[00:00:00] Speaker 01:
Case number 21-5223, Ferry Operative Services and Logistics, LLC, at balance, versus United States Department of Veterans Affairs.

[00:00:10] Speaker 01:
Mr. Fulching for the at balance, Mr. Dreier for the appellate.

[00:00:14] Speaker 05:
Seems like you're not the big draw this morning, but we're interested nonetheless, so please proceed.

[00:00:20] Speaker 06:
I appreciate that.

[00:00:22] Speaker 06:
So my name is Ed Fulching, I'm here representing the appellate in this case, Ferry Operative Services.

[00:00:26] Speaker 06:
And we're here on a FOIA, but it's kind of a unique FOIA, not one that I previously handled or seen, in which we're actually trying to figure out what's doing in this court, effectively decide the matter based upon a declaration we didn't see, and on which we can't comment because we've never seen it.

[00:00:50] Speaker 06:
And then we tell it a document under FOIA based on a secret declaration

[00:00:55] Speaker 06:
And they didn't even see the document in camera that they're withholding.

[00:00:59] Speaker 06:
The district court didn't see the document in camera.

[00:01:01] Speaker 06:
So I'm going to back.

[00:01:04] Speaker 05:
It's not an ideal situation.

[00:01:06] Speaker 05:
But I mean, we've seen a lot of FOIA cases.

[00:01:09] Speaker 05:
And it's not that unusual to have a declaration that explains the basis for withholding without revealing the information that the government is seeking.

[00:01:22] Speaker 06:
No question.

[00:01:24] Speaker 06:
That declaration is then provided to physicians so that they can see it to the extent that it doesn't disclose what it is they're trying to protect.

[00:01:34] Speaker 06:
Here, we're giving up.

[00:01:37] Speaker 06:
And that really comes down.

[00:01:39] Speaker 06:
That really is the nut of this problem.

[00:01:42] Speaker 06:
The government's justification for what happened

[00:01:47] Speaker 06:
is that Hubbard, United States versus Hubbard, which is the low star of what to do, doesn't apply, and it just is not right.

[00:01:56] Speaker 02:
It doesn't.

[00:01:57] Speaker 02:
Let me just make sure I understand.

[00:01:58] Speaker 02:
Hubbard applies to a situation where you're trying to obtain, the question here is,

[00:02:13] Speaker 02:
whether or not the district court properly relied on an ex parte declaration, right?

[00:02:20] Speaker 02:
You're not trying, you're not trying to get, you're not seeking under FOIA that declaration, correct?

[00:02:27] Speaker 02:
You're just arguing that the district court shouldn't have, shouldn't have relied on, right?

[00:02:33] Speaker 02:
So that's one issue.

[00:02:34] Speaker 02:
So this is not a Hubbard case.

[00:02:36] Speaker 02:
This is controlled by Harris.

[00:02:39] Speaker 02:
No.

[00:02:39] Speaker 02:
No?

[00:02:40] Speaker 06:
I disagree.

[00:02:40] Speaker 02:
Okay.

[00:02:40] Speaker 02:
Tell me why.

[00:02:43] Speaker 06:
The Tierney Declaration is a judicial record.

[00:02:45] Speaker 06:
That's why Hubbard applies.

[00:02:47] Speaker 02:
But you're not seeking a copy of that in this case.

[00:02:49] Speaker 06:
Well, in order to argue... Isn't that right?

[00:02:52] Speaker 02:
I mean, you might, and then it would be a Hubbard case.

[00:02:55] Speaker 06:
It's a two-step process.

[00:02:56] Speaker 02:
In order to argue about... Can I just ask you, are you seeking the Tierney Declaration?

[00:03:02] Speaker 06:
No, right?

[00:03:03] Speaker 06:
In order to argue about the two-page document, we're seeking the Tierney Declaration so that we can argue about the two-page document.

[00:03:11] Speaker 06:
It's a two step process.

[00:03:12] Speaker 06:
We can't even begin addressing the underlying issue in this case because we haven't seen why it's being withheld.

[00:03:21] Speaker 05:
You took Hubbard in the abstract and asked yourself how it might apply to this kind of situation where you have a FOIA requester and the government says we need to justify the withholding, but we can't do it without letting the count out of the bag.

[00:03:40] Speaker 05:
And you ask yourself how those six factors would apply to that kind of situation.

[00:03:45] Speaker 05:
When you get something pretty close to areas anyway, right?

[00:03:51] Speaker 05:
OK, so what are we fighting over?

[00:03:53] Speaker 06:
But I don't think area says that we don't get the Tierney Declaration.

[00:03:58] Speaker 06:
I think all area all area says at the bottom is that you've got to look at a balance of privacy versus public.

[00:04:10] Speaker 06:
That's all that's and I think basically the government doesn't dispute that.

[00:04:15] Speaker 06:
Well, OK, but what?

[00:04:17] Speaker 05:
So we're just we're not talking.

[00:04:20] Speaker 05:
No, I mean, we're not talking about a legal disagreement between two noticeably different standards.

[00:04:27] Speaker 05:
We're talking about whether they met their burden of showing that they need to tell us a little bit more without revealing things that that they're entitled to protect.

[00:04:40] Speaker 06:
I think at the bottom, a lot of tests that courts develop are based upon an amalgam of information and an amalgam of standards.

[00:04:49] Speaker 06:
And you can always watch them together and say, let's look at what's reasonable.

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And I don't disagree.

[00:04:55] Speaker 06:
Aref is reasonable, and Hubbard is reasonable.

[00:04:58] Speaker 06:
Hubbard sets out six factors.

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Aref looks probably at two of the six factors.

[00:05:03] Speaker 06:
But the bottom line is, is that what Arieff said is that if you have a lot of public already and you're just missing something, and we have got to understand as a court what it is that, why it is that we're redacting a small thing and it's not in the record, we can look at a declaration beyond what's already in the record.

[00:05:24] Speaker 06:
In this case, we have nothing.

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In other words, if there was a tyranny declaration that we saw and it said whatever it said,

[00:05:33] Speaker 06:
But there was something unique that Tierney couldn't say publicly.

[00:05:37] Speaker 06:
And if that was in a separate declaration, then you would have an area.

[00:05:42] Speaker 06:
But here, we had nothing.

[00:05:43] Speaker 06:
We're sitting here arguing about something that we can't address because we haven't seen anything.

[00:05:50] Speaker 06:
Even in their brief, they disclose something about the Tierney application, the Tierney declaration, which we had never known before.

[00:05:57] Speaker 06:
But when you look at it, it made the Tierney declaration an improper declaration because it was argumentative.

[00:06:04] Speaker 05:
It does make your job harder, no doubt.

[00:06:08] Speaker 05:
But let's talk about a few things you can talk about, which is the balance on the merits.

[00:06:15] Speaker 05:
And it seems like we have a lot of authority for the proposition that a person who comes forward with information, provides information to the government,

[00:06:32] Speaker 05:
has some privacy interest in not having his or her identity just divulged within Exemption 6.

[00:06:41] Speaker 05:
Do you agree with that?

[00:06:43] Speaker 06:
The case is going both ways.

[00:06:45] Speaker 06:
And I tell you what I think the difference is.

[00:06:47] Speaker 06:
Really?

[00:06:48] Speaker 06:
What?

[00:06:48] Speaker 06:
Paulin is one very good example.

[00:06:51] Speaker 06:
I'm sorry, which one?

[00:06:52] Speaker 06:
Paulin.

[00:06:52] Speaker 06:
We cited a whole bunch of them in our brief.

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And I can find it.

[00:06:58] Speaker 06:
I just saw that earlier this morning in our reply brief.

[00:07:01] Speaker 06:
There are a lot of cases in which this court, in which the district court, the district, the U S district, Columbia address these issues.

[00:07:10] Speaker 05:
How about from this court?

[00:07:11] Speaker 06:
There's not much in this court.

[00:07:12] Speaker 06:
There's not, there's not much coming out of this court, but it's, it's really all the same kind of law because with the, what the courts have said and with the, and with basic reasons tells you is that,

[00:07:28] Speaker 06:
You've got to look at something and say, is this really a privacy?

[00:07:32] Speaker 06:
How much privacy?

[00:07:33] Speaker 06:
How important is the privacy?

[00:07:35] Speaker 06:
And you look and you say, well, this person, whoever it was that submitted this, he wasn't trying to, he wasn't an anonymous complaint.

[00:07:43] Speaker 06:
He put his name on something and sent it to the US government.

[00:07:45] Speaker 06:
So privacy, somewhat limited.

[00:07:48] Speaker 06:
Okay, now public.

[00:07:50] Speaker 06:
What is it that we need?

[00:07:52] Speaker 06:
We need to see how the government looked at this.

[00:07:55] Speaker 06:
And part of it is where it came from.

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Was it from a friend?

[00:07:59] Speaker 06:
Was it from a competitor?

[00:08:01] Speaker 06:
How do they look at that?

[00:08:03] Speaker 06:
So you look at the privacy, which is limited, and the cases have said that when somebody submits something to the government and puts their name on it, that privacy interest is extremely limited.

[00:08:12] Speaker 06:
And you look at the public need, and the public needs to figure out what the VA did.

[00:08:16] Speaker 05:
What the government is up to is a standard phrase we use in cases.

[00:08:23] Speaker 05:
So what would this record

[00:08:26] Speaker 05:
You haven't seen it, but suppose it's just information.

[00:08:31] Speaker 05:
It's the allegation that your client sold defective products.

[00:08:39] Speaker 05:
That doesn't tell you how the government investigates.

[00:08:43] Speaker 05:
How would the complainant know that?

[00:08:45] Speaker 05:
He's not an inspector general reviewing the agency's investigatory process.

[00:08:51] Speaker 05:
He's a complainant saying your client

[00:08:55] Speaker 06:
sold bad products.

[00:08:57] Speaker 06:
Did the complainant come from somebody who was a competitor?

[00:09:00] Speaker 06:
We don't know.

[00:09:00] Speaker 06:
Did the complainant come from somebody, was the complainant somebody who actually never dealt with Michael?

[00:09:07] Speaker 06:
We don't know.

[00:09:07] Speaker 06:
Was the complainant somebody who has the same last name as somebody at the VA who acted on this?

[00:09:14] Speaker 06:
We don't know.

[00:09:14] Speaker 04:
We don't know anything.

[00:09:16] Speaker 04:
So you're saying that the identity of the complainant is

[00:09:20] Speaker 04:
Critical to what?

[00:09:22] Speaker 06:
It's possible.

[00:09:23] Speaker 06:
The identity of the complainant is is very is very important, but.

[00:09:28] Speaker 04:
If we have the weighing, it's the privacy versus your interest in the identity and maybe you lose.

[00:09:33] Speaker 06:
But if we had the email without with that information redacted, we might say, well, we don't.

[00:09:40] Speaker 06:
Now we can see what happened here.

[00:09:42] Speaker 06:
We don't need the identity because we see in the email that this person is saying,

[00:09:46] Speaker 06:
I work at a hospital and these people delivered.

[00:09:49] Speaker 04:
But the allegation is, if you see the email, it will reveal the identity, which you're not entitled necessarily to have.

[00:09:56] Speaker 06:
So that is it.

[00:09:58] Speaker 06:
That's the allegation that is beyond my ability.

[00:10:01] Speaker 06:
I don't understand how looking at an email where information is redacted, addresses and names are redacted.

[00:10:09] Speaker 06:
We will know the identity of the person who submitted it.

[00:10:11] Speaker 06:
It's just not, it just doesn't make any sense.

[00:10:15] Speaker 06:
If they, if the person said, I'm, I'm in a hospital in Atlanta, Georgia, I'm going to be a hospital in Georgia.

[00:10:21] Speaker 06:
Okay.

[00:10:21] Speaker 06:
We got the hospital out of Georgia, but tell us it was a hospital.

[00:10:26] Speaker 06:
If the person says, I know that, that, that, uh, striker beds were what, cause we think that that's what the claim was.

[00:10:34] Speaker 06:
Cause we heard something in an oral conversation on my client.

[00:10:37] Speaker 06:
Um, if, if we find out that that is really not striker beds, it's some other product that my client has never sold anywhere.

[00:10:46] Speaker 06:
We would be able to respond more forcefully, but the bottom line is, is that we know nothing.

[00:10:52] Speaker 06:
And the reason why we know nothing is because everything has been in a sealed brown bag and we've been given, we've been given notes.

[00:10:59] Speaker 05:
I mean, you're interested in the identity.

[00:11:01] Speaker 06:
You want to know the identity of the accuser, right?

[00:11:06] Speaker 06:
We might.

[00:11:07] Speaker 06:
But without looking at the information with a healthy identity, we can't even argue why we need the idea.

[00:11:13] Speaker 04:
You admitted in your brief that you want to know the identity.

[00:11:16] Speaker 04:
You want to unmask this?

[00:11:18] Speaker 06:
There is no question my client would like to know the identity.

[00:11:21] Speaker 06:
And the reason is because if this person is an out and out liar.

[00:11:26] Speaker 05:
I don't blame you for that.

[00:11:28] Speaker 05:
But I mean, let's not.

[00:11:29] Speaker 05:
beat around the bush.

[00:11:30] Speaker 05:
That's what this case is about.

[00:11:32] Speaker 05:
That's what my client would like to do.

[00:11:34] Speaker 06:
Would not sue somebody for libel or slander.

[00:11:36] Speaker 06:
It's probably libel, defamation.

[00:11:39] Speaker 06:
But that's not harassment.

[00:11:42] Speaker 06:
That's not the privacy interest that the government can protect.

[00:11:45] Speaker 06:
The government has no right to protect somebody from a libel suit.

[00:11:48] Speaker 06:
That's just wrong.

[00:11:50] Speaker 05:
Right, but it's a little bit unrealistic to then frame this as, you know, you can redact everything that bears on

[00:12:00] Speaker 06:
I always tell my clients, let's go step by step.

[00:12:09] Speaker 06:
If you see a document without the identity, maybe that will be enough.

[00:12:13] Speaker 06:
If you see the document, let me be the identity.

[00:12:17] Speaker 06:
But without looking at anything, it's like arguing about ambiguities.

[00:12:25] Speaker 04:
Don't you want a redacted version so that your client can try to piece together what the identity is?

[00:12:30] Speaker 04:
And isn't the government's position that we don't know what your client knows, so if we reveal any of this, they might be able to unmask?

[00:12:37] Speaker 06:
I'll answer that in two ways.

[00:12:40] Speaker 06:
No.

[00:12:41] Speaker 06:
As I said, there are two steps.

[00:12:44] Speaker 06:
And I would tell people there are two steps.

[00:12:46] Speaker 06:
Let's look at the document without it so that there's nothing that wouldn't possibly identify the person.

[00:12:52] Speaker 06:
That would be step one.

[00:12:53] Speaker 06:
Let's look at the tyranny declaration as to why they say they can't do that.

[00:12:56] Speaker 06:
That would be a certain part of the step.

[00:12:59] Speaker 06:
And two would be, the answer is that if we want that information, it's because we have a legitimate interest.

[00:13:09] Speaker 06:
It's not illegitimate.

[00:13:11] Speaker 06:
All the cases that they cite about harassment, they know we want to harass us, are all about their abortion clinic protesters who want to go in and beat up women who are going into an abortion clinic or physicians.

[00:13:25] Speaker 06:
It's that kind of harassment that the cases are concerned about.

[00:13:29] Speaker 06:
It's not they're never be turned back.

[00:13:31] Speaker 06:
In fact, this court has said we're not concerned about potential lawsuits or potential litigation that might develop.

[00:13:39] Speaker 06:
It's because it's that's not a legitimate.

[00:13:42] Speaker 06:
That's that's legitimate harassment if you want to look at it that way.

[00:13:44] Speaker 06:
But it's nothing that it's nothing that should prevent us from looking at this information.

[00:13:48] Speaker 06:
But again, we haven't seen the tearing declaration.

[00:13:51] Speaker 06:
We haven't seen any part of this email.

[00:13:54] Speaker 06:
We're talking about.

[00:13:55] Speaker 06:
I think that's what we have.

[00:13:59] Speaker 06:
And that really is what this comes down to.

[00:14:01] Speaker 06:
Can the U.S.

[00:14:02] Speaker 06:
District Court decide a case based upon not giving us any arguments?

[00:14:07] Speaker 05:
Thank you, Judge Tatel.

[00:14:08] Speaker 05:
Any questions, Judge Pan?

[00:14:09] Speaker 05:
Anything else?

[00:14:10] Speaker 05:
No.

[00:14:10] Speaker 05:
Thank you.

[00:14:11] Speaker 05:
We'll give you some time.

[00:14:25] Speaker 00:
Good morning.

[00:14:26] Speaker 03:
May it please the Court, Douglas Greyer on behalf of the Department of Veterans Affairs.

[00:14:30] Speaker 03:
There are two issues here.

[00:14:32] Speaker 03:
First, the District Court acted comfortably within its discretion when it accepted the Tierney Declaration of Ex Parte.

[00:14:39] Speaker 03:
And second, the VA appropriately withheld the complaint under Exemption 6 for the reasons stated not just under Seal and the Tierney Declaration, but in the three public-facing declarations in this case.

[00:14:51] Speaker 03:
Boy, it does not compel agencies to unmask whistleblower in a case like this one.

[00:14:55] Speaker 05:
Let's talk about that.

[00:14:58] Speaker 05:
Um, put aside the information in the ex parte declaration for now, which might, um, present case specific issues.

[00:15:08] Speaker 05:
I mean, just as a general matter, you, you do have cases on your side saying, um, there is a privacy interest in complainants have some privacy interest in their identity, but is there any, um,

[00:15:23] Speaker 05:
Is there any requirement that that be a legitimate privacy interest?

[00:15:28] Speaker 05:
And I mean, suppose the person coming forward is a competitor with malicious intent who makes a false charge and substantially harms the FOIA plaintiff here.

[00:15:44] Speaker 05:
And sure, they want to bring a defamation action, but be a perfectly good action.

[00:15:51] Speaker 03:
The privacy interest must stay focused on the interest of protecting the identity of the individual complainant.

[00:15:58] Speaker 03:
And there could be significant public interest reasons why the identity of a complainant should be disclosed.

[00:16:06] Speaker 03:
Perhaps there's less of an incentive to protect the identity of an individual who's submitted a malicious complaint.

[00:16:17] Speaker 03:
But I want to emphasize that's not the case that's here today.

[00:16:20] Speaker 03:
So in the answer, for instance, the defendant denied that the complaint was false.

[00:16:25] Speaker 03:
The defendant has certainly never conceded that there is a false complaint here.

[00:16:30] Speaker 03:
And also, I think where the focus has been is on the investigation eventually lifted the recall.

[00:16:38] Speaker 03:
But that is not in any sense a determination that the initial complaint itself is false.

[00:16:43] Speaker 03:
I also would like to focus on the particular request at issue here, because I do think the words matter.

[00:16:49] Speaker 03:
And the words particularly matter in this case, where my friend narrowed the FOIA request.

[00:16:55] Speaker 03:
So on page 15 of the joint appendix, the request is narrowed to quote, the redacted form of the two page document, i.e.

[00:17:05] Speaker 03:
not the substance and the identity of the person or entity submitting the complaint.

[00:17:10] Speaker 03:
That is all that is being taught here.

[00:17:12] Speaker 03:
And so it's directly contrary to what we were hearing earlier in the argument about what the

[00:17:17] Speaker 03:
the reasons they explicitly displaying that seeking just basically just the identity of the person.

[00:17:24] Speaker 03:
And so that's really what we're here today.

[00:17:31] Speaker 04:
So I had a question about the attorney declaration.

[00:17:37] Speaker 04:
And so the case law says that a district court relying on in camera submissions must make its reasons for doing so clear.

[00:17:47] Speaker 04:
and make as much as possible of the in-camera submission available to the opposing party.

[00:17:53] Speaker 04:
And it seems that there was a request both in the motion for reconsideration and in the prior brief in the court below to at least give us some of this.

[00:18:04] Speaker 04:
And it seems to me that the district court did not address the option of redacting the Tierney Declaration and giving some of it to the

[00:18:16] Speaker 04:
FOIA requester.

[00:18:18] Speaker 04:
And so I'm wondering if that's an abusive discretion where the court says it must make as much as possible available to the opposing party and it has to make its reasons for doing so clear.

[00:18:29] Speaker 04:
I don't see any explanation that it was considered redacting the Tierney Declaration and giving some of it to the opposing party.

[00:18:42] Speaker 03:
So I think what's important here is that the defendant

[00:18:46] Speaker 03:
filed a motion for leave to file the Tierney Declaration Ex Parte.

[00:18:50] Speaker 03:
And in that motion, it provided significant contents about the Tierney Declaration.

[00:18:54] Speaker 03:
And that's not in the Joint Appendix, but it is ECF number 12, I believe, perhaps 10.

[00:19:00] Speaker 03:
It's either 10 or 12, sorry.

[00:19:03] Speaker 03:
But in that motion, it identifies the name of the declarant, it identifies the title of the declarant, and it provides what the defendant was able to say in a public-facing setting.

[00:19:15] Speaker 03:
And so the district court gets presented with this motion with that information already on the record.

[00:19:21] Speaker 03:
Um, and so it, uh, and I would read the last, uh, two pages of the district court's opinion where it addresses this issue as really saying that, look, this information to the extent, uh, it should be disclosed.

[00:19:35] Speaker 03:
It already has been in that.

[00:19:38] Speaker 04:
Does it say that?

[00:19:39] Speaker 04:
I don't see that here.

[00:19:39] Speaker 03:
It doesn't use those exact notes.

[00:19:42] Speaker 04:
So what wasn't the,

[00:19:44] Speaker 04:
court required to make its reasons for doing so clear.

[00:19:47] Speaker 04:
Those are the words of the Armstrong case.

[00:19:49] Speaker 04:
So you are coming up with a reason, but that's not what the court said.

[00:19:54] Speaker 04:
So I'm wondering if that's an abusive discretion.

[00:19:56] Speaker 04:
And if so, is there almost error here?

[00:19:58] Speaker 03:
Well, I'd say so the district court, for instance, is cited Barnard at the end of its opinion.

[00:20:05] Speaker 03:
So in the Barnard case, which is another district court opinion,

[00:20:10] Speaker 03:
The district court included a footnote explaining that it had assessed whether it could segregate any portions of the declaration and provide a public version and determined that it could not.

[00:20:27] Speaker 03:
And I think it could be read into the citation of the Barnard decision that occurred here.

[00:20:32] Speaker 04:
There's no parenthetical or anything about Barnard.

[00:20:34] Speaker 04:
It's just cited.

[00:20:36] Speaker 04:
Do you think that's sufficient to make its reasons for doing so clear, citing Barnard?

[00:20:40] Speaker 03:
I do here.

[00:20:43] Speaker 03:
And again, I'd also submit that the motion itself is already disclosed.

[00:20:49] Speaker 03:
To the extent there are disposable portions of the paternity declaration, those portions were submitted in the motion itself.

[00:20:56] Speaker 04:
But there's no way for the opposing party to know that, because they don't know what's in the paternity declaration.

[00:21:03] Speaker 03:
And that's, you know, FOIA is an unusual case.

[00:21:07] Speaker 03:
And Arif pointed this out.

[00:21:09] Speaker 03:
long ago that this is really a case where the court's job is to determine whether to maintain material under seal.

[00:21:17] Speaker 03:
And so one party knows the contents of the withheld records while the other does not.

[00:21:23] Speaker 03:
And the courts have been charged with the responsibility of deciding the dispute without altering that unequal condition, since that would involve disclosing the very material sought to be kept secret.

[00:21:34] Speaker 03:
And so it is very difficult to provide

[00:21:36] Speaker 03:
additional information without forcing the government to concede its case and its grievance.

[00:21:42] Speaker 04:
I think that's different from what I'm asking because it seems to me that you could redact the Tierney Declaration to preclude disclosure of the information that might disclose the identity of the complainant.

[00:21:59] Speaker 04:
And it seemed to me that this case law suggests that the district court was required to either do that or explain why it did not.

[00:22:08] Speaker 03:
And to that, I suppose I would say that to the extent there was any error below, it would still need to be not a harmless error.

[00:22:16] Speaker 03:
And here, since the motion itself disclosed contents of the TUNY declaration, disclosed the name of the person, the title of the person,

[00:22:28] Speaker 03:
I don't see how any error relating to that would be anything but harmless.

[00:22:35] Speaker 05:
Your position, you think you can win on the merits now.

[00:22:42] Speaker 05:
Even if we were to disregard the information in paragraph eight of tyranny, which might help you out.

[00:22:55] Speaker 05:
If we disregard that, we're left with some reason to think that this was a competitor, the charge was false, may have been malicious, and it caused substantial damage to the complainant.

[00:23:09] Speaker 05:
And your position is just tough.

[00:23:12] Speaker 03:
Well, my position is that the Tierney Declaration was indeed essential to the district court's opinion.

[00:23:17] Speaker 05:
Tierney might

[00:23:18] Speaker 05:
make the case substantially different from what I just described.

[00:23:22] Speaker 05:
But I'm just testing here whether we need tyranny for you to win.

[00:23:28] Speaker 03:
The defendant does think we need tyranny to win.

[00:23:30] Speaker 03:
And the reason why is because sorry thinks you do need it.

[00:23:35] Speaker 03:
Yeah, we need tyranny to win in this case.

[00:23:37] Speaker 03:
And the reason we need that is because I mean, if when the court looks at the test that was set forth in a read and looks at the test set forth in Montgomery just this past July,

[00:23:48] Speaker 03:
One of those requirements of that test is that the validity of the exemption must, if you need the information being provided ex parte in order to decide the validity of the exemption.

[00:24:01] Speaker 03:
And so if I were to answer that alternatively, then the TUNE declaration would perhaps never have, should never have been filed in the first place.

[00:24:11] Speaker 05:
Yeah, I see that.

[00:24:12] Speaker 05:
I think you're entitled to argue in the alternative, but I appreciate it, Judge Tatel.

[00:24:19] Speaker 05:
Okay.

[00:24:20] Speaker 05:
Thank you.

[00:24:30] Speaker 06:
I'm so sorry.

[00:24:31] Speaker 06:
Cited to 15 is something that limited or limited.

[00:24:36] Speaker 06:
Yes.

[00:24:38] Speaker 06:
That is the letter saying as an initial limited.

[00:24:44] Speaker 06:
In other words, we're saying you would have everything.

[00:24:47] Speaker 06:
and you've held it on the basis of exemption five.

[00:24:49] Speaker 06:
They didn't even hold it on exemption six.

[00:24:51] Speaker 06:
They were holding it on exemption five.

[00:24:52] Speaker 06:
And our position was, if you're holding it on exemption five, as a limited matter, you have to at least initially give us something that's limited, because exemption five clearly cannot apply to what it is you have.

[00:25:05] Speaker 06:
That's what that letter's about.

[00:25:06] Speaker 06:
There's nothing to do.

[00:25:07] Speaker 06:
It doesn't limit our request.

[00:25:10] Speaker 06:
That's just wrong.

[00:25:11] Speaker 04:
So it says in your letter, we ask that A, the redacted form of the two-page document be released, not the site.

[00:25:20] Speaker 04:
Read two paragraphs up.

[00:25:21] Speaker 04:
And B, the identity of the person or identity submitting the complaint be released and redacted from the form document.

[00:25:27] Speaker 04:
So that does seem to be narrowing your FOIA request.

[00:25:30] Speaker 06:
So read two paragraphs up.

[00:25:31] Speaker 06:
I am asking for a prompt initial limited release

[00:25:35] Speaker 06:
And it goes on in the next paragraph to explain that exemption five cannot apply to what it is that we're asking for a limited release.

[00:25:43] Speaker 06:
And you're denying us.

[00:25:44] Speaker 06:
In other words, they said, we're not giving you anything, exemption five.

[00:25:47] Speaker 06:
I said, well, that's crazy because exemption five cannot possibly apply to this stuff.

[00:25:53] Speaker 06:
So give us the initial limited release, then we can fight about everything else.

[00:25:57] Speaker 06:
And they wouldn't give us that either.

[00:25:58] Speaker 06:
But that doesn't limit this case.

[00:26:00] Speaker 06:
That's clear to all the staff.

[00:26:02] Speaker 06:
Um, the court asked us about cases in which this has occurred.

[00:26:05] Speaker 06:
People for American away.

[00:26:07] Speaker 06:
Um, we cited that case.

[00:26:09] Speaker 06:
We cited the case of, uh, of, uh, Edelman, um, in which payments, uh, which people writing the government letters from painting were released.

[00:26:18] Speaker 06:
Um, their response was we'll look at Edelman three because it was additional litigation.

[00:26:23] Speaker 06:
Um, and that's true.

[00:26:24] Speaker 06:
There was, but in the eight one three, it said, well, we're going to hold the last X number of names because you already have 50 other names.

[00:26:32] Speaker 06:
complainants and these last ones are just the same category so you have no real need for these names so it's clear that releasing names is is to regard um that's really what sort of occurred here thank you uh judge tatel no okay thank you now the case is submitted