to three components of the partment of justice under way and the privacy act those statutes require agencies and courts to strike a balance between privacy interests and the fundamental need for disclosure with boyah placing an especially large thumb on the scale in favor of the latter yet throughout this case the government has made a series of privacy only arguments on every major issue those arguments conflict with lawyers general philosophy of disclosure in nevertheless granting summary judgment to the agencies in this case the district court made three significant errors st the court allowed the f b i and the executive office for u s attorneys to withhold documents under poirot exemption three even though the child victims and witnesses rights act is not withholding statute and does not require withholding of the documents at issue here nd the court granted summary judgment you know usa when you know usa failed to release any documents under the privacy act and never invoked any privacy act exemptions and rd the court entered summary judgment without even recognizing that the justice management division had failed to even conduct a search though mr chorley had included a copy of his boy request with his appeal letter for these reasons we believe the judgment below should be vacated or reversed on these issues now starting with the st issue exemption three issue in order to withhold documents under exemption three an agency has to meet two steps of the standard st they have to show that the child victims act is a withholding statute as a general matter and nd even if it is the agencies have to show that the documents that mr cooley is seeking for within the statute reads if they fail me either of those two steps then they are not able to withhold documents under exemption three and here the agencies would fail at both steps at step one in terms of determining whether this is a we're holding statute to begin with department of justice versus julian shows that this statute is not withholding  who doesn't have a reason to know should be able to see and then it has only one exception it just says one exception says that it says it can be disclosed only to persons who by their participation the proceedings have reason to know so why isn't this just the standard is the statute says that then a disclosure statute is one that requires that matters be withheld from the public in such a manner so we have no discretion and this doesn't seem to leave any discretion it prohibits it requires it that it kept secret and it think it's a little hard to divorce this from the ruling in julian because the statutes at issue there were very similar the only people who are allowed to have access to the pre sentence reports in the laws in at issue of julian where the defendant and the defendant's coun and yet the supreme court said that because it allowed for that disclosure it authorized that disclosure it's not a withholding statute and here we don't have exactly the same level you know of complete mandatory authorization but we do have the situation where clearly carves out people who are authorized to receive this there's also subsection d for which again reiterate that it does not prohibit disclose or do you think i don't mean to interrupt you but before we leave the supreme court decision it not to protect the reports from the structure whereas this statute does well again though in julian the statutes at issue there are only allowed it to be disclosed to certain people and so again you know we have a situation where there's disclosure allowed to a certain small subset of people not necessarily to the public and so they are very much on all fours you have situations where both of them authorized disclosure to defend its independence though they try to prevent further disclosure outward in both cases and into early in itself it notes that there was a series of changes made to the statute in order to facilitate disclosure and it says for example in  amended the rule to allow the courts to disclose this information to defendants and then there were a series of further amendments that went even further after that but the court was noting that this was a series of amendments starting with the one that allowed courts to disclose this information to defendants that showed that there was a desire to facilitate some disclosure and the other thing to keep in mind here in terms of the text of the statute is that this statute was designed to balance the privacy interests that issue with the constitutional rights of defendants as well as the rights of these other actors that the statute specifically created and allowed access to the proceedings guardians ad litum adult attendance et there is this question about whether he still qualifies as that as a defendant because he was the defendant in the proceedings at issue but those proceedings have ended i will note that when he requested these documents he was seeking them in order to even his appeal so while the t rial proceedings were over it was still part of his case but regardless the question for exemption three is not whether under the statute himself he's a defendant because even in julian the people there were no longer defendants they were inmates as the court said they were not in the periods of time where the statute explicitly allowed for disclosure to them they were just sitting in jail they had already been sentenced well if you get what is your response to the government's distinction here right well i mean st of all he is in the sense that he is one of the people who was allowed to have this information under the statute but more fundamentally that argument doesn't deal with the exemption three portion of the  julian that deals with the exemption five discussion in julian there were two exemptions issued and julian and if you read through julian it does the entire exemption three analysis without even talking about this question of a special access right it's when it gets to exemption five where they say normally we would not allow this information to be disclosed because this is the subject of the report themself is the beneficiary of that privilege that discovery privilege that therefore we would allow this to be disclosed to this particular person and if you look at justice the lias dissents that's where he joins us you with the majority is this question of exemption father saying we're creating a special access right where one person that's not part of the exemption three discussion julian and so i think that we're talking about exemptions three that special access issue is not the rectory relevant it's question of whether the statute creates an authorization of disclosure to particular people and one other thing i notice about that on the have access to all reports evaluations and records except attorneys work product necessary to effectively advocate for the child so there we have yet another example in addition to the privacy provisions themselves including the four we now have eighty two in the statu particular types of matters to be withheld right it doesn't have to be everything is what held our categorical what quality of information right now again the category that we're talking about in terms of what's even covered by the provision itself is the specific set of documents that refer to a child but again even within that there is this question of is it requiring withholding  entirely and again that's that's where julian comes into play here because even though yes it's referring to a specific set of documents in julian it was referencing one particular document it was referencing a pre sentence reports about the text of exemption three it would seem to fall within exemption three of saying here is this document that we are only allowing one person and their term to see it and there are certain types of information within that that even that that defendant can't see and that information is not protected once that person becomes an adult it's not right i think that it would be protected but not under this particular statute what why would congress have passed such a s is a photograph of a rat is a graphic photograph of a seventeen year old no longer a document concerning the child when that seventeen year old is twenty five dollars i think it's  certainly i certainly think that that's a plausible reading of the statute i think that there are two problems with it one textual and one in terms of consequences in terms of the text again i think we're talking  photograph of a child i think again because there's a statutory definition as opposed to our normal way of thinking about a child but isn't that statutory definition refers to a person who is under the age  dictionary act makes it very clear that you look at the context and the purpose of statute and in the sense it's yes of course i mean and there again i think a couple things one the overall context of the statute in the purpose of the statute is meant to help people while they are children to be able to tell their stories to law enforcement and to be able to testify at trial and so again the vast majority of the statute doesn't make any sense when someone turns eighteen you know use the term concerning a child's right so they all refer to a child and so maybe that definition makes sense to someone under eighteen you know with respect to those provisions but to judge tables point i mean why is a picture of a minor you know of a child it's not always a document concerning a child because the document itself the photo or the you know whatever material is in that document is always concerning a child even if that person is now an adult well i think again this gets into problems of application as well i think that it would have you know if we go beyond just thinking about a photograph this would have some applications that seem very much at odds with the statute so if you have someone who's fifty years old and for the st time comes out and says when i was ten years old i was assaulted and gives a statement to police under this reading of concerning a child that statement would have to be kept under lock and key forever because the person it's describing is describing events that happened when this person was ten years old but they're fifty years old now that when they made the statement their miles away from being able to still have a privacy interest and not having the that's why the privacy interest would be you know would be any different and also that doesn't explain this you know concerning language which seems to me unless i'm missing something only to be used with respect to the privacy protections right that that is something different and right you know it's concerning a child i think that you say the statute uses that phrase multiple times in the context of the privacy protections but not in the context of the other treatments that's right not right a think that again this is a matter of not thinking about their child colloquially and inserting the statutory definition of a child and thinking about it again in context as judge channel pointed out looking at what the statute is trying to do because again yes they certainly have privacy interests if you're a fifty year old you're talking about something that happened when you were ten but the question is does this statute was the statute meant to deal with that privacy interest or were previously existing doctrines  st amendment balancing test for example and in the oil context exemption six and seven c were those already enough to handle that and here congress was trying to say when we have a situation where we have children people of her son who is under the age of eighteen and they are in need of help in terms of telling their story to law enforcement and participating in the proceedings as they're occurring and that that's why it makes sense to think of this at and to take the statutory the statute the following way i read the statute is three thousand five hundred and nine a to find who is the person we're talking about the rest of the statute and that's a person who is under the even having the kids to consider the policy questions but i think you know other part other purpose yeah i think i think the problem there is that it adds words to the statutory definition it outlawed words when the when the offense occurred a person who is under eighteen at the time the offense occurred and we pointed to a number of statutes in our reply brief that actually do that when congress wants to set the reference point at the time at which the offense occurred it says that either explicitly says under eighteen when the offense occurred or something similar to that or it says you know in the in the juvenile justice statute it talks about her she was under eighteen when they committed the crime and here doesn't do that and again point out that you know if we're looking beyond just the the privacy provision because the statutory definition applies across the entire statute many many provisions of the statute don't make very much sense if you're seeing this t of the offense and someone could be far older than eighteen at the time the trial is occurring and you're talking about appointing a guardian ad litum you're talking about an adult attendance you're talking about having a competency hearing to determine whether they are able to testify these are all provisions that are dealing with the situation that congress had in mind which is someone who is still a child in the midst of these proceedings and wanting to testify but that's really going on in europe and the rest you would make is that  right at the very least i think it's ambiguous and i think when you're dealing with this question of withholding statute i think that's something to pay attention to i don't think obviously that means you need to have an unambiguous statute here because we're just dealing with boy as opposed to the entire interpretation of the statute but i think it's something to keep in mind i also point out that you only get this far if you first get past the question of whether this is a withholding morning your honour's peer fafnir all for the government eat privacy question this entire provision that we've been discussing is about privacy privacy protection and quote unquote confidentiality of information and it's about protecting children that's what congress was doing by enacting the statute the notion that the statutory language defining child somehow evaporates when someone becomes a teen because there happens to be the moment when they testify or that happens to be the moment when the victim finally takes the stand or a witness finally takes the stand just doesn't make sense in logically or in terms of the language itself you are a victim the moment that mr chorley sexually traffics you and in this case the jury found that each of the girls was under age at the time and that she w i don't think that's actually a necessary way to read it you know that feeling you're reading is actually you're reading it i'm reading it that judge told him i don't mean to fight you on this but the person honor the person is a victim and that person will remain a victim for all time because she was sexually traffic by mr chorley when she was sixteen years old she is a victim forever yes hopefully s to a ripe old age but she'll still be a victim of sexual trafficking of minor i think i think i understand your point let's assume however that it's ambiguous then what then congress did the balancing and the reality is that the the notion that foyer is a disclosure statute and therefore we have to err in favor of disclosure that notion really doesn't have much force in the exemption three context where congress has already done the balancing right if we were talking about some of the national security statutes that you know are well established as exemptions three withholding statutes even if there was a little bit of ambiguity there the fact is we congress determined that national security secrets need to be kept secret and we're not going to interpret that ambiguity in favor of  know not there's not a single you know the department of justice as the agency that is applying all these criminal statutes and is the agency that is clearly charged u that's right just opperman the purpose of the statue clearly is to both protect the privacy of the individual who was victimized the spider and to keep protecting that person right the statute talks about keeping the material under seal and there's no time with that ceiling expires and the statute and congress also i think it is reasonable to infer given the overall provisions and nine in terms of facilitating potentially very nervous children to participate fully and meaningfully in criminal prosecutions of their sale a would want to provide a variety of ways of making those children comfortable and other provisions talked about you know having a guardian ad litum or somebody that they could sit on the lap for what have you but this provision was all about the privacy and many children would reasonably and their parents who were advising them and things like that would reasonably be fairy concerned about the long term implications of the facts underlying this prosecution coming out i think the supreme court has already has already hinted well not even just hinted it said how it feels about this issue generally before section three thousand five hundred and nine what became law in globe newspaper where it talks about the critical importance of know if you'd be helpful to the court i'd be happy to research it and submit a letter or whatever you like that's ok now just no no no need to the last thing in this case is longer br right any other questions you have anything else you want to add to what about anything you want to say about the other issues i would like to present our priests your honors and if i would simply ask that the decision be affirmed ok batten rob was making about them of witness being a forever status that's very much true and so grammatically you say someone is a victim or witness forever that's not the same when you're saying someone is under the age of eighteen once you turn eight say they that this person is under the age of eighteen no longer makes and grammatical sense so i think that those two things even though you see is for both grammar clearly creates a difference there i also think that again you're having to balance constitutional rights here and that the globe newspaper decision shows that there are other ways to balance these rights aside from just this statute so we don't necessarily have to read the policy of the statute to the ends of the earth in order to want to have a constitutional allowed to receive a lot of these documents you could have pretty problems you could have at around think you would you acknowledge is not at issue here it is in the sense that exemption three is about the underlying statute it's not so much about oil as interests it's about what does the statute itself say and what is the statute itself doing and when you're just doing a statutory interpretation of the child victims act but you do have to consider the fact that there was this balancing going on in the creation of the statute itself on the other issues on point out that that on the e o u s a privacy act issue the only arguments the government has were that these are not agencies even though clearly the statutory definition of agencies includes these subcomponents and this court has gotten very close to the line of already saying that these are separate agencies and as you point out in the reply brief none of the search none of the documents that they point to are actually shows that you