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Case number 20-5144, Jens Borup, the balance versus Central Intelligence Agency.

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Mr. McClanahan for the appellant, Mr. Handel for the appellate.

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All right.

[00:00:12] Speaker 01:
Good morning, Mr. McClanahan.

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Before you begin, I understand from the clerk that you may have some technical problems.

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And if we lose you, we'll just take the rest of your argument on the brief.

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Thank you, Your Honor, but I don't expect any technical problems.

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I was just telling her that if in the off chance there are technical problems, I might not be able to connect that.

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All right.

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Please proceed.

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Ladies and gentlemen of the court, my name is Kel McClenahan.

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I am here to argue for the plaintiff Jen Sporup.

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This is a fairly straightforward case of what rules of evidence apply and how a statute is interpreted.

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no matter how many things are thrown into the mix, that's really what it boils down to.

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And there are a lot of issues that were in the briefs and that were, especially if you listen to the CIA's argument, were in the briefs below that were not passed upon below.

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But I'm gonna stress two major things.

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Well, three, if you count one being split in two.

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The first one is

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sort of the elephant in the room.

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And that is the issue of whether or not CIA has proven that its policy or its alleged policy has mooted the case, its new policy.

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This practice, this internal guidance that officers should not decline, quote unquote, to process records that are based on the fact that

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they are allegedly beyond the scope of the CIA's mandate.

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We believe that even under the best interpretation of the facts, this has not met the French of the Earth's mootness test that, as the Supreme Court said, has to say that subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.

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That is not anything that has been met here.

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The council for the other side assures us that that's what they meant to say today and that's in an opinion.

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Wouldn't that be the end of it?

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Your honor, I don't believe so because the council cannot testify and the council cannot provide evidence.

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And the only evidence in the record is this declaration that cherry picks from an alleged policy that even according to their council may or may not even be written

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and they're basically just asking you to take their word for it.

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And that gets to the second point of FOIA is kind of a unique animal in litigation where it doesn't generally go to trial.

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It doesn't generally go to discovery.

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And I ask you, suppose the policy were firm and definite.

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what the stated policy, new policy, and the Shiner Declaration were firm and definite.

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Would that then move the case?

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It seems like the new policy is significantly different from what you allege, and at least in my view, would pretty clearly be lawful.

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Yes, Your Honor.

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So the whole case just on this point comes down to whether

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whether the policy was stated in sufficiently mandatory terms and whether Ms.

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Shiner has sufficient authority and gravitas to speak for the government on that point, correct?

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Well, that's one of the points, Your Honor.

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But yes, to your statement, if they introduced through admissible evidence that the existence of a definite policy that would

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say that this is not left up to the discretion.

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This is not something that the processors should or should not do.

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As you characterize it, then yes, we would admit that that that moots the point.

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And in fact, we said that in the district court.

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So speaking of cherry picking then, when you look at the entire declaration, you focus on a couple of words which might or might not be mandatory in isolation.

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There's a should, for instance.

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But there are a lot of mandatory verbs in the overall description of the policy instructed required mandates isn't the most fair reading of that entire paragraph is that this is a this is a binding rule going forward.

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I don't believe so, Your Honor.

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Our position is that the things that are mandatory are conditional, that they mandate that a FOIA processor consider whether or not they should refuse to process a request.

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Yes, it is mandatory that they, according to a generous reading of this,

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They are, in fact, we would concede that if this policy is as characterized, they are required to follow this policy.

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However, that's like saying that I am required to think about what I will say before I say it.

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It doesn't say what I have to say.

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Because required is too amorphous or because

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requirement itself is only to make an assessment case by case, and that's not firm enough.

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That latter point, Your Honor.

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That is our point that the requirement is that they seriously think about whether or not they should do it, and they are discouraged from doing it, but they are still free to do it on a case by case basis.

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Would it be unlawful?

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Suppose the CIA gets a

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FOIA request for all documents related to covert operations to secure passage of the Affordable Care Act.

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Could they lawfully just say, look, that's crazy.

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We don't do that stuff.

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We've never done that stuff.

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We're just not going to make that search.

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They are not allowed to not search.

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What they are allowed to do is process- No matter how far afield the request is from anything that they ever have done or could do, they always have to search.

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Right, now what they can do is they can say that the request does not reasonably describe records that they would have.

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They can say that it would be unduly burdensome.

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They can say that

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You know, we could not determine where to search because we don't do this sort of thing.

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They can do the things that they do all the time, and maybe even do a search for Affordable Care Act in the Office of Congressional Affairs or something.

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What they can't do is say, we're not going to do it because we don't do that.

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They're required to process a four-year request.

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No, but the fair reading of the policy is they make a case-by-case judgment

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about whether there's any reasonable possibility that the search will produce responsive records.

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And if the answer to that question is obviously enough no, then they don't do the search.

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Your honor, I would take a little bit of issue with that characterization, but I'm trying to find the exact policy statement that they quoted.

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What I have in my notes is they're required to assess case by case whether agency records are likely to contain responsive material.

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And that seems to me okay as an abstract statement.

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Again, this court may rule that way.

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We would maintain that FOIA requires them to process a FOIA request unless it is unduly burdensome or does not describe the record sought or that the records are exempt.

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That is it.

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FOIA is straight up about what you can and can't do.

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And this is not something you'd be creating new law.

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Even if it's with respect to a matter that they have

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no engagement with whatsoever.

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This happens all the time, for instance, in the CF.

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They get a request to know who did the Washington football team consider in recent drafts and that you want all the information they have on that.

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They've got to search.

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They don't have to search, but they have.

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Let me make sure I understand what you're saying.

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If they get something that's patently absurd,

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and I happen to think my hypothetical raises a patently absurd situation.

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They want all the information the CIA has on Washington football team's private discussions on who to draft.

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They can't say we don't do that.

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They can say that we can't construct a record or we can't construct a search, which is not what they're doing.

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They're just saying that we don't do that.

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So there are some things that are just patently absurd.

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They can say that's,

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that we can't even get started on that.

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That's, that's beyond the pale for us.

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Okay.

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However you want to put it.

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So we agree on that.

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No, your honor, we do not agree that they simply tell me what they would be legal in your view, what they would legally be required to do with respect to the Washington football team requested search.

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They would be required to do what the NSA does when they're asked about people who have microchip implanted in their bodies.

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They would have to say, we could not determine where to search.

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They would have to say, this is an unduly burdensome search, because we would have to search every record to find this needle in a haystack if it exists.

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Or they would have to conduct a search of some office, knowing that the result would be no, and then say we had no records.

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This is what the intelligence agencies deal with every day.

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OK.

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all right and and and to get to a different point because i'm about to run out of time i did stress that it's through admissible evidence because foyer doesn't go to trial the application of the rule that the best evidence rule doesn't apply in summary judgment makes it nonsensical because as i said in my brief and i'll just sort of very briefly rehash the

[00:11:17] Speaker 03:
An agency can, as I said before, cherry pick whatever it wants from a policy statement, and then cherry pick it again, and then cherry pick it again, and at no point.

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I'm not understanding along the lines of my colleague.

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They said agency personnel should not decline to process requests solely because it matters that issue are beyond the scope of the agency's primary mission, which is what you wanted, except you don't like should not decline.

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You want will not decline, is that right?

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Or shall not decline, yes.

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I would take will.

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All right, so if you had shell or will, it's mood, right?

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If they can prove it, and this gets back.

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Wait, let me do it a step at a time, okay?

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Indulge me.

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If you had shell or will, it's mood, right?

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Are we setting aside whether or not it's admissible?

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Then yes.

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If we had a policy statement, for instance, that said that, it would be moot.

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If you had a policy statement that said, or was the equivalent of shell or will, it's moot, right?

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Correct.

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All right.

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Let me ask you my question again, which is what I started out with.

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If counsel for the other side says, my assurance and pursuant to all of my ethical obligations, I can assure you that that is

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the agency's position and we write that in an opinion and say the agency's position, the words seem a little loose here or there, but it is a shell.

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And we, the court, are saying that's the mandate.

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What's left?

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We've done this before.

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That's the end of it.

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You have an enforceable mandate.

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You're in no worse position than if you had shell or will in the written policy and they don't follow it the way you want.

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You have a mandate.

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and you'd have to come back in either case.

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If we say in our opinion, council has assured us that they meant to moot the case by granting the policy as requested, it's done.

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Case is over, right?

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If you say that, that is a different thing.

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Well, that's what I asked you to start it out, because it seems so obvious to me.

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That was my first question to you.

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And you resisted.

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Sorry, go ahead.

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I said, if I ask counsel, he may not say that, but if I ask counsel,

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Is he assuring me the way pain and friends of the earth are requiring that this is done?

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And we write it in an opinion.

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It's done.

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Is it done?

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If you write it in an opinion, I would argue that it's close to done, but I don't think he can say that any more than why would you take his word over mine?

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Cause you cannot take the word of a council because he's an attorney and he's appearing before the court and he has certain ethical responsibilities.

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He may not understand the entire scope of it.

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This is why lawyers aren't allowed to be fact witnesses.

[00:14:13] Speaker 04:
Okay, I got your point.

[00:14:16] Speaker 01:
All right, Judge Katz, do you have any questions?

[00:14:18] Speaker 01:
I'm all set.

[00:14:19] Speaker 01:
All right, your time is up.

[00:14:21] Speaker 01:
We'll give you a couple of minutes.

[00:14:22] Speaker 01:
Mr. Handel.

[00:14:24] Speaker 00:
Good morning, Your Honors, and may it please the court, Josh Handel, on behalf of the Central Intelligence Agency.

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What's the answer to my question, counsel?

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Judge Edwards, so just to make sure that I'm clear, your question is, do we understand this policy to be binding on CIA's processors?

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And the answer is yes.

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And I believe that- So let me just take the words that at least leap out pretty straightforwardly.

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Agency personnel should not decline to process requests

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solely because the matters at issue are beyond the scope of the agency's primary mission, which is the fight here.

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I'm asking you as counsel for the agency, is it your understanding that the government's position on this is that that's mandatory?

[00:15:14] Speaker 00:
Yes, your honor.

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Okay.

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That's all I wanted to know.

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And, you know, just to perhaps gild the lily a bit here, we think that that's reflected in other pieces of the description.

[00:15:25] Speaker 04:
Oh, I understand.

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You understand the point he's made.

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There's loose language here or there, but I still can ask you because there's enough for me in my mind to ask you the question.

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Is it your understanding?

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Because if that is captured in an opinion, then you and the agency have new responsibilities because it would be captured pursuant to your assurance that the policy is mandatory.

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And that means it would have to be mandatory going forward.

[00:15:54] Speaker 00:
Yes, your honor.

[00:15:56] Speaker 00:
I understand that this policy was communicated to processors as CIA's understanding of its obligations under FOIA and as such is mandatory on the agency by operation of statute and mandatory on CIA's employees by operation of the employer employee relationship.

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I think the should shall distinction in language is just explicable through the fact that CIA was not engaged in

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lawmaking here, it was just giving an internal directive to its employees.

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And I think that that's a fairly normal way for an employer to speak to its employees.

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But under pain, I mean, we went through this back and forth in the pain case, it's perfectly fair for the other side to ask the agency, or to be sure that the person who's giving this assurance really has the authority to do it, and that it really is an assurance.

[00:16:50] Speaker 04:
That's a perfectly fair question.

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And that's what I'm trying to confirm from you.

[00:16:54] Speaker 00:
Absolutely, your honor.

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And I'm not disagreeing with any of that.

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I'm just trying to offer kind of the basis for my understanding that this policy is mandatory.

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I'm happy to answer any other questions that the panel has about other issues in this case.

[00:17:14] Speaker 02:
Can I ask you about exemption three?

[00:17:17] Speaker 02:
Sure.

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The district court thought this case was, when you take out

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exemption one, exemption six, and the CIA Act.

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The district court thought the remaining dispute was about two documents.

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As I understand it, it's actually about portions of maybe 21 documents.

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One thing we could do is just remand for the district court to make the assessment on all the other documents.

[00:17:47] Speaker 02:
So why shouldn't we do that as the path of least resistance and it gives the first instance court the first shot at this?

[00:17:58] Speaker 00:
Sure, Judge Katz.

[00:17:59] Speaker 00:
So I think that that would be a purely cosmetic remand because the express rationale underlying the district court's holding was tethered to a representation by Ms.

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Shiner in the Shiner declaration that we submitted.

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And that representation covered all of the information withheld by CIA under Exemption 3 in conjunction with the National Security Act.

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That was specifically Ms.

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Shiner's representation as to the harms to national security that would be occasioned by disclosure of this information.

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The district court correctly noted that Ms.

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Shiner was making that representation as to all of the information being withheld under

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exemption three and the court then cited three decisions of this court wolf sims and center for national security studies for their holdings directing district courts to extend substantial deference to executive affidavits predicting harm to national security so at the end of the day the district court's holding rested on representations that expressly applied to all of the records withheld or redacted under the national security act the courts

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admitted misstatement of the exact number of records implicated by that holding doesn't unsettle the judgment, which was compelled by the court's crediting of Ms.

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Shiner's prediction of harm.

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That representation in Ms.

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Shiner's affidavit has not been controverted, at least before this court, it has not been controverted by Mr. Pourop.

[00:19:32] Speaker 00:
And I think that it is certainly within this court's power and discretion to affirm on that basis.

[00:19:40] Speaker 01:
Let me ask you, Mr. Handel.

[00:19:41] Speaker 01:
For me, the only even remotely close issue in this case is the segregability.

[00:19:49] Speaker 01:
And our court has been on both sides of it.

[00:19:54] Speaker 01:
Most recently in, I think, Machado Amadis, we held that we could perform that function.

[00:20:03] Speaker 01:
So could you address that?

[00:20:06] Speaker 00:
Absolutely, Judge Henderson.

[00:20:07] Speaker 00:
So you are correct that the district court did not mention anything about segregability in its summary judgment order.

[00:20:16] Speaker 00:
This court has sometimes treated it as reversible error for a district court not to make a segregability finding suespante even when, as here, it's not directly controverted between the parties.

[00:20:29] Speaker 00:
But as you mentioned, Your Honor, you have also held that it is not necessary to remand solely for that purpose.

[00:20:35] Speaker 00:
We cited the Juarez versus Department of Justice case from 2008 on pages 48 and 49 of our brief where this court noted that because its review of summary judgment is de novo and it has the same record and the same affidavits before it as did the district court, you are just as capable of evaluating the agency's affidavits regarding segregability as was the court below.

[00:21:00] Speaker 00:
And I think that's

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especially appropriate to do when as here you have an unrebutted, uncontroverted representation of non-segregability in the affidavit that CIA submitted.

[00:21:17] Speaker 00:
And again, Mr. Porup did not dispute that in the district court.

[00:21:22] Speaker 00:
He has not offered any reasons to doubt the veracity and the good faith presumption that attaches to that affidavit before this court.

[00:21:31] Speaker 00:
So I think that the warized line of cases says that, again, it is certainly within your power and discretion to affirm.

[00:21:38] Speaker 04:
You want to rest on, I'm sorry for interrupting, you want to rest on summary judgment law, that is the novel review.

[00:21:47] Speaker 04:
We're doing the same thing the district court would do if we remanded it, is your claim.

[00:21:52] Speaker 04:
And we're looking at uncontested materials.

[00:21:55] Speaker 04:
Am I understanding you correctly?

[00:21:57] Speaker 04:
That's correct, Judge Edwards, yes.

[00:22:00] Speaker 04:
So you just want to rest on the standard review.

[00:22:02] Speaker 04:
It's our call to make, and there's nothing contested here, and we ought to go ahead and make the call.

[00:22:07] Speaker 00:
Well, I think here, you know, if you were just going, as you said in the Juarez case, if you were just going to remand for the district court to enter an uncontested segregability finding that is, you know, just a rote operation of the district court, there's really no reason to prolong the case and go through the whole vacater and remand procedure.

[00:22:34] Speaker ?:
Okay.

[00:22:35] Speaker 00:
All right.

[00:22:35] Speaker 00:
Unless the court has further questions.

[00:22:37] Speaker 00:
I'll rest on my brief and respectfully request you affirm the judgment below.

[00:22:41] Speaker 00:
Thank you.

[00:22:41] Speaker 00:
All right.

[00:22:42] Speaker 01:
Thank you, counsel.

[00:22:43] Speaker 01:
Mr. McClanahan, why don't you take two minutes?

[00:22:47] Speaker 03:
Thank you.

[00:22:48] Speaker 03:
And I will just very quickly jump on the segregability issue just because that proves the point we've been making.

[00:22:56] Speaker 03:
The fact that the judge did not enter segregability is a material question as to whether or not, as Mr. Hando was presuming,

[00:23:07] Speaker 03:
he was ruling, the district judge was ruling on the entire blanket withholding claimed by CIA or was doing a fact by fact document analysis.

[00:23:21] Speaker 03:
And this gets back around to the point that I was discussing with Judge Edwards of what can counsel testify to?

[00:23:28] Speaker 03:
And counsel is telling you what he thinks the district judge meant.

[00:23:35] Speaker 04:
No, no, no, no.

[00:23:36] Speaker 04:
That's not the thrust of my question.

[00:23:38] Speaker 04:
Under standard law, under standard review inquiries, we do the same thing the district court does if it's a summary judgment.

[00:23:48] Speaker 04:
And if there are simply documents to look at to make the determination, we have some case law that says we can go ahead and make it.

[00:23:55] Speaker 04:
That's what you do in summary judgment.

[00:23:57] Speaker 04:
We can make this.

[00:23:58] Speaker 04:
We don't give any deference to the district court's determination.

[00:24:02] Speaker 04:
if it's a straight up summary judgment matter and we can look at it and determine whether or not there are material facts in dispute.

[00:24:10] Speaker 03:
Right.

[00:24:10] Speaker 03:
And I wasn't saying that was what you just said.

[00:24:12] Speaker 03:
I'm saying that during my original oral argument when you and I were discussing the council, he's saying, well, it's clear that the judge- No, but the question now on segregability is why would we send it back?

[00:24:24] Speaker 04:
Why isn't that something we can do in the context of this case on this record?

[00:24:28] Speaker 04:
It's pretty straightforward.

[00:24:29] Speaker 03:
You can, and that's not the point I was trying to make.

[00:24:32] Speaker 03:
I was trying to show that the lack of segregability, the lack of a segregability finding shows that the district judge did not apply the analysis of the National Schedule Act to all of the documents in controversy, because if only that would have been an advisory opinion after saying that there are only two documents in controversy.

[00:24:54] Speaker 03:
And by the way, I'm gonna say that everything else is exempt too.

[00:24:58] Speaker 03:
Judges don't do that.

[00:24:59] Speaker 03:
I mean, good judges don't do that, and this is a good judge.

[00:25:03] Speaker 03:
I'm going to change gears very quickly just to make a point about the CIA Information Act before I run out of time.

[00:25:13] Speaker 01:
You are out of time, so make it very quick.

[00:25:16] Speaker 03:
Okay.

[00:25:17] Speaker 03:
I just wanted to point out that in the House report for the CIA Information Act, it talks about how

[00:25:25] Speaker 03:
CIA has to search operational files when CIA conducts an internal investigation of allegations of impropriety or illegality in the conduct of an intelligence activity, whether through the Office of Director, Inspector General, General Counsel, anywhere.

[00:25:40] Speaker 03:
It doesn't have to be a congressional committee doing it, and it doesn't have to be a plaintiff pointing out that a secret CIA internal investigation happened.

[00:25:48] Speaker 03:
If a CIA internal investigation happened, they have to search operational files for it.

[00:25:53] Speaker 03:
And they did not represent that they did.

[00:25:56] Speaker 03:
And that by itself is enough to send it back for adequacy of the search over operational files.

[00:26:03] Speaker 03:
If you have any questions, I'm here.

[00:26:04] Speaker 03:
Otherwise, I would respectfully request that the court reverse and remand this case to the district court.

[00:26:11] Speaker 01:
All right, counsel, the case is submitted.

[00:26:13] Speaker 01:
Madam Clerk, will you call the next case?