may please the court i'm august plenty with just apartment here on behalf of the united states for your request at issue here is a broad one sweeping in tens of thousands of responsive records which comprise  training and guidance materials for the f b i special agents our argument is a straightforward one which is that under the one thousand nine hundred forty amendments the district court erred in ordering the release of all these materials and disposing of it on the ground that they were they were compiled for law enforcement purposes which is the preliminary test can i just make sure i understand what you're i think everybody agrees that the forty request and then rosenfeld has language and it quotes the church of scientology for the proposition that the test is a rational nexus between force made of a federal law and the document for which the exemption is claimed so  which so are both tests in force because the district court apparently thought only the one that's as rational nexus between enforcement of a federal law and required some statement of a statute mean i think one important thing here is binion so we don't have a formalistic application of this exemption i think the tests that the annunciation rosenfeld is perfectly suited to the type of requested issue there which were files specific individuals and the court made an inquiry what's the federal law being applied to these and of is why is the f b i investigating these specific individuals and it's really a way of getting at whether it was a legitimate  basis for it and your response which i think was is quite reasonable is that when we have general training materials they cover lots of things so as to those types of materials what should the test be and i think it's what binion said is there a nexus between those materials and is on what is there any reason to have a different test are there two different tests is there one test for programatic materials and another test for for other sorts of records or is it just what the statute says it's it's the same test i'm just i think it's applies a little differently when you have to say how do you mean to me is the question before you how do you meet your burden under exemption seven i'm demonstrating the rational basis with respect to these sorts of materials assuming for a moment that with respect to some kinds of investigative materials you've got to say why you're investigating sure i think i think when you have an agency like the f b i the function of the agency is law enforcement it should be a simple strict test to satisfy in a case like this can also tell me what tell me what to test this or do the different categories of materials and our declaration identified five are those are those proper law enforcement duties of the federal but beth bureau of investigation so is a obtaining confidential human sources that's one of the categories materials is that a proper law enforcement function of the f b i and i think our declaration and i think common sense tells us that's a critical and so what if you have the f the f b i creates a parking flow for your parking garage and you have these procedures about how employees should park would that be covered by exemption position i view it as an open question if we divide these two sorts of materials into circuit whether or not we've ever rejected a per se test with respect to not investigative materials maybe we have i but you're not asking for one that's a fair point i mean i do think  the import of the arguments in our brief are with an agency like the f b i that has and where the for the request is for law enforcement materials were very close to a person a test but i do think that there is some inquiry to ensure that the types of categories of materials are a serve a legitimate f b i didn't answer my parking flow question ari right yes or no i think that is a legitimate obviously function i'm not sure it's a law enforcement function so parking at the f b i building he would maybe not it would be more of a regulatory or sort of internal you know exemption to sort of deals with that kind of thing what about a manual about how to find dirt on martin luther king overruled we think that is a fair inquiry and not really but really not one that's relevant to the dispute here given the breath of the four request and the fact that it really is targeting general manuals long a more practical question let's assume that we accept your argument and say the district judge erred by requiring a specific statutory basis for each of the documents what should we do should we send this case back to the district judge saying here's the law you look at the documents and you figure out which was what category and then presumably if exemption seven is properly invoked we then move on to the subsections is that the right way to proceed i think that's right i mean it would be nice to have a little guidance from this court i think some of the categories of material here are so clearly right what my difficulty with that is the district judge has never been given an opportunity to make that ruling he labored under the apprehension and probably a reasonable one given our district judge to say here's the law you apply it to the documents you certainly have to send the sub exemptions back i mean this is just the preliminary steps and seven tests there are you know fifty thousand documents at issue here though so there's a lot more work to be had and i don't want to look i don't want to look at all do they apply the per se tell us across the border only for some types of documents well i think they apply to some types of agencies so so if a law enforcement mandate like the f b i then they have a per circuit does not have a per se test it has but it does have a test that says if you have general law enforcement materials those would qualify that the tax analyst decision and their rights are the d c circuit doesn't require a statutory citation for those you know so they don't require a specific investigation or are they still living substantive law so are they still looking for a rational nexus though between the documents and some law enforcement purpose yeah  i think that's right and you know i don't know what the d c circuit would say if this if the f b i came with their general law general training materials the d c circuit might say that would always qualify the tax analysts case was an  s case so the it was a little trickier because they had to decide is this a law enforcement function or a tax regulatory function you don't have that with the f b i there their entire scope of their authority relates to law enforcement and national security reversing court of appeals decisions that had done things like said the d n a manual can't can't and it's really hard to separate the d n a manual with the categories of documents here can ask a question about exemption seven which we're not talking about right away today but exemption seventy talks about guidelines yeah if it is it is the government's position to guidelines therefore must not already be exempted by seven itself law enforcement guidelines there to the couple different aspects to seventy they say any document releases techniques law enforcement techniques or procedures and we'd say a lot of what we're dealing with one for under seventy would fall under seven and therefore the couldn't as a preliminary matter fall under be exempted under seven because we would need seventy one yeah well i mean part of what congress did in one thousand nine hundred six was that it tightened the language in the initial part of seven made clear and added some of this to seventy and it really you know if if under the district court's kind of reading and finding a substantive criminal law it sort of reads a lot of that out of exemptions because we only get to seventy if it doesn't if it's if it's exemption seven document that's right and  you know the government does have a significant showing under i mean a showing under seventy to make raavan that's what that's what i'm suggesting we might get to but at least the in my view the presence of seven he suggested seven assume the f b i puts together a manual about how to conduct searches and it's detail the details officers how to conduct a search pursuant to a warrant and you wanted to see that manual are you suggesting that the f b i couldn't invoking exemption seven without saying well here's the statute we we use it for because it would cover all the criminal laws that they use it for why isn't what why is the requirement of  many functions some of which are law enforcement some of which are not going i agree that's why we don't that's why we may not have a percent rule but they come in and say this document your honor is a training manual for executing search warrants and you know which we appreciate the how that's not for any particular statutory criminal investigation that's for law enforcement purposes to try to keep the peace why how would this be necessary to have a particular statute cited in order for a court to determine that that's for law enforcement purposes that didn't make sense to me because exemption we're not questioning the activities of the f b i whether the proper or not we're talking about whether exemptions and should exert material that release the enforcement of law so for example we have training materials and community outreach that may be a proper activity of the f b i but it's doesn't really it's not compiled for the purpose of the summary so what so the the training or the procedures or the schedule for the police officers walking around the courthouse you're saying those would not be records compiled for law enforcement purposes i mean is that's rational that's a reasonable interpretation is that right we're not saying that those are and so what the police have to say well we have police walking around because we expect them to find this possible violation of a robbery law possible violation of a drug law possible and then just go through the california criminal code when there are training materials like the kind that we have in this case where we often don't even know what i don't think you're answering my question you should like skipping over what about mike rice so in this case i understand that it may seem a bit formulaic when you push it to the extreme so you're saying that the schedule for the police officers walking around the courthouse is not compiled for law enforcement purposes so what they would be able to claim an exemption no i'm not saying that your honor i'm saying what are you saying i have my my schedule if your schedule was challenging for your case then the government should be able to exemplar statutes that might be enforced so we can use community outreach is a great example it's in the case you're looking for the community outreach stuff you're saying the judge  the district judge cannot divine whether this was compiled for law enforcement purposes and that's the f b i makes up a statutory reason for i mean a district judges are very smart it may not be compiled we're not fighting today whether or not that document was compiled for law enforcement purposes we're confining about whether or not it's automatically not compiled for law enforcement purposes because the f b i doesn't say we're doing community outreach to prevent drug use or we're doing community outreach to prevent bad cooperate i don't know why the judge needs a statutory citation to make that analysis you may be right it may not be a law enforcement document but in this case the judge never got there because he thought the f b i was required to cite  statutory basis for the activity that's a correct summary what happened this  i think that's an accurate summary of the disk so in your position is the district court was correct that the district court couldn't even determine whether or not this document was compiled for law enforcement purposes or had a reasonable nexus as we as our case use a rational look at the document judge it's here you can see that we compiled for law enforcement purposes well i think that's what the judge said i can't do that you need to cite a statute to me unless you say the magic words i can't it's not an exemption seven it was not a matter of magic word honor it's i think part of the difference that we have is is it is this law enforcement purpose mean the enforcement of law or does it mean something broader the f b i has said it means the advancement of law enforcement interests generally a law enforcement purpose our u s guess or construe law enforcement purpose to mean only the enforcement of a specific criminal statute not quite rescue to construe consistent with the ninth circuit's holdings in the past that law enforcement purpose means for the purpose in the court said we don't care what you claim to be that the mere citing of a statute doesn't show it's for law enforcement purposes we see this is pretextual is for political reasons so the statute is really irrelevant to the stance it is a lot of the court particular it's what allows the court to perform in our analysis and granted that's an extreme circumstance but the key documents we're talking about here we can't tell what the purposes of the f b i s activity may be training agents you know to participate in junior outreach activities which are lovely was there any evidence here that any of the or was that that was presented to the tester corner as in the record that these are pretext pretext for political activity is and for law enforcement purposes it's not a question the district court reached because it didn't pass the threshold question of whether  facially exemption seven documents you did have a do you then go on to say to argue about whether or not they fell within one of the various categories or do anything the court would look at the documents and hear arguments about them but here at the court set at the threshold meet one of the number is harms and the enumerated harm is as it could reasonably be expected to risk circumvention of the law but then last year looking at the law if you've gotten past the threshold you're looking at the guideline in the first instance you never reach the question of the enumerated harm so clearly congress intended that guidelines would get past the threshold assume a guideline that meets that is exactly the kind you think should be catalyzed under seventy and you seek that guideline and the general that government must cite a statute so let's assume we have one of these guidelines that falls right under seventy and the government says what they said in this case we use it for a lot of statutes we're that's not going to specify one year i think the it seems that you're making the argument that we should disregard the statutory change in eighty six they changed it from investigatory records to records or information you know your honor actually were making the opposite argument in our brief we discussed how the eighty six amendments support the appellate argument so what happened was the attorney general expressed a concern that informants i d s could be disclosed in an investigatory documents so it recommended this change but congress at the same time specifically stated this amendment does not affect the threshold question of whether records are information or compiled for law enforcement purposes and it made that statement knowing the existing law that was in place to require the  those phrases investigatory records kind of support the notion that the f b i would have to give a specific statute that was being investigated or in some ways implicated in isn't that really trying to get in this case we are not arguing that records have to be investigatory our point is that for regardless of the type of record the f b i can provide some statutory citation that would allow the district it doesn't seem as tied to the question of well what are you compiling records or information for i think that's what judge quinn was suggesting i mean i think it's true that the test will apply a little bit differently but if anything it makes it easier for the government to identify something i don't know how does it help or doesn't help you or the district judge in determining whether these are for law enforcement purposes so let's assume the f b i was in office that it in this case and they said we have this community outreach their what do you do what how does that help the district judge it analyzing whether these are law enforcement documents because in the district judge can analyze this community outreach really relate to the enforcement of this particular law or is it compiled for the purpose well but if we say community outreach is not designed for a particular law but just designed in general to reach out to the community so there's better relationships with law enforcement and they  make up laws that support it too to make it a lot of horsemen documented i mean the problem of community outreach and this puts a finger on it is that community outreach documents are not compiled for law enforcement purposes well that may be true i cannot get on that may be true that may be true the district court never got to that issue though because of the failure to cite a statute you have you're fully free to argue on the merits that community outreach is not a law enforcement purpose that's easy but this but but the question is why do they have to make up a statute statutory basis for  they don't have to make up a statutory basis this is exactly the community outreach documents show how the how this test works correctly if the f b i can identify as an identifiable law enforcement purpose for something like community outreach it shows the district court judge these are not documents that are compiled from i guess i'm asking a different question and we're talking past each other and there's the f b i i think and i think the government concedes have to offer a rational law enforcement purpose where the documents the question is whether they have to offer a specific statutory basis for the documents under the rational basis test they've got to come in and say these are law enforcement documents because we do community outreach for the following reasons you're saying negative one thing more and they've got to say in order and just make one point on rebuttal the court is sort of been asking for like a test that might work and i think i think with something like this where you're asking for training or documents relate to you know specific law enforcement functions or techniques or strategies of an agency like f b i i think you'd ask does the type of function that the document pertains to have a rational nexus to a legit legitimate law enforcement function of the i so let's talk about a community outreach document they seek it let's assume we say you don't have to cite a specific statute what's then your burden of getting into exemption seven i think in the ninth circuit i mean i think the job of the i and i think in the harty the second hearty declaration that was done here was to explain why community outreach and maybe even the specific types of community outreach that they are talking about serve this law enforcement function today so in a declaration of some sort yeah and we did that here in the district judge in this case never really got to whether or not these were community outreach documents under the facts of the case because he required the citation i mean i don't think there was a lot of dispute that the community outreach documents actually pertained to the community outreach efforts of the f b i i and i think the district court very forthrightly said in the kind of middle part of its analysis that most of these kind of functions did serve law enforcement interests you know community outreach confidentially felt constrained by our case law to ask for a citation to a stat yeah i did it and you know i mean we tried to tell the district or the i mean you said in the other forty seven statute there's actually a lot more than forty seven statutes that these pertain to i mean if you look at title eighteen there's hundreds and hundreds of statutes within the authority of the f b i this is i'm thinking of the sanctuary cities so the sanctuary  cities seem to make the argument that we shouldn't take illegals into custody that would impair law enforcement by preventing those people from reporting crimes i that is said implicate in all in this because in your argument he seemed to be making the argument that community outreach is sufficient law enforcement to justify a policy and i'm just wondering if that's somewhat inconsistent with the department of justice its position regarding sanctuary cities that's not a question i expected i will obviously immigration enforcement is not the f b i s job mean i mean we would obviously i'm not sure there's a court case in this court i think d c circuit and in the epic v h s case talked about v h s as lord filter so that i'm clear you're not asking us today to hold that these community outreach documents falling or exemption seven you're asking us to tell the district judge that you're not required to cite a specific statute in order for them to four hundred percent sound definitely on the second i do want to say you know this we've we're now  don't think you need to look at the documents just to kind of kind of set for the test that kind of makes it comfortable for the district court to understand that these types of basic roles of the f b i are legitimate and i would say community outreach is certainly something the f b i thinks is important the harvey declaration explains why it helps to helps their investigations to have good community relations and that's certainly a legitimate law enforcement function thank you and we thank