[00:00:02] Speaker 00:
Good morning, Your Honor.

[00:00:03] Speaker 00:
Todd Lundell from Shepherd Mullen on behalf of the appellant, Colonel Dennis Bukowicz.

[00:00:09] Speaker 00:
I'd like to reserve maybe four minutes of my time.

[00:00:10] Speaker 03:
Okay, please watch the clock.

[00:00:14] Speaker 00:
When Colonel Bukowicz filed his FOIA request in January of 2015, the minimum expectation was that the Navy would produce to him the four emails that he knew existed because he had been CC'd on those emails.

[00:00:28] Speaker 00:
four weeks earlier uh... but that those emails were not in the navy's production in either march of two thousand fifteen or in may of two thousand fifteen and which raised the question why and in this litigation the navy has not been forthcoming about why initially they stated that there were reasons there were reasons why they might not have been on

[00:00:52] Speaker 01:
The MCRD server which is the server where most of those documents sure I think we are I think all familiar with the facts and the claims My question is is sort of taking one step back The defendant here is the Department of the Navy understood and the situation that you're describing is that

[00:01:14] Speaker 01:
One subunit doesn't produce the documents and then later another subunit of the same defendant does produce the documents so I don't understand entirely how it is that

[00:01:29] Speaker 01:
It matters in any way that the first subunit, it's sort of like in a corporation if there are several different departments and one doesn't give you what you need and you call up the next one and you get what you need, the entity has complied with your request.

[00:01:47] Speaker 01:
So why does it matter?

[00:01:50] Speaker 00:
So if this litigation were only about those five missing emails, I would agree with your honor.

[00:01:56] Speaker 00:
But the question is, the implication in the fact that those five emails go missing from one server.

[00:02:02] Speaker 00:
Remember, we only have those emails because Colonel Spencer happened to be a CCW.

[00:02:07] Speaker 01:
Is there other than pure speculation that there is more out there that has not appeared?

[00:02:17] Speaker 00:
The answer to that question is a sequence of events.

[00:02:21] Speaker 00:
You have five emails with five people cc'd on them, four of whom apparently, which are all closely connected in the MCRD, all happen to delete those emails.

[00:02:32] Speaker 00:
And we know now that they were deleted, right?

[00:02:35] Speaker 00:
The only question is sort of when.

[00:02:37] Speaker 00:
So we know that there's four people within the MCRD who deleted

[00:02:42] Speaker 00:
these emails that they happen to be cc'd on.

[00:02:44] Speaker 01:
You're presuming they did it in bad faith, but, I mean, I delete emails by the dozen every day.

[00:02:50] Speaker 00:
Sure.

[00:02:50] Speaker 01:
Just because it crowds up my inbox, but, you know, I don't know that that demonstrates anything except my desire for a tidy inbox.

[00:03:01] Speaker 00:
Well, so the, again, the, that's the explanation the Navy gave, right, that they routinely delete emails.

[00:03:09] Speaker 00:
And it may be that some of those individuals had deleted them from their inbox, and the Navy's declaration says that they were either deleted or archived.

[00:03:18] Speaker 00:
But of course, if we delete an email, that email doesn't totally disappear.

[00:03:23] Speaker 00:
It goes into a deleted email box.

[00:03:24] Speaker 01:
I understand that, but I'm still struggling here for anything other than speculation.

[00:03:30] Speaker 01:
about either bad faith or any of the things that you're claiming here.

[00:03:36] Speaker 01:
It seems to me that it's all supposition.

[00:03:42] Speaker 01:
And I guess in that vein, I know that you've asked for discovery.

[00:03:48] Speaker 01:
It's been a long time.

[00:03:50] Speaker 01:
What do you anticipate you could possibly learn in discovery at this time that would assist you in understanding anything or assist the court in making a determination?

[00:04:02] Speaker 00:
So let me answer those questions sort of back to back.

[00:04:04] Speaker 00:
I don't think it's pure speculation.

[00:04:06] Speaker 00:
We have, for example, Colonel Spencer who says,

[00:04:09] Speaker 00:
I've worked with these folks for more than a year, and I know they had emails amongst themselves that I was not CC'd on.

[00:04:17] Speaker 00:
Of course, the only reason we have the emails is because he was CC'd on a few of them.

[00:04:23] Speaker 00:
But he says, my knowledge of the way they work, the workings is, those emails, they would have had other emails amongst themselves.

[00:04:30] Speaker 00:
And they weren't produced here, right?

[00:04:32] Speaker 00:
I mean, we have some that are produced.

[00:04:34] Speaker 00:
But the implication, and then if the Navy had come forth with declarations from these individuals that said, yes, we had a policy that every five weeks we deleted, I abided by those policies and gave an explanation.

[00:04:47] Speaker 01:
There's the burden of proof in demonstrating bad faith.

[00:04:51] Speaker 00:
Well, I think when they provide an explanation for why there's missing, we know there's missing documents from part of the production.

[00:04:58] Speaker 00:
And I think in a case where we know there's missing documents from part of the production, and the Navy takes the step to provide an explanation.

[00:05:06] Speaker 00:
This is what the district court said in the first round of order, right?

[00:05:09] Speaker 00:
That they took a step to say, there's reasons why these weren't produced in the initial production.

[00:05:14] Speaker 00:
And the district court says, wait a minute, that's not enough.

[00:05:17] Speaker 00:
Why?

[00:05:18] Speaker 00:
And so then they come back and say, well, there's four reasons.

[00:05:21] Speaker 00:
Again, they're hiding behind a little bit because of those four reasons, only one actually exists.

[00:05:26] Speaker 01:
They may not know for sure.

[00:05:27] Speaker 01:
They may not know for sure.

[00:05:28] Speaker 01:
But I guess what I'm trying to, I'd appreciate your going to the second question about discovery.

[00:05:33] Speaker 00:
Sure.

[00:05:34] Speaker 01:
What could be potentially uncovered, in your opinion, that would be relevant?

[00:05:38] Speaker 00:
Well, so there's open questions, for example.

[00:05:42] Speaker 00:
They claim that there's a policy of routinely

[00:05:46] Speaker 00:
deleting emails.

[00:05:47] Speaker 00:
The question is how routinely did they delete emails at that time?

[00:05:50] Speaker 00:
What happened to those emails when they were deleted?

[00:05:52] Speaker 00:
Did they go to the deleted email box?

[00:05:53] Speaker 00:
How long was the deleted email box stored?

[00:05:55] Speaker 03:
Does this discovery go to finding additional responsive documents or only to showing bad faith?

[00:06:03] Speaker 00:
I think it goes to both, Your Honor.

[00:06:05] Speaker 00:
It goes to the question of whether the Navy has in fact produced all of the documents that would have been responsive, or whether some within the Navy were actually destroyed in response to Colonel Bukowicz's FOIA request.

[00:06:20] Speaker 00:
Because remember, if they were destroyed, that's a sort of permanent withholding of those documents.

[00:06:26] Speaker 01:
But there is a declaration under oath that there were no documents destroyed or deleted in order to evade the FOIA request.

[00:06:37] Speaker 00:
So there's a declaration from Colonel Lee saying that he did not do so and was not aware of any instruction from General Bierman to not do so, to delete documents, right?

[00:06:48] Speaker 00:
So therefore, when the production is sort of gathered together,

[00:06:52] Speaker 00:
He says there wasn't any instruction to remove some of those emails.

[00:06:55] Speaker 00:
But what we don't know is, of course, Colonel Lee is only one of many respondents on that.

[00:07:01] Speaker 00:
He's not the only one with access to those emails.

[00:07:04] Speaker 00:
We don't know why

[00:07:06] Speaker 00:
they are missing from the production and we don't know how they ended up missing because the only thing the Navy says is first they say reasons and then they say well there's a routine a policy to routinely delete we don't know how routinely we don't know why they would be missing from the sent folder for example right even if you deleted the emails that you received

[00:07:25] Speaker 00:
If you're corresponding back and forth between individuals, there should be... I delete from my sent file, too.

[00:07:32] Speaker 00:
I mean, it doesn't mean... Again, I'm not sure what it proves.

[00:07:35] Speaker 00:
Well, and if they had... If there was a declaration here that said, our policy in 2015 was to not only every four weeks to delete these emails, delete them from your trash, delete them from your sent folder,

[00:07:50] Speaker 00:
And therefore when the production when the FOIA request was made only five weeks after the initial the Colonel Bokovits received that initial production.

[00:08:02] Speaker 00:
I'm sorry, received the emails, was CC'd on those emails, that they would have been deleted in that short of time frame, that that was the policy, and that each of the individuals on these emails did in fact comply with that policy.

[00:08:17] Speaker 01:
Eventually got those, so I guess I'm not sure again.

[00:08:20] Speaker 00:
But again, the implication is, the question is why would only those four be missing and not others?

[00:08:26] Speaker 02:
I'm going to shift gears just a little bit.

[00:08:29] Speaker 02:
If we disagree with you and do not find on this record any basis to think that there is cause for an order of production of any additional documents, is there any other remedies available to you?

[00:08:42] Speaker 00:
Well, I think that there is, the remedies available under FOIA are, if there were destruction of documents, if there's, and I don't know whether you're saying, because in one sense, there could be an order that says,

[00:08:56] Speaker 00:
were many years later.

[00:08:57] Speaker 02:
I mean, I'll clarify.

[00:08:59] Speaker 02:
If we conclude that you were given what you asked for, and there is not a showing that other responsive information was deleted or somehow withheld from you, if we make that conclusion, what remedy is there?

[00:09:11] Speaker 00:
I think that you're right.

[00:09:12] Speaker 00:
If the conclusion is that there's been no violation of FOIA, that it's been conclusively proven as a matter of law, because this is, as a matter of fact, a pre-discovery summary judgment hearing.

[00:09:25] Speaker 00:
And while there is a presumption of good faith that the declaration stated are in good faith, you still have to look at what those declarations say and say, do they remove a material dispute of fact?

[00:09:37] Speaker 02:
So I want to come back to the answer.

[00:09:38] Speaker 00:
You're conceding.

[00:09:39] Speaker 02:
If we make that finding, if we make that conclusion, there are no remedies.

[00:09:44] Speaker 00:
You know, we're entitled to attorney's fees if we prove, if we're prevailing party in the litigation.

[00:09:51] Speaker 00:
There's also the referral to special counsel if there is a showing of arbitrary and capricious.

[00:09:57] Speaker 00:
And then the, obviously we think that there is, that the burden, that the Navy has not met their burden.

[00:10:04] Speaker 00:
On summary judgment, if you look at the declarations, again, I understand that those declarations are entitled to a presumption of good faith, but you still have to look at what those declarations say and say, do they remove any material dispute of fact as to whether or not some documents were destroyed in response to this FOIA declaration?

[00:10:27] Speaker 00:
And I submit that those declarations don't go that far.

[00:10:30] Speaker 00:
They're vague.

[00:10:31] Speaker 00:
They leave open questions.

[00:10:32] Speaker 02:
What production did you receive?

[00:10:34] Speaker 00:
I think there was initially 160-something, and then there was 300 later of responsive declarations.

[00:10:42] Speaker 00:
Roughly 500, or maybe just under 500.

[00:10:43] Speaker 00:
Somewhere in that realm.

[00:10:44] Speaker 02:
Those documents, was there any indication that there were other things that were related to what you asked for that you hadn't received?

[00:10:52] Speaker 00:
Well, I mean, we have the declaration from Spencer.

[00:10:54] Speaker 02:
I'm asking about the declarations.

[00:10:55] Speaker 02:
I'm asking about the documents themselves that you got.

[00:10:58] Speaker 02:
Is there anything in those documents that gives any indication that there were other things that should have been produced that were not?

[00:11:04] Speaker 00:
Not that I'm aware of, Your Honor.

[00:11:06] Speaker 01:
So I think that, again, I'll reserve the... I do want to be sure I understand your response to what I think was perhaps a garbled legal question on my part.

[00:11:18] Speaker 01:
If one sub-entity destroyed a record within the Department of the Navy, let's assume they did, and another sub-entity then produces that document, has the defendant, the Navy, destroyed a record or simply produced it

[00:11:36] Speaker 00:
I'm sorry, maybe I misunderstood your question, too.

[00:11:40] Speaker 00:
I do think in those circumstances, there would be room for a finding that there's been a destruction of the documents.

[00:11:46] Speaker 00:
And I understand that it was produced from another source, but you still have a party within the Navy

[00:11:53] Speaker 00:
destroying documents that were responsive to... Those documents were also responsive.

[00:11:58] Speaker 00:
Those stored on MCRD servers were also responsive to the FOIA request.

[00:12:04] Speaker 00:
So the fact that we received an email that was sent to Colonel Spencer does not mean we received the email that was sent somewhere on the MCRD server.

[00:12:14] Speaker 02:
So if those were destroyed... Even if that was true, how would you have a FOIA harm?

[00:12:19] Speaker 02:
Because what you're entitled to under FOIA is getting the documents and you got them.

[00:12:23] Speaker 00:
Well, there's two things.

[00:12:24] Speaker 00:
I mean, we're entitled to the documents.

[00:12:27] Speaker 00:
We think there's also an inference that there were more, obviously, because it's very rare that you would just delete these four and no other ones that would be responsive, right?

[00:12:35] Speaker 00:
Why would only these four have been deleted?

[00:12:38] Speaker 00:
And not and not others would be a question I would want the Navy to answer something we would probe in discovery right.

[00:12:45] Speaker 00:
But if I think a FOIA harm is the government's willful destruction of documents that were in response to that were.

[00:12:53] Speaker 00:
responsive to the FOIA request.

[00:12:56] Speaker 00:
That would itself be a FOIA harm, that their obligation is to produce all documents not to destroy them.

[00:13:01] Speaker 00:
But who's the they?

[00:13:01] Speaker 01:
That's the point, I guess, that is concerning me, because if you have, let's say, 400,000 employees and you've got one bad apple who did something wrong and then it's fixed,

[00:13:13] Speaker 01:
The entity hasn't done you wrong, and I guess I'm having some difficulty with your argument that that is a recognized statutory harm.

[00:13:27] Speaker 00:
Well, I think that it would still be a recognized statutory harm in the sense we're entitled to all documents that were responsive.

[00:13:34] Speaker 00:
The documents on that MCRD server are themselves a separate document from the ones that are stored on the MCCS server and therefore

[00:13:42] Speaker 01:
So you're saying if you store one document identically on five different places, you get five copies?

[00:13:53] Speaker 00:
Well, but they're not just stored on different.

[00:13:55] Speaker 01:
Remember, they're sent to different... Hey, answer my question.

[00:13:57] Speaker 01:
If it's the identical document available from

[00:14:01] Speaker 01:
you know, areas A, B, C, D, and E of the entity, it's your position that if you get only four out of the five, that's a FOIA problem?

[00:14:10] Speaker 00:
Not quite.

[00:14:10] Speaker 00:
If the same document were scanned and then saved as a backup on, say, two different drives, right?

[00:14:16] Speaker 00:
I don't think you'd have to produce them from both of those drives.

[00:14:20] Speaker 00:
But when a document is sent to four different individuals, it's relevant that those four individuals kept or didn't keep

[00:14:26] Speaker 00:
their documents, because part of the FOIA request is to make sure we're receiving all of the documents that would implicate or not implicate the general and others in this scheme to sell coins.

[00:14:38] Speaker 00:
And part of the relevance of that is whether they destroyed the documents in response to a FOIA request.

[00:14:43] Speaker 00:
That fact itself is relevant to determining whether or not this scheme is both participated in and whether it's illicit and all of that.

[00:14:52] Speaker 00:
But that's all part of the FOIA request.

[00:14:54] Speaker 00:
to receive the documents in good faith from each of the individuals to whom they were sent.

[00:15:00] Speaker 00:
It's not just that there's a copy of the document on a different server, it's that that document itself resides on a different server, so they're two separate documents.

[00:15:10] Speaker 03:
You're over time, but we'll give you a minute for rebuttal.

[00:15:13] Speaker 00:
Thank you, Your Honor.

[00:15:20] Speaker 04:
Good morning.

[00:15:22] Speaker 04:
Janet Cabral on behalf of the Department of the Navy.

[00:15:28] Speaker 04:
The Freedom of Information Act vests jurisdiction in federal courts to enjoin the improper withholding of documents and to order the production of improperly withheld documents.

[00:15:41] Speaker 04:
And what the plaintiff seeks here

[00:15:45] Speaker 04:
is discovery.

[00:15:47] Speaker 04:
What plaintiff seeks here is to find out why he didn't get five documents sooner.

[00:15:58] Speaker 01:
And he appears also to be seeking the potential existence of additional unproduced documents, but I understand that to mean more than one of the same thing if it went to different people rather than unique information.

[00:16:23] Speaker 04:
There's no law that has been cited.

[00:16:26] Speaker 04:
for the proposition that a requester is entitled to receive the exact same document from multiple components within the same agency.

[00:16:36] Speaker 04:
And that's what the plaintiff is asking for here.

[00:16:41] Speaker 04:
He received 319 pages consisting of somewhere around 390 separate responsive emails.

[00:16:53] Speaker 04:
And so when the district court looked at

[00:16:56] Speaker 04:
All of all of what was in front of him because the question posed and the way Mr. Bockevitz posed this question to district court is was there an adequate search done.

[00:17:08] Speaker 04:
When the question is.

[00:17:09] Speaker 04:
The adequacy of the search.

[00:17:14] Speaker 04:
It is not.

[00:17:16] Speaker 04:
The inquiry was every single document produced.

[00:17:20] Speaker 04:
The inquiry is not, was there perhaps one document that evaded?

[00:17:23] Speaker 04:
The question is, did the agency search in all the locations where documents would reasonably be expected to be found?

[00:17:34] Speaker 04:
And the good faith declaration submitted by the Department of the Navy, by Ms.

[00:17:40] Speaker 04:
Camacho, by Colonel Lee demonstrated

[00:17:45] Speaker 04:
that the Navy in fact searched all locations where responsive documents would be expected to be found.

[00:17:53] Speaker 04:
And I would note, there's a bunch of cases that are cited for the proposition that withholding of documents can create an additional FOIA issue.

[00:18:06] Speaker 04:
The request in this case was extraordinarily narrow.

[00:18:10] Speaker 04:
Mr. Bukowicz sought emails from five specific email accounts

[00:18:15] Speaker 04:
for a specific time period and on a specific issue.

[00:18:21] Speaker 04:
And the court has in the record the searches that were done, the specific searches that were done first by the MCRD IT component, then going back and searching the PST files when Mr. Bukovitz raised these questions about whether everything had been produced, and then

[00:18:43] Speaker 04:
On down the road in 2019, when Mr. Buckebes filed his first lawsuit challenging the adequacy of this search, a statement from the Mr. Rosenbaum at the Marine Corps Cyber, I'm going to call it MACOG because I don't remember what the acronym means, who did another search in 2019.

[00:19:06] Speaker 04:
Mr. Bukowicz has never pointed to another location that should have been searched, other search terms that should have been used.

[00:19:15] Speaker 04:
There's a suggestion today about deleted emails.

[00:19:18] Speaker 04:
There's never been a request by Mr. Bukowicz to do any additional search.

[00:19:23] Speaker 04:
So then the question is, and the question that this court asked was,

[00:19:27] Speaker 04:
you know, is this case moot?

[00:19:30] Speaker 04:
And we would submit that Mr. Bukowicz, because he failed to satisfy his burden of demonstrating bad faith on the part of the Navy in submitting its declarations, and because he failed in his Rule 56D motion to come forward and set out any facts that he hoped to learn from discovery

[00:19:56] Speaker 04:
and that there was anywhere those facts could be found, there's no place that he has identified where any additional documents could be found.

[00:20:06] Speaker 04:
Because he failed on those burdens, the district court did not abuse its discretion, acted well within its discretion in denying his Rule 50-60 motion to conduct discovery, and then

[00:20:19] Speaker 04:
finding that the Department of the Navy had satisfied its burden of demonstrating that it conducted an adequate search.

[00:20:27] Speaker 03:
What would, Mr. Bukovic, what would he have to show to make it plausible or to require the court to go forward on?

[00:20:40] Speaker 03:
There may be other documents that were destroyed and never produced.

[00:20:45] Speaker 03:
He references Mr. Spencer's

[00:20:49] Speaker 03:
statement that there should have been more emails between the conspirators.

[00:20:54] Speaker 03:
Is that enough or what else would he have to do?

[00:20:58] Speaker 04:
He would have to demonstrate some actual fact and I want to address the supposed declaration from Spencer, Mr. Spencer.

[00:21:09] Speaker 04:
That declaration, it's at ER 113 and what Mr. Spencer says is that he reviewed the five emails.

[00:21:18] Speaker 04:
the five quote unquote missing emails.

[00:21:21] Speaker 04:
And then what he says is that his experience with these four people inspire his belief that there were coin or coin email conversations among those four persons that did not include me as an addressee.

[00:21:34] Speaker 04:
And that's wholly consistent with the fact that the Navy produced 390 some emails about coins

[00:21:42] Speaker 04:
by and between these individuals.

[00:21:44] Speaker 04:
So Mr. Spencer doesn't say, in addition to these, I recall being caught.

[00:21:52] Speaker 01:
There were 700 of them, not 300.

[00:21:54] Speaker 04:
There were 700 of them, or having some suggestion.

[00:22:00] Speaker 04:
And I go back to a case like Chambers.

[00:22:04] Speaker 04:
So in the Chambers case that the plaintiff relies on,

[00:22:08] Speaker 04:
there had been testimony that the disputed document was a job performance evaluation.

[00:22:16] Speaker 04:
And during the administrative proceeding, there was deposition testimony as part of the sort of Privacy Act, part of the case, that this job performance evaluation in fact existed.

[00:22:33] Speaker 04:
and had been filed by the assistant in three separate locations.

[00:22:37] Speaker 04:
It was in a file cabinet, and it was on a hard drive, and it was on a floppy disk.

[00:22:42] Speaker 04:
And there was no evidence that any of those locations had ever been searched.

[00:22:47] Speaker 04:
So that would be the sort of evidence.

[00:22:49] Speaker 04:
There has to be some sort of, frankly, what we have is Mr. Bukovic saying, I don't think they sent me everything.

[00:22:58] Speaker 04:
And that is in line with what this court,

[00:23:03] Speaker 04:
looked at in layer and said, there has to be something beyond mere speculation.

[00:23:10] Speaker 04:
And Mr. Bokovits has never come forward with anything other than his own belief that there must be more.

[00:23:21] Speaker 04:
Unless the court has any additional questions, the United States would submit.

[00:23:25] Speaker 04:
We'd ask that the court affirm the district court's grant of summary judgment.

[00:23:29] Speaker 03:
Good.

[00:23:29] Speaker 03:
Thank you.

[00:23:35] Speaker 03:
You have a minute for rebuttal.

[00:23:36] Speaker 00:
Thank you, Josh.

[00:23:38] Speaker 00:
Just a few things, and I think I said this in my opening, but a reminder that this is not just about the five documents, because the deletion of those five documents without explanation, without a sufficient explanation for why they're missing, and there's not one here, is the inference on motion for summary judgment is that there are more

[00:23:56] Speaker 00:
documents out there.

[00:23:57] Speaker 00:
Why would only those four go missing and not others?

[00:24:03] Speaker 00:
And again, they keep relying on their declarations without actually looking at the declarations.

[00:24:08] Speaker 00:
Yes, there's an inference that there's a presumption that those declarations are made in good faith, but you have to look at what those declarations say.

[00:24:17] Speaker 00:
There's no evidence, for example, that the five individuals actually routinely deleted their emails.

[00:24:23] Speaker 00:
There's some evidence that there was a policy of routinely,

[00:24:26] Speaker 00:
But there's no evidence of what routinely means.

[00:24:28] Speaker 00:
There's no evidence that those five individuals did, in fact, follow this policy.

[00:24:33] Speaker 01:
Well, they don't necessarily have to follow a policy.

[00:24:36] Speaker 01:
As I understand the Rosenbaum affidavit, he said there was no policy requiring that emails be kept for any period of time, in which case they could have deleted everything the day it arrived and not be violating any policy.

[00:24:50] Speaker 00:
Could have.

[00:24:50] Speaker 00:
And so that's there.

[00:24:52] Speaker 01:
Well, but you're saying you have to prove that you went by a policy.

[00:24:55] Speaker 01:
But if the policy is you can do what you want, then.

[00:24:59] Speaker 00:
I'm saying there should be an explanation for why four emails with the same five individuals would all go missing.

[00:25:07] Speaker 00:
There has to be some explanation for that.

[00:25:09] Speaker 00:
It's true.

[00:25:10] Speaker 00:
They might have willy-nilly deleted only those four emails.

[00:25:13] Speaker 00:
But that seems highly unlikely, particularly on a pre-discovery motion for summary judgment, where they have to show they've acted that they have met their FOIA obligations.

[00:25:24] Speaker 00:
That's the Navy's responsibility on a motion for summary judgment.

[00:25:27] Speaker 00:
They get presumptions.

[00:25:28] Speaker 00:
But their responsibility, their obligation is to show that they have complied with their FOIA obligations.

[00:25:34] Speaker 00:
If you look at the declarations, and the Rosenbaum Declaration, by the way, is almost entirely hearsay, and there's cases that say hearsay declarations are insufficient to meet the government's burden, too.

[00:25:46] Speaker 00:
So I recognize that I'm out of time.

[00:25:49] Speaker 00:
I would suggest that I would ask the court to reverse the trial court's order and at least add discovery, allow Colonel Bukowicz some discovery in this case.

[00:25:59] Speaker 00:
Thank you, Your Honor.

[00:26:00] Speaker 03:
Thank you.

[00:26:01] Speaker 03:
Thank you for your argument.

[00:26:02] Speaker 03:
The case of Bukowicz versus United States Department of the Navy is submitted and we're adjourned for this session.

[00:26:31] Speaker 03:
for this session.