[00:00:00] Speaker 05: Case 125-5309, Gun Owners of American Ink and Gun Owners Foundation Appellants versus Bureau of Alcohol, Tobacco, Firearms and Explosives. [00:00:12] Speaker 05: Mr. Olson for the appellants, Mr. Boldy for the appellee. [00:00:15] Speaker 03: Morning. [00:00:16] Speaker 03: Rob Olson on behalf of Plaintiff Appellants. [00:00:18] Speaker 03: I'd like to save three minutes for rebuttal if I could. [00:00:21] Speaker 03: As Justice Brennan wrote in 1983, even a short-lived gag order causes a reparable injury so long as it remains in effect. [00:00:29] Speaker 03: Well, the gag order in this case has been in effect for 28 months. [00:00:33] Speaker 03: During that time, plaintiffs have been prohibited from printing the news about a secret government surveillance program. [00:00:39] Speaker 03: Plaintiffs have been prohibited from communicating with their members who may have been the victims of this unlawful surveillance. [00:00:45] Speaker 03: Plaintiffs' lawyers have been prohibited from communicating with their clients about that production. [00:00:51] Speaker 03: And since I was the one who originally reviewed that production before the gag order was entered, I'm ordered to not even have the thoughts in my head. [00:00:59] Speaker 03: I don't exactly know what that means. [00:01:01] Speaker 03: I don't know how to comply with that. [00:01:02] Speaker 03: I don't know how to unknow something. [00:01:04] Speaker 03: This is a quintessential horn book prior restraint. [00:01:07] Speaker 03: As a Florida judge said in a similar case, you've only got to look so far as the Pentagon Papers to know that there was no basis for this relief to have even been requested. [00:01:15] Speaker 03: The Supreme Court said that for approximately 150 years of this nation's history, there was an entire absence of attempts to impose prior restraints. [00:01:24] Speaker 03: And in that 1971 Pentagon Papers case, the court said, never before has such thing even been tried. [00:01:31] Speaker 04: Mr. Olson, the District Court's protective order [00:01:36] Speaker 04: was entered before the so-called 14th production was made. [00:01:41] Speaker 04: And the government has been unambiguous in providing the information that I guess is the information that was assertedly initially subject to exemptions three and seven E, voluntarily provided it and said basically, here you go. [00:02:02] Speaker 04: So I'm not sure that I follow why the plaintiffs think that they're prevented from using the information. [00:02:09] Speaker 04: I know you pointed to information as opposed to the source of it. [00:02:12] Speaker 04: But given the sequence and the government, they see HRDC, they respond. [00:02:20] Speaker 04: They're like, OK, you can have this. [00:02:23] Speaker 04: If that's right, then you don't have any claims. [00:02:27] Speaker 04: I get it, in an abundance of caution, you'd like some clarification on that. [00:02:31] Speaker 04: But if that's the case, that they're waiving their claims of exemption with respect to that information, you have nothing to complain about there, right? [00:02:42] Speaker 03: As we've notified the district court and this court, we have not opened either of those productions. [00:02:46] Speaker 03: Presumably the information that they say is in there is in there, the B7E, the B3. [00:02:52] Speaker 03: But there's one thing that's fatal to the government's claim of mutinous there. [00:02:55] Speaker 03: There's some B6 information and they say we didn't provide the B6 information. [00:02:59] Speaker 03: And we explicitly told the district court in briefing, there is certain information. [00:03:04] Speaker 03: We said what information we want and we said why we want it. [00:03:06] Speaker 03: And that is the names of the people who were surveilled under this program. [00:03:10] Speaker 03: And if you could look back, it's DCF number 33 in the district court on page 25. [00:03:15] Speaker 03: We say we want to be able to communicate with our members. [00:03:18] Speaker 02: These people might be members of Gun Owners of America, and they have a... Sorry, we appreciate that argument, but as the government tees it up, they agree that there's a separate set of question as to the PII and the exemption six. [00:03:31] Speaker 02: material. [00:03:32] Speaker 02: So just on Judge Pillard's question for the Exemption 3 and 7E, if we were focused just on that, you've argued that the case isn't moot as to that material. [00:03:46] Speaker 02: And can you sort of give us your best argument about what that is? [00:03:52] Speaker 03: I don't think you can moot a case just by renaming a PDF. [00:03:56] Speaker 03: It's the same production, whether they call it 14 or 13 or 15, the most recent one. [00:04:00] Speaker 03: It's the same pages. [00:04:02] Speaker 03: It has some of the same information. [00:04:04] Speaker 03: And the district court said you are not allowed to access that information. [00:04:08] Speaker 03: This was not about protecting some [00:04:11] Speaker 03: ethereal production, this is about protecting access to the information. [00:04:15] Speaker 03: This is information Congress said that ATF should not produce. [00:04:19] Speaker 04: Do you think the right results, would it be in our power to hold that that claim is moot because it's not covered by the district court's protective order? [00:04:35] Speaker 04: Or do you think we would need to remand for the district court to make that determination? [00:04:40] Speaker 03: I think this court should vacate the district court's gag order. [00:04:43] Speaker 03: I think that it applies to all the information. [00:04:46] Speaker 03: I don't think it changes. [00:04:48] Speaker 04: So if we vacated the gag order with respect to exemptions 3 and 7E and the information that they were asserting should be clawed back because covered by those exemptions, that would move that aspect of the case in your view. [00:05:07] Speaker 03: If this court were to vacate the district court's gag order with respect to 3 and 7E, then yes, we would be able to use that information. [00:05:15] Speaker 03: The government would have admitted that we can use it. [00:05:17] Speaker 03: I would agree with that. [00:05:19] Speaker 04: I think the government already admitted that you use it. [00:05:22] Speaker 03: Sure. [00:05:23] Speaker 03: The government may treat judicial orders with a little more cavalierness than private litigants. [00:05:29] Speaker 03: I don't think it's ATF's prerogative to just declare that it can unilaterally dissolve an order of a court just by re-providing the information. [00:05:37] Speaker 00: On the filings that we received last week, from your perspective, what's the status of the FOIA production? [00:05:47] Speaker 00: just along these lines, because we're talking about particular exemptions and the gag order, but it's kind of hard to understand what the status of, because it seems like, as in many cases that are like litigation, there becomes a role in production. [00:06:00] Speaker 00: Things get produced along the way. [00:06:02] Speaker 00: So can you just tell us what the current status of the production is now? [00:06:06] Speaker 03: I believe that the production has been completed. [00:06:08] Speaker 03: I believe production 13 was the last one. [00:06:11] Speaker 03: We haven't heard differently from the government, so that's my understanding, Your Honor. [00:06:15] Speaker 03: There's also this issue that. [00:06:18] Speaker 03: some of the B6 information the government says, well, we pointed to your briefing. [00:06:22] Speaker 03: The district court pointed to our briefing and said, social security numbers. [00:06:26] Speaker 03: We said we don't want to go up in fraudulent credit cards with people's social security numbers. [00:06:29] Speaker 03: We have no interest in this information. [00:06:31] Speaker 03: And the district court said, aha, I get to impose a gag order on you. [00:06:34] Speaker 03: And that's the the basis of the government's defense here is that because we can we agreed that we didn't have any interest in certain information that we can then have our speech gagged. [00:06:44] Speaker 03: That was not why we agreed to not use certain information. [00:06:46] Speaker 03: Our point was that [00:06:47] Speaker 03: If there is going to be no speech, there can be no harm. [00:06:50] Speaker 04: And the only it's a little it's a little bit of a fine distinction. [00:06:55] Speaker 04: You're saying if there's going to be no speech, there's no harm. [00:06:59] Speaker 04: But if there's going to be no speech, there's also no First Amendment suppression. [00:07:06] Speaker 03: Well, there is, Your Honor, because the district court said you may not. [00:07:10] Speaker 04: Right. [00:07:10] Speaker 04: But you've said we've no interest in that speech. [00:07:12] Speaker 04: And so if I say I had no interest in [00:07:15] Speaker 04: you know, uttering hate speech, and somebody wants to bring a case against me for hate speech. [00:07:20] Speaker 04: It's like, that's not the vehicle to decide that issue, because I actually have no interest in saying the thing. [00:07:27] Speaker 04: And so it just, that strikes me as a little, I understand what you're saying about the government, but it also seems like it has an effect on the harm that you're claiming. [00:07:44] Speaker 03: Well, I think the way I'd frame it is that the burden is on the government every time to justify a restraint on speech, to justify a gag order with what the Supreme Court says is a state interest of the highest order. [00:07:55] Speaker 03: Like, even if there was a risk of Social Security numbers getting published in this case, I don't think that it says even close to that standard. [00:08:01] Speaker 04: So I just... So I understand that you have a distinct interest in [00:08:12] Speaker 04: keeping free of gag order, although not in communicating the personally identifiable information that was intended to be redacted but wasn't redacted under Exemption 6, 7C, and 7D. [00:08:31] Speaker 04: But the district court ruled based on what the court thought was your waiver of any interest in speaking on [00:08:42] Speaker 04: those exemptions of communicating the information that the ATF wished it had withheld under those exemptions. [00:08:49] Speaker 04: And then you filed an appeal brief in this court that said nothing challenging that basis of the district court's order. [00:09:01] Speaker 04: So why have you not completely forfeited that ground on appeal? [00:09:07] Speaker 03: I think we challenged the entire order in the district court. [00:09:10] Speaker 03: We said, please don't gag us. [00:09:12] Speaker 03: And here we've said we object to the entire gag order, Your Honor. [00:09:15] Speaker 04: But you objected on First Amendment grounds. [00:09:18] Speaker 04: And what I'm saying is that the basis on which she ruled [00:09:22] Speaker 04: was you've waived any interest in that information. [00:09:27] Speaker 04: And if you now say, no, we didn't, or that waiver isn't enough because, like, I don't think you addressed it at all. [00:09:38] Speaker 04: And that is the ground of her decision. [00:09:41] Speaker 04: So I'm a little puzzled about [00:09:45] Speaker 04: again, where that leaves you in terms of the interest you assert. [00:09:48] Speaker 04: And I do understand that what you seek is a First Amendment ruling, but I'm just not seeing that she ruled that she didn't think that you had asserted any interest in that information. [00:10:02] Speaker 04: You're saying that's wrong, but you didn't say that in your opening brief. [00:10:06] Speaker 03: We did, Your Honor. [00:10:07] Speaker 03: I mean, the district court's order prevents speech. [00:10:10] Speaker 04: I don't think there's any... But that gets beyond the question on the basis on which she ruled. [00:10:16] Speaker 03: But in order to gag speech, Your Honor, you have to have a harm that's going to occur. [00:10:20] Speaker 04: Right. [00:10:21] Speaker 04: And she's saying, you've asserted no harm. [00:10:23] Speaker 04: I'm not gagging your speech. [00:10:27] Speaker 03: The district court's order says we shall and we shall not. [00:10:30] Speaker 03: That is injunctive relief, as I understand it, and it cags our speech, Your Honor, I believe. [00:10:35] Speaker 02: I see my time as... Can I just try one way of clarifying this for myself? [00:10:40] Speaker 02: I mean, if you just read the district court opinion, there is sort of a part one that's to PII, and it does effectively say, well, they've consented to the entry of an order against them. [00:10:51] Speaker 02: And then it moves on and addresses the Exemption 3 and 7E material. [00:10:55] Speaker 02: They have not consented, but I have authority to do it, and it doesn't violate the First Amendment. [00:11:00] Speaker 02: And I think what Judge Pillard is asking is, we might have expected you [00:11:05] Speaker 02: in appealing to contest the fact that you had the finding that you consented to entry of the order for one bucket of information. [00:11:15] Speaker 02: Why isn't that a reasonable thing? [00:11:18] Speaker 02: The takeaway would be that as to the PII information, the court could say the district court found you consented to entry of judgment on appeal in your opening brief. [00:11:30] Speaker 02: You didn't contest that. [00:11:32] Speaker 02: Why shouldn't we rule on that basis? [00:11:35] Speaker 03: Because I don't think that's what the district court's order does. [00:11:38] Speaker 03: And I do think I don't think we distinguished in our briefing. [00:11:41] Speaker 03: I think we were very clear that we objected to the whole thing. [00:11:43] Speaker 03: And I just I do want to circle back to the fact that of that V6 PII information, there is a category of it where the government doesn't focus on it in their brief and just says you consented to all these things. [00:11:56] Speaker 03: people who were surveilled, their names, their contact information, that's not in the government's list. [00:12:01] Speaker 03: And if you look back at our briefing in the trial court and in this court, we expressly said, we want access to that information. [00:12:07] Speaker 03: And I don't think the DOJ will get up here and say today that we have access to that information. [00:12:12] Speaker 02: Isn't it fair to say, so I've read your opposition to the motion for summary judgment, the overriding argument is, [00:12:21] Speaker 02: You district court have no authority of any kind to enter this order point to if you did, it would violate the first amendment. [00:12:29] Speaker 02: Even if you disagree with those things. [00:12:31] Speaker 02: You know, there's some of these records we would agree to destroy, but we have an interest in communicating some of the information. [00:12:39] Speaker 02: Sort of your third fallback argument, isn't it? [00:12:42] Speaker 03: Well, there's also the equitable argument that this court in HRDC said, judges do not have inherent or implied powers. [00:12:50] Speaker 03: And so the district court said, well, I'll just use a different word in that way. [00:12:53] Speaker 03: I have equitable powers, but equity has to be tied to writing illegal wrong or enforcing legal right. [00:12:59] Speaker 03: And there's nothing like that. [00:13:00] Speaker 03: FOIA does not provide any remedy at all against FOIA requesters. [00:13:05] Speaker 03: Everything is against the government to declare that records have been unlawfully withheld, to adjoin records and to force an agency to give up records. [00:13:13] Speaker 03: None of that goes to a FOIA requester. [00:13:15] Speaker 04: But change the jurisdiction under 1331 to deal with a FOIA claim in front of her. [00:13:23] Speaker 04: And with respect to the PII, she didn't have to use any authority that was called into question in HRDC because as she understood it, and I take it you're saying erroneously, as she understood it, you had effectively agreed with the government that you had no First Amendment right, no interest in [00:13:51] Speaker 04: I know you distinguish between those two things, but you had no interest in communicating any of the PII. [00:13:57] Speaker 04: What you were really interested in was the system by which the Brady law tracks information about people that it's concerned might be not following the law. [00:14:14] Speaker 04: And that was what you really were interested in. [00:14:16] Speaker 04: So with respect to the PII, she didn't order any. [00:14:20] Speaker 04: She didn't invoke that equitable authority to distinguish it from inherent authority. [00:14:28] Speaker 03: Two things, Your Honor. [00:14:29] Speaker 03: One, I just want to, again, be very specific with respect to the PII. [00:14:32] Speaker 03: There is a category of PII that we never disclaimed interest in and we do not have access to. [00:14:38] Speaker 04: And that is? [00:14:39] Speaker 03: The names and the contact information of the people who were the targets who were surveilled under this program. [00:14:49] Speaker 03: And the district court glosses, I'm sorry, the government glosses over that in its brief and said, look at all of these things that the plaintiffs disclaimed interest in, that is not on the list. [00:14:59] Speaker 03: And you can look again, it's ECF 33 in the district court, page 25, and I can read it to you. [00:15:07] Speaker 03: We expressly said what we want and what we want to do with it. [00:15:10] Speaker 03: We said, defendant overlooks the possibility of disclosing this information to the persons who are the subjects of FBI ATF investigations. [00:15:19] Speaker 03: And that these people have an interest in knowing that this occurred and has an interest in communicating with his members and telling them you're in the plaintiff's response to summary judgment. [00:15:28] Speaker 03: Yes, ma'am. [00:15:29] Speaker 04: And which page twenty five. [00:15:30] Speaker 03: The bottom paragraph. [00:15:46] Speaker 03: So we said we don't want FBI names, we don't want undercover names, we don't want FBI email addresses, ATF phone numbers, social security numbers that are in there, that sort of thing. [00:15:56] Speaker 03: We never said that we do not want the ability to reach out to people who have been surveilled by the government and let them know that that occurred, especially if they're members. [00:16:04] Speaker 03: of our organizations. [00:16:06] Speaker 04: So you said in two pages earlier, the subjects of the investigation, we don't care about birth dates and social security numbers. [00:16:15] Speaker 04: And what you're saying is if you read page 23 together with 25, what you don't say, but we are interested in their names and contact information, but you're saying it's implicit in that paragraph at the bottom of page 25, possibly disclosing [00:16:33] Speaker 04: this information, meaning the, um, the fact that they were interested interest to the people who were subject to it, um, is you're disputing that they have a privacy interest, which is really going to the merits of the underlying exemption. [00:16:56] Speaker 03: Well, the district court, the government, they never asked what we wanted to use this for. [00:17:00] Speaker 03: We have no interest in [00:17:01] Speaker 03: publicizing this in a news story that John Smith in Arizona was surveilled by the government. [00:17:06] Speaker 03: But I do think we have an interest in telling John Smith in Arizona that he was surveilled by the government. [00:17:14] Speaker 03: And that's conspicuously absent from the government's list of things in its brief when it says plaintiffs disclaimed all of these things. [00:17:20] Speaker 03: That's just not there. [00:17:22] Speaker 03: So I just want to be very clear that of all the B6 stuff, that is a category that we never... And that's the only category. [00:17:29] Speaker 04: That's the only category of the people. [00:17:32] Speaker 04: Yes. [00:17:34] Speaker 00: I just want to touch on HRDC a little bit. [00:17:37] Speaker 00: I mean, you've obviously benefited from this clawback information because FOIA doesn't provide for a compelled return or destruction of inadvertently produced information. [00:17:46] Speaker 00: But if we're balancing open government and we should know what the government is up to, but then you also have this inadvertent production, [00:17:56] Speaker 00: I'm just curious as to whether you think there's any protection for agencies when they are vigilant and diligent in responding to a FOIA request and then something like this happens, but they able to put together a reasonable declaration that, you know, suggests they tried to do everything in terms of stop gaps and not inadvertently produce information, or do you think we're just kind of limited to this decision that says, [00:18:23] Speaker 00: There's nothing in FOIA that, you know, protects clawbacks, so therefore, in your circumstance, you win. [00:18:30] Speaker 03: I think, Your Honor, HRDC says that the judges have no authority. [00:18:37] Speaker 03: to issue a clawback. [00:18:38] Speaker 03: I think that is very clear. [00:18:40] Speaker 03: I mean, what HRDC was dealing with was inherent and implied, but again, equitable equity has to be tied to something. [00:18:47] Speaker 03: A judge doesn't just come into court and say everybody has to have blue hair tomorrow. [00:18:50] Speaker 03: There has to be a legal right. [00:18:52] Speaker 03: There has to be a legal wrong. [00:18:54] Speaker 03: ATF, there's nothing statutory otherwise. [00:18:57] Speaker 03: ATF has no right to demand documents back. [00:19:00] Speaker 03: And my client, there's no wrong committed by simply receiving an email and opening a PDF from the government that the government voluntarily sent to us. [00:19:09] Speaker 03: So that's our point about the equitable power. [00:19:13] Speaker 00: But you also take the position that even if it's an inadvertent production, [00:19:19] Speaker 00: that had an appropriate exemption tied to it, it's still an inadvertent production, so you win. [00:19:26] Speaker 03: As Judge Moss said in a district court in a similar case, he said, litigation mistakes have consequences. [00:19:31] Speaker 03: And there's a Supreme Court case called Cox Broadcasting Corporation. [00:19:35] Speaker 03: It says, if there are privacy interests to be protected, the government must respond by means which avoid public exposure. [00:19:43] Speaker 03: And I'm quoting, once true information is disclosed, the press cannot be sanctioned for publishing it. [00:19:48] Speaker 03: So that's our position, Your Honor. [00:19:51] Speaker 02: Look, so if we have a broad ruling that says just sort of full stop, no inherent or equitable authority to order the clawback of inadvertently produced documents, the [00:20:09] Speaker 02: You know, parade of horribles example on the other side is what about classified material? [00:20:14] Speaker 02: So the government accidentally turns over classified material. [00:20:18] Speaker 02: You say sorry. [00:20:20] Speaker 03: Well, I don't say so. [00:20:22] Speaker 03: Is there a way of distinguishing that? [00:20:24] Speaker 03: There is. [00:20:25] Speaker 03: And there's a dozen or two dozen First Amendment cases in our prior restraint section in our brief. [00:20:32] Speaker 03: That is one of the types of things. [00:20:34] Speaker 03: that the Supreme Court has indicated might be protected, that either was a thing was in New York case. [00:20:41] Speaker 02: No, no, no. [00:20:41] Speaker 02: If we hold that there's no equitable authority to claw back, you never get to the First Amendment question. [00:20:49] Speaker 02: So I'm asking, is there some limit on your theory of the equitable authority of the court? [00:20:56] Speaker 02: that would even allow a court to try to address that information in the first place. [00:21:00] Speaker 03: I don't know about an FOIA case, Your Honor. [00:21:02] Speaker 03: There have been other cases where reporters' media get access to classified information. [00:21:06] Speaker 03: I don't off the top of my head know how the government proceeds into court to obtain a prior restraint, but I guess it could take those sorts of actions. [00:21:14] Speaker 03: But under FOIA and under HRDC, I don't know that there's any authority. [00:21:18] Speaker 04: I mean, HRDC specifically distinguishes cases in which there's an independent legal basis for keeping the information under wraps. [00:21:28] Speaker 04: So I think that's an open question in our. [00:21:31] Speaker 03: With the Exemption 3 stuff that they voluntarily provided to us. [00:21:34] Speaker 03: Yes, I think, I don't know, by voluntarily providing it to us, I don't know that the court needs to reach that question. [00:21:40] Speaker 03: Obviously, Amicus Baltimore would like the court to opine on that. [00:21:44] Speaker 03: I don't know that that's necessary in this case. [00:21:49] Speaker 04: You pointed to the place, and I think it was the opposition to summary judgment, where you said you had an interest in telling the people who were being monitored that they were being monitored. [00:22:08] Speaker 04: The district court did not apparently [00:22:12] Speaker 04: understand you to be saying, we're not waiving PPI with respect to some people. [00:22:17] Speaker 04: She thought that you were waiving it entirely, and it's a reasonable reading of your papers. [00:22:23] Speaker 04: You didn't ask for clarification there. [00:22:25] Speaker 04: You didn't raise the limits of your waiver before us in the blue brief. [00:22:34] Speaker 04: If she's treating this as effectively a consent order, do you have any guidance for us on what would be the standard for challenging or altering a consent order? [00:22:45] Speaker 04: If you said, no, no, this is wrong, what would be your burden? [00:22:51] Speaker 03: in that situation. [00:22:52] Speaker 03: I don't know that I read this as a consent order, Your Honor. [00:22:55] Speaker 04: I think she did. [00:22:56] Speaker 04: That's what I'm saying. [00:22:57] Speaker 03: As to those categories of information. [00:23:00] Speaker 03: I mean, that was claimant names, claimant contact information, other than birth dates and things, were just absent from. [00:23:06] Speaker 04: Right. [00:23:07] Speaker 04: But you said in broader terms in your briefing, ATF reports that redactions personally identifying information of the subjects of the investigation [00:23:17] Speaker 04: including birthdays and such, but not limited to. [00:23:22] Speaker 04: And then you said, neither plaintiffs nor counsel have any interest in such information and would agree to destroy any such records. [00:23:31] Speaker 04: So the ATF sentence that's quoted is, personal identifying information of the subjects of investigation. [00:23:38] Speaker 04: including particularly private ones, social security number, but not limited. [00:23:43] Speaker 04: And then so in your brief, you don't say, we don't have any interest in that. [00:23:48] Speaker 04: We do have an interest in. [00:23:50] Speaker 04: You just don't ever say that in the district court, as I read. [00:23:53] Speaker 03: That's the way I read page 25 here on. [00:23:55] Speaker 04: Page 25 is saying this should not be subject to exemption. [00:23:58] Speaker 04: It's not really saying, look, by the way, when we're just claiming information, one thing we really need. [00:24:03] Speaker 04: I don't see that anywhere. [00:24:05] Speaker 04: But anyway, so she. [00:24:07] Speaker 04: maybe was wrong about the extent of your waiver. [00:24:11] Speaker 04: And what I'm asking is, given that understanding the factual scenario that way, that she thought you actually were waiving something that you stand before us and say, no, no, we never did, if she thought she was entering a consent order, what's your burden in saying, no, no, error, consent order over broad? [00:24:33] Speaker 04: Do you have anything for us on that? [00:24:36] Speaker 03: Off the top of my head, I mean, I think this court still has the power to overturn the district court's injunction. [00:24:41] Speaker 03: As to that, I still think there's a prior restraint argument. [00:24:44] Speaker 03: I still think that there's an inequitable argument, because that is what the court was exercising, was equity. [00:24:50] Speaker 04: With respect to the exemptions 3 and 7A, which... I think with respect to everything. [00:24:54] Speaker 03: I don't know where else you get the power to enter an order. [00:24:58] Speaker 04: she was relying on what she thought was your consent. [00:25:03] Speaker 04: There's a case before her, adverse parties, 1331 jurisdiction. [00:25:07] Speaker 04: She doesn't have to resolve every issue if she thinks you've agreed. [00:25:12] Speaker 04: And you're saying, no, she didn't. [00:25:15] Speaker 04: But that, as I was saying, I think that's a separate question. [00:25:19] Speaker 04: How you challenge her erroneous understanding of your, of leaning. [00:25:25] Speaker 03: I just I still think that that judicial power has to spring from somewhere. [00:25:30] Speaker 03: I don't think that just because a plaintiff says. [00:25:34] Speaker 03: I have no interest in something that's completely outside this case and tangential. [00:25:37] Speaker 03: And the judge says, well, I'm going to enjoin you from doing that. [00:25:40] Speaker 03: No, it still has to be righting a wrong or enforcing a right. [00:25:46] Speaker 03: I don't think it just can happen, just because even if we did come in and say we agree to all this, I still don't think that gives a judge the authority. [00:25:53] Speaker 03: It has to come from somewhere. [00:25:54] Speaker 04: All right. [00:25:59] Speaker 04: Thank you, Mr. Olsen. [00:26:00] Speaker 04: I'll give you some time for rebuttal. [00:26:16] Speaker 01: Please support for the government. [00:26:19] Speaker 01: Plaintiff's litigating position in district court was that they wanted gun trace data but were willing to destroy personally identifiable information contained in an inadvertent disclosure. [00:26:28] Speaker 01: We all agree they now have access to gun trace data and I think that's in a form they can use freely so that part of the case is moot. [00:26:35] Speaker 01: As for the PII, the district court took plaintiffs up on their offer to destroy it, and they didn't say a word about that part of the order in their opening brief. [00:26:43] Speaker 01: It was only after the government produced the information plaintiffs wanted that they first articulated to this court that they wanted even more. [00:26:49] Speaker 01: But I think they got what they asked for, and it's time for this litigation to come to an end. [00:26:53] Speaker 04: What is the support for the district court instead of just dismissing the [00:27:01] Speaker 04: claims with respect to PII as moot, what's the basis for her to enter a protective order? [00:27:11] Speaker 01: So I think it is consent. [00:27:13] Speaker 01: I think thinking this is a consensual order is the right way to think of it. [00:27:16] Speaker 01: I think that's how the district court thought of it. [00:27:18] Speaker 01: On Appendix 59, she said, since plaintiffs have already agreed to destroy the personal information, the agency redacted under 6, 7C, and 7D, the court will order it to do so. [00:27:30] Speaker 01: So I think that's the basis, and that basis wasn't challenged in the opening brief. [00:27:34] Speaker 01: And I do think it's broader than, as my friend described, he said they wouldn't use it. [00:27:40] Speaker 01: But they specifically said they would agree to destroy the records. [00:27:43] Speaker 01: And they said, we submit the destruction of any such portion of the records would alleviate the harm that the defendant's declaration of alleged could occur. [00:27:51] Speaker 01: And the district court said, OK, if you destroy them, then we can move on from this part of the case. [00:27:55] Speaker 02: In terms of whether... There was supplemental briefing after the HRDC case, right? [00:28:01] Speaker 01: Yes, Your Honor. [00:28:02] Speaker 02: And I have not seen that supplemental brief from the plaintiffs, but I presume it said, you have no authority to enter a clawback order against us. [00:28:10] Speaker 02: It did, Your Honor. [00:28:12] Speaker 02: And so if you have that filing in front of you and then a separate filing that says we don't have an interest and will destroy some records, [00:28:24] Speaker 02: How do you add that up to, we consent to an order against us on half the information in the case? [00:28:30] Speaker 02: It seems like a very different point that they were making. [00:28:35] Speaker 01: I want to address this two ways, doctrinally and practically. [00:28:39] Speaker 01: I think doctrinally, [00:28:41] Speaker 01: that you have what I read as a sort of clear waiver. [00:28:45] Speaker 01: And if you want to try to take back that waiver, and we can argue about whether that's possible, but I think you have to be at least as clear that we're backing up from this position with respect to this information. [00:28:56] Speaker 01: Because they said over and over again, and I think that we have a string site, this record has a string site, all the times they said that. [00:29:02] Speaker 01: And they specifically said they're trying to narrow the scope of the case. [00:29:05] Speaker 02: A simpler way of asking the question is, [00:29:08] Speaker 02: Seems like there's a strong argument that we will destroy some of this information is very different from we consent to an order. [00:29:15] Speaker 02: To that we may not use it and must destroy it and that makes a lot of sense given the this brief. [00:29:25] Speaker 02: We're talking about page 25. [00:29:27] Speaker 02: The first 20 pages are saying, you have no authority to enter a clawback order against us. [00:29:31] Speaker 02: And then it says, for the few clawback cases that exist, they look at a few factors. [00:29:38] Speaker 02: And one of those is harm. [00:29:40] Speaker 02: And they're trying to explain the harm here is low, because we're not going to do anything with the most sensitive information. [00:29:45] Speaker 02: And now that's been flipped into affirmative consent to entry of a district court injunction against you. [00:29:53] Speaker 01: So I don't agree. [00:29:55] Speaker 01: I think the clearest point is. [00:29:57] Speaker 01: In the opposition to the protective order, this is at page 30 of the appendix, they say specifically about this whole category of information ATF discusses, personal identifying information of the subjects. [00:30:10] Speaker 01: They say, neither plaintiffs or counsel have any interest and would agree to destroy the records. [00:30:13] Speaker 01: I think this saying we would agree to destroy it is an important point. [00:30:16] Speaker 01: And why I think it's important practically that it takes the form of an order saying, OK, destroy it, as opposed to the plaintiffs just voluntarily destroying it. [00:30:26] Speaker 01: And I don't know whether they've done that or not. [00:30:27] Speaker 01: But the reason that it's important that that happens practically is favish. [00:30:33] Speaker 01: A FOIA disclosure to one party is a disclosure to all parties. [00:30:36] Speaker 01: So even if plaintiffs here say, we have no interest in disseminating social security numbers, [00:30:45] Speaker 01: I don't know what happens if someone else comes to request this information. [00:30:47] Speaker 01: ATF might try to say Favish doesn't apply, but there's a real risk there that the fact that it has been disclosed in FOIA means that ADF is powerless to protect this specific information that they released in future cases. [00:31:00] Speaker 01: And the district court entered, I think, a very sensible order giving effect to their offer to destroy it. [00:31:07] Speaker 01: But if you disagree, if you think that [00:31:12] Speaker 01: That was not a reasonable way to read the plaintiff's briefing. [00:31:15] Speaker 01: I think they still need to say that in their opening brief to preserve that argument, because it is a distinct ground for holding. [00:31:21] Speaker 01: The district court said, I can deal with 6, 7C, and 7D easily, and then I'm going to do a bunch of analysis on 3 and 7E. [00:31:30] Speaker 04: What is her authority for entering the, if we conceptualize it as a consent order, if there's no authority to claw back [00:31:42] Speaker 04: What is being resolved there? [00:31:47] Speaker 01: I mean, I think you can think of it as courts sometimes enter consent orders as a way of effectuating a settlement between the parties. [00:31:56] Speaker 01: And they don't point to a specific statute or run through the mark exchange factors to do that. [00:32:03] Speaker 01: I'm not saying this was a settlement, but I am saying that plaintiffs said specifically, we want to narrow the dispute. [00:32:07] Speaker 01: We don't care about this. [00:32:09] Speaker 01: The government clearly didn't want to turn over that. [00:32:11] Speaker 01: I think you have something that's basically analogous to that type of order here. [00:32:17] Speaker 04: And do you think there's a burden on the party who was taken by the district court to have waived. [00:32:24] Speaker 04: To come forward and say, can we move to change that consent order or. [00:32:31] Speaker 01: I think to the extent that plaintiffs thought that the district court misunderstood their briefing, that might have been an inappropriate place to move to reconsider or alter or amend the judgment on that basis. [00:32:44] Speaker 01: I don't know that they have a burden to do that, but I think they certainly have a burden either in their opening brief to say, the district court got this wrong as a matter of law, and the order can't be sustained on that basis, or to say, well, OK, we did consent, but the factors justifying [00:33:01] Speaker 01: you know, modification of a coercive order are met. [00:33:07] Speaker 02: Just a little bit of an odd setup for a forfeiture argument based on the opening brief, right? [00:33:13] Speaker 02: Because just as a practical matter, I can see what the plaintiffs, how they're reviewing this. [00:33:18] Speaker 02: Then when you look at the order, [00:33:21] Speaker 02: Order does not say consent order as to PII information, non-consent order as to other. [00:33:28] Speaker 02: They have an order that applies to all of the mistakenly disclosed information, and they come on appeal and say the district court had no authority to enter it. [00:33:37] Speaker 02: It just wouldn't really occur. [00:33:38] Speaker 02: If you hadn't tried to moot the case, I don't think that [00:33:48] Speaker 02: maybe you would have even thought to argue. [00:33:52] Speaker 02: Even if the court had no authority to enter this order, you have to affirm it in part as to the exemption six information. [00:33:59] Speaker 02: That would be a very strange thing to do. [00:34:01] Speaker 01: Well, with respect to our trustee, there was a stay stage to this case. [00:34:04] Speaker 01: Plaintiff sought a stay of the order, which we opposed on the basis that it was basically some reversal. [00:34:09] Speaker 01: But in that, our state papers, we said specifically, we addressed 3 and 7E. [00:34:16] Speaker 01: But we said we don't need to even deal with the 6, 7C, and 7D PII material because you agreed to it. [00:34:21] Speaker 01: And that's in the papers. [00:34:23] Speaker 01: I don't think they addressed that in their [00:34:26] Speaker 01: stay reply, but they were on notice when it came time to file the opening brief that this was the government's position. [00:34:32] Speaker 01: So I'm not sure whether that would save them from forfeiture even without that, but I do think that they were put on notice that that was our position. [00:34:44] Speaker 02: If we do reach the merits, and because we disagree with one of your threshold grounds, [00:34:51] Speaker 02: Does the government concede error, or are you just not giving us an argument? [00:34:57] Speaker 01: So we are not advancing an argument on the merits here. [00:35:03] Speaker 01: Are you conceding error? [00:35:05] Speaker 01: Only the Solicitor General can authorize confession of error, and he has not done that. [00:35:08] Speaker 01: So I'm not confessing error, but we have waived any affirmative arguments in favor of preserving the order certainly on the grounds we think are moot. [00:35:19] Speaker 04: Equitable clawback or? [00:35:21] Speaker 01: Yeah, we're not, we're not, we're not advancing those arguments. [00:35:24] Speaker 04: Yeah. [00:35:25] Speaker 02: Um, another procedural question, the government's long standing position is that the T art amendment is an effective prohibition on disclosure of next data. [00:35:35] Speaker 02: Yes. [00:35:36] Speaker 02: Yet in the 14th production, you produced NICS data voluntarily. [00:35:41] Speaker 02: Can you explain how that can bet? [00:35:43] Speaker 01: Yes. [00:35:43] Speaker 01: So our position is that the TRD amendment prohibits disclosure. [00:35:49] Speaker 01: And disclosure means to make known something heretofore kept secret. [00:35:54] Speaker 01: I don't think there's such a thing as re-disclosure. [00:35:56] Speaker 01: I think once it was disclosed in the inadvertent production, that sort of [00:36:03] Speaker 01: you know, the TR Prohibition fell away there. [00:36:10] Speaker ?: OK. [00:36:11] Speaker 02: And, you know, for the same reason. [00:36:13] Speaker 02: I don't think that's before us. [00:36:15] Speaker 02: It is not. [00:36:15] Speaker 02: But it is question raising. [00:36:20] Speaker 01: I understand. [00:36:20] Speaker 01: But I would say the parties, I think, are in violent agreement that there should be, the plaintiff should have access to the Exemption 3 material here. [00:36:27] Speaker 01: So I don't think anyone's contesting that here. [00:36:33] Speaker 01: answer any further questions, but if not, the judgment should be affirmed with respect to the PII material and the appeal should otherwise be a specific. [00:36:43] Speaker 04: I'm sorry. [00:36:44] Speaker 04: Just with, do you think it would be appropriate for us [00:36:49] Speaker 04: You already addressed this, I think, but just to rule that the district court relied on waiver with respect to the non-exemption 3, exemption 7e information, and the plaintiffs forfeited on appeal any challenge to that. [00:37:08] Speaker 01: Yes. [00:37:09] Speaker 01: I think that's the most appropriate way to resolve that issue. [00:37:13] Speaker 00: Thank you. [00:37:14] Speaker 01: Thank you. [00:37:15] Speaker 00: And just bottom line, do you agree that FOIA, with respect to this inadvertent production, is going to allow the plaintiffs to use whatever information we deemed that was appropriate for the clawback? [00:37:28] Speaker 01: I'm sorry, Your Honor, I'm not sure if I quite understood that. [00:37:31] Speaker 00: Well, because of the inadvertent production and there being no opportunity for a clawback, are plaintiffs able to then just go forward and use the information? [00:37:39] Speaker 01: Plaintiffs are free to use all of the Exemption 3 and 7E material that has been disclosed. [00:37:49] Speaker 01: Our position is that plaintiffs cannot use the personally identifiable information that is still redacted in the most recent production based on the consent. [00:37:58] Speaker 01: If you said that there wasn't consent, then I suppose you have to vacate that part of the order and send it back to the district court and figure out what happens. [00:38:07] Speaker 02: Can I ask one question? [00:38:08] Speaker 02: On page 59 of the appendix, the district court does say, because plaintiffs have agreed to destroy this information, court will order it to do so. [00:38:23] Speaker 02: Earlier in the opinion, the district court said, although plaintiffs don't claim [00:38:31] Speaker 02: an interest in using the bulk of it, they object to any order extending restrictions on the use of the material on principle. [00:38:40] Speaker 02: Isn't that effectively their point? [00:38:44] Speaker 01: Would you mind telling me what page that first is? [00:38:46] Speaker 02: Sorry, the first one is on Appendix 49. [00:38:49] Speaker 02: The district court acknowledges that they are objecting on principle and later... Is that 59? [00:38:55] Speaker 02: 49 is... [00:38:57] Speaker 02: where the district court acknowledges they're objecting on principle and 59 is where they say, despite that, because they have said they don't mind destroying it, I will use. [00:39:11] Speaker 01: Yeah, I think that you would have to read that in context. [00:39:15] Speaker 01: On the next page, on 50, the court again says, plaintiffs have already agreed to destroy the majority of the information at issue. [00:39:24] Speaker 01: And that says, and I'm going to distinguish HRTC. [00:39:26] Speaker 01: So I don't think you could say that the district court is inconsistent there. [00:39:30] Speaker 01: I think this is the umbrella section of its analysis. [00:39:34] Speaker 01: And the statement might have been a little bit broad there. [00:39:36] Speaker 01: But on the very next page, it repeats the statement about it being destroyed. [00:39:45] Speaker 06: Thank you. [00:39:53] Speaker 03: I admit I don't understand exactly. [00:39:55] Speaker 03: This seems that the government's position is that once this information was disclosed to us that it was disclosed. [00:40:02] Speaker 03: So if that's the case, I don't know how you enter a gag order ordering it that it not be disclosed. [00:40:07] Speaker 03: And now the government's position is that it reproduced the T heart information on the public record piece that had already been disclosed. [00:40:13] Speaker 03: And yet we were the only ones that had it and we were gagged. [00:40:16] Speaker 03: And the government's position in the district court was that that [00:40:18] Speaker 03: That wasn't disclosure as long as we were gags. [00:40:20] Speaker 03: That doesn't intuitively make any sense to me. [00:40:24] Speaker 03: I do agree that we've been playing a bit of a game of whack-a-mole with the government here. [00:40:30] Speaker 03: We have objected every time to the district court's entry of this order. [00:40:34] Speaker 03: I will point to the government's answer to our complaint in the district court, their fourth defense, and I'm quoting, the court lacks jurisdiction to reward relief that exceeds that authorized by the FOIA. [00:40:47] Speaker 03: So that was their position, is you can't go beyond FOIA, Your Honor. [00:40:51] Speaker 03: But then when it suited them, when they needed a gag order, they said, please go beyond FOIA, Your Honor. [00:40:57] Speaker 03: When this case came to this court and we saw to stay, [00:41:00] Speaker 03: And ATF came in and opposed that vigorously. [00:41:03] Speaker 03: And they said, and I quote, a stay would allow plaintiffs to disseminate the sensitive information, information that Congress expressly provided should not be disclosed, and then moot the case. [00:41:13] Speaker 03: And the court said, OK, we're not going to stay the case. [00:41:16] Speaker 03: And then ATF immediately does literally that exact thing. [00:41:19] Speaker 03: They disseminate the sensitive information that Congress says shouldn't be disclosed, and then claim the case is moot. [00:41:25] Speaker 03: They claim they did this intentionally. [00:41:27] Speaker 03: So they're playing fast and loose with the district court, with this court, and with Congress. [00:41:32] Speaker 04: I mean, they're making litigation judgments as time goes on about whether they're going to be better off if they basically settle the part of the case with you. [00:41:47] Speaker 04: And so I'm not sure that I don't see [00:41:53] Speaker 04: inconsistency that you're claiming. [00:41:56] Speaker 04: I think their position was that they had authority to get this back and then they're like, okay, are we going to continue to pursue this case or not? [00:42:08] Speaker 03: I think the government has to be held to its position. [00:42:12] Speaker 03: And if its position in the district court and in this court is that T-hard information cannot be disclosed, they can't come in now and say, well, it was already disclosed and no big deal. [00:42:21] Speaker 03: If they say, Your Honor, you have no authority but that under FOIA, to then say, there's some other authority outside FOIA. [00:42:29] Speaker 04: And that matters to you. [00:42:30] Speaker 04: I mean, the result of that change of position is that you got something really important that you wanted. [00:42:39] Speaker 03: I'm sorry, I don't understand that. [00:42:41] Speaker 04: You received. [00:42:44] Speaker 04: The information that you most wanted and as council has stood up at the podium today and told us and open for. [00:42:53] Speaker 04: you may disseminate that information. [00:42:55] Speaker 03: That's your honor. [00:42:56] Speaker 04: Exemption three, exemption 70. [00:42:58] Speaker 04: You may have been unclear before, and I know you said in your brief that you were unclear whether you could given the district court's gag order, but he's made it very clear that that is now information available for you to use and communicate. [00:43:11] Speaker 04: So I'm not sure what to make of your dissatisfaction with the government's evolving position. [00:43:20] Speaker 03: I don't think that that's a fair characterization at all, that that's the information that we most wanted. [00:43:24] Speaker 03: The only information that we specifically described using was on page 25, where we said we want the names and the contact information that people surveilled. [00:43:34] Speaker 04: And I looked back a little more closely at the language that... On that half of the case, but I thought the thing you most wanted was you wanted to know what they were up to in this program. [00:43:45] Speaker 04: under the Brady Act, right? [00:43:46] Speaker 04: You wanted to know why they were keeping information in the national crime database about gun owners. [00:43:56] Speaker 03: It's a little difficult to discuss with you, Your Honor, specifically what is in there and what we want to use without arguably running afoul of the district court's gag order. [00:44:05] Speaker 03: I will say that that's the one specific category of information we really focused in on. [00:44:09] Speaker 03: in our briefing, I did look back at that language that you were discussing earlier where we said ATF reports that there's certain personally identifying information. [00:44:18] Speaker 03: This is on page 23 of that opposition to summary judgment, personally identifying information, the subjects including birth dates and social security numbers. [00:44:26] Speaker 03: So we said, [00:44:27] Speaker 04: Appendix or in the separate document. [00:44:30] Speaker 03: I'm sorry. [00:44:32] Speaker 03: I don't know what page of the appendix it is. [00:44:33] Speaker 03: It's the the opposition summary judgment below that we were looking at ECF 33. [00:44:41] Speaker 03: page 23. [00:44:42] Speaker 03: So we were discussing and we said, ATF says there's all of this information about these people, including these things. [00:44:51] Speaker 03: And then we said, to the extent that that's true, we don't have an interest in specific things. [00:44:56] Speaker 03: And we said specifically out of all of that, we don't want birth dates and social security numbers. [00:45:01] Speaker 03: So, you know, could I, in retrospect, have been even more clearer, potentially, but I think it's from the face of what we said. [00:45:11] Speaker 03: And then the next page, or two pages later, where we say, here's what we would do with this information. [00:45:15] Speaker 03: I think it's a very clear read that we still wanted that category of B6, of BII. [00:45:22] Speaker 02: So, counsel, assume for the moment that we agreed with everything you just said. [00:45:28] Speaker 02: That would amount to when the district court says on Appendix 59, because plaintiffs have agreed to destroy all of this PII information, the court will order it to do so. [00:45:41] Speaker 02: That would amount to showing that that was... Right. [00:45:45] Speaker 02: It raises the separate question, which the government has raised, of whether you have forfeited that [00:45:54] Speaker 02: argument of error on appeal by not raising it in your opening brief. [00:45:59] Speaker 02: And so you would also need to convince us that there is a justifiable reason for not addressing this error in the district court's opinion in your opening brief. [00:46:11] Speaker 03: What is that explanation? [00:46:13] Speaker 03: I think you made the argument quite convincingly. [00:46:16] Speaker 03: I mean, in our briefing in the district court, we objected on principle. [00:46:19] Speaker 03: When HRDC came out, we filed a supplemental brief and again said, you have no authority to do any of this. [00:46:26] Speaker 03: I don't know why anyone would have focused specifically on this sub-sub issue when you're focusing on the First Amendment and on HRDC. [00:46:35] Speaker 03: There is just no authority, Your Honor. [00:46:37] Speaker 03: So to try to tease out these nuances, we're doing it now that the government has made an issue of these various subcategories, but our argument has always been across the board on all this. [00:46:48] Speaker 03: One thing I will say about the district court's order, [00:46:51] Speaker 04: I thought your position had not been across the board because you just claimed an interest in a lot of PII and then you continue to assert an interest in what small category, the individuals who are being monitored in the database. [00:47:05] Speaker 03: But we still objected under the First Amendment and under the equity argument that even if we consented [00:47:12] Speaker 03: to get rid of certain information, that is an entirely different animal than having our speech gagged. [00:47:17] Speaker 03: If there is no speech to be had, I mean, the Washington Post and New York Times, they said, had information about the Maduro raid before it occurred and they agreed not to publish it. [00:47:26] Speaker 03: No one was running into court to gag speech that wasn't going to occur or to claw back that information. [00:47:35] Speaker 03: One thing I will note, Your Honor, about the district court's order is that [00:47:38] Speaker 03: We're in her opinion, she says that she will order us to destroy certain information that didn't make it in the order and district courts ruled by orders, not opinions is my understanding. [00:47:46] Speaker 03: I don't see anything in the order to destroy anything. [00:47:50] Speaker 04: So none of that has been destroyed. [00:47:53] Speaker 03: There's one copy, Your Honor, as there always has been. [00:47:58] Speaker 03: is that district court order doesn't say anything about destroying. [00:48:00] Speaker 03: And even ATF in their briefing, I think, I don't have a pin sight for you, but said, we are not at this time requesting that the information be destroyed. [00:48:08] Speaker 03: The thing that they asked for was sequester and don't disseminate, disclose, or use for any purpose. [00:48:14] Speaker 04: You're talking about the court appeals briefing? [00:48:16] Speaker 03: No, in the district court. [00:48:17] Speaker 03: That was all they ever sought from the district court was to keep it under wraps and not use it for any purpose, but not to destroy. [00:48:28] Speaker 03: And the district court never ordered any destructions from my understanding for order. [00:48:32] Speaker 04: When they say not at this time, is that, I mean, there was preliminary relief so that the courts could decide the issue. [00:48:38] Speaker 03: I don't recall any subsequent request for destructions in the ATF. [00:48:42] Speaker 04: Right. [00:48:42] Speaker 04: But this is, I mean, the case is still ongoing. [00:48:44] Speaker 04: Right. [00:48:45] Speaker 04: So the destruction, I assume, would be when the case is no longer ongoing. [00:48:49] Speaker 03: And you've... I would press them. [00:48:54] Speaker 00: Judge Charles, anything else? [00:48:56] Speaker 00: Nothing further. [00:48:57] Speaker 00: Thank you. [00:48:58] Speaker 00: Thank you. [00:48:59] Speaker 00: The case is submitted.