[00:00:00] Speaker 00:
Case number 19-5106, Royce Corley, a balance, versus William Bellenbar, Attorney General, et al.

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Mr. Bocat-Lindell, amicus curiae, Mr. Buffenroth, for the appellees.

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May I proceed, Your Honors?

[00:00:18] Speaker 04:
Good morning, yes.

[00:00:20] Speaker 06:
Good morning, and may it please the court.

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Noah Bocat-Lindell for the court appointed amicus in support of Mr. Corley.

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Over six years ago, Mr. Corley submitted requests to three components of the Department of Justice under FOIA and the Privacy Act.

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Those statutes require agencies and courts to strike a balance between privacy interests and the fundamental need for disclosure, with FOIA placing an especially large thumb on the scale in favor of the latter.

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Yet throughout this case, the government has made a series of privacy-only arguments on every major issue.

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Those arguments conflict with FOIA's general philosophy of disclosure.

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In nevertheless granting summary judgment to the agencies in this case, the district court made three significant errors.

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First, the court allowed the FBI and the Executive Office for US Attorneys to withhold documents under FOIA Exemption 3, even though the Child Victims and Witnesses Rights Act is not a withholding statute and does not require withholding of the documents at issue here.

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The court granted summary judgment to EOUSA when EOUSA failed to release any documents under the Privacy Act and never invoked any Privacy Act exemptions.

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And third, the court entered summary judgment without even recognizing that the Justice Management Division had failed to even conduct a search, though Mr. Corley had included a copy of his FOIA request with his appeal letter.

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For these reasons, we believe the judgment below should be vacated or reversed on these issues.

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Now, starting with the first issue, the Exemption 3 issue, in order to withhold documents under Exemption 3, an agency has to meet two steps of the standard.

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First, they have to show that the Child Victims Act is a withholding statute as a general matter.

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And second, even if it is, the agencies have to show that the documents that Mr. Corley is seeking fall within the statute's reach.

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If they fail to meet either of those two steps,

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then they are not able to withhold documents under exemption three.

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And here, the agencies would fail at both steps.

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At step one, in terms of determining whether this is a withholding statute to begin with, Department of Justice versus Julian shows that this statute is not a withholding statute.

[00:02:44] Speaker 04:
Well, Mr. Bokatlin, do you start with the language of the statute instead of Supreme Court decision?

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The statute says that

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All documents concerning a child shall be kept in a secure place to which no person who doesn't have the reason to know shall be able to see them.

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And then it has only one exception, right?

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It just says one exception.

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It says they can't be disclosed only to persons who by their participation in the proceedings have reason to know.

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So why isn't this just...

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The statute says that a disclosure statute is one that quote, requires that matters be withheld from the public in such a manner as to leave no discretion.

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And this doesn't seem to leave any discretion.

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It prohibits, it requires that they be kept secret and it has one exception.

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Right.

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Forget the Supreme Court in Lindell for a minute.

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Why isn't this statute just on its face an Exemption 3 disclosure statute?

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Well, because it does allow, it authorizes disclosure to certain people.

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And again, it's sort of hard to... Yeah, but it's a limited disclosure to people in the context of a statute that requires that all be kept, shall be kept in a secure place to which no person who does not have access has access.

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It's a blanket.

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It's a prohibition on... If I may follow up on Judge Taylor's point,

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Isn't the key word only in 3509D1II, isn't that the key word only?

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Disclose only, meaning you don't disclose to anybody else.

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Well, again, I think this is why I think it's a little hard to divorce this from the ruling in Julian, because the statutes at issue there were very similar.

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The only people who were allowed to have access to the pre-sentence reports in the laws at issue in Julian were the defendant and the defendant's counsel.

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And yet the Supreme Court said that because it allowed for that disclosure, it authorized that disclosure, it's not a withholding statute.

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And here,

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We don't have exactly the same level of complete mandatory authorization, but we do have this situation where it clearly carves out people who are authorized to receive this.

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There's also subsection D4, which again reiterates that it does not prohibit disclosure to- I don't mean to interrupt you, but before we leave the Supreme Court decision, I'm looking at the language of the statute.

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It says that rule 32,

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And the parole I didn't qualify because they were designed quote not to protect the reports from disclosure, not to protect the reports from disclosure.

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Whereas this statute does Well, again, though, in Julian the statutes at issue there only allowed it to be disclosed to certain people.

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So again, we have this situation where there's disclosure allowed to a certain small subset of people, but not necessarily to the public.

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And so they are pretty much on all fours.

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You have situations where both of them authorize disclosure to defendants and defendants council.

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In either case, do you have an explicit timeframe for that disclosure?

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And in both cases, with the parole acting Julian and here with the child victims act, the people who receive the disclosure are allowed to hold on to it even though they try to prevent further disclosure outward in both cases.

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And in Julian itself, it notes that there was a series of changes made to the statute in order to facilitate disclosure.

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And it says, for example, in 1966, they amended the rule to allow the courts to disclose this information to defendants.

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And then there were a series of further amendments that went even further after that.

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But the court was noting that this was a series

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of amendments, starting with the one that allowed courts to disclose this information to defendants that showed that there was a desire to facilitate some disclosure.

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And the other thing to keep in mind here in terms of the text of the statute is that this statute was designed to balance the privacy interests at issue with the constitutional rights of defendants

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as well as the rights of these other actors that the statute specifically created and allowed access to the proceedings, guardians ad litem adult attendance, etc.

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Mr bucket Lynn Lindell, I mean in the context of a FOIA search Mr Corley is not a criminal defendant.

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Right, yes.

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And as far as his claim that he is able to directly receive this information under the statute, there is this question about whether he still qualifies as a defendant because he was the defendant in the proceedings at issue, but those proceedings have ended.

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I will note that when he requested these documents, he was seeking them in order to aid in his appeal.

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So while the trial proceedings were over,

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it was still part of his case.

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But regardless, the question for exemption three is not whether under the statute himself, he's a defendant.

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Because even in Julian, the people there were no longer defendants.

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They were inmates, as the court said.

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They were not in the periods of time where the statute explicitly allowed for disclosure to them.

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They were just sitting in jail.

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They had already been sentenced.

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What is your response to the government's distinction of Julian?

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based on the NRDC case, Your Honor?

[00:08:35] Speaker 03:
The government argues that, and Julian, the individual involved was a beneficiary of the disclosure, which is not true here.

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Right.

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Well, I mean, first of all, he is in the sense that he is one of the people who was allowed to have this information under the statute.

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But more fundamentally, that argument doesn't deal with the exemption three portion of the discussion in Julian that deals with the exemption five discussion in Julian.

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There were two exemptions at issue in Julian.

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And if you read through Julian, it does the entire exemption three analysis without even talking about this question of a special access right.

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It's when it gets to exemption five, where they say normally we would not allow this information to be disclosed, but because this is the subject of the report themselves, they're the beneficiary of that privilege, that discovery privilege, that therefore we would allow this to be disclosed to this particular person.

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And if you look at Justice Scalia's dissent, that's where he joins issue with the majority, is this question of exemption five and saying we are creating this special access right

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for one person.

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That's not part of the Exemption 3 discussion in Julian.

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And so I think that when we're talking about Exemption 3, that special access issue is not directly relevant.

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It's a question of whether the statute creates an authorization of disclosure to particular people.

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And one other thing I'd note about that on the text is if you look at subsection H of the statute, where it creates these guardians ad litem, it has subsection H2

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of the statute, which specifically says the guardian ad litem may have access to all reports, evaluations, and records except attorney's work product necessary to effectively advocate for the child.

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So there we have yet another example in addition to the privacy provisions themselves, including D4.

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We now have H2 in the statute where they're specifically creating this avenue for certain people to have access to this information.

[00:10:35] Speaker 02:
But the language of FOIA Exemption 3 itself that provides for statutory exemptions doesn't suggest that the statutory exemption has to be complete, right?

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I mean, you know, the Exemption 3A, Romanette 2 says, right, establishes particular criteria for withholding or refers to particular types of matters to be withheld, right?

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It doesn't have to be everything.

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is withheld or a categorical withholding of information.

[00:11:08] Speaker 06:
Right.

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And again, the category that we're talking about in terms of what's even covered by the provision itself is this specific set of documents that refer to a child.

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But again, even within that, there's this question of, is it requiring withholding entirely?

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And again, that's where Julian comes into play here.

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Because even though, yes, it's referring to a specific set of documents, in Julian, it was referencing one particular document.

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It was referencing a pre-sentence report.

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So by the text of Exemption 3, it would seem to fall within Exemption 3.

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It's saying, here is this document that we are only allowing one person and their attorney to see.

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And there are certain types of information within that that even that defendant can't see.

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And that information

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is withheld under Exemption 3.

[00:12:00] Speaker 04:
So Mr. Buchanan, are you aware of our decision in a case called United States versus Bryce?

[00:12:12] Speaker 04:
Do you know about that case?

[00:12:14] Speaker 06:
I don't think so, Your Honor.

[00:12:16] Speaker 04:
I asked because I don't usually like to bring up cases that aren't mentioned in the brief.

[00:12:22] Speaker 04:
It's not mentioned in the government's brief.

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So maybe I'm missing something, and I'll ask them about it.

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But in Bryce,

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Bryce was a Section 3509 case.

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And we held specifically that the statute is quote, not an affirmative disclosure statute, but rather forbids disclosure of sensitive information.

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That was a case where trying to get access to certain sealed materials.

[00:12:50] Speaker 04:
So, well, you're not aware of the case, right?

[00:12:54] Speaker 06:
No, I'm sorry.

[00:12:56] Speaker 06:
First of all, I noticed that I've gotten into my rebuttal time.

[00:12:58] Speaker 06:
That's okay.

[00:12:58] Speaker 04:
You can keep going.

[00:12:59] Speaker 04:
I have a question about the, your argument about 18 year old limits.

[00:13:07] Speaker 04:
Yes.

[00:13:09] Speaker 04:
So under your theory, if there is a, if there's a, say a very graphic photograph of a 16 year old,

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that that document is not protected once that person becomes an adult.

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Is that right?

[00:13:35] Speaker 06:
I think that it would be protected, but not under this particular statute.

[00:13:39] Speaker 04:
Why would Congress have passed such a statute?

[00:13:44] Speaker 06:
Because, Your Honor, I think, first of all, Congress was adding an additional layer of protection on top of all of the protections that already existed.

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Obviously, within the FOIA context alone, there are Exemption 6 and Exemption 7C.

[00:13:56] Speaker 04:
But let's just stick with the statute for a minute.

[00:13:58] Speaker 04:
Of course.

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I take your argument about the definition of a child, but the Dictionary Act says you still have to look at context.

[00:14:05] Speaker 04:
So this statute refers to documents that, quote, concern a child.

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That's the language, right?

[00:14:13] Speaker 04:
So is a photograph, is a graphic photograph of a 17-year-old no longer a document concerning a child when that 17-year-old is 25?

[00:14:33] Speaker 06:
I certainly think that that's a plausible reading of the statute.

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I think that there are two problems with it, one textual and one in terms of consequences.

[00:14:42] Speaker 04:
In terms of the text, again, I think if we're talking colloquially in terms of saying what- I don't even see why, excuse me, but I don't understand why a photograph of a 17-year-old when that person is 25 is not a photograph of a child.

[00:15:03] Speaker 06:
I think, again, because there's a statutory definition as opposed to our normal way of thinking about what a child is and the statutory definition refers to a person who is under the age of 18.

[00:15:14] Speaker 04:
But the Dictionary Act makes it very clear that you look at the context and the purpose of the statute and besides, yeah.

[00:15:24] Speaker 06:
Yes, of course, Your Honor.

[00:15:25] Speaker 06:
And there, again, I think a couple of things.

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One, the overall context of the statute and the purpose of the statute is meant to help people, while they are children, be able to tell their stories to law enforcement and to be able to testify at trial.

[00:15:40] Speaker 06:
And so, again, the vast majority of the statute doesn't make any sense once someone turns 18.

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Appointing a guardian ad litem for someone once they're 18 doesn't make any sense and has some legal problems with it.

[00:15:51] Speaker 06:
Same with having an adult attendant there and having the child be able to sit on their lap or hold their hand which is something in the statute, but also those provisions do not use the term concerning a child.

[00:16:03] Speaker 02:
So they all refer to a child.

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And so maybe that definition makes sense as someone under 18, with respect to those provisions.

[00:16:13] Speaker 02:
But to Judge Tatel's point, I mean, why is a picture of a minor, of a child, not always a document concerning a child?

[00:16:23] Speaker 02:
Because the document itself, the photo, or whatever material is in that document is always concerning a child, even if that person is now an adult.

[00:16:32] Speaker 06:
Well, I think, again, this gets into problems of application as well I think that it would have, you know, we go beyond just thinking about a photograph.

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This would have some applications that seem very much at odds with the statute so if you have someone who's 50 years old, and for the first time comes out and says when I was 10 years old I was assaulted.

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and gives a statement to police.

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Under this reading of concerning a child, that statement would have to be kept under lock and key forever because the person it's describing, it's describing events that happened when this person was 10 years old, but they're 50 years old now, when they made the statement, they're miles away from being a child.

[00:17:11] Speaker 02:
They may still have a privacy interest in not having the public know, you know, some horrible acts that happened to them when they were a child.

[00:17:20] Speaker 02:
I'm not sure why that would,

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change, whether the crime came out when someone was a minor or came out when someone was an adult, the privacy interest, I'm not sure why the privacy interest would be any different.

[00:17:34] Speaker 02:
And also that doesn't explain this concerning language, which seems to me, unless I'm missing something, only to be used with respect to the privacy protections, right?

[00:17:44] Speaker 02:
Suggesting that that is something different, right?

[00:17:48] Speaker 02:
It's concerning a child.

[00:17:49] Speaker 02:
I think they use it

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the statute uses that phrase multiple times in the context of the privacy protections, but not in the context of the other treatments of a child.

[00:17:58] Speaker 06:
Right, Your Honor.

[00:17:59] Speaker 06:
Right.

[00:17:59] Speaker 06:
And I think that, again, this is a matter of not thinking about the word child colloquially and inserting the statutory definition of a child and thinking about it, again, in context, as Judge Tatel pointed out, looking at what the statute is trying to do.

[00:18:13] Speaker 06:
Because again, yes, they certainly have privacy interests.

[00:18:16] Speaker 06:
If you're a 50-year-old and you're talking about something that happened when you were 10,

[00:18:19] Speaker 06:
But the question is, was this statute meant to deal with that privacy interest, or were previously existing doctrines, First Amendment balancing tests, for example, and in the FOIA context, Exemption 6 and 7C, were those already enough to handle that?

[00:18:38] Speaker 06:
And here, Congress was just trying to say, when we have a situation where we have children, a person who is under the age of 18, and they are

[00:18:48] Speaker 06:
in need of help in terms of telling their story to law enforcement and participating in the proceedings as they're occurring.

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And that's why it makes sense to think of this and to take the statutory definition seriously and to say it's referring to someone who is under the age of 18 because of- Well, counsel, forgive me for interrupting you a moment.

[00:19:07] Speaker 03:
Of course.

[00:19:08] Speaker 03:
But even without regard to the policy points that Judge Taylor raises, I read the statute the following way.

[00:19:17] Speaker 03:
I read the statute of 3509A defines who is the person we're talking about in the rest of the statute.

[00:19:26] Speaker 03:
And that's a person who is under the age of 18 when the crime takes place.

[00:19:35] Speaker 03:
Then you just take that person, the child who you've defined in 3509A and then you go to 3509D1

[00:19:46] Speaker 03:
And it's the same child all throughout 3509 D1, I and double I. That's the way I read it without even having the kids to consider the policy questions.

[00:20:04] Speaker 06:
Well, I think your honor.

[00:20:05] Speaker 03:
Are the purpose.

[00:20:07] Speaker 06:
Yeah, I think the problem there is that it adds words to the statutory definition.

[00:20:11] Speaker 06:
It adds words when the offense occurred.

[00:20:14] Speaker 06:
A person who is under 18 at the time the offense occurred.

[00:20:17] Speaker 06:
And we pointed to a number of statutes in our reply brief that actually do that.

[00:20:22] Speaker 06:
When Congress wants to set the reference point as the time at which the offense occurred,

[00:20:26] Speaker 06:
it says that.

[00:20:27] Speaker 06:
It either explicitly says under 18 when the offense occurred or something similar to that, or it says in the juvenile justice statute, it talks about a person who's under 18 when they committed the crime.

[00:20:41] Speaker 06:
And here it doesn't do that.

[00:20:42] Speaker 06:
And again, I point out that if we're looking beyond just the privacy provision because the statutory definition applies across the entire statute,

[00:20:51] Speaker 06:
Many, many provisions of the statute don't make very much sense if you're keying this to the time of the offense and someone could be far older than 18 at the time the trial is occurring.

[00:21:03] Speaker 06:
and you're talking about appointing a guardian ad litem, you're talking about an adult attendant, you're talking about having a competency hearing to determine whether they are able to testify.

[00:21:12] Speaker 06:
These are all provisions that are dealing with the situation that Congress had in mind, which is someone who is still a child in the midst of these proceedings and wanting to testify.

[00:21:24] Speaker 03:
Well, even under your argument, the best you would make is that it's ambiguous, right?

[00:21:30] Speaker 06:
At the very least, I think it's ambiguous.

[00:21:32] Speaker 06:
And I think when you're dealing with this question of withholding statute, I think that's something to pay attention to.

[00:21:38] Speaker 06:
I don't think obviously that that means you need to have an unambiguous statute here because we're just dealing with FOIA as opposed to the entire interpretation of the statute.

[00:21:49] Speaker 06:
But I think it's something to keep in mind.

[00:21:51] Speaker 06:
I would also point out that you only get this far if you first get past the question of whether this is a withholding statute to begin with.

[00:21:59] Speaker 06:
And for the reasons we stated, we don't think it is to begin with.

[00:22:02] Speaker 06:
Okay.

[00:22:03] Speaker 03:
I find your argument on that point rather weak because of the word only.

[00:22:09] Speaker 04:
I'm sorry.

[00:22:10] Speaker 04:
That's all right.

[00:22:11] Speaker 04:
Unless my colleagues have any other questions, we'll... Are you okay, Judge?

[00:22:18] Speaker 04:
Let's hear from the government and we'll give you a little time on rebuttal.

[00:22:21] Speaker 01:
Thank you.

[00:22:26] Speaker 05:
Good morning, Your Honors, Peter Fafneroth for the government.

[00:22:28] Speaker 05:
The privacy question, this entire provision that we've been discussing is about privacy

[00:22:36] Speaker 05:
privacy protection and quote unquote confidentiality of information.

[00:22:41] Speaker 05:
And it's about protecting children.

[00:22:42] Speaker 05:
That's what Congress was doing by enacting the statute.

[00:22:46] Speaker 05:
The notion that the statutory language defining child somehow evaporates when someone becomes 18 because that happens to be the moment when they testify or that happens to be

[00:23:01] Speaker 05:
the moment when the victim finally takes the stand or a witness finally takes a stand just doesn't make sense in either logically or in terms of a statutory language itself.

[00:23:13] Speaker 05:
You are a victim the moment that Mr. Corley sexually traffics you.

[00:23:19] Speaker 05:
And in this case, the jury found that each of the girls was underage at the time.

[00:23:25] Speaker 05:
And that issue is simply, you know, settled law.

[00:23:29] Speaker 05:
Second Circuit has affirmed it and it's a done issue.

[00:23:32] Speaker 05:
Yes.

[00:23:33] Speaker 03:
Excuse me, counsel.

[00:23:34] Speaker 03:
Would you agree with your opponent that the statute is ambiguous?

[00:23:43] Speaker 05:
I don't think it is.

[00:23:44] Speaker 03:
You're reading it as child is defined as a person who is or was under the age of 18.

[00:23:52] Speaker 03:
Isn't that correct?

[00:23:53] Speaker 03:
That's the way you're reading it.

[00:23:57] Speaker 05:
I don't think that's actually a necessary way to read it.

[00:24:00] Speaker 03:
No, that's the way you're reading it.

[00:24:01] Speaker 03:
Isn't that the way you're reading it?

[00:24:06] Speaker 05:
I'm reading it that, Judge Silberman, I don't mean to fight you on this, but the person is a victim at the moment that they are sexually trafficked, and that status never ends.

[00:24:17] Speaker 03:
Excuse me, counsel.

[00:24:17] Speaker 03:
Go right ahead and fight.

[00:24:19] Speaker 03:
It's your job.

[00:24:21] Speaker 05:
Thank you.

[00:24:21] Speaker 05:
Thank you, Judge.

[00:24:23] Speaker 05:
I don't see it as being ambiguous, Your Honor,

[00:24:27] Speaker 05:
The person is a victim, and that person will remain a victim for all time because she was sexually trafficked by Mr. Corley when she was 16 years old.

[00:24:38] Speaker 05:
She is a victim forever.

[00:24:40] Speaker 05:
Yes, hopefully she'll live to a ripe old age, but she'll still be a victim of sexual trafficking of a minor.

[00:24:49] Speaker 03:
I think I understand your point.

[00:24:52] Speaker 03:
Let's assume, however, that it's ambiguous.

[00:24:55] Speaker 03:
Then what?

[00:24:58] Speaker 05:
then Congress did the balancing.

[00:25:00] Speaker 05:
And the reality is that the notion that FOIA is a disclosure statute, and therefore we have to err in favor of disclosure, that notion really doesn't have much force in the Exemption 3 context, where Congress has already done the balancing.

[00:25:20] Speaker 05:
If we were talking about some of the national security statutes,

[00:25:25] Speaker 05:
are well established as exemption three withholding statutes, even if there was a little bit of ambiguity there, the fact is we, Congress determined that national security secrets need to be kept secret.

[00:25:38] Speaker 05:
And we're not going to interpret that ambiguity in favor of a requester because Congress already did that balancing.

[00:25:47] Speaker 03:
But you didn't quite answer.

[00:25:49] Speaker 03:
So what is the doctrinal basis on which we would decide in your favor

[00:25:55] Speaker 03:
if we concluded Section 3509A was ambiguous.

[00:26:01] Speaker 03:
We can't give deference to the agency under FOIA or the Privacy Act, can we?

[00:26:10] Speaker 05:
No, there's not a single, you know, the Department of Justice as the agency that is applying all of these criminal statutes

[00:26:21] Speaker 05:
and is the agency that is clearly charged under the statute with, you know, prosecuting the individual.

[00:26:30] Speaker 05:
I mean, the Department of Justice is actually referenced in section D1B, nonetheless.

[00:26:37] Speaker 04:
Are you suggesting we owe deference to justices?

[00:26:39] Speaker 05:
I'm not suggesting that.

[00:26:40] Speaker 05:
I don't think that, you know, this is a... Nonetheless, I mean, the fact is if there were any such agency, it would be DOJ.

[00:26:49] Speaker 04:
The fact is, we don't, correct?

[00:26:50] Speaker 05:
You don't.

[00:26:51] Speaker 05:
No, that's true.

[00:26:51] Speaker 05:
OK.

[00:26:52] Speaker 04:
So why don't you just set that aside?

[00:26:54] Speaker 04:
Isn't the answer to Judge Sillerman's question, well, you then look at the policy underlying the statute?

[00:27:01] Speaker 04:
Doesn't that help us?

[00:27:03] Speaker 04:
Certainly.

[00:27:03] Speaker 04:
Or doesn't that help you?

[00:27:04] Speaker 03:
Or you would say, by my rephrase, Judge Schadl, is this a legitimate place to look at the purpose of the statute?

[00:27:17] Speaker 03:
And hypotheticals

[00:27:19] Speaker 03:
if you think about them, are a reduction to absurdity.

[00:27:25] Speaker 03:
His hypothetical of the picture being distributed on the internet 20 years later is so horrifying, Congress could not possibly have meant that, isn't it?

[00:27:41] Speaker 05:
That's right, Judge Sulberman.

[00:27:42] Speaker 05:
The purpose of the statute clearly is to

[00:27:46] Speaker 05:
both protect the privacy of the individual who was victimized as a minor, and to keep protecting that person, right?

[00:27:53] Speaker 05:
The statute talks about keeping the material under seal, and there's no time where that sealing expires in the statute.

[00:28:02] Speaker 05:
And Congress also, I think it is reasonable to infer, given the overall provisions of Section 3509 in terms of facilitating

[00:28:16] Speaker 05:
potentially very nervous children to participate fully and meaningfully in criminal prosecutions of their assailants would want to provide a variety of ways of making those children comfortable.

[00:28:32] Speaker 05:
And other provisions talked about, you know, having a guardian ad litem or somebody that they could sit on the lap of or what have you.

[00:28:39] Speaker 05:
But this provision was all about

[00:28:41] Speaker 05:
the privacy and many children would reasonably and their parents who are advising them and things like that would reasonably be very concerned about the long-term implications of the facts underlying this prosecution coming out later and causing re-victimization to the children.

[00:29:00] Speaker 03:
I don't care for normally referring to the purpose of the statute as opposed to the text, but if there ever was an

[00:29:11] Speaker 03:
example where it might be legitimate, it might be in this case, if we were to decide on this issue against you, the Supreme Court would reverse 9-0 because they don't care about text as much as purpose.

[00:29:29] Speaker 05:
Your Honor, I think the Supreme Court has already hinted, or well, not even just hinted, it said how it feels about this issue generally before Section 3509, what became law.

[00:29:39] Speaker 05:
in Globe newspaper, where it talks about the critical importance of protecting against psychological and other harm to child victims of sexual abuse.

[00:29:51] Speaker 04:
Yep.

[00:29:54] Speaker 04:
I asked Mr. Bo-Kat Lindahl about US versus Bryce.

[00:29:58] Speaker 04:
Do you know about that case?

[00:30:00] Speaker 05:
Your Honor, I confess that in my research, I clearly missed it, and I apologize.

[00:30:04] Speaker 04:
I don't know the case.

[00:30:06] Speaker 05:
I don't know the case.

[00:30:08] Speaker 05:
I don't know the case.

[00:30:11] Speaker 04:
I don't know the case.

[00:30:15] Speaker 04:
I don't know the case.

[00:30:18] Speaker 03:
I don't know the case.

[00:30:26] Speaker 05:
If it would be helpful to the court, I'd be happy to research it and submit a letter or whatever you'd like.

[00:30:32] Speaker 04:
That's okay.

[00:30:32] Speaker 03:
No, no, just no, no, no need to.

[00:30:35] Speaker 03:
The last thing in this case is longer briefs.

[00:30:42] Speaker 05:
I hear you, your honor.

[00:30:43] Speaker 05:
It is a little bit of a challenge when I have, I had a lot of briefs, including from the per se appellant that I had to respond to.

[00:30:51] Speaker 04:
Right.

[00:30:54] Speaker 04:
Any other questions?

[00:30:56] Speaker 04:
Do you have anything else you want to add?

[00:30:59] Speaker 04:
Anything you want to say about the other issues?

[00:31:02] Speaker 05:
I would like to rest on our briefs, Your Honors, and I would simply ask that the decision be affirmed.

[00:31:08] Speaker 04:
Okay.

[00:31:09] Speaker 04:
Thank you.

[00:31:11] Speaker 04:
Mr. Bo-Katlindale, you can take two minutes.

[00:31:15] Speaker 06:
Thank you.

[00:31:16] Speaker 06:
First, just a couple of points on that and then a couple of points on the issues that hadn't been discussed.

[00:31:24] Speaker 06:
First, as the textual point that Mr. Bappenroth was making about a victim or witness being a forever status, that's very much true.

[00:31:31] Speaker 06:
And so grammatically you say someone is a victim or witness forever.

[00:31:35] Speaker 06:
That's not the same when you're saying someone is under the age of 18.

[00:31:38] Speaker 06:
Once you turn 18 to say that this person is under the age of 18, no longer makes any grammatical sense.

[00:31:44] Speaker 06:
So I think that those two things, even though you use is for both, grammar clearly creates a difference there.

[00:31:50] Speaker 06:
I also think that, again, you're having to balance constitutional rights here.

[00:31:55] Speaker 06:
And the globe newspaper decision shows that there are other ways to balance these rights aside from just this statute.

[00:32:01] Speaker 06:
So we don't necessarily have to read the policy of the statute to the ends of the earth in order to what are the constitutional rights.

[00:32:10] Speaker 01:
So in a FOIA request.

[00:32:12] Speaker 06:
Well, it's not about the FOIA request, Your Honor.

[00:32:14] Speaker 06:
It's about the statute itself.

[00:32:15] Speaker 06:
And in the statute itself, Congress was balancing privacy rights against the constitutional rights of the defendant.

[00:32:21] Speaker 06:
If the defendant and the defendant's counsel were not allowed to receive a lot of these documents, you could have Brady problems.

[00:32:26] Speaker 06:
You could have other things.

[00:32:28] Speaker 02:
That balancing, you acknowledge, is not an issue here.

[00:32:31] Speaker 06:
It is in the sense that Exemption 3 is about the underlying statute.

[00:32:34] Speaker 06:
It's not so much about FOIA's interests.

[00:32:37] Speaker 06:
It's about what does the statute itself say and what is the statute itself doing.

[00:32:42] Speaker 06:
And when you're just doing a statutory interpretation of the Child Victims Act, I think you do have to consider the fact that there was this balancing going on in the creation of the statute itself.

[00:32:52] Speaker 06:
On the other issues, I want to point out that on the EOUSA Privacy Act issue, the only arguments the government has were that these are not agencies, even though clearly the statutory definition of agencies includes these subcomponents.

[00:33:06] Speaker 06:
And this court has gotten very close to the line of already saying that these are separate agencies.

[00:33:12] Speaker 06:
And as we point out in the reply brief,

[00:33:15] Speaker 06:
None of the documents that they point to actually shows that EOUSA made Privacy Act exemption arguments and likewise didn't show that the Justice Management Division had not received the appeal letter from Mr. Corley on that issue.

[00:33:33] Speaker 06:
I see I've gotten over my time.

[00:33:35] Speaker 04:
Okay, thank you.

[00:33:36] Speaker 04:
Mr. Bo Katlindal, you were appointed by the court to serve as amicus and we're grateful to you for your assistance.

[00:33:42] Speaker 04:
Thank you.

[00:33:42] Speaker 03:
May I add to that?

[00:33:44] Speaker 03:
I think it was a superb brief and an excellent argument.

[00:33:55] Speaker 06:
Thank you very much.

[00:33:56] Speaker 06:
I appreciate that.