[00:00:01] Speaker 00: Case number 22-5300, Jason Leopold and BuzzFeed Inc. [00:00:05] Speaker 00: Abalance versus United States Department of Justice. [00:00:09] Speaker 00: Mr. Mouch for the Abalance, Mr. Dreier for the Abolute. [00:00:17] Speaker 02: Morning, Mr. Mouch. [00:00:19] Speaker 02: You know the podium is adjustable if you care to adjust it. [00:00:26] Speaker 05: Morning, can you hear me? [00:00:27] Speaker 05: Yes. [00:00:28] Speaker 05: Great, may I please the court? [00:00:30] Speaker 05: I plan to focus on two things this morning. [00:00:33] Speaker 05: First, how FOIA's foreseeable harm requirement interacts with Exemption 8, and second, how the requirement applies in this case. [00:00:42] Speaker 05: The foreseeable harm requirement interacts with Exemption 8 the same way it does the other exemptions. [00:00:48] Speaker 05: As this court held in Reporters Committee, it imposes an independent and meaningful burden on agencies. [00:00:55] Speaker 05: That burden requires the agency to make a concrete context-specific showing of how disclosure of the specific material at issue would not could harm an interest protected by the exemption. [00:01:08] Speaker 05: And it applies at the level of information rather than records, which means that agencies must produce redacted versions if they can do so without causing harm. [00:01:17] Speaker 05: Exemption aids are distinct from the other exemptions only in the interests it protects. [00:01:22] Speaker 05: Those interests are surely important, but the whole point of the foreseeable harm requirement is that disclosing some exempt material will not harm those interests, in which case the public is entitled to that material. [00:01:34] Speaker 05: There's no reason to believe Exemption 8 is any different. [00:01:38] Speaker 02: Is there any difference between the analysis of the interests [00:01:44] Speaker 02: in a routine bank examination as distinct from a deferred prosecution agreement? [00:01:53] Speaker 05: Yes. [00:01:55] Speaker 05: The context of the deferred prosecution agreement is quite important here. [00:02:00] Speaker 05: In a deferred prosecution agreement, the bank has already agreed to cooperate fully with the monitor. [00:02:08] Speaker 05: Breach of that agreement results in [00:02:12] Speaker 05: sort of rescission of that agreement and prosecution. [00:02:16] Speaker 05: So in that case, the bank knows. [00:02:18] Speaker 05: So I take it this is related to the sort of interests in in assurance of confidentiality that the monitor might have. [00:02:24] Speaker 02: And cooperation. [00:02:25] Speaker 02: And cooperation. [00:02:27] Speaker 02: Concerns that if the redactions are going to be in someone else's hands, that a bank subject to examination and or monitors examination would be less cooperative. [00:02:40] Speaker 02: And I think you put your finger on it that the question is, really, there's a lot of incentive under a DPA to cooperate. [00:02:47] Speaker 05: Exactly. [00:02:48] Speaker 02: a perfectly law-abiding financial institution that is being examined by federal regulators. [00:02:56] Speaker 02: They're under a legal obligation to cooperate, but it's a different, potentially a different calculus. [00:03:03] Speaker 02: And I'm just not sure that that's something cognizable in the terms of FOIA, but [00:03:08] Speaker 02: I'm interested in it. [00:03:09] Speaker 05: So I think it is cognizable because this court instructed in Reporters Committee that the context is relevant and important in considering the harm that would result. [00:03:20] Speaker 05: I would also emphasize that in the context of a deferred prosecution agreement, if the agreement is breached and the bank doesn't cooperate, sensitive information is going to come out anyway to public trial. [00:03:34] Speaker 05: And that information, unlike this case, is not going to be redacted under FOIA. [00:03:38] Speaker 05: So, in fact, this is a far worse situation for the bank. [00:03:47] Speaker 05: They have less bargaining power than they would have in sort of a routine monitorship. [00:03:54] Speaker 05: the consequences of not being fully candid with the monitor is not criminal liability and the prospect of potentially much more sensitive information coming out of trial. [00:04:05] Speaker 05: Again, here we're not asking for the whole report. [00:04:07] Speaker 05: We're not asking for the sensitive stuff. [00:04:09] Speaker 02: So you're starting from the baseline of the redactions that Judge Gleason approved or something along those lines that all you're saying is that granted there's going to be identifying information about [00:04:23] Speaker 02: 300 employees that were interviewed. [00:04:25] Speaker 02: Granted, there's going to be information detailing processes that bad actors might want to exploit, bank processes for preventing money laundering. [00:04:37] Speaker 02: Granted, there might be country names and references to confidential material that foreign regulators provided that all that would be redacted in response to the claimed [00:04:48] Speaker 02: interests that the government has raised, but your point is what is the showing of harm with respect to the balance of [00:05:01] Speaker 05: That's exactly right. [00:05:02] Speaker 05: That's exactly our position. [00:05:04] Speaker 05: Judge Gleason pointed out, I would recommend footnote 11 of his decision, where he says that some of the least sensitive parts of the report concern the monitor's processes for reaching his conclusion. [00:05:16] Speaker 05: The sort of general conclusions he reached, he said, very few redactions will need to be made to those parts of the report. [00:05:24] Speaker 05: There's also the United States country report, which presumably [00:05:28] Speaker 05: doesn't have concerns with foreign jurisdiction information. [00:05:31] Speaker 05: Each jurisdiction had its own dedicated appendix, one of which was the United States. [00:05:37] Speaker 05: We're asking for that one. [00:05:39] Speaker 05: We're not asking for the five foreign jurisdictions. [00:05:41] Speaker 05: And you're right. [00:05:42] Speaker 05: We're not asking for information that discloses current security vulnerabilities. [00:05:49] Speaker 05: DOJ's conceded that many of the vulnerabilities have been rectified. [00:05:53] Speaker 05: Judge Gleason found the same. [00:05:56] Speaker 05: Sorry. [00:05:56] Speaker 02: It would be interesting to be just following up on my initial question, whether you can elaborate at all about if we were to hold that the foreseeable harm requirement has not been met here, how could we distinguish or at least leave open whether our holding would apply to routine bank examination reports? [00:06:26] Speaker 05: I think you could distinguish this case or leave it open sort of on the grounds that you opened your question, your first question with. [00:06:34] Speaker 05: Limit the decision to cases where a bank is subject to a deferred prosecution agreement. [00:06:39] Speaker 05: Because there, the bargaining position of a bank, its leverage vis-a-vis its regulator, is different from, and maybe its bargaining position, but also the consequences for not being candid are far different from a sort of routine bank examination report. [00:06:55] Speaker 02: So there, you're saying the harm is the harm to the financial regulatory system. [00:07:03] Speaker 02: That harm is predictable. [00:07:12] Speaker 02: that it would be harmful in the case where there's no deferred prosecution agreement is not clear that it would be harmful in the case in which there is one? [00:07:21] Speaker 05: Well, I mean, I don't want to say that it would be harmful. [00:07:23] Speaker 05: I'm saying that it would be, the harm calculus would be different. [00:07:28] Speaker 05: I think the harm calculus in our case means there's less harm. [00:07:31] Speaker 05: You don't need to decide that case. [00:07:33] Speaker 05: All you need to say is that this case is, you know, they haven't met their burden here, and that case is a different case that you're not deciding. [00:07:40] Speaker 05: I think that's how I would, [00:07:41] Speaker 05: recommend approaching it. [00:07:43] Speaker 02: Right, by referencing the harm, I was just trying to relate that. [00:07:45] Speaker 02: I mean, we understand that as a kind of policy matter, but how does it fit in FOIA? [00:07:50] Speaker 02: And so that's why I'm talking about the harm that would. [00:07:53] Speaker 05: Right, so the harm that this court has articulated. [00:07:56] Speaker 05: So I mean, this court has articulated two harms relevant to exemption aid, one of which is the one I think you're talking about, which is sort of maintaining relations between the bank and the regulator, maintaining sort of candid communication between them. [00:08:10] Speaker 05: Yes, I think the point is because HSBC was being prosecuted and violation of the DPA would have led to the resumption of that prosecution. [00:08:24] Speaker 05: The prospect of disclosing fairly innocuous information in a report is not going to deter it from not cooperating, because if it did that, sensitive stuff would come out anyway. [00:08:35] Speaker 05: It would get prosecuted. [00:08:37] Speaker 05: That's just not the case for a sort of routine bank examination report. [00:08:41] Speaker 02: What about the foreseeable harm obligation, as you point out in orders committee, is one that we apply even to information that [00:08:53] Speaker 02: is exempt, but we also apply it differently depending on the nature of the exemption and the nature of the interest that the exemption serves. [00:09:01] Speaker 02: And we have our cases like Gregory, which talk about the absolute nature of the protection under exemption eight. [00:09:12] Speaker 02: And we have a raft of district court cases that routinely do analysis FOIA analysis under exemption eight on a pretty [00:09:23] Speaker 02: Broad brush basis, the whole report. [00:09:26] Speaker 05: So I think it's important to distinguish the exemption from the foreseeable harm requirement. [00:09:30] Speaker 05: I think this is the only case in which the district court has applied the foreseeable harm requirement to exemption aid. [00:09:37] Speaker 05: Maybe there's others. [00:09:38] Speaker 05: I'm not aware of them. [00:09:38] Speaker 05: And this court, of course, has not done that. [00:09:41] Speaker 05: So yes, Gregory said something about exemption aid provides absolute protection to what it covers. [00:09:47] Speaker 05: That's not a foreseeable harm case. [00:09:49] Speaker 02: And so that also absolutely does absolutely for a scope. [00:09:53] Speaker 02: It's a little bit unclear. [00:09:54] Speaker 05: Well, so yeah, I mean, I think absolute refers to the scope of the exemption and not the harm that would result from disclosure. [00:10:02] Speaker 05: Gregory just wasn't asking that question because there was no foreseeable harm requirement at the time it was decided. [00:10:08] Speaker 05: Of course, the foreseeable harm requirement sort of could make a difference in a case only if the material is exempt. [00:10:13] Speaker 05: Because if the material is not exempt, the government has to disclose it whether or not causing or disclosing it would cause harm, which emphasizes sort of the [00:10:22] Speaker 05: the need to conduct a rigorous foreseeable harm analysis lest the provision be rendered meaningless. [00:10:32] Speaker 05: You're right that the analysis is different depending on the exemption. [00:10:38] Speaker 05: DOJ references the importance of the interest protected by exemption aid. [00:10:41] Speaker 05: Again, we're not disputing that the interest is important. [00:10:44] Speaker 05: That's why we're not asking for large portions of the report. [00:10:48] Speaker 05: Of course, every exemption protects important interests. [00:10:53] Speaker 05: that what the agency has to do in any case under the foreseeable harm requirement is show that the interest articulates applies to the material that it wants to withhold. [00:11:05] Speaker 05: I mean, it hasn't done that for the passages of the report that we are asking that they be ordered to disclose. [00:11:12] Speaker 01: This may be... Well, may I ask a question in terms... This is Judge Rogers. [00:11:17] Speaker 01: I'm only on audio, unfortunately. [00:11:21] Speaker 01: I can hear you loud and clear. [00:11:23] Speaker 01: Good. [00:11:25] Speaker 01: I want to be clear that I understand exactly what your argument is in terms of what you think the district court here failed to do. [00:11:39] Speaker 01: In other words, as I hear your argument, and maybe I'm wrong about this, you're not saying the district court couldn't reach the same result. [00:11:53] Speaker 01: but that he failed to do what he was required to do under FOIA, given that the district court in the Eastern District of New York had reached a different conclusion based on different findings. [00:12:13] Speaker 01: Is that correct? [00:12:15] Speaker 01: In other words, what I'm trying to understand here is I know you made an objection to the hearsay nature of [00:12:22] Speaker 01: some of the government's evidence. [00:12:28] Speaker 01: But the district court ruled it was admissible. [00:12:33] Speaker 01: He could consider it. [00:12:35] Speaker 01: And he did. [00:12:38] Speaker 01: And the theory here, as we've all learned in a lot of these top secret cases, is you don't need to know the most damaging material about someone. [00:12:52] Speaker 01: for it to have a negative impact on the government's interest in prosecution or investigation. [00:13:02] Speaker 01: And I sort of read the district court to think in that way too. [00:13:11] Speaker 05: So let me try to answer your question, and let me know if there's a part that I missed. [00:13:15] Speaker 05: I just want to make one correction. [00:13:17] Speaker 05: The district court actually, we didn't interpose a hearsay objection to everything. [00:13:23] Speaker 05: We did object to certain documents based on hearsay, and the district court actually agreed with us on that point. [00:13:28] Speaker 05: So just one small point of clarification. [00:13:32] Speaker 01: You asked- There's no argument that the district court did not properly consider the hearsay [00:13:39] Speaker 01: about filings by the foreign government. [00:13:42] Speaker 05: Well, the district court declined to consider those materials because they were hearsay. [00:13:49] Speaker 05: The government is appealing that, or it's arguing that that decision was wrong, but the district court declined to consider those, yeah. [00:13:58] Speaker 01: And so your point is that absent consideration of that type of evidence [00:14:07] Speaker 01: we would have to reverse. [00:14:12] Speaker 05: So I think whether you consider that evidence or not, you would have to reverse. [00:14:18] Speaker 05: We've given three independent grounds for reversal here. [00:14:23] Speaker 05: The first is that DOJ's evidence is insufficient to meet its burden under FOIA, which would require entry of partial summary judgment for us on exemption eight foreseeable harm. [00:14:36] Speaker 05: In that case, we would ask the district court to review the monitor report and camera in conjunction with [00:14:40] Speaker 05: Judge Gleason's redactions. [00:14:42] Speaker 05: There's also other exceptions that it hasn't decided, so it would also have to consider those. [00:14:48] Speaker 01: Yes, and that's where it started, and if my question wasn't that clear, it was that the district court here did not address the district court's findings in the Eastern District of New York. [00:15:04] Speaker 05: Yes, that's part of the error. [00:15:06] Speaker 05: It also didn't address. [00:15:08] Speaker 05: So I mean, Judge Gleason's findings, the judge from the Eastern District in New York, are really only relevant to our second and third arguments for reversals. [00:15:20] Speaker 05: The first one, all you need to do is look at DOJ's evidence, conclude that it doesn't meet its burden. [00:15:28] Speaker 05: we were entitled to partial summary judgment. [00:15:31] Speaker 05: The second ground reversal is sort of, if you disagree with that, then both parties motions should have been denied because there is contrary facts. [00:15:44] Speaker 05: One of those facts is the factual findings of Judge Gleason. [00:15:48] Speaker 05: And the other is the monitor's conclusion that part of his report could be released without causing harm. [00:15:53] Speaker 05: The third ground for reversal that we are asking, and I'm sort of going in our descending order of preference here, is the district court should not have decided the motions at all without reviewing the report in camera, including Judge Gleason's redactions. [00:16:09] Speaker 05: And our argument there, I fully recognize it's a deferential standard of review, and this court doesn't want to open the floodgates to mandatory in-camera review in FOIA cases. [00:16:17] Speaker 05: But this is an unprecedented case as far as I'm aware, because we here we have a prior code article three judge making essentially the same analysis after an in camera view, and basically the same evidence and arguments that DOJ is making here. [00:16:33] Speaker 05: And on the other hand, the district court made its decision sort of without the benefit of that in-camera review. [00:16:38] Speaker 05: And so at least before making a decision, it should have reviewed the report in camera. [00:16:45] Speaker 05: We're not arguing that the district court is bound to follow Judge Gleason's decision. [00:16:50] Speaker 05: It should have considered it. [00:16:51] Speaker 05: It can redact more, it can redact less. [00:16:53] Speaker 05: It should at least look at what Judge Gleason did. [00:16:56] Speaker 03: Suppose we think the district court erred [00:17:01] Speaker 03: in not performing a segregability analysis specific to the foreseeable harm question as opposed to the underlying exemption question. [00:17:15] Speaker 03: Why wouldn't we just send it back for the district court to perform that analysis? [00:17:19] Speaker 03: It's really that court's job in the first instance. [00:17:22] Speaker 05: I mean, I agree that it's that court's job in the first instance. [00:17:27] Speaker 05: There's no basis on which the court can make segregability finding without reviewing the report in camera. [00:17:32] Speaker 05: The district court ordered DOJ to update its segregability analysis in its first opinion. [00:17:38] Speaker 05: And DOJ came back specifically to address Judge Gleason's findings. [00:17:44] Speaker 05: DOJ came back with a very short declaration that didn't address the findings and sort of argued in a paragraph or two that they didn't matter. [00:17:52] Speaker 05: So on the current record, district court just couldn't make, I mean, based on its own conclusion in its first opinion, could not make. [00:18:00] Speaker 05: an adequate segregability finding. [00:18:02] Speaker 05: If you agree that the finding wasn't me, I don't know what else it could have done based on what it had. [00:18:07] Speaker 05: It just didn't really have anything. [00:18:08] Speaker 02: So distinguishing between your first ground and your second, your first you said that we could hold that the evidence is insufficient to show that there is foreseeable harm, that there would be foreseeable harm from disclosure as to at least [00:18:27] Speaker 02: some portions of the report. [00:18:30] Speaker 02: And so you get partial summary judgment on some sort of undefined scope of the report and a remand for redactions as appropriate. [00:18:44] Speaker 02: And the second [00:18:45] Speaker 02: ground is that both motions should have been denied because a reasonable find or a fact could find consistent with the Eastern District of New York analysis and the monitors own acknowledgement that some aspects could be [00:19:06] Speaker 02: could be disclosed. [00:19:07] Speaker 02: Now, how are those two different in the latter? [00:19:10] Speaker 02: Like, we don't often have trials in FOIA cases. [00:19:13] Speaker 02: So would there be trial to resolve the factual conflict on whether or, I mean, it feels more comfortable to rely on burdens? [00:19:25] Speaker 05: Yeah. [00:19:25] Speaker 05: So, I mean, [00:19:27] Speaker 02: But here it seems like, according to his first opinion, that in his second opinion, Judge Contreras perhaps should have said to the government, oh, if you're right, and this is all on the, we haven't decided the case. [00:19:38] Speaker 02: But assuming that your arguments have some, would be credited in part, would we say, well, the government had an opportunity and came back with what it came back with. [00:19:55] Speaker 02: in response to the district judge's first opinion, and it shouldn't get another bite at the apple. [00:20:01] Speaker 02: How do we sort through that? [00:20:03] Speaker 05: So I think in general, you're right. [00:20:05] Speaker 05: So please stop me if I'm not fully answering your question, but I think there's a few parts to it. [00:20:13] Speaker 05: Right, the trials don't often happen in FOIA cases. [00:20:16] Speaker 05: And I think that in this case, it would be particularly hard to conduct one given that the report that we are arguing about here is fully withheld. [00:20:27] Speaker 05: We can't exactly disclose it in open court. [00:20:30] Speaker 05: I think what I would recommend is that the district court [00:20:35] Speaker 05: I mean, it would be sort of like a bench drive, but it just conduct factual findings or make factual findings based on an in-camera review. [00:20:44] Speaker 05: And those would be the findings of the court that, you know, could then be appealed based on the relevant standard review if either party would choose to appeal that. [00:20:53] Speaker 03: Has there ever, has there been a [00:20:57] Speaker 03: bench trial on foreseeable harm in the several years since Congress added that to FOIA. [00:21:05] Speaker 05: I'm not aware of one. [00:21:06] Speaker 05: I'm not aware of one. [00:21:08] Speaker 03: So whether we think of this as summary judgment or just thinking of this as the district court resolving the issues before him, [00:21:20] Speaker 03: Is there any difference in the government's put in what it wants to put in? [00:21:25] Speaker 03: And you've done the best you can in the very difficult position of not having seen the report and they get whatever presumption of regularity they are or are not entitled to. [00:21:41] Speaker 03: And you argue that on the law and the district court will just decide this based on what he has before him. [00:21:51] Speaker 05: I mean, if that includes the in-camera review, then I think there is very little difference. [00:21:57] Speaker 03: Well, but the in-camera seems different from the question of sort of how summary judgment should work in a FOIA case. [00:22:08] Speaker 05: So I think in general, well, so maybe this is a way to sort of parse this out. [00:22:14] Speaker 05: Most FOIA cases don't involve the sort of procedural [00:22:20] Speaker 05: set up that we're in here because most FOIA cases are decided solely on the basis of the government's declarations and so the question is often the sufficiency of those declarations. [00:22:31] Speaker 03: The sort of fact question just merges into the summary judgment question because the district court assesses the government's declaration and it's either good enough or it isn't. [00:22:42] Speaker 03: Exactly but here we have different so here you have that and then you have [00:22:47] Speaker 03: The statement by the Churalsky saying, well, you could release some form of the report, but not much. [00:22:56] Speaker 03: That's just part of the government's affidavit. [00:23:01] Speaker 03: And the Judge Gleason's analysis under strict scrutiny in a FOIA case has whatever relevance it has. [00:23:11] Speaker 03: But that's not going to change with [00:23:15] Speaker 03: a further round of factual development that we'll call a trial instead of summary judgment record development. [00:23:23] Speaker 05: So are you saying that the judge, I mean, I think that if there is contrary, this is, I mean, I'm just sort of trying to apply rule 56 in a FOIA, I mean, yeah. [00:23:35] Speaker 03: It applies in a weird sort of way in FOIA cases, but it doesn't seem like the foreseeable harm requirement [00:23:44] Speaker 03: either was designed to or in fact has revolutionized FOIA by causing, you know, the need for a lot of trials. [00:23:52] Speaker 05: No, but I think, I mean, I do quite a bit of FOIA litigation and the cases that are decided in the district court based on foreseeable armor. [00:23:59] Speaker 05: not really that different from the ones that are decided based on exemptions. [00:24:02] Speaker 05: Usually it's just based on the sufficiency of the declaration. [00:24:05] Speaker 05: There have been bench trials in FOIA cases before the foreseeable harm requirement. [00:24:09] Speaker 05: Actually, I believe the Supreme Court's decision in Argus leader followed a bench trial. [00:24:13] Speaker 05: So they do happen. [00:24:15] Speaker 05: Again, we're not asking for that here because we think it would be [00:24:19] Speaker 05: hard to work with, given the nature of the inquiry here. [00:24:22] Speaker 02: So we're just asking for a summary judgment rule applies well enough. [00:24:27] Speaker 02: If you're looking at whether the government is affirmatively, you know, which bears the burden on the foreseeable harm [00:24:36] Speaker 02: point has affirmatively shown that no fact finder could find that there is a lack of foreseeable harm as to any part of the report and therefore some part you must be in time and I take your position to be therefore you must be entitled to summary judgment on those parts. [00:24:55] Speaker 05: Correct. [00:25:00] Speaker 05: Any other questions? [00:25:01] Speaker 02: Judge Rogers, any questions? [00:25:05] Speaker 01: Thank you. [00:25:06] Speaker 05: All right, thank you. [00:25:07] Speaker 05: I ask that the court reverse and remand for a hand review. [00:25:10] Speaker 02: Will you want rebuttal? [00:25:12] Speaker 05: Yeah, I believe I'd ask for two minutes. [00:25:14] Speaker 02: We tend to mow past your time, but also give back. [00:25:17] Speaker 02: OK, thanks. [00:25:22] Speaker 02: Morning, Mr. Dreier. [00:25:23] Speaker 04: Good morning. [00:25:24] Speaker 04: May it please the court, Douglas Dreier on behalf of the Department of Justice. [00:25:27] Speaker 04: So what I want to start on is the promises made to foreign regulators, because I think what we saw a lot of in my friend's brief and somewhat in the argument here was a focus on, well, the foreign regulators must have only cared about the portions of information that they provided. [00:25:46] Speaker 04: But what the record actually shows in, for instance, the Hong Kong Monetary Authority's letter in the Bank Negara Malaysia's letter is that they were promised that the entire report would remain confidential. [00:26:02] Speaker 04: So for instance, the Hong Kong Monetary Authority's letter said, we consider it important to bring to your attention the practical difficulties that publication of the report in full or part [00:26:14] Speaker 04: may present to the future work of the monitor. [00:26:17] Speaker 04: Bank Nagara Malaysia said that it was, quote, assured that the report would only be disclosed to DOJ, the Federal Reserve Board, and UK's Financial Conduct Authority. [00:26:31] Speaker 02: How do we, how do we, situation in which government actors would be happy to assure confidentiality, but that can't affect the obligation of disclosure under FOIA. [00:26:43] Speaker 04: So what this court said in Machado Amadas was that to withhold a responsive record, the agency must reasonably foresee that disclosure would harm an interest. [00:26:53] Speaker 04: Now, in order to determine whether the agency reasonably foresees that disclosure would harm an interest, one thing we're looking at is, well, what is the milieu here? [00:27:03] Speaker 04: And here we have foreign regulators who have [00:27:07] Speaker 04: sent who submitted letters to the Eastern District of New York saying they want the whole report kept under seal and so if you're the agency looking at this record and you're seeing these foreign regulators taking the time to submit letters and requesting disclosure requesting that the report be withheld in full then I think it's reasonable here for the agency to say look [00:27:33] Speaker 04: Okay, this entire report, this one document should be withheld in full because of these assurances of confidentiality that may, and they were written to, for instance, in the corporate compliance monitor agreement itself, it says the reports and the contents thereof are intended to remain and shall remain nonpublic. [00:27:52] Speaker 02: So we just have the prompt. [00:27:57] Speaker 02: of the monitor. [00:27:58] Speaker 02: And I understand if the monitor has given assurances of confidentiality, then one might expect him to exercise his discretion consistent therewith. [00:28:06] Speaker 02: But the caveat for acceptance required by law, why isn't FOIA that law? [00:28:13] Speaker 04: So on that, just a point of clarification, the corporate compliance monitor agreement itself, it wasn't the monitor who determined that, it's the department. [00:28:22] Speaker 04: And so the language there is that, except to the extent that the department determines in its sole discretion, that one, disclosure would be in furtherance of the department's discharge of its responsibilities and duties and responsibilities, or two, is otherwise required by law. [00:28:37] Speaker 02: Thank you for the clarification, but I'm not sure that that changes my question, unless you're making the point that you think it does. [00:28:43] Speaker 04: And I'm sorry, just to make sure I'm answering your question. [00:28:48] Speaker 02: Department can determine that it wants to disclose it, but one would assume that if the monitor has said to foreign regulators, you have my assurance that they would take him to be speaking with the authority of the Justice Department, [00:29:09] Speaker 02: But that doesn't resolve the accept as required by law proviso. [00:29:16] Speaker 04: Well, so the otherwise required by law proviso must still consider whether the agency is reasonably foreseeing harm in the exemption A context. [00:29:27] Speaker 04: And so what we are saying is this is not just, hey, DOJ made a promise, the monitor made a promise, and we need to enforce that. [00:29:36] Speaker 04: We walked through in our declarations all the harms that can result as a result of the voiding of these promises. [00:29:44] Speaker 04: So this is not just [00:29:45] Speaker 02: at a pretty general level. [00:29:48] Speaker 02: And what strikes me is that the analysis and the representations made in the declarations seem to support the applicability of Exemption 8. [00:30:01] Speaker 02: But they don't clearly treat the foreseeable harm requirement as a distinct and separate requirement on which the government bears the burden, even assuming [00:30:14] Speaker 02: that exemption eight applies. [00:30:16] Speaker 02: So the arguments that confidence of foreign governments, cooperation of their regulators, all go to the sort of wholesale, let's withhold the report. [00:30:32] Speaker 02: But I take Congress to have legislated to say, even things that are covered, [00:30:39] Speaker 02: you look specifically, and as Judge Katz has put it, do in effect a segregability analysis under the foreseeable harm. [00:30:49] Speaker 04: So what I'd say on that is what we're often seeing from my friend is there's this desire of, hey, this district judge who was reversed found these certain portions could be disclosed. [00:31:02] Speaker 04: And therefore, there needs to be more set on these specific portions. [00:31:06] Speaker 04: But what the agency's declarations below in this record say is, look, we've looked at this. [00:31:11] Speaker 04: We've looked at the entire report. [00:31:14] Speaker 04: We've conducted a line-by-line analysis, which has never been disputed. [00:31:17] Speaker 04: the line-by-line analysis was conducted that's attested to. [00:31:21] Speaker 04: And we determined that the entire report must be withheld in full. [00:31:26] Speaker 04: So there isn't going to be a separate analysis of the reversed findings under the First Amendment and the common law right to access. [00:31:35] Speaker 02: The findings weren't reversed. [00:31:35] Speaker 02: I think that's a little bit of an overstatement. [00:31:37] Speaker 02: The Court of Appeals said [00:31:40] Speaker 02: We disagree with the threshold determination that Judge Gleason made, which was that this document is a court filing subject to the public right of access. [00:31:51] Speaker 02: They didn't speak at all to the findings. [00:31:53] Speaker 02: And in fact, they said the proper avenue is FOIA, and we're not resolving that. [00:31:58] Speaker 02: So the question is, given that the same interests were raised there as are raised here, the same confidentiality grounds, [00:32:08] Speaker 02: And those were looked at. [00:32:10] Speaker 02: And we have the opinion of Judge Bleson explaining how he responded to them. [00:32:14] Speaker 02: He said, I credit that. [00:32:15] Speaker 02: I credit that. [00:32:16] Speaker 02: I credit that. [00:32:17] Speaker 02: And here's what I'm doing. [00:32:19] Speaker 02: Here's what I'm doing about people who came forward to speak, keeping them confidential. [00:32:23] Speaker 02: Here's what I'm doing about the concerns of foreign regulators. [00:32:27] Speaker 02: leaving off all those appendices and mentioning no country names. [00:32:33] Speaker 02: So I'm not sure that we can say that any of that, I mean, we're not looking at it as binding precedent, as collateral estoppel in any way. [00:32:43] Speaker 02: We're just looking at it almost as if it's a declaration of some expert who looked at [00:32:49] Speaker 02: at this material, and a reasonable finder of fact could look at that and say, oh, here's someone who read the report, who knows the situation, and made these determinations. [00:33:00] Speaker 02: What in the government submission allows us to say that none of that raises an issue? [00:33:08] Speaker 04: So in AUSA Kessler's declaration, it specifically says Paragraph 7, page 108 of the Joint Appendix, although the District Court and HSBC Bank USANA concluded that certain portions of the report should be released to the public, the court's analysis in that case was not conducted in the framework of FOIA and did not consider the various FOIA exemptions, including FOIA exemptions 4 and 7A, [00:33:35] Speaker 04: nor did the court appear to apply the reasonably segregable standard of the FOIA case law. [00:33:40] Speaker 04: As a result, redacting only the limited categories of information proposed by the district court would not adequately address the interests identified in the government's filings in this case, most notably the interests underlying FOIA Exemption 7A and 8. [00:33:52] Speaker 03: And what I'd like to point to in the word and what you just read about foreseeable harm. [00:33:59] Speaker 04: It is and then that's it's coupled with all the rest of the declarations in the record that are going over each of each of the arms declarations are all pretty good for you, but they're just. [00:34:12] Speaker 03: Very Jim just talk about the report as a whole. [00:34:16] Speaker 04: Well, that's because this is we are dealing with a single document and a single document that the conclusion is it needs to be withheld in full. [00:34:23] Speaker 04: And one of the main reasons for that is we cannot avoid these assurances of confidentiality. [00:34:30] Speaker 04: And that's going to apply at the report level, not at the information level. [00:34:35] Speaker 02: Is that right? [00:34:36] Speaker 02: I mean, [00:34:38] Speaker 02: people cooperate, witnesses cooperate all the time, and confidentiality tailored to their disclosure concerns suffices. [00:34:48] Speaker 02: You don't have to close entire days of trial or entire documents in which their testimony might be mentioned. [00:34:56] Speaker 02: So it seems to me, and maybe this is your position, it seems like you're contending that in the context of Exemption 8. [00:35:08] Speaker 02: the foreseeable harm requirement itself has to be applied on a full report basis. [00:35:16] Speaker 02: That's just the unit size for the foreseeable harm requirement. [00:35:21] Speaker 02: There is no segregability in that context. [00:35:24] Speaker 02: Is that right? [00:35:25] Speaker 04: I wouldn't phrase it quite like that. [00:35:27] Speaker 04: That's not how we're phrasing it here. [00:35:29] Speaker 04: I think that the point in this particular case is one of the harms is the voiding of the promises of confidentiality. [00:35:37] Speaker 04: And that applies at the report level. [00:35:39] Speaker 04: And so I agree that AA itself, the foreseeable harm requirement, speaks to information as opposed to records themselves. [00:35:48] Speaker 04: But here, that needs to be assessed in the context of what the harm is. [00:35:54] Speaker 04: And here the harm is the voiding of these promises, which is not just an ethereal, you know, a harm that just matters in the abstract. [00:36:04] Speaker 04: But we've gone through in our declarations explaining how this would harm future prosecutions, future supervisory relationships and the regulated entity here. [00:36:14] Speaker 04: it had more than 400 regulators that's in the monitors affidavit so this is going to require significant work across jurisdictions with different regulators working hand-in-hand and in order for that to happen [00:36:29] Speaker 04: They need to believe that the government's promises, which are made not just orally by the monitor, but in writing in the Corporate Compliance Monitor Agreement itself, will be honored. [00:36:39] Speaker 04: And if they won't be honored, the agency reasonably foresees harm wouldn't do. [00:36:44] Speaker 04: And the question for this court is whether the agency reasonably foresees harm in this instance. [00:36:51] Speaker 01: So what we've been focusing on, it seems to me, is the notion that [00:36:58] Speaker 01: These are very general statements. [00:37:01] Speaker 01: Mr. Kessler is saying this could happen, that could happen. [00:37:06] Speaker 01: It's not as though there's any instance. [00:37:09] Speaker 01: And I thought the concept that the district court here was addressing was if you have a system and by analogy a circle where you're getting all this highly technical, highly confidential [00:37:26] Speaker 01: financial information from different governments around the world, that any break in that chain could be a problem. [00:37:35] Speaker 01: The question, it seemed to me, that we might ask is to consider whether or not if, and I think this is one of your hypotheticals, the table of contents is disclosed, would everyone still be [00:37:56] Speaker 01: that we are adamant about absolute secrecy. [00:38:01] Speaker 01: And maybe so, but that's not what we have so far. [00:38:06] Speaker 01: And at least we have two district court judges viewing this case so differently and not almost two ships passing in the night in terms of some of the findings. [00:38:18] Speaker 01: And while the department is focusing on the promises made, [00:38:24] Speaker 01: question would be, and much as Judge Pillard's question I thought was getting at, yes, those promises were made. [00:38:35] Speaker 01: In light of the situation now, even after Congress's amendment, would that apply to everything? [00:38:44] Speaker 01: And the answer might be yes, but that's not what the government's declarations tell us so far. [00:38:53] Speaker 01: Isn't that correct? [00:38:55] Speaker 04: Well, I do think the government's declarations go through the significant harms here that would result if promises- No, no, don't use the word would. [00:39:08] Speaker 01: All right? [00:39:10] Speaker 01: They repeatedly talk about could, and I don't want to get too technical about this, but a lot of things could happen. [00:39:17] Speaker 01: And I thought Judge Pillard's question was trying to focus on yes, but sometimes in the reality, [00:39:25] Speaker 01: When we're talking about very specific things, views change. [00:39:35] Speaker 04: So, Your Honor, what I would say, for instance, in Deputy Chief Mazur's declaration in paragraph 19, she said public release of these reports would have injurious consequences to MLR's prosecution of financial institutions. [00:39:50] Speaker 04: There are certainly many instances in the declarations where it says could instead of would, but there are also many instances where it says would. [00:39:58] Speaker 04: And on the could-would distinction, [00:40:00] Speaker 04: in Reporters Committee itself that says that this could would distinction applies in the context of the deliberative process privilege. [00:40:08] Speaker 04: And I think there are two versions of the word could that are used foreseeable harm analysis, right? [00:40:14] Speaker 04: No foreseeable harm analysis for deliberative process privilege, which was the heart of why Congress amended FOIA in 2016 as this court walked through in Reporters Committee. [00:40:24] Speaker 01: But you're certainly correct. [00:40:27] Speaker 01: And I was focusing on the [00:40:30] Speaker 01: statement by Kessler. [00:40:31] Speaker 01: But at any rate, there are others that talk about Wood. [00:40:35] Speaker 01: Do you think then that from this court's perspective, either the segregability type analysis raised in one of Judge Katz's question, or just the fact for the district court to be more specific in its findings based on more specific [00:40:58] Speaker 01: declarations from the department. [00:41:01] Speaker 01: That is a useless gesture here. [00:41:04] Speaker 01: I realize you don't think it's required, but we're faced with sort of two very, very different approaches here. [00:41:15] Speaker 04: Well, your honor is right that these were two different approaches. [00:41:18] Speaker 04: And that goes back to the heart of that Judge Gleason was not conducting a FOIA Exemption 8 argument. [00:41:24] Speaker 04: And in footnote 2 of my friend's opening brief, he acknowledges that, quote, Judge Gleason held that the third interest that is impacting future law enforcement efforts [00:41:34] Speaker 04: was too minimal to overcome the public's access right because DOJ had chosen to enter into the deferred prosecution agreement. [00:41:42] Speaker 04: That sort of balancing, that's almost more akin to like an exemption six type balancing. [00:41:48] Speaker 04: That's not the type of analysis that's conducted under exemption eight. [00:41:53] Speaker 04: And exemption eight is written, despite the weighty interests of many of the other FOIA exemptions, including exemption one, [00:42:00] Speaker 04: Exemption 8 is the only one that includes this broad related to language that does make it unique in the statute. [00:42:08] Speaker 03: I think the breadth of Exemption 8 cuts against you on foreseeable harm, though. [00:42:15] Speaker 03: I mean, it is super broad. [00:42:18] Speaker 03: It's written as a prophylactic. [00:42:21] Speaker 03: So then [00:42:24] Speaker 03: The foreseeable harm overlay says even for items that fall within the scope of the exemption, you have to figure out whether the underlying interest is served with respect to [00:42:40] Speaker 03: the material in question, which might implicate the harm or it might just be there because the exemption is by design over broad. [00:42:49] Speaker 04: So your honor, two points on that. [00:42:51] Speaker 04: One is that's almost reminiscent of the concurrence from this court's public investors decision in 2014, which said, whoa, Congress, the exemption aid is written very broadly. [00:43:03] Speaker 04: And it cried out for maybe there should be congressional action. [00:43:06] Speaker 04: So then 2016 comes. [00:43:07] Speaker 03: I'm not criticizing it, I'm just saying [00:43:10] Speaker 04: We have a new requirement to apply on top of it. [00:43:13] Speaker 04: We do. [00:43:13] Speaker 04: Which brings me to my second point, which is when Congress did amend the FOIA in 2016, it specifically cited this court's 1980 decision in Gregory that says that FOIA Exemption 8 has absolute protection and that the amendment was not supposed to [00:43:28] Speaker 04: be viewed as lessening the protections afforded under FOIA Exemption 8. [00:43:32] Speaker 04: Now I think there are many cases where this court could have a lot more to say on the interplay between the foreseeable harm requirement and on Exemption 8, but what I would say is on this record with these declarations that talk about how harm is reasonably foreseen to [00:43:50] Speaker 04: if there is disclosure of the report in full or in part, I think on this record, the court need not go particularly far in order to affirm the district court. [00:43:59] Speaker 03: Can I ask you to shift away from the affidavits for a minute just to the district court opinions? [00:44:07] Speaker 03: I don't think that the court did a separate segregability analysis with respect to foreseeable harm. [00:44:18] Speaker 03: And I think he had to. [00:44:19] Speaker 04: So as I read the district judges, because he says first time around, he says the exemption applies. [00:44:26] Speaker 03: It's super broad. [00:44:27] Speaker 03: It covers everything in the report and related to the report, and that takes care of segregate segregability on the underlying exemption. [00:44:37] Speaker 03: Like, yeah, sure. [00:44:38] Speaker 03: If the exemption covers everything in the report, nothing in the report is segregable for purposes of Exemption 8. [00:44:46] Speaker 03: And then in the, but foreseeable harm, open question, need more information. [00:44:52] Speaker 03: He gets more information. [00:44:55] Speaker 03: Second opinion comes out and he says, um, segregability, foreseeable harm established kind of at a general level for the report as a whole, segregability decided by my first opinion. [00:45:13] Speaker 04: So as I read the district judge's first opinion is it was saying that exemption aid applies and it in that context discussed harm now when it reached second opinion, it noted that there had been additional discussion of foreseeable harm and it said. [00:45:30] Speaker 04: It had viewed that as being decided in its first opinion, so I would say I do think the district judge at least believed it conducted it. [00:45:36] Speaker 04: But second, we are on de novo review of the summary on a summary judgment standard, and I think we just look through the opinion to the affidavits. [00:45:47] Speaker 04: I don't think we need to, but I do think we could. [00:45:49] Speaker 04: And certainly under rule 50 under this court standards for de novo review, it has that that authority. [00:45:57] Speaker 02: One more. [00:45:57] Speaker 02: You argue that Congress mentioned Gregory and that we don't mean to affect the scope of Exemption 8. [00:46:05] Speaker 02: But Congress also carved out Exemption 3 from the foreseeable harm agreement. [00:46:10] Speaker 02: It didn't carve out Exemption 8. [00:46:12] Speaker 02: So I'm just not sure what to make of that and how to, what are you basing your [00:46:20] Speaker 02: effectively document level defense of nondisclosure on, given that Congress didn't carve out section exemption eight from the foreseeable harm requirement and that there is evidence that makes it reasonable that a fact finder would conclude that there are portions of this report that might be disclosed. [00:46:47] Speaker 02: That could be disclosed without causing [00:46:51] Speaker 04: So Exemption 3 is the only one that's statutorily carved out from the reasonable harm analysis. [00:46:56] Speaker 04: That's undisputed. [00:46:59] Speaker 04: The issue, though, is that the harms that are foreseen from Exemption 8, which this court walked through in Consumer's Union, are [00:47:07] Speaker 04: just more apparent in much the same way that, for instance, if this was an Exemption 5 attorney-client privilege case, that the harm that comes from breaking the attorney-client privilege is something that requires a lesser showing than, say, harm from the deliberative process privilege. [00:47:26] Speaker 04: And what this court said in the Reporters Committee was that the deliberative process privilege was the heart of why Congress was acting in 2016, [00:47:35] Speaker 04: And I think it's notable that this court's two main prior cases on foreseeable harm, Machado and Modis, and Reporters Committee are both deliberate process cases, because that's where more of the focus is. [00:47:48] Speaker 04: So it's just. [00:47:49] Speaker 02: Isn't this in some ways, though, akin to deliberative process? [00:47:52] Speaker 02: And I wanted to circle back, because you had said it wouldn't protect the confidence and the cooperation with foreign regulators. [00:48:03] Speaker 02: If all reference to their countries and the people that were spoken with and the appendices dealing with with the bank in those countries were removed, that still wouldn't satisfy them. [00:48:15] Speaker 02: And I'm actually having trouble just understanding why. [00:48:20] Speaker 02: Right. [00:48:20] Speaker 02: That is a problem. [00:48:21] Speaker 02: And if you could fill me in, that would be helpful. [00:48:23] Speaker 04: Sure. [00:48:24] Speaker 04: And I certainly understand that there is an intuitive appeal to say, look, a foreign regulator should only care about its own information. [00:48:32] Speaker 04: But that's not what the foreign regulator said. [00:48:35] Speaker 04: And so since the foreign regulator said that they want the entire report withheld, the agency needs to consider that when it's assessing whether it reasonably foresees harm will ensue. [00:48:49] Speaker 04: And so I do think that the fact that these foreign regulators were assured confidentiality both orally and in writing and informed the district judge in New York as to their positions on this, I think that needs to carry significant weight. [00:49:10] Speaker 04: And then the harm that comes from the breaking of these promises is that, look, as I mentioned earlier, [00:49:17] Speaker 04: HSBC Bank had more than 400 regulators. [00:49:19] Speaker 04: They all need to work together in order to have in today's global world this sort of international cooperation necessary because not just for HSBCs. [00:49:31] Speaker 02: Because I'm assuming that regulators in Malaysia and Hong Kong are eager for the cooperation of US regulators and that [00:49:41] Speaker 04: They're certainly eager in certain instances, but they also are dealing with their own laws. [00:49:47] Speaker 04: So for instance, in the letter from the UK Financial Conduct Authority regulator, it mentions that release of certain material here may be a violation of UK criminal law. [00:50:02] Speaker 04: And in dealing with more than 400 regulators, there's a litany of other countries' laws that need to be considered. [00:50:09] Speaker 04: Now, if you're an agency who's just here to assess whether the agency is reasonably foreseeing harm from this, this all needs to go into your analysis in deciding whether you reasonably foresee that harm would occur here. [00:50:24] Speaker 04: And I just think on this record, there is a significant material in the declarations describing that the agency reasonably perceives harm. [00:50:34] Speaker 04: And it talks about not just that these promises of confidentiality should be protected from like a [00:50:40] Speaker 04: you know, a legal abstract position, but also just it goes into the specifics as to look, if these promises are avoided, then we will have less cooperation. [00:50:51] Speaker 04: It is less likely that regulated entities will agree to provide the information that we need. [00:50:58] Speaker 04: And I'll note that the corporate compliance monitor really entities, but both. [00:51:04] Speaker 02: Oh, so the promises entity has a lot of incentive under [00:51:10] Speaker 02: a DPA. [00:51:10] Speaker 04: It does. [00:51:11] Speaker 04: But what I'll note is when the Deferred Prosecution Agreement was signed, it came with the Corporate Compliance Monitoring Agreement itself. [00:51:19] Speaker 04: And so in the document itself there, the promise was made that the reports would be kept confidential and full. [00:51:28] Speaker 04: So just from the get-go, it was. [00:51:30] Speaker 04: And so if that needs to be considered in assessing whether regulated entities will be more likely to provide information. [00:51:40] Speaker 04: And as this court said in Consumers Union, when it first really grappled with the text of Exemption 8 and Congress's purpose in the assessing the weighty interests involved, [00:51:51] Speaker 04: One of those key interests was safeguarding the relationships between financial institutions and the regulatory. [00:51:57] Speaker 02: So what about the question that I asked Mr. Match, which is, if we were to rule in his favor, can you see that as being limited to the situation of an indictment and a prosecution agreement? [00:52:16] Speaker 04: and and not where you're talking about clean bank examiner reports so so i do think we're at the heart of exemption eight here and there's a reason why my friend's opening brief and reply brief both confirm they're not disputing scope of exemption eight but as for the specific question there [00:52:37] Speaker 04: Look, the monitor was triple-hatted here. [00:52:41] Speaker 04: This was not just a monitor serving for DOJ in the context of the DPA, it is also the monitor serving for the UK Financial Conduct Authority and the monitor serving as an independent consultant for the Federal Reserve Board. [00:52:56] Speaker 04: So this monitor report is not just in the context of a deferred prosecution agreement, it's also being used by the Federal Reserve Board as it is regulating this entity. [00:53:08] Speaker 04: And so I would push back at the notion that this is a report that's outside the heart because of the Federal Reserve Board's triple-headed role here. [00:53:18] Speaker 02: But there's an incentive to cooperate here that might be less if there's no deferred prosecution agreement sort of damocles hanging over the regulated entities' heads. [00:53:31] Speaker 04: I mean, regulators of financial institutions have significant power over financial institutions in other contexts, too. [00:53:40] Speaker 04: But even if that were enough to somehow lessen the financial and the regulated entities' interests in that capacity, it wouldn't speak to the foreign regulator's interests. [00:53:53] Speaker 04: And those interests really only would apply in contexts similar to this. [00:53:58] Speaker 04: So I think any ruling that would be about [00:54:00] Speaker 04: that would risk sort of not getting enough weight to the foreign regulator's lofty interests here. [00:54:11] Speaker 02: Can you give me an example about the kind of thing a foreign regulator would be worried about? [00:54:14] Speaker 02: You did say, oh, they were given these assurances. [00:54:17] Speaker 02: What is going to be, how is there going to be mud on their trousers as a result? [00:54:23] Speaker 04: Yeah, so one of the things in, I believe it was the monitors affidavit was it was talking about how, look, some of these issues that the regulated entity was addressing, issues that needed to be fixed, were things that foreign regulators may have missed. [00:54:44] Speaker 04: in their supervisory review of the regulated entity. [00:54:50] Speaker 04: And so to the extent that that is that there is a significant risk in their own countries of getting sort of egg on their face. [00:54:58] Speaker 04: There's also the risk that they have many other financial institutions they regulate, many of which may have similar issues that haven't been rectified. [00:55:09] Speaker 04: And so they have a risk of harm to their [00:55:13] Speaker 04: own financial institutions that could cause, especially for a smaller country that doesn't have as strong of an economy, for instance, as the United States, could cause significant damage to those countries' interests. [00:55:29] Speaker 04: And so just, again, this goes back to whether the agency's reasonably foreseeing harm here. [00:55:35] Speaker 04: Once we have all these factors to consider, and we do think that those promises, those assurances of confidentiality in writing and orally need to be upheld. [00:55:52] Speaker 04: And we strongly believe that this report should be and was appropriately withheld in full. [00:55:57] Speaker 02: Talking about a 2015, [00:56:00] Speaker 02: report. [00:56:00] Speaker 02: Correct. [00:56:02] Speaker 02: A lot of water under the bridge. [00:56:04] Speaker 02: Is there any lessening of the anticipated harm? [00:56:09] Speaker 02: The entire bank system has changed, and I assume the deferred prosecution agreement has been concluded. [00:56:17] Speaker 04: So yeah, the criminal case is closed. [00:56:19] Speaker 04: That was closed in 2017. [00:56:22] Speaker 04: So what I'd say is, again, it goes back to the language in our declarations. [00:56:26] Speaker 04: And so the declaration specifically addressed whether the termination of that proceeding was sufficient to warrant a different result. [00:56:39] Speaker 04: And I'd point to AUSA Kessler's affidavit that noted [00:56:44] Speaker 04: In another context, on page 26, it said, it is the assessment of the prosecution team in an ongoing criminal prosecution being conducted by USAEOEDNY, which this was written well after the HSBC one was closed, that making the report public at this time would interfere with that prosecution. [00:57:03] Speaker 04: So there's still many other deferred prosecution agreements continue here regularly. [00:57:13] Speaker 04: The many of the issues, even issues that have been rectified, continue to plague other financial institutions, both in this country and abroad. [00:57:23] Speaker 03: One more me closest thing I saw to an explicit. [00:57:31] Speaker 03: Analysis of partial redactions on foreseeable harm was the monitors affidavit. [00:57:38] Speaker 03: And he said. [00:57:39] Speaker 03: Yes, you could. [00:57:43] Speaker 03: release a redacted report. [00:57:46] Speaker 03: But the problem with that is it might not be persuasive. [00:57:53] Speaker 03: That's the wrong legal standard for reasonably [00:57:58] Speaker 04: Certainly, Your Honor, but what the monitor was talking about was not the harms that are protected by Exemption 8, but just whether the monitor's own work would be hurt. [00:58:09] Speaker 04: That's only one part. [00:58:10] Speaker 04: So what the monitor said was, I have also considered the possibility that DOJ might file a redacted version of the report. [00:58:18] Speaker 04: I believe that a redacted report that does not negatively impact the monitor's work [00:58:23] Speaker 04: can be produced. [00:58:23] Speaker 04: So it's just talking about the monitors work in that one particular proceeding, but that, but exemption aid is broader than that and exemption aid is considering that. [00:58:32] Speaker 03: So you don't, you don't view that statement as addressed to the questions we've been discussing. [00:58:39] Speaker 04: well I think and I think the paragraph 7 through 12 right before that go through that the monitor who strongly was a strong proponent of the First Amendment right to access even the monitor said that this entire report should be withheld in full so you know this has been the government's consistent position [00:58:58] Speaker 04: for since the monitor, since this issue was first raised by a non-party in the EDNY proceeding, we have consistently held that this report should be withheld in full. [00:59:10] Speaker 04: And we think that on this evidence with these declarations, we have met our burden here. [00:59:17] Speaker 04: And I requested the court of her. [00:59:19] Speaker 02: Thank you. [00:59:20] Speaker 02: So we told Mr. Match, we would give him a couple of minutes for rebuttal. [00:59:26] Speaker 05: Thank you. [00:59:26] Speaker 05: I'll try to make a few points quickly. [00:59:28] Speaker 05: On the last point, Judge Katz, as you asked about the monitors, what the monitor was saying. [00:59:34] Speaker 05: If you look at the three paragraphs, three or four paragraphs above the one that you quoted, he described the precise three interests that DOJ is talking about in this case, protecting foreign regulators, maintaining bank security and confidentiality. [00:59:48] Speaker 05: It's clear that he viewed that as part of his work. [00:59:50] Speaker 05: So to say that, you know, that's not relevant because it was part of his work thing is to sort of miss the context of those passages. [00:59:57] Speaker 02: But I think the broader context that Mr. Dreier was pointing to is that he was considering this prosecution, not those interests at large as applied to the work of the government. [01:00:12] Speaker 05: I think he was. [01:00:13] Speaker 05: I mean, let me turn to the need to find the report in the declaration here. [01:00:22] Speaker 05: Yeah, but David. [01:00:23] Speaker 05: Yeah, sorry. [01:00:24] Speaker 05: It's a joint appendix. [01:00:25] Speaker 05: Yeah, 42 to 44. [01:00:26] Speaker 05: Thank you. [01:00:28] Speaker 05: So he's talking about, for example, paragraph 11. [01:00:31] Speaker 05: I believe that maintaining the confidentiality of the report is in the interest of an effective monitorship, because it's clear to me that confidentiality encourages cooperation from the employees of HSBC Group. [01:00:42] Speaker 05: That's true in the context of a monitorship and outside the context of a monitorship or a deferred prosecution agreement. [01:00:49] Speaker 05: On the foreign regulators, let me just read a couple of passages from their letters. [01:00:55] Speaker 05: Joint appendix 57, Hong Kong. [01:00:57] Speaker 05: The interest of the Hong Kong monetary authority in this matter is the Hong Kong Country Review Report. [01:01:04] Speaker 05: Malaysia, Joint Appendix 59. [01:01:08] Speaker 05: This is in paragraph two. [01:01:10] Speaker 05: It's referring to an assurance given to the Bank Negara Malaysia that any information gathered by the monitor from HSBC Malaysia would be used solely for the purposes of evaluating the effectiveness of internal controls, policies, and procedures of HSBC Malaysia. [01:01:25] Speaker 05: Again, Malaysia specific. [01:01:27] Speaker 05: And the UK regulator doesn't really say anything about its having received an assurance. [01:01:32] Speaker 05: I want to talk about the statute. [01:01:35] Speaker 05: It's incorrect to say that Congress saw Exemption 8 any differently from the other exemptions. [01:01:39] Speaker 05: The Senate report says something about that. [01:01:42] Speaker 05: The House report, of course, notes that a House member had attempted to amend the foreseeable harm requirement to not include Exemption 8. [01:01:48] Speaker 05: That amendment was withdrawn. [01:01:49] Speaker 05: So any legislative history here is ambiguous. [01:01:52] Speaker 05: Now, the Senate report also indicates that Exemption 5 was one of the concerns that Congress had here. [01:01:59] Speaker 05: Of course, if it wanted to apply the foreseeable harm requirement to exemption five, it would have done that. [01:02:06] Speaker 05: It didn't do that. [01:02:06] Speaker 05: It applied it applied it to all the discretionary exemptions. [01:02:10] Speaker 05: So all the ones under the other than exemption three on would not judge Rogers. [01:02:17] Speaker 05: I think that's a good point. [01:02:19] Speaker 05: I didn't catch the one that Mr. Dreier quoted in his argument. [01:02:24] Speaker 05: The one that they rely on their brief is on Joint Appendix 64 from the Mazer Declaration where she uses wood. [01:02:29] Speaker 05: That's a discussion of monitorships in general, not the monitor report at issue in this case. [01:02:34] Speaker 05: And so that doesn't meet the Reporters Committee burden of referring to the specific material at issue. [01:02:44] Speaker 05: I just want to close by pointing out that, again, we are not asking for the whole report. [01:02:49] Speaker 05: We're asking for parts of the report that DOJ has done no analysis to determine whether those specific parts of the report based on the interest it identifies are exempt. [01:02:59] Speaker 05: Disclosing any part of this report, which, remember, is very controversial when written, remains controversial today, [01:03:04] Speaker 05: even if small and innocuous, could go a long way toward promoting the accountability promised by FOIA and strengthened by the foreseeable harm requirement. [01:03:12] Speaker 05: If there are no more questions, I'd ask the court to reverse and remand for in-camera review. [01:03:17] Speaker 02: Thank you both very much. [01:03:18] Speaker 02: The case is submitted.