[00:00:00] Speaker 04:
And the next case for argument is Maria Pomeris versus Department of Veterans Affairs.

[00:00:08] Speaker 01:
Good morning, justices.

[00:00:11] Speaker 01:
My name is Gary Aguirre.

[00:00:13] Speaker 01:
I represent the plaintiff.

[00:00:17] Speaker 01:
And I'd like to reserve five minutes to reply.

[00:00:22] Speaker 04:
OK, please watch the clock.

[00:00:24] Speaker 01:
Thank you.

[00:00:26] Speaker 01:
With the court's direction yesterday to focus on the exemptions, I will do exactly that.

[00:00:34] Speaker 01:
I'd like to begin with Exemption 7E, the government's contention that more than 2,000 pages of transcripts can be withheld in their entirety based upon the contention

[00:00:53] Speaker 01:
that disclosure of any page or word in those transcripts would reveal confidential government practices and techniques.

[00:01:03] Speaker 01:
There are, by my count, four flaws in that argument, three of which are initial hurdles to withhold anything

[00:01:12] Speaker 01:
I'd like to make the first point is one that we've made in our briefs.

[00:01:16] Speaker 01:
I'd like to, I think it came up a couple of times, and that is where all records are withheld under an exemption.

[00:01:25] Speaker 01:
There is a higher scrutiny by the courts, a higher standard.

[00:01:30] Speaker 01:
Now, I'd like to address the very threshold issue

[00:01:36] Speaker 01:
is have they even met the lowest bar?

[00:01:41] Speaker 01:
This is a very low bar.

[00:01:42] Speaker 01:
There's no question about it.

[00:01:43] Speaker 01:
But did they meet this low bar?

[00:01:46] Speaker 01:
And the low bar, according to the government, is the fact that there were nine words that were used by the court, which were, quote,

[00:02:05] Speaker 01:
This would disclose the sequence and manner of questioning and specific interview methods.

[00:02:13] Speaker 01:
That phrase could be used in relation to any government investigation.

[00:02:20] Speaker 01:
It doesn't even meet the standard of their own cases.

[00:02:24] Speaker 01:
In their own cases, and they picked them, they didn't pick any California cases, they picked four D.C.

[00:02:31] Speaker 01:
cases.

[00:02:32] Speaker 01:
And they all make this, I think, the same point in the facts, and it's demonstrated by the Allen case, where they said they must demonstrate logically how the release of the requested information might create a risk of circumvention of the law.

[00:02:52] Speaker 01:
You must be able to logically see that.

[00:02:55] Speaker 01:
You cannot see this in those nine words.

[00:02:58] Speaker 01:
I submit you cannot.

[00:03:00] Speaker 01:
In the examples that they gave, for example, one of the examples was a polygraph test, very specific, that if we turn over this polygraph test and his answers to the criminal defendant, other criminal defendants may be able to use that, because it'll disclose exactly how we go about doing it.

[00:03:19] Speaker 01:
I can see that.

[00:03:21] Speaker 01:
But what we're looking at here,

[00:03:23] Speaker 01:
is the occasion where there has been an investigation of a high government official because her husband appeared in front of her and because her husband's employer appeared in front of her and that

[00:03:44] Speaker 01:
You know, there may be some length there.

[00:03:47] Speaker 01:
But what is it in these 2,000 pages of transcript that are going to reveal the secrets of how that's done?

[00:03:54] Speaker 01:
Is that really a common thing that occurs?

[00:03:57] Speaker 03:
Have you found any statement from this court about exactly what has to be said, how much meets the bar, for showing that you have satisfied the law enforcement purposes, exemption number 70?

[00:04:09] Speaker 01:
Yes, ma'am.

[00:04:10] Speaker 01:
I think that the most recent case

[00:04:14] Speaker 01:
Well, the authority is Wien, the FBI, which we cited.

[00:04:19] Speaker 01:
A meaningful opportunity to contest in the district court an adequate foundation to review the soundness of the withholding.

[00:04:26] Speaker 01:
That's the standard.

[00:04:28] Speaker 03:
Now, last year... That's a more general standard.

[00:04:29] Speaker 03:
I'm asking more specifically for 7E.

[00:04:32] Speaker 03:
Has this court ever said...

[00:04:33] Speaker 03:
This is how much you have to say, government, in order to justify this exception.

[00:04:38] Speaker 01:
No, I haven't found that in the ninth in any decision by this court.

[00:04:42] Speaker 03:
OK, I haven't either.

[00:04:43] Speaker 03:
So the district, the DC circuit, has been more specific about this particular exemption and has said that the government must provide some explanation of what procedures are involved and how they would be disclosed.

[00:04:58] Speaker 03:
If that was the standard that we were to adopt, do you think it would be satisfied?

[00:05:03] Speaker 01:
I don't, Your Honor, because I do want to mention that in last year, the district court in Graham, the U.S.

[00:05:17] Speaker 01:
homeland, which is the Eastern District of California, did apply Wiener in exactly the Section 7E setting.

[00:05:26] Speaker 01:
Now, the standard

[00:05:31] Speaker 01:
I think if we reduce it down to boilerplate, if it's just boilerplate, first of all, no one is really under oath for boilerplate.

[00:05:43] Speaker 01:
If you look at the four decisions that they've cited interpreting D.C.

[00:05:47] Speaker 01:
cases, every one of them was very concrete.

[00:05:51] Speaker 01:
It was a polygraph test.

[00:05:53] Speaker 01:
Another was an example where the prison population had kind of come up with some methodology of avoiding taxes.

[00:06:03] Speaker 01:
And they conducted an investigation.

[00:06:06] Speaker 01:
And they said, well, if we disclose this, this will circulate around the prison population.

[00:06:12] Speaker 01:
There has to be some sort of judicial teeth, I think, some mechanism.

[00:06:18] Speaker 03:
But is your concern

[00:06:20] Speaker 03:
maybe even broader in that just interview techniques or just how you go about questioning in the context of an investigation isn't enough to warrant protection?

[00:06:29] Speaker 01:
Well, I might point out something else that's rather unique about this case.

[00:06:33] Speaker 03:
I need you to answer my question before you give further explanation.

[00:06:36] Speaker 03:
So my question is, do you think that just in this particular context, interview techniques, how you question somebody when you're conducting an investigation, is that not sufficient to warrant protection under the law enforcement?

[00:06:49] Speaker 03:
exemption that the government is claiming.

[00:06:53] Speaker 01:
I would put it this way.

[00:06:59] Speaker 01:
I find that so hard to conceive in a way that it could be applied in any concrete way that it's, I submit, meaningless.

[00:07:12] Speaker 01:
That the techniques are so broad that it doesn't have sufficient

[00:07:18] Speaker 01:
clarity or concreteness to serve for this particular exemption not to consume the law.

[00:07:29] Speaker 03:
There are cases that have specifically recognized that interview techniques can qualify for this exemption.

[00:07:35] Speaker 03:
Are you aware of any authority that has come out to the contrary and said this is making the argument that you're making.

[00:07:40] Speaker 03:
This is too generic as a category.

[00:07:42] Speaker 01:
In all of those cases where they're involving interview techniques, the ones I've read

[00:07:49] Speaker 01:
every one of them, I read a bunch of them, they all involve, including the four cases, they've cited very concrete facts, not just a boilerplate expression, that if you say, interview techniques, that's enough, we can accept it.

[00:08:06] Speaker 01:
Now, I think there's a really critical point that's inherent in this case.

[00:08:12] Speaker 01:
This is not a case.

[00:08:14] Speaker 01:
where the FOIA requester was seeking, for example, I'd like to know how you withheld certain records relating to my prosecution.

[00:08:28] Speaker 01:
This isn't a case where someone is asking about, I'd like to know about somebody else's or generally how you prosecute.

[00:08:34] Speaker 01:
This one was saying, we want to know about the beam you put on yourself.

[00:08:41] Speaker 01:
We want to know how you looked at the highest levels of your agency.

[00:08:47] Speaker 01:
That's what we want to know about.

[00:08:48] Speaker 01:
And keep in mind that that investigation was only prompted because a US senator requested it.

[00:08:56] Speaker 01:
Now, when you look at that question, that question of the propriety there, and you can see, well, we know from the facts that there was

[00:09:08] Speaker 01:
this issue going along, this issue with the conflict of interest.

[00:09:17] Speaker 01:
We know about that.

[00:09:19] Speaker 01:
But to what extent was that broader?

[00:09:23] Speaker 01:
To what extent do we know also

[00:09:27] Speaker 01:
that what came into that to Miss Bogue from her husband was the information about this public company.

[00:09:37] Speaker 01:
And we know that public company took an $800 million loss.

[00:09:41] Speaker 04:
Could I interrupt you?

[00:09:43] Speaker 04:
Because I have a pressing question on another exemption, and I'm afraid you're running out of time.

[00:09:48] Speaker 04:
You make an argument about Tucker's initial search and production of

[00:09:53] Speaker 04:
Chairman Bogues' emails and that she withheld responsive emails without a declaration or a VON index.

[00:10:01] Speaker 04:
But as I read the record, it sounded like the same FOIA request was reassigned to Jones and she redid the response to the request and came out with a declaration and a VON index.

[00:10:16] Speaker 04:
Why doesn't Jones redoing of that search request moot any

[00:10:22] Speaker 04:
claim argument you have about Tucker?

[00:10:26] Speaker 01:
Your Honor, I'm sorry, I didn't get the last word about what?

[00:10:29] Speaker 04:
Did it moot the claim you have about Tucker since the whole search request was redone by Jones?

[00:10:38] Speaker 01:
The Jones request, there is no Vaughn index for Tucker.

[00:10:45] Speaker 01:
There's no Vaughn index whatsoever for Tucker.

[00:10:48] Speaker 01:
And we have Jones coming up with 164 documents.

[00:10:55] Speaker 01:
And we have Tucker coming up with 493 documents.

[00:10:58] Speaker 01:
Now we have a discrepancy there.

[00:11:01] Speaker 01:
of more than 300 documents between the two of them, and there's no accounting for any of those documents.

[00:11:08] Speaker 01:
There is no VON index for them, and in relation to the supposed VON index... So you're just talking about the missing documents because you reference Exemption 6.

[00:11:22] Speaker 01:
uh... when we're talking about uh... we have three hundred over three hundred documents that are not on vine index that are nowhere described that are all related to uh... this investigation and uh... there is uh... no

[00:11:44] Speaker 01:
Absolutely no disclosure of any of the contents or information in those documents.

[00:11:49] Speaker 01:
They're just 300 unknown documents.

[00:11:52] Speaker 01:
Your argument, do you want to save some time for rebuttal?

[00:11:55] Speaker 01:
Yes, I do.

[00:11:55] Speaker 01:
Thank you, Your Honor.

[00:12:13] Speaker 00:
May it please the court, Betsy Votel on behalf of the VA.

[00:12:17] Speaker 00:
I just want to step back before getting to the exemptions and note that this case reflects an enormous good faith effort by multiple VA components, roughly a dozen FOIA analysts, all of them disinterested civil servants, across two presidential administrations, thousands of pages searched,

[00:12:36] Speaker 00:
processed, released, exemptions reconsidered, searches re-performed from scratch, and multiple, numerous redactions removed at plaintiff's request, all in an effort to get Ms.

[00:12:48] Speaker 00:
Pimara's exactly what she asked for in November and December of 2020.

[00:12:53] Speaker 03:
Can we pick up on where Judge Akuta left off with your friend across the aisle?

[00:12:58] Speaker 03:
My understanding of the record is that the search that Tucker did, and then the subsequent search that Jones did, did not entirely overlap, meaning that there were some things in the Tucker documents that didn't show up in Jones and vice versa.

[00:13:11] Speaker 03:
Am I correct about that?

[00:13:13] Speaker 00:
That's not our understanding, Your Honor.

[00:13:15] Speaker 00:
The Tucker search initially, when she performed the electronic searches, term searches,

[00:13:22] Speaker 00:
came up with somewhere in the realm of, I think it's about 465 documents.

[00:13:26] Speaker 00:
Initially, in December of 2020, Tucker alerted plaintiff's council to the fact that a lot of these documents were not actually responsive to her specific criteria and needed to be excluded for various reasons.

[00:13:38] Speaker 00:
When Tucker actually issued that production, instead of simply excluding non-responsive pages, they were marked as non-responsive with just a slip sheet.

[00:13:47] Speaker 00:
So I believe that is, you know, the 300 some odd pages that plaintiff's council is talking about.

[00:13:51] Speaker 03:
So all those pages from the Tucker search were in the universe of things that Jones found in her search.

[00:14:00] Speaker 00:
That is our understanding, yes.

[00:14:01] Speaker 00:
And that is why that the search, because of the unusual way that that search was processed and released, it was released before any VON indexes were issued.

[00:14:10] Speaker 00:
And it was reprocessed before any VON indexes were issued.

[00:14:12] Speaker 00:
So the agency looked at these searches for the top officials at the Veterans Benefits Administration, the VBA.

[00:14:21] Speaker 00:
The Office of General Counsel looked at those, said, we're going to remand those.

[00:14:24] Speaker 00:
We're going to repost those from scratch.

[00:14:26] Speaker 00:
that includes the Tucker search, which was then handed over to Quinisha Jones.

[00:14:31] Speaker 00:
So Quinisha Jones' search of Ms.

[00:14:34] Speaker 00:
Bogue's mailbox is the one that the VA stands behind and the one that the Vaughn Index corresponds to.

[00:14:44] Speaker 00:
My friend on the other side also addressed exemption 7e with regard to the transcripts that are withheld in their entirety.

[00:14:53] Speaker 00:
As he states, that exemption constitutes a low bar for withholding of records.

[00:14:58] Speaker 00:
He quoted certain words from the district court's finding as to those records, but I think it's important that certain words were either not quoted in the opinion or were not quoted by my friend, which are

[00:15:10] Speaker 00:
the Vaughn Index description of those records by Ruth Gowans Bellamy, the relevant FOIA analyst.

[00:15:17] Speaker 00:
And what she said was that those records contained, quote, specific information about how VAOIG conducts official investigations, including sequence and manner of questioning and specific interview methods which are confidential.

[00:15:33] Speaker 00:
So I also want to point out to the court that

[00:15:38] Speaker 00:
I agree there's not a case that's on all fours with this one that we cite in our brief.

[00:15:43] Speaker 00:
We do refer to those DC Circuit cases, all of which held in effect to some or all of an extent that the sequence and manner of questioning is a protectable interest under FOIA Exemption 70.

[00:15:58] Speaker 00:
I do, however, want to point to this court's holding in Hamdan.

[00:16:01] Speaker 00:
which we also cite in our brief, which holds that under Exemption 7E, techniques and procedures are not required to show the special, to make, the agency in withholding a technique and procedure is not required to make the additional factual showing of the risk of circumvention of the law.

[00:16:20] Speaker 00:
That applies to guidelines, law enforcement guidelines that are also predictable under 7E.

[00:16:26] Speaker 00:
So in Hamdan, the court noted that this is a disjunctive

[00:16:29] Speaker 00:
a disjunctive provision.

[00:16:32] Speaker 00:
So some of the DC district court cases do hold the requester to that higher standard of a risk of circumvention of the law.

[00:16:39] Speaker 00:
We believe we meet that here, but the court in Hamdan, this court has said that that additional showing is not necessary, but the facts of that case don't necessarily align with this one as it pertains to the transcripts themselves.

[00:16:55] Speaker 03:
I don't think that appellant's argument that this looks like boilerplate is

[00:17:00] Speaker 03:
Irrational.

[00:17:01] Speaker 03:
I mean, it is pretty vague in terms of, you know, we're holding this because of order of questioning and our questioning techniques.

[00:17:08] Speaker 03:
I mean, there are definitely other cases that give you a little bit more specificity and understanding of why the government is concerned.

[00:17:13] Speaker 03:
And this one seems pretty generic.

[00:17:16] Speaker 03:
Is the government's response to that, don't worry about it because we have, you know, we have the rule about our affidavit is in good faith unless it's shown otherwise.

[00:17:26] Speaker 03:
And so we just, you should take what we're saying in good faith and leave it at that.

[00:17:30] Speaker 00:
I do think that is a portion of our response, because the agency affidavits, as is clear from this court's precedents, are entitled to a presumption of good faith.

[00:17:39] Speaker 00:
Now, I think this also gets into the question this court has addressed before, which is that a FOIA exemption, when assessing a FOIA exemption and documents withheld under a FOIA exemption, it should be entitled to deference or presumption of good faith as long as it appears logical or rational, and that sometimes a VON index is not going to be able to reveal

[00:18:00] Speaker 00:
particular details about what is being withheld without thwarting the purpose of the exemption to begin with.

[00:18:07] Speaker 03:
I mean, I guess that's what I'm, you know, FOIA gives us, the background that we're in is sort of this presumption of the public should know what the government's up to, right?

[00:18:16] Speaker 03:
And so we're in the situation of the government saying, you don't get to know about this thing that I'm up to, and I have to give you a reason for that.

[00:18:22] Speaker 03:
And so when the reason is, well, the way that we ask questions and the order that we ask them in and of itself is sensitive,

[00:18:29] Speaker 03:
I think that you can have context where that is arising that makes sense.

[00:18:33] Speaker 03:
I understand this, right?

[00:18:34] Speaker 03:
I think we have a case from another circuit related to terrorism issues, and so maybe you can kind of understand that.

[00:18:40] Speaker 03:
But just in a generic sense of every time the government wants to say, well, the order in which we ask questions during investigations, we're not giving you that because that's protected.

[00:18:52] Speaker 03:
But why should we take that at face value when the underlying policy here is

[00:18:57] Speaker 03:
The public ought to know what the government's up to.

[00:18:59] Speaker 00:
I agree that that's the underlying policy, but I think we're also bound by the text of the statute, and every court that has looked at this has said that the sequence and manner of questioning is a technique and procedure of law enforcement that comes within the ambit of Exemption 7E.

[00:19:25] Speaker 00:
Now, I know that one of the exemptions that I assume the court would like to hear about is Exemption 4, which is the exemption for private commercial and financial records, because that also represents a tranche of documents that were held in the entirety, the records from the outside vendor or party, Ivo Cotti.

[00:19:45] Speaker 00:
Exemption 4 exemplifies the notion that FOIA's policy is to reveal

[00:19:52] Speaker 00:
what the government is up to or how the agency is performing its statutory duties.

[00:19:57] Speaker 00:
But it is not necessarily meant to be a mechanism for private citizens to seek private commercial or financial information from outside parties that has been collected by the government in the course of a law enforcement investigation.

[00:20:09] Speaker 00:
I want to just emphasize, because I think maybe there is some confusion in the briefing here, the relevant pages for the Evocati records.

[00:20:18] Speaker 00:
There were 403 pages.

[00:20:20] Speaker 00:
They are mentioned in or referenced in the Vaughn Index of Ruth Lee Gowans Bellamy.

[00:20:27] Speaker 00:
And she incorporates by reference communications from Iwakoti's representatives that explain and itemize the documents and why Exemption 4 applies to them.

[00:20:38] Speaker 00:
I realize that plaintiffs' counsel disputes that this letter or these communications should have been considered.

[00:20:44] Speaker 02:
But Ruth Lee Gowans Bellamy essentially incorporated by them by reference and they are itemized in that submission from the... How else would you be able to determine whether trade secrets or other protective information should be protected if you don't hear from the third parties because the government has no personal knowledge?

[00:21:05] Speaker 00:
We think that's exactly right, Your Honor.

[00:21:07] Speaker 00:
So the agency's process here where it notified the private entities that it had these documents that were subject and potentially responsive to a FOIA request and asked those companies or individuals to represent whether they were held in privacy or confidential, we think that aligns with the law and how FOIA should work here.

[00:21:27] Speaker 00:
And we think that that's underscored by the Supreme Court's decision in the food marketing case.

[00:21:32] Speaker 04:
Can I ask about the redaction of specific names in some of the documents in the VES and Ivocati records and witnesses interviewed?

[00:21:47] Speaker 04:
I didn't see anything specific in the Vaughn index actually confirming that those were all low-level employees.

[00:21:56] Speaker 04:
Did I miss something that confirmed that all of the redacted names were low level employees or does that not make a difference in light of our case law and privacy interest?

[00:22:07] Speaker 00:
I don't think the case law requires that the agency establish that they are quote unquote low level employees.

[00:22:14] Speaker 00:
That is certainly a factor that can weigh into the analysis.

[00:22:17] Speaker 00:
I agree with your honor that the

[00:22:19] Speaker 00:
Quanisha Jones declaration and associated bond index provide more detail about exactly what positions the employees held that were redacted through the gallons Bellamy bond index and declaration provide a little bit less detail, but also explain that these employees were not involved in major policy making decisions.

[00:22:39] Speaker 00:
these employees have privacy interests and the revelation or unredaction of their names would not?

[00:22:47] Speaker 04:
There was at least a few emails, as opposing counsel points out.

[00:22:52] Speaker 04:
that were sent to lobby Congress on behalf of Director Bogue, which would, I guess, show conflict of interest.

[00:23:03] Speaker 04:
And those names were redacted.

[00:23:06] Speaker 04:
And there's at least some case law saying who's lobbying Congress is something where there's public interest.

[00:23:13] Speaker 04:
What do we do about those?

[00:23:15] Speaker 00:
I think it's true that that, so I agree with Your Honor, that interest is more than vindicated here because of the names that were unredacted.

[00:23:22] Speaker 00:
So I think it's undisputed that in those Veterans Education Success emails, numerous names have been left visible.

[00:23:29] Speaker 00:
That includes internal VA personnel at higher levels, such as Charmaine Bogue, such as her supervisors, and it also includes

[00:23:38] Speaker 00:
the sort of major players at this outside entity, Veterans Education Success.

[00:23:44] Speaker 00:
The president, the vice president, their names are visible and unredacted throughout the document.

[00:23:48] Speaker 00:
Where the agency drew the line is folks sort of below that level because they are outside third parties and because the fact that they are perhaps sending

[00:23:59] Speaker 00:
Congress, you know, a resume and a list of folks that they are recommending to the transition team doesn't shed light or have a specific nexus on the type of public interest that plaintiff is trying to vindicate here, which is the operations or activities of the federal government and specifically allegations of an insider trading scheme that there is simply no smoking gun for in the record.

[00:24:22] Speaker 00:
And I think this court has in the past held plaintiffs to that burden when it comes to the redactions of personal names.

[00:24:28] Speaker 00:
For example, in the Rojas case, which arguably that was, admittedly that was about personal email addresses as opposed to personal names.

[00:24:37] Speaker 00:
But the desire of a particular requester to simply explore various relationships or who a noted wrongdoer may have been communicating with or had connections with, that wasn't enough.

[00:24:48] Speaker 00:
to overcome that person's privacy interests.

[00:24:51] Speaker 00:
They had to essentially show a smoking gun.

[00:24:53] Speaker 00:
Like this is the email where we need, where the public needs to know what the agency was up to.

[00:24:58] Speaker 00:
And those boilerplate emails to Congress, we submit simply do not meet that standard.

[00:25:07] Speaker 00:
So I see that I'm running low on time here.

[00:25:09] Speaker 00:
I'll just conclude by asking if the court has any other questions.

[00:25:13] Speaker 00:
I don't, thank you.

[00:25:14] Speaker 04:
Apparently not.

[00:25:16] Speaker 00:
Thank you.

[00:25:16] Speaker 00:
We respectfully ask that the court affirm.

[00:25:22] Speaker 01:
I'm going to be brief on several points.

[00:25:25] Speaker 01:
First, on 7A, I mentioned one of the points.

[00:25:29] Speaker 01:
The second point, there's no dispute over.

[00:25:30] Speaker 01:
There has to be a showing that the information is not known in public.

[00:25:36] Speaker 01:
That is that this matter of investigation is not publicly known.

[00:25:42] Speaker 01:
There's no record whatsoever on that point.

[00:25:44] Speaker 04:
And specific interview methods, which are confidential, is in the Vaughn Index.

[00:25:50] Speaker 04:
Are you saying that the words which are confidential is not enough to establish they're not generally known to the public?

[00:25:56] Speaker 01:
No, Your Honor, the cases we've cited actually ask what evidence is there that this is unknown to the public.

[00:26:04] Speaker 01:
There's a couple more points I'd like to make.

[00:26:08] Speaker 01:
The next point is that they've raised the question, or we both raised the question, of segregating the documents.

[00:26:15] Speaker 01:
What is actually confidential and what is not confidential?

[00:26:18] Speaker 01:
They cited the case, the Hamill case, which we also cited.

[00:26:23] Speaker 01:
That's a case where this court reversed the trial court, sent it back, because the trial court had not made that finding.

[00:26:29] Speaker 04:
Was that raised to the district court, segregability?

[00:26:32] Speaker 04:
Pardon?

[00:26:32] Speaker 04:
Was segregability raised to the district court?

[00:26:36] Speaker 01:
In that case, I can't... Did you raise it?

[00:26:41] Speaker 01:
Did we raise it?

[00:26:42] Speaker 01:
Well, we raised it in the sense of they are withholding all documents, Your Honor.

[00:26:47] Speaker 01:
They should be with releasing some of them, okay?

[00:26:50] Speaker 01:
I don't think we use the word segregation, but that is inherent in the statute that

[00:26:56] Speaker 01:
that the court does look at and inquire, are these documents potentially segregated?

[00:27:05] Speaker 01:
Now, just by way of reference, we know that Ms.

[00:27:09] Speaker 01:
Bogues testified.

[00:27:12] Speaker 01:
Nothing of Ms.

[00:27:13] Speaker 01:
Bogues, not even her name has been revealed in terms of these records.

[00:27:16] Speaker 01:
with respect to segregation.

[00:27:20] Speaker 01:
One final point on the 7E is the witness.

[00:27:23] Speaker 01:
Typically, you have a witness actually knowing something about the techniques and investigation.

[00:27:27] Speaker 01:
This is just a FOIA official who had no qualifications.

[00:27:30] Speaker 01:
I need to move fast because I want to cover the other two points.

[00:27:34] Speaker 01:
On exemption six, Your Honor, you're absolutely correct.

[00:27:37] Speaker 01:
There is nothing in the record indicating

[00:27:40] Speaker 01:
The declaration we're looking at is the Bellum Declaration.

[00:27:45] Speaker 01:
That's the one that relates to everything except the Bogue records under 6C and 7.

[00:27:50] Speaker 01:
There is nothing in Bellamy's declaration whatsoever that indicates higher or lower employee, nothing, zero.

[00:27:59] Speaker 01:
There's no evidence anywhere in the record on that point.

[00:28:02] Speaker 01:
You don't even get to the other issues, that is, our weighing what has the plaintiff met its burden or the appellant met its burden or how you weigh it, because they didn't even get to that one.

[00:28:13] Speaker 01:
On the concept of what's the burden, the burden is, is there sufficient evidence that someone would suspect that there's been an impropriety?

[00:28:25] Speaker 01:
I've seen this come up in the context of an OIG investigation as well, and I'll cite the case.

[00:28:32] Speaker 01:
Aguirre v. SEC.

[00:28:34] Speaker 01:
That was a case in Washington, D.C.

[00:28:36] Speaker 01:
in 2006 where the threshold standard was met by a report, that case coming from the Senate, and they simply set aside with some limitations the issue of privacy with respect to selected individuals.

[00:28:56] Speaker 01:
And right here we have, I think, more than it satisfied that burden.

[00:29:02] Speaker 01:
Lastly, on 4E, excuse me, on Section 4.

[00:29:07] Speaker 01:
Certainly, you have to have evidence.

[00:29:09] Speaker 01:
And in the food marketing cases, that was a Supreme Court decision that we cited.

[00:29:14] Speaker 01:
In that case, they speak about the nature on the record, the Supreme Court discusses the record.

[00:29:18] Speaker 01:
And they talk about, yes, there was evidence, there was testimony from a third party that they maintained these records that were confidential.

[00:29:26] Speaker 01:
That was actually testimony given in court.

[00:29:28] Speaker 01:
Here what we have, if you could imagine a set of a declaration, a witness testifying.

[00:29:33] Speaker 01:
Suppose this case went to a trial.

[00:29:35] Speaker 01:
And there was a witness sitting on the stand.

[00:29:37] Speaker 04:
F up your overtime.

[00:29:38] Speaker 01:
Okay, just last one comment.

[00:29:40] Speaker 01:
The witness testified, was a lawyer.

[00:29:42] Speaker 01:
She testified for 15 minutes, not under oath, over objections.

[00:29:47] Speaker 01:
All of it comes in.

[00:29:49] Speaker 01:
And then another party, in this case, Mr. Bogue, takes the witness stand and says, everything she just said is true.

[00:29:57] Speaker 01:
That's the evidence that you have by way of the declaration that has been submitted by Mr. Bogue.

[00:30:02] Speaker 01:
Thank you, Your Honor.

[00:30:03] Speaker 04:
Okay.

[00:30:04] Speaker 04:
The case of Maria Pomaris versus Department of Veterans Affairs is submitted.