[00:00:00] Speaker 03: Case number 23-5236, Human Rights Defense Center at Balance versus United States Park Police. [00:00:08] Speaker 03: Mr. Davie, for the balance. [00:00:10] Speaker 03: Mr. Boldy, for the appellee. [00:00:17] Speaker 02: Morning, Mr. Davie. [00:00:18] Speaker 02: You may proceed when you're ready. [00:00:20] Speaker 05: Thank you, Your Honor. [00:00:22] Speaker 05: Your Honors, may it please the court. [00:00:24] Speaker 05: The district court made two independent errors here. [00:00:27] Speaker 05: First, it erred by not ordering the park police to disclose the names of officers whose misconduct gave rise to settled federal tort claims because the government never connected specific or any harms to potential release. [00:00:40] Speaker 05: Second, it erred by imposing a permanent prior restraint, clawback of information the government inadvertently disclosed, relying on only the inherent powers of the court. [00:00:53] Speaker 05: This court should reverse both errors. [00:00:54] Speaker 02: You refer to settled federal court claims. [00:00:57] Speaker 02: Were these claims filed in federal court? [00:00:59] Speaker 05: Sorry, settled federal tort claims. [00:01:01] Speaker 02: Misheard. [00:01:02] Speaker 05: Yeah, that's my fault. [00:01:03] Speaker 05: Sorry. [00:01:04] Speaker 05: Federal tort claims, I believe that one of them, and you can kind of tell this at around JA58. [00:01:09] Speaker 05: One of them, I think, was settled only at the claim stage where they'd filed the SF95 form. [00:01:15] Speaker 05: And I think one of them had a docket number. [00:01:18] Speaker 05: But yes. [00:01:19] Speaker 05: But anyway, I'm happy to address these points. [00:01:22] Speaker 05: These are distinct issues, and so I'm happy to address them in either order at the court's preference. [00:01:29] Speaker 02: Why don't you go ahead and whatever. [00:01:30] Speaker 05: Certainly. [00:01:31] Speaker 05: I'll start then with the officials' names. [00:01:35] Speaker 05: I think the district court aired there primarily because the government [00:01:40] Speaker 05: failed at the first step. [00:01:41] Speaker 05: They have not shown that disclosure would compromise a significant privacy interest on the part of these officers. [00:01:48] Speaker 05: As they've conceded, the Park Police never asserted any potential harm that would come to the officers by virtue of disclosure, speculative or otherwise. [00:01:56] Speaker 02: Why do you say they concede that? [00:01:58] Speaker 05: In their brief around page 16, it sort of says that, oh, you know, if the court thinks that we didn't, they acknowledge that the district court sort of supplied the potential harm. [00:02:11] Speaker 05: And they say, oh, they asked for a remand. [00:02:13] Speaker 05: They say, oh, we should, you know, if this court doesn't think that we did enough, we should get a remand and a second bite at the apple. [00:02:19] Speaker 05: I have reasons why the court shouldn't do that. [00:02:21] Speaker 05: I know that that's something that this court occasionally does. [00:02:25] Speaker 05: I don't, you know, obviously my colleague will have his opinion about that, but I don't think that if you look at the declarations that they put in the record, they don't assert a harm that would come to the officers of the release of these names. [00:02:39] Speaker 05: And they don't connect that harm to disclosure, which I think it's too [00:02:45] Speaker 05: independent problems there. [00:02:46] Speaker 02: So you're referring to page 15, where the government says, although the index and the government's declarations did not specifically analyze the nature of the privacy interest at issue, the district court correctly recognized the names of the officers in order for the public to infer that they engage in wrongdoing. [00:03:03] Speaker 05: That's right. [00:03:03] Speaker 05: And the district court, it's in the district court opinion that J-70 is where the district court is suespante, just supplying its own sort of [00:03:13] Speaker 05: view of what the privacy interests are. [00:03:16] Speaker 04: So the agency cites a case called Niskanen, which sort of seems to do what you were saying is improper in terms of the court supplying its own rationale, arguably in a case where it was just self-evident what the harm was. [00:03:33] Speaker 04: And I'm curious how you would distinguish that case. [00:03:35] Speaker 05: I mean, I think there's a few distinctions here. [00:03:38] Speaker 05: One of them, I think, [00:03:40] Speaker 05: I think one of the key distinctions which we talked a lot about brief is that this really is only about names and I think it's canon and I think a couple of the other cases that my colleagues relied on involved names plus other information that would make the harm. [00:03:56] Speaker 05: more foreseeable, including home addresses or things like that. [00:03:59] Speaker 04: I guess the problem is that if it's ever OK for the court to come up with its own reasons, then that's the principle that's a problem. [00:04:08] Speaker 05: I can't speak to the particular briefing that went into that case. [00:04:13] Speaker 05: But I think the weight of authority in this court is that district courts should not be suespante supplying their own privacy justifications. [00:04:21] Speaker 05: It's incumbent upon the government to assert that. [00:04:24] Speaker 05: And I think that's true whether you look [00:04:26] Speaker 05: You know, the Reporters Committee case in 2021 that specifically talks about the effect of the 2016 FOIA amendments. [00:04:34] Speaker 05: The 2016 FOIA amendments make it very clear in statute that the government has to do that. [00:04:38] Speaker 05: Not only has to do it, but has to do it with reasonable specificity. [00:04:42] Speaker 04: You mentioned you had reasons the government shouldn't get another chance on remand. [00:04:46] Speaker 04: That's right. [00:04:47] Speaker 05: I can give you five different reasons for that, Your Honor. [00:04:51] Speaker 05: One of them is that even now, they don't offer anything in the briefing. [00:04:56] Speaker 05: I think the August case, or the Leopold case, or whichever case it was, the government, at least in their appellate brief, said, here's what we would put into the record on remand. [00:05:05] Speaker 05: And here, the government says, the direct quote at page 16 of their brief is, no more explanation is required. [00:05:12] Speaker 05: And so I think you should take them at their word [00:05:15] Speaker 05: No more explanation is required in their view. [00:05:17] Speaker 05: What else would they put in the record in the district court? [00:05:19] Speaker 05: That's the first reason. [00:05:20] Speaker 05: The second reason is that it does not serve judicial economy to just send these back up and down repeatedly and do rounds and rounds of briefing on things that frankly should be briefed in the first instance. [00:05:33] Speaker 05: The third is that the specificity of harm [00:05:37] Speaker 05: Because they've always needed to offer some arm. [00:05:39] Speaker 05: They point to the idea that this Reporters Committee case, they couldn't possibly have known that they needed to do this based on the plain text of the 2016 FOIA amendments. [00:05:48] Speaker 05: And I think that if you look at both the plain text of the amendments themselves, but also if you look at all of these [00:05:59] Speaker 05: even predating the amendments, all of the cases that say, look, you need to show some harm. [00:06:06] Speaker 05: You need to offer some harm into the record. [00:06:08] Speaker 05: They haven't even done that here. [00:06:09] Speaker 05: It's not even really about specificity, which is what the Reporters Committee case is about. [00:06:12] Speaker 05: They've offered no harms. [00:06:14] Speaker 05: They just relied on the district court to do that. [00:06:16] Speaker 05: The next reason is the Reporters Committee case, again, I think they offer that as they call it intervening authority, which is one of the things that might justify a remand instead of [00:06:29] Speaker 05: instead of an outright reversal. [00:06:30] Speaker 05: And in addition to the Reporters Committee case, that itself relies on a case from 2020 called Machado. [00:06:37] Speaker 05: There are all of these District of the District of Columbia decisions that predate this case involving the government defending FOIA requests, and all of those are just sitting there. [00:06:47] Speaker 05: And Reporters Committee itself, the quote is apparent from the statutory text alone, and the statutory text is from 2016. [00:06:53] Speaker 05: And then the last reason is that I think that this general practice that sometimes happens of remanding instead of reversing to give the government a second bite at the apple undermines the purpose of the FOIA. [00:07:07] Speaker 05: The FOIA is meant to facilitate disclosure. [00:07:12] Speaker 05: And a lot of this, I represent journalists, there's a lot of media organizations that put an amicus brief in here describing the effect of [00:07:21] Speaker 05: You know, repeated delays of giving the government second bites at the apple. [00:07:26] Speaker 05: I just don't think it's justified here for all of those reasons. [00:07:29] Speaker 04: My only question in this is, you mentioned the August case, and the big difference there is that the government wanted to invoke a new exemption on remand. [00:07:37] Speaker 04: Do you have any case where the government was saying, we just want, or the [00:07:45] Speaker 04: remand would be to offer more explanation for the same exemption, and we didn't allow the government. [00:07:50] Speaker 04: No, Your Honor. [00:07:51] Speaker 05: And I think that the, I think that one of the, again, I think that what that highlights, I acknowledge that this is a common practice here, right? [00:08:00] Speaker 05: But again, where I think, I haven't read all the briefs in all of those other cases, right? [00:08:04] Speaker 05: But where, again, here, the government says, they explicitly say to this court, no more explanation is required. [00:08:11] Speaker 02: Why isn't it just self-evident that on, [00:08:16] Speaker 02: Honest claim tort claims that have not been established that disclosing that officers were accused and that money was paid out would effectively disparage these officers. [00:08:31] Speaker 02: Why isn't that just obvious? [00:08:33] Speaker 05: I think that, I mean, for one thing, I think that if you look at some of the other authority in this court's history, they talk about fully unsubstantiated, they talk about, you know, complaints that are made that the government never does anything about, right? [00:08:49] Speaker 05: And here I think there's two differences, right? [00:08:50] Speaker 05: One of them I think is that settling these federal tort claims for [00:08:54] Speaker 05: more than nuisance value, I think speaks to it being- Is it more than nuisance value? [00:08:58] Speaker 05: I think so, as someone who has spent a long time doing plaintiff side civil rights claims and has been offered substantially less than that by the government in a lot of cases. [00:09:07] Speaker 05: And so I think yes. [00:09:08] Speaker 05: And then I think the other point that I would, at least one of these officers, and this is in the record too, had a substantiated internal affairs investigation. [00:09:16] Speaker 05: And so I think even if you're, I mean, that's a separate problem. [00:09:20] Speaker 05: And we wrote about this in the brief too, [00:09:21] Speaker 05: the district court treating them as a monolith, even though they're differently situated in slightly different ways, I think is a separate problem. [00:09:29] Speaker 05: But again, I think that there's a difference between [00:09:34] Speaker 05: Like in Stern, for example, and Stern even was under Exemption 7C instead of Exemption 6, still called it a closed case. [00:09:41] Speaker 05: But in Stern, they specifically talk about non-intentional conduct on the part of the officers. [00:09:46] Speaker 05: And in the tort cases, in any case where there's a tort claim made, or not any case, but in a lot of them, all the ones here, you're talking about intentional conduct on the part of the officer, which I think is another difference. [00:09:55] Speaker 05: I do want to make sure, however, to get to the clawback issue prior to having to sit down. [00:10:01] Speaker 05: And so I want to talk about that because, [00:10:03] Speaker 05: I think the district court erred by ordering permanent prior restraint in the form of clawback because it does not qualify under the precedence of this court or the Supreme Court limiting the broad application of the court's inherent powers. [00:10:18] Speaker 05: And the biggest reason for that is that it's inconsistent with the First Amendment. [00:10:22] Speaker 05: The Supreme Court and this court have long, long strings of authority. [00:10:26] Speaker 05: that permanently enjoining, especially journalists, from using information they have lawfully obtained. [00:10:32] Speaker 05: And the order here is very broad, right? [00:10:34] Speaker 05: It says they're not allowed to publish, they're not allowed to disseminate, or even make use of, which would seem to even enjoin them from doing any sort of internal investigation or anything with that. [00:10:47] Speaker 02: I'm following. [00:10:47] Speaker 02: And under a federal rule of civil procedure, I know your argument is that they don't apply, and they may not apply. [00:10:52] Speaker 02: That's right. [00:10:53] Speaker 02: But should we conceptualize [00:10:56] Speaker 02: obligations to destroy or return mistakenly disclosed information under Federal Rule 26B5B or Federal Rule of Evidence 502B as prior restraints? [00:11:11] Speaker 02: I've never heard of that as a prior restraint situation. [00:11:15] Speaker 05: I agree with you, Your Honor. [00:11:15] Speaker 05: And I think there are two key differences here. [00:11:17] Speaker 05: One is that this is FOIA disclosure. [00:11:21] Speaker 05: This is not [00:11:22] Speaker 05: civil discovery. [00:11:23] Speaker 05: And there are so many differences between those things, right? [00:11:26] Speaker 05: And in civil discovery, you have to show a need, and the FOIA provides a background entitlement. [00:11:33] Speaker 05: In civil discovery, there's different standards around privacy. [00:11:36] Speaker 05: In civil discovery, they consider availability from other sources differently than the FOIA does. [00:11:43] Speaker 02: But isn't it structurally assumed that there is an applicable, just to make it harder, an applicable privilege under FOIA [00:11:52] Speaker 02: And so it's quite parallel in terms of the interests underlying and something has been mistakenly turned over. [00:12:05] Speaker 02: Why does it become a First Amendment prior restraint in the FOIA context and not in the [00:12:14] Speaker 02: federal rule litigation context. [00:12:16] Speaker 02: It seems like maybe there would be a difference in terms of how you'd analyze the judicial power, but I don't really follow why it changes the First Amendment. [00:12:27] Speaker 05: I think that the key difference is litigation versus non-judicial sources. [00:12:32] Speaker 05: And this sort of gets to the difference between Florida Star and Seattle Times. [00:12:35] Speaker 05: I think the key issue is whether you're thinking of disclosure under the FOIA as coextensive with civil discovery or not. [00:12:44] Speaker 05: And I think maybe the easiest way to think about this is to think about this [00:12:49] Speaker 05: in practice how these FOIA cases happen, right, which is there are a number of failures that have to happen along the way, like a requester makes a request. [00:12:58] Speaker 05: Normally the government is just supposed to produce those records, right? [00:13:02] Speaker 05: That's what they're supposed to do. [00:13:03] Speaker 05: Here they didn't reply at all, which is why it ended up being filed. [00:13:08] Speaker 05: But, you know, I think one of the things that Your Honor's question gets at is it would be very strange [00:13:13] Speaker 05: to say that if the government inadvertently discloses a document prior to the party having to file a complaint in federal court, they couldn't do anything about it. [00:13:23] Speaker 05: But if they're doing it after they themselves have dragged their feet and then have forced the requester to file a complaint, [00:13:32] Speaker 05: Even though the district court is not managing FOIA disclosure in the same way that they're managing civil discovery, it's odd to then say that the government gets more protection after having been recalcitrant, even though the process is exactly the same, which is to say the government just disclosing records. [00:13:49] Speaker 02: That seems to me to go to the question of the court's inherent authority or not, as opposed to the First Amendment. [00:13:58] Speaker 02: This seems to be a little bit bootstrapping to say that something that the recipient is not entitled to by hypothesis under FOIA, the fact that it's turned over erroneously raises a prior restraint. [00:14:19] Speaker 05: I think that the vast majority of the Supreme Court's prior restraint cases involve information that the individual was not entitled to. [00:14:24] Speaker 05: Whether you're talking about, you know, Florida Star itself, which is information that even under Florida state law was not even allowed to be disseminated. [00:14:32] Speaker 05: If you're thinking about the Pentagon Papers, if you're thinking about NEAR, if you're thinking about all of these cases, there's not actually the question of whether [00:14:39] Speaker 05: A party is entitled to them in the first instance is not really relevant. [00:14:42] Speaker 02: So your your position is that it was the SDNY case. [00:14:46] Speaker 02: The ACLU case was wrongly decided. [00:14:48] Speaker 02: I think classified information was erroneously released. [00:14:52] Speaker 02: The fact that that information has a classification is not a way to distinguish it from. [00:14:58] Speaker 05: I mean, I think if you look at near the Supreme Court case, they contemplate. [00:15:04] Speaker 05: It's not that it could never happen in any circumstances, but it's a prior restraint analysis. [00:15:09] Speaker 05: And if you look at near, they contemplate troop movements. [00:15:12] Speaker 05: There's a certain very high burden that the government has to meet to show that they've [00:15:17] Speaker 05: And it's possible that the ACLU case, I don't know exactly. [00:15:20] Speaker 05: I certainly know it was a complicated and I think sealed record. [00:15:23] Speaker 05: I don't know everything that was in it. [00:15:26] Speaker 05: But it's possible they could have attempted to meet it there. [00:15:28] Speaker 05: I think if you look at this case, there's no possible argument. [00:15:33] Speaker 05: There's anything here that falls within any of that. [00:15:36] Speaker 04: On the flip side, yeah. [00:15:40] Speaker 04: That's an argument that the First Amendment analysis would be different if there were sensitive national security materials. [00:15:47] Speaker 04: But your position is that there's no inherent clawback authority in the first place. [00:15:52] Speaker 04: I'm not sure how that analysis would differ based on the nature of the document. [00:15:56] Speaker 05: It's not that there's no inherent clawback authority in the first place. [00:15:59] Speaker 05: It's that it would need to be at least consistent, like any inherent, any exercise of inherent authority by a court. [00:16:07] Speaker 05: has to at least be consistent with federal statute and the Constitution. [00:16:12] Speaker 05: And so if they're exercising inherent powers, it cannot transgress the bounds of the First Amendment. [00:16:19] Speaker 05: And so again, I think it's possible [00:16:21] Speaker 05: that there's some case, again, maybe it's troop movements as near hypothesized, maybe it's something else that's that level of whatever, the government has a very high burden that they have to meet to justify a prior restraint in general. [00:16:35] Speaker 05: And I think there's no reason to distinguish the clawback context from the burden that they have to meet when they're asking for a prior restraint in general. [00:16:44] Speaker 02: So would we need to reach the First Amendment issue if we thought, unlike in the ACLU case where the court had ordered disclosures under FOIA, here the court has not ordered any disclosures. [00:16:58] Speaker 02: The court has just said, get together, do what you should have done before the lawsuit was filed, and only come to me when you've done what you can do voluntarily under the law. [00:17:13] Speaker 02: So there really isn't the notion that, I mean, I don't think anybody's arguing that there's a historical basis for this CLAWB Act. [00:17:19] Speaker 02: No, certainly not. [00:17:19] Speaker 02: And there are other basis that it's in protection of the court's authority. [00:17:24] Speaker 02: It's a little bit hard to see in this fact pattern. [00:17:28] Speaker 02: Or if we were to conclude that on this fact pattern, the court's authority is not threatened by the mistake and disclosure, and therefore the CLAWB Act doesn't [00:17:39] Speaker 02: arise or isn't justified on that basis, then do we need to reach any First Amendment issue at all? [00:17:48] Speaker 05: I mean, obviously, it's at your discretion to how you want to resolve this case. [00:17:53] Speaker 05: I think if you wanted to resolve it in that way, you don't need to write this broad opinion that gives me absolutely everything that I ask for as much as I would want that. [00:18:03] Speaker 05: But on the facts of this case, I think Your Honor is right. [00:18:07] Speaker 05: And this is sort of what I was alluding to before, right, which is that the, you know, the way that my colleague is sort of characterized it as like, you know, by calling it like a meet and confer, they're trying to make it sound like it's. [00:18:16] Speaker 05: normal civil discovery, and it just isn't. [00:18:19] Speaker 05: The district court, you file the complaint, and then you just file repeated status reports while the production is happening, the exact same production that should have been happening prior to filing a complaint at all. [00:18:28] Speaker 05: And that does not require court intervention in any way. [00:18:31] Speaker 05: And so you absolutely could resolve it on that basis. [00:18:33] Speaker 05: I think that's right, Your Honor. [00:18:36] Speaker 05: But again, I think that the First Amendment question [00:18:44] Speaker 05: I think it's important, but I think you could resolve it. [00:18:47] Speaker 05: You could resolve it that way. [00:18:48] Speaker 05: Yes, Your Honor. [00:18:49] Speaker 03: Good. [00:18:49] Speaker 03: See how we could not. [00:18:51] Speaker 03: If the problem is that there's no authority, how could we possibly go beyond that to a constitutional? [00:18:57] Speaker 05: Well, the question is why there's no authority, I think, right? [00:19:00] Speaker 05: And if there's not authority to? [00:19:02] Speaker 03: Well, under the criteria in COBEL, which are not constitutional criteria. [00:19:06] Speaker 05: That's true. [00:19:07] Speaker 05: That's true, Your Honor. [00:19:08] Speaker 05: Yeah, if you believe, if you agree with that argument, I think that's right. [00:19:13] Speaker 05: We agree with what? [00:19:14] Speaker 05: The argument that there's no authority to order clawback. [00:19:17] Speaker 05: Yeah. [00:19:18] Speaker 03: Yeah. [00:19:18] Speaker 03: End of story. [00:19:19] Speaker 05: Yeah. [00:19:21] Speaker 05: I'm happy to talk more about either clawback or I'm happy to see you on the road. [00:19:26] Speaker ?: All right. [00:19:27] Speaker 05: Thank you. [00:19:27] Speaker 05: Thanks. [00:19:44] Speaker 02: Good morning, Mr Baldy. [00:19:45] Speaker 01: Good morning. [00:19:46] Speaker 01: May it please the court. [00:19:47] Speaker 01: I'd like to begin where we left off with the clawback issue. [00:19:51] Speaker 01: Last year, federal agencies processed more than 1.1 million FOIA requests. [00:19:57] Speaker 01: How many? [00:19:57] Speaker 01: 1.1 million, Your Honour. [00:19:59] Speaker 01: And at that volume, unfortunately, but inevitably, some mistakes are going to happen. [00:20:03] Speaker 01: And given the type of information, the government holds the consequences of those mistakes can be quite catastrophic. [00:20:09] Speaker 01: It could be the, the inadvertent disclosure of classified information. [00:20:12] Speaker 01: I looked at the national security. [00:20:14] Speaker 01: It could be information that's not about the government about, but about a third party whose information the government holds. [00:20:21] Speaker 01: So whether that's [00:20:22] Speaker 01: the company's trade secrets, the disclosure of which could destroy a business, or information about an individual that's incredibly sensitive, whether that's who's taken leave from a federal job to cross state lines to get an abortion, to immigration status, to records of medical treatment and psychiatric care in a government facility. [00:20:42] Speaker 01: There's a lot of information that, if disclosed, could be quite devastating. [00:20:47] Speaker 01: And in this case, we have information where the plaintiff [00:20:51] Speaker 01: And the district court came into court. [00:20:53] Speaker 01: Invoke the authority of the court and said we want you to resolve the question of whether we're entitled to information about these claims, including the claimants names and the district court said no, you're not entitled to it. [00:21:09] Speaker 01: failure to redact the names in a few instances in these documents, they say that they're entitled to keep it anyhow and to publicize it, to make use of it. [00:21:17] Speaker 01: And I don't think that's right. [00:21:18] Speaker 02: I think that... Is there any reason that someone who files a tort claim against the park police would have an expectation that their name would be kept confidential? [00:21:30] Speaker 01: So for the tort claim, your honor, there's there's two claims here where with an important disclosure. [00:21:36] Speaker 01: One is an EEO claim, one is a tort claim, and I'd like to address that question for both of them. [00:21:40] Speaker 01: For the tort claim, [00:21:42] Speaker 01: I don't know other than the idea that this might be subject to exemption six, that there would be a strong expectation of privacy. [00:21:52] Speaker 01: But I do think there's a difference between filing an administrative claim and then taking the further step of going into district court where you have to put everything about yourself into the public record and on a public docket. [00:22:04] Speaker 01: And for the EEO claim, the claimant in this case, I think, does have an expectation of privacy. [00:22:10] Speaker 01: EEO processes are confidential until a lawsuit is filed in district court, and the claimant here alleges sexual harassment and discrimination. [00:22:20] Speaker 03: The party has an expectation of privacy as against the government. [00:22:26] Speaker 03: I'm sorry, Your Honor. [00:22:27] Speaker 03: The expectation of privacy is an expectation against the government, but the government will not be invading citizens' rights. [00:22:36] Speaker 01: Well, Your Honor, I think, for example, if a federal employee files a Title VII charge against the government and it goes through an EEO investigation, there's both statutory and regulatory protections that say that that information can't be disclosed unless litigation filed in district court. [00:22:55] Speaker 01: So that's protection against the prying eyes of anyone who might be curious what's going on there but isn't the government. [00:23:01] Speaker 01: I think that's a protection against the public at large. [00:23:03] Speaker 01: As for the tort claim, you know, I think the expectation of privacy might be somewhat diminished. [00:23:10] Speaker 01: But again, here, I don't think we have to resolve that because the district court held [00:23:17] Speaker 01: that the claimants have a substantial interest in privacy, that it's not overcome by public interest and disclosure, and that's not contested in this court. [00:23:27] Speaker 01: That's an established baseline that there's just no right to breach those privacy protections and obtain the information. [00:23:37] Speaker 04: Um, if I could talk about sort of one question about the practical consequences, you mentioned, for example, certainly it is a helpful hypo hypo for you if these were, you know, national security related or classified documents. [00:23:51] Speaker 04: And I am curious if you know, whether in outside of the FOIA context, if a nongovernmental employee [00:23:58] Speaker 04: comes into possession of classified materials, does the government have authority to seek an order prohibiting them from disseminating materials? [00:24:08] Speaker 04: Just sort of like criminal prosecutions under the espionage act. [00:24:11] Speaker 01: So Your Honor, I don't think that's an issue here. [00:24:15] Speaker 01: But the government has taken the position that it does have that ability in certain cases. [00:24:21] Speaker 01: I think the standards are different. [00:24:22] Speaker 01: The sources of authority are different. [00:24:23] Speaker 01: And frankly, the constitutional dimensions are different. [00:24:28] Speaker 04: I am sympathetic to those arguments, which would mean that in that kind of a case, you, the government, can make a different kind of argument about clawing back those types of documents, doesn't it? [00:24:41] Speaker 01: In the classified information context, certainly in some of these other contexts I've talked about where maybe the impact isn't [00:24:50] Speaker 01: harmful to the nation as a whole, but could be no less harmful. [00:24:55] Speaker 01: If we had an inadvertent disclosure of the name of a deep cover CIA operating overseas, that's classified. [00:25:03] Speaker 01: If you have the disclosure of the name of a confidential informant who's working with law enforcement or an undercover officer who's working with law enforcement and could be killed if that name is disclosed, I don't think those same national security arguments apply. [00:25:18] Speaker 01: So I'm not sure that that [00:25:19] Speaker 01: You know, the worst case for the government is both helpful and unhelpful to me. [00:25:24] Speaker 01: I think, you know, if you think it happens here, then we're in a realm where that inherent authority exists and then we can discuss whether it's appropriate here. [00:25:32] Speaker 01: But I don't, I'm not sure that, you know, saying [00:25:36] Speaker 02: So there is no provision for clawback in FOIA. [00:25:42] Speaker 02: And I noticed that under rule 502 of the evidence rules, a precondition of recovering something that was inadvertently disclosed is that the holder of the privilege or protection took reasonable steps to prevent the disclosure. [00:25:58] Speaker 02: And there's been no showing at all here what the government's process is or whether there were any reasonable steps taken [00:26:05] Speaker 02: to prevent inadvertent disclosure, why should we infer a clawback that doesn't even have the kinds of controls that Congress or rule makers might have put on the clawback had they considered the issue? [00:26:22] Speaker 01: I'll address both parts of that. [00:26:24] Speaker 01: As to what steps the government took, I think you do see in the record that the government [00:26:32] Speaker 01: Fairly quickly, when it realized what happened, asked the plaintiff not to disclose it, asked them to return it. [00:26:38] Speaker 01: They said no, and then they asked the plaintiff, okay, let's let the court resolve this whole, please don't disseminate this information until it resolves it, and the plaintiff agreed to that. [00:26:47] Speaker 01: So they took sort of the same sort of immediate steps that you would think of. [00:26:53] Speaker 01: Under a 502 analysis, normally what you're looking at is, did you, one, are you holding it confidentially? [00:26:59] Speaker 01: And two, do you immediately say to the other side, we made a mistake, please stop this? [00:27:03] Speaker 02: Maybe I'm misreading it, but I had read it that the disclosing party has to show we have a cross check before we give this stuff over. [00:27:13] Speaker 02: We have some kind of, [00:27:16] Speaker 02: search or review mechanism in place, we're not just rushing and being willy-nilly and then asking the court to claw back. [00:27:28] Speaker 02: Maybe I'm wrong, but not the promptness of the post-disclosure activity, but actually preventing disclosure in the first place. [00:27:38] Speaker 02: Yeah, and that's not how you read 502. [00:27:40] Speaker 01: That's not how I read it. [00:27:41] Speaker 01: And I'll be honest, I have not done a deep dive into the 502 case law to see whether that's a requirement. [00:27:48] Speaker 01: But what I will say is, when we look, when we're pointing to things like 502 and 26, [00:27:54] Speaker 01: B5B. [00:27:56] Speaker 01: We're not pointing to this to say this is applicable law, but we're pointing to it as here's a body of law that might be useful. [00:28:02] Speaker 02: But I think the larger point is that Congress has not created any clawback mechanism. [00:28:07] Speaker 02: And as you say, there are millions of disclosures made every year. [00:28:11] Speaker 02: Surely this happens. [00:28:12] Speaker 02: This is something Congress is well aware of. [00:28:14] Speaker 02: There's not a historical basis for this. [00:28:19] Speaker 02: And it's unclear, at least in this case, [00:28:22] Speaker 02: it is necessary to protect the court's judicial authority? [00:28:28] Speaker 01: Sure. [00:28:29] Speaker 01: So I think when we're talking about an exercise of inherent authority, that is inherently interstitial. [00:28:35] Speaker 01: If there is a statutory provision or provision of the rules that says to a court, you can do this or you can't do this, then out of inherent authority, we're in sort of express authority land. [00:28:46] Speaker 01: Inherent authority has to be gap-filling by its nature. [00:28:50] Speaker 01: So I don't think that's a barrier to finding that the authority exists. [00:28:54] Speaker 04: So what about the other part of the question, which is essentially the primary rationale of every inherent power case that I've seen is that the power is essential or at least incidental to the court's ability to resolve a case expeditiously and orderly, right? [00:29:11] Speaker 04: Sort of unlike discovery, these documents aren't being exchanged in order to facilitate the later resolution of a dispute. [00:29:18] Speaker 04: You just sort of accidentally gave them the relief they're looking for. [00:29:22] Speaker 04: And I just wonder how you would say this is essential to the orderly resolution of a case or controversy. [00:29:30] Speaker 01: Sure. [00:29:30] Speaker 01: So I think the fact that the documents are the goal of the litigation is helpful to me rather than harmful. [00:29:39] Speaker 01: It's helpful because, again, they have come into court and said, we want to subject ourselves to the authority of the district court and how to determine whether we get these documents. [00:29:47] Speaker 01: And I think the district court entered a judgment and issued an opinion and said, [00:29:54] Speaker 01: you're not entitled to these documents. [00:29:56] Speaker 01: But with respect to these two names, that judgment would have no effect absent the clawback order. [00:30:03] Speaker 01: So I think it does assist the court in effecting the judgment. [00:30:06] Speaker 01: I'd also like to take a moment to talk about what this meeting for a process looks like and what the procedure looks like in a FOIA case in district court. [00:30:18] Speaker 01: I think it's actually a lot closer to a normal discovery disclosure than it sounded like earlier today. [00:30:26] Speaker 01: So under the local rules in DDC, FOIA cases are exempt from the normal process of scheduling conferences and discovery plans and all of that because there is discovery in FOIA. [00:30:38] Speaker 01: Instead, what you get is an order from the district court that says, [00:30:41] Speaker 01: Go ahead, see what you can resolve, see what information is available, tell me if you need an open America stay, give me the timelines and try to narrow your disputes and then bring to the court what you can't resolve. [00:30:53] Speaker 01: But that's not significantly different from, you know, after a Rule 16 conference, discovery mostly proceeds without the aid of a court. [00:30:59] Speaker 01: It's not like clawback is only available if the disclosure is made pursuant to a granted motion to compel. [00:31:05] Speaker 01: If you have sort of the ordinary [00:31:08] Speaker 01: If you have discovery that's produced in response to an ordinary response with reduction, and there's attorney-client material in there, the clawback can be had. [00:31:17] Speaker 01: So I think this is similar to that, similar to a process that's managed by a district court. [00:31:23] Speaker 01: And again, I think it is necessary to give effect to the ultimate decision of the court, which is that this information is not subject to disclosure. [00:31:33] Speaker 02: Although isn't that a little bit circular? [00:31:35] Speaker 02: Perhaps the district court erred in making a determination whether it was subject to disclosure if there isn't clawback authority. [00:31:43] Speaker 02: So there's a little circularity there or bootstrapping in that argument. [00:31:48] Speaker 01: I think at least in this case, that seems to not be the case because [00:31:54] Speaker 01: You know, this wasn't litigated on a name by name basis for these claimants. [00:31:58] Speaker 01: It was litigated on the basis of whether the names of each of these, I think, 17 claimants could be released. [00:32:06] Speaker 01: And so for at least 15 of them, that's not a moot question. [00:32:09] Speaker 01: The answer has to be the same for the other two. [00:32:12] Speaker 01: So I think the court have the authority to reach that. [00:32:15] Speaker 01: answer. [00:32:17] Speaker 04: Well, I want to understand that because this is one of the things that struck me as potentially odd, right? [00:32:21] Speaker 04: If this case, if you're just mistakenly turned over all the documents, right? [00:32:26] Speaker 04: It seems the case would indisputably be moot. [00:32:29] Speaker 04: And then your argument would be the court should use its inherent power to unmute the case and recreate a case or controversy. [00:32:37] Speaker 04: And so something about that just seems very odd for courts that are limited to resolving cases or controversy, not reviving them. [00:32:50] Speaker 01: I'm not denying that there are cases where there could be some element of mootness. [00:32:57] Speaker 01: While there are cases, like the 10th Circuit case, where the information has already been made somewhat public and it's been clawed back, I think if you had a case, for example, where the disclosure was made and immediately went on the front page of the New York Times, at that point, [00:33:13] Speaker 01: Clawback would likely be moot. [00:33:15] Speaker 01: But the fact that there might be some case with mootness doesn't mean that there aren't cases where there is still a live controversy that can be resolved. [00:33:29] Speaker 01: Would it be helpful to address the First Amendment issues before we turn to? [00:33:33] Speaker 02: I'd rather hear your response to whether a showing of a substantial harm to a privacy interest was shown. [00:33:44] Speaker 01: As to the names of the officers of the claimant. [00:33:48] Speaker 02: Yeah, the names of the officers. [00:33:49] Speaker 01: Sure. [00:33:50] Speaker 01: So, you know, I think this is a case where I admit the declaration is thin, but I think it's... The declaration is entirely conclusory. [00:34:00] Speaker 02: Is it not? [00:34:01] Speaker 02: Because there's a privacy interest that outweighs... [00:34:05] Speaker 02: public interest. [00:34:06] Speaker 01: Yeah, I think the best sentence in the declaration is paragraph 14, which says, release of the information would constitute an unwarranted invasion of personal privacy due to the nature of the complaints. [00:34:15] Speaker 01: And the nature of the complaints does a fair bit of work. [00:34:18] Speaker 01: Because what we're talking about is complaints that have never been tested in an adversarial setting that accuse officers of misconduct. [00:34:28] Speaker 01: Now, these are not names alone. [00:34:31] Speaker 01: The names are all that's left to be unredacted. [00:34:33] Speaker 01: But the names are names on a document. [00:34:35] Speaker 01: most of which has been turned over, that says officer John Doe or officer Redacted did these things to me that were harmful. [00:34:45] Speaker 01: And I think that context is critical to understanding what the privacy interest is. [00:34:50] Speaker 01: And the district court was able to draw from the context of the complaints and the sort [00:35:00] Speaker 01: the case law in this circuit, like Miss Cannon Center, which says that names that include the possibility of unwarranted intrusion are protected by more than a de minimis privacy interest? [00:35:15] Speaker 02: Private parties. [00:35:16] Speaker 02: These are government law enforcement officers who do their work in public and [00:35:25] Speaker 02: you know, have the authority to wield force in public, against members of the public, those are private homeowners that are being affected by the building of, I think it was a pipeline. [00:35:38] Speaker 02: It seems like the privacy interests are rather differently situated and our case law says we look at this contextually in evaluating privacy interests. [00:35:47] Speaker 01: Yeah, Your Honor, there are many cases, including a string site in this K&N that we point to in the brief. [00:35:52] Speaker 01: But I'll look at, I'll turn to the Stern case, which involves law enforcement officers, low ranking law enforcement officers accused of misconduct. [00:36:00] Speaker 01: And the court said things like, you know, the fact that they are low ranking is a- That wasn't for conduct that itself took place in public, was it, in Stern? [00:36:12] Speaker 01: I don't believe so, Your Honor. [00:36:13] Speaker 01: But, you know, if, [00:36:16] Speaker 02: And it was unwitting on their part. [00:36:21] Speaker 01: So I think that was the finding in Stern. [00:36:23] Speaker 01: We have allegations of intentionality here. [00:36:26] Speaker 01: But again, we're talking about allegations that have not been tested in an adversarial proceeding. [00:36:32] Speaker 02: Do US Park police officers wear name badges? [00:36:36] Speaker 01: I believe they do. [00:36:37] Speaker 01: So your honor, I am. [00:36:42] Speaker 01: not suggesting that you know if there was someone filming this incident and that was widely publicized that it would be that we could we could necessarily invoke a privacy exemption here but just because information is public somewhere doesn't mean that you can't apply [00:37:00] Speaker 01: a FOIA privacy exemption. [00:37:01] Speaker 01: The Reporters Committee versus DOJ case, which is not the Supreme Court's Reporters Committee case from the late 80s about rap sheets, holds that information that, in theory, could be obtained if you went around the country and scraped different state court dockets and went to different police departments and that sort of thing. [00:37:22] Speaker 01: That is public, but there's still a privacy interest because it is practically obscure. [00:37:29] Speaker 01: You know, and I think in this context, that's the same thing for these, you know, handful of officers who were involved in these incidents. [00:37:37] Speaker 02: What is the nature of the substantial privacy interests of the officers? [00:37:44] Speaker 01: So I think it's a privacy interest in avoiding sort of the program, the potential for harassment of being associated with allegations. [00:37:54] Speaker 00: Arrested by who? [00:37:56] Speaker 01: So, Your Honor, by [00:38:00] Speaker 01: people who could learn the officer's names and believe that they've done wrong. [00:38:04] Speaker 01: So one of the amicus briefs in this case from the National Police Accountability Project expressly compares the officers here to Derek Chauvin, the cop who murdered George Floyd. [00:38:16] Speaker 01: There was a, you know, I think, and the plaintiffs, well, their purpose in requesting documents is not relevant to the FOIA analysis. [00:38:27] Speaker 01: is worth noting that they are seeking this information as part of ongoing reporting into what they call law enforcement misconduct, police misconduct. [00:38:36] Speaker 01: So being associated with something as minor as poor performance in an agency is something this court has held has a more than de minimis privacy interest. [00:38:48] Speaker 01: And this is, I think, the allegations here are potentially worse than that. [00:38:51] Speaker 02: When you talk about being associated with something as minor as poor performance in an agency, which case are you thinking of? [00:38:56] Speaker 01: So I'm talking about Stern citing another case, which unfortunately I don't have sitting here in my notes, talks about minimal privacy interest in job performance evaluations, and then goes on to say in here, we have more than that because we have these allegations of misconduct. [00:39:14] Speaker 01: I'm sorry, I don't have the nested quoting parenthetical in my notes right here. [00:39:18] Speaker 01: But I don't think these are cases where [00:39:26] Speaker 01: where you're talking about names in isolation. [00:39:29] Speaker 01: Now, again, the district court was able to draw on the context of the complaints. [00:39:38] Speaker 01: The district court was able to draw on the case law on the circuit. [00:39:43] Speaker 01: The district court was able to draw on some basic common sense that was based into the idea [00:39:46] Speaker 01: You know, the nature of the complaints that would would I think harmful disclosure. [00:39:53] Speaker 04: One fundamental proposition in our case law, it's in the Horner case that you both cite and a case called Morley is that this obligation of explaining the likely consequences is on the government. [00:40:05] Speaker 04: And so this whole discussion is just showing. [00:40:07] Speaker 04: that you've ably come up with an articulation of what the likely consequences would be and that's not in the affidavit and it's also making clear how contextual this analysis needs to be and it seems to me our cases require that this contextual explanation doesn't have to be very extensive maybe but an explanation of what the likely consequences are [00:40:29] Speaker 04: I think that's a quote from Horner, has to be in the affidavit. [00:40:33] Speaker 04: And I'm just, I realize that doesn't lend itself very well to a question, but I'm troubled. [00:40:39] Speaker 01: Yeah. [00:40:40] Speaker 01: Your honor, undoubtedly it would be better if the things the district court had said in its opinion were expressly in those words in black and white written in the declaration. [00:40:50] Speaker 01: And if that's enough for us to prevail, then the court should remand and we should fix the, we can fix the declaration. [00:40:57] Speaker 02: It's curious to me that the, [00:40:59] Speaker 02: Declaration itself cites to the Vaughn Index. [00:41:05] Speaker 02: And it's only in the Vaughn Index, which is not a declaration. [00:41:09] Speaker 02: It's not under penalty of perjury, where the government says these complaints are not substantiated, which might be part of a contextual case-specific argument that privacy interests are impaired, where [00:41:24] Speaker 02: Allegations have been made, they haven't been substantiated, the case has been settled, leaving the alleged tortfeasor, leaving the implication that the tort was committed. [00:41:39] Speaker 02: There's not even evidence, competent evidence that we can consider. [00:41:44] Speaker 02: And we give the government a lot of leeway in the FOIA context to use declarations. [00:41:50] Speaker 02: But it really falls. [00:41:52] Speaker 02: I mean, it's hard for me to understand how we could conclude that this doesn't fall short. [00:42:01] Speaker 01: So, Your Honor, I think what I would say is I think that there is from sort of the context of [00:42:12] Speaker 01: I think the district court was able to draw on what was implied and was baked into an admittedly bare bones declaration to reach an appropriate conclusion. [00:42:21] Speaker 01: If the court disagrees, then I think remand is appropriate. [00:42:25] Speaker 01: And I'm happy to address the five reasons why we shouldn't. [00:42:28] Speaker 02: You mentioned that the complaints, they have detail about what the person is alleged to have done. [00:42:36] Speaker 02: they don't have the name and then you plug the name in and that becomes something that's an invasion of privacy. [00:42:41] Speaker 02: We don't have those complaints in the joint appendix, do we? [00:42:44] Speaker 01: No, they are, and I don't know if they're on the district court docket. [00:42:48] Speaker 01: They were included, if you look at the Vaughn index as a reference to an administrative record, but I don't know that that was ever, I don't believe that was ever docketed. [00:42:57] Speaker 03: Well, the corner and every single case that you grouped with it in page 11 in your footnote, [00:43:06] Speaker 03: talks about names and addresses. [00:43:10] Speaker 03: I'm a little surprised when, in the text of your brief, you said this court has, quote, consistently found that the privacy interest of an individual's name ellipses surmounts this low bar. [00:43:26] Speaker 03: It's names and addresses. [00:43:28] Speaker 01: So, Your Honor, what this court has said is that, I'll point to Niskanen Center [00:43:37] Speaker 01: 24th at 791, which is that while names alone are not always entitled to exemption six quote. [00:43:43] Speaker 01: We have found a significant privacy interest whenever the information thought was of a type that might have invited unwarranted intrusions and any, you know, a name plus some other identifying information gets you over the bar, whether that's an address, a parcel number, a phone number. [00:44:00] Speaker 01: What do we have here? [00:44:02] Speaker 01: Here you have. [00:44:03] Speaker 01: a complaint that says, this person is a park police officer, and he engaged in this conduct. [00:44:10] Speaker 01: And that, you know. [00:44:11] Speaker 03: It doesn't help someone locate the relative impartial. [00:44:16] Speaker 03: The relative impartial know that they're talking about a park police officer. [00:44:20] Speaker 01: Right, Your Honor. [00:44:21] Speaker 01: And that's why I'm suggesting that the name, you know, the name in and of itself [00:44:28] Speaker 01: that this person works for the park police may or may, if we had a list of park police officers, not what was sought, that may or may not be privacy protected. [00:44:37] Speaker 01: But when it's a name that is in the middle of a memo explaining why someone is accused of misconduct, that surrounding context is what provides the privacy interest. [00:44:47] Speaker 03: Well, I thought the role of the address in all of these cases was that it made it easy to find and harass the person in question. [00:44:57] Speaker 03: here, one cannot find because of the name, without more. [00:45:05] Speaker 01: I mean, Your Honor, you have a name, you have an employer, you have a city where they work. [00:45:12] Speaker 01: You have dates of employment. [00:45:14] Speaker 01: I don't think you are talking about a name just in context, just divorce of context. [00:45:20] Speaker 03: Well, I think that's true in some of these cases that you're [00:45:30] Speaker 03: employees eligible to vote that's in a board election. [00:45:36] Speaker 03: So we know where they work. [00:45:40] Speaker 01: I think what those cases are showing is sort of a minimum hurdle to clear, not a necessary condition for showing that there's a privacy exemption. [00:45:54] Speaker 03: In those cases, it was name and address. [00:45:57] Speaker 03: You're saying, well, look, it's name and plus something. [00:46:00] Speaker 03: Yes. [00:46:00] Speaker 03: But the plus something you've given us was also in those cases. [00:46:04] Speaker 01: Plus, the allegations of misconduct. [00:46:08] Speaker 01: I mean, sure, that's present in Stern as well, where the court held that there was a substantial privacy interest. [00:46:14] Speaker 01: And I don't believe there were addresses or phone numbers or anything in there. [00:46:18] Speaker 01: But I think you're not talking about names in isolation. [00:46:24] Speaker 02: We have case law about the incremental value of the information. [00:46:29] Speaker 02: Does that help you or hurt you? [00:46:32] Speaker 01: I think it is helpful in the balancing portion of the analysis because the point of FOIA is to show what agencies are doing. [00:46:41] Speaker 01: And is the district court, I think, correctly held, you know what the agency is doing because you have all this information. [00:46:47] Speaker 01: What you don't have in it is a name. [00:46:49] Speaker 01: And there's a suggestion in the briefs that what you would get, the incremental value you would get is you would know if there is systemic misconduct. [00:46:58] Speaker 02: You'd know if they're repeat offenders. [00:47:00] Speaker 02: And I think that's the main concern is whether people who have been accused of excessive use of force or even found by an internal investigation to be used [00:47:11] Speaker 02: excessive force are being continued to be employed and again and again using excessive force. [00:47:19] Speaker 02: So that's where the name really comes in. [00:47:21] Speaker 02: And isn't there incremental value in the context of police use of force to having those names be public so there can be accountability? [00:47:30] Speaker 01: I mean, your honor, I think you have to look at a FOIA request on sort of a case by case basis. [00:47:34] Speaker 01: I don't think you can look to what information this might theoretically be compiled with at some point in the future. [00:47:39] Speaker 01: I think that's speculative. [00:47:40] Speaker 02: Why not? [00:47:41] Speaker 02: When we think about the incremental value, isn't that an increment over and above what might already be known or? [00:47:48] Speaker 01: I don't think so, Your Honor, because it relies on sort of just sheer speculation about what might occur at some point in the future. [00:47:55] Speaker 01: There might be records that could be FOIA that would be relevant to this. [00:48:00] Speaker 01: It could be, you know, internal affairs records, disciplinary records and [00:48:04] Speaker 01: I'm not inviting that, but if that's what comes, then we'll litigate. [00:48:09] Speaker 01: We'll figure out whether anything could be disclosed, and we can litigate that case when it comes. [00:48:13] Speaker 02: Are there four names at issue here or three? [00:48:16] Speaker 02: The record's a little unclear. [00:48:17] Speaker 02: I think there were two officers involved in one of the reports and one in each of the other. [00:48:23] Speaker 01: So there's three tort claims. [00:48:26] Speaker 01: One of them involves a sergeant who's the alleged tort defuser and an officer who was a witness. [00:48:31] Speaker 01: And then the other two involve two detectives. [00:48:34] Speaker 01: I mean, it's not in the record. [00:48:35] Speaker 01: I'm happy to represent to the court that those are not the same detectives. [00:48:39] Speaker 01: But I also think if there's one thing this record shows, the plaintiff requested eight years of tort claims from this agency, which has more than 500 sworn officers. [00:48:50] Speaker 01: came up with a total of three tort claims that were settled in that eight-year period. [00:48:55] Speaker 01: The highest settlement value was $17,500. [00:48:59] Speaker 01: The lowest was $13,500. [00:49:02] Speaker 01: This is not a record that shows an agency that is run amok and is hiding serial abuse. [00:49:09] Speaker 01: It's an agency that I would wager has substantially below average numbers of claims. [00:49:16] Speaker 02: I was also impressed by that. [00:49:19] Speaker 02: How many officers you said they had? [00:49:21] Speaker 01: As of now, they have 500 and change. [00:49:26] Speaker 01: I think that number's been going down, so it might have been slightly higher during the relevant period. [00:49:30] Speaker 02: Do they have general arrest authority in the jurisdictions? [00:49:36] Speaker 01: They have general law enforcement authority in the District of Columbia and in basically in the counties that you would think of as like the DC metro area, but not all of them. [00:49:48] Speaker 02: They're like metro police, where they can arrest for state or federal crimes in those areas. [00:49:52] Speaker 01: I believe that's correct, Your Honor. [00:49:54] Speaker 01: And then they have some lesser authority. [00:49:56] Speaker 01: There's two field offices, one in San Francisco that guards the Golden Gate Bridge and one that does the Statute of Liberty. [00:50:06] Speaker 01: I don't want to take up too much time. [00:50:08] Speaker 01: I would like to very briefly address the remand issue, if I may. [00:50:13] Speaker 01: Or if I need not. [00:50:14] Speaker 02: Yeah, I think we're okay. [00:50:15] Speaker 01: Okay, thank you. [00:50:16] Speaker 01: Then we would ask that you affirm. [00:50:20] Speaker 02: And did Mr. Davey have any rebuttal time reserved? [00:50:25] Speaker 05: Is that okay, Your Honor? [00:50:29] Speaker 05: I'll be very fast. [00:50:32] Speaker 05: I just want to make three points in rebuttal. [00:50:34] Speaker 05: The first is that my colleague started by saying that it's unfortunate but inevitable that the government will make mistakes in these cases. [00:50:40] Speaker 05: And I think if you look to Florida Star, the Florida Star and all the other cases from the Supreme Court contemplate that. [00:50:48] Speaker 05: And they say that it is on the government to manage this, right? [00:50:52] Speaker 05: And that means like they have the FOIA itself. [00:50:55] Speaker 05: They can use the substantial powers of the government to offer a remedy to the individuals whose privacy interests are compromised if it comes to that. [00:51:03] Speaker 05: But it is not on the government. [00:51:05] Speaker 05: It is not within the government's authority to ask for a remedy against a requester who receives information. [00:51:11] Speaker 05: That's number one. [00:51:12] Speaker 05: And relatedly, I would say Judge Pillard [00:51:16] Speaker 05: response to your question, you were asking about rule 502. [00:51:20] Speaker 05: You know, again, I would reject the application of those rules in this context, but even to the extent that we're talking about what the government did subsequent to the inadvertent disclosure, I do think it's important to note that the government still put the name in the bond index. [00:51:35] Speaker 05: It's sitting on the, just one of the names is sitting on the district court docket right now. [00:51:38] Speaker 05: It's in the appendix of this case. [00:51:40] Speaker 05: I'm not going to say it, because I'm trying to be responsible. [00:51:43] Speaker 05: But I think if you look at what the government did and did not do, even afterward, I don't think they would meet the rule 502 standard, even when it comes to what they did afterward. [00:51:53] Speaker 05: Never mind what they did before. [00:51:55] Speaker 05: The second point I want to make is in response to one of Judge Garcia's [00:52:00] Speaker 05: questions, which is that it's not about resolving litigation. [00:52:04] Speaker 05: I think my colleague mentioned that even if you look at the local rules in DDC, it talks about these cases being exempt from normal discovery. [00:52:11] Speaker 05: This court's opinion in Stonehill specifically distinguishes discovery and disclosure under the FOIA. [00:52:17] Speaker 05: And as you noted, the government can always disclose information, even as to which they might otherwise assert an exemption. [00:52:25] Speaker 05: And that doesn't change the district court's ability to resolve contested questions in front of it. [00:52:30] Speaker 05: And that's Sierra Club. [00:52:31] Speaker 05: And the last point I'll make goes back to this question of remanding versus reversal. [00:52:37] Speaker 05: And I think that, you know, I think [00:52:40] Speaker 05: I have some sympathy for my colleague, right, having to defend the declarations that were in the record, because they are conclusory. [00:52:45] Speaker 05: They just state the legal standard and don't add any additional context. [00:52:51] Speaker 05: But I think if this court looks at, even now, what, never mind even what was in the brief, even what my colleague said at argument, even now, the sort of idea of what harassment might ensue, it's extremely speculative. [00:53:03] Speaker 05: If this court looks at two cases [00:53:05] Speaker 05: where the court has recognized the possibility of that. [00:53:10] Speaker 05: One of them is FDA, which is in the brief, and they specifically connected actual past violence against people who were involved in and around the issue of abortion with people who [00:53:20] Speaker 05: There the request was names for people that have been involved in approving a drug that is related to abortion. [00:53:28] Speaker 05: That's the level of connection that's required. [00:53:30] Speaker 05: There was also a case that issued during the course of the briefing here, so it's not in the brief, but I would point the case to Insider Inc. [00:53:39] Speaker 05: That case is at 92 F4 1131. [00:53:42] Speaker 05: And in that case, the individuals in question had already been contacted and harassed substantially directly. [00:53:51] Speaker 05: And that was in the record. [00:53:53] Speaker 05: And that's what that case said was prior. [00:53:56] Speaker 05: And here, there's just none of that. [00:53:59] Speaker 05: And I think the last thing I want to say about the privacy balancing is, to get back to Judge Ginsburg's question about whether and to what extent [00:54:09] Speaker 05: there is a second piece of information beyond names. [00:54:11] Speaker 05: And to the extent that my colleague says that the allegations of misconduct themselves and the complaints are other information, that can't be right. [00:54:19] Speaker 05: And the reason for that is that that's the functioning of the government that is exactly what the FOIA is meant to allow people to have access to in the first place. [00:54:27] Speaker 05: Thank you. [00:54:29] Speaker 02: Thank you. [00:54:30] Speaker 02: The case is submitted.