[00:00:00] Speaker 00:
Case number 22-5303, Project for Privacy and Surveillance Accountability, Inc., a balance, versus United States Department of Justice, et al.

[00:00:10] Speaker 00:
Mr. Scherer for the balance, Mr. Silverman for the appellees.

[00:00:14] Speaker 02:
Good morning, Counsel.

[00:00:15] Speaker 02:
Mr. Scherer, please proceed when you're ready.

[00:00:17] Speaker 03:
Thank you.

[00:00:17] Speaker 03:
Good morning, Your Honors.

[00:00:19] Speaker 03:
The FOIA request here was designed to shed light on an issue of enormous public interest, which is efforts by the nation's intelligence agencies to spy on the very institution that is Congress, which is charged with overseeing those agencies' important activities.

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As in the PETA case, when fairly read, the request here sought not only operational records about the unmasking of particular members of Congress, but also non-operational records such as policy-related documents that might bear on such unmasking.

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And this Court's decisions, especially PETA, show that a blanket searchless Glomar response

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is appropriate not when the existence of a mere subset of the requested records is protected by a FOIA exemption.

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It's only appropriate when the agency carries its burden of establishing with specificity and beyond any factual dispute, as this court said in the Evans case,

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that the existence or not of all potentially responsive records is protected.

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That's the only circumstance in which a blanket Glomar response is warranted.

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Now in our time together, I'll first explain why this case falls within PETA's holding

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rather than another recent decision that happens to bear my name.

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And second, I'll explain why, if the panel concludes that searchless Glomar was properly invoked on these facts, the whole doctrine needs to be reexamined on Bonk.

[00:01:57] Speaker 02:
So can you start by just explaining what the, in the share case, because it involved

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largely overlapping facts.

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I know they were different individuals, but the theories were largely overlapping.

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And two of the exemptions, and the two exemptions that are most principally an issue here were in that case, too.

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And then the claim that can't have a Glomar response without having a search first was fully ventilated in that case.

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So there's a lot of overlap.

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And what is it that's left over?

[00:02:27] Speaker 03:
Well, and the latter point is really an issue for the en banc court, and I understand that.

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We're not asking the panel to overrule share on that point.

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Well, there are three fundamental differences between this case and the share case.

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First of all, the share decision didn't address the core issue here, which is the PETA problem that we have stressed throughout this case.

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that the agency's affidavits here reframed and narrowed

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the requested issue to make it look like any acknowledgement of responsive records would pose a risk to national security or individual privacy, when in fact we now know from subsequent FOIA cases and productions in those cases that at least some of the documents that are responsive here, non-operational records, can be provided without raising those concerns.

[00:03:24] Speaker 06:
Those other FOIA requests had very differently worded

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requests for information that were read to include, I assume you're referring to your policy documents here.

[00:03:34] Speaker 06:
Your FOIA requests in this case, your client's FOIA requests in this case, are for documents regarding the unmasking of listed persons.

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Full stop.

[00:03:45] Speaker 05:
Right.

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A lot of listed people, but regarding the unmasking of these persons.

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How is that not necessarily operational and or investigative?

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And then you have the same thing obviously for the upstream.

[00:03:57] Speaker 03:
Well, for the same reason, for the same reason that that wasn't true in the PETA case.

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The PETA, the requested issue in PETA could have been read.

[00:04:07] Speaker 06:
No, because there you had disclosures that went to the same issue for which the FOIA request aimed.

[00:04:14] Speaker 06:
My point here is that your argument seems to be all about these

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policy documents, but that arrives from a case that involved a FOIA request for correspondence that would include correspondence just from members of Congress to the agency.

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Nothing of the agency's own thoughts or views.

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You haven't asked here for all correspondence.

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You haven't said all documents about unmasking.

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What you've said is all documents about unmasking this list of people.

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All documents about upstreaming this list of people.

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What I'm trying to say is it's phrased nothing like the FOIA request.

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from the district court case that you keep referencing.

[00:04:55] Speaker 03:
Well, there are two district court cases.

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I understand.

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Neither one of those is phrased like that.

[00:04:59] Speaker 03:
Actually, the second request is very similar to this one in that regard.

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And Judge Contreras in that case said, consistent with PETA, that we're required, the agency is required to read the request broadly.

[00:05:13] Speaker 06:
The second one is all documents, remember, from a third party in exchange for value.

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of illegitimate information.

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So from a third party, it's a totally different request.

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Your request here is only about agency-owned records on their own asserted unmasking of a list of people.

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I think I'm having trouble understanding how this FOIA request leaves room for anything other than documents about these agencies,

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asserted, if they're doing it at all, investigative activities.

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And if your request is not fairly read to reach any further than that, then

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arguing about policy documents or non-operational documents isn't gonna help with this FOIA request.

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You can throw in a FOIA request for non-operational documents about these two topics if you want.

[00:06:11] Speaker 06:
But the way this one is written, written before those district court decisions came along, I assume, I just don't see how it can get in there.

[00:06:20] Speaker 03:
Well, under the law, FOIA requests, as the court is aware, are to be read broadly.

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But not beyond their terms.

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I mean, agencies don't have to go.

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If you had filed a FOIA request giving me all your unmasking documents about Judge Millett, would they have any duty to say, well, we've got information, we've got some articles about unmasking generically.

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That wouldn't fit that FOIA request, would it?

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Or is that your theory?

[00:06:47] Speaker 03:
Well, if the request was, give me all documents about unmasking of Judge Millett, then documents dealing generally with unmasking of judges would be responsive to that.

[00:07:01] Speaker 06:
I didn't say my hypothetical was not unmasking of judges.

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My hypothetical was a news article about unmasking generically.

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That would not fall within that FOIA request, would it?

[00:07:11] Speaker 03:
If it was on a news article about unmasking judges, I think would I die.

[00:07:15] Speaker 06:
I'm going to try again.

[00:07:18] Speaker 06:
Just about unmasking generically.

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No identified targets.

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That would not fall within it.

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Would it?

[00:07:25] Speaker 03:
Well, I think it probably would actually because big case for

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In reading FOIA requests broadly, we start striking out all kinds of words and ignore those and start saying, well, they just wanted general information.

[00:07:40] Speaker 03:
Again, that's not our request.

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Our request dealt specifically with congressmen.

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So a fair reading of that request would include documents generally about unmasking of congressmen.

[00:07:57] Speaker 06:
You know, and maybe if it just, if... Okay, but I thought your argument to me, if I misunderstood it, was it would also include, in my hypothetical, about unmasking generically.

[00:08:07] Speaker 06:
Oh, we got a letter from, you know, concerned citizen about unmasking generically.

[00:08:13] Speaker 03:
I think it could, if there were any possible application to unmasking of judges.

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But again, that's not our case.

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That's a closer case, I think, but that's not the case we have here.

[00:08:24] Speaker 02:
In this respect, the scope of the request, is it meaningfully different from the scope of the request in the case share?

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This specific, well, and that raises the second issue.

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Again, the shared decision does not address this PETA point.

[00:08:45] Speaker 02:
I'm just asking about the scope of the request, though.

[00:08:47] Speaker 02:
We assume that the panels of this Court are familiar with decisions of the Court, and I'm just wondering whether there would have been something about the framing of the request that would have made that decision

[00:09:00] Speaker 03:
Well, it was different in the sense that it did not deal with members of Congress.

[00:09:07] Speaker 02:
Right, it was different individuals, but in terms of the- It was limited to individuals.

[00:09:10] Speaker 02:
I'm sorry?

[00:09:11] Speaker 03:
Yes, it was limited to individuals.

[00:09:12] Speaker 03:
It was limited to individuals.

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It did not deal with members of Congress.

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And I think in the share case, we could have made the PETA point there, but we didn't address it, or at least we didn't address it in the way we're addressing it here.

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And the share decision did not address it at all.

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And therefore, you know, the share decision is not binding on that point because it was an issue that wasn't decided.

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And that does lead me to the second reason that share is different, and that is that, you know, during the share argument, Judge Millett probably would not remember this, but we had a discussion about some hypothetical

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situations where the agencies might have documents in their files that they could produce without raising Glomar concerns.

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And we talked about, you know, we talked about those hypotheticals, but the court in share was reluctant to rely on hypotheticals.

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But now, as a result of Judge Contreras's decision in the PPSA 2 case, we know actually now that there, and this is not disputed by the other side, we know that there are records in the agency's files that are responsive to this request because we have them.

[00:10:33] Speaker 03:
They're responsive to this request and they can be provided to us without raising Glomar type concerns.

[00:10:43] Speaker 04:
But just so that we're clear, in the district court for this case, where did you argue for non-operational policy documents?

[00:10:57] Speaker 03:
Well, in both our motion for summary judgment and in our reply brief, we argued that our request was not limited to documents about these specific individuals.

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We didn't use the magic word policy documents.

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That was something coined by Judge Contreras later, but we did make the argument that

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that our request was not limited to these particular individuals.

[00:11:26] Speaker 06:
Did you use the phrase non-operational?

[00:11:28] Speaker 03:
No, I don't think we used that particular phrase, but the point was clear.

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Non-investigative?

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We didn't attempt to identify other types of non-target specific documents that might have been included, but we did make the general argument that we're not limiting our request to records about these particular individuals.

[00:11:52] Speaker 06:
Can I clarify one thing?

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You said your client has already gotten those policy documents from the district court litigation in the other case.

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Is your argument that you're entitled in this case to get another copy of those same documents you already have?

[00:12:12] Speaker 03:
Technically, I think we are.

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The reason we're pressing the point is because the scope of our request here is broader in terms of time.

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And so we think there may well be additional documents.

[00:12:27] Speaker 06:
I'm sure that someone can file a FOIA request and say, I want these documents.

[00:12:32] Speaker 06:
They get them.

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And then again, a month later, file a FOIA request and say, I want these documents they already have.

[00:12:39] Speaker 03:
Yeah, and that's not what we're doing.

[00:12:41] Speaker 03:
I mention those documents because

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They are illustrative.

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They are responsive here and they are illustrative of the type of documents.

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Do you know if those documents are in like the FOIA reading room, the e-reading room, the ones that have already been released in the district court litigation?

[00:12:55] Speaker 03:
Are they in the e-reading room?

[00:12:56] Speaker 06:
Yeah, because normally that commonly happens.

[00:13:00] Speaker 03:
I'm not sure.

[00:13:01] Speaker 03:
I mean, we have them.

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We're obviously not pressing this case just because we want them to give us another copy of the document.

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So the only relevance of that is not that we know those documents are there and we want to get them.

[00:13:12] Speaker 06:
It's that you want to say that, oh, there's a whole category of things called policy documents or non-operational documents, and we'd like to get those under the umbrella of this very specific FOIA request that we filed.

[00:13:27] Speaker 03:
Yes, with one caveat, Your Honor, and we don't know what they call them, but we do know from the other litigation that there are entire categories of documents relating to FISA unmasking

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that are not limited to target specific operational type documents of the sort that are addressed in the affidavits.

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And that's the fundamental problem with the affidavits.

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The affidavits pretend that our request is limited to target specific operational type documents, but it's not.

[00:14:00] Speaker 06:
I'm not sure the verb pretend is very fair, given the cut.

[00:14:04] Speaker 06:
They assume.

[00:14:05] Speaker 06:
We can read the text together.

[00:14:07] Speaker 03:
They assume.

[00:14:07] Speaker 06:
And it is unmasking of listed people.

[00:14:12] Speaker 06:
I wouldn't say it's pretend to say that you're interested in information about unmasking listed people.

[00:14:18] Speaker 03:
Fair enough.

[00:14:19] Speaker 03:
But in that respect, the request is very similar to the requested issue in PETA, which could, on the same reasoning, have been read to include only documents about specific researchers, and this court held no

[00:14:34] Speaker 03:
It can also be read to encompass more general documents.

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And so the court remanded for the agency to look for those.

[00:14:41] Speaker 03:
And that's exactly what we're asking for here.

[00:14:44] Speaker 03:
Thank you.

[00:14:45] Speaker 03:
Thank you, counsel.

[00:14:46] Speaker 02:
We're here from the government.

[00:14:48] Speaker 02:
Oh, you have another question?

[00:14:48] Speaker 06:
Sure.

[00:14:49] Speaker 06:
Yeah, of course.

[00:14:49] Speaker 06:
Just this whole question about markings on the document.

[00:14:53] Speaker 03:
Yes.

[00:14:54] Speaker 06:
How do you know they didn't happen?

[00:14:56] Speaker 03:
I think they said they didn't have them because they classified them after the fact.

[00:15:05] Speaker 06:
You're not arguing that there weren't subsequent markings, you just say they weren't at the moment of classification.

[00:15:10] Speaker 06:
That's your only argument.

[00:15:13] Speaker 03:
Yeah, we don't know whether they added markings later.

[00:15:15] Speaker 06:
Okay, so your sole argument.

[00:15:17] Speaker 06:
Okay, I had then misunderstood.

[00:15:17] Speaker 06:
I thought you were doing two arguments, timing and that they hadn't been marked.

[00:15:23] Speaker 03:
I believe that they admitted that they hadn't been marked, but I can double check that.

[00:15:28] Speaker 03:
At the time.

[00:15:29] Speaker 03:
I'm sorry?

[00:15:29] Speaker 06:
At the time of classification.

[00:15:31] Speaker 03:
I believe they have admitted they haven't been marked at all, but I'll double check that.

[00:15:35] Speaker 06:
If the information is knowledge, because the executive order addresses classification not just of documents, but of knowledge.

[00:15:44] Speaker 02:
Right.

[00:15:46] Speaker 06:
And by some references to when things are in documentary form applies that things can be.

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Of course, classified, a core conversation.

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Without that, how are they supposed to be marked at the time or otherwise?

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Is it knowledge or a conversation?

[00:16:02] Speaker 03:
Well, we're getting into a problem with the whole searchless Clomar doctrine here.

[00:16:07] Speaker 06:
I'm trying to get your understanding of how the executive, you made an argument about how the executive order is supposed to work, but how do you apply it, your understanding of what the executive order is requiring

[00:16:22] Speaker 06:
if it's being applied to knowledge, or if it's easier to think of it this way, we can hypothesize a conversation.

[00:16:29] Speaker 03:
Well, no, I think the, I mean, that is a problem with the searchless Glomar doctrine, I think, but in addition to that, my understanding is that they retroactively

[00:16:43] Speaker 03:
attempted to classify generically without knowing what documents were available, all the documents that might have been responsive.

[00:16:51] Speaker 06:
Talk about the Glomar fact here.

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You know, the fact of the existence or not of records.

[00:16:56] Speaker 06:
That's a fact.

[00:16:58] Speaker 06:
If it is a question of knowledge that people have describing a category of documents, it's not itself a document.

[00:17:06] Speaker 06:
It's a knowledge about this category of requested documents of harm

[00:17:11] Speaker 06:
Either way, we have them or we don't, either way it's harmful.

[00:17:15] Speaker 06:
That knowledge can be classified under the executive order, correct?

[00:17:20] Speaker 06:
Correct.

[00:17:20] Speaker 06:
Okay.

[00:17:21] Speaker 06:
And knowledge cannot be marked under the executive order, correct?

[00:17:24] Speaker 03:
Well, it could effectively be marked with the memo to the file, for example.

[00:17:27] Speaker 06:
That requires a creation of documents.

[00:17:29] Speaker 06:
I'm assuming, I'm just assuming, you know, the President and the Chair of the Joint Chiefs have a conversation

[00:17:37] Speaker 06:
That thing, and they do it in the situation room, that thing is classified at the minute of utterance.

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And not marked then with a later memo to file, because you won't allow later markings under your reading of the executive order.

[00:17:49] Speaker 06:
So how is that?

[00:17:51] Speaker 06:
So if it's knowledge that is being classified, then a later, if they choose to reduce it to a documentary form, it could be marked.

[00:18:02] Speaker 06:
But the executive order doesn't require that.

[00:18:06] Speaker 06:
doesn't obligate everything that's classified to be reduced to documented form for obvious reasons, something they might not want to be.

[00:18:12] Speaker 03:
Right.

[00:18:12] Speaker 03:
I think that's true, Your Honor.

[00:18:13] Speaker 06:
Okay.

[00:18:14] Speaker 06:
Thank you.

[00:18:15] Speaker 02:
Thank you.

[00:18:17] Speaker 02:
For the government now.

[00:18:21] Speaker 02:
Silverman.

[00:18:22] Speaker 01:
Good morning, Your Honors.

[00:18:23] Speaker 01:
May it please the court, Bradley Silverman, for the United States.

[00:18:26] Speaker 01:
This court, about a year and a half ago,

[00:18:29] Speaker 01:
addressed virtually the same facts and the same issues that this case presents in Share v. Department of Justice.

[00:18:37] Speaker 01:
That case involved a materially identical FOIA request.

[00:18:41] Speaker 01:
There were distinctions, but none that are relevant here.

[00:18:44] Speaker 01:
Some different individuals, although some of them actually were the same, and a different number of individuals.

[00:18:48] Speaker 01:
But the same type of FOIA request for the same type of information.

[00:18:53] Speaker 01:
The case was appealed.

[00:18:55] Speaker 01:
It went to this court.

[00:18:56] Speaker 01:
The government made virtually the same Exemption 1 and 3 arguments that the government is making now, and this court affirmed.

[00:19:06] Speaker 01:
Share is dispositive.

[00:19:08] Speaker 01:
It doesn't really leave anything on the table, and I'm happy to answer any questions that the court has, but share really controls here.

[00:19:17] Speaker 06:
Is there anything that was withheld under Exemption 7 by the department?

[00:19:23] Speaker 06:
of justice that is not also withheld under Exemption 1, or if Exemption 1 were to be held properly applied here, would there be any need to address the other exemptions?

[00:19:36] Speaker 01:
No, Your Honor, Exemption 1 covers everything.

[00:19:39] Speaker 04:
Did all of the defendants rely on Exemption 1 below?

[00:19:49] Speaker 02:
Yes, Your Honor.

[00:19:50] Speaker 02:
Not everyone relied on Exemption 3, but Exemption 1 covers the waterfront, right?

[00:19:54] Speaker 01:
That's exactly right.

[00:19:55] Speaker 01:
Everyone, but I believe the National Security Division relied on Exemption 3, but everyone relied on Exemption 1.

[00:20:02] Speaker 06:
When a GLOMAR is invoked as it was here, and the argument is we don't even have to search.

[00:20:09] Speaker 06:
So categorical GLOMAR.

[00:20:11] Speaker 06:
What is the test we're supposed to apply?

[00:20:14] Speaker 06:
If someone can hypothesize

[00:20:19] Speaker 06:
a document or two that in their view would fall within the scope of their request but would not be properly, if I can make it a verb, glommard.

[00:20:31] Speaker 06:
Is that sufficient to foreclose a categorical use of glommard or what is the test?

[00:20:37] Speaker 06:
How much do you have to show, if you read the FOIA request, how much do you have to show is excluded to make a complete non-search and categorical glommard appropriate?

[00:20:48] Speaker 01:
So what you have to show is that you basically have to make a logical or plausible showing that the mere fact of whether or not responsive records exist would itself be classic.

[00:21:02] Speaker 06:
100%.

[00:21:02] Speaker 06:
So if one could hypothesize a single document or two that would not be eligible for Glomar, would not implicate those interests,

[00:21:17] Speaker 06:
then it's improper?

[00:21:19] Speaker 01:
No, Your Honor.

[00:21:19] Speaker 06:
That's what I'm trying to get at because I thought your answer sounded like if when you read it, there's nothing in there that can be answered.

[00:21:26] Speaker 06:
What I'm trying to, their argument is, well, if you read it this way, there could be something.

[00:21:33] Speaker 06:
And your argument seems to be we've given a logical explanation for why if you read it our way, there's nothing there.

[00:21:42] Speaker 06:
And I'm trying to figure out what to do in between if we could think of something.

[00:21:45] Speaker 01:
Well, the way I think about it is, so first, the government makes a logical or plausible showing that the fact, the answer to the Glomar question, in a sense, would itself be exempt.

[00:21:56] Speaker 01:
And then- No, the answer to the- To the question.

[00:22:00] Speaker 06:
The FOIA, the request for documents would require- Revealing.

[00:22:06] Speaker 06:
Revealing the Glomar fact.

[00:22:07] Speaker 06:
Yes, exactly.

[00:22:08] Speaker 06:
Great.

[00:22:08] Speaker 06:
And then in- It's not an answer to a Glomar question.

[00:22:10] Speaker 06:
It's the question that's asked.

[00:22:11] Speaker 06:
That is the FOIA request.

[00:22:13] Speaker 06:
Yes.

[00:22:13] Speaker 06:
would necessarily, would categorically, would 90% of the time reveal information the government can neither confirm nor deny.

[00:22:25] Speaker 01:
In measuring the persuasiveness, the sufficiency of the government's showing, then the court does not consider hypothetical, tangential, possible documents.

[00:22:40] Speaker 06:
Well, I'm not sure what that means, though.

[00:22:41] Speaker 06:
Go ahead and finish your sentence, I'm sorry.

[00:22:42] Speaker 01:
Oh, no.

[00:22:44] Speaker 01:
In Knight First Amendment Institute, this court was characterizing its previous decision in Wolfe.

[00:22:49] Speaker 01:
I need to discuss Wolf first, then I'll get quickly tonight.

[00:22:53] Speaker 01:
In Wolf, this court affirms an Exemption 1 Glomar response involving classified information.

[00:23:01] Speaker 01:
Then later in Knight, First Amendment Institute, the court was discussing what it had done in Wolf.

[00:23:08] Speaker 01:
There, the court noted approvingly that in determining that

[00:23:14] Speaker 01:
that the government had met its burden back in Wolf, the court did not need to consider hypothetical documents.

[00:23:23] Speaker 01:
There were one or two examples, I can't remember exactly what they were right now, but the appellant in Wolf had said, well, maybe there is this.

[00:23:34] Speaker 01:
And in Knight, the court said it was appropriate

[00:23:37] Speaker 01:
to affirm the Glomar response without need to consider this hypothetical document.

[00:23:47] Speaker 06:
I'm just trying to read that alongside Peter.

[00:23:52] Speaker 06:
So on Peter, you had official government statements that were pointed to, which obviously is different in this case.

[00:24:00] Speaker 06:
But based on those official public statements,

[00:24:06] Speaker 06:
The court said, well, there seems to be a category of documents that could hypothesize that there could be such documents that would be covered by that FOIA request.

[00:24:18] Speaker 06:
And so the one knows, of course, it's going to be hypothesized until the agency does the search, but it was based on this external information.

[00:24:29] Speaker 06:
And so that was sufficient.

[00:24:31] Speaker 06:
Is your position that it's only if there's

[00:24:34] Speaker 06:
sort of express governmental acknowledgements or statements out there that can be pointed to that you can sort of unravel the glomar and say there may be a subcategory that can be released because you can't have hypotheticals, but you can hypothesize that there could be documents based on things government officials did or could other things similarly suggest that in fact there are documents.

[00:25:04] Speaker 01:
So I don't think, we're not arguing, there's no need to lay down a categorical rule that there must be a government acknowledgement or something like that.

[00:25:13] Speaker 01:
I think the key distinction here with PETA is that

[00:25:16] Speaker 01:
In PETA, the FOIA request was phrased differently in a way that actually matters here, that made the possible, the hypothetical, I guess the category that this court identified as to which the Glomar response was not proper, made that a more plausible reading of the FOIA request than at issue here.

[00:25:36] Speaker 01:
So in PETA, the FOIA request did not seek all records relating to these three researchers.

[00:25:43] Speaker 01:
It sought, and I'm paraphrasing here, so this might not be perfect,

[00:25:46] Speaker 01:
but it saw essentially all records arising from complaints.

[00:25:51] Speaker 01:
against these individuals arising from memoranda, et cetera, having to do with complaints against these individuals.

[00:26:00] Speaker 01:
That's not exactly, but it's close enough.

[00:26:04] Speaker 01:
And so the court there said, well, you can look at this and read it to cover not only records relating to the individuals.

[00:26:13] Speaker 01:
For example, this court said, let's say you have someone make a complaint against a particular researcher.

[00:26:20] Speaker 01:
And then as a result of that, the agency decides to launch an investigation that is maybe not limited to or about that particular researcher, but is about the program more generally, some broader problem.

[00:26:32] Speaker 01:
You complain about researcher.

[00:26:33] Speaker 01:
doing X, and the agency says, well, we're not going to investigate the researcher doing X, but let's take a look at whether X is a problem more broadly.

[00:26:43] Speaker 01:
And there, under those facts, then it was not just purely speculative that there might be some records about

[00:26:52] Speaker 01:
about something that is not properly glomorable.

[00:26:56] Speaker 01:
Here, in contrast, by the phrasing of the FOIA request, it is in its own terms limited to all records relating to certain individuals.

[00:27:07] Speaker 01:
That category that existed in PETA of potential documents that might or might not exist not having to do with individuals just doesn't exist here.

[00:27:17] Speaker 06:
So if it had been phrased as all document,

[00:27:21] Speaker 06:
documents, memorandum, blah, blah, blah, blah, about unmasking, including.

[00:27:26] Speaker 01:
Yes.

[00:27:27] Speaker 06:
And then listed a bunch of those about these people.

[00:27:30] Speaker 01:
That would be a very different FOIA request, yes.

[00:27:32] Speaker 06:
And then under that, you would at least have to disclose the type of policy documents that were disclosed.

[00:27:39] Speaker 06:
The district court litigation that, as I understand, was not appealed.

[00:27:43] Speaker 01:
It is.

[00:27:45] Speaker 06:
We're not saying whether that district court decision was correct or not, but it wasn't appealed.

[00:27:49] Speaker 01:
That is correct.

[00:27:50] Speaker 01:
I'm going to call that PPSA 3, that was the one.

[00:27:54] Speaker 01:
I believe you're talking about the case filed in 2022, also before Judge Contreras.

[00:27:59] Speaker 01:
There, well, no, actually case number 22, I'm sorry, the 21.

[00:28:04] Speaker 01:
The other one, they're very differently phrased for every request, yes.

[00:28:07] Speaker 01:
There's the case, so this case is filed in 2020, that's how I sort of keep it in mind.

[00:28:10] Speaker 06:
There's a third party documents one, that's how I categorize them.

[00:28:14] Speaker 01:
There's the case filed in 21, and that's the one that the parties sort of primarily discuss in their briefing.

[00:28:18] Speaker 01:
The district court decision came down about a week after the district court decision in this case.

[00:28:23] Speaker 01:
So there, yes, that FOIA request is phrased very differently than the one here.

[00:28:28] Speaker 01:
It is about documents generally not limited to particular individuals.

[00:28:35] Speaker 01:
It's concerning the unmasking of congressmen or senators, not the unmasking of A, congressmen, B, congressmen, et cetera.

[00:28:45] Speaker 06:
So if their FOIA press here was phrased exactly as it is, but instead of listing the 48 individuals, it said each and every member of the House of Representatives and each and every Senator, that would be different?

[00:29:03] Speaker 01:
It's an interesting question.

[00:29:04] Speaker 01:
I think it would be different.

[00:29:05] Speaker 01:
I think there's a difference between saying... But if they typed the names of everybody?

[00:29:11] Speaker 01:
Well, I think it's a difference between seeking records on individuals, even a large number, even every individual, versus senators, representatives generally, because seeking records about the unmasking or upstreaming of senators or representatives generally would go to the institution, would go to people who are not currently members of Congress, would go to, let's say you have a request for

[00:29:32] Speaker 06:
Okay, but if they said sitting members of Congress and senators, then your position would be the same as it is in this case.

[00:29:38] Speaker 01:
No, I think that's different.

[00:29:39] Speaker 01:
I think saying sitting members would be more like listing, you know, a certain number of individuals.

[00:29:47] Speaker 01:
It's still a finite list.

[00:29:48] Speaker 01:
It's just a larger list.

[00:29:49] Speaker 01:
Exactly, Your Honor.

[00:29:51] Speaker 06:
Well, so is former and current members of Congress and senators.

[00:29:55] Speaker 06:
It's a finite list.

[00:29:56] Speaker 01:
It's a finite list, but it really goes more to the institution rather than particular individuals.

[00:30:06] Speaker 06:
And that's the government's official position.

[00:30:09] Speaker 01:
Our official position is that if you have a FOIA request that is about the unmasking or upstreaming of particular individuals, it is difficult to reasonably read this as being broader than those individuals about unmasking or upstreaming of everyone.

[00:30:31] Speaker 04:
Did Scherer really address all of the procedural arguments that are

[00:30:37] Speaker 04:
being presented here with respect to classification and timing and marking, et cetera?

[00:30:50] Speaker 01:
They gestured toward those arguments below.

[00:30:55] Speaker 04:
I guess what I'm saying is did our decision and chair pass upon all of those arguments?

[00:31:03] Speaker 04:
You said that chair is dispositive.

[00:31:05] Speaker 04:
Yes.

[00:31:08] Speaker 04:
dispose of each and every argument that's being made here in that regard.

[00:31:13] Speaker 01:
Share did not address that particular point.

[00:31:16] Speaker 01:
I think it's telling that the issue was never raised in share, and arguably share stands for the proposition that these records, just like the ones that are here, were properly classified, so I don't know exactly how you get around that.

[00:31:36] Speaker 02:
Thank you, counsel.

[00:31:41] Speaker 02:
Mr. Chair will give you two minutes for rebuttal.

[00:31:46] Speaker 03:
Thank you very much, your honor.

[00:31:47] Speaker 03:
I think counsel's argument just illustrates and reinforces that this case is controlled by PETA and is very much like PETA.

[00:31:58] Speaker 03:
First of all, counsel mischaracterized the request in the PETA case.

[00:32:05] Speaker 03:
And I'm reading from the opinion there.

[00:32:09] Speaker 03:
It says that PETA, I'm quoting, requested copies of all official investigative reports, preliminary notes, testimonies, memos, meeting minutes, phone conversations, emails, and other materials related to all NIH investigations into complaints filed

[00:32:28] Speaker 06:
In 2005, to the present... Do you mind what page you're on of the opinion here so I can... Yeah, I'm sorry.

[00:32:34] Speaker 06:
It's 539.

[00:32:35] Speaker 06:
This is the one, the first column under B?

[00:32:38] Speaker 03:
Right after B, yeah.

[00:32:40] Speaker 03:
So it's... By its terms, it could be read to be limited just to that, just to documents concerning that particular list of NIH grant recipients.

[00:32:54] Speaker 03:
And yet, the court appropriately, following the requirements for FOIA requests, read it to also include more general policy documents.

[00:33:06] Speaker 03:
I think it's also significant that .

[00:33:09] Speaker 03:
.

[00:33:10] Speaker 06:
.

[00:33:10] Speaker 06:
If we had a verb after related, instead of said .

[00:33:13] Speaker 03:
.

[00:33:13] Speaker 03:
.

[00:33:13] Speaker 03:
Related to .

[00:33:14] Speaker 03:
.

[00:33:14] Speaker 03:
.

[00:33:14] Speaker 06:
Related to prosecuting.

[00:33:20] Speaker 06:
investigations into these folks.

[00:33:24] Speaker 06:
Related to investigating this list of people, would that be different?

[00:33:34] Speaker 06:
Because related to investigations into complaints is different than related to investigating.

[00:33:40] Speaker 06:
I'm not disputing what the PETA one said, but if it said related to investigating three specifically named recipients, that would be different.

[00:33:48] Speaker 03:
I don't think that would be a material difference.

[00:33:51] Speaker 06:
Because that also could be... Well, it's different than investigating complaints about somebody.

[00:33:55] Speaker 06:
It means the agency's conducting an investigation versus they might be investigating someone who sent in a complaint that seems threatening, then that person might be the problem.

[00:34:05] Speaker 03:
Yeah, it would be different subsequently, but it wouldn't be a difference in principle for the point we're discussing here, I think, Your Honor.

[00:34:14] Speaker 06:
Well, it would then be solely about investigations of those people, not investigations of

[00:34:19] Speaker 06:
complaints, investigations of other people complaining about.

[00:34:22] Speaker 03:
It would be a slightly different request, but I think under the approach taken in PETA, the court would have read that request also to include policy documents or non-operational documents related to that topic.

[00:34:36] Speaker 06:
That could be argued about PETA, but it would be different than the actual PETA request if it was framed as focus on investigating

[00:34:45] Speaker 06:
related to investigating these three people, that would be arguments.

[00:34:52] Speaker 03:
It would be a somewhat different request, and probably different kinds of documents would be responsive, but the principal, I think, would still control.

[00:34:59] Speaker 06:
I just want to clarify one thing.

[00:35:02] Speaker 06:
Do you agree with the government that if the documents in this case, or if the Glomar claim could be upheld

[00:35:14] Speaker 06:
under Exemption 1 alone, that there's no need to address the other exemptions.

[00:35:18] Speaker 06:
I know you don't think it should be.

[00:35:19] Speaker 06:
And obviously, if it can't be under Exemption 1, then we have to go through all the different ones, because not everyone did Exemption 3, obviously.

[00:35:27] Speaker 06:
But is that right?

[00:35:29] Speaker 06:
And you've got your arguments about Exemption 1.

[00:35:30] Speaker 06:
We talked about some of those.

[00:35:32] Speaker 02:
Yeah, I think that's probably right.

[00:35:38] Speaker 02:
OK.

[00:35:38] Speaker 02:
Thank you, counsel.

[00:35:39] Speaker 02:
Thank you to both counsel.

[00:35:40] Speaker 02:
We'll take this case under submission.

[00:35:41] Speaker 02:
Thank you.