external criticism of their published research according to us g s government scientists can hide behind the deliberative process privilege simply by labeling essential study related data as exploratory analysis if u s g s is correct that the deliberative process privilege applies to scientists thinking virtually all federal government research is going to be covered by an exemption and the supposed to be construed narrowly we believe that concealing scientific data so that a study cannot be discredited is not the purpose of the delimiter process privilege for example out of two hundred options they have here that's correct you have a government counsel will tell you where she is has produced tens of thousands of pages of raw laboratory data those data are primarily sediment chemical analyses and measurements they are useless to us without the computer modeling inputs and outputs that we seek in this case many state and local governments  scientists would pull the right they know the question they have all the raw data they know what models remains they could run it and then they could tweak and redesign the models to test just like the scientist in what scientists do why can't you do your own model runs with the same d i think that one of the study authors dr van meter answers your question and in his declaration we're hearing spleens that there were so many possible combinations of inputs for a given  information to understand repair government and you can test the government's theory because you have the data with respect your honor all we can do with the data there's been provided is to try to replicate what the study  not just the roi data we need to have the input and output data so that we can run those other two hundred dollars models and see for example whether they report the present the data that they put were not just the raw data but the parameters and the combinations of parameters which dr brende meter says are virtually limitless and we wanted to see how those other two mouthing runs come out and see whether they really do support what's in the published or the or whether they undermine it and i'd like to point out in other words you want to be able to see whether in their deliberations they deliberated and reached the best conclusion or not right i well i wouldn't call that the liberations that i was we didn't want to know whether  their study for examples of hers from confirmation bias where i mean might my point sir is that to say that you aren't really seeking to understand the deliberative process of the scientists seems to be like saying that there is no gambling going on in casablanca i mean the whole purpose of this request is that you want to undermine their deliberative process because you think that it is been infected by bias or war or incompetence or or whatever right well yes do want to invade their deliberative process but you believe that scientific deliberate process is not covered because that's not a policy deliberative process  right it's not only not policy and then falls within the distinction that the supreme court and the d c circuit has drawn for many years between purely factual  information and drafts and so forth that go into the formation of policies and recommendations we are not seeking for example any notes were memos or e mails that these scientists may have generated that analyze or evaluate or discuss the modeling runs we're not asking for drafts of the study we're not asking for internal u s g s comments on the study what we are asking for is pure scientific data which are contained on spreadsheets charts and graphs and i might point out the u s g s his own internal manual the finds dave as non interpreter and i'd like to refer the court  you have all the data it's just doesn't come with a label input in how well your honor we do not have the input and output data another term for that is the modeling runs ok that's different than let's let's just more than two hundred dollars of them and us yes has refused to produce them and cannot test relate studies and solutions without those other two hundred dollars model runs we cannot do it just with tens of thousands of pages of r the language here is it is troubling to me because they've made all the data public and the article went to a scientific theory if you process in fact you have a number of to members of the public ready well we originally filed a very broad way request which would have compas that and i have no reason to believe that it withheld model runs if they had been provided to peer reviewers for the purpose of peer review that wouldn't mean that they were public in the sense of they that they still there would be outside the protection of the deliberative process privilege employer right because the piri viewers would have been reviewing them kind of this on the same terms that someone reviews a draft article for publication with the requisite confidentiality you know protections and read that flow with that right i well the peer reviewers substance of an editorial comment on the proposed publications would be covered by the privilege we're not seeking that we're just seeking the data and my understanding morning your honour's morning may please the court i'm just cop on behalf of the government the preliminary model runs are deliberative because they reflect agency scientists evolving thinking about how to interpret and make sense of the raw data survey has already disclosed all of the facts the raw data specifically piece d t c has received the chemical analyses of the lake segment samples and the ph fingerprints of the potential sources of contamination their own scientists could use that raw data to create any model runs that they wish with a geological survey has withheld are selective compilations and analyses of that rate of that raw data that reflect the process by which agency scientists interpreted and analyzed the data part of the scientific review processes some of them were some of these preliminary model runs were encompassed in preliminary drafts of the study which were sent to reviewers within the geological survey and at the and that's your yes the district court considered the consultant corollary p c t she made an argument a on that basis in the district court and they have chosen not to appeal that so they have not relevant agency decision and issue here to which these it's model around selection and you describe that the decision to publish not just the a brigantine decision to publish  and they made these decisions about their model runs i don't believe that all of them were disclosed to those approving officials the approving officials may have seen some of the preliminary drafts they certainly knew that these preliminary model runs existed and they were relying on the feedback that has to be to inform the ultimate decision makers decision so what i'm trying to find is where there's anything in this that explains how these two scientists were running in their models the laboratory or office or wherever they did it in making these they were doing man two and swarm the alternate decision makers determination about whether to publish or not as opposed publish or not and you have to make that connection there you're deliberate decisions not to be met person months or years later about whether to publish or not i don't believe that there is any case that has held that the ultimate decision i worked in government and we would sit around and shoot the breeze debating issues are it's not me or any ultimate decision made by the agency they were deliberative between us they weren't mean an agency decision makers finally  and i'm having a lot of trouble getting this may just be my ignorance scientific process getting from their deliberations about their scientific study is to those decisions were being made to ins who were the decision maker way down the route who decided whether to well their deliberations were certainly made in order to ensure that what they presented to the decision of the ultimate decision maker would be test or break the model so for instance scientists would use a pristine mountain lake and give the model only urban sources of ph and the goal was to see if the model would work in returning essentially the result that there is no result and so you know some of those models were certainly not presented you know didn't need to be presented to the approving official they were absolutely essential to the scientists process of reaching the most reliable model results form to publish and that in what form certainly includes what results to publish so and with which model runs what the ultimate conclusions are of what are the main contributors of hear all of these one hundred and ninety six will i don't believe that he saw all of the preliminary model runs i do believe that he saw the input that the authors received from their peers some of whom had seen these preliminary model runs i believe that the approving official took a look look at the process  agency scientists had been through including their formulation of some of these model runs but we don't have any of that in the record right that is correct i don't believe that what the approving officials look at is in the record but again i don't think it is necessary because these agency officials are acting on behalf of the agency and the deliberate process religious you know the process of the agency including the lower level scientists have you have the burden of a stablish ing appellant doesn't have the burden plaintiffs don't have that burden that's correct but i don't think it's relevant what the approving official saw or didn't see what's relevant is that the agency officials the agency scientists in as part of their decision making process were using these preliminary model runs to test out their hypotheses and to test out different approaches for analyzing the raw data and what's in the record is that and what you've said in your brief is basically kind of how you calibrate a model right just as this is standard this is something that's done in any instance where you're trying to develop a model to to replicate or to you know  try to replicate and answer a question right running preliminary model runs i believe it's quite standard which if that's the case then where is there evidence in the record that if we disclose these model runs we ordered their disclosure that it will discourage them from being done in the future or that it will somehow harm the quality of future agency decision making which models scientists run is an extremely subjective you know it's not it is an exercise of subjective quantitative and qualitative judgment and we can declarations i believe that dr van meter and dr van while i plead that they both say that they would be discouraged from running some of these preliminary models if they knew that if i did not see that i'd like for you to find that language because i looked for it and i didn't see it yes i can take a quick i think that the best that they say if you look at j twenty seven dr van meter is that it will give outsiders an opportunity to confuse the public and discredit our  work and so they say that they don't you know they think that's something bad that will happen but they never says that in the future then i'll do a luminary model runs differently or  disclosure of this is going to kind of change the way that we do we do our business i'm not sure if they explicitly say that it would change the way they do their business they do say it as you mention that it would confuse the public and i believe st of all that is its own interest protected by the deliberative process privilege of public confusion but you know i think that we can certainly imagine you know if we took another context for example climate change it can see officials knew that climate that you know the climate change research all their preliminary models would be disclosed to the public interest officials my pressure lower level scientists only run certain models that are consistent with what those agency officials want to ultimately publish or the scientists themselves make me feel inhibited from running sort of models if they are afraid that those models will show something other than what they think they're said there are many layers of reviews and layers apparently there's somebody at the end yes we will publish this in the name of the u s geological survey or at least they can use their time does that a year or so before and they run a model around and they go that's crazy it was part of there's a situation or whether it's someone way down the line this person whether she next think we need to be deliberative process i think this is no different than those draft agency histories that were at issue in me and russell in those cases the court wasn't concerned whether the ultimate decision maker had viewed the preliminary draft if there was a preliminary draft that got changed somewhere along the process somewhere on its way up to the to the official in the air force that was going to ultimately approve whether these draft histories were made public that was enough to know that because it exposes t deliberative process of the primary author really of anyone inside of the agency that's helping to formulate the history at issue and so you know those those cases also of course involved in vol publications rather scientists ultimate conclusion was scientific relationship that's right i believe the intent of the i can't speak to the intent of the journal but i believe that it is to inform the journal whether those papers worthy of publication but also to help of the study authors get the publication into shape because it's not to the reviewers don't give a yes or no up publication i think that is one of the purposes but again i do believe that part of the you know that in the journal is also it doesn't slip through if you were only for its own benefit of you know giving a yes or no but also to contribute to the scientific discussion into eighty authors in improving their research their view among the models on the floor that they disclose and then they discuss what they found so now you're the appellant is seeking not simply the wrong gaita but it wants the work it wants to understand the background to the work up the document that was alternately published as i understand it anything that went into that that the parties the scientists the head of the survey didn't agree to publish it simply unavailable you have the wrong data you have the published study with the four ringback and in that sense there's a deliberation going on as far as the scientists are concerned that's right what p c t seeks are the approaches or in two approaches two or the interpretations of data that the scientists or to me decide were not those that were the most reliable and and worthy of publication so using the raw data scientists could run these exact same models what they wouldn't know is whether that model is one that and that the u s g s scientists considered before settling on their four final models that were worthy of publication so what they seek is insight into the deliberative process i mean a exactly they have the raw data they have the results what they don't know is is what approach the scientists use to interpret that data on the path from getting from raw data to ultimate publication yes thank you well again we're not seeking interpretations we're only seeking the jointer of modeling runs and we heard government counsel just explain that with the s of thousands of pages of raw laboratory data that they are provided we can try to somehow do our own mai ling runs with all these limitless possible combinations of input variables and try to guess what their two hundred mile runs were i'd like to refer the court to the declaration of u s g s for our officer brian may he says in his declaration st of all that the withheld model runs were not used in the final decision officials quote internal discussions and quote tinted feedback to the study authors that quote comprised the u s g s to deliver their process we're not asking for any documents reflecting those internal discussions we're not asking for any documents reflecting the candid feedback that the approving officials gave to the study authors we're just we're not asking for any deliberative documents we just want the modeling r n which we've described as the input and output data and the other point i'd like to me i question then is i know you characterize it that way but is that an accurate way to characterize it  is to take the raw data does something with it right yes i think the i think the answer to your question judge rogers is that we're in the declaration  van meter who is one of the two study authors she explains in detail not only how they selected the particular computer model of also how they formulated a modeling run explains that the element that goes in for twenty the raw data and i'll call a draft and then it goes through some method and if the court were to do that in this case it would set a precedent for federal government scientists in you know all agencies that employ federal government scientists and any better all government scientist just by canting modeling day that as exploratory analysis and saying well it was my scientific deliberations we'd be able to hide the ball which is exerts saying you're saying that that would be we would be taking in the unprecedented step but i don't recall seeing you cite anything that says precedent wise that says that science the scientific method is outside of the deliberate process and the agency had to release all of that now where between the raw data and the ultimate study american radio that the study you're asking for something that happened in between and the question is whether or not that comes with an exemption five or not no our request refers to her been like study just like there was a study involved in the american radio relay case and what my understanding from reading that case is what the f c c was trying to do in that case was to hide and that's a true bessel were used to decision method or could be the publication of the study and what we have here you know is a is a scientific process that the study authors conducted running more than two hundred dollars modeling runs  that culminated in a proposed publication which according to their words only disclosed the modeling runs where they considered for best buy i think scenarios mining scenarios that let's say finking that's also the term used in their brief to plating that with the agencies deliberative process on whether to publish the stuff that is presented to them by agency scientists and again why o says that the modeling runs are withheld were not used in that final agency decision he says what was the u s g s deliver the process where the internal discussions among the this is a very influential study as we point out in our brief it has it along with the house a study which we haven't had time to discuss here but as discussed in our brief have you made many state and local governments to ban this to essentially recommend that state and local governments bama product so so we have the agency promoting a published study hiding the ball the ball being what we  those of the four that i think best support our conclusion yes that's a that's what they're saying and we wonder whether with they consider their best we're creating experts who i'm sorry your honor it's a these are the best and the argument is maybe they're not the best maybe scientists are no good and presumably that you know most scientists who would an approach this question would approach it in similar ways we can only do that your honor with two hundred realize we're talking about money here right and setting up a whole chemistry lab yes that i mean yes you understand what it is we think that in a normal situation the deliberative process would cover you're saying all the bork you do and you may be right all the work that is done is reaching your conclusion means that if you're on the government payroll it over and if you're a if you work for a corporation or for a university there'd be no question that you have to make these two hundred mildly runs that the study authors ran so so let's suppose that the agency that we were dealing with was an agency like the e p a in what the scientists had done was developed a model that was used to ultimately promulgated a regulation by the e p a to regulate or restrict or ban in some way inputs whether the outputs and so it doesn't turn on whether the agency is a policy making agency or not you're just saying that this is science in saying that the model runs themselves don't reveal the deliberative process i'm trying to understand saying the former your honor that inside his thinking is not covered by the will of the process privilege and use the words again we say the number of cases but i think american radio relay is close it says quote purely factual investigative matters close quote are not protected the privilege is designed to protect hypothetical and and i mean doesn't the doesn't your own briefing i mean part of your own briefing is is that the data and is not helpful because we need to know kind of like which data they selected and in in in which models they ran so disclosing that discloses they're thinking this isn't just data it's disclosing choices that those scientists made right now that is exactly correct we submit that that type of scientific thinking is not the type the liberation that is intended to be covered by a narrow privilege that goes to the formulation and recommendation of agency power sees and there and the result of the proposition american radio relay i think that's that's one very good case yes national home builders is another one all right thank you