dollars why are you here it obviously cost your client a whole lot more than a thousand dollars for you to be involved in this what's at stake here or am i missing something you're right that the record in this case is over a thousand dollars the issue is the aggregate effects of the department's continual misuse of identity it's misapplication the public interest in this case you're the client so again and in i understand i understand it but i'm to answer to judge smith's question why didn't you do well why is it a foul why are you doing all this if you're for a thousand dollars if you're billing your client for or this the answer is that at the end of the day it's your submitted as a matter of law can be interpreted as noncommercial yes in the case the question is is this that is the use of these records the certified payroll records for the purpose of compliance with federal law a commercial use if the answer is no i mean because you have to ask the question is not whether the identity of the person who is making that request and that's unfortunately what the department utilized here the underlying identity of the purpose yes the only conclusion is that the the only actual use of these records is compliance and we're reviewing monitoring compliance with federal law and submission of third party complaints to the partner of labor where violations have been found and as a result of bringing these davis bacon violations to the attention of the department of labor do you expect or hope that something will happen well the only the only hope and the only thing that does what let me rephrase the only thing that can really happen in these cases your honor is that the workers who are being cheated out of their pay out of the davis bacon act can be reimbursed for a back wages ok there are so so so somebody benefits the workers benefit right so in this case the benefit the direct benefit goes to a third party which are on affiliated unknown workers that are not affiliated with the party who is me who is making that complaint so there is a third there is a benefit to a third party certainly but and these are use someone benefits and these are the unknown unnamed laborers why is that not a commercial use well it's not a commercial use but in particularly in this record first of all more broadly it is not a commercial use because the benefit for the commercial use test is to the requester and the request not to another third party not to the public not to anybody else but to the requester and in this case the requester doesn't get any renumeration doesn't get any particular benefit the only actually only benefit  workers there's a further there's benefits to taxpayers right there's benefits to the government obviously in catching cheating contractors but the benefit doesn't come directly to the requester but you can also notice there's sort of put shelter doctor in here that if request on your behalf to the v a or some government agency for the records so we can determine whether or not to pursue a claim on your behalf would that be commercially if they if the facts were changed at the work or w request to the v a and you say here's why we're i'm submitting this request mr jones has come to me and he believes he was underpaid i need to get the records to find out whether he was those are all the facts you submit those that use of metaphor or request of the v a and they as the different standard as as i've written right right but to the extent that it is helpful here in carlucci this court had decided the claim for damages do not constitute a commercial interest so in that in the end in the instance where the law firm would representing that individual for back wages because that's ultimately what it is right the cheating the contractor has has not paid the wages due under law and we were seeking simply wages not even damages not even economic damages in addition to the waiter's if damage is in tort don't constitute  those are damages and tort these are somebody who say i was paid enough and i'm seeking contract damages is that a commercial claim i would say in that for this court's decision mcclellan called so tell me i mean maybe your position is it's not commercial my initial position is not commercial but to the extent that this court would believe that the facts situation that you have just outlined is commercial then it is distinguishable from the facts an area that we have present work the reason that i'm interested in it is because we judge each question it would seem strange to say it was commercial if the union member requested it directly but not commercial if you if you form a nonprofit group to request the information on behalf of the union members well but that's so that's not quite what's happening here you are and i again i want to read that my position is that in the first instance that you mentioned it's not commercial given this precedent and given the text of the foyer but the difference here is that the union is not making the request on itself the benefit of the question on to the commercial use test is is it actually being used for commercial purpose without any regard for identity and with respect council i just want to cite the regulation this is not a hypothetical dynegy of the person involved so in this case you ask what you ask they looked at it asked for some clarification you told them that and they said you know this is the usage you're going to put this to is not a public use this is a private use it's a commercial use what's wrong with that there are three things wrong with that your article first is in fact that the four yeah itself incorporates the o regulations that the o m b uniform fee schedule and the only uniform fee schedule and guidelines doesn't fact say and i'm going to quote from that for you that request that identity excuse me that uses the exclusive determining criterion in place when in the commercial use category it says that use not identity controls but i know you keep talking about the dennehy but i'm just saying to you i just cited use here they wanted to know what the use was they didn't ask who you were they asked what the use was and they determined that was a commercial use what's the matter with that i respectfully disagree your honor because of the statements contained in the record they didn't they asked what our use was we told them what the use was and they disbelieved argue space on c the intended recipient of information is comprised of unions who represent the business interests of their members this is that's from the certified record of fifteen one but that shows there and they inquire about that understand the use that that that gets back to that gets back to what judge her would just talked about if you if you have a an individual union member make this request i think you sort of tentatively agreed that would not be a camera that would be a commercial use so if you form a nonprofit to ask on behalf of the union member it doesn't change anything where they may want to know when a minute you know you've asked about this we need to understand the use so in order to understand the use what's the difference between what we got before from the individual and now the nonprofit that's formed on behalf of the end of the individual well the difference is the difference for let me be clear on a couple things are first of all that's not what the record said that's not what the v a ever said the v a had made a number of statements here's another statement let me give you a statement where they quote the word quote trades is a part of the c b c to name colorado building and construction trades council they looked at the identity of the requester your honor and that is in permissible they didn't you they  you are in order to determine how you use the information you can ask who you are certainly your honor but what you can't do is assume that the use flows from the identity let me give you by way of example if i represented acme corporation and acme corporation made the same exact for your request that this issue and we made it in a representative capacity if the department came back and said you were acting a corporation you have the word corporation in your name clearly your commercial use requester that's precisely what the department did here if the department said you're a corporation the purpose of a corporation is to end it is to make profits for shareholders well as a result but didn't you do more i'm looking at the one thirty two through one thirty four you get a three page letter from the day which deals with both your initial request and your motion to reconsider so they've now got all the information that you've you've put in front of them and they say we've considered all this information they don't just simply saying your name is is union or your neighbors something else they say we've considered it all you're really not going to use it for the public benefit because it's a question of how much wages were being paid by subcontractor that may be wrong and they go through it at some length and say we therefore i classify it as commercial so i'm i'm a little bit i'm having difficulty understanding your argument that it was denied simply because of the irrelevant and may not be considered it says use controls use not identity controls agencies in determining whether across properly belongs in the commercial use category agencies must the chairman the use to which i replied to it so tell tell me why this letter from the v a one e r one thirty two is it talks about use it says the requested information is not going to be used for the public interest it's going to be used to show how the sub contractor does business yes and that uses commercial there is a fundamental misunderstanding that the department has in its misuse of this test and it's misapplication this context and that is that the public interest prong that you just cited that letter your honor does not exist in the commercial use or the all other use request category classification and that's of the that's a the crux of this matter that this is not a public interest fee waiver case this is five u s c five fifty two a four  a a four a two one three three the public interest fee waiver and that's a request categories the public interest fee waiver to us is a separate part of the no i understand that but your letter to them says we don't want this information for a commercial purpose we wanted to contribute to the public's understanding of how government works and their response is no you wanted to determine how subcontractors pay that's not you know so your and your justification for not commercial is not sufficient the their the point of confusion honor is that initially we made a fee waiver we made a public interest that's not in front of and that's not over here and we said we agreed that that is is a non issue we agree with their determination then we said well have please the court christina morrison on behalf of the agency in this case the agency did correctly classify the trade counsels for a request based on number one the commercial nature of the information that was requested and its direct connection to the stated purpose interest in use of that information did you i'm now looking at the e mails that went back and forth and didn't you classify this is commercial use because it was being requested by a union no your honor not at all it was classified as a commercial use based on the stated  type of the nature of the information so under mcclellan information you tell me where in the record you did that i mean that i understand this is an informal exchange process they say you say well i want fees they say we don't we don't think you should use it you say the category is commercial use seems to be the decision yes the e mail of april thirty is there any analysis the analysis comes throughout the administrative process so tell me where  on their records the defense supplemental excerpts of record one twenty five through one twenty seven that is where the trade counsel sought because it's a labor union to be put in the other category the a responded at one thirty three one thirty two and forty eight through fifty talking about the nature of the information it's commercial information under mcclellan if it relates to comair commerce trade or profit and the a explains that this shows how the private sub contractor pays its sub contractors namely how it does its business that is commercial related information and is her answer anything in any regulation that you're aware of th nothing in fact we have to consider the identity in order to determine the direct connection between the nature of the information and its use he really couldn't decide this without knowing the identity of the requester could you correct that is absolutely correct otherwise and i'm now i'm now here they're talking about the r one fifty nine is that we and i apologize to counsel i was guy was looking at the letter denying the fee waiver i meant to be looking at the letter one fifty nine denying you appeal is that what you're saying the  craft personnel competitive rates to be able to bid competitively for these types of projects or not so for example if if if if you got a letter from the trade council a trade council just says we need this information didn't explain anything else arguably if you made a decision on that basis alone that would be impermissible but if they make the request a dent if i who it is you write back and say we need some clarification here what are you going to use this for and they tell you in this case that it's going to be used in connection with trying to get back wages that's perfectly appropriate is one of the regulations is perfectly appropriate so is obtaining back wages commercial obtaining back wages yeah ok marshall short that's the question i asked your colleague if let's assume that a union member came to you and said i'd like to see you know the payroll records were for the subcontractor because i think they cheated me would he be requesting that for commercial purposes yes because it relates to business commerce or profit and in this case in the foyer the two four requests that were submitted the trade council did more than say it was just to seek back pay identified third parties and the specific language that they used was that you know they noted that the construction industry is highly competitive where contractors are trying to gain a competitive advantage and they're seeking to allow contractors to bid in a fair environment they seek to expose fraudulent contractors taking this into consideration with the website which is to provide craft personality competitive rates and ensuring that others within the construction and history are are paying person pursuant to the davis bacon act all of that relates to the commercial trade and profit and trusts what what decision was the district court reviewing is it this this letter that i need p o d or when fifty nine is it an earlier decision is it i mean there's a whole series of informal exchanges and requests for and then by the time it made it to the district court the trade council had winnowed it down in terms of two just the feet categories ation so what the district court was charged with and correctly reviewed was under the a regulations did a use or purpose of that information further commercial trade or profit interest of the actual request or the trade council and seeking the payroll information that a private contractor in the construction now and this is based on mcclellan as well as the on the guidelines and even the v a regulations and guidelines what difference what role would the use of information that the agency would provide as a form of discovery play in your decision does your army in terms of a private litigation in other words if it's if the agency views what's being requested is basically a form of discovery that would be used in the litigation would that play any role in its decision about whether it was a commercial use not necessarily because the standard for the fee categories ation is simply there has to be a use or purpose there can be multiple yourself so if their request had said this is a scandal and we we want to go to congress about it would that have been a commercial use not on its face necessarily probably prompt additional information if it wasn't clear what the use or if it would be a contract connected to a commercial use however in this case it was clear the trade council i dentified the purpose and interest of trying to on its website on its website as well as in the foyer request indicating it wants to ensure that contractors within these trades can fairly compete at competitive rates and expose those who are violating that violating the davis bacon act and so by forwarding that information it furthers the trade commercial and profit interests of the trade council if the requester were news media is typically it's going to fall in the first category it's not a so the identity there is also considered however if the newspaper was only using it for a commercial personal profit  interest than potentially it could be labeled as a commercial use request it's not just checking off a box in terms of the identity of who's making that request so in this case we believe that the agency appropriately categorized it based on the information that was provided if it is not an identity only test however the identity is a factor that needs to be considered when determining if it furthers the commercial trade or profit interest of the requester and that's what happened here if the court has no further questions i think they separate i think your firm thank you counsel you use up all your time b she finished early will give you a minute if you have something vital that you would like to say thank you ar briefly the issue again is that the misuse or the misclassification of this use of the commercial use test they come in the form the regulations say use not identity controls the department misused the identity as a factor for placement in that category which is not permissible use the public interest fee waiver test which is not applicable here and it didn't provide the procedural requirements and it missed misapplied the procedural requirements in coming back and asking if it had