information act in american immigration lawyers association versus executive office for immigration review this court ended a longstanding practice of scoping records that is redacting portions of a record considered nonresponsive by agencies but misguided dicta from angela to a sense of subjective ad hoc definition of a record that conflicts with the text of the foyer and with common sense there are four broad reasons why the government's position is wrong and its treatment of the q a farce is incorrect volume of the law review so it's bound in one volume it's consecutively paginated but each article is different and each article is by a different author do you think that that's one single record or do you think each own record if if the balanced physical copy of a longer view we're not talking about p e d s of the individual articles the entire volume would constitute a record whether or not it would be subject to disclosure as falling under agency control i think is an important question right now i'm just trying to probe the meaning of record about what about the transcript of a trial you think you know you can imagine that each day honor i think that that would depend on how it's being maintained by the agency so in my own practice for example transcripts are usually based pay by day you have separate p d s that come from the reporter if those separate p d s are being maintained separately by the agency then each of them are records if the entire trial has been turned into a single p d f then that would be that would be a single record do you think it would depend at all on how the foyer requester phrased the request so let's say for your request or number one says i'd like the trial record and for your request or number two says i'd like the record for may nd of that trial do you think that the nature of the record would be different in the st request from the nd request i don't think that the nature of the record would be different but i think what's interesting about the nd hypothetical you post is that it does contain a sort of implicit consent to exclude portions of the record for purposes of processing the the request and i think what would be most appropriate in in that situation is for the agency to communicate with the requester and to confirm consent to exclude portions of the complete transcript at the so some types of request say you know i would like the trial transcript of this day right and so that is arguably something that exists in some form or other requests seek information about particular subjects i think perhaps like your request you know cause of actions request in this case so you know just the agency have to think about records differently with those two different types of requests some get requests are for specific documents and some are for a specific subject matter and in the latter case under the a leo decision i mean might it not be appropriate for the agency to then define the record in bill ation to the subject matter that is being sought by the request i think those considerations come in not at the point of responsiveness review into finding a record but in terms of designing a search the subject matter request is helpful when an agency constructs its search methodology and attempts to to locate potentially response of records it doesn't come in so much at the next stages of defining a record and in fact i'd like to point out that this actually add and describing to just visit a description of records the court says well responsiveness review is seems to be the st step so agencies can can define a record at that stage but it misses the search before responsiveness review can application of a control test before consideration of exceptions and agency collects a universe of potentially responsive records things that exist as maintained by the agency at the time of the request the things that get returned through search word files outlook messages excel sheets t d s those are records those are existing objective things already at the agency there really shouldn't need to be any further investigation of the subject matter of the request in order to break up things and that's all the government's position here is really just a policy based argument that's better directed at congress it doesn't grapple with the text it doesn't now to do detailed electronic searches of documents right where many documents might come up with you know just a couple of search words in it you know where as you know when for i was originally drafted i mean records were probably things that in fact existed as discrete documents and they were be a search through some paper archives you know for response of documents you know in a world of electronic searching i wonder if that is really a reasonable way to think about records where you are if anything i believe the fact that we're in an electronic world makes the application of an objective definition of a record even easier precisely because you're dealing with for example p d f it's very clear on a computer to see what exists as a discrete file whereas with paper records that can be a little more difficult as i think some of the case law and certainly older case law has dealt with but you know to return to to the reasons why the  described very well that the ordinary understanding of a record is that if it is an existing document or other permanent preserved account of past events it has to exist prior to the submission of a request with respect to the privacy act  request in most part the government didn't answer any of them in a country the two crucial things if i'm understanding you correctly two crucial points that you're making on the line your argument one is that you have that you've already mentioned that is a record exists before the requests were made i think that really has that certainly been my understanding the agency is looking for records in would they might find the relevant information and the other point as i if i'm hearing you correctly in information is not a record and that seems to be lost information may be contained in a record but information is not a record it is it is simply communicable knowledge that may or may not be in a record is that and i understand you correctly yeah i think that's right your honor i would say that this came up in the government's brief and we addressed it in our library for we where we said that our record contains information but the existence of a record is not conditioned on this subject matter content of the information or i understand that point but i think i think you're trying to make the strong point that the strong for you that the record exists before the requests made and the government is now searching for the information that is being requested in the records that already exist in the record in the format of records correct format of records because that's what the statute says talking about records are not talking about searching for information although they're certainly looking for information but the stock should causes them to look for the information in the records is your point right yes you process of identifying records that are responsive to a request right which suggests that the record isn't part defiant in relation to what is being sought after well precisely because i point for it misses the initial step in the way a process which is before responsiveness review is conducted which is what this line i think judge srinivasan is contemplating a search is conducted and potentially responsive records are compiled to be processed for responsiveness control and statutory exemptions also in a situation if that is if that is true though how are we supposed to parse whether i mean you know say in the facts of this case not even a existed as a single document and were transmitted to congress as a single document it argue basically could issue a lot of type of argument that well we only created one record for efficiency sake well that that may be the case but the agency created one record maintains it as one record transmitted to congress as one records and identified it as one record responses to cause of actions for your request and only decided to break it up break it up after the fact and then now make a request you know for all of the questions for the record from a particular day to a particular executive branch official well because actually could always yes it submitted new request part of the the government's argument though is that that shouldn't be necessary it talks about the importance of communication between the requester the government believes that cuts in favor of the chase decision but in actuality it cuts the other way because that there were there was communication between in the form of an appeal somewhat more formal communication than might otherwise occur because of action clarified what he was actually seeking cause of action had no reason to suspect that the with split up the far is the way that it did because it was concerned about efficiency or because it i believe when the government claims it didn't want to confuse cause of action institute about releasing material that wasn't related to what do you understand to be the subject matter of the request the accusations he's such broad discretion to determine what's going to be useful question about kuantan i'm obey how is that responsive to the request that cause of action submitted well what's what's responsive isn't subject matter content within the record the record in its entirety is what contemplates is being disclosed and when you're doing a responsiveness review you look at the entirety of the record and if any portion of it is responsive then the entirety is responsive in terms of the government if what if what you're thinking your honor is about the government's argument that certain sub parts of the questions were certain questions in the senate you a farce were directly related to earmarks where the decision to obligate agency finds well that information still has valuable context because it gives cause of action in one thousand of how do you have j approached one subject matter within the same set if you appeal a farce as opposed to another's it may have given short shrift for example to agency decisions to obligate funds as opposed to so if they released the word files that were just for particular questions what bapi also a record yes your honor so my experience in the executive branch often you know these questions are divided up and then they are rican piled so if they just gave congress it breaks them up sense into different components and then re composite responses the agency could have tried to look for the final responses from the different components at d o j which represented the final responses but before they i've compiled it to create a new record and those could have been processed in response because actually requests but usually didn't choose to process those records either it didn't find them just an accident of how things are placed into combined word files or p d f so is that mean is it just an it that's just sort of that's almost accidental in a way or a created for efficiency or record keeping well  wouldn't describe it as accidental i mean this is just the reality of how records are created in an agency i mean the problem isn't unique i mean it's not really a problem but the situation is not unique to q as far as i believe it court in american oversight of versus h h s for example when it was talking about e mail chains and it explained in a footnote that with each the mail change with each response that comes this was in a footnote because it wasn't exactly on point to the holding of the case but each each act by an agency employee to create a new chain creates a new record that incorporates the previous conversation so you're going to have a lot of geisha and in a sense it's an accidental creation in the same way that your honor is proposing with you a farce but the fact remains that each of those email chains is a separate record each is potentially subject to to records management obligations under the federal records act for example and each can be processed in response to a four year request so i wouldn't dismiss the fact that there exist component level records that are responsive as somehow dispositive as to the treatment of the have placed the court case in ross for the department of justice an editor owners have explained previously plaintiffs here sought information under the freedom of information act concerning government spending on various your marks including grants to various trusts apartment programs my concern just so you can have it in mind sure the government seems to be saying that you define requests as you just started doing except you slipped the new you  said what i think is appropriate you define the request by reference to the information sought then when you find the information you delete anything in the same record that's not responsive i don't know where that comes from that's simply not what for you says for a refers to records you're not you're really searching for records in would information is contained and you seem to  be treating the two as if they're one and the same they are not definitional if they're not the same info information is just communicable creating a record is something different and having a record and records include information and i think your approach smocks directly in the face of what the court held you can't go to a record and then delete pieces of it that you identify as being on responsive and that's what it seems to me you're doing i thought this was one of the sillier and simply or six cases and i can think of a lot of them that would be really hard but you have here you have a document with the title questions for the record that is questions that are in the record as the way i read it that's the title of it one title successive pages questions and answers that are numbered successively all within this one document if that isn't a record in the minds of most people i don't know what is and it looked utterly bizarre as i was reading the appendix to see your knocking out information in the record that you say is non responsive you have no legal basis and that is exactly what the court said you could not do unless that was exam information that's correct your honor but it doesn't mince decision in this case it's not if we took a single record and redacted information rather that there were many records within a set of questions for the record well out so serving and i know we can go in circles on this merely stage make it so i and other words i have this picture of this document that you created that has a title covering it all refers to itself as a record including all these questions in that record that your your title i didn't make the title and has successive pages and the questions within that single record are numbered successively and i don't know how that can be a record your honor if it bears emphasizing in this case and perhaps i can draw an analogy from judge walker's hypothetical of a lot of people you know the questions for the record in this case were submitted by various members of congress multiple senators and multiple representatives and it's you issue which contains multiple individual articles is it strains understanding why a single volume which contains multiple articles would be a single record when it each of those records was published individually would be a single whereas the physical binder of the exact same information would constitute multiple records on the playfield running says i want all the records in which george walker has published articles then each of the articles would constitute a record i want all the records in which george walker has published articles that would be the whole book you can't make the judgment about whether the rest of what's in that record they should or should not be looking at i was really kind of blown away that this was even a question that may just show my age but i never never saw this in the old days than that and that doesn't win a case but it just it's to let you know why i'm flabbergasted this is so straightforwardly erected in my mind i can't find a way to make it other than a record this is what you put in the record in the appendix that is so straightforwardly a record and what you've done is take pieces of information out of an obvious record because you don't think it's response to what they're really looking for and we've already said you can't do that so your honor i think that the government's position here is rather that a record is a as a unit is defined by to my mind concede it or alice rather that each of those individual word documents would have constituted a record it simply by virtue of the fact that information here was transmitted between branches of government for six of efficiency or you know then the interesting question would be to and extend that and see what the and i can suspect what the government wants to do take each one of those word documents you would have found them as a record and then you would have gone through each paragraph and deleted each paragraph saying those paragraphs are not really responsive to what they're looking for a subject that which you cannot do something judge rouse the question i think is perfectly apt the record is the word document and what i'm saying to you is you can't now go through that record and delete pieces of it because you don't think it's responses to what they're really looking for that makes no sense to me i understand as a brit and i think that the my the excuse me the government's position here is rather that we're not delet government is not the leading portions of our records rather are defining records according to the nature of this particular request so that it's responsive and is able to efficiently provide information that the government has in that's where you or you are trying to build a bridge between information and records and i think you cannot do definitional if they're different information of all sorts can be contained in a record and they may not be related to each other it doesn't make the record any less a record because the pieces of information in it are not obviously connected that's your premise and i don't get it that's why i looked everywhere and i find no one suggesting now the government can have a record system that says let's not ever have records that include information that are not related in some way that's fine if you do that and that's clearly the way you set it up then it's a different case but that's  one is a request that identifies a record itself that may exist as a record and the other is requests that are for particular forms of information that of course would be found in records but that don't necessarily describe the records themselves and and it seems to me that the o ip guidance treats those two those two types of requests differently and i'm wondering if you can explain what the justification  that different treatment but your honor i think st i'll start by noting that that guidance was released in response to this court's decision in the american immigration lawyers association and with an effort to provide guidance and it's not legally binding but is an effort to provide guidance throughout the government as to how to efficiently respond to foyer quests that said there may be situations in which a record can be just defined a to a particular request and other circumstances in which a record is more correctly defined in response to a particular request and i present this i think in an effort to fully satisfy so for example here it would be one thing if a foyer request or as plaintiff counsel was burning to requested for example all questions for the record in response to attorney general holder's sitting before congress in and twenty to plaintiff counsel seem to suggest that the government have treated different responses are skewed mean different questions from members of congress differently and in order to suss that out plaintiff should have requested all of the questions and answers in response to attorney general holder's appearance and as the government has explained in this case we would have disclosed that information possibly as a single record but in this particular case you know  what you're supposed to read you're supposed to give them a record not responsive material you're making the point over and over again that is legally wrong your op and that's what our case says you are supposed to turn over a record and you can exclude anything in that record that is exempt you're exactly what you supposed to turn over the record and you keep going to the point because i know this is what you're doing and it's flying right in the face of what we said you  you look for the information you find it in records and then use the original leading to base based on what you think they really want that's not what the boy has ever been intended to mean that's not for you they're entitled to everything that is in that record even if you do the government don't think they really need we have never previously though define precisely what constitutes a record then no i understand  two you know says what an agency record comprises but that constitute that is meant to constitute the universe of agency records which are subject to a search in the st instance which is the subject of cases such as department of justice the tax analysts and kissinger or the reporters for freedom of press this case instead asks a different question what is a unit that comprises a record and foyer provides no guidance in that respect and the government in this particular case has sought to explain what there's a series of questions from senator feingold that are not consecutively paginate it with the other set of questions that were answered on that same day do you happen to know if it's and if it's well mr ross if you could just saying it sounds like the government believes it's entitled to you know some type of leeway in defining a record and i'm wondering where the government finds support for that position it's not  more efficient to someone so that even the assignment to argue now go through this thing that we picked up very quickly in here in houston single document and rather than turning that over you now say now go through and let's try and figure out the government receives a toy request you know the determination of what constitutes a record and what is a response of record is a fairly straightforward inquiry and can be done by you know subject matter experts in that particular agency in this case the office of information policy and those records can then be determined for consider for processing that is or whether any of the material in those records should be kept that's or not disclosed under the boy exemptions now that the decision whether to withhold material pursuant to a full exemption is not when the government takes lightly and requires consideration of many different stakeholders you know many government equities must be considered in whether to invoke a foia exception and it attempt it would create a huge backlog specially for the government to process much more material in response to a specific request which hurts not only the information in it responsibly or not is not the inquiry and you will not be wasting time trying to figure that out you just pull out that document which is a record self evidently a record and you handed to them is a very difficult decision to make and under your honour's understanding here processing these particular files would have taken a substantially longer period of time just for the government to be able to determine which exemptions to invoke and if if the government chooses not to invoke an exemption of course that's waived for perpetuity once that the government discloses something publicly it can no longer invokes why exception and subsequent cases so all i'm trying to say is that there's a substantial daylight between disc determining what a record is and whether to invoke any fly exceptions within that record and so that's why the government's position here is rather to identify responsive records according to a particular  go through it and you did two things one i understand always takes time what's exam what's not and then you spend additional time in that one record deciding what you thought was non responsive and you spent all that time crossing that material out which the law does not ask you to do you agree it was a record it was a wreck it when you found it and that when you did two things you look for example or tiriel and then you look what for what you thought was non respons has some of what they're looking for the law says you've given the whole record you said no we're going to go through the records see what's exempt if anything and then we additionally we're going to take the time to go through that record again to see what pieces of it we're going to take out because we don't think it's responsive i guess in part the question is when you have a document who decides whether that document is a collection of records or whether it is a single record and my understanding is here when you located the questions for the rocker the government determined that that was a series of records that were cut into one document instead of just a single record government agency oh go look in file twenty two and you'll find question three in the answer that's a record in there under what richard filing system would anyone would do that it makes no sense i understand there is this difficulty in defining precisely what is in his not a record but there are some things that seem to me as so clearly for records and i don't understand conceptually how you think anyone or any normal person would handle question three is a record and go file it because as record management where do you put it as a record it's make it rhetorical i i'm just letting you know so you understand my concern i don't get the position and it looks like it's inconsistent with what we said did get some clarification of something you see you said earlier in response i want to check that were his questions the order that you d o j would have gone in you could imagine them taking out everything that's ex which is time consuming and then taking out everything that's not relevant in their opinion or you can imagine them doing it in the reverse order taking out everything that's relevant which is probably a pretty quick exercise and the universe of things that are that are relevant and therefore need to be subject to the exemption inquiry is a much smaller universe which would actually make this process probably faster then if you had to go question by question and figure out for every question does an exemption apply now that doesn't mean that you're right about the statutory meaning the meaning of the statutory term record but if we were if our only goal were to make things as easy as possible for d o j as fast and efficient as possible it my in my right that it would depend on what order you go in so far as i understand your question your honor that's correct the did and this briefly with if you know the answer to my original question is there something in the record and a declaration and affidavit something that gives me some insight on whether that the feinstein document was sent as a separate attachment from the other consecutively paginated questions i don't believe that there's anything to that effect in the fact as i understand it the record reflects that it was sent together but i checked the appendix in your honor you are right that those two pages are not pag along with the preceeding pages but i think the record is unclear i just have five quick points in response to what government counsel discussed with your honor's st fortune v harris one thousand nine hundred and eighty very very early in the ways history court explained that provides access to records not information in the abstract it's true that there's never been a court that addressed the precise definition of a record until now at the appellate level but i think that's because like edwards suggested it's just common sense we don't need a judicial decision what a record is because it shouldn't be subject to such a convoluted approach as set out in the ip guidance with respect to governing council suggestion that there's case law saying that there's no definition of a record most of that case law doesn't in fact all of it except for a lot says there is no definition of agency record and agency record is a distinct concept from record finally you don't judge way that is the record and then finally again all that the government offers are policy based efficiency concerns obviously application of the oh i p guidance and this attempt to define records you know after you've identified something that's possibly a record but not actually records that's convoluted it's not straightforward we wouldn't be having this case if it were so easy as the government contends i don't understand the efficiency concerns because whether or not you're segmenting a record in determining whether it is a record under a white piece guidance or that it's exempt you're taking the same amount of time and if there is no further review by superiors as to the segmentation of a record that's deeply concerning because that is as important