[00:00:01] Speaker 03:
Case number 22-5231, Barbara Goll, a balance versus United Department of Justice et al.

[00:00:08] Speaker 03:
And case number 22-5287, Barbara Goll, a balance versus United States Department of Justice and Drug Enforcement Administration Freedom of Information Request, PA units.

[00:00:20] Speaker 03:
Mr. Kelly for the balance.

[00:00:22] Speaker 01:
Good morning, Mr. Kelly.

[00:00:27] Speaker 00:
Good morning, Your Honors.

[00:00:28] Speaker 00:
May it please the court, Matthew Kelly for plaintiff and appellant Barbara Kowal.

[00:00:35] Speaker 00:
Your Honors, as you know, the goal of FOIA is to open the federal government agencies and their records to public scrutiny.

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As the Supreme Court has said, it is a disclosure statute, not a withholding statute.

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The government has the burden to justify its withholding.

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In this case, plaintiff appellant Barbara Kowal is seeking records from three federal law enforcement agencies to aid in the appeals of a federal death row inmate, Daniel Troya.

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Releasing these records will shed light on how DEA, FBI, and ATF performed their statutory duties in this capital murder case.

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Burdens of persuasion, production, and proof are key to both appeals.

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Kowal has met hers.

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The court should remand so that the government can be required to meet its burdens.

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I'd like to focus on just a few of the most important examples.

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First, I'd like to discuss the erroneous attempt to shift the burden on the public domain doctrine.

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Next, I will discuss how COWAL has met her burden to show that the inadequacies in the searches performed by the DEA, FBI, and ATF, and the government has not met its burden to show beyond material doubt that their searches were reasonable.

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Then regarding the law enforcement privacy exemption 7C, I will discuss how Cole has met her burden to show the public interest overrides any minimal privacy interest held by witnesses who testified in Mr. Troy's trial.

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Finally, I will highlight that the government has not met its burden to show the cooperating witnesses who testified spoke to agents under express or implied assurance of confidentiality.

[00:02:08] Speaker 00:
First, for the public domain doctrine, a large portion of the information being withheld in this case should be released under the public domain doctrine.

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The public domain doctrine holds that the government can't withhold information that's public if it's in a judicial record, for example.

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The binding law of this circuit is that the information is in the public domain.

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It cannot be withheld even if a FOIA exemption would otherwise apply.

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But it has to have been disclosed and maintained in a permanent

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public record, and it has to be an exact copy of what is in the public.

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And I'm not sure you've made that show.

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Judge Pillard, the standard is that it is information that is in the public domain rather than a document by document analysis.

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The burden that the plaintiff has in this situation is to

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identify specific information in the public record that appears to duplicate that being withheld.

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It's not an impossible burden.

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The plaintiff can't know precisely what is in the government documents that the government is withholding.

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So her burden of production in this matter is to show that there is specific information that appears to duplicate what apparently is being withheld.

[00:03:32] Speaker 00:
She has done so.

[00:03:33] Speaker 02:
Is there a threshold showing this case that the exhibits continue to be available in the clerk's office or on the public docket or elsewhere publicly?

[00:03:45] Speaker 00:
I don't believe so, Your Honor, but I don't believe that that matters.

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For example, this court's holding in Cotone versus Reno says that in that case, the issue was tapes that were played at a trial.

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This court said that once a tape was played at trial, it became part of the public domain, period, permanently.

[00:04:08] Speaker 02:
But it had to be maintained.

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I'm looking at the same case.

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It has to be maintained in a permanent public record.

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And so I'm just wondering whether you have identified where the relevant material is maintained in a permanent public record.

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It would be maintained in the clerk's office in the Southern District of Florida, although I think that once- Have you shown that?

[00:04:34] Speaker 02:
And if you have, I've missed it, so just point me to- Yeah, I don't believe that we have, Your Honor.

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But I also don't think that the record keeping practices of district courts should override the fact that once something is put forward, put into the public domain in a public trial, it is public.

[00:04:58] Speaker 02:
But we have this other case, Students Against Genocide versus Department of State 257, F3, 828, in which we noted that even documents that were displayed in public but not released and permanently available, those fall outside the public domain doctrine.

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Students Against Genocide is very easily distinguishable.

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The records at issue in that case were photographs that the US UN ambassador showed in a, I believe a UN Security Council hearing.

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They were not made part of the record of that hearing and were not otherwise made public.

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That was not a federal trial.

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Obviously,

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the FOIA and the First Amendment and common law rights of access to records in this country don't apply to the United Nations.

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So that's a very different case, Your Honor.

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And as this Court noted in Catone, because of the common law and First Amendment rights of access to judicial records, there is a public right of access to these records regardless.

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And

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That is another reason why they are in the public domain.

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The public has an independent right under the common law in the First Amendment to access these judicial records.

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So the facts inside them shouldn't be able to be withheld by the government under FOIA.

[00:06:23] Speaker 02:
Mr. Kelley, I have a question about your argument about the adequacy of the searches, and in particular, the failure to search for the alias.

[00:06:33] Speaker 02:
The request is framed as seeking all documents, files, records pertaining to any investigation, arrest, indictment, conviction, sentencing, incarceration, and or parole of Daniel Troia, AKA.

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And I guess my question is, is there any reason to believe that any of the agencies would maintain a file or document relating to this individual's investigation, arrest, indictment, conviction, sentencing, incarceration, and or parole under an alias?

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The question is not necessarily whether they would keep a record specifically listed under that alias and nothing else.

[00:07:23] Speaker 02:
Why not?

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The issue is, did they do an adequate search that would capture all of the relevant records?

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But the relevant records, as your request defines them, are records of governmental action, investigative or arrest or prosecutorial action directed at this individual.

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And so is it possible that there is an arrest record or an investigation record that is kept under the name Homer as opposed to one that is kept under the name of Daniel Troia?

[00:08:06] Speaker 00:
Well, we've cited in our papers a number of cases in which the government did do searches using aliases.

[00:08:13] Speaker 02:
Right.

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There are situations in which an alias search will, in fact, turn up documents.

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And here, if it was any documents mentioning in any way, Mr. Troia, AKA Homer,

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then it seems to me much more plausible that a text search would turn up something different if he's one of the people present when someone else is being surveilled.

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And so it's going to be the other person.

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It's indexed under the other person's name.

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But some guy named Homer is there.

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You could see a text search in ECF turning

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that record up, but that is not a record pertaining to an investigation arrest or the like of Homer.

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It's a record in which his name shows up, but it's pertaining to an investigation of someone else.

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So I'm just saying that the way that you framed the request, I'm trying to imagine how a search using the alias could plausibly turn up documents that were turned up under the name search.

[00:09:19] Speaker 00:
Well, I think that the law is that the government has to interpret FOIA requests broadly.

[00:09:26] Speaker 00:
And if you narrow it to kind of parsing the word pertaining to, yes, perhaps that would limit the search to documents that are kind of indexed to that person and that person and indexed to that person rather than other documents indexed to other people that might mention

[00:09:49] Speaker 00:
either Mr. Troia or him by his alias of Homer.

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And it's that second category of documents that we believe should be part of this request.

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Perhaps the request was not worded as artfully as it should have been.

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But the fact remains that the government has an obligation to interpret requests broadly and not narrowly.

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And we don't believe that that was done.

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So are you asking us to drop any investigation, arrest, indictment, conviction, sentence, incarceration, and or parole of?

[00:10:24] Speaker 02:
Is that the lenience that you want in terms of how we read the request?

[00:10:29] Speaker 00:
not drop that from the request, but interpret it broadly as being seeking records pertaining to that individual, whether it's indexed under his name or not.

[00:10:44] Speaker 04:
Mr. Kelly, why isn't the solution to that to just simply bring to file a different

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FOIA request, a second FOIA request for that precise information.

[00:10:53] Speaker 00:
That's certainly something that could be done, Your Honor.

[00:10:57] Speaker 00:
I think that in the interest of efficiency.

[00:11:01] Speaker 04:
Is it really efficient to come to court and litigate all of this before bringing a second request to the agency?

[00:11:07] Speaker 04:
Maybe that would simply just turn up what you're looking for.

[00:11:11] Speaker 00:
Well, I think that, as you know, there are a number of issues in this case.

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And I think litigating through the issues in, indeed, it's two consolidated cases, litigating through all of these issues once is better than multiple times.

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And I think that's one of the reasons why the government is required to

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interpret FOIA requests broadly because we don't want to have to be litigating these things again and again and again.

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I don't think that's a good use of the government's resources or the judiciary's resources.

[00:11:50] Speaker 04:
I mean, broad is one thing, but simply ignoring the limitations that a party puts on its quest in terms of what it's looking for.

[00:11:57] Speaker 04:
I mean, if a party seeks certain type of information, I don't think the government is required to boil the waters

[00:12:04] Speaker 04:
in order to interpret it to mean anything that might refer to an individual mentioned in the FOIA request.

[00:12:10] Speaker 04:
I mean, that doesn't seem efficient for the government or for taxpayer resources in responding FOIA requests.

[00:12:17] Speaker 00:
Yeah, true.

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And we're not asking the government to boil the ocean, your honor.

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But what we are saying is that in this case, the request

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I think reasonably interpreted broadly as the law requires would pertain to those records that are not indexed directly under Mr. Troy's name.

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And there's another problem with the searches too, and it's I think a larger one, and that's the fact that none of the searches turned up any multimedia documents, no photographs, no recordings, no audio recordings, no video recordings, nothing like that.

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And despite the fact that the request specifically requested those kinds of materials and in the court below, Ms.

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Cowell provided a list of 200 such materials that the judge acknowledged reading in the DEA case and said that it provided some support for the idea that the search wasn't

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uh, diligent enough because it did not turn up these whole entire categories of types of records.

[00:13:30] Speaker 00:
Um, but, uh, the court below said that, uh, just because Ms.

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Coel has them doesn't mean that the DEA still has them.

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But that begs the question, uh, does the DEA still have them?

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The judge's question assumed that that's DEA did in fact have them at some point.

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Uh, and only the DEA can answer that question.

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They're the agency that holds the documents that are being withheld.

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We can't know what the agency is.

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And I think that the case should be remanded, among other things, to determine whether the fact that there were no multimedia files produced shows that the searches were inadequate.

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And we believe that that is the case.

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If I can move to, I see that I am in my rebuttal time, and unless your honors have any other questions, I will turn it over to the government.

[00:14:37] Speaker 03:
Mr. Simon.

[00:14:44] Speaker 01:
May it please the court, Jeremy Simon with the U.S.

[00:14:47] Speaker 01:
Attorney's Office on behalf of the appellees.

[00:14:49] Speaker 01:
I would like to just address the two principal issues that counsel has addressed to the court just now.

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On the public domain issue, the principal argument concerns the playing of these recordings in court.

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But the document they're seeking to obtain under the public domain exception based on those recordings is not court recordings or not

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tapes of recordings, or even a transcript of recordings.

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It is a narrative summary of a case initiation that is a compilation of information from a variety of sources and techniques.

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And the court can see that description in the Vaughn index in the appendix in 22.5231 at the appendix 215 to 216.

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And the declaration that discusses that is at appendix 190

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paragraph 15 and then there's also some other paragraphs to talk about other FOIA exemptions being asserted over the same information which again demonstrates this is a compilation of information from a variety of sources so the exactitude requirement of the public domain doctrine does not apply.

[00:16:04] Speaker 01:
In terms of the the other sort of iteration of the public what they call public domain are the

[00:16:11] Speaker 01:
the names appearing in the names of people who testified at trial.

[00:16:17] Speaker 01:
That is addressed very clearly by this court already in the Crew v. DOJ case, 854 F3D 675.

[00:16:25] Speaker 01:
That's really not a public domain argument.

[00:16:28] Speaker 01:
The court in that case very clearly said that individuals who testify at trial still have a privacy interest in not being connected to specific documents in a criminal investigative file.

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I also just want to emphasize the public domain doctrine is a narrow exception.

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Therefore, a very specific showing is needed by the case law in order for the plaintiff or the requester to meet their burden.

[00:16:56] Speaker 02:
Mr. Simon, I have a question about the government's arguments under Exemption 7D regarding confidential sources.

[00:17:04] Speaker 02:
And the Supreme Court in London rejected

[00:17:10] Speaker 02:
how did board of all certain witnesses are gonna be treated as having implicit assumption of assurance of confidentiality?

[00:17:21] Speaker 02:
How does that not defeat the government's position here?

[00:17:28] Speaker 01:
I believe, Your Honor, that Londono, in that case, I believe the government had said, anyone who speaks to the FBI is entitled to implicit confidentiality.

[00:17:38] Speaker 01:
And the Supreme Court said that is not sufficient.

[00:17:41] Speaker 01:
But the Supreme Court recognized that there could be certain categories of cases where the implication would be established.

[00:17:51] Speaker 01:
And in this court's case, Hodge versus FBI,

[00:17:55] Speaker 01:
uh, the court held that a violent, the violent nature of a crime where there's a threat of reprisal, uh, which this crime fits squarely.

[00:18:04] Speaker 01:
It's a, a, a murder of a family on a roadside, uh, in connection with, uh, overarching, um, drug, uh, operation, um, violent drug operation.

[00:18:17] Speaker 01:
So when you have that type of, um,

[00:18:21] Speaker 01:
that there is an implied confidentiality.

[00:18:30] Speaker 01:
In terms of the search regarding the overlooked record issue the council raised.

[00:18:38] Speaker 01:
Just to note, first of all, that document, the list, only was provided in the DEA case.

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It wasn't provided in the ATF slash FBI one that's under 22.5231.

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But aside from that, the list is in the appendix for the DEA case at appendix 129 to 33.

[00:18:57] Speaker 01:
And if you look at that list, Council or Caldwell has said it's 200 overlooked records.

[00:19:04] Speaker 01:
But there's nothing to indicate that

[00:19:06] Speaker 01:
they were ever in the possession of DEA.

[00:19:10] Speaker 01:
And if you look at the titles of the types of documents that are listed there, I think only a handful have DEA in the title.

[00:19:18] Speaker 01:
Many of them relate to prison calls or the activities of state and local law enforcement.

[00:19:24] Speaker 01:
Court may recall there were approximately four state and local law enforcement entities involved in this investigation.

[00:19:31] Speaker 01:
And so they have not met the burden to show

[00:19:36] Speaker 01:
that to the extent anything could be established from there is that there was just a handful of documents with the DEA in the title and the court's case law.

[00:19:46] Speaker 02:
I'm sorry.

[00:19:46] Speaker 02:
You said there were four state and local law enforcement agencies.

[00:19:49] Speaker 02:
In other words, in addition to the three defendant agencies in this appeal, there was a state law enforcement agency involved.

[00:19:57] Speaker 01:
in the investigation of this crime.

[00:20:00] Speaker 02:
So is the implication that the multimedia information that they're seeking and that they're pointing to as overlooked documents that call into question the reliability of the search, is your implication that those were generated and are maintained by a state agency?

[00:20:17] Speaker 01:
That is certainly a possibility.

[00:20:19] Speaker 01:
And I think the titles of those documents, a lot of them refer to detectives from the various state and local law enforcement agencies.

[00:20:29] Speaker 01:
would certainly create that implication, but ultimately it's the plaintiff's burden to show that there was some indicia on these documents to suggest that the source was DEA.

[00:20:43] Speaker 02:
So wasn't there, though, an exhibit list in a federal case that listed some or more of these documents?

[00:20:51] Speaker 02:
And I thought that was

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was evidence that these are in the perception of the federal officials.

[00:21:02] Speaker 01:
Well, I think the document I'm referring to, Your Honor, is at appendix 129 to 33 in 22.5278, I believe the case number.

[00:21:17] Speaker 01:
That's the list that the district court understood to be Alwell's list of the so-called overlooked materials that they allegedly have in their possession from their criminal discovery file that were not produced.

[00:21:32] Speaker 02:
But then there's an assertion, I believe, that there was an exhibit list on which some of these documents appeared.

[00:21:41] Speaker 01:
That, I believe, Your Honor, pertains to the public domain argument where

[00:21:46] Speaker 01:
Caldwell was trying to suggest that documents had been entered in evidence as exhibits, and therefore the government has no basis to withhold them, even though they would otherwise be exempt because they relate to third parties.

[00:22:02] Speaker 01:
And that was, I believe, in the context of the public domain argument, not in the context of the search.

[00:22:12] Speaker 01:
If the court has no further questions,

[00:22:17] Speaker 01:
we would just rest on our briefs and ask that the judgment below be affirmed.

[00:22:25] Speaker 03:
Thank you.

[00:22:35] Speaker 00:
I'd like to start with government council's citation to the crew case.

[00:22:42] Speaker 00:
The one cited to is essentially kind of the second iteration.

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of that case.

[00:22:49] Speaker 00:
And what the Council for the Government did not mention was that in that case, this court held that the presumption against disclosure of the names of third parties in law enforcement documents does not apply to people who have been publicly identified, including via testimony in open court, as having been charged, convicted, or otherwise implicated in a crime.

[00:23:16] Speaker 00:
That's at 584 F third, excuse me, 682.

[00:23:23] Speaker 00:
So even the case that their sightings shows that the privacy interests that people who testify at trial, for example, are minimal.

[00:23:37] Speaker 00:
They're not zero, but they are minimal and they are

[00:23:41] Speaker 00:
overcome by a showing of public interest in the records that are being withheld.

[00:23:51] Speaker 00:
And we have shown that the interest here is showing how these law enforcement agencies perform their statutory duties in a capital case.

[00:24:00] Speaker 00:
Secondly, counsel for the government

[00:24:04] Speaker 00:
acknowledged that some of the multimedia records on the list provided to the court do have indications that they were from the DEA.

[00:24:16] Speaker 00:
That's enough.

[00:24:17] Speaker 00:
That's not zero.

[00:24:18] Speaker 00:
I would submit that that is enough to remand and require the government to do a diligent search that it should have done in the first place.

[00:24:29] Speaker 00:
We don't have the burden to show

[00:24:33] Speaker 00:
you know, by name and number, every single document that they didn't provide.

[00:24:39] Speaker 00:
Our argument is they did not provide an entire category of types of materials.

[00:24:45] Speaker 00:
And that is evidence that the search itself was inadequate.

[00:24:51] Speaker 00:
I see my time has expired.

[00:24:53] Speaker 00:
Thank you, Your Honor, very much.