please the court as you know there are two issues presented in this appeal st whether the f b i has met its burden to demonstrate that the records it has been held in whole or in part pursuant to exemption five fall within the scope of the deliberative process privilege and  nd whether the f b i has met its burden to demonstrate that it is reasonably forseeable that harm to an interest the deliberative process privilege is intended to protect would result from disclosure of that material because the district courts grant of summary judgment to defendant consequential meaningful change to the act now under fire as plain language where disclosure is not prohibited by law agencies are required to disclose records under forty have even if they fall within the scope of an exemption unless the agency can demonstrate that it reasonably foresee use that disclosure would harm an interest protected by an exemption that means in the litigation context an agency must demonstrate in a manner sufficient for the court to conduct a new court review not only that exemption five applies but that it's reasonably forseeable that disclosure of the specific example tiriel that the agency seeks to withhold would harm an interest that exemption five is intended to protect it's to let me ask some questions about what you just would discourage attorneys from candidly discussing their ideas strategies and recommendations and pairing the forthright internal discussions necessary for efficient and proper adjudication of administrative appeals and that was enough  so applying that standard to the facts of our case what what more do you saying the government needed  that i didn't hear and i think your honor that judge catches his opinion and machado monist it's distinguishable it's very instructive in the way that it's distinguishable at issue in that case was one type of record here we're dealing with multiple different types of records explanation applies to categories two through six is it ok for the government to repeat its exact words and simply copy and paste what was good enough for category one and then say for category two the clarification i'm trying to understand what you answered before that there are occasions where it would be enough to copy and paste i think it's not a question of copying and pasting it's a question of whether or not the the whor identified by the government and is tied specifically to the types of records at issue so if you have records that are very similar sure you could cite the same harm but you have to you have to tie that harm and actually explain how the harm to be protected by the deliberative process privilege which is the the quality of agent deep agency decision making how that applies and that can in context and that's not what we saw here and i would put i would point your honour's to the wall or declaration for example there's one maybe not the best language for this foreseeable exception because it would make sure i understand what your answer is my understanding is that they're required to make particular areas of the harm referring to specific the specific purposes i think with respect to different kinds of documents but what it can't do when i think what it has done here is name all the purposes that the liberty of process privileges made may serve  protecting the candid nature of a subordinate's communications to a senior decision maker for example confusion to the public all of those that oppose it apply by his court in different circumstances and say these are all the purposes that the privilege serves and we're going to withhold all of these different kinds of documents because one or more of those purposes may be undermined if we disclose one or more abuse documents and i think if you look at the materials that were released made up steel by the government in this case after our opening brief was filed you can see examples where this just completely breaks down and i was pointing to the provision in the wall or declaration paragraph twenty which is really this umbrella paragraph that really speaks in very general terms about the purported harm that would flow from disclosure and so i'll jump to the middle of that paragraph but it affectively says to require disclosure of the withheld information would prevent me from engaging in a meaningful documented discussion about policy matters in the future which could have a negative effect on the agency decision making it would potentially confuse the public about the reasons for the un g s adoption  documents including documents we now know if you look at joint appendix four hundred and ninety four dollars which is one of the documents that was withheld in part previously released in full during the course of this appeal the agency i proffer that rationale to withhold a single sentence completely factual in nature about that that indicated that the provided a draft report to the f b i at one point and so i think this is why there were and i think at this stage we would say there's nothing deliberative there so we have the previous it'll be out that document that's the memorandum that was that was attached to the final o a g report certainly nothing deliberative about it and the notion that any harm to the agencies the quality of the agency decision making process which again is what the deliberative process privilege is designed to protect is untenable any any argument on the part of the government would be untenable i think that's why they released to that appeal but i also think it illustrates the unnecessary explanation on foreseeable harm which sort of would depend on the category would depend on the sensitivity of the documents we're talking about right if someone makes a fo request for the nuclear launch codes you would need a really long explanation on foreseeable harm right so that's what that principle helps you on many of these categories but let me pre you on one that seems to me a harder one for you which is the komi e mails you've you know from context that the agency has this problem on its hands it's significant enough that the director of the agency feels like he has to write to the new york times which doesn't really happen every day sensitive subject matter p r debacle i mean isn't it pretty obvious from the context that deliberations with regard to that kind of document implicate the interests of the privilege and their release would harm the interests of the privilege protects i would say no your honor i think  not all discussions are deliberative sometimes decisions are made without deliberation and i think that's one of the reasons why this court case law indicates that you look to where in the chain of command the communications are coming from and where they're going and we're talking about former director coney's communications to people who work for him we don't know what those communications say because they've been redacted but it's very reasonable to think on the face of those documents in particular process privilege does have a does all is also interrelated with the foreseeable harm and i thought it was pretty clear i'll go back and look at the documents but i thought it was pretty clear that he was providing comments on a draft letter i think there are it may be clear to you your honor was not clear to us it appears that he is providing information or direction and again that's redacted in redacted form to same in the description of one seems more squarely within the deliberate process privilege break if the directions are let's make these changes before we announce th i would think there are that that it depends on the just the context but it could be that the decision is already made and that judge komi is or trust me for a director comey is just instructing his subordinate to what the decision is he has made and again because we don't that information is redacted it's not it's not that's not clear but again i would agree to i would agree in principle that there are certain types of material this court is recognizes and coastal states for example that there are that class there's the classic case of the deliberative process at work and that is a subordinate attorney for example providing advice and i think this flows into the judge catches his decision of autonomy motus i think it's very consistent there are certain types of decisions to line attorneys commentary to their senior attorney use or it providing legal advice on specific matters that at the core of the deliberative process privilege and perhaps a foreseeable harm showing is different or less rigorous that it must be for a situation where the records at issue are not the kind of decision that the deliber decision making process that the political process privilege is really geared towards what does our powerpoint presentation how should it be organized when all it does is repeat existing policy and that is certainly what we've seen from the from the slides that were released a joint appendix five hundred through five hundred and thirteen minutes he'll publicly available information how are we going to organize that for a power point presentation that's not the kind of decision that the deliberative process privilege is geared towards protecting and the notion that the agency has to do more to demonstrate that that harm will flow from disclosure of that information i think it is common sense quite frankly but i think it's also consistent with this court's decisions as well as the way that this the communications as they're developing this and it's for you how do you distinguish the korean various i think i think that there is no case law that indicates that pub that media strategy in and of itself sort of quote unquote media strategy documents in and of themselves are necessarily just by virtue of being media strategy are exempt from disclosure and a deliberative process proposed i think if we look back at the pre of forseeable harm cases  like coastal states and other cases that look at that focus on it don't collapse the distinction between pre decisional and deliberative you can see that and i do think that there is a strong distinction i think it is an important factor that with respect to these documents it is not a subordinate providing commentary at least as far as we can tell providing their independent independent candid advice to director comey about whether or not he should write a letter to the editorial read write a letter to the in policymaking or decision making is not implicated there and so i do think it is different and it has to be looked at a case by case basis so you make of you make a fair point and i have machado very much in the back of my mind you make a fair point there it could be different when the deliberation is running from the superior to the subordinate rather than vice versa but even so i mean you could imagine a lot of circumstances where the component head is trying to figure out what to do and of course he has the final decision making authority but he wants to bounce ideas off of people you could also imagine a situation where he has made the decision to take the strongest case for you and he says take take out the sentence that says x and it turns out x is a really dumb idea and it would be embarrassing if that proposal were disclosed i mean it still doesn't seem all that different to me this this kind of thing from the category one documents from what we had in machado will want to say your honor is that we're not taking any kind of categorical position actually as to concerning whether or not there are specific types of documents that sure that absolutely cannot be protected subject either to the leverage process privilege or that he the forseeable harm provisional or position is the agency hasn't made that showing here and i think if  relatively short but part of the reason for that might be that the sensitivity of those documents was pretty apparent and maybe the sensitivity of  evident from the from the opinion itself is that it was a certain specific type of document for that multiple types of documents and they were what the court was consistent with what the court has found to be really at the core of the classic case morning which is the nd question presented here and the requirement the agency usably for see that harm would result from disclosure and this requirement requires the agency to consider the specific information at issue in the case machado makes that clear and then to link that conclusion to the interests protected by and he gives an exemption it doesn't narrow the types of interests protected by the four exemption nor does it raise the degree of harm required before the agency can withhold the information it takes its mind when it the little bit on it's struck me a little bit odd that would would cause the harm protected by that privilege and we know from floyd that the difference between would and could is actually material between exemptions six and seven se e it's a higher standard to show that harm would happen than that it could happen you know and it seems so it seems to me that in fact there is that to that degree an adjustment and how to live nature of this particular delivery process and this circumstance would it make direct i think with words yes your honor we agree with that outline here but just to highlight a few things that  flow from that the st is that the agency is making a predictive judgment about the effects of disclosures here on future similar deliberative process that's not readily subtable to documentary evidence it's hard to see what the agency could do to crew that judgement either true or false i make my course not to make its own judgment here it's called upon to determine whether the agency is judgement is within a broad zone of reasonable judgment that's capable of making on the basis of the deliberative interests at stake here and secondly i'm sorry where do we have any assurance in the declarations here that the government's took this task seriously the general purposes behind the letter of process privilege that's not chill candid conversations in order to prove the quality of the decision making and then the key sentences are disclosure of this type of information would have been hitting effect sentence that's ok now it's i know you released it but explain to me how how on earth i can trust that this information makes that particular his judgment when it turns out know and my question is very different you're relying on the harty declaration as having made the machado foreseeable harm judgment to retain and not disclose end we credit this hearty declaration with having made any kind of particularize or careful judgment when it didn't stop to notice that it what it was claiming as forseeable harm included a description of a document  had already publicly disclosed yes your honor because i'm not aware of any case from discord or other court saying that one error or an unintentional error in an affidavit means that the court cannot rely on any other portion of that  it was already publicly disclosed i think you know this case involved over six hundred pages of responsible records right i'm just asking you to confirm yes i believe those were mistakes or are they were a lot of yes every category is separate in this case but there are six categories of records just within the deliberate process privilege there are other exemptions fifty six dollars arguments as well for lots of other records not in this not in this appeal there are over i employees would hesitate to offer their candid advice and then this is crucial the descriptions of the deliberative process used within each of the six categories and the roles of those records play in those lucrative process used serves two functions it goes both to be a deliberative process privileged and it also goes to why the agency is usable harm determination was a reasonable in this case machado shows us the way machado says that the agency's prediction there that we know at least twice was just oh yes your honor in a large foyer case there can be errors and so for instance a district court can look at a could have made it and it was a reasonable mistake or did they maybe not look at it my point is there was a reasonable mistake that you know at the time the declaration was put together the  circulates agencies and report before releasing it i don't think in general that's a secret your honor i'm not aware of you know to what degree every time they circulate it's a secret so every time they prepare a report they share it with the agency to advance or to what extent in certain circumstances they don't but just to focus on the six categories at issue here i think it is beyond clear that in terms of liberations about media strategy whether it went twenty years with a media or a press release you know are within the core that will have a process privilege as every court of appeals to address that issue has helped similarly with the category six you know we have e mail saying look these are the current policies recommendation this is what we should or shouldn't do these policies the blackout the and recommendations about how to instruct including f b i personnel about existing policies so for example if the general counsel of an organization says tacit support and says i want proposal about how to is that when it comes to an agency history a draft agency history yes there's going to be lots of factual information all throughout that description but the selection of those facts the characterization of those facts the choice of which ones are relevant from other disclosable information but the court has always accepted even a single paragraph or a sentence saying yes this information's remaining from asian is not risen from arrest for the same reason the conclusion about i consider the information at issue in this case and release that information would result in harm to the interest protected by the tool of process privilege that should be enough especially in a case here where there's so many different types of documents so many different types of with holdings it would explode needlessly expend government resources to repeat the same sentence at the end of each paragraph about it's this if it deliberative process especially when the government's already explained the nature of the deliberative process is going on in the role of those records sufficiently to trigger the protections of the privilege that same information shows why the government's determination of harm is reasonable again within that broad zone of reasonable yes that's a bridge of judgment not readily susceptible to categories of documents are very different from one another and your arguments on some of them seem to me the case for you and you went right right to category one but we also have category two category three seem to me a lot weaker for you and i mean if you're just going to you know if you were talking about a category defined as factual accuracy measured against a legal rule that statements of fact are generally unprotected unless you show they're inextricably inextricably bound up with deliberations and your affidavit just has a this is all bound up in deliberations boom we're down that's it that's that's giving us very little to work with doing our review for reasonable us and it seems to me very different from machado where they did say more as to the particular category at issue and the particular category at issue was much closer to the heartland rather than the periphery of or at that was all before the harm provision was put am right that's correct or out of the harm provision again doesn't change the type of interest protected or ratchet up the amount of harm to the extent that a would would be stronger than could it seems to require a greater degree of particular i explanation right you can't just say oh well history histories can be protected could be protected and this is a history right so and to be clear we have more than these drafts where are the declarations and squalor says that release of that information would chill the always use ability to have candid dylan discussions between the subject of reports and away g before the final reporters just to drill down a little bit on drafts what would be the reasonably foreseeable harm in releasing a redacted draft which shows everything that made its way into the final repor it would reveal the degree to which the writer of that draft accurately predicted or did not what the final decision maker is going to want to have out there it's going to reveal the kind of editorial judgments and suggestions that this court's ever protective all honestly in the future discussions of this time in the future that is true of people and it's just a matter of common sense and human nature that people when they're writing a draft need to have confidence that it's not going to be released in the future in order to have truly candid conversations and to think and to improve the quality of government decision making that's the core application of the privilege it applies to a draft or as you report in the same way that it applies to a draft that release would lead to one of the harms you know that's protected by the privilege you know we've shown by these declarations you know past that minimum threshold we did that without the benefit of this court's instruction  the decorations fall short and in respects any particular categories we do think arena it would be in order but i've tried to explain why in a straw lean case involving here hundreds and other cases thousands of documents and dozens of different types of  the factual accuracy category which there's some instances where factual statements are bound up in deliberations and even if that seems like of the exception than the rule it's enough for the agency just to have a a one sentence statement that we looked at all the factual accuracy comments and withheld ones that are inextricably intertwined with deliberations that's right your honor but i also want to highlight that that's follows from the conclusion as to the draft away she reports themselves right it's because the factual content there is inextricably intertwined cannot be dissected from policy based judgement so to comments on that it's just like if a senior partner in an associate in a law firm are working on a draft brief and the special statement in that brief obviously the factual statements they're all facts but they're all chosen with very clear policy many policy based judgments in mind did it with this court's opinion the factual sections there am i don't think anyone can say that you know one person's comments on a draft agree circulating records you know are not deliberate simply because they involve factual material it's just like the actual material in the draft agency history and it's protected i hear you just seems like on that view of the world all the the amendment is as a practical matter going to do very little work very little extra work beyond the  i don't think that's true what you know i don't have a categorical view of exactly how many cases the amendments going to really make a difference and but it's a pursuit it's primarily a procedural requirement that's going to have an effect on the front end it requires the agency to actually consider the specific information and even if an esoteric case it could have gotten away with saying well the privilege would reply i'm actually sure if there actually be any harm that's not going to be good enough anymore the agency has to considering that think now it actually would result arm and you can get more upfront disclosure but there's no indication in the text of the amendment that congress thought there'd be a revolution in the way that any of the underlying exemptions work in particular the legislative history shows what they thought they might want to make some changes their rights that this privilege but only bill the language as to the the twenty five year event horizon i agree with you on that but it seems like there's a broad middle ground between a revolution and here and there screwball case and i'm not not sure they are not sure this is designed to just get at the screwball he says i think machado says look it takes a could and accident would and so on the edges it's going to have that effect but that could do it would language is about the predictive judgment and the relative likelihood of the harm occurring not about the nature of the arm or the size of it you know it it also focuses the analysis on the dock city issue i mean we didn't talk about deliberative process saying oh actually that case should come out even in machado you know in the child disposes of many of the arguments are facing here it says look this really is about a predictive judgment it's about broad based reasonable this it's not about ratcheting up the type or the amount of harm or the nature of the interests that are protected and the other no i don't think i want to say that machado is the sentences there are about foreseeable harm all talk about the specific deliberative process at issue because there's only one deliberative process at issue i think this court is always less flexibility for how how an agency makes out it's showing about the withhold ability under an exemption in a case involving large number of documents large number of the holdings and that's appropriate taking together the declaration index and the information we've released on the basis of that entire record the question is whether the judgment was reasonable not whether the court made the same judgment thanks y affirm and i jump in with one question it'll be short can you imagine a time you imagine a scenario when release of a draft would not shill and if so when there's a huge number of faction scenarios in the federal government it's a big government there's lots of drafts and i could imagine that if say the fire office gets a request and they go to the person let's have a person who still works there and they go to that person they say what do you think about forseeable harm about chilling future authors and drafts so it doesn't really matter if the original author is fine with the release no and that's where i was trying to get with the extension of my answer your honor it's it's not just does the author care it's also a look is that the view of basically everyone who fulfills this function inside of the federal government and if in fact it's not going to chill anybody or if the public interest in the disclosure outweighs whatever the chill would have been the government could make a discretionary release of course but it's going to be a very fact based of terminations and using common sense and also the government's experience with what people filling dysfunctioning need to enhance the quality of our decision making and it is true th this course preexisting case law about the privileged has already drawn pretty strict boundaries about where it applies and the basis on which this court threw those boundaries even before forseeable harm was largely about whether that harm would arise if that type of information were released that's why the foreseeable harm requirement as applied to the process privilege is not going to work revolution it must protect a bill and what's not because this court case law already did quite a bit of that work all this does is move that could to would in the context of a predictive judgment i'm sorry just what i think might be muted i apologize for interrupting  know you don't have to describe an example but you just aware as a practical matter whether any deliberative process would have been a deliberative process withholding prior to the that you know it i just want to highlight again the extent to which the privilege was already designed to serve a specific purpose to prevent the chilling the future deliberations and this court has been pretty strict about where it applies or doesn't apply even before the declaration which is joint appendix to fifty one citing that sentence the f b i concluded that the factual information in the response of records here was part of the deliberation itself and inextricably intertwined with deliberative information just to be clear that sentence is purportedly a political to every single piece of factual information that might have been withheld by the government in all the records is not specific to the factual accuracy comments and i would note that the government has taken the position that the the deliberative process is actually related to the work of the of the white chief and the wall or declaration which is the oh i don't ration doesn't speak to the factual accuracy comments at all so i think just to clarify that that that and to go to the separate ability point i also wanted to raise this as well a nd bill it is a longstanding requirement of way with respect to exemptions there's also a separate segregate billett requirement that congress enacted as part of the forseeable harm provision so  not only must agencies segregate not exempt information from exempt information they must segregate exempted from ation that is harmful from exempt information that is not harmful but i did want to touch very briefly in just the last thirty seconds on this draft oh i just report inspector generals are independent they're required by statute to provide oversight agencies agencies are required by statute the rite aid and information to inspectors general and even