[00:00:00] Speaker 04: Case number 24-5127, Washington Lawyers Committee for Civil Rights and Urban Affairs, a balance, versus United States Department of Justice. [00:00:10] Speaker 04: Mr. Stafford for the balance, and Mr. Bullham for the approach. [00:00:14] Speaker 03: Good morning, Mr. Stafford. [00:00:15] Speaker 03: You may proceed when you're ready. [00:00:17] Speaker 05: Thank you, Your Honor, and may it please the court. [00:00:19] Speaker 05: As the district court recognized in this case, WLC stated a valid policy or practice claim under FOIA against BOP. [00:00:27] Speaker 05: BOP's FOIA violations are pervasive. [00:00:29] Speaker 05: Requests channeled through BOP's general FOIA pipeline, including requests on behalf of inmates merely seeking their own prison record, go unanswered for months or years, way beyond the time permitted under FOIA. [00:00:41] Speaker 05: This pattern of violating FOIA's timing mandates is especially harmful for prisoners seeking to vindicate their constitutional rights or hold prison officials accountable for abuse. [00:00:50] Speaker 05: Despite finding that WLC stated a valid claim, the district court immediately granted summary judgment to BOP without any discovery based on a single affidavit from a BOP official. [00:01:00] Speaker 05: But the affidavit only raised more questions than answers as it confirmed that BOP is capable of adjusting its channeling policy to comply with FOIA's deadlines for certain individual requests when it wants to. [00:01:11] Speaker 05: The district court's grant of summary judgment should be reversed in this case. [00:01:15] Speaker 05: I'd like to start with the correct framework for analysis in this case, because I think the parties have some dispute about that. [00:01:21] Speaker 05: In our view, the correct analysis comes from this court's decision in judicial watch. [00:01:25] Speaker 05: And the question is whether the agency has a policy or practice that results in persistent FOIA violations and will interfere with WLC's rights in the future. [00:01:35] Speaker 05: If so, the agency has a burden to, number one, explain its delay, but number two, also confirm how it intends in the future to conform to FOIA's mandates. [00:01:45] Speaker 05: So in this case, the evidence shows that BOP has a policy of unnecessarily and selectively funneling requests for individual records behind requests for systemic records, which create massive delays. [00:02:00] Speaker 04: Can I just back up and ask about what you think the legal test is? [00:02:03] Speaker 04: So effectively, the government and the district court proceeded as if it's enough if the agency shows it's addressing requests in good faith. [00:02:13] Speaker 04: And I just want to make sure I understand your argument. [00:02:15] Speaker 04: Are you arguing, as a legal matter, that that's not the right test? [00:02:19] Speaker 04: Or are you just arguing, as a factual matter, because of the channeling policy and, I think, the arguments you are about to get into, that there's doubt about agency good faith here? [00:02:29] Speaker 05: I'm arguing the former, Your Honor, that that's not the correct legal test. [00:02:32] Speaker 05: The good faith language is coming from this course decision in Open America, which, as we explained in our reply brief, is a case interpreting the exceptional circumstances provision of FOIA. [00:02:42] Speaker 05: And BOP did not invoke that exception in this case. [00:02:45] Speaker 05: It didn't raise it in the district court. [00:02:47] Speaker 04: So when we ask, is the government's explanation adequate under the statute? [00:02:53] Speaker 04: What is the metric? [00:02:56] Speaker 04: What's the statutory standard we're measuring that [00:02:58] Speaker 05: So you're looking to see whether the government has explained the delay, but also in a policy or practice case, you're looking to see whether the government has adjusted its policies so that it can conform to FOIA's mandates in the future. [00:03:10] Speaker 05: So we don't think there's any. [00:03:11] Speaker 05: I think that's the question. [00:03:11] Speaker 04: What does it mean to comply with FOIA's mandates in the future? [00:03:14] Speaker 04: One test, which you. [00:03:16] Speaker 04: seem to have avoided would be they have to show they're satisfying the exceptional circumstances standard. [00:03:22] Speaker 04: That's the standard the statute provides for justifying a lengthy delay in production. [00:03:28] Speaker 04: But you haven't offered that as the test. [00:03:30] Speaker 04: And you've said words like bring into compliance with the statute. [00:03:33] Speaker 04: And I just want to know, which provision is being violated? [00:03:37] Speaker 04: Which provision do they have to explain they're going to comply with? [00:03:40] Speaker 05: Yes, so they are violating the timing mandates in A3A and A6A. [00:03:44] Speaker 05: And the language I'm using is the language that the court used in judicial watch. [00:03:49] Speaker 05: I think the court does talk about the exceptional circumstances provision. [00:03:52] Speaker 05: But the reason we're not really invoking that is because that's typically used for individual records requests where the agency will have sort of a more specified reason for the delay with respect to an individual record. [00:04:03] Speaker 05: In our case, we're really focused on the policy or practice, and we're looking for sort of a broader injunction that would have the agency modify the practice itself. [00:04:12] Speaker 04: So A6A is about the timing for the determination? [00:04:15] Speaker 04: Correct. [00:04:16] Speaker 04: So your suit is about forcing POP to make determinations, not produce the records? [00:04:22] Speaker 05: Correct, Your Honor, because we're looking for both. [00:04:25] Speaker 05: We're looking for the determination and the production. [00:04:26] Speaker 05: They haven't done either. [00:04:27] Speaker 05: But what happens is whenever my client sends a request to BOP, we get a tracking number, and then we get sort of nothing in response for months or years. [00:04:36] Speaker 05: So we're looking both to the determination requirement and also the production requirement, which I think this court's recognized promptly means days or weeks, not months or years. [00:04:45] Speaker 03: Mr. Stafford, what distinguishes the circumstances that we're facing here [00:04:50] Speaker 03: from that of every other agency that has a FOIA backlog. [00:04:56] Speaker 03: If we were to rule in your favor, does that mean that every routine FOIA requester who's repeatedly coming back to the agency for a similar category of records and who routinely has to wait more than 20 days to hear about the request, is every person in that situation [00:05:18] Speaker 03: by making those allegations going to be entitled to discovery and potentially an injunction based on allegations that the agency should be using an alternative expedited or non FOIA process to release the record. [00:05:39] Speaker 05: I think in this case, Your Honor, it's a little bit unique in that we actually have record evidence showing that the agency is capable of using these alternative procedures. [00:05:47] Speaker 05: I mean, they have this streamlining process for individual medical records requests that they have sort of developed over the course of this litigation. [00:05:54] Speaker 05: And in our view, this sort of shows that the agency, unlike most agencies where perhaps they are constrained by, they are going as fast as they can, this case is just different because of the fact that we have the evidence showing that they can go faster when they want to. [00:06:09] Speaker 05: And in that circumstance, we think that we should at least get discovery into the extent of that policy and whether it's necessary to limit it to individual medical records and how the agency can sort of allocate its resources appropriately. [00:06:23] Speaker 03: I'm a little confused by your [00:06:25] Speaker 03: Your claim that the FOIA violation is the channeling policy by which I take you to mean the policy of requiring the requesters to go through FOIA. [00:06:42] Speaker 03: And it just seems perplexing to me that [00:06:49] Speaker 03: the notion that requiring FOIA is a violation of FOIA, and that the remedy under FOIA should be to use some different policy. [00:07:01] Speaker 03: And I take you to be referring to Privacy Act policy? [00:07:10] Speaker 05: Yeah, so your honor, I'm happy to clarify that. [00:07:12] Speaker 05: So I mean, all of the FOIA, all of the requests for records have to go through FOIA under BOP regulations. [00:07:18] Speaker 05: So what they've done is they've created a streamlined process that allows for more expedited processing of certain individual medical records. [00:07:26] Speaker 05: And we're simply saying that by doing that, BOP has shown that they are capable of processing individual records requests faster than they are currently doing. [00:07:34] Speaker 05: And we would just like to get evidence. [00:07:36] Speaker 04: This is the way that they [00:07:37] Speaker 04: fast track those medical records requests, isn't it by cutting back on the Privacy Act exemption? [00:07:44] Speaker 04: I think that's right. [00:07:44] Speaker 04: They're not going to process it through FOIA at all, right? [00:07:47] Speaker 05: I mean, I think by regulation, they technically have to process it through FOIA. [00:07:50] Speaker 05: I think my understanding is that they're just doing it different levels of different more less rigorous level layers of review for the for the particular records, which enables them to produce them faster. [00:08:01] Speaker 05: And I think a lot of it has to do with the interaction with the Privacy Act. [00:08:04] Speaker 01: What are the material facts that you cannot supply that you need to conduct discovery to? [00:08:16] Speaker 05: Yeah, so we would want facts into this channeling policy decision that they've made, sort of their analysis of how they're able to allocate resources in a way that allows them to process these particular individual requests faster than others. [00:08:30] Speaker 05: We would want discovery into their declaration talks a lot about improvements that they've made through centralization and training. [00:08:37] Speaker 05: We would want discovery into exactly how that's affecting the backlog and how that's going to help sort of my client get records faster in the future. [00:08:45] Speaker 05: And we would also want discovery into their assertions about their resource constraints. [00:08:49] Speaker 01: In a nutshell, is the idea that you wanted to get evidence indicating that they're capable of complying with the time limits, is that the whole idea? [00:09:03] Speaker 05: Yes. [00:09:04] Speaker 05: We would want evidence to support our argument that they are capable. [00:09:08] Speaker 01: And the district judge, did the district judge say you don't need that evidence or was it solely on the basis of you haven't shown bad faith? [00:09:17] Speaker 05: Our understanding is that the district judge said that we haven't shown bad faith and so even though I mean I think we were not entitled to discover correct and I think the district court recognized that you know this discovery would give us more information into these into these various aspects but because we haven't shown agency bad faith we're not entitled to it. [00:09:33] Speaker 01: The irony is that everything you seek in discovery could be turned over under FOIA. [00:09:42] Speaker 05: I think that's right. [00:09:43] Speaker 05: I mean, again, we would then be forced to wait for months or years to get that. [00:09:46] Speaker 05: So, you know, we don't think that's a viable alternative. [00:09:49] Speaker 01: As I understand your position, it is that this bad faith idea, which you cannot get out of Rule 56D, you can read it till you're blue in the face and you won't find it. [00:10:00] Speaker 01: And it's not anything that is, so far as I understand, anything that's required in any other area other than Floyd, but it only applies to [00:10:09] Speaker 01: searches. [00:10:10] Speaker 01: It doesn't apply to a policy type lawsuit. [00:10:15] Speaker 05: That's correct. [00:10:15] Speaker 05: This court's never applied it to a policy or practice claim. [00:10:18] Speaker 05: And it's only applied it in the inadequate search context and also in the inadequate exemption context. [00:10:26] Speaker 04: I suppose that's another way of saying in every FOIA case. [00:10:28] Speaker 05: Every case in this courts just talked about the discovery obligation. [00:10:32] Speaker 05: Yes, that's correct. [00:10:33] Speaker 04: But again, you know, we just one question about this. [00:10:36] Speaker 04: I think you might have. [00:10:37] Speaker 04: I'm sort of good fairness arguments, but I was concerned. [00:10:42] Speaker 04: Seemed to me that in your brief to the district court. [00:10:45] Speaker 04: You know, it sparked my curiosity. [00:10:46] Speaker 04: The district court didn't address an argument that it should be some standard other than bad faith for discovery. [00:10:52] Speaker 04: And in your brief below, it seemed that you accepted that standard. [00:10:57] Speaker 04: And the district court said you concede that the bad faith standard applies. [00:11:04] Speaker 04: Can you address that? [00:11:05] Speaker 04: It suggests that you've waived this argument. [00:11:07] Speaker 05: Yeah. [00:11:08] Speaker 05: I mean, I think we were sort of going off of what BOP's argument was. [00:11:11] Speaker 05: I don't know that we, you know, [00:11:14] Speaker 05: contested it so much. [00:11:15] Speaker 05: But I think our main point in the district court was that whatever the standard is, in this kind of context where you have evidence of a specific policy or practice, you should get discovery. [00:11:26] Speaker 05: And we've looked at that, and we don't think that the bad faith requirements should apply in this narrow type of context where you have an agency that is violating the statute persistently. [00:11:36] Speaker 05: And the only question is, how are you going to remedy that? [00:11:39] Speaker 05: In that context, we think discovery is appropriate. [00:11:41] Speaker 03: So you're acknowledging that [00:11:43] Speaker 03: If this case concerned only a single delayed FOIA request, that you would not be entitled to discovery. [00:11:50] Speaker 05: If we only had one request, then we may not be able to show that BOP has a policy? [00:11:56] Speaker 03: Well, no. [00:11:57] Speaker 03: I mean, I'm partly probing the basis of your making a distinction between entitlement to discovery in an individual case and entitlement to discovery in a policy or practice case. [00:12:06] Speaker 03: And so if you had the same situation of delay but an individual case, [00:12:12] Speaker 03: I just want to get what the ground rules are. [00:12:13] Speaker 03: From your perspective, you would not be entitled to discover. [00:12:17] Speaker 05: I think we would be entitled to discovery depending on sort of the nature of the violation and how the discovery, whether it could satisfy the normal requirements of 56D. [00:12:25] Speaker 02: You have to explain more what you're thinking. [00:12:27] Speaker 02: I don't follow what that means. [00:12:29] Speaker 05: OK. [00:12:29] Speaker 02: More concretely. [00:12:30] Speaker 05: Sure. [00:12:31] Speaker 05: So in our case, we think because there is this persistent pattern of violations, we think that we should get discovery. [00:12:36] Speaker 05: And BOP is not sort of entitled to this presumption of good faith that it harbors in the inadequate search context. [00:12:44] Speaker 05: In the case of an individual violation, [00:12:46] Speaker 03: pattern tends to show lack of good faith or because it's somehow differently or not relevant or? [00:12:53] Speaker 05: Yeah, so I mean, our understanding of this sort of bad faith requirement, again, I do want to emphasize that this isn't really in the rules or anything. [00:13:00] Speaker 05: This is something that the courts developed. [00:13:02] Speaker 05: And our understanding is that this is really grounded in sort of the normal presumption of regularity that the government gets in all sorts of contexts. [00:13:10] Speaker 05: And that presumption doesn't really apply here because the agency is already violating the timing mandates over and over again. [00:13:15] Speaker 05: In the other context, the agency is presumptively complying with the statute by conducting the search or invoking an exemption. [00:13:22] Speaker 05: And the only question is whether the affidavit confirms that. [00:13:26] Speaker 05: So there's no discovery necessary. [00:13:28] Speaker 03: So back to the way you're characterizing the violation. [00:13:37] Speaker 03: Basically, you're saying that it's been shown that the [00:13:41] Speaker 03: Bureau can process prisoner requests, prisoner information requests more quickly because it's doing that for medical records. [00:13:50] Speaker 03: But isn't it the case that the Bureau under the Privacy Act has promulgated regulations saying that the prisoners are not entitled, that the people aren't entitled to the very records that you're seeking? [00:14:05] Speaker 05: My understanding of the Privacy Act regulations is that they just say that you're not automatically entitled to them. [00:14:11] Speaker 05: You still have to go through FOIA to obtain them. [00:14:14] Speaker 05: And so the only question is, once you're in the realm of filing a FOIA request, how quickly can BOP process it and whether it can comply with the statutory requirements. [00:14:27] Speaker 04: Your fundamental argument is they're processing one category of documents quickly. [00:14:32] Speaker 04: And they should process ours quickly, too. [00:14:35] Speaker 04: But it seems like the question should be, is there anything that suggests that your request should be prioritized over all the others in the FOIA queue? [00:14:45] Speaker 04: And can you point to anything that would suggest that? [00:14:48] Speaker 04: I mean, it seems like any FOIA requester would come in and say, you're doing those fast. [00:14:52] Speaker 04: You should do mine fast, too. [00:14:53] Speaker 04: Why should yours skip the line? [00:14:56] Speaker 05: I don't know that it's necessarily skipping the line. [00:14:58] Speaker 05: I think it's just more of a streamlined process, as I understand it, because BOP still says that it has this first and first out policy for all FOIA requests. [00:15:06] Speaker 05: Our understanding is that for certain individual records, they just don't go through the same multiple layers of FOIA attorney. [00:15:14] Speaker 04: It's actually, I could be wrong, but I think the setup is quite clear, and it's all based on regulations. [00:15:21] Speaker 04: The Privacy Act, there's an exemption. [00:15:23] Speaker 04: And then a separate regulation says all even individual records will be processed through FOIA. [00:15:28] Speaker 04: Now, they've posted a notice that withdraws that Privacy Act exemption for one specific category exemption. [00:15:36] Speaker 04: So your claim would make sense if you had sort of a legal argument that it was arbitrary and capricious just to have that one type of exemption. [00:15:47] Speaker 04: Or maybe if you had initiated a petition for rulemaking, [00:15:50] Speaker 04: But this is fundamentally, you're asking us to invalidate regulations and order them to expand the Privacy Act exemption or to expand their multi-track processing regulations, which they also have authority to do and which are in place. [00:16:05] Speaker 04: But that's just not the way this case has been litigated. [00:16:08] Speaker 04: And it seems like a, I guess I'm concerned that it's a collateral attack on [00:16:15] Speaker 04: promulgated regulations, and you haven't sort of mounted a direct attack to those regulations. [00:16:20] Speaker 05: I understand the point. [00:16:20] Speaker 05: My submission is that the regulations themselves really aren't legally problematic. [00:16:28] Speaker 05: The problem is whenever you have these FOIA statutory requirements, the regulations prohibit the agency from complying with them. [00:16:34] Speaker 05: So to the extent that the violation is sort of, or to the extent we need to identify a legal violation, it's the agency's failure to comply with FOIA. [00:16:43] Speaker 05: And the fact that it, [00:16:45] Speaker 03: So the analogy that you're drawing between the medical records and the other prisoner records seems to me to run aground on the shoals that Judge Garcia has just identified, that basically you're asking us to invalidate the extension which the Privacy Act regulations continue to apply to the non-medical prisoner records. [00:17:10] Speaker 03: And that just seems to me to be [00:17:13] Speaker 03: not a FOIA claim, but a Privacy Act claim in FOIA clothing. [00:17:19] Speaker 03: And it just feels very indirect. [00:17:24] Speaker 03: And it isn't contending, as Judge Garcia's question is indicating, with whether that choice to leave the Privacy Act regulation intact with respect to non-medical individual records is in any way ungrounded or unlawful. [00:17:42] Speaker 05: Yeah, so in the judicial watch case, for example, the court pointed out that the agency conduct can be formal or informal. [00:17:50] Speaker 05: And so we don't think, for example, if the agency had a policy of selectively choosing which individual records, if it codified that policy in some regulation, we don't know that that would really change the analysis. [00:18:01] Speaker 05: And we don't think that the agency should be able to sort of abuse their ability to promulgate regulations in a way that allows them to escape FOIA's timing requirements. [00:18:10] Speaker 05: So all of this is to say that I do think that it's the interaction of these regulations with FOIA's timing mandates that is creating the problem. [00:18:19] Speaker 05: And so that's why we brought this case under FOIA, because it's FOIA that imposes these requirements. [00:18:25] Speaker 03: So if the case were to proceed to discovery, what additional information about the Bureau's FOIA processing do you think you'd be entitled to, and what would be dispositive of the policy practice claim? [00:18:37] Speaker 05: So we would want information about their decision to selectively streamline certain individual records requests, how they're able to allocate their resources to accommodate that, and whether they're able to allocate resources to accommodate other streamlining for other individual records. [00:18:52] Speaker 05: We would want discovery into [00:18:54] Speaker 05: Like I said earlier, their claimed improvements, their centralization, and their training, we would want to understand exactly how that's helping them achieve any sort of progress with respect to the backlog. [00:19:07] Speaker 05: And we would also want to understand exactly how the resources are allocated and what is going on in the agency that [00:19:15] Speaker 05: I mean, and I'll point to an example. [00:19:17] Speaker 05: In the affidavit, it shows that their FOIA staff has dropped tremendously in recent years. [00:19:21] Speaker 05: We would want to understand exactly what's going on with that and whether the Bureau is just shifting resources away from FOIA to other parts of the agency, or how is it that the resources are being allocated? [00:19:33] Speaker 01: The only thing that you would be entitled to in discovery is what's set forth in the affidavit on page 135 to 136 of the appendix. [00:19:45] Speaker 01: That's rule 56D says that the scope of the affidavit defines the scope of the discovery and the district court has control of it. [00:19:57] Speaker 05: That's correct, yes. [00:19:58] Speaker 05: I mean, we think our affidavit, you know, it is broad and- That's correct. [00:20:04] Speaker 05: And we think it's broad enough to sort of encapsulate everything that I've- It's fairly broad. [00:20:08] Speaker 01: Yes. [00:20:08] Speaker 01: Which is why I said to just regroup and control the scope and cabin, the amount of discovery, but can't do that under rule 26. [00:20:19] Speaker 01: This is rule 56D discovery. [00:20:23] Speaker 05: That's correct. [00:20:24] Speaker 05: And we think, you know, to the extent there are concerns about the breath or anything, we would, you know, be happy to work with the government on targeted discovery, you know, just focusing on certain documents, certain areas. [00:20:34] Speaker 05: And, you know, this isn't unusual. [00:20:36] Speaker 05: I can point, I mean, Judge McFadden had a similar case right after this court decided judicial watch where he denied a motion for summary judgment based on an affidavit very similar to this one. [00:20:45] Speaker 05: And then the parties proceeded to some very targeted discovery about the agency's budget, about the agency's streamlining processes. [00:20:52] Speaker 05: And that ultimately resulted in a settlement, which would be a possible outcome in this case as well. [00:20:59] Speaker 04: If the case were to proceed to sort of a final injunctive, what would you envision that looking like? [00:21:06] Speaker 04: Is it just sort of an injunction to make best efforts to come into compliance with the 20-day time limit and then the promptness requirement, something else? [00:21:17] Speaker 05: Yeah, I mean, I don't want to invade the question. [00:21:18] Speaker 05: Some of that will depend on what we are able to obtain in discovery. [00:21:22] Speaker 05: So to the extent BOP wants to try to explain to the court why it can't perfectly comply with the 20-day rule, we would think that the court could take that into account in sort of its equitable decision and issue an injunction that requires BOP to adjust its policies as best as it can to comply with FOIA's mandates. [00:21:42] Speaker 05: And again, the specifics of that would depend on the information we're able to get and discovery about what's going on in BOP. [00:21:49] Speaker 04: And my earlier question was, what standard do we judge their explanation against? [00:21:55] Speaker 04: And if we assume they had shown. [00:21:59] Speaker 04: In good faith, we're trying to make determinations within 20 days, and we're trying to make prompt productions. [00:22:05] Speaker 04: But here's the challenges we face. [00:22:08] Speaker 04: And that explanation all held together. [00:22:11] Speaker 04: Is that sufficient? [00:22:12] Speaker 04: Is that the question we're supposed to ask about their explanation? [00:22:15] Speaker 05: Yeah, I mean, my understanding from the explanation language, and this isn't really fleshed out in the judicial watch case as to what would constitute that. [00:22:22] Speaker 05: I mean, my understanding is that it would be a test that asks, are they doing it as fast as possible? [00:22:27] Speaker 05: And is there anything they can do to process the requests faster? [00:22:30] Speaker 05: Or alternatively, are they employing sort of unnecessary policies that are increasing the delays and causing greater statutory noncompliance? [00:22:40] Speaker 03: That test, are they doing it as fast as possible? [00:22:43] Speaker 03: I have to say, I do not relish the judge who would have to manage deciding, applying that test. [00:22:51] Speaker 03: It just seems so intrusive of the agency's operations. [00:22:57] Speaker 03: And I understand where you're coming from, but it just seems like you're going to swing the door wide open to a lot of judicial supervision of FOIA processes. [00:23:08] Speaker 03: And I'm just not sure the courts are going [00:23:12] Speaker 03: be up to that and be able to do that in a consistent way if the standard you've just articulated is all the guidance that you can provide. [00:23:21] Speaker 05: Yeah, I mean, I do think that the courts are applying the standard in the exceptional circumstances context with respect to individual records requests. [00:23:31] Speaker 05: They are able to look at the agency's affidavits. [00:23:34] Speaker 05: And in those cases, what they'll do is they'll establish a timeline based on their understanding of the agency's processes. [00:23:41] Speaker 05: And oftentimes, the courts will evaluate the agency policies and look to see whether they're necessary and whether the agency can overcome them. [00:23:48] Speaker 03: But the exceptional circumstances is [00:23:51] Speaker 03: geared toward one request in a context that is accepted to be sort of stable, whereas you're saying, [00:24:02] Speaker 03: Can they rejigger their process to deal with us faster? [00:24:05] Speaker 03: Whereas the agency has to think about its entire FOIA load. [00:24:10] Speaker 03: So again, this gets back to a question that one of my colleagues was asking about is, how is it that you're not asking for queue jumping? [00:24:17] Speaker 03: And then we'll just have sort of whack-a-mole cases. [00:24:20] Speaker 03: Oh, now you want to be at the head of the line. [00:24:21] Speaker 03: No, you do. [00:24:22] Speaker 03: No, you do. [00:24:22] Speaker 03: No, you do. [00:24:24] Speaker 03: I take your, I mean, previously when I asked you a related question, you said, well, here it's different because we have a more specific shortcoming that we're identifying. [00:24:38] Speaker 03: And I guess I'd like to hear, again, your articulation of the policy that you're challenging. [00:24:46] Speaker 03: I take it it is not just [00:24:52] Speaker 03: that there's a failure to meet the, a widespread ongoing failure to meet the statutory deadlines. [00:24:59] Speaker 03: It's something more. [00:25:00] Speaker 03: Can you? [00:25:02] Speaker 05: Yeah, so it's their decision to selectively streamline certain individual records requests that they want and not streamlining others. [00:25:11] Speaker 05: And therefore, for those other ones, they are violating FOIA's statutory deadlines. [00:25:15] Speaker 03: And when you say streamline, what do you mean? [00:25:18] Speaker 03: Because sometimes you use the term expedited, which has, to me, this sort of queue jumping quality. [00:25:25] Speaker 03: What are they doing now that is inadequately streamlined and to the extent that you know what are they doing with the medical records that would equal and why would that equally apply to these other records. [00:25:38] Speaker 05: Yeah, and I think this is something again, we would want to explore this and discovery to figure out exactly how they're able but. [00:25:43] Speaker 05: that the delta between sort of the processing time for individual medical records requests and non-medical records requests is so large, we would just want to understand exactly how they're able to process those medical records faster and why that faster processing time shouldn't also apply to our individual records requests for non-medical records. [00:26:05] Speaker 03: And the medical records, they don't have content that has to be [00:26:14] Speaker 03: removed in order for them to be released? [00:26:16] Speaker 05: I think they do. [00:26:17] Speaker 05: They'll have to go through certain protocols for redactions. [00:26:22] Speaker 05: Again, this is something that we would want to explore in discovery, the extent to which they need to review for redactions and other types of information. [00:26:29] Speaker 03: You've been making those requests, so you're familiar with that process too, right? [00:26:32] Speaker 03: Yes. [00:26:33] Speaker 03: The medical records request. [00:26:35] Speaker 03: And on the other records, are you familiar with any of those records that have been produced? [00:26:41] Speaker 03: I mean, we can ask the Bureau this also. [00:26:44] Speaker 03: Are there different kinds of redactions, more redactions, more categories of redactions? [00:26:48] Speaker 05: Yeah, my understanding is that in some of the disciplinary ones, there may be other sort of redactions in terms of other inmates that may have privacy issues. [00:26:56] Speaker 05: But again, it's just something that this hasn't really been fleshed out. [00:27:00] Speaker 05: And so we would want more from you. [00:27:02] Speaker 03: And the medical records, I had understood from your brief that they were being produced under the Privacy Act. [00:27:09] Speaker 03: Is that wrong? [00:27:11] Speaker 05: Yeah, my understanding is that they still have to go through FOIA. [00:27:14] Speaker 05: And this is something maybe I'm misunderstanding. [00:27:17] Speaker 05: And this is something that's changed over the course of this litigation to the extent that the court wants to remand for the Bureau to actually explain it. [00:27:25] Speaker 05: My understanding is that all of the records requests by attorneys still have to go through this FOIA process. [00:27:30] Speaker 05: They just have a separate sort of streamlined track for these individual medical records requests. [00:27:38] Speaker 03: So when your briefing talks about part of the problem is they're being channeled under FOIA and they should be taken out of FOIA processing, are you amending that here and saying, no, what we're seeking is FOIA processing. [00:27:56] Speaker 03: It's just FOIA processing more like the medical records. [00:27:58] Speaker 05: Yeah. [00:27:59] Speaker 05: And I'm happy to clarify that here. [00:28:02] Speaker 05: I think our position is that whenever we say they're processing through [00:28:05] Speaker 05: through FOIA, they're processing them through the single FOIA pipeline that also applies to these large systemic records requests. [00:28:12] Speaker 05: And often, that means that an inmate's personal record requests will just get behind these large requests and result in delays of months or years. [00:28:21] Speaker 05: We just don't know. [00:28:22] Speaker 05: And our position is that that's not necessary. [00:28:25] Speaker 05: And we would want to explore that in discovery and figure out exactly how the Bureau can amend its policies to comply with FOIA. [00:28:34] Speaker 04: Can I, just one last question on the legal test. [00:28:37] Speaker 04: Use the words as fast as possible. [00:28:39] Speaker 04: And I understand why. [00:28:40] Speaker 04: I think that's language and judicial watch. [00:28:43] Speaker 04: But if we were just approaching this fresh, I think you would want a test that's drawn from the words in the actual statute. [00:28:53] Speaker 04: And when I read the statute, the timeliness requirement or production, not the determination, production is prompt unless there's exceptional circumstances. [00:29:03] Speaker 04: So a reasonable way to do this would be to ask, if they're not doing it promptly, which you've alleged, have they shown exceptional circumstances? [00:29:13] Speaker 04: Why wouldn't that be the statutory framework for this kind of claim? [00:29:18] Speaker 05: Yeah, I mean, we still win. [00:29:20] Speaker 05: Yeah, we would be happy with that. [00:29:21] Speaker 05: I mean, I think judicial watch does have a lot of language that says the question is whether the agencies adjusted its policies to make prompt determinations or to prank prompt productions following its determinations. [00:29:30] Speaker 04: Just didn't have to reach this question. [00:29:32] Speaker 04: It was correct. [00:29:33] Speaker 04: That's fleeting. [00:29:34] Speaker 04: And this case is what is the statutory standard for judging the agency's explanation? [00:29:39] Speaker 05: That's right. [00:29:39] Speaker 05: And we would be happy with a standard that says the agency has to have policies that result in prompt production. [00:29:46] Speaker 05: And if not, it needs to satisfy the exceptional circumstances requirement. [00:29:50] Speaker 05: Again, they haven't tried to satisfy that here. [00:29:51] Speaker 05: So we don't think that should be a reason for affirming or anything. [00:29:56] Speaker 03: So my understanding is that the Bureau does differentiate between simple, medium, and complex. [00:30:05] Speaker 03: And it has different cues. [00:30:07] Speaker 03: And then it processes those first in, first out. [00:30:11] Speaker 03: And so to some extent, it sounds like your claim is a challenge to the notion that these prisoner files should be processed under the complex cue. [00:30:24] Speaker 03: Is that accurate? [00:30:26] Speaker 05: I mean, they do have sort of this dual track where they have simple processing. [00:30:31] Speaker 05: That doesn't constitute very much of the records requests. [00:30:34] Speaker 05: It's normally agency documents that are already online. [00:30:38] Speaker 05: And it certainly doesn't accommodate any requests from institutions themselves. [00:30:43] Speaker 05: That's sort of all lumped into the complex pipeline. [00:30:46] Speaker 05: And all of my clients' requests have been deemed complex. [00:30:48] Speaker 05: whether they're individual records requests or more systemic. [00:30:51] Speaker 05: So they do have this alternative track. [00:30:53] Speaker 05: We don't know that the denomination should really matter that much. [00:30:58] Speaker 05: Even if it's processed in a complex track, we do still think that the question is whether they're able to comply with FOIA. [00:31:05] Speaker 05: And here we think that they are in certain circumstances. [00:31:08] Speaker 03: That's helpful. [00:31:09] Speaker 03: But so would it be fair that you're wanting a simple track that's available to these records? [00:31:15] Speaker 03: One way of thinking about it conceptually is that the simple processing track should be possibly expanded. [00:31:23] Speaker 05: Yes, I mean, we think they should have sort of a streamlined track for certain individual records. [00:31:27] Speaker 05: And if that's sort of through their simple track, then that would be fine, depending on how they apply their simple track and how that works internally. [00:31:36] Speaker 05: But again, the real question for us is just, however they're denominating the request, are they complying with FOIA's mandates? [00:31:46] Speaker 03: So I gather that the Bureau has a process for allowing an inmate to access [00:31:52] Speaker 03: their central file, and there's a footnote in the brief about 28 CFR 513.40, and that they can actually go and look at it electronically, or they can request copies of that file. [00:32:10] Speaker 03: And is that file one that encompasses medical, disciplinary, and educational information? [00:32:17] Speaker 05: The central file will encompass some of that. [00:32:19] Speaker 05: I think there's a separate provision for medical records. [00:32:22] Speaker 05: But both of those provisions are just allowing the inmate to access them. [00:32:26] Speaker 05: And I think there are several problems with it. [00:32:28] Speaker 05: The first one is that it's under supervision from BOP. [00:32:31] Speaker 05: A lot of it's in discretion of BOP. [00:32:34] Speaker 05: So for example, if BOP doesn't want to give certain medical records that have subjective opinions of their medical professionals, they can withhold them and require the prisoner to file a FOIA request. [00:32:46] Speaker 05: So it's not really like a satisfactory process itself. [00:32:49] Speaker 05: And it certainly wouldn't apply to my client. [00:32:51] Speaker 03: When I file a FOIA request, presumably the same limitations, privacy act limitations, would apply. [00:32:56] Speaker 03: I guess I'm having trouble. [00:32:58] Speaker 03: I mean, there's a procedural difference between Privacy Act and FOIA. [00:33:01] Speaker 03: But substantively, the thing that troubles me is it seems like there are substantive decisions, substantive regulations, substantive exemptions under the Privacy Act. [00:33:12] Speaker 03: that presumably would equally apply under FOIA, but in some of your articulations, it seems like you're arguing against that. [00:33:22] Speaker 03: It's really a substantive argument, no? [00:33:26] Speaker 05: I mean, I don't know if this is responsive. [00:33:28] Speaker 05: I mean, our understanding is that for the inmates accessing their own records, there are just certain limitations that the Bureau puts on them. [00:33:36] Speaker 05: And a lot of these are sort of more onerous than what FOIA would require. [00:33:42] Speaker 05: And so what happens is, yes, so for example, the Bureau can sort of limit the scope of the documents that the inmate is able to view. [00:33:52] Speaker 05: And they have a lot of discretion in that regard. [00:33:55] Speaker 05: They have to make a request. [00:33:57] Speaker 05: And if you think about this in the context of an inmate trying to file a civil rights claim against the prison, it's tough to imagine that the prison is going to, in their discretion, make sure that the prisoner is able to view all of their documents, let alone keep them and then give them to their attorney. [00:34:11] Speaker 03: This wasn't brief, but I thought I saw in the regulations that one way a prisoner can get access is by reviewing it under the supervision of a BOP staff member, but that they also can request photocopy. [00:34:27] Speaker 05: I think they can request photocopies. [00:34:28] Speaker 05: I mean, you know, this also isn't in the record, but we have sort of in our, you know, we mentioned that the USP Thompson investigation that my client did a lot of work on. [00:34:37] Speaker 05: And in that context, you know, we had instances of BOP staff sort of confiscating files from prisoners cells. [00:34:43] Speaker 05: And so, you know, that even though they're able to get copies, you know, it really wasn't a satisfactory. [00:34:49] Speaker 03: And are their counsel not able to get copies? [00:34:51] Speaker 05: So the council, if the council wants to get copies, then they would need to go through the FOIA process under 28 CFR 513.63. [00:34:59] Speaker 05: 28 CFR 513.63. [00:35:08] Speaker 03: And that's FOIA or Privacy Act? [00:35:10] Speaker 05: That's FOIA. [00:35:11] Speaker 05: And its request by attorneys on behalf of inmates will be treated as inmate requests for their own records under FOIA. [00:35:19] Speaker 03: But there's a Privacy Act. [00:35:20] Speaker 03: Maybe it was a FOIA regulation that says the prisoner can get his own. [00:35:24] Speaker 03: Correct. [00:35:25] Speaker 05: Yeah. [00:35:25] Speaker 05: That's right. [00:35:26] Speaker 03: Privacy Act. [00:35:27] Speaker 05: My understanding is it's a FOIA. [00:35:30] Speaker 05: OK. [00:35:32] Speaker 05: But for my client, it's the attorneys. [00:35:34] Speaker 05: And they do have to go through the FOIA process. [00:35:38] Speaker 05: All right. [00:35:39] Speaker 05: If there are no further questions, I'll wait for Roberto. [00:35:41] Speaker 05: Thank you. [00:36:02] Speaker 03: Good morning, Mr. Fulham. [00:36:03] Speaker 06: Good morning. [00:36:05] Speaker 06: Good morning, and may it please the court, Thomas Cullen for the Bureau of Prisons. [00:36:09] Speaker 06: As this court explained in judicial watch, the rule in this circuit is that an agency's compliance with FOIA depends on its good faith effort and due diligence in administering FOIA, and that therefore not all agency delay or other failure to comply with FOIA's procedural requirements will warrant judicial intervention. [00:36:28] Speaker 06: The uncontroverted evidence offered by the Bureau [00:36:31] Speaker 06: establishes the agency's good faith and due diligence, and that the agency's inability to process all requests within the statutory timelines does not reflect an abuse of FOIA's statutory scheme or a total disregard of the agency's obligations. [00:36:47] Speaker 06: On the contrary, the Bureau provided a reasonable explanation for its processing practices and outlined many efforts it has made to improve its processing times. [00:36:56] Speaker 06: For this reason, the district court properly granted summary judgment on the policy and practice claim to the bureau. [00:37:02] Speaker 06: And because the agency's showing was sufficient to warrant summary judgment, and the lawyers committee did not offer any evidence of agency bad faith or evidence that would otherwise undermine the agency's showing, the district court did not abuse its discretion in denying discovery. [00:37:20] Speaker 06: And I'd like to start by responding to two issues that were [00:37:27] Speaker 06: raised by Council for the Lawyers Committee. [00:37:31] Speaker 06: One goes to the nature of the process for access to the medical records of adults in custody. [00:37:43] Speaker 06: Council described it as a streamlined FOIA processing, but that's not what it is. [00:37:49] Speaker 06: This process is described in the Federal Register [00:37:52] Speaker 06: 89 Federal Register 49906. [00:37:54] Speaker 06: And I think the way that judges Pillard and Garcia described it is correct is how we understand it. [00:38:02] Speaker 06: That what the agency was doing there is saying that we will waive an exemption under the Privacy Act. [00:38:11] Speaker 06: We're doing so as consistent with the Bureau's correctional interests and allow access under the Privacy Act where records are not [00:38:21] Speaker 06: exempt under the Privacy Act. [00:38:23] Speaker 06: An individual has a statutory right to gain access to records about that individual, and they are not processed under FOIA. [00:38:31] Speaker 06: So this is not a streamlined FOIA processing. [00:38:34] Speaker 06: It's not kind of a FOIA light. [00:38:37] Speaker 06: It's processing under the Privacy Act. [00:38:41] Speaker 06: So that was one point. [00:38:42] Speaker 06: The second point is I would just like to confirm our understanding. [00:38:48] Speaker 06: This is a point raised, I believe, [00:38:50] Speaker 06: Judge Garcia that the plaintiffs in the plaintiff in the district court Did advocate for the same standard regarding discovery that we are we have said Applies here. [00:39:08] Speaker 06: This is at JA 114 and one [00:39:11] Speaker 06: First, they said an agency may satisfy its burden on summary judgment on the basis of affidavits if they're reasonably specific and if they're not called into question by contrary evidence in the record or evidence of bad faith. [00:39:25] Speaker 06: That's the general FOIA standard for summary judgment. [00:39:28] Speaker 06: And then further down on J115, they acknowledged that discovery in FOIA cases is rare. [00:39:37] Speaker 06: is permitted when the court is, quote, assured that an agency's declarations are reasonably detailed, submitted in good faith, and the court is satisfied that no factual dispute remains, quoting Baker and Hostetler versus Department of Commerce. [00:39:51] Speaker 06: And that is a FOIA case involving the kind of mind-run FOIA case, as counsel describes it, not a policy and practice claim. [00:40:00] Speaker 06: So they specifically quoted standard FOIA standards for summary judgment and discovery. [00:40:06] Speaker 06: the district court applied them. [00:40:08] Speaker 06: And that's why we think there was no abuse of discretion. [00:40:10] Speaker 06: And I'm happy to take any questions that the court has. [00:40:15] Speaker 04: Can I ask you my question about the legal test? [00:40:17] Speaker 04: So we've proceeded as of. [00:40:22] Speaker 04: Delays are justified or at least don't warrant relief if the agency is acting in good faith to address the backlog. [00:40:30] Speaker 04: And my concern is the statute doesn't say that. [00:40:34] Speaker 04: The statute does say if there are exceptional circumstances and you are exercising due diligence, [00:40:40] Speaker 04: then a court won't order production immediately. [00:40:44] Speaker 04: And I'm struggling to understand why that wouldn't be the test. [00:40:48] Speaker 04: We would ask, even in a pattern or practice case, as the agency come forward in a way that shows we are facing exceptional circumstances and our exercise of due diligence, not just the latter. [00:41:03] Speaker 06: Yeah, so I think the court answered this question in judicial watch. [00:41:10] Speaker 06: when it said, in language I pointed to in my introduction, that it's long established in this circuit that an agency's compliance with FOIA depends on its good faith effort and due diligence. [00:41:21] Speaker 04: Here's the big problem with that language. [00:41:23] Speaker 04: It's quoting Open America, which was decades before the 1996 revisions to the exceptional circumstances definition. [00:41:31] Speaker 04: And at that time, [00:41:33] Speaker 04: Courts had generally treated the exceptional circumstances exception exactly the way you were sent. [00:41:38] Speaker 04: And Congress stepped in and said, if you're dealing with a predictable agency backlog, you have to show you're making reasonable progress towards addressing that backlog. [00:41:49] Speaker 04: And that's just what's missing. [00:41:51] Speaker 04: That's the only thing that's missing from what Judicial Watch, which didn't have to address this question, the only holding there is there was an unexplained delay gets you just passed a motion to dismiss. [00:42:03] Speaker 04: And so why that was quoting from the pre-1996 exceptional circumstances formulation. [00:42:12] Speaker 04: And I would just say, why not use the actual statutory standard now? [00:42:16] Speaker 06: Well, I don't think it was necessarily quoting from the statute. [00:42:21] Speaker 06: It was saying that it agreed with how Open America had applied this, and this court has generally applied FOIA cases. [00:42:31] Speaker 06: just that good faith and due diligence are the touchstones underlying the scheme generally is what judicial watch said. [00:42:38] Speaker 06: But if I could just make one additional point, which is that even if you wanted to look at the exceptional circumstances test, we think that would be satisfied here because the agency's declaration establishes that it is making reasonable progress in reducing the backlog of its requests, which starts with kind of [00:43:01] Speaker 06: stopping the bleeding, which is what the agency is trying to do through all of these. [00:43:08] Speaker 04: What about the staffing issue? [00:43:09] Speaker 04: I mean, the context here isn't, it's certainly seemingly commendable efforts are being made, but the fundamental reality is that it seems like the number of annual requests is going down, backlog is still going up, and the primary cause seems to be that your staffing levels have decreased dramatically. [00:43:28] Speaker 04: And we don't have an explanation of why that is or any efforts you've made to increase staffing levels or, [00:43:34] Speaker 06: So I think I would like to push back on the idea that the only reason behind the backlog is staffing levels. [00:43:44] Speaker 06: Mr. Boehm pointed to the increasing number of complex requests so that even if the number of requests is slightly trending downwards, the number of complex requests which take more time is trending upwards. [00:44:00] Speaker 06: And that the agency had went through a very difficult time during the pandemic where there were competing demands pressed on placed on FOIA staff, including things like provide helping to provide vaccine cards to prisoners, providing information to family members about the status and health of [00:44:21] Speaker 06: of their relatives who were in custody and providing medical records on an expedited basis through the informal process that was later formalized under the Privacy Act to allow lawyers to request home confinement or compassionate release. [00:44:39] Speaker 06: But even so, turning to the staffing, I mean, [00:44:43] Speaker 06: The declaration notes that there was a general decrease in staffing levels for a time. [00:44:51] Speaker 06: I think it would be inconsistent with the presumption of regularity to assume that that was because the agency was selectively firing FOIA people and doing other things. [00:45:04] Speaker 06: And we've pointed in our brief to evidence that- It would have to be nefarious. [00:45:11] Speaker 04: You're not prioritizing FOIA responses. [00:45:13] Speaker 04: Maybe a statute with a promptness requirement and exceptional circumstances requires you to. [00:45:19] Speaker 06: Well, of course, I mean, the Bureau has to comply with many statutes and how the Bureau allocates resources from kind of a lump sum appropriation would be, you know, in the Bureau's discretion. [00:45:32] Speaker 06: But we pointed to evidence in our brief that the court can take judicial notice of that the Bureau has [00:45:39] Speaker 06: is actively trying to hire people for specifically FOIA provisions. [00:45:43] Speaker 06: We pointed to postings for five different positions that were open at the time that we submitted the brief. [00:45:50] Speaker 06: So that's just really inconsistent with even if the court could entertain the speculation that the Bureau was acting in this way. [00:46:00] Speaker 03: There's a little bit of a mismatch, though, or a kind of a black box in the Bureau's declaration, given the more focused, if the claim were just a general delay claim, I could see the policy and practice of delay. [00:46:16] Speaker 03: I could see the Bureau's affidavit being quite responsive. [00:46:22] Speaker 03: It's commendable that there are separate tracks. [00:46:24] Speaker 03: It's commendable that [00:46:26] Speaker 03: the Bureau has created this more streamlined approach for certain of the Privacy Act possibility documents so they're not all left with the only access being a FOIA effort. [00:46:42] Speaker 03: But what the Lawyers Committee has argued here is that there's this cognate group of records, and they may be wrong that they're analogous, [00:46:54] Speaker 03: But they're saying that they're analogous. [00:46:57] Speaker 03: The disciplinary and educational records that are part of a prisoner's file, just as the medical information is part of a prisoner's file. [00:47:05] Speaker 03: And one of the questions is, why are the disciplinary and educational records classified as complex? [00:47:12] Speaker 03: And we don't have an answer for that. [00:47:16] Speaker 06: I appreciate the opportunity to address this. [00:47:20] Speaker 06: What the Bureau has said is that requests for records that come from an individual institution, as opposed to kind of the main Bureau, will generally be on the complex track. [00:47:36] Speaker 06: The fact that there is this Privacy Act alternative for medical records [00:47:45] Speaker 06: has no bearing on the classification of a FOIA request as simple or complex. [00:47:51] Speaker 06: This is a totally separate procedure. [00:47:54] Speaker 06: And as I think some of Your Honor's questions indicated, I don't think it's really coherent to argue that the agency is engaged in a policy or practice of violating FOIA because it fails to make [00:48:10] Speaker 06: other processes outside of FOIA available for certain categories of requests. [00:48:15] Speaker 06: What the Bureau did was look at its Privacy Act exemption and said that, you know, generally we will be able to waive it for these categories of records because it won't be, you know, that won't compromise our Correctional Institute interests. [00:48:30] Speaker 06: And so those will be available under the Privacy Act. [00:48:36] Speaker 06: Of course, just because requests for records are generally records from an individual records from an institution are generally on the complex track doesn't mean they will always be. [00:48:49] Speaker 06: It depends how broad the request is. [00:48:51] Speaker 06: And there are certain types of records that can be more easily released. [00:48:58] Speaker 06: So if a request is narrowed to focus on those, [00:49:01] Speaker 06: the Bureau can actually move the request to the simple track. [00:49:05] Speaker 06: We cited some, I believe a Bureau program statement in our brief that talks about the components of a central file and that there is a kind of releasable section of the central file that includes certain categories of records. [00:49:21] Speaker 06: So it really depends on what's being requested. [00:49:23] Speaker 03: Can you give us a little bit more sense of what that might typically look like? [00:49:26] Speaker 03: What might be in that? [00:49:27] Speaker 06: I apologize, I don't have the program statement with me. [00:49:31] Speaker 06: If you hold on one minute, I can tell you the agency's kind of general practice when, so as part of its kind of continuing efforts to improve FOIA processing, the agency has a kind of general practice now when it gets these requests for individual records, and they inform the requester that they can [00:49:56] Speaker 06: place the request on the simple track if it's narrowed to certain types of records. [00:50:02] Speaker 06: And the types of records that are often identified are medical records, mental health records, admissions or releases history, recidivism risk assessments, progress report or program review, work history, drug program history, custody classification, disciplinary history. [00:50:20] Speaker 06: These are all kind of identified by code. [00:50:22] Speaker 03: Where is that? [00:50:24] Speaker 06: That's not in the record. [00:50:25] Speaker 06: I'm just describing what they. [00:50:26] Speaker 03: Is that a public document? [00:50:27] Speaker 06: No, this is just what the agency is doing as a general practice now. [00:50:35] Speaker 06: This is all just to make the point that this is it kind of depends on as in any FOIA context, there's often a dialogue between the agency and the requester to [00:50:45] Speaker 06: try and get things narrowed and sped up as much as possible. [00:50:49] Speaker 03: I think one of the items that you read just now from the program statement is disciplinary history. [00:50:57] Speaker 03: Is that right? [00:50:59] Speaker 06: For a certain category of records, and I apologize, I just don't know what's involved there. [00:51:07] Speaker 06: But I don't think that we need to get into this level of detail because on our reading of [00:51:15] Speaker 06: judicial watch, what the agency needs to do is establish its good faith effort and due diligence in responding to requests. [00:51:22] Speaker 06: And we think that the agency's declaration amply does that. [00:51:25] Speaker 03: If due diligence, I mean, just to push back on that a little bit, if due diligence and the reasonable progress that Congress explicated in amending the act after Open America, [00:51:43] Speaker 03: due diligence includes in response to a policy or practice claim showing that the agency is being diligent more systemically in the way that it's treating categories of records, then it seems relevant. [00:51:59] Speaker 03: I mean, I'm listening to what you just read, and I'm thinking, well, [00:52:03] Speaker 03: That kind of information might have made for a more persuasive declaration on the Bureau's part in response to the policy or practice claim that the channeling of one subset of individual record information has been very smooth and streamlined and other aspects of individual records information not. [00:52:30] Speaker 03: do you have an explanation for that? [00:52:33] Speaker 03: I mean, that seems to me that's the thing that their claim is seeking a reasonable response to. [00:52:41] Speaker 03: And I'm not sure that the declaration profile really speaks to that. [00:52:49] Speaker 06: So the Lawyers Committee on Appeal certainly focuses on this channeling argument that was not the [00:52:59] Speaker 06: um, evident focus of the complaint. [00:53:02] Speaker 06: It was not the evident focus of the briefing in the district court. [00:53:05] Speaker 06: Um, the complaint is really about just meeting the, uh, the timelines. [00:53:10] Speaker 06: And so the declaration was responsive to, uh, the complaint and it explained the agency's processing practices. [00:53:18] Speaker 06: It explained, um, uh, some of the challenges the agencies faced, including the high number of complex requests, the competing demands on, uh, staff. [00:53:27] Speaker 06: It, um, it, [00:53:28] Speaker 06: demonstrated that the agency in fact meets the statutory time timeline for requests on the simple track. [00:53:36] Speaker 06: The agency explained that BOP FOIA professionals process both more FOIA requests overall than the DOJ average and that they do more complex requests than the DOJ average. [00:53:50] Speaker 06: So that, you know, I think is good evidence of due diligence and good faith effort. [00:53:55] Speaker 06: It also explained the agency's efforts to improve [00:53:58] Speaker 06: by implementing a robust training program that uses modules developed by the Office of Information Policy, which is kind of DOJ's expert on FOIA. [00:54:10] Speaker 06: And it said that we constantly, the Bureau constantly reviews its performance and statistics to look for efforts to, ways to improve. [00:54:18] Speaker 06: And that one of these was this centralization light improvement that's described in the declaration. [00:54:24] Speaker 06: And Mr. Boehm explained that this resulted in 36% more requests being processed on a weekly basis. [00:54:30] Speaker 06: That is a concrete improvement right there and quantified. [00:54:35] Speaker 06: And when you put the declaration also mentioned the kind of informal practice was developed during the pandemic of providing expedited access to medical records to facilitate these [00:54:55] Speaker 06: request for compassionate release in home confinement. [00:54:57] Speaker 06: The Bureau formalized and broadened that. [00:55:01] Speaker 06: in the Federal Register notice that we pointed to that this court can take judicial notice of. [00:55:07] Speaker 06: And I think it's just important to look at all of these efforts. [00:55:11] Speaker 06: None of this is is controverted and none of this resembles the facts of the only other case where this court has recognized a policy and practice claim, which is pain. [00:55:20] Speaker 06: And nor does it meet the kind of the descriptive language that the court used in judicial watch and other cases. [00:55:26] Speaker 06: And if I could just highlight some of that [00:55:28] Speaker 06: language. [00:55:29] Speaker 06: Crew 2 referred to rare instances of agency delinquency. [00:55:33] Speaker 06: Payne described the situation there as a persistent refusal to end a practice for which the agency offers no justification. [00:55:40] Speaker 06: And Judicial Watch described policy and practice claims as involving abuse of the FOIA scheme, delinquent or recalcitrant conduct, a total disregard of FOIA's requirements, [00:55:52] Speaker 06: So I don't think in any way just what we have here in the declaration line up with how this court has described the scope of policy and practice claims. [00:56:01] Speaker 03: I do want to emphasize that what you pointed to in the BAME declaration, many of those efforts there exactly, I think what the sort of systemic due diligence [00:56:13] Speaker 03: is responsive to that. [00:56:16] Speaker 03: But I'm not sure. [00:56:18] Speaker 03: I checked because I wondered about the point that you're making about whether it was clear in the district court that they were really focusing on the sort of, for want of a better shorthand, the channeling [00:56:32] Speaker 03: And I thought they did make that clear. [00:56:36] Speaker 06: It's mentioned in a page and a half to be sure. [00:56:39] Speaker 06: But I'd also just like to look at what they mean by channeling. [00:56:46] Speaker 06: I mean, there is a regulation that has not been challenged. [00:56:49] Speaker 06: that says that agency requests are processed under law, and that means the Privacy Act or FOIA. [00:56:55] Speaker 06: There is a Privacy Act exemption that has been waived in part, but it's a general exemption for individual prisoner records. [00:57:03] Speaker 06: And so what that means is that requests by regulation go through FOIA. [00:57:10] Speaker 06: And I think the argument that a failure to create sufficient processes outside of FOIA [00:57:17] Speaker 06: That's just not an argument that the Bureau has a policy and practice of violating FOIA itself, and it boils down to the contention that if an agency can't meet the statutory deadlines, then it can't take advantage of FOIA's exemptions and must simply disclose documents through some other process. [00:57:35] Speaker 06: I am not aware of any case that provides authority for this proposition. [00:57:39] Speaker 03: So I had a question that that really hopefully highlights, which is, when you roll back, for example, the prerogative that the Bureau has not to release medical records under the Privacy Act, you say, we are going to release those medical records. [00:58:01] Speaker 03: What is the sort of the, are there provisions within the Privacy Act that mirror or are analogous to under FOIA the exemptions such that certain information that would disclose someone else's privacy interest or law enforcement practices or deliberative process that are taken out of something that's released under the Privacy Act? [00:58:25] Speaker 06: So my understanding of the way the Privacy Act works is that the Act contains certain exemptions. [00:58:31] Speaker 06: that an agency can take advantage of through rulemaking, as the Bureau has done. [00:58:38] Speaker 06: The Bureau's exemption is set forth in regulation. [00:58:42] Speaker 06: And that the Privacy Act, this is subsection T, and the interface of these statutes, by the way, is described [00:58:49] Speaker 06: in OIP guidance that is publicly available. [00:58:53] Speaker 06: It's called OIP guidance, the interface between FOIA and the Privacy Act. [00:58:57] Speaker 06: This guidance explains that under subsection T of the Privacy Act, agencies can't rely on FOIA exemptions to withhold records to which individuals have access under the Privacy Act. [00:59:09] Speaker 06: So when you submit a Privacy Act request and there's no applicable exemption under the Privacy Act, you can't apply [00:59:19] Speaker 06: FOIA exemptions there may be some [00:59:22] Speaker 06: My understanding is there could be some redactions for information that's about other people because the Privacy Act gives you information about your own records, but that it's not the same kind of intensive review for multiple exemptions that FOIA has, which is, I think, in large part why the Privacy Act access under this formalized process can operate so much more quickly because we don't have to have multiple experts looking through the documents doing a painstaking review [00:59:52] Speaker 06: And we've cited cases where district courts have held that these central files are often parts or sometimes in whole exempt under FOIA. [01:00:06] Speaker 06: Exemption 7F is one that's been relied on. [01:00:08] Speaker 06: So these are requests that take a long time because they're difficult. [01:00:13] Speaker 06: These files are thousands of pages long. [01:00:17] Speaker 06: Even just the medical files that [01:00:23] Speaker 06: can be requested through the Privacy Act. [01:00:24] Speaker 06: Those can be thousands of pages long because people may be in prison for a long time. [01:00:28] Speaker 06: People have a lot of issues in prison. [01:00:30] Speaker 06: There's a lot of, you know, their whole life is in prison. [01:00:33] Speaker 06: So there's a lot of things to have records about. [01:00:37] Speaker 06: So it's not like there's kind of one or two pages when you request these. [01:00:40] Speaker 06: There can be thousands that have to be reviewed. [01:00:43] Speaker 04: Mr. Pullman, just to step back, if it seems like [01:00:48] Speaker 04: In one respect, you want us to think about the case that's followed. [01:00:51] Speaker 04: So I just want to make sure I understand. [01:00:54] Speaker 04: They're seizing on the fact that you, BOP, withdrew the Privacy Act exemption a little bit to effectively argue BOP needs to process more records under the Privacy Act. [01:01:06] Speaker 04: But they've offered no legal basis for explaining why that would be. [01:01:11] Speaker 04: And then that's right. [01:01:12] Speaker 06: There's no privacy act claim or claim under any other source of law that would require that process. [01:01:17] Speaker 04: And if this case were about EOP improperly designating their requests as complex as opposed to simple, we would have expected to see some argument about what goes into making something complex or simple and what the nature of their request is. [01:01:34] Speaker 04: But that's absent. [01:01:35] Speaker 06: That's right. [01:01:36] Speaker 06: And there's no claim that BOP selectively designates their claims as complex, but allows other [01:01:41] Speaker 06: There are a lot of lawyers that make requests for these. [01:01:43] Speaker 06: There are public defenders all around the country. [01:01:47] Speaker 06: We don't hear other groups making these same claims. [01:01:53] Speaker 06: And they have not alleged any specific unfavorable treatment here. [01:01:58] Speaker 01: So that's right. [01:01:59] Speaker 01: You quoted page 115 of the Joint Appendix a while ago. [01:02:06] Speaker 01: And is it your contention now that the [01:02:10] Speaker 01: plaintiffs here waived any claim that they're not required to show bad faith in order to get discovered? [01:02:21] Speaker 06: They just meant to show that they had advocated for the exact standard that we set out in our brief. [01:02:29] Speaker 01: At one point, but you never made that argument in your brief, did you? [01:02:34] Speaker 01: No, we did not point specifically to... Why shouldn't we say that you'd waived [01:02:39] Speaker 01: because you didn't make it in your brief. [01:02:42] Speaker 06: To the extent that you could say we waived a forfeiture argument, I just think it's relevant to demonstrate that it's kind of, it was common ground in district court and I think underscores the reasonableness of our argument. [01:02:59] Speaker 06: that discovery on these claims is judged by the general standard that applies in all FOIA claims. [01:03:07] Speaker 06: So I think it's just relevant to underscoring the reasonableness of that argument. [01:03:12] Speaker 06: And this court in, for example, Judicial Watch applied. [01:03:15] Speaker 06: Now, that case didn't involve discovery, but it borrowed other general FOIA standards and said they apply in policy and practice claims. [01:03:23] Speaker 06: So I don't think there's been any kind of special carving out for this nature of claim. [01:03:34] Speaker 03: Thanks very much. [01:03:35] Speaker 06: Thank you. [01:03:35] Speaker 06: We ask that the judgment be affirmed. [01:03:40] Speaker 03: Mr. Stafford have time. [01:03:45] Speaker 03: We use up the time on direct, but you can have a couple minutes of rebuttal. [01:03:48] Speaker 03: If you have rebuttal, you don't need to use it. [01:03:52] Speaker 05: Thank you, Your Honor. [01:03:52] Speaker 05: I'll just make a few quick points. [01:03:55] Speaker 05: The first point I want to make is that whether the individual medical records requests are subject to a streamlined FOIA process or a separate Privacy Act waived exemption. [01:04:05] Speaker 05: In our view, this really doesn't matter. [01:04:07] Speaker 05: The critical point is that the agency has demonstrated a capability of processing certain individual records requests within the FOIA time limits. [01:04:15] Speaker 05: And our view is that the agency should have to explain why other individual records requests shouldn't also receive the same treatment. [01:04:25] Speaker 05: You know, at a minimum, we think that this shows that we should get discovery and a lot of the arguments from my friend on the other side about the Privacy Act, you know, you really won't find them in the in the BAME Declaration. [01:04:36] Speaker 05: You won't you won't find a lot of the nuances and the difficulties that they're now saying that they face with these Privacy Act or certain [01:04:42] Speaker 05: types of medical records. [01:04:43] Speaker 05: None of that's really explored in the declaration. [01:04:46] Speaker 05: And I think the fact that we're now reading from internal agency documents that we've never seen about how the agency's looking at classifying certain individual records is simple. [01:04:57] Speaker 05: We think that also shows that we should, at a minimum, get discovery. [01:05:01] Speaker 05: And with respect to that, I do want to highlight that that has not been my client's experience. [01:05:06] Speaker 05: The lawyers committee [01:05:07] Speaker 05: you know we've sent dozens and dozens of requests for individual records and not once has it ever have they ever been classified as simple. [01:05:13] Speaker 05: So you know to the extent the agency has this internal decision, decisional framework for classification it's just not been our experience that it's been applied here. [01:05:23] Speaker 05: And you know finally I just want to emphasize that you know if you if you affirm here our main concern is that this is really just going to [01:05:30] Speaker 05: result in persistent non-compliance and forcing us to file over and over again the individual suits under 552A6C. [01:05:40] Speaker 05: And we just don't think that judicial watch requires that. [01:05:42] Speaker 05: Judicial watch specifically says that FOIA requires agencies to improve their record management systems to enable prompt responses without routine judicial involvement. [01:05:51] Speaker 05: And so we just don't think that the other side has a viable rule. [01:05:55] Speaker 05: And so we'd ask that you reverse. [01:05:57] Speaker 03: Thank you. [01:05:57] Speaker 03: Thank you. [01:05:58] Speaker 03: Case is submitted.