[00:00:00] Speaker 02:
Case number 22-5155 with Sana Magasa, a balance versus transportation security administration.

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Ms.

[00:00:08] Speaker 02:
Jump for the balance, Ms.

[00:00:10] Speaker 02:
Valdivia for the appellee.

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Your honors, may it please the court.

[00:00:19] Speaker 00:
My name is Christina Jump and I am here on behalf of the appellant, Sana Magasa.

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The basic purpose of the Freedom of Information Act reflects a general philosophy of full agency disclosure.

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And FOIA's exemptions must be narrowly construed.

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This court held that in EPIC versus DHS in 2015, and that holds true today.

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Unfortunately, the district court's ruling in this case does not reflect Congress's intent or this court's application of it.

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The assertion of exemption three in this matter by the government fails because there's an insufficient Vaughn index, which bears that title as a Vaughn index, but lacks the substance that the courts and the Freedom of Information Act require.

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Categories, as the government submits in Vaughn index in this matter, must be sufficiently distinct under prison legal news.

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But here, the defendant

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commits one category for 182 fully withheld pages in one general category with no specifics.

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It includes language like including some of these criteria and any comments which may be used and does not reasonably identify the types of documents with enough specificity to meet this court's standard.

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In summer versus Department of Justice, this court held that the Yvonne index must describe each document or deletion and make specific findings as to how the exemption relates to each document.

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That did not happen here.

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In addition, the Blair and Miller declarations use may and could repeatedly throughout them.

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The founding church of Scientology, this court held the categories must be specific because each withholding must be specifically identified.

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The government retains a high burden because anything less would not meet the exacting standards of the Freedom of Information Act.

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Ms.

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Jump, I mean, the Blair declaration here gave

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a number of reasons and described the withholding in fairly significant detail.

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I mean, what more is the government required to say or do?

[00:02:41] Speaker 00:
Your honor, I believe that the, first of all, the Vaughn index does not contain that specificity at all.

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And the, are you talking about the Blair declaration or the Miller declaration?

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Yeah.

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The Miller declaration gives extensive detail on the process and on the procedural history at the administrative level.

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but then jumps to more concluding statements.

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And as does the Blair Declaration, which relies on the presumption, as the government does in its piece as well, that simply stating the exemption applies should be entitled to deference

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without going into any specifics.

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We also argue in our briefs, and I'd like to present here that the district court failed entirely to do a segregability analysis and did not address that at all.

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Both the Blair Declaration in footnote one

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and appellee's response in footnote 7 reference that in camera review would be available to more specifically show the applicability of the exemptions, but that did not happen at the district court level.

[00:03:52] Speaker 01:
I just go back.

[00:03:53] Speaker 01:
You said that Blair declaration didn't have sufficient detail.

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And so, for example, on exemption three, it does explain that the one category of requested documents all relates to screening procedures.

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And then it says if this material was made public, it could.

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help or enable terrorists to evade those screening procedures.

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That seems logical and plausible.

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And so what more did they have to say to withhold all of the screening procedures?

[00:04:25] Speaker 00:
Your Honor, I would say in response to that, that while there may be some level, and I don't doubt that there is some level at which details about the screening procedure should not be provided, there is also the compelling interest in the public understanding the process and the procedures used by the government.

[00:04:44] Speaker 00:
And that's where a segregability analysis would come in to determine how much of it could potentially be produced, which would be relevant.

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Under Roth v. Department of Justice, this court held that agencies must still disclose all reasonably segregable portions of exempt records or of records which have exempt portions.

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in-camera review is the appropriate way to identify this.

[00:05:14] Speaker 00:
Again, the public has a great interest in information which eliminates government agencies methods, which is what we're looking at here.

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And we cite in our reply brief as well as at the district court level to

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examples and a string of case representative cases which identify why the TSA procedures and particularly regarding DHS trip claims is in fact something that is of the public interest that is a compelling public interest to know.

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And so with that there is again

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It is so essential that segregability occur as the district court of DC held in Jarvik versus CIA, that segregability analysis is so essential to FOIA that the failure of that alone is remandable error.

[00:06:05] Speaker 00:
I understand it's a DC district court, but it is consistent with this court's holding in Epic versus DHS and the other cases that we've cited here today as well.

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In addition-

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generally that it seems to me you say a difficult burden anyway given the nature of what the government does know about your client and what you have disclosed about your client.

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Given the long history and

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the repeated statements of deference here.

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What do you understand to be your burden in order to avoid these precedents?

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In other words, you can talk about sacred ability, you can talk about some of the other decisions, but

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Why must the government do more than it did here when it knows what you have already disclosed about your client?

[00:07:32] Speaker 00:
Your Honor, we go to two points in response to that.

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The first being that, again, returning to Roth v. U.S.

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Department of Justice, that agencies still must discuss the reasonably segregable portions of requested records, and that agencies have the burden to show how privacy interests of an individual outweigh the public's interests in those records.

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And here... There's no question about all of those generalities.

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The problem, it seems to me, you face in part is that those are well established statements of law.

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And you have to overcome them in some way.

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And courts, including this court, have repeatedly affirmed the type of what you would describe as limited disclosure by

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the government in these types of cases.

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What is it that's unique about your client's case such that it would cause this court to either reconsider or narrow or re-characterize some of the statements that you have cited in our precedent?

[00:08:57] Speaker 00:
Your honor, two quick points in response to that.

[00:08:59] Speaker 00:
I would say that, first of all, the fact that it is our particular client and whatever his outside interest may be would have, under perioperative and Horner, no bearing on the outcome of this as these documents, if producible, should be produced to any person who does request them.

[00:09:20] Speaker 00:
No question about that.

[00:09:21] Speaker 04:
But you have years and years of precedent, not only in this circuit,

[00:09:27] Speaker 04:
but other circuits in the Supreme Court, and other than the very early general statements in rows, et cetera, by the Supreme Court, what is it that takes your case out of the scope of these previous decisions?

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In other words, as Judge Rao pointed out and Judge Garcia pointed out, statements have to be viewed

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contextually here.

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And so the declarations, and these two declarants have been doing this for a long time, and sometimes we've sent their declarations back saying they were insufficient.

[00:10:14] Speaker 04:
But it seems to me that that's a difficult burden, and you may be able to meet it, but we need something very specific.

[00:10:25] Speaker 00:
You honor in that regard, just very briefly, as I do not the time, but I want to respond to your question.

[00:10:30] Speaker 00:
I would say that.

[00:10:32] Speaker 00:
Mr. Magasi here does identify his interest in understanding the procedures that affect him as well as many other people.

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He points to his substantial interest there.

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The government, again, tries to make the word substantial be a more minimal burden on itself.

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But in Niskanen versus PRC, this court held to the contrary that that does remain a burden and that

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remand is the appropriate place really to do that segregability analysis and to get into the details.

[00:11:04] Speaker 00:
It may end up that all of the same information remains not producible or not discoverable through the Freedom of Information Act, but as it stands right now, with what he's requested, with the interest that he has shown, with the representative cases that we've identified that support this interest for the public, as well as for this individual

[00:11:24] Speaker 00:
who continues to hold a seat a badge as we've referenced and as opposing council ref is my colleague across the aisle reference in appellee's response brief.

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So he has an ongoing continuing interest in knowing what the TSA is looking at regarding him.

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As it does in fact directly affected direct effect is livelihood.

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That is something that I think separates this case out if needed.

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But in addition, there is the compelling public interest in understanding how the government works.

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And as this court said in hall.

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He's seeking information that will tell him what the government is up to, which is the kind of information that does advance the public's interest and knowledge in how the government works.

[00:12:07] Speaker 00:
With that, I will respect the clock and come back hopefully for just a few minutes at the end for rebuttal.

[00:12:13] Speaker 00:
Thank you very much.

[00:12:30] Speaker 03:
Good morning, and may it please the court.

[00:12:34] Speaker 03:
Diana Valdivia on behalf of the Transportation Security Administration, or TSA.

[00:12:40] Speaker 03:
I'd like to begin this morning by addressing two points that were raised in the argument from my friend on the other side, specifically with respect to segregability and in-camera review of documents.

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And my friend on the other side suggested that the court had erred in not making a segregability determination in this matter, or that there were not support in the agency's declaration to establish that the agency had conducted an adequate segregability analysis.

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However, the court

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below did make a segregability determination that determined that the agency did in fact live up to its segregability obligations.

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And in doing so, it relied specifically on the Miller Declaration with respect to the Exemption 6 withholdings and the Blair Declaration with respect to the Exemption 3 withholdings.

[00:13:29] Speaker 03:
For those Exemption 6 withholdings, which had to do with the names of federal government employees from the TSA and from CBP, the Miller Declaration

[00:13:39] Speaker 03:
specifically states that the only thing that is under those redaction boxes are the names of the employees.

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So how that could be further segregated without violating the very privacy right that is at the heart of Exemption 6 is never explained by my friend on the other side.

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And in fact, since the Miller Declaration explains exactly what was withheld and that nothing there could be segregated from the withholding, which is only a name,

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The court found that that was sufficient to meet the second ability obligations.

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With respect to the exemption 3 with holdings.

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There is also significant information provided in the declaration of Mister Blair.

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And Mr. Blair was the individual at the agency who had the ability to determine what constituted sensitive security information, which is exempt per statute, the Homeland Security Act.

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And he described that he did a personal review, not only his staff, but also he did a personal review of the information that was being withhold.

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He determined that it all constituted

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sensitive security information which was exempt, not that it was intertwined inextricably with non-exempt information, but that everything that was withheld was, in fact, sensitive security information.

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And the district court was relying on those paragraphs of those declarations from Miller for Exemption 6 and Blair for Exemption 3 when it made its segregability determination.

[00:15:10] Speaker 02:
Let's talk a little bit about exhaustion here, the failure to exhaust his challenge to the global response and the scope of the search.

[00:15:18] Speaker 02:
So what in the government's view was Mr. Magasa required to do administratively that he failed to do here?

[00:15:26] Speaker 03:
Well, Your Honor, this court has instructed in the Detman decision that issue-specific exhaustion is required in the FOIA context.

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And in fact, that's consistent with the agency's regulations, which instruct FOIA requesters who are appealing an agency's decision to specifically identify the issues, basically why they believe that the agency's production was

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insufficient.

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And here, Mr. Magasa, through his counsel, provided a three-page letter which did meet that issue exhaustion requirement and it did specify issues that he had at the agency's production.

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It nowhere put the agency on reasonable notice that among the issues that he was concerned with the agency's production,

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was the adequacy of the search or the Glomar response.

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It was very detailed in its issues with the withholdings, those being 23 pages of records that were redacted and 182 pages that were withheld in full.

[00:16:24] Speaker 03:
And the FOIA officer receiving that appeal would not be on reasonable notice and did not therefore address an agency's response to adequacy of the search or the Glomar response.

[00:16:36] Speaker 03:
So because those.

[00:16:38] Speaker 01:
A little bit difficult because for the requester, because at that point, they obviously don't have the affidavits that come in later if there's litigation.

[00:16:47] Speaker 01:
And all they have is TSA's response.

[00:16:51] Speaker 01:
So just for example, the TSA response doesn't say, we are making a Glomar response.

[00:16:56] Speaker 01:
In other words, we certainly can't fault him for not using the words Glomar.

[00:17:00] Speaker 01:
And he does object to the general lack of specificity in invoking various exemptions.

[00:17:07] Speaker 01:
So I think I also have at least some question about what exactly he should have put in his appeal to challenge the global response.

[00:17:15] Speaker 01:
Do you have a view on that?

[00:17:18] Speaker 03:
Your honor, I would like to direct

[00:17:22] Speaker 03:
to the agency's release letter, which is an attachment to the declaration of Terry Miller and is in the joint appendix.

[00:17:33] Speaker 03:
The court's indulgence, I can't give you the exact page number.

[00:17:46] Speaker 03:
It begins at page 56 of the Joint Appendix.

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And it does, in fact, specifically include GLOMAR language.

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This is the third full paragraph down saying to the extent that your request relates to records maintained by TSA, TSA can neither confirm nor deny whether an individual is on a federal watch list.

[00:18:07] Speaker 03:
This is the GLOMAR language.

[00:18:09] Speaker 03:
So the agency's response to the requester not only produced records,

[00:18:14] Speaker 03:
identified what was being withheld from the records that were produced, but also put the requester and his counsel on notice that there was a glomar, a partial glomar response.

[00:18:22] Speaker 03:
It was not a blanket glomar response, but there was a partial glomar response that to the extent his request relates to records maintained by TSA, TSA can either confirm or deny whether an individual is on a federal watch list.

[00:18:35] Speaker 03:
The requester and his counsel took issue with that.

[00:18:39] Speaker 03:
That could have been identified in their appeal.

[00:18:41] Speaker 03:
So they certainly were on notice at that time that that Glomar response had been issued.

[00:18:46] Speaker 01:
Just a methodological question then.

[00:18:49] Speaker 01:
Would you, if we agree his appeal fails on the merits of, for example, the Glomar issue, do we have to address exhaustion at all?

[00:19:02] Speaker 03:
Well, Your Honor, because FOIA exhaustion is not jurisdictional, it is not a threshold jurisdictional issue that the court need reach, but the failure to exhaust should not, cannot be excused by the court.

[00:19:17] Speaker 03:
So even though it is a jurisprudential doctrine, this court's decisions, which are interpreting Supreme Court precedent, make clear that when exhaustion is mandatory, as exhaustion is in FOIA,

[00:19:30] Speaker 03:
And we know that from this court's decisions in OVSB, Hidalgo, many decisions of this court hold that exhaustion is mandatory in FOIA.

[00:19:40] Speaker 03:
Where exhaustion is mandatory, the court cannot judicially excuse it, even when it is.

[00:19:47] Speaker 01:
It certainly couldn't reverse without addressing exhaustion.

[00:19:51] Speaker 01:
But we could affirm, right?

[00:19:52] Speaker 03:
Yes, Your Honor, you could affirm.

[00:19:56] Speaker 02:
But it's not discretionary.

[00:19:59] Speaker 02:
Exhaustion.

[00:20:00] Speaker 02:
Exhaustion is mandatory under this.

[00:20:02] Speaker 02:
Right.

[00:20:02] Speaker 02:
Because I thought you said that there was some discretion before you said it was mandatory.

[00:20:06] Speaker 02:
But you agree that exhaustion is mandatory.

[00:20:08] Speaker 02:
It's not jurisdictional, but it's mandatory.

[00:20:10] Speaker 03:
Correct, Your Honor.

[00:20:13] Speaker 03:
Exhaustion under the FOIA statute is mandatory.

[00:20:16] Speaker 03:
It is not jurisdictional.

[00:20:17] Speaker 03:
It's jurisprudential.

[00:20:19] Speaker 03:
But this court does not have the opportunity to excuse a failure to exhaust under

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This court's decision in Fleming, even jurisprudential exhaustion, if this makes exhaustion mandatory, it cannot be judicially excused.

[00:20:36] Speaker 03:
Here, there was some exhaustion, but there was not exhaustion of all issues.

[00:20:41] Speaker 03:
And this court should not excuse the failure to exhaust those issues.

[00:20:46] Speaker 02:
Exhaustion is jurisprudential.

[00:20:47] Speaker 02:
Are you saying it's not statutory?

[00:20:49] Speaker 03:
It is statutory.

[00:20:50] Speaker 03:
However, it is not jurisdictional.

[00:20:54] Speaker 03:
decision in Hidalgo explained that because the statute does not make it so, it is not jurisdictional.

[00:21:00] Speaker 03:
It's jurisprudential.

[00:21:01] Speaker 02:
So you're saying it is a mandatory statutory exhaustion requirement?

[00:21:06] Speaker 02:
Yes, Your Honor.

[00:21:07] Speaker 02:
It is.

[00:21:08] Speaker 03:
It's just not a jurisdictional one.

[00:21:11] Speaker 02:
Thank you.

[00:21:13] Speaker 02:
Any further questions?

[00:21:15] Speaker 02:
Mr. Rogers, any further questions?

[00:21:18] Speaker 03:
No, thank you.

[00:21:20] Speaker 03:
Thank you.

[00:21:20] Speaker 03:
Then the TSA would request respectfully that the court

[00:21:24] Speaker 03:
to the district court to confirm the judgment.

[00:21:44] Speaker 00:
Thank you.

[00:21:45] Speaker 00:
Thank you.

[00:21:45] Speaker 00:
Thank you, Your Honors.

[00:21:47] Speaker 00:
I'd like to address two points that came up.

[00:21:50] Speaker 00:
First of all, that the district court

[00:21:52] Speaker 00:
required in Joint Appendix 65.

[00:21:54] Speaker 00:
There was a statement, we further appeal the agency's lack of production in response to Mr. Magasa's request overall, as noted by the district court at Joint Appendix 132 to 134.

[00:22:06] Speaker 00:
And as appellees recognize on page 29 of their response brief, that there was an argument to segregability at the administrative stage, whether they construe that to be something that was properly worded or not,

[00:22:21] Speaker 00:
It's not the examination, it's not the test.

[00:22:24] Speaker 00:
As this court knows, there is no requirement of technical precision under Institute for Justice versus IRS.

[00:22:30] Speaker 02:
Can you point us to where there was a challenge to the Glomer response and to the scope of the search?

[00:22:39] Speaker 02:
I'm sorry, where there was?

[00:22:41] Speaker 02:
Where Mr. Magasa raised the challenge administratively to the Glomer search or to the scope of the search?

[00:22:49] Speaker 02:
like in the record, not in the district court's opinion.

[00:22:52] Speaker 00:
Yes, Your Honor.

[00:22:53] Speaker 00:
Again, I would point to JA65.

[00:22:57] Speaker 00:
And then additionally, in the pages of the specific request, the request in each letter, where Mr. Magasa

[00:23:09] Speaker 00:
consistently and repeatedly narrowed the search in response to the objections by the TSA.

[00:23:15] Speaker 00:
Each time it's stated that he was not abandoning his entire search.

[00:23:19] Speaker 00:
He was not abandoning his entire request and that he did continue to issue the full request was only complying with what the TSA instructed was needed to perfect the request.

[00:23:32] Speaker 00:
And the appeal letter stated again that it was specifically, he was specifically

[00:23:39] Speaker 00:
appealing the lack of production as a whole and overall, and then also went into specific points.

[00:23:46] Speaker 00:
Appellees take issue with the language that says further.

[00:23:48] Speaker 02:
This is a request overall.

[00:23:49] Speaker 02:
Donor precedents require issue specific exhaustion.

[00:23:54] Speaker 00:
They do, and we believe that the language that is included does address that.

[00:23:59] Speaker 00:
Again, there is, he can't know specifically what records exist, but, and there is a duty to construe liberally all of the requests.

[00:24:09] Speaker 00:
But again, we do hold that, we do stand on the requests that say that he did not abandon any part of his request in the appeal.

[00:24:16] Speaker 00:
He continued to,

[00:24:17] Speaker 00:
that the agency lacks this production in response to this request overall.

[00:24:24] Speaker 00:
And as a district court held and based on the specific letters, we believe that that meets the requirements here.

[00:24:30] Speaker 00:
I would state also that under prison legal news, the identity of the requester and his intended use

[00:24:36] Speaker 00:
bears no relevance on whether the information is reducible or discoverable through the freedom of information.

[00:24:43] Speaker 00:
And finally, that as this court held in this game and the release of names is not automatically always protected and determined to be a sufficient threat.

[00:24:53] Speaker 00:
There must be a connection shown to show why there is a sufficient threat in the, simply by producing names.

[00:25:01] Speaker 00:
We're not asking for addresses or other identifying information, but simply asking for the names and that there has to be something that shows that it is clearly a threat to the individuals.

[00:25:13] Speaker 02:
I see you're out of time if my colleagues have no further questions.

[00:25:17] Speaker 02:
Thank you, Your Honor, I appreciate that.

[00:25:23] Speaker 00:
Cases submitted.