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Case number 21-5165.

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Jane Clayton Sherr, at balance, versus United States Department of Justice, et al.

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Mr. Sherr, for the at balance.

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Mr. Fulham, for the at release.

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Good morning, Your Honors, and thank you for allowing us to speak to you without a mask today.

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The only issue the panel needs to decide is a legal question.

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That is, whether an agency can properly invoke the Glomar doctrine, not just to refuse to disclose the existence or not of particular responsive records to a FOIA request, but to refuse even to search for any records covered by that request where, by its terms, the request sweeps more broadly than the records or information protected by any claimed FOIA exemption.

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A simple hypothetical, I think, will help verify what's at stake in this case and why the why the district court must be reversed.

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Let's suppose just to take the FBI as an example here that the FBI had conducted the search called for by the two FOIA requests that issue here and had found three documents about the unmasking of someone who's become famous in recent years, Carter Page.

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You'll recall that he was the subject of the famous FISA warrant that was later shown to have been the subject of a fraudulent FBI submission to the FISA court.

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Hypothetical document one, again this is just hypothetical, described how the CIA obtained from a still active foreign intelligence source properly classified information on page whose identity in association with that information was

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was revealed to the FBI through an unmasking request from that agency to the CIA.

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That's the first hypothetical document.

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The second is a declassified document about Page, similar to the documents about the unmasking of General Flynn that were famously declassified by the Director of National Intelligence in May of 2020.

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Hypothetical document three does not reveal any FISA-derived information, but is simply a one-sentence unclassified email from an FBI employee before any unmasking request to another agency stating that there was no legitimate basis for seeking information on page through FISA-derived information.

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So before we get to Glomar,

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What does FOIA itself require with respect to these three hypothetical documents?

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Well, first of all, the plain language of FOIA, again, we're not to go Marlette yet, but the plain language of FOIA requires that the agency conduct a search for responsive records.

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With a technical exception that the agencies haven't invoked here, Section 552A3C of FOIA

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quote, that in responding to a request for records, an agency shall make reasonable efforts to search for the records.

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And of course, that has to be interpreted in light of the Supreme Court's frequent admonition that the disclosure obligations of FOIA are to be broadly construed.

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Section 562D of FOIA further makes clear that implied exceptions are out of bounds.

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It says this section is not, I'm sorry.

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I'm sorry.

[00:03:38] Speaker 03:
I'm sorry.

[00:03:39] Speaker 03:
I'm just, I'd like to follow your hypotheticals, but could you put, could you just explain in terms of your hypotheticals, your argument about the global?

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That's our first question.

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Yes.

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We have to decide whether the global response is appropriate.

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Isn't that where we start?

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I do think it's important first to understand what the statute itself.

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Okay, I think we understand this.

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Okay, because when we have an agency that has served a global response, isn't the first question we ask is the global response sufficiently supported by the record, right?

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Well, that is true with respect to an agency claim that it can neither disclose, that it can't disclose any information about the existence of LMR.

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That's what a GLOMAR response is.

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Well, here though, Your Honor, the agencies have put GLOMAR on steroids, and they've said not only does GLOMAR allow us not to disclose the existence or not of the documents, but

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They say Glomar does not even require us to search for those documents.

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I guess what I'd like to know is what in the statute would require, given our case law about Glomar responses, what would require an additional search?

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In other words, if the documents you've asked for about these 21 people are covered by the Glomar response, anything else?

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Two questions.

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Number one,

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Anything the agency finds about those 21 people would be covered by the Glomar response.

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And number two, what in the statute requires them to conduct an additional search once they've asserted a Glomar response?

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Well, I think on that point, Your Honor, PETA is a good example, the PETA decision from a few years ago.

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And that decision sustained a global responses as to some categories of documents that were responsive to a request.

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And I mean, frankly, we think we think PETA was wrong to the extent that it used the agencies from searching at all.

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But that's the point of PETA.

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But what's important?

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We're not asking the panel to overrule PETA.

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But what's important about PETA is that PETA acknowledged that there were some responsive documents that were not... Can you give me an example of what kind of document could be responsive?

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Just give me a hypothetical.

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Well, I think the two hypotheticals that I gave you.

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My first hypothetical is obviously... Didn't the first one deal with Carter Page?

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Yes, but it's protected.

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It's protected.

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It's one of the 2100 people you asked for a response.

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Yeah, Mike, the first one is protected under Exemptions 1 and 3.

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We acknowledge that.

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But the second hypothetical, a document that was classified that's sitting in the agency's files and has been declassified, that can't possibly be the subject of a GLOMAR response.

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And the possibility... Well, but you've... What precisely is your... Your FOIA request is about these 21

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I'm sorry.

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You're on the right foot in the plate.

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I'm sorry.

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Well, let me ask you a different question.

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I asked you what authority you have for the proposition that an agency has to do a search even after it's asserted a global response.

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You cite on that page, I think on that page,

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I think 19 of your brief, you cite 552A3C.

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And here's what you cite.

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It says, stating then an agency, quote, shall make reasonable efforts to search for, and then you have a bracket, responsive records, right?

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But the language you've deleted and replaced with a bracket in the term, it said what the statute says is the agency shall make reasonable efforts to search for records in electronic form or format.

[00:08:11] Speaker 02:
Well, with respect, your honor, it says for and found records in electronic form.

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In electronic form of format, it's to make sure that an agency is not just searching for paper, but it's also looking for everything in digital form also.

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Right.

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And so this doesn't this to me, this doesn't in any way, at least maybe I'm missing your point.

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I don't see how this supports your argument that once an agency has invoked Glomar, it has to search further.

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Well, under PETA, unless the agency's affidavits have clearly covered the waterfront of potentially responsive documents, then under PETA, the agency is obligated to do a search for any documents that are not clearly covered by its affidavit.

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And that's the situation we have here.

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But your FOIA request, in relevant part, what your FOIA request seeks is documents about unmasking requests.

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and upstreaming.

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And I'm not sure how your hypothetical responds to that because the theory of the affidavits here is that any documents that reference these individuals during this specific timeframe in the context of either unmasking or upstreaming is going to reveal what records they were collecting or not at the time in this particular timeframe.

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And so a document that says we don't have any problem with unmasking, like that was your hypothetical, they wouldn't have that document, such a document, unless they for some reason had information on that hypothetical person.

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And it would reveal again what information they have collected in their records.

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And so I don't understand, I guess I'm not understanding how your hypothetical or your argument shows if there's anything

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given the nature of your request, that falls beyond what the GLOMAR representations are here.

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If it's about unmasking or upstreaming, how could any document during this particular timeframe, as to these particular individuals, which itself is very revealing potentially,

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How could anything any record bearing on that not be covered by their glomer?

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Well, again, it goes to the it goes to the affidavits that were filed and in support of the government's motion.

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And if you take an example, Mr. Harding's affidavit on page 123 of the Joint Appendix, he

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He characterizes the request, but clearly identifies only a subset of potentially responsive documents.

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He says, find this request for unmasking information about the identified individuals essentially seeks to reveal a, whether the FBI possesses any files that derived intelligence information about on them.

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B, whether the FBI disseminated any such intelligence information.

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And if so, see whether the FBI unmasked the individual's identities.

[00:11:18] Speaker 02:
Well, the third hypothetical example that I give does not fall into that description.

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Again, in the hypothetical, it's merely an email from an employee saying, with respect to Carter Page, I've heard in the news or whatever that there might be some effort to unmask him.

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I don't think any unmasking would be warranted.

[00:11:42] Speaker 04:
That would not reveal any of those three things.

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That type of hypothetical would reveal that they've got documents on Carter Page.

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They're not going to email about random names unless there's a reason for them to do it.

[00:11:57] Speaker 02:
Well, they may not have the information.

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They may think another agency has the information.

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For some reason, a particular intelligence agency is talking about masking or unmasking Carter Page.

[00:12:09] Speaker 04:
I'm having trouble understanding how that doesn't fall within their glomar.

[00:12:15] Speaker 02:
Well, again, one way would would be if the, if the intelligence resided in a different agency, they had read about it in the paper and, you know, and the FB employee says, look,

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This other agency may have this information.

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I don't think there would be a basis for us to seek.

[00:12:31] Speaker 04:
Well, them commenting about what they think other agencies are collecting or not collecting again seemed to me to raise the exact concerns flagged in the declarations.

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Well, it doesn't fit.

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We don't have anything on Carter page, but

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agency x might goodness gracious that's clearly covered by glomar we would agree that right well if an agency said we don't have anything but i think x agency might that would cover fall within the glomar claim here correct it would not fall within this affidavit with this affidavit is more than that one page in fact this is really more definitional and they talk about yes and there's lots of declarations here too no no i understand but again the the the

[00:13:15] Speaker 02:
The hardy affidavit that we were just looking at.

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My phrasing of it would show whether they possess intelligence information on part or page, because they don't have any, or we're not sure we have any.

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Or they disseminated it.

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Could be they sent it to another agency, and that's why they're talking about another agency.

[00:13:35] Speaker 02:
Well, it's true that that kind of a document might reveal that information, but it may not.

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And until they've done a search, they don't know.

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How could it not?

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I mean, they're only going to search for things that are responsive to your request, which are about within their agency.

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So not speculation about other agencies, but within their agency, unmasking requests.

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Your FOIA request is for unmasking requests and upstream collection, right?

[00:14:07] Speaker 02:
Right.

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Well, it's our request to was all documents concerning the unmasking or any request for unmasking of any person listed below.

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And that that doesn't it's not necessarily about information that resides in that agency.

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It's that's all agencies respond to under FOIA is what's in their own records.

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They don't respond to things that are about there in other agencies.

[00:14:28] Speaker 02:
Well, but

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They may have a record about information that does not reside in their agency.

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And that's the- But if it's just about Carter Page, it would be covered by the global.

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And why would they have a record in their, you know, why would they have information in their records about Carter Page and some, I hate to use his name because we're all doing hypotheticals here, but person X that agency Y is interested in.

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That itself would be revealing.

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It's just sort of the nature of your request is focused on people who've been captured

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in agency records and I think that's the point of their affidavits.

[00:15:03] Speaker 02:
Well, or might have been captured.

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But again, if it's captured or not, yes.

[00:15:08] Speaker 02:
If it's information that resides in another agency, it would be within the scope of the request, but not within the scope of the affidavit.

[00:15:16] Speaker 04:
If it's within another agency, then the other agency, I'm sorry, then the other agency, are you talking about some agency that's not one of the ones you've sought a request from or?

[00:15:27] Speaker 02:
No, it might be in the hands of another agency.

[00:15:30] Speaker 04:
Well, then that one, let's look at that one's response.

[00:15:36] Speaker 02:
But a Justice Department employee talking about information that the FBI does not have, or the Justice Department doesn't have, but they think some other agency might have, that falls within the scope of the request, but outside the scope of the

[00:15:50] Speaker 02:
of the affidavit that we have.

[00:15:54] Speaker 00:
I mean, even if we follow your statutory argument, I guess I'd like to understand from you why you think that's consistent with our case law and Wolf and Epic and PETA.

[00:16:08] Speaker 00:
How do we follow your argument without effectively either undermining or overruling those earlier cases?

[00:16:16] Speaker 02:
Well, I think

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I think PETA points the way.

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PETA said there are some potential responsive documents to this request that are not covered by these affidavits.

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And so we're going to demand that the agencies at least search for those documents and see what they find.

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And it seems to me that's the appropriate outcome.

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consistently with the statute and the case law, and whether PETA and EPIC are correct interpretations of the law is a question for another day.

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But again, we're not asking the panel to revisit that.

[00:17:00] Speaker 04:
You said that your hypothetical would reveal that the FBI doesn't have any documents on Person X. And that is it.

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The lack, the absence of documentation is a self-covered by the global.

[00:17:14] Speaker 02:
No, it wouldn't necessarily reveal that.

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I mean, the proper response, if they find that document in my hypothetical three, the proper response would be to

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produce that document if it's not otherwise protected, and then say, as the agencies often do, you know, there may well or may not be other documents that are responses, that they're protected under GLOMAR and Exemptions 1 and 3.

[00:17:42] Speaker 04:
I thought you said that document would say, we don't have anything that Agency X might.

[00:17:46] Speaker 02:
Sorry?

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I thought you said that document would say, we don't have anything, but I think Agency X might.

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I'm not assuming that the document would actually identify another agency that has it.

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And we'll blank out the name of the agency.

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But the relevant part there is where it says, we don't have anything.

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That is covered by the Glomar.

[00:18:08] Speaker 02:
With respect, that wasn't the hypothetical that I posited where they say we don't have any.

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Simply something like, you know, I've read about

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you know, this buys a derived information that may be out there.

[00:18:20] Speaker 02:
And I, you know, I don't think, um, I don't think unmasking of Carter Bayes would be appropriate.

[00:18:26] Speaker 00:
So if this court can come up with some hypothetical document that's not covered by the affidavit, we have to send it back for more searches.

[00:18:35] Speaker 00:
Like if we can just conceive of any hypothetical document that might be covered.

[00:18:40] Speaker 00:
Well, I mean, is that what says?

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I'm not sure that that's how I read our cases.

[00:18:46] Speaker 02:
Yeah, I mean, the reality is that the affidavits are narrower than the FOIA request.

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And I think the appropriate outcome is for the court to say, consistent with PETA, again,

[00:19:05] Speaker 02:
the appropriate outcome under the under the court's cases is to can say is to say consistent with me that you can assert a Glomar response and you can avoid searching for documents that are covered by what you what you've outlined in your affidavit, but you can't you can't avoid a search for documents that fall outside the terms of those.

[00:19:23] Speaker 02:
And that's all we're that's all we're asking for at this stage, your honor.

[00:19:28] Speaker 03:
I'd like to ask you.

[00:19:29] Speaker 03:
A question about a different argument you make, and specifically your argument that this record contains evidence of bad faith.

[00:19:39] Speaker 03:
And you cite the Sixth Circuit.

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What is it?

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Jones versus somebody.

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Are you aware of any cases in our circuit where, in a FOIA case, we look at the alleged underlying bad faith as opposed to the bad faith

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the federal officials responding to the FOIA request itself?

[00:20:05] Speaker 02:
I'm not sure I'm aware of any cases like that from this circuit, Your Honor.

[00:20:10] Speaker 02:
Thank you.

[00:20:10] Speaker 02:
But I do think that that principle articulated by the Sixth Circuit is correct under the plain terms of FOIA and under the Supreme Court's directive that disclosure obligations under FOIA are to be construed broadly.

[00:20:24] Speaker 02:
Thanks.

[00:20:26] Speaker 02:
Thank you, Your Honor.

[00:20:57] Speaker 01:
Good morning, and may it please the court, Thomas Pullman, the defendant agencies.

[00:21:02] Speaker 01:
The plaintiff's FOIA request here seeks intelligence records indicating whether the names of 21 specified individuals were collected using covert surveillance authorized by FISA.

[00:21:12] Speaker 01:
The agency declarations explain why confirming or denying the existence of such records would reveal classified and statutorily protected information regarding intelligence sources and methods.

[00:21:23] Speaker 01:
This court has repeatedly upheld LOMA responses to requests for intelligence records regarding specific individuals.

[00:21:30] Speaker 01:
The district court's judgment should therefore be affirmed.

[00:21:32] Speaker 01:
And I'm happy to answer any questions the court may have.

[00:21:37] Speaker 04:
I'm interested in what we do with this letter from Acting Director Grinnell.

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saying that the potential misuse of intelligence for partisan purposes following the 2016 election can safely be revealed without implicating sources or methods for national security.

[00:22:10] Speaker 04:
How can that be reconciled with the position of these affidavits, for example, in

[00:22:17] Speaker 04:
Steve Thompson, NSA must use a GLOMAR response consistently in all cases.

[00:22:25] Speaker 04:
Consistent use of GLOMAR is necessary to ensure its effectiveness, and yet we have a lack of consistency here.

[00:22:35] Speaker 04:
What are we supposed to do with that?

[00:22:38] Speaker 04:
It seems like there's a conflict between these two documents.

[00:22:45] Speaker 01:
Sure.

[00:22:45] Speaker 01:
So two points.

[00:22:47] Speaker 01:
First, I think the letter from former acting director Grinnell was specifically focused on declassifying the names of the individuals who sought to unmask General Flynn.

[00:22:59] Speaker 01:
So it was kind of a step removed from what we have here.

[00:23:02] Speaker 01:
There was already... Would his FOIA request not cover that?

[00:23:06] Speaker 01:
No, I don't think this FOIA request was about the names of requesters.

[00:23:09] Speaker 04:
I think it was about... We asked for documents about unmasking.

[00:23:12] Speaker 04:
Wouldn't that include the names of requesters?

[00:23:17] Speaker 01:
potentially.

[00:23:19] Speaker 04:
I mean, I guess you'll tell me if I'm wrong, but I thought that would be covered by.

[00:23:23] Speaker 04:
But not necessarily.

[00:23:25] Speaker 01:
I think the focus here was on the specific individuals who were detected in the surveillance, which was not, I think, the focus of Grinnell's letter.

[00:23:35] Speaker 01:
But more fundamentally, I'd like to point the court to the Supreme Court's decision in CIA v. Sims.

[00:23:42] Speaker 01:
This is 471, US 159.

[00:23:47] Speaker 01:
The court said that

[00:23:50] Speaker 01:
intelligence agencies may sometimes find it advisable or even imperative to disclose information that may lead to the identity of intelligence sources.

[00:23:59] Speaker 01:
It's the responsibility of the director of central intelligence that was under the previous version that refers to the DNI, not that of the judiciary to weigh the variety of complex and subtle factors in determining whether such disclosure would be appropriate.

[00:24:13] Speaker 01:
And here's an essential point the court made.

[00:24:16] Speaker 01:
The fact that Admiral Turner, who was a previous DCI,

[00:24:20] Speaker 01:
made that determination in 1978, does not bind his successors to make the same determination in a different context.

[00:24:27] Speaker 01:
I get that.

[00:24:30] Speaker 04:
But this is very proximate in time.

[00:24:36] Speaker 04:
And it's not a different context.

[00:24:38] Speaker 04:
It is the exact same context that is an interest in the potential misuse of intelligence for partisan purposes following the 2016 election.

[00:24:47] Speaker 04:
So it's the exact same context.

[00:24:49] Speaker 01:
Well, I think let's assume is for a request also encompasses getting the names of people that requested and I think the context is a little different one because this involved general Flynn about whom there had been.

[00:25:00] Speaker 01:
And a considerable public discussion about his.

[00:25:06] Speaker 01:
role in communications with foreign agents.

[00:25:11] Speaker 01:
There's no similar issue here.

[00:25:14] Speaker 01:
This was not in response to a FOIA request.

[00:25:17] Speaker 01:
This was communications with Congress and an affirmative decision by the acting DNI to release information.

[00:25:27] Speaker 01:
As the Supreme Court recognized, there may be reasons to do that on a case-by-case basis.

[00:25:32] Speaker 04:
But one decision... Wait, so on a case-by-case basis, I've got an affidavit saying we've got to be consistent.

[00:25:40] Speaker 04:
So suppose the Director of National Intelligence released information, documents about unmasking for half of the people on his list, and then invoked Glomar for the other half.

[00:26:01] Speaker 04:
At that point, that's sort of selective on and off the whole rationale for Glomare collapses, doesn't it?

[00:26:08] Speaker 04:
I don't think so.

[00:26:11] Speaker 01:
These are decisions that are committed to the discretion of the intelligence agencies who may have reasons in particular cases.

[00:26:20] Speaker 04:
Okay, so for 20 of his 21 clients, you get letters like this that say questions about potential misuse of intelligence for partisan purposes following 2016 election can safely be released without implicating methods or sources or national security interests for 20 out of 21.

[00:26:38] Speaker 04:
And then we get, for the 21st, we get a Glomar response that says, we can say nothing, we can either confirm or deny.

[00:26:46] Speaker 04:
Anytime we talk about this, we reveal information.

[00:26:49] Speaker 04:
It's something, the rationale for Glomar, when you have selective, you're selectively turn it on and off, it falls apart, doesn't it?

[00:26:57] Speaker 04:
I don't think it does.

[00:26:58] Speaker 04:
So you would say it would be fine in that case to insert Glomar for number 21 saying, we can't say anything one way or the other to reveal

[00:27:06] Speaker 04:
whom we might have records on, even though we just did that for 20 other people involved in the exact same activity.

[00:27:12] Speaker 04:
We're supposed to just take that.

[00:27:15] Speaker 04:
I get we give them substantial deference, but at some point the whole theory is collapsing here, and that's why I'm struggling with the granola.

[00:27:23] Speaker 01:
Even if we accept that at some point it collapses,

[00:27:28] Speaker 01:
offering a single example with respect to someone who's not covered by the FOIA request, I don't think anywhere approaches that point that your honor is discussing.

[00:27:38] Speaker 04:
I get that.

[00:27:38] Speaker 04:
That's the reason I was changing the hypothetical, but how many is it?

[00:27:44] Speaker 04:
And here the rationale is not focused exclusively to Mr. Flynn.

[00:27:51] Speaker 04:
Right.

[00:27:51] Speaker 04:
The theory is potential misuse of intelligence for partisan purposes following 2016 elections.

[00:27:56] Speaker 04:
So it's not a cabin letter in that regard as to what it's determined to be safe to release.

[00:28:02] Speaker 04:
But again, don't I need something?

[00:28:03] Speaker 04:
And I get that this happened after your declarations were all filed and I think even after the district court ruled.

[00:28:10] Speaker 04:
But on this record, without some explanation from the agency is why it will actually

[00:28:15] Speaker 04:
We normally mean what we say about Glomar, but we can selectively make exceptions.

[00:28:20] Speaker 04:
And how do we know that they shouldn't have to go back and look and decide whether they should make selective exceptions in this situation?

[00:28:27] Speaker 01:
Because we had six original classification authorities all come to the same conclusion here with respect to these 21 names focused on these names, six different authorities all reached the same conclusion.

[00:28:40] Speaker 01:
Why does that matter?

[00:28:41] Speaker 04:
I bet you were there any other agencies that were

[00:28:47] Speaker 04:
Well, I don't want to ask, nevermind.

[00:28:48] Speaker 04:
But this is only one agency talking here.

[00:28:51] Speaker 04:
There may have been plenty of other agencies who would have thought, no, don't do that.

[00:28:57] Speaker 04:
But the Director of National Intelligence did it anyhow.

[00:28:59] Speaker 01:
But again, I think this goes directly to the Supreme Court statement that a decision by one holder of the office, as the Supreme Court said, does not bind his successors to make the same determination.

[00:29:11] Speaker 04:
But I think the language you used was in different circumstances.

[00:29:14] Speaker 01:
Yes, and I think this is a different context.

[00:29:15] Speaker 01:
It involves different names that we don't have the same record about a kind of overarching public discussion.

[00:29:22] Speaker 04:
Does it involve the same time period?

[00:29:26] Speaker 04:
It involves the same sort of inquiry in public discussion than in a media discussion.

[00:29:37] Speaker 01:
Different names and different focus.

[00:29:42] Speaker 01:
The context of General Flynn, I think, is somewhat unique.

[00:29:46] Speaker 04:
That's what I'm struggling to understand, so tell me how that one's unique.

[00:29:50] Speaker 01:
because there was kind of widespread discussion and coverage about Mr. Flynn's communication in the media with foreign agents in the media, in the government.

[00:29:58] Speaker 04:
I mean, this was a letter to determine, okay, I get that, but that was a revealing letter.

[00:30:05] Speaker 04:
So the government, the theory is that Mr. Flynn was different because there'd already been public statements by government officials acknowledging

[00:30:15] Speaker 04:
that there were records on him?

[00:30:16] Speaker 04:
Is that what you're saying?

[00:30:17] Speaker 01:
I think what could be different, there are just different factors to weigh.

[00:30:21] Speaker 01:
And the fact that Acting Director Grinnell weighed them one way, even if he did so categorically, doesn't undermine the ability of the government to protect this information.

[00:30:31] Speaker 04:
I appreciate that.

[00:30:32] Speaker 04:
I'm just trying to understand what those factors were.

[00:30:34] Speaker 04:
And I thought you said a widespread media coverage.

[00:30:37] Speaker 04:
It could be.

[00:30:37] Speaker 04:
But that can't be the government never

[00:30:39] Speaker 04:
Says there is always argued that media coverage does not affect in any way the ability of the government to maintain confidentiality because because official disclosures by the government are totally different.

[00:30:55] Speaker 04:
matter than media, speculation, or reports on unnamed sources.

[00:31:01] Speaker 04:
So put aside the media stuff.

[00:31:03] Speaker 04:
I thought you said the other factor is a widespread discussion in the government.

[00:31:06] Speaker 01:
Can I clarify one point?

[00:31:08] Speaker 01:
I think Your Honor referred to that this wouldn't affect the government's ability to keep it secret.

[00:31:15] Speaker 01:
That is not what's happening in this letter.

[00:31:16] Speaker 01:
This is not a compelled disclosure.

[00:31:18] Speaker 01:
This is a voluntary disclosure by the government.

[00:31:21] Speaker 01:
So, nothing in here undermines the government's ability to maintain secrecy when it finds it important to do.

[00:31:29] Speaker 01:
So the statute, the national security act.

[00:31:34] Speaker 01:
Refers to unauthorized disclosures.

[00:31:38] Speaker 01:
The director of.

[00:31:40] Speaker 01:
national intelligence can make an authorized disclosure.

[00:31:43] Speaker 01:
That's what's happening here.

[00:31:45] Speaker 01:
This was not in response to a FOIA request.

[00:31:48] Speaker 01:
This was the government deciding to make information public.

[00:31:53] Speaker 01:
And as the court said in CIMS, the national interests sometimes make it advisable or even imperative to disclose information that may lead to the identity of intelligence sources.

[00:32:03] Speaker 01:
And that's a determination that was made here in this one instance.

[00:32:07] Speaker 01:
with respect to these other 21, the six classification authorities came to a different conclusion.

[00:32:14] Speaker 01:
And so I don't think, consistent with Sims, the court could point to this one example involving a different person and say the government has forfeited the ability to assert a Glomar response.

[00:32:27] Speaker 04:
I appreciate that, but the difficulty is that the nature of Glomar, and I read you from Mr. Thompson's declaration, is that

[00:32:36] Speaker 04:
You can't pick and choose.

[00:32:37] Speaker 04:
We can't pick and choose whom we reveal information about and who we can't.

[00:32:42] Speaker 04:
The language there was consistency is critical.

[00:32:45] Speaker 04:
Consistency is essential to GLOMAR.

[00:32:49] Speaker 04:
And that's where I'm struggling because I don't think having consistency, and I understand that consistency argument, but pairing that with selective individualized decisions

[00:33:06] Speaker 04:
Doesn't that mean that you at least should have done the search in this case and decided whether you can make any of those selective individual decisions?

[00:33:13] Speaker 01:
Well, I mean, it certainly doesn't require a search.

[00:33:18] Speaker 04:
I mean, does it require that you have made those individual decisions and sets?

[00:33:22] Speaker 01:
Well, I mean, the decisions weren't were made the.

[00:33:25] Speaker 01:
The original classification authorities looked at the FOIA request, which named 21 people, not one of which was General Flynn, and they looked at whether it would be appropriate to respond in those circumstances.

[00:33:41] Speaker 01:
And this court has recognized, has agreed that Glomar needs to be asserted consistently, but it has never suggested that

[00:33:54] Speaker 01:
A single disclosure undermines that rationale of consistency in global cases.

[00:34:02] Speaker 01:
Indeed, this court has considered cases involving official disclosures.

[00:34:06] Speaker 01:
It has a whole body of law about that and has never suggested that that body of law prevents agencies from invoking global over similar information.

[00:34:23] Speaker 03:
So I have a different question.

[00:34:26] Speaker 03:
I want to ask you about Mr. Sherr's claim that the record reveals evidence of bad faith here.

[00:34:36] Speaker 03:
Sometimes in your brief, you say that the evidence he cites fails to prove bad faith, and elsewhere you say it's irrelevant to the question before us here.

[00:34:50] Speaker 01:
Which one is it?

[00:34:53] Speaker 01:
We're advancing both arguments.

[00:34:56] Speaker 01:
One, that it's irrelevant, and two, even if it were irrelevant, it wouldn't satisfy me.

[00:35:02] Speaker 03:
I was kind of intrigued with the Sixth Circuit's approach.

[00:35:08] Speaker 03:
Let me just give you a hypothetical.

[00:35:09] Speaker 03:
Suppose, for example, I take your point that the record here, or at least I understand your argument, that the record here doesn't rise to the level of bad faith.

[00:35:19] Speaker 03:
But suppose you had a case where it was really, really clear

[00:35:24] Speaker 03:
not only that there was some bad faith or even illegal behavior, but a bit of a cover-up or a cover-up of the underlying action.

[00:35:33] Speaker 03:
And then the agency subsequently issues a global response in an affidavit.

[00:35:42] Speaker 03:
Wouldn't we be justified in questioning that affidavit given the underlying evidence of illegal behavior and cover-up?

[00:35:52] Speaker 03:
I guess what I'm asking is, one, isn't there an obvious connection there?

[00:35:57] Speaker 03:
And two, can we do that under this circuit's caseload?

[00:36:03] Speaker 01:
I don't think there's an obvious connection.

[00:36:05] Speaker 01:
I think these go to two different, there are two different inquiries.

[00:36:09] Speaker 01:
One is in Glomar, as Your Honor indicated earlier in questions, the

[00:36:16] Speaker 01:
relevant issue is the existence of documents Belmont.

[00:36:20] Speaker 01:
That is the only topic that's covered by these athletes.

[00:36:23] Speaker 03:
But wouldn't we have some doubts about, I mean, the agency has to submit a declaration in support of its clone work.

[00:36:31] Speaker 03:
And we, as Judge Mullett says, we defer to those, but, you know, we don't rubber stamp them.

[00:36:37] Speaker 03:
We don't just accept them as true without some thought.

[00:36:40] Speaker 03:
And if there was evidence that the underlying activities were being covered up, why wouldn't we

[00:36:46] Speaker 03:
question, those declarations at least require the agency to explain why the Glomar response is appropriate, notwithstanding the potential evidence.

[00:36:58] Speaker 03:
It just makes so much sense to me that they're related.

[00:37:01] Speaker 03:
Obviously, if the agency is covering it up, they're not going to turn it over in a FOIA response, right?

[00:37:08] Speaker 01:
Two things.

[00:37:10] Speaker 01:
One is I don't think it would directly controvert the subject matter of the affidavits, which is specifically about the Glomar issue, not the underlying.

[00:37:19] Speaker 01:
And there's been a statement that that determination of classification was not made to cover anything up, was not made for improper purposes.

[00:37:29] Speaker 01:
There's no evidence that would undermine that.

[00:37:34] Speaker 03:
In my hypothetical, there is there is evidence of a cover up.

[00:37:38] Speaker 03:
OK, but not with respect to the existence of it.

[00:37:41] Speaker 03:
Wouldn't it?

[00:37:41] Speaker 03:
Wouldn't it be?

[00:37:42] Speaker 03:
We're going around circles.

[00:37:43] Speaker 03:
I'll just ask once more.

[00:37:45] Speaker 03:
Wouldn't it be?

[00:37:45] Speaker 03:
Let's assume the cover up occurred six months ago and now there's a FOIA request.

[00:37:49] Speaker 03:
Is there a declaration that says, you know, to reveal this information would would risk revealing intelligence methods and techniques, right?

[00:37:59] Speaker 03:
Wouldn't we have some doubt that that the same agency

[00:38:02] Speaker 03:
that's guilty of a cover up has sworn is trying to keep the information from becoming public because it says it's related to intelligence.

[00:38:11] Speaker 03:
Why wouldn't we?

[00:38:12] Speaker 03:
I'm not saying we would reject it.

[00:38:14] Speaker 03:
Wouldn't we scrutinize it somewhat more than the normal?

[00:38:18] Speaker 01:
Well, I think perhaps to come at this another way, I mean, this court does have case law where

[00:38:29] Speaker 01:
there have been either assertions or actual declaration.

[00:38:34] Speaker 01:
I don't mean legal declarations, but statements that certain intelligence conduct was unlawful.

[00:38:42] Speaker 01:
So an ACLU versus Department of Defense, there was a request for documents about high value detainees at Guantanamo.

[00:38:49] Speaker 01:
But the president in that case had declared that certain enhanced interrogation techniques were unlawful.

[00:38:56] Speaker 01:
This report said that the fact that the activities were deemed illegal does not diminish the government's valid authority to classify information about those techniques and conditions.

[00:39:09] Speaker 03:
So your answer to my second question, we can't go there in this circuit, right?

[00:39:15] Speaker 03:
Your point is, if I look at that case, which I remember and others, this circuit has said that the

[00:39:22] Speaker 03:
that the bad faith has to be in connection with the response to the virus, right?

[00:39:27] Speaker 03:
So we can't go where the Sixth Circuit went.

[00:39:30] Speaker 03:
Is that your point?

[00:39:31] Speaker 01:
I think that's the kind of combination of ACLU versus Department of Defense, Larson, which we also cited, which specifically asked whether there was bad faith in the withholding of documents, specifically referred to the withholding of cables in that case.

[00:39:48] Speaker 01:
So I think when you put these things together, and the sports decision in Lazar, which involved records about the investigation of the Martin Luther King assassination,

[00:39:59] Speaker 01:
where it was accepted that the investigation had, the courts had gone beyond the bounds of its lawful security aim, that these could still produce information of a sensitive nature that could be withheld.

[00:40:13] Speaker 03:
Okay, one last question.

[00:40:14] Speaker 03:
When I was asking Mr. Sherr about his argument that the agency had to search, notwithstanding the Glomar response, one of the hypotheticals he gave, he said, suppose there's an unclassified

[00:40:28] Speaker 03:
in the record about it's responsive to one of these.

[00:40:31] Speaker 03:
In other words, suppose it's just not classified.

[00:40:36] Speaker 01:
So a couple of responses.

[00:40:39] Speaker 01:
One, as a general matter, there can be documents that on their own would be unclassified, but the agency's possession of a document would be classified because it reveals something about the agency's interests or something.

[00:40:54] Speaker 01:
So that's a kind of...

[00:40:58] Speaker 01:
general point there.

[00:41:03] Speaker 03:
And I just lost.

[00:41:03] Speaker 03:
You said there were second points.

[00:41:05] Speaker 01:
I did have a second point.

[00:41:06] Speaker 01:
It just escaped my mind.

[00:41:08] Speaker 01:
It was quite persuasive.

[00:41:10] Speaker 01:
I'm sure.

[00:41:12] Speaker 01:
Come back to me in a minute.

[00:41:14] Speaker 01:
I apologize.

[00:41:17] Speaker 04:
As to waiters, are they going to make you more uncomfortable?

[00:41:27] Speaker 01:
I'm sorry, it was a hypothetical about the unclassified.

[00:41:34] Speaker 01:
So then I think this court kind of touched on this in the Knight First Amendment case and its discussion of Wolf.

[00:41:43] Speaker 01:
There was an argument there that saying that an agency had responsive records might not reveal sources and methods because it could have been, say, an anonymous tip or some

[00:41:56] Speaker 01:
press clipping or something.

[00:41:59] Speaker 01:
And this court said, you know, we have credited these concerns about revealing agency interests and capabilities, quote, without considering hypothetical scenarios, like, for example, the possibility that the existence of responsive records might reflect nothing more than an anonymous tip or press clipping.

[00:42:15] Speaker 01:
So I think this court has made clear that that's not the approach it takes.

[00:42:20] Speaker 01:
It doesn't think about kind of this

[00:42:24] Speaker 01:
potential unicorn of a document that might exist.

[00:42:26] Speaker 01:
It looks rather at the nature of the request, whether there are categories of documents whose existence would not reveal who they just, you know, categories of documents for which the normal response would not reveal protected information.

[00:42:41] Speaker 01:
And it proceeds on that basis.

[00:42:45] Speaker 04:
Thank you very much.

[00:42:46] Speaker 04:
Thank you.

[00:42:47] Speaker 04:
If you share, we'll give you two minutes.

[00:42:58] Speaker 02:
Thank you very much.

[00:42:59] Speaker 02:
I think the exchange with Council just illustrates the extremity of the government's position with respect to the Glomar.

[00:43:07] Speaker 02:
They're now saying that even if the underlying document is unclassified, or even if the underlying document is unclassifiable because it shows wrongdoing, that they can whitewash that just by asserting a Glomar response to protect the existence of the document.

[00:43:27] Speaker 02:
That just takes LOMAR completely off the statutory rails and makes it flatly inconsistent with the provisions of FOIA.

[00:43:40] Speaker 04:
When they have declarations that say all the information covered by the request,

[00:43:49] Speaker 04:
That's how when I read this, just assume that's how I read the effort.

[00:43:52] Speaker 02:
With respect, that's not what they say, but go ahead.

[00:43:54] Speaker 04:
All right, I understand your argument on that.

[00:43:56] Speaker 04:
But in my hypothetical now, they say everything is covered.

[00:44:01] Speaker 04:
The FOIA request, it's all covered by our Glomar national security interests.

[00:44:10] Speaker 04:
And they say we've, and it's classified and this isn't the cover up or embarrassment or any of those types.

[00:44:19] Speaker 04:
This is genuine concern.

[00:44:21] Speaker 04:
Those in our case law say it takes something sort of concrete from the FOIA plaintiff before we can start going, hang on, we can't take that at face value.

[00:44:37] Speaker 04:
I get, I mean, Glomar is just a really strong weapon.

[00:44:42] Speaker 04:
for these particular agencies, a particular context.

[00:44:44] Speaker 04:
And we can't, every time someone comes up and goes, well, that's too broad.

[00:44:48] Speaker 04:
There could be something in there.

[00:44:49] Speaker 04:
We can't go, okay, well, let's all look.

[00:44:52] Speaker 04:
So what I'm struggling with is how much is needed by the FOIA plaintiff?

[00:45:00] Speaker 04:
And I think we say significant evidence or substantial evidence.

[00:45:05] Speaker 04:
I assume you don't contest that.

[00:45:07] Speaker 04:
So two, how is it met here?

[00:45:09] Speaker 04:
One, I assume you don't contest that standard, and let me know if you do.

[00:45:13] Speaker 04:
And two, what do you have that is significant or substantial evidence that they're wrong in their assertion of well-being?

[00:45:24] Speaker 02:
Two points, Your Honor.

[00:45:25] Speaker 02:
Let me just quickly address the

[00:45:28] Speaker 02:
the mismatch between their affidavits and the request.

[00:45:31] Speaker 02:
And we heard from counsel today exactly what they've been doing with the request since the beginning.

[00:45:38] Speaker 02:
He began by saying that the FOIA request here seek, quote, intelligence records about unmasking.

[00:45:45] Speaker 02:
And that's just not true.

[00:45:46] Speaker 02:
That's not what the request says.

[00:45:48] Speaker 02:
The request says all records about unmasking.

[00:45:51] Speaker 02:
They don't have to be intelligence records.

[00:45:54] Speaker 02:
And they do not in their affidavits

[00:45:58] Speaker 02:
They don't have any provisions that say everything that's the subject of this request is subject to GLOMAR.

[00:46:07] Speaker 02:
They just don't say that.

[00:46:11] Speaker 02:
They don't say there is no category of documents within the scope of this request as to which we would not be entitled to assert a GLOMAR response.

[00:46:24] Speaker 02:
So what they're doing is they're taking a very broad request and they narrow it to a subset.

[00:46:30] Speaker 02:
And then they say, we think we can legitimately assert Glomar as that subset of documents.

[00:46:37] Speaker 02:
And therefore, they conclude, we can refuse to search for any documents that are responsive to the request.

[00:46:43] Speaker 02:
And that's just

[00:46:47] Speaker 02:
a big step beyond where this court has ever gone with Lomar.

[00:46:51] Speaker 02:
But to answer your more precise question about evidence of wrongdoing, I think in this case... Do you agree with my adjective, substantial or significant evidence?

[00:47:01] Speaker 02:
I'm not going to dispute that, but I do think in this case, the Grinnell document that you mentioned earlier provides that.

[00:47:10] Speaker 04:
I mean, obviously, you know... That long post states their declarations.

[00:47:15] Speaker 04:
So it doesn't reveal anything

[00:47:17] Speaker 04:
that anything was wrong and how these declarations were made or decision made.

[00:47:22] Speaker 04:
It long post-states, it seems almost like a unicorn exception when it comes to the Glomar area, this disclosure.

[00:47:29] Speaker 04:
So it doesn't reveal anything other than someone came along a couple of years later or a year, I don't have the exact time, a year and a half later, and as to one particular person made a different decision.

[00:47:42] Speaker 04:
So that, how is that,

[00:47:45] Speaker 04:
Bad faith.

[00:47:46] Speaker 04:
Substantial evidence of bad faith.

[00:47:48] Speaker 02:
First of all, the court can take judicial notice of the Grinnell memo.

[00:47:53] Speaker 02:
And there are cases where the court has remanded to the agency for an additional search on the basis of evidence that has come to light, since the affidavits were entered and even since the summary judgment decision was entered.

[00:48:08] Speaker 02:
So we would urge the court to do that here.

[00:48:12] Speaker 02:
And the Grinnell letter does establish that there was misuse of intelligence information and misuse of surveillance against America.

[00:48:25] Speaker 04:
No, it says potential misuse.

[00:48:26] Speaker 04:
It does not establish misuse.

[00:48:27] Speaker 04:
It says potential misuse.

[00:48:29] Speaker 04:
That's different.

[00:48:31] Speaker 04:
I mean, maybe you'd be on a stronger gala if they said this was a rotten thing.

[00:48:37] Speaker 04:
But that's not what they said.

[00:48:38] Speaker 04:
It's just potential.

[00:48:39] Speaker 02:
As I recall the letter, it was pretty clear that Grinnell had concluded that there was misuse of intelligence authorities against Americans.

[00:48:46] Speaker 04:
Well, he may have, but he didn't say that.

[00:48:48] Speaker 04:
He said potential misuse.

[00:48:50] Speaker 04:
I mean, I just quote it.

[00:48:56] Speaker 02:
Anyway, I'll just conclude with the point that what is unique about this case is that it involves a redirection

[00:49:07] Speaker 02:
of surveillance authorities that are supposed to be directed against foreign persons and directing them against Americans.

[00:49:19] Speaker 02:
And at a minimum, that substantially reduces the agency's interest in protecting those materials from disclosure.

[00:49:26] Speaker 02:
And so we urge the court to act in accordance with FOIA's plain language within the bounds of your precedent, obviously,

[00:49:36] Speaker 02:
as the panel and to reverse summary judgment and send the case back to the district court.

[00:49:41] Speaker 04:
Thank you.

[00:49:43] Speaker 04:
Case is submitted.