03:
All indications are that it's not, Your Honor.

[00:40:58] Speaker 03:
The exercise that you just laid out where these are cut and pasted into- You didn't contest that in your appeal.

[00:41:05] Speaker 02:
You didn't say the district court got that wrong.

[00:41:07] Speaker 02:
Do you think that you forfeited the argument that you're now making?

[00:41:10] Speaker 03:
No, Your Honor.

[00:41:11] Speaker 02:
I mean, the record shows- Why didn't you contest it in your appeal?

[00:41:15] Speaker 03:
Because our position, your honor, is that this is the creation of a new record, which is not.

[00:41:20] Speaker 02:
I get that.

[00:41:20] Speaker 02:
But to the extent the question of whether it's readily reproducible might be informative or a more straightforward way to decide this case.

[00:41:28] Speaker 02:
I'm just kind of wondering as a strategic matter, why didn't you say the district court was wrong?

[00:41:36] Speaker 03:
Well, it's in the record, Your Honor.

[00:41:37] Speaker 03:
I think, assuming that the DEA could undertake the exercise that Your Honor described, where these coordinates are put into Google Maps.

[00:41:44] Speaker 03:
And I know from my own personal experimenting that you can put a longitude-latitude pair into Google Maps online, and it will show you the location on Google Maps today.

[00:41:55] Speaker 03:
And you can get the satellite image today.

[00:41:56] Speaker 03:
But what Mr. Aguiar is requesting are the very same images that were viewed in the DEA's tracking program.

[00:42:05] Speaker 03:
And what we have in the record is that that tracking program does not permit.

[00:42:10] Speaker 03:
for the agency to put in a latitude, longitude pair and to generate an image, that those images are viewed in real time.

[00:42:18] Speaker 03:
We also know that that program stores data associated with it for one year.

[00:42:23] Speaker 03:
Now, Mr. Aguilar's vehicle was tracked during the first half of 2009 and he submitted his FOIA request in 2013.

[00:42:31] Speaker 03:
So the underlying data here, frankly, was not even available to the DEA when it conducted its search.

[00:42:37] Speaker 02:
I just want to my understanding this right that if if I know you don't want to lose, I'm not even saying I think that you should lose.

[00:42:45] Speaker 02:
I'm pretty skeptical of Mr Aguiar's statutory argument.

[00:42:50] Speaker 02:
But if you lose and there's an order that says you have to do what Mr Aguiar wants, you're saying that the DA can't do it.

[00:42:58] Speaker 02:
They're just going to be in in contempt of the court's order.

[00:43:02] Speaker 03:
The DA would not be able to do as far as I know, Your Honor.

[00:43:05] Speaker 03:
The further we got with that, the furthest the DEA got with that, is it began to engage an outside contractor in an effort to try to produce the images that Mr. Aguilar saw.

[00:43:14] Speaker 03:
So it engaged that outside contractor, provided them with the data, and it got a quote that an estimated $608 is what it would take to start producing those images.

[00:43:24] Speaker 03:
I don't know if those images would be exactly what Mr. Aguiar wanted or if they would comply particularly with this FOIA request because nobody got that far because he didn't prepay the costs.

[00:43:33] Speaker 04:
All right, but with all due respect, you haven't made the record to support your argument.

[00:43:44] Speaker 03:
The record is there, Your Honor.

[00:43:45] Speaker 04:
The record does show that the... We will give you the maps if you pay $120.

[00:43:54] Speaker 04:
$608.

[00:43:56] Speaker 04:
That's the case we have before us.

[00:44:00] Speaker 04:
And we're not talking about some other case.

[00:44:07] Speaker 04:
Very specific request.

[00:44:09] Speaker 04:
The agency's responses pay $608.

[00:44:12] Speaker 04:
You can have your map.

[00:44:15] Speaker 04:
We know what you're talking about because we used them at trial.

[00:44:21] Speaker 04:
I mean, don't we have to, doesn't the court at least

[00:44:25] Speaker 04:
have to deal with the case as it's presented to us?

[00:44:28] Speaker 03:
Certainly, your honor.

[00:44:29] Speaker 03:
I mean, but if the question is, are these maps readily reproducible by the DEA, the answer is no.

[00:44:37] Speaker 04:
We know that the agency was misrepresented to Mr. Aguiar when it said, pay us $608 because we have a contractor who can produce the map as we understand your request.

[00:44:54] Speaker 04:
I mean, with all due respect, counsel, whether you win or lose, I mean, don't we have to stay within the record?

[00:45:02] Speaker 04:
There's no suggestion that DEA was misrepresenting the cost to Mr. Aguiar.

[00:45:12] Speaker 04:
The argument in the briefs was, well, he didn't want to pay.

[00:45:17] Speaker 03:
I think the cost, even the cost that was provided to Mr. Aguilar was an estimate.

[00:45:22] Speaker 03:
They did not get so far as to say this is exactly what will be produced and it's exactly what will be required.

[00:45:28] Speaker 03:
There was a cost estimate provided to Mr. Aguilar based on the DEA's consultation with an outside contractor.

[00:45:34] Speaker 05:
Do we know, Mr. Walker, an estimate for what?

[00:45:38] Speaker 03:
It not exactly your honor it was to reproduce images, we know that it had something to do that it was an audio visual contractor and that the estimated cost was to produce images.

[00:45:49] Speaker 02:
You got a bid to do something, but you don't know what the something is.

[00:45:55] Speaker 03:
I don't think it's not in the record, Your Honor.

[00:45:58] Speaker 03:
All we have is the letter that was provided to Mr. Aguiar saying that that was the estimated cost that he would have to prepay in order to engage this contract.

[00:46:06] Speaker 03:
The contractor never began any work or articulated precisely what would be produced.

[00:46:14] Speaker 03:
Now, I would note, Your Honor, I mean, this all gets past the argument that the DEA is making, which is that what's being asked in the first place is the creation of a new record, which goes against decades of FOIA precedent and is not required at all by the FOIA statute, what the DEA was offering.

[00:46:32] Speaker 04:
What would happen in this hypothetical?

[00:46:36] Speaker 04:
Somehow, Mr. Aguiar gets his criminal case before the Supreme Court.

[00:46:44] Speaker 04:
the Supreme Court sends it back for a new trial.

[00:46:52] Speaker 04:
The U.S.

[00:46:52] Speaker 04:
Attorney's Office has to figure out what is it going to do.

[00:46:56] Speaker 04:
It decides it wants to retry him.

[00:47:01] Speaker 04:
So it works with your agent to produce the evidence it needs for trial.

[00:47:12] Speaker 04:
I mean, we're not in a never-never land here, except for the hypothetical that the Supreme Court is going to reverse the underlying criminal conviction.

[00:47:22] Speaker 04:
But don't you have to deal with it in that sense?

[00:47:25] Speaker 04:
What would the agency do?

[00:47:26] Speaker 04:
We don't have a record that shows it's impossible for the agency to introduce the type of evidence that it introduced at his original trial.

[00:47:38] Speaker 03:
That may be so, Your Honor, but as a legal matter, the agency does not have to create all records that's possible for the agency to create in response to a FOIA request.

[00:47:47] Speaker 04:
I understand that, but I just want to get past this hypothetical you're dealing with that they couldn't do it.

[00:47:55] Speaker 04:
That is not the record we have before us.

[00:47:57] Speaker 04:
Whether they legally have to do it for all these reasons the district court gave, for all the reasons you give in your brief, that's a different question.

[00:48:07] Speaker 03:
Certainly, Your Honor.

[00:48:08] Speaker 03:
I'll put it this way.

[00:48:09] Speaker 03:
There's no indication that the DEA could do it using tools available to them.

[00:48:13] Speaker 03:
The only record that we have on this instance is that they had begun the process of consulting with an outside contractor, got an initial estimate, and that was an amount that Mr. Aguilar did not pay.

[00:48:25] Speaker 03:
And even Amicus acknowledges that a requester can be asked to bear the costs of records, assuming that would be a requirement of the FOIA.

[00:48:35] Speaker 03:
for the DEA to engage an outside contractor to create records for a FOIA requester, which we strongly do not believe is the case.

[00:48:42] Speaker 03:
But even if that were the case, Amicus acknowledges that that is a cost to be passed on to the requester, and here the requester did not pay for it.

[00:48:52] Speaker 05:
So it's not as clear to me as your characterization suggests that the offer was made to Mr. Aguiar.

[00:49:02] Speaker 05:
You'll get the maps you want if you pay this amount of money.

[00:49:07] Speaker 05:
The record we have is much more vague about what that $608.25 would produce.

[00:49:18] Speaker 05:
It's processing by an outside.

[00:49:21] Speaker 05:
contractor?

[00:49:22] Speaker 03:
That's right, Your Honor, which is why I'm hesitant to say that this was something that would satisfy Mr. Aguilar's request.

[00:49:31] Speaker 03:
These do seem to be sort of initial consultations with the contractor in a preliminary process that was provided by the contractor.

[00:49:40] Speaker 05:
So to me, what's difficult about this case, and the questions by my colleagues have really been helpful in highlighting this,

[00:49:50] Speaker 05:
This isn't a situation where the agency wants to have the arithmetic math sheets and some requester says, oh, it would really help me if I had the answer key.

[00:50:01] Speaker 05:
Will you add it all up?

[00:50:04] Speaker 05:
The way and really the only way the agency uses this information is as a visual representation on a map.

[00:50:15] Speaker 05:
That's the only way the agency uses it, as far as I can tell from the record.

[00:50:20] Speaker 05:
And so to the extent that it's retained this information, it's retained this information just the way my computer retains ones and zeros on all the documents that I want to work on.

[00:50:37] Speaker 05:
It just wouldn't make sense that I could give sheets of ones and zeros in a FOIA request if I were subject to FOIA and say, those are the documents that I have.

[00:50:48] Speaker 05:
And I think it's complicated, frankly, by a couple of things.

[00:50:52] Speaker 05:
One, that the software is no longer licensed.

[00:50:56] Speaker 05:
So if I had an old computer and I really did only have the zeros and ones, what would my obligation be?

[00:51:03] Speaker 05:
in producing.

[00:51:06] Speaker 05:
But to me, the strongest case for Mr. Aguiar is, you know, presumably in preparing for trial, the agent and the AUSA looked at days and days and days of journey maps.

[00:51:20] Speaker 05:
you know, and here he did this on this day, the next week he did the same thing and he stopped at Feral Street and he went to the Casella Waste and he, you know, again, he did this extra stop in wherever it was, Maldon, outside of Boston, you know, and they looked at the maps to see the regularity and then they decided which ones to print for trial.

[00:51:44] Speaker 05:
And what Mr. Aguiar wants is that same look

[00:51:50] Speaker 05:
because presumably the AUSA printed only those that the AUSA's office thought was gonna make their case and he wants to see the rest of it.

[00:52:03] Speaker 05:
And so the use in the ordinary course, the only use is as mapped.

[00:52:11] Speaker 05:
And to me that seems to distinguish this case from a lot of the other record production cases.

[00:52:16] Speaker 05:
I'm not sure it gets,

[00:52:17] Speaker 05:
them all the way there, but what's your best answer to that narrower view about why this might not really be creation of a new record?

[00:52:27] Speaker 03:
Well, Your Honor, I think what the cases make clear is that agencies are not only not obligated to create new records, they're not obligated to retain or recreate records that once existed.

[00:52:39] Speaker 03:
And so while, yes, it is true that the DEA did view maps on a computer that were generated in real time as a result of this GPS

[00:52:48] Speaker 03:
That was in 2009, and there's no dispute that those ping reports, those satellite images associated with those pings, are no longer available to the DEA.

[00:52:59] Speaker 03:
It no longer has them, and it did not find them after conducting a reasonable search.

[00:53:03] Speaker 03:
And it is just as much not an obligation of the DEA to recreate or retain a record as it is for it to create a new record.

[00:53:13] Speaker 03:
I'll note that your honor is absolutely correct.

[00:53:18] Speaker 03:
Technically, every PDF document is stored on a computer in the form of ones and zeros.

[00:53:23] Speaker 03:
But at the end of the day, the expression of that is a PDF document.

[00:53:27] Speaker 03:
I mean, this is exactly, I think, what the Euphoria amendments were meant to clarify, is that a record that is stored on a computer as an electronic record is nevertheless still a record.

[00:53:37] Speaker 03:
But that's certainly not the case here.

[00:53:40] Speaker 03:
This is not an instance of the DEA trying to be cute with, you know, a record just because it's electronic is not a record.

[00:53:48] Speaker 03:
The only information that was located here, and frankly, that spreadsheet of coordinate data was not even located in the DEA's own search of its field office in the investigative files of Mr. Aguilar.

[00:54:01] Speaker 03:
It went to the U.S.

[00:54:02] Speaker 03:
Attorney's Office to obtain that spreadsheet of data.

[00:54:06] Speaker 03:
And that is the record at issue here.

[00:54:09] Speaker 03:
Now nobody's saying because that's stored electronically or because that ultimately boils down to ones and zeros, it's not a record.

[00:54:15] Speaker 03:
What we are saying here is that the DEA is under no obligation to take the content of that record and create a new record of significant supplemental and additional content, as Amicus praises it, a change in the substance of the information.

[00:54:31] Speaker 05:
That's actually helpful because it did seem like the U.S.

[00:54:38] Speaker 05:
Attorney's Office would be the likely situs of map information.

[00:54:43] Speaker 05:
So as I was imagining, Agent Carter sits with the Assistant U.S.

[00:54:48] Speaker 05:
Attorney and they look, they pull up

[00:54:52] Speaker 05:
this data through some software interface and look at a bunch of maps.

[00:54:57] Speaker 05:
And only a small subset of those are printed out and used as exhibits.

[00:55:02] Speaker 05:
And I guess the question is, what do we know?

[00:55:07] Speaker 05:
And it's probably in the record.

[00:55:08] Speaker 05:
I should have a more precise recollection of this.

[00:55:13] Speaker 05:
But what do we know about Judge Rogers' question?

[00:55:16] Speaker 05:
Were the US Attorney's Office

[00:55:20] Speaker 05:
confronted with the requirement to retry the case, your position is they'd have to hire an outside contractor to print maps.

[00:55:30] Speaker 03:
I frankly don't know, Your Honor, what they would be capable of in terms of the data that's available.

[00:55:35] Speaker 03:
What we know about what happened in the case the first time around is, as you say, Agent Carter testified that he assisted the United States Attorney's Office in the preparation of exhibits for trial.

[00:55:47] Speaker 03:
We don't know what actually went into that preparation.

[00:55:49] Speaker 03:
Actually, the DEA attempted to find out in response to Mr. Aguilar's request.

[00:55:54] Speaker 03:
They tried to contact Agent Carter, who at that point was retired, and they were unable to produce

[00:55:59] Speaker 03:
So all we know is that he somehow assisted the U.S.

[00:56:02] Speaker 03:
Attorney's Office in creating these documents that are exhibits at trial.

[00:56:08] Speaker 03:
And essentially what Mr. Aguilar is asking the DEA to do is to do the same thing for him.

[00:56:13] Speaker 03:
But because that is the creation of a new document that's not currently in the DEA's possession, it's outside of the bounds of the portfolio.

[00:56:24] Speaker 05:
Go ahead.

[00:56:26] Speaker 05:
We don't know whether

[00:56:28] Speaker 05:
If the U.S.

[00:56:29] Speaker 05:
Attorney's Office were asked, can you log on to a computer today and pull up this information as plotted on Google Maps, let's say a separate map for every journey?

[00:56:45] Speaker 05:
We don't know whether they could do that in-house.

[00:56:51] Speaker 03:
U.S.

[00:56:51] Speaker 03:
Attorney's Office, we do not know if the U.S.

[00:56:53] Speaker 03:
Attorney's Office could do that in-house.

[00:56:54] Speaker 02:
Do you know if DEA could do that in-house?

[00:56:55] Speaker 05:
No, they can't.

[00:56:56] Speaker 05:
You don't know.

[00:56:57] Speaker 02:
We don't know.

[00:57:00] Speaker 02:
You know if the DEA could do it in-house?

[00:57:03] Speaker 03:
It does not appear that they can, Your Honor.

[00:57:05] Speaker 03:
We know that the tracking device software that they use does not permit inputting coordinate data and generating.

[00:57:12] Speaker 02:
And they didn't do it the first time.

[00:57:13] Speaker 02:
Either the US Attorney's Office or an outside contractor did it the first time in 2009, correct?

[00:57:19] Speaker 03:
It appears that way.

[00:57:19] Speaker 03:
Agent Carter did not testify that he created these exhibits.

[00:57:22] Speaker 03:
It was not the DEA who presented that trial.

[00:57:25] Speaker 03:
Agent Carter testified that he assisted in the creation of these exhibits.

[00:57:29] Speaker 03:
He did note that the pictures that we look at, the individual maps with the PING reports on them, he did note that that is, he called it a screenshot.

[00:57:38] Speaker 03:
So that is what he sees.

[00:57:40] Speaker 03:
when he's looking at the PING reports in real time.

[00:57:45] Speaker 02:
This is a very small point, but did you say that the DEA had not been able to find Agent Carter, retired Agent Carter?

[00:57:55] Speaker 03:
It attempted to contact Agent Carter and was unable to contact him, just to ask how these trial exhibits were prepared.

[00:58:02] Speaker 02:
I mean, it's a law enforcement agency.

[00:58:04] Speaker 02:
It seems like it tracks down fugitives and stuff all the time.

[00:58:09] Speaker 02:
I don't have any more questions.

[00:58:11] Speaker 03:
I don't know that they brought quite the same resources to bear in tracking down Agent Carter as they do in tracking down the state.

[00:58:19] Speaker 05:
In terms of the request was made of the DEA, but they nonetheless also sought information from the U.S.

[00:58:28] Speaker 05:
Attorney's Office.

[00:58:29] Speaker 05:
What's the nature and limits of that obligation?

[00:58:33] Speaker 03:
I don't think there is any obligation, Your Honor.

[00:58:35] Speaker 03:
I think this is just something that the DEA did in order to try to satisfy a FOIA requestor's request for documents.

[00:58:40] Speaker 03:
I think the same is true of its attempt to engage an outside contractor to try to create these images.

[00:58:45] Speaker 03:
There's no obligation of FOIA that the DEA create images, but I think it went above and beyond its obligations in trying to find a contractor that could do that.

[00:58:55] Speaker 04:
So what I was going to say is that under FOIA,

[00:59:00] Speaker 04:
The assumption is the records will be turned over unless the agency can invoke an exemption or some of the case law.

[00:59:19] Speaker 04:
And Kissinger was decided a long time ago.

[00:59:22] Speaker 04:
And we have a whole new development in the world of communication now.

[00:59:31] Speaker 04:
that the statute acknowledges.

[00:59:33] Speaker 04:
So the statute itself has already increased the agency's burden when something is readily producible in another form or format.

[00:59:53] Speaker 04:
So as Judge Pillard suggested in her question,

[01:00:00] Speaker 04:
If the only reason that this raw data that was turned over to the requester was in an effort to provide him what he wanted, I don't know necessarily the sequence, but this is not a case

[01:00:28] Speaker 04:
where the agency has told us there is no way this can be readily reproduced.

[01:00:38] Speaker 04:
In fact, what we had here was a contractor who was proposing to do this for us for $608.

[01:00:50] Speaker 04:
So the question in my mind is in that fact scenario,

[01:00:57] Speaker 04:
If the agency only has this information for one purpose, and that's precisely what it used it for in connection with Mr. Anguiar, then what is the agency's burden here?

[01:01:13] Speaker 04:
How is it going to define form or format where the agency doesn't have this list and only uses pings in connection with maps

[01:01:29] Speaker 04:
What should the arguably the plain text of the statute and Congress's increasing determination to broaden access to government information that is outside of these exemptions?

[01:01:55] Speaker 04:
Why wouldn't this court

[01:01:57] Speaker 04:
ask absent the agency making any statement that it's impossible to do what Mr. Aguiar wants.

[01:02:12] Speaker 04:
And we're going to make him pay for it anyway.

[01:02:18] Speaker 04:
And if he wants to pay $5 million to get somebody to do this translation, so be it.

[01:02:27] Speaker 04:
But the legal question would be, what is he getting that's different than what the agency itself has the information for?

[01:02:42] Speaker 04:
Don't we have to come at the question that way?

[01:02:45] Speaker 03:
I think, Your Honor,

[01:02:50] Speaker 03:
The way to come at the question is not what the agency is capable of creating, what records the agency is capable of creating or recreating that once existed.

[01:02:59] Speaker 03:
Because a long line of FOIA precedent, as I say, affirmed by this court most recently in August 2020, is very clear that FOIA does not require the agency to create, recreate, or retain records.

[01:03:12] Speaker 03:
And so the question is simply, is the exercise that Mr. Agui are asking the agency to do

[01:03:20] Speaker 03:
Does it require the creation of a new wreck?

[01:03:22] Speaker 03:
Now, what he wants are thousands and thousands of images on a Google satellite.

[01:03:30] Speaker 03:
He wants Google satellite images from 2009 that the agent looked at when it was tracking its vehicle.

[01:03:37] Speaker 04:
I guess what I'm trying to get at is this case is a little different than the other cases.

[01:03:45] Speaker 04:
And that's what the whole amicus brief was all about.

[01:03:50] Speaker 04:
That's why the court, I assume, appointed Amicus to get at this sort of cutting edge and decide where this case falls.

[01:04:03] Speaker 04:
And you can agree with the district court that putting on the information about what Judge Walker talks about, the rivers, the streets, the stores, that's creating an entirely new record.

[01:04:20] Speaker 04:
And the agency has no obligation to do it.

[01:04:23] Speaker 04:
So if Mr. Aguiar wants to get this information, the only thing he can do is, and I don't know whether criminal defendants even have the authority to do this, is to enter into an outside contract for a translator so he can get these Google Maps.

[01:04:44] Speaker 04:
And one of the questions I was thinking about, OK, you don't look at who the requester is.

[01:04:50] Speaker 04:
But do you look at it in terms of can the information the agency turns over be of any use?

[01:05:00] Speaker 04:
It clearly isn't the use he wants.

[01:05:04] Speaker 04:
That's not what he's asking for.

[01:05:07] Speaker 04:
He wants these maps.

[01:05:11] Speaker 04:
And so what is the agency's burden to show?

[01:05:14] Speaker 04:
I understand if the agency can show there is no way it can do this.

[01:05:21] Speaker 04:
irrespective of whether it has a legal reason to do it.

[01:05:26] Speaker 04:
But that's not the approach that's taken here.

[01:05:30] Speaker 04:
And how do we draw the line?

[01:05:33] Speaker 04:
And Council, Amicus offered some lines, and I was waiting for you to come up with your lines.

[01:05:43] Speaker 03:
Well,

[01:05:44] Speaker 03:
Your honor, luckily, we agree with Amicus that the line is at least that a new record involves the change in substance of information to the record that is quote unquote being reproduced.

[01:05:57] Speaker 03:
Where we disagree with Amicus is that a Google satellite image from 2009 showing time location has a different substance, materially different substance, from an Excel spreadsheet of longitude and latitude numbers.

[01:06:12] Speaker 03:
So I think Amicus' assumption is built on this notion that there is no difference, no substantive difference in content between an Excel spreadsheet of longitude and latitude numbers and an actual satellite image from a given point at a given place at a given time.

[01:06:30] Speaker 05:
That seems, and I get it that the request, the very specificity of the request, which

[01:06:37] Speaker 05:
Frankly, looking at it retrospectively seems a bit misdirected because there's no such thing as real time and retrospect.

[01:06:48] Speaker 05:
So I get it that there's a technicality there that invites you to view the request with a similarly technical lens.

[01:06:57] Speaker 05:
But stepping back from that,

[01:07:00] Speaker 05:
Presumably there's just a standard that the US Attorney's Office uses day in and day out, you know, when they're looking at drug transactions in the such and such a court in the such and such a neighborhood in DC that is

[01:07:19] Speaker 05:
illuminating you know that they take this kind of information and they're like okay we want to see basic street level and it's not like new roads have been built in this area like you know so the fact that it was 2009 and now it's you know to me the thing that distinguishes this case is that

[01:07:45] Speaker 05:
there's a kind of everybody knows what he wants and what's useful to him aspect to it.

[01:07:51] Speaker 05:
And indeed, I find myself wondering, was the tracking information as was available to the US Attorney's Office to review in preparation for trial and to select?

[01:08:05] Speaker 05:
Why was the full amount of all that information on, let's say, daily maps, not Brady material?

[01:08:13] Speaker 05:
If I were Mr. Aguiar and it's thinking like, what?

[01:08:16] Speaker 05:
Why are they seeing this?

[01:08:18] Speaker 05:
I want to see it in context.

[01:08:20] Speaker 05:
That wasn't Brady material to say, OK, here's all the information we have about all your trips.

[01:08:28] Speaker 05:
And here's what we're deducing.

[01:08:31] Speaker 03:
We don't know that actually the DEA ever retained or created or had in its records every image of a PING report.

[01:08:40] Speaker 03:
Certainly, there were probably times when these

[01:08:43] Speaker 03:
vices were attached to Mr. Aguilar's car for a very long period of time.

[01:08:48] Speaker 03:
Sometimes they were sending reports.

[01:08:50] Speaker 03:
You can see in the example in the reference, sending reports every minute.

[01:08:54] Speaker 03:
So there's no indication the DEA saw every image or that every one of those images was actually retained somewhere.

[01:09:02] Speaker 03:
What we know is that the images that were presented at trial and numbered as exhibits, that Agent Carter assisted the United States Attorney's Office in some way in creating those.

[01:09:11] Speaker 05:
Let's say what was retained is just the, and we do know that what was retained is at least the information in the spreadsheet.

[01:09:20] Speaker 03:
Correct.

[01:09:20] Speaker 03:
Agent Carter did testify to that.

[01:09:23] Speaker 05:
Right.

[01:09:23] Speaker 05:
So what I'm saying is that if that could be, and presumably was, flipped through as a series of maps to select the ones that lawyers wanted to use at trial,

[01:09:39] Speaker 05:
there were some that were not selected.

[01:09:41] Speaker 05:
And what I'm asking is at the time of trial prep, why wouldn't that have been Brady material, or was it?

[01:09:49] Speaker 03:
So I don't know.

[01:09:50] Speaker 03:
I don't know that that was the case, that there was a series of maps that were flipped through and selected and that others were not provided to Mr. Adway.

[01:09:57] Speaker 03:
I do know what Mr. Carter testified to, Agent Carter testified that he described the images that were admitted as exhibits of screenshots.

[01:10:06] Speaker 03:
One possibility is that Agent Carter took some action to actively take a screenshot of his screen, whatever screen on his computer he was using to monitor Mr. Egley or at certain opportune or significant moments in the investigation.

[01:10:20] Speaker 03:
But there is no indication that actually all of these maps were collected and all of them were gone.

[01:10:25] Speaker 03:
Frankly, there would be many of them as every indication.

[01:10:29] Speaker 03:
There are 351

[01:10:31] Speaker 03:
pages of that spreadsheet that were produced.

[01:10:33] Speaker 03:
The first one, which is in the record, I count 46 entries on it.

[01:10:36] Speaker 03:
By math, that comes to about 16,000, well over 16,000 individual coordinates that are likely on these spreadsheets.

[01:10:44] Speaker 03:
So that would be many, many, many thousands of maps.

[01:10:47] Speaker 05:
Right, I'm looking at, so am I right that, for example, JA96, maybe 92, 93, 94, 95, that those are the screenshots?

[01:10:59] Speaker 05:
And that JA-97, which shows the more of what I've been referring to as a journey, that that would have been one of the exhibits.

[01:11:13] Speaker 05:
So the 68D, exhibit 68D that's JA-97, is different in kind from

[01:11:23] Speaker 05:
the more oblong darker ones, which frankly we can't even see.

[01:11:28] Speaker 05:
So some are screenshots and some are not.

[01:11:35] Speaker 05:
Do we know that or not?

[01:11:38] Speaker 03:
It's not crystal clear in the record, Your Honor.

[01:11:40] Speaker 03:
Agent Carter does use the word screenshots to refer to the darker oblong images that have sort of the little speech bubble with the report date, report time, et cetera.

[01:11:50] Speaker 03:
And he does testify that he worked with the United States Attorney's Office to create some exhibits.

[01:11:57] Speaker 03:
So I would assume that the sort of Google Maps showing, you know, point A to point B in a route were created through some other means other than the monitoring program.

[01:12:06] Speaker 03:
That is my understanding.

[01:12:11] Speaker 05:
And no particular comment one way or the other as to whether there's any Brady aspect of this information.

[01:12:22] Speaker 03:
I don't know, Your Honor.

[01:12:23] Speaker 03:
I certainly don't know that there would be any Brady violations.

[01:12:26] Speaker 03:
I don't know that all these maps existed.

[01:12:28] Speaker 03:
I don't know what was provided to Mr. Aguillard as Brady material.

[01:12:32] Speaker 03:
I do know what he's certainly looking for now is all of the images.

[01:12:37] Speaker 03:
As I said, there's no indication that those ever existed.

[01:12:43] Speaker 04:
All right.

[01:12:43] Speaker 04:
All right.

[01:12:45] Speaker 03:
If there are no further questions, I'll conclude by asking that the district court's judgment in favor of the DEA be affirmed.

[01:12:51] Speaker 03:
Thank you very much.

[01:12:53] Speaker 00:
Thank you.

[01:12:53] Speaker 00:
So Amicus, we'll give you a couple of minutes.

[01:12:56] Speaker 00:
Thank you, Judge Rogers.

[01:12:57] Speaker 00:
Just a couple of clarifying points.

[01:13:00] Speaker 00:
The agency has never argued that Mr. Aguiar's request here does not cover the GPS coordinates plotted on maps using the technology at the agency's disposal.

[01:13:13] Speaker 00:
said that Mr. Aguirre's request was not specific enough to request that.

[01:13:19] Speaker 00:
And of course, if it had felt that way, its regulations require it to go back to Mr. Aguirre and ask for a more specific request.

[01:13:27] Speaker 00:
So the request issue here is just all Mr. Aguirre is asking for is for the 351 pages of GPS coordinates to be plotted on maps using the technology that the DEA has.

[01:13:41] Speaker 00:
And on that point, the DEA has never disputed that the maps are readily reproducible.

[01:13:48] Speaker 00:
There have been six agency affidavits.

[01:13:51] Speaker 00:
It has been up to this court already once.

[01:13:53] Speaker 00:
Never has the DEA said that it could not readily reproduce the map images, and that argument is forfeited.

[01:13:59] Speaker 00:
And we cross-moved for summary judgment, of course, in the DEA in its response to not say that they were not readily reproducible.

[01:14:11] Speaker 00:
And it is all over the record that there is tech commercially available technology for doing this.

[01:14:17] Speaker 00:
And in fact, I heard Mr Walker to say that That the record suggests that the agency cannot put in coordinates and print them.

[01:14:27] Speaker 00:
And that is, in fact, not in the record.

[01:14:28] Speaker 00:
If he was referring to the the Roy declaration at page 109

[01:14:32] Speaker 00:
That only says that the past technology that was used to monitor could not be used to input coordinates, but not that the current technology has the same limitations.

[01:14:42] Speaker 00:
And of course, it's been admitted that if not that monitoring technology, then other technology can be used to input coordinates and readily reproduce the maps Mr. Aguiar is requesting.

[01:14:54] Speaker 00:
As to the $608 fee,

[01:14:57] Speaker 00:
The letters at Joint Appendix 106 and 111 show that that fee was for initial processing.

[01:15:06] Speaker 00:
The agency learned only after Mr. Aguiar sought a fee waiver that it was for the agency only learned after Mr. Aguiar sought a fee waiver that the CD contained spreadsheets.

[01:15:20] Speaker 00:
And so the agency has never offered to reproduce the maps.

[01:15:24] Speaker 00:
Um, for any fee, um, Miss fossil, can you answer the question?

[01:15:29] Speaker 02:
I asked Mr. Mr. Walker about just the logistics.

[01:15:32] Speaker 02:
Is this really as simple as copying and pasting?

[01:15:36] Speaker 00:
The record does not reflect that your honor.

[01:15:39] Speaker 00:
I do think, um, that it could be as simple as putting a bunch of the spreadsheet in at once and yes, copy and pasting.

[01:15:47] Speaker 00:
It could be as simple as a click, but the record, um, does not, does not reflect that clearly.

[01:15:54] Speaker 02:
Then one more.

[01:15:54] Speaker 02:
What's that?

[01:15:55] Speaker 02:
What do you think is the least?

[01:15:56] Speaker 02:
I know you can't know exactly how many pages this would be printed out with the stuff plotted 16,000 coordinates won't be 16,000 pages because there'll be multiple coordinates on a page, but you can't fit all 16,000 on one page.

[01:16:08] Speaker 02:
What is the least amount of pages that you can imagine this result again?

[01:16:15] Speaker 00:
I think your honor, it's at least imaginable.

[01:16:17] Speaker 00:
I believe there are around 50 coordinates on a page.

[01:16:21] Speaker 00:
I could see those potentially fitting all on a single map.

[01:16:24] Speaker 00:
So that would be around 350 maps.

[01:16:27] Speaker 00:
Maybe there could even be more fit.

[01:16:29] Speaker 05:
That doesn't make any sense to me.

[01:16:32] Speaker 05:
And I feel like you're asking for something that will be supremely frustrating to Mr. Aguirre.

[01:16:38] Speaker 05:
Wouldn't he want, and I keep saying this and maybe it's just in my own fevered imagination, but wouldn't he want a separate map for every actual journey?

[01:16:52] Speaker 05:
In other words, if you plot today's driving and tomorrow's driving and the next day's driving and the next day's driving on the same map, you're going to get like an etch a sketch in the hands of a two year old.

[01:17:06] Speaker 05:
It will be incomprehensible.

[01:17:09] Speaker 00:
I think I think, Your Honor, maybe maybe I'm misunderstanding.

[01:17:13] Speaker 00:
I think that would essentially be what, for example, 350 maps might look like.

[01:17:20] Speaker 00:
because Agent Carter could set up the pings to be happening every minute.

[01:17:25] Speaker 00:
And so it would essentially look like a journey for that day, potentially.

[01:17:30] Speaker 05:
But if you don't, if you're not careful in saying that a separate day needs to be a separate map, you could get, as I said, a kind of a, you know, over and over and over and over all mushed together and it would be non-informative, which is why for my,

[01:17:50] Speaker 05:
comprehension, it just seems important to think about how the government actually uses maps and electronic tracing information.

[01:18:03] Speaker 05:
They do this all the time, all the time.

[01:18:07] Speaker 05:
This is not an exotic kind of information.

[01:18:09] Speaker 05:
And I'm guessing that they never pull it up as a list of coordinates.

[01:18:18] Speaker 05:
They pull it up as maps.

[01:18:20] Speaker 05:
And they never pull it up as 10 days or 100 days maps all on one sheet of paper.

[01:18:27] Speaker 00:
I agree, Your Honor.

[01:18:28] Speaker 00:
I think we're starting with Mr. Aguiar's request, which does not contain that level of detail, but which I think has to be, when we're talking about whether something is a different form or format, that has to be read against the purpose of the statute, which is in the purpose provision, to maximize the usefulness.

[01:18:48] Speaker 00:
it's easy to see what the agency would be required to produce because it's the form that they themselves use it.

[01:18:56] Speaker 00:
Just as you said, the way that we know, we can see from the record, from the maps in the record, what something like this would look like and the way that the agency usually uses this information and in fact, exclusively uses this information as far as the record shows.

[01:19:13] Speaker 00:
So yes, I don't think that

[01:19:15] Speaker 00:
I don't think the agency would be fulfilling its obligation by providing something that's a mush or unreadable.

[01:19:22] Speaker 00:
It needs to provide it in the form that it commonly uses them.

[01:19:27] Speaker 00:
And to the extent that there are difficult questions at the outskirts of what is a form or format, this case easily fits within that broad any form or format language because we know exactly how the agency views these coordinates to make them readable.

[01:19:45] Speaker 00:
And I don't think that, Your Honors, that Mr. Walker has proposed a test to put the limits that he would read into electronic and non-electronic into that any form or format language or the like, coded or uncoded, zipped or unzipped.

[01:20:01] Speaker 00:
I simply think that those limitations do not exist in any form or format language and the protections in the statute, the readily reproducible where the agency is entitled to substantial weight on that opinion and the fact that it can pass on fees.

[01:20:15] Speaker 00:
Those are the protections for the agency.

[01:20:17] Speaker 00:
It's not by reading limitations into the broad, any form or format language where we know the Congress was trying to provide access in the most usable way.

[01:20:28] Speaker 04:
All right, thank you.

[01:20:30] Speaker 04:
We will take the case under advisement.