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Case number 20-5028, Niskanen Center, Appellant vs. Federal Energy Regulatory Commission.

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Ms.

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Gibson for the appellant, Mr. Pfaffenroth for the appellate.

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Good morning.

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Megan Gibson on behalf of the Appellant Niskanen Center.

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May it please- Ah, Council for Appellant, I cannot hear you.

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I hear you faintly.

[00:00:25] Speaker 02:
Could you speak directly into the mic?

[00:00:30] Speaker 02:
Yes, is that better, Your Honor?

[00:00:32] Speaker 02:
It is better.

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It's not great, but it's better.

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Thank you.

[00:00:37] Speaker 02:
Apologies.

[00:00:39] Speaker 01:
I'll pull a little closer.

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I'll address two main issues.

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That's much better.

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OK, excellent.

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I'll address two main issues under FOIA Exemption 6.

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First, the district court's well-intentioned error in relying on speculated harms in its order for partial production.

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And second, the clear public interest in full disclosure of the requested landowner lists.

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First, the district court erred by finding there to be a substantial privacy interest at stake in speculated harms never raised by FERC in its analysis or supported anywhere in the record.

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Namely, a threat of protesters using the list to trespass on landowners' private property.

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Well, the district court in fairness said, for example.

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Yes, your honor, the press pass.

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That is the only example, clear example, that's been given by the district court and by FERC.

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FERC offered no example, substantive examples of any substantial real, true risk

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or threat to privacy interests on the landowners on this list, including in the administrative proceeding as well as before the district court.

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So the example cited by the court is the only real example that we have.

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And there's no evidence of such a threat, either on the record or in the articles that were cited.

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Do you know of any case that would require such evidence?

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What case would you cite for the proposition that the commissioner has to come forth with such evidence?

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Sure, Your Honor.

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So it's baked into the exemption six test.

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Under exemption six, FERC has to demonstrate that the threat to privacy is clearly unwarranted.

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That language is in the statute itself and in the case law.

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So in all of the cases that FERC cites to,

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All of those cases are an opposite, as in those decisions, the courts explicitly found one, no public interest in disclosure, and two, that often was coupled with established threats to privacy interests.

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So for example, the risk of commercial solicitation, or there was evidence

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And was there evidence in that case about that, or did the court just assume that such exploitation could occur?

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Because I don't, in our recent cases, I looked at them pretty carefully because you cite many of them in your brief.

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I didn't see any cases, and maybe I missed it, which is why I asked you the question, that require the kind of evidence you're suggesting.

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In fact,

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In Horner, which has a lot of discussion in this case, in Horner, we, quote, assumed, we assumed, and that's a quote from the case, we, quote, assumed that the companies wouldn't overlook an opportunity to exploit it.

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So I don't see any cases

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require such evidence.

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And in fact, as I read our cases, they don't seem to require that.

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And also, I think what the commission said in its brief here was just an elaboration of what it said in its decision.

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It's very different from Chiquita, where

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in Chiquita, it was really brief.

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Here you've got quite a few pages of discussion, especially in the denial of the appeal, explaining the problem here.

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So I'm happy to walk through some of the cases that FERC cited and is reliable.

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So please do.

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That would be helpful.

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Yeah, the distinguishing factor between this case and Horner is namely that there was no public interest at issue at all in Horner.

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So the balancing test clearly weighed in favor of the privacy interest at stake.

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There also was financial information within the list that the lobbying group was requesting in that case.

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There is no financial information on this list, the only thing that would

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be out there if these lists were fully disclosed is the fact that a pipeline sought to take these folks land to build their project.

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That's it.

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Did any of those cases discuss the situation with which this court is familiar, and certainly the public is familiar, that when these pipeline proposals become public, there is often negative reaction

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such that there are demonstrations, there are other unwanted contacts with property owners, and the like.

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So I'm trying to understand whether in this type of situation, where the court has acknowledged that sometimes it's obvious, what is the concern?

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must the court require the agency to be expressed about it.

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And I understand your point about you can distinguish each of these cases, but what I was interested in was it's basically what I read the district court is saying.

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These are not his words, my words, everybody knows.

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For example, trespass.

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Well, Your Honor, I agree that there is a collective understanding that there can be significant opposition, namely to oil pipelines, namely near Native American land.

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And those are the two examples that were cited by FERC.

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But my office scoured the internet

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for hours looking for a single example of protesters trespassing on the land that is at issue here, namely land that is owned by individual property owners, not by a pipeline company, not by a corporation, not by the federal government.

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And we- I think council, the point is I own land and now this plan has come out that this pipeline wants to put some pipes on my land.

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Oh, goodness.

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What does that do to the value of my property?

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Much less the aesthetic pleasure I desire.

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I mean, I just don't understand what requirement you think the agency was required.

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What required the agency to make the type of specific finding that I think you're calling for?

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Yes, Your Honor.

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So I mean, the agency was required to at least proffer some significant threat to privacy here, any threat to privacy, and they offered no such threat.

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Why don't you just refile your FOIA request?

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Make the same request, because the situation has totally changed.

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The pipeline is not going to be built.

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only a fool would go protest on land where there's not going to be a pipeline or do demonstrations or anything else.

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And so if you just file again, the basis on which it was denied, it no longer exists.

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Well, your honor.

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Let me put it differently.

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Why shouldn't we take into account the fact that the pipeline is not going to be built?

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Isn't that really the strongest argument you have?

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I would argue that that's in favor of full disclosure because the risk of protesters or trespassers that the court cited to as an example is clearly no longer valid.

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I thought your argument, I would have thought your answer to Judge Randolph was you're not interested in any particular pipeline.

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You're interested in showing that in determining whether FERC's

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notice procedures are adequate, right?

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Isn't that, that's what you're up to here, right?

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I don't mean up to.

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Excuse me.

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That's your interest.

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That's your public interest, right?

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Yes, your honor.

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And whether the pipeline's going to operate or not, your examination of how FERC handled this tells you something about the integrity of their notice procedures, correct?

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Precisely.

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And that would still be very relevant to the...

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ongoing ACP restoration and event procedures require the pipeline to notice.

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So once again, if getting these notice procedures completely wrong, which we suspect that it is, then the landowners still have no knowledge or, you know, that they need to intervene in these proceedings to assert their rights.

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Otherwise, they will waive all of those rights.

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So, yeah.

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Well, while I have the floor here, Ms.

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Gibson, let me ask you a different question.

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Suppose, for example, just suppose hypothetically that I think that requiring FERC to reveal names and addresses is a substantial privacy interest.

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Just assume that that's what I think.

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So then we go to the balancing, right?

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And we look at the public interest in balancing it against the privacy interest in names and addresses.

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You agree, don't you, that when we look at that, we're looking at the difference between what FERC is offered and what you're seeking.

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In other words, it's the difference between initials

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and street names on the one hand, and the difference on the one hand, and on the other hand, full names and addresses, right?

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It's the incremental difference.

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Okay, so suppose for example, that the publicly available records show that there are six, this is a hypothetical, six affected properties on Mulberry Lane, okay?

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And the landowner lists that they've given your shows only five.

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Doesn't that tell you everything you need to know?

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That tells you that one person didn't get it.

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And like the district court, I'm a little mystified as to why you need anything more here.

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Just stick with my hypothetical.

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Why?

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Why wouldn't you know everything from the list you've got about Mulberry Street?

[00:12:30] Speaker 01:
Yes.

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Well, your honor, your hypothetical assumes that there are only six landowners that live on Mulberry Street.

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Well, I suppose there's 100.

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Yeah.

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So let's say 100 live on a very common street name in Virginia, Lee Avenue or Lee Highway, Lee Jackson Highway.

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There's numerous streets and avenues, highways in Virginia that have the name Lee.

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Did you make that argument to the district court?

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The only argument I saw you make in the district court about the difference between names and initials is that there might be people, wait, I want to be sure I have this accurate.

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The only argument I think you made is that the property might've been sold to someone with the same initials.

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That's one of the arguments that we made, but I am confident I would have to double check the record that at oral argument, I noted the fact that there are streets and avenues that can go on for quite some time.

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So I think I gave the example of Route 66, which is irrelevant here.

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But I think the district court could gather my meaning when I cited to that example.

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And, you know, the track numbers of these properties are also incredibly important.

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So then did you ask for track numbers?

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Yes, your honor.

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We asked for all of the information names, track numbers, city.

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You did ask for track numbers.

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Okay.

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We asked for full disclosure of the unredacted lists, which includes track numbers.

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I have a couple of questions for you.

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Wait, excuse me.

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Just one thing.

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I just want to make, I'm sorry, I just want to be sure I get this.

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So.

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The track numbers comes from the fact that the unredacted list includes track numbers.

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So does the list you got include track numbers?

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It's redacted, Your Honor.

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All of the track numbers addresses cities.

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OK, thank you.

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Great.

[00:14:38] Speaker 00:
OK, thanks.

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How do you reconcile the line of cases in this circuit and, in fact, in the Supreme Court with the idea that we should

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take into account why you want this information and what you're going to do with it, with the line of cases that say that the requester, neither the requester or why they requested once the documents or what they're going to do with it are totally irrelevant in a FOIA case.

[00:15:08] Speaker 01:
Thank you, Your Honor.

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Well, in ACLU versus US Department of Justice, a 2011 opinion from this court, and that court found that

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that the court should take into account derivative uses and evaluating the impact of disclosure on the public interests.

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There's no requirement that if you get this information, you can throw it in the trash can and there'd be no consequence for you.

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There's no way to require you to use the information in the manner in which you're now suggesting as the reason for wanting it.

[00:15:48] Speaker 01:
Your honor, the same argument can be made on the privacy interest side to quote Justice Scalia in a concurring opinion in Ray.

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Derivative use of the public benefit side and derivative use of the personal privacy side must surely go together.

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And there is no plausible reason, he said, to allow it for the one and bar it for the other.

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How do you think the pipeline got the information with the track numbers and the landowners address and name?

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How did the pipeline get there?

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With a tremendous amount of resources, Your Honor, and I suspect land agents and contractors.

[00:16:26] Speaker 00:
It was public information.

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They got it.

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Matter of fact, there's a regulation to that effect that requires them to go through the tax records, the state tax records.

[00:16:36] Speaker 00:
So it's public information, right?

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Now, which way does that cut?

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Does that mean that the privacy interest is really not very strong?

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or maybe non-existent, or that you don't need the information if you want to talk about need, because you can go to the public records just like the pipeline did.

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So two points, Your Honor.

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One, your hypothetical assumes that the pipeline is getting these lists correct, and that's exactly why we are requesting these lists, to ensure that FERC is fulfilling its constitutional and statutory duty

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to give each and every affected landowner along these pipeline routes, adequate due process notice of their rights.

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So you're going to contact each and every landowner.

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If you got this information, by looking at it, you would not be able to tell whether they've been properly given notice.

[00:17:31] Speaker 01:
Your Honor, the public interest objective of obtaining these lists

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is to do a comparative analysis.

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And yes, we will utilize the public record available to do that comparative and chronological analysis to see the full extent to which, because we already know FERC is failing in sending each and every landowner notice, to see the extent to which FERC is failing in its duties.

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And the sample size that we have

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from the final environmental impact statement of 77 landowners who had their homes within 50 feet of this proposed project.

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And so there were construction drawings of each of their homes.

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contained within the FEIS.

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13 of those 77 homes, their physical addresses were deemed unavailable with engineering drawings of their homes.

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13 out of 77, that's approximately 17%.

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If we say there's approximately 25%.

[00:18:26] Speaker 00:
If the address is wrong, then you assume they didn't get noticed, but don't you have to contact the landowners personally to find out whether they really got noticed?

[00:18:39] Speaker 01:
No, your honor, if they don't have a correct address, then that's where they were sending notice.

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They never sent it.

[00:18:44] Speaker 02:
No, no.

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I think the point is if you had actual notice, suppose your neighbor received notice.

[00:18:51] Speaker 02:
So that's not, that's not.

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And he said, you get this notice that this pipeline's coming through and you say, no, I didn't.

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Well, this pipeline is coming through.

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Look at this notice.

[00:19:04] Speaker 00:
So there were also town meetings, weren't there?

[00:19:06] Speaker 02:
Town meetings.

[00:19:07] Speaker 00:
Yeah.

[00:19:08] Speaker 00:
So you've got to contact the landowners.

[00:19:10] Speaker 03:
You expressly told the district court that you had no interest in contacting the landowners, right?

[00:19:15] Speaker 01:
Correct, Your Honor.

[00:19:16] Speaker 03:
And you haven't changed your mind about that, right?

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You're not interested in contacting them.

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You're just interested in doing a comparison, correct?

[00:19:24] Speaker 03:
You want to compare who they sent notices to to the addresses to see if they sent it to everybody, right?

[00:19:32] Speaker 01:
Correct, Your Honor.

[00:19:33] Speaker ?:
Okay.

[00:19:35] Speaker 01:
Correct.

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And I just note, for the court's own knowledge, there is an additional public interest issue in this case in that there are ongoing proceedings and conversations occurring at FERC right now in the development of the Office of Public Participation.

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And that office, we're hoping, will take over notice provisions.

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And we would like to help, frankly, establish some accountability measures.

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And having more data and understanding the full extent of FERC's failure

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will also inform that public interest.

[00:20:07] Speaker 03:
I just have one more or less technical question to ask you, Ms.

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Gibson.

[00:20:13] Speaker 03:
You say that some of these initials that they've given you are not legible, right?

[00:20:19] Speaker 01:
Oh, correct, Your Honor.

[00:20:20] Speaker 03:
Yeah.

[00:20:21] Speaker 03:
But isn't that something that the district court should just look at?

[00:20:25] Speaker 03:
I mean, we're not going to go through.

[00:20:27] Speaker 03:
I mean, they've got

[00:20:30] Speaker 03:
I mean, you've got, am I right?

[00:20:32] Speaker 03:
You got 800 pages.

[00:20:33] Speaker 03:
You don't expect us to go through those and decide.

[00:20:36] Speaker 03:
We just have to, you have to take that to the district court, right?

[00:20:40] Speaker 02:
Yes, your honor.

[00:20:41] Speaker 03:
Okay.

[00:20:42] Speaker 03:
Thanks.

[00:20:43] Speaker 02:
All right.

[00:20:43] Speaker 02:
Thank you.

[00:20:45] Speaker 02:
Let us hear council for Mr. Pfaffenroth.

[00:20:55] Speaker 04:
Hey, I'm Peeley Secort, Pete Pfaffenroth for the Federal Energy Regulatory Commission.

[00:21:02] Speaker 04:
The focus of the discussion really I think needs to be on what additional incremental value of this very privacy invasive disclosure of a ready-made mailing list, not just to the Niskanen Center, but to anyone, would really add for the public interest.

[00:21:26] Speaker 04:
The public already has sufficient information to know that FERC's agents, the pipeline, made

[00:21:35] Speaker 04:
substantial efforts to contact people.

[00:21:37] Speaker 04:
They may not have been completely perfect, but they were substantial.

[00:21:41] Speaker 04:
And whether or not any given individual got notice is not sufficient to incremental additional information to warrant overcoming their privacy interest.

[00:21:52] Speaker 04:
Privacy interests that the Supreme Court, for instance, in the Reporters Committee for the Freedom of the Press decision said that, you know, it's one thing to

[00:22:02] Speaker 04:
have information in a government record, but when it's accumulated and readily possible to turn over information that's been in a computer as opposed to something that you could perhaps laboriously go to a courthouse and gather, it's fundamentally different.

[00:22:21] Speaker 03:
And there are other decisions that have likewise- Does the record in this case show that the notice procedures got to virtually everybody?

[00:22:35] Speaker 03:
You say there may have been a few people that were missed, but is that what the record shows?

[00:22:39] Speaker 03:
The only record evidence is what Niskanen has surmised from what it's... Well, but its argument is that it doesn't know whether... It doesn't have enough information to determine whether a few people have been missed or a substantial number of people have been missed.

[00:22:55] Speaker 03:
That's their argument.

[00:22:57] Speaker 04:
I understand.

[00:22:58] Speaker 03:
And the public... And you can't... FERC doesn't know the answer to that either, does it?

[00:23:04] Speaker 04:
But FERC knows that pursuant to its regulation, the pipeline provided multiple lists, eight, I believe, over the course of a couple of years.

[00:23:19] Speaker 04:
very substantial efforts to provide notice.

[00:23:21] Speaker 04:
And they also provided public meetings.

[00:23:25] Speaker 04:
They also.

[00:23:27] Speaker 03:
I understand all that.

[00:23:29] Speaker 03:
But their bottom line is they want to know, in the end, was it effective?

[00:23:35] Speaker 03:
And that's the public interest.

[00:23:39] Speaker 03:
That's how we think about the public interest.

[00:23:41] Speaker 03:
The public interest that they've articulated is, is the commission adequately notifying property owners?

[00:23:48] Speaker 03:
And I don't see, I mean, you heard my question to Ms.

[00:23:53] Speaker 03:
Gibson about Mulberry Street.

[00:23:54] Speaker 03:
I mean, like the district court, I'm a little mystified about how getting the full names can tell them anything significantly more than their initials.

[00:24:04] Speaker 03:
But I'm pushing back a little bit against your argument that I understood was that, you know, look,

[00:24:14] Speaker 03:
FERC did everything it could here, and if some people were missed, that's not significant.

[00:24:18] Speaker 03:
And I just don't know that we know that, isn't that right?

[00:24:23] Speaker 04:
You're right, I'm not suggesting that it's not significant that a few people were missed.

[00:24:26] Speaker 04:
I don't mean to suggest that.

[00:24:28] Speaker 04:
I mean to suggest that Niskanen already has more than enough information to know that the notice efforts were not absolutely perfect.

[00:24:37] Speaker 04:
I got that.

[00:24:38] Speaker 04:
And yes.

[00:24:40] Speaker 03:
So what about the argument that Miss Gibson just made

[00:24:43] Speaker 03:
about landowners that fail to contact would be marked as unavailable on the landowner list and none of them are.

[00:24:57] Speaker 03:
So can you just explain this to me?

[00:25:01] Speaker 03:
Would the unredacted risks show if a landowner was unavailable?

[00:25:08] Speaker 03:
Would it show that?

[00:25:11] Speaker 04:
I believe these are mailing lists and there's either an address or there isn't.

[00:25:14] Speaker 04:
I would point the court's attention to the declaration that- Wait, hold on.

[00:25:30] Speaker 03:
I understood her argument saying that if you didn't know, if FERC didn't know, if it didn't have the address,

[00:25:39] Speaker 03:
it would have showed up as unavailable.

[00:25:43] Speaker 03:
Is that true?

[00:25:47] Speaker 03:
I'm asking because I truly don't understand this argument, but Ms.

[00:25:49] Speaker 03:
Gibson made a point of it in her brief and the argument about unavailable addresses.

[00:25:55] Speaker 03:
And maybe you could just explain to us what you think that means.

[00:26:02] Speaker 04:
Your honor, these are 800 pages of

[00:26:05] Speaker 04:
addresses, and I have not seen behind the redactions myself either.

[00:26:11] Speaker 04:
The reality is that Niskanen has said that there are several people who, or multiple people, a number of people who have not, for whom they can tell there is no address.

[00:26:27] Speaker 04:
I don't know if that is because, you know, for instance, in their brief, they have a number of examples where the initials are basically the same for a number of people in roughly the same area.

[00:26:41] Speaker 04:
And I could speculate that there, you know, there may be

[00:26:47] Speaker 04:
single owner who owns a whole bunch of land in that area and there's not a house on that land and the owner may have actually had a house that is properly part of the list, but I can't tell you that that's definitively true.

[00:27:02] Speaker 04:
I have not seen the unredacted list, nor do I think it's

[00:27:08] Speaker 04:
really properly presented in this case factually that there needs to be an analysis and this appeal of that granular level of analysis.

[00:27:17] Speaker 03:
No, I understand that.

[00:27:18] Speaker 03:
But just you've seen the unredacted list, right?

[00:27:23] Speaker 03:
I'm sorry.

[00:27:23] Speaker 04:
No, I've seen the redacted list.

[00:27:25] Speaker 04:
I have not seen the unredacted list.

[00:27:28] Speaker 03:
I was not involved in the redacted list.

[00:27:31] Speaker 04:
You're right.

[00:27:31] Speaker 04:
I have only seen what the court has seen.

[00:27:33] Speaker 03:
Well, does the redacted list

[00:27:39] Speaker 03:
Wait, you've not seen the unredacted list?

[00:27:42] Speaker 04:
I have not.

[00:27:43] Speaker 04:
I am an assistant US attorney.

[00:27:45] Speaker 04:
I represent FERC and they handle their own FOIA processing.

[00:27:49] Speaker 03:
Okay.

[00:27:50] Speaker 03:
Well, do you know whether there's a category of people on the unredacted lists who are quote, unavailable?

[00:28:00] Speaker 04:
I know that I do not know on the granular level of that.

[00:28:04] Speaker 04:
I know that the FERC regulation requires additional efforts by pipelines to make additional efforts.

[00:28:10] Speaker 03:
I also know that- Is someone from FERC with you here?

[00:28:15] Speaker 04:
They're listening over YouTube.

[00:28:17] Speaker 04:
I could try and email them live if you'd like.

[00:28:21] Speaker 03:
Would you just email them and ask them, just email and ask them if the unredacted list

[00:28:29] Speaker 03:
has a category of landowners that are, quote, unavailable.

[00:28:35] Speaker 02:
And the category of what, Judge Tatel?

[00:28:39] Speaker 03:
Landowners that are, I hope I'm asking the question right.

[00:28:41] Speaker 02:
I just couldn't hear your question.

[00:28:43] Speaker 03:
Unavailable, unavailable.

[00:28:45] Speaker 03:
What does unavailable mean?

[00:28:47] Speaker 03:
Well, I'm not sure, but Ms.

[00:28:48] Speaker 03:
Gibson said that people who they didn't have address scores are unavailable.

[00:28:53] Speaker 03:
And I just want to know whether the unredacted list includes people who are unavailable.

[00:28:59] Speaker 03:
That's all.

[00:29:09] Speaker 03:
And while I got you- He's writing the email.

[00:29:13] Speaker 03:
Oh, I'm sorry.

[00:29:25] Speaker 03:
Tell me when you're ready.

[00:29:25] Speaker 04:
I sent the email.

[00:29:31] Speaker 04:
Okay, thank you.

[00:29:31] Speaker 04:
I'll let you know if I get an immediate response.

[00:29:32] Speaker 03:
Thank you, thank you very much.

[00:29:34] Speaker 03:
Of course, of course.

[00:29:36] Speaker 03:
Little instant research here.

[00:29:38] Speaker 03:
Just one more question.

[00:29:39] Speaker 03:
You heard me ask Ms.

[00:29:40] Speaker 03:
Gibson about the illegible initials.

[00:29:45] Speaker 03:
I assume that if there are illegible FERC would fix those back.

[00:29:50] Speaker 03:
You would clarify that, right?

[00:29:53] Speaker 04:
Sure.

[00:29:53] Speaker 04:
Yeah, of course.

[00:29:54] Speaker 04:
I mean, the redaction in this process was done with, I guess, black boxes that were applied manually with an acrobat.

[00:30:06] Speaker 04:
it's a human being going through 800 plus pages and you can quibble with exactly where the black box starts and doesn't start.

[00:30:14] Speaker 03:
But if they gave you a list of, if they identified 50 initials that they couldn't read, you'd clarify that for me, right?

[00:30:22] Speaker 03:
Sure, sure.

[00:30:23] Speaker 04:
Okay, thank you.

[00:30:26] Speaker 04:
Sorry, your honor.

[00:30:27] Speaker 02:
No, go ahead.

[00:30:28] Speaker 04:
I did want to just add that

[00:30:31] Speaker 04:
The declaration that Niskanen offered from the landowner who said she was not properly contacted did indicate that the process didn't stop with these mailing lists, which are principally, I think, from 2015 and 2016.

[00:30:49] Speaker 04:
The landowner said that

[00:30:52] Speaker 04:
You know, she may not have gotten, she didn't get these letters in the mail at that time, but she goes on to say, Oh, and then on several occasions, a person showed up in person from the pipeline to try to talk to me about an easement.

[00:31:09] Speaker 04:
And so, again,

[00:31:11] Speaker 04:
This is, I understand that Niskanen's point is that folks should get the notice early on so that they can be involved early on in the regulatory proceeding.

[00:31:23] Speaker 04:
I understand that argument.

[00:31:25] Speaker 04:
But the point is also that before somebody actually is subject to a taking,

[00:31:31] Speaker 04:
Yeah, they're not going to have some kind of legal proceeding where they literally don't know that their land is being taken.

[00:31:38] Speaker 04:
In the case of this woman who offered the declaration, she's at Joint Appendix 86 and 87, Pauline White.

[00:31:48] Speaker 04:
She specifically talks about how on a couple of occasions she got a phone call, and I believe she says also that the person showed up.

[00:31:58] Speaker 04:
I'm not reading it quickly enough to say that definitively, but that's my memory.

[00:32:02] Speaker 04:
So the point is that there are additional efforts.

[00:32:08] Speaker 04:
And as we point out at the end of our brief, the commission has been receptive to late intervention.

[00:32:17] Speaker 02:
Well, we've been through that with FERC and its procedures.

[00:32:21] Speaker 02:
So let's not go down that route.

[00:32:23] Speaker 04:
Sure.

[00:32:23] Speaker 04:
I don't intend to.

[00:32:25] Speaker 02:
Let me just be clear here.

[00:32:28] Speaker 02:
The district court said, if you have initials and streets, isn't that enough?

[00:32:35] Speaker 02:
And on appeal, Kitchener's argument is that it needs a full name and address in order to determine whether the agency

[00:32:55] Speaker 02:
has fulfilled its obligation under the statute, which it has delegated to the pipeline to give notice, I'm going to say timely notice to property owners.

[00:33:12] Speaker 02:
So what I'm trying to understand here is how you're reading FERC's obligation under FOIA.

[00:33:25] Speaker 02:
In other words, does it just turn over what it has subject to invoking one of the exemptions?

[00:33:35] Speaker 02:
And then the burden is on the requesting party to point out what the deficiencies are, come back to FERC.

[00:33:47] Speaker 02:
And if FERC rejects their further arguments, then it comes into court.

[00:33:53] Speaker 02:
And when it comes into court and we look at the statutory obligation of the agency to disclose subject to these exemptions, what is our obligation?

[00:34:11] Speaker 02:
In other words, there have been cases in this court where this court has gone through boxes of documents to figure out what's going on.

[00:34:19] Speaker 02:
But for the reasons Judge Tatel alluded to earlier,

[00:34:23] Speaker 02:
Normally we would send that kind of inquiry back to the district court.

[00:34:29] Speaker 02:
But what is your understanding where the burden is here?

[00:34:37] Speaker 02:
That's what I'm trying to understand.

[00:34:38] Speaker 02:
The statute puts the burden on the agency.

[00:34:42] Speaker 02:
Then whoever doesn't get the information it wants can sue.

[00:34:50] Speaker 02:
I mean, I'm taking out a lot

[00:34:52] Speaker 02:
administrative steps, and then you get to court and what happens?

[00:35:01] Speaker 04:
A few points, Your Honor.

[00:35:03] Speaker 04:
So first of all, I've seen a lot of FOIA litigation, and frankly I think a lot of FOIA litigation could be avoided if

[00:35:14] Speaker 04:
both parties, the government and agents and requesters were able to interact more effectively during the administrative process, because I think a lot of questions can be resolved without needing to burden the courts.

[00:35:28] Speaker 03:
That's a really interesting point.

[00:35:30] Speaker 02:
And I think this court has acknowledged that.

[00:35:32] Speaker 02:
And to me, that was somewhat what the district court was suggesting.

[00:35:39] Speaker 04:
Right.

[00:35:40] Speaker 04:
And I, again,

[00:35:43] Speaker 04:
FERC believes that its original response was actually the proper way of balancing in light of Supreme Court precedent and precedent of this court that has emphasized that when we are talking about mailing lists or lists of hundreds of citizens, particularly those who have done nothing of their own volition to wind up in those government files, that agencies need to be

[00:36:09] Speaker 04:
very, very, very protective of those citizens' privacy rights.

[00:36:13] Speaker 04:
And so that's why FERC did what it did initially, which was to provide corporate landowners, but not to provide persons, because the Supreme Court's Exemption Six Jurisprudence talks about protecting persons' privacy.

[00:36:29] Speaker 02:
So the pushback is, well, that's just great, but I've lost my property.

[00:36:37] Speaker 02:
I am an individual landowner.

[00:36:40] Speaker 02:
I didn't have notice.

[00:36:41] Speaker 02:
I didn't timely seek administrative review.

[00:36:45] Speaker 02:
And then I couldn't get into court either.

[00:36:48] Speaker 02:
So it's all very well for the agency to take that position.

[00:36:52] Speaker 02:
But I'm trying to understand where are we when we get to court.

[00:36:59] Speaker 04:
Well, in terms of whether or not somebody has the right to challenge the taking or to challenge the remuneration for the taking, the precedents that we cited at the tail end of our brief make very clear that so long as someone has the opportunity to question the

[00:37:21] Speaker 04:
amount that they're being paid, whether that's proper, that that is what the Supreme Court has said is sufficient.

[00:37:27] Speaker 04:
So, but I know this case is not about takings.

[00:37:30] Speaker 04:
The case is about whether or not FERC has provided the requisite notice acting through the pipeline applicant.

[00:37:38] Speaker 02:
No, because that's like step two, right?

[00:37:40] Speaker 02:
Takings, you know.

[00:37:42] Speaker 04:
Right.

[00:37:43] Speaker 04:
Those are, those are policy arguments that, you know, frankly, if, if NISCAN individual landowner isn't going to get 100% of value, at least that's what

[00:37:51] Speaker 02:
individual landowners.

[00:37:52] Speaker 02:
So take me back just so I understand here what's happening, because on one ground you can say, look, misconsider already has information that there were property owners who did not receive timely notice.

[00:38:10] Speaker 02:
All right, so they lost all these administrative opportunities.

[00:38:18] Speaker 02:
In terms of-

[00:38:22] Speaker 02:
Congress have in mind, we want to know how agencies are functioning.

[00:38:31] Speaker 02:
And they have to reveal enough.

[00:38:33] Speaker 02:
And so if the agency keeps invoking exemptions, so we can't understand what it's doing.

[00:38:40] Speaker 02:
That's not consistent with what Congress had in mind.

[00:38:46] Speaker 02:
And so the burden is on the agency to apply these

[00:38:51] Speaker 02:
exemptions with great care and indeed there's a fight as to whether to be interpreted narrowly, but the point is they are exceptions to the disclosure requirements.

[00:39:05] Speaker 04:
Your honor, can I make a global point about FOIA litigation?

[00:39:09] Speaker 04:
Because this is something which, as somebody who's been practicing in this area for perhaps too many years, it pains me sometimes.

[00:39:17] Speaker 04:
Because in litigation, we understandably look at the parties who are before us, right?

[00:39:21] Speaker 04:
And we hear the arguments that are well advocated by those parties.

[00:39:27] Speaker 04:
Agencies are charged

[00:39:31] Speaker 04:
with protecting the public interest broadly right and i'm always afraid of the silent absentee parties in this case we're talking about literally thousands of citizens whose names could be turned over.

[00:39:45] Speaker 04:
By.

[00:39:49] Speaker 04:
pursuant to a request to anyone, right?

[00:39:51] Speaker 04:
And Niskanen Center disclaims wanting to do anything nefarious with these lists, but if they're turned over to Niskanen, they will be turned over to literally anyone who requests them next.

[00:40:00] Speaker 04:
And that could be somebody who realizes, I mean, it's easy to figure out where the pipeline is supposed to go.

[00:40:05] Speaker 04:
And maybe I have a business in one of the affected counties and I'm like, oh, I can plug some holes in my mailing list.

[00:40:11] Speaker 04:
Let's get the list that was given to Niskanen.

[00:40:14] Speaker 04:
There's literally, once this list goes out,

[00:40:16] Speaker 04:
There will be nothing that FERC can do to withhold the list from any other requester.

[00:40:21] Speaker 00:
When you said that you can figure out where the pipeline would go, I wondered about that.

[00:40:26] Speaker 00:
Does the pipeline publicly disclose the route?

[00:40:30] Speaker 04:
It does.

[00:40:31] Speaker 04:
It does.

[00:40:31] Speaker 04:
And it's part of the regulatory proceeding.

[00:40:33] Speaker 04:
In fact, last night, you know, in last minute preparation for this argument.

[00:40:38] Speaker 04:
I took one more look.

[00:40:39] Speaker 04:
And if you literally look on Wikipedia for Atlantic Coast pipeline, there's a handy Dan or maybe it wasn't Wikipedia with some website.

[00:40:46] Speaker 04:
It's very easy.

[00:40:47] Speaker 04:
Your first list of results for a Google image search will show you

[00:40:51] Speaker 04:
with great detail.

[00:40:52] Speaker 00:
And you're talking about the privacy interests of the individuals.

[00:40:57] Speaker 00:
I just wondered, I asked the council for the petitioner here.

[00:41:03] Speaker 00:
All this information is readily available.

[00:41:06] Speaker 00:
If you have the route of the pipeline,

[00:41:08] Speaker 00:
can get on your computer and get onto the state tax records and pull all the names and addresses up pretty easily, I think.

[00:41:19] Speaker 00:
And that's probably what the pipeline did.

[00:41:21] Speaker 00:
They didn't have people tramping around in the woods looking for evidence of who owned the property.

[00:41:27] Speaker 00:
They did it on the internet.

[00:41:29] Speaker 00:
So why is that information so

[00:41:32] Speaker 00:
I think of privacy as seclusion.

[00:41:38] Speaker 00:
And I also think of privacy of keeping personal information secret.

[00:41:43] Speaker 00:
But this information is not secret.

[00:41:48] Speaker 04:
Your honor, the agency is doing its best to abide by

[00:41:56] Speaker 04:
precedents of this court in the Supreme Court, and in Horner, in Reporters Committee for Freedom of the Press, in Schrecker, which talks about the incremental value of the additional information, in Judicial Watch, which talks about withholding names and addresses of people that's the decision of this court from 2006, of people who sort of were touched in any way the development of a drug related to abortion.

[00:42:20] Speaker 04:
You know, there are many, many, many cases that say that.

[00:42:25] Speaker 00:
What does it tell you?

[00:42:26] Speaker 00:
Well, let me just back up.

[00:42:27] Speaker 00:
And Horner, Judge Ginsburg talked about it's not just the name and address.

[00:42:33] Speaker 00:
It's because of the particular other defining characteristic.

[00:42:38] Speaker 00:
And so what is the defining characteristic of the people who own property on an abandoned plant for a pipeline?

[00:42:48] Speaker 00:
What is the defining characteristic there?

[00:42:51] Speaker 04:
that they're affluent enough to own land in the affected counties.

[00:42:56] Speaker 04:
It's not negligible that somebody who owns land as opposed to somebody who's a renter or a transient living in that area is affluent enough to own property.

[00:43:11] Speaker 04:
And that's something which would be potentially of interest to local companies that want to market in that area.

[00:43:19] Speaker 00:
Yeah, so all they do is get on the internet and check the tax returns.

[00:43:25] Speaker 02:
Anything further that you'd like to share with the court?

[00:43:28] Speaker 03:
I just have one more question, if that's OK.

[00:43:30] Speaker 03:
Yes.

[00:43:32] Speaker 03:
I was really intrigued with your point about FOIA litigation generally, and that everybody would be better served if there was more conversation between the FOIA requester and the agency.

[00:43:47] Speaker 03:
You do a lot of FOIA.

[00:43:49] Speaker 03:
work.

[00:43:50] Speaker 03:
And we see a lot of four year cases.

[00:43:52] Speaker 03:
Why do you think that that doesn't occur?

[00:43:59] Speaker 04:
I think the I'm not going to Well, the statute has, unfortunately, aspirational, but largely unattainable deadlines built into it.

[00:44:14] Speaker 04:
But nonetheless, there is a

[00:44:17] Speaker 04:
There are a number of incentives for requesters to rush to court, as opposed to really having the patience, which I believe a number of the statutory amendments to the FOIA have really been aimed towards

[00:44:32] Speaker 04:
encouraging, including, you know, it's over a decade ago, they created the FOIA ombuds person at the National Archives, every agency has to have a FOIA ombuds person, and Congress deliberately, I believe, created those resources in order to try and facilitate additional administrative

[00:44:56] Speaker 04:
ways to enable people to get the information they want.

[00:45:00] Speaker 04:
In this case, the record shows that Niskanen filed suit

[00:45:06] Speaker 04:
basically the moment that it believed that its administrative appeal was right.

[00:45:10] Speaker 04:
It was, in the agency's view, wrong because the agency had, in fact, exercised its right under the statute, although Niskin hadn't gotten word yet because they filed it on day one when they concluded they were eligible, to extend the response deadline to the administrative appeal by 10 days.

[00:45:28] Speaker 04:
In fact, FERC did respond within those 10 days.

[00:45:32] Speaker 04:
We have not had

[00:45:34] Speaker 04:
a response in this litigation.

[00:45:35] Speaker 04:
And so therefore the court needn't reach it about whether or not, sorry.

[00:45:39] Speaker 03:
I just want to be sure I understand.

[00:45:42] Speaker 03:
And I realize we're going off a little bit, but I think your point was so interesting about four A cases.

[00:45:46] Speaker 03:
So in this case, they went to court, Miskadon went to court before they had any response from FERC at all.

[00:45:53] Speaker 04:
No, they had an initial response.

[00:45:57] Speaker 04:
And then they filed an administrative appeal.

[00:45:59] Speaker 03:
Okay.

[00:46:00] Speaker 04:
And you're allowed 20 days to respond to administrative appeal, but that's subject to a 10 day extension.

[00:46:06] Speaker 04:
Right.

[00:46:07] Speaker 04:
And they filed on either the 20th or the 21st day, I assume.

[00:46:10] Speaker 03:
Was there anything in FERC's responses that would have suggested to the plaintiffs that discussions might have been fruitful?

[00:46:23] Speaker 04:
Frankly, I think that they'll tell you no, but I will tell you based upon my experience seeing a lot of different FOIA cases that there are reasons to

[00:46:40] Speaker 04:
even where you get an unsuccessful response through the FOIA administrative process to make additional efforts by reaching out, for instance, to the agency FOIA ombuds person or to the NARA, I think it's called the Office of Government Information.

[00:46:55] Speaker 04:
But I mean, frankly, I know the woman who heads that up or at least she used to head it up.

[00:47:00] Speaker 04:
I don't know if she's still doing so.

[00:47:02] Speaker 04:
She's an amazing person and truly believes in facilitating access to government information as proper.

[00:47:10] Speaker 04:
And I think those are resources that are used far too little.

[00:47:15] Speaker 03:
OK, last question, I promise.

[00:47:16] Speaker 03:
And again, I'm asking you this as a lawyer who handles a lot of these cases.

[00:47:22] Speaker 03:
The district court and our court have mediation programs.

[00:47:24] Speaker 03:
Do you have any experience with our FOIA cases?

[00:47:30] Speaker 03:
Do FOIA cases ever get mediated in those programs?

[00:47:32] Speaker 03:
And if so, what's your sense of what's happening?

[00:47:37] Speaker 03:
I mean, here we have a case where the district court did the mediation in courtroom, right?

[00:47:41] Speaker 03:
But what's your experience been with, do you have any with whether or not our mediation programs, either court have played a role in FOIA cases?

[00:47:52] Speaker 04:
Yes, I do.

[00:47:53] Speaker 04:
And I'm incredibly impressed by the efforts of the mediation program.

[00:47:58] Speaker 04:
Just within the last week, I've been engaged in extensive discussions with the mediation program about a different FOIA lawsuit.

[00:48:07] Speaker 02:
Well, let me interrupt and say the court is not supposed to know what's going on.

[00:48:10] Speaker 04:
I'm simply, I'm not, I'm not going to comment on the substance of those.

[00:48:15] Speaker 04:
I'm simply responding to Judge Tatel that yes, I think the mediation program is interested in these kinds of lawsuits and is making genuine efforts.

[00:48:23] Speaker 02:
What I'm trying to focus on here is just proving Congress passes a statute and years, Congress passes the FOIA statute.

[00:48:33] Speaker 02:
For years, the agencies resisted

[00:48:37] Speaker 02:
are I turning over materials?

[00:48:38] Speaker 02:
And then this court had a series of opinions saying, no, agencies had this obligation.

[00:48:45] Speaker 02:
And then the agency started to create the FOIA offices and we got responsive.

[00:48:50] Speaker 02:
And we've all been on cases where the agency has responded and the court has sent it back saying the agency needs to give a further response or something to that effect.

[00:49:01] Speaker 02:
But from the point of view of the requester, the statute

[00:49:05] Speaker 02:
does provide these incentives not to miss your filing deadline either administratively or in court.

[00:49:13] Speaker 02:
So that is a problem.

[00:49:14] Speaker 02:
So that's what I understood the district court was trying to fill in a vacuum as it were.

[00:49:20] Speaker 02:
So you have a requesting party here who is not as I read the record amenable to that type of negotiation.

[00:49:33] Speaker 02:
And it's looking at the statute

[00:49:35] Speaker 02:
and it's requiring that in its view, it's entitled to this information and that the invocation of the exemption is improper.

[00:49:51] Speaker 02:
So that's the issue before this court, isn't it?

[00:49:57] Speaker 04:
Yes, Your Honor.

[00:50:00] Speaker 04:
You know, I would quibble a little bit.

[00:50:03] Speaker 04:
Certainly, there are statutory deadlines.

[00:50:04] Speaker 04:
But you have six years, if memory serves, to bring a FOIA lawsuit if there's no response.

[00:50:12] Speaker 02:
So if there's any reason to rush to court.

[00:50:17] Speaker 02:
In any event, there are other statutes of limitations that kick in.

[00:50:24] Speaker 02:
So I understand your point about a better way to do this.

[00:50:28] Speaker 02:
I understand why litigants come to court and sometimes the court will send it back.

[00:50:36] Speaker 02:
It didn't happen where the court decided it would try to negotiate this itself.

[00:50:40] Speaker 02:
That didn't work.

[00:50:41] Speaker 02:
So now they're before this court.

[00:50:47] Speaker 02:
And you take the position, as I understand it, that the agency properly invoked the exemption and that's the end of the matter as far as this appeal is concerned.

[00:51:02] Speaker 04:
That's right.

[00:51:03] Speaker 04:
The agency is trying, frankly, Your Honor, if the agency wasn't trying to adhere to the multiple precedents from this court and the Supreme Court that have talked about the importance of safeguarding private citizens information that's been assembled in government records through no act of the individual citizens,

[00:51:30] Speaker 04:
it would probably be easier for the agency to stop fighting and just hand over all the information.

[00:51:35] Speaker 04:
But the agency has an obligation to the public, not just to Niskanen Center that is the plaintiff in the suit, to try and both follow the law as it understands it and to protect the public, which is ultimately Congress's

[00:51:53] Speaker 04:
fundamental purpose, and that's been recognized by multiple Exemption 6 cases going back to the 1970s when it was a brand new exemption.

[00:52:02] Speaker 02:
So even where NISC could not prevail on appeal, it still has several avenues open to it, including petitioning the agency for a new rulemaking, challenging the application of the rule, et cetera.

[00:52:20] Speaker 02:
but we're getting far for you.

[00:52:22] Speaker 02:
So, Judge Randolph, any questions?

[00:52:25] Speaker 02:
No.

[00:52:25] Speaker 02:
Thank you.

[00:52:26] Speaker 02:
Thank you, counsel.

[00:52:27] Speaker 04:
Thank you.

[00:52:29] Speaker 02:
All right.

[00:52:30] Speaker 01:
So, counsel for Pellin.

[00:52:36] Speaker 01:
Yes, thank you, your honor.

[00:52:38] Speaker 01:
And just to respond briefly to some of

[00:52:41] Speaker 01:
the points made by FERC's council.

[00:52:44] Speaker 01:
FERC is arguing here for essentially a categorical exclusion for lists of names and addresses.

[00:52:53] Speaker 01:
And the FOIA statute in exemption six, namely, does not contemplate the disclosure of such lists as always and inherently being a significant threat to the privacy of individuals on this list.

[00:53:07] Speaker 01:
And I would also like to note for the court's own knowledge that other such FOIA requests have been made and other cases and FERC has never disclosed landowner lists without a lawsuit.

[00:53:22] Speaker 02:
Let's not get outside the record anymore that we already have.

[00:53:26] Speaker 01:
Yes, of course, Your Honor.

[00:53:29] Speaker 01:
The second point that I'd like to make and really hammer home is that the importance of this initial notice cannot be overseen.

[00:53:38] Speaker 01:
The Natural Gas Act provides the sole avenue of relief for landowners aggrieved by FERC orders.

[00:53:46] Speaker 01:
And under this- I don't think that's a dispute here, with all due respect.

[00:53:53] Speaker 02:
Well, wonderful, Your Honor.

[00:53:54] Speaker 02:
I just- Seriously.

[00:53:56] Speaker 02:
Yes.

[00:53:56] Speaker 02:
Yeah.

[00:53:57] Speaker 02:
I think- Own property, you want to be notified in time so that you have a chance to protect your property interest.

[00:54:04] Speaker 02:
Absolutely, Your Honor.

[00:54:05] Speaker 02:
But there was- And so I thought the petitioner here was arguing, we want to be certain that property owners get the notice to which they are entitled.

[00:54:16] Speaker 02:
So you know already that not everybody receives

[00:54:22] Speaker 02:
the notice you think they're entitled to.

[00:54:26] Speaker 02:
Your position is no compromise in getting full name, full address.

[00:54:38] Speaker 02:
And to the extent that other avenues are available to you to get this information, not your problem.

[00:54:47] Speaker 01:
Isn't that your position before this court?

[00:54:50] Speaker 01:
No, Your Honor.

[00:54:51] Speaker 01:
If there was an avenue in which we could do the comparative or chronological.

[00:54:54] Speaker 02:
Well, you heard your responses to Judge Randolph were to the contrary.

[00:54:59] Speaker 02:
He pointed out several areas that are public now where you could get this information.

[00:55:06] Speaker 01:
But that wouldn't tell us what was on the Atlantic Coast Pipeline and by default.

[00:55:12] Speaker 01:
It would not tell you what

[00:55:14] Speaker 01:
It would not tell us whether or not FERC sent notice to those individual landowners.

[00:55:18] Speaker 02:
No, but you would know who the property owner was.

[00:55:21] Speaker 02:
You could check the list that had been filed by the pipeline with the agency to see if they were listed.

[00:55:29] Speaker 02:
If they're not, you have your information.

[00:55:34] Speaker 01:
Your honor, I'm afraid I don't follow your solution because how would we, a number of these lists include PO boxes.

[00:55:41] Speaker 01:
They don't include track numbers.

[00:55:43] Speaker 01:
You know, there are PO boxes.

[00:55:44] Speaker 02:
That's what you're telling me.

[00:55:45] Speaker 02:
But in response to your questions to Judge Randolph, who was saying track numbers provide you additional information, that was not your response.

[00:55:56] Speaker 02:
You just rejected that as an avenue that you and any of your organizations

[00:56:03] Speaker 02:
was in any way obligated to pursue.

[00:56:06] Speaker 01:
Your honor, I don't see how we could fulfill the public interest in seeing whether or not the agency is listing a majority, at the very least a majority of all.

[00:56:18] Speaker 02:
Well, we've been down this road already.

[00:56:20] Speaker 02:
All right, and discussions with the district court as well.

[00:56:24] Speaker 02:
Did I hear another judge have a question?

[00:56:27] Speaker 03:
Yeah, I just wanted to ask Ms.

[00:56:28] Speaker 03:
Gibson about whether I understood her point about

[00:56:33] Speaker 03:
unavailable on the land on the list.

[00:56:36] Speaker 03:
Did I get that right or not?

[00:56:40] Speaker 01:
Yes.

[00:56:40] Speaker 01:
So there is actually a FERC regulation of 18 section 157.6.6D4 through five.

[00:56:52] Speaker 01:
And one male, for example, is returned as undeliverable when sending out these notices.

[00:56:59] Speaker 01:
the ACP was required to submit that information, noting that those people were quote, unavailable.

[00:57:05] Speaker 03:
So those- I'm sorry, who required to be submitted?

[00:57:09] Speaker 01:
A FERC requires the pipeline to indicate whether or not on these lists, whether or not a landowner, their address is unavailable or mail was returned to them as undelivered.

[00:57:25] Speaker 03:
And your point is that

[00:57:27] Speaker 03:
the unredacted list shows no unavailables, correct?

[00:57:33] Speaker 03:
I'm sorry, the redacted list, excuse me, shows no unavailables, correct?

[00:57:40] Speaker 01:
Correct, Your Honor.

[00:57:41] Speaker 03:
And so you're suspicious, right, that there are, that there may be on the unredacted list unavailable

[00:57:53] Speaker 03:
that you don't know about, and you think that that could suggest that people aren't getting noticed, correct?

[00:58:01] Speaker 03:
Absolutely, Your Honor, correct.

[00:58:03] Speaker 03:
Judge Rogers, when Ms.

[00:58:04] Speaker 03:
Gibson is finished with her rebuttal, would you mind asking counsel for further, whether you got an email response to his email?

[00:58:11] Speaker 02:
Of course.

[00:58:11] Speaker 02:
Anything further, Judge Randall?

[00:58:15] Speaker 00:
No.

[00:58:15] Speaker 02:
All right.

[00:58:17] Speaker 02:
Thank you, counsel.

[00:58:19] Speaker 02:
All right.

[00:58:21] Speaker 02:
Council for Appellee, have you received a response to your email to FERC?

[00:58:26] Speaker 04:
I have, Your Honor.

[00:58:28] Speaker 02:
Would you like to share it to us or read it and then submit it as part of the record in this appeal?

[00:58:36] Speaker 04:
If you'd like, it's very short.

[00:58:38] Speaker 04:
I can simply tell it to you.

[00:58:39] Speaker 04:
I'm dying of curiosity.

[00:58:41] Speaker 02:
I want to release in the record for this case because Council for Appellant is entitled to see what was said.

[00:58:49] Speaker 04:
And I have no problem if she wants to respond to what I'm about to say because I know she's looked at the record extensively.

[00:58:55] Speaker 04:
It says, if there are blanks, and we see the blanks for, for some, for some cases, Niskanen would be able to see that there's a blank because there wouldn't be a corresponding redaction.

[00:59:12] Speaker 04:
So, for instance, in the case of an error there may be no address provided and there's a blank because we don't know who the error is.

[00:59:20] Speaker 03:
So, anyway, okay, just explain that I'm sorry but like you saw, I've now got the redacted list and food.

[00:59:30] Speaker 03:
Now, what are you going to tell me?

[00:59:31] Speaker 03:
What's in the redacted list?

[00:59:33] Speaker 04:
And I don't have the redacted list open currently during argument, but I could try.

[00:59:37] Speaker 04:
But what I've been told, sorry, Your Honor, is that there are blanks.

[00:59:46] Speaker 04:
And Niskanen should be able to see those blanks in the list, because there's nothing to redact if there's no corresponding address.

[00:59:57] Speaker 02:
All right.

[00:59:57] Speaker 02:
Thank you.

[00:59:58] Speaker 02:
Let the court.

[00:59:59] Speaker 02:
take the case under advisement.