[00:00:00] Speaker 00: Case number 21-5108, Watkins Law and Advocacy PLC at balance versus United States Department of Justice at out. [00:00:09] Speaker 00: Mr. Watkins for the at balance, Mr. Sonny for the at balance. [00:00:15] Speaker 01: Good morning council, Mr. Watkins. [00:00:17] Speaker 01: Please proceed when you're ready. [00:00:28] Speaker 03: Good morning. [00:00:29] Speaker 03: May it please the court. [00:00:31] Speaker 03: This appeal is about three Freedom of Information Act requests, all with the same subject matter involving the reporting of names of veterans who the Department of Veterans Affairs has deemed to be financially incompetent to the Federal Bureau of Investigation under the Breaking Act. [00:00:54] Speaker 03: The Department of Justice has [00:00:58] Speaker 03: essentially withheld all documents related to this subject matter. [00:01:04] Speaker 03: There are broad categories of documents that were requested from the Department of Justice, which is charged with handling the Brady Act. [00:01:13] Speaker 03: Yet seven years after the Freedom of Information Act requests were filed, two documents have been disclosed that are the annual reports provided to Congress. [00:01:24] Speaker 03: The scope of the FOIA requests clearly encompasses [00:01:27] Speaker 03: all of the annual reports that were provided to Congress to explain how names have been reported by the various agencies of the federal government under the Brady Act. [00:01:38] Speaker 03: That is just a piece of the scope of the FOIA request to the Department of Justice. [00:01:45] Speaker 03: The FOIA request to the FBI is quite similar in scope to DOJ. [00:01:49] Speaker 03: And then the third FOIA request is to the Department of Veterans Affairs. [00:01:55] Speaker 03: The Department of Veterans Affairs [00:01:57] Speaker 03: unlike the other two agencies, has identified many documents, but withheld them all. [00:02:04] Speaker 03: Under deliver of process privilege, making allegations that communications between agencies, without identifying whether the communications were between attorneys and agencies, are still covered by attorney-client privilege. [00:02:20] Speaker 03: So the Department of Veterans Affairs is not at issue with respect to scope of search, but is at issue with respect to the applicability of deliberative process. [00:02:32] Speaker 03: The problem here with, we'll start with the Department of Justice, is that in its response determination in its initial letter, before it provided any information about documents said, well, we, [00:02:49] Speaker 03: They said, sorry, we have unusual circumstances and the unusual circumstances apparently from the Department of Justice's perspective were that they needed to search for the documents elsewhere. [00:03:09] Speaker 03: There are only three circumstances under the statute when unusual circumstances apply and they are [00:03:15] Speaker 03: the need to search for and collect from an office separate from the office processing the request, the need to search for a voluminous amount and the need to consult with two or more components outside the agency. [00:03:30] Speaker 03: There's essentially an admission in the response letter from the Department of Justice that they needed to search beyond the office of the attorney general if they were going to pull the documents that were responsive [00:03:44] Speaker 03: there was no such search performed in years. [00:03:48] Speaker 03: All the evidence suggests that, um, from, uh, documents that were not produced by the DOJ, there are many more documents that should have been uncovered. [00:03:59] Speaker 01: Can I ask a question about that? [00:04:00] Speaker 01: So as, as I understood the back and forth in the district court, there, the government made apparent in some of its submissions that it understood [00:04:12] Speaker 01: the requests to DOJ to be one directed at the Office of the Attorney General. [00:04:18] Speaker 01: Yes. [00:04:19] Speaker 01: And I didn't see where that characterization of the scope of that request was contested. [00:04:27] Speaker 01: And I know that you have some questions about why not look at some of the other components? [00:04:34] Speaker 01: Why not look at Office of Legislative Affairs? [00:04:37] Speaker 01: But as I understood the back and forth in the district court, [00:04:41] Speaker 01: It was framed as a request to OAG, as opposed to the attorney general as the supervisor of the entire Department of Justice. [00:04:52] Speaker 01: And I didn't see where that framing of it was disputed by you, but maybe I'm wrong about that. [00:05:00] Speaker 03: So the framing of the request must encompass the following. [00:05:08] Speaker 03: The request was made [00:05:10] Speaker 03: surely to the attention of the Office of the Attorney General. [00:05:15] Speaker 03: For example, these annual reports that the Department of Justice is supposed to file with Congress about how many veterans have been reported under the Brady Act so that they lose their Second Amendment rights. [00:05:31] Speaker 03: There is no way for anybody to know who in the Department of Justice prepares that. [00:05:37] Speaker 03: An insider to the Department of Justice [00:05:40] Speaker 03: might know this, but any member of the public would know. [00:05:43] Speaker 03: Before this lawsuit, not a single one of those annual reports had been disclosed publicly. [00:05:49] Speaker 03: After this lawsuit, we have one with a date on it, one without a date on it. [00:05:55] Speaker 03: The request specifically says, if any records, I'm sorry, if DOJ's OAG does not have custody or control over certain requested and responsive records, [00:06:06] Speaker 03: But Noser believed that another component of DOJ, subject to FOIA does, please forward this FOIA request to the appropriate person and inform us that you have done so. [00:06:17] Speaker 03: That seems to fit neatly within unusual circumstances as defined by the statute. [00:06:23] Speaker 03: There was a perfect understanding at DOJ that OAG may not have had the documents. [00:06:29] Speaker 03: I'm not sure whether they do or they don't. [00:06:31] Speaker 03: What I can tell you is that although the OAG is charged with informing Congress about reporting under the Brady Act, there's no evidence to show that they have. [00:06:48] Speaker 03: I don't know who at DOJ does it, and I've had to wait seven years to try to find out. [00:06:54] Speaker 02: I don't know what a FOIA applicant is supposed to do with DOJ. [00:07:06] Speaker 03: This places the burden on the FOIA applicant to essentially pepper DOJ, every division in DOJ with a FOIA request, if you don't know where the documents are. [00:07:15] Speaker 02: Well, you targeted one specifically to the office of attorney general, and you have reason to believe it's in a different office now. [00:07:20] Speaker 02: So I don't know that it has the consequences you're describing. [00:07:23] Speaker 02: I'm just asking once you were aware that it could be the office of legislative affairs, which you had not directed a FOIA request. [00:07:31] Speaker 02: Couldn't you have submitted one to them? [00:07:36] Speaker 03: Seven years ago, I didn't know where any documents were in the Department of Justice, let alone the FBI or the VA. [00:07:42] Speaker 03: I didn't know the scope of what I would be given. [00:07:45] Speaker 03: All I knew was that I had several veterans who I was trying to represent. [00:07:48] Speaker 02: And I'm just talking about in the interim to try to speed things along here because I understand your interest in efficiency here. [00:07:55] Speaker 02: So that's why. [00:07:57] Speaker 02: I'm wondering if. [00:07:57] Speaker 01: Is it possible that they could have filed a request directly with the Office of Legislative Affairs? [00:08:02] Speaker 01: Sure. [00:08:03] Speaker 01: And then, and once you found, once you discovered, I'm not taking issue with the proposition that you wouldn't have known that at the outset, but in the course of the back and forth in the seven years that's transpired, it became apparent that OLA might have some documents at that point, or even now, a FOA request could be submitted that targets Office of Legislative Affairs. [00:08:23] Speaker 01: It's possible to still submit [00:08:25] Speaker 03: I'm going to reserve the rest of it. [00:08:27] Speaker 02: Can I ask you, I'll save you some time. [00:08:29] Speaker 02: I just had one more question. [00:08:31] Speaker 02: And this is just a fact question. [00:08:35] Speaker 02: It's not to get into legal consequences at all. [00:08:37] Speaker 02: But are these reports, normally reports between the Justice Department that the requirement to submit to Congress are a matter of public [00:08:48] Speaker 02: Are these reports nowhere publicly available that you're aware of from Congress or from? [00:08:55] Speaker 03: I'm not aware of any place that you can get these reports. [00:08:59] Speaker 02: Very strange. [00:09:00] Speaker 03: I'm not aware of any instance of them on the internet. [00:09:02] Speaker 03: The only instance is a recognition that in this lawsuit, one undated report and one dated report were revealed. [00:09:11] Speaker 03: Right. [00:09:11] Speaker 03: That's part of the problem. [00:09:13] Speaker 03: Right. [00:09:14] Speaker 03: 80% of the veterans who are proposed [00:09:18] Speaker 03: be financially incompetent, the VA's process, are deemed financially incompetent. [00:09:25] Speaker 03: That means that 80% of them probably had no lawyer who could help them or they had dementia and they belonged in the category of being financially incompetent. [00:09:35] Speaker 03: But I can tell you from the perspective of somebody who represents veterans, it's very, very hard to defend them because the process is secret. [00:09:44] Speaker 03: And then it takes a half a decade before you can ever get to an appeal to try to reverse the financial incompetency decision. [00:09:52] Speaker 03: So the importance of these records could not be greater for these several hundred thousand veterans who in a reasonable period of years were reported under the great law. [00:10:03] Speaker 01: Thank you. [00:10:04] Speaker 01: Thank you. [00:10:04] Speaker 01: We'll give you some time for rebuttal. [00:10:06] Speaker 01: We'll give you some time for rebuttal. [00:10:07] Speaker 01: Thank you. [00:10:09] Speaker 01: Just a few minutes. [00:10:09] Speaker 01: I appreciate it. [00:10:17] Speaker 01: Mr. Simon will hear from the government now. [00:10:33] Speaker 07: Good morning, and please record. [00:10:36] Speaker 07: Shortly before this lawsuit was filed five years ago. [00:10:39] Speaker 01: Can you just make sure you stay kind of within the zone of the microphone instead of giving any insights so it gets a little bit harder to hear? [00:10:44] Speaker 07: Shortly before this lawsuit was filed five years ago, [00:10:48] Speaker 07: the OIP on behalf of the Office of Attorney General responded to Mr. Watkins advising that the Office of Attorney General's record system was searched in response to his request. [00:11:02] Speaker 07: Mr. Watkins filed a complaint thereafter in which he confirmed in paragraph 30, this is Joint Appendix 19, that the material he sought with respect to his FBI and OAG request [00:11:17] Speaker 07: concerned interagency agreements and the procedures by which information on veterans was reported to the FBI. [00:11:27] Speaker 07: In an initial round of summary judgment motion filed four years ago, the FBI stated that it understood the request to seek documents regarding the process by which the VA provided information. [00:11:42] Speaker 07: I mean, OIP on behalf of OIG made a similar statement. [00:11:46] Speaker 07: That's JA211-212. [00:11:49] Speaker 07: In Mr. Watkins' opposition and cross-motion at JA371, he had a very limited argument as to the adequacy of the search by OIP and FBI, limited to search terms used, and [00:12:08] Speaker 07: The omission of a document, the 1998 memorandum of understanding that had not been produced or located by the FBI did not take issue at all with the understanding of the scope of the request or the OIP's determination that the request sought the records of the Office of Attorney General as the component to which the request was directed. [00:12:36] Speaker 01: Does it ever happen that DOJ, so OIP is the intake valve. [00:12:44] Speaker 01: If OIP just learns that even though the search was targeted at OAG and that was said in the back and forth and that wasn't disputed, if OIP just learns, actually that was just a mistake because I'm just hypothesizing, because really the bulk of the documents are in the Office of Legislative Affairs. [00:13:05] Speaker 01: Is it ever the case that OIP would just then ask OLA to run a search and to come up with the documents just because the government, who's in the best position to know where the documents might lie, discovers this and in kind of good faith with a FOIA requester just decides to do that? [00:13:26] Speaker 07: Well, I think, Your Honor, there's a decentralized system at the Department of Justice in their regulations for a reason. [00:13:34] Speaker 07: thousands, tens of thousands of requests come in and there's an orderly process by which they are evaluated at the intake stage is the face of the request indicates that the request or send it to the wrong place. [00:13:48] Speaker 07: If hypothetically, this request actually said, I am looking for reports from DOJ to Congress regarding the NICS, then OIP would have [00:14:02] Speaker 07: referred the request to the Office of Legislative Affairs. [00:14:07] Speaker 07: Because OIP is a processing arm for that office, they would have then conducted the search of OIA records. [00:14:15] Speaker 07: But this request does not seek a request of the Congress. [00:14:21] Speaker 07: And Watkins was aware, in the 2007 NIC Improvement Amendment Act, it stated that reports will be made to Congress. [00:14:31] Speaker 07: So if that's what Mr. Watkins wanted or what Watkins Law Group wanted, they were on notice that such reports existed, and they could have specified that in their request. [00:14:42] Speaker 07: Now, yes, the DOJ doesn't assume that a requester is going to understand necessarily that it's OLA that makes the request, the reports to Congress. [00:14:54] Speaker 07: And so had Watkins not known that, that's fine. [00:14:57] Speaker 07: If he had specified in his request, it would have been routed there. [00:15:00] Speaker 02: Well, it's not just that any known, uh, government's own FOIA reference guide lists the type of documents the office of attorney general has as including a specifically quote congressional testimony and accountability reports to Congress. [00:15:16] Speaker 02: It doesn't say the office of legislative affairs would have in its description of its content. [00:15:21] Speaker 02: It doesn't fit the separate report. [00:15:23] Speaker 02: And so the government's own guidance to FOIA requesters said he was asking the place [00:15:30] Speaker 02: for reporting the attorney general, putting aside the additional consideration that if it's a report from the attorney general, even if OLA is doing the transmission, doesn't it make her belief to think that the office of the attorney general doesn't have a copy of a report it sent to Congress each year? [00:15:51] Speaker 07: Well, but to be clear, your honor, OIP did run a search. [00:15:57] Speaker 07: its supplemental search using terms that Watkins had proposed, which was done during litigation, located sort of incidentally, these reports to Congress. [00:16:10] Speaker 02: Two reports to Congress. [00:16:12] Speaker 02: That's sort of the problem, right? [00:16:15] Speaker 02: If the Office of Attorney General is making these reports, the FOIA guide says they're the office that will have them. [00:16:23] Speaker 02: And it took a supplemental report search just to find two of them. [00:16:27] Speaker 02: Doesn't it almost raise a block letter say there's something wrong with your search process? [00:16:33] Speaker 02: You're not finding them? [00:16:34] Speaker 07: Your honor, the OIP then after they found those two reports, used the words from the title of the report and ran those words in the database, the OAG database, and still did not locate any additional reports. [00:16:52] Speaker 07: So the question here is, [00:16:54] Speaker 07: whether that was a reasonable methodology to try to find any additional reports that might be in the account book. [00:17:01] Speaker 02: Have these reports been filed as required by law annually or I think it later changed to bi-annually? [00:17:08] Speaker 07: I'm not in a position to answer that question other than to say that the search done by OIP of OAG records using a reasonable search methodology, that is the titles or keywords from the titles of the two reports they did find, [00:17:24] Speaker 07: in that database did not locate any additional reports. [00:17:29] Speaker 02: Is there somebody in the office that's in charge of making these annual reports? [00:17:33] Speaker 02: Who in the government is in charge of making these drafting up? [00:17:36] Speaker 02: It's not the attorney general himself. [00:17:38] Speaker 02: There's got to be somebody who's in charge. [00:17:40] Speaker 02: Was that person asked, identified and asked? [00:17:42] Speaker 07: Again, the record, the record establishes what's reflected in the record is that it was the Office of Legislative Affairs that sent [00:17:51] Speaker 02: these reports sent them, but that doesn't mean again, I guess I would be shocked if the office of attorney general didn't have copy of reports that it sent. [00:18:00] Speaker 02: They might have done the transmission, but these are from the attorney general. [00:18:04] Speaker 02: I assume drafted by somebody on staff or put together compiled by somebody on staff. [00:18:11] Speaker 02: It's not the OLA's job to compile these reports. [00:18:14] Speaker 07: Your honor. [00:18:15] Speaker 07: Again, this is in FOIA case, the agency's obligations to conduct a reasonable search. [00:18:20] Speaker 07: The request did not seek reports to Congress. [00:18:23] Speaker 02: Mr. Watkins... So we can debate whether the request, in fact, encompassed reports to Congress. [00:18:29] Speaker 02: Let's assume that it did. [00:18:31] Speaker 02: It didn't do it by name, but let's assume that the contents of at least the third request were broad enough to encompass it. [00:18:39] Speaker 07: And OIP conducted a search in the database that it determined was likely to have responsive records within the OAG, again, because the request was directed to the OAG. [00:18:51] Speaker 07: It located two reports and then following that lead went and did a supplemental search of the database using keywords from the title of the two reports that it did locate and we submit that that is a reasonable search methodology. [00:19:08] Speaker 07: to try to locate whether any additional reports existed. [00:19:12] Speaker 07: And the law is well settled in this circuit that you do not evaluate the reasonableness of a search based on its results, but on the methodology. [00:19:19] Speaker 02: It is not uncommon in these searches to also find the subunit or the individuals responsible for handling certain matters, having them check their files as well, but that doesn't seem to have been done here. [00:19:34] Speaker 02: Somebody's got to be writing these reports if they're annually filed with Congress. [00:19:38] Speaker 07: Your Honor, this is an issue that was not, to the extent it was not developed low in the manner that the court's indicating, it's because Watkins raised this issue at the 11th hour in a final round of summary judgment briefing, where he recharacterized the request as seeking requests, reports to Congress. [00:20:00] Speaker 07: And I will say, even then, never took issue with methodology used [00:20:08] Speaker 07: by OIP to search the OAT record. [00:20:11] Speaker 07: His argument instead seems to be that the request should have been read to seek reports to Congress and that OLA should have been, the records of OLA should have been searched. [00:20:22] Speaker 07: And we would submit that Clement does not impose that obligation. [00:20:26] Speaker 04: But here you have, question David? [00:20:30] Speaker 04: No, you go ahead. [00:20:31] Speaker 04: I was going to change the subject. [00:20:32] Speaker 04: Go ahead. [00:20:33] Speaker 04: Tell me, are you done? [00:20:34] Speaker 04: Go ahead. [00:20:35] Speaker 04: I want to ask you about the exemption five issue. [00:20:38] Speaker 04: So the government's obligation under FOIA is to correlate exemption claims with the particular part of the withheld documents to which they apply. [00:20:55] Speaker 04: That's the standard here. [00:20:57] Speaker 04: And when I look at the Vaughn index and the declaration, what I see is [00:21:04] Speaker 04: you know, a broad assertion of attorney-client and deliberative process privilege without any, at least I didn't see any effort to correlate them to which document. [00:21:15] Speaker 04: Did I miss something in the record? [00:21:17] Speaker 07: Your Honor is correct that in every column the agency claimed both deliberative process and attorney-client, but what I would emphasize on the Vaughan is that the Vaughan in its totality is detailed in terms of the type of issues that were being [00:21:33] Speaker 07: assessed in connection with the development of the memorandum of understanding. [00:21:39] Speaker 07: And I'd like to direct the court to JA 670, which is a December 1997 internal memorandum of the FBI that was produced in this case. [00:21:54] Speaker 07: Reflecting sentencing. [00:21:57] Speaker 07: Which document number is this? [00:21:58] Speaker 07: JA 670. [00:22:00] Speaker 07: It's reflecting the completion of the MOU development process. [00:22:05] Speaker 07: It stated that each MOU has been reviewed by the policy and legal points of contact at the appropriate agency and their comments incorporated into the respective MOU. [00:22:16] Speaker 07: So it's clear that the documents, the ones from the 1990 times period that Watkins has identified, were all in the context of developing the MOU [00:22:30] Speaker 07: identifying sort of issues or trying to develop a common understanding between the FBI and the VA as what obligations there were under the statute in terms of what needed to be reported or conclusion in the NIC and also consistent though with other statutory obligations. [00:22:50] Speaker 04: You think that's enough for us to conclude it? [00:22:54] Speaker 04: Is that deliberative or attorney client? [00:22:56] Speaker 04: Which is it? [00:22:59] Speaker 07: The process was both pre-decisional and deliberative in that it led up to the 1998 MOU between the FBI and the VA. [00:23:08] Speaker 04: And as to specific entries- Not all actions that lead up to a final decision are deliberate. [00:23:16] Speaker 04: Right, Your Honor, but- I'm just asking how we know that that's deliberate. [00:23:20] Speaker 04: Well, we know that- You're not claiming it's attorney client, right? [00:23:23] Speaker 07: I'm not claiming the district court [00:23:27] Speaker 07: determined that not all of the attorney client designations applied, and so we're seeking, we're seeking affirmance of that district court's decision, so we're not as certain. [00:23:38] Speaker 04: Well, let me ask you about a document or two then. [00:23:40] Speaker 04: Take a look at number 77. [00:23:44] Speaker 04: I'm sorry, I don't have the JSA number 77. [00:23:47] Speaker 04: It's a. It's a letter from the VA secretary. [00:23:55] Speaker 04: to someone at ATF regarding comments to ATF on proposed regulations regarding definitions of persons prohibited from receiving firearms. [00:24:16] Speaker 04: Sorry about that. [00:24:16] Speaker 04: Why is that attorney-client? [00:24:18] Speaker 04: What's the document 77? [00:24:21] Speaker 04: What's attorney-client about that? [00:24:25] Speaker 07: I have to check the district court decision. [00:24:30] Speaker 07: I don't believe the district court found attorney client to apply to that document. [00:24:37] Speaker 04: It doesn't make any difference to me what the district court found. [00:24:42] Speaker 04: I'm asking you why that document is either deliberative or attorney client. [00:24:52] Speaker 05: Your Honor, I believe the designation for attorney client [00:24:55] Speaker 07: was related to some markings on the document indicating that it had undergone review by the OGC. [00:25:04] Speaker 04: Well, not everything that undergoes review by OGC is attorney-client. [00:25:08] Speaker 04: It still has to be about a legal question. [00:25:12] Speaker 07: And I would just submit, Your Honor, that if the court does not believe that satisfies the best sufficient information to satisfy attorney-client privilege, it does fall within this deliberative pre-decisional [00:25:24] Speaker 07: timeframe which the FBI and VA were closely coordinating to come up with a memorandum of understanding in order to comply with the brand name. [00:25:37] Speaker 04: Take a look at, were you going to ask a question about that document? [00:25:41] Speaker 01: A different document. [00:25:41] Speaker 04: I was going to ask you that. [00:25:43] Speaker 04: Take a look at 90. [00:25:44] Speaker 04: Again, I'm sorry, I don't have the JA. [00:25:47] Speaker 04: It's a memo from an undersecretary to the VA general counsel. [00:25:54] Speaker 04: Um, and, you know, no question, you know, a letter, a letter from the client to the council could clearly be attorney client, but, um, but there's nothing in the Vaughn index or the night declaration that says the VA secretary was seeking legal advice in connection with that. [00:26:17] Speaker 07: 309. [00:26:18] Speaker 07: Yes, I see that, Your Honor. [00:26:20] Speaker 04: You see my concern about trying to apply this standard to this case. [00:26:26] Speaker 04: It's the government's burden to show that these documents are covered by an exemption, otherwise they have to be released. [00:26:32] Speaker 04: And I can't, I honestly don't see, with respect to these documents and quite a few others, where the government's met that burden. [00:26:40] Speaker 07: Well, Your Honor, again, with the VA made also the deliberative process privilege below, and we would submit that that... Okay, but how do I know that's deliberative? [00:26:50] Speaker 04: See, the point is, without distinguishing between the two of them, obviously the attorney-client and deliberative process are two different functions, two different actions, and something could be deliberative without being attorney-client or attorney-client without being deliberative. [00:27:08] Speaker 04: I just don't, to be honest, don't see enough in here to tell me which is which and why it would be as we've said. [00:27:18] Speaker 07: Well, you're and I would submit again that the totality of the lawn is reflecting a deliberative, a decisional process leading up to the MOU. [00:27:27] Speaker 01: In fact, the request. [00:27:29] Speaker 01: Well, that doesn't work for everything. [00:27:30] Speaker 01: So how about as far as I know, so how about document 30? [00:27:33] Speaker 01: We can do this forever, but I just you're the way you've done this as an umbrella is to say that we ought to view this in context and based on the J 670 that everything before a certain date is pre decisional. [00:27:46] Speaker 01: I don't know about that. [00:27:47] Speaker 01: whether we ought to read that into every single thing. [00:27:49] Speaker 01: But document 30, J 298, table of contents by tab number October 11, 2005, radiac SVAC meeting, briefing book, table of contents. [00:28:00] Speaker 01: Does that mean that 2005 is the relevant date for that one? [00:28:05] Speaker 07: Well, your honor, your honor, yes, there are other, there are other obviously later dates after the, but for this one is deliberative your honor, because it is, [00:28:16] Speaker 07: What it is is a table of contents of what is what was identified by someone to include in a briefing book for someone to utilize at a meeting. [00:28:27] Speaker 07: And so there is I think we cited the Apple case authority where this court is recognized that separating information out is considered important for a particular discussion is a deliberative pre decisional process. [00:28:42] Speaker 01: May there's that all we have is there's nothing that would tell me that a briefing book table of contents is by definition deliberate process or is that your position? [00:28:53] Speaker 07: I think this this says it's in the context of a meeting. [00:29:01] Speaker 01: Preparation of a meeting and it identifies the meeting date so I I think so any document that has to do with a meeting is deliberate process in the government's view. [00:29:09] Speaker 07: No, but if you have a document that details out the specific documents that are included in a briefing book that is used to prepare somebody for a meeting, then I believe that satisfies- Don't we have to know what the meeting's about? [00:29:23] Speaker 07: I don't know that in the context of- We need to know it's about making a decision. [00:29:31] Speaker 02: We can't assume just because something happened before a certain date that it was about that decision, about any particular decision. [00:29:39] Speaker 02: You have to identify the decision that this is supposedly informing. [00:29:44] Speaker 02: That could be a retrospective. [00:29:46] Speaker 02: That could be describing, that meeting could be discussing things that are already a matter of public record. [00:29:52] Speaker 07: Well, the subject matter of the meeting is identified and it is a... And the subject matter is? [00:29:58] Speaker 07: It says the... [00:30:01] Speaker 07: ESVAC meeting. [00:30:03] Speaker 01: I don't know what those would be. [00:30:04] Speaker 01: You don't know what ESVAC means? [00:30:05] Speaker 01: If you don't even know what it is, then it's a little bit hard to identify, I'm sorry, what the decision possibly could be. [00:30:12] Speaker 07: But it's not, I think the courts recognize it in the legislative process. [00:30:16] Speaker 07: There doesn't need, if it's part of a decision-making process, in other words, a meeting, preparing somebody for a meeting. [00:30:26] Speaker 02: Any meeting? [00:30:28] Speaker 07: Well, a meeting. [00:30:30] Speaker 02: What's your best case for preparing somebody for a meeting? [00:30:33] Speaker 07: This is clearly related to the approved. [00:30:36] Speaker 07: The request here. [00:30:38] Speaker 07: It's the context of the request. [00:30:40] Speaker 07: It's the parameters here. [00:30:41] Speaker 07: It's. [00:30:42] Speaker 07: If Watkins sought information in his request to the VA regarding the approved. [00:30:50] Speaker 07: See what his language is decision making. [00:30:52] Speaker 02: He had a very broad request. [00:30:54] Speaker 07: Well, to the VA. [00:30:57] Speaker 07: approved decision-making procedures to determine whether names will be reported. [00:31:01] Speaker 07: So that's the parameters of what these documents relate to. [00:31:07] Speaker 02: And if the decision had already been made, and now they're having a meeting discussing the decision that's already been made, that's not gonna be pre-decisional. [00:31:17] Speaker 07: Right. [00:31:18] Speaker 07: the deliberation that went into identifying the records to brief somebody, to prepare somebody for the meeting is a deliberate, just like the records I reviewed to prepare for this oral argument. [00:31:33] Speaker 01: You could have an after the fact debrief government. [00:31:35] Speaker 01: I mean, when I was in the government, we did that sometimes. [00:31:37] Speaker 01: I think it's just a standard thing for organizations to do. [00:31:41] Speaker 01: That's a post hoc debrief. [00:31:44] Speaker 01: That's a meeting that often happens. [00:31:47] Speaker 01: But it's not with an eye towards a subsequent decision. [00:31:49] Speaker 01: It's with an eye towards something that already happened. [00:31:53] Speaker 07: Again, I would just analogize to the process, for instance, which I prepared for this argument. [00:31:58] Speaker 01: Can I just ask you, with every one of these documents, the last column says deliberative slash attorney-client privilege. [00:32:06] Speaker 01: I take it the slash is and, not or. [00:32:09] Speaker 01: In other words, this was claiming both privileges for every document. [00:32:12] Speaker 01: That's correct. [00:32:13] Speaker 01: And what's the possible attorney-client privilege [00:32:17] Speaker 01: specification for that one. [00:32:21] Speaker 07: Your honor, it doesn't state in this entry what it was. [00:32:25] Speaker 07: The district court only upheld it on deliberative process. [00:32:28] Speaker 01: But the government claimed attorney-client privilege in the bond index in holding the document. [00:32:33] Speaker 01: That was the claim by the VA, yes. [00:32:35] Speaker 01: Yeah. [00:32:37] Speaker 01: And what could the basis for that be? [00:32:39] Speaker 01: Wouldn't there need to be some elaboration of how this could fit within the attorney-client privilege? [00:32:48] Speaker 01: These are all records from the Office of General Counsel. [00:32:51] Speaker 01: And I think that is important. [00:32:52] Speaker 01: But that, it can't be that, I mean, I can't imagine you're taking the position that every document that was within the purview of the Office of General Counsel is protected by the attorney Kleinberg. [00:33:04] Speaker 01: That obviously can't be right. [00:33:05] Speaker 07: Well, I would say, the other thing I would do, Your Honor, is refer the court to JA 283, which is the night declaration where the court [00:33:16] Speaker 07: I'm sorry, where the declarants stated that the basis for the attorney-client claims. [00:33:21] Speaker 01: Right, and as I read that, that was just a definition of the scope of the attorney-client privilege, which I think it was right. [00:33:26] Speaker 01: If you look at Black's Law Dictionary, I think it adequately says what the attorney-client privilege is, but it doesn't tie the attorney-client privilege to any particular document, including, for example, this one. [00:33:37] Speaker 01: The whole purpose of this is supposed to be so that the court can make an intelligent and informed assessment [00:33:43] Speaker 01: of whether the withholding based on a particular privilege is supportable. [00:33:47] Speaker 01: And with some of these, it just seems difficult to say that the record is sufficient for the court to make that kind of assessment. [00:33:54] Speaker 07: I think the court also needs to give some consideration that these are very old records. [00:33:58] Speaker 07: And so recreating exactly what the specifics were of the specific circumstances of the meeting over 10 years earlier is [00:34:12] Speaker 07: is a challenge that's where it doesn't really. [00:34:13] Speaker 01: Well, that's definitely true. [00:34:15] Speaker 01: But the burdens on the I mean, then if it's if it's a document that actually is responsive, then the burdens on the government to explain why it's not turning it over. [00:34:23] Speaker 01: So if there's difficulty with old documents, it seems to me that falls upon you as the government to explain, notwithstanding how old it is, why it is that it shouldn't be turned over. [00:34:34] Speaker 01: Otherwise, the document gets turned over. [00:34:37] Speaker 07: And I would just again reiterate that the [00:34:42] Speaker 07: alternative delivery process provides an alternative basis for the court to affirm. [00:34:46] Speaker 07: In fact, that's how the district court evaluated this. [00:34:51] Speaker 07: If the district court has other questions, we would... I have one. [00:34:55] Speaker 02: There was... [00:34:57] Speaker 02: Department of Veterans Affairs somehow discovered documents that had Bureau file numbers in them that the FBI itself did not discover until it found the Department of Affairs had it went back and found those exact ones. [00:35:11] Speaker 02: But nothing in the Hardy declaration tells us when the FBI, after the VA uncovered these things, went back and found them, where it looked to find things that it hadn't found in its own search and why it hadn't found them. [00:35:27] Speaker 02: Isn't that a pretty fatal flaw? [00:35:29] Speaker 02: Because they had documents. [00:35:31] Speaker 02: The VA found the documents and the FBI quickly and easily found them once the VA gave them the document number. [00:35:41] Speaker 02: But we have no explanation as to why they weren't found in the first place by the FBI. [00:35:46] Speaker 02: What was wrong with the search that it missed them? [00:35:48] Speaker 07: But again, to the extent the court finds there was a deficiency in the original search, the FBI [00:35:53] Speaker 07: cured that with a supplemental search by taking on its own initiative to utilize information from the VA production that allow it to more readily target what was in the archived files. [00:36:10] Speaker 02: Why didn't it find the files the first time? [00:36:12] Speaker 02: What did it do to find them this time in its supplemental search and why didn't it find them the first time? [00:36:17] Speaker 06: The supplemental search is described in J587 of the Second Hardy Declaration. [00:36:22] Speaker 07: And by having file numbers, they were able to then locate the files. [00:36:27] Speaker 02: Um, I, as I understand, FOIA requesters can't provide file numbers. [00:36:31] Speaker 02: So there must've been something in those words that was missed by the word searches. [00:36:36] Speaker 02: Um, they should have been caught. [00:36:37] Speaker 02: And so did they rerun searches with new words rather than just look for those two file numbers? [00:36:42] Speaker 07: The search that was done relating to these documents was done at the division of the FBI that houses the NICS and [00:36:51] Speaker 02: The individual who... Did they just look for the file numbers that the VA had discovered or did they do a broader search in their supplemental search? [00:36:59] Speaker 07: The supplemental search utilized the file numbers that were apparent. [00:37:03] Speaker 07: That's according to the authority declaration. [00:37:04] Speaker 02: But there clearly had been something that the initial search missed and so rather than do [00:37:12] Speaker 02: Normally, a supplemental search puts in additional terms. [00:37:16] Speaker 02: Here, they just put in the two file numbers, but made no effort to discover if there were other files that should have been uncovered. [00:37:23] Speaker 02: How is that sufficient? [00:37:24] Speaker 07: This particular search, Your Honor, was of the archived records. [00:37:28] Speaker 07: It was not done electronically. [00:37:29] Speaker 07: It was done with archived records by the individuals at the NICS, the CJA, as it was called, the division within the FBI that houses the NIC with knowledge of [00:37:42] Speaker 07: of the records maintained by that agency. [00:37:44] Speaker 07: So that is the location they determined was reasonable to search for this. [00:37:49] Speaker 02: Again, Mr. Watkins is not- Here's what I'm missing. [00:37:52] Speaker 02: I understand that, but all they did was go look for these two file numbers instead of doing a search that would have found related files, because clearly the first search missed those documents. [00:38:08] Speaker 02: So it's old. [00:38:08] Speaker 02: You should have searched the archives to begin with, but there was no- [00:38:12] Speaker 02: Well, then how are these missed? [00:38:14] Speaker 07: I don't know how they were missed, Your Honor. [00:38:16] Speaker 02: Don't we need to know that? [00:38:17] Speaker 02: Don't we need some explanation for what went wrong? [00:38:19] Speaker 07: Well, again, it's the methodology. [00:38:22] Speaker 07: They used file numbers that actually uncovered the very documents that Watkins said were missing on which he based his claim that the FBI search was deficient. [00:38:33] Speaker 07: So having found those records and I think approximately 50 or 60 pages of records, [00:38:42] Speaker 07: If that actually validates the reason most of the FBI search under the miracle case, they found additional documents actually locating the records that the request or said should have been found in this person. [00:38:58] Speaker 01: Make sure my colleagues don't have additional questions for you. [00:39:00] Speaker 07: Thank you. [00:39:02] Speaker 01: Thank you, Mr. Simon. [00:39:08] Speaker 01: Mr. Watkins, I think you had two minutes left for rebuttal. [00:39:14] Speaker 03: Thank you, Your Honor. [00:39:15] Speaker 03: Two points. [00:39:16] Speaker 03: The FOIA request to DOJ was quite broad. [00:39:20] Speaker 03: All records, including all amendments, supplements, exhibits, and addenda thereto, which set out or reflect the providing of information, such as names of individuals, by the VA to the DOJ slash FBI for inclusion in the National Instant Criminal Background Check System, known as NISIS. [00:39:42] Speaker 03: It was a broad request. [00:39:43] Speaker 03: meant to only encompass annual reports. [00:39:47] Speaker 03: It was meant to encompass much more. [00:39:49] Speaker 03: The request is similarly broad to FBI. [00:39:55] Speaker 03: FBI in its supplemental search found 59 pages of documents. [00:40:01] Speaker 03: Through 2015, 260,392 veterans names were reported by the VA for inclusion in the database [00:40:13] Speaker 03: of individuals not entitled to have a handgun under the radio, because they were deemed financially incompetent. [00:40:21] Speaker 03: 260,000 individuals in 2017 to 2018, 50,000 veterans were reported. [00:40:30] Speaker 03: How was it possible that they found 59 pages of records when the FOIA request encompassed all records which set out to reflect providing of information? [00:40:40] Speaker 03: It's just not plausible. [00:40:42] Speaker 03: It doesn't meet the ancient coin standard of being sufficient. [00:40:47] Speaker 03: There's so much material out here. [00:40:49] Speaker 03: It's overwhelming. [00:40:55] Speaker 02: What do you think is missing? [00:40:57] Speaker 02: We know the congressional reports. [00:41:00] Speaker 03: I think everything at Modern Times is missing. [00:41:02] Speaker 03: They found a single document in the past decade about the transfer of names between the VA. [00:41:09] Speaker 02: You said you didn't want the ones, presumably there's papers that say X name, add this to the list, X name, add this to the list, but you didn't, you just claimed one of those individual ones. [00:41:19] Speaker 02: So that presumably there's a large volume of those, but those are not encompassed by your request. [00:41:24] Speaker 03: I understand, but there is cooperation between the agencies. [00:41:28] Speaker 03: They're not on autopilot. [00:41:29] Speaker 03: They have to talk to each other over all of these years worth of time with tens of thousands of names being reported each year. [00:41:38] Speaker 03: It seems completely implausible that every document in the last 10 years lists particular names in it. [00:41:45] Speaker 03: That's not how they transfer information. [00:41:46] Speaker 03: They send the information electronically, whether it's on a CD or the internet, whatever they're doing today. [00:41:53] Speaker 03: The memorandum of understanding that we have obtained through this set of FOIA requests [00:41:59] Speaker 03: They explain that they're allowed electronic transfer. [00:42:02] Speaker 03: But the real point is that they have to coordinate with each other. [00:42:05] Speaker 03: The memorandum of understanding have changed over time. [00:42:09] Speaker 03: It seems only reasonable to conclude that there are far more documents between these agencies than have been admitted to exist. [00:42:18] Speaker 03: As a last point, cut off dates. [00:42:21] Speaker 03: We've waited seven years for documents in these cases. [00:42:24] Speaker 03: It's simply as unfair to go back in time [00:42:27] Speaker 03: and to use a really early cutoff date. [00:42:30] Speaker 03: A FOIA requester is kind of stuck in the process, right? [00:42:34] Speaker 03: The agency says, here's the date that you get. [00:42:36] Speaker 03: It's the date that we performed our search, even if it was a bogus search. [00:42:41] Speaker 03: It's fundamentally unfair under the statute to expect the FOIA requester to get stuck with that early date when it didn't perform, when the agency didn't perform. [00:42:51] Speaker 01: Thank you for your time. [00:42:52] Speaker 01: Thank you, council. [00:42:53] Speaker 01: Thank you to both council. [00:42:54] Speaker 01: We'll take this case under submission.