[00:00:00] Speaker 01: Case number 22-5342, Cato Institute of Balance versus Federal Bureau of Investigation and United States Department of Justice. [00:00:10] Speaker 01: Mr. Match for the appellant, Mr. Kennedy for the appellees. [00:00:16] Speaker 06: Morning, counsel. [00:00:17] Speaker 06: Mr. Match, please proceed when you're ready. [00:00:20] Speaker 06: Good morning. [00:00:22] Speaker 07: May it please the court, for two reasons the FBI failed to show beyond material doubt that its voice [00:00:29] Speaker 07: First, it lacked any justification for limiting its search to the indices of its central record system, CRS. [00:00:35] Speaker 07: And second, it also should have searched its guardian data. [00:00:38] Speaker 07: The district court's decision, particularly on the CRS issue, de facto exempts from FOIA all records not tied to an FBI investigation by upholding a search methodology that could not locate them. [00:00:50] Speaker 07: By contrast, Cato sought only a narrow supplemental search, namely for number one, emails in a set of field offices where the FBI CRS search had already discovered leads, and number two, the Guardian database that it didn't search. [00:01:03] Speaker 07: This court should order that narrow search and reverse the judgment of the district. [00:01:08] Speaker 07: I'll start first with the issue related to CRS. [00:01:10] Speaker 07: Our argument has two main premises. [00:01:13] Speaker 07: The first is that Cato's request sought in part records not specifically tied to an FBI investigation. [00:01:19] Speaker 07: The FBI has never disputed that. [00:01:22] Speaker 07: And second, the FBI's index search of CRS, according to its own affiant, was limited to records of investigative interest. [00:01:29] Speaker 07: It follows that a CRS index search was not reasonably calculated to locate all responsive records, namely the ones not tied to an investigation. [00:01:37] Speaker 02: Do you think the search that was done was adequate to find any references in investigative records? [00:01:44] Speaker 02: It just wasn't adequate to capture non investigative records? [00:01:47] Speaker 07: That's correct. [00:01:49] Speaker 02: Why do you want them to search the Guardian database, then, since that's all investigative records? [00:01:53] Speaker 07: Well, I mean, I should say the CRS search was adequate except as the Guardian database. [00:01:58] Speaker 07: So the Guardian issue. [00:02:01] Speaker 02: So you said the search was adequate as to investigatory records, that you're looking now for what you think was omitted, or your concern was omitted was a search for non-investigatory records, which the Guardian's not going to be any help to you. [00:02:13] Speaker 07: I'm sorry, I think I've misspoke. [00:02:16] Speaker 07: I've sort of been thinking of these as two separate issues, although I realize they are connected. [00:02:20] Speaker 07: The issue with the Guardian database is that there's not sufficient evidence in the record that the sentinel search of both CRS and Guardian captured the Guardian record. [00:02:28] Speaker 07: So except as to the Guardian records, yes, I think the CRS search is adequate. [00:02:34] Speaker 07: Or the investigative record, not the non-investigative record. [00:02:40] Speaker 07: Um, so the FBI itself reached, um, a similar conclusion in Watkins where there it's, it's declared and explained that a CRS search would not likely locate responsive records because those records were not tied to an investigation. [00:02:54] Speaker 07: So to here for the non. [00:02:56] Speaker 06: So the declared the framing of the, the declared submission ranges beyond investigative by terms, because it covers administrative and some other things. [00:03:07] Speaker 06: I can't remember exactly what the list says, but. [00:03:09] Speaker 06: The way that it's framed in the declaration itself ranges beyond investigative. [00:03:13] Speaker 06: Are you referring to the declaration in Watkins or the declaration in this case? [00:03:18] Speaker 07: In this case. [00:03:19] Speaker 07: Yeah, so their declaration says that CRS, the broad database that search contains these administrative and personnel records. [00:03:28] Speaker 07: The search that it performed in this case could not have located those. [00:03:32] Speaker 07: The search that it performed in this case was of the indices to the CRS system, not the whole database. [00:03:37] Speaker 07: We know it can search CRS in other ways, such as by performing a full-text search, which this court described in the Shapiro case that we cited. [00:03:45] Speaker 07: It didn't do that here. [00:03:46] Speaker 07: It searched main indices and reference indices. [00:03:49] Speaker 07: The main indices are the subjects of the investigation. [00:03:52] Speaker 07: And the reference indices are other people associated with an investigation. [00:03:56] Speaker 07: Presumably, there's some other way that it could locate these administrative personnel and other records. [00:04:01] Speaker 07: The record doesn't exactly speak to what those ways are. [00:04:04] Speaker 07: But what the record does speak to is that it didn't do that in this case. [00:04:09] Speaker 07: If it had done that in this case, the case would be very different. [00:04:14] Speaker 02: I'm sorry. [00:04:15] Speaker 02: It didn't do. [00:04:17] Speaker 02: You said you did not, you've not requested a text search. [00:04:21] Speaker 02: And yet you're saying the index search might not be capturing things. [00:04:25] Speaker 02: So what's door number three here between a text search and an index search that they should have done? [00:04:30] Speaker 07: Sorry, I didn't hear. [00:04:31] Speaker 02: So I'm trying to understand what you said about one of the difficulties being that [00:04:39] Speaker 02: The index search is only going to cover investigation subjects or people who come up in investigations. [00:04:48] Speaker 02: But you also agree that you didn't ask for a text search, text search. [00:04:53] Speaker 02: And so if the index search is not going to uncover what you're looking for and you haven't asked for a text search, what is door number three here? [00:05:02] Speaker 02: What type of search is there that's not a text search that you think they should have done? [00:05:08] Speaker 07: So door number three that we asked for was a non-CRS search of the email systems in the field offices where the FBI's CRS search located beads. [00:05:23] Speaker 02: So those would have to be text searches. [00:05:25] Speaker 07: Well, that's a search outside the CRS database. [00:05:29] Speaker 02: I know, but you want to search for the word Cato. [00:05:33] Speaker 02: You want a full text search. [00:05:35] Speaker 07: If the emails in these field offices were indexed, I'm sorry, were contained in CRS, then we would be satisfied with the text search of CRS. [00:05:47] Speaker 07: We haven't asked the FBI to do that. [00:05:48] Speaker 07: We've asked the FBI to do a different search. [00:05:51] Speaker 07: That might be another way to produce the responsive record. [00:05:55] Speaker 02: I'm sorry, I'm just going to be in thick here. [00:05:57] Speaker 02: I'm not understanding what this other way of doing the search is. [00:06:01] Speaker 07: So there's documents that are contained in the central record system. [00:06:06] Speaker 07: And then from our understanding, there are documents that are outside the central record system. [00:06:10] Speaker 02: Right. [00:06:11] Speaker 02: And for those documents outside the central record system, how would they do a search other than a text search? [00:06:16] Speaker 07: It might be a text search outside of their own email databases. [00:06:20] Speaker 07: I'm saying that what the FBI, when I refer to- You do want a text search. [00:06:24] Speaker 07: Of those. [00:06:24] Speaker 07: Of other databases. [00:06:25] Speaker 07: Of other databases, yes. [00:06:26] Speaker 02: In the reply brief you were clear that you didn't ask for a text search below. [00:06:29] Speaker 02: That's why I'm confused. [00:06:30] Speaker 07: I think in our reply brief we said we didn't ask for a text search of CRS, the central record system. [00:06:37] Speaker 02: Okay, so you do want a text search of [00:06:40] Speaker 02: these emails. [00:06:41] Speaker 02: That's what you're asking for. [00:06:42] Speaker 07: I mean, I think it would be a text search. [00:06:44] Speaker 07: Yeah. [00:06:44] Speaker 07: I mean, the record doesn't, I mean, they haven't explained how they could search outside of CRS. [00:06:52] Speaker 07: I think a text search would be a reasonable way to go about it. [00:06:55] Speaker 07: A text search of those 12 field office email systems. [00:06:59] Speaker 02: But I think in a reply brief, and I can- You asked them in the district court for a text search of those email systems? [00:07:04] Speaker 07: We asked the district court for a search of the email systems. [00:07:06] Speaker 07: I don't think we specified that it would be a text search. [00:07:08] Speaker 07: But I mean, I think it was kind of clear from the request, which asked the FBI to look for particular keywords. [00:07:16] Speaker 07: So I think the answer to your question is yes. [00:07:18] Speaker 07: Yeah. [00:07:23] Speaker 07: If there aren't any other questions on this CRS issue, I see my time is expiring. [00:07:26] Speaker 07: So I'll quickly summarize our argument on Guardian. [00:07:30] Speaker 07: So the Guardian issue. [00:07:33] Speaker 07: The FBI doesn't dispute that Guardian contains responsive records. [00:07:36] Speaker 07: All it argues is that a Guardian search would duplicate the CRS search because it used the same web-based interface called Sentinel to search both CRS and Guardian. [00:07:48] Speaker 07: But it acknowledges that that requires that the Guardian records be uploaded to Sentinel. [00:07:52] Speaker 07: The record doesn't contain evidence of that. [00:07:55] Speaker 07: According to the FBI, records are uploaded from Guardian to Sentinel after they're reviewed for one and number two approved by supervisor special agents. [00:08:05] Speaker 07: And there's no evidence that either occurs in every case or in the typical case. [00:08:11] Speaker 03: I don't understand that argument. [00:08:14] Speaker 03: You're saying that to defeat summary judgment motion in FOIA, the agency has to put in evidence that they complied with their [00:08:24] Speaker 03: procedures, and if they didn't produce evidence of that, then the court can't grant summary judgment. [00:08:31] Speaker 03: There's no presumption that they follow their own procedures. [00:08:36] Speaker 07: Two responses. [00:08:40] Speaker 07: So on the approval step, there is no evidence of a requirement to approve guardian. [00:08:46] Speaker 07: For all we know, those guardian entries could be regularly rejected by the supervisors and not uploaded to Sentinel. [00:08:53] Speaker 07: If they could have said, all Guardian records are approved by the supervisors, and that would sort of allay that concern. [00:09:01] Speaker 07: But they haven't said that. [00:09:02] Speaker 07: They haven't described the criteria that the supervisors use for approval. [00:09:07] Speaker 07: They haven't described how often it happens. [00:09:09] Speaker 07: And they haven't explained why, if it was a sort of ministerial step, as they suggest in their opposition brief without citing the record, why it has to be done by a supervisor rather than a clerical staff member. [00:09:21] Speaker 07: But to more directly answer your question about following their procedures, I think they do get a presumption that they followed their procedures. [00:09:29] Speaker 07: We introduced evidence to rebut that presumption, which are these three audits conducted by the DOJ and the FBI OIGs, particularly the 2008 audit, which shows that the same FBI personnel, supervisor special agents, at this relevant time period [00:09:46] Speaker 07: Violated very similar not not the exact procedure here to be sure but similar procedures requiring Sort of going into guardian and they weren't the same procedures in what relevance they have For this case. [00:10:00] Speaker 07: Well, I mean they don't conclusively show that the procedures were violated I think that as a fire requester who's not entitled to discovery. [00:10:07] Speaker 07: It's very hard to show [00:10:10] Speaker 07: that the specific procedures were violated here, but we've come forth with evidence that, for example, some FBI supervisors didn't even know that. [00:10:18] Speaker 07: I mean, this is the page 15 of the 2008 DOJ audit. [00:10:22] Speaker 07: But the supervisors didn't even know of some of these guardian review requirements. [00:10:29] Speaker 07: So it's relevant. [00:10:30] Speaker 07: I mean, it's not a trial. [00:10:33] Speaker 07: If there were a trial in this case, which white cases typically aren't, the jury would weigh that evidence. [00:10:39] Speaker 07: But I think it's relevant and sufficient to defeat summary judgment for them. [00:10:44] Speaker 07: And I mean, they have the burden on this. [00:10:48] Speaker 02: When you say when you're reading that portion of the audit is saying those supervised work, I was already been aware that had to do this approval process. [00:10:57] Speaker 02: So is your point that the approval process that moves things from Guardian into Sentinel wasn't happening at all that the audit shows that I was showed really a delegation. [00:11:08] Speaker 07: So, I mean, there are a few different points, issues that they found in that, and I'm just going to read from it. [00:11:15] Speaker 07: It doesn't show that it never happens. [00:11:16] Speaker 07: I mean, I think, I don't think we can go that far. [00:11:18] Speaker 07: I mean, it says, at one of the field offices, the supervisor special agents assigned oversight responsibilities for the guardian program was not aware of the guardian supervisory requirements. [00:11:29] Speaker 07: So that would suggest that at least those supervisor agents. [00:11:32] Speaker 02: I'm not sure, but is there an elaboration? [00:11:34] Speaker 02: What does it mean not aware of the guardian supervisor requirements? [00:11:37] Speaker 02: That is, this person didn't know that they had this task to do and it was never done, or they weren't aware because someone else was already doing it? [00:11:46] Speaker 07: Well, so I think, I mean, there was another problem at a different field office where the OIG found that they had delegated it to the people. [00:11:57] Speaker 07: But at the first field office that I mentioned, it seems like they didn't even know that they had this responsibility. [00:12:04] Speaker 02: That it wasn't being done at all. [00:12:06] Speaker 07: It wasn't being done at all by that supervisor. [00:12:09] Speaker 07: That's how I read the audit. [00:12:10] Speaker 07: I mean, the audit doesn't elaborate, but that's what it says. [00:12:15] Speaker 05: We'll make sure our colleagues don't have additional questions at this time. [00:12:18] Speaker 05: We'll give you some time for rebuttal. [00:12:19] Speaker 05: Thank you. [00:12:40] Speaker 04: May I please support Kevin Kennedy for the government? [00:12:43] Speaker 04: The FBI conducted an adequate search in response to the Cato Institute's general request for records pertaining to itself. [00:12:49] Speaker 04: As the declarations in this case explain, the FBI searched its central records, which is a comprehensive agency-wide database containing investigative as well as administrative personnel and other files. [00:13:02] Speaker 04: And as the FBI's declarations further explain, [00:13:07] Speaker 04: The CRS is the database that the FBI concluded would house all responsive records to Cato's request, and it conducted a search that was reasonably calculated to uncover those records. [00:13:18] Speaker 04: The district court correctly concluded that under this court's decisions, particularly its decision in Mobley, those declarations warrant summary judgment in the FBI's favor. [00:13:27] Speaker 02: I did a search found that it had to do. [00:13:31] Speaker 02: So these fields field office specific searches as well at the CRS search wasn't sufficient. [00:13:38] Speaker 02: Their argument is that when you did that you should have looked at the emails too and you didn't. [00:13:44] Speaker 04: So the FBI first conducted a search of its automated indices through Sentinel, and based on the results from that search of the automated indices, it looked at certain field office indices, which are also technically they're part of CRS. [00:14:00] Speaker 04: And if you look at JA-40, [00:14:03] Speaker 04: None of the responsive records from those additional searches, the manual indices in the field offices pointed outside the CRS or indicated that there might be records outside. [00:14:12] Speaker 02: Those annual indices cover the emails in those offices? [00:14:16] Speaker 04: Absolutely. [00:14:17] Speaker 04: The extent the emails are federal records, they're treated like other records of the FBI and they're uploaded to CRS and serialized into the relevant file and indexed like other federal records. [00:14:29] Speaker 04: And so, yes. [00:14:32] Speaker 04: The idea that there might be other. [00:14:34] Speaker 02: The emails they want searched have already been searched, at least at the index level. [00:14:39] Speaker 04: The search of the manual indices encompasses email records to the extent that they are in the CRS. [00:14:49] Speaker 02: What does that mean to the extent that they're in the CRS? [00:14:51] Speaker 02: Does that mean they're not? [00:14:53] Speaker 02: There's large portions that aren't, or do we know as these field offices whether they're in there or not? [00:15:01] Speaker 04: The FBI concluded that there were no likely, there were no emails, there were no records that were outside the CRS that would be responsive to the Cato Institute requests. [00:15:13] Speaker 04: Instead. [00:15:13] Speaker 02: How can they know that if, don't we have to know whether it was searches, searching the emails, whether they were indexed to know whether they could say that? [00:15:25] Speaker 04: I think the question is whether in conducting a search, there were leads that pointed elsewhere. [00:15:30] Speaker 02: The leads pointed to these field offices, manual indices in particular. [00:15:34] Speaker 04: They pointed to manuals. [00:15:35] Speaker 02: Should have included emails, but then now it sounds like, and maybe I misheard, but it sounds like you're saying, well, we're not sure if they included. [00:15:43] Speaker 02: So it seems like you're already pointed to these field offices and their records as needing to be searched as a supplemental search. [00:15:52] Speaker 02: And what I'm just trying to figure out is did that supplemental search cover their emails? [00:16:00] Speaker 02: If it didn't, then I'm not quite sure what I can tell from this declaration as to their basis for concluding that [00:16:07] Speaker 02: There's no reason to think there'd be anything in those emails. [00:16:10] Speaker 02: If you're already looking, you're targeting at these particular field offices. [00:16:14] Speaker 04: So the email records are uploaded into the CRS to the extent that they're federal records and they're relevant to a case file in the CRS. [00:16:23] Speaker 04: And so the manual indices contain email records like they contain other records. [00:16:28] Speaker 04: And so the FBI search of the manual indices included email records as well as other records. [00:16:33] Speaker 02: And so that wouldn't be even personal or administrative emails and not just investigatory emails. [00:16:38] Speaker 04: Exactly. [00:16:40] Speaker 04: To the extent that an email is relevant to an administrative case file on the CRS, it would be uploaded to the CRS in the same way that other... In each of the relevant field offices here? [00:16:50] Speaker 04: Yes, the manual indices work in the same way as the automated indices. [00:16:56] Speaker 06: And... So then there isn't a bank of emails that's outside of what gets folded into CRS? [00:17:04] Speaker 04: The question for this court is whether the search was adequate to uncover responsive records. [00:17:09] Speaker 04: And here, the FBI searched the CRS, and it found that there were no leads that pointed outside the CRS. [00:17:15] Speaker 04: So the idea that there might be other emails relevant to Cato Institute is a sort of speculative claim that this court has found can't undermine the adequacy of a search. [00:17:24] Speaker 04: The possibility that other email records relevant to Cato exist is not sufficient to undermine the adequacy of the search. [00:17:32] Speaker 03: But you didn't answer the chief judge's question. [00:17:38] Speaker 03: You said what you thought the issue in the case was. [00:17:41] Speaker 03: That's fine. [00:17:42] Speaker 03: That's not what the chief judge just asked you. [00:17:45] Speaker 04: Well, the FBI found that it was unlikely that any other email, if there are emails in other databases, the FBI found that any other database was unlikely to house records responsive to Cato's request. [00:18:00] Speaker 06: That are germane to the request? [00:18:02] Speaker 02: So just because there is not the FBI, it's knowledge, there is not a pile of emails that would not have been a federal record emails that would not have been indexed even into these manual indices in the field offices. [00:18:19] Speaker 04: There is not a pile that the FBI concluded would likely contain records responsive to Cato's request. [00:18:24] Speaker 02: So there's a pile, but they just don't think there'd be anything in there. [00:18:29] Speaker 02: What basis did they conclude that those piles would not have anything by Cato in them? [00:18:35] Speaker 04: So I think if you look at this court's cases, for example, the case in Mobley. [00:18:40] Speaker 02: So I'm actually asking a question almost about the declarant's knowledge here, the facts. [00:18:44] Speaker 02: So on what basis did they conclude? [00:18:48] Speaker 02: It sounds like there were emails that the FBI was aware of that were not being searched. [00:18:55] Speaker 02: but concluded that there wouldn't be anything there. [00:18:57] Speaker 02: And I'm just trying to understand the basis because they were already doing, felt obliged to do a search of these field offices, at least manual indices. [00:19:08] Speaker 02: And if they get there and they discover there's a pile of documents that haven't been indexed or for some reason aren't going to be covered by that search, [00:19:16] Speaker 02: How do they, on what basis they conclude, there's not gonna be anything in there. [00:19:20] Speaker 02: They could conclude because a pile is two emails. [00:19:23] Speaker 02: That would be one explanation. [00:19:25] Speaker 02: Or it could be, it's labeled office NCAA basketball tournament pool, betting pool, or something like that. [00:19:37] Speaker 02: But how do we know if there is a pile? [00:19:39] Speaker 02: Don't we have to have some basis for knowing [00:19:43] Speaker 02: You can't just say it's speculative if there's a big pile of documents somewhere that were missed. [00:19:49] Speaker 04: The FBI included that any records related to the Cato Institute would be in the CRS because it's its primary database that contains applicant investigative and administrative personnel files. [00:20:02] Speaker 04: And so it searched its indices looking for records related to the Cato Institute. [00:20:06] Speaker 04: And it didn't find anything that pointed outside the CRS that indicated that, you know, records relevant to the Cato Institute would be located in any other database. [00:20:17] Speaker 02: And so... No, that's not right, because it did point them to go looking at these manual indices in the field offices. [00:20:22] Speaker 02: So, in fact, it did tell them to go look somewhere else. [00:20:25] Speaker 04: It's true that... [00:20:27] Speaker 04: The FBI followed a lead from the automated indices to the manual indices, but those are all part of the CRS. [00:20:34] Speaker 04: And so it then searched the manual indices. [00:20:36] Speaker 02: It got pointed to the need to do a second search. [00:20:40] Speaker 02: A second middle search. [00:20:41] Speaker 04: They found responsive documents that pointed to these field offices. [00:20:45] Speaker 02: You said they had to do a separate search of those. [00:20:48] Speaker 04: They searched the indices to the manual indices in the field office. [00:20:52] Speaker 02: That took another search effort. [00:20:54] Speaker 02: I'm confused because it sounds like you say they're all in CRS, so they would have been covered by the first search. [00:20:59] Speaker 02: But then I also hear that, no, we did the first search and that gave us leads. [00:21:03] Speaker 02: Yeah. [00:21:04] Speaker 02: And so we did supplemental searches or search or searches. [00:21:08] Speaker 04: Yeah, to take a step back, basically there are two. [00:21:12] Speaker 04: The CRS is a large system of documents containing sorted into case files on a variety of subjects. [00:21:18] Speaker 04: To search the CRS, the FBI primarily uses the Sentinel system, which searches the automated indices, which are [00:21:28] Speaker 04: all the indices except there are some historical indices in certain field offices that are not automated yet. [00:21:33] Speaker 04: And so it begins with the search of the automated indices and then the extent that it found responsive records in its search of the automated indices. [00:21:42] Speaker 04: For example, ones that pointed to field offices, then it searched also part of the CRS, but it searched the manual indices in those field offices. [00:21:51] Speaker 06: So both categories of searches are encompassed by the CRS. [00:21:55] Speaker 06: It's just there are two different ways to search the CRS, I guess. [00:21:57] Speaker 06: That's right. [00:21:58] Speaker 06: At least to me, the question is, then that covers the CRS. [00:22:02] Speaker 06: then what about stuff that is maybe outside the CRS but still responsive? [00:22:08] Speaker 06: What's the basis for saying that whatever's outside of the CRS, and it sounds like there's stuff outside the CRS, that they're not going to be responsive to the request? [00:22:22] Speaker 04: The basis, I think, is that the scope of the CRS is very broad, and the FBI concluded that [00:22:28] Speaker 04: records related to the Cato Institute would likely be housed within the CRS. [00:22:32] Speaker 04: And then it's willing to follow leads. [00:22:34] Speaker 04: If you look at this court's cases, they stand for the proposition, I think, that the FBI can conduct a search of the CRS in response to a general record request. [00:22:41] Speaker 04: But then if records emerge during that search to the point outside the CRS, that's a basis for looking outside the CRS. [00:22:47] Speaker 06: Nothing like that came up in this. [00:22:48] Speaker 06: Nothing like that. [00:22:49] Speaker 06: No indication of something. [00:22:50] Speaker 06: With the two types of searches that was conducted of the CRS, nothing emerged that suggested that, wait a minute, we might want to look outside the CRS. [00:22:59] Speaker 06: But it's been the case in other situations where searches of the CRS would give a lead that would point outside the CRS. [00:23:05] Speaker 06: And if that happens, then that kind of second degree supplemental search outside the CRS is conducted. [00:23:12] Speaker 06: That's correct. [00:23:13] Speaker 02: What's outside the CRS? [00:23:18] Speaker 04: Um, there are certain databases that, um, you know, by statute are required to be outside the CRS because of privacy interests or national security is concerned. [00:23:27] Speaker 04: You don't want sort of the CRS, an index search of the CRS is a tool that FBI personnel use on a daily basis to conduct their own business. [00:23:34] Speaker 04: But there are certain files that you wouldn't want, you know, every person, every FBI personnel to have access to. [00:23:39] Speaker 04: So there are certain databases that lie outside the CRS. [00:23:41] Speaker 04: There are also certain very specific policy, certain databases related to very specific policies. [00:23:50] Speaker 04: I point the court to its case in Watkins that concerned the NICS background check system. [00:23:57] Speaker 04: There is a database concerning names in the background check system that is not necessarily going to be in the CRS. [00:24:04] Speaker 04: But the CRS is the general primary database for lots of different subjects. [00:24:11] Speaker 02: Would, are there historical records that just haven't been indexed into CRS yet, or is that all taken care of by now? [00:24:18] Speaker 04: That's all taken care of. [00:24:20] Speaker 04: They're not necessarily all accessible through the automated indices, which is what I said, and I'm sorry if I was unclear on this point, but they are accessible through the manual indices, which are also part of the CRA. [00:24:30] Speaker 02: And then just, the Declarence says that the CRS is going to include not just investigatory, but personnel administrative records. [00:24:42] Speaker 02: But it says the indices, it just describes the indices, which are what's searched, the whole CRS is unsearched, as only involving subjects investigations or those associated with investigations. [00:24:57] Speaker 02: So if you're doing an index search, how does an index search ever capture non-investigative records? [00:25:06] Speaker 02: Because they're not indexed or other indexes. [00:25:10] Speaker 04: Yeah, two responses on that, Your Honor. [00:25:13] Speaker 04: First, I think the argument, Cato's argument that the problem with the search was that it was conducted via an index, not that the FBI didn't look outside the CRS. [00:25:24] Speaker 04: It was really, I think, developed for the first time in reply. [00:25:26] Speaker 04: And the government hasn't had an opportunity to respond to that. [00:25:30] Speaker 04: And I don't necessarily think that's a big argument properly before the court. [00:25:33] Speaker 04: But even if the court were to consider it, the indices to the CRS extend to the same range of subject matter as the CRS itself, which Cato conceded before you that CRS extends beyond investigative files. [00:25:48] Speaker 04: And I think a few points on the record make that very clear. [00:25:51] Speaker 04: The indices don't relate only to investigative records. [00:25:54] Speaker 04: First, if you look at JA 36, which is the only point at which the declarations explicitly describe the scope of the indices, it says that the indices offer access to a comprehensive agency-wide set of index data on a wide variety of investigative and administrative subjects. [00:26:12] Speaker 04: So I think that settles the question pretty conclusively. [00:26:15] Speaker 04: But if you want to take a step back and understand a little bit more how the indices work, you can understand the CRS is sorted into case files. [00:26:23] Speaker 04: And those case files fall into a variety of subject matter classification, the list that you're familiar with, administrative, personnel, general, investigatory. [00:26:34] Speaker 04: In each of those subject matter classifications, the case files relate to a particular administrative action, a particular personnel action, a particular investigation. [00:26:43] Speaker 04: And each of those case files has main index entry. [00:26:47] Speaker 04: If you look at J 3233, it says that a main subject matter of the case file is the main index entry. [00:26:54] Speaker 04: And so if you put those two things together, it's clear that, [00:26:59] Speaker 04: the case files in the CRS extend beyond investigative matters. [00:27:03] Speaker 04: And the main index entries in the CRS similarly extend beyond investigative matters. [00:27:07] Speaker 02: So I'm just trying to make sure I understand this because it seems important. [00:27:11] Speaker 02: It's been sort of central to their argument. [00:27:13] Speaker 02: When the declarant says that the indices are based on either subject of investigation or someone associated with an investigation, [00:27:24] Speaker 02: That was only for example, that there are actually indices that also involve personnel matters. [00:27:30] Speaker 04: That's exactly right. [00:27:31] Speaker 04: I think that's illustrative. [00:27:33] Speaker 04: You know, the FBI is primarily an agency concerned with investigations, but that's not attempting to describe the scope of the indices this year. [00:27:41] Speaker 04: That's an example of the type of indices that might be there. [00:27:45] Speaker 02: And so if, and this is completely hypothetical, but imagine Cato was concerned that people who work for Cato just wouldn't get hired by the FBI. [00:27:53] Speaker 02: I'm making this up. [00:27:54] Speaker 02: It's completely hypothetical. [00:27:55] Speaker 02: I'm not suggesting it remotely happens, but so nothing to do with the FBI's investigatory work. [00:28:02] Speaker 02: And it seems undisputed that those personnel records and administrative records relating to hiring process are going to be in the CRS. [00:28:11] Speaker 02: And what you're telling me is that those records will be indexed in a way that has nothing to do with investigatory status, such that they would be found. [00:28:24] Speaker 04: Yes. [00:28:24] Speaker 04: If you look at JA34, it described the indexing process. [00:28:27] Speaker 04: It says, things are indexed that are of sufficient significance, weren't indexing for future retrieval. [00:28:33] Speaker 04: And I think in the context that I've explained, which is that the indices extend more broadly than [00:28:39] Speaker 04: investigations, there are indices for administrative case files. [00:28:44] Speaker 04: If you're thinking about significance for future retrieval, that's going to include significance for future retrieval for matters related to that administrative topic. [00:28:57] Speaker 02: When something's in the guardian system and it's getting uploaded to Sentinel, [00:29:02] Speaker 02: How does the indexing work there? [00:29:05] Speaker 02: Is it automatic? [00:29:06] Speaker 02: Is the computer just sort of generating the key terms? [00:29:09] Speaker 02: And if so, is it based on key terms that already exist in CRS? [00:29:13] Speaker 02: Or how does it know to identify? [00:29:14] Speaker 02: Again, imagine, hypothetically, Cato hadn't appeared anywhere. [00:29:19] Speaker 02: I know that's not true here, but in any record. [00:29:22] Speaker 02: Or some entity files a FOIA request looking for references to itself at the FBI. [00:29:27] Speaker 02: And there's nothing anywhere. [00:29:32] Speaker 02: And then something comes into Guardian. [00:29:36] Speaker 02: And the Guardian document is getting uploaded to Sentinel. [00:29:41] Speaker 02: And for the first time, this entity's name is appearing in an FBI record. [00:29:47] Speaker 02: How would that show up in an index? [00:29:48] Speaker 02: Do just names always show up in an index? [00:29:51] Speaker 02: Are they necessarily an index of their own? [00:29:54] Speaker 04: So the indexing is done by FBI agent responsible for the case file. [00:29:59] Speaker 04: So if there wasn't already an index entry for a particular entity that's mentioned in a case file, or in guardian incident, I think the FBI agent could create a new index entry that would then take an index search to that relevant record. [00:30:16] Speaker 04: in indexing the guardian entries, an FBI agent wouldn't be limited to those index entries that previously exist. [00:30:22] Speaker 02: And when they create that, then does the computer automatically look for, so imagine now, changing my hypothetical, that entity X actually had appeared in earlier records, but for whatever reason hadn't been indexed, didn't seem to be significant enough, or had a kind of a generic name that was hard to tell what was going on. [00:30:39] Speaker 02: Once it is indexed, does it apply retroactively to pre-existing records? [00:30:43] Speaker 04: If I understand your question correctly, if the name of something that could be indexed or is later indexed was not indexed originally, will that file show up in an index search? [00:30:59] Speaker 04: Is that your question? [00:31:01] Speaker 02: Will those other documents get pulled up? [00:31:03] Speaker 04: That later added term. [00:31:10] Speaker 04: I don't think, as I understand the record, if a document is not initially indexed, I don't think it will automatically later be indexed. [00:31:17] Speaker 04: As I said, the FBI agents are responsible for indexing. [00:31:21] Speaker 04: But again, I want to return to the question really at issue in this case. [00:31:27] Speaker 04: And I don't think Cato points to any evidence that [00:31:31] Speaker 04: subjects that should be indexed are going unindexed. [00:31:34] Speaker 04: And in fact, FBI uses indices in its work on a daily basis. [00:31:39] Speaker 04: And as a law enforcement agency, the FBI personnel has every incentive to make these indices useful and comprehensive and to dot their I's and cross their T's and do this well. [00:31:49] Speaker 04: And so I think the idea that there are entries that are going unindexed, randomly unindexed, is counter to self-interest and to the declarations that explain that the FBI uses. [00:32:02] Speaker 06: I just, no, I don't wanna. [00:32:06] Speaker 06: button down or button up, I don't know, never know which one it is. [00:32:09] Speaker 06: One last detail, which is the part of Cato submission is that there's a potentially a Delta between what's in the guardian stuff and then what's approved to get included in CRS. [00:32:25] Speaker 06: And, and as I read your brief, you don't think there's that Delta. [00:32:29] Speaker 06: You think that actually the approval process, it covers the waterfront and everything actually is going to ultimately make its way into the CRS. [00:32:36] Speaker 06: And that's how you read the declaration. [00:32:41] Speaker 04: That is how I read the declaration, and my discussions with the FBI have confirmed that this is the way that the process works, that that step, that initial approval step, is ministerial, and that it might be the case that a Guardian incident tree is temporarily rejected. [00:32:58] Speaker 04: It's on route. [00:33:00] Speaker 04: Further information needs to be filled out, but then it will eventually be resubmitted and incorporated into the Guardian database and eventually incorporated into CRS. [00:33:07] Speaker 06: And is this also covered by your point that [00:33:11] Speaker 06: just as a matter of the daily run of business for the FBI, they have every incentive to make sure that guardian documents are accessible through searches of CRS in the same way as other things because they're conducting important investigative duties. [00:33:24] Speaker 06: That's precisely right, yeah. [00:33:26] Speaker 02: Do we have any sense of the time? [00:33:27] Speaker 02: Does this just sort of happen in real time on a daily basis? [00:33:31] Speaker 02: Things are just, because they read the audits as suggesting that [00:33:36] Speaker 02: least in one field office it wasn't happening and another that that that's an old audit and time has passed absolutely that you're understanding that it is sort of real time I mean maybe there's a gap of a day or so but these things are getting loaded and that one is [00:33:57] Speaker 02: I guess I have a compound question. [00:33:58] Speaker 02: I apologize. [00:33:59] Speaker 02: And when they talk about approval process, does that just mean the sort of someone's got to index the information in there so it can get into Sentinel and be useful? [00:34:11] Speaker 02: It's not sort of a yes, you get to come in or no, you don't get to come in? [00:34:14] Speaker 04: Yeah. [00:34:15] Speaker 04: I think I can answer that compound question. [00:34:18] Speaker 04: I apologize. [00:34:22] Speaker 04: The decoration don't speak to a precise timeline on which this approval process operates. [00:34:29] Speaker 04: But the way that it works is that an incident entry arrives in Guardian either through eGuardian or directly in Guardian itself. [00:34:39] Speaker 04: And the FBI supervisor looks to see whether everything is there and then proves the document. [00:34:45] Speaker 04: And at that point, it becomes a Guardian incident. [00:34:48] Speaker 04: And it's assessed for further investigative value. [00:34:52] Speaker 04: In our brief, I think that actually confirms the idea that these are routinely approved, because the second step is where the FBI assesses it for investigative interest. [00:35:01] Speaker 04: And so at that second step, it's assessed for investigative interest. [00:35:05] Speaker 04: It might be assessed as having no further investigation necessary, at which point it's closed and serialized in Sentinel. [00:35:15] Speaker 04: Or it might be deemed to warrant further investigation, at which point a case file is opened in CRS and it's investigated in the normal course. [00:35:23] Speaker 04: And at that point, when it's opened in CRS, it's closed in guardian. [00:35:26] Speaker 04: And in either case, it's closed in guardian and put into CRS as a sort of no further investigation needed or as a separate investigation that's going to be conducted by the FBI. [00:35:38] Speaker 04: Does that answer both of your questions? [00:35:42] Speaker 05: sure my colleagues don't have additional questions for you. [00:35:44] Speaker 05: Thank you, Mr. Kennedy. [00:35:46] Speaker 04: Thank you. [00:35:47] Speaker 04: I urge the court to affirm this. [00:35:50] Speaker 06: Mr. Match will give you two minutes for your rebuttal. [00:35:55] Speaker 07: Thank you. [00:35:56] Speaker 07: So. [00:35:58] Speaker 07: The FBI apparently has a process where they look first in CRS. [00:36:02] Speaker 07: And if they find leads outside of CRS, they look outside of CRS. [00:36:08] Speaker 07: In this case, it's not surprising that they wouldn't find leads in CRS to go outside, because the CRS search that they performed are of investigative records. [00:36:18] Speaker 07: So if requesters sought non-investigative records and the indices only indexed investigated information, [00:36:26] Speaker 07: Of course, CRS wouldn't point outside of CRS to cause leads. [00:36:32] Speaker 07: So I think that shows that its overall approach to starting with CRS and going outside is misguided. [00:36:43] Speaker 07: Mr. Kennedy suggested that CRS, though, contains non-investigative records and actually indexes them. [00:36:50] Speaker 07: I mean, that, of course, I think, directly conflicts with the FBI's declaration in Watkins, which said, this is a non-investigative record, so we don't think CRS is likely to contain responsive records. [00:37:03] Speaker 07: And I mean, you can see why. [00:37:06] Speaker 07: Because the part of the declaration he pointed to on JA 33 and 34 [00:37:18] Speaker 07: Indexing information to the CRS is done at the discretion of FBI investigators, not necessarily non-investigative material or non-investigative tasks here. [00:37:28] Speaker 07: Accordingly, the FBI does not index every individual name or other subject matter in the general indices. [00:37:34] Speaker 07: So there's some discretion to index or not index information. [00:37:38] Speaker 07: And because they have that discretion, if they don't find indexed records, that doesn't mean that there aren't unindexed records there too. [00:37:48] Speaker 02: I just want to make one very quick point about... They found documents about Cato using the index. [00:37:56] Speaker 02: I mean, Cato is indexed in this case. [00:37:59] Speaker 02: Yes. [00:38:01] Speaker 02: So why are you concerned then that Cato's not going to show up in an index search? [00:38:06] Speaker 07: Well, so, I mean, Cato clearly did show up in an index search. [00:38:09] Speaker 07: The question is whether the documents, whether all responsive documents are, regarding Cato, are indexed to it. [00:38:16] Speaker 02: So, if what the FBI invests in here is read to say that we also index materials in a way that we can get them if we need them in the future for the retrieval, including administrative and personnel matters. [00:38:27] Speaker 02: Right, I mean, so. [00:38:28] Speaker 02: And I know it's read. [00:38:29] Speaker 02: Does that not resolve your concerns that they weren't, the index search didn't capture administrative and personnel records? [00:38:35] Speaker 07: I mean, I don't think that's what the declaration says. [00:38:41] Speaker 07: indexing information in the CRS is down to the discretion of FBI investigators, and it describes the indices as the subjects and the affiliates of a particular investigation. [00:38:54] Speaker 07: I mean, Cato is a public policy think tank. [00:38:57] Speaker 07: If there are FBI officials, I mean, Cato is a think tank that addresses issues related to civil liberties. [00:39:06] Speaker 07: If the FBI's got emails talking about a certain policy proposal that Cato might have put forward regarding civil liberties issue, that's not necessarily connected to some investigation. [00:39:17] Speaker 07: It would be responsive to the request, but there's no reason to believe that an investigator would have indexed it to an investigative index. [00:39:26] Speaker 02: Is there any reason to believe a personnel record would have indexed it? [00:39:30] Speaker 07: I mean, they, the, the. [00:39:31] Speaker 02: Administrative record or, I mean, it seems like you had to be housed somewhere. [00:39:36] Speaker 07: I mean, it has to be housed somewhere. [00:39:38] Speaker 07: I mean, it could be in the CRS. [00:39:39] Speaker 07: It might not have been indexed. [00:39:40] Speaker 07: I mean, it could. [00:39:41] Speaker 07: What we're asking it to do, or the FBI to do, is to search the email systems that are not in CRS. [00:39:47] Speaker 07: They're probably there. [00:39:48] Speaker 07: I mean, if they exist, they could well be there. [00:39:53] Speaker 07: They have to be somewhere. [00:39:54] Speaker 02: I thought you were arguing also about this guardian system, but because that one involves investigatory matters, you'd be indexed there. [00:39:59] Speaker 02: So it seems like there's really nothing more to be said. [00:40:02] Speaker 02: I mean, you've got your argument about time lag, but other than that, [00:40:05] Speaker 02: Or maybe some people drop. [00:40:07] Speaker 02: Maybe some people somewhere in some field offices in 2008 dropped the ball. [00:40:13] Speaker 02: But it seems to me that's less your concern. [00:40:15] Speaker 02: Your concern now is there might be some administrative emails. [00:40:21] Speaker 07: Administrative policy related emails like the ones in Watkins that the FBI acknowledged would not likely be found in the CRS index search. [00:40:28] Speaker 07: On the time lag, I want to point out, though, that even though it's an old audit, the audit's directly relevant to the time period of this case. [00:40:35] Speaker 07: The request didn't have a date range. [00:40:39] Speaker 07: And the FBI located records before and after 2000. [00:40:42] Speaker 07: So that audit actually is relevant in terms of time. [00:40:49] Speaker 05: OK. [00:40:49] Speaker 05: Thank you, Mr. Nash. [00:40:51] Speaker 05: Thank you, Mr. Kennedy. [00:40:51] Speaker 05: We'll take this case under submission.