with an classified and unclassified portion of their oral argument and then when we reach a point where the members of the court have some questions for the government that involves classified material we are going to clear the court room and we won't have any further proceedings following that ok i just want everyone to know that's how it's going to proceed press the washington post the wall street journal and other media also filed amicus briefs and there is a representative of the associated press here today before i begin i just want to state an objection to the closure of any aspect of the hearing there's been no notice to us there's been no notice to the government as far as i understand of no notice to the public or to the press so on first amendment grounds i'd like to object to any close proceedings in this courtroom that none of the briefs of course have been filed under seal all the arguments have been out in the open i don't see any basis and under the richmond newspapers versus virginia case as well as the globe newspaper versus a period court case and other cases from the united states supreme court dealing with openness of court proceedings there is not a proper factual not proper notice and there's not a proper factual predicate for closing any aspect of this hearing well mr julian in this in this scenario it seems that there are a couple of ways to proceed one is that the court room as the first amendment in our system of government presumes is open to everybody and everything is set out in the open and we're done but in that sort of a proceeding we may not be able to ask the government any searching questions about content which is classified so if you have your way and there are in proceedings after the open part of the argument some of the questions which you might raise in your brief about some of the issues some of the matter that's been redacted classified except for those questions may never be asked  so what do we do appreciate that concern that the court needs a full opportunity to assess the appeal but i believe that this appeal should be resolved on the record without any sort of clo proceedings as i indicated there's been no notice and there's no factual predicate for closure i don't know of any precedent which would allow for a closed appellate argument such as this one so i understand what you're telling me i think how is that any different than the review of classified material in the next party setting in a district court room it's it is it is distinct i think unusual for a court of appeals to have its own hearing on the appeal conducted in ex parte essentially so that you can hear a specific argument from the government that we can't respond to i think it's certainly due process problem that  creates as well as a first amendment problem because we can't respond you're right that problem exists at the district court level as well and so there there are equal problems but i that's my my objection for the record of like the other was proceed with my argument specifically asserted exemptions under the freedom of information act on it and then also with regard to the classified documents in you know what i thought would wanted to really spend most of my time and time doing today is point with the government to specific parts of documents that you have not been privy to and say in you know  asking how exactly does that fit under this exemption to the freedom of information act or how how exactly this is a call to to be classified and i don't know how to do that if you're well and i very much appreciate that the questions that you may have may be very helpful to the arguments that we're making but i think that the solution if you cannot tell from the record whether the exemptions have been properly asserted is to reverse the summary judgment that was granted for the government in this case the record either sustains what the government did here or it does not in our position is that it does not and the reversal is required for further proceedings in the district court and  then up to the district judge to manage that problem and dealing with i think just precisely some of the issues that you're raising here about how to conduct a hearing it seems to me mr julian you and i may be on the same wave length about this because as i understand your appeal you've raised questions about whether the district court committed errors of law that are there for our review right that is correct and you think the district court made errors of law without having to be privy to those documents isn't that right that certainly is true and so and we need to evaluate those arguments that is correct and we can do that in open court that is my position indeed ok well  so the so the phrase really three arguments for reversal of the summary judgment one has to do with respect to the adequacy in the reasonableness of the search the second argument has to do with specific redactions or withholding of five particular documents and the third issue that we've raised is whether the trial judge should have allowed us to take one deposition of an f b i national agent by the name of jacqueline mcguire the first issue i would submit is really the first the most important one that we have to deal with here the and before i address that specifically i want to make sure the court understands the factual circumstances under which this particular appeal arises because they are very unusual facts and it arises really from  contradiction we understand that you know we've read your briefs we we've read the district court orders we understand that our thank you i'm so so let me then just go directly to the issue reasonableness of the search and whether there should have been a summary judgment granted to the government on that point so the standard that the government has to meet in order to show that it's conducted a reasonable and adequate search is it's got to show beyond a material doubt that it has conducted a search reasonably calculated to uncover all relevant evidence that's a tough standard i would submit any beyond  a material doubt the factual circumstances that i was about to discuss and that i know that you are very familiar with many of those factual circumstances bear directly on that question as to whether there is a material doubt about what the f b i did here in searching for response of records of what i refer to as the commission was a reasonably calculated to find all of the relevant documents the two cases that i would direct your attention to that are most directly relevant of course are the mc a soupy because suki tribe of indians versus united states case and the much more recent decision from the district of columbia circuit reporters committee for freedom of the press versus the f b i which was decided just in december of two thousand and seventeen that case had some of the same problems that we are facing in this case in that case the media was seeking records of the f b i involving impersonate of the media the whole fake news problem that was being pursued by the media in that case only it was really a representation of the media by the f b i the f b i records because tony and david hardy filed two declarations in that case and  ry judgment was granted for the f b i on the strength of those two declarations reversal was required by that district court district of columbia panel because the declaration that was filed by mr hardy did not have search terms did not describe the type of search that was performed how division's that he had signed the search and i don't know why that would have been necessary here when what what has been described is a document by documents search well and your honor we didn't think that anything more than what was done was required either initially because when the when the first declarations were filed by mr hardy in this case he said why why should we have to conduct a search of our electronic records the sentinel system the central records system this was a specific project that was assigned to the director's office congress created this panel we went to the director office we asked the director for whatever files existed there he said that there is an electronic database he produced to us the database we did a document by document you're saying search right we thought fine that seems like a reasonable way to proceed and that's what mr hardy said in his declaration but what came back from that search was that many of the records that were specifically referenced in the commission's report were not produced to us we went back to the f said where are those records we're looking for all of the interviews that are listed the reports that were given we don't see many many of those records mr hardee then went back to the f b i director's office to people who are not identified and said look the plaintiff is complaining you're not giving us the record so what apparently happened in this case as i understand it what happened is after after you were told that they'd done a document about document search there was correspondence and then they went back and looked and they found document they found a file that they hadn't seen before went through all those documents and everything in it had already been  then they found some additional documents went through a document by document search and produced some documents from that what what what mr hardy's declaration said and i really would urge you to look closely at his fourth and fifth declarations because he describes what happens that the the f b i director's office comes back and gives them some leads he refers to them as leads and then we went and we searched in places that we didn't think those documents would be located we started to use the sentinel system which is there elaborate indexing system and we found that there were some other documents that were out there he doesn't tell us how that search was conducted doesn't tell us what the search terms were we don't know that he found all the documents he does also say we found the documents had been set aside sent to another location that the director's office did not tell us about and that those documents had been set to be destroyed we were very upset and disturbed that any of these means commission documents had been set to be destroyed he makes an argument that these were transitory documents we don't think that we are we cite the case law we think that's relevant and applicable statutes you can't simply destroy records of this type of commission and they then start to produce other records so the question really is is there any material doubt there is on this record immaterial about doubt about whether this search was reasonably calculated and in the specific factual context of this commission report that is trying to specifically discredit a key document that in prior freedom of information act litigation we had required the f b i to release and which seem to show that the f b i has public statements about this investigation that it had conducted in  sarasota about a saudi family that disappeared it seemed to suggest that the f b i was lying to the public and to my client here about what it had found and perhaps more importantly it substantiated what senator gra was telling us that the f b i had conducted this investigation and had not disclosed it to congress what we're looking to do is to find out what the government is up to a major purpose of the freedom of information act and we feel as though we've not even been told whether we've gotten the full universe of documents that are responsive to the request that is our first argument for reversal our second argument for reversal it deals specifically with the five documents and document twenty two it's referred  breeze is a document that it's fairly stunning a document you may have seen on the first page of our brief called funding of the nine eleven attacks and this was presented to the commission and as an overview document  well whatever the facts and information that you're providing about the funding of the nine eleven attacks that is not a technique or procedure of the f b i it simply doesn't fall within the statutory language there she reversed herself because after ruling for us mr hardy came back in and said well facts and information sometimes can review can can reveal the techniques and procedures of the f b i i don't understand that i don't see that of course i don't know what has been redacted there but this does not seem to fall at all within the seventy exemption there is an issue here about a split between the circuits and how the seventy exemption applause but this argument is not is not really dependent upon that split between the circuits if this is not information that shows a technique a procedure that should be reviewed that should be reviewed told and there are other similar documents early to mid two thousand and one additional funding those documents also are redacted soley  seventy grounds again that the district judge originally ruled for us she turned herself around and she she ruled against us on that on the strength of the new declaration that mr hardee filed really his seventh declaration in the case that's document twenty two the other document document number one is the serious so to case file again this is a specific document that's referenced in the meese commission report that these commission came and said we reviewed the sarasota case file we said please produce the case file that the commission did review they came back and said well there's prior litigation that involves the same documents we don't know whether it's the same documents or not that's the problem there's no exemption  if there's some other litigation that's pending and that litigation has now been pending for more than six years we don't know what's happening in that we have urged the district judge to rule as soon as possible but we did not get the documents there we did not have the documents here the time i think has come to produce those doctrines that consist of the sarasota case file that was specifically reviewed by the miss commission documents a document to we if we were to address documents or one we would be doing so without any district court ever having given us a ruling to review in that right yes and that's why i think that you should reverse th summary judgment that allows the f b i to withhold those documents should require the f b i to submit those documents that consist of the sarasota case file that was reviewed by the knees commission they can claim whatever redactions they want to claim but we don't is is specifically just turned to that this is the april tenth two thousand and fourteen briefing and i won't go through all the redactions to this document there's just a little too much detail on this to go through it all but this analyzing this this memo that was written by an f b i agent that said yes i found many connections between the saudi family and the nine eleven hijackers that is a particularly important document because it really purports to undermine that many connections memo that seems to confirm the reporting that was done by the bulldogs seem to confirm what senator graham was telling us and at the end of that memo there is a redaction that's called gaps slash possible issues slash recommendations and that reduction is made in reliance solely on exemption five and that is an exemption that applies for interagency and intra agency memos that's when the f b i is sending to another branch of the ig nother agency within the executive branch a memo that says here's what we're working on it's for that deliberative process privilege this is not what's happening here this is a congressionally created committee  that was appointed yes by the director of the f b i three people were appointed but that is advising congress it is not advising other parts of the executive branch the three cases that we've cited there are very clear the rockwell case d jones hennessy versus agency for international development this is from the d c circuit and the fourth circuit all three of those decisions say in that context there is no exemption five ground so that should be reversed with respect to documents obviously we don't know what is in those materials and obviously we're deeply concerned what is in those materials because of the overriding concern that what all these exemptions are being asserted by the f b i in order to conceal something that isn't but the way that the district court deal dealt with the exemption one and exemption three grounds she said specifically because of the possible strong implications of national security court should defer to an agency's decision that is not what the court is supposed to do the court is supposed to make a did no vote determination that's expressly set out in the statute of whether these documents have been properly classified or are properly required to be held about overclassification of documents that you did not make it am i mistaken about that i think that they bear on this issue of we're making the argument from the perspective of whether the district court acted properly and did a proper de novo review obviously senator graham is saying over classification is a serious problem and we think if the district court did a proper de novo review and looked really at how these documents were classified what the documents were about whether the national whether these do imperil national security as required by the national security act then a different result would have been reached because we agree with senator graham that the that the withholding of these imperils national security not doesn't protect g so if we i mean some of the the for you objections that you're raising are in the classified portions of the document right i mean i don't know how you know what's in the club class so we don't yes obviously we don't know what's in those documents there have been redacted we haven't seen them but but i understood that some of your general for you objections were directed towards the the classified portions of the documents and i might very well be wrong about no that's that's correct we are objecting that the district court did not conduct a proper review of the  you well but i want to get to the seven c stuff before we hear from the government and even though it's i know it's the cross appeal but i would just assume i don't want to keep going back and forth if this is the attorney who's going to address that is and the one other point i should raise is there's an issue about the deposition of jackie mcguire just one make sure that we have raised anything you've raised in your brief is raised in your briefing whether it's addressed in argument or not but  mr christians and it looks to me like that the district court made some errors when it comes comes to exemption seven c so it seemed like the primary argument has been that the bureau that's possible but is it your position of the government undervalues the privacy interests of one individual it must release the privacy individual information of all the individuals argument is that in this context the decision to redact some in some individuals names and not others is evidence that the privacy interests of the government do not apply well why's that for example your honor the government has chosen not to redact the name of jacqueline mcguire as one of the briefers of the commission the government simultaneously asserts that i don't know why that tells us anything about the privacy interest of those who it did redact the argument asserted by the government is that briefers of the meese commission would be subject to harassment and possibly retaliation if their identities were to become known the fact that mcguire's name has not been redacted indicates that those privacy concerns do not apply to all briefers of the meese commission do not apply to all individuals who provided the means commission with a though that they just undervalued her privacy interests and it doesn't mean though that they should be protecting their privacy interests of those who were who were redacted no i don't think so either i went on why was the government not under valuing this but there's no there's no there's no basis in the record for distinguishing mr maguire from any of the other individuals whose names were redacted so we don't have a basis upon which to conclude why the government redacted some individuals and not others perhaps they are as the court is saying u that if there were six koeppen tory information about individuals that they would want that to be no so it seemed like whether they were guilty or innocent the information still comes out either way that they didn't seem right to but i think i think we can take a step back and look at both the privacy interests that have been asserted by the government and also the public's interest because i think the public's interest in the information are broader than simply understanding whether a person had ties to criminal activity or not this is not a situation like reporters committee before the supreme court where the request was for rap sheets and merely to learn about criminal information of private individuals the reason that the bulldog made these requests was to understand how the meese commission reached the conclusions that it did and how the f b i chose to disseminate information to them these commission what information the f b i chose to share and what if when information the f b i chose this is not to share this is what we said in that war exemption seven c takes particular note of the strong interest of individuals whether they be suspects witnesses or investigators and not being associated unwarrantedly with alleged criminal activity because of the potential for harassment intrusion or it would seem to may that these individuals have would have strong privacy concerns that they not be associated with one of the most heinous criminal acts in our history i think the analysis turns on who the individual is and what the circumstances are the key term there is unwarranted plea if there is an individual who has been convicted of a crime and that conviction is public perhaps the dissemination of that information is not on warrant and there's also the situation concerning the family where the information has already been made already been made public and so the further disclosure of that information would not be an on warranted invasion of their privacy because you're a comic and the investigators have a strong interest earned a legitimate interest in not being identified by other terrorists the investigators at the f b i the hearty declaration says that he assumes the possibility that there would be retaliation there is no evidence in the record that these individuals would be subject to retaliation particularly here when it's not just line agents but there are also higher level f b i officials who are briefing the media commission there's no suggestion that  providing information to a committee that they put themselves personally did not collect would be subject to retaliation by a terrorist that's merely is to me what the acts about though is is the public being able to understand how the government is conducting its business wh unclear to me how learning the specific names of investigators witnesses and suspects is likely to advance the public interest and learning what our government's up to but with respect to the briefers it's important to understand what it was that the meese commission was basing its conclusions on was it being spoon fed the f b i has preferred version of the name to do that well you can find out who it was that the meese commission was interviewing where they interviewing the individual who prepared of the many connections memorandum that said that the g s had many connections to the nine eleven hijackers were they being briefed by more senior officials who had gathered the information second or third hand in did not themselves have personal knowledge of the events it goes to the credibility of the information that was provided to the commission but also the credence that should be given to the music commission's findings by people who read the report if the individuals who gather the information are not the ones who are providing the information to the officials on the news commission then perhaps it should be entitled to less weight that is ultimately what distinguishes this from the the other seventy cases cited by the thank your honor may i please the court i'm thomas byron from the department of justice i'm happy to address any questions the court might have about the plaintiff's appeal in this case but i guess my overarching view that i think it's important to keep in mind is that all of the issues that they've raised whether it comes down to the adequacy of the search or the applicability of particular exemptions to withheld or redacted information in particular documents consistent doctrine around the country that applies the the well settled principles in those areas in we think that one of the things it's not so settled is this public domain so so i don't think that that is an area of uncertainty or unsettled law judge pryor in fact what the plaintiffs are arguing about public domain is not at all what the courts have recognized as public domain so just to take an example the plaintiffs make  a great deal about their assertion that because the media has speculated about than the identity of a family who lived in sarasota that that family's name is in the public domain but that's not what the public domain case law says the public domain case law is about the government's official acknowledgment of the same information and only when the same information has previously been acknowledged by the government in a release  of official information is it in the public domain in a meaningful in the relevant way under for you mean that the government has to officially formally admit something well judge to give you let me give you an example that's not this case ok or a government document gets leaked to somebody in the media and that document or a portion of that document gets published ok and the document says x y and z is that in the public domain the government doesn't admit to we're deny the existence or truthfulness or accuracy of that document just no comment right in your right to point out that that has happened in the past and that it has created difficulties because that is not an official acknowledgment i know so i'm asking you whether that's in the public domain or not not for purposes of  in terms of a waiver of the government's protections for exemptions if not if non government people who learn of government information tell the press x y and z is true is that in the public domain again your honor there's no speculation now the media is reporting on what someone on the inside has said your hypothetical your honor is somebody inside the government  inside the circle of knowledge but not a member of the government not a member of the government say for example someone who was working in some sort of consultancy role with the government on a matter and that person decides that for better or for worse for good or for bad he or she is going to disclose some information to the media and he says you know on this date a b and c happened and the media reports say this person they give the name told us that on these days a b and c happened is that in the public domain in your honor not in the fully a sense no and there has to be a formal government big knowledge meant yes your honor has to be an official acknowledgment for purposes of waiving the exemptions to what is a formal acknowledgement mean so the government may have released the same information in a different document or even in the same document in a prior for your request to happen it government's recognition that this information is now in the public domain from the government that it is attributed to the government and that's the meaningful difference and your point your argument as i understand it then is that the public domain makes exception is a legitimate one but it only has application where the government has basically waived any objection by disclosing it  think that is exactly right judge perry think that's a good summary of it's not the exception and an exception that our court has recognized one way or another right right and that's what i pointed out earlier that this court hasn't decided quite as many cases as some other circuits and i think it's important to look to the way those courts have decided these questions uniformly and the rationales for doing so and again the rationale behind this official acknowledgement requirement to jordan goes back to the damage to the government and the different damage put it in terms of privacy interest because that's one of the very important was this comes up the damage to the individual is different when the government says you have been for example the subject of an investigation or a witness in an inquiry or in a best law enforcement investigation that's very different than having the media speculate that that was the case even if the media is pretty sure that that was the case the harm to individuals privacy concerns is different is meaningfully more significant in that circumstance and so that's is just a demonstration of harm the other example this comes up in a lot is in exemption one in three with classified information the government is not required to disclose classified information merely because somebody has speculated about the substance of the content of it that's very clearly not the law under for you and i ask you a question on a matter that's not govern according to anybody's was that document was sought in a separate proceeding the government is represented that it's been produced in some way shape or form in that proceeding and i'm not going to let the bulldog try to seek it here read has nothing to do with any for your principle that's sort of like a claim splitting principle we're not to let you go to we're not going to let you proceed in two different fora at the same time right yesterday ok my question to you is this what assurance did the district court have and do we have that that document in fact produced in the other litigation since nobody has seen it well first of all of the judge in the other district court proceeding has seen it yes but he was not the judge in this case of course it would be a different story if the same judge was handling both cases and knew what had been produced in case one and then saw that the request was duplicative in case two so how do we figure that issue out so we know it from the record in this case because it's the subject of  hardy's declaration where he explains that there was this overlap in the two requests that the broward bulldog had made to the f b i and that because the other the first request was pending before the other district judge and that request had already been produced in camera the response of documents and more in fact even documents that went beyond what was responsive had been produced for in camera view in that case it would be duplicative and as you say how does that declaration get tested if lives or doesn't have documents well it's like every this actually is governed by and it is the principle that the declarations are subject to a presumption of good faith no no i don't i don't mean the declaration i'm sorry i didn't mean to cast dou on the person who was submitting the declaration but in a normal for your case this one for example the government files a declaration files of on index asserts one two three exemptions for a given document or for a given redaction right and the district court has the ability you know the correct procedures to review that document to see whether or not those exemptions were properly asserted that part of the process seems to be missing maybe through nobody's fault with regard to document number one so how do we know that that document number one was really produced in that case of the district court has never the district court here has never seen it let me just separate the two parts of your question if i may the first part is how does this court know and how did the district judge in this case know that the document one had been produced to the district judge in the first case and the answer to that i think is the hearty declaration that's how we know and it has in it the district court actually saw the document it wouldn't tell the district court whether it was produced in that case or not right i purpose to demonstrate the overlap existed the documents that were overlapping were submitted to the district judge from camera view in the other case which remains pending i think the second part of your question if i'm understanding it correctly is how does the district judge in four exemptions that may apply to the parts of that document that will ultimately be withheld were properly applied and i think the answer to that is is because the other district court proceeding will test that of this record here never reached that right right and there was no need to i think this you're right this is not governed by for a lot of this is principles of judicial efficiency claims splitting doctrinal concerns that go wel cases right and so the district court here certainly didn't abuse its discretion we think in deciding not to give the plaintiffs here two bites at the apple with respect to the same documents the district court of force you to do  ultimately a discretionary question of judicial efficiency and judicial management and so presumably there's a wide range of discretion available to a district court faced with these kinds of questions and and sure the court had a lot of options available to the questions whether to use that discussion here i think i think it didn't in explained its rationale clearly as well is quite as many questions about the adequacy of the search be happy to address it i just want to make one quick point about that which is that the case law  very recently two cases mostly in the d c circuit honed in the ninth circuit both of which we cited to make very clear that requesters are not entitled to a perfect search there and quite entitled to a reasonable search and that's what they actually got here well beyond a reasonable search the first search that was done was adequate reasonable and sufficient it was complete at that time we went way beyond that the plaintiff's theory now seems to be no good deed should go unpunished but one of the arguments that you made in the brief is that nothing that the bulldog asked for really needs to be provided because here you had a document by document search right that's one of the arguments you make not the only one that goes to search terms to jordan you're absolutely right they've said this afternoon that we should have provided search terms for that second search that was done which again goes above and beyond what was required there was no need for that because if you look at the  declaration docket entry seventy five dash two it explains that the second search was done in the sentinel system of a particular file that had been identified by the staffers to the review  there were no search terms used at all it was no need to do a search term because first there was a repository that was the adequate reasonable search there was no need to go beyond it that was confer by the way when we went to the sentinel system found that separate file that existed and it was duplicat e so there was part of it that was not duplicated well your honor i don't think that's quite right there were four documents eleven pages that it turned out had some alterations on them some markings i think it was and those were originally designated as non responsive they were nevertheless processed out of an abundance of caution and again going above and beyond and later determined again not to be responsive to plaintiff foyer quest so i think it's not really quite correct to say that there was anything new found in that courtroom so i'm just going to start asking about documents and i hope i don't disclose anything i'm not supposed to but i'm sure you'll tell me if i did with regard to document two did you give that document to the commission voluntarily or did they subpoena and did they direct you to produce it or just martin let me ask two things if i may first if i may step back and get my copies of yes in camera versions so that i not demonstrate the answer to the question that you've asked and that's because this is a case your honor this is not a case about for example the plaintiffs have raised arguments about whether certain records should have been kept in should have been found but but but apparently do with you can withhold information that discloses techniques and procedures for law enforcement there's there's one of those and i'm not i'm not go refers to methods that everybody walking around on the street particularly these days knows that the f b i engages in on that i think it passes the point of disclosing anything about law enforcement methods why am i wrong about that just might let me see if i can pull back a little bit and give some perspective on the techniques and procedures concern from the f b i as perspective i want to talk about this document i mean this is a hypothetical so for example if a document said this is not this case we're going to put a g p s tracker on somebody's car  only that judge martin i don't know that it would justify it but the context matters a great deal and i'm going to point again to the ninth circuit's recent decision in the mound and what might matter is if if if it disclosed what brand  know where where you place the tractor so it might your honor because that might disclose to other criminals how they could evade detection and i don't mean to suggest the circumvention of carmen applies to techniques and procedures because it doesn't but but the fundamental concern packed full of exactly the type of information i mean if the worry is we're going to educate people about how to commit crime or you know avoid been detected because they know we can detect them this way i mean it just doesn't seem like the position that you're taking and i'm not i'm not i'm just trying to understand a cause it seems like we ought to be applying consistent rules and i mean i'm not attributing any motive to anybody but i just don't understand how for example that indictment can be so chock full of details about what programs they use to infiltrate  the the server you know and then in this case i mean from my standpoint ever my secret is about as general as my g p s example i don't think it is george martin and first i think the hardy declaration explains why it is in the terms in public as much as possible and then in camera in greater detail but let me just i don't view the particular indictment you're mentioning but i note is typical of indictments generally that they do reveal a great deal about the investigation that led to the charges in a particular case that's different i'm going to turn back to judge for an example earlier about official acknowledgement because when a prosecutor brings a criminal charge it's incumbent to support that charge and that's the nature of the united what we're talking about here though is internal government documents and there has been no judgment that it's essential to disclose this information to bring a criminal charge and so that the balance of considerations is quite different in the two  circumstances and so what has happened here is when when we're talking about something like the freedom of information night where a member of the public wants to obtain access to government documents and congress has certain exemption apply we have to figure out whether those exemptions apply as opposed to that member of the public's right to know what the government's doing that's a very different interest from a criminal proceeding where the government's going to deprive someone of their liberty and has to prove beyond a reasonable doubt that they've committed some offense against the united states so that's exactly right just burn it it takes me back to the balance that congress struck in the nine exemptions so what mr jones is that if i look at this like i have this whole obviously list of questions i want to ask you about because i wasn't i didn't really see how your redaction actually met the requirements of the exemption you're on a whole list of them he's saying if i stop there i don't inquire of you any further if you haven't met the standard to my to do you agree with them about that or do you disagree i mean what do you think about closing have about the particular documents in your in camera view just like the district judges in camera view should be think the district court judge did correctly with respect to the redactions that it up held was find adequate support in the record and confirm it in camera review of the records and it's important to recognize that neither of those things was sufficient on its own they were they were done together the court looked at both aspects together and we think that happy by the way if the court has questions about it's in camera view to address the next wants but we have not requested that today and we don't think it's necessary because we do think the record is of sufficient here i'm happy to discuss any of the other specific i'd like them ssion it but let's talk you think your honor so to   and in the supreme court the cases that court has reached has decided reporters committee and faddish have emphasized over and over the idea the the revelation of particular names is unlikely to shed light on what the government is up to in the meaningful cognizable for public interest and so i want to point out that the district court here made two errors in seven c analysis first denigrating or diminishing the individual privacy interests and second suggesting that the public interests were broader than for your recognizes so i think judge where you've already raised the individual privacy interests in think they're well established i'm happy to talk about them further if you'd like but i want to turn to the public what i want to know is so if the district court was wrong and it's a valuation of the seven c it seems to me the think t would be to remand for the district court to do it correctly and not for us to try to apply the seven c section do you agree with that i don't think it's necessary to do that judge prior and there's you don't think it's necessary to do what  remand i think it is within this court's competence because they've got to go through all the documents and do it the right way i don't think ourselves i don't think you need to go through the documents at all but i'll note that they're not that many actually the the the court can reverse and up hold the withholdings the reactions on the basis of the declarations and recognizing the error in the district's analysis considering that however if the court conclude you don't think we need to go through the documents at all did you just say yes your honor that's right so i'm turning i'm talking specifically about the seven c and seven d analysis and in that respect i want to emphasize that the district court's error was a legal er in its analysis it didn't have anything to do with the content of the documents an exemption seventy going to turn to seventy made that if the district court had a misunderstanding about what the the correct standard was then we need to send it back for the district court to apply the correct standard and go in the first instance through the documents prior might not right about that so i think the only reason it's not necessary to do that here we're not objecting obviously we think this judge with you know drinking and sarah could do it very quickly  easily it's very the courts and judges very familiar with the documents all i'm saying is that because this is done over review other courts of appeals have recognized that they can reach the question whether information was properly withheld and without need to read it and all i'm saying is that this court can do the same especially where the range of the number of pages here is very small if the court does want to look at the documents and can again we're really only talking about names addresses social security numbers things that are at the core of the seventy privacy interest and i ask you a question with regard to your cross appeal is room did you in any of the declarations explain a reason for treating the identity of some of the agents differently than others yes  and was that reason to the extent that it was part of the publicly filed declaration yes absolutely so for example the plaintiffs have asked about special edge mcguire and why why her name was disclosed when others were not her name is disclosed in the review commission's report which we've submitted as part of our appendix in a footnote on i think it's paid for page five that report the bottom line is that the official acknowledgement that you and i were talking about earlier with respect to what's in the public domain that the review commission itself officially acknowledged there are other public acknowledgement using want to turn him over and you think you're entitled to not turn him over but if the public acknowledgement can't be the basis because it's not if it's if it's public acknowledgement then whether it's redacted or not redacted there may or may not be an acknowledgment i'm not sure if the means commission report includes agent mcguire's name and you voluntarily disclose yes there may be other agents names in the commission report or other files of the means commission that you've chosen not to disclose because of an exemption but that would constitute a public disclosure and problem excuse me a public acknowledgement as well so it is in to give another what's the difference between agent maguire and other agents and i'm trying to figure that out too it's a different spin on the question that judge pryor asked earlier mr julian right so the difference is it comes in a couple respects so first of all lower level f b i agents are generally not they generally have their identities protected to enable them to conduct investigative responsibilities with without harassment being associated with particular investigations so there's a difference between lower level and upper level upper level f b i management are routinely disclosed so so that's an f b i it's policy that's established it's supported by case law as well work and i find that in the declaration which declaration do you think if you remember i know the result of any of them off my head there were six for you think it's somewhere in one of the hardy declarations there's an explanation of why her name is an appropriate thing to disclose but others are not so it doesn't identify her as compared to other individuals it doesn't identify her by name but it does recognize that the identities of some individuals are being disclosed because they were previously disclosed by the commission itself and that's one example the other example though is the upper level f b i management that's a consistent f b i policy which i think is that in the declarations to leave it is your honor i would need to confirm that and i'd be happy to so they were addressing so they may be in the actually believe where they are your honour's in the sixth hearty declaration which was the most recent one submitted in conjunction with the government's motion for reconsideration with respect to the seven  have been in the third is that i don't recall your honor i would need to check and i'd be happy to let the court know that the bottom line though is that the privacy interests here are well established where the government has officially acknowledged we don't withhold that information and we have a policy of disclosing the names of upper level management officials like to turn briefly to exemption seven d the confidential law enforcement source concern which is in document twenty seven  subject of our sealed declaration i'm sorry or sealed appendix if i may i see him over time but but you may go very quickly the disk for your adversary a lot of time so thank you the district court concluded that it couldn't discern what information was being withheld under exemption seventy for the confident thought confidential source at issue in this document and we think that the in camera submission that we provided which we've provided to this again identifies it block by block and there are numbered blocks associated with each particular redaction of a few words and they are tied to particular exemptions with explanations of why those exemptions apply including exemption seventy we think that was sufficient for the court also sufficient for this court judge prerogative your question about remain on the court has no further questions actually going in again it's because i have you here and i don't i just don't engage in this process very often so i just want to ask you how the government handles this type of thing so somebody was telling me that i didn't read it myself that there was an article in the herald yesterday that was there and that's what it said would it be the practice of the government if there had been some recently and sealed documents to go back through the claims that have been made in this case and make sure  that they're as of today consistent with what's been made available by the government so just martin ordinarily no and the reason for that is that foil a geisha and for requests have to come to an end at some point they can't go on forever we would however know all for the classified so for the classified the same answer just martin but let me explain how we think it would work in subsequent requests for for the same document we would not rely merely on the fact that we withheld under in response to a previous request so so if another request comes in asking for the same documents they would need to be a new review at that time that would take account of any disclosures by the government or declassification by the government a particular information and so a subsequent for a request or may get more information than an earlier one on the basis of declassified documents in the interim does that answer your question your honor and thank you if the court minutes thank you your honor i think that they will be more than sufficient what i want to emphasize again is the context in which this case arises we're this is a process that mr christianson started six years ago trying to understand the simple question of why the f b i was contradicting its own article initially and then why when he obtained records it seemed to reflect that the f b i was not being truthful with the public that was that was a position that senator graham urged on us his deep deep concern these held for a long time has been that there is a saudi network throughout the united states that's providing support t hijackers and that the f b i did not disclose that to congress for whatever reason we don't know what the reasons are we don't know whether there's some innocent explanation as to christianson is a lone really a reporter operating from his  website the florida bulldog and he has pursued it all this time the thing that there is severe overclassification and they've battled does on things like the search and there's a deep concern that the battle of the search it may be a meaningless battle in some senses this whole idea that they didn't respond initially to his requests they then didn't produce documents after we filed the lawsuit they then produce the documents in an extremely confusing fashion all of that is a huge deterrent a huge deterrent to people from using the freedom of information act in the first instance and that is something i think the court needs to keep in mind what we're asking for is reversal of s judgment with respect to the adequacy of the search with respect to redactions of those five documents and with respect to the denial of the deposition of jackie maguire in most freedom of information act cases everything is decided on the affidavit everything's decided on the declarations you assume that they're in good faith but there is there is so much here that suggests that this is not a good faith assertion that we feel that there should be reversal on those three ground please the court i'll just briefly address the application of exemption seventy two document twenty seven this is a document where the government has contended that the information must be withheld because the individual named in the document is a confidential witness our position is that the infant in visuals name has already been released to the public there was a joint interview of this witness by florida law enforcement and also by the f the bulldog requested documents from both florida law enforcement and the f b i florida law enforcement released its version of the report on the interview and identified this individual and much of the information that the f now saying cannot be released so speaking to the public domain issue that was raised earlier by judge jordan clearly there is an acknowledgment that's been made here by law enforcement not by the f b i but by the other participant in this interview that the name of the individual was was somber mood that's known in public domain there is no reason for continuing to maintain his his name as being worthy of redaction when it's al known to the public it serves no interest in allowing the government to redact that information unless the court has any further questions on seven c or seven d you know the balance of my time and urge the court to affirm with respect to