[00:00:00] Speaker 02: Thanks. [00:00:01] Speaker 02: Number 22, 5043 Tyson Brody balance versus United States Department of Justice. [00:00:08] Speaker 02: Mr. McClanahan for the balance. [00:00:10] Speaker 02: Mr. Schultz for the Apple. [00:00:19] Speaker 04: Morning council. [00:00:20] Speaker 04: Whenever you're ready. [00:00:22] Speaker 04: Take your mask off. [00:00:25] Speaker 03: Understand a draw through a mask doesn't work very well. [00:00:29] Speaker 03: Appreciate it. [00:00:32] Speaker 03: Good morning, Your Honor. [00:00:34] Speaker 03: My name is Kel McClanahan. [00:00:35] Speaker 03: I'm here representing plaintiff Tyson Brody. [00:00:40] Speaker 03: I'm going to try and make this as brief as I can. [00:00:42] Speaker 03: This case is really just about two things. [00:00:49] Speaker 03: It's about the limit of the court's ability to presume good faith in agency declarations and the standard to which we would hold [00:01:01] Speaker 03: the U.S. [00:01:02] Speaker 03: federal government agency in making consistent arguments. [00:01:06] Speaker 03: This case has been building for over 10 years. [00:01:09] Speaker 03: Mr. Brody originally was with a nonprofit called Keeping Government Holden. [00:01:14] Speaker 03: One of the reasons he formed that nonprofit was to file FOIA requests and get to the bottom of how agencies handle records, handle FOIA. [00:01:24] Speaker 03: Since at least 2011, the FBI has insisted every time you challenge a search that the central record system is comprehensive. [00:01:36] Speaker 03: It is so comprehensive that any time a plaintiff attempts to make them in court conduct a search of somewhere outside of the CRS, the court inevitably says, due to the presumption of good faith, [00:01:52] Speaker 03: And the declarant statement that this system is comprehensive, we find that this search is happening because they just do. [00:02:04] Speaker 03: It has happened in over 30 cases and over 10 courts across the country from Alaska to D.C. [00:02:10] Speaker 01: But we have a little something different here with respect to the Hardy declaration though. [00:02:15] Speaker 01: I'm sorry, I can't. [00:02:16] Speaker 01: We have something a little different here with respect to the Hardy declaration because you have them indicating that we could search other places like the IMD database. [00:02:25] Speaker 03: And that is exactly the point. [00:02:27] Speaker 03: In 2015, there was a case called Mowgli v. either CIA or DOJ. [00:02:32] Speaker 03: I don't recall which. [00:02:34] Speaker 03: And in that case, that was the first time this issue came to this circuit. [00:02:38] Speaker 03: And says Rogers, [00:02:40] Speaker 03: And Judge Srinivasan asked the FBI's counsel, Thomas Byron, about this policy. [00:02:47] Speaker 03: Could they have to search systems outside of the CRS if they kept saying that only the CRS is comprehensive and that it only contained investigative materials? [00:03:01] Speaker 03: And Judge Rogers said, how does a person have to, say, file another FOIA request saying, look for emails that are not in your comprehensive system? [00:03:10] Speaker 03: Mr. Byron said, I don't think, actually, that a four-year requester is entitled to dictate the parameters of the search. [00:03:17] Speaker 03: Then later, Judge Rogers comes back and says, the FBI has made a judgment that 10 things are going to be useful for law enforcement purposes, that 12, 13, and 14, the other categories that were in her hypothetical, are not going to be useful. [00:03:33] Speaker 03: Is there no way to get the agency to look at 12, 13, and 14? [00:03:36] Speaker 03: Mr. Byron says, if a four-year request sees information [00:03:40] Speaker 03: that is not likely to be found in the law enforcement investigative context, then the agency will have to search beyond it. [00:03:47] Speaker 03: Mr. Brody and KGB filed a FOIA request to find out how comprehensive the CRS was. [00:03:54] Speaker 03: And even though it was so comprehensive that they never had to search anywhere else unless they had evidence convincing them that something was somewhere else, now all of a sudden there's so many records [00:04:06] Speaker 03: that are not in the CRS, that it would be an unduly burdensome search for them to find it. [00:04:13] Speaker 03: This is where the presumption of good faith comes in. [00:04:15] Speaker 03: This is where we ask, doesn't the court have to look at other cases the agencies proffers and declarations and evidence in other on-point cases to find out if the declaration is entitled to a presumption of good faith? [00:04:35] Speaker 03: and can they offer mutually exclusive arguments in different cases and still skate by? [00:04:44] Speaker 04: Sounds like you're arguing for judicial to stop. [00:04:48] Speaker 04: In a brief doesn't really mean it's a tough standard to meet. [00:04:52] Speaker 04: You didn't try brief. [00:04:55] Speaker 03: It's not exactly judicial a stoppable because that is a hard and fast. [00:04:59] Speaker 03: Oh, this is more of a [00:05:03] Speaker 03: court considering all of the evidence. [00:05:05] Speaker 03: If a plaintiff comes in and says, here's the witness saying the opposite thing in the definition of another case, in a trial, that would go to the jury. [00:05:15] Speaker 03: It would go to impeachment. [00:05:17] Speaker 04: But normally it would be consider all of the evidence in the case before us. [00:05:22] Speaker 04: We wouldn't go rummaging to look at affidavits filed in other cases. [00:05:28] Speaker 03: That brings it back to the plaintiff. [00:05:30] Speaker 03: The plaintiff has the burden to prove [00:05:33] Speaker 03: that you've overcome the presumption of good faith. [00:05:35] Speaker 03: They have the burden of proving that the agency is not arguing something, that they say they're arguing. [00:05:44] Speaker 03: And yet we can't get past this. [00:05:46] Speaker 03: The FBI takes for 10 years, 12, 13 years, the position that they never have to search anywhere other than CRS, and then says all of a sudden they cannot figure out what's not in CRS because there's so many records not in CRS. [00:06:01] Speaker 03: The same goes for the emails with the National Archives Archivist. [00:06:07] Speaker 03: They deliberately constructed an unduly burdensome search. [00:06:11] Speaker 03: We would have to search every single employee's email in order to do a thorough search because everyone is responsible for records management. [00:06:20] Speaker 01: Now, is this pilot study still going on? [00:06:22] Speaker 03: Pardon me? [00:06:23] Speaker 01: Is the pilot study still going on? [00:06:26] Speaker 03: No, just this case because it should be dissolved after a few years. [00:06:30] Speaker 03: I cannot finish what I was thinking. [00:06:32] Speaker 03: We'll give you extra. [00:06:33] Speaker 03: We'll let you. [00:06:35] Speaker 03: And they, sorry, I lost my track. [00:06:39] Speaker 03: So they developed this thing. [00:06:42] Speaker 03: They said everybody would have to be searched in order to meet our duties under FOIA. [00:06:49] Speaker 03: That's not what FOIA requires. [00:06:51] Speaker 03: Can you imagine what would happen if I stood here in a normal FOIA case? [00:06:56] Speaker 04: And they would say that... So let's... [00:07:00] Speaker 04: Let's explore that. [00:07:02] Speaker 04: Your request at its broadest covers all of FBI. [00:07:09] Speaker 04: And one limiting construction which might change the request by an order of magnitude or two is IMD. [00:07:20] Speaker 04: Is it IMD or RMD? [00:07:22] Speaker 04: It used to be RMD, now it's IMD. [00:07:26] Speaker 04: RMD only, right? [00:07:29] Speaker 04: might be not too burdensome. [00:07:32] Speaker 04: They seem to argue that it would be, but I would say okay, but but your position, your position in the brief defending some sort of narrowing construction wasn't IMD only. [00:07:48] Speaker 04: It was IMD and a few other offices. [00:07:55] Speaker 03: That's because we don't know. [00:07:56] Speaker 03: We don't know what they do. [00:07:57] Speaker 03: The SBI, the reason for this study is to find out what the agencies do not publicly disclose on their own volition about how they do this stuff. [00:08:08] Speaker 03: It is true that R&D is probably responsible for the lion's share of this correspondence, but there may be one or two other offices. [00:08:18] Speaker 03: We don't know. [00:08:18] Speaker 03: They don't say. [00:08:21] Speaker 03: That's why we have this. [00:08:22] Speaker 03: We can't just file 54 of us one for each office that we find in the organization chart. [00:08:28] Speaker 04: They would say, Oh, but if it's broader than IMD RMD, then it at least raises the possibility of what they say. [00:08:40] Speaker 04: What Hardy says, which is, um, it may not be [00:08:46] Speaker 04: everyone in FBI, but sort of figuring out who might have responsive documents is unduly burdensome. [00:08:53] Speaker 03: And they can't just focus on that is a fair point in the abstract as concrete as you would apply it though. [00:09:06] Speaker 03: This is something that there's two counter. [00:09:09] Speaker 03: Number one is even if they had to search everyone in FBI, they would have [00:09:14] Speaker 03: everyone in FBI searching their own email records for one or two addresses. [00:09:19] Speaker 03: It would not be an unduly burdensome search. [00:09:22] Speaker 03: It would take an all agency email, and it's done. [00:09:25] Speaker 03: That's how FBI does. [00:09:27] Speaker 03: The second thing, though, is that we're arguing that they cannot, when they want to refuse to process a request, deliberately construct something that would yield a perfect response when [00:09:43] Speaker 03: as I was getting to before we sort of sidetracked, if they had just searched CRS or something, and I tried to make them search somewhere else, can you imagine what you as a panel would say when I said, but they didn't uncover every record, but they didn't ask every single person at the FBI? [00:10:04] Speaker 03: You would say, that is insane. [00:10:06] Speaker 03: They can't have to do that. [00:10:07] Speaker 03: That is perfectly adequate, because adequacy is what you measure. [00:10:14] Speaker 03: kneecap themselves to show how burdensome something was unless they would be required to do that perfect search in another case. [00:10:25] Speaker 03: And my time is going way past and I can address anything. [00:10:28] Speaker 01: Do you have any basis for discrediting the Hardy affidavit? [00:10:31] Speaker 01: Pardon me? [00:10:31] Speaker 01: Any basis for discrediting the Hardy affidavit? [00:10:34] Speaker 03: Just everything else he said in every other case. [00:10:39] Speaker 03: The CRS is either comprehensive or exceptional. [00:10:42] Speaker 03: They have to search everywhere or they don't. [00:10:45] Speaker 03: It's mutually exclusive with all the other affidavits and all the other 30 plus cases. [00:10:54] Speaker 04: Thank you. [00:10:55] Speaker 04: We'll give you some remote. [00:10:57] Speaker 03: Thank you for this. [00:11:15] Speaker 02: May it please the court Benjamin Schultz on behalf of the Department of Justice. [00:11:19] Speaker 02: I want to focus first on the issue about the central record system because I think that was the main focus. [00:11:25] Speaker 02: You can speak up if you're talking through the mic. [00:11:31] Speaker 02: So focusing on the central record system, I think there's a little bit of confusion about what is going on in this case. [00:11:38] Speaker 02: What the FBI explained in its declaration [00:11:40] Speaker 02: And what OIP concluded when planning to file its administrative appeal is that while there is a way to determine sort of as a first cut which FBI emails were uploaded into the central record system and which ones weren't, it was only a first cut analysis. [00:11:55] Speaker 02: Sometimes there are going to be mistakes. [00:11:56] Speaker 02: People might initially designate something as a record only later to conclude that it's not, or initially think that something is a record only later to, or only, sorry, initially think that something isn't a record only later to conclude that it is. [00:12:08] Speaker 02: And what OIP expressly asked plaintiff, they said, is it OK if we look at that first cut analysis that's in the email system, or do you actually want us to do this massive cross-reference where we search 106,000 pages of email, email by email, to be absolutely, perfectly sure which ones are in the sample reference system or not? [00:12:30] Speaker 02: And the plaintiff said, no, we want absolute perfection. [00:12:33] Speaker 02: We really want you to do this massively burdensome search. [00:12:36] Speaker 02: And there's no inconsistency at all between FBI saying, look, we think the CRS is a really, really good system. [00:12:42] Speaker 02: Sometimes there are mistakes. [00:12:45] Speaker 02: Nobody's perfect. [00:12:46] Speaker 01: What about the IMD system? [00:12:48] Speaker 01: I'm sorry? [00:12:49] Speaker 01: What about the IMD system? [00:12:50] Speaker 02: I'm sorry, I'm not quite sure. [00:12:51] Speaker 01: The resource, the database that they're also asking if you just would narrow it there. [00:12:55] Speaker 02: I'm not sure that they're asking to search the IMD. [00:12:58] Speaker 02: They asked to search FBI emails, and then they wanted to know which FBI emails. [00:13:03] Speaker 01: I guess I'm asking if you're going to say it's so broad and it's so difficult and unduly burdensome and 17,000 hours, et cetera, to do that one, is there a lesser form somewhere? [00:13:16] Speaker 02: So one of the things that the FBI said is it went to the planet and said, look, within the FBI email system, which is not the central record system, it's a separate email system, they said within the email system, [00:13:26] Speaker 02: there are designations, and those designations can show whether something was a record or was not a record. [00:13:31] Speaker 02: Now, those designations are probably pretty good. [00:13:34] Speaker 02: We think that they're very likely to be accurate, but they're not 100% perfect. [00:13:39] Speaker 02: Do you want to rely on those very good designations, or do you want 100% perfection? [00:13:45] Speaker 02: And they said, we want 100% perfection. [00:13:47] Speaker 02: And the problem is getting that 100% perfection [00:13:50] Speaker 01: Was what was going to be unduly burdensome and that's why the agency ultimately concluded, but do you have an obligation under the case law that if, you know, it's going to lead to something else that you search there, or if you think that they have kind of in artfully crafted their for your request that you actually do have the information. [00:14:06] Speaker 01: Do you have a duty to disclose it in the form that you believe is appropriate? [00:14:10] Speaker 02: So this word is clear that it is not the obligation of the agency to rewrite the FOIA request. [00:14:16] Speaker 02: We just have to apply the FOIA request as written. [00:14:17] Speaker 02: But one of the things that the administrative process is designed to do is it's designed to have this process of accommodation where a request comes in and then you can informally go to the requester and say, okay, this thing you requested, [00:14:29] Speaker 02: We're not quite sure how to interpret it. [00:14:31] Speaker 02: Here's one way to do it. [00:14:32] Speaker 02: Here's another way to do it. [00:14:33] Speaker 02: Are you really asking for this thing that seems really, really burdensome? [00:14:37] Speaker 02: And a lot of times, usually most of the time, the requesters are pretty reasonable. [00:14:41] Speaker 02: They're like, OK, no, this is really what I'm interested in. [00:14:44] Speaker 02: And then we work with them, and there's accommodation, and we find a more targeted way to get at what they're getting at. [00:14:49] Speaker 02: This requestor, for whatever reason, decided, no, they really wanted absolute perfection. [00:14:54] Speaker 02: And that, the declaration explained, was something that would just be unduly burdensome. [00:14:58] Speaker 02: And to be clear, at that point, does that go to count four or also count three? [00:15:06] Speaker 02: So I think the point about them wanting the absolute perfection in the central, that would be count four. [00:15:12] Speaker 04: Okay, so let's talk, let's talk about count three unless. [00:15:16] Speaker 04: I mean, why isn't, why wouldn't it be a pretty good [00:15:24] Speaker 04: approximation just to search the RMD emails. [00:15:29] Speaker 02: Sure. [00:15:29] Speaker 02: So I think two responses to that. [00:15:31] Speaker 02: The first is the FBI's declaration explained that even if you just limited your search for the records management division, that's over 700 employees. [00:15:39] Speaker 02: And the way that their email system works, you have to go employee by employee. [00:15:43] Speaker 02: But the plaintiff is still asking for over 700 [00:15:46] Speaker 02: employees worth of email accounts being searched. [00:15:49] Speaker 04: But the other thing that is that is the FOIA office or the records management. [00:15:56] Speaker 02: So the office FBI that that is the umbrella organization that is responsible for FOIA processing. [00:16:04] Speaker 02: They have other responsibilities as well. [00:16:06] Speaker 02: But yes, that is. [00:16:07] Speaker 02: Um, that is the location. [00:16:09] Speaker 02: Yeah. [00:16:09] Speaker 02: Yeah. [00:16:10] Speaker 01: But do you ever explain that, um, undue burdensome with respect to the. [00:16:15] Speaker 01: I am the RMD. [00:16:17] Speaker 02: So, yeah, with respect to the records management division, the declaration does say that even within the records management division, there's over 700 employees. [00:16:25] Speaker 02: 712 or 718 and they each have two email addresses but then furthermore even the plaintiff doesn't think that that would have been responsive to the request and so that means that it's not just those 700 plus employees email addresses that you have to search one by one it's also whichever other ones it's also some select others right are hard to find and again whatever process we would use to identify what other email addresses we would have to reasonably search [00:16:53] Speaker 02: there will be some burden involved in that process. [00:16:54] Speaker 02: And then you have to actually conduct the search. [00:16:57] Speaker 02: And you know, the number of people is not clear at this point, but it's going to be more than zero. [00:17:01] Speaker 04: I mean, I'm not sure how there that is. [00:17:04] Speaker 04: I mean, the jumping off point for your worrying about breath is Hardy saying that every employee in the FBI has records management. [00:17:19] Speaker 04: has obligations to preserve such. [00:17:22] Speaker 04: I mean, that's obviously true, but I'm not sure it's really relevant. [00:17:26] Speaker 04: I mean, you know, every employee within civil appellate as [00:17:34] Speaker 04: an obligation under the Federal Records Act not to destroy documents that should be preserved. [00:17:39] Speaker 04: But no one would think that you would search civil appellate emails if someone comes in and requests civil division documents corresponding with NARA about record keeping. [00:17:55] Speaker 04: It's just not something the operational arms do. [00:18:00] Speaker 02: There are FOIA offices that handle that. [00:18:02] Speaker 02: So I don't think you have to rely on that analysis to affirm the district court's reading. [00:18:06] Speaker 02: I think one way that you could affirm the district courts... You could say IMD only is too broad, right? [00:18:12] Speaker 04: Too burdensome. [00:18:13] Speaker 04: But I'm exploring the IMD plus a select few others. [00:18:21] Speaker 02: Correct. [00:18:21] Speaker 02: We think the records management division alone, that's over 700 individual employees into two email accounts. [00:18:27] Speaker 02: We think that's burdensome and then you add on whatever else you think we might [00:18:31] Speaker 02: have to search for a reasonable search and that's additional burden. [00:18:33] Speaker 02: We think that was a sufficient basis to affirm the district court's judgment. [00:18:38] Speaker 04: Do you have any sense of how the FBI actually handles these things? [00:18:45] Speaker 04: I mean, are there field offices where someone is just [00:18:53] Speaker 04: assigned on an ad hoc basis some responsibility to deal with NARA and there's no central list of who that is. [00:19:01] Speaker 04: So you would have to look for needles in haystacks. [00:19:04] Speaker 02: So the declaration explains that the FBI doesn't maintain a list of employees whose official duties are interacting with the National Records and Archives Administration. [00:19:15] Speaker 02: As a practical matter, how the FBI might go about [00:19:18] Speaker 02: it figuring out who those people are. [00:19:21] Speaker 02: Um, you know, it might be a case specific case by case kind of thing. [00:19:25] Speaker 02: So I don't know definitively what the answer is on how they would, if, for example, this court order, the agency to implement a FOIA request, I appreciate the candor. [00:19:34] Speaker 04: It just seems like as a first cut, I would think it's that's going to be RMD. [00:19:38] Speaker 04: But I understand. [00:19:40] Speaker 01: And along with those questions, how do you ensure consistency in the response? [00:19:45] Speaker 02: So I'm not really sure how to answer that question, because as far as I understand it, the inconsistency that the plaintiff has been focusing on is a supposed inconsistency with how the agency treats the central record system. [00:19:56] Speaker 02: And I want to be absolutely clear that there is no inconsistency. [00:19:59] Speaker 02: We think the central record system is a comprehensive system. [00:20:02] Speaker 02: It's everything that we think we've said that it is. [00:20:05] Speaker 02: It's not a completely perfect system. [00:20:07] Speaker 02: I don't know that we've ever said that it is 100% perfect. [00:20:11] Speaker 02: And one of the things we asked the plaintiff here [00:20:13] Speaker 02: Do you truly want to know, is this system to get 100% perfection in figuring out what is and isn't in the system? [00:20:21] Speaker 02: And they said, yes, we want 100% perfection. [00:20:22] Speaker 02: And there's nothing inconsistent about us saying, look, we think the system is really good. [00:20:26] Speaker 02: We acknowledge it's not 100% perfect. [00:20:29] Speaker 01: So you're indicating that you have to go there. [00:20:31] Speaker 01: There's not a way to somehow minimize the search if somebody asked for a more narrow request. [00:20:37] Speaker 02: Well, the thing that the FBI and OIP on the administrative appeal said to the plaintiff is we said, look, there is a way that we could look at just the email system and there's a record-marking tool. [00:20:48] Speaker 02: We can take a first-cut analysis within that system at what was marked as a record and what wasn't. [00:20:54] Speaker 02: And that might be a really good approximation [00:20:56] Speaker 02: of what was in this as in CRS. [00:20:58] Speaker 02: Things that were marked as record probably ended up in CRS. [00:21:01] Speaker 02: Things that were not marked as record probably didn't. [00:21:03] Speaker 02: But to be 100% sure, we would then have to do the second step of doing this massive cross check. [00:21:09] Speaker 02: And that's why we asked the plaintiff, are you really asking us to do this massive cross check to get from a pretty good approximation to 100% perfect? [00:21:16] Speaker 02: And they said, we want 100% perfect. [00:21:23] Speaker 04: Thank you. [00:21:38] Speaker 03: Thank you, Your Honors. [00:21:41] Speaker 03: Y'all have asked most of the questions that I wanted you to ask. [00:21:43] Speaker 03: So I just have a few rebuttal points to what they said, or what my opposing counsel said in response. [00:21:52] Speaker 03: The first thing is they keep focusing on this first cut. [00:21:55] Speaker 03: The way that they found it, they said, well, it looks like RMD, IMD have posted the records. [00:22:01] Speaker 03: Oh, sorry, that was the second. [00:22:03] Speaker 03: It looks like, can we just go by the tag that's in it? [00:22:07] Speaker 03: And they said, well, the plaintiff for whatever reason insisted that it be perfect. [00:22:12] Speaker 03: Have you ever seen a FOIA case where the plaintiff insisted that a search be perfect? [00:22:16] Speaker 03: And yet the agency still successfully defended a less than perfect search. [00:22:21] Speaker 03: They deliberately chose to refuse to process it because they could not provide perfection. [00:22:29] Speaker 03: If that were the standard, you would have far less summary judgment cases because [00:22:34] Speaker 03: the agency would never perform a search that the plaintiff did not insist on. [00:22:41] Speaker 03: That is deliberately choosing to dodge FOIA. [00:22:44] Speaker 04: It seems a little bit different if that dispute is being aired out after the fact. [00:22:55] Speaker 04: They do the search, you say they didn't do enough, they say we did do enough. [00:23:01] Speaker 04: That's how that issue usually comes up. [00:23:04] Speaker 04: that seems a little bit different from what we're talking about here, which is you make a facially broad, burdensome request. [00:23:13] Speaker 04: They come back to you and say, Hey, can we do something a little bit narrower? [00:23:18] Speaker 03: And you say no, that's exactly what happened in the mobile case that Judge Roger was talking about, where the part I lied it over was when [00:23:28] Speaker 03: Mr. Byron talked about the emails that I sent him about it. [00:23:34] Speaker 03: That was all free litigation. [00:23:37] Speaker 03: That was all administrative state. [00:23:40] Speaker 03: And my time is up. [00:23:42] Speaker 03: Go ahead. [00:23:44] Speaker 03: And so the point here is that the agency [00:23:51] Speaker 03: If they had come before you or before the district court and said, we only searched for the things that had the tag CRS, would you have given that summary judgment? [00:24:05] Speaker 03: Would the district court have given that summary judgment? [00:24:08] Speaker 03: Probably. [00:24:09] Speaker 03: They didn't do that. [00:24:10] Speaker 03: They did not do the search that they knew they could get away with doing because they didn't want to process it, because they didn't want to show, for whatever reason, that there's a lot of stuff [00:24:21] Speaker 03: Not in CRS, that they've been telling every court they don't have to look for. [00:24:27] Speaker 03: And this goes to the last point, which is they talk about having a list. [00:24:38] Speaker 03: They don't have a list of everybody who deals with NARA. [00:24:42] Speaker 03: Well, they don't have a list of everybody on hand that deal with every topic they get a FOIA request for. [00:24:49] Speaker 03: That is the charm of the FOIA. [00:24:51] Speaker 03: is to develop such a list. [00:24:53] Speaker 03: They even said that would be creating records. [00:24:56] Speaker 03: We can't be required to compile a list of possible record holders. [00:25:00] Speaker 03: That's what they do. [00:25:03] Speaker 04: The absence of the list is a measure of how burdensome it's going to be to comply with the search. [00:25:10] Speaker 04: I don't think so. [00:25:11] Speaker 03: I think that... With your request. [00:25:13] Speaker 03: I think that even if you assume that IMD were the proper place for that [00:25:22] Speaker 03: request that it would own the IMD. [00:25:25] Speaker 03: It wouldn't be everybody in IMD. [00:25:27] Speaker 03: They are deliberately inflating. [00:25:30] Speaker 03: the amount of time it would take to do this. [00:25:32] Speaker 03: Saying that they'd have to work for 30 minutes on every email to figure out if it was in the CRS. [00:25:38] Speaker 03: Saying that everyone in the agency would have to search their emails or that everyone in IMD would have to search their emails. [00:25:43] Speaker 03: Most of the people in IMD have nothing to do with record keeping. [00:25:46] Speaker 03: They have to do with FOIA and classification and stuff like that. [00:25:50] Speaker 03: They're feeding the court a parade of horrors and there was no room given [00:25:59] Speaker 03: for the possibility that they were not acting in good faith, because they wanted to not process the spoiler. [00:26:06] Speaker 03: They wanted to not preserve the records. [00:26:09] Speaker 03: They didn't have to find all the records to preserve them. [00:26:12] Speaker 03: They just had to say, hey, if you have records like this, preserve them. [00:26:17] Speaker 03: Five-minute email across the entire agency, and I have nothing else on the sheet of paper. [00:26:22] Speaker 03: Any questions? [00:26:23] Speaker 04: No. [00:26:25] Speaker 04: Thank you. [00:26:25] Speaker 04: Thank you very much. [00:26:26] Speaker 04: Case submitted.