[00:00:01] Speaker 06:
Case number 23-5244.

[00:00:04] Speaker 06:
Gary Sebastian Brown III, at balance, versus Federal Bureau of Investigation.

[00:00:09] Speaker 06:
Mr. Wesniewski, amicus curiae, for the at balance.

[00:00:12] Speaker 06:
Mr. Brown, for the at balance.

[00:00:14] Speaker 06:
Ms.

[00:00:14] Speaker 06:
Smith, for the appellate.

[00:00:17] Speaker 06:
Good morning.

[00:00:19] Speaker 03:
Good morning.

[00:00:23] Speaker 06:
Whenever you're ready.

[00:00:24] Speaker 03:
Thank you, Your Honor.

[00:00:25] Speaker 03:
Good morning, and may it please the court.

[00:00:27] Speaker 03:
I've asked to reserve one minute for rebuttal.

[00:00:30] Speaker 03:
This appeal raises two familiar and persistent issues with agencies FOIA responses.

[00:00:36] Speaker 03:
First, the agency narrowly construed Mr. Brown's request to exclude documents responsive to his request, namely by redefining accounts, narratives, and statements to mean simply interviews.

[00:00:48] Speaker 03:
Second, the agency failed to separately and specifically identify the harm that it reasonably foresees would result from the disclosure of the information withheld, particularly with respect to Exemption 70.

[00:01:02] Speaker 03:
FOIA is a way, sometimes the only way, for citizens to understand what their government actually is doing.

[00:01:08] Speaker 03:
The presumption under multiple statutory amendments is always in favor of transparency and disclosure

[00:01:14] Speaker 03:
District court's errors in carrying out that statutory mandate require reversal and remand.

[00:01:20] Speaker 03:
I'd like to turn to the first issue of scope.

[00:01:22] Speaker 03:
And before I discuss some of the more textual discussions that the parties have had, I want to just frame a little bit what the standard is here, because it's not an exercise in statutory interpretation.

[00:01:34] Speaker 03:
This court's precedents have repeatedly said that FOIA requests are to be construed liberally.

[00:01:39] Speaker 03:
And in Lacedra, this court indicated that

[00:01:42] Speaker 03:
If a FOIA request is reasonably susceptible to two interpretations, one broader and one narrower, then the agency and the court should adopt the broader reading.

[00:01:52] Speaker 03:
I think once you put that in context here, there actually shouldn't be much debate that the FBI erred in construing Mr. Brown's request narrowly.

[00:02:00] Speaker 03:
Put simply, Mr. Brown asked for three things, accounts, narratives, and statements.

[00:02:06] Speaker 03:
And the FBI gave him something different, a fourth thing, interviews.

[00:02:11] Speaker 07:
Now there has been some discussion for those those things provided by witnesses.

[00:02:18] Speaker 07:
So it's not just.

[00:02:21] Speaker 07:
You know they have to be things that are provided by.

[00:02:24] Speaker 03:
Yes, Your Honor, I agree.

[00:02:26] Speaker 03:
And I do think even implicit in accounts, narratives, and statements, even if it wasn't qualified by saying these are from witnesses, those terms I would agree indicate that the information is coming from a witness.

[00:02:40] Speaker 03:
But the FBI, again, to the extent there's any ambiguity about is there a difference between interviews on one hand and account statements and narratives on the other hand,

[00:02:52] Speaker 03:
I think any ambiguity there is a consequence of the FBI choosing in the Seidel Declaration and in its scoping step to use the criteria of interview instead of account, narrative, and statement, which is what he asked for.

[00:03:06] Speaker 03:
The FBI has suggested or asked if there are any documents that are excluded from that search that they think would be in account statements or narratives but aren't in interview.

[00:03:17] Speaker 03:
We don't know the answer to that, and the FBI hasn't told us.

[00:03:20] Speaker 03:
What we do know, though,

[00:03:22] Speaker 03:
is that the search as they described it is not for account statements or narratives, but instead for witness interviews.

[00:03:29] Speaker 03:
And the question importantly is not whether there are any such documents because of course Mr. Brown can't know the answer to that.

[00:03:35] Speaker 03:
The question is the threshold issue of did the FBI correctly interpret and apply the scoping determination of the FOIA request consistent with this court's precedent.

[00:03:45] Speaker 03:
And respectfully, whatever arguments or discussions the parties may have about the sort of semantic distinctions between those two or three things, I think it is clear that the FBI at least has represented in the Seidel declaration.

[00:03:58] Speaker 03:
And as it has described the search has gone more narrowly than counts narratives or statements.

[00:04:06] Speaker 04:
Council when Mr. Brown received the first 19 documents,

[00:04:12] Speaker 04:
and responded that that was not adequately responsive to his request.

[00:04:18] Speaker 04:
In that letter, I believe, I don't have it in front of me, but you'll know where it is.

[00:04:22] Speaker 04:
In that letter, I believe he again referred to interviews.

[00:04:28] Speaker 03:
He may have revert, I have to look at that particular letter.

[00:04:31] Speaker 03:
I know that the original FOIA request, Your Honor, does not use the term interviews anywhere in it.

[00:04:37] Speaker 03:
At any point, it does stay as as Judge Rock correctly pointed out.

[00:04:40] Speaker 03:
It does say witness account statements and narratives, and then it goes on and says again later.

[00:04:46] Speaker 04:
Well, perhaps before you come back for your reply, you could locate that we can talk.

[00:04:51] Speaker 04:
I won't.

[00:04:52] Speaker 04:
Yes, your honor.

[00:04:53] Speaker 07:
Mr. Wisniewski, it doesn't say witness accounts, narratives or statements.

[00:04:58] Speaker 07:
It says accounts, narratives or statements provided by a witness.

[00:05:01] Speaker 07:
So so that seems to suggest not something like a 911 call that was just

[00:05:08] Speaker 07:
you know, that happened to be recorded.

[00:05:10] Speaker 07:
It has to be provided by a witness.

[00:05:13] Speaker 07:
I think that the words provided by do some real work, or at least it was reasonable for the FBI to construe that as something formally provided by a witness, like an interview.

[00:05:26] Speaker 03:
Yes, Your Honor.

[00:05:26] Speaker 03:
And just to clarify, the FOIA request, I certainly agree, obviously, with your recitation.

[00:05:32] Speaker 03:
It says witness accounts, narratives, or statements provided by witnesses.

[00:05:36] Speaker 03:
So it's on both sides there.

[00:05:38] Speaker 00:
It's on both sides, OK.

[00:05:39] Speaker 03:
So I take the point, though, which is that I think what Your Honor is saying, I think, correctly is that there's a reasonable interpretation that this is going to be information that comes from a witness, not information that comes from some other source.

[00:05:54] Speaker 03:
And so in that respect, I think it could be reasonable for the FBI to exclude some things that are not sourced from witnesses.

[00:06:02] Speaker 03:
So if it's security footage of the incident, I don't think that's responsive.

[00:06:09] Speaker 03:
But what we don't know is included is things like written witness statements, which I don't believe would be included in the definition of interview, but I don't know.

[00:06:18] Speaker 03:
Maybe the FBI can tell us.

[00:06:21] Speaker 03:
Summaries by FBI interviewers or local agencies officials of a compilation of interviews.

[00:06:28] Speaker 03:
No, we interviewed 10 people, and here's what we learned from those 10 people.

[00:06:33] Speaker 03:
Something like that that would summarize the information.

[00:06:36] Speaker 03:
And again, we don't know if there's other things that were excluded, because all we know is that the FBI narrowed it to interviews and searched for FD302s.

[00:06:45] Speaker 03:
That's the totality of the information we have about the scoping.

[00:06:49] Speaker 04:
Do we know that the CRS search, Sentinel search, turned up more documents than were turned over in any

[00:06:59] Speaker 03:
I think that is certainly implied by Mr. Seidel's declaration, where he says that you undertake the CRS search, and then there is a second scoping step, where an analyst actually has to review the responsive documents.

[00:07:14] Speaker 03:
Then he says, and in that step, the responsive documents were narrowed to interviews.

[00:07:21] Speaker 04:
That's key.

[00:07:23] Speaker 04:
At 262 and the JA,

[00:07:29] Speaker 04:
I believe this page was turned over to.

[00:07:31] Speaker 04:
That's right.

[00:07:34] Speaker 04:
This has to do with the San Bernardino Police Department.

[00:07:39] Speaker 04:
Interview of witness.

[00:07:47] Speaker 04:
Yes, your honor.

[00:07:49] Speaker 04:
So near the bottom of that, for the sign off, we see enclosures.

[00:07:56] Speaker 04:
Correct?

[00:07:56] Speaker 04:
Yes.

[00:07:57] Speaker 04:
And they're crossed out.

[00:07:59] Speaker 04:
How do you understand that?

[00:08:03] Speaker 04:
What do you understand that to mean?

[00:08:06] Speaker 03:
I don't know what this means.

[00:08:07] Speaker 03:
I see that there is a U and then two slashes and then it looks like E-O-U-O and only the E-O-U-O is crossed out.

[00:08:18] Speaker 03:
So I don't know if that means that there is no such audio CD interview or that there is an audio CD interview.

[00:08:26] Speaker 03:
That wasn't indicated.

[00:08:26] Speaker 04:
We'll find out from the SDI.

[00:08:28] Speaker 04:
I just wanted to know if you had an interpretation.

[00:08:31] Speaker 03:
I don't have an interpretation.

[00:08:32] Speaker 03:
And again, the challenge for Mr. Brown and all FOIA requesters is that the information we have is limited to what the FBI provides us in terms of what was turned up.

[00:08:44] Speaker 03:
So again, it may very well be the case that there is nothing else responsive to his FOIA request other than what they provided.

[00:08:51] Speaker 03:
But if that's true, then the FBI needs to tell us as much.

[00:08:55] Speaker 03:
And a declaration represent, yes, we looked for interviews.

[00:08:59] Speaker 03:
But had we looked more broadly for account statements or narratives, we would have provided the same documents.

[00:09:05] Speaker 05:
The standard of review question, imagine that the record before the district court, and the hypothetical I'm about to describe, is exactly the same as the record before the district court in our case.

[00:09:19] Speaker 05:
But instead of the district court writing an opinion, the district court just says summary judgment granted to the government, affirmed.

[00:09:26] Speaker 05:
Or not affirmed.

[00:09:26] Speaker 05:
Summary judgment granted to the government, period.

[00:09:30] Speaker 05:
Our review there, I think, would be de novo based on the record before the district court.

[00:09:36] Speaker 05:
And even though the district court didn't say anything other than summary judgment granted to government, if on our de novo review, we think the record supports summary judgment, we would affirm the district court's one-sentence opinion.

[00:09:54] Speaker 05:
Is that correct?

[00:09:55] Speaker 03:
I think that's accurate, Your Honor.

[00:09:56] Speaker 03:
And I think perhaps what Your Honor is asking about is the foreseeable harm issue, which is the statutory.

[00:10:02] Speaker 03:
And I think this court's precedent says that the district court has an obligation to explain.

[00:10:07] Speaker 03:
Certainly, the agency has an obligation to substantiate its conclusion about foreseeable harm.

[00:10:13] Speaker 03:
And here, it's very apparent that the district court didn't do that.

[00:10:17] Speaker 03:
I think this court certainly has the discretion to evaluate the record for itself and make a determination as to whether the evidence put in in support of the motion for summary judgment supports the foreseeable harm determination.

[00:10:32] Speaker 03:
or supports that there was a foreseeable harm analysis and that it was adequate under the statute, I think it would be more prudent, frankly, to allow the district court to undertake that examination in the first instance with a more fulsome declaration, as we've described, that addresses it more directly.

[00:10:51] Speaker 03:
But I certainly think this court would be well within its power to undertake that analysis itself.

[00:10:58] Speaker 07:
I wanted to ask you also about the foreseeable harm standard.

[00:11:02] Speaker 07:
So, assumption 7D seems to have two parts, right?

[00:11:08] Speaker 07:
It's records that could be reasonably expected to disclose the identity of a confidential source, and then it has one prong, and then it says in the case of a record or information compiled for law enforcement, information furnished by confidential source.

[00:11:27] Speaker 07:
And so unlike many of the other FOIA exemptions, that part of 7D seems to have almost a categorical exemption.

[00:11:37] Speaker 07:
So if there's a confidential source that furnished information in the course of a law enforcement investigation, that's exempted from FOIA.

[00:11:47] Speaker 07:
So I guess since Congress seems to have made that determination,

[00:11:53] Speaker 07:
What does the agency have to offer that's more than a generic rationale?

[00:11:58] Speaker 07:
I mean, because many of the exemptions are written in a way where there's a particular interest, you know, like sevens, you know, like FOIA exemption six, medical files and similar files, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.

[00:12:15] Speaker 07:
So there's something that has to be shown there.

[00:12:17] Speaker 07:
There's harm to personal privacy.

[00:12:19] Speaker 07:
But the second part of Exemption 7D doesn't seem to really have anything.

[00:12:24] Speaker 03:
Your Honor, I think the categorical nature of Exemption 7D actually is part of what makes the foreseeable harm requirement more important, more rigorous in this case.

[00:12:35] Speaker 03:
And some district courts have talked about this, which is that there are some exemptions, like the one Your Honor just identified,

[00:12:41] Speaker 03:
that seem to have some element of foreseeable harm sort of baked into the exemption.

[00:12:45] Speaker 03:
And if that's the case, and if the agency justifies the application of the exemption,

[00:12:50] Speaker 03:
It's not clear that the agency needs to do a lot more to justify the withholding of that information as giving rise to foreseeable harm.

[00:12:59] Speaker 03:
But with Exemption 7D, at least with the second clause of Exemption 7D, as you said, it's categorical.

[00:13:05] Speaker 03:
I mean, the FBI could have conceivably withheld every document that it produced to Mr. Brown.

[00:13:12] Speaker 03:
It could have withheld on the basis.

[00:13:14] Speaker 03:
of 70 because the agency it's all confidential all information provided under an assurance of confidentiality, but the reason Congress in 2016 improvement act added the foreseeable harm standards because it recognize.

[00:13:28] Speaker 03:
In the context of the amendment, it was particularly with respect to the deliberative process privilege, but I think it applies equally to Exemption 70, which is that when you have these very categorical exemptions, which have rational policy justifications for them, that they can easily be overapplied to large categories of information

[00:13:48] Speaker 03:
that really should be disclosed and really don't pose any risk of harm.

[00:13:52] Speaker 03:
So I think what is missing here is I think exemption seven D as I read it, the concern and it's a legitimate one, particularly here.

[00:14:02] Speaker 03:
is that if you disclose information that leads to the identification of a confidential witness, that that information could lead to foreseeable harm or some sort of harm for that particular witness.

[00:14:14] Speaker 03:
And that's why section 70, first clause, I think actually has a pretty, has sort of a foreseeable harm standard built into it here.

[00:14:23] Speaker 03:
We don't take issue with the FBI's conclusion here that if information were released that led to the identification of these witnesses, that that information could pose a risk of foreseeable harm.

[00:14:37] Speaker 03:
But what's missing here is an explanation and a justification for how the information that has been withheld would in fact lead to the identification of these witnesses.

[00:14:50] Speaker 07:
But the second part of the exemption 7D doesn't seem to focus on the identification of witnesses.

[00:14:56] Speaker 07:
It's as we were discussing, it's categorical.

[00:15:00] Speaker 07:
So do you have to have both parts of 7D in order to have a withholding under 7D?

[00:15:06] Speaker 03:
No, Your Honor, not for exemption 7D, but however the agency is going to justify the refining of foreseeable heart.

[00:15:15] Speaker 03:
What the FBI said here, the FBI's justification here

[00:15:19] Speaker 03:
withholding these documents under 70 was the identification issue and you can imagine there maybe they didn't really need a justification at all because the second part of 70 is so categorical i think if that were the case then i think this court has said and uh the the reporters committee for freedom of the press and and in uh leopold that there has to be some independent examination separate from the exemption itself

[00:15:46] Speaker 03:
So the fact that Exemption 7D is categorical and broad doesn't lessen the burden on the agency to evaluate and justify the withholding on foreseeable harm grounds.

[00:15:57] Speaker 03:
Again, I would argue that based on what we know about what Congress was trying to do with the 2016 amendment, that it actually makes that more important and in some ways perhaps a more rigorous standard that the agency needs to make.

[00:16:09] Speaker 03:
just we have this large amount of information that conceivably be withheld.

[00:16:14] Speaker 03:
But as a matter of congressional policy, we don't want to hold back everything just because it falls within an exemption.

[00:16:20] Speaker 03:
We want to actually have an evaluation of whether disclosure of this information is going to harm an interest.

[00:16:26] Speaker 03:
And this is a categorical exemption.

[00:16:27] Speaker 03:
And we think here, if you look at it, there really was not in the Seidel declaration and in the redactions themselves, a discernible justification for why

[00:16:38] Speaker 03:
certain information about the attack particularly was withheld, but then all sorts of other information before the attack and after the attack was not withheld.

[00:16:50] Speaker 03:
And we don't have that explanation.

[00:16:52] Speaker 04:
So part of your arguments of this effect, I believe, is your third itemized list, item on the list, page 39.

[00:17:08] Speaker 04:
where you say the FBI's claimed if it's required to release information provided by CW's persons, quote, sympathetic to the suspects could seek to deter resources, cooperation with law enforcement through reprisal.

[00:17:24] Speaker 04:
You say this reasoning is not sufficient because, quote, the foreseeability requirement means that agencies must concretely explain how disclosure would not could deter resources, cooperation with law enforcement.

[00:17:39] Speaker 04:
Yes, your honor.

[00:17:40] Speaker 04:
Your reference, your quotation is from Reporters Committee.

[00:17:46] Speaker 04:
What it actually says is, in the Reporters Committee case, in the context of withholdings made under the deliberative process privilege, the foreseeability requirement means that agency must concretely explain how disclosures would, not could, et cetera.

[00:18:04] Speaker 04:
That's pretty clearly inapplicable, isn't it?

[00:18:06] Speaker 04:
It's a 7D.

[00:18:08] Speaker 04:
specific to what?

[00:18:09] Speaker 04:
Exemption five.

[00:18:11] Speaker 03:
I disagree, Your Honor.

[00:18:12] Speaker 03:
Respectfully, the statutory foreseeable harm requirement is not different for deliberative process versus exemption 70 versus any other exemption except for exemption.

[00:18:23] Speaker 04:
So you think they have to be read in the same way?

[00:18:26] Speaker 03:
I think it has to be.

[00:18:27] Speaker 03:
Yes.

[00:18:28] Speaker 03:
I mean, what the court there is quoting the statute, right, would

[00:18:33] Speaker 03:
is what the statute says, and it's distinguishing that from could.

[00:18:38] Speaker 03:
That statutory language about would result in foreseeable harm is in the generally applicable foreseeable harm standard, not in the deliberative process.

[00:18:46] Speaker 04:
So when we go to confidential witnesses and this question about generic harm, I'm still rasping for your argument to understand your argument with respect to how

[00:19:02] Speaker 04:
much more can be said than this is a confidential witness, et cetera, the harm in question is obviously not that it would be disclosed, but that if it were disclosed, right, it could be disclosed, it could have this effect.

[00:19:18] Speaker 04:
How can one say it would have?

[00:19:20] Speaker 03:
Well, I think the, again, the missing link that we see here, your honor, is the link between the information that they chose to withheld and an ability to identify these actual witnesses.

[00:19:32] Speaker 03:
So what I would say is under the statutory language, what the FBI needs to explain is how somebody who had access to that information would actually have the ability

[00:19:46] Speaker 03:
to discern the identity of the witnesses who are providing this information.

[00:19:51] Speaker 03:
Not merely that there is a hypothetical possibility out in the world that if somebody puts together, you know, all the information, they go out and Google it, and then they have a whole investigation that maybe it's possible.

[00:20:03] Speaker 03:
We don't actually know how, but we're just entertaining the possibility that someone could discern the identity.

[00:20:10] Speaker 03:
There needs to be something about how there's an actual connection.

[00:20:13] Speaker 04:
Having the ability is just as contingent as could.

[00:20:15] Speaker 03:
I think, Your Honor, the distinction here is sort of an abstract hypothetical versus something more specific and concrete to the information here.

[00:20:28] Speaker 03:
And the problem we have here is, Your Honor, that the Seidel Declaration says that

[00:20:33] Speaker 03:
well, witnesses have unique perspectives on a particular matter.

[00:20:37] Speaker 03:
That is a high level of generality that I don't think is consistent with what this court has said is required in the receivable harm requirement.

[00:20:45] Speaker 03:
And I think there has to be some level of specificity about how this information here about this particular incident would actually lead to an identification of witnesses if someone were so inclined.

[00:21:00] Speaker 05:
I would have thought that

[00:21:02] Speaker 05:
In the context of confidential informants, there's maybe always foreseeable harm because

[00:21:11] Speaker 05:
there's a harm to the FBI's ability to convince future informants to cooperate.

[00:21:18] Speaker 05:
And if on day one, they start revealing informants confidentiality or to use some of the language in this case, they provide, you know, the missing link, singular evidence that would allow someone to reverse engineer the witness's identity.

[00:21:33] Speaker 05:
In this case, let's say that in this case, revealing the witness's identity actually doesn't hurt that witness for whatever reason, maybe the witness is

[00:21:41] Speaker 05:
passed away, it still is going to always or almost always cause harm to the FBI's ability to convince future witnesses to cooperate.

[00:21:51] Speaker 03:
So a couple things, Your Honor.

[00:21:53] Speaker 03:
First off, again, I don't think we have a disagreement, at least in this case, that information that actually leads to the identification of the witnesses would

[00:22:05] Speaker 03:
lead to foreseeable harm and should be withheld.

[00:22:07] Speaker 05:
Right.

[00:22:07] Speaker 05:
Forseeable harm to those witnesses.

[00:22:09] Speaker 05:
To those witnesses and the FBI.

[00:22:10] Speaker 05:
That's not what I'm talking about.

[00:22:12] Speaker 05:
I'm talking about foreseeable harm to the FBI.

[00:22:14] Speaker 05:
To the FBI.

[00:22:15] Speaker 05:
And its ability to convince future witnesses to cooperate in a confidential manner.

[00:22:19] Speaker 03:
Yeah, and I don't think we disagree with that either, to be clear.

[00:22:23] Speaker 03:
And that means there's foreseeable harm?

[00:22:24] Speaker 03:
No, Your Honor.

[00:22:25] Speaker 03:
I think the distinction here is the information that's being withheld is not information that, at least as we understand it and based on context, is not information that actually identifies the name of the witness or defining features of the witness.

[00:22:41] Speaker 03:
What the FBI has withheld is information about any account at all, any account from any perspective

[00:22:48] Speaker 03:
of the actual attack.

[00:22:50] Speaker 03:
If you look at the documents that were produced here, there is a significant amount of disclosed information in the events leading up to the attack.

[00:23:00] Speaker 03:
a significant amount of information, of disclosed information immediately after the attack.

[00:23:05] Speaker 03:
Everything during the attack itself is redacted.

[00:23:09] Speaker 03:
There is no information from any witness from any perspective.

[00:23:12] Speaker 03:
So the problem isn't that the FBI is protecting the identities of these witnesses for whatever purpose, for their protection, for the protection of the FBI.

[00:23:21] Speaker 03:
We have no objection to that.

[00:23:23] Speaker 03:
The problem is that they've redacted all this information that as far as their explanation goes,

[00:23:28] Speaker 03:
And as far as we can discern from the information we have, doesn't actually allow for identification of these witnesses, as we point out.

[00:23:36] Speaker 03:
Someone says there's a red hat.

[00:23:38] Speaker 03:
That doesn't mean that we now know who the witness was.

[00:23:41] Speaker 05:
Fair enough.

[00:23:41] Speaker 05:
I guess my question is a little broader.

[00:23:42] Speaker 05:
I think you've probably already answered it, but I'll give you a chance to answer differently if I misunderstood you.

[00:23:48] Speaker 05:
It's a question more in the abstract.

[00:23:50] Speaker 05:
And that is, if 7D is satisfied,

[00:23:55] Speaker 05:
It seems like the foreseeable harm requirement is always or almost always going to be set because once the FBI reveals what 7D requires to be withheld, the FBI is chilling future confidential informants from becoming confidential.

[00:24:18] Speaker 03:
I would agree with that, Your Honor, as to the first clause of 70, which is the actual identifying information of the witnesses.

[00:24:28] Speaker 03:
I would not agree that any time that there is

[00:24:32] Speaker 03:
that the FBI withholds information from a confidential witness, meaning the actual substance of the information that was provided, that there is now necessarily foreseeable harm.

[00:24:43] Speaker 05:
And that's because you think the information here would not allow someone to reverse engineer the witnesses identity.

[00:24:53] Speaker 03:
I don't believe it would.

[00:24:54] Speaker 03:
But again, I don't know for sure, because the Seidel declaration and the information we have certainly doesn't provide that link for us.

[00:25:02] Speaker 03:
It could be wrong, but we'll need that explanation from the FBI.

[00:25:06] Speaker 03:
I appreciate your answer.

[00:25:08] Speaker 07:
Any further questions?

[00:25:11] Speaker 07:
Thank you.

[00:25:11] Speaker 07:
We'll give you some time on the bottle.

[00:25:14] Speaker 07:
Mr. Brown, we'll hear from you next.

[00:25:17] Speaker 02:
Hi.

[00:25:18] Speaker 02:
Good morning, Your Honors, and may it please the Court.

[00:25:21] Speaker 02:
I'd like to address some of the concerns that I heard, one of which is the categorical nature of Exemption 7D.

[00:25:27] Speaker 02:
So on page 53 of my opening brief, I actually did quote a Supreme Court case Department of Justice v. Landano, and I haven't found any countervailing case law.

[00:25:35] Speaker 02:
But what it says is that the Exemption 7D does not support the presumption that all FBI criminal investigative sources are exempt.

[00:25:43] Speaker 02:
Nor does the FOIA's legislative history indicate that Congress intended to create such a rule.

[00:25:49] Speaker 02:
And of course, the FBI's rationale by saying that these were confidential sources was the fact that they were participating in a criminal investigation.

[00:25:58] Speaker 02:
Secondly, I wanted to address the issue of medium.

[00:26:01] Speaker 02:
A statement provided by a witness can be provided through any medium.

[00:26:04] Speaker 02:
So whether they get on the phone and make a 911 call and it's recorded by the

[00:26:11] Speaker 02:
the call service center is still a statement provided by the witness.

[00:26:15] Speaker 02:
If a law enforcement officer is witnessing something, reports it over the radio and it gets recorded on a CAD log, that's also a statement provided by a witness via the radio and recorded in a CAD log.

[00:26:25] Speaker 02:
So I don't think that there needs to be some sort of requirement.

[00:26:28] Speaker 02:
The witness is the medium themselves that they're handing in or they're saying it directly.

[00:26:33] Speaker 02:
I mean, I think those things are direct, but I wanted to bring up those issues.

[00:26:37] Speaker 02:
Thank you and I welcome any questions.

[00:26:44] Speaker 07:
Yeah.

[00:26:54] Speaker 07:
Did you want to say anything more about the categorical nature of 7D and what might be required there?

[00:27:01] Speaker 07:
I know you mentioned that you cited a case in your brief.

[00:27:05] Speaker 07:
Which page of your brief was that?

[00:27:08] Speaker 02:
That was page 53, Your Honor, Department of Justice V. Londono in the opening brief.

[00:27:15] Speaker 05:
I guess I'm not, I'm not seeing that on page 53, Mr. Brown.

[00:27:22] Speaker 05:
Can you, can you be more specific about where on page 53?

[00:27:24] Speaker 02:
Oh, I'm sorry.

[00:27:25] Speaker 02:
I apologize.

[00:27:26] Speaker 02:
It's page 39.

[00:27:27] Speaker 07:
It's 53 of the header.

[00:27:31] Speaker 05:
Yeah, I apologize.

[00:27:36] Speaker 05:
Okay.

[00:27:36] Speaker 05:
I see it now.

[00:27:37] Speaker 05:
I appreciate that clarification.

[00:27:40] Speaker 05:
says, particularly there after Weisberg, the Supreme Court explained that Exemption 7D does not preserve the presumption that all FBI criminal investigative sources are exempt, nor does the FOIA's legislative history indicate that Congress intended to create such a rule.

[00:27:57] Speaker 05:
Is that the one you were referring to, Mr. Brown?

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

[00:28:00] Speaker 02:
And if you look at Chief Seidel's logic in his declaration, he's saying that this is just a mere fact that they're participating in a criminal investigation.

[00:28:07] Speaker 02:
Therefore, they're confidential as a per se rule.

[00:28:12] Speaker 07:
Mr Brown, did you have you subsequent to the this litigation or to the response of the FBI filed a different FOIA request seeking, you know, that might be more specific in terms of which records you were seeking?

[00:28:24] Speaker 02:
No, I have not your honor.

[00:28:29] Speaker 07:
Any other questions?

[00:28:30] Speaker 07:
No.

[00:28:31] Speaker 07:
Okay.

[00:28:32] Speaker 07:
Thank you, Mr Brown.

[00:28:33] Speaker 00:
Thank you.

[00:28:47] Speaker 01:
May it please the court, Sarah Smith, on behalf of the government.

[00:28:50] Speaker 01:
I'd like to return to the issue of foreseeable harm.

[00:28:53] Speaker 01:
As the FBI's declaration makes clear, the FBI performed the distinct consecutive inquiries required by FOIA.

[00:29:00] Speaker 01:
The FBI first analyzed whether the records at issue satisfied a FOIA exemption, and then the FBI analyzed whether release of those records in whole or in part would foreseeably cause types of harm that those exemptions were designed to prevent.

[00:29:15] Speaker 01:
With regard specifically to Exemption 7D, the FBI withheld the identifying information of its confidential sources, as well as singular information provided by those witnesses that could identify them.

[00:29:26] Speaker 01:
And the FBI explained that release of that information, which could identify those sources, could lead to two harms, harms to those particular witnesses who cooperated with this investigation.

[00:29:37] Speaker 01:
And then as Judge Walker was discussing with my colleague, harms to the FBI's ability to

[00:29:45] Speaker 01:
get other future witnesses to cooperate.

[00:29:47] Speaker 01:
And so the FBI identified the specific nature of the harm from release, and it articulated the link between those harms and the specific information in these records.

[00:30:00] Speaker 01:
And the law requires nothing else.

[00:30:02] Speaker 05:
What's your best argument that the information could be used to identify the witnesses?

[00:30:13] Speaker 01:
So as the title declaration makes clear the information was helped with identifying information like names and so on and I don't take there to be any issue with that as for but the declaration also talks about the fact that this shooting occurred at a workplace that the witnesses knew each other.

[00:30:31] Speaker 01:
that they worked with one of the suspects, and that the witnesses provided information that was based in part on what they did during the attack, how they responded.

[00:30:41] Speaker 01:
And because the witnesses knew each other, they knew the suspect, those accounts, if revealed, could identify, someone could identify, oh, this is Bob's account, because it says, during the attack, I ran into the closet with Harry and Susie.

[00:30:56] Speaker 01:
That's the sort of information that could identify a witness.

[00:31:00] Speaker 07:
So is it the government's position that it's required for the second part of 7D to do the sequential foreseeable harm inquiry?

[00:31:13] Speaker 07:
Because the way that that part of 7D is written is very categorical.

[00:31:18] Speaker 07:
And the foreseeable harm here that's articulated is linked to arguably a different exemption, right, which is revealing the identity of a confidential source.

[00:31:31] Speaker 07:
So I'm wondering if it's even required for the government to make the sequential determination for an exemption like 70.

[00:31:39] Speaker 01:
We have not argued that the FOIA Improvement Act doesn't apply to 70 or part of 70.

[00:31:44] Speaker 01:
The Exemption 3 is the only exemption that's expressly exempted from that requirement.

[00:31:51] Speaker 01:
So we haven't argued that it doesn't apply.

[00:31:53] Speaker 01:
I take the point that the second government doesn't argue that.

[00:31:59] Speaker 07:
But could we read the statute that way?

[00:32:04] Speaker 01:
I wouldn't want to say that the government couldn't make that argument in a different case.

[00:32:07] Speaker 01:
I just don't think it needs to make that argument here, because it's clear from the declaration that the FBI did consider foreseeable harm.

[00:32:14] Speaker 01:
And I agree with the court that that second part of, or with Your Honor, that the second part of 7D is very broad.

[00:32:21] Speaker 01:
But I think that it's still probably true that the Congress's purpose in protecting that information was to protect information

[00:32:30] Speaker 01:
that could identify sources and to ensure that sources continue to cooperate with the FBI.

[00:32:35] Speaker 01:
And those were the harms that the declaration here discussed.

[00:32:42] Speaker 04:
If we could return to this page 262 in the JA, the FBI, that's crossed out, import form and the title San Bernardino Police Department Interview of Witness.

[00:33:00] Speaker 04:
So under enclosures near the bottom, it says enclosed are the following items, SBPD, original report, and audio CD of interview of blank.

[00:33:14] Speaker 04:
So I take it that those two enclosures, is it correct, turned up in the initial search of the CRS by the Sentinel program.

[00:33:29] Speaker 01:
I'm not sure whether the audio recording that Your Honor mentioned showed up in the reporter, if it's in the FBI's possession.

[00:33:36] Speaker 01:
It seems that at some point it was.

[00:33:39] Speaker 01:
But even accepting, or even if we assume that the FBI did have those audio recordings of the interview, that would not identify a problem with the way the FBI interpreted plaintiff's request.

[00:33:52] Speaker 01:
Audio recordings of an interview are interviews.

[00:33:55] Speaker 01:
That instead would identify a problem

[00:33:58] Speaker 01:
that the FBI didn't turn over all the responsive documents in its possession.

[00:34:03] Speaker 01:
And this court has said many times that a search is not inadequate just because it doesn't turn over every record that's responsive to the request.

[00:34:11] Speaker 04:
So I gather that the process was that the CRS turned up more than the 411 documents.

[00:34:20] Speaker 04:
Because according to the declaration, Mr. Wozniowski reminded us,

[00:34:26] Speaker 04:
the agency reviewed what turned up and excluded some things from disclosure.

[00:34:34] Speaker 04:
What was the search term that caused them to appear?

[00:34:37] Speaker 01:
So they searched the CRS for Inland Regional Center.

[00:34:40] Speaker 01:
That's the place where this massacre occurred.

[00:34:42] Speaker 04:
So it was everything regarding this incident.

[00:34:44] Speaker 01:
That's correct.

[00:34:46] Speaker 04:
And if those were not turned over, it could have been for any reason.

[00:34:53] Speaker 04:
Whatever was not turned over.

[00:34:55] Speaker 04:
We don't know why.

[00:34:56] Speaker 01:
Right.

[00:34:57] Speaker 01:
We don't know if they were in the government's possession.

[00:35:01] Speaker 01:
We don't know whether they got filtered out.

[00:35:03] Speaker 04:
Oh, I see.

[00:35:04] Speaker 04:
Even if they turned up in the CRS, they might not be in the government's possession.

[00:35:09] Speaker 01:
No.

[00:35:09] Speaker 01:
If they turned up in the CRS, then the CRS is the FBI's database.

[00:35:13] Speaker 01:
So if they showed up in the CRS, they would be there.

[00:35:15] Speaker 04:
Document 412.

[00:35:16] Speaker 04:
is withheld in its entirety through the sifting process of search results.

[00:35:27] Speaker 04:
We know the reasons given for various redactions on the first 411 pages.

[00:35:32] Speaker 04:
We don't know anything about why 412 was withheld.

[00:35:39] Speaker 01:
Right.

[00:35:39] Speaker 01:
Well, there's no evidence that the agency

[00:35:44] Speaker 01:
if 412 is this audio recording that we don't know what it writes some things were not released even though they turned up at the search.

[00:35:54] Speaker 01:
So the agency searched in the regional center which brought up all the records relating to this event and then narrowed those results to interviews because it interpreted plaintiff's request for witness accounts narratives and statements as a request for

[00:36:11] Speaker 01:
you know, the descriptions of what happened that day, and the agency reasonably determined that that information would be found in the interviews taken of those witnesses.

[00:36:19] Speaker 01:
So that's what the FBI did.

[00:36:20] Speaker 04:
So it wasn't enough that it wasn't in an interview?

[00:36:26] Speaker 04:
I'm not sure I'm following the question.

[00:36:28] Speaker 04:
The reason for not releasing a document, it turns up in the search.

[00:36:33] Speaker 04:
Could be the sole reason that it wasn't in an interview and the request was interpreted as limited to the product of interviews.

[00:36:43] Speaker 01:
It could be.

[00:36:43] Speaker 01:
It could be.

[00:36:45] Speaker 04:
That is correct.

[00:36:50] Speaker 04:
And when, is it correct that after releasing the 411 documents you heard again from Mr. Brown that he was not satisfied?

[00:37:00] Speaker 01:
No.

[00:37:02] Speaker 01:
The FBI first produced 19 pages of previously released documents and told Mr. Brown, if you're not happy with this, let us know.

[00:37:08] Speaker 01:
We'll search again.

[00:37:09] Speaker 01:
And he said he was not happy.

[00:37:11] Speaker 01:
The FBI searched again.

[00:37:12] Speaker 01:
And then this is the second production is the 460.

[00:37:16] Speaker 04:
So that led to filing the case rather than to any further pursuit of the documents.

[00:37:24] Speaker 01:
Thank you.

[00:37:26] Speaker 01:
If there are no further questions, we ask the court to affirm.

[00:37:52] Speaker 03:
Thank you.

[00:37:53] Speaker 03:
If I may make just two very brief points.

[00:37:55] Speaker 03:
First, with respect to the issue of foreseeable harm, what my colleague indicated was that there's singular information that was withheld, which as we talked about is sort of the broad, generic explanation that we see a lot from the FBI.

[00:38:10] Speaker 03:
But I think it's important to test that a little bit.

[00:38:13] Speaker 03:
Let me just direct the court to, as an example, JA-220.

[00:38:20] Speaker 03:
And this is consistent, these redactions are consistent with how the FBI approached the other FD302s.

[00:38:32] Speaker 03:
And you'll see on JA220 that there's a significant amount of unredacted information.

[00:38:40] Speaker 03:
That unredacted information includes the fact that this person was employed by the Department of Public Health, the time that they arrived at the facility,

[00:38:49] Speaker 03:
the specific place where they parked or general area where they parked, the place that they left and went later on to, the time that they arrived at the place, the time that they broke for lunch, got in the back of the line to take pictures, where in fact that they, what wall they were facing at the time that they did that.

[00:39:12] Speaker 03:
Now, if the FBI's position is that that information that they've chosen to disclose,

[00:39:17] Speaker 03:
does not pose a risk of foreseeable harm to this witness, it's unclear why that same level of information, or I would argue even less singular information about the attack itself would pose such a risk of foreseeable harm.

[00:39:33] Speaker 03:
Again, we're not contesting that there might be portions of the withheld materials that are legitimately redacted because they would, in fact, lead to the identification of the witness.

[00:39:46] Speaker 05:
On page 220.

[00:39:47] Speaker 05:
What unredacted information do you think is unique to this unnamed person?

[00:39:57] Speaker 03:
I don't know that it's unique to this person specifically, but it certainly narrows it down, right?

[00:40:02] Speaker 03:
We have information about the time that they specifically arrived.

[00:40:06] Speaker 05:
Right, but maybe the FBI redacted information unique to this person and did not redact

[00:40:17] Speaker 05:
information that would allow the reader to narrow it down in your words, but it's information that's not unique enough to identify the person.

[00:40:29] Speaker 03:
I think if that's the FBI's approach, we wouldn't dispute it.

[00:40:33] Speaker 03:
But I don't think that that's really articulated in the Seidel Declaration.

[00:40:37] Speaker 03:
I don't think if you look at this

[00:40:39] Speaker 03:
Except that this particular example that it suggests that that is what happened because again what we have is a bunch of unredacted material.

[00:40:47] Speaker 03:
Then we have a huge block of redacted material everything that takes place during the attack itself.

[00:40:53] Speaker 03:
If you pay turn over to page 221 you'll see there's more blocks of redacted information and then it picks up.

[00:41:00] Speaker 05:
I thought it could be misremembering, but I thought that the declaration described redacted information as singular information that provide a missing link, allowing a reader to reverse engineer the information in order to identify the person.

[00:41:22] Speaker 03:
I don't know that it would so far as to say it could be reversed engineer, but it certainly said.

[00:41:27] Speaker 05:
That's my word, but singular was their word.

[00:41:29] Speaker 03:
Singular is in there.

[00:41:30] Speaker 05:
As we point out, though, that is... What information do you... They say that singular information was redacted.

[00:41:35] Speaker 05:
What information on page 220 is both unredacted and singular?

[00:41:41] Speaker 05:
I think the answer is none.

[00:41:43] Speaker 03:
I don't think that necessarily any of it is.

[00:41:46] Speaker 03:
The problem that we have with this, and I think what this example shows, is that it's not clear at all that the FBI actually did that.

[00:41:53] Speaker 05:
That's what they said they did, though.

[00:41:55] Speaker 07:
Mr. Wisconsin, why doesn't this show that the FBI made a good faith effort to give as much unredacted material as it could?

[00:42:06] Speaker 07:
And the things then that they redacted may have been more singular or raising more concerns about harm to the confidential witnesses.

[00:42:16] Speaker 07:
I mean, maybe this example actually points the other direction, that they made a good faith attempt to provide everything they could

[00:42:24] Speaker 03:
I think it would be remarkable, your honor, if every single witness interview, all of the information, every line of it about the actual attack itself was identifying singular information for every single witness, which is the FBI's approach here.

[00:42:45] Speaker 03:
Every other interview memo has this same pattern.

[00:42:48] Speaker 03:
Every line, every single comma about the attack itself.

[00:42:53] Speaker 05:
It sounds like they were consistent.

[00:42:55] Speaker 03:
Consistent, but not, I don't think consistent in a way that is reflected in the Seidel Declaration, or at least the approach that's described in the Seidel.

[00:43:03] Speaker 05:
I could be misreading now on page 221, could be misreading this, but I understood you to just say that they redacted every piece of information about the attack itself, but here it's unredacted where it says,

[00:43:24] Speaker 05:
I asked him being the witness if there was anything else distinctive about the SUV parked outside the doors.

[00:43:31] Speaker 05:
I'm guessing I don't I don't have any access to confidential information, so I can't reveal any confidential information.

[00:43:36] Speaker 05:
I'm guessing that that SUV connected to the crime itself and I just asked about a random SUV.

[00:43:41] Speaker 05:
He said the vehicle appeared stock to him.

[00:43:43] Speaker 05:
It was shiny and new with no tinted front windows.

[00:43:47] Speaker 05:
He did not see the license plate, but he knew it was not one of his colleagues' cars.

[00:43:50] Speaker 05:
He has a whole paragraph about the attack itself, and you just said there's nothing in there about the attack.

[00:43:55] Speaker 03:
I don't think, Your Honor, that's about after the attack.

[00:43:58] Speaker 03:
This is an SUV that was seen driving away from the scene.

[00:44:03] Speaker 05:
So this is not the suspect's SUV already?

[00:44:07] Speaker 03:
I mean, I think it is likely.

[00:44:10] Speaker 03:
I don't know.

[00:44:11] Speaker 03:
Obviously, we don't know.

[00:44:12] Speaker 03:
This person saw

[00:44:14] Speaker 03:
exactly what they saw.

[00:44:15] Speaker 03:
But I do think it is likely the suspect's SUV.

[00:44:17] Speaker 05:
But the point is... That seems pretty connected to the attack itself, the attackers.

[00:44:21] Speaker 03:
Well, I mean, maybe I was imprecise, but I'm talking about the attack itself in the room, right?

[00:44:27] Speaker 03:
What Mr. Brown wanted, which is, what do these people look like?

[00:44:33] Speaker 03:
How many of them were there?

[00:44:34] Speaker 03:
What were they wearing?

[00:44:36] Speaker 03:
What do they look like?

[00:44:37] Speaker 03:
What's their bill?

[00:44:38] Speaker 03:
All of that information was what he actually wants.

[00:44:41] Speaker 05:
He doesn't want to know what kind of car they drove.

[00:44:44] Speaker 03:
I think that the information about the SUV being parked outside the doors is very public and well known.

[00:44:51] Speaker 03:
I'm sure he's happy to have that information.

[00:44:53] Speaker 05:
Fair enough.

[00:44:54] Speaker 05:
I really did not mean to...

[00:44:56] Speaker 05:
I wasn't doing gotcha for the sake of doing gotcha.

[00:44:58] Speaker 05:
I understand.

[00:44:59] Speaker 05:
To push your theory and see if your theory is that they were just willy-nilly taking out everything that has to do with the attack.

[00:45:07] Speaker 05:
And there's stuff in there that has to do with the attack.

[00:45:09] Speaker 05:
But it's not stuff that can identify the witness.

[00:45:13] Speaker 05:
And it seems like they have a principle.

[00:45:15] Speaker 05:
It's a reasonable principle.

[00:45:16] Speaker 05:
And they're applying it in a consistent way.

[00:45:19] Speaker 03:
I think the way that, Your Honor, respectfully, I'm seeing how they applied the principle is that they

[00:45:26] Speaker 03:
I don't know if there's a determination or an assumption or what the process was, but they decided at some point that everything or every witness about the actual, the attack in the room was going to have a foreseeable harm.

[00:45:43] Speaker 03:
And that, if that's true, maybe that is true.

[00:45:46] Speaker 03:
But if that's their process, if that's their theory, if their conclusion is, you know, we looked at the information before, during and after.

[00:45:55] Speaker 03:
And the information before and after is qualitatively different from the information during the attack.

[00:46:01] Speaker 03:
And it's qualitatively different for these three reasons.

[00:46:04] Speaker 03:
Put that in a declaration, then we can read it, we can evaluate it, we can determine if it satisfies the statute.

[00:46:10] Speaker 03:
But what they said was, we redacted singular information.

[00:46:14] Speaker 05:
Fair enough, and not blaming you for making these arguments, especially because we appointed you to these arguments.

[00:46:21] Speaker 05:
So we are benefited by making the best arguments that can be made.

[00:46:26] Speaker 03:
I appreciate that, Your Honor.

[00:46:27] Speaker 03:
If the court has no further questions.

[00:46:29] Speaker 04:
Well, I just wanted to stay right with this at page 221, pardon me, which is the backside of the interview report at 220, second page.

[00:46:45] Speaker 04:
Yes, your honor.

[00:46:53] Speaker 04:
Apparently this witness was not in the building.

[00:46:59] Speaker 04:
Correct.

[00:47:01] Speaker 04:
Talks about the SUV parks outside.

[00:47:03] Speaker 04:
No, that's not correct.

[00:47:09] Speaker 04:
Because earlier on it says he attended the meeting, talked to Minko with coworking.

[00:47:14] Speaker 03:
That's right, your honor.

[00:47:15] Speaker 04:
They were breaking for lunch.

[00:47:16] Speaker 04:
Okay.

[00:47:17] Speaker 03:
I think this is discussing this.

[00:47:18] Speaker 03:
This is sort of point.

[00:47:20] Speaker 04:
Maybe I was sort of in artfully making which is that this is the next page next interview report 223 backside of the next one.

[00:47:30] Speaker 04:
She said she was not in her office at the time of the shooting.

[00:47:34] Speaker 04:
She had just arrived at work and was in the East parking lot.

[00:47:38] Speaker 04:
Does that by itself take her out of the requested request for information?

[00:47:45] Speaker 03:
don't know because we don't know what else is is redacted here so I thought you wanted the information from people who were in the room from from from witnesses who have information about the description number identity of the shooters what we what we see here is she was present at the inland regional center she was not in her office at the time of the shooting she was in the parking lot

[00:48:10] Speaker 03:
She said that she had just arrived at work and was in the East parking lot, East of building number two.

[00:48:15] Speaker 03:
We don't know beyond that what she saw.

[00:48:20] Speaker 04:
Okay.

[00:48:21] Speaker 04:
Let me make sure.

[00:48:23] Speaker 04:
Well, take me back to the request.

[00:48:26] Speaker 04:
Mr. Brown's request and the letter that follows follows it.

[00:48:32] Speaker 04:
Um, so I'm in here.

[00:48:35] Speaker 04:
Rain seven.

[00:48:37] Speaker 04:
Um,

[00:48:42] Speaker 04:
Specifically, I'm seeking accounts, narratives, and statements from witnesses who were located in the conference room where the attack mainly took place.

[00:48:52] Speaker 04:
Yes, Your Honor.

[00:48:53] Speaker 04:
Doesn't that exclude somebody who was in the parking lot when the shooting occurred?

[00:48:57] Speaker 03:
I think that would be a reasonable interpretation by the FBI if they wanted to exclude those.

[00:49:02] Speaker 03:
But, you know, the example, the issues that we have is not with

[00:49:08] Speaker 03:
those accounts, although I still don't know what the rationale or the methodology is for redacting the information that was redacted there.

[00:49:19] Speaker 03:
But the example that I gave first on JA 220, I think is really more germane to the request and what we see as the issue with the FBI's approach.

[00:49:28] Speaker 04:
Was he in the room when this occurred?

[00:49:33] Speaker 04:
I'm sorry, was who?

[00:49:34] Speaker 04:
The one at 220.

[00:49:36] Speaker 03:
We don't know for sure.

[00:49:39] Speaker 03:
Maybe he says that he was in the conference room, they broke for lunch, that he went to the west fall facing east, and then that's the last piece of information we have before he describes the SUV after the attack.

[00:49:56] Speaker 03:
We certainly have a large number of these FD302s that follow a similar pattern, which is that

[00:50:05] Speaker 03:
Somebody is in the room.

[00:50:06] Speaker 03:
There's some description of what they're doing up until that point, what's happening in the room.

[00:50:10] Speaker 03:
And then it stops.

[00:50:12] Speaker 03:
It's all redacted.

[00:50:13] Speaker 03:
And then it picks up either at the same point about with the SUV in the parking lot or talking about sort of their relationship with the suspects more generally.

[00:50:26] Speaker 05:
Thank you.

[00:50:28] Speaker 07:
Thank you.

[00:50:29] Speaker 07:
Thank you.

[00:50:29] Speaker 07:
Thank you.

[00:50:30] Speaker 07:
Mr was asking you were appointed by the court to serve as amicus in this matter, and the court thanks you for your very thorough and capable assistance.

[00:50:37] Speaker 03:
Thank you.

[00:50:41] Speaker 07:
Oh, yeah.

[00:50:43] Speaker 07:
Yeah.

[00:50:43] Speaker 07:
Take a short break.

[00:50:47] Speaker 03:
Your honor.

[00:50:50] Speaker 07:
Oh, I'm sorry.

[00:50:51] Speaker 07:
Yes, I'm sorry, Mr. Brown.

[00:50:53] Speaker 07:
Yes.

[00:50:53] Speaker 02:
Thank you.

[00:50:55] Speaker 02:
Thank you, your honor.

[00:50:56] Speaker 02:
So I just wanted to address a couple issues real quick.

[00:50:58] Speaker 02:
This was an exemption 7a case initially, and the 411 documents were actually provided after litigation was started.

[00:51:06] Speaker 02:
So the context is a little bit weird.

[00:51:09] Speaker 02:
And then I wanted to talk about the consistency of the FBI and their redaction.

[00:51:13] Speaker 02:
I do think they were incredibly consistent.

[00:51:15] Speaker 02:
They consistently redacted exactly what was requested what was witnessed, which was witness descriptions of the shooters, and all the other extraneous information provided may not be very likely to lead to identification of witnesses but it's far more likely than if they just provided what was requested, which was simple witness descriptions of the shooters.

[00:51:34] Speaker 02:
And if the FBI provided, happened to provide documents that were outside the scope of the original request, that doesn't seem relevant anymore.

[00:51:43] Speaker 02:
The question now becomes whether they properly redacted the documents that they did produce.

[00:51:49] Speaker 02:
And thank you.

[00:51:50] Speaker 02:
I appreciate it.

[00:51:51] Speaker 02:
And I'll take any questions.

[00:51:57] Speaker 04:
Will you say in your initial request,

[00:52:00] Speaker 04:
of particular importance to this request or any descriptions of the perpetrators, et cetera.

[00:52:06] Speaker 04:
You're saying that effectively, as far as you're concerned, that's all that matters.

[00:52:14] Speaker 02:
Yes, Your Honor.

[00:52:15] Speaker 04:
That's the primary purpose of the request.

[00:52:17] Speaker 04:
That is your concern, your only concern.

[00:52:20] Speaker 00:
Yes, Your Honor.

[00:52:22] Speaker 00:
Thank you.

[00:52:23] Speaker 00:
Thank you.

[00:52:24] Speaker 07:
Thank you, Mr. Brown.

[00:52:25] Speaker 07:
Thank you.