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Base number 20-5378.

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DelaMatch, Inc.

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Appellant versus United States Department of Agriculture.

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Mr. Romano, Freddy Appellant.

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Mr. Walker, Freddy Appoli.

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Morning, Mr. Romano.

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We'll hear from you.

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Good morning, and may it please the court.

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My name is Anand Romano, and I'm counsel for the Appellant, DelaMatch.

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From 2009 to 2019, the Department of Agriculture routinely granted

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TeleMatch's annual FOIA request for spreadsheet data about agricultural programs.

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That consistent 10-year practice stopped in 2019.

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The law did not change, the requests did not change, and even the department's own FOIA guidance did not change.

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The only thing that changed was the person in charge of processing TeleMatch's FOIA requests.

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The government now maintains

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that it hadn't wrong all of those years.

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It defends its decision to withhold entire spreadsheets of government data on the grounds that exemptions three and six of the FOIA prohibited from disclosing just three data points contained in those spreadsheets.

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It claims that exemption three bars farm and track numbers that it creates and assigns to farmland.

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But exemption three does not apply because those labels and they're just labels are not geospatial information about agricultural land

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or operations.

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The government also argues that Exemption 6 prohibits it from releasing the customer numbers contained in those spreadsheets.

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Customer numbers are numbers that it creates and assigns to the farmers that participate in the programs.

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But Exemption 6 only protects things like medical records or personnel records that contain highly sensitive personal information.

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And in any event, release of the databases

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serves an important public purpose.

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Simply stated, neither FOIA exemption applies in this case.

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Moving to farm and tract numbers first, there's simply not geospatial information about agricultural land or operations.

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Now, exemption three of the FOIA, of course, prohibits the release of matters that are specifically exempted from disclosure by statute.

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And we don't dispute that there is a non-disclosure statute

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In this case, that non-disclosure statute is entitled seven of the United States code section 8791 B2B.

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And there it says that the department shall not disclose any geospatial information about agricultural land or operations.

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So the question isn't whether there is a disclosure non-disclosure statute.

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The question is whether farm and tract numbers fall within the boundaries.

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of this statute.

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I want to ask you a question about that because you concede in your brief at pages 52 and 53 that farm numbers and track numbers, quote, can be tied to a specific physical location, right?

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That's correct.

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They can be.

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Then why isn't that

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this positive that these are geospatial, that it's geospatial information because the common definition of geospatial in any dictionary is information that relates to a geographical location or a particular location.

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So if it's that simple, then I don't understand what the controversy is here.

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Well, it's not that simple, Judge Wilkins, and a number of responses to that.

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What's important for the court is to determine the legal meaning of geospatial information about agricultural land and operations.

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Now, the district court is, as you point out, relied solely on common usage dictionaries.

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And that can be helpful when there is no other legal meaning in the law.

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But it shouldn't have been used in the first instance, and it certainly should not have been used exclusively here.

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The United States Code has several sections that define geospatial information or geospatial data.

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But why does it apply to Title VII?

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I mean, why are we looking to other parts of the US Code and definitions from those when those weren't incorporated by Congress here?

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I mean, Congress knows how to say geospatial information here

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in this title means the same thing as it does in title 13 section.

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There there are a number of canons of statutory interpretation that are in play here and your honor raises one which is that true in the 1996 law in the 2018 law it says geospatial data or information as used in this section but there are other canons of statutory interpretation that are also in play here in peri materia which means

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If Congress has defined something about a very specific matter, and in this case, it's geospatial information, then we can look throughout the code to see what Congress has meant in the past.

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And what Congress meant in the past in 1996 is a much more narrow definition than what the district court concluded here.

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It was not just any data that can be tied to land.

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It was data that was necessarily about the characteristics of the land or the location

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of the land.

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And so what we have here is we flip what your honor's statement was.

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If Congress wanted to make the definition different for the purposes of 8791, that is when Congress should have said, we have a definition that's been on the books for almost 20 years, 20 years.

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Can you tell me a case where we have held or the Supreme Court has held that if

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Congress defines a term in a particular manner in a completely different title of the US Code.

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We presume that they mean the same thing in a separate title of US Code when they use that same term.

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I don't, Your Honor, have an authority on that, but the canons of statutory interpretation, I don't have it before me, though that are in play are imperium materia.

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which is the canon of statutory interpretation that says if Congress has previously decided to define a term specifically in a very specific and technical manner previously, that that will be imported into the subsequent statute unless Congress has decided to expand or limit the definition as it was created before.

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Otherwise, it's otherwise known as the presumption.

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to sections like all within the same title, subtitle that basically relate to each other because they're all about the same kind of, they're all part of the same, you know, statutory scheme that's at issue, right?

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Don't use inferior to say, oh, in title seven, they must be in the same thing that they said in title 18.

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Well, I don't necessarily agree with that, simply because the two statutes that are in play govern geospatial information.

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The 1996 statute was the statute that created the National Geospatial Intelligence Agency.

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It defines geospatial information in a limited matter.

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The 2018 act that I refer to is the Geospatial Data Act.

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And the government, even in its papers, has agreed, has conceded that that act actually applies to their analysis.

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So while maybe organizationally it was not placed in Title VII, because it was the farm bill, it was part of a farm bill, an omnibus bill, it wasn't placed in Title VII.

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The subject matter is exactly the same.

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It's about geospatial information.

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All right, so Mr. Romano, what are the definitions in that other statute that you'd like us to take a look at, and why do you keep saying that they're more narrow?

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They're more narrow.

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So in the 1996 law, which is 10 USC 467 subsection for the, and I'll quote it, the term geospatial information means information that identifies the geographic location and characteristics of natural or constructed features and boundaries.

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So the district court, and there's a similar, I'll read the Geospatial Data Act.

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It says that geospatial data is

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Information that is tied to a location on this earth, including by identifying the geographic location and characteristics of natural and constructed features and boundaries.

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So the district courts common usage definition was broad and just said anything that any data that can be associated with a particular plot of land any data.

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In these legal definitions, not the common usage definitions, but in these legal definitions, it's more narrow because it's data associated with the land.

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But that data has to be about the characteristics of the land, the height, whether there's water or the location or the boundaries of the land.

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That's not even what the statute says.

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You're talking about 43 USC 2801, right?

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For the Geospatial Data Act of 2018,

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The term geospatial data, that's what you just read, right?

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That's right.

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It means the information that is tied to a location on the Earth, which is that's the portion that the government cites.

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But it then goes on to say.

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And it says including by, but that doesn't mean that.

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And when you say including, it doesn't mean that it has to also identify that.

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It says, it could say including, but not limited to.

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It could be read that way, Your Honor.

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But including doesn't mean that it has to have everything that follows after including.

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That's giving one example of information that is tied to a location on the Earth.

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It could be read that way, Your Honor, and I agree with that.

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But what we have are two legal definitions that.

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And reading it that way would be consistent with the common usage in dictionary definitions, right?

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Well, but yes, but then what you have is basically an unspoken, indefinite definition.

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And we know that in the context of Exemption 3, this court as early as 1987,

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has said that exemption three non disclosure statutes must be read narrowly and that's from the Association of retired railroad workers versus the.

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I asked you about the definition that you want to apply, because I still am struggling to see why that doesn't.

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We have a situation, my understanding is that the USDA took maps, actual maps, which I think you can see the aerial maps themselves are geospatial data, no?

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Oh, we can see that the maps themselves with the data on them would be, yes, that's correct.

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So the maps they took,

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They drew boundaries.

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They drew boundaries that corresponded to the edges of farms, to tracks within the farms.

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There are polyglons on this map, I understand.

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And they numbered those, all right?

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So I don't understand why that doesn't fit even within the definition that you are putting forward.

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We have boundaries that relate to locations

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on a map that you concede counts as a geospatial font of information?

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Your honor, if we were asking for those maps and those polygons, then I would agree that that's 8791 B2B applies, but that's not what we've asked for in the request.

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In fact, we withdrew that request after the multi-ag media

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And after i'm sorry after the farm bill is.

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asking for a list of the numbers, but those numbers were derived from and relate to.

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the polygons on the map.

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So why isn't geospatial information, even as you've defined it, broad enough to encompass that?

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It's not numbers that had never had any relationship to a map or never had any relationship to location, right?

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They're only there because the USDA used a map, numbered the polygons, and then created a list.

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So what I don't understand is how that doesn't qualify because it relates to the list that exists.

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So in a FOIA request, we're only analyzing the requested records and whether those records fall within the non-disclosure statute.

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If you look at a farm number or track number,

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ABC, XYZ, that data, because that's the only data that we're asking for.

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We're not asking for the maps.

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We don't think we're entitled to them.

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We're not asking for the polygons.

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Let me give you, let me give you a hypothetical.

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You don't think the maps count because I hear you conceding that they qualify as geospatial data.

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Yes, that is true.

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In my hypothetical, we have a map

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that someone, some agency has drawn, you know, circles, squares, whatnot.

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And then there's a legend and the legend happens to be on the second page.

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And it says, you know, the squares are this location on the earth, the circles are this location, whatever.

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Just because you don't ask for the map, but you're seeking the legend doesn't seem to me that that means the second page is not geospatial data.

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You're making the argument that just because we're asking for that the list that tells us what's going on in the map, we're outside of the realm of be excludable under this statute.

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I am making that argument, Your Honor, that the first of the first page of the map would be would be properly withheld.

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But the second would not because it's not inherently geospatial.

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Another, I guess, counter hypothetical to that would be

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We all have drivers license it says brown eyes on mine and has all of your eye color on your licenses somewhere there's a government database that could theoretically put together a map of where all the brown eyed people live in in say Fairfax County all the blue eyed people and you could have a map.

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Are we now to say that that that the driver's license that has brown eyes and blue eyes on it because those eyes.

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You've done it the opposite right my medical posits that the data comes from the map.

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And that makes all the difference.

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It's one thing to have a data set that exists independently and that we make a map out of it.

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Then maybe you say, oh, that data existed.

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All the driver's licenses were somewhere already.

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And so the fact that someone made a map doesn't turn that into geospatial.

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I'm saying the opposite.

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That we start with the map.

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The map is the thing.

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And we've made now a list of the features of the map.

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And for you to suggest that those features, just because they're on a list somewhere, aren't geospatial, doesn't seem to make a lot of sense to me.

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Well, I would respectfully dispute the fact that the map comes first.

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You know, it's a little bit of a chicken and the egg.

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But farm and track numbers can be divided, transferred.

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They can move from plot to plant, plot to plot over time.

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And they often do.

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When there is a transfer,

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And if one farmer has a plot of land and they buy their neighbor's farmer, the middle boundary goes away and one of the farm numbers goes away and it expands.

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So these are fungible, these are fungible labels.

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They're not about the land themselves.

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These are labels that the government uses.

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So while that map remains static,

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While that aerial photograph remains static because it is about the land or the boundaries that you can see on it are about the land.

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Those labels can be modified.

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They can be moved.

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They can be eliminated.

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New ones can be created.

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It's not about the land.

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It's an administrative tool of convenience to label these agricultural plots of land.

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It's not about the characteristics.

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It's not about the location of the land.

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And in fact,

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A farm number can change it's the land to which it is it is assigned the farm number can move.

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To different plot of land and the characteristics you know farm number ABC number 123 is transferred down the road.

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Then there are different characteristics of that land that's not to say that that land characteristics change it's to say that the label change so.

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So you want a code which, as I understand it, is nothing but a pointer to some specific plot of land.

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Is that not right?

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The code is just USDA shorthand for

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Whatever farmer Jones plot at 707 degrees north and 10 degrees west.

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That's what the correct.

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It is, but it is meaningless in terms of geo locating or geospatial if you don't have the seven degrees north or the location or the map, so it is the reason it's important to our client, though, is its combination with.

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farm numbers and those other types of natural cover.

[00:18:42] Speaker 03:
It's important to your client precisely because you can use other stuff to figure out to break the code and figure out the XYZ really means Farmer Jones plot.

[00:18:56] Speaker 00:
Well, there's actually nothing in the record that that discusses farm and track numbers and the government obviously has the burden to prove

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exemption three status.

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I see that I'm already far over my time.

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We'll give you some more time because I want to hear from you about the exemption six argument.

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So it seems like your response to Judge Katz's question is like saying, well, if we request social security numbers, all of the applicants, that's not really

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personal information because if they just give us social security numbers without the names, we won't know whose social security numbers we're getting.

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We'll just have a list of social security numbers.

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But that doesn't change the fact that a social security number is personal information, does it?

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I think that the analogy to social security numbers fails because

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Social security numbers are tied to any number of privacy type information.

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The customer numbers are used within a closed universe, a universe that we don't have access to, other than the spreadsheets that we've received for 10 years in a row.

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And so it isn't tied to individual data.

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You can take a, I can't do this, but hackers can take a social security number and tie that to other

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personal information and in the exemption six analysis.

[00:20:33] Speaker 01:
Wait, before you do that, can I just ask you really quickly?

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What about addresses?

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Addresses, geospatial or not?

[00:20:40] Speaker 00:
No, they're not geospatial because they are, and a good example is they're just labels of property.

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When you have an address, if you looked at 101 Cottage Street, you wouldn't know where that was.

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So what do you do?

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You type it into your phone,

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Your phone converts that using geospatial data, and then it provides you with a geospatial record of where it is.

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But the address by itself is simply a label.

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That label can be, the clock can be divided, and 101 Cottage Street can turn into 101 and 103 Cottage Street, or they could rename the street.

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It's just a label, and a label, just a label, a naming label is not geospatial.

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It's not about the characteristics of the land or the location

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So no, I don't think, and the government incidentally agrees with that.

[00:21:29] Speaker 01:
It's not, excuse me, it's not information about geospatial, something geospatial.

[00:21:36] Speaker 01:
Exactly.

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Exactly.

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That's your thing.

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Why is that?

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Why is it not information about geospatial something?

[00:21:44] Speaker 00:
Because it's not, it's not information about characteristics of the land or the location of the land.

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And the government agrees with this because one of the files that's responsive to our request is called the names and addresses file.

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And it identifies all of the residential addresses.

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They never have asserted exemption three status over addresses, over residential addresses.

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Now, we were the ones that identified a potential problem, not under exemption three, but with exemption six, although we don't think that there is one.

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But if the government thought that

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farm and tract numbers were geospatial, then you would easily think that they would have concluded the same about names and addresses.

[00:22:27] Speaker 01:
Don't they have to give that information under some other statutes?

[00:22:32] Speaker 00:
Which, yes.

[00:22:33] Speaker 00:
Well, they have to give names, addresses, and payment information, but not names and addresses by themselves.

[00:22:40] Speaker 00:
And so.

[00:22:40] Speaker 01:
I'm sorry to take you back to three.

[00:22:44] Speaker 00:
That's OK, Your Honor.

[00:22:45] Speaker 00:
So while I'm trying to think back to Judge Wilkins,

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question, but the customer numbers is not like social security number because a social security number in an exemption six analysis, we can look to derivative uses.

[00:23:01] Speaker 00:
What can someone do with this information once they look at it?

[00:23:05] Speaker 00:
The burden is very high though to prove that there is a derivative use.

[00:23:11] Speaker 00:
The government has to prove that there's a substantial probability that disclosure will cause interference

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with personal privacy.

[00:23:18] Speaker 00:
Government hasn't done that at all, hasn't explained at all with any level of detail.

[00:23:22] Speaker 00:
But even if we go back and we're back off of the customer number itself, Exemption 6 only applies to medical records, to personnel records, or something like that.

[00:23:34] Speaker 00:
So you think of a FOIA request for DOJ personnel files, Exemption 6 prohibits that, the disclosure of those personnel files.

[00:23:44] Speaker 00:
or medical files.

[00:23:45] Speaker 01:
This court has precedents that indicate it can be a bit of information.

[00:23:51] Speaker 01:
It doesn't have to be a whole file.

[00:23:52] Speaker 00:
That's correct.

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That's correct.

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And a good example of that is someone wants to get a Medicare or Medicaid payment to pay for their medical costs.

[00:24:02] Speaker 00:
You don't have to send the whole medical file over.

[00:24:04] Speaker 00:
You can set up a bit of information.

[00:24:06] Speaker 00:
But these are big government created administrative spreadsheets.

[00:24:10] Speaker 00:
That's not

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That's not what Exemption 6 is intended to cover.

[00:24:17] Speaker 00:
It's not government administrative files.

[00:24:21] Speaker 00:
And to the contrary, FOIA specifically targets these types of government spreadsheets because that is exactly the purpose of FOIA is so that you can ask to see what the government is up to.

[00:24:33] Speaker 00:
Well, there's no better way to see what the government is up to than to look at its administrative files, these files that they create in their course of

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governing and their course of business that demonstrate where the payments are going.

[00:24:47] Speaker 00:
What land is being conserved?

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How long is it being conserved?

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Is it being conserved the way it was supposed to be?

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Are the payments, are families splitting up so that they can receive subsidy caps beyond the statutory limit?

[00:25:01] Speaker 00:
So with the Exemption Six analysis, there are really just two main points.

[00:25:05] Speaker 00:
One, these aren't the types of files that Congress intended to protect.

[00:25:09] Speaker 00:
They're not personnel files, they're not medical files, or even personnel or medical type, highly sensitive information.

[00:25:16] Speaker 00:
Most of these farmers don't even know what their customer numbers are.

[00:25:18] Speaker 00:
They input it in if they have to log into the USDA websites, but it's not personal information.

[00:25:25] Speaker 00:
And to the extent that, you know, even the district court agreed that customer numbers, quote, disclose nothing about an individual farmer to the public, including the farmer's identity.

[00:25:38] Speaker 01:
Do you dispute that the customer numbers can be used to identify farmers personal when combined with other publicly available information.

[00:25:51] Speaker 00:
I do dispute it only because I haven't seen an argument or any type of evidence in their in the government's papers in the district court or here.

[00:26:00] Speaker 00:
that raises the substantial probability that there is interference with the privacy interest.

[00:26:06] Speaker 00:
No, no, no.

[00:26:07] Speaker 01:
I'm asking a different question.

[00:26:09] Speaker 01:
I thought that we had declarations that indicated that a customer number could be used

[00:26:16] Speaker 01:
in conjunction with other publicly available information to identify farmers.

[00:26:22] Speaker 01:
So we do have some evidence about that.

[00:26:23] Speaker 01:
And my question is, do you dispute that?

[00:26:26] Speaker 01:
And if so, where is your evidence that these customer numbers cannot be used in that way?

[00:26:32] Speaker 00:
So so I don't dispute that there is a declaration that says that if you use some type of federal or state requirement records somewhere that there could be

[00:26:44] Speaker 00:
some type of privacy interest, but we don't know what there's no evidence no affidavit evidence or no exemplary evidence of what those state records are federal records are no evidence of how they could be used no evidence about.

[00:26:58] Speaker 00:
how they could be, they can infringe on a privacy interest.

[00:27:02] Speaker 00:
And that certainly does not raise, it does not satisfy the very high burden of substantial probability that personal privacy could be threatened, especially when none of the records that we have can combine customer numbers with individual names.

[00:27:20] Speaker 04:
We have procedures in summary judgment for a reason.

[00:27:25] Speaker 04:
And at JA277,

[00:27:28] Speaker 04:
we have the government statement of undisputed fact.

[00:27:33] Speaker 04:
Paragraph 30 says that existing publicly available data can be connected with information from these FOIA requests, including the customer number, to form a comprehensive picture of these businesses.

[00:27:51] Speaker 04:
And that was supported by the Buchan

[00:27:55] Speaker 04:
I'm probably not pronouncing that correctly.

[00:27:57] Speaker 04:
Decoration paragraph 14.

[00:28:01] Speaker 04:
You had an opportunity, if you chose, to say we dispute paragraph 30, and we don't think that that fact is true, and here's our counter-appidavit.

[00:28:19] Speaker 04:
But you didn't do that, did you?

[00:28:21] Speaker 04:
No, we did not.

[00:28:23] Speaker 04:
So to accept

[00:28:26] Speaker 04:
the record as it is, that paragraph 30 is established for summary judgment purposes, right?

[00:28:36] Speaker 00:
We can, yes, that is correct.

[00:28:38] Speaker 00:
The way that this is drafted is undisputed in our case.

[00:28:44] Speaker 04:
So does that answer Judge Jackson's question about what the state of the evidence is here?

[00:28:52] Speaker 04:
in that there is evidence in the record that's undisputed that the customer number can be linked with publicly available data to form a comprehensive picture of these individual small businesses.

[00:29:07] Speaker 00:
So the statement here is established for purposes of summary judgment, but it's still the government's burden to satisfy, to prove that there is a substantial probability

[00:29:22] Speaker 00:
of a threatened privacy, right?

[00:29:25] Speaker 00:
And this, even if established, doesn't even come close to meeting that standard.

[00:29:30] Speaker 00:
So even if you look at the amount of evidence, it's just scant evidence, vague evidence, really no examples at all.

[00:29:39] Speaker 00:
Had the government put in an example of you take X record and you combine it with Y record, and this is the privacy record, that interest that's revealed, and this is a problem because of

[00:29:51] Speaker 01:
So Mr. Romano, you seem to be rejecting page 287 in the declaration of Philip Buchanan, paragraphs 11, 12, 13, where he goes into examples of the manner in which the farm and track numbers may be combined with other publicly available data to specifically identify a farm or track and the extent to which that is problematic.

[00:30:20] Speaker 01:
for a particular farmer.

[00:30:22] Speaker 00:
You're saying it's not sufficient?

[00:30:25] Speaker 00:
I am saying it's not sufficient.

[00:30:26] Speaker 00:
Even though in the declaration itself, there are some other vague references to, well, if you just use the internet, you could figure this out.

[00:30:36] Speaker 00:
That's not sufficient to satisfy the substantial probability of a privacy interest being threatened.

[00:30:42] Speaker 00:
Who's privacy interest?

[00:30:44] Speaker 00:
How is there a privacy interest even involved when you can't link a customer number to a name?

[00:30:50] Speaker 00:
Whose privacy interest is threatened?

[00:30:52] Speaker 00:
We don't know.

[00:30:54] Speaker 00:
So if there's no way to know that citizen ABC XYZ, maybe it's good to say, well, we could threaten the privacy interests of that particular number, but we have no idea who in the country that is.

[00:31:09] Speaker 00:
So there's certainly no substantial probability that privacy concerns will be threatened in this case.

[00:31:16] Speaker 00:
So it's insufficient evidence to

[00:31:19] Speaker 00:
satisfy the very high burden that the government has on exemption six.

[00:31:23] Speaker 04:
Are you telling me that when we read this declaration in pages 287 and 288 that Judge Jackson referred to, that that's not saying that people can identify a person

[00:31:42] Speaker 04:
associated with a farm or track number or a customer ID?

[00:31:47] Speaker 04:
You're saying that this this affidavit isn't telling us that?

[00:31:51] Speaker 00:
I'm saying that this, no, the affidavit says what it says.

[00:31:55] Speaker 00:
I'm saying that that is an insufficient amount of evidence by far to satisfy the very high burden that the government has to prove that there is a substantial probability that a privacy right will be threatened or that there'll be a revelation of some sort of

[00:32:09] Speaker 01:
Isn't that the whole reason why you are seeking this information?

[00:32:17] Speaker 01:
I mean, why your client is seeking data and information, these numbers that USDA

[00:32:26] Speaker 01:
has precisely because, my understanding was, you want to try to identify the farms, figure out whether or not people are improperly being subsidized, figure out.

[00:32:38] Speaker 01:
So you have to know who the people are in order to do that, right?

[00:32:41] Speaker 01:
You say we want to know what the government is up to, but the way in which you know what the government is up to in the way that you're talking about is you identify who the people are who are getting these monies, who are putting in the applications, and you then determine

[00:32:55] Speaker 01:
whether the government is doing what it's supposed to do.

[00:32:59] Speaker 01:
So I don't know how you can have it both ways, right?

[00:33:01] Speaker 00:
Well, so I think I have an answer for that.

[00:33:04] Speaker 00:
That no, we're not intending to be or the argument isn't, we'd like to be the private attorney general here.

[00:33:13] Speaker 00:
The idea is that we can determine statistically one way or another, what are the compliance rates?

[00:33:19] Speaker 00:
You don't need the individual names for that.

[00:33:21] Speaker 00:
How many, if there are 10,000,

[00:33:23] Speaker 00:
customer numbers out there.

[00:33:24] Speaker 00:
How many of those customer numbers are receiving subsidies and access to the statutory caps?

[00:33:30] Speaker 00:
It's more of a snapshot on the efficiency of the program, whether there's fraud, waste, and abuse in the program.

[00:33:37] Speaker 00:
It's not, hey, we think we've nailed Farmer Jones over here because we've now linked this to the individual names.

[00:33:44] Speaker 00:
It is more of a public oversight argument where you don't need and nor do we want the individual names

[00:33:52] Speaker 00:
at all in this.

[00:33:53] Speaker 00:
It's the customer numbers as a percentage say, of customer numbers, how many of them are abusing the system.

[00:34:00] Speaker 00:
And just one correction there too though, farm and tract numbers are not part of the exemption six analysis.

[00:34:06] Speaker 00:
So we put those aside, those are just under the exemption three analysis.

[00:34:10] Speaker 00:
So we look at also compliance rates, how many customers are complying with the conservation requirements if their land is in,

[00:34:19] Speaker 00:
conservation for 10 years, that land is transferred to a different customer number because they sold it.

[00:34:24] Speaker 00:
Does that landowner all of a sudden in year four turn it into soybeans?

[00:34:28] Speaker 00:
Well, that would be a violation of the conservation rule.

[00:34:31] Speaker 00:
So it's not about identifying specific individuals in violation of certain rules.

[00:34:41] Speaker 00:
It's the aggregate, maybe statistical type,

[00:34:44] Speaker 00:
review of that, the public, and that's what the public monitoring aspect of it is.

[00:34:50] Speaker 00:
It is divorced from the individual names and addresses.

[00:34:55] Speaker 04:
Can I ask you a question about statutory interpretation questions?

[00:35:02] Speaker 04:
So talking about exemption three, you were looking at

[00:35:09] Speaker 04:
The limitation on disclosure is at seven USC 8791.

[00:35:13] Speaker 04:
All right.

[00:35:16] Speaker 04:
So B. And in the limitations are in sub B, two A and B. And the geospatial information limitation is in B. But in two A, it says,

[00:35:39] Speaker 04:
that the secretary is not supposed to disclose information that is provided essentially the way I read this by a farmer in order to participate in the programs of the department.

[00:35:58] Speaker 04:
Correct.

[00:36:00] Speaker 04:
Isn't that an articulation?

[00:36:03] Speaker 04:
by Congress, whether we agree that it's good policy or not, we can debate that.

[00:36:10] Speaker 04:
But ultimately, Congress sets policy.

[00:36:12] Speaker 04:
We don't.

[00:36:14] Speaker 04:
Isn't that an articulation by Congress specifically that they don't intend to have disclosed information that these applicants for subsidies

[00:36:32] Speaker 04:
give to the government in order to participate in the program.

[00:36:36] Speaker 04:
And shouldn't that, even though we're dealing with exemption six, which is this balancing, but shouldn't this prohibition and Congress's view about non-disclosure of information that's provided by farmers to participate in the program

[00:37:01] Speaker 04:
Shouldn't that weigh in how we balance the public interest versus the privacy interest?

[00:37:10] Speaker 00:
If I understand your argument or your question, Your Honor, it is you're still referring to customer numbers here.

[00:37:19] Speaker 00:
Yes.

[00:37:20] Speaker 00:
And even though we are analyzing customer numbers under Exemption 6, Your Honor is suggesting, well, shouldn't we still look to this

[00:37:29] Speaker 00:
non-disclosure statute subsection B2A to help inform the exemption six analysis?

[00:37:37] Speaker 00:
Yes.

[00:37:39] Speaker 00:
So maybe not surprisingly, my answer is no, it doesn't because customer numbers and the reason the government hasn't argued this is customer numbers do not fall within subsection B2A.

[00:37:52] Speaker 00:
The government admits this on Joint Appendix 275, paragraph 22,

[00:37:57] Speaker 00:
they admit that the numbers are not submitted by farmers, the customer numbers.

[00:38:02] Speaker 00:
Now remember, we're just talking about the customer numbers here.

[00:38:05] Speaker 04:
But I guess what the government does say is that you can use the customer numbers to link to other information that would give you kind of information that tells you the financial structure of a particular farm.

[00:38:27] Speaker 00:
Right.

[00:38:29] Speaker 00:
Well, yes, I think we have to be very careful about this derivative use argument, because if we start if we start looking to who the requester is and what the requester does with the information and instead of the government adjudicating a FOIA request by looking at the records that are being requested, which is the proper analysis, they started adjudicating the requesters themselves.

[00:38:53] Speaker 00:
And you have a couple of different problems.

[00:38:55] Speaker 00:
You obviously have

[00:38:56] Speaker 00:
the potential for discriminatory conduct.

[00:38:59] Speaker 00:
But say we're a for-profit company.

[00:39:02] Speaker 00:
Say you have a watchdog agency that asks for the exact same records.

[00:39:06] Speaker 00:
We don't get it because they think, well, you have the ability or the opportunity to link it with other things, and all of this other information would be unlocked.

[00:39:16] Speaker 00:
But the watchdog agency, the government says, well, you're the good guys.

[00:39:20] Speaker 00:
We'll give it to you.

[00:39:21] Speaker 00:
What's to say that that information won't be sold by the good guys

[00:39:25] Speaker 00:
to anybody else.

[00:39:27] Speaker 00:
So I think we have to be very, very careful.

[00:39:29] Speaker 00:
And that's why there's such a high burden for the government, substantial probability to invade a private right or privacy information.

[00:39:38] Speaker 00:
We have to be very careful about derivative use because you start adjudicating the requesters.

[00:39:43] Speaker 00:
And as a practical matter, I think that just that really just takes away that the whole idea that FOIA is about looking to the government records to determine whether the

[00:39:52] Speaker 00:
records themselves are releasable to show the world what the government is up to.

[00:39:58] Speaker 00:
So I don't think, I don't, I'm sorry.

[00:40:01] Speaker 04:
But thank you for, you've answered my question.

[00:40:04] Speaker 04:
Judge Katsas, do you have any questions?

[00:40:06] Speaker 04:
Okay, nothing else.

[00:40:08] Speaker 04:
All right, we'll give you a couple of minutes on rebut.

[00:40:11] Speaker 04:
Thank you.

[00:40:12] Speaker 04:
Mr. Walker.

[00:40:16] Speaker 02:
Thank you, your honor.

[00:40:17] Speaker 02:
May it please the court.

[00:40:18] Speaker 02:
My name is Johnny Walker.

[00:40:19] Speaker 02:
I'm representing the Department of Agriculture.

[00:40:22] Speaker 02:
I would like to start with the topic under discussion just now about whether or not customer numbers can be linked to particular individuals.

[00:40:30] Speaker 02:
Now, what my friend on the other side says is that the government has not presented sufficient evidence in our declarations to show that to be true because it lacks any examples.

[00:40:38] Speaker 02:
We disagree with that, but that is not all we have relied on.

[00:40:41] Speaker 02:
If the court will refer its attention to page 109 of the joint appendix,

[00:40:46] Speaker 02:
This is a declaration put into the record by the plaintiff, by telematch.

[00:40:51] Speaker 02:
And in paragraph 59 of that declaration, they represent to be in possession of what they refer to as a name and address file.

[00:40:58] Speaker 02:
And what you'll see from that file is that it contains names, addresses, zip codes linked to a customer number.

[00:41:06] Speaker 02:
This is something they have, something they've put into the record, and they know full well that there is information in the public domain in their possession

[00:41:15] Speaker 02:
that links customer numbers to specific individuals.

[00:41:19] Speaker 02:
And so the problem that we have is that what this case is is essentially a redux of multi-ag media.

[00:41:25] Speaker 02:
You have essentially the same requester seeking essentially the same information about farms and farming practices from the USDA.

[00:41:33] Speaker 02:
Now in multi-ag media, this court conducted an exemption six balancing analysis and determined that the USDA must release

[00:41:42] Speaker 02:
to the requester, information about farming operations that is tied to specific farmers and farms.

[00:41:49] Speaker 02:
But critically, what happened right after multi ag media in response to that case is the United States Congress passed a statute, Section 8791B, it's of critical importance in this case,

[00:42:02] Speaker 02:
And what that statute says is it essentially undertakes the exemption six balancing for itself.

[00:42:09] Speaker 02:
And it says that the USDA may continue to release payment information that is tied to specific names and addresses and in this case USDA did release that information to tell the match.

[00:42:21] Speaker 02:
but it is prohibited from releasing two types of information.

[00:42:25] Speaker 02:
One is geospatial information, and the other is information about agricultural land operations or conservation practices, unless, and there is an exception, and this is the exception that matters, because what my friend would like to pretend is that the information that's being protected by that statute are the numbers themselves, because those are not submitted by the farms and farmers that they don't fall under the statute.

[00:42:49] Speaker 02:
But the statute does prohibit us from releasing the substantive information about farming practices, unless that information is anonymized.

[00:42:58] Speaker 02:
That is that it is released, quote, without naming any individual owner, operator or producer or specific data gathering site.

[00:43:08] Speaker 02:
Because the customer numbers would name specific owners, operators, and producers, and because the farm and tract numbers would name specific farms and tracts, the USDA is compelled to withhold that information when it releases the substantive farm information.

[00:43:24] Speaker 02:
And I'd also like to correct a misstatement that my friend made during his opening, which is that the USDA withheld the full spreadsheets because they contain that information, and that is not the case.

[00:43:34] Speaker 02:
In the denial letters, they're all within the record here, but the USDA said to telematch is that it could have all of the substantive farm information that is in the USDA's files.

[00:43:45] Speaker 02:
But it would have to withhold only those three numbers and releasing that information and maybe the case that telematch did not take the USDA up on that offer, but the USDA did not withhold the full spreadsheets with one exception, and that is the spreadsheet containing only names addresses and customer identification.

[00:44:05] Speaker 02:
I'd also like to address one of the issues that was raised in the briefs and the problems reply brief now we relied on this case central plat for the proposition that the was the eighth circuit upheld the denial of.

[00:44:23] Speaker 02:
farm and track numbers in that case.

[00:44:25] Speaker 02:
And in appellants reply, they make the argument that in that case, the opponent requested the farm and track numbers tied to individual images there's actually nothing of the sort stated in either the district court opinion or the Court of Appeals opinion in that case what the

[00:44:41] Speaker 02:
What the district court opinion makes clear is that the requester sought farm and track numbers from the database that contains the images, but not necessarily the images itself.

[00:44:50] Speaker 02:
That's exactly what telematch is seeking here.

[00:44:53] Speaker 02:
They want the farm and track numbers connected with all of the substantive farms and tracks

[00:44:58] Speaker 02:
that are connected with all the substantive farm data that is also in the records that they request so that they can tie all that information back to specific farms.

[00:45:08] Speaker 02:
But again, 8791's anonymizing requirement compels the USDA to withhold that information and make sure that those farms and tracts cannot be identified because they are data gathering sites.

[00:45:21] Speaker 01:
Can you help me understand why you're calling this an anonymizing requirement?

[00:45:26] Speaker 01:
The 8791B4 begins with nothing in this subsection affects the disclosure of information if the information has been transformed, I'm in B now, into a statistical or aggregate form without naming any.

[00:45:41] Speaker 01:
So I guess I'm trying to wrap my mind around the language in relation to your argument that this is some kind of requirement to not release

[00:45:55] Speaker 01:
personally identifying information.

[00:45:58] Speaker 02:
Sure, Your Honor.

[00:45:59] Speaker 02:
It doesn't actually relate directly to our geospatial argument.

[00:46:02] Speaker 02:
Our geospatial argument is simply that when this court reads an undefined term in a statute like this, it uses the ordinary meaning.

[00:46:09] Speaker 02:
It's not a highly technical meaning derived from Wikipedia articles, not meanings that are specific to other statutes and applications, the ordinary meaning.

[00:46:17] Speaker 02:
And we have three dictionary definitions to show that the ordinary meanings support our reading.

[00:46:21] Speaker 02:
So geospatial is somewhat, our argument about the geospatial information is aside from this disclosure exception.

[00:46:27] Speaker 02:
Where this comes into play is the argument that we made in the district court that has not been developed in this court, that the farm and tract information, the farm and tract numbers are independently withheld as a result of this condition on disclosure, because the government can only release the substantive farm information if it withholds information that would name the specific data gathering site, which the farm and tract numbers do.

[00:46:54] Speaker 01:
If that argument was not really raised here, then

[00:46:56] Speaker 01:
Isn't it waived in some way, like I'm struggling.

[00:47:00] Speaker 02:
It's not.

[00:47:01] Speaker 02:
It's not waived by us your honor the district court did not address it and appellant did not erase in their opening appeal in their opening brief.

[00:47:08] Speaker 02:
We mentioned it in our brief simply to note that if the court were to rule against us on the, on the.

[00:47:15] Speaker 02:
geospatial argument, then it would have to remand to the district court as its usual practice to consider that argument.

[00:47:21] Speaker 02:
The court could consider it if it pleased for the first time in the appeal, but because neither appellant argued about it in the opening brief and because the district court did not address it, the normal practice would be to remand to address it in the district court in the first instance.

[00:47:35] Speaker 02:
And the way that this, the way that the disclosure exemption relates to our exemption six argument is, as I said, this statute is essentially a rebalancing of the public and private interest factors by Congress, following this court's decision and multi ag media.

[00:47:51] Speaker 02:
And so when plaintiff makes an argument that it needs the customer numbers tied to the farm data so that it can it can engage in these compliance and monitoring activities, our argument is simply that.

[00:48:07] Speaker 02:
That's what multi ag media found, but the landscape is very different now because we only release this information in a fully anonymized form.

[00:48:16] Speaker 02:
And plaintiff does not say that they can conduct any sort of monitoring activities with the data in a fully anonymized form.

[00:48:23] Speaker 02:
And to the extent that they can, it has been offered to them.

[00:48:25] Speaker 02:
The USDA said that they would provide all of this data without the customer numbers that would name the specific customers as the USDA has shown and as plaintiff has admitted in JA 109.

[00:48:37] Speaker 04:
I guess the question that I had of your friend on the other side is, shouldn't kind of the presence of this statute and how Congress altered the statutory scheme after multi ag media, shouldn't that play a role in our exemption six balancing analysis?

[00:49:02] Speaker 02:
Yes, right.

[00:49:03] Speaker 02:
And I think the answer is exactly yes for the reasons that I mentioned I mean if you look step back and look at the at the broader picture here.

[00:49:10] Speaker 02:
Multi ag media conducted the exemption six analysis in the way that that plaintiff suggests and Congress within a year stepped in with a statute intended specifically to abrogate that result.

[00:49:21] Speaker 02:
And as a result of that statute, a different result is compelled.

[00:49:25] Speaker 02:
Like I say, the government is prohibited from releasing any of the substantive information about farming practices that plaintiff wants.

[00:49:33] Speaker 02:
And it's important to note that plaintiff does not say that these substantive information about farming practices, conservation practices, and the land itself that it is seeking would not invade on the privacy of an individual if tied to an individual.

[00:49:46] Speaker 02:
Their sole argument is that the customer number, release of the customer numbers in the abstract

[00:49:50] Speaker 02:
would not invade on the privacy of that individual because it doesn't identify an individual.

[00:49:55] Speaker 02:
That's wrong in two respects.

[00:49:56] Speaker 02:
Number one is that it can be tied to an individual and they have the list to do it.

[00:50:00] Speaker 02:
And number two is because they haven't just requested customer numbers in the abstract.

[00:50:04] Speaker 02:
They have requested customer numbers associated with the very type of substantive information about farming practices that they concede would invade on a person's personal privacy and that the USDA is prohibited from associating together

[00:50:19] Speaker 02:
by Section 8791.

[00:50:27] Speaker 01:
So is that argument about whether there is a privacy interest or whether in the balance any privacy interest

[00:50:34] Speaker 01:
outweighs their need for the information or the public's interest in the information.

[00:50:41] Speaker 02:
It's really about balancing, Your Honor, because I think they can see that there is a privacy interest in the farming practices here to the extent that they can be tied to an individual.

[00:50:50] Speaker 02:
They've never said otherwise.

[00:50:52] Speaker 02:
And indeed, the court in multi-ag media found that there was a substantial privacy interest.

[00:50:56] Speaker 02:
The balancing just came out the other way.

[00:50:58] Speaker 02:
And it's important to note one of the files requested here is exactly the same file that was requested in multi-ag media.

[00:51:04] Speaker 02:
And all of the information is about farming practices, the land itself, conservation practices.

[00:51:09] Speaker 02:
So plaintiff puts up no argument that if we're able to tie the actual substantive information about agricultural operations to individuals, that that would be a substantial invasion of personal privacy, and it clearly can be tied to individuals.

[00:51:23] Speaker 02:
So the question is then how does the balancing come out and because of this statute that was passed after multi media with the specific intent to change the result of multi media that balancing comes out another way.

[00:51:35] Speaker 02:
All the information that they would be able to get and that they have gotten is anonymized and it shows only sort of the substantive information without any association to a particular customer.

[00:51:48] Speaker 02:
One other thing that I would like to get I think I think my my friend on the other side made an argument about that the USDA previously released addresses, and that if you know these farm and track numbers are geospatial then why weren't addresses geospatial, and it has to do with how this information is maintained so the geospatial limitation.

[00:52:09] Speaker 02:
under B2A, I'm sorry, B2B refers to geospatial information otherwise maintained by the secretary about agricultural land or operations for which information described in subparagraph A is provided.

[00:52:22] Speaker 02:
Now that would be actual farms and tracks, farm track numbers designate.

[00:52:28] Speaker 02:
The addresses that are in the file that was released to plaintiff and it appears at 109 in the Joint Appendix, those are the addresses of individuals who received subsidy payments from the USDA.

[00:52:40] Speaker 02:
So there's not a total, those addresses would not necessarily meet the other criteria of 2b, which is that they'd be about agricultural land or operations.

[00:52:52] Speaker 01:
just ask you back to the balancing point, because I'm really a little struggling with the language in multimedia, multi ag that seems to indicate that there is a strong public interest in information that could help evaluate how well the agency is determining eligibility, policing noncompliance, etc.

[00:53:17] Speaker 01:
So do you dispute

[00:53:19] Speaker 01:
there is any public interest in that or are you just saying it's not been established a need for it here or what is your response to that?

[00:53:28] Speaker 02:
Yes, Your Honor.

[00:53:29] Speaker 02:
So I would say that there is some public interest there, but Congress has rebalanced it in a significant way.

[00:53:35] Speaker 02:
So in multi-ag media, what was requested and what the court ordered released was substantive information about farming practices that could be tied to farms and tracks and customers, tied to specific farms and farmers.

[00:53:49] Speaker 02:
And what Congress said following multi-ag media is, you know what, you can release information about farming operations

[00:53:57] Speaker 02:
But only if it meets the conditions of B4, one of which is that the disclosure of information must be transformed in a way that does not name any individual owner, operator, or producer, and that does not name any specific data gathering site.

[00:54:14] Speaker 02:
So because of that, the balancing is now that there's an interest in getting anonymized

[00:54:22] Speaker 02:
data about farming operations, and that to the extent that monitoring can be done with that, it is releasable.

[00:54:29] Speaker 02:
But the sole argument that Telematch is making here, because what it wants to do is identify those customers.

[00:54:34] Speaker 01:
The sole argument it's making here is... But Ms.

[00:54:36] Speaker 01:
Walker, I feel like you're mixing exemptions, right?

[00:54:38] Speaker 01:
So to the extent that there is a statutory provision that prevents the government from releasing

[00:54:44] Speaker 01:
identifiable information in the way that you say, came after multimedia, fine.

[00:54:51] Speaker 01:
Why isn't that an exemption three argument?

[00:54:54] Speaker 01:
If we're in exemption six world, then I don't know that Congress is setting up the statute in the way that it did actually is responsive to my question about public interest.

[00:55:06] Speaker 01:
Isn't there a public interest in this information?

[00:55:10] Speaker 02:
Well, like I said, the only public interest that telematch has articulated.

[00:55:16] Speaker 02:
is that it has a public interest and a need to have information about farm operations tied to customer numbers.

[00:55:25] Speaker 02:
And what we're saying is if that's your argument, it fails under exemption six, because you can't get information about farming operations tied to specific customers, because the statute specifically prohibits us from releasing it, the exemption three statute.

[00:55:40] Speaker 02:
So if you're going to make an exemption sex argument, there has to be another public interest at play here.

[00:55:46] Speaker 02:
And they have not articulated one.

[00:55:47] Speaker 02:
And that's because what they want are those customer numbers.

[00:55:51] Speaker 02:
The balance, like I say, that Congress has struck here is that we can release information, statistical information about farming practices, but not in a way that identifies the individual owner, operator, or producer.

[00:56:02] Speaker 02:
And telematch can identify them.

[00:56:03] Speaker 02:
It has done so at JAA 109.

[00:56:07] Speaker 02:
Unless the court has any further questions, we ask that you please affirm the district court.

[00:56:12] Speaker 04:
All right, Judge Kansas.

[00:56:14] Speaker 03:
I'm all set, thanks.

[00:56:16] Speaker 04:
Judge Jackson.

[00:56:17] Speaker 01:
I'm all right, thank you.

[00:56:19] Speaker 04:
All right, we'll hear from Mr. Romano.

[00:56:21] Speaker 04:
We'll give him two minutes.

[00:56:25] Speaker 00:
Thank you, Judge Wilkins.

[00:56:27] Speaker 00:
Just a few points.

[00:56:28] Speaker 00:
Judge Wilkins, there's been some discussion here today.

[00:56:31] Speaker 00:
about shouldn't we look at exemption three to help us inform the extension six analysis, in particular, whether there is a privacy interest or public interest.

[00:56:41] Speaker 00:
And I hadn't thought about it until today, but looking at 8791, if the court is inclined to do that, then that bends in our favor as well, because while your honor was focusing on B2A, we also have, as Judge Jackson has identified, the very specific exception to all of this, which is

[00:57:01] Speaker 00:
that payment information and names and addresses must be released.

[00:57:06] Speaker 00:
So that is Congress saying, this is not a privacy interest.

[00:57:11] Speaker 00:
And in fact, it's a public interest to make sure that we know what money is going to whom.

[00:57:17] Speaker 00:
And so we have, if we wanted to use 8791 to inform the exemption six analysis, and I haven't really done the research on that, but if we wanted to do that, then the answer is actually,

[00:57:31] Speaker 00:
the names and addresses and payments should be released.

[00:57:34] Speaker 00:
And categorically, that is not the type of privacy information that we want to protect.

[00:57:39] Speaker 00:
Because Congress has said right here, you have to release it.

[00:57:43] Speaker 00:
So that's the public interest.

[00:57:45] Speaker 00:
And that should be what informs the Exemption 6 analysis.

[00:57:50] Speaker 00:
So that's the first point.

[00:57:51] Speaker 00:
The second point is going back to the common usage.

[00:57:54] Speaker 03:
Sorry, could you just give me the site to what you just referred to?

[00:58:00] Speaker 03:
B4.

[00:58:03] Speaker 00:
Yes, it is 7 USC 8791.

[00:58:06] Speaker 00:
Right.

[00:58:06] Speaker 00:
B4.

[00:58:07] Speaker 00:
B4.

[00:58:09] Speaker 00:
Okay.

[00:58:09] Speaker 00:
A. I have it.

[00:58:14] Speaker 03:
Thank you.

[00:58:15] Speaker 00:
It doesn't affect the disclosure of payment information, including information, payment information and the names of addresses of recipients.

[00:58:21] Speaker 00:
That's Congress saying that's a public interest.

[00:58:23] Speaker 00:
You have to release it.

[00:58:25] Speaker 00:
And so that should inform exemption, exemption six.

[00:58:28] Speaker 00:
Just quickly on the common usage, my colleague said that these are consistent definitions.

[00:58:33] Speaker 00:
No, that's part of the problem with using the common usage definitions is that the two definitions relied upon by the district court are very widely in scope.

[00:58:43] Speaker 00:
The first one is just relating to data associated with a location, which is one it adopted.

[00:58:48] Speaker 00:
But the second one says relating to geographic data, often resulting in computer visualizations, and that's narrow.

[00:58:55] Speaker 00:
So that's why I suggest that instead of starting at the common usage and maybe to the exclusion, why don't we look to how this term was defined by Congress in 1996 and then redefined in 2018.

[00:59:08] Speaker 01:
Mr. Romano, before your time goes out, can I just direct you back to the other issue about public interest and ask you to comment on consumer checkbook, which seemed to suggest

[00:59:23] Speaker 01:
that you don't get to get information that has some privacy implications just to do a sort of free ranging evaluation of government operations, that there have to be some indication that there's actual mismanagement or fraud or something in order for the balance to come out in your way.

[00:59:47] Speaker 01:
So comment on that.

[00:59:49] Speaker 00:
Sure, I think, generally speaking, that that case kind of stands for the proposition of you can't be your you can't be the investigator for the government.

[00:59:57] Speaker 00:
You're not in the AG's office.

[00:59:58] Speaker 00:
You're not you're not the FBI.

[01:00:01] Speaker 00:
That case is distinguishable in my view, though, because that case was about first and foremost, it was exemption six type documents.

[01:00:10] Speaker 00:
They were medical files like the type I referred to earlier, medical or personnel files.

[01:00:14] Speaker 00:
These are medical files.

[01:00:15] Speaker 00:
These are

[01:00:16] Speaker 00:
files or at least medical information, health information that's being submitted to the government for payment.

[01:00:22] Speaker 00:
And so you actually get over step one here, which isn't the case in here where we have these massive databases of administrative data.

[01:00:32] Speaker 01:
All right, so you're saying the privacy interests were greater in that case.

[01:00:35] Speaker 01:
I understand.

[01:00:36] Speaker 01:
What I'm asking is about the public interest.

[01:00:40] Speaker 01:
They seem to suggest that a public interest that is unsupported by some indication of mismanagement or fraud, if the public's interest is just, I want to look at what the government is doing, there has to be more than that in order to make that a cognizable public interest for the purpose of this balance.

[01:01:03] Speaker 01:
Why isn't that applicable to what we're doing here?

[01:01:06] Speaker 00:
I think if you look to the multi ag media cases, it explains why that that fraud waste and abuse is obviously prevalent in agricultural programs or all government payment programs in general and also compliance rates.

[01:01:20] Speaker 00:
There are public interests that have previously been identified in that and other cases though as well.

[01:01:27] Speaker 00:
And so while I took the district court's opinion to mean, well, we have to actually present evidence

[01:01:34] Speaker 00:
so that we can make this argument almost like a standing argument.

[01:01:38] Speaker 00:
I think we've got to be careful because one, it's a little circular.

[01:01:41] Speaker 00:
We have this evidence of fraud, so let's see how much fraud there is.

[01:01:47] Speaker 00:
I think that's a little circular.

[01:01:49] Speaker 00:
But two, we get into that derivative use issue again, where now we're going to, and you heard it from counsel, well, this is what they're doing.

[01:01:56] Speaker 00:
This is what they're doing with the information.

[01:01:57] Speaker 00:
Then you're going to start discriminating amongst requesters, and that's not what the FOIA

[01:02:03] Speaker 00:
is intended to do.

[01:02:03] Speaker 00:
It's intended to look at the documents themselves, look at the information in that documents themselves, and with a blind eye to the world, say, yes, that is releasable or it is not releasable.

[01:02:14] Speaker 00:
And in this case, the foreign track number is going to fall within exemption three.

[01:02:18] Speaker 00:
And the customer's numbers, there's been no showing of substantial probability, substantial probability that there's a privacy interest.

[01:02:26] Speaker 00:
And those public interests have been articulated in other case law, which is why you find them in our briefs as well.

[01:02:33] Speaker 00:
Your honor, if there's no other questions, we ask that this court reverse the judgment and require the United States Department of Agriculture to return to its former practice of disclosing in its entirety.

[01:02:47] Speaker 04:
All right, thank you.

[01:02:47] Speaker 04:
We'll take the matter under advisement and we'll take a five-minute recess before calling the next case.