ellwood for the trust known in the papers as john doe number two also we are going today for the trustee you know to the papers of john doe one and i will try not to use their numbers henceforth ok i just want to make a comment about the sealed correspondence from the f e c about what sealed or what's not sealed as we understand that the remedy sought in the complaint is redaction only of the true names of the trust in the trustee for that reason we understand that both sides can talk about anything in the papers other than the actual names and we would insist that both sides only refer person i would rather call the trust in the trustee rather than john doe one and john doe two because i keep getting confused as to which is which but it would have been acceptable to both sides it's certainly acceptable to trust in the trustee i let me just hear from the government is there any reason why the trust and government integrity as opposed to what executive nature of elation ship is i think that that is still under seal i understand it's under seal but it's not what the remedy that you seek so i don't understand i mean we would be i would be inclined to unseal that unless there's there's no argument made anywhere in the briefs that the relationship itself discloses anything i confess that i don't know the record well enough to contest that so i think it probably were ok if we just hope we stay away from their names but in any event the federal election commission never even charged the trust or the trustee with violating federal election law much less make a finding that they actually did violate the law the commission told us only that we were witnesses not that we were targets of an investigation but even though the commission has given the plaintiffs none of the procedural protections to be entitled to his people accused of wrongdoing under the disclosing their names would be unlawful for three reasons to sask so it's not the commission that's accusing them of being money launderers if you think that's a slight overstatement of what he accusation is it's a single commissioner and there's three other commissioners who can reason to believe and two of those made a statement explaining that the law wasn't at all clear there are facts one can all clear and therefore that kind of conclusion could be reached and am i right amount that privacy interests and when you have people who have come out and said you know they're guilty including a commissioner i think that that heightens the privacy interests go ahead i'm sorry but if you look at the fifth ahead of the first argument  the disclosure would be unlawful under the agency's for your regulations and it would represent a unexplained departure from consistent agency practice if you look at the agency's own for your regulations they state that what they're going to put in the record privacy statement over their policy it says for the first twenty five years what they put into the record afterward were the documents considered by the agency quote minus those materials exempt from disclosure under forty unquote and they make that's a page  our appendix at the top of the third call and they make very clear that what that means is redaction they say they frequently that's the word they use redacted documents are which p d n which regulation you're talking about this is the policy i or agency to withhold information with a balancing test is are but i think no i think that there are cases like for example the a t t case in the third circuit in portion that wasn't reversed by the supreme court and say that you can make for you a essentially mandatory by regulation and our argument is that it's too porous first that the regulations themselves say that they will put in the record nominees that material their view is that this is general counsel force like we're talking about here and that is an indication that they have in the past you have routinely done this to they've taken this kind of information out now they see they invoke a five a four yo that's the provision about multi member agencies and both and they say that that's why this information has to be disclosed but if you look at the policy that doesn't invoke a five with the disclosures it invokes a tube you can see that both page let me see here eighty eight where it says result about what it is and i'm looking i'm looking at the very large paragraph after two yeah if you look at southern entry down it says to the extent required to but clearly i'm warranted invasions of personal privacy an tougher standard than the sick one we addressed in safeguard harder to meet and secondly says an agency man doesn't say agency shall so both of these go to the once again to the us to undergo review in rever case which is only a question of the results and sees decision i don't know off the top of my head whether the word clearly was used anywhere and safe car going to progeny but i think it's pretty clear that the core indicated there that that was  a very important and they were very pronounced privacy and draws but the word clearly isn't he six her own personal information and personnel files and it was not included we have to assume  the corporation that i cannot itself have privacy interests i don't know that it means that they cannot invoke it because there are other cases where corporations didn't both get it in that for example m still the same and that's the point that the government made in its own brief which is that there can disclose i mean the corporation doesn't have privacy rights but the extent to disclosing a name that infring unwarranted invasions of privacy and the language in a seven about unwarranted invasions of privacy both use the word privacy and and the whole point of the f c c versus a t n t case was that there is no personal privacy for corporation or or an artificial and so if that's the case i take your pivot to be the argument while disclosing the name of the trust might disclose the name of the trustee is that correct is that your argument that is correct and the private i'm sorry  didn't see any affidavit and i don't see any argument as to why that would be the case and the government's brief raises this point i'm able to see the name of the trust and it doesn't disclose anything means absolutely nothing to me the government says that process a general matter don't file our documents publicly or anything you haven't made any representation from which we responses first multi day get self just you don't get a court doesn't have to blind itself to the realities of these things they just said basically they're a closely held corporation of course that's going to disclose and stuff about the actual owners finances but i think that you the crew would not be litigating this for hundreds of thousands of dollars on the other side in a civil lawsuit if they thought they were going to end at that you know kind of nondescript trust name that it's of the simple matter of you know for an eight for you know people with  suggest that the showing is not that exact and then secondly i think you know the court you kind of got rid of this case you know with a fairly it was not very impressed with you in the general argument about the privacy rights because if the trustee was operating simply as a trustee and the corporation you know or the trust was itself an artificial and to teach and so i think it should be done is to send back a given and you know tell the court with the proper standard it is and give us an opportunity to prove it under that standard imo the court said i've had an opportunity and he said you don't even need a strong showing i heard any showing that that's what i'm asking for what is the showing that disclosing the name of the trust will disclose the name of the trustee assuming that's what i'm not sure whether it is buying these i mean i think in the simplest case you know if you just get an address for the the trust you call them up and say hey who signed the lease you know we got to get in touch with him about agent attack and salisbury i mean there's an enormous amount of information out on the internet that is available to disclose these kind of things and you know based on the kinds of showings that were permitted before i mean you you say it's distinguishable but still the multi since they were the the the owners it wouldn't necessarily reveal if that that was apparent this or getting into into speculation but i guess we should now shift on to the to the trust dee i'm not sure what his or her privacy interest here is either i think that is answered by the washington post case cited by the government where it the court said that you know even if they're employees doing intimate personal nature that that's not what this is about all this is a purely professional activity well it is it is something he does in his job it is nonetheless he is being accused of breaking the law and his job this matter which does not include group i think the pac i don't know the answer to that it's not in the record i think i'd say when they received the money  things like you know the work product privilege in that you know if you if it's you know consistent there's nothing about that that that makes it public they have to disclose it so far and so i don't think you can say because they know that if nobody else has a has an interest in regular practice that when you're talking about whether or not what happened here is reasonable you have to look at the fact that they frequently redacted documents to take out identifying information and i think what we have here is unexplained departure from that practice you know even though again that the agency has invoked a pie when they say you couldn't possibly redact vote certifications we did a five minute google search during the last week just to see what we could find and we found a service and that that's really the question that we have before us you don't because there is no dispute that the trust made a political contribution in this case or as i think we are not taking a position  orange is that we have been labeled a wrong we're going to label the wrong doers because of what the agency thinks he did and i think that you have standing under a case like heffernan versus city paterson that even if they're wrong about what happened the fact that they're taking chilling even if they're factually wrong and it does show us going forward because it means that we can be labeled as lawbreakers for an action that is entirely lawful without any showing that there was anything wrong with it that is the chilling of two and all the chilling effect cases that we've seen they all require some shock some affidavit other than simply the person saying i believe that my reputation w where the court said it's true you know we don't have the kind of strong showing that you're going to be subject to retaliation but merely disclosure it has a chilling effect but that is also true but there are the court was talking about tens of to be disclosed here but you still have a disclosure which in bookkeeper civili how they said that even the mere disclosure can chill first memories of private association and you combine that with the fact that they are labeling us as law breakers which of the violation i think of that is you know there are significant privacy interests and i think that that is something that would ordinarily be recognised as having a chilling effect to have that kind of information put out there in the public if it were were way over but that it is both reasonable under siobhan and constitutional under the first amendment to disclose the doe's identities notorious billy ask you about the wording of one to leaven point twenty b which you all have promulgated subject to for a be too little too where does terminate or otherwise terminate its proceedings come from in the statute and even assuming that it does what perceiving was terminated as to the two john doe is here the way i read the sequence of events here is that a proceeding was never initiated the general counsel recommended that they both try to enforce the subpoena and find reason to believe they violated the ad that was rejected so the proceeding was never an issue so even assuming this language comes under the statute which i have a real question about what proceeding here was terminated agreed to be one of three that we're paying a substantial monetary penalty to the needs are between the trust my trustee in their relationship with the government integrity i will see they are  part and parcel of several talking mens going in the record that are directly a part of those proceedings a lot so it is it your position that when you sweep in several people in the beginning but don't proceed against the two john doe that doesn't separate them out from the proceedings other words when you go forward with the others they are even though there's no reason to believe there's no finding there's reason to believe that you know and portion of the subpoena they get carried along in these proceedings that's your position oh oh such that their names can be revealed right their names appear as a central actor and both the activity below as well as the enforcement matter  for example the name of christopher byrd because he was involved with government integrity l c m and you will see other names both in that document and the record of people that had a significant factual role are there is not a finding that there was no reason civil right in the the phrase or otherwise terminates its proceedings is whatever the latin term is now i forgot it was a companion to the john doe you're telling me it's there swept again because of the findings you made with respect to the other yes or i mean these are the worst worked into that determination of the other proceedings which rather recommendation whether or not to find reason to believe and then the next step in that process is built by the commission as to whether or not to go see if are one one one point eight that the first out is a recommendation by general counsels to whether or not to find a reason to believe and then the next up is the commission vote and then there are then there are further steps from that point for d so that is a proceeding established that the commission has brought authority to interpret in a reasonable manner and enact regulations that further its goal and here addition to as a big being a reasonable basis for the commission policy more broadly itself and i ask you since you brought up the two in the statute it begins if a conciliation commission makes a determination that a person has not violated the sack you made no such terminations with respect to john doe there's pressure on ok the commission shall make public such determination now i don't see anywhere where what happened with the john doe is that it is just basically refusing to take the recommendation of the general counsel but that fits into the statute so then you go to terminating proceedings and i think you've told me well the proceedings were against all the people the respondents the already understood that the f e c was unable to disclose any other information let me ask you one thing about the one because i've had a lot of trouble figuring out when the statute uses respondent when it uses person b one says no action by the commission or any person in connection with any shall be made public without the consent what person are they really is this referring to the general counsel or i mean it's only the commission at kno that include the respondents it would it would include the respondents although the commission and the respondents can together agree to disclose that information  disclosure by crew of the names of the two john doe's is that a reading under b one that's what we have here and the resulting conciliation agreement your honor i the proceedings below there might have been aspects of it that were pretty ning to conciliation but every single sequence by the district judge is that on august tenth of twenty seventeen they served the subpoena on the to john doe's and they refused to honor it by october twenty fourth of twenty seventeen the commission voted unanimously there is no indication the record at what point the parties were attempting to conciliate nor the scope of the information that was directly derived from that attempt to sow let me ask you this i  see where crew began this whole thing in february twenty fifteen two and a half years before the john doe's got up for i get into it but you do agree that the first appearance they made was this served on them in august of twenty seventeen that's with the just recourse says so so that i think that there is a distinction your honor between their g who's there are wholly owned subsidiary i'm government integrity was a defunct corporation that is plain in the record was only resurrected for the purpose of this particular proceeding the same day originally the commission was serving government integrity through the person who was acting out an agent during the activity that was being investigated then later at a certain point they were formally served and in response to that the trustee entered an appearance activated the government integrity l l c and then from that point forward the trust of the trustee were involved as the government tech reviews counsel indicated and this is also in the record it had no he had no documents  information other than what the trust in the trustee were willing to give him the government integrity so manager and officer had docked so to say about the first e and that is the express yoko yes can i wish this court has generally rejected as having much play in these kind of circumstances so all three of the members of this panel and no doubt all the members of the corps have written this and the typical quotation is whatever its general this is from national shooting sports foundation but i not directly result so that seems should be your answer to the question how is it that the agency can go forward to disclose material that when the statute only lists two particular kinds of school there is a difference your honor between mandating that the agency disclose something and removing its discretion from disclosing anything else i'm particularly given as you noted before the trust is not have privacy rights that are protected by foyer and there under the recent supreme court case and asked the trustee the privacy interests are much more limited because he was acting in a business capacity and to the extent that he was named in the proceedings there was a leak in his the fischel capacity at the same time you have the very important government interests two of accountability and deterrence both of which are further here by the disclosure of the name of the trustee  fact that there is an even numbered of commissioners which in itself is unusual you have the mandate bed no more than three can be of a particular party you also have the express requirement in that to be eligible to be a point to the to the commission requires impersonality and you also have the mandate that both the chair and the vice chair are from different parties both the open acknowledgement as to the came from the trust so whether or not they were the true source and whether or not they were potentially subject to liability under the although you are over we'll give you two more minutes and your shit i want to just say a word about the government stated interest and accountability in deterrence i think it to begin with the argument about deterrence is misplaced because they haven't shown anything that they are deterring their depth any sort of finding that what we did here was wrong or improper in any way and as far as accountability goes this courts have historically unpacked the names of parties from accountability the idea is that there's nothing about the person's name that is essential for the public to know about if you could see that in the reporter's committee case with a quip not a quote there is no need to identify the individuals involved in a matter of the identification has no bearing or fact on the general public i visited this isn't so that's a case about reactions which is quite a different question here the issue is i think as judge randolph put it political accountability both of  sources of fons and of the agency as has agency counsel is talking about making sure that the agency isn't prefer in one party or another over on her one i'm not saying there's where they find reasonably come from another party or something like that so this is different than if you're even if you're reading a lot of the seems different than reporters reported to me what i was reading there was a talking about a hypothetical tax matter and it was saying that as a general does its purpose is to regulate the protected expression secondly congress recognized that disclosure wasn't all that necessary because they only mandated two things conciliation agreements and fines that people aren't l and third you have you don't need to disclose names to have some sort of public interest that things are ok because it's almost time for a commission with two opposing parties so all six people would essentially have to be on the take for not somebody trying to might have enough for review there's a there's limited basis for judicial review and here there was a conciliation agreement but my point is just that there are built in mechanisms to provide some assurances that it's not just going to be swept under the rug and all of those are reasons