[00:00:00] Speaker 04:
Good morning, your honors. May it please the court. Brian Black on behalf of Honolulu Civil Beat. I would reserve three minutes for rebuttal.

[00:00:08] Speaker 02:
Just keep an eye on the clock, please. Yes, sir.

[00:00:13] Speaker 04:
Civil Beat made a FOIA request for two closed FBI investigations. Senator English and Representative Cullen have been released from prison for over two years.

[00:00:22] Speaker 04:
The FBI takes the extreme position that nothing from its internal files can be disclosed about those public prosecutions.

[00:00:31] Speaker 01:
Well, that's a little more than they did. They said there's some part of the files that won't be disclosed. That's what they said. And it's not a big part that is disclosed, but they didn't say that all wouldn't be. In fact, they disclosed some, right?

[00:00:48] Speaker 04:
And so that's the word internal files. The things that they disclosed were all court filings.

[00:00:54] Speaker 01:
Okay. But... What they did was they produced a bond index of what they were supposed to, of what they were producing and what they weren't producing, right?

[00:01:05] Speaker 04:
They produced something that they called a bond index.

[00:01:08] Speaker 01:
All right. I don't want to argue about that. There was an index. We call it a bond index, and you say it wasn't properly done. They produced two declarations in support of the application, right? That's correct, yes. The bond index was about 30 pages long.

[00:01:26] Speaker 01:
Yes. The Seidel Declaration was 70 pages? Yes. The Nohara Declaration was another five pages, right? Correct.

[00:01:37] Speaker 01:
Now, when I look at the Seidel Declaration, and I'm just trying to look at these to see whether this is appropriate or not, when I look at the Seidel documents, or Seidel Declaration, it categorizes documents, right? Yes.

[00:01:55] Speaker 04:
It identifies two categories for categorical withholding. One is evidentiary investigative materials, and the other is administrative materials for withholding.

[00:02:04] Speaker 01:
And it includes a table describing how the disclosure of the documents within those categories would be harmful, right?

[00:02:15] Speaker 04:
It identifies a standard litany of harm, such as tampering with evidence, fleeing the country, creating alibis, things like that, correct?

[00:02:23] Speaker 01:
Well, I don't want to go through each one, but I went through to see what they said. For example, they say information provided by interview subjects may reveal the identities of interview participants and or other provided information. I mean, they went through each one and said why they weren't producing it, right? That's correct.

[00:02:45] Speaker 01:
Then another table with a description about the types of documents, right?

[00:02:52] Speaker 04:
Such as emails, correspondence, 302s, operational documents.

[00:02:56] Speaker 01:
It says documents include FD302s that may be later used as testimony or evidence in court trials or proceedings.

[00:03:06] Speaker 01:
It says videos that are recorded images of surveillance activities.

[00:03:12] Speaker 01:
It says third party information that includes documents or information received from third parties. I mean, it went through to put that together.

[00:03:23] Speaker 01:
Now the reason I ask you that is I just, I'm leading up to this question.

[00:03:28] Speaker 01:
I looked at Shanahan versus the IRS.

[00:03:32] Speaker 01:
And in Shanahan, we said the government's factual showing was sufficient.

[00:03:39] Speaker 01:
Seems to me this is the same as what happened in Shanahan.

[00:03:45] Speaker 01:
Government prepared a bond index. They were arguing about whether it was a sufficient index.

[00:03:52] Speaker 01:
And the bond index is not required. They provide an explanation of how the documents were selected. They provided an explanation of the harm that would be caused by the released documents.

[00:04:05] Speaker 01:
And they provided an explanation for why the exempt documents could not be segregated. I'm only reading this because that's what they said.

[00:04:14] Speaker 01:
So this seems to be Shanahan too.

[00:04:17] Speaker 01:
Why should I do any different than we did in the first Shanahan?

[00:04:22] Speaker 04:
So Shanahan was different, Your Honor, because there were three rounds of summary judgment. The first round of summary judgment was the equivalent of what we have here. The district court in that case said the harms that were identified were too generic. And so then the court went through several other rounds of summary judgment, including production of records for in-camera review eventually at the end. And this court had a much more robust record that the court identified as being a meticulous development of the record, which we do not have here.

[00:04:58] Speaker 03:
Mr. Black, I guess maybe another potential sequel could be Lewis, too. So, Lewis, we have a footnote where we describe the affidavits. And I think I take your argument that you view the FBI as taking the position that...

[00:05:19] Speaker 03:
any ongoing investigations of public corruptions. So as a baseline, both Nohara and Seidel contain the recital that the FBI continues to investigate public corruption matters that are directly associated with the investigations into Mr. English and Mr. Cullen. So that's defining a scope and a basis. And then if I look to Lewis in terms of what the government gave us to work with there, it seems to contain a shorter recital of the details of the harms that would follow from disclosure into those ongoing investigations.

[00:05:59] Speaker 03:
than we have here. So why doesn't it get over Lewis?

[00:06:03] Speaker 04:
So Lewis, Your Honor, was the key to Lewis is understanding that the declaration of harm that the FBI submitted was not disputed. There was no dispute at all as to by Lewis as to the fact that revealing the information that he was requesting would provide information that he did not already have.

[00:06:31] Speaker 04:
And because that, the only thing that Lewis teaches is that when you have a set of records that are undisputedly exempt, you don't have to do a Vaughan index and you don't have to do in-camera review. That's what Lewis teaches.

[00:06:48] Speaker 03:
But what we have here and what even for seven, but do you disagree that a Vaughn index would be futile for a 7A exemption?

[00:06:56] Speaker 04:
I think a Vaughn Index is futile for any categorical withholding. And that's what we have here, and I think that's what needs to be distinguished, is that although, yes, they did all of this stuff in terms of the declarations in the Vaughn Index, what they're asserting is a categorical exemption.

[00:07:14] Speaker 03:
But as I understand, I guess there are different ways of viewing categorical is ambiguous, but as I understand, with respect to 7a at least, Categorical descriptions are have been permitted. I get there are three categories here. Maybe you'd like to see more, but the ones that are withheld are the investigative and the administrative ones. And then those are tied to the recital that there are continuing investigations directly associated with this.

[00:07:50] Speaker 03:
And if there's a continuing investigation, it strikes me that in general the courts have been pretty deferential to several categories of withholding under 7a.

[00:08:04] Speaker 04:
I think the one thing, several differences, I think there, Your Honor. I think one is that categorical is not an ambiguous concept. It's a term of art. And the Supreme Court has been clear that when you have a categorical withholding claim, that is, the standard there is that the Whatever the specified category is, it can be withheld always. So the example of that is a rap sheet under a reporter's committee. It doesn't matter what the facts are in every instance.

[00:08:37] Speaker 04:
It doesn't matter who the rap sheet's about. In every instance, a rap sheet is withheld under the privacy exemptions because the privacy interest is high, public interest is low, and when you balance it, it always comes to exemption.

[00:08:50] Speaker 04:
And when the court looked at categorical withholding under 7A in Robbins Tire, it expressly said that withholding records because they're investigatory would contradict Congress's intent when amended FOIA in 1974.

[00:09:06] Speaker 04:
Congress expressly rejected the concept that, in prior cases, that said that you could withhold records simply because they were investigatory.

[00:09:17] Speaker 04:
And that's because what they did was in 1974, they changed it from before 74, it was investigatory files. But then after 74, the focus is on records or information. It's not on just categorizing it as investigatory files.

[00:09:32] Speaker 03:
Right, but I guess if we take the Nohara and the Seidel, Nohara and Seidel together, Seidel has...

[00:09:42] Speaker 03:
I guess whether it's categorical or not may be disputed, but as Judge Smith pointed to, it's quite detailed in terms of the groups of different files and the reasons why those groups of files that, again, it says that are related to a directly associated ongoing investigation.

[00:10:06] Speaker 03:
Why isn't that detail enough?

[00:10:08] Speaker 04:
Because when you turn away from the categorical test, if you're going to look at it and you're going to look at the declarations, which look at things based on a fact-based withholding. So you're looking at it in terms of they say that they looked at it and they said it's good enough. They think it falls within the exemption. This court, there's several problems with that.

[00:10:30] Speaker 04:
I think this court has never simply deferred to an agency because they say that it's good enough. But also, the problem there is that they're applying two different standards. Once you start looking at facts, this court has always required more information from the agency as far as proving, showing their work. They have to show and connect the dots.

[00:10:58] Speaker 03:
I guess we've also expressed some concern that we can't require the agency to show something that kind of gives away the game. So what else would you like to see? What sorts of things do you think would be required in these declarations to support the exemption?

[00:11:15] Speaker 04:
So for example, just as one concrete example, and I think there are others that could be provided, there was a March 11 bribe that we know all about that bribe. We have detailed verbatim quotes from that bribe that is in the public record.

[00:11:37] Speaker 04:
None of that information was revealed at all. Those records, there are definitely FBI records in their internal files that would reflect the exact same facts that are all publicly known.

[00:11:48] Speaker 03:
And this court's decision in lion raisin makes... I guess, what do you mean by it in terms of what is the... So, for example, it could be an informant's account and you could see, well, the agency would have reasons to do that. It could be a transcript of a recording, but of course then the transcript might then have a date associated which could also provide information. So can you just be a little more specific about what do you think is underlying there that would that the government should be required to provide more information about?

[00:12:25] Speaker 04:
So we have, and it's not just information that would be required in a bond index. I think they have to disclose those records. If there's a transcript that has the exact verbatim quotes that are recited, in the plea agreements and in the sentencing memorandum, there is no reason that that information should be withheld. Whoever it is that is the target of some other investigation already has that information. And what this court said in Lion Raisin is that that's where the concern about interference comes from.

[00:12:58] Speaker 03:
So if the counterparty is a potential witness in one of these directly associated investigations, and I guess you don't dispute that there are directly associated investigations going on. We can at least defer to that point, that there is an ongoing investigation for purpose of the elements of the test.

[00:13:18] Speaker 04:
That's correct. And what we would say is that you can't categorically withhold. It is not always something that can be withheld simply because there is some investigation that's ongoing. And to have that type of categorical withholding would be completely inconsistent with the lion raisin. Because lion raisin, there was an active investigation. And the issue was whether or not the information was available to the target.

[00:13:43] Speaker 04:
And here we have information that was available to the target, has not been disclosed, regardless of whether there's an active investigation, not everything should have been withheld.

[00:13:52] Speaker 04:
And that's the key point. And I'd like to reserve the rest of my time.

[00:13:56] Speaker 02:
Thank you. We'll give you two minutes.

[00:14:20] Speaker 00:
Thank you. May it please the court.

[00:14:23] Speaker 00:
Turning with the first exemption, 7A.

[00:14:28] Speaker 00:
All the FBI has to do under clear, well-setted, settled Ninth Circuit law is demonstrate that the disclosure would interfere with enforcement proceedings that are pending or reasonably expected.

[00:14:43] Speaker 00:
And again, under Ninth Circuit law, categorical withholding under Exemption 7A is appropriate.

[00:14:52] Speaker 03:
So under Lion Raisins, it says, with as much factual support as possible, just to pick up where we left off with your friend, why would it not be more possible? It's clear that there are transactions that were charged here.

[00:15:06] Speaker 03:
that have some evidence in the internal files that is not present in the court filings.

[00:15:14] Speaker 03:
Why couldn't the agency provide more support for some of those categories of documents?

[00:15:22] Speaker 00:
Well, and as Your Honor's own question previously also pointed out is there's extensive case law that says the government is not required to give up its cards. It doesn't have to provide more facts, more dates, more information that would reveal the scope, the nature, the pace, the direction of the ongoing investigation. And that's what would happen here.

[00:15:46] Speaker 03:
I guess it's difficult because, you know, we have a closed case and there's SET OF CASES ABOUT THE CLOSED CASE PROBLEM, MUCH HARDER FOR THE GOVERNMENT TO WITHHOLD UNDER 7 .

[00:15:59] Speaker 03:
AND THEN WE HAVE KIND OF SEEMS LIKE IT WOULDN'T BE ENOUGH TO JUST SAY WE HAVE ONGOING PUBLIC CORRUPTION INVESTIGATIONS INTO THE HAWAIIAN STATE GOVERNMENT OR LEGISLATURE. SO I MEAN, YOU MAY DISAGREE, BUT It doesn't seem like our cases take us that far. So what we have here is a statement that there are ongoing investigations directly associated with these defendants.

[00:16:29] Speaker 03:
Is there more that the agency could say to give the court and the public something to work with under 7 ?

[00:16:39] Speaker 00:
No, and I don't think any more is required under 7A, Your Honor.

[00:16:44] Speaker 00:
The Ninth Circuit gives special or considerable deference to good faith declarations by people with knowledge. And we have two of those, people with knowledge. Somebody here local, Aaron Nohara, is on the ground. He's a special agent. Discussing how releasing any more information would be problematic.

[00:17:04] Speaker 02:
There are... Asserting that releasing any more information would be problematic, but I think the point of the question is not really explaining how that is, and in particular, how that can be true with respect to all of the many thousands of records here in an investigation about two people who were already convicted and one person who's now dead. And so...

[00:17:34] Speaker 02:
I guess just on the face of it, it's just sort of hard to understand how there's nothing in there that isn't just about those people and doesn't really have anything to do with the other person or persons who may be the target of the ongoing investigation. And I think the explanation of that is what I think is not present in either declaration. So how do we fill in that gap?

[00:17:58] Speaker 00:
And I think Mr. Seidel elaborates more on the breadth of in those two tables that were referenced in paragraphs 40 and 41 of his declaration, where he describes the types of forms, the memorandum, the handwritten notes, the source information, where there's information related to other witnesses.

[00:18:20] Speaker 03:
But I guess as your friend kind of pointed, I mean, so Mr. Seidel's in Washington, D.C., is kind of above, not a local person, not involved in this investigation. either the past one or the current one in terms of investigation.

[00:18:37] Speaker 00:
He's not the boots on the ground, correct? That would be Aaron O'Hara.

[00:18:41] Speaker 03:
It's just in looking at it, I take your friend's point that this looks a little boilerplate-like. I mean, yes, if...

[00:18:51] Speaker 03:
If it's true that if we accept the premise that there's an ongoing investigation that are directly associated with these defendants and that these documents relate to that ongoing investigation as opposed to the past investigation, sure. But as to every box on these charts, there's no particular detail in these charts that kind of close that loop.

[00:19:20] Speaker 00:
What other detail could be provided? I mean, if we're talking about names, witnesses, informants, locations, dates, that kind of information is exactly what would reveal the very information that the FBI is trying to protect.

[00:19:35] Speaker 03:
Let's take, for example, conversations that we can assume have been recorded somewhere in these notes or something that are between the key counterparties to the past investigation, where you have two people who are known to be convicted and sentenced and a counterparty who is deceased.

[00:19:58] Speaker 03:
Are there documents, fair to assume that there's probably documents, transcripts, other things that are recording those transactions?

[00:20:08] Speaker 00:
Well, if we look at the Vaughn Index, which is extensive, and compare that with the declarations, we can see what the recordings are and the basis for those withholdings. But we have, and just to clarify for the record, Milton Choi was a confidential informant. Civil Beat apparently has taken the position that he was the only confidential informant, which is based on pure speculation. We have Seidel's declaration that says there's more than one.

[00:20:40] Speaker 03:
That's why I asked you only about Mr. Choi and the defendants, the known defendants.

[00:20:46] Speaker 00:
So we have the declaration of Aaron Nohara, who said he reviewed the segregability determination, he reviewed the file, and he confirmed that the information contained resulting from their search in the FOIA request is so intertwined that it cannot be reasonably segregated.

[00:21:09] Speaker 02:
So is the answer. I mean, so I thought, well, I don't know whether this was the question. Here's my question. So if if somewhere in the files, there is a document that is just a record of a conversation among Mr. Colin, Mr. English and Mr. Troy.

[00:21:28] Speaker 02:
talking about a transaction that was the basis for one of the charges in this case.

[00:21:34] Speaker 02:
It's your view that release of that document, which doesn't say anything about any other confidential informant, doesn't involve anybody else, release of that document would interfere with the ongoing investigation?

[00:21:48] Speaker 00:
I don't think I can answer it that way for two reasons. One, I cannot confirm that that particular document exists, that there in fact exists something that is only between three people that doesn't involve anybody else, that no one else participated in, that doesn't release, that that phone call transcript, what have you, doesn't include anybody.

[00:22:13] Speaker 00:
or information related to something else.

[00:22:15] Speaker 03:
Let's call it a hypothetical then.

[00:22:17] Speaker 00:
Hypothetical, thank you. I cannot answer that hypothetical the way, because I don't know that that exists. I'm not the one.

[00:22:22] Speaker 02:
Now that it's hypothetical, you can't suppose it does exist.

[00:22:25] Speaker 00:
Okay.

[00:22:28] Speaker 00:
In that case, if there is zero information contained in that transcript that has nothing to do with anything of the ongoing investigation, I don't think that exists based on the two declarations we have in front of us.

[00:22:46] Speaker 02:
And where would I look in the declaration to confirm that no document like the one I just described exists?

[00:22:56] Speaker 00:
I THINK THAT IS A COMBINATION OF NOJARA'S DECLARATION AT PARAGRAPHS 10 THROUGH 14 AND MR. SEIDEL'S DECLARATION IN HIS WHERE HE DISCUSSES EACH OF THE CATEGORIES AND THEN HIS SEGREGABILITY CITATION IS PARAGRAPHS 128 THROUGH 129 OF HIS DECLARATION.

[00:23:23] Speaker 00:
355, I believe. And then I think also we can, if the court would like, we can go through the Vaughn Index and look at every single, if we want to move beyond the categorical withholding and look at the basis for every single document that's been identified has multiple reasons for for being withheld in whole, in part, or in part. And then when you pull out what could possibly be produced that's not redacted, if we go through line by line and redact all of the appropriately withheld information, all that's left would be meaningless.

[00:24:00] Speaker 00:
It would be and the nonsensical, which again, Seidel and Nohara have tested to is meaningless.

[00:24:12] Speaker 00:
when you look at the totality of the page.

[00:24:14] Speaker 02:
Could you address the D.C. Circuit's decision in Crew 1, the 2014 case?

[00:24:22] Speaker 02:
Because that seems to me to be fairly similar in that you had an investigation of somebody that was convicted and an investigation of Mr. DeLay.

[00:24:36] Speaker 02:
It was publicly announced that the investigation of him had been concluded, and the request is for records of that concluded investigation, and it's withheld on 7A because it might affect a future investigation. And the D.C. Circuit said, you know, essentially, maybe you can justify this under 7A, but you need to tell us something about why...

[00:24:58] Speaker 02:
The records from this closed investigation, why and how they're going to implicate the future one. And this sort of blanket assertion that they're all tied together isn't good enough. So why isn't this kind of like that?

[00:25:13] Speaker 00:
Peru is a really interesting case. It originated with the investigation into Jack Abramoff. And that led to, started with him, led to the 21 convictions or guilty pleas of others, two of whom were the top aides of Tom DeLay. So with the request for information and the last person standing, the senior most person in the investigation announced publicly that the investigation into him was closed.

[00:25:43] Speaker 00:
And the question of that the court considered there was, why did the FBI and the DOJ go after everybody but Tom DeLay?

[00:25:52] Speaker 00:
Did something nefarious happen? Was there dealings? What's going on that they prosecuted and convicted? Everyone but him. And when it got to the appellate court and the question was, well, you know, is the investigation ongoing? Is it closed? Because everybody's done and you have a letter saying everybody done. The DOJ attorney said, well, it is in fact closed. All we have left is this appeal. And that didn't satisfy 7A because it was in fact closed.

[00:26:22] Speaker 00:
That is not the case here. This could not be more different. We do not have a closed investigation. We have two declarations saying the investigation is ongoing. In anticipation of a question like this, I spoke with Agent Nohara recently.

[00:26:39] Speaker 00:
He confirmed that the investigation is ongoing. Nobody has been informed that the investigation is closed.

[00:26:47] Speaker 01:
Let me go a different way. This is close to where I am, but...

[00:26:52] Speaker 01:
In general, when I'm looking at these, I'm looking at the government withholding documents while we're investigating individuals who are subject to the document requests. So they would be those who are already being persecuted or whatever. In this particular situation, we're not after those kind. We're withholding documents about an investigation into third parties who are not the target of the document requests.

[00:27:24] Speaker 01:
So, to me, when I read the D.C. Circuit's Citizen versus Responsible Ethics in Washington versus U.S. Department of Justice, the D.C. Circuit said, hey, there's not as much reason to help the government in those situations with the third parties.

[00:27:50] Speaker 01:
And in fact, the DC Circuit ordered a remand because they were less inclined to infer harm to the government.

[00:28:01] Speaker 01:
Now, I said to myself, why is that not something I should do here. I think this case is not about third, second parties.

[00:28:14] Speaker 01:
This is not about the parties who are the subject of the investigation. This is about third parties.

[00:28:21] Speaker 01:
And it seems to me that the D.C. circuits kind of set out the way we ought to go.

[00:28:27] Speaker 00:
I think if we look back at the original FOIA request, they requested all documents and records that may have been gathered or produced between September 2014 and February 2022.

[00:28:43] Speaker 00:
All investigative reports and materials maintained by the FBI relating to criminal charges brought against Cullen or English.

[00:28:52] Speaker 00:
Anything related to the criminal investigation. And it happens that encompassed in that very broad request, any and all materials gathered or produced in a six-year time range have to do with other investigations. I think this is more like the Boyd case out of DC, where the D.C. Court of Appeals. In the Boyd case, an individual criminal defendant was convicted, his appeal was affirmed, and he thought he had a case against an informant and foiled those records.

[00:29:25] Speaker 00:
The D.C. Court of Appeals agreed with the Department of Justice and said, just because you're convicted, just because your case is over, doesn't mean we're not using that confidential informant for other cases that are ongoing. And that's the case here. Just because that one is done doesn't mean we aren't using investigative techniques, confidential informants, witnesses, sources.

[00:29:49] Speaker 02:
But wasn't that true in Crewe there? I mean, the district court there said that The investigation was still ongoing. There were people who hadn't been sentenced yet, and there were cases still going. And what the court said was, and I'm quoting here, that the relevant question is whether any of the responsive record, assuming some individuals remain under investigation, the relevant question is whether any of the responsive records, which are primarily about delay, would disclose anything relevant to the investigation of those individuals.

[00:30:24] Speaker 02:
And it seems like the same question can be asked here. No one's disputing that you have an ongoing investigation of some person or persons. This is a request for information about two people who are convicted and one person who's deceased. And some of it might have to do with those other people, but some of it might not.

[00:30:47] Speaker 00:
And I think the FBI took that guidance from Crewe and created this very extensive declaration based on that, that provided the specific roadmap, the tables and the descriptions, the lengthy, the 7A, the categorical withholding is described by Seidel in 7A.

[00:31:09] Speaker 00:
seven pages of information, that's just 7A, notwithstanding the other investigative components, 7D, which relates to confidential informants, 7E, which relates to investigative techniques that are not known that would interfere with the FBI's ability to conduct investigations into widespread public corruption.

[00:31:34] Speaker 02:
I mean, just to take one example of Mr. Seidel's categories on page 18, he says, information provided by interview subjects. And then we get a paragraph describing how interviews work and sort of what is in interviews, which I don't think anyone would question any of that, but it seems to beg the question, which is, you know, Are these interviews about anything that's relevant to the investigation that's still ongoing, or are the interviews just about something that's done?

[00:32:06] Speaker 02:
And that's something he doesn't say anything about.

[00:32:11] Speaker 00:
What Seidel and Nohara say in the span of the six pages of the 7a declaration is that these These categories of documents exist, and if they were revealed, they would impede the ongoing investigation because they would thwart it by revealing the scope, direction, pace of the investigation. They would alert witnesses. They would alert potential targets.

[00:32:41] Speaker 03:
I guess to focus on the key sentence here in both of the affidavits – The information evidence contained in the FBI's investigatory files could be used in the government's future prosecution of corruption by other public officials.

[00:32:57] Speaker 03:
Not likely, which sometimes we've seen is the test, not likely.

[00:33:05] Speaker 03:
There's lots of stuff that could be used that that doesn't necessarily answer the question that 7a Presents that that's the only thing other than general discussions of FBI investigative techniques and resulting materials and the types of general harms that might flow from those That either of these declarations have why is that enough?

[00:33:28] Speaker 00:
I think that is the Hamden case your honor and the LION REASONS CASES, BOTH THE 2004-2007 AND THE HAMPTON CASES, ALL OF THOSE NINTH CIRCUIT CASES SAY THAT WE CAN TAKE THE DECLARATIONS AT FACE VALUE ABSENT ANY CONTRARY EVIDENCE IN THE RECORD. WE DO NOT HAVE ANY CONTRARY EVIDENCE IN THE RECORD.

[00:33:53] Speaker 03:
NEW SPEAKER PEDROZA DO YOU AGREE WITH YOUR FRIEND'S READING OF LEWIS IN TERMS OF THE AFFIDAVIT?

[00:33:59] Speaker 03:
The affidavit there seems to be a little less than what we have here, but it is quite a hard case to read to try to figure out what exactly we found was sufficient and what the case was about. What should we do with Lewis?

[00:34:13] Speaker 00:
I think Lewis stands for the proposition that categorical withholding is appropriate when you have sufficient information. And I think we have that here.

[00:34:20] Speaker 03:
Is it a holding that that is sufficient information, or do you agree that that wasn't actually at issue because the sufficiency of the affidavit was not in dispute?

[00:34:27] Speaker 00:
I do think that the sufficiency of the affidavit was in dispute. I think in that case, there was...

[00:34:34] Speaker 00:
A combination, I think at one point there were three affidavits but no Vaughn Index, and there was a dispute as to whether there was enough information gleaned from that combination of what was provided. I think there the district court and then the appellate court agreed that it's function over form. You can have three declarations. You can have two declarations and a Vaughn Index. What matters is the information that's presented. And there it was decided that the Vaughn Index was unnecessary because of the categorical withholding.

[00:35:06] Speaker 00:
Because 7A categorically protected the ongoing investigation, a Vaughn Index wasn't necessary. I think that's our position here too, but just in case the court didn't agree with the 7A categorical withholding, the FBI went ahead and briefed everything else so that every single exemption was identified and explained in sufficient detail, warranting substantial or considerable special deference that's awarded to the declarants by the Ninth Circuit Court of Appeals.

[00:35:44] Speaker 00:
I see I'm substantially over time. I thank the court and ask the court to affirm.

[00:35:49] Speaker 02:
Thank you. We've been talking about the D.C. Circuit a lot, so we're doing a D.C. Circuit-style time-limited enforcement this morning.

[00:35:59] Speaker 02:
Mr. Black, rebuttal?

[00:36:04] Speaker 04:
Just a few issues, Your Honors.

[00:36:08] Speaker 04:
The counsel discussed there was a broad request. If the FBI interpreted it as a broad request, they still need to produce what's not exempt. And that didn't happen.

[00:36:18] Speaker 04:
With respect to whether there's contrary evidence in the record, I think the fact that there are public facts available to whoever the target is in this other investigation That is contrary evidence in the records, not addressed by the declarations. The declarations should have at least addressed the fact that there is public information available and whether or not that could be disclosed specifically. And with respect to Lewis, just quoting from Lewis, Quote, well, it's, quote, undisputed that release of the requested 700 pages of the documents would reveal, among other things, the limits and scope of the IRS's case against Lewis.

[00:36:59] Speaker 04:
And then also, quote, Lewis does not rebut this statement. So Lewis was not about the sufficiency of the declarations in that case because it was not disputed as far as- At the beginning of that paragraph, it says the affidavit submitted in this case described in sufficient detail the undisclosed materials. Certainly sufficient for purposes of undisputed, yes. But when you have, and I would point the court, this court- Whenever this court is given substantial weight, deference, whatever it's called, it's never simply just accepted the agency saying an exemption applies.

[00:37:38] Speaker 04:
We've looked at this based on our say-so and exemption applies. The agency has to earn that weight.

[00:37:45] Speaker 03:
What is it that you dispute and what are you supposed to do with that given the deference and de novo review and summary judgment?

[00:37:54] Speaker 03:
Can you be a little... So...

[00:37:58] Speaker 03:
Point us to where we should look to see the underlying facts that you dispute that would undermine the sufficiency of the 7A exemption.

[00:38:05] Speaker 04:
So, again, taking it to a specific broad, right?

[00:38:10] Speaker 03:
I think the... Is that in the... I guess, where should we look in the record, right? Again, pretending that this is an ordinary summary judgment case, it doesn't look like that tends to be how we treat them, but Where would we look to establish the more that the government needs to come forward with to put those disputes to rest?

[00:38:31] Speaker 04:
If I understand the question, and I apologize if I don't understand it correctly, but if I understand the question, I think that there is evidence in the... I don't think the record is undisputed as to what is...

[00:38:51] Speaker 04:
publicly available. And the dispute comes from whether or not the declarations address that information, and they don't. So the public information that's available is about the bribes. It's about the information that's in the plea agreements and in the criminal information in the sentencing statements in Cullen and English's prosecutions.

[00:39:15] Speaker 04:
All of that information is publicly available, it's detailed, it has verbatim quotes, and yet none of it is addressed in the declarations. And the problem is that this court on a de novo independent assessment needs to be able to track and support what it is that the agents are saying as far as the exemption applies. Because when you're doing fact-based withholding, again, distinguishing fact-based and categorical, they're claiming categorical. Categorical means that it's not just this case.

[00:39:46] Speaker 04:
In every case, investigative materials can be withheld because there's a pending investigation. That's clearly not the standard. So if you're talking about fact-based, they have to show their work. They have to show how the lines connect. That's what crew requires. And a good example, when you talk about deference, a good example from this court is Wehner. Now, while that case was not a 7A case, It was a national security case. And what the court said in that case was it's not a reason, I'm paraphrasing, but it's not a reasonable inference just based on what the agency is saying.

[00:40:23] Speaker 04:
And then they cite the litany of standard harms similar to what's here. They say it's not reasonable given all the facts and the evidence. And here, when you look at all the facts that are in the evidence, all the public information that's available, THE IDEA, AND THIS IS WHAT CREW IS GETTING AT, THE IDEA THAT IT'S, IS IT OBJECTIVELY REASONABLE THAT RELEASING THE INFORMATION THAT IS PUBLICLY AVAILABLE, THAT'S IN, THAT'S A VERBATIM QUOTE FROM CHOI IN ENGLISH, IS THAT GOING TO CAUSE HARM?

[00:40:55] Speaker 02:
NEW SPEAKER THANK YOU VERY MUCH. WE THANK BOTH COUNCIL FOR THEIR HELPFUL ARGUMENTS IN THIS CASE. THE CASE IS SUBMITTED AND WE ARE ADJOURNED.