day and the st case that judge walker will hear as a member of the d c circuit look forward to serving with him for many years because it is his st day counsel please go easy on him thank you by offering access to statutorily protected information that is only before a court because of before a lawsuit it has long been accepted that when the government cannot fully justify its withholdings public record it may submit an ex parte declaration for the court's in camera review this procedure or allows the government to defend itself without disclosing the very big to reveal it intends to keep secret that purpose would be undermined and for years balance upset if the common law could be used to compel disclosure of that information even when for him it does not mr ball mr pullman haven't we already held in metro life that this that flight itself does not displaces the common law i'm here we have a more narrow argument that and then and then leopold we held that unless the statute expressly says that the information must be sealed it doesn't preempt so what section of provides for the in careful review of the underlying documents and provides for it but it doesn't say anything about it permanently staying that way this is a problem we discussed in leopold that even w ceiling is permitted the question is whether that come along as displaced with respect and sealing what language other than the permission of camera proceedings  relying on well i think the exemptions themselves and the fact that the district court has jurisdiction only to disclose information that's improperly withheld which in turn depends on the application of the exemption this court and hayden said that requiring the just court to provide on public record information that is exempt it's said in that case that would violate exemption what and that's why the court was information that was held by the executive well that in haven it was specifically talking about the contents of ex parte affidavit and it said requiring the filing of that information on the public record via only exemption one this court has also kind of given broad effect to for his exemptions with respect to a globe our response saying that this is what needed to effectuate exemptions so i think it would not make sense or be compatible the golmaal response simply says we're not able to confirm or deny the glo my response itself is not right but i think what we're looking at is the access to information that is protected by statute and i don't think it's consistent with for you to say well well  what statute protection the for itself and also the national security act so if you if you lose on the proposition that fly itself protects that because merely providing for him camera proceedings doesn't forever protected what aspect of the national security act protects it the language of the national security act is an obligation for they are director of central intelligence or or  respect to the national security hack the supreme court construed that statute in sims and it said that congress had to literally chosen to give control over the disclosure of information protected by that statute  director of national intelligence and had specifically chosen not to give courts the ability to compel disclosure and it offered several reasons for that one was the government needs to be provide the  most secure representation of confidentiality that possibly code and it's said that compel disclosure by a court could have a devastating impact on the ability of intelligence agencies to perform their duties is this information is this information classified no this information is not classified why is why isn't it classified information is classified under the executive order zipping up down all the way to confidential if it harms in some degree the national security is the fact that you haven't classified this an acknowledgement that there are no injury to the national security no not at all and i don't  well i think we can look at sim's to describe or to understand the harms that can be caused by the release of non classified information relating to intelligence sources none of the information edition sims was classified the supreme court nevertheless that had the force disclosure of an intelligence source could have a devastating impact on intelligence agencies it said that even the risk that a court could order the disclosure of information relating to a source could deter sources from coming forward and providing information to the government so i have to question two questions about that one that sounds like an argument for why those were the action should not be unsealed a strong interest of the government which you express in the way that you just did but i'm still interested why isn't this classified if if if national security agencies are obligated to protect this and they violated their obligation by not protecting it no it was so the underlying information that this describes is classified that was the purpose of the archie declaration was to explain why certain productions  to one of the memorandum was classified and it was classified on the basis of pertaining to intelligence sources so the archie declaration described that information it did so in terms that was not itself classified but that information nevertheless relates to intelligence sources and the supreme court explained why even in the uk us information when combined with kind of other pieces that a foreign intelligence entity might have could lead a foreign entity to just cover the identity of an intelligence source and what the supreme court was doing in sims w say you know this is an inquiry that just should not be undertaken by courts because they don't have the expertise necessary to identify which disclosures could business effect the specific question and the sims i'm just going to read it to was whether the freedom of information act requires the agency to disclose that's correct it was the question it wasn't about the common law no but the supreme court was explaining what congress was doing through the statute what the statute in fact or as a return to d o j i believe the court has a copy of it to my knowledge it was not returned but i'm not one hundred percent sure it was filed with the court and i don't know that the docket ration itself w for not applying another attention or enough given enough deference or respect to national security but the district court said a number on chairs and it's decision that was that it was giving great weight to the asserted national security interests but then the government just hadn't explained itself going to them explain why this was covered by the national security act why it is implicated intelligence sources and methods and then in large part said the reasons that without the hubbard factors were struck against the government was because the government and even argue a lot of factors and haven't given us any material to work with so what are we supposed to do with an abus that's i mean even under foyer self intensions three you know we do have courts do have the authority to decide whether it's actually triggered by a particular document and oftentimes the government will help us understand that but you know i don't think what to do well i don't think the district court said it wasn't covered by the national security act what it said is that it wasn't sure why the secrecy was important here and that's on j sixty five and that's the that is when it's not so it's not self evident why secrecy is important and that's a perhaps there's something here that is superficially innocuous to the untrained judicial eye but if you piece it together with other things it would be important and then said the f b i however has provided no such rationale and that on the i hasn't given any basis for concluding that this is there's anything in here that actually merits protection and i never even about you know invokes exemption seventy about not three no but it invokes pacifically the national security act which in the context of this case the only relevance of that statute was as an exemption three withholding statu explaining why this information is classified redox two categories of information that are already embedded within discussions of a source of an intelligence  evident by the district court said in terms nor is it self evident it said it's not self evident why secrecy is important that's a different inquiry from whether information relates to an intelligence source so there can be information that clearly relates to an intelligence source as in paragraph twelve of the archie declaration were the revelation of the confidential sources name would identify the confidential sources redacted that redaction intelligence source they said we have intelligence sources that relates to an intelligence source but that would strike me as a completely innocuous statement without further help from the f b i well i mean that doesn't relate commit other errors with respect to the hubbard balancing test for example on the nd factor which deals with previous public access it's said that that factor weighed was not in the government's favor because it had released other material that gets matters exactly backwards the specter asks whether previous access to the information that issue it says that the  a reason why it should be released in this context but the public has never nor had c n n as a form of litigant had access to this specific information on the st factor the court acknowledged that there was little public interest in this specific information which relates to an intelligence source and i'd like to just underscore here the small amount of material that was with oh we're talking and what's the five lines  i believe it's around forty words the government disclosed all of its briefs are public the other orci declaration in full was disclosed the ex parte proffer was disclosed in full and i'm not the at st and  factor and i take your point but the district court found that you didn't even argue the st and nd factors now you're making some interesting arguments but what do i do with the fact that this is an abuse of discretion review and you did not make this argument court has said that it is enough to put it before to put in issue before the court of appeals if the district court reached it that they're going to and that never will proposition but in the course of a base of discretion review a particular d session that we can consider or not is just how can we say the court abused its discretion on the basis of arguments you tell us now that were not given to the district court well because we can now we can seem we can see what the district court did and committed errors and it's reasoning so we can be sure that without those errors it would have come to the same conclusion and we can turn to other factors that there's no dispute that the government made arguments about the rd factor the court believes that f b i is objection shouldn't have the strict same strength as a rd party objection and i just i don't think that makes sense with possibility of prejudice i think symmes kind of outlines the possibility for prejudice which is that just the risk of disclosure by a court can cause a source in the may have forfeited at the district court your boy exemption three argument your argument that the way exemption three should preempt the common law here i also think that c n n may have forfeited at this appellate court their argument that you fortunate it exemption three and the district court i'm going to ask c n n the same question but one of my if i think most notice things what am i supposed to that those general rules don't apply when the district court decides an issue i think the district court did decide the issue and we can bring it up here but just looking at what was offered i think the government had offered enough in the decoration discussed the government had asserted exemption three over that information and just given the way this case developed where facts were constantly shifting on the ground declaration was submitted in respect in response to an order from the district court to just provide a notice saying you know if anything had changed on the reactions the government changed you know really some information provided the declaration to say  you know this is why the remaining stuff can't be released so i think in these circumstances especially to the extent the court has discretion to consider this i would hope that it would exercise its discretion in a way to  hours and may it please the court your honor as the questions of the government really exposed the younger lying issue here and that's whether this chord should deviate from its unbroken line for the last forty years arguably the last one hundred years  the standard of review which is abuse of discretion includes according to our opinion and we appalled that the district court misunderstood the application of the factors that is misunderstood the law that we were  clearest and many of them have not presented these precise issues but if you go through each of the judges applications of the factors i have difficulty with whether they're actually what the law should be leave aside the question of whether a law is completely clear on this or not so the st factor that the judge applied is the need for public access and the judge says although the court sees little public value in the specific information that remains redacted there is enormous public interest in the call me memos now it's my view in light of what we said in leopold about everything being particularized the point of the hubbard test is that we look at the particular information to be sealed or unsealed that the issue we should be looking at is for each of the factors is the information that was redacted not some larger amount of information  and reasonable view of the law and i'm suggesting here i'm not entirely your own or do we also look at it as a process issue the public interest could be colossal or could be quite minute in the actual redacted information obviously the more important the information the more important the circumstances the more that probably will agree you agree that we look at the information that is still redacted and the judge says that that information he sees little value in now if we're going to believe i mean you want us to take the judge's view that that there's not much injury to the national security but then we also question that for a moment but don't we also have to take the judge's view that there was little public value in the information that's still being withheld there if if i'm right all were talking about is basically two full lines maybe two and a quarter out of the entire of all the material that   nd factor the judge weighs the extent of the previous public access to the documents and here there's been no public access to the redacted information the judge focuses again i don't blame the judge for this but i'm trying to i think one value of this case is that would have some clarity here about the law the judge says lots of the you know the f b i has already released  vast majority of the declaration that that's true but that's not the issue it seems to me that the issue here is the extent of previous public access to the redacted information isn't that right your honor with respect no and if i could just make an extra point on point one the need for public access is also a procedural issue the judge made very clear that he relied on the orci declaration he relied on all of it at several stages in the proceedings there  six portions that we cite in the record where the judge relied on the orgy declaration or the government relied on the orci declaration to persuade the court to grant that summary judgment in the st summary judgment for your case the public has a great need for access to understand the underpinnings of judicial decision making and obviously understand this having written leopold and met life but that question many interests the judge basically is saying that he didn't rely on those two pieces of information because he didn't think they were important so much for that's the right analysis even if you're right that that's the right analysis the judge is saying i'm not i'm not relying on this these lines so what we're that's not how i read it what he what he said was the added public interest you know it may or may not be great in light of the rest of the declaration but he didn't say that he didn't review it part is already been released let me let me move to the rd factor so that is someone has objected to disclosure and the identity and in hubbard this was a national children's different issue who else could object to disclosure of sources and methods other than the government and the other cases the concern was privacy of rd parties who are concerned now obviously that the sources and methods are not going to be coming to court and object ing it seems to me that in a national security situation the only party that really has relevant information about that is the government and granted there is really nobody else you could stand in and so there really is only in that part of the test there's only one party to look at but when the government comes in and expresses its interest in an ex parte fashion this is a case that had eight declarations an ex parte hearing that we didn't hear about until summary judgment was rendered exhaustive briefing in camera view when the government is the party the court has an especially heightened duty and i know your honor agrees with and especially heightened role in questioning the government in asking the questions and our only point on factor three is that the court should consider in the common law balance that hit it has an enhanced duty to ask the government questions and that's exactly what judge posed did he repeatedly asked the government to establish why the information redacted from the or  in i am trying to pick at each one of the factors rather than the sort of site geist that this this particular factor the judge says that that because it's not a rd d party the government the government's argument doesn't have the same strength but i don't see how that can be the rule in a case involving national security information but i think i think as i interpreted that he was saying that i have a responsibility to conduct a very much more probing review if the government is a party not that the government's interest is diminished it certainly is nonsense and it does not argue that the president does not have it he ends up by saying while the  court takes the f b i as objection into account it does not have the same strength as a rd party objection and i strikes me as wrong again not the judges fault ron and the national security circumstance  for this what we have in the hearty six hearty declaration is a statement that the information redacted of both pages reveals and on public information about intelligence methods the f b i is obligated to protect such information but the national security so isn't that a statement both that that information does reveal nonpublic information about intelligence sources and because it has to be protected in the national security act that national security act but the hearty declaration goes on to decline to answer courts four and five of the harbor test it specifically says the f b i cannot provide any further details publicly about the still withheld disclose it but it certainly had every opportunity and the court invited it to in numerous occasions to present a nonpublic explanations forward your honor we may not like c obviously stands for the proposition that the court should have maximum openness transparency serves the system and i know the court agrees with that that's what met life harbored and lay uphold and league of women voters will stand for but when it comes to issues of national security the solution is not for the court to stop asking questions the court should always be asking questions under the common law and the government certainly at opportunities in this case answer those exemption one for a bunch of the redactions and under exemption three for a few of them is that the government provided a plausible rationale tailored to this factual circumstance the hearty declaration express the documents were introduced and that quotation is the public's in title meant to be there for records as can compare commensurate with the documents importance in the judicial proceeding in question the issue  and in in this as being the single most important factor the judge said this is the single most important factor i totally agree that this is a relevant fact but the idea that it's the single most important factor the problem in hubbard is from the quotation is it was the single most important factor in hubbard but hubbard wasn't saying it was the single most important factor in the test and the reason it was the single most important factor in hubbard was sort of the opposite of the argument in this case it was a an explanation for why the information in the search warrant should be kept secret a rd party was making that argument i think it was a scientologist and the reason it was the single most in fact important factor there was that that filing would have disclosed the very information they were trying to keep secret that's really the same argument here so i just i'm concerned that the court saw those words the single most important factor and said it was when hubbard didn't apply across the board and even in hubbard the way in which it was applied would apply in the opposite way that it was applied in this case well your honor whether it's the single most important factor or just a factor the fact is that the district court relied on the orci declaration the district the government asked the district court in seeking a leave e c of twenty three to file the orci declaration ex part hearing by saying i have reviewed the orci declaration and i need your help i need further help by the way that is an instance where the government provided the help the linkage the judge needed to get over the hurdle the hump of the argument that where they were jump i'll jump and it seems like to trust in your argument for a lot of factors the judge garland was going through is that the government should lose because it wasn't specific enough in explaining in camera declaration the provided more specifics you'd be asking for that now you'd be asking us to on of redacted their explanation of why they redacted what do i do with that concern your honor i can't say that we wouldn't i think it's something that the court has to take argument by argument by argument there is certainly a lot of litigation c n n is involved in a lot of it in the district court trying to unseal court records that is not an appropriate part of the process it would give judge posed in the other district court judges the information that they need to make the determination however that if that ex parte filing justifies the ceiling of the orci memorandum in this case then in all likelihood we would not be able to prevail either under the common law or alternatively or good in this case the  amendment access and the court would have the information that it needs to weigh and so your honor the that is not an unlikely scenario but it is not an inappropriate one either and it would give the district court every protest but you know six factor tests are not the most predictable text and we don't know what judge will get we don't know what panel will give you what go on bonk we don't know when we just don't know exactly what will happen so we're going to err on the side of not being specific in case that eventually gets  back one more level deep your honor the exemption three argument was raised on the rule fifty nine dollars either emotion the fifty nine dollars emotion was denied the judge said that they had their opportunity and they waived the argument on summary judgment they also did not appeal the appeal they listed it as an item in the notice of appeal but they didn't brief any error in the rule fifty nine dollars or the mint and so i think the waiver balance if that's how the court is looking  s heavily against the government as to whether the exemption three organ is live in this court your honor if i may also just go back very briefly to your previous question judge garland man just had a problem or sentences yes has a solemn duty to make its arguments to this court in as narrow a fashion to allow public access to judicial proceedings and under for the public access to agency records we would hope that the f b i would use every reflection and introspection in presenting affidavits to the court and in presenting ex parte or gaiman's in so if there is a chilling effect on the f b i they are worried about  exposure d of export information because c n n or fox or anybody else comes in and asks for public records i would argue that it's a healthy part of the process that there is a common law test that this court has fundamentally and rigidly applied for the last forty years and that that would that would d have a healthy impact on the process and i have every confidence in judge closed bergen the other courts in this district that they will reach the right accommodation when they access and the district court it's a new case and the district court looks at the archie declaration in camera to try to figure out if exemption three or seventy  could you still argue that in camera submission i'm not talking about the affidavit i'm talking about the actual in camera submission you can still obtain it even though you couldn't get it under foyer you could still obtain it under the common law right of access as long as the factors broke in your direction well your honor nobody appealed that before you had documents i'm not i am asking a hypothetical here and that is can you obtain under the common law  follow the common law analysis and if it broke down and if it broke in the government's favor on factors forty five or any of the others the no we could not obtain them the other way that the court should go is to say that  whether i guess i'm not quite understanding your argument i don't really want what i want to tell me what the court could do i'd like to know what san and position is and isn't that good assume is that that documents filed in camera in a foyer case a complaint could be amended to say we'd also like to now get that in camera filing under the common law right of access and what you could do could amend the complaint to say that i don't think they can dispute about that the question is is there any case you can imagine in which the answer to the foyer question and the common law excess question would be different your honor c n n believes that any document filed in a court should be analyzed under both the hopper test and the st amendment so yes it would be subject to challenge something you know you're over isn't this exactly the question that was addressed in met life life they of the argument was made that the right to the information that they could seek the right to information through for the gate of any right to receive it under  common law and the court held that fly only applies to documents in the executives hands and once the executive puts them into a court filing which is what happened in that case it's not to the extent the court has mary so your position is that d the in camera document itself could be released under judicial common law access standards even if it would be withheld and therefor that as soon as you invoke that process for the loud for for in camera filing then immediately that document suddenly becomes available under a sure they're finding there because the dodd frank there sort of incorporated the foyer process on exemptions and so was their finding there that it would not be really it would be forbidden to be released by the agency under foil but it could be released by the court what i'm asking about ok parity would you agree if the information and the archie declaration were in fact protected by exemption three the court should not release that or it ok thank you all right i know we're out of time on a rebuttal but that's more our fault than mr palms so if you want take two minutes go right ahead i'd like to make  just a few points very quickly i think judge millette has gotten to a key problem with cnn's position here and i think that this court case and i'll cite indicates that when a document is the for the court solely for the purpose of determining whether it should be released that the common law doesn't apply and the consequences of sin and is a totally under my we would have it doesn't take much difficulty to imagine situations where there would be requests for all kinds of documents the requester would say district court please examine them in camera to be sure and any time that did the document could be released under the totally different standards for it provides the nd point i'd like to make is c n n hasn't argued that the district court mistakenly accepted the but i think it's just it's odd to think that you can litigate the foyer case and the requester can't have access to information for the purpose of kind of a statutory claim but then later you can apply this that it didn't dispute that this information is covered by the the national security act and i think that should wait very very heavily in these forty five and six factors this court said in the end resealed case that where congress passes a statute restricting an agency's ability to put information on the public record but rarely if ever should the hubbard factors overcome that the district court here said that because the government's investigation was at an end so too is the strength of the bureau's argument but coverage under the national security act which relates to intelligence sources doesn't depend on the existence of an ongoing protect one foresman confidential sources but now when i hear about seventy were told about the national security act and exemption three is every f b i confidential source covered by seventy also an intelligence source covered by the n s a or why wouldn't if not then why how do how do we make that jump well the national security act specifically relates to intelligence sources and i believe seven eve relates to confidential sources in an investigation so you could have a source of investigation that has nothing to do with intelligence it could be someone you know saw someone on the street breaking into a car or someone's in a drug organization that could be a confidential source without being an intelligence source or living to an intelligence so i think those those are just trying to understand how we got from the government you know wasn't recently was thoughtful and all of its filing that it was explicit about this is a seventy confidential source for law enforcement and it was until will fifty nine dollars in here that we suddenly heard  the same confidential law enforcement source or method supposedly at risk here is also an exemption thirty one dollars it just strikes me as quite hard to believe that the government bribing information that was withheld under be won as being classified pertaining to an intelligence source so it was clear from the very beginning that that was an intelligence source material the govern classified information is a diff i mean even higher caliber than the inception three and a say and you're not claiming that the archie declaration information issue here as if i heard you right in your response to judge garland well you're not claiming that this is classified information or an exam exemption one eligible and so the only jump i'm seeing is from the hardy declaration and in seventy four this source methods information to exemption three and now you're throwing sampson one on the table which is making things more confusing i mean i'm sorry so i walk through kind of stuff my stuff initially in the st round of this litigation won and then there was a separate section of that summary judgment i believe this is documentary twenty two dollars something around that there is a separate entry that says this material is also covered by exemption three because it relates to intelligence sources and it's often the case that something is covered by b one under section four c will also be b three because they both relate to intelligence sources so that was the st round so we had already established that the underlying information is b three  then we have the six party declaration which says that the information in the archie declaration is covered by the national security act and it had already been litigated in  case that the national security act was a b three exemption statute so that's the connection it wasn't just that it was a law enforcement source there's been an ongoing claim this underlying information to an intelligence source as well i hope that that was a little more clear i apologize so for those reasons we asked at the judgment all right thank you all very much and i think judge walker did an excellent job on his st outing will take the matter under submission and the car can call the next case thank you all thank you