right in right now i think it's clear under our cases that question of the utility of the information gathered is evaluated  information judge texas is of interest i know the state says the information requested about individuals allegedly involved in president kennedy assassination service or public as opposed to the content of the request and he pointed out that in days he dissenting judge had based his opinion judge rand based his opinion on the contents of the document here i think there's no doubt at this point that you look at the request for particular show to to fit within the idea that it has the requisite probability of turning up  question general and raises an important one because we have to ask we have to ask ourselves about the implications of a regime that we adopt and we probably want to avoid adopting a regime that's going to open the floodgates in this kind of context but i wonder if part of  d you tell me says here in the business of at least in this particular instance of formulating forty requests i take it we only get to the question of public interest if somebody substantially prevailed in the first place so because we're only talking about the fees aspect of the case so in order to even get down the road to or we've asked whether it's of there is a public interest in asking whether steve williams association with the kennedys this assassination is something that passes the district court judge now concedes that new information was released and i guess i'm trying to ask is is it true and i just don't know the answer that's why it's you is it true that one check against the possibility that we would have requests that they are insufficient nexus one check against that possibility is that it's unlikely that you have a situation in which the requests are substantially prevailed in the first place so you never get to that question yes that's that's the first thing then the other thing that i would point out it was that the the cia in responding to the request  point out that it's not just the j f k assassination that is at issue here the the beginning of this course lanced opinion lays out three or four factual findings that the requestor had made a request for j f k assassination records that he hadn't been taking the records that records relating to the kennedy assassination were released as as a result so in a sense i think this court has already for close that avenue it has found that these records who were related to the kennedy assassination the question is whether the kennedy assassination is a a significant historical event i which there has been investigation after investigation that his discounted the original findings of the morning commission and you have numerous questions arising was also involved directly with the house select committee on assassinations he kept information from the house select committee on assassinations including the fact that he was the point the judge will have started with which is that in applying the public benefit part of the standard the first prong we look to the request as it's framed ex ante rather than expose that what's in fact released because there's certainly some sense of that because from the perspective of the requester they don't know what they're going to get until they make the request of the government response but in davie there's certainly language to that effect but there was also mention at least of what when fact was released ex post and i'm just wondering what you think the relevance of the mention in davy of what in fact was released ex post is death we're only looking at x eighty i think that the real focus is on the relationship between the documents released and the event commit the assassination of of president kennedy clay shaw so there was a clear nexus between an obvious matter of public interest the prosecution of a citizen of the united states for having conspired to assassinate the president president and the documents there is the same kind of relationship here where you have  you have organised to this effect all of which goes to what in fact was released yes when in fact you attained i guess my question is there the framing of this public interest and the public benefit criterion could focus on not necessarily what in fact was released but what was requested at the outset because the idea being that the requestor doesn't know at the outset what's going to come out of the endeavor because that's why they're asking because they don't know what's behind the wall and so they put i request and if so i take it part of your argument is we should be looking x e n t it was what was requested and there's certainly a lot of language in davie that would support that frame of reference rather than looking at ex post of what was released i guess my question is but davies not entirely lacking in language that points to what was in fact released after the fact and also and it's it seems now both and i would agree with that assessment have you seen both but the the hol the way it did because the requestor have a very strong direct personal financial interest in obtaining the documents interest but the quezon commercial interest is still in the favor of the in the favorite category of public interest requestors that quezada commercial category is not  discounted for qualification to the public benefit analysis or under any of the four factors if this is also where the the potential distinction between ex ante and exposed starts to confuse the mind a bit because i can the situation with a mint national archives is there first of all the real new developments since the last here in on with regard of the national archives i went into with judge williams i think in facility for accessing the documents in fact there's no not all of the records that are part of that collection have research identification forms which are  the narrow website but those are highly unreliable and what we have learned in recent weeks is that after telling the public for the past several years over  a great skepticism by myself and others that that they had the cia had only withheld eleven hundred or one hundred seventy six documents from being released by the deadline of the j f k act and twenty seventeen that in fact we now know they've now admitted that there are thousands upon thousands of documents that are not accounted for that ever are still being withheld so the system is unreliable you can't be trusted and in this case when we in the c initially told us that there were seventy eight j f k documents and they were to go look for them at nara but when we got the request when they did first did the search after we got instructions that they were to search they came back with eighty eight documents so this is this is this part is this going to the point that they benefit for getting documents even with there's back to the documents that are already in the public are a yes not just the saving on copying costs it's that you know if you were to go over there and do the search yourself you still wouldn't come up with the same documents that the that the government has in its possession yes yet and you would be you'd be reliant upon  someone to guide you and try to find the appropriate place to go in this very complicated there are five million pages of records there and there are all kinds of problems with with bank collection that hopefully at some point will be able to get a congressional hearing on but at the moment you have to go through this process of you either make a for your request in which the agency that is  not necessarily the cia could be the state department or the f b i the agency has to be responsible for conducting the search there you've got some handle on the search without having to do it yourself  it from that perspective what's the argument that the public interest the public benefit by tyrian is not squarely implicated here yes assuming that the request is the focus and we use  the thirty year career of a cia employee was used to make a very weak connection between a two year period in that career and the cia therefore if assuming that there was some sort of illegal activity in a two year a two year period that the cia endorsed that illegal activity to have a plus or somehow want to or talking about when in fact was produced i understand it but even if we are as to that as to the award my understanding from the record is that somebody thought that was interesting because didn't weren't there a bunch of media sources that in fact republished the photograph of the award recipient with the as my understanding is that the district court was never presented the photograph itself but there was evidence that there was a photographer at their ward serve morning and there may very well be a photograph out in the o n is that on the record i thought it was represented as it is at least represented in the briefing that the photograph is reproduced in multiple media sources is that that's not and i'm unaware of that i was just reversing a footnote in the in the in the photograph i think that the analysis is correct and i want don't want to provide any short shrift to the court's hypothetical of ex ante consideration of what is what's before the the actual production and the request so as the court indicated we do we do disagree with that formulation but the the gown side of instead trying to focus on whether or not the information assuming the truthfulness of it whether the information itself and getting back to the expose production whether that those documents those court documents  something to the public discourse that could help inform the public at large about the political choices that it needs to make and the court is absolutely right that that the topic area of this needs to be separated from the actual production of of what we have for us after a decade of litigation on this particular case after the decade of the from from the very beginning of the court press to now and over twelve hundred documents being produced we reduced down four documents and those court documents pertain to the topic areas outlined before which is the career war and and travel for years and none of those documents have the connective tissue that you find in david in davie there are there is there's no dispute with the court found that there was no dispute that the connective tissue was there and that there was a talking about you know i don't want to use a productive term it can we're talking about conspiracies to to some extent by nature and so part of the enterprise here is want to look to see whether there happen to be travel documents that put people in the same place in the same rough window of time and if there are the navy that leads somebody to look into it scrutinize it a little bit more and then they're not going to look at the government maybe they go interview some people that were on site and that spawns and things and so the part of the reason that i think a lot of navy suggests looking at is married with this proposition that you don't know the connective tissue based on a particular frame of reference in point in time you have to just understand that they could lead to subsequent increase that could  behind a bureaucracy and then essentially wait out those requests or is who could not afford the link rid of and so we'll look at it from that point of view it's not focused on the request know when you're requesting what the documents will produce but if you ask a broad enough question and if the chances are great that you will find something that's been withheld there will be produced and at that situation where after a decade of medication you have four documents that have week two tenuous connections to the actual event in hand and the fees are on the table for the taxpayer paid at that point but if it only took a decade and there were only four documents because it's not entirely in the requesters column and no i mean if we're only here because we want litigation in the first place yes and if everything had been done in the way that it turned out at the back and then we never malaysian well you know that brings up the point of the agency's conduct correct because in this case the agency had a reasonable basis to withhold certain documents or to not serve certain indices because of you know case law all that was at the time relevant and controlling in this circuit the the agency resisted that search with three guys in this court and the that this was not a exposing enjoy need but in fact an effort to bring light to the j f k assassination that that there is a repository that is actually meant to help the citizens to so understanding that context of the purpose of the people the the shifting provision in the weakness of the connection in this particular case and the fact that in general these kinds of inquiries need to be very suspect fact specific case pacific and review the documentation of having a having a case law there were that says that well deemphasize is the results and just talks about the intent of the of the request doesn't adequately protect against the abuse of that possibly happening down the road with broad requests and confusing or and inconsistent results as a result of the fact that the request themselves are not tenable for the agency to search such a broad request i don't think anyone  area and if that's the topic area then there are there are certain things that are sold in minutes as to the actual results of that search that should cause for the public benefactor to be called into question and in this case there is no question that you know while reasonable minds can differ as to the import of the conclusion of what these documents pretend that is exactly what the district is called upon to do which is in there's only discretion to to determine what is actually connected to the over arching subject matter in this case is your case as a nation and  benefit analysis in favor of the appellate how does the if we're talking about degrees or remove are degrees of remoteness that in our initial opinion in this case or at least in the two thousand and seven opinion in this case part of it came up because of the way the statutes were together was how remote the connection was between the request made by morally and the function of the church committee and i think the decision that we handed down said that well it was only a remote relationship that would be one thing but it's not merely a remote relationship it's actually a pretty direct relationship to what the church committee was investigating and if and that's that's something of public interest because that committee don't to the extent that the church committee involved then we're we're talking about the investigation of the assassination yeah and the so the matter of this litigation is joy and he's and the liaison with the house select committee in that in that capacity so we get to the fact of whether this is new information now again whether joining this connection with the investigation is really new information even though as the course says it is a direct connection this is new information significant connection between the newly released information and the kennedy assassination assassination we have  fact that during the proceedings of the assassination records review board the cia could not locate the case officer who was in charge of the the house select committee had tried to find him the jefferson morley was eventually able to get the assassination records review board to produce some some documents and eventually join these was identified however it was not known that joe in these was working in an undercover capacity at the same time that he was working with the congressional committee investigating the assassination that the current congressional committee was inquiring as to who the case officer was and he did not inform and the cia did not inform them and that he had a direct conflict in the east had a direct conflict of interest here because he was the person responsible for pain which covers the period of time that he was the liaison with the house select committee not informing them what it was his obligation to inform him of that is a very direct very substantial connection that is new information and then under any definition of what potentially contributes to the political to the public benefit it meets that standard the same with the travel records the the cia disputes on the basis of what evidence we don't know because there's been no affidavit in the record but in the record declaring that the travel records forms say you would see what that what the government now represents to the court of the they say the records themselves say travel records and regardless of whether or not they establish precisely what the critically important because the r t activities and the hours of all activities leading up to the assassination of president kennedy were carried out in part in new orleans and in part in miami so there is just simply no question but that that this was all is all related now one final point on the issue of the photograph the judge said he didn't have a copy of the actual photograph what he had was a citation to the web site for the new york times the print edition of the new york times did not carry the photograph the digital version of it did and the link to the digital version was put in the record for the district court so it is in this it is strain credulity to claim that