[00:00:01] Speaker 00:
Case number 22-5209, judicial watch at balance versus United States Department of Justice.

[00:00:08] Speaker 00:
Mr. Peterson for the balance, Mr. Stapleton for the ability.

[00:00:11] Speaker 03:
Good morning.

[00:00:17] Speaker 04:
Please proceed.

[00:00:18] Speaker 04:
Good morning, Your Honor.

[00:00:19] Speaker 04:
It's James Peterson for Hellen Judicial Watch, Inc.

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This case is about an extraordinary government intrusion into the private lives of Americans.

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Unsurprisingly, the government is trying to hide its actions.

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Credible evidence indicates that early in its January 6 investigation, the FBI sought and received records, financial records of anyone who used a credit card or engaged in financial transactions in the D.C.

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area on January 5, 2021.

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This case seeks records to determine if such a wildly improper sweep of financial records of innocent Americans occurred.

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Instead of responding to the FOIA requests in this matter, the FBI is hiding behind the ever more frequently used and frequently asserted and abused low-mark doctrine.

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In fact, the FBI claims that affirming or denying the existence of records... I'm just curious, counsel, what's the support for your claim that the FBI has been abusing?

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Well, you can see that over the years the GLOMAR has been increasingly used by the agency

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We see our practice or it more work decisions every every year in my records.

[00:01:47] Speaker 02:
I only look back 10 years.

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I only see 2 cases where we.

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They catered.

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You know more.

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But there are more in the district court than there have ever been.

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They weren't reviewed by this court, right?

[00:02:03] Speaker 04:
In this court cases that make it to this court, so far, yes.

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But what were those cases?

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It was ACLU versus CIA, and the government made an increasingly preposterous claim.

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Well, and we reversed that.

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We denied it.

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But that's two in 10 years.

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I'm just curious about your claim that they're increasingly abusing it.

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Right.

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I just wonder where that's from.

[00:02:29] Speaker 04:
Well, there are published studies that would be happy to supplement.

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That's OK.

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I'm just you've said enough.

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Go ahead with you.

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But what the FBI is really doing is refusing to confirm or deny by using the Glomar that it conducted this improper fishing expedition into financial records.

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Glomar claim in this case, however, is not consistent with the language or legislative purpose of FOIA.

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or the Glomar Doctrine.

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There is no law enforcement technique that will be revealed as using financial records, as the FBI admits, is a well-known investigatory technique to Americans.

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There is no danger that any secret or

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procedure or other information will be revealed.

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Excuse me, but there's an affidavit from the agency which says that, which is directly contrary to what you just said.

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It said that there are I think over 300 cases still open.

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And if they admit or deny the existence of this, it could influence some of all of those cases.

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Well, you need to stick to the record.

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You've got a declaration from the agency saying that that revealing this information could jeopardize up to 300 cases, current cases.

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We have a conclusory self-serving declaration.

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Wait, why is that conclusory and self-serving?

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That's stated under oath by the FBI about 300 cases.

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Now, what is conclusory or

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I do mean self-serving that it's supportive of the FBI's case.

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Is that what self-serving means?

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And that's it.

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Yes.

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I see.

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So any every piece of any affidavit is self-serving in any.

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Well, in this case, a person wouldn't propose evidence for work when they help.

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And this court would have no role here if it was if it was simply going to accept every every statement made.

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So what's conclusory about it?

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by simply saying that it will affect these open investigations.

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Well, doesn't that sound right?

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The standard is, has the FBI shown a logical connection, right?

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That's what they have to show.

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Because we don't know for sure.

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Doesn't it seem quite logical that if potential defendants know about this process, that they could take action to cover their tracks?

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Well, more precisely.

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What's the matter with that logic?

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More precisely, Your Honor, excuse me, the question is, as to a reasonable person.

[00:05:10] Speaker 02:
No, no, no.

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Please answer my question.

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The standard is that logic is actually the word I think our court has used, right?

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Does it make sense?

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Is it logical that the FBI's, that it could be that this could jeopardize ongoing law enforcement activities?

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And I'm asking, what's illogical about that claim?

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But what is logical is the idea that targets of the January 6th invests any person that may have been tangentially involved or any American at all is unaware that the FBI uses financial records.

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How about one of the 300 people who's under investigation?

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I'm sorry?

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I said, how about one of the 300 people who is still under investigation?

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How about one of them?

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But the question is, to a reasonable person, is it logical or plausible that the FBI might use financial records?

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The FBI admits that it's well known.

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There's nothing secret about its use of financial records.

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It's obvious to any person that's ever seen a crime.

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But your FOIA request

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It's not about whether you use financial records.

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And I grant you that there's lots of information in the public domain from the criminal prosecutions that they have used from the financial records.

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Get financial records by search warrant.

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They can get them by going through the trash.

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You can get them by subpoenaing the accountant

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by the wife or someone else with possession custody or control turning them over by a defendant voluntarily providing them.

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There's lots of ways that they can get what you have asked for are records of their requests to financial institutions.

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And that's what's not in the public domain, right?

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I believe there is substantial evidence in the record.

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Point me to some.

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In the examples that are highlighted in our brief, the court documents filed by the FBI says they obtained, quote, obtained records from financial institutions.

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They didn't do that by waiting for somebody to drive by.

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What do you think of the district court's explanation?

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That is that there were three or four different federal agencies involved in this, and we don't know which one might have been.

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That is a distinction that makes no difference, Your Honor.

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The question is... Why is that?

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You've asked for documents from the FBI, right?

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Because the idea that- And the declaration says there are three or four other agencies also involved.

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So we don't know from, as the district court said, you can't tell from this whether it's the FBI or not.

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Because it's a distinction that doesn't matter.

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The point of the source of the information is from the perspective of what you've been asking about is from the perspective of a target,

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potential target of investigation.

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It doesn't matter where the route that the records got to the FBI.

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The question is whether they would be aware that the FBI might be accessing financial records.

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And frankly, the idea that the FBI is outsourcing its routes of information to the Capitol Police to obtain financial records is simply not plausible, which is the standard in this case.

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The FBI routinely uses this information.

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It says in its documents that it obtained this information from financial institutions.

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There's more than enough basis that that's exactly what they did, is they communicated with financial institutions to obtain this.

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That's their function.

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For them to now say, oh, well, we might've gotten some other indirect way, you know, strange credibility.

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So do you give any weight to the point made that there may be this general information

[00:10:00] Speaker 01:
But the precise techniques, the precise methodology used, none of that has been shown to have been either previously acknowledged or disclosed.

[00:10:23] Speaker 04:
We do not, Your Honor, for the simple reason that this is not some secret procedure of a listening device or an unknown technology.

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How do you know?

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Because the FBI hasn't said that it is.

[00:10:41] Speaker 01:
Well, so silence is an admission?

[00:10:47] Speaker 04:
Well, again, this is a standard, we have a standard here of what's logical and plausible.

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I mean, if this court wants to be a rubber stamp for an agency and accept everything they say, and find any fine distinction to uphold it, that's your choice.

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But in reality, what it is is it's a relatively simple investigations where they were trying to identify, they admit this, they've done it many times.

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that they were trying to identify the location of people and they use financial records.

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So the idea that they communicated in the process of doing this is simply common sense with all respect, Your Honor.

[00:11:29] Speaker 01:
Well, Counsel, let me ask you then, in other words, under FOIA, as you read it, it doesn't matter if there are techniques and methodologies.

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If it's logical,

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to an average person that in the course of a criminal investigation, an agency working in connection with that investigation would necessarily ask for financial records.

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And that covers the waterfront.

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And that's the end of any obligation and burden in your reading of FOIA.

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And I understand your arguments about, well, Congress defined the exemptions and 70 has often been cited, but the court long ago came up with this Glomar approach

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And so far that continues to be the law in this circuit.

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And you're stuck with that, aren't you?

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And where you're not challenging here, as I understand it, the expertise that could have been involved.

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And I really don't see any claim of bad faith

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But simply your argument is that the courts have set these standards too high when everyone knows that agencies involved in criminal investigations are going to seek financial records.

[00:13:27] Speaker 04:
Well, you're correct, Your Honor, on two points.

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First, we agree that the Glomar doctrine has evolved under the law.

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It sets far too high a burden on a FOIA requester.

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But in this case, we're not asking here for you to change the law in Glomar.

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We know this panel cannot.

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But we're asking, in this case, for an application to these facts of exactly what the standard is, and not simply bless an implausible and illogical explanation from an agency that it did not do what it routinely does and says it does, which is to obtain financial records.

[00:14:12] Speaker 04:
We're simply asking for that level of review

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and not excessive deference under Glomar or FOIA to the statements of an agency.

[00:14:25] Speaker 01:
So I guess I would come back and simply ask then, while you say you're not challenging Glomar itself, it seems to me that you are challenging some of our previous decisions as to how this court has interpreted the burden under 7E.

[00:14:46] Speaker 04:
Well, we're certainly open to the idea that if it's necessary to seek on bank review or other to review the law, that is fine.

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But we don't believe it's necessary under these facts in this case to get there.

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Will our case law

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says under Glomar, you have to show that the information requested is as specific as the information previously released.

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So how do you meet that?

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Because what we have is information in the record that confirms they sought, obtained, and used financial records from financial institutions.

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That's what we're asking for.

[00:15:37] Speaker 02:
Are you talking about the online article?

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Is that the one?

[00:15:41] Speaker 04:
No, I'm talking about the court filings describing how they prosecuted January 6th defendants and used financial data.

[00:15:51] Speaker 03:
Specifically,

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You have one example, it's on page 11 of your brief, from the USV Kevin Douglas Creek case, where you quote from one of the Statement of Facts that financial records obtained from JP Morgan Chase Bank corroborate Creek use a credit card in his name to purchase gas.

[00:16:19] Speaker 03:
Yes.

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So that you say is as specific as the information that you are requesting.

[00:16:31] Speaker 04:
The question in the end is, is a court going to look for any possible distinction of the facts in order to uphold an agency's claim?

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or is it going to apply logical, plausible standard of a reasonable person, which is what the law requires?

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In this case, a reasonable appropriate in looking at this, that they obtained records from the financial institution, or in the previous example on page 11,

[00:17:07] Speaker 04:
The bank provided records to the FBI.

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I mean, a reasonable person would interpret that as saying the FBI communicated with the institutions that obtained these records.

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That's not an implausible or, in any way, illogical conclusion.

[00:17:25] Speaker 02:
Well, they could have gotten them in other ways.

[00:17:28] Speaker 04:
I'm sorry.

[00:17:28] Speaker 02:
I said they could have gotten them in other ways.

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But there's theoretically an unlimited number of ways.

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They're not very likely.

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That's the whole point.

[00:17:40] Speaker 04:
But the standard is not mathematical certitude.

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The standard is logical and plausible.

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And what's logical and plausible is the FBI asks these financial institutions to provide records.

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The FBI does this.

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The director of the FBI admitted this week before the Senate panel that it obtained user location identities of cell phone users by buying it from companies.

[00:18:10] Speaker 04:
Well, the FBI has a pattern of doing these things.

[00:18:15] Speaker 03:
All right, Judge Rogers, do you have any further questions?

[00:18:18] Speaker 01:
No, thank you.

[00:18:19] Speaker 01:
No, thank you.

[00:18:20] Speaker 03:
Judge Tatel?

[00:18:22] Speaker 03:
All right.

[00:18:23] Speaker 03:
You've exceeded your time, but we'll give you some time on rebuttal.

[00:18:26] Speaker 03:
Let's hear from the government, Ms.

[00:18:29] Speaker 03:
Stapleton.

[00:18:30] Speaker 03:
Thank you, Your Honor.

[00:18:46] Speaker 00:
Good morning.

[00:18:50] Speaker 00:
Thank you, your honors, and may it please the court, Anna Stapleton, on behalf of the government.

[00:18:56] Speaker 00:
Morning.

[00:18:58] Speaker 00:
This case is about whether the FBI must disclose whether it asked financial institutions for certain financial records as part of its investigation into the events of January 6.

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And I'd like to begin this morning by focusing on three reasons why

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As a practical matter, it is important that the FBI be able to make its Glomar response in this case.

[00:19:19] Speaker 00:
Those three reasons, in short, are because of the specificity of the FOIA request at issue here, because of concerns about a mosaic effect, and because of the importance of consistently using a Glomar response across similar requests.

[00:19:34] Speaker 00:
So to begin with my first point on specificity,

[00:19:39] Speaker 00:
The FOIA request that issued here is not just a request for information about the use of financial records, generally speaking.

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It's not even just a request about whether the FBI communicated with financial institutions about financial records generally.

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It's instead a very specific request that takes records of communication between the FBI and any financial institution, including the specified ones,

[00:20:06] Speaker 00:
in which the FBI sought transaction data for those financial institutions, debit and credit account holders, that's one piece of specificity, who made purchases in Washington, Maryland, and or Virginia, that's a geographic limitation, on January 5, 2021, and or January 6, 2021.

[00:20:23] Speaker 00:
So that's a temporal limitation.

[00:20:27] Speaker 00:
And of course, that request was narrowed.

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to request, excuse me, for records of such communications made in the course of the January 6 investigation.

[00:20:37] Speaker 00:
That means that when the FBI, if the FBI had to give a yes or no answer to confirm or deny the existence of responsive records, it would be giving a very specific answer about the kinds of information it sought, as well as, to Judge Datil's earlier point, as to how it sought that information.

[00:20:57] Speaker 00:
And if I may offer one practical example, suppose that a person came to January 6th, excuse me, came to DC, participated in the events of January 6th, had arrived on January 4th, used the debit card to withdraw 500 bucks in cash on the 4th, and then didn't use the card again on January 5th or 6th.

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That person will be very interested to know

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whether what the FBI sought was specifically records of transactions on January 5th and 6th, as opposed to on the 4th or on other dates.

[00:21:32] Speaker 00:
That leads me to my second point, which is about the potential mosaic effect.

[00:21:37] Speaker 00:
As the Seidel decoration points out in a couple different places, one concern here is that FOIA requests don't exist in vector.

[00:21:47] Speaker 00:
There can be multiple FOIA requests asking about different kinds of techniques.

[00:21:52] Speaker 00:
That would include, for example, a second FOIA request that might also ask, did the FBI seek information about financial transactions on January 4th?

[00:22:01] Speaker 00:
It could include request seeking information about the other kinds of techniques that the FBI used.

[00:22:09] Speaker 00:
Did they use video from security cameras in local businesses?

[00:22:16] Speaker 00:
Are they using facial recognition technology?

[00:22:19] Speaker 00:
By piecing together information from multiple different FOIA requests, it would be possible for both a January 6 participant and also someone who might be considering participating in a future event, similar kind of event in future, to piece together a comprehensive picture of how the FBI goes about investigating these kinds of events.

[00:22:42] Speaker 00:
January 6 is a particular kind of investigation.

[00:22:45] Speaker 00:
As Judge Wilkins mentioned earlier,

[00:22:48] Speaker 00:
And it involved hundreds of people.

[00:22:50] Speaker 00:
Many of those people remain, or excuse me, I think it was just Shadel who was asking this question earlier.

[00:22:55] Speaker 00:
Many of those people remain unidentified.

[00:22:58] Speaker 00:
Hundreds of people came from all over the country, were in DC or the area for a short period of time, and then left.

[00:23:05] Speaker 00:
And the question is, how does the FBI go about investigating, finding out who those people were and what they may or may not have done?

[00:23:13] Speaker 00:
So to allow through multiple FOIA requests, where the FBI has to say yes or no, we use this technique, or we use this specific technique in this particular way, would potentially give those folks a great deal of information about how to avoid getting caught.

[00:23:32] Speaker 00:
And then to the third point about the importance of using the Glomar response consistently,

[00:23:39] Speaker 00:
You know, GLOMR, of course, means that the agency is neither conforming nor denying the existence of responsive records.

[00:23:46] Speaker 00:
Were the agency to only use a GLOMR response, for example, when responsive records actually did exist, that would be a clear tip-off.

[00:23:54] Speaker 00:
So the agency has to use it both when records do exist and when they don't.

[00:24:00] Speaker 00:
Similarly, it's important that the agency use the GLOMR response when there's been no official acknowledgement, potentially even if

[00:24:09] Speaker 00:
the public might suspect that they know what went on.

[00:24:12] Speaker 00:
As long as the public doesn't know, Judge Wilkins, you were asking about, I think the more standard for official acknowledgement and the specificity of the information that's been previously disclosed, as long as the public doesn't actually know that specific information, it's important that the FBI continue to consistently use Glomar to protect it.

[00:24:31] Speaker 03:
What do you mean, as long as the public doesn't know that specific information?

[00:24:35] Speaker 00:
So, for example, in this case, your honor, and this was, of course, discussed with my friend, what the public knows, because of the statements made in the criminal cases, and those are excerpted in our brief at page 28, and that, of course, also includes record citations, what the public knows is that the FBI

[00:24:54] Speaker 00:
at some point became aware of specific records for specific individuals.

[00:25:00] Speaker 00:
The public does not know, they may speculate, as happened in the news articles in the record, they may speculate about how the FBI came to obtain that information, but because- When the record says financial, when the statement says financial records obtained from JPMorgan Chase Bank, what is,

[00:25:22] Speaker 03:
What is the public or anyone to take from that as far as who they came from?

[00:25:30] Speaker 03:
Says obtained from JP Morgan Chase Bank.

[00:25:32] Speaker 00:
So the key, Your Honor, is that it says they came from the bank, but it doesn't say to whom or how.

[00:25:39] Speaker 00:
So for example, as was mentioned earlier, if those records were given to another law enforcement agency and then passed on to the FBI,

[00:25:48] Speaker 00:
that scenario would not create responsive records.

[00:25:52] Speaker 00:
In this case, similarly, if they were obtained pursuant to a subpoena, the FBI in analyzing this request determined that a subpoena would not constitute direct communications

[00:26:10] Speaker 00:
between the agency and the financial institution.

[00:26:14] Speaker 00:
There's one mention in the record of a subpoena.

[00:26:17] Speaker 00:
I would also note it doesn't say who sought the subpoena, right?

[00:26:20] Speaker 00:
So again, it could have been another law enforcement agency.

[00:26:24] Speaker 03:
Say that again, you're saying that the subpoena is not a direct communication between the FBI and

[00:26:34] Speaker 03:
the recipient of the subpoena?

[00:26:36] Speaker 00:
That's correct, Your Honor.

[00:26:37] Speaker 00:
Because it would be intermediated by the court, potentially by a US attorney's office.

[00:26:42] Speaker 00:
And again, I want to be clear, the other possibility is that a different government agency or a different law enforcement body sought the subpoena in the first place.

[00:26:52] Speaker 03:
And you're saying that the FOIA request was for communication, not subpoena.

[00:26:59] Speaker 00:
Correct, Your Honor.

[00:27:00] Speaker 00:
So the request was for records of communication between the FBI and any financial institution.

[00:27:07] Speaker 03:
What about the more general point that, I mean, you don't have to be a rocket scientist to know that the FBI is part of their investigation.

[00:27:24] Speaker 00:
That's right, Your Honor.

[00:27:25] Speaker 00:
But we would say, again, I would direct you to the specificity of the request.

[00:27:31] Speaker 00:
So this is, did the FBI not just look for financial records generally, but did they look specifically for debit and credit card records from these two days in this geographic location?

[00:27:43] Speaker 00:
And did they do so as part of this investigation?

[00:27:46] Speaker 00:
It says a lot of information.

[00:27:48] Speaker 00:
I gave the example earlier of someone who only used a debit card on January 4th.

[00:27:54] Speaker 00:
We might also consider a person who only used other kinds of financial transactions, made transactions through electronic transfers, made a withdrawal of cash, but didn't use a credit card, right?

[00:28:10] Speaker 00:
All of those details are the kinds of information that would permit someone to potentially think, oh, I'm at risk.

[00:28:18] Speaker 00:
that person who believes that they're at risk may well go about trying to make prosecution of them more difficult, may consider destroying other evidence such as photos, deep down social media posts, that kind of thing.

[00:28:31] Speaker 00:
It could also mean in this part said in me or Brown, it matters if you

[00:28:36] Speaker 00:
you would have, if the agency would have to provide information that would inform someone, they're not at risk of prosecution.

[00:28:43] Speaker 00:
And so if someone, for example, my hypothetical person who used the card on January 4th were to discover that their financial records were probably not obtained, they might be less likely to put themselves forward.

[00:28:56] Speaker 00:
And I'd like to emphasize, I see that my time has run, but finally that those same concerns are present for people who might participate in future events.

[00:29:05] Speaker 03:
Why wouldn't the FBI's concerns be dealt with just by applying the exemption under 7E instead of Lomar response?

[00:29:16] Speaker 03:
And perhaps with them acknowledging, yeah, we have records, but for various reasons, we intend to withhold various

[00:29:33] Speaker 03:
you know, the records themselves and even only give some sort of very generic description of the records that we have so that it doesn't disclose what days, you know, we communicated precisely.

[00:29:49] Speaker 03:
So maybe that we have records from the fifth and the sixth, but that doesn't mean that we don't have records from the fourth and the eighth.

[00:30:02] Speaker 03:
You know, so why can't this be taken care of under the exemption instead of under the law?

[00:30:09] Speaker 00:
So the problem, Your Honor, is, again, because of the specificity of this request, simply answering yes or no, we do or do not have responsive records, would give away all of the details that are built into the request itself.

[00:30:23] Speaker 00:
So on the one hand, just saying yes or no on this request

[00:30:29] Speaker 00:
if the agency were, for example, to say yes, it would mean that they did specifically ask banks for credit and debit records in that geographic area on those two dates.

[00:30:40] Speaker 00:
All right, so that's one problem is you've already had to give away one very specific set of information about how the agency approached investigating this case.

[00:30:50] Speaker 00:
The second problem is, again, going back to the mosaic issue, which is to say there could be other requests.

[00:30:57] Speaker 00:
And if the FBI had to say yes or no on this request, they would probably have to say yes or no about a request about did you ask why won't we just cross that bridge when we come to it?

[00:31:09] Speaker 03:
We say, okay, you can't do Glomar here.

[00:31:11] Speaker 03:
If there's another case and there's another request and it raises the mosaic problem, then the official puts that in their affidavit at that time and the court considers that that

[00:31:25] Speaker 00:
So your honor, I think, again, to be clear, this piece of information is valuable on its own, because again, simply the yes or no answer here is very particular information about exactly what the FBI sought.

[00:31:42] Speaker 00:
Whether the answer is yes, they did seek that, and so folks know that they might have been identified that way, or no, the FBI didn't seek this information, and so folks might know that they're in the clear.

[00:31:55] Speaker 00:
But the concern, I mean, the mosaic concern is not one that this court has required to sort of wait and see in the past.

[00:32:02] Speaker 00:
So it's discussed in Mayor Brown.

[00:32:05] Speaker 00:
Of course, when this court rules on a Glomar response, it's making a ruling of law that the agency has to consider in making its responses going forward.

[00:32:15] Speaker 00:
And this court said in Mayor Brown in 2009, one of the concerns was that in other analogous context, I'm quoting here,

[00:32:23] Speaker 00:
similar information could be sought.

[00:32:26] Speaker 00:
Everyone seeking in that situation to minimize tax liability, it was a case against the IRS, would love to have all the IRS's guidelines for all the other schemes to learn when the agency is likely to seek enforcement versus when the agency views the specific context as too difficult to litigate.

[00:32:44] Speaker 00:
But this court said that meant that the IRS could protect that information because

[00:32:53] Speaker 00:
it was both important on its own and because of the risk that folks could perform FOIA requests and seek other related information and put together that comprehensive picture.

[00:33:09] Speaker 03:
Judge Tatel, any questions?

[00:33:11] Speaker 03:
No.

[00:33:11] Speaker 03:
Judge Rogers, any questions?

[00:33:12] Speaker 00:
No, thank you.

[00:33:15] Speaker 03:
All right, thank you, Council.

[00:33:16] Speaker 00:
Thank you, Your Honor.

[00:33:20] Speaker 03:
Mr. Peterson, you were out of time, but we'll give you two minutes to rebut.

[00:33:25] Speaker 04:
Thank you, honor.

[00:33:26] Speaker 04:
One point I would just like to briefly add is the point made by the FBI in its brief and by counsel here that this FOYA request should fail because of the GLOMAR assertion, because there might be other cases, there might be other FOYA requests coming up, is an assertion that

[00:33:50] Speaker 04:
This should look at very closely is to as representative of the perspective, which they're they're approaching.

[00:33:57] Speaker 04:
There's no basis in the law or any common sense for a limiting for pulling a glow mark here because of what might be happening in the future.

[00:34:09] Speaker 04:
We ask.

[00:34:10] Speaker 04:
this court for the kind of searching review that the law requires and not to give the excessive deference that the government is asking for in this case.

[00:34:23] Speaker 04:
Thank you.

[00:34:24] Speaker 04:
Thank you.

[00:34:24] Speaker 04:
We'll take the matter under advice.