you it relates to the public benefit east issue in particular which i'm going to come back to later on but i want to take things out of sequence and deal with exemption for first but just briefly julian's decision did not refer to the photographs that were obtained in the course of this litigation his discretion was to evaluate them over all and determine whether or not they favored an award of fees for morley strangely dreadfully on found that three of the four factors favored morally but he concluded only by a tiny bit and therefore he he would rely problem is that he must do it according in a principled fashion there if he violates the law himself then he runs afoul of the discretion standard right off the bat so let's talk about factor for before we come to the balancing point what's wrong with his analysis that a lot of the agency zisha and asserted in this case either prove it ultimately prevailed or were at least reasonably defense well neither is true and he ignored the standard which was set down by the dav case he was supposed to evaluate matters in terms of the davey case and the davey case said that he cannot believe the agency cannot shift the burden even if it has a colorable basis for maintaining that it did things lawfully they can't shift that burden to the the requester fair enough but in this case he made the of exemptions yes and we found that the justifications weren't adequately developed on the first appeal but than for second people it went back there was further development and then we affirmed the exemptions by judgment the glum our defense was ultimately up held the failure to search the operational records they lost on but it was an issue of first violate the statutory deadline for making a determination and you release stuff after long after you should have made the determination then under the day of the president that's an abuse of discretion and that happened with respect to basically all of the exemption claims in addition the law requires that you respond to the request in front of you they did not make it the end do it in time in a timely fashion they did not do it in a timely fashion and it's it's irrational the statutory deadline is what twenty days it's very long in time but in my experience she's never meet that deadline so are there cases that award fees simply because the agency misses the twenty day deadline and then a case the court held that that he that the agency had failed to meet the deadline and so yes there is there is precedent wasn't after the statutory twenty day time yes that they they they do refer to that but the the i believe there is mention of the of the time period in that decision  s the rational thing to do if the cia for example they didn't direct the they directed the request the directed morally to file the requests with an other agency they had an obligation under the statute to pursue that requests they didn't do it and that was that was an obstacle that prevented morley from timely getting information that he should have had with respect to the loan our defense they initially didn't invoke it and then later they came back and  said that vetted the review board had invoked it but the fact is that they were simply not telling the truth the the omar defense should have been invoked from the outset if what they are claiming now is true was true but it wasn't so you go through each of these then with respect for example to the exemption to we had  entire remain that was due because the agency review refused to recognize the impact of the millner decision on exemption to it changed the standard for exemption to after three decades of this circuit to find a different standard and this issue came up during the the the mediation process we pointed out that the exemption two had changed that milner had changed the standard for exemption two we went through a whole separate appeal the only issue which was exemption two and it was remanded and we got the additional it we got additional information under exemption two at that time but so the same thing happened with respect to exemptions six where they she was deceased they had an obligation under the law to determine whether or not she was deceased we call it her pension they did so so there is a case after case in which you cannot say that there one the district court was obligated under the under this court's free man to engage in a fresh analysis of a fresh e he concedes that in fact morley is a journalist and that that he was looking for the information he had the subject is the kennedy assassination but he then gets away from the exxon t and goes into an analysis which is the same old analysis bake based on the results of the documents he gets off into the travel documents and argues that mor requests the primary things are one the journalists he is a journalist sees he therefore fits under the preferred category of requesters in less the end and he is  show that the request was frivolous or trivial then you are presumed under circuit law to be able to get attorney's fees that's a presumption you have to show that is trivial or frivolous and obviously this request was not truly or frivolous it was it was supported by a  a a journalist who obviously had a mastery of the subject who knew what he was looking for and knew that the records he was looking for information about the j f k assassination  point is that as i say the point of of this request was to secure the identity of  and then and then you can argue the public the information is out the public can go back and forth and decide whether how to evaluate it but it's clearly potential potentially of great public benefit regardless of whether or not you find that there was definitely a connection or whether you disprove that there was a slip what is the connection the well you are you've established that you've established the identity of the agency officer who had a co arguably had a covert relationship with  that a relationship with a particular group how does that tie into the kennedy assassination has that group was suspected of having been involved in the kennedy assassination the cuban exiles it was first of all it was a cia funded it was the by far the most well funded cia exile organisation it was the the the boat is of the cia organizations it was engaged in propaganda operations against castro lee harvey oswald was part of that the first news that breaks after the assassination has to do with lee harvey oswald the with the with the the r e immediately upon the word of the assassination they contacted joe in these their case officer who never admitted it until this lawsuit force that disclosure they he contact him and it says want to know if they can around the world the next day it is the a riginal conspiracy theory well i think we have your argument on that one we'll give you some time in rebuttal we'll hear from the government now you're over ok hi thank you you're on i believe that the district court provided the proper framework in which to view the government here which is not whether the government was ultimately correct what each position  took that is not the standard the standard would be whether or not there was evidence of appearances how does this case differ from davy in the sense that the positions that the defendant took in this case were either issues of doing with first impression cases where there were no sort of the on the on the issue of searching operational files and factually dealing with the request the request itself indicated that it was interested in the connection between the cia mr jordan e t s and the j f k assassination upon reading the request  reasonable to petition of that request would be one where the j f k act records would be activated and that in the west what is the justification for what is the reasonable justification for the agency saying these records are publicly available through naira and therefore we don't have to search our records that's the one piece the troubles me because tax analysts have been on the books for twenty years saying that an agency can avoid its oil obligations by saying that records in their files sacha yes yes yes and in that case it was specifically meant to allow the cia in this case to refer requesters to this reservoir of documents there had been significant efforts made to make that particular repository of documents complete so upon seeing a request that specifically and explicitly references the assassination it was a reasonable interpretation of documents were produced as a result of the new president that was formed by this by this court but it didn't mean that at the time of receiving the request that there was a effort or of a durant see or on reasonable misinterpreting that request to to be attended to the j f k is there anything in the j f k act that would support an argument that the general rule of tax analysts doesn't apply here because congress has say though that the whole reason the editor of the actual act is to provide one location for requesters to go and to search for these particular documents and i don't believe that even in that case that there was any effort by the cia to dissuade any requester from continuing to request of the cia any other documents they felt were question the documents that were in your files and not produced sonera or those all in the operational records are those all operational records in other words either are there were there any records in your files not produced an error but not arguably protected by the operational records provision the right my up my understanding your honor is that the records that were produced the vast majority of them were from the operational files in terms of whether there was it was not all right not all that's that's there were a few that's what i'm i'm uncertain of right now as to whether there were any overlapping but i think the dallas is there is that there in terms of what was brought before the court in terms of new documents to travel documents  july and i think the agency response is four months later as against a twenty day deadline and then you have the suit gets filed and even then the first tranche of documents isn't provided until a year after the suit is filed right and i think the court responded in you know like a fashion that will respond today is that that this is the litigation today is that it's not a matter of a during see or recalcitrance which implies some purposeful gaming of the system but instead it's it's a reality of resources and on availability of of providing funds and manpower to respond within the twenty to twenty time limit of the statute but even in that context  point requests as opposed to along the j f k act to handle j f k assassination related material and in that sense that that error added to the time that it took to respond completely to  and the only the only other factor if here opening position was this is a j f k request those j f k records go through america and we don't have to search would seem like that's a pretty easy one to hansard pretty quickly unlimited resources is so not a great excuse when all you're doing is saying we don't have to run any not just a paragraph indicating we would like to have care for j f k such as related material to join it is there were many paragraphs and many different angles that had to be analyzed in order to make sure d s that had nothing to do with j f k that would have been responsive to the request in this case your honor it took time to coordinate with other personnel within the c look at all the sub parts and pieces of it and it takes a lot of work but you eventually conclude that all agency records regarding jelling e t s either have gone the c through j f k or are operational files and you have your legal position on that that that's correct ok and so in terms of the other factors briefly i see my time is up i'll  take another minute or two thank you in terms of the the book puppet effect or i believe that the only issue that we would like to highlight with that is that this court indicated that after an analysis of the for your request indicating that it had a decent chance to provide new and useful information that the analysis ends there with the public benefit analysis and then the courts the district courts are to use whatever decisions they have with regard to that particular factor in the overall balancing of the four factors you think on the third on the commercial benefit factor where the that there was going to be a commercial benefit because of some compensation for writing news articles i think that's correct analysis well in terms of alternately being it would be along the lines of using this information to to to provide the subdivided pages for for that information exchange but i think ultimately the amount of what was actually provided to mr morley was not  determinative of any particular factor i think the court destroyed itself that it was a small if anything it was small and that while it's all over in the benefit of the government slightly it was just as slight as what the district court thought was the actual public benefit analysis do you think when a district court concludes the fourth factor favors the government can it ever be an abuse of discretion on appeal where the district court judge denied the peace ever certainly there are there i can imagine circumstances where it could be in terms of was implausible to the contrary that that's when viewing it in the waiting to four factors i believe that that's the context in which the district  use that terminology when weighing the factors now it just says it was small period we found that the public interest i find of the expectation adjusted value of the public benefit the plan public benefit factor other than the fact that you are using you're saying that we said it was easy to show that the district court said it is but it's small i believe that's the that's the alternate position of the district aren't thank you very withheld and full purportedly because of the j f k act were initially seven hundred and later seven seventy four that was that information was produced in this lawsuit the cia testified to it yet then the numbers kept changing and the national archives later changed it to something like three thousand withheld  full they didn't discuss the number of partially withheld documents and they believe the fact now is that it's become public knowledge to you that the the national archives itself that it has admitted that there are thousands of documents that were withheld and including tens of thousands of pages that were withheld under the j f k act the cia a i'm sorry i'm just not following the merit is doing a review of for civil let me say that i mean the most crucial point here is that the photograph of joe in the eighty's was released as part of the release of administrative records not operational records and secondly the he review you talking about records that were in the cia files and never transferred in error they the agency has never made it clear it says that they were transferred republic i done a riff a research identification form you could go to the riff and see whether it what it subject pertained to although there are all kinds of errors in that that's why we now know that there are classified if the agency that classifies information has control of of records transferred in their of records transferred to nar nar has not been the reason i had not met the the october twenty sixth twenty seven thousand deadline is because the agencies had not acted to allow nara to release the stuff to the public that's the pure and simple what was going on