[00:00:00] Speaker 02:
Morning.

[00:00:01] Speaker 02:
Good morning, Your Honors.

[00:00:02] Speaker 02:
May it please the Court.

[00:00:03] Speaker 02:
My name is Cesar Kalinowski, and I'm appearing on behalf of the appellant, Michelle Kanukin.

[00:00:08] Speaker 02:
In this matter, I'd like to reserve five minutes for rebuttal.

[00:00:13] Speaker 02:
On June 18, 1967, Israel bombed a U.S.

[00:00:17] Speaker 02:
Navy ship that was running an intelligence operation for the NSA, killed 34 Americans, wounded over 170 more.

[00:00:25] Speaker 02:
In the months that followed, the House Appropriations Committee prepared the most exhaustive investigation of that attack that exists, and then it sent it to the NSA, who has used it for decades.

[00:00:37] Speaker 02:
Nearly 60 years later, the survivors of the attack and the general American public still know very little about what happened that day and what the government knew in that report.

[00:00:46] Speaker 02:
This case is about an investigative journalist's request for that report, which is subject to FOIA and its strong presumption of disclosure.

[00:00:54] Speaker 02:
Contrary to the District Court's findings, all evidence and inferences in this case show that NSA has not met its burden to withhold the document.

[00:01:04] Speaker 02:
It unequivocally controls the report.

[00:01:07] Speaker 03:
So what do you think the test should be for documents that are held by an agency but that the agency received from Congress?

[00:01:16] Speaker 02:
Your Honor, the Supreme Court is a

[00:01:18] Speaker 02:
has already given us the test and the burden, and that's in Tax Analyst.

[00:01:22] Speaker 02:
And I understand that Tax Analyst was not a case about congressional records, it was a case about records from the court.

[00:01:30] Speaker 02:
And the distinction there is fairly immaterial, notwithstanding what the DC Circuit and or the lower court has found, because the judiciary is not subject to FOIA.

[00:01:41] Speaker 02:
the executive office like in Kissinger is not subject to FOIA and so the in the Supreme Court in tax analysts said the purpose for which something is created is irrelevant because it's whether the agency has created or obtained the document and is in control at the time that the request is made and the burden

[00:02:02] Speaker 02:
is placed specifically on the agency to demonstrate and not the requester to disprove that it is an agency record.

[00:02:09] Speaker 02:
So there's a high burden.

[00:02:11] Speaker 02:
And so those are the things that the agency must show.

[00:02:15] Speaker 03:
So the DC Circuit has said what needs to be shown here is that Congress manifested a clear intent to control the document.

[00:02:25] Speaker 03:
And do you disagree with that test?

[00:02:28] Speaker 02:
Absolutely, Your Honor.

[00:02:29] Speaker 02:
As our briefing discusses at length,

[00:02:31] Speaker 02:
That test was created in Tax Analyst.

[00:02:34] Speaker 02:
It was in the DC Circuit's lower court case in the Supreme Court, although they affirmed the ruling in that case.

[00:02:41] Speaker 02:
They specifically said that the creator's intent is irrelevant.

[00:02:44] Speaker 02:
There is no mens rea requirement.

[00:02:47] Speaker 02:
And ultimately, allowing the subjective intent of a party is really difficult, especially in a case like this, where we're talking about nearly 60 years later, what they intended to do or whether they intended or not to allow the documents.

[00:03:01] Speaker 04:
The DC test tries to take into account the fact that Congress is not covered by FOIA.

[00:03:10] Speaker 02:
Yes, Your Honor.

[00:03:11] Speaker 02:
Yeah, and neither is the judiciary.

[00:03:14] Speaker 02:
Neither, like the court in Rojas, this court in Rojas talked about, I mean, neither are private individuals.

[00:03:20] Speaker 02:
And this notion that Congress, because of its oversight authority, there's some special consideration, is entirely divorced from the Supreme Court's precedent on FOIA cases and agency records.

[00:03:30] Speaker 02:
In Kissinger, the court did not look at whether or not when Kissinger created these telephone records, did he intend that they would later get used by the department, the State Department,

[00:03:41] Speaker 02:
Kissinger they looked at how were they used to the agency use it for its purposes and Were they stored in agency files and this court in Rojas reaffirms that they said you've already said the DC circuit tests looks at creators intent That's something the Supreme Court has said you can't DC circuits never even address that they just say oh

[00:04:01] Speaker 02:
We continue to follow this test that we created that the Supreme Court's implicitly rejected.

[00:04:05] Speaker 03:
So the Second Circuit follows the DC Circuit test too?

[00:04:08] Speaker 02:
It does, Your Honor.

[00:04:09] Speaker 03:
So you want us to do, and you can make that ask, I just am wondering, is that where this goes?

[00:04:15] Speaker 03:
You want us to basically disagree with the DC Circuit and the Second Circuit?

[00:04:19] Speaker 02:
Both the D.C.

[00:04:20] Speaker 02:
Circuit and the Second Circuit have adopted or maintained this intent test that directly conflicts with the Supreme Court precedent.

[00:04:29] Speaker 01:
What do you claim is the Supreme Court precedent?

[00:04:33] Speaker 02:
Tax analyst, Your Honor.

[00:04:35] Speaker 02:
Tax analyst is very clear on the test and the reasons that the D.C.

[00:04:39] Speaker 02:
Circuit has distinguished or claims.

[00:04:42] Speaker 02:
They never deal with tax analyst after that.

[00:04:44] Speaker 02:
They just keep saying the test over and over again.

[00:04:47] Speaker 02:
that the Supreme Court rejected intent.

[00:04:50] Speaker 02:
They don't address that.

[00:04:50] Speaker 02:
The Second Circuit doesn't address it.

[00:04:52] Speaker 02:
They just say, Congress is special.

[00:04:54] Speaker 02:
Congress has oversight.

[00:04:55] Speaker 02:
Well, the judiciary has oversight.

[00:04:57] Speaker 02:
The executive, the office of the president, has oversight over agencies.

[00:05:02] Speaker 02:
Individuals

[00:05:03] Speaker 02:
routinely provide information to agencies, and yet none of those entities are subject to FOIA.

[00:05:10] Speaker 02:
The test is not whether or not the individual or the entity that created it had some subjective intent.

[00:05:15] Speaker 02:
It's how the agency used it.

[00:05:17] Speaker 03:
Are we talking about the same intent, though?

[00:05:19] Speaker 03:
I mean, it seems like the intent that the Supreme Court was talking about in Tax Analyst was the intent for the agency to rely on the documents here.

[00:05:27] Speaker 03:
It seems like we're talking about

[00:05:29] Speaker 03:
the intent of Congress to maintain control of the documents.

[00:05:32] Speaker 03:
Is that not a distinction?

[00:05:33] Speaker 02:
It's not a distinction that matters, Your Honor, because the relevant question, and they talk about this in 4Cham, they talk about this in Tax Analyst, the relevant distinction is what did the agency do with it?

[00:05:45] Speaker 02:
And so to the extent that the DC Circuit test is examining really what did the agency think it could do with it, maybe because Congress told that it couldn't do something and did it comply with that mandate from Congress,

[00:05:59] Speaker 02:
that's a permissible potential factor to consider.

[00:06:02] Speaker 02:
And in Rojas, this court said specifically, it looks at whether it's in connection with agency-related business, use of the documents, reliance on the documents, system for preserving.

[00:06:12] Speaker 03:
And so- Does this mean essentially that anytime Congress transfers a document to an agency,

[00:06:18] Speaker 03:
regardless of what it says, that document then becomes subject to FOIA?

[00:06:23] Speaker 02:
No, Your Honor.

[00:06:24] Speaker 02:
That's not the case.

[00:06:26] Speaker 02:
Congress does have the ability to hold onto documents for its purpose.

[00:06:30] Speaker 02:
And it knows how to do this.

[00:06:32] Speaker 02:
And we see other cases in which it explicitly says, this document is for you to show up and answer questions to us.

[00:06:38] Speaker 02:
You keep this separate.

[00:06:39] Speaker 02:
This is not a CIA document.

[00:06:41] Speaker 02:
This is not an NSA document.

[00:06:43] Speaker 02:
This is for you to answer questions to us or produce documents in response to our request.

[00:06:48] Speaker 02:
But even in those cases, they then revert when the document reverts back to the agency, it becomes an agency document unless there's continued restrictions.

[00:06:58] Speaker 03:
But so why is there not a continued restriction here based on the banner?

[00:07:02] Speaker 02:
Well, let's get back to the burden, Your Honor.

[00:07:04] Speaker 02:
And the burden is on the agency to disprove the idea that these are agency records.

[00:07:11] Speaker 02:
And ultimately, there is no evidence whatsoever that Congress, whether you want to look at an intent standard,

[00:07:17] Speaker 02:
or otherwise, that Congress intended this to be only their record.

[00:07:21] Speaker 02:
The only thing that the agency has is hearsay that a banner exists, and there's no reason why they couldn't have photocopied this banner and provided it so that the court could have looked at it and said, oh, the banner is there.

[00:07:33] Speaker 02:
It's on all of the reports.

[00:07:34] Speaker 02:
It hasn't been crossed out.

[00:07:35] Speaker 03:
You ask for that?

[00:07:37] Speaker 02:
It's not on the requester to disprove that.

[00:07:39] Speaker 02:
It's not on the requester.

[00:07:40] Speaker 02:
And this is why the burden exists, Your Honor, is because in the context of FOIA, the agency holds all of the cards.

[00:07:48] Speaker 02:
They have the access to the documents.

[00:07:50] Speaker 02:
There's no discovery in FOIA.

[00:07:52] Speaker 02:
A requester can't demand that they turn things over, and so it puts the burden on the agency.

[00:07:58] Speaker 03:
Under your test, what should Congress have done to maintain the

[00:08:03] Speaker 03:
control of this document to make it not subject to FOIA when they transferred it to the NSA?

[00:08:09] Speaker 02:
Well, that presumes that they wanted to, Your Honor.

[00:08:11] Speaker 02:
And there's no evidence that they wanted to.

[00:08:13] Speaker 02:
Let's assume that they wanted to.

[00:08:14] Speaker 02:
What should they have done?

[00:08:14] Speaker 02:
There are a number of cases, and some of the DC Circuit cases talk about exactly.

[00:08:18] Speaker 02:
We see Senator Feinstein, or we see the committee, writing a full paragraph that says, this is a congressional record.

[00:08:26] Speaker 02:
This is for the use with Congress.

[00:08:27] Speaker 02:
This is not a CIA record.

[00:08:29] Speaker 02:
Even after the committee, this has to be held in trust.

[00:08:33] Speaker 02:
And it says that routinely, and we see that in all of the cases now.

[00:08:37] Speaker 02:
There is nothing like that here.

[00:08:38] Speaker 02:
There's a document.

[00:08:39] Speaker 03:
Documents also, you know, decades old.

[00:08:42] Speaker 03:
So there may be now a more robust practice, as you say, but why is what we have in the banner not a sufficient shorthand for what you're saying would be sufficient?

[00:08:53] Speaker 02:
Well,

[00:08:54] Speaker 02:
Because ultimately all that banner says is that it couldn't be released until authorized by the committee.

[00:08:59] Speaker 02:
And the only evidence that it's now been entered is that it was in fact authorized for release by the committee.

[00:09:04] Speaker 02:
It's when Gene Yates, the NSA legislative director, requested a copy and they authorize this dissemination.

[00:09:10] Speaker 02:
Once that happened... Well, aren't we talking about release beyond the agency?

[00:09:14] Speaker 02:
We're not, Your Honor.

[00:09:15] Speaker 02:
And the reason being is that a document, if that were the case, then they would have to specify

[00:09:21] Speaker 02:
that being so.

[00:09:22] Speaker 02:
But the district court believed that, well, that means to the public.

[00:09:26] Speaker 02:
But the Congress cannot control, necessarily, even if the agency engages in misconduct.

[00:09:31] Speaker 02:
Congress can't control what happens to that document.

[00:09:33] Speaker 02:
It is on Congress to ensure that it is clear and on the agency to comply.

[00:09:39] Speaker 02:
And here, all of the other evidence shows that the agency never considered this to be a congressional record that it helped trust.

[00:09:45] Speaker 04:
What do you do with the notes that they produced?

[00:09:48] Speaker 02:
The two notes, actually, Your Honor,

[00:09:50] Speaker 02:
Show that in fact there was no restriction whatsoever on the user dissemination the transfer memo does not click return There's no restrictions on dissemination that are noted in there And in fact the agency consistent with the what about the the marking you know saying not for release and top secret Well, that's the banner your honor the banner and again use me the top, but the top secret was seemingly added by NSA

[00:10:17] Speaker 02:
Well, there's no evidence of that.

[00:10:18] Speaker 02:
And they failed to meet their burden to show when the stamp was added, who added it, if there were any contemporaneous descriptions or notes to NSA about its use.

[00:10:30] Speaker 02:
All we have is this banner that they allege exists and these transfer notes.

[00:10:34] Speaker 02:
And Judge Pais, in the transfer notes, there's no return required.

[00:10:38] Speaker 02:
And ultimately, the agency starts passing it around

[00:10:42] Speaker 02:
It goes to the working group on the USS Liberty incident.

[00:10:45] Speaker 02:
It goes to the director.

[00:10:46] Speaker 02:
The director finds it interesting.

[00:10:48] Speaker 02:
He sends it to heads of other departments.

[00:10:50] Speaker 02:
Ultimately, it ends up in the crisis collection center at the NSA history section.

[00:10:55] Speaker 02:
It's not a special Congress folder.

[00:10:57] Speaker 02:
It's there for anyone to use.

[00:10:59] Speaker 02:
And there's no evidence that there's

[00:11:00] Speaker 02:
Not other uses, they failed that burden as well, but ultimately, two retired civilians use it in an NSA report that then NSA publishes to the public.

[00:11:10] Speaker 02:
There's no evidence that they went to Congress and said, hey, Congress, we reference, we discuss this congressional report that's classified.

[00:11:17] Speaker 02:
Can we release this?

[00:11:19] Speaker 02:
They just do it.

[00:11:20] Speaker 02:
There's no evidence whatsoever that NSA believe Congress controlled this report or the information therein until it gets requested by FOIA.

[00:11:28] Speaker 02:
And post-hoc justifications

[00:11:29] Speaker 02:
are simply insufficient.

[00:11:30] Speaker 04:
The only thing we really know about the transfers are the two notes, is that right?

[00:11:36] Speaker 02:
Correct, Your Honor, that it was requested by NSA and that it ultimately then was transferred around with NSA until it landed in a presumptively open location where two retired civilians were able to use it.

[00:11:49] Speaker 04:
And that's all we're really, that's all that's in the record, is that right?

[00:11:51] Speaker 02:
And a lot of that has actually not been supplied by NSA, even though they have the burden.

[00:11:55] Speaker 02:
And so to answer your earlier question, Judge Bress, yes, to create a test that is consistent with the United States Supreme Court's

[00:12:02] Speaker 02:
case and jurisprudence, this court would create a split.

[00:12:05] Speaker 02:
With that said, it does not need to, because the NSA had the burden to show, even under the DC's test congressional intent, to show that it had never used this elsewhere, that it held it in a specific area, all of those types of things, and it's provided none of that.

[00:12:19] Speaker 01:
You mentioned that this report was used by two retired civilians, but it was for an NSA report that stayed with NSA?

[00:12:27] Speaker 02:
did until the until the agency decided that it was declassified and then released it to the public yes your honor and I see that I'm into my my rebuttal time but I'll note that that simply the banner alone is insufficient to show a continued intent to control in the same way that in attack I think this is er 130 you can see that there is still a banner on the attack on a signature and

[00:12:54] Speaker 02:
And it says not for dissemination until authorized by the NSA director.

[00:12:58] Speaker 02:
And yet we have that report in our hands because it was actually authorized.

[00:13:02] Speaker 02:
And so all evidence here shows that the report was not controlled by Congress and the NSA should have disposed of it.

[00:13:08] Speaker 04:
Let me just ask you one last question.

[00:13:09] Speaker 04:
As I understand it, the document was marked top secret on each of the pages, or somebody says it was?

[00:13:16] Speaker 02:
Yes, Your Honor.

[00:13:17] Speaker 04:
But I understand the agency's position to be, they're not relying on that, too.

[00:13:22] Speaker 04:
They're not your honor.

[00:13:23] Speaker 02:
I believe that's correct.

[00:13:25] Speaker 02:
And it's immaterial.

[00:13:26] Speaker 02:
In large part, they crossed that out and released that top secret information in the attack and the signature report.

[00:13:32] Speaker 02:
And so there's not even evidence that it continues.

[00:13:35] Speaker 02:
They could have gotten evidence.

[00:13:36] Speaker 02:
They could have submitted other evidence.

[00:13:38] Speaker 02:
Things get automatically declassified after a certain time.

[00:13:41] Speaker 02:
And ultimately, when this case goes on remand, they will be able to make the argument under exceptions one or three that it's still subject to declassification or classification that can be exempt or rejected under that.

[00:13:54] Speaker 02:
Thank you, Your Honor.

[00:13:55] Speaker 03:
Thank you.

[00:13:55] Speaker 03:
We'll put three minutes up for you on rebuttal.

[00:13:57] Speaker 03:
Thank you.

[00:14:03] Speaker 00:
May it please the court, Mike Shee, for the government.

[00:14:06] Speaker 00:
This case turns on a single key question, whether Congress has clearly manifested an intent to retain control over the public release of the committee report in question.

[00:14:17] Speaker 00:
And here, the record looks quite different from what my friend on the other side has characterized it.

[00:14:22] Speaker 00:
NSA has two declarations in the record that established that this banner saying not for release unless and until authorized by committee was affixed on the report prior to its receipt by NSA.

[00:14:35] Speaker 00:
And furthermore, that such banners are used by Congress to signal its desire to retain control over the conditions by which the associated document gets released to the public.

[00:14:46] Speaker 00:
And so nothing indicates that Congress intended to vitiate that very clear expression of its desire to keep control over the circumstances by which that document goes into the public record.

[00:14:59] Speaker 00:
And that's the reason why this document does not qualify as an agency record under FOIA.

[00:15:04] Speaker 04:
What about the fact that NSA was able to use that document to produce the TAC report?

[00:15:09] Speaker 00:
So that fact doesn't alter the conclusion, Your Honor, and I have a factual answer and a legal answer.

[00:15:14] Speaker 00:
So the factual answer is the evidence that the other side points to is that two retired agency employees with security clearances were

[00:15:25] Speaker 00:
at one point retained by the agency to produce a report for the agency.

[00:15:30] Speaker 00:
And this court's decision in the unbanked Rojas case makes quite clear that outside consultants in those circumstances are basically working for the agency.

[00:15:40] Speaker 00:
So it's not like they went and selected two random members of the public just to get public members of the report.

[00:15:45] Speaker 04:
They felt they could use the information in the reports to produce the attack report.

[00:15:50] Speaker 00:
That's right, Your Honor, and that goes to the legal answer.

[00:15:55] Speaker 00:
And if you look at the Second Circuit's decision in the Cox case and the DC Circuit's decision in the ACLU case, those are the two cases addressing the SISI report.

[00:16:07] Speaker 00:
And that's a very analogous situation where

[00:16:10] Speaker 00:
you have a circumstance where a report was given to the executive branch with the understanding that the executive branch could use it internally, but both the Second Circuit and the D.C.

[00:16:21] Speaker 00:
Circuit held that that wasn't sufficient evidence of a desire by Congress to vitiate the initial distribution restriction that Congress placed on that report.

[00:16:31] Speaker 00:
And so that's what you have here.

[00:16:33] Speaker 01:
Mr. Xi, how do you handle the counsel, your friend's citation of tax analysts saying that tax analysts

[00:16:39] Speaker 01:
is contrary to those two circuit court cases.

[00:16:43] Speaker 00:
So tax analyst just doesn't stand for the broad proposition that opposing counsel is reading it for.

[00:16:50] Speaker 00:
Tax analysts addressed a circumstance where someone submitted a FOIA request for public

[00:16:57] Speaker 00:
district court decisions that were housed at the Department of Justice.

[00:17:00] Speaker 00:
And so that case didn't present the question whether an entity that is not subject to FOIA has placed a distribution restriction on the documents.

[00:17:11] Speaker 00:
What weight to give to that distribution restriction?

[00:17:14] Speaker 00:
And so that's the reason why both the DC Circuit and the Second Circuit have rejected

[00:17:18] Speaker 00:
this oversimplified view that tax analysts provides a complete answer to the question.

[00:17:24] Speaker 00:
And it would be, to my knowledge, this would be the first court of appeals in the country to embrace that view if this court endorsed plaintiff's reading of tax analysts.

[00:17:37] Speaker 04:
Can I ask you, with respect to your factual explanation a minute ago, when they prepared the ATT&CK report,

[00:17:47] Speaker 04:
Did they seek authorization from Congress to use the two volumes to prepare that report?

[00:17:56] Speaker 00:
I don't know.

[00:17:57] Speaker 04:
They felt free.

[00:17:58] Speaker 04:
They could just use it for that purpose.

[00:18:00] Speaker 00:
I don't know, Your Honor.

[00:18:01] Speaker 00:
To my recollection, the record doesn't contain any information about the circumstances of NSA's communications with Congress for that report.

[00:18:09] Speaker 00:
But I'll make something to be quite clear about is the attack report is not

[00:18:14] Speaker 00:
This may be an obvious point, but it's a critical one.

[00:18:16] Speaker 00:
The attack report is not the committee report that plaintiff wants.

[00:18:21] Speaker 00:
And so when it came time for the agency to decide whether to publicly release the report as opposed to merely use it internally,

[00:18:31] Speaker 00:
In 2008 and then again in 2020 and then again in 2024, the agency reached out to Congress and asked, you know, somebody has requested public release.

[00:18:43] Speaker 00:
May we do that?

[00:18:44] Speaker 00:
And on the two instances in which Congress responded, Congress indicated that nothing had changed with respect to the banner.

[00:18:53] Speaker 00:
And so the reason why those are the relevant instances are not, you know, this attack report, which just goes on, you know, how the agency may have used the document internally is because the key question has to do, of course, not with internal use within the agency, but instead with congressional intent to retain control over public dissemination.

[00:19:16] Speaker 03:
To what degree does the attack report reveal the contents of the HAC

[00:19:21] Speaker 03:
volumes.

[00:19:24] Speaker 00:
My understanding is the attack report cites the underlying committee report as a factual source.

[00:19:33] Speaker 00:
One of the declarations I think contains pages from the attack report that describe the

[00:19:42] Speaker 00:
The extent to which the attack report relied on the committee report and so I'd refer your honor just to the that attachment to the declaration But the critical piece of that is that at no point has the agency publicly disclosed the actual committee report in question and Certainly not in the attack report and certainly not in any other circumstance and that let me ask you is it as another factual question is it

[00:20:10] Speaker 04:
Really undisputed that at the time of the transfer to NSA that the two volume report had the banner on it that the banner was placed there by the congressional committee.

[00:20:21] Speaker 00:
So for purposes of summary judgment, the answer to that is yes, your honor.

[00:20:24] Speaker 00:
So what we have in the record is.

[00:20:26] Speaker 00:
Two agency declarations, and you can see these, this is the D'Amelio Declaration at pages 111 and 121, and the Stevens Declaration, and they make clear that on the basis of their expertise, the banner was placed there by Congress prior to receipt by the agency.

[00:20:43] Speaker 00:
And the only evidence we have on the other side is speculation about other circumstances in which the banner might have appeared, and that's just insufficient to carry the day at summary judgment.

[00:20:53] Speaker 04:
And to the extent that it was stamped top secret, was that also placed there by the Congressional Committee, or is that placed there by the NSA, or do we know?

[00:21:03] Speaker 00:
So our understanding is, and this is at page 114 of the second volume of the ER,

[00:21:10] Speaker 00:
the declarant stated that the report was classified as top secret because it had information classified by DOD as top secret, and that's the reason why NSA is not relying on the top secret marking as an indicator of congressional intent.

[00:21:25] Speaker 04:
So was it NSA that classified it as top secret?

[00:21:28] Speaker 00:
I'm not sure, Your Honor, who specifically was responsible for the initial classification.

[00:21:33] Speaker 00:
But NSA certainly isn't arguing that it was Congress's decision to say also top secret.

[00:21:41] Speaker 04:
Let me ask you this.

[00:21:43] Speaker 04:
Do you think we should adopt this DC circuits test?

[00:21:47] Speaker 00:
Yes.

[00:21:48] Speaker 04:
Why?

[00:21:49] Speaker 00:
Because this test is the best test out there that accounts for the dueling considerations that the statutory question presents.

[00:22:00] Speaker 00:
Opposing counsel has described FOIA

[00:22:02] Speaker 00:
as a disclosure statute.

[00:22:05] Speaker 00:
Full stop.

[00:22:05] Speaker 00:
That's not an accurate description of FOIA.

[00:22:07] Speaker 00:
FOIA respects

[00:22:09] Speaker 00:
a very highly reticulated balance between public disclosure and the circumstances under which documents can't be publicly disclosed as evinced by, among other things, the reason why we're here is because Congress has a highly reticulated definition of who counts as an agency.

[00:22:27] Speaker 00:
And Congress very clearly defined itself out of FOIA.

[00:22:32] Speaker 00:
And the reason that's significant, Your Honor, and this is why

[00:22:36] Speaker 00:
opposing counsel's reading of tax analysts is incorrect.

[00:22:40] Speaker 00:
It is because there are very significant policy questions raised when an entity that's not subject to FOIA that has a constitutional prerogative

[00:22:51] Speaker 00:
to conduct oversight over the executive branch has expressly indicated that it wants to retain control over a document.

[00:23:00] Speaker 00:
And the argument on the other side is unless Congress incants some magic words, that document just suddenly becomes an agency record.

[00:23:10] Speaker 00:
If that were true, one would have to think that Congress drafted FOIA in such a way to put it to this very difficult choice of either exercising its oversight function

[00:23:20] Speaker 00:
over the executive branch or ceding control over the records that it itself produces.

[00:23:27] Speaker 00:
And so it's for that reason that the DC Circuit and the Second Circuit have adopted this test that focuses on the question whether Congress has clearly manifested an intent to retain control over the document.

[00:23:39] Speaker 00:
And that's the reason why we think that's the only test this Court should adopt.

[00:23:43] Speaker 00:
You also don't

[00:23:43] Speaker 00:
Need to take just my word for it at prior stages of this litigation plaintiff actually agreed that the DC circuit and the Second Circuit supplied the correct test for circumstances like this and it wasn't until subsequent proceedings that plaintiff altered.

[00:24:00] Speaker 00:
legal position and of course plaintiff is free to select whatever test plaintiff believes is appropriate but the fact that even plaintiff at one point in this litigation agreed that the second circuit in the DC circuit had got the test correct I think just underscores that this court in this case should adopt that test as well.

[00:24:19] Speaker 03:
The plaintiff says that you know the banner basically is

[00:24:27] Speaker 03:
that the banner's conditions no longer apply because it has been released.

[00:24:30] Speaker 03:
It was released to the NSA.

[00:24:31] Speaker 03:
It was released outside of Congress.

[00:24:33] Speaker 03:
And so therefore, that's a different interpretation of the banner that supports them.

[00:24:38] Speaker 03:
How do you address that?

[00:24:39] Speaker 00:
So I would point, Your Honor, to the declarations in the record and also to the plain text of the banner.

[00:24:45] Speaker 00:
The plain text of the banner says not for release unless and until authorized by committee.

[00:24:49] Speaker 00:
It does not say, it doesn't put any sort of qualifiers on that.

[00:24:54] Speaker 00:
And what they're asking for is release of the report.

[00:24:58] Speaker 03:
I think they say what has been released, it was released to the NSA.

[00:25:02] Speaker 00:
That's true, Your Honor.

[00:25:02] Speaker 00:
And then I would point you to the fact that the banner doesn't contain, you know, this banner applies only to circumstances of release to an executive agency.

[00:25:12] Speaker 00:
Right.

[00:25:12] Speaker 00:
The banner speaks much more broadly than that and talks about release generally.

[00:25:16] Speaker 00:
But I'd also point to the declarations in the record, where the declarants make clear that banners such as this indicate not what plaintiffs speculate this banner means, but instead an intent to retain control over the terms of release more broadly.

[00:25:31] Speaker 00:
And finally, I would note that the agency has conducted itself in a manner consistent with that reading of the banner, because again, in 2008,

[00:25:42] Speaker 00:
in 2020 and then I think in 2024, the agency when confronted with a request for public release went to Congress to ask Congress for its views and so everything in the record.

[00:25:54] Speaker 03:
It's hard to know how much weight to place on that though because it seems like someone just phoned over to someone and asked and that was what came back.

[00:26:03] Speaker 03:
You'd think there might be a more

[00:26:05] Speaker 03:
robust process that could be undertaken for something like that?

[00:26:07] Speaker 00:
You know, I can't speak to what sort of process Congress might put in place, Your Honor.

[00:26:13] Speaker 00:
What I can say is that to the extent that Your Honor doesn't think the banner itself speaks clearly enough, I would just note that these are additional data points that Your Honor could consult in concluding that the banner just meant what it says and not that the banner had some narrower meaning where, you know, the

[00:26:33] Speaker 00:
it applies only to release to the committee and then the restriction disappears.

[00:26:38] Speaker 00:
In that circumstance, for example, you might have a different case of Congress lined through the banner before handing it over to the agency.

[00:26:46] Speaker 03:
What would have happened if you had called over and spoken to the staffer and the staffer had said, no, we're fine with it being released?

[00:26:52] Speaker 03:
Then what?

[00:26:53] Speaker 00:
I'm sure the agency would have taken that into consideration.

[00:26:56] Speaker 00:
I don't know what the agency would have done in that circumstance.

[00:27:00] Speaker 00:
you know, it certainly would be consistent with the banner for the agency to check with Congress.

[00:27:07] Speaker 00:
And the fact that the agency checked with Congress just underscores that the banner just means what it says.

[00:27:12] Speaker 03:
Is there not any kind of more established?

[00:27:15] Speaker 03:
I don't know how often this comes up.

[00:27:16] Speaker 03:
Obviously, we've never had a case on this.

[00:27:18] Speaker 03:
But is there not some more established or formal process for going to Congress and checking?

[00:27:24] Speaker 00:
I don't know, Your Honor.

[00:27:26] Speaker 00:
I know that this was the process that was followed in this case.

[00:27:30] Speaker 00:
There's no information that I have about any more formal process that Congress or an agency may have put in place.

[00:27:38] Speaker 00:
But I would note again that... Can the plaintiff go directly to Congress and ask Congress?

[00:27:43] Speaker 00:
Oh, absolutely, right.

[00:27:45] Speaker 00:
Because the reason why I guess we're here

[00:27:49] Speaker 00:
is because plaintiff, for whatever reason, hasn't succeeded in getting this report from Congress.

[00:27:55] Speaker 00:
And so that's why plaintiff is taking this sideways approach of trying to get through FOIA, a document that, you know, concededly, plaintiff would not have been able to get from Congress had plaintiff submitted a FOIA request to Congress because, of course, a FOIA request to Congress is just not a thing under the statute.

[00:28:12] Speaker 00:
And so the fact that plaintiff could just obtain this document from Congress by asking Congress for permission just highlights the extent to which this report remains in congressional control, notwithstanding the fact that it is in the possession.

[00:28:28] Speaker 00:
One copy of this report is in the possession of the agency.

[00:28:32] Speaker 04:
You know, I realize this took place, you know, over 60 years ago.

[00:28:35] Speaker 04:
Is that what the timeline is?

[00:28:37] Speaker 04:
That sounds right, Your Honor.

[00:28:38] Speaker 04:
Yeah, you know, it seems kind of

[00:28:40] Speaker 04:
Even back then, you would think that a report like this over a very serious political incident or international incident, that when the document, when the two volumes were transferred to the NSA, that it would have been done a little more formalistic.

[00:28:58] Speaker 04:
So, Your Honor... Kind of strange that it just ends up in the hands of the NSA, you know.

[00:29:05] Speaker 00:
I'd make two points to that.

[00:29:07] Speaker 00:
The first is factual and the second is again legal.

[00:29:09] Speaker 00:
The factual point is it's not strange at all that Congress and the executive branch would work together to share the fruits of congressional oversight.

[00:29:18] Speaker 00:
And it's also not strange that in those circumstances, Congress would want to allow the executive branch to use a document that it had produced, but retain control over the circumstances of public disclosure.

[00:29:29] Speaker 00:
And I'd also point, Your Honor, to the Goland case.

[00:29:31] Speaker 04:
Why don't you come over and take a look at this document?

[00:29:33] Speaker 04:
It's got some interesting information.

[00:29:35] Speaker 00:
They could do that, Your Honor.

[00:29:36] Speaker 04:
But it ends up, the two-volume report ends up in the hands of the NSA, and it's used to produce this attack report that's circulated around the NSA and various people.

[00:29:47] Speaker 00:
Yeah, but none of the internal use of the report undermines the

[00:29:52] Speaker 00:
Separate restriction on public release that Congress placed and that's the reason why how NSA used the document just isn't really legally relevant to that key question, which is who is retaining control over the circumstances of public releases at the agency.

[00:30:07] Speaker 00:
Or is it Congress?

[00:30:08] Speaker 00:
And here the evidence points to Congress.

[00:30:09] Speaker 00:
I'd also direct, Your Honor, to the, this is the legal response to the Golan case from the D.C.

[00:30:14] Speaker 00:
Circuit.

[00:30:15] Speaker 00:
Which one?

[00:30:15] Speaker 00:
The Golan case from the D.C.

[00:30:17] Speaker 00:
Circuit.

[00:30:18] Speaker 00:
I'm sorry.

[00:30:18] Speaker 00:
I just noticed that my time was up.

[00:30:20] Speaker 00:
May I complete this answer?

[00:30:21] Speaker 00:
Thank you, Your Honor.

[00:30:22] Speaker 00:
And in the Golan case, we similarly had a national security report produced by Congress

[00:30:28] Speaker 00:
And the only thing on that report was just a banner that said secret.

[00:30:32] Speaker 00:
And the only other evidence in that record is that I think the stenographer and other people met and they were sworn to secrecy.

[00:30:39] Speaker 00:
So that was the evidence before the D.C.

[00:30:41] Speaker 04:
Circuit and the transcript.

[00:30:43] Speaker 00:
Yes.

[00:30:44] Speaker 00:
And the D.C.

[00:30:44] Speaker 00:
Circuit said, well, there nonetheless, we have a clear manifestation of congressional intent.

[00:30:49] Speaker 00:
And yes, the facts here are slightly different, but we have a much clearer banner that

[00:30:54] Speaker 00:
is supported by declarations from experts at NSA making clear that banners like this are the sorts of things that Congress uses when Congress wants to retain control over public dissemination.

[00:31:09] Speaker 00:
Report being purloined in the memorandum So we haven't taken a view on what that means exactly, but we don't see a world in which that helps plaintiffs You know plaintiffs have a view on what purloined means and I think that view is it's some kind of tongue-in-cheek Reference.

[00:31:27] Speaker 00:
I'm not sure you'll have to ask them but

[00:31:29] Speaker 00:
If Perloin means that the agency acquired the report illegitimately or outside the context of its official duties, then that under even plaintiffs' preferred test of tax analysts would mean that the document wasn't controlled by the agency.

[00:31:47] Speaker 00:
So we haven't relied on Perloin in this case, but we don't see how if this court were to look at Perloin, it could help plaintiffs.

[00:31:56] Speaker 00:
make a case even under plaintiff's test.

[00:31:58] Speaker 00:
Why have you not relied on it?

[00:31:59] Speaker 00:
Because you don't know what it means?

[00:32:00] Speaker 00:
We don't know.

[00:32:01] Speaker 00:
The record doesn't say.

[00:32:02] Speaker 00:
What we know about purloined was disclosed in the declarations and the supplemental disclosures.

[00:32:11] Speaker 00:
And so I don't want to get out in front of my skis and make representations about what purloined entails or, you know, who all of these various characters were that were referenced in the additional disclosures.

[00:32:22] Speaker 00:
But what we do know is that they don't undermine the key point in this case, which, you know, is we have this banner that says public release is within the Congress's control.

[00:32:33] Speaker 01:
The word public isn't in the banner, is it?

[00:32:37] Speaker 00:
The word public isn't in the banner, right, but neither are the words, you know, release only applies once, you know, and so plaintiffs are of the view that this banner just means once it's released to an agency, that equals this banner means you get to release it.

[00:32:53] Speaker 01:
But doesn't purloin clearly mean that somebody unauthorized to see the report had it in its possession?

[00:33:01] Speaker 00:
It's possible that purloined might mean that, Your Honor.

[00:33:04] Speaker 00:
The, you know, frank answer, Your Honor, is just we don't know because, as Judge Pius pointed out, all of the events occurred many decades ago.

[00:33:14] Speaker 00:
And so that's the reason why we're not speculating about what purloined entails.

[00:33:18] Speaker 00:
But if Your Honor is right that what purloin means is that somebody at NSA purloined the document from Congress, then I would have difficulty understanding how even under plaintiff's view of FOIA, which turns on whether a document was acquired in the legitimate conduct of official duties, plaintiff would be able to prevail.

[00:33:40] Speaker 00:
So we don't see this as a mark in our favor, but certainly it's not a mark in theirs.

[00:33:47] Speaker 03:
Okay, I think we've exhausted our questions.

[00:33:49] Speaker 03:
Thank you very much, and we'll hear rebuttal.

[00:33:56] Speaker 02:
Thank you, Your Honors.

[00:33:57] Speaker 02:
I'd note that my colleague on the other side said a number of times, we don't know, we're not sure, we don't know, we didn't look into that, we don't take a position.

[00:34:07] Speaker 02:
And yet FOIA places the burden on the NSA, because the NSA could have gone and talked to Lieutenant Commander Kozak, they could have gone and talked to Gene Yates,

[00:34:14] Speaker 02:
They could have found other documents.

[00:34:16] Speaker 03:
Are these people alive?

[00:34:17] Speaker 02:
They are alive, Your Honor, and we've even presented evidence of that.

[00:34:21] Speaker 02:
And they could have gone and talked to individuals at Congress, and they could have gotten declarations from individuals at Congress.

[00:34:27] Speaker 02:
All they rely on is a declaration that says, we think this is a congressional record.

[00:34:32] Speaker 02:
And that's the case every single time that they withhold the document.

[00:34:36] Speaker 03:
That's why they're withholding it.

[00:34:38] Speaker 03:
What they're saying is there's a banner

[00:34:40] Speaker 03:
that says not for release.

[00:34:41] Speaker 03:
So I think their position would be, what more do you want us to have to come forward with?

[00:34:45] Speaker 02:
Right.

[00:34:45] Speaker 02:
Well, and under the case law, including in this court's case in Rojas, it is the use.

[00:34:49] Speaker 02:
In Forsham, it's the use.

[00:34:51] Speaker 02:
In every other Supreme Court case, it's the use, regardless of where it was obtained from.

[00:34:56] Speaker 02:
And the NSA has already conceded they lawfully obtained it.

[00:34:58] Speaker 02:
Briefly on the purloin thing, that's a note from Lieutenant Kozak.

[00:35:03] Speaker 02:
We don't know what he meant there.

[00:35:05] Speaker 02:
They have not provided any evidence, despite their burden to do so.

[00:35:08] Speaker 02:
But that was not from

[00:35:10] Speaker 02:
The committee, we have the transfer report from Gene Yates, and that says, this is at your request, here's the report.

[00:35:17] Speaker 02:
The document that references Perloin is the later internal circulation document between the NSA director, the working group, the other NSA heads, and so that's a different thing.

[00:35:28] Speaker 03:
So how do you think Perloin helps you, or do you think it doesn't?

[00:35:31] Speaker 02:
I think it doesn't matter your honor because it is the agency's use that matters even this court in your house said misconduct if they're using it even in a way they're not supposed to they use it for agency purposes and it becomes an agency record and there's a lot of reasons for that under opposing counsel theory under the NSA's theory.

[00:35:50] Speaker 02:
that they could use it for every single purpose.

[00:35:53] Speaker 02:
It could be the linchpin document that NSA uses, but simply because Congress said, well, you can't, this is our document, now the public can have no idea whatsoever the cornerstone of the NSA's entire world.

[00:36:05] Speaker 02:
It isn't that.

[00:36:06] Speaker 02:
It is how the agency used the document, where they stored it.

[00:36:10] Speaker 02:
That's every single case that has been examined.

[00:36:13] Speaker 02:
And the agency could have, under its burden, gotten a declaration from Congress.

[00:36:17] Speaker 02:
If Congress was so worried, they could have submitted a declaration, even though it would be still legally insufficient.

[00:36:22] Speaker 04:
Let me ask you a question.

[00:36:25] Speaker 04:
Was it weird to conclude that that banner is ambiguous?

[00:36:29] Speaker 04:
What happened?

[00:36:30] Speaker 02:
Well, under FOIA and Rule 56, Your Honor, the inference would go in Ms.

[00:36:34] Speaker 02:
Kanukin's favor, that that banner taken in the proper inference is that it was, as Judge Pai was just pointing out, or Judge Bay, I'm sorry, he was just pointing out that it was in fact released, and there's no indication that it couldn't be released to the public, or that that was, there was some other intent to control.

[00:36:52] Speaker 02:
We would say your honor here the facts are undisputed that the other than to the extent that they rely on hearsay that that's not admissible evidence but but there is no additional fact finding in the government doesn't continue to get bites at the apple they have a burden they failed to meet that burden and the document should be disclosed and there's no case definitely not goal and where there was an executive session.

[00:37:12] Speaker 02:
It said, this is for internal purposes only.

[00:37:15] Speaker 02:
CIA presented evidence that it kept it in a special Congress-only box.

[00:37:20] Speaker 02:
There's none of that here.

[00:37:21] Speaker 04:
Let me ask you this other question.

[00:37:23] Speaker 04:
If we were to agree with the D.C.

[00:37:24] Speaker 04:
Circuit's test, do you lose?

[00:37:28] Speaker 02:
I would say we still win, Your Honor, because again, the only evidence of congressional intent in DC Circuit requires clear evidence of intent to retain control.

[00:37:37] Speaker 02:
And then it still is the second part of the test looks at actually how they were used.

[00:37:41] Speaker 02:
Because the agency, if it misuses it, can turn it into an agency document, even if it's not supposed to.

[00:37:48] Speaker 02:
And so the DC Circuit looks at both of those.

[00:37:50] Speaker 02:
And here, all of the evidence taken with the proper inference is in our favor.

[00:37:54] Speaker 02:
And no DC Circuit test.

[00:37:56] Speaker 02:
or case has ever said that nine words alone, nine ambiguous words on a document that has since been released is sufficient to withhold it from the public for time immemorial.

[00:38:07] Speaker 02:
If that were the case, all congressional documents would effectively be withheld and that we'd have another exemption to FOIA that isn't in the language.

[00:38:15] Speaker 01:
So your position is that the agency should have produced more evidence to show that they didn't use this report?

[00:38:24] Speaker 02:
Yes, Your Honor, the agency should have produced evidence to show how they used it, how they didn't use it, where it did go, where it didn't go, where it's preserved to this day.

[00:38:32] Speaker 02:
We don't even in these declarations know where they got the report from.

[00:38:35] Speaker 02:
They don't even provide that information because arguably it was in a place that, by proper inference, any NSA employee, including apparently retired civilians, can access for the purpose of viewing.

[00:38:48] Speaker 02:
And in Rojas and in other cases, where is it stored?

[00:38:51] Speaker 02:
How is it preserved?

[00:38:52] Speaker 02:
they provided none of that and so they failed their burden at a fundamental level regardless of whether the test which test is applied.

[00:38:59] Speaker 01:
So you would have them prepare a declaration saying we didn't read the report after we received it?

[00:39:05] Speaker 02:
It only went to these handful of people.

[00:39:07] Speaker 02:
It was kept in a special Congress box.

[00:39:09] Speaker 02:
It never got used for any other purpose.

[00:39:11] Speaker 02:
We went and asked Congress before we published attack on the signature.

[00:39:15] Speaker 02:
They said that's OK and consistent.

[00:39:17] Speaker 02:
Any of that information, they could have provided, and they provided none of it.

[00:39:21] Speaker 02:
And so they're forcing Ms.

[00:39:22] Speaker 02:
Kanukin

[00:39:22] Speaker 02:
to effectively bear the burden of disproving the negative here with information that she obviously cannot obtain from NSA, and that's simply improper under FOIA.

[00:39:32] Speaker 02:
And for that reason, we would ask you to reverse the lower court and remand for disclosure.

[00:39:38] Speaker 03:
Okay, thank you.

[00:39:39] Speaker 03:
Thank you very much, Your Honor.

[00:39:40] Speaker 03:
We thank both counsel for the helpful briefing and argument.

[00:39:43] Speaker 03:
This case is submitted.