morning united states versus jackson good morning your honour's huffman for the plaintiffs appellants may please the court this court should reverse there's no evidence in the record that the latest incremental updates to the a major computer program contain any frank discussion of policy matters that is the hallmark of privilege deliberative records his computer program does not make policy recommendations it doesn't involve selective subjective value judgments and it does not call and select policy relevant facts the program uses to specialized calculator regulations that the e p a issued that emanated from the department of transportation is that right that's right around a demand for the cafe model you know now suppose someone wrote a literal memorandum that said i think we should use the omega model rather than the cafe model because the omega model does this this and this which the cafe model does not and therefore it will give us a better  picture of what we're trying to project and what policy decisions in order to help us with our policy decisions would that be within the deliberative process privilege there would be much closer your honor we depend exactly  sort of recommendations and how it tied to the policy and how it was used in the process what would it have it really is the policy the memo says this is a better model them that one because it takes account of this factor in that factor and it more appropriately balances the calculation right then and then the other one why why does it have to be deliberative it can't be about a step in the process it has to be about the final decision to be made it could be about a step in the process but it's got to be a policy relevant stack and i think there isn't a policy relevant step if someone if this so let me try to modify my political slightly the memo says the cafe model understates certain factors and will lead to a high estimate of the costs of a given regulation and therefore it's not a good model and the omega model will give a more accurate picture of the costs that's not a do loop and then somebody else could write a memo i assume back saying no the other one is better and then somebody accuracy if you're talking about sort of technical measurement or the best way to make a calculation more accurate that's not likely to cross the line into sort of a subjective why not when you get this model aren't you folks going to go and run the omega model and come back and say see the administration has systematically overestimated cost by using a policy biased model that is designed to produce results that will lead where they want to go and that's that's really what's at stake here isn't it in terms of the substance not the four issue but that's really what the public wants to know about is an issue and in public wants to know the most accurate calculation of costs and we want to get the model and run that and put that in the public domain this is a massive public health rule and we think the public deserves transparency here we're not asking for any of those memos that you describe we don't know but don't the don't the models  body those assumptions in other words if if and i'm not a computer person literature person i like words if someone wanted to explain to me we're going to use this model and here's why they would have to do it in words in a memo but i rather imagine maybe i'm wrong and you can help me out if you think i'm wrong about this somebody who is sufficiently sophisticated who looks at the code will be able to say oh i see what's going on here i see what these folks want to measure and then they look at the other these folks want to do the calculation this way and that person may not need a memo the program tell what you know what the change in the algorithm was not why not who made it and not what process led to it or how if at all it was used and that's the sort of thing comparing two memos or something like that is different in kind than comparing t versions an algorithm the memo lays out the reasoning like you describe the why and it's there in words that everyone understands now i mean a computer expert might be able to make an educated guess but it's no more than that it just it's too far removed from any of the actual policy discussion that might be going on in the background to be able to tell that i should stress again that there's just no record evidence that there's been any change these incremental changes put anything new of substance nothing new in substance why can't you use the old model to do whatever you want to do because  models of the core model is going to do is optimize that input data and the way you use this usefully for modeling is that is if you modify the inputs if you want to see the effect of fuel price you'd change the fuel price and put that core model always runs the same calculations you run the same inputs twice you're going to get the same results every time and so all we need is that we're missing that one key component to turn these inputs into the calculated costs and if we knew we had to we determine what is simply specialized calculator or a technical calculator versus a calculator that is making policy judgments complex policy judgments how do we how do we figure that out we're going to we put in our decorations i  calculations computers are very good at that can take massive combinations and do something that would take you know a human years and years that operate and so i think if the course looking for a principle the cases are kind of all over the map when you when you get away from you e you talking about the exercise of policy oriented judgment the sort of core decisions that the government needs to make and should be able to get frank advice from subordinates to the decision maker if we agree with your contention that the e p a he could not reasonably have foreseen that disclosure would harmony protect and interest we don't have to get into the mine field that you were just treading through isn't that right judge kaplan these are all independent bases to reverse the court determines that and should determine that there's no record evidence that that this version is substantively different from the one in two thousand and sixteen plausible way that harms e p a is ability to candidly deliberate that's sufficient to reverse an order even if it is substantively different these things have been released for over a decade yes there are and there is no hard evidence whatsoever that there was ever any chilling effect  on frank discussion about these matters and there's just no indication that public disclosure ever caused harm isn't it just a case of somebody wants to hide we absolutely think so that there's no evidence of harm if there's evidence in the record that these releases improve the model and we know from then director ok who was present at the creation oversaw the st four leases that staff expected these would be released that the staff knew that these are going to be out there and there were peer reviews and it's not just her testimony there's a long record here e p a staff publishes papers that discuss the modeling they give presentations just a wealth of evidence that these releases improve the accuracy of the model through feedback and there's no record evidence that any of these releases cause harm to ability to candidly delivery and there's nothing in this record on either the issue of harm to the deliberative process that is to the agency that amendment mean suppose we were dealing with the attorney client privilege instead and there was a document that came squarely within attorney client privilege by anybody's definition with the agency then have to disclose the documents under for you nevertheless unless it could show in some concrete way that this particular disclosure of an attorney client conversation is going to cause particularized harm as distinct from the reason we have the privilege is because we expect that any disclosure of that kind of communication will cause harm it's about time is of the right privilege whether it really is a policy deliberation and so on if if if we were to decide that it is then the reason we have the privilege is because there is a general understanding in the law the disclosure of something that falls within that category is going to be harmful now i understand the argument that the amendment must add something but i'm just trying to figure out like what  is the additional thing beyond this is a true example of what the privilege exists to protect but nevertheless we don't have any evidence it's actually going to cause any real harm so that disappears where you are i think from the start of the core things you're talking about you know a current well seen memo to the president on on the border wall or something like that that the additional factual showing is going to be very straightforward you're looking for things like you know the content and character and the age of it attorney kind of vice and it's stay oh and it's talking about something mundane you know building maintenance or something like that but the point is this this does drive a certain wedge it means that documents that the agency would be privileged not to produce in an actual lawsuit must be disclosed under foyer right because there's a there's a gap there now yes that's correct and so your point really is that that the determination of whether something is binary or not in the context of this amendment need not be binary that is to say you could have various kinds of documents along a long spectrum running from one percent deliberative ninety nine percent fact to ninety nine percent the other way and you have to look at where on the spectrum it falls in applying the amendment i think you have to balance yes your honor and and so you your position is given the history even if we were to conclude that in some remote sense this might be characterized as too it's a stretch and if it's that much of a stretch the amendment comes into play absolutely honor it is a stretch and e p a has a long record in history against them here before you sit down let me just talk about it for a minute your argument about letters and memoranda i understand your argument to be that computer memorandums or letters that would cover this computer program and what's a court to just read it out of the statute the court doesn't have to go very far out on a limb here to say that this computer program whatever the outer reaches of memorandums or letters doesn't reach far enough to a cup it's this way that exemption five is applied the supreme court has consistently held for decades that this was the way that congress meant to incorporate all the normal civil discovery put privileges and  association that included things like tables and graphical materials that summarize data it's hard to see how how a computer program which is ultimately a complex set of instructions for doing the act of two thousand and sixteen can you cite to me any cases that whole that the foreseeable harm standard does not impose a requirement your honor i don't know if i if i have a case that that holds that there is that there is no heightened requirement but that i guess if i can clarify what the government's position is that the purpose of this amendment was as some of the legislation as legislative his codify an executive policy that had been in place under a holder memo but the policy actually originated from attorney general reno memo was rescinded through a memo under under then attorney general john  i'm sorry of the amendment was to call it part of why this policy and not have it be subject to future executive changes the so that again under under this amendment the agency is required to conduct its own analysis of whether whether harm would result and to judge lynch's point this is the purpose for which many of these privileges exist is that it's it's considered  to our our legal system that certain types of deliberative documents attorney client privilege documents would harm would harm the functioning of our system would chill the candid advice that that decision makers need to have  a subject that i understand that we i think we all understand but the two thousand and sixteen act wasn't part of what was motivating the two thousand and sixteen act was that too often there was an effort to block public disclosure congress did i mean that was when you read virtually all of the legislative comments on the floor managers in the statements that's the thrust of the legislative history does address a concern about the the application of exemption five in the house report however the house report makes clear that the main way that congress dealt with that concern was by placing a twenty five year the statutory language that the agency reasonably for seized that disclosure would harm the relevant interest now that clearly speaks to judicial review of the reasonable ness of the agency's foresight and that means that we have to make a judgment about whether it makes sense and to have somebody from the agency come in and say i believe the earth is flat does not make that a reasonable proposition that we can't look beyond respectfully the purpose of the amendment was to and to ensure that the agency question but the court must keep in mind this is necessarily a predictive judgment and the real hard work that we're looking at here should not be assessed on a on a record by record basis because  the standard is what i was trying to figure out with your adversary and i'm not sure now what the government's position is on the question that i asked him do you deny that there is space between what the privilege in tails and what the foyer exemption and tells no your honor we think that there is a there or there is some kind of heightened there is there will be some documents that would come within a privilege and do not have to be disclosed in litigation in discovery but that would be accessible through for you is that correct or incorrect correct your honor because the agency can make the determination because you know that this gets to the next question is is what you're saying then that what the amendment accomplishes or does is direct the agency make a certain kind of analysis before you invoke look for a village in a fo case that is correct your honor and then are you saying further that that analysis is unreviewable that if the agency says we thought about it and we think this would be harmful and therefore we decided to invoke the privilege that is the end and then we're back as if we were just the only questions left for us to review is whether the privilege applies by its terms that the court reviews whether the agency has in fact conducted this harm analysis and where do we find anything in the record that says that they have at all st of all before we get to the question of whether we get to evaluate the quality of that that  but so that's that's the st thing that's what there is that shows that the agency has conducted an analysis of whether harm is going to take place because the responsible actor in the agency tells us this is his conclusion with telling us we reached it or whether there was any process or what was given to it no your honor there is there is in the declaration some specific analysis of of these specific quoting it is it is possible that a p a policy change regarding the development of omega has changed since all go left the p a or that although is not personally involved in making substantive changes to this being at this summary judgment stage your honor these two declarations address different different time periods the declaration addresses the period from two thousand and twelve and before when when she was an employee of the agency but beyond that if you do look to the yogi declaration this is at page seven in a way that's the point the point is that maybe we don't know enough and it's summary judgment it's a summary judgment generally is inappropriate if there are genuine issues of fact your honor respectfully the question of whether or harm is foreseeable again it's a pretty it's a predictive judgment that doesn't necessarily give rise to  to the kind of traditional fact findings particularly in this area of deliberative process attorney client privilege where the harm is operating in a fishbowl as congress said when it when  it st put this language in place the harm is not that one specific document may be disclosed another may not it's that if the atmosphere is one such that all of all of one's recommendations and prita signal product is subject to release at any there is some distinction in terms of well those were used in actual regulation and so on but i don't see where that goes to the question of harm that may go to whether it's deliberative or free decision or something but i don't see how the fact that in those instances was used affirmatively to give the basis for regulation affects the question of is it harmful to disclose to the public how this  program works well your honor let's those those prior releases were all in conjunction with the e p a is formal release of a proposed regulation a final rule in some instances  technical document that that stated we are relying on this specific version of omega for this formal in action and so that's what what distinguishes it from it's now part of the decision rather than predisposition it's  rely on you know let's compare this for instance to something else iterative like an agency policy that is revised and release of the public five times in between each of those releases when an agency staffer starts to tinker with fact that ultimately the whole purpose of this is to create something that the agency will ultimately rely on and release just doesn't speak to the question of whether the release of interim versions would would cause that same let me let me approach this question and perhaps a different he would agree with me i take it that evidence in support of an opposition to motions for summary judgment must be of a sort that would be admissible at trial yes that is that is generally your honor i think i started to get here before these are it these are predictions about the future and a future in which what we are concerned about is is the er of the agency's ability to to deliberate in confidence another way of saying it is that at best at best he's offering his opinion about the future on an assumed hypothetical state a fact released yes your honor this this is necessarily something that that cannot cannot be be proven through specific evidence it is it's a doctor's opinion that a person who has biopsies and has a certain kind of his stone in a mess is likely a terminally ill with cancer is also forward looking right correct your honor and we let we let appropriately qualified doctors give their opinion on a motion for summary judgment or at trial if they are qualified as experts be have applied some reasonable and systematic methodology in a reliable manner and base the opinion on facts which experts in the field would rely upon that's a fair approximation right your honor respectfully if this type of determination does not is not one that in many ways the agency is the best placed expert to opine on which the release of which documents would forseeable a cause sent to somebody in the mailroom no your honor we're talking about agency agency decision makers agency staff who work on the relevant issues of course here we have the could produce affidavits from people in the agency now or in the judgment i mean it's then that isn't there evidence both ways and i've climbed to agree with you that this is not the sort of thing that's quite as susceptible to diagnostic tests as the medical expert example but there are competing expert opinions here to the extent we're talking about expert opinions your honor there are  there are opinions of of clarence who cover different time periods at the agency and for that reason alone we don't believe that there is any that's a reason to believe the one who is right there now on the scene over the other one but what isn't that the sort of thing that a fact finder typically would take into account that the decision maker who is there now and overseeing this particular development of of the model and in for you there is a well recognized presumption of correctness to agency declarations unless there is specific controversy in fact which we don't have here well you know i imagine your adversary might even be inclined to concede that believes that many people believe all kinds of things your honor this is yet another agency has concluded that disclosure would that would be a way to put it in the agency's nearly week much more clearly right your honor let me just get the text in front of me protected by an exemption so that is in fact the way that congress framed it wasn't so and why why reasonable doesn't reasonably suggest an objective standard your honor that's not it presumably when they certify it they believe that they believe it reasonably but generally speaking when we put into the law something that says you know someone has a defense if they reasonably believe their life was in danger there's an outside force in the court the jury in that case that decides whether the belief was reasonable i think this goes back to you you were making earlier which is that the the elements of the deliberative process privilege question i'm asking of both sides is where is the space between the two and you've conceded there is space between the two that there are going to be cases where the elements of the privilege exist but still this reasonable  she has made certain decisions it's not going to be left up to some of us say somewhere with all respect i was one i respect that office but sometimes congress wants the person at the top to make a decision and once they certify that they've made that decision in the statute doesn't say and then a court gets to nd guess whether it's reasonable the point is this has been made at a high level and that's good enough for us but this doesn't saying that this doesn't you're suggesting it seems to me that we're congress really wanted to do which is a little hard to get from this language was to say something like that that we're trying to reinstitute the holder memo and say when a decision like this has to be made somebody high up in the agency has to make a determination that there's a really good reason to invoke the privilege that it will cause reasonable harm and certify that to the court that isn't what they said your honor the i believe that the the language is best read that way just because again the clear purpose of what congress was doing here was to ensure that there would not be further changes to executive policy in terms of the agency's own self analysis of harm and ahead you know that's that's debatable i mean if you do go look at the senate and house committee reports the language is very very strong you've got the senate report signing and growing and troubling trend towards relying on these discretionary exemptions to withhold large swaths of government information even though no harm would result from disclosure you've got the house committee report the deliberative process privilege is the most used privilege and the source of the most concern regarding over use the liberty of process principle privilege has become the legal view gold by which agencies continue to withhold information about government operations and when you tie that language to the language in the statute which and as judge kaplan points out is does does does not talk about the agency's responsibilities doesn't put it within the agent that the bailee within the agency is this is a judicial function argue your honor i understand the view but i'm not saying  your honor do you just presume that whatever they say is reasonable so they might as well have left that word out and just said if the agency concludes if we're supposed to just take their conclusion as evidence that it must be reasonable because they say so well you wanted the ultimately it would not for instance be reasonable if if the conclusion were to be i believe the world is flat but but you know my belief  that only that and it falls within one of these privileges and you know in the context of something like the attorney client privilege of the work product privilege it may be difficult to to enunciate exactly why release of huffman said that this model is basically just a fancy calculator all it does is literally crunch numbers it's about adding subtracting but because it's for a computer because there are millions of these things and subtracting and have to happen and so hence a computer program and it doesn't embody any policy judgments or policy analysis or policy assumptions that could be controversial or that estimation there's quarrels the department of navy this is a d c circuit case concerning cost estimates for some new home ports for navy battleship groups those cousin is more withheld as deliberative because the court recognized that even what seem to be ministerial decisions something with the surface precision of numbers as the court framed it often do involve significant decision making in terms of what variables to consider how to weight them and without disclosing anything about this iteration looking back at the earlier models that have been released could you give me an example assumptions about whether vehicle manufacturers were going to completely redesign their fleets every four years whether it considered certain shared parts like engine systems transmissions and engineering platforms i mean these are these are there are technical things but how how one characterizes each of these these these factual there is a factual nub to it somewhere but how to incorporate that into the analysis is deliber decisions well judge that's what i think in part because the of of the founders because if you can't if you can't then your argument about the the effect of release of the core model variables to look at always do have have deliberative content before they become the agencies final decision and if i can also just point in time and wolf i'm asking your help in helping me understand specifically looking at the past not what's in the current model by looking at the past i think that the the main thing i can can point you to standing here today is that there was a  consideration that at a point disclose that it considered what it called a consumer choice sub model aren't from that one your honor i think that's the unfortunately the best example i can give you  made public in the past caused any harm whatsoever you're out of the question is not whether a past release of a finalized agency product after it has been has gone through the  agencies that in by high level decision makers in the past caused caused harm because what we are focused on is whether the fact of agency deliberation  beyond you know is what you're saying that we don't know whether with respect to one of those past models that was released six months earlier and an analyst at the agency had suggested excluding this from the this is something about every four years from the model and prepared a different version of the omega model that lets that out and your saying if that had been the whole point is we get to find what the agency is relying on and we as the public and decide whether we think with they did was reasonable book we don't get access to all of the internal struggles where somebody said all ultimately the agency decided to the contrary no that's stupid don't do that yes your honor that's that's exactly what we're arguing is that these that agencies whatever becomes the the agency is final position on on review of its its formal decision making by the agency itself rather than you know whether or whether we're releasing the the the question of of reasonable foreseeability goes to whether the agency would would consider it to be harmful to its process of of modifying this this this an amendment requires the agency to to consider for itself whether this would be harmful to to its process and otherwise you know the agency doesn't isn't required by  foyer to sort of live stream it's process of modifying its policies and so this is this is you know on the technical end of what the agency considers in terms of making policy determinations but  is can you give me an example where the agency released a version of a computer program or model that it hadn't used or that it decided to discard somewhere in the in the run  last and they had the opportunity mr chartley there on their afi and he's a staff member he could have specific testimony from director gave if there was a basis to do so e p a didn't for whatever reason and they have to stand on specific testimony about the circumstances of each of those st four releases and what staff was empowered to do and what she had authorized after due she says specifically she authorized staff to release and discuss the model at their discretion she specifically says that staff were aware of the model could be released at any time she specifically says it was releases were not done because it was final and approved she says she never looked at and never approved these things for release that they were released when the public was most likely to use them presentations the only thing they have now is that mr ware and says he believes it will be harmful now and you said that's enough reasonable foreseeable harm amendment might as well not be in the statute now we saw an execution  expedition here your honour's now because this record evidence that a mega calculates that at odds with the data the e p a relies on to propose weakening existing standards this is a massive public health rule and we saw that it's critical that the public have transparency here where doesn't just summary judgment but once we turn to your motion for summary judgment there are internal to all reasonable inferences that could be drawn from anything in the record and it's your burden to show there is no genuine issue of reasonable no genuine issue of fact with respect to whether the e p a reasonably foresaw that disclosure would harm the protected interests for places that are unique burden that it's slightly different and then typical summary judgement cases it's are resolved in favor of disclosure so e p a can't make the factual showing and the panel was asking for examples in these pirate leases where's an example of a policy choice if you can't point to one so your position is different from the one i stated which would apply on a summary judgment motion another kind of case your position is that they're stuck with the showing you they made for good or ill and if they fail to make it efficient showing in opposition to your motion you w your position yes you're on and we had of the last bite of the apple below and they didn't take we put all of this and they got to brief last and the only thing they put in with was a declaration from charlie about that the machine code in decompiling charlie misread or misconstrued i'm happy to hear that it's that high level policymakers work with he never says that he did he never says that anyone else did at any time he says may have might or might not have made  never would know where in there does mr where i'm say that he or anyone else ever actually did and it isn't that what's actually relevant whether somebody does or doesn't the point i think what all this goes to is whether  goes on and for some other reason they do something else the point is this is the kind of thing that embodies the kind of decisions that ultimately higher level people  would be inclined to make right no you know certainly not from from the entire nobody high up in the end the agency is ever going to say to some computer geek hey you have an assumption here that i don't like go back and redo it with a different assumption that strikes me as more in keeping with the way the world works that kind of thing never happens never should happen never could happen in a computer and computer model it could happen but there's no record evidence that it ever did and that's really the point here has the entire