[00:00:00] Speaker 01:
Good morning.

[00:00:01] Speaker 01:
Good morning, Your Honors. May it please the court. My name is Cesar Kalinowski, and I'm appearing on behalf of the appellant, Michelle Kanukin. In this matter, I'd like to reserve five minutes for rebuttal.

[00:00:13] Speaker 01:
On June 18, 1967, Israel bombed a U.S. Navy ship that was running an intelligence operation for the NSA, killed 34 Americans, wounded over 170 more. 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 01:
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. 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 01:
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. It unequivocally controls the report.

[00:01:07] Speaker 04:
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 01:
Your Honor, the Supreme Court has already given us the test and the burden, and that's in Tax Analyst. And I understand that Tax Analyst was not a case about congressional records. It was a case about records from the court. And the distinction there is fairly immaterial, notwithstanding what the D.C. Circuit and or the lower court has found, because the judiciary is not subject to FOIA. The executive office, like in Kissinger, is not subject to FOIA. And so the Supreme Court in-tax analyst said the purpose for which something is created is irrelevant because it's whether the agency has created or obtained the documents.

[00:01:56] Speaker 01:
and is in control at the time that the request is made. And the burden is placed specifically on the agency to demonstrate and not the requester to disprove that it is an agency record. So there's a high burden. And so those are the things that the agency must show.

[00:02:15] Speaker 04:
So the D.C. Circuit has said what needs to be shown here is that Congress manifested a clear intent to control the document.

[00:02:26] Speaker 04:
Do you disagree with that test?

[00:02:28] Speaker 01:
Absolutely, Your Honor. As our briefing discusses at length, that test was created in Tax Analyst. It was in the D.C. Circuit's lower court case. In the Supreme Court, although they affirmed the ruling in that case, they specifically said that the creator's intent is irrelevant. There is no mens rea requirement. 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.

[00:02:56] Speaker 01:
what they intended to do or whether they intended or not to allow the documents.

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

[00:03:10] Speaker 01:
Yes, Your Honor. And neither is the judiciary. Neither, like the court in Rojas, this court in Rojas talks about, I mean, neither are private individuals. 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. 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 01:
In Kissinger, they looked at how were they used? Did 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 D.C. Circuit test looks at creators intent. That's something the Supreme Court has said. You can't D.C. Circuits never even address that. They just say we continue to follow this test that we created at the Supreme Court's implicitly.

[00:04:05] Speaker 04:
The Second Circuit follows the D.C. Circuit test, too.

[00:04:08] Speaker 01:
It does, Your Honor.

[00:04:09] Speaker 04:
So you're you you want us to do it. You can make that ask. I just am wondering, is that is that where this goes? You want us to basically disagree with the D.C. Circuit and the Second Circuit?

[00:04:19] Speaker 01:
Both the D.C. Circuit and the Second Circuit have adopted or maintained this intent test that is directly conflicts with the Supreme Court precedent.

[00:04:29] Speaker 02:
And what do you claim is the Supreme Court precedent?

[00:04:33] Speaker 01:
Tax analyst, Your Honor.

[00:04:35] Speaker 01:
Tax analyst is very clear on the test and the reasons that the D.C. Circuit has distinguished or claims. They never deal with tax analyst after that. They just keep saying the test over and over again. They never say. that the Supreme Court rejected intent. They don't address that. The Second Circuit doesn't address it. They just say Congress is special. Congress has oversight. Well, the judiciary has oversight. The executive, the office of the president has oversight over agencies.

[00:05:02] Speaker 01:
Individuals routinely provide information to agencies, and yet none of those entities are subject to FOIA. The test is not whether or not the individual or the entity that created it had some subjective intent. It's how the agency used it.

[00:05:17] Speaker 04:
Are we talking about the same intent, though? I mean, it seems like the intent that the Supreme Court was talking about in tax analysts was the intent for the agency to rely on the documents. Here, it seems like we're talking about the intent of Congress to maintain control of the documents. Is that not a distinction?

[00:05:33] Speaker 01:
It's not a distinction that matters, Your Honor, because the relevant question, and they talk about this in Foresham, they talk about this in tax analysts, the relevant distinction is what did the agency do with it? And so To the extent that the D.C. Circuit test is examining really what did the agency think it could do with it, maybe because Congress told it it couldn't do something, and did it comply with that mandate from Congress, that's a permissible potential factor to consider. 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 04:
Does this mean essentially that any time Congress – transfers a document to an agency, regardless of what it says, that document then becomes subject to FOIA?

[00:06:23] Speaker 01:
No, Your Honor. That's not the case. Congress does have the ability to hold on to documents for its purpose. And it knows how to do this. And we see other cases in which it explicitly says, this document is for you to show up and answer questions to us. You keep this separate. This is not a CIA document. This is not an NSA document. This is for you to answer questions to us or produce documents in response to our request. 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 04:
But so why is there not a continued restriction here based on the banner?

[00:07:02] Speaker 01:
Well, this gets back to the burden, Your Honor. And the burden is on the agency to disprove the idea that these are agency records and And ultimately, there is no evidence whatsoever that Congress, whether you want to look at an intent standard or otherwise, that Congress intended this to be only their record. 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 01:
It's on all of the reports. It hasn't been crossed out. You asked for that. It's not on the requester to disprove that. It's on the requester. And this is why the burden exists, Your Honor, is because in the context of FOIA, the agency holds all of the cards. They have the access to the documents. There's no discovery in FOIA. A requester can't demand that they turn things over, and so it puts the burden on the agency.

[00:07:57] Speaker 04:
Under your test, what should Congress have done to maintain the – control of this document to make it not subject to FOIA when they transferred it to the NSA?

[00:08:09] Speaker 01:
Well, that presumes that they wanted to, Your Honor, and there's no evidence.

[00:08:12] Speaker 04:
Let's assume that they wanted to. What should they have done?

[00:08:14] Speaker 01:
There are a number of cases and some of the D.C. Circuit cases talk about exactly. We see Senator Feinstein or we see the committee writing a full paragraph that says this is a congressional record. This is for the use with Congress. This is not a CIA record. Even after the committee, this has to be held in trust. And it says that routinely, and we see that in all of the cases now. There is nothing like that here. There's a document.

[00:08:39] Speaker 04:
The document is also decades old, 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 01:
Well – Because ultimately all that banner says is that it couldn't be released until authorized by the committee. And the only evidence that has now been entered is that it was in fact authorized for release by the committee. It's when Gene Yates, the NSA legislative director, requested a copy and they authorized its dissemination.

[00:09:10] Speaker 04:
Once that happened – Well, don't – aren't we talking about release beyond the agency?

[00:09:14] Speaker 01:
We're not, Your Honor. And the reason being is that a document – if that were the case, then they would have to specify – That being so. But the district court believed that, well, that means to the public. But the Congress cannot control necessarily, even if the agency engages in misconduct, Congress can't control what happens to that document. It is on Congress to ensure that it is clear and on the agency to comply. And here, all of the other evidence shows that the agency never considered this to be a congressional record.

[00:09:45] Speaker 03:
What do you do with the notes that they produced?

[00:09:48] Speaker 01:
The two notes, actually, Your Honor – Show that, in fact, there was no restriction whatsoever on the use or dissemination. The transfer memo does not click return. There's no restrictions on dissemination that are noted in there.

[00:10:02] Speaker 04:
And in fact, the agency consistent with what about the marking saying not for release and top secret? Well, that's the banner, Your Honor. The banner and again, excuse me, the top but the top secret was seemingly added by NSA.

[00:10:17] Speaker 01:
Well, there's no evidence of that, 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. All we have is this banner that they allege exists and these transfer notes. And Judge Piazza, in the transfer notes, there's no return required. And ultimately, the agency starts passing it around. It goes to the working group on the USS Liberty incident. It goes to the director. The director finds it interesting.

[00:10:48] Speaker 01:
He sends it to heads of other departments. Ultimately, it ends up in the crisis collection center at the NSA history section. It's not a special Congress folder. It's there for anyone to use. And there's no evidence that there's 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. There's no evidence that they went to Congress and said, hey, Congressman, We reference, we discuss this congressional report that's classified. Can we release this?

[00:11:19] Speaker 01:
They just do it. There's no evidence whatsoever that NSA believed Congress controlled this report or the information therein until it gets requested by FOIA. And post hoc justifications are simply insufficient.

[00:11:30] Speaker 03:
The only thing we really know about the transfer are the two notes. Is that right?

[00:11:36] Speaker 01:
Correct, Your Honor, that it was requested by NSA. and that it ultimately then was transferred around within NSA until it landed in a presumptively open location where two retired civilians were able to use it.

[00:11:49] Speaker 03:
And that's all it's in the record, is that right?

[00:11:51] Speaker 01:
And a lot of that has actually not been supplied by NSA, even though they have the burden. And so to answer your earlier question, Judge Bress, yes, to create a test that is consistent with the United States Supreme Court's case and jurisprudence, this court would create a split. With that said, it does not need to because the NSA had the burden to show even under the D.C. '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 02:
You mentioned that this report was used by two retired civilians, but it was for an NSA report that stayed with NSA?

[00:12:28] Speaker 01:
It did 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 report. rebuttal time, but I'll note 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 the SIGINTR, and it says not for dissemination until authorized by the NSA director.

[00:12:58] Speaker 01:
And yet we have that report in our hands because it was actually authorized. And so all evidence here shows that the report was not controlled by Congress and the NSA

[00:13:07] Speaker 03:
Let me just ask you one last question. As I understand it, the document was marked top secret on each of the pages, or somebody says it was?

[00:13:16] Speaker 01:
Yes, Your Honor.

[00:13:17] Speaker 03:
But I understand the agency's position to be – they're not relying on that, too.

[00:13:22] Speaker 01:
They're not, Your Honor. Right. I believe that's correct, and it's immaterial. In large part, they crossed that out and released that top secret information in the attack on the SIGINT report. And so there's not even evidence that it continues – They could have gotten evidence. They could have submitted other evidence. Things get automatically declassified after a certain time. 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 redacted under that.

[00:13:54] Speaker 01:
Thank you, Your Honor.

[00:13:55] Speaker 04:
Thank you. We'll put three minutes up for you on rebuttal. Thank you.

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

[00:14:07] 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. And here, the record looks quite different from what my friend on the other side has characterized it. 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. 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. And that's the reason why this document does not qualify as an agency record under FOIA.

[00:15:04] Speaker 03:
What do we do with the fact that NSA was able to use that document to produce the attack 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. So the factual answer is the evidence that the other side points to is that two retired agency employees with security clearances were at one point retained by the agency to produce a report for the agency. And this court's decision in the Anbank 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 03:
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 D.C. Circuit's decision in the ACLU case, those are the two cases addressing the CISI report.

[00:16:08] Speaker 00:
And that's a very analogous situation where 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. 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. And so that's what you have here.

[00:16:32] Speaker 02:
Mr. Xi, how do you handle the counsel, your friend's citation of tax analysts saying that tax analysts is contrary to those two circuit court cases?

[00:16:43] Speaker 00:
So tax analysts 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 district court decisions that were housed in the Department of Justice. 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. What weight to give to that distribution restriction? And so that's the reason why both the D.C. Circuit and the Second Circuit have rejected 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 plaintiffs' reading of tax analysts.

[00:17:37] Speaker 03:
Can I ask you, with respect to your factual explanation a minute ago, when they prepared the attack report, 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 03:
They felt free? They could just use it for that purpose?

[00:18:00] Speaker 00:
I don't know, Your Honor. To my recollection, the record doesn't contain any information about the circumstances of NSA's communications with Congress for that report. But I'll make something to be quite clear about is the attack report is not This may be an obvious point, but it's a critical one. The attack report is not the committee report that plaintiff wants.

[00:18:20] Speaker 03:
Oh, I understand.

[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 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. May we do that? And on the two instances in which Congress responded, Congress indicated that nothing had changed with respect to the banner.

[00:18:54] 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 04:
To what degree does the attack report reveal the contents of the HAC volumes?

[00:19:24] Speaker 00:
My understanding is the attack report cites the underlying committee report as a factual source. One of the declarations, I think, contains pages from the attack report that describe the 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.

[00:19:52] Speaker 00:
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.

[00:20:05] Speaker 03:
And that, let me ask you, is it as another factual question, is it, 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. So what we have in the record is two agency declarations, and you can see these. This is the D'Amelio Declaration at pages 111 and 112, 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. 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.

[00:20:54] Speaker 03:
And to the extent that it was stamped top secret, was that also placed there by the Congressional Committee, or was 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, 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 03:
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. But NSA certainly isn't arguing that it was Congress's decision to say also top secret.

[00:21:40] Speaker 03:
Let me ask you this. Do you think we should adopt the D.C. circuits test?

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

[00:21:48] Speaker 03:
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. As a disclosure statute, full stop, that's not an accurate description of FOIA. FOIA respects 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, 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 opposing counsel's reading of tax analysts is incorrect, is because there are very significant policy questions raised when an entity that's not subject to FOIA, that has a constitutional prerogative to conduct oversight over the executive branch, has expressly indicated that it wants to retain control over a document.

[00:23:01] Speaker 00:
And the argument on the other side is unless Congress incants some magic words, that document just suddenly becomes an agency record. 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 over the executive branch or ceding control over the records that it itself produces. And so it's for that reason that the D.C. 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. You also don't need to take just my word for it. At prior stages of this litigation, a plaintiff actually agreed that the D.C. Circuit and the Second Circuit supplied the correct test for circumstances like this. And it wasn't until subsequent proceedings that plaintiff altered the 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 and the D.C.

[00:24:10] Speaker 00:
Circuit had got the test correct, I think just underscores that this court in this case should adopt that test as well.

[00:24:21] Speaker 04:
The plaintiff says that the banner basically is that the banner's conditions no longer apply because it has been released. It was released to the NSA. It was released outside of Congress, and so therefore that's a different interpretation of the banner that supports them. 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. The plain text of the banner says not for release unless and until authorized by committee. It does not say – it doesn't put any sort of qualifiers on that. And what they're asking for is release of the report.

[00:24:58] Speaker 04:
But I think they say what has been released, it was released to the NSA.

[00:25:02] Speaker 00:
That's true, Your Honor. 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, right? The banner speaks much more broadly than that and talks about release generally. 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. 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, 2020, and then I think in 2024, the agency, when confronted with a request for public release, went to Congress.

[00:25:50] Speaker 00:
to ask Congress for its views.

[00:25:53] Speaker 04:
And so everything in the record – 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. You'd think there might be a more robust process that could be undertaken for something like that.

[00:26:07] Speaker 00:
I can't speak to what sort of process Congress might put in place, Your Honor. 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, 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 like lined through the banner saying, before handing it over to the agency.

[00:26:46] Speaker 04:
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?

[00:26:54] Speaker 00:
I'm sure the agency would have taken that into consideration. I don't know what the agency would have done in that circumstance. But, you know, it certainly would be consistent with the banner for the agency to check with Congress. And the fact that the agency checked with Congress just underscores that the banner just means what it says.

[00:27:12] Speaker 04:
Is there not any kind of more established I don't know how often this comes up. Obviously, we've never had a case on this, but is there not some more established or formal process for going to Congress and checking?

[00:27:23] Speaker 00:
I don't know, Your Honor. I know that this was the process that was followed in this case, and I just – 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? Oh, absolutely. Right. Because the reason why I guess we're here is because plaintiff, for whatever reason, hasn't succeeded in getting this report from Congress. And so that's why plaintiff is taking this sideways approach of trying to get through FOIA, a document that, you know, conceitedly 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. One copy of this report is in the possession of the agency.

[00:28:32] Speaker 03:
You know, I realize this took place, you know, over 60 years ago. Is that what the timeline is? That sounds right, Your Honor. Yeah, you know, it seems kind of, Even back then, you would think that a report like this over a very serious political incident or international incident, that when the document was – when the two volumes were transferred to the NSA, that it would have been done a little more formalistic. 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. The first is factual, and the second is, again, legal. 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. 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. And I'd also point, Your Honor, to the Goland case.

[00:29:31] Speaker 03:
Why don't you come over and take a look at this document? It's got some interesting information. They could do that, Your Honor, but... You know, 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, you know, circulated around the NSA and various people.

[00:29:47] Speaker 00:
Yeah, but none of the internal use of the report undermines the 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 release? Is it the agency or is it Congress? And here the evidence points to Congress. I'd also direct, Your Honor, to the – this is the legal response to the Goland case from the D.C. Circuit.

[00:30:15] Speaker 03:
Which one?

[00:30:15] Speaker 00:
The Goland case from the D.C. Circuit. I'm sorry. I just noticed that my time was up. May I complete this answer? Thank you, Your Honor. And in the Goland case, we similarly had a national security report produced by Congress. 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. So that was the evidence before the D.C.

[00:30:41] Speaker 03:
Circuit and the transcript.

[00:30:43] Speaker 00:
Yes. And the D.C. Circuit said, well, there, nonetheless, we have a clear manifestation of congressional intent. And, yes, the facts here are slightly different, but we have a much clearer banner that 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.

[00:31:04] Speaker 04:
Before you sit down, what is the government's position on the reference to the report being purloined in the memorandum?

[00:31:12] Speaker 00:
So we haven't taken a view on what that means exactly, but we don't see a world in which that helps plaintiffs.

[00:31:20] Speaker 00:
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. I'm not sure you'll have to ask them, but If purloined 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. So we haven't relied on purloined.

[00:31:51] Speaker 00:
In this case, but we don't see how, you know, if this court were to look at purloined, it could help plaintiffs make a case even under plaintiff's test. Why have you not relied on it? Because you don't know what it means? We don't know. The record doesn't say.

[00:32:03] Speaker 00:
What we know about purloined was disclosed in the declarations and the supplemental disclosures. 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. 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 Congress's control.

[00:32:32] Speaker 02:
Release.

[00:32:33] Speaker 02:
The word public isn't isn't in the banners.

[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.

[00:32:45] Speaker 00:
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 publicly.

[00:32:53] Speaker 02:
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 Purloin might mean that, Your Honor. The frank answer, Your Honor, is just we don't know because, as Judge Pius pointed out, all of the events occurred many decades ago. And so that's the reason why we're not speculating about what purloined entails. But, you know, if Your Honor is right that what purloined means is that somebody at NSA purloined the document from Congress, then, you know, 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, you know, we don't see this as a mark in our favor, but certainly it's not a mark in theirs.

[00:33:47] Speaker 04:
Okay. I think we've exhausted our questions. Thank you very much, and we'll hear rebuttal.

[00:33:56] Speaker 01:
Thank you, Your Honors. 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. 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. They could have found other documents.

[00:34:16] Speaker 04:
Are these people alive?

[00:34:17] Speaker 01:
They are alive, Your Honor. And we've even presented evidence of that. And they could have gone and talked to individuals at Congress.

[00:34:24] Speaker 01:
And they could have gotten declarations from individuals at Congress. All they rely on is a declaration that says we think this is a congressional record. And that's the case every single time that they withhold the documents.

[00:34:36] Speaker 04:
That's why they're withholding it. I mean, what they're saying is there's a banner that says not for release. So I think their position would be what more do you want us to have to come forward with?

[00:34:45] Speaker 01:
Right. Well, and under the case law, including in this court's case in Rojas, it is the use. In Forsham, it's the use. In every other Supreme Court case, it's the use regardless of where it was obtained from. And the NSA has already conceded they lawfully obtained it. Briefly on the Purloin thing, that's a note from Lieutenant Kozak. We don't know what he meant there. They have not provided any evidence despite their burden to do so. But that was not from the committee. The committee, we have the transfer report from Gene Yates, and that says this is at your request.

[00:35:16] Speaker 01:
Here's the report. The document that references Purloined 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 04:
So how do you think Purloined helps you or do you think it doesn't?

[00:35:31] Speaker 01:
I think it doesn't matter, Your Honor, because it is the agency's use that matters. Even this court in Yorha said misconduct, if they're using it even in a way they're not supposed to, they use it for agency purposes, then it becomes an agency record. And there's a lot of reasons for that. Under opposing counsel's theory, under the NSA's theory, they could use it for every single purpose. It could be the linchpin document the 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 01:
It isn't that. It is how the agency used the document, where they stored it. That's every single case that has been examined. And the agency could have, under its burden, gotten a declaration from Congress. If Congress was so worried, they could have submitted a declaration, even though it would be still legally insufficient.

[00:36:21] Speaker 03:
Let me ask you a question. Suppose we were to conclude that that banner is ambiguous.

[00:36:29] Speaker 03:
What happens?

[00:36:30] Speaker 01:
Well, under FOIA and Rule 56, Your Honor, the inference would go in Ms. Knukin's favor that that banner taken in the proper inference is that it was, as Judge Baia 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 there was some other intent to control.

[00:36:49] Speaker 03:
Would there have to be any fact finding?

[00:36:52] Speaker 01:
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 there is no additional fact-finding, and the government doesn't continue to get bites at the apple. They have a burden. They've failed to meet that burden, and the document should be disclosed. And there is no case, definitely not Golan, where it was in an executive session. It said this is for internal purposes only. CIA presented evidence that it kept it in a special Congress-only box. There's none of that here.

[00:37:21] Speaker 03:
Let me ask you this other question. If we were to agree with the D.C. Circuit's test, do you lose?

[00:37:28] Speaker 01:
I would say we still win, Your Honor, because, again, the only evidence of congressional intent – and D.C. Circuit requires clear evidence of intent to retain control. And then it still, as the second part of the test, looks at actually how they were used. Because the agency, if it misuses it, can turn it into an agency document – even if it's not supposed to. And so the D.C. Circuit looks at both of those, and here all of the evidence taken with the proper inference is in our favor. And no D.C. Circuit test 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 01:
If that were the case, all congressional documents would effectively be withheld, and then we'd have another exemption to FOIA that isn't in the language.

[00:38:15] Speaker 02:
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 01:
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. We don't even in these declarations know where they got the report from.

[00:38:36] Speaker 01:
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. And in Rojas and in other cases, where is it stored? How is it preserved? 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 02:
So you would have them prepare a declaration saying we didn't read the report after we received it?

[00:39:05] Speaker 01:
It only went to these handful of people. It was kept in a special Congress box. It never got used for any other purpose. We went and asked Congress before we published attack on the signature. They said that's OK and consistent. Any of that information they could have provided and they provided none of it. And so they're forcing Miss Kanuken 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. And for that reason, we would ask you to reverse the lower court and remand for disclosure.

[00:39:37] Speaker 04:
Okay. Thank you. Thank you very much, Your Honor. We thank both counsel for the helpful briefing and argument. This case is submitted.