not this particular portion of it and my name here on ifs is ken cleaver and i represent dr who is here today i'd like to reserve about four minutes of my time for rebuttal we're here today asking you to reverse the district court ruling on privacy act issues for your issuance and absolute denial of any discovery to my client below and what i'd like to do is start with some overarching principles that apply both to the privacy act three prior cases of relationship between the government both the v a and most recently within the last three times the department of labor and dr drew us on privacy act issues in the first two cases which were tried before actually summary judgments before magistrate judge arnold there were photos of sixteen counts of privacy act issues and summary judgment was entered in favor of dr the us and each of those sixteen counts in the  s on one of the key privacy yack issues and you found that the government had participated in a willful failure to abide by its african obligations and sent the case  k that privacy act issue since that time we are now here before you yet again on privacy act and for the first time for your issues i'd like to make it clear and i think it is certainly clear  to government agrees that there are two different regimes here for you on the one hand privacy act on the other and they have different requirements and they have different documents that we're trying to get where i also agree that under both  privacy act a disclosure of documents is the primary rule and that is the obligation of the government under both for you and the privacy act to carry its burden to show that it meets the limited obligations limited exemptions under both the privacy act and different exemptions on the foyer or those documents have to be produced when i say the documents have to be produced i really misspoke because we are also clear that both for y the privacy act deal with information rather than documents and that goes to the segregate village issues that we're going to talk about today under the boy or the district court has an obligation to look at all of the documents for an failed to do that each of those principles i think we are agreed upon i know that we are also agreed that i think in this litigation the district court held no hearings on the cross motions for summary judgment or its pleadings and finally the district court in this case allowed absolutely no discovery each of those things are going to be important as we go through analyzed of the privacy act issues and also the four issues and the denial of discovery but of briefly touch first the privacy act issues and i certainly welcome any questions from one of the first ground that the government raised at the district court level for failing to provide the privacy act issues was eighty five exemption documents prepared in anticipation of litigation the parties are agreed that the government did not raise that the five exemption case which differentiates it from many of the others that we have in the jurisprudence particularly in the nih circuit is a doctor who was when he filed his two appeals or at least two of his appeals for the privacy act before the department of labor specifically told them there is no d five exemption here i don't think there's a d five exemption he told that at the excerpt of record etheridge eighteen and also want a letter that he sent them to to the labor department in the excerpt of record at page twenty he told them if you think there is eighty five exemptions tell me about it give me an opportunity to respond to it but when the labor department issued determination and the legal matter and if that isn't legally permissible around the district court relied on even though the agency didn't rely on it because rather and that's why i raised the issue of the yard eighteen and our twenty letters that dr who was sent to the labor department he told them during the administrative process i don't think the five applies so labor had every opportunity to exemptions here administratively and it wasn't until current counsel errantly got involved that the the five rest raised as a post hoc rationalization and the cases are very clear that while the pella counsel can be very good and very creative that does not overcome the fact that the administrators here chills not to invoke the d five exemption and that that raises kind of a different question it can be i think it's both here particularly as we say because dr lewis ray the issue of eighty five exemptions at the administrative level and the administrative chose not to invoke that when they issue true that this was an appeal based upon an administrative record period not in administrative record which can be added to after the fact in a post hoc rationalization fashion by separate in the district court and then information been put out on the table well there's an issue there because the vote and i am going to get your issue of are just issues like i'm for you i promise you but there is an issue as to whether or not it was legally easily remedied we have raised issues with regard to whether ms miller was in the position to swear that an appropriate search was conducted here and we don't think she was in that position which could she have signed this declaration under oath  the height of boilerplate and in generalities and gives us almost no opportunity to advocate for the production of documents if i could you rogers i have a couple of pages they are out of the excerpts of record here from our seventy and that years one of the documents which is referred to on the first page on page are forty eight and i'd like to go through first what visibility told us on page forty eight and her allegedly born index with regard to the document dated january twentieth of two thousand and two she tells us it's a memo from an o w c p employees she doesn't tell us who it is or how high up in the hierarchy that person is and so are we to push to advocate whether or not there is a privilege or the work product doctrine through and as so well attorney asking for advice on dr who was disclaim now what type of advice is  being asked for or not told who's the recipient we're not told we are also not told whether or not they're already carbon copy recipients of this something that you also of course need in order to advocate whether or not there is a privilege or the work product doctrine and we are also not told whether or not any of this information can be specifically segregated at then ask you to look at the second page that we've had to drop if you are seventy is t document that ms miller was describing the one twenty olds who document on the first page that i handed off the are forty eight the first thing that we know this and this document was actually produced it was found taking into consideration the care that they did not give to the documents and there was three of judge fletcher you and others found that they had involved in willful violations of their obligations under the privacy act they take one of the documents that they're claiming privilege on highlighted certain portions of the our seventy and it's clear that there could have been a segregation here there is some requests for advice but there are also simply some factual matters like the fact that i wrote a letter well that's not record with all due deference basically rubberstamp what ms miller said in this declaration both with regard to the claims of privilege work product documents and also with the claims that nothing could be segregated and this is just one example is you have to have it because they gave it to us but good points out the various deficiencies in this particular form indexed and you know your honor of course there is there's some latitude that has to be given to the government here and i know that you got the letter that the government wrote last friday was regarded few post hoc rationalisations and it struck me as a was reading that the fox decision out of the fourth circuit forced the end of that decision the courts talking about the bond index in that case and that case involved the cia and there were twenty one pages of documents we have far more than that here and the court said we find that the violent acts and the declarations that the government filed with regard to those twenty one pages of documents are sufficient and the court points out that the government there took one hundred pages of declarations and one indexes should describe in detail twenty one the core of my name is peter when i'm an assistant u s attorney in representing the department of labor in this case the for you and the privacy act are obviously about open records open government and particularly the privacy act has to do with the right of an individual citizen to see a file maintained by the government used by the government to make decisions about that sort of nobody's here contending that these statutes do not have a broad presumption of open government and access what we're saying here is that there are limits and those limits arrive particularly where you have as we do in this case attorney client communications which aren't simply attorney client communications but they are turning client communications against a history of a very long and regrettably regrettably long  contentious litigation that has taken place between the department and the requester the government is not stretching here to try to use privileges to protect documents that should see the light of day what we've done is narrow down the dispute to a very small set of court documents thirty nine of those documents relate prior litigation fifteen of those documents relate to the current and ultimately succeeded after this court ultimately ruled in his favor and convinced the department to reopen his claim for benefits that proceeding is now still going on in the context of the department's re consideration of his request for benefits the agency decision maker asked for legal advice and the agency asked for legal advice for two reasons one obviously there's a long history of litigation with dr lewis but also file he found e r seventy which mr keefer has just shown in court which is the memorandum where the agency decision maker is asking for legal advice to the office of solicitor of labor dr louis asked to see that file and that's what the contention here is about agency took the position that the privacy act did not apply because they had a rule they enacted this rule and they relied on their rules t the agency's lawyers files out of the privacy act instead the agency process dr lewis's request under the privacy act under the for you which is provided for in the privacy act ok so then they withheld they gave you lots of documents several hundred documents out of the lawyer files and withheld a certain number of documents and they cited exemption five as the main reason for the withholding of those documents because action five is now when that became arose in the district court the issues relating to the rule whether the rule is probably promulgated whether the rule covers these particular documents or not very very just well to get into and a far simpler resolution of that at that point was just despite the fact that the stashed the five the privacy act doesn't apply doesn't like these documents but that the government lie and the five are there in the district court the government a frequently when you have statutes with lots of exemptions particularly in the foyer but also in the privacy agency will cite one ground for the defense of the exemption and then at the district court level will come up with an of with a more accurate  e agency assume perhaps correctly perhaps incorrectly that the rule that they had promised that it simply removed these documents from the purview of the privacy act privacy act would you call only applies to  system of records that the agency maintains and has rules permitting agencies to remove those system of records from the purview of the privacy act then you go to the analysis in the foyer so the agency because it was under the on the record of the agency the agency does create a record suitable for review and congress provides for a review of that record but the courts that have addressed this particular issue and of course the fourth circuit has as well as many declaration of the agency the various evidentiary issues that the district court relies on are created in the district court and so in the fourth circuit for instance they pointed out that the plaintiffs can bring a suit even without an even age action and that the court can rule on that as an initial matter based on the record that the district court creates and that's what we're dealing with here ok now let's go to the finding and acts at any inadequate in order to determine whether this exemptions correct that's correct and you know it just seems to me that it's an odd thing for the court of appeals to be sitting here going through the ten and thirty nine documents i mean having been locked in warehouses over many years in litigation and having had thousands of the trainee client you know indices the normal practice is you sit down you say look here what i  we have to go through here point by point to find out if the vine index is to fission and we might go through here and say well you know i'm downstairs but i don't know they don't list any speed scenes and so you know that's kind of a technical deficiency we need to go through the fine index i am my item to determine whether we think it now that sufficient creates syria to provide the basis for a challenge  me answer that to waste first of all this court has to know of a review of the district court's record and of course in the context of that review it's a two part test under the fiduciary idea if you look at the weather was an adequate basis factual basis for the i think it's i think that would not be appropriate in this case for this reason the von index which doesn't work has the ability to review on its own does go through in considerable detail and context where we've got to focus on what these documents are at what the request is asking to speak these are attorney client communications they are communications between tourney's and decision makers and attorneys normally and you know there is no perfect index but you know the standard format is off the recipient date topic and the recipients include things like the two clearly attorney you know work product or attorney client document but what if they still see that the seattle times because they want to know that we're appearing here in the court and this is the topic probably they didn't but if that were the fifth could there have been a c c on the document and i say that i've looked at all these documents i can i say i've looked at all these documents myself they are clearly within the realm of attorney client and therefore if there had been a c c to the seattle times and one of those adequacy you know i'm going to have to read all these cases for they're on the phone and they're right cases for that standard but in the normal federal rule of civil procedure context which i do still remember quite a bit  can just say trust the government because yet you you would you would say you wouldn't put it on the list if there was a copy to the seattle times but when there's a copy to let's say  it's not a lawyer or might not be a lawyer maybe that's doesn't break the privilege because it's like you know like a copy to the top management of a company a control group kind of limit or maybe it does break the privilege of it goes too far and you can't even hear in the normal corporate context at least there used to be a control group tester you know who you could copy stuff to without losing the reviewing that on and us had an adequate basis say on it actually sufficiently particular to know that these really were attorneys like communications that these really were documents that were created in anticipation the court declines to order the department to revise the index let me just say this point when we retire we're going to have to figure out what to do with this case and it seems to me it might be possible since both counsel are here and you don't have to do this it's up to you but you could actually sit down and talk about your fairly short term paper on index and you might even come up with a solution for additional information on some of these to the point that perhaps as recent counsel mr keefer will say that his appeal is narrowed on certain points you don't have to do that but it just seemed to me that that you have all the cards of the dark advanced he holds the cards of the piano and that there is a more practical way to resolve this than having or advise us that there are certain aspects that perhaps are not in dispute so we shouldn't spend our time on the war number three whatever third option you come up with is i don't know what all the permutations might be what it means to say something's reasonable and what it is that this report has to do that i don't i don't see how we can even come close to doing it because even if we could do it here with fifteen or twenty guy came unstuck and we do it in a case with reasons which the court noted right at the very beginning of this argument which is this is going on way too long the there are a lot of reasons for that and they're not before the court i think it's fair to say that both parties have have not exactly given us a playbook that we want to repeat i know that my role has been not simply handing for a case but it's been really if i may have a moment or two and i have make away the other record but in response to your question senator cantwell office her director of the services for the washington state and also for her d c office have been calling the labor department three times of them you had you know that well no he didn't he did not have the documents they were never submitted to him and cameras or no he had them available to him had he asked but he never asked sold to the best of my knowledge he did not have any of these documents before him  which they produced to us not for the file so when we sit down with mr wind i can't deal with any of these other not for the file documents because they didn't produce them and they didn't include them on their one index but i want the court simply to look at this one document that they did give us the the issues is there how do i know to the record that he didn't look at any documents i think we can i were persecuted and none of the documents were given to the court i think that's correct know thank you very much you have a broad range to invoke your legal talents with each other to see if you can bring a resolution that won't leave you back down thing around because i can tell you if if this were to be remanded and then it's still going to cost a lot more time and judicial resources before you get another answer and you might not like that answer and then we might be back to the court of appeals and the issues still wouldn't be result so this may be one that you want to talk about and if for whatever reason in talking about it yourself it might be helpful to have a