[00:00:01] Speaker 00: Case number 20-5091, Reporters' Comedy for Freedom of the Press and Associated Press at Balance versus Federal Bureau of Investigation and United States Department of Justice. [00:00:12] Speaker 00: Ms. [00:00:13] Speaker 00: Townsend for the at balance. [00:00:14] Speaker 00: Mr. Buso for the at police. [00:00:17] Speaker 02: Ms. [00:00:18] Speaker 02: Townsend. [00:00:19] Speaker 01: Thank you, Your Honor. [00:00:20] Speaker 01: May it please the court? [00:00:21] Speaker 01: As you know, there are two issues presented in this appeal. [00:00:24] Speaker 01: First, whether the FBI has met its burden to demonstrate that the records that has been held in whole or in part pursuant to Exemption 5 fall within the scope of the deliberative process privilege. [00:00:34] Speaker 01: And second, whether the FBI has met its burden to demonstrate that it is reasonably foreseeable, that harm to an interest the deliberative process privileges intended to protect would result from disclosure of that material. [00:00:45] Speaker 01: Because the district court's grant of summary judgment to defendants should be reversed on either ground, I'll start your honors by addressing the second issue and I'll come back to the first during the course of my argument. [00:00:57] Speaker 01: Contrary to defendants arguments, the foreseeable harm provision that Congress added to FOIA in 2016 made a consequential [00:01:04] Speaker 01: meaningful change to the act. [00:01:06] Speaker 01: Now, under FOIA's plain language, where disclosure is not prohibited by law, agencies are required to disclose records under FOIA even if they fall within the scope of an exemption, unless the agency can demonstrate that it reasonably foresees that disclosure would harm an interest protected by an exemption. [00:01:25] Speaker 01: That means in the litigation context, an agency must demonstrate in a manner [00:01:29] Speaker 01: sufficient for the court to conduct an overview, not only that exemption five applies, but that it's reasonably foreseeable that disclosure of the specific exempt material that the agency seeks to withhold would harm an interest that exemption five is intended to protect. [00:01:44] Speaker 03: Ms. [00:01:44] Speaker 03: Townsend, let me ask some questions about what you just said. [00:01:48] Speaker 03: In the court's Machado opinion, it describes a government affidavit on a four-year request [00:01:59] Speaker 03: The affidavit says that disclosure would discourage attorneys from candidly discussing their ideas, strategies, and recommendations, thus impairing the forthright internal discussions necessary for efficient and proper adjudication of administrative appeals. [00:02:16] Speaker 03: And that was enough. [00:02:19] Speaker 03: So applying that standard to the facts of our case, what more do you think [00:02:29] Speaker 03: the government needed to do here that it didn't do here. [00:02:35] Speaker 01: And I think, Your Honor, that Judge Katz's opinion in Machado Amadas, it's distinguishable. [00:02:39] Speaker 01: It's very instructive in the way that it's distinguishable. [00:02:42] Speaker 01: At issue in that case was one type of record. [00:02:45] Speaker 03: Here, we're dealing with multiple different types of records, including... Let me pause there, because that is part of my question is, [00:02:57] Speaker 03: whatever the government needs to do for category one in our case, if that same explanation applies to categories two through six, is it okay for the government to repeat its exact words and simply copy and paste what was good enough for category one and then say for category two the same thing and for three and then four and then six? [00:03:20] Speaker 01: So let me answer that. [00:03:22] Speaker 01: I have two points to make in response to that, Your Honor. [00:03:24] Speaker 01: First, I think, and I'm not trying to dodge the question, but I will say it depends on the nature of the specific documents at issue. [00:03:31] Speaker 03: We can talk, I can- That's actually helpful though. [00:03:34] Speaker 03: Can you just make sure I'm clear on this? [00:03:35] Speaker 03: So there are occasions where that would be enough. [00:03:39] Speaker 01: I think, and I think I'd like to talk a little bit more about Machado Amadas, because I think it's helpful to exactly this point, because the opinion- Can you just help me with the clarification? [00:03:48] Speaker 03: I'm trying to understand what you answered before. [00:03:51] Speaker 03: that there are occasions where it would be enough to copy and paste. [00:03:56] Speaker 01: I think it's not a question of copying and pasting. [00:03:59] Speaker 01: It's a question of whether or not the harm that's being identified by the government is tied specifically to the types of records at issue. [00:04:09] Speaker 01: So if you have records that are very similar, sure, you could cite the same harm, but you have to tie that harm and actually explain how the harm to be protected by the deliberative process privilege, which is [00:04:20] Speaker 01: the quality of agency decision making, how that applies in that given context. [00:04:26] Speaker 01: And that's not what we saw here. [00:04:27] Speaker 01: And I would point your honors to the Waller declaration, for example. [00:04:32] Speaker 01: There's one paragraph, that's paragraph 20. [00:04:33] Speaker 02: Sorry, can I back up for a second? [00:04:36] Speaker 01: Of course, Ron. [00:04:38] Speaker 02: The copy and paste thing is maybe not the best language for this foreseeable harm exception because [00:04:47] Speaker 02: I just want to make sure I understand what your answer is. [00:04:50] Speaker 02: My understanding is that they're required to make a particularized judgment. [00:04:57] Speaker 02: The ultimate harm when they make that judgment and they particularize it to a document or a group of the same category of documents, as long as they've made that particularized judgment and the harm is laid out in detail to the deliberate process privilege and they may not have [00:05:16] Speaker 02: It could end up being the same words, but they can't just cut and paste. [00:05:21] Speaker 02: They've got to make the individualized judgment each time. [00:05:26] Speaker 02: And as it happens for some types of privileges, the type of harm is likely to be described in similar words. [00:05:34] Speaker 02: Words, is that what you were saying? [00:05:36] Speaker 01: That's correct, your honor, and I apologize if I wasn't clear and responding to today. [00:05:42] Speaker 01: It is a particular I showing tied to The specific nature, the specific records that the agency is withholding it. [00:05:49] Speaker 01: And yes, there are only a few purposes that this court has identified that are served by the deliberative process privilege so [00:05:56] Speaker 01: So, of course the agency is going to be referring to specific those specific purposes, I think, with respect to different kinds of documents but what it can't do and I think what it has done here is name all the purposes that the deliberative process privileges may serve. [00:06:13] Speaker 01: protecting the candid nature of a subordinates communications to a senior decision maker, for example, confusion to the public, all of those that have been applied by this court in different circumstances and say, these are all the purposes that the privilege serves. [00:06:30] Speaker 01: And we're going to withhold all of these different kinds of documents because one or more of those purposes may be undermined if we disclose one or more of these documents. [00:06:41] Speaker 01: And I think if you look at the materials that were released mid appeal by the government in this case after our opening brief was filed, you can see examples where this just completely breaks down. [00:06:53] Speaker 01: And I was pointing to the provision in the Waller Declaration paragraph 20, which is really this umbrella paragraph that really [00:07:01] Speaker 01: speaks in very general terms about the purported harm that would flow from disclosure and so I'll jump to the middle of that paragraph but it effectively says to require disclosure of the withheld information would prevent OIG from engaging in meaningful documented discussion about policy matters in the future, [00:07:17] Speaker 01: which could have a negative effect on agency decision-making and would potentially confuse the public about the reasons for the OIG's actions in this matter. [00:07:28] Speaker 01: It would also reveal the thought and decision-making processes of the OIG and may not reflect the agency's decisions." [00:07:34] Speaker 01: So that rationale was proffered by OIG with respect to multiple different types of documents [00:07:41] Speaker 01: including documents we now know, if you look at Joint Appendix 494, which is one of the documents that was withheld in part previously, released in full during the course of this appeal, the agency proffered that rationale to withhold a single sentence, completely factual in nature, that indicated that the OIG had provided a draft report to the FBI at one point. [00:08:06] Speaker 01: And so I think this is why there were, and I think at this stage we would say there's nothing deliberative. [00:08:13] Speaker 01: There's certainly nothing pre-decisional about that document. [00:08:15] Speaker 01: That's the memoranda that was attached to the final OIG report. [00:08:19] Speaker 01: There's certainly nothing deliberative about it. [00:08:21] Speaker 01: And the notion that any harm to the agencies, the quality of the agency decision-making process, which again is what the deliberative process privilege is designed to protect, is, [00:08:32] Speaker 01: untenable, any argument on the part of the government would be untenable. [00:08:35] Speaker 01: And I think that's why they released it and hit appeal. [00:08:38] Speaker 01: But I also think it illustrates the fundamental lack of sufficiency of the agency showing on appeal. [00:08:45] Speaker 01: And just to point, I'm sorry, go ahead, Your Honor, Judge Katz. [00:08:50] Speaker 04: Isn't it fair to think that the robustness of the necessary explanation on foreseeable harm [00:09:01] Speaker 04: sort of would depend on the category, would depend on the sensitivity of the documents we're talking about, right? [00:09:09] Speaker 04: If someone makes a FOIA request for the nuclear launch codes, you wouldn't need a really long explanation on foreseeable harm, right? [00:09:19] Speaker 04: So that principle helps you on many of these categories, but let me press you on one that seems to me a harder one for you, which is the Comey emails. [00:09:33] Speaker 04: You know from context that [00:09:38] Speaker 04: The agency has this problem on its hands. [00:09:43] Speaker 04: It's significant enough that the director of the agency feels like he has to write to the New York Times, which doesn't really happen every day. [00:09:54] Speaker 04: Sensitive subject matter, PR debacle. [00:10:01] Speaker 04: I mean, isn't it pretty obvious from the context that [00:10:06] Speaker 04: Deliberations with regard to that kind of document implicate the interests of the privilege and their release would harm the interests that the privilege protects. [00:10:23] Speaker 01: I would say no, Your Honor. [00:10:24] Speaker 01: I think not all discussions are deliberative. [00:10:30] Speaker 01: Sometimes decisions are made without deliberation. [00:10:32] Speaker 01: And I think that's one of the reasons why this court's case law indicates that you look to where in the chain of command the communications are coming [00:10:40] Speaker 01: from and where they're going. [00:10:42] Speaker 01: And when we're talking about former director Comey's communications to people who work for him, we don't know what those communications say because they've been redacted, but it's very reasonable to think on the face of those documents and particularly without any additional showing that what former director Comey is doing is explaining a decision he's made or directing someone who's a subordinate to him to carry out his [00:11:05] Speaker 01: his instructions. [00:11:07] Speaker 01: And so I think that that's why the application of the deliberative process privilege itself is very fact-specific. [00:11:13] Speaker 01: And as you noted, Judge Katz, I think it's correct to say that the showing that the agency makes with respect to the application of deliberative process privilege is also interrelated with the foreseeable harm analysis. [00:11:33] Speaker 04: I thought it was pretty clear. [00:11:34] Speaker 04: I'll go back and look at the documents, but I thought it was pretty clear that he was providing comments on a draft letter. [00:11:46] Speaker 01: It may be clear to you, Your Honor, it was not clear to us. [00:11:48] Speaker 01: It appears that he is providing information or direction, again, that's redacted in redacted form to subordinates, which, again, is relevant. [00:11:56] Speaker 01: And I think it also goes to the foreseeable harm question, because even if the document is deliberative, even if it's pretty simple. [00:12:03] Speaker 02: Is that inconsistent if Gikomi is providing comments on a draft letter [00:12:14] Speaker 02: and you're saying, well, it looks like he was providing directions to a subordinate, but if the directions are, make these edits to the draft letter, you're both the same in the description, but the one seems more squarely within the deliberate process privilege, right? [00:12:31] Speaker 02: If the directions are, let's make these changes before we announce this position, that would definitely still be protected. [00:12:42] Speaker 01: I would think, Your Honor, that it depends on the context, but it could be that the decision is already made and that Judge Comey is, or Judge Comey, excuse me, former Director Comey is just instructing his subordinate on what the decision is he has made. [00:12:56] Speaker 01: And again, because that information is redacted, that's not clear. [00:13:01] Speaker 01: But again, I would agree in principle. [00:13:04] Speaker 06: Go ahead, Judge, please. [00:13:05] Speaker 01: I would agree in principle that there are certain types of material and this court has recognized this in coastal states, for example, that there are the class there's the classic case of the deliberative process at work, and that is a subordinate attorney for example, providing advice and I think this flows into. [00:13:25] Speaker 01: Judge Katz's decision of Machado Amadas, I think it's very consistent. [00:13:29] Speaker 01: There are certain types of decisions, lying attorneys, commentary to their senior attorneys, or providing legal advice on specific matters that's at the core of the deliberative process privilege. [00:13:39] Speaker 01: And perhaps the foreseeable harm showing is different or less rigorous than it must be for a situation where the records at issue [00:13:47] Speaker 01: are not the kind of decision that the deliberative or decision-making process, that the deliberative process privilege is really geared towards. [00:13:56] Speaker 01: What does our PowerPoint presentation, how should it be organized when all it does is repeat existing policy? [00:14:04] Speaker 01: And that is certainly what we've seen from the slides that were released at Joint Appendix 500 through 513, mid appeal. [00:14:11] Speaker 01: Publicly available information, how are we going to organize that for a PowerPoint presentation? [00:14:15] Speaker 01: That's not the kind of decision that the deliberative process privileges geared towards protecting. [00:14:20] Speaker 01: And the notion that the agency has to do more to demonstrate that harm will flow from disclosure of that information, I think, is common sense, quite frankly. [00:14:30] Speaker 01: But I think it's also consistent with this court's decisions, as well as the way that the foreseeable harm provision has been applied, not only in Machado Amadas by this court, but by the district courts as well. [00:14:40] Speaker 01: I see that I've run into my rebuttal time. [00:14:42] Speaker 02: Don't worry about that. [00:14:44] Speaker 02: Can I ask you a question on the documents as the communications as they're developing this editorial? [00:14:54] Speaker 02: How do you distinguish the Krikorian case? [00:14:58] Speaker 01: I think, I think that there's no case law that indicates that public that media strategy in and of itself sort of quote unquote media strategy documents in and of themselves are necessarily just by virtue of being media strategy are exempt from disclosure under the deliberative process privilege and I think if we look back at the. [00:15:17] Speaker 01: Pre foreseeable harm cases like coastal states and other cases that look at the that focus on it don't collapse the distinction between pre decisional and deliberative, you can see that and I do think that there is a strong distinction I think it is an important factor. [00:15:33] Speaker 01: that with respect to these documents, it is not a subordinate providing commentary, at least as far as we can tell, providing their independent candid advice to Director Comey about whether or not he should write a letter to the editor, write a letter to the editor of the New York Times, it is Director Comey telling his subordinates the decision [00:15:54] Speaker 01: that he has made. [00:15:56] Speaker 01: And so then the protect the harm of discouraging subordinates from providing candid advice to their superiors to aid in policymaking or decision making is just not implicated there. [00:16:09] Speaker 01: And so I do think it is different and it has to be looked at at a case by case basis. [00:16:13] Speaker 04: So you make a you make a fair point. [00:16:16] Speaker 04: And I have Machado very much in the back of my mind. [00:16:20] Speaker 04: You make a fair point that [00:16:23] Speaker 04: it could be different when the deliberation is running from the superior to the subordinate rather than vice versa. [00:16:35] Speaker 04: But even so, I mean, you could imagine a lot of circumstances where the component head is trying to figure out what to do. [00:16:46] Speaker 04: And of course he has the final [00:16:50] Speaker 04: decision making authority, but he wants to bounce ideas off of people. [00:16:55] Speaker 04: You could also imagine situation where he has made the decision to take the strongest case for you. [00:17:05] Speaker 04: And he says, take out the sentence that says X. And it turns out X is a really dumb idea. [00:17:11] Speaker 04: And it would be embarrassing if that proposal were disclosed. [00:17:18] Speaker 04: I mean, it doesn't seem all that different to me. [00:17:21] Speaker 04: This kind of thing from the category one documents from what we had in Machado. [00:17:30] Speaker 01: Well, what I'll say, Your Honor, is that we're not taking any kind of categorical position, actually, as to concerning whether or not there are specific types of documents that absolutely cannot be protected, subject either to the deliberative process privilege or that meet the foreseeable harm provision. [00:17:45] Speaker 01: Well, our position is the agency hasn't made that showing here. [00:17:48] Speaker 01: And I think if all and that they would be required to and perhaps they could on remand. [00:17:55] Speaker 04: I understand. [00:17:57] Speaker 04: Judge Walker opened by saying that the agency declaration in Machado was relatively short, but part of the reason for that might be that the sensitivity of those documents was pretty apparent and maybe the sensitivity of the Comey comments is similar in degree. [00:18:23] Speaker 04: That's all I'm saying. [00:18:26] Speaker 01: I will warn your honor that I think that the the court's conclusion in Machado Amadas, and I think this at least to my eyes well is is evident from the from the opinion itself is that. [00:18:38] Speaker 01: It was a certain specific type of documents so they're not multiple types of documents and they were what the court. [00:18:45] Speaker 01: what was consistent with what the court has found to be really at the core of the classic case, core deliberative process material, which may require not the same kind of showing that other material, including some of the material we're talking about here would require. [00:19:00] Speaker 02: Okay, thanks. [00:19:02] Speaker 02: My colleagues have any further questions? [00:19:05] Speaker 02: Ms. [00:19:05] Speaker 02: Townsend, we'll give you a couple minutes on rebuttal. [00:19:12] Speaker 02: Is it Busa or Busa? [00:19:14] Speaker 02: I apologize. [00:19:15] Speaker 05: Abusa, Your Honor. [00:19:18] Speaker 05: Good afternoon, and may it please the court, Joe Busa, on behalf of the federal government appellees. [00:19:24] Speaker 05: I'd like to start with what's occupied most of the discussion this morning, which is the second question presented here, and the requirement the agency reasonably foresee that harm would result from disclosure. [00:19:35] Speaker 05: And this requirement requires the agency to consider the specific information at issue in the case, Machado makes that clear, and then to link [00:19:47] Speaker 05: That conclusion to the interest protected by any given FOIA exemption. [00:19:53] Speaker 05: It doesn't narrow the types of interests protected by the FOIA exemption, nor does it raise the degree of harm required before the agency can withhold the information. [00:20:04] Speaker 02: It takes I just want to, I want to, I want to push a little bit on it. [00:20:09] Speaker 02: It struck me a little bit odd that Like, you know, you apply the FOIA exemptions for that and then [00:20:16] Speaker 02: we go apply this foreseeable harm thing when apart from the parts to which foreseeable harm does not apply. [00:20:23] Speaker 02: So say exemptions one and three generally foreclosed by law. [00:20:29] Speaker 02: It seems to me what the foreseeable harm did provision did was put into every other single, every other exemption, an additional prong, right? [00:20:38] Speaker 02: Cause you have to apply it to every exemption decision. [00:20:41] Speaker 02: So we should now understand the deliberative process privilege to [00:20:44] Speaker 02: have its usual elements. [00:20:46] Speaker 02: Plus, you must make this particularized document or document category judgment. [00:20:53] Speaker 02: And as we said in Machado, that the information would cause the harm protected by that privilege. [00:21:02] Speaker 02: And we know from FOIA that the difference between would and could is actually material between exemptions six and seven C, for example. [00:21:12] Speaker 02: It's a higher standard to show that a harm [00:21:14] Speaker 02: would happen than that it could happen and it seems so it seems to me that in fact there is that to that degree and adjustment in how deliberate [00:21:26] Speaker 02: process is looked at it's not enough now to say we do this stuff sort of deliberately in advance and so and it could be bad if we disclose it because it could show it could show people that you actually need to say that the nature of this document this deliver maybe the nature of this particular deliberative process in this circumstance would am i correct that i think [00:21:51] Speaker 05: Yes, Your Honor, we agree with that outline here, but just to highlight a few things that flow from that. [00:21:58] Speaker 05: The first is that the agency is making a predictive judgment about the effects of disclosure here on future similar deliberative processes. [00:22:07] Speaker 05: That's not readily susceptible to documentary evidence. [00:22:10] Speaker 05: It's hard to see what the agency could do to prove that judgment, either true or false. [00:22:15] Speaker 05: And the court's not called upon [00:22:17] Speaker 05: to make its own judgment here. [00:22:19] Speaker 05: It's called upon to determine whether the agency's judgment is within a broad zone of reasonable judgments that it's capable of making on the basis of the deliberative interests at stake here. [00:22:29] Speaker 05: And secondly... I'm sorry. [00:22:31] Speaker 02: I'm sorry. [00:22:32] Speaker 02: Where do we have any assurance in the declarations here that the government took this task seriously? [00:22:41] Speaker 02: You know, and it didn't... I think you didn't have Machado at the time of the declarations. [00:22:47] Speaker 02: Because all I see is a sort of general language about, here's all these different types of documents. [00:22:54] Speaker 02: And they all were part of a deliberative process. [00:22:59] Speaker 02: And so there'll be foreseeable harm. [00:23:01] Speaker 02: And it seems to me if we say that's sufficient in this case, then the foreseeable harm function will do no work, at least in the deliberative process realm. [00:23:12] Speaker 02: Because all you're going to do is say, remember when we told you about deliberative process? [00:23:16] Speaker 02: Yeah. [00:23:18] Speaker 02: Cut and paste, as Judge Walker said. [00:23:21] Speaker 05: Your Honor, I don't think so. [00:23:22] Speaker 02: First, I want to go through that individualized document category. [00:23:29] Speaker 02: You've got more than one in the same category document. [00:23:33] Speaker 02: And it would cause harm, not just the nature of deliberative process. [00:23:40] Speaker 02: The argument is always that it chills. [00:23:44] Speaker 02: I need more here. [00:23:45] Speaker 02: And when you look at Machado, where the explanation [00:23:48] Speaker 02: how the process, what the process is, how it worked, how the input was, how it was used, what the nature of these blitzforms were, went on for like four or five pages in the declaration. [00:23:59] Speaker 02: Where do you have anything remotely like that? [00:24:01] Speaker 02: Which declaration? [00:24:02] Speaker 05: First, what we've got in the third Hartley Declaration, I'm at pages 248 to 249 of the Joint Appendix. [00:24:10] Speaker 05: This is where the declarant begins the whole section on deliberative process privilege by saying, well, encoded categories B5-1 on the Vaughan index. [00:24:17] Speaker 05: That's all the 99 records that are issued here. [00:24:19] Speaker 05: The FBI protected privilege deliberative materials, then goes on for, I believe, three or four sentences to discuss [00:24:26] Speaker 05: the general purposes behind the deliberative process privilege. [00:24:29] Speaker 05: That's not to chill candid conversations in order to improve the quality of agency decision-making. [00:24:35] Speaker 05: And then the key sentences are disclosure of this type of information would have an inhibiting effect on agency decision-making because it would chill full and frank discussions. [00:24:45] Speaker 05: That's a conclusion as to each of the next two. [00:24:48] Speaker 05: I'm sorry, Your Honor. [00:24:49] Speaker 02: Were these paragraphs written before the OIG report cover letter was disclosed or after? [00:24:58] Speaker 05: Well, we disclosed almost all of the OIG cover report in advance of the preparation of this declaration. [00:25:05] Speaker 02: Well, the case has been pending, I think, on appeal, right? [00:25:09] Speaker 02: Correct, Your Honor. [00:25:10] Speaker 02: Correct. [00:25:10] Speaker 02: These statements here, though, which are obviously made before your disclosure on appeal, would have then been defending this OIG cover letter. [00:25:24] Speaker 02: Your argument seems to be that there was a determination in these paragraphs you're pointing to here. [00:25:28] Speaker 02: that disclosure of the OIG cover letter specifically, looking at that document, would cause foreseeable harm. [00:25:37] Speaker 02: Is that right? [00:25:39] Speaker 05: At the time they were written, yes, your honor. [00:25:41] Speaker 05: And that's because that sentence. [00:25:43] Speaker 02: That's that. [00:25:44] Speaker 02: OK. [00:25:45] Speaker 02: Now, I know you've released it, but explain to me how on earth I can trust that this information makes that particularized judgment when it turns out [00:25:58] Speaker 02: This is probably why you released it on appeal. [00:26:01] Speaker 02: It turns out that what was redacted was these words. [00:26:05] Speaker 02: This is one example that you have since released. [00:26:09] Speaker 02: OIG report entitled, a review of the FBI's use of a fictitious associated press music in a criminal investigation. [00:26:18] Speaker 02: That same language had already been revealed in the Vaughn index. [00:26:21] Speaker 02: So how can I trust? [00:26:26] Speaker 02: One, can you just tell me what foreseeable harm would come from revealing information in a statement, a description of a document that overrevealed in Vaughn index? [00:26:34] Speaker 05: Your Honor, we disclose that because we determined, yes, there had been a mistake as to. [00:26:39] Speaker 02: On appeal? [00:26:40] Speaker 05: Yes, Your Honor. [00:26:41] Speaker 02: I know, but my question is very different. [00:26:43] Speaker 02: You're relying on the Hardy Declaration as having made the Machado foreseeable harm judgment to retain and not disclose [00:26:55] Speaker 02: That very language I just quoted to you. [00:26:58] Speaker 02: Is that correct? [00:27:00] Speaker 02: That's what this Hardy language decided? [00:27:02] Speaker 05: That's correct, Your Honor. [00:27:02] Speaker 05: And our basic point here is... Oh, no. [00:27:05] Speaker 02: So I'm not... You made a disclosure on appeal. [00:27:09] Speaker 02: Do you agree, then? [00:27:10] Speaker 02: Can we credit this hearty declaration with having made any kind of particularized or careful judgment when it didn't stop to notice that what it was claiming as foreseeable harm included a mere description of a document that had already publicly disclosed? [00:27:29] Speaker 05: Yes, your honor, because I'm not aware of any case from this court or other courts saying that one error, an unintentional error in an affidavit means that the court cannot rely on any other portion of that. [00:27:40] Speaker 02: We had a second one, and that was another redaction you've released, where again, the second one you released, where again, the language is just the description of the document. [00:27:53] Speaker 02: The second one you released. [00:27:55] Speaker 02: The Office of the Inspector General has completed its report entitled, A Review of the FBI's Impersonation of a Journalist in a Criminal Investigation. [00:28:03] Speaker 02: In August 2016, we provided a copy of the draft report to the FBI for comment, including whether anything in the draft report was factually inaccurate or too sensitive for public release. [00:28:13] Speaker 02: That was all already known. [00:28:15] Speaker 02: At the time you're telling me, Mr. Hardy said, we cannot possibly release that because it would cause not just general deliberate process harm, [00:28:24] Speaker 02: making a particularized judgment that that would cause foreseeable harm. [00:28:29] Speaker 05: That's correct, Your Honor. [00:28:29] Speaker 05: This case involves over six... I'm sorry, Your Honor. [00:28:33] Speaker 02: You got two times now where this very generalized language supposedly made a foreseeable harm judgment as to something that was already publicly disclosed by the government. [00:28:44] Speaker 05: Your Honor, this case involved over 600 pages of responsible records. [00:28:49] Speaker 02: Right. [00:28:49] Speaker 02: I'm just asking you to confirm that. [00:28:52] Speaker 05: Yes, I believe those were mistakes, Your Honor. [00:28:54] Speaker 02: I get that there were a lot of documents here, but the question is whether that second look, what's called a foreseeable harm, a second look and a particularized judgment that harm not could, but would occur. [00:29:09] Speaker 02: And there may be a lot of documents, but even I think the foreseeable harm requirement applies in cases when there's lots of documents, right? [00:29:18] Speaker 05: Of course, Your Honor, but there's flexibility in how. [00:29:21] Speaker 02: Well, there may be some flexibility, but does it require that there at least be, it wasn't like there were tons, this is the OIG cover letter. [00:29:30] Speaker 02: It's not like there were 12,000 OIG cover letters that you were having to group together as a category. [00:29:36] Speaker 02: This was a category of one, the OIG cover letter. [00:29:40] Speaker 02: Did you have to make [00:29:43] Speaker 02: foreseeable harm judgment as to the OIG cover letter? [00:29:46] Speaker 05: Your honor, yes, the declarant has to make a determination as to every category of records, not just with respect to... There was a category of one OIG cover letter. [00:29:56] Speaker 05: Yes, every category is separate in this case, but there are six categories of records just within the deliberative process privilege. [00:30:03] Speaker 05: There are other exemption five, [00:30:06] Speaker 05: arguments as well for lots of other records, not in this appeal. [00:30:11] Speaker 05: There were over 600 responsive records. [00:30:14] Speaker 02: I believe there were six different FOIA exemptions invoked, and there were withholdings, and I believe over- It is the relevance of all this to the foreseeable harm argument that this sort of very generalized paragraph, the paragraphs you said on sort of 248, 249, extremely generalized and high level. [00:30:35] Speaker 02: met the sort of individualized and careful second look judgment that foreseeable harm requires in a Machado. [00:30:45] Speaker 05: It's not just these two paragraphs. [00:30:46] Speaker 05: To be clear, I was not able to finish my answer. [00:30:48] Speaker 05: So there's the paragraph we were just discussing. [00:30:51] Speaker 05: There's the first sentence on the next page saying the FBI invokes Exemption 5 in this case because FBI employees would hesitate to offer their candid advice. [00:30:59] Speaker 05: And then this is crucial. [00:31:01] Speaker 05: The descriptions of the deliberative processes within each of the six categories and the roles that those records play in those deliberative processes [00:31:08] Speaker 05: serves two functions. [00:31:10] Speaker 05: It goes both to the applicability of the deliberative process privilege, and it also goes to why the agency's reasonable harm determination was reasonable in this case. [00:31:22] Speaker 05: Machado shows us the way. [00:31:24] Speaker 05: Machado says that the agency's prediction of foreseeable harm in that case was reasonable on the basis of the agency's conclusion that release of that information would chill future deliberations. [00:31:38] Speaker 05: And that is clearly true in, say, category six in this case. [00:31:42] Speaker 02: The declaration there that we know at least twice was just false in making that judgment. [00:31:50] Speaker 05: Your Honor, in a large FOIA case, there can be errors. [00:31:54] Speaker 05: And so, for instance, a district court can look at a very long declaration, uphold most of the withholdings. [00:32:01] Speaker 02: Is this a mistake that they had? [00:32:05] Speaker 02: Can you articulate to me what [00:32:07] Speaker 02: If they looked at the OIG report cover memo at all, if they picked it up and looked at it, is your position that someone could have looked at that, the language that was refracted? [00:32:22] Speaker 02: and decided that there would be foreseeable harm from disclosure, disclosing that information? [00:32:27] Speaker 05: Or that- If that information had not previously been disclosed, and if the declarant knows that- It had already been previously disclosed, that's exactly my point. [00:32:35] Speaker 02: I'm not- Right, and so my understanding- To make foreseeable harm under your theory, they had to look at it, that they could have made it and it was a reasonable mistake, or did they maybe not look at it? [00:32:48] Speaker 05: My point is that it was a reasonable mistake that, you know, at the time the declaration was put together, the declarant, you know, did not put two and two together with respect to the fact that that sentence, that this draft had already been shared with the FBI, had already been disclosed elsewhere in this litigation. [00:33:05] Speaker 05: That's why we voluntarily disclosed it on appeal, and that's why that issue was moved. [00:33:09] Speaker 02: It hadn't already been disclosed. [00:33:12] Speaker 02: Can you just describe to me what the foreseeable harm would be if it hadn't already been disclosed, what the foreseeable harm of those two sentences is? [00:33:21] Speaker 05: My understanding is the foreseeable harm would be to open up the hood on the deliberative process and disclose to the world that OIG circulated a draft before publication. [00:33:30] Speaker 05: Now, I don't want to go too far down the road in saying that is the biggest harm on the planet. [00:33:34] Speaker 02: Is it a secret that, that's not what I asked you, is it a secret that OIG circulates [00:33:42] Speaker 02: to involve agencies of report before releasing it? [00:33:47] Speaker 05: I don't think in general that's the secret, Your Honor. [00:33:49] Speaker 05: I'm not aware of to what degree every time they circulate, it's a secret. [00:33:54] Speaker 05: every time they prepare a report, they share it with the agency in advance or to what extent in certain circumstances they don't. [00:34:00] Speaker 05: But just to focus on the six categories that issue here, I think it is beyond clear that internal deliberations about media strategy, whether and when to engage with the media and write a press release, are within the core of the deliberative process privileges every court of appeals to address that issue has held. [00:34:17] Speaker 05: Similarly, with the category six, [00:34:19] Speaker 05: You know, we have emails saying, look, these are the current policies, recommendation. [00:34:23] Speaker 05: This is what we should or shouldn't do with these policies. [00:34:25] Speaker 05: We black out the recommendation. [00:34:27] Speaker 05: That's, again, within the core of what the privilege protects. [00:34:30] Speaker 05: And it is beyond reasonable for the agency. [00:34:32] Speaker 02: I'd like to ask you about these PowerPoint presentations. [00:34:35] Speaker 05: Yes, Your Honor. [00:34:38] Speaker 02: First of all, there are, so one's been released, but there are two more that were not. [00:34:47] Speaker 02: Are those two drafts of the presentation that was released? [00:34:50] Speaker 02: Yes, Your Honor. [00:34:52] Speaker 02: Okay, that was released. [00:34:54] Speaker 02: And in the Vaughn index, the Vaughn index described the final presentation as draft slides. [00:35:06] Speaker 02: But then when they're released, Mr. Gavin's email says that the attached slides were [00:35:12] Speaker 02: as briefed to the White House. [00:35:15] Speaker 02: So does that mean that the release one was actually the final? [00:35:19] Speaker 05: Yes, Your Honor, that's why we released it. [00:35:22] Speaker 02: That's why it was released. [00:35:23] Speaker 02: Okay. [00:35:24] Speaker 02: And then I noticed that Sir Hardy's declaration said that the slides were about, sorry, I think it was Mr. Hardy, maybe it was Mr. Waller, described those slides very differently. [00:35:38] Speaker 02: not about a presentation of existing policy to the White House, but as proposals and recommendations about how to ultimately instruct FBI personnel about conducting undercover operations, which sounds like something might fall within deliberative process. [00:35:52] Speaker 02: But I noticed that you did not, you have not relied on that description of these documents, nor on that rationale and invoking deliberative process privilege. [00:36:02] Speaker 02: Is that because there was a mistake? [00:36:06] Speaker 05: So it is accurate that those drafts and the final presentation were prepared with the idea that they might be used to instruct FBI personnel. [00:36:16] Speaker 05: As the released email shows, they were also used in this presentation at the White House. [00:36:20] Speaker 02: So the White House was a presentation about existing policy, correct? [00:36:27] Speaker 05: Correct, Your Honor. [00:36:28] Speaker 05: This presentation is a presentation. [00:36:30] Speaker 02: I'm sorry? [00:36:33] Speaker 02: demonstration or an explanation about existing policy is what certainly the final was about. [00:36:41] Speaker 02: And you're saying that instead the draft was about proposals and recommendations on instructing FBI personnel about conducting undercover operations. [00:36:52] Speaker 02: The draft was not about, these drafts were not about [00:36:55] Speaker 02: explaining existing policy to the White House. [00:37:00] Speaker 05: Your Honor, I think those two sentences are saying the same thing. [00:37:03] Speaker 02: If I say I'm describing existing policy, certainly for a deliberative process, if I'm describing existing policy, one agency describes existing policy to another agency, because it's the White House, but to another governmental entity, that means you're describing the final policy, the existing policy. [00:37:23] Speaker 02: But then this party declaration, which I didn't see discussed in your brief talks about proposals and recommendations on how to conduct proposals and recommendations on how to conduct undercover operations. [00:37:36] Speaker 02: No, it's saying it's driving an existing policy. [00:37:40] Speaker 05: No, no, these are proposals and recommendations about how to instruct, including FBI personnel, about existing policies. [00:37:47] Speaker 05: So for example, if the general counsel of an organization says, tasks of subordinate, and says, I want a proposal about how to train all of our people about a certain issue, that person goes out and canvases all potentially applicable policies, arrays them together, and creates a recommendatory memo about how this should happen. [00:38:06] Speaker 05: The draft of that memo about how to instruct people in the organization is deliberative and pre-decisional as to any final training documents. [00:38:15] Speaker 05: And again, we've released the final documented issue here. [00:38:18] Speaker 05: The key point is the drafts of that document contain deliberative information about how to do that presentation, how to do that instruction. [00:38:29] Speaker 02: And then on the factual accuracy comments, these are just some more that I have some concerns about or questions about. [00:38:37] Speaker 02: We have that form in the record. [00:38:39] Speaker 02: Can you find me where in the record, because Judge Leon concluded that the information in there, factual accuracy, is so intrinsically linked to the FBI's personal recommendations and opinions. [00:38:54] Speaker 02: So it's those facts that are so intrinsically linked with recommendations that they fall within the deliberate process privilege outside the general rule that facts don't. [00:39:04] Speaker 02: Which declaration said that they were intrinsically linked [00:39:07] Speaker 05: That's the third hearty declaration page 251 of the Joint Appendix where the declarant says the FBI concluded that the factual information in the responsive records here was part of the deliberation itself and inextricably intertwined with deliberative information and therefore I'm sorry. [00:39:22] Speaker 02: I just want to catch up to you. [00:39:23] Speaker 05: Which page page 251 of the Joint Appendix. [00:39:27] Speaker 05: I'm sorry, Your Honor. [00:39:28] Speaker 05: So that's the specific sentence. [00:39:32] Speaker 05: And I think this dovetails with something this court said in the National Security Archives case, which is that when it comes to an agency history, a draft agency history, yes, there's going to be lots of factual information all throughout that description. [00:39:46] Speaker 05: But the selection of those facts, the characterization of those facts, the choice of which ones are relevant, all are chosen based on a policy-inflected judgment of the writer or the editor. [00:40:00] Speaker 05: Here, what we've got are comments about basically the same type of document. [00:40:05] Speaker 02: I just need to back you up. [00:40:06] Speaker 02: You're talking about paragraph 55 on page 251? [00:40:09] Speaker 05: Correct, Your Honor. [00:40:10] Speaker 02: And so what it says is the FBI concluded that the factual information in the responsive records here was part of the deliberation itself and interactively intertwined with deliberative information. [00:40:27] Speaker 02: All he's doing is describing what the FBI asserted. [00:40:30] Speaker 02: That's what we have to rely on. [00:40:32] Speaker 05: Well, this is the FBI's declaration, Your Honor. [00:40:34] Speaker 02: So the declarant is saying. [00:40:36] Speaker 02: Not saying it's his view. [00:40:37] Speaker 02: He's just sort of, what he actually is describing the bottom line position. [00:40:42] Speaker 02: Is that sufficient? [00:40:44] Speaker 05: Your honor, I would read this as the declarant saying that it is true. [00:40:48] Speaker 05: And I don't think there should be a magic words requirement in that level of parsing. [00:40:52] Speaker 02: There should be magic words requirements? [00:40:53] Speaker 02: Because actually, I should think you'd want magic words, because they've done the magic words here and said they're inextricably intertwined. [00:40:59] Speaker 02: But we're given no explanation whatsoever. [00:41:02] Speaker 02: It sounds like instead they just sort of said, here's what we have to say to keep it out. [00:41:06] Speaker 02: Your honor. [00:41:08] Speaker 05: I'm sorry to interrupt. [00:41:09] Speaker 05: I didn't mean to. [00:41:10] Speaker 02: No, please go ahead. [00:41:12] Speaker 05: I think back to what this court has said about the segregability requirement in FOIA and very commonly in declarations like this one, including this one, there will just be a paragraph or a sentence saying, I have considered this. [00:41:25] Speaker 05: And, you know, the information we have reheld withheld is not reasonably segregable from the rest of it. [00:41:32] Speaker 05: Doesn't require the repetition of that conclusion. [00:41:34] Speaker 05: I'm sorry, Your Honor. [00:41:35] Speaker 02: We're missing the I. [00:41:36] Speaker 02: Mr. Hardy's not saying it, he's just describing the FBI's position. [00:41:44] Speaker 02: Usually the clearance says, I've looked at them and I've concluded they're inextricably intertwined. [00:41:52] Speaker 02: So that's why I'm confused. [00:41:53] Speaker 05: No, actually, I think most commonly they just say the information is inextricably intertwined here I would most reasonably read the FBI concluded that that phrase as the Decker and saying I concluded that, given that he's offering this declaration on behalf of the agency to explain why the withholdings are proper. [00:42:11] Speaker 05: And just in the segregability point, I think it really is important. [00:42:15] Speaker 05: It's an important pre-existing requirement of the FOIA. [00:42:18] Speaker 05: Information that we withhold has to be not be able to be reasonably segregated from other disposable information. [00:42:24] Speaker 05: But the court has always accepted even a single paragraph or sentence saying, yes, this information, the remaining information is not reasonably segregable from the rest. [00:42:33] Speaker 05: For the same reason, the conclusion about I consider the information at issue in this case and release that information would result in harm to the interest protected by the deliberate process privilege that should be enough, especially in a case here. [00:42:48] Speaker 05: where there's so many different types of documents, so many different types of withholdings, it would needlessly expand government resources to just repeat the same sentence at the end of each paragraph about each specific deliberative process, especially when the government's already explained the nature of the deliberative processes going on and the role of those records sufficiently [00:43:07] Speaker 05: to trigger the protections of the privilege. [00:43:10] Speaker 05: That same information shows why the government's determination about harm is reasonable, again, within that broad zone of reasonableness. [00:43:18] Speaker 05: That's a predictive judgment not readily susceptible to documentary proof. [00:43:24] Speaker 04: I have to say what strikes me about [00:43:30] Speaker 04: the overall case is there are the different categories of documents are very different from one another. [00:43:40] Speaker 04: And your arguments on some of them seem to me intuitively or superficially much stronger than your arguments as to others. [00:43:58] Speaker 04: And, you know, I pressed your colleague about the Comey comments, which seemed to me a relatively strong part of the case for you. [00:44:07] Speaker 04: And you went right to category one. [00:44:11] Speaker 04: But we also have category two, category three seemed to me a lot weaker for you. [00:44:20] Speaker 04: And I mean, if you're just going to, you know, we're talking about a category defined as factual accuracy. [00:44:29] Speaker 04: measured against a legal rule that statements of fact are generally unprotected unless you show they're inextricably bound up with deliberations and your affidavit just has a boilerplate assertion this is all bound up in deliberations boom we're done that's it that's um [00:44:58] Speaker 04: That's giving us very little to work with doing our review for reasonableness. [00:45:04] Speaker 04: And it seems to me very different from Machado where they did say more as to the particular category at issue and the particular category at issue was much closer to the heartland rather than the periphery of an exemption. [00:45:23] Speaker 05: Your Honor, on categories two and three, I think this court's case law regarding draft agency histories is very instructive. [00:45:30] Speaker 05: Again, a history, a draft agency history, is going to largely consist of almost entirely factual material. [00:45:35] Speaker 05: This court said that the factual material there cannot be dissected, quote unquote, from the editorial judgments underlying the preparation of that history. [00:45:46] Speaker 05: And I think just an analogy to a fact statement in a brief, I'm sorry, Your Honor. [00:45:51] Speaker 04: That was all before the harm provision was put in, right? [00:45:58] Speaker 05: That's correct, Your Honor, but the harm provision, again, doesn't change the type of interest protected or ratchet up the amount of harm required before information can be withheld. [00:46:07] Speaker 05: It requires a particular judgment that the harm actually would come about, and that judgment has to be reasonable. [00:46:17] Speaker 04: elevates the standard, as Judge Millett said, to the extent that a wood is stronger than could, it seems to require a greater degree of particularization in the explanation, right? [00:46:36] Speaker 04: You can't just say, well, histories can be protected, could be protected, and this is a history QED. [00:46:47] Speaker 05: right so and to be clear we have more than that here right so the waller declaration says and i want to make this point my colleague on the other side pointed to paragraph 20 but i would point to paragraphs 14 and 16 that's pages 278 to 279 of the joint appendix which talk more specifically about these drafts where the declarant miss waller says that release of that information would chill the [00:47:11] Speaker 05: the OIG's ability to have candid discussions between the subject of the report and OIG before the finalization of a report. [00:47:21] Speaker 04: So just to drill down a little bit on drafts, what would be the reasonably foreseeable harm in releasing [00:47:32] Speaker 04: a redacted draft which shows everything that made its way into the final report unchanged. [00:47:45] Speaker 05: Well, Your Honor, it would reveal the degree to which the writer of that draft accurately predicted or did not what the final decision maker is going to want to have out there. [00:47:54] Speaker 05: So it's going to reveal the kind of editorial judgments and suggestions that this court said were protectable. [00:47:59] Speaker 05: Honestly, in the heartland of the deliver of process privilege, the opinions in Russell, Dudman, National Security Archive, they don't read as if this is some kind of questionable application of the privilege. [00:48:10] Speaker 05: They read as if this is an application to the heartland of that privilege. [00:48:14] Speaker 05: And I think that's correct. [00:48:18] Speaker 05: The OIG declaration from Ms. [00:48:20] Speaker 05: Waller says that, look, release of a draft that's not final shows our preliminary thinking on this subject. [00:48:28] Speaker 05: And it would chill our ability to have future discussions of this type in the future. [00:48:33] Speaker 05: That is true. [00:48:35] Speaker 05: It's just a matter of common sense and human nature that people, when they're writing a draft, need to have confidence that it's not going to be released in the future. [00:48:45] Speaker 05: in order to have truly candid conversations and to think and to improve the quality of government decision making. [00:48:52] Speaker 05: That's the core application of the privilege. [00:48:54] Speaker 05: It applies to a draft OIG report in the same way that it applies to a draft agency history. [00:49:00] Speaker 05: Nothing in the legislative history or certainly the text of the 2016 amendment says, well, we're really going to be working a revolution in the way the privilege applies. [00:49:10] Speaker 05: you know, to the contrary, just says the agency has to reasonably foresee that release would lead to one of the harms, you know, that's protected by the privilege. [00:49:20] Speaker 05: You know, we've shown why these declarations, you know, pass that minimum threshold. [00:49:26] Speaker 05: We did that without the benefit of this court's instruction in Machado Omidy. [00:49:29] Speaker 05: And so if the declarations fall short in any respects as to any particular categories, we do think a remand would be in order. [00:49:34] Speaker 05: But I've tried to explain why in a sprawling case involving here hundreds and other cases, thousands of documents and dozens of different types of withholdings in many different categories of information, there's no reason to needlessly expand government resources to repeat the same conclusion in each paragraph. [00:49:54] Speaker 04: And I assume you're going to give me basically the same answer on the factual accuracy category. [00:50:03] Speaker 04: which is there's some instances where factual statements are bound up in deliberations. [00:50:12] Speaker 04: And even if that seems like more the exception than the rule, it's enough for the agency just to have a one sentence statement that [00:50:26] Speaker 04: looked at all the factual accuracy comments and withheld ones that are inextricably intertwined with deliberations. [00:50:34] Speaker 05: That's right, your honor, but I also want to highlight that that follows from the conclusion as to the draft OIG reports themselves, right? [00:50:41] Speaker 05: It's because the factual content there is inextricably intertwined, cannot be dissected from policy-based judgment, so too comments on that. [00:50:50] Speaker 05: It's just like [00:50:51] Speaker 05: If a senior partner and an associate and a law firm are working on a draft brief and the factual statement in that brief, obviously the factual statements, they're all facts, but they're all chosen with very clear policy-based judgment in mind. [00:51:07] Speaker 05: Ditto with this court's opinions and the factual sections they're in. [00:51:10] Speaker 05: I don't think anyone can say that one person's comments on a draft brief circulating in your court are not deliberative simply because they involve factual material. [00:51:20] Speaker 05: It's just like the factual material in a draft agency history, and it's protected. [00:51:28] Speaker 04: I hear you. [00:51:29] Speaker 04: It just seems like on that view of the world, the amendment is [00:51:37] Speaker 04: as a practical matter, gonna do very little work, very little extra work above and beyond the exemption. [00:51:43] Speaker 05: I don't think that's true. [00:51:46] Speaker 05: I don't have a categorical view of exactly how many cases the amendment's going to really make a difference in, but it's primarily a procedural requirement that's going to have an effect on the front end. [00:51:58] Speaker 05: It requires the agency to actually consider the specific information [00:52:02] Speaker 05: And even if in an esoteric case it could have gotten away with saying, well, the privilege would apply. [00:52:07] Speaker 05: I'm not actually sure if there'd actually be any harm. [00:52:10] Speaker 05: That's not going to be good enough anymore. [00:52:12] Speaker 05: The agency has to considering that think, no, it actually would result in that harm, and so you're going to get more upfront disclosures. [00:52:19] Speaker 05: but there's no indication in the text of the amendment that Congress thought there'd be a revolution in the way that any of the underlying exemptions work. [00:52:27] Speaker 05: In particular, the legislative history shows, look, they thought they might want to make some changes with regards to this privilege, but they're only a middle degree on language as to the 25-year event horizon. [00:52:38] Speaker 04: I agree with you on that, but it seems like there's a broad middle ground between a revolution and a [00:52:48] Speaker 04: here in their screwball case. [00:52:52] Speaker 04: And I'm not sure this is designed to just get at the screwball cases. [00:53:00] Speaker 05: I think Machado says, look, it takes a could and makes it a would. [00:53:04] Speaker 05: And so on the edges, it's going to have that effect. [00:53:07] Speaker 05: But that could to would language is about the predictive judgment and the relative likelihood of the harm occurring, not about the nature of the harm or the size of it. [00:53:15] Speaker 04: It also focuses the analysis on the documented issue. [00:53:23] Speaker 04: I mean, we didn't talk about deliberative process in the abstract. [00:53:28] Speaker 04: We talked about recommendations by subordinate lawyers to superiors regarding the adjudication of pending cases, pending appeals. [00:53:39] Speaker 05: But to be clear, you know, the Reporters Committee filed amicus brief saying well actually that case should come out, even in Machado. [00:53:45] Speaker 05: You know in Machado disposes of many of the arguments you're facing here it says look this really is about a predictive judgment. [00:53:51] Speaker 05: It's about broad based reasonableness it's not about ratcheting up the type or the amount of harm and the nature of the interests that are protected. [00:53:57] Speaker 05: And the other final thing I want to say about Machado is the sentences there about foreseeable harm all talk about the specific deliberative process at an issue, because there's only one deliberative process at issue. [00:54:11] Speaker 05: I think this court has always left flexibility for how an agency makes out its showing about the withhold ability under an exemption in a case involving large number of documents, large number of withholdings. [00:54:22] Speaker 05: And that's appropriate. [00:54:23] Speaker 05: Taking together the declarations, the Vaughn index, and the information we've released on the basis of that entire record, the question is whether the judgment was reasonable, not whether the court would have made the same judgment. [00:54:37] Speaker 06: Okay, thanks. [00:54:39] Speaker 05: Thank you, Your Honor. [00:54:40] Speaker 05: We ask that you affirm. [00:54:41] Speaker 03: Can I jump in with one question? [00:54:43] Speaker 03: It'll be short. [00:54:45] Speaker 03: Can you imagine a time, can you imagine a scenario when release of a draft would not chill? [00:54:53] Speaker 03: And if so, when? [00:55:01] Speaker 05: There's a huge number of factual scenarios in the federal government. [00:55:03] Speaker 05: It's a big government. [00:55:04] Speaker 05: There's lots of drafts. [00:55:05] Speaker 05: And I could imagine that if, say, the FOIA office gets a request and they go to the person, let's say the person who still works there, and they go to that person and they say, what do you think about foreseeable harm here? [00:55:16] Speaker 05: If the person literally doesn't care and says that, and if in the judgment of the FOIA officer that that actually represents everybody in the future. [00:55:24] Speaker 03: I know I said only one, but the chill is the future chill. [00:55:29] Speaker 03: We're worried about chilling future authors of drafts. [00:55:33] Speaker 03: So it doesn't really matter if the original author is fine with the release. [00:55:37] Speaker 05: And that's where I was trying to get with the extension of my answer, Your Honor. [00:55:41] Speaker 05: It's not just, does the author care? [00:55:43] Speaker 05: But it's also, look, is that the view of basically everyone who fulfills this function inside of the federal government? [00:55:48] Speaker 05: And if in fact, it's not going to chill anybody or if the public interest in making the disclosure outweighs whatever the chill would have been the government could make a discretionary release of course, but it's going to be a very fact based determination. [00:56:05] Speaker 05: common sense and also the government's experience with what people fulfilling this function need to enhance the quality of our decision making. [00:56:14] Speaker 05: And it is true that this court's pre-existing case law about the privilege has already drawn pretty strict boundaries about where it applies. [00:56:22] Speaker 05: And the basis on which this court drew those boundaries even before foreseeable harm [00:56:26] Speaker 05: was largely about whether that harm would arise if that type of information were released. [00:56:31] Speaker 05: That's why the foreseeable harm requirement as applied to the process privilege is not going to work a revolution in what's protectable and what's not, because this court's case law already did quite a bit of that work. [00:56:43] Speaker 05: All this does is move the could to a would in the context of a predictive judgment. [00:56:51] Speaker 05: I'm sorry, Judge Muller, I think you might be muted. [00:56:52] Speaker 05: I apologize for interrupting. [00:56:56] Speaker 02: It's my mistake, but I apologize. [00:56:57] Speaker 02: Judge Walker, are you done? [00:57:02] Speaker 03: I am, thank you. [00:57:04] Speaker 02: I'm having lots of technical difficulties today. [00:57:11] Speaker 02: The government gets gazillions of requests. [00:57:14] Speaker 02: Are you aware of any, so you don't have to describe an example, but are you just aware as a practical matter whether any [00:57:25] Speaker 02: Deliberative process, what would have been a deliberative process withholding prior to the foreseeable harm amendment has been revisited and released. [00:57:37] Speaker 02: I'm really worried about deliberative, focusing particularly on deliberative process here that the government is in, even just within the Justice Department. [00:57:44] Speaker 02: It's hard for me to ask you to know about every FOIA agency and every FOIA decision in the government. [00:57:48] Speaker 05: And I have to apologize, Your Honor. [00:57:49] Speaker 05: I don't have that kind of panoramic view into our floor dockets. [00:57:52] Speaker 02: It's a crazy broad question. [00:57:53] Speaker 02: I apologize. [00:57:54] Speaker 02: I was just curious whether any chance your client knew that they had to know. [00:57:59] Speaker 05: I don't have that, you know. [00:58:03] Speaker 05: I just don't want to highlight again the extent to which the privilege was already designed to serve a specific purpose, to prevent the chilling of future deliberations. [00:58:11] Speaker 05: And this court has been pretty strict about where it applies and where it doesn't apply, even before the foreseeable harm requirement. [00:58:18] Speaker 05: And so I think that's why it wouldn't actually be surprising if it has an effect on the margins. [00:58:24] Speaker 05: It changes the could to the would, but it's not going to work a revolution. [00:58:28] Speaker 02: My colleagues have any further questions? [00:58:30] Speaker 05: All set. [00:58:32] Speaker 02: Thank you, Mr. Thank you, Your Honor. [00:58:34] Speaker 01: Miss Townsend will give you two minutes. [00:58:36] Speaker 01: Thank you, Your Honor, and I'll be very brief. [00:58:38] Speaker 01: I do want to address with respect to the factual accuracy comments just to ensure that the record is clear. [00:58:44] Speaker 01: Mr. Busa pointed to paragraph 55 of the third hardly declaration, which is joint appendix 251. [00:58:51] Speaker 01: Citing that that sentence the FBI concluded that the factual information in the responsive records here was part of the deliberation itself and inextricably intertwined with deliberative information, just to be clear that sentence is purportedly applicable to every single piece of factual information. [00:59:08] Speaker 01: That might have been withheld by the government in all the records it's not specific to the factual accuracy comments, and I would note that the government has taken the position that the factual accuracy comments that the deliberative process is actually related to the work of the of OIG. [00:59:23] Speaker 01: And the Waller Declaration, which is the OIG Declaration, doesn't speak to the factual accuracy comments at all. [00:59:29] Speaker 01: So I think just to clarify that, and to go to the segregability point, I also wanted to raise this as well. [00:59:36] Speaker 01: Segregability is a long-standing requirement of FOIA with respect to exemptions. [00:59:40] Speaker 01: There's also a separate segregability requirement that Congress enacted as part of the foreseeable harm provision. [00:59:47] Speaker 01: So not only must agencies [00:59:50] Speaker 01: Segregate non exempt information from exempt information, they must segregate exempt information that is harmful from exempt information that is not harmful. [00:59:59] Speaker 01: And I did want to touch very briefly in just the last 30 seconds on this notion of Mr Bruce's continue citation to case law concerning draft agency history. [01:00:08] Speaker 01: with respect to OIG reports. [01:00:10] Speaker 01: I think as we stated in our briefs, we would respectfully posit that a draft agency history is nothing like a draft OIG report. [01:00:19] Speaker 01: Inspector generals are independent. [01:00:20] Speaker 01: They're required by statute to provide oversight to agencies. [01:00:24] Speaker 01: Agencies are required by statute to provide aid and information to inspectors general. [01:00:30] Speaker 01: And even the case law that Mr. Bruce relies on draws a factual distinction in draft agency histories. [01:00:38] Speaker 01: Dudman, for example, makes very clear that even if a document is a draft, an agency cannot withhold factual material within that draft. [01:00:47] Speaker 01: And here, the agencies withheld all of the draft OIG reports. [01:00:51] Speaker 01: And again, as Judge Katz just noted, that case, Dudman, as well as the National Security Archive case, is not only pre-foreseeable harm provision, [01:00:59] Speaker 01: but the Bay of Pigs case, the National Security Archive case that Mr. Bruce cited, was in fact, as the legislative history indicates, one of the rationales for enacting the foreseeable harm provision, and in particular, the 25-year sunset provision. [01:01:14] Speaker 01: So if there are no further questions, Your Honor, thank you for your time, and we will respectfully request that it be reversed and remanded. [01:01:20] Speaker 02: Other questions from my colleagues? [01:01:23] Speaker 02: Great. [01:01:23] Speaker 02: Thank you both. [01:01:23] Speaker 02: The case is submitted.