disenfranchised due to an unfair hiring process to gain basic information about their scores in the exam and what happened it's a high profile case it garnered lots of media attention  lots of congressional and tension mr o hasse was involved and a collegiate training institution program established by the f a a to train air traffic controllers approx thirty six universities across the country had these he was enroll the pay tuition and under the agreement with the f a a candidates it successfully passed the c g i program passed an aptitude test called the ad sat at that time a peer reviewed attitude tested have been in use for many years and the studies had been previously published to show it was a valid test if they could pass a physical and some other opium are assertion of course is that since he asked for his score in iraq cut off score that he should have been able to obtain his score his raw score on the exam personnel practices and how they examined applicants and their determination on that so the opposing counsel argues that this is squarely within the exemption to within the the privacy so so why why isn't that correct that is certainly seems like testing results is its core personnel material well the material is the information used at least is defined in the dictionary to actually form the test the testing material the studies potentially information from different experts put together to actually make the test the test itself with the questions for the task he's simply asking for a raw score on the raw score is the results of the test materials he's not asking for test materials itself he's asking for a score so the reason that under the privacy act i think which we need to address first because if it is if privacy act exemption case six does not apply mr officer the privacy act is entitled i believe to those records is there about him he didn't ask for thousands of records he didn't ask  affidavit and i guess there is some other evidence in the record also indicates that the individuals who took the test were aggregating all their the information and from the aggregation of that screen shot and get each inquiry and get together with other people and figure out well what answers lead to what scores it's not at all implausible to me that in fact this could be the key that unlocks the door to figure out how my supposed answer these reverse engineering that with this the raw score and their own score more importantly the standard for asserting exemption cases in the privacy act is with the release compromised the objective of the or the fairness of the because of the news media attention behind this i believe a political decision was made to stop using this as a screening and assessment test so it's really a moot point was th as i know they made an official public pronouncement i don't know what went on behind the scenes around this time however we know congress was asking them to stop using this to not use this is a tool and eventually legislation was passed which prevented the f a a from using this as a tool while they're not ready lation while the test was still in effect it seems that your answer to judge clifton depends on the idea that other people aren't also requesting their scores do we have any information about that we have no information in fact as far as i understand and no we are the only mr asa the only individual requested his score and the cut off score he didn't request anything past that  x how far off was i and he want to know what the raw cutoff score was so he could understand where he may have failed now with that said this is exactly what the privacy act is designed to allow someone to do obtain government records about themselves and certainly if it doesn't affect the objectivity or fairness of the process and we believe that the extreme measures measures ar possibly a positive habit but that's no longer a possibility since you have a has stated publicly that they're not going to use the be a or b q exams and in fact there's legislation passed by congress and twenty do you have a change that tells us we look at that question as of today when we're answering it as opposed to when the rejection was made by the agency i don't your honor the only thing i could say is circumstances had had changed and now since we're reaching the issue today of whether it should be released or not at least discuss an issue today the issues put forth by the government to not release the exam have no merit because it's a moot point so the question before us is whether the agency was wrong or under the privacy act it's a link to release that it sounds like it's a question as of the time that it meant that this isn't i think it's twofold your honor i think i think we have to look at the pragmatic and the mathematical possibilities that it would take hundreds if not thousands of students getting together remembering if they didn't take screenshots your honor of what was on exam and then somehow with just their own individual scores even though the tests were randomized and the cut off score somehow being able to define and determine how the test was weighted is saying even at the time that the f a a and the decision not to release the scores it was not logical their their position was not logical i think it's entirely illogical and is basically based upon their past practice where in the past they would release of score they would tell you what you got wrong and it was based one peer reviewed study showing that the test was valid one of the issues in this exam is that it was not a valid screening test it's a different matter but one of the reasons mr owens wanted to find out information was basically for improvement what do i do wrong so before you run out of time i'd like to ask you about the personal email addresses i know that you received the e mails with just those personal in mails redacted so you've seen basically the content and i'm struggling to understand what you think these emails are helpful for how they're going to help the public understand anything such that learning who at these e mails how the public is interested in who these e mails went to these e mails seem fairly innocuous and not really to go to any they don't seem very probative of anything to me well i don't understand what you're going to do with them that  put change of government policy it has been determined to be like a category for which we want to know the lobbyist but these e mails who this one person was sending emails to especially when we see them and it's not like he's sending lists of answers i'm not sure why it matters who we are  e mails too because there was a group of corp individuals alleging within the f a a that had control of the hiring process that actually were the ones making the determination only where they crafting the exam that they control the hiring process and if our theories are correct and if our beliefs are have merit those individuals would be important to follow up with the find out if in fact they were engaged in the various activities but is there anything about these e mails that looks like they're discussing the ferias activity we haven't had an opportunity your honor to review those e mails ever looked at in camera when i thought you had them just with the e mails redacted the addresses redact we do have the so so you can see the special interest group mr snow belongs to had prior knowledge had seen or briefed on the change had been given preferential briefings as far as the briefings in the schedule of appointments hiring because they're better candidates so what email conveyed information that you think would relate to the topic you just discussed anybody was present in the briefing to see what was discussed to be nice to know who was there be nice to know if other f a a employees were  e mails is going to reveal that well how is that then a fine who the recipient of one of the e mails for example since it was mostly the two line i guess that was redacted what e mail is going to lead to the kind of information you just discussed when i went through the e mails my reaction is sort of the same these now there are a lot of things i don't understand i can appreciate that but going to give me a sample of one of these e mails that might actually connect up to anything because all that substance  innocuous wells have about forty five seconds left to answer more broadly yes a lot of those emails deal with prior briefings about the employment change that were given to people outside of the scope that should have had knowledge in that area the f a a made many  me please the court all bills from the district of arizona the district court correctly granted the government's motion for summary judgment in this matter the current district court correctly held that that if a properly withheld the minimum passing score and documents because they were not agency records under for you and the district court correctly held that the f a a properly redacted personal e mail addresses pursuant to exemption six of the freedom of information act th me ask you a question about the the documents that were withheld is not being agency records because i was a little troubled by the application of the tax analysts test control of the f a a because they were in the agency's possession as part of the conduct of snow's duties and unlike the kissinger case it wasn't personal documents or documents and created elsewhere and just carried into the office and and so between those two cases the kissinger pace and the tax analyst case it does seem like those  realize they relied on kissinger but they did recognize in fact that there can be personal documents that are personal records that are that are in fact located present three quarters were not created by mr mr snow but in fact received by him they say it doesn't matter who created them if you visit them and it doesn't even matter what the intent was of the person who again there are there are a couple of approaches to how they have utilized in and i think that those cases in fact are trying to address the very question that the very issues attacks analysts addresses which is w they created was that the creation or obtaining that was can that be it or should that be attributable to the agency and should control be treated attributable to the agency shouldn't it if it's coming to one of their employees  personnel his f a a e mail address and stored in the f a a servers and computers i mean at at and that seems pretty much part of f a a functions and especially when he's disclosed and so the whole question is what are the records and that the d c circuit cases we've cited to you look at such things as the use in the totality of the circumstances i believe the declarations are provided by know what those those e mails are and in well let's let's go ahead and take the allegation is that i'm put on the table and i'm not saying the allegations are correct but if in fact there was something going on w efforts were being made to give help to certain applicants it would make perfect sense for the f a a to say well that's not part of our mission but that doesn't tell me that the e mails in question might not speak to exactly what the public might be interested in in terms of what f a a employees are doing so so i'm not really persuaded that just because it wasn't part of their phase mission says twenty nine we either stand to receive by mr snow is a member of the national black coalition a federal aviation employees and one was from mr snow's union how does that tell me that there's nothing pertinent in any of those e mails it doesn't trust me it doesn't yes or i would i would add that the district court conducted in camera view of those documents and agreed with a face position and found that none of those documents was a an agency record so that's another that's the question we have to answer to nova now right it is but that that factual review has been has been conducted and that's and that's another basis but there have been investigations conducted by the f a a yes there was the public told anything about the results of those investigations your honor i honestly don't know the answer that question no there been four requests regarding some of those investigations but i don't know if there's going to public  pronouncement about them but i think that the in the question was raised earlier about the the e mail addresses and whether those may be properly disclosed or whether they were properly redacted and i think if the court noted the the language in listener indicates that there is a even lower privacy interest in those if there is a likelihood that they  those e mail addresses will show some type of government government misconduct in about the evidence that f a a employees were conducting  does the government have have control over that record so for example if it is it conducting government business on a personal g mail accounts from the individuals home and  personal his home e mail address and sometimes response or to f a a employees from his personal e mail how do we analyze that is that something that showing the personal e mail address would let the public know what the the agency in the agency personnel are doing your honor i think that in that type of situation the question is what is the government doing and in the answer that is would be displayed in the email itself not in the personal e mail address such as not add anything to the public's understanding of what the government is up to but if you don't really know a there's a balancing on what is what is the public interest and so the public interest as you know most is is is limited to understanding what the government is up to for these email addresses that are issues at issue here we know they are e mail addresses person e mail addresses of government employees we know which government employees may i confess i get confused when i was going through this case and i'm still not sure i have a handle is the issue the precise e mail address or is the issue the advent of the of the person attached to that address the identity of the recipient of an e mail for example the identities are not in the record the declaration state that the the that the e mail addresses are for f a a employees it won't but i think there's a difference between those two i can understand a privacy argument that says an individual e mail address is private and there's certainly a downside to letting that out into the world but knowing who the recipient was of an e mail separate and apart from what comes before the a com that's of interest because it says this is what the government is doing with this information and sending it to john doe as opposed to whatever john doe's e mail addresses seems to be  very different question do we know does plaintiffs know who the recipients were by name of person as opposed to by name of e mail address if i said  it's it's not in the record and it's not the answer that question is no i think the answer the question is no you are i think that gives you a very difficult time explaining why it is that's not something that what the government is doing for government employee is sending something to john doe why isn't that something the public sometimes i don't know about well because your honor i think when we when we balance the interest of the individual in this court has recognized that there is a privacy interest in for government lawyers in the in their email addresses but they say that's that's what led me astray for a while and i don't want you to go down that path i may have a privacy interest in my i'm old so i have a yahoo account and what exactly comes before at yahoo dot com but if somebody is sending things to me from the government i don't know what the privacy interest is in me being able to ny that i received what was sent to me so i don't think the fact that there's a privacy interested in email address should extend to obscure who it is is attached to that email address and gets what is sent by the government and i think that that that is that is the balance a balancing test of the court has to form that the that the balance in this case tilts in favor of the privacy interest because there is no additional public interest in knowing that if you even if you can't know who received what was sent by the government it why doesn't the public have an interest in knowing to whom things are being sent by government employees well you know you're going to have a hard time persuading me that they don't and that the privacy interest in the e mail employees not simply members of the public to so could i just ask could could divonne index have said this is jane doe we're blocking her e mail address but a list to the people war or is there some other way that the government could have were answered much as question i'm talking about given the identities without giving their personal e mail addresses yes they could have done that but the dots they did not so is there any hope that this is an issue that might be settled if we sent you to mediation i mean this seems solvable i can't speak on behalf of the of the f a a on that issue i don't know the answer the question so as i'm taking over time will stop with the john doe you say these are f a a employees if had been sent to john doe at f a a it would be subject to release but because it sent the john doe edgy mail dot com your argument is that it's not try excerpt of the record to ten to eleven the ones i have i believe there are others but to ten is an example of the f a talking about the media attention regarding the hiring process we know that some of the people that it's listed to are were very involved allegedly part of the push to change the hiring process however certain emails are redacted the reason this is important is we like to show who was involved inside the f a a we don't have the names in fact on many e mails the a employees and we have other e mails were private e mails or under it acted it says he select cases which actually creates more suspicion that somebody may or may not been involved under the yamamoto the two prongs the privacy interest the e mail address is been defined by the ninth circuit as mine or any e mail address is the public interest in finding about information about some individuals working for a government agency that allegedly skewed the hiring process to discriminate against people and you actually see the names of almost i mean you see lots of names i mean if you needed to talk to someone about what happened in that meeting you've got about ten  names that you can see through i'm not understanding how this is going to help you to get the personal e mail that was one thing if the ones that are redacted are people in the h r branch that handle the hiring and that no one was told ahead of time reverie i don't something about when the news came out of the meeting they want to have about fox news way later tell us anything about what happened four years earlier all of which shows it's a breadcrumb leading to a trail of people that possibly were involved if that's an h name it's highly relevant we've been told all along by the f a and various court proceedings that the n b c if he had no input on this although we have documents that show that's not true and what we're trying to figure out is how this happened and who would have known about it despite the f a saying no knew about it and it didn't happen it's basically a breadcrumb trail leading us to somebody and the f a's h r branch was responsible for the hiring they would give us some further information public interest in this case it's very large of mr rojas his assertions are true if congressional insight and and correspondence and communications with the f a a are absolutely true or even partially true the public interest is huge people are being hired that we're going to be involved in public safety positions that may not have been as qualified to do it as discriminatory intent so i think the public interest in that is very large back