[00:00:00] Speaker 03: Case number 20-5182, Cause of Action Institute, a balance versus United States Department of Justice. [00:00:08] Speaker 03: Mr. Mulvey for the appellant, Mr. Ross for the appellee. [00:00:13] Speaker 03: Thank you. [00:00:14] Speaker 03: Morning. [00:00:16] Speaker 03: Mr. Mulvey, you may proceed. [00:00:18] Speaker 02: Good morning, your honors. [00:00:19] Speaker 02: May it please the court? [00:00:20] Speaker 02: My name is Ryan Mulvey. [00:00:21] Speaker 02: I represent Appellant Cause of Action Institute, and I intend to reserve one minute for rebuttal. [00:00:26] Speaker 02: This case presents the unresolved question of the meaning of a record under the Freedom of Information Act. [00:00:32] Speaker 02: In American Immigration Lawyers Association versus Executive Office for Immigration Review, this court ended the longstanding practice of scoping records, that is, redacting portions of a record considered non-responsive by agencies. [00:00:45] Speaker 02: But agencies have adapted, and they now seek to segment unified records into smaller records which can then be withheld as non-responsive. [00:00:53] Speaker 02: That approach exemplified in OAP's 2017 guidance and applied here to the QFRs at issue, depends on misguided dicta from Ayla to advance a subjective ad hoc definition of a record that conflicts with the text of the FOIA and with common sense. [00:01:08] Speaker 02: There are four broad reasons why the government's position is wrong and its treatment of the QFRs is incorrect. [00:01:15] Speaker 02: First and foremost, Congress has added a definition of the FOIA, of record to the FOIA. [00:01:22] Speaker 02: Appellant has set forth a four-part, four elements to that definition that logically follow from the two clauses at section 552 F2, more specifically. [00:01:32] Speaker 00: Can I pose two or three hypotheticals and wonder if you think that there are records, if there are single record or if there are multiple records? [00:01:41] Speaker 00: The first one is let's say the January volume of a law review. [00:01:48] Speaker 00: So it's bound in one volume. [00:01:50] Speaker 00: It's consecutively paginated. [00:01:53] Speaker 00: But each article is different and each article is by a different author. [00:01:57] Speaker 00: Do you think that that's one single record or do you think each article is its own record? [00:02:02] Speaker 02: If the bound physical copy of the law review, we're not talking about PDFs of the individual articles, the entire volume would constitute a record. [00:02:12] Speaker 02: Whether or not it would be subject to disclosure as falling under agency control, I think is an important question. [00:02:18] Speaker 00: Right. [00:02:19] Speaker 00: No, I'm just trying to probe the meaning of record. [00:02:22] Speaker 00: What about the transcript of a trial? [00:02:27] Speaker 00: Do you think you could imagine that each day's [00:02:31] Speaker 00: transcript that the court reporter types up is a record, or you could imagine that the whole thing. [00:02:37] Speaker 00: You know, let's say it's a two month trial the whole two month trial is one record one record so if you think that's one record or multiple records, Your Honor, I think that that would depend on how it's being maintained by the agency. [00:02:50] Speaker 02: In my own practice, for example, transcripts are usually based day by day. [00:02:54] Speaker 02: You have separate PDFs that come from the reporter. [00:02:56] Speaker 02: If those separate PDFs are being maintained separately by the agency, then each of them are records. [00:03:01] Speaker 02: If the entire trial has been turned into a single PDF, then that would be a single record. [00:03:09] Speaker 00: Do you think it would depend at all on how the FOIA requester phrased the request? [00:03:15] Speaker 00: So let's say [00:03:16] Speaker 00: FOIA requester number one says I'd like the trial record and FOIA requester number two says I'd like the record for May 2nd of that trial. [00:03:27] Speaker 00: Do you think that the nature of the record would be different in the first request from the second request? [00:03:32] Speaker 02: I don't think that the nature of the record would be different, but I think what's interesting about the second hypothetical you pose is that it does contain a sort of implicit consent to exclude portions of the record for purposes of processing the request. [00:03:48] Speaker 02: And I think what would be most appropriate then in that situation is for the agency to communicate with the requester and to confirm the consent to exclude portions of the complete transcript that the requester is not interested in. [00:04:02] Speaker 00: I'll lay off the hypotheticals. [00:04:04] Speaker 02: I'm done. [00:04:05] Speaker 04: So, Mr. Mulvey, I guess I have maybe a related question to that, which is, does it matter if the requester, so some types of requests say, you know, I would like [00:04:17] Speaker 04: The trial transcript of this day. [00:04:20] Speaker 04: Right. [00:04:20] Speaker 04: And so that is arguably something that exists in some form, other requests, seek information about particular subjects, I think, perhaps like your request in you know cause of actions request in this case. [00:04:36] Speaker 04: You know, does the agency think about records differently with those two different types of requests? [00:04:41] Speaker 04: Some requests are for specific documents and some are for specific subject matters. [00:04:47] Speaker 04: And in the latter case, under the ALIA decision, I mean, might it not be appropriate for the agency to then define the record in relation to the subject matter that is being sought by the requester? [00:05:01] Speaker 02: I think those considerations come in not at the point of responsiveness review and defining a record, but in terms of designing a search. [00:05:08] Speaker 02: the subject matter of request is helpful when an agency constructs its search methodology and attempts to locate potentially responsive records. [00:05:19] Speaker 02: It doesn't come in so much at the next stage of defining a record. [00:05:24] Speaker 02: And in fact, I'd like to point out that this actually raises a very interesting aspect of the ALA decision of the dicta on defining a record, which is that the ALA court [00:05:34] Speaker 02: seems to have missed a step in the FOIA process. [00:05:37] Speaker 02: So after dismissing the existence of a 552-HF2 and describing it just as a description of records, the court says, well, responsiveness review seems to be the first step, so agencies can define a record at that stage. [00:05:53] Speaker 02: But it misses the search. [00:05:55] Speaker 02: Before responsiveness review, before application of a control test, before consideration of exemptions, an agency collects a universe of potentially responsive records, things that exist as maintained by the agency at the time of the request. [00:06:09] Speaker 02: The things that get returned from a search, Word files, Outlook messages, Excel sheets, PDS, those are records. [00:06:16] Speaker 02: Those are existing objective things already at the agency. [00:06:20] Speaker 02: There really shouldn't need to be any further investigation of the subject matter of the request in order to break up things. [00:06:30] Speaker 02: I mean, that's all the government's position here is really just a policy-based argument [00:06:34] Speaker 02: that's better directed at Congress. [00:06:37] Speaker 02: It doesn't grapple with the text. [00:06:38] Speaker 02: It doesn't really grapple with how the FOIA process actually works. [00:06:47] Speaker 04: Oh, I guess, I guess, Mike, I wonder if the what you just stated about a search right is in some ways an artifact of the of our ability now to do detailed electronic searches of documents right where many documents might come up with, you know, just a couple of search words in it. [00:07:07] Speaker 04: You know, whereas, you know, when FOIA was originally drafted, I mean, records were probably things that in fact existed as discrete documents and there would be a search through some paper archives, you know, for responsive documents. [00:07:20] Speaker 04: You know, in a world of electronic searching, I wonder if that is really a reasonable way to think about records. [00:07:27] Speaker 02: Well, Your Honor, if anything, I believe the fact that we're in an electronic world makes the application of an objective definition of a record even easier, precisely because you're dealing with [00:07:37] Speaker 02: For example, PDS, it's very clear on a computer to see what exists as a discrete file, whereas with paper records, that can be a little more difficult, as I think some of the case law and certainly older case law has dealt with. [00:07:53] Speaker 02: You know, to return to the reasons why the government is wrong here, beyond the existence of a statutory definition that the government doesn't even attempt to ground its position in, it offends the government's position in the treatment of the QFRs here, offends common sense. [00:08:07] Speaker 02: I think the district court in Lipton described very well that the ordinary understanding of a record is that it is an existing document. [00:08:17] Speaker 02: or other permanent preserved account of past events. [00:08:19] Speaker 02: It has to exist prior to the submission of a request. [00:08:23] Speaker 02: With respect to the Privacy Act, I think the briefs address this very well. [00:08:26] Speaker 02: I would just like to point out this circuit's decision in 1983 in McGeehee versus CIA, footnote 47, where this court said that the Privacy Act definition of a record is, quote, not germane, end quote, to the FOIA context. [00:08:39] Speaker 02: I think that pretty much resolves any sort of attempt to use a portion of the Privacy Act definition of a record. [00:08:48] Speaker 02: Cause of action in its briefing presented a number of principles related to the idea of the pre-existence of records prior to the submission of a request. [00:08:56] Speaker 02: In most part, the government didn't answer any of them. [00:08:59] Speaker 05: There are two crucial things, if I'm understanding you correctly, two crucial points that you're making underlying your argument. [00:09:08] Speaker 05: One is that you've already mentioned. [00:09:10] Speaker 05: That is, a record exists before the requests are made. [00:09:13] Speaker 05: I think that really is. [00:09:14] Speaker 05: That's certainly been my understanding. [00:09:18] Speaker 05: The agency is looking for records in which they might find the relevant information and the other point as I if I'm hearing you correctly and information is not a record. [00:09:30] Speaker 05: And that seems to be lost information may be contained in a record. [00:09:34] Speaker 05: but information is not a record. [00:09:37] Speaker 05: It is simply a communicable knowledge that may or may not be in a record. [00:09:41] Speaker 05: Am I understanding you correctly? [00:09:43] Speaker 02: Yeah, I think that's right, Your Honor. [00:09:45] Speaker 02: I would say that this came up in the government's brief, and we addressed it in our reply brief, where we said that a record contains information, but the existence of a record is not conditioned on the subject matter content of the information. [00:09:59] Speaker 05: No, no, I understand that point. [00:10:01] Speaker 05: But I think you're trying to [00:10:04] Speaker 05: make the strong point that the or strong for you that the record exists before the requests are made and the government is now searching for the information that is being requested in the records that already exist in the record in the format of records correct format of records because that's what the statute says we're talking about records you're not talking about searching for information although they're certainly looking for information but the statute [00:10:32] Speaker 05: Causes them to look for the information in the records is your point right. [00:10:36] Speaker 05: Yes, your honor. [00:10:37] Speaker 05: Okay. [00:10:39] Speaker 04: Mr Bobby is that definition of record consistent though with a laws language that [00:10:46] Speaker 04: This is, I guess, on page 678 of the case. [00:10:49] Speaker 04: Under FOIA, agencies in effect define a record when they undertake the process of identifying records that are responsive to a request, right, which suggests that the record is in part defined in relation to what is being sought after. [00:11:08] Speaker 02: Well, Your Honor, I think our point is that section five fifty two F two doesn't actually say that. [00:11:14] Speaker 02: And this aspect of the dicta in the court has there is no legal authority for it. [00:11:19] Speaker 02: And I'm not quite sure where it comes from. [00:11:22] Speaker 02: But it's wrong precisely because as I explained before, it misses the initial step in the FOIA process, which is before a responsiveness review is conducted, which is what this line, I think Judge Sreenivasan was contemplating. [00:11:34] Speaker 02: a search is conducted and potentially responsive records are compiled to be processed for responsiveness control and statutory exemptions. [00:11:44] Speaker 04: So in a situation, if that is, if that is true though, how are we supposed to parse whether, I mean, you know, say in the facts of this case, not even a hypothetical, whether, um, the Q for Q furs are all of the Q furs taken as a whole, or are individual questions for the record? [00:12:03] Speaker 02: Well, here, Your Honor, the agency's declarant conceded that the QFRs existed as a single document and were transmitted to Congress as a single document. [00:12:12] Speaker 02: It argued basically a could have, should have, would have type of argument that, well, we only created one record for efficiency sake. [00:12:20] Speaker 02: Well, that may be the case, but the agency created one record, maintains it as one record, transmitted it to Congress as one record, and identified it as one record responsive to cause of actions FOIA request. [00:12:32] Speaker 02: and only decided to break it up after the fact. [00:12:36] Speaker 02: And then maintain that position after an administrative appeal where cause of action clarified that what it sought was the entirety of the QFRs as they exist at DOJ. [00:12:47] Speaker 04: But that wasn't the request that cause of action made, right? [00:12:50] Speaker 04: Presumably cause of action could now make a request for all of the questions for the record from a particular day to a particular executive branch official. [00:13:01] Speaker 02: Well, cause of action could always, yes, submit a new request. [00:13:05] Speaker 02: Part of the government's argument, though, is that that shouldn't be necessary. [00:13:09] Speaker 02: It talks about the importance of communication between the requester. [00:13:13] Speaker 02: The government believes that cuts in favor of DOJ's position, but in actuality, it cuts the other way. [00:13:20] Speaker 02: Because there was communication in the form of an appeal, somewhat more formal communication than might otherwise occur, [00:13:26] Speaker 02: but Cause of Action clarified what it was actually seeking. [00:13:29] Speaker 02: Cause of Action had no reason to suspect that DOJ would split up the QFRs the way that it did because it was concerned about efficiency or because I believe at one point the government claims it didn't want to confuse Cause of Action Institute by releasing material that wasn't related to what it understood to be the subject matter of the request. [00:13:47] Speaker 02: But that gives agencies such broad discretion to determine what's going to be useful contextual information to a requester. [00:13:54] Speaker 02: I mean that [00:13:56] Speaker 02: It's one thing if the agency wants to reach out to the requester and negotiate a narrowing or an exclusion of certain portions of a record, but to just give the agency full discretion to treat a record any way it wants for the sake of efficiency. [00:14:11] Speaker 04: In this context, though, the questions for the record, some of them are very distinct. [00:14:17] Speaker 04: Your request was about earmarks, right? [00:14:20] Speaker 04: So say a question about Guantanamo Bay, how is that responsive to the request that cause of action submitted? [00:14:30] Speaker 02: Well, what's responsive isn't [00:14:32] Speaker 02: subject matter content within the record. [00:14:34] Speaker 02: The record in its entirety is what FOIA contemplates as being disclosed. [00:14:40] Speaker 02: And when you're doing a responsiveness review, you look at the entirety of the record, and if any portion of it is responsive, then the entirety is responsive. [00:14:48] Speaker 02: In terms of the government, if what you're thinking, Your Honor, is about the government's argument that certain subparts of questions or certain questions in the set of QFRs weren't directly related to earmarks or the decision to obligate agency funds, [00:15:01] Speaker 02: Well, that information still has valuable context, because it gives cause of action an idea of how DOJ approached one subject matter within the same set of QFRs, as opposed to another. [00:15:14] Speaker 02: It may have given short shrift, for example, to agency decisions to obligate funds, as opposed to Guantanamo Bay. [00:15:23] Speaker 04: Let me ask you another question. [00:15:25] Speaker 04: So these were all compiled into one document. [00:15:30] Speaker 04: I assume maybe somewhere at DOJ, these also exist as separate documents. [00:15:36] Speaker 04: So if they released the Word files that were just for particular questions, would that be also a record? [00:15:43] Speaker 02: Yes, your honor. [00:15:44] Speaker 04: So my experience in the executive branch often you know these questions are divided up and then they are recompiled so if they just gave you the separate documents and not the compilation would that be inconsistent with FOIA? [00:15:57] Speaker 02: Yeah, so as the record demonstrates, and we addressed this in our briefing, the agency could have, so it receives the questions from Congress, it breaks them up, sends them to different components, and then recompiles the responses. [00:16:10] Speaker 02: The agency could have tried to look for the final responses from the different components at DOJ [00:16:17] Speaker 02: which represented final responses, but before they had been compiled to create a new record. [00:16:23] Speaker 02: And those could have been processed in response to Cause of Action's FOIA request, but DOJ didn't choose to process those records. [00:16:31] Speaker 02: Either it didn't find them. [00:16:32] Speaker 04: It's just an accident of how things are placed into combined Word files or PDFs. [00:16:41] Speaker 04: Is that, I mean, is it just an, that's just sort of, that's almost accidental in a way, or created for efficiency or record keeping. [00:16:48] Speaker 02: Well, I wouldn't describe it as accidental. [00:16:51] Speaker 02: I mean, this is just the reality of how records are created in an agency. [00:16:56] Speaker 02: I mean, the problem isn't unique. [00:16:58] Speaker 02: I mean, it's not really a problem, but the situation is not unique to QFRs. [00:17:04] Speaker 02: I believe it was the the district court in American oversight versus HHS, for example, when it was talking about [00:17:10] Speaker 02: email chains, and it explained in a footnote that with each email chain, with each response that comes, this was in a footnote because it wasn't exactly on point to the holding of the case, but each act by an agency employee to create a new chain creates a new record that incorporates the previous conversation. [00:17:29] Speaker 02: So you're going to have a lot of duplication. [00:17:31] Speaker 02: And in a sense, it's an accidental creation in the same way that your honor is proposing with QFRs. [00:17:37] Speaker 02: But the fact remains that each of those email chains is a separate record. [00:17:40] Speaker 02: Each is potentially subject to [00:17:43] Speaker 02: to records management obligations under the Federal Records Act, for example, and each can be processed in response to a FOIA request. [00:17:52] Speaker 02: So I wouldn't dismiss the fact that there exists component level records that are responsive, somehow dispositive as to the treatment of the compiled complete set of QFRs that were transmitted over to Congress. [00:18:10] Speaker 02: Well, my time is expired. [00:18:12] Speaker 02: Thank you, Your Honors. [00:18:13] Speaker 04: Do my colleagues have any further questions? [00:18:16] Speaker 02: No, thank you. [00:18:22] Speaker 01: Okay, thank you. [00:18:22] Speaker 01: Mr. Ross? [00:18:23] Speaker 01: Good morning. [00:18:24] Speaker 01: May it please the court case and Ross for the Department of Justice. [00:18:28] Speaker 01: As your honors have explained previously, plaintiff here sought information under the freedom of information act concerning government spending on various earmarks, including grants to various dust department programs. [00:18:39] Speaker 01: And among the material identified was questions located in those records, or excuse me answers to various. [00:18:46] Speaker 05: You were right. [00:18:47] Speaker 05: Your answer is right in those records. [00:18:49] Speaker 05: That's exactly. [00:18:50] Speaker 05: That is exactly the point. [00:18:52] Speaker 05: Let me let me tell you. [00:18:54] Speaker 05: my concern just so you can have it in mind. [00:18:59] Speaker 05: The government seems to be saying that you define requests as you just started doing, except you slipped and you said what I think is appropriate. [00:19:11] Speaker 05: You're defining requests by reference to the information sought. [00:19:16] Speaker 05: Then when you find the information, [00:19:19] Speaker 05: You delete anything in the same record that's not responsive. [00:19:23] Speaker 05: I don't know where that comes from. [00:19:25] Speaker 05: That's simply not what FOIA says. [00:19:27] Speaker 05: FOIA refers to records. [00:19:29] Speaker 05: You're really searching for records in which information is contained. [00:19:37] Speaker 05: And you seem to be treating the two as if they're one and the same. [00:19:44] Speaker 05: They are not. [00:19:45] Speaker 05: Definitionally, they're not the same. [00:19:47] Speaker 05: information is just communicable data. [00:19:51] Speaker 05: Creating a record is something different and having a record and records include information. [00:19:56] Speaker 05: And I think your approach smacks directly in the face of what the court held. [00:20:04] Speaker 05: You can't go to a record and then delete pieces of it that you [00:20:13] Speaker 05: identify as being non-responsive, and that's what it seems to me you're doing. [00:20:17] Speaker 05: I thought this was one of the sillier and simpler cases, and I can think of a lot of them that would be really hard, but you have here, you have a document with a title, questions for the record, that is questions that are in the record is the way I read it, that's the title of it, one title, successive pages, [00:20:39] Speaker 05: questions and answers that are numbered successively, all within this one document. [00:20:44] Speaker 05: If that isn't a record in the minds of most people, I don't know what is. [00:20:50] Speaker 05: And it looked utterly bizarre as I was reading the appendix to see your knocking out information in the record. [00:21:00] Speaker 05: that you say is non-responsive. [00:21:03] Speaker 05: You have no legal basis, and that is exactly what the court said you could not do unless it was exempt information. [00:21:11] Speaker 01: That's correct, Your Honor. [00:21:13] Speaker 01: But the government's position in this case is not that we took a single record and redacted information, rather that there were many records within a set of questions for the record. [00:21:23] Speaker 05: Well, that's self-serving. [00:21:24] Speaker 05: And I know we can go in circles on this, merely stating to make it so. [00:21:29] Speaker 05: In other words, I have this picture of this document that you created that has a title covering it all, refers to itself as a record, including all these questions. [00:21:40] Speaker 05: in that record that your your title I didn't make the title and has successive pages and the questions within that single record are numbered successively and I don't know how that can't be a record. [00:21:54] Speaker 01: Your honor, it bears emphasizing in this case, and perhaps I can draw an analogy from Judge Walker's hypothetical about a law review volume. [00:22:02] Speaker 01: The questions for the record in this case were submitted by various members of Congress, multiple senators and multiple representatives. [00:22:09] Speaker 01: And it's as if each of those questions is like a law review article. [00:22:12] Speaker 01: Of course, the question and answer is much shorter than a full law review article, but the same concept applies. [00:22:18] Speaker 01: That is, whereas the volume of a law review article, excuse me, of a law review [00:22:24] Speaker 01: issue, which contains multiple individual articles, it strains understanding why a single volume, which contains multiple articles, would be a single record. [00:22:35] Speaker 01: When, if each of those records was published individually, would be a single record. [00:22:40] Speaker 01: A plaintiff's own analogy in their reply brief compares a binder, a physical binder, of multiple documents as compared to an electronic, that is if that binder was electronically transmitted as a single PDF. [00:22:54] Speaker 01: whereas the physical binder of the exact same information would constitute multiple records on plaintiff's reasoning. [00:23:00] Speaker 05: Suppose my request says I want all the records in which Judge Walker has published articles. [00:23:07] Speaker 01: Then each of the articles would constitute a record. [00:23:09] Speaker 05: I want all the records in which Judge Walker has published articles. [00:23:15] Speaker 05: That would be the whole book. [00:23:17] Speaker 05: You can't make the judgment about whether the rest of what's in that record, they should or should not be looking at, I was really kind of blown away that this was even a question that may just show my age, but I never [00:23:30] Speaker 05: never saw this in the old days, and that doesn't win a case, but it's to let you know why I'm flabbergasted. [00:23:38] Speaker 05: This is so straightforwardly a record in my mind, I can't find a way to make it other than a record. [00:23:44] Speaker 05: What you put in the record, in the appendix, that is so straightforwardly a record, and what you've done is take pieces of information [00:23:53] Speaker 05: out of an obvious record because you don't think it's responsive to what they're really looking for. [00:23:59] Speaker 05: And we've already said you can't do that. [00:24:02] Speaker 01: Your honor, I think the government's position here is rather that a record as a unit is defined by the information of which it comprises. [00:24:11] Speaker 01: And Judge Rao's line of questioning with plaintiff's counsel is elucidating here, namely that if the government had instead identified various word documents of each of the individual files, plaintiff to my mind conceded, or acknowledged rather, [00:24:26] Speaker 01: that each of those individual word documents would have constituted a record. [00:24:30] Speaker 01: It's simply by virtue of the fact that information here was transmitted between branches of government for sakes of efficiency. [00:24:36] Speaker 05: Well, you know, the more interesting question would be to take Judge Riles and extend it and see what the and I can suspect what the government wants to do. [00:24:43] Speaker 05: take each one of those word documents, you would have found them as a record, and then you would have gone through each paragraph and deleted each paragraph saying those paragraphs are not really responsive to what they're looking for. [00:24:55] Speaker 05: That's exactly what you cannot do. [00:24:57] Speaker 05: So, I mean, Judge Rao's question, I think, is perfectly apt. [00:25:01] Speaker 05: The record is the word document. [00:25:04] Speaker 05: And what I'm saying to you is you can't now go through that record and delete pieces of it because you don't think it's responsive to what they're really looking for. [00:25:13] Speaker 05: That makes no sense to me. [00:25:15] Speaker 01: I understand Judge Edwards, and I think that the government's position here is rather that we're not deleting, the government is not deleting portions of a record, rather we're defining record according to the nature of a particular request so that it's responsive and is able to efficiently provide information that the government has. [00:25:35] Speaker 05: Information, that's where you are [00:25:40] Speaker 05: You are trying to build a bridge between information and records that I think you cannot do definitionally. [00:25:45] Speaker 05: They're different. [00:25:46] Speaker 05: Information of all sorts can be contained in the record and they may not be related to each other. [00:25:53] Speaker 05: It doesn't make the record any less a record because the pieces of information in it are not obviously connected. [00:26:01] Speaker 05: That's your premise and I don't get it. [00:26:03] Speaker 05: I looked everywhere and I find no one suggesting. [00:26:07] Speaker 05: Now the government can have a record system [00:26:10] Speaker 05: that says let's not ever have records that include information that are not related in some way. [00:26:18] Speaker 05: That's fine. [00:26:18] Speaker 05: If you do that, and that's clearly the way you set it up, then it's a different case. [00:26:22] Speaker 05: But that's not what we're talking about here. [00:26:24] Speaker 05: You created this record. [00:26:28] Speaker 01: It bears noting, Your Honor, that this Court has reiterated multiple times that the focus of FOIA is information, not documents. [00:26:35] Speaker 05: Oh, no, no. [00:26:38] Speaker 01: No, that's directly from this Court's decision. [00:26:40] Speaker 05: Information and FOIA by words of the statute are records. [00:26:44] Speaker 05: Council on the other side is exactly right. [00:26:47] Speaker 05: You're searching for records in which you'll find information. [00:26:50] Speaker 05: You have conflated the two, and that is simply wrong. [00:26:55] Speaker 04: So, Mr. Ross, what about, oh, sorry, go ahead. [00:26:58] Speaker 00: Please go ahead, Judge Rao. [00:27:00] Speaker 04: So, I guess my question is, I mean, the OIP guidance, the Office of Information Policy guidance here, seems to distinguish between two types of requests. [00:27:10] Speaker 04: One is a request that identifies a record itself that may exist as a record, and the other is requests that are for particular forms of information. [00:27:22] Speaker 04: that of course would be found in records, but that don't necessarily describe the records themselves. [00:27:28] Speaker 04: And it seems to me that the OIP guidance treats those two types of requests differently. [00:27:36] Speaker 04: And I'm wondering if you can explain what the justification is for that different treatment. [00:27:42] Speaker 01: Your honor, I think, first, I'll start by noting that that guidance was released in response to this court's decision in American Immigration Lawyers Association, and was an effort to provide guidance, and it's not legally binding, but is an effort to provide guidance throughout the government as to how to efficiently respond to FOIA requests. [00:28:02] Speaker 01: That said, there may be situations in which a record can be defined agnostically, platonic to a particular request, and other circumstances in which a record is more correctly defined in response to a particular request. [00:28:18] Speaker 01: And it bears emphasizing in an effort to fully satisfy what a FOIA requester is seeking. [00:28:24] Speaker 01: So for example here, it would be one thing if a FOIA requester, as plaintiff's counsel was adverting to, requested, for example, all questions for the record in response to Attorney General Holder's sitting before Congress in April 2010. [00:28:41] Speaker 01: plaintiff's counsel seemed to suggest that the government may have treated different responses, or excuse me, different questions from members of Congress differently. [00:28:49] Speaker 01: And in order to suss that out, plaintiff should have requested all of the questions and answers in response to Attorney General Holder's appearance. [00:28:58] Speaker 01: And as the government has explained in this case, we would have disclosed that information possibly as a single record. [00:29:05] Speaker 01: But in this particular case, you know, plaintiff had requested material on a specific subject matter, government spending on earmarks and pursuant to a specific executive order. [00:29:16] Speaker 01: And the government provided responsive material, in fact, all responsive material. [00:29:22] Speaker 01: And plaintiffs don't challenge that. [00:29:24] Speaker 05: But you're supposed to give them a record. [00:29:29] Speaker 05: not responsive material. [00:29:30] Speaker 05: You're making the point over and over again that is legally wrong. [00:29:34] Speaker 05: You're up and that's what our case says. [00:29:36] Speaker 05: You are supposed to turn over a record and you can exclude anything in that record that is exempt. [00:29:43] Speaker 05: You're exactly right. [00:29:44] Speaker 05: You're supposed to turn over the record and you keep going to the point because I know this is what you're doing and it's flying right in the face of what we said. [00:29:52] Speaker 05: You now think [00:29:54] Speaker 05: You look for the information, you find it in records, and then you start deleting debate based on what you think they really want. [00:30:01] Speaker 05: That's not what FOIA has ever been intended to mean. [00:30:05] Speaker 05: That's not FOIA. [00:30:08] Speaker 05: They're entitled to everything that is in that record. [00:30:12] Speaker 05: Even if you, the government, don't think [00:30:14] Speaker 05: they really need it. [00:30:16] Speaker 04: We h though define precisely wh [00:30:25] Speaker 01: And I will just suggest, Your Honor, that this court in American Immigration Lawyers Association and multiple other cases explicitly said that FOIA doesn't define record. [00:30:36] Speaker 01: Section 552 F2 says what an agency record comprises, but that is meant to constitute the universe of agency records, which are subject to a search in the first instance. [00:30:48] Speaker 01: which is the subject of cases such as Department of Justice v. Tax Analysts and Kissinger v. Reporters for Freedom of the Press. [00:30:56] Speaker 01: This case instead asks a different question. [00:30:58] Speaker 01: What is a unit that comprises a record? [00:31:01] Speaker 01: And FOIA provides no guidance in that respect. [00:31:04] Speaker 01: And the government in this particular case has sought to explain that what that unit is is in reference to a particular FOIA request. [00:31:16] Speaker 00: I have one. [00:31:18] Speaker 00: question about the record in this case. [00:31:22] Speaker 00: There's a series of questions from Senator Feingold that are not consecutively paginated with the other set of questions that were answered on that same day. [00:31:34] Speaker 00: Do you happen to know if it's in the record, if a declarant has said this, were the Feingold Cufers sent as a separate attachment [00:31:48] Speaker 00: when DOJ emailed its answers to the committee? [00:31:55] Speaker 01: Frankly, Your Honor, I really don't know. [00:31:58] Speaker 00: It may not. [00:31:59] Speaker 00: It may not matter. [00:32:00] Speaker 00: It may not. [00:32:01] Speaker 01: I don't know. [00:32:01] Speaker 01: I'm sorry. [00:32:04] Speaker 00: That's all for me. [00:32:07] Speaker 04: Well, Mr. Ross, if you could just say, I mean, it sounds like the government believes it's entitled to, you know, some type of leeway in defining a record. [00:32:15] Speaker 04: And I'm wondering where the government finds support for that position. [00:32:19] Speaker 01: It's not leeway, Your Honor, rather that the government is seeking to efficiently provide FOIA requesters with the information that they seek. [00:32:30] Speaker 01: That's what we attempted to do in this case and in other cases. [00:32:34] Speaker 05: In fact- I don't know why you keep arguing efficiency. [00:32:36] Speaker 05: Why is it more efficient for someone to be given the assignment to now go through this thing that we picked up very quickly and here it is the single document. [00:32:47] Speaker 05: And rather than turning that over, you now say, now go through and let's try and figure out what they don't want. [00:32:53] Speaker 05: That takes a heck of a lot more time. [00:32:55] Speaker 01: So your honor, that's incorrect. [00:32:59] Speaker 01: I guess I'll just take a step back for a second. [00:33:06] Speaker 01: When the government receives a FOIA request, the determination of what constitutes a record and what is a responsive record [00:33:14] Speaker 01: is a fairly straightforward inquiry, and can be done by, you know, subject matter experts in the particular agency, in this case the Office of Information Policy, and those records can then be determined for consider for processing, that is, [00:33:30] Speaker 01: or whether any of the material in those records should be kept exempt or not disclosed under the FOIA exemptions. [00:33:38] Speaker 01: Now the decision whether to withhold material pursuant to a FOIA exemption is not one the government takes lightly and requires consideration of many different stakeholders. [00:33:50] Speaker 01: You know, many government equities must be considered in whether to invoke a FOIA exemption and [00:33:56] Speaker 01: It would create a huge backlog, essentially, for the government to process much more material in response to a specific FOIA request, which hurts not only the FOIA requester in that particular case, but all other FOIA requesters who then have to wait that much longer for the government to process a substantially greater volume of information. [00:34:16] Speaker 05: I'm really not following you because I'm just using the material that we have in this case in the appendix. [00:34:21] Speaker 05: You pull out that one, what I'm calling a record, [00:34:25] Speaker 05: that has all the questions and answers on a single title, single pagination, you pull it out, you're done. [00:34:32] Speaker 05: Assuming there's no exempt material in it. [00:34:35] Speaker 05: There's nothing else you have to do. [00:34:36] Speaker 05: The information in it, responsive or not, is not the inquiry, and you will not be wasting time trying to figure that out. [00:34:44] Speaker 05: You just pull out that document, which is a record, self-evidently a record, and you hand it to them. [00:34:51] Speaker 01: Apologies, Your Honor, but what I'm trying to explain is the decision of what constitutes a record is a fairly easy one to make, whereas the decision whether to that is then must be done, which is to process that information and determine whether to invoke the various FOIA exemptions is a very difficult decision to make. [00:35:08] Speaker 01: And under your honor's understanding here, processing these particular files would have taken a substantially longer period of time just for the government to be able to determine which exemptions to invoke. [00:35:20] Speaker 01: And if the government chooses not to invoke an exemption, of course, that's waived for perpetuity. [00:35:26] Speaker 01: Once the government discloses something publicly, it can no longer invoke a FOIA exemption in subsequent cases. [00:35:32] Speaker 01: So all I'm trying to say is that there's a substantial daylight between determining what a record is and whether to invoke any FOIA exemptions within that record. [00:35:43] Speaker 01: And so that's why the government's position here is rather to identify responsive records according to a particular FOIA request and provide that information to a FOIA requester. [00:35:54] Speaker 01: If other information is sought, the FOIA request- Maybe I'm being dense. [00:36:01] Speaker 05: You identified this total record. [00:36:05] Speaker 05: And then what you did was go through it. [00:36:07] Speaker 05: And you did two things. [00:36:08] Speaker 05: One, I understand, always takes time. [00:36:10] Speaker 05: What's exempt, what's not. [00:36:12] Speaker 05: And then you spent additional time in that one record deciding what you thought was non-responsive. [00:36:19] Speaker 05: And you spent all that time crossing that material out, which the law does not ask you to do. [00:36:24] Speaker 05: But you agree it was a record. [00:36:26] Speaker 05: It was a record when you found it. [00:36:28] Speaker 05: And that when you did two things, you looked for exempt material, and then you looked for what you thought was non-responsive material. [00:36:35] Speaker 05: And that's inconsistent with the law of the circuit. [00:36:38] Speaker 01: Apologies, Your Honor, but that's simply a misapprehension of what was done here. [00:36:42] Speaker 05: I'm just looking at what you turned in. [00:36:44] Speaker 05: So obviously is what was done. [00:36:46] Speaker 05: You found that record, obviously, because it's there. [00:36:51] Speaker 01: We found multiple records, Your Honor. [00:36:53] Speaker 01: And we disagree with that. [00:36:56] Speaker 05: For ease of conversation, you found that record. [00:37:01] Speaker 05: And what you and I are now talking about is what you do when you find that record, which you know has some of what they're looking for. [00:37:10] Speaker 05: The law says you give them the whole record. [00:37:12] Speaker 05: You said, no, we're going to go through the record, see what's exempt, if anything. [00:37:16] Speaker 05: And then additionally, we're going to take the time to go through that record again, [00:37:20] Speaker 05: to see what pieces of it we're going to take out because we don't think it's responsive. [00:37:26] Speaker 04: I guess in part the question is when you have a document, who decides whether that document is a collection of records or whether it is a single record? [00:37:38] Speaker 04: And my understanding is here when you located the questions for the record, the government determined that that was a series of records that were compiled into one document instead of just a single record. [00:37:51] Speaker 01: Correct. [00:37:52] Speaker 01: And so the government's position is that in response to a FOIA request would identify those particular records to satisfy that FOIA request. [00:38:03] Speaker 01: And that decision is subject to judicial review, just as here. [00:38:06] Speaker 05: Right. [00:38:07] Speaker 05: Who would ever file? [00:38:08] Speaker 05: I mean, I'm finding it very funny because it makes no sense to me. [00:38:13] Speaker 05: Who would ever file question one and the answer to question one as a record? [00:38:19] Speaker 05: What business and what government agency? [00:38:21] Speaker 05: Oh, go look and file 22 and you'll find question three in the answer. [00:38:27] Speaker 05: That's a record in there. [00:38:28] Speaker 05: Under what record filing system would anyone do that? [00:38:32] Speaker 05: It makes no sense. [00:38:34] Speaker 05: I understand there is this difficulty in defining precisely what is and is not a record, but there's some things that seem to me are so clearly [00:38:41] Speaker 05: on records. [00:38:43] Speaker 05: And I don't understand conceptually how you think any normal person would handle question three as a record and go file it because there's record management. [00:38:52] Speaker 05: Where do you put it as a record? [00:38:58] Speaker 05: Make it rhetorical. [00:38:59] Speaker 05: I'm just letting you know so you understand my concern. [00:39:01] Speaker 05: I don't get the position. [00:39:03] Speaker 05: And it looks like it's inconsistent with what we said. [00:39:07] Speaker 00: Get some clarification on something you said earlier in response to one of Judge Edwards' questions. [00:39:11] Speaker 00: The order that DOJ would have gone in, you could imagine them taking out everything that's exempt, which is time consuming, and then taking out everything that's not relevant in their opinion. [00:39:26] Speaker 00: Or you could imagine them doing it in the reverse order, taking out everything that's relevant, which is probably a pretty quick exercise. [00:39:34] Speaker 00: And then the universe of things that are relevant and therefore need to be subject to the exemption inquiry is a much smaller universe, which would actually make this process probably faster than if you had to go [00:39:51] Speaker 00: question by question and figure out for every question does an exemption apply. [00:39:56] Speaker 00: Now that doesn't mean that you're right about the statutory meaning or the meaning of the statutory term record, but if our only goal were to make things as easy as possible for DOJ, as fast and efficient as possible, am I right that it would depend on what order you go in? [00:40:15] Speaker 01: So far as I understand your question, Your Honor, that's correct. [00:40:18] Speaker 01: And this court explained in American Immigration Lawyers Association that relative process, that is first, you know, the government sets forth the relevant information and, you know, plaintiffs council went over this as well. [00:40:32] Speaker 01: And after identifying those responsive records will process, so quote unquote process them, meaning invoke particular exemptions for, you know, line items or, [00:40:43] Speaker 01: specific information within those records. [00:40:50] Speaker 01: I have nothing more. [00:40:53] Speaker 01: We ask the court to affirm. [00:40:54] Speaker 01: Thank you. [00:40:55] Speaker 04: Thank you, Mr. Ross. [00:40:56] Speaker 04: Mr. Mulvey will give you an initial minute or [00:41:00] Speaker 04: I think you asked for one minute. [00:41:00] Speaker 04: That's fine. [00:41:01] Speaker 04: Yeah. [00:41:01] Speaker 04: One minute. [00:41:02] Speaker 00: Would you mind starting very briefly with, if you know the answer to my original question, is there something in the record and a declaration, an affidavit or something that gives me some insight on whether that the Feinstein document was sent as a separate attachment from the other consecutively paginated questions? [00:41:23] Speaker 02: I don't believe that there's anything to that effect in the record. [00:41:27] Speaker 02: As I understand it, the record reflects that it was sent together, but I checked the appendix and your honor, you are right that those two pages are not paginated along with the proceeding pages. [00:41:37] Speaker 02: But I think the record is unclear. [00:41:38] Speaker 02: I just have five quick points in response to what government council discussed with your honors. [00:41:45] Speaker 02: First, Fortune V. Harris, 1980, very, very early in the FOIA's history. [00:41:50] Speaker 02: this court explained that FOIA provides access to records, not information in the abstract. [00:41:56] Speaker 02: It's true that there's never been a court that's addressed the precise definition of a record until now at the appellate level. [00:42:04] Speaker 02: But I think that's because like Judge Edwards suggested, it's just common sense. [00:42:09] Speaker 02: We don't need a judicial decision on what a record is because it shouldn't be subject to such a convoluted approach as set out in the OIP guidance. [00:42:17] Speaker 02: With respect to government council suggestion that there's case law saying that there's no definition of a record. [00:42:22] Speaker 02: Most of that case law doesn't, in fact, all of it except for ALA says there's no definition of agency record. [00:42:28] Speaker 02: An agency record is a distinct concept from record. [00:42:33] Speaker 02: Finally, Judge Edwards, there's a maxim that I like, which is that the FOIA requester is the master of a FOIA request, but the agency is the master of its own records management program. [00:42:44] Speaker 02: It decides how to maintain records, but once it decides to create or obtain and maintain a record in a particular way, that is the record. [00:42:52] Speaker 02: And then finally, again, [00:42:54] Speaker 02: All that the government offers are policy-based efficiency concerns. [00:42:59] Speaker 02: Obviously, application of the OIP guidance and this attempt to define records after you've identified something that's possibly a record but not actually a record, that's convoluted. [00:43:10] Speaker 02: It's not straightforward. [00:43:11] Speaker 02: We wouldn't be having this case if it were so easy as the government contends. [00:43:16] Speaker 02: I don't understand the efficiency concerns because whether or not you're segmenting a record and determining whether it is a record under OIP's guidance or that it's exempt, [00:43:24] Speaker 02: you're, you're taking the same amount of time. [00:43:26] Speaker 02: And if there's no further review by superiors as to the segmentation of a record, that's deeply concerning because that is as important a consideration as the application of statutory exemptions. [00:43:38] Speaker 02: Um, it also conflicts. [00:43:39] Speaker 02: Sorry, your honor. [00:43:40] Speaker 04: I think that we have your, your argument. [00:43:42] Speaker 02: Okay. [00:43:43] Speaker 02: We asked that this court in reverse. [00:43:45] Speaker 02: Thank you, your honor. [00:43:46] Speaker 02: Okay. [00:43:46] Speaker 02: Thank you, Mr. Mummy. [00:43:47] Speaker 04: The case is submitted.