most of my argument today is going to be about big picture arguments i've heard the parties have already briefed most of the issues in this case to a great degree of detail and true i do my job here is basically answering any questions that you have interest and for whatever particular topics you're interested in with that in mind i'm going to jump sort of all around in the brief to hit the topics that are sort of egregious example of the problems with the district court opinion and the agency's position what are the big picture issues in the case this seems like a very narrow set of disputes about whether searches were adequate remedies were exhausted given the way particular denial letters were framed so there are two there are three main big picture issues system was likely to can be the only one to contain records was a statement that we decided that this one system would be the only one likely to contain records and the f b i not not the there is i see the distinction that you're making your honor and this is we're not saying nor really could we say that if all the records are likely to be found in one system they also have to look for another system for duplicate of those records we are saying that they can't limit it to the one most likely to contain records and that if there are systems which are likely to contain to contain records which are not in that one system they have to search there but the more fundamental question is we don't even have to get to that today because of they did not provide sufficient specific evidence that why this one system would be the most locations in records the underlying law the big picture legal point on this is that the governing standard is reasonable search not her for this and for an affidavit in this case says they determined all responsive information was reasonably likely to be found in this database right and i i would quibble with your statement that the standard is because of what you said is a standard that's not the standard we're did in the institute for justice case they may provide more evident explaining why this would be where all the likely record to either get it and then they win or we would even conceive that perhaps but they have not met that burden by these the affidavit is a little bit then but the brief tries to shore that up by saying and the problem when i just read the affidavit the problem i thought of was gosh we don't know what's in this database if we don't know what's in this database can we assess that this is a reasonably targeted search the cleanup that problem in the brief by explaining what the database was by reference to federal register materials that are traditionally noticeable your identity seems like it's perfectly targeted it's a database with regard to there for crisis and the the problem is that reaching the legal conclusion that they have satisfied their burden here even with that extra information requires  to saying that there are not any records anywhere else that would not be in this system and they simply that that may be true we can go and i get there from the evidence you don't take issue is d o j why your argument on that left me scratching my head because it certainly sounded as if your description of justice or war was something this system of records designation for justice as yours are for is sort of like a stamp they were put on a record and there's no guarantee that rob look at it together they're easy to search at all i broader in that it's not really a system or even a collection of systems it's just a label and so when you get down  goes to the nd point that is relevant to this which is that case so that's not surprising honestly because when i i will be honest when i said it's long held that's based on my own experience having i'm going to get i i don't have the opinion in front of me krieger was about whether or not e mails can be certain that the fact that they can be searched by person we're going to fire means that they are designed to be searched by person identifier and that is the discrepancy that crops up a lot in honestly if you were after my calling it the o j they could probably give you a more link to a laundry list of places they've argued this but system of records is a deeply complicated nuanced controversial part of the privacy act and many privacy it cases have run aground of this idea that an e mail for if not part of a system of records even though it might contain a bunch of records that would be considered part of a system of records that you have to move e mail into some other system and before you can even think about putting the phantom of justice here or for and that is the tension here if they were to explain that in greater detail in a declaration it might surprise you but again this is coming back to the overarching problem right of lack of evidence but they say the federal register description of these records the system consists of records created or compiled in response to requests and you say in your before that you described the system as a generic term for the records maintained about for your requests across all of the ok and i did paraphrasing but and the underlying request at issue was document paraphrase it at page thirteen of the reply the fact that this book contains all of my note the story contains a note about that occasion does not mean that there are other books that contain notes revocation in my library that's the distinction that i'm trying to make here is the fact that it does say that this system contains these records doesn't mean only this system contains  while i do very much appreciate the the distinction that you're seeing here i as a bit of a cop out i admit i would should simply suggest to ask them that and you'll get an answer much like what i'm just so that's fair you're saying same back to me that i am maybe drawing an inference of comprehensivene you seems to me a fair one but maybe not a compel one from the sense that this is just this is a system it's not just some it's not just some random rumor file you write your thing but then don't think tie that up with the affidavit which says they determined all responsive information was reasonably likely doesn't that suggest that something that state discovered in the search of a file organized by number and and that was the reason why it turned up in that file and it was that reason was not just someone was wandering around dumping things into a file it was part of an exchange that was a chain e mail became a chain e mail with the magic number in it so yeah that you all it's still it's not inconsistent with the proposition that the records are organized by request number and it also i mean the x of the pointed to the sort of a ha expression seems to suggest it that we're visitation is we simply close to effective or makes searching by request numbered reasonably close to affect responded to that e mail and i was one that didn't even if they had not responded to e mail it me sitting in their inbox and would not have been located because of their response to what put the name of it so that's why agencies are supposed to do things like more than one collect all the nonevents that may have sprung up about a particular request with respect your honor if an e mail exists discussing a request it's respon which there were a lot of characters named machado i have a sense that it's not exactly a terribly rare name i would argue that that is speculation but it's not rare among for your requesters to the state generally the foreseeable harm provision that was added to the act in two thousand and sixteen is i feel comfortable saying the most consequential change to forget in decades prior to the two thousand and sixteen amendments an agency need only reason congress felt that such legislation was necessary was because in fact it needed to alter and what senator grassley referred to as a culture of government secrecy so i think the idea that they were simply trying to i up a practice because business as usual was working out perfectly fine is simply not wore out by the legislative history at all and i think it would not make much sense congress clearly saw a problem and the problem that they identified was over use of exemptions they did not require withholding permitted by government agencies really across the board an increasing number of withholdings they sought to change that culture from default default withholding to one of default true disclosure one of transparency and therefore they did that by mandating disclosure absent a showing of foreseeable harm assuming that disclosure is not otherwise prohibited by law so this is really a sea change in four it was intended to be it was intended not only to address too many with holdings but to address other problems as well because fewer holding harm the purpose of the time that's correct why do you think that you know book the heartland as opposed to the print i mean if there is an exemption for documents whose disclosure would harm national security you would expect that most documents following in that category would undermine the purpose of the exemption if they were disclosed and i think that  against really what congress was looking to do i mean if you were correct absolutely your honor what this was designed to do was to prohibit agencies from relying on these exemptions where it technically that's where the document technically falls within deliberative process documents really really old but i mean those are sort of more peripheral applications i don't think congress would have worked for on a bipartisan manner and over the course of two years to  address what it saw as problems on the fringes i think it's all this is a critically important and major problem the over use of discretionary exemptions so it is a major problem that you get to be addressed and i think these that the  temptation government has government doesn't have per laws they have to make a further justification but that doesn't necessarily mean that we're talking about a huge number of documents that doesn't necessarily mean that the nature and extent of the burden of justification on the government is something wholly different in kind from reasonably would be harmed by disclosure and then they have to tie that to link that to the specific information at issue here so i think with respect to the two bullets forms that we're talking about here i don't think it's our position that those bullets form forms in general i think this is what the declaration goes to look forms in general may fall within the scope of the deliberative process privilege and may in certain circumstances the government may be able to demonstrate that the civil harm requirement is met i think they didn't do that in this case and that is the issue and they can't do that on a categorical basis and i would just point to the court as i think it would be helpful to the court we noted that there have been no court of appeals decisions interpret in the foreseeable harm provision there have been some to circuit decision attorney and they explain why that true and it is not only unsurprising but but necessarily true that the explanation for why that is the case is linked  forums generally and the argument that has been presented is that these are subject to the deliberative process privilege and therefore they would of course necessarily if they were disclosed harmony interest to be protected by the deliberative process colors it's a circular argument it would render the foreseeable harm provision and in the context of exemption five where it's clear that congress wanted it to do work particularly in exemption five and so i think here i would i would say is th between supervising attorneys and the attorneys that fill up the platform well if you look at the two blips forms at issue here there's no back and forth there's no supervising attorney comments or discussion and in fact the recommendation that is redacted it looks to be a one or two word recommendation so if the argument that a like he is making is that it would harm the deliberative process privilege to release a statement by an attorney that says recommendation romantic agency give detail makes this something other than a more or less or less a completely monday example of the deliberative process but i think it is the obligation it is a meaningful is an interdependent burden that's been placed on the agency the agency does have an obligation to provide some level of detail sufficient for the  now it's because of what is well i think what is redacted and again i'm not taking the position that the agency cannot meet this burden i'm saying the agency did not meet this burden because it did not tie it's hard to see how you do it without getting into the substance of the information to be disclosed i think that the agency can provide through declarations through on and seize and other manners they do when they establish that exemptions apply can provide additional information that would allow the court to objectively determine whether they in fact are reasonably foresee harm from disclosure of this information i think a lot of the ritualistic sort of a monday in every day information i think what congress intended was in fact that that would not be redacted that we wouldn't be having to worry about what showing the agency would make for monday information because that would be disclosed that's the purpose of the foreseeable harm provision is to mandate disclosure unless frankly there is actually a need for this information to be withheld and then in those cases i think it isn't difficult or shouldn't be difficult for the agency to work to kill eight why this specific information in this form always review documents and camera within its discretion if it feels it needs to conduct an overview but it's certainly i think it is certainly possible and agencies do it routinely with respect to withholdings  earth that it is in fact that kind of information that's been that's been redacted and the government hasn't attempted to make the to say that that's what it is and i would actually point the court to the coastal states here is that cited by the government and it is not a foreseeable harm case because it was decided it is the only case that the government sites in its brief on the issue of the foreseeable harm provision thank you shaw for the government for the government may have his the court i'd like to start with i mean he's contentions i would submit to this court that this case really does not provide an occasion for th its holdings is really exemplary of what agency should be doing to defend those exemptions i mean fortunately i had the benefit of only having two records before and certainly there are cases in which agencies have you know there are many many more records involved in agencies aren't able to devote the same level of attention to any withholdings but in this case like you did exactly it looked to exactly the kinds of factors that this court has recognized as speaking to whether withholding satisf the purpose of the privilege and including the factors that are just stuck discussed in the coastal states cast court case so really any question of whether there's some judge catches this question of whether there's some distance between what the agencies were doing before and whether you know there are sort of additional requirements posed by the two thousand and sixteen amendments really isn't presented because either standard that what the agency did miss sufficient not certain e mails that were turned up in the state department's and searches for records so because he argues for example that because the state department searched by case number that that wasn't adequate to turn up any e mails i think the search was adequate for the reasons that are explained in our brief and there's no reason to expect that there are other e mails that were do exist that would have been responsive to  requests i just want to point out that st of all the one example that plaintiff gives is an e mail from his counsel to the state department which was expressly excluded from the scope of his search and in fact was turned up in the search anyway because the department had added the question before the court is not whether there might be some other record that you know was not included in this database the question is whether the search was adequate whether it was recently calculated to locate all responsive records and we have an expressed declaration that says exactly that it says that all reasonable response of information was reasonably likely to be included in this system and that records are retrieved from the system  the agency effectively did that here it said all responsive information was reasonably likely to be included in the system that doesn't the fact that there might be another system that also includes responsive records isn't sufficient to make the search fact that there might be responsive records located elsewhere is not dispositive under mobley the question is whether there was a response of records are likely to be duplicative of records that were already retrieved from the system that well i think if an agency knows that there are responsive records located in a location that has not been searched and the agency has an obligation to search in that location i don't think that the two thousand and sixteen amendments have affected that obligation so you don't even agencies would have to meet and justifying withholdings of records under certain exemptions and that that i think is a analytically a separate issue from the question of the adequacy of the search and so that the government you know we certainly documents and specifically were clumber said that it was doing was that it saat to preserve a executive branch policy that was in place and since two thousand and nine and it said their the legislative history he says quite express three that question of you know whether that the agency search in this case real don't i don't understand why men this well congress did who congress very clearly did at least two things that change the state of a law o wall after the two thousand and sixteen minutes so i guess i don't agree with the contention that somehow that during those two things was you know it's it i'm going to briefly respond to a lot of what was said after i stopped talking last time the from our perspective and this may be a point where we diverged a little bit from the miki is that we actually agree in large part with the d o j that this isn't necessarily the place for the say that fish over chili we have to say that oh i peed attorneys are chilled by the profit of working in a fish bowl become official chili that is not a significant change and to the question that was asked by a doctor by judge druthers i thought of the sort of underlying intention of the two thousand and sixteen for foreseeable harm was that there has to be something congress we cannot presume that congress made a wall to memorialize what everybody was already doing legally there has to be something they need to change and the only way that you can find that there was something in it change would be to add a particular arrived the idea they have to explain why and i would use the example you have this you assumed because of the agency said too that this was legal advice i actually would hotly contested it was legal advice because there was no evidence whatsoever that it was not up to the hook line and sinker and rendered as a matter of agency practice the final decision and the fact that it happened to go from a junior from a senior par your honor that is only part of it with all due respect to a declaration that is lacking on its face cannot be relied on for summary judgment to be on absent any other evidence that i may or may not have