[00:00:01] Speaker 02: Case number 22-5304, Jason Leopold, at balance, versus J. Thomas Manger, Chief of United States Capitol Police, and Ronald Gregory, Acting Inspector General of the United States Capitol Police. [00:00:14] Speaker 02: Mr. Light for the at balance, Mr. Cohen for the at police. [00:00:24] Speaker 04: Morning, Mr. Light, you may proceed when you're ready. [00:00:28] Speaker 01: Good morning. [00:00:28] Speaker 01: Thank you and may it please the court. [00:00:30] Speaker 01: This is Jeffrey Light on behalf of Plaintiff Appellant Jason Leopold. [00:00:35] Speaker 01: Since there are several issues in this case, I wanted to begin by summarizing what it is that we're asking the court to do. [00:00:42] Speaker 01: For the subset of capital police directives that do not contain security information, we're asking the court to hold that under the first step of the common law test, the directives are public records. [00:00:54] Speaker 01: And at the second step, to remand for the district court to decide whether portions of the directive can be segregated and released. [00:01:03] Speaker 01: For the documents that do have security information, and this includes some of the directives and some of the IG material, we're asking that this court to hold that there is a segregability requirement [00:01:15] Speaker 01: in Section 1979 and remand for the defendants to explain whether there is any non-security information that can be segregated and released. [00:01:26] Speaker 01: We're not asking the court to determine whether the district court or the Capitol Police erred in their judgment in terms of what's security information or not. [00:01:38] Speaker 01: We're asking simply for the court to resolve a question of statutory interpretation for 1979. [00:01:44] Speaker 01: That is, whether it applies to documents or information. [00:01:50] Speaker 01: And finally, as to the IG reports, [00:01:52] Speaker 01: We're requesting a reversal and in order that the government comply with the IG Act public posting requirement. [00:02:00] Speaker 01: Again, the court only needs to resolve the statutory question as to whether the public posting requirement applies to the Capitol Police. [00:02:10] Speaker 01: On remand, the Capitol Police would be free to assert Section 1979 or any other privileges that they may have to portions of the IG report. [00:02:21] Speaker 01: And to begin with, I wanted to start with the issue of whether the directives are public records. [00:02:29] Speaker 01: And we think that there's a pretty straightforward definition in WLF 2, which is that you look at whether the statements were created to memorialize a decision or statement that has legal significance. [00:02:47] Speaker 01: And the Capitol Police directives meet that test here. [00:02:51] Speaker 01: One of the ways in which the term legal significance can apply is that it's binding on a party. [00:03:00] Speaker 01: And here it's binding, these directives are binding on the Capitol Police and its employees. [00:03:06] Speaker 01: The government contends that legal significance only counts if it's binding on members of the public. [00:03:14] Speaker 01: But there's no authority and no suggestion in WLF 2 that that's the case. [00:03:19] Speaker 01: And in fact, it cuts against the wording in WLF 2 that the term legal significance should be broadly construed. [00:03:29] Speaker 01: The government also in the district court rely on their argument that the directives are preliminary. [00:03:36] Speaker 01: But in WLF 2, this court never really explained where it got the word preliminary from. [00:03:44] Speaker 01: or why it was incorporating that into its decision and but I think it's worth taking a moment to ask why preliminary materials are not covered by the common law right of access and in a whole variety of areas of law. [00:04:01] Speaker 01: Preliminary disclosure of preliminary materials tends to inhibit candid discussion, reveal an individual's raw thoughts might often be incorrect. [00:04:13] Speaker 01: And this stands in contrast to official final policies. [00:04:19] Speaker 01: California Supreme Court and some subsequent cases there actually looked at WLF 2 and its use of the phrase preliminary material and elaborated on that to a great extent and looked at [00:04:36] Speaker 01: factors such as whether the material is tentative or interlocutory, whether it reflects the raw and immature thoughts of the authors, and none of those in addition to preliminarily apply here. [00:04:51] Speaker 04: If we were to agree with you that the written directives of public record, then we would proceed to the balancing test to determine whether the district court abuses discretion in concluding that the balance of interest weighed against disclosure and [00:05:16] Speaker 04: And I think you've argued that at least the district court should have had some kind of further information, bond index style, about the nature of these directives. [00:05:30] Speaker 04: Is that uncharted waters? [00:05:33] Speaker 04: Have we ever, in this kind of a context, made that kind of demand? [00:05:39] Speaker 01: In WLF 1, the court remit [00:05:41] Speaker 01: remanded for a Vaughan-like index to be prepared. [00:05:47] Speaker 01: But I think it's just a sort of basic premise of the adversarial process that both parties have access to the information that's needed to mount an effective argument, and that the district court have the information before it to make a reasoned decision, and then that the appellate court has a record basis on which to [00:06:11] Speaker 01: determine whether to affirm. [00:06:14] Speaker 01: So there are a lot of FOIA cases which discuss this. [00:06:19] Speaker 01: And it applies here not this obviously isn't a FOIA case, but FOIA occupies a universe where there's a great imbalance between the information that the [00:06:30] Speaker 01: parties have and the purpose of the Vaughan index is to remedy that to some extent so that the adversarial system can play out. [00:06:39] Speaker 01: The same is true here. [00:06:40] Speaker 04: I have another just going back to the very beginning. [00:06:45] Speaker 04: The complaint in this case invoked only the mandamus jurisdiction 1361. [00:06:52] Speaker 04: And if we were to agree with the other circuits that have held, that's not a viable basis for subject matter jurisdiction and loss against officials in the legislative branch. [00:07:03] Speaker 04: Is that alone a reason that we would have to dismiss your claim? [00:07:08] Speaker 01: Your case? [00:07:09] Speaker 01: No, I think that [00:07:11] Speaker 01: It's largely an academic matter whether jurisdiction is proper under the mandamus act or the general federal jurisdiction question. [00:07:21] Speaker 01: And the reason I say that is because when in Swan v. Clinton, the general federal jurisdiction statute was said to [00:07:36] Speaker 01: have been essentially properly relied upon, but that it's the equivalent of an injunction under the general federal jurisdiction statute is roughly the equivalent of seeking a writ of mandamus. [00:07:51] Speaker 01: And since this case was dismissed, of course, without prejudice, the effect of doing that would simply be for plaintiff to refile the exact same case [00:08:03] Speaker 01: adding in the general federal question statute as a reference. [00:08:10] Speaker 01: And I don't think that would be in the interest of judicial efficiency to proceed. [00:08:15] Speaker 00: But it's not just a matter of pleading. [00:08:17] Speaker 00: It's a matter of what do you have to show to properly invoke subject matter jurisdiction. [00:08:27] Speaker 00: You have to show, declare an indisputable right to relief, [00:08:32] Speaker 00: um, no other remedy available and clear duty to act. [00:08:37] Speaker 00: And then if you meet all three of those, you still got to show that, you know, um, equitable under the court's equitable, um, discretion, it should order to read. [00:08:50] Speaker 00: So how are we in the, in the realm of clear and indisputable right to relief or clear duty to act? [00:09:00] Speaker 01: So I agree with you that those mandamus standards are applicable here. [00:09:05] Speaker 01: And there's no question that there's no alternative form of relief here, number one. [00:09:14] Speaker 01: And I guess the real nub of the question then is, number one, is there a right to relief, which goes to the merits, and number two, [00:09:28] Speaker 01: Is this right so clear and indisputable? [00:09:31] Speaker 01: And on that prong, I think that it is important to look at the specific relief that we're asking for here, because I would agree that if this was merely an error of judgment on the part of the [00:09:52] Speaker 01: Capitol police and determining what to release and what not to release that probably would not meet the mandamus test. [00:09:59] Speaker 01: But what we have here is a question of statutory interpretation for 1979. [00:10:06] Speaker 01: And we also have for the common law issue a question of law as to what is even required. [00:10:15] Speaker 01: Once this court sets forth what the proper standard is, it may be that there is no dispute at all. [00:10:22] Speaker 01: In fact, that the parties agree as to what material is properly released and not. [00:10:29] Speaker 01: But since the [00:10:30] Speaker 00: uh capital police haven't applied the proper standard in the first place that is this well let's suppose let's suppose the capital police referred the matter to you know their general counsel others and they issued a written finding that you know we've balanced everything under all of the relevant precedent and they cite all of the the the cases and common law right of access [00:10:58] Speaker 00: And we believe that under that balance, none of these documents should be disclosed. [00:11:05] Speaker 00: What do we do with that? [00:11:07] Speaker 00: What happens under those facts? [00:11:10] Speaker 01: Well, we're not at that stage yet. [00:11:15] Speaker 01: And I think it's important that we not get [00:11:20] Speaker 01: get too far. [00:11:21] Speaker 00: That's a hypothetical question. [00:11:23] Speaker 00: I'm just trying to understand the ramifications of your argument here. [00:11:29] Speaker 01: I understand. [00:11:30] Speaker 01: It's going to depend a lot on the context in which that comes up. [00:11:34] Speaker 01: Because if the police make a decision where they take into account segregability and do all the balancing and whatnot and come up with a decision and [00:11:50] Speaker 01: that error that we see is just one of judgment or discretion, then there's nothing we do at that point. [00:11:58] Speaker 01: We lose at that point. [00:11:59] Speaker 04: I thought I just heard you a couple of minutes ago say that the claim is under 1979. [00:12:08] Speaker 04: I thought that was an obstacle to your case because it supplants the common law right of access as the documents that are designated as security information. [00:12:21] Speaker 01: I'm not sure if maybe if I misspoke on it. [00:12:28] Speaker 01: Our claim is brought under the Mandamus Act, the general common law right of access and the general federal question jurisdiction. [00:12:43] Speaker 01: But to USC 1979, the purpose of it here is that [00:12:50] Speaker 01: That is the grounds for withholding, and both the District Court and the Capitol Police made an error of law in interpreting it. [00:13:00] Speaker 01: And so under this court's doctrine of non-statutory judicial review, [00:13:06] Speaker 01: We are, we have asked for review of that agency decision. [00:13:11] Speaker 04: Obviously, you're saying that I'm sorry, go ahead. [00:13:14] Speaker 01: Obviously, obviously, in most cases, the APA applies. [00:13:17] Speaker 01: And so the non statutory judicial review is maybe not as familiar doctrine, but it has largely the same elements as a writ of mandamus. [00:13:28] Speaker 04: But when you say that the Capitol Police erred in applying 1979, you mean that they wrongly designated documents as security information? [00:13:43] Speaker 01: Sort of. [00:13:44] Speaker 01: What I'm arguing is that they interpreted the statute to mean documents can be withheld and they don't need to be segregated, even though the statute [00:13:58] Speaker 01: specifically says information. [00:14:01] Speaker 01: And because of that incorrect interpretation of the statute, they never decided in the first instance whether there is any information that can be released. [00:14:13] Speaker 04: Is that claim really in your complaint? [00:14:20] Speaker 04: As I understand it, that would be a claim for failure, a claim arising under, or under 1331, but for failure to appropriately apply 1979, not a claim for right of access. [00:14:39] Speaker 01: Is that too technical in your view? [00:14:41] Speaker 01: Well, the Capitol Police hadn't invoked 1979 is the time the case was filed. [00:14:47] Speaker 01: That's something that happened [00:14:49] Speaker 01: at the summary judgment stage or the motion to dismiss stage. [00:14:54] Speaker 01: So that was the first opportunity we had to explain why we thought that we had a right to challenge the decision that they made. [00:15:04] Speaker 04: And as I understand the way the Congress is using it is or the Capitol Police is using it is not that you then get to inquire how they're administering that regime. [00:15:18] Speaker 04: But that that is the substitute regime. [00:15:21] Speaker 04: And therefore, it supplants the common law right of access wholesale. [00:15:30] Speaker 04: It doesn't infuse it or inform it. [00:15:33] Speaker 04: It supplants it. [00:15:34] Speaker 04: And if that's right, then where it applies, it preempts. [00:15:43] Speaker 04: the Congress itself gets to decide what counts as security information according to its specified procedures? [00:15:50] Speaker 01: I mean, I think that's right to an extent, which is that where the statute applies, that is where there is actually security information, it preempts or supplants the common law. [00:16:04] Speaker 01: But the question in the first instance, right, did Congress say that security information [00:16:13] Speaker 01: can be withheld or that non-security information can be withheld simply because it's in a document that contains security information. [00:16:24] Speaker 01: Congress didn't say that. [00:16:26] Speaker 04: But isn't the Capitol Police position, and I understand you object that it's a blunderbuss position, but isn't their position that these directives are security information? [00:16:40] Speaker 01: They are saying that they are security information and that they contain sensitive security information. [00:16:49] Speaker 01: They've never said that every single word in these documents [00:16:55] Speaker 01: cannot be released because of security information. [00:16:58] Speaker 01: In fact, we have put in the record an example of one or two that had been publicly released. [00:17:05] Speaker 01: And so the court can see these different sections laid out. [00:17:08] Speaker 01: Perhaps some of the sections go into some issues that will involve security information. [00:17:15] Speaker 01: Some of them are more preliminary. [00:17:19] Speaker 01: You know, the balancing of those different sections is something for the court to decide at step two of the common law right of access, but as far as the question is, is it if. [00:17:31] Speaker 04: 1979 supplants the common right of action. [00:17:36] Speaker 04: And then the question of what is the appropriate granularity or what's the appropriate unit size of what is security information, is it really for the court to say or is that something that is for the US Capitol Police to say under its procedures, under its regime? [00:17:58] Speaker 01: Well, look, I think if the Capitol Police said we went and we reviewed line by line every directive that we said contained security information, and we determined that all of it is security information, then I think that's correct. [00:18:17] Speaker 01: There's nothing left for the court to do. [00:18:20] Speaker 01: But that's never happened, right? [00:18:23] Speaker 01: What we're asking for here as a remedy is that the Capitol Police be ordered to, and maybe it doesn't have to be line by line, maybe it can be section by section, but that they review and determine whether there is anything they think is non-security information that can be released. [00:18:40] Speaker 01: And in fact, that's something that they've done in the past when Congress has [00:18:47] Speaker 01: wanted to release information about January 6, the Capitol Police then went back to the board and sort of discussed whether this can be released. [00:18:56] Speaker 01: So this is very much in their ability to do. [00:19:05] Speaker 01: If they had issued a statement like you see in a typical FOIA case that says, we've reviewed and we've determined that no [00:19:15] Speaker 01: Segregable information exists, and here's why. [00:19:18] Speaker 01: Then I agree that would be the end of it. [00:19:21] Speaker 01: That just hasn't happened here. [00:19:23] Speaker 00: Can you cite to any authority for a court in a common law right of access case to order the official to basically enforce the segregability requirement? [00:19:40] Speaker 01: So I think particularly instructive on this is this court's decision last year in in Ray LA Times, which is 28 F fourth to 92. [00:19:52] Speaker 01: Because in that case, this court found that the district court court had aired by refusing to consider redaction as an alternative to complete withholding under the common law right of access. [00:20:05] Speaker 01: And prior to that in 2021, this court issued a decision case called CNN versus FBI. [00:20:14] Speaker 01: And in that case, which involved the common law right of access, the district court had applied the Hubbard factors and had done that in a way that it applied them to all of the documents that were at issue in litigation or alternatively documents as a whole. [00:20:32] Speaker 01: And this court reversed and remanded and said, no, you need to look at the precise portions that are redacted versus not redacted and make a determination as to those granular pieces of information. [00:20:47] Speaker 01: What is the public's right of interest? [00:20:49] Speaker 01: What are the secrecy needs on that level of granularity? [00:20:53] Speaker 04: Let me ask you about your efforts to get the OIG reports under 1909. [00:21:02] Speaker 04: There, you take this dynamic incorporation of the Inspector General Act as your starting point. [00:21:14] Speaker 04: But even if we agree with you on that, [00:21:21] Speaker 04: Does 404E1C mandate the same disclosure? [00:21:31] Speaker 04: Because it has this caveat that nothing in this subsection shall be construed as authorizing an inspector general to publicly disclose information otherwise prohibited from disclosure. [00:21:44] Speaker 04: by law. [00:21:45] Speaker 04: And as we've been talking about, 1979, as implemented by order 1716, according to the Capitol Police, prohibits the disclosure of all OIG information. [00:22:01] Speaker 04: So the caveat in the dynamically incorporated portion of the Inspector General Act seems to give up [00:22:14] Speaker 04: the ground. [00:22:16] Speaker 01: So I agree in part, there is that provision that, you know, not withstanding other provisions of law, which I think would properly incorporate section 1979. [00:22:29] Speaker 01: That is, if portions of the IG reports contain security information, then the Capitol Police would be able to withhold those portions of them. [00:22:41] Speaker 01: But the [00:22:42] Speaker 01: Order that was issued never said that. [00:22:45] Speaker 01: And in fact, when plaintiffs argued in our brief, we tried to explain why we thought that there were portions of the IG report that were not security information. [00:22:58] Speaker 01: The defendant didn't disagree with that and wrote in their motion that the order allows for the withholding of not just security information, but all IG information. [00:23:09] Speaker 01: So the question then is, is this order [00:23:12] Speaker 01: on par with the law as understood in the Inspector General Act. [00:23:23] Speaker 01: And I think it's important to recognize here that under 1979, there is a provision for the Capitol Police to implement regulations. [00:23:34] Speaker 01: And there's a process they need to go through that to promulgate formal regulations, which they did not do in this case. [00:23:40] Speaker 04: So you're arguing that the otherwise prohibited from disclosure by law, that the order 17.16 is not law within the meaning of that caveat? [00:23:54] Speaker 01: That's correct. [00:23:54] Speaker 01: If it were otherwise, then every agency out there could simply say, we direct that the inspector general not publish their reports, which would defeat the entire purpose of this amendment to the inspector general report. [00:24:08] Speaker 01: In fact, [00:24:09] Speaker 01: does sort of seem potentially the case that that's what happened here, that in response to the Congress amending the Inspector General Act that shortly thereafter this order came out that said no, the public posting requirement will not be honored. [00:24:35] Speaker 04: Is that argument in the brief? [00:24:37] Speaker 01: I made it to the district court. [00:24:40] Speaker 01: I did not reiterate it to this court. [00:24:43] Speaker 01: I don't think it's an essential part of our position. [00:24:47] Speaker 01: I just thought it would add some context. [00:24:55] Speaker 01: I just also wanted to, on the Larson Dugan question, I just had one thing I wanted to add if there aren't any other questions, if that's all right. [00:25:07] Speaker 04: Take a moment. [00:25:08] Speaker 04: I think we've taken you far over your time and we're ready to hear from the government. [00:25:13] Speaker 04: But if you have one point you want to make about Larsson Dugan, we'll hear it. [00:25:18] Speaker 01: Just this, that the questions earlier relating to that from the previous case where counsel had referred to the two possibilities, statutory authority versus unconstitutional act, [00:25:36] Speaker 01: To be very concise, what the Supreme Court was doing with that language was distinguishing between ultra virus acts and merely torsious conduct. [00:25:46] Speaker 01: And the way that we've set up this case, we are alleging that there is ultra virus conduct in the failure to follow the clear language of the statute, which [00:25:57] Speaker 01: only gives authority to withhold under 1979 things that are security information and under the common law, which under WLF 2, it merges with the merits. [00:26:14] Speaker 04: Thank you. [00:26:15] Speaker 04: We'll give you the rebuttal that you've requested. [00:26:18] Speaker 01: Thank you. [00:26:22] Speaker 04: We'll hear now again from Mr. Pollum. [00:26:28] Speaker 05: All right. [00:26:29] Speaker 05: Good morning again. [00:26:31] Speaker 05: Again, I'm happy to answer any questions on the arguments made in the brief. [00:26:39] Speaker 05: But a lot of the colloquy I just heard focused on section 1979. [00:26:44] Speaker 05: So I thought I'd start there to just underscore how this statute works. [00:26:55] Speaker 05: 1979 is a limitation on the board authority to release certain information. [00:27:02] Speaker 05: It does not provide anyone with a right of access. [00:27:05] Speaker 05: It does not require the board to release anything at all. [00:27:10] Speaker 05: And it certainly does not have a segregability requirement such as is present in FOIA. [00:27:17] Speaker 05: So to the extent that [00:27:19] Speaker 05: The plaintiff is trying to bring some kind of non-statutory review claim, which, as I think the court noted, was not in the complaint. [00:27:32] Speaker 05: This clearly would not meet the requirements for non-statutory review, because there's been no clear and palpable transgression of a statutory command here. [00:27:47] Speaker 05: So I think really that is just not something the court needs to worry about because it does not fit within that category, even if it were properly pled here. [00:28:00] Speaker 04: In the record, Mr. Poland, there's a reference to the designation of information as security information. [00:28:13] Speaker 04: Oh, I'm sorry. [00:28:14] Speaker 04: On the non-security information directives, it's done by who? [00:28:19] Speaker 04: Who actually makes these determinations? [00:28:23] Speaker 04: There's a reference to some team that I'm referring to? [00:28:27] Speaker 00: Yes. [00:28:28] Speaker 04: So I think review team. [00:28:30] Speaker 04: I wonder who they are, and how do we know that they legitimately have unreviewable discretion to make these determinations? [00:28:41] Speaker 05: My understanding is that these were kind of government officials within the Capitol Police Organization. [00:28:54] Speaker 05: I'm not sure exactly where or what their precise titles were, but they were within the Capitol Police. [00:29:02] Speaker 05: And I think the, as your honor indicated, our argument here is that the way 1979 is structured, it gives the [00:29:13] Speaker 05: decision to the capital police organization to make these decisions. [00:29:18] Speaker 05: And information can be released only if the board makes a specific determination. [00:29:24] Speaker 05: And that determination certainly wasn't made here. [00:29:30] Speaker 05: There's no allegation that the board determined that certain information could be released and that that information was not provided. [00:29:40] Speaker 05: But again, this statute just is not set up as an equivalent to FOIA or an equivalent to any kind of access providing statute. [00:29:52] Speaker 05: So I think any reliance on 1979 is kind of misplaced here. [00:29:58] Speaker 05: A couple of other [00:30:03] Speaker 05: points I'd like to hit. [00:30:07] Speaker 05: With respect to redaction, I think there was a question on whether a court has ever required a coordinate branch to redact its documents under the common law right of action. [00:30:22] Speaker 05: I'm familiar with one of the cases that [00:30:25] Speaker 05: plaintiff's counsel cited the CNN versus FBI case. [00:30:28] Speaker 05: And that involved judicial records. [00:30:31] Speaker 05: And I think that the Supreme Court recognized in Nixon, when it first talked about the common law right of access, it said that courts have supervisory authority with respect to their records. [00:30:44] Speaker 05: This court made a similar point in Ray Leopold, where it said that [00:30:50] Speaker 05: the question is, uh, decisions about access and providing public access to judicial records is the responsibility of the judicial branch. [00:30:57] Speaker 05: The judicial branch does not have supervisory authority over the record keeping practices of coordinate branches, nor is it responsible for, um uh, determining questions of access and transparency. [00:31:09] Speaker 05: Those questions are up to, uh. [00:31:19] Speaker 04: that's been pointed to that would wholesale establish an alternative regime or a supplanting regime. [00:31:26] Speaker 05: That's right. [00:31:27] Speaker 05: I mean, the only kind of wholesale regime is FOIA, which deliberately excludes Congress from its scope. [00:31:34] Speaker 04: I guess the federal rule, we have the Dow case where the criminal rule displaces the common law. [00:31:42] Speaker 04: That's right. [00:31:42] Speaker 04: Right of access. [00:31:44] Speaker 05: That's right. [00:31:46] Speaker 04: But to the extent that Mr. Light is arguing that the documents have been wrongly designated as security information, why isn't that part of his claim? [00:32:00] Speaker 04: It's sort of saying that the extent that the Capitol Police are relying on 1979, they're [00:32:11] Speaker 04: exceeding its bounds. [00:32:13] Speaker 04: They're basically acting ultra-viruses under it. [00:32:17] Speaker 05: Yeah, so I think two points here. [00:32:19] Speaker 05: One, I don't think that that statute could provide, as I said before, I don't think that statute could provide a kind of grounding for an ultra-virus analysis because there's no restriction in that statute, clear restriction that's been violated. [00:32:35] Speaker 05: This sounds very much like an error in the application of the statute, which does not amount to ultra-virus. [00:32:45] Speaker 05: And with respect to the alleged error, what I heard counsel to say this morning was that he doesn't disagree with [00:32:55] Speaker 05: designations of, like identification of security information. [00:33:01] Speaker 05: What he disagrees with is the level of granularity so that it can't be done on a document basis. [00:33:09] Speaker 05: In other words, he says, if there is something that counts as security information in a document and there is other information that on its own would not be security information, then you can't say that whole document is security information. [00:33:24] Speaker 04: And he actually has pretty robust authority for the notion that across the US code that there's a different treatment of, especially in disclosure statutes, of documents [00:33:39] Speaker 04: versus information, and that when Congress uses information, it does typically mean information within a larger unit. [00:33:48] Speaker 04: So I think that's his argument. [00:33:50] Speaker 05: Again, this depends on, I think largely this is driven by comparisons to FOIA, which is a statute that buys a right of public access [00:34:01] Speaker 05: imposes on the agency a burden to demonstrate that information falls within a particular exemption, and then has a segregability requirement saying, OK, even if you satisfy your burden under exemptions, you still have to segregate and release the rest. [00:34:18] Speaker 05: Section 1979 doesn't have any of those features. [00:34:23] Speaker 05: No right of access, no segregability, [00:34:28] Speaker 05: it's not making any kind of distinction between information and records as a whole. [00:34:35] Speaker 04: And I think- If we think about, as I was suggesting to Mr. Lai, if we think about 1979 as a different regime that supplants the common law right of access, by its terms, it is limited to security information. [00:34:55] Speaker 04: It just is. [00:34:55] Speaker 04: It only speaks to it. [00:34:56] Speaker 04: It doesn't speak more generally to information within the custody of the Capitol Police. [00:35:01] Speaker 04: It says, after the definitions for substantive provision, is any security information in possession of the Capitol Police may be released only if the Capitol Police Board determines that the release will not compromise security. [00:35:18] Speaker 04: And so if you think of the sort of footprint of 1979 as limited to security information, then it doesn't displace the common law right of access with respect to information that is not security information. [00:35:35] Speaker 04: So it is the statute's own edge that allows Mr. Light's claim to go forward on that argument. [00:35:45] Speaker 05: I mean, I'm not sure that's the best way to look at that here because it is, because of the many different ways it displaces the common law, one by providing a default of secrecy, one by setting- As to security information, the only information it addresses [00:36:10] Speaker 05: But it doesn't say what the kind of level of granularity is. [00:36:14] Speaker 05: And there are some regimes, for example, classified information, you can have a 10 page document. [00:36:20] Speaker 05: And if there's one paragraph that's classified, that document is classified for purposes of the proper executive order. [00:36:28] Speaker 05: Now there, you know, [00:36:31] Speaker 05: FOIA comes in with a segregability requirement that is separate. [00:36:35] Speaker 05: So I'm saying there are systems where we treat documents holistically. [00:36:40] Speaker 05: And I think that's what security information is doing here. [00:36:45] Speaker 04: And your best textual argument in response to Mr. Light's argument that this statute itself tells you the level of granularity by using, and I believe only using, the term information. [00:37:01] Speaker 04: And although it gives the Capitol Police Board authority to promulgate regulations, we don't have a regulation that interprets this term. [00:37:12] Speaker 04: That's right. [00:37:13] Speaker 05: But I think the statute also displaces a court from making the determination. [00:37:21] Speaker 05: I mean, this statute is kind of suffused with deference and discretion to the Capitol Police to decide what is sensitive, which is inherently [00:37:33] Speaker 05: discretionary and judgment laden call. [00:37:36] Speaker 03: So do you go so far as to say that the determination of security information is not ever subject to review? [00:37:44] Speaker 05: I think that's right. [00:37:45] Speaker 05: There's no provision of judicial review in section 1979. [00:37:49] Speaker 05: The Capitol Police and its board are not agencies under the APA, so you can't seek judicial review that way. [00:37:58] Speaker 05: Council has said, well, we can get non-statutory review. [00:38:01] Speaker 05: And I think I explained why we don't think that applies here, because there is nothing in this, no command in this statute that has been clearly [00:38:11] Speaker 05: disregarded. [00:38:14] Speaker 05: I mean, this court's test for non-statutory review is really quite strenuous, quite rigorous. [00:38:23] Speaker 05: It has to be kind of no authority whatsoever, not a garden variety claim error, and jurisdictional or nearly so. [00:38:34] Speaker 05: Court has recent cases, Federal Express, the Changi case. [00:38:40] Speaker 05: That's a very, very high bar. [00:38:42] Speaker 05: And I don't think that there's anything in this statute that could ground ultravarious review. [00:38:49] Speaker 05: Happy to answer any other questions about sovereign immunity that we didn't get to, or the scope of the common law right of access that we believe does not extend to documents in the legislative branch. [00:39:01] Speaker 05: Otherwise, happy to rest on our brief. [00:39:04] Speaker 04: Thank you. [00:39:05] Speaker 05: Thank you. [00:39:10] Speaker 04: Mr. Light, we'll hear from you briefly on rebuttal. [00:39:15] Speaker 01: Thank you, Your Honor. [00:39:15] Speaker 01: There's a lot of moving pieces here, but the issue of what I've been calling segregability seems to be at the heart of a lot of it. [00:39:26] Speaker 01: And so I wanted to explain just a little bit more what I mean by that. [00:39:31] Speaker 01: In terms of the common law, when a document is a public record, [00:39:37] Speaker 01: than a presumptive right of access attaches to it, at which point the government can overcome that by showing the need for secrecy and balancing takes place. [00:39:52] Speaker 01: But the default is that public records in this country are to be disclosed. [00:39:58] Speaker 01: And so that's the starting point, right? [00:40:01] Speaker 01: 1979 then comes along and is in derogation [00:40:07] Speaker 01: of that common law, right, and so to the extent it applies, it will displace the common law. [00:40:15] Speaker 01: However, we need to be careful to read it exactly as Congress wrote it. [00:40:21] Speaker 01: And this is not an instance of field preemption or something like that, where there's a statute that completely displaces the entire common law regime. [00:40:33] Speaker 01: This is just a single non-disclosure statute. [00:40:37] Speaker 01: It tells the court when things that would otherwise be disclosable should not be disclosed. [00:40:44] Speaker 01: But if the statute doesn't apply and the government can't meet its burden on the second part of the test, then it needed to be disclosed. [00:40:58] Speaker 00: But to the extent that you prevail, you have to still show us that there's [00:41:11] Speaker 00: kind of a clear and indisputable right to relief. [00:41:15] Speaker 00: I mean, what we've said before, you know, last term in Illinois v. Ferraro, the Equal Rights Amendment case, we said, you know, even if a plaintiff has a, you know, a legal argument with some force, that doesn't get you over the mandamus threshold. [00:41:38] Speaker 00: it's got to be an argument that is indisputable. [00:41:43] Speaker 00: Do you agree that that's a standard you have to meet? [00:41:47] Speaker 01: Yes, but the standard is once, I mean, with respect to section 1979, the standard is once the statute is construed, the right needs to be clear and irrefutable. [00:41:59] Speaker 01: So our argument here is that the court should construe the statute and [00:42:04] Speaker 01: remand for the district court to determine if at that point it is clear and indisputable. [00:42:11] Speaker 01: As for the common law issue, whatever the government may be wishing to do later, at this stage, you're bound by WLF 2, which says the ultra-virus question merges with the merits of the common law right of access. [00:42:34] Speaker 01: And so, um, that is the equivalent test to mandamus, um, the clear and indisputable right of access. [00:42:43] Speaker 01: It's ultra virus. [00:42:45] Speaker 01: Um, and you meet all the other tests of mandamus you're entitled to relief. [00:42:52] Speaker 00: Um, mandamus says it's non-ministerial. [00:42:58] Speaker 01: That's right. [00:43:00] Speaker 00: Um, [00:43:02] Speaker 00: Is that the same thing as ultra virus? [00:43:06] Speaker 00: It doesn't seem like. [00:43:09] Speaker 01: Those are two separate things, right? [00:43:11] Speaker 01: But the disclosure of a document is a ministerial act. [00:43:17] Speaker 01: We're not asking for the court to order the police to determine what a reasonable rate is for a freight carrier, right? [00:43:28] Speaker 01: We're asking the ministerial act to give us this document. [00:43:37] Speaker 00: Thank you. [00:43:38] Speaker 01: Okay. [00:43:39] Speaker 04: Thank you. [00:43:39] Speaker 04: The case is submitted. [00:43:40] Speaker 01: Thank you.