cannot be sustained on appeal and that has left my client to face trial in january and defend itself in claims for hundreds of millions of dollars in damages as a result of the west fire and explosion in two thousand and thirteen without the evidence about the cause and origin of that fire and explosion that evidence is exclusively in the  i'd like to focus the argument on the two errors below that are the most serious and that require reversal of the grant of summary judgment here first the district court erred by allowing the a they contained sensitive material that was the very material they were trying to prevent disclosure of and there's plenty of case law on that point that's not what happened here though and even though where that is appropriate  case law makes clear this court case law and in re isenberg and other cases that it is also the obligation of the government to create as public a record as possible because you have you most moved to supplement the record with what was confusion to joe and so there the record that was created in the court below consisted of materials that were filed under seal so they were made available to us materials that were filed entirely ex parte and under seal so we had no idea what they work we did not know what any of those materials were until after we fall or opening brief in this case in which we argued that the primary error that is to court committed was taking in this entire record investigative report to the district court with their believes what judge own you're referring to apparently that report was walked to the court shown to the judge we don't know by whom or with what conversation we understand it might record but our argument is you can't cure the failed to the decision on the merits below based on an ex parte record by giving me the ex parte record on appeal because this was a summary judgment ruling we you've got to show some harmful air for reversal yes you are so what evidence would you have presented to the district court that would create a fact question in our reply brief we were you're out of work we are constrained in large degree by the time line here so we have an expedited appeal we had ten days after they filed their response to file our response the government offered to extend the briefing schedule but that would extend us to a point at which any remedy this court could give us would be meaningless we have a trial in january that it did just the state court has stated on unequivocally that he does not care what happens with the a t f or with this case he will not continue that case our only o explosion it apparently is continuing its investigation into the identity of the perpetrator but i want an indictment i'm sorry no one's been indicted and there are no indictments that i'm aware of course it's possible there could be an under seal indictment but i am not aware of one nor is there anything in the record regarding that judge go on to your point about supplementing the record we would require a reversal and we have asked for that we were car reversal so that would you and you back to the district court you so you don't have time for that well that it i think it is probably the only remedy that we can get now that we have seen the record now that we know what is in it and we have outlined in our reply brief the type of evidence that we would have we would certainly have filed declaration saying number one we were not a party to any lawsuit involving the west incident until june of two thousand and thirteen and so the access they were talking about was not a access that we had because we had no reason to be there number two we would have submitted that forbes there is unique evidence that only one party can have one of the primary things that's done in the course of the fire and explosion investigation is the gathering of physical evidence debris from the discussion of what do they how even if they had to show what they had in ex parte they should still have been able to say for example we have debris we know that we collected and we have a map of where it was located that's extremely valuable information to an investigator who's trying to determine cause and origin our own experts could have evaluated that we were not asking for the a t f evaluative materials about what it thought that map means we were asking only for the physical evidence and where it was found they are asserted in the ex parte record and declarations that this would reveal secret law enforcement techniques and thereby impair their usefulness but there's no explanation even in the ex parte record now revealed of how how would for example the next arsonist change his behavior based on where a piece of this west fertilizer building was located after this explosion if the linkage simply isn't there it wasn't made even in the expert to record we don't know what's in that report correct we have no idea and that is because you have moved to make it part of the record you know your no your honor we have not moved to make that part of the record the a t f deliberately kept it out of the record we don't know if the court considered it and so on remand we would expect that we would do what should have happened in the first instance what should have happened was the a t f should have been required to make as public a record as possible and it could have supplemented that and explosion causing them to hire lawyers which meant we could not take their depositions until the legal process proceeded to the point where their lawyers would allow us to take a formal deposition that employees their employees yes many of them many more are played us so they also are represented by counsel these are not people that we could go out and do our own witness investigation of in addition this is not like the cases in which witness interviews are conducted and in the type of investigation which the government is trying to determine if something happened in other words going to a company and saying you're the accountant tell me about how this would tell me about how that everyone knows who was interviewed everyone knows that all the employees of west fertilizer were interviewed by law enforcement because this is an investigation where obviously something has happened this catastrophic event and everyone will be interviewed about where they were what they did who they saw at such without any suggestion that that is going to imply the direction that a t f is headed now even to the extent that that might be reflective that their strategy or  that my client set a fire in the west in twenty thirty my client is a chicago based ammonium nitrate manufacture i don't i don't imagine and i think that the parties agree there's no suggestion now what you want to prove that we did nothing in th somebody else did this it could not possibly actually get our are we don't we don't need the who which is the only part they're still investigating and haven't made a public announcement of what we need is how will you know him leads to the  only one set there's no duplicate testing those materials is relevant to determine determining whether a fire was deliberately set and whether the scene might have been manipulated which is relevant because we defending product liability claims so if there was manipulation of our product or if items were moved within the scene it breaks the causal chain that is critical to us it does not matter who did that to our determination of the cause and origin it we don't think there's any suggestion that we did it and we certainly would take the position all had face to face discussions with the government saying give us this and what's their interview you have i won't give you what you just asked for we in gauged and extensive negotiations with the government in an effort to get anything that the government could give us including after the government made  public announcement that this was its conclusion and described its methodology is so that revealing its methodology is no longer an issue we we went back to them and said what can you tell us how can you help us we we are already facing plaintiffs who are saying that the conclusion of the a t f that this was fire and this fire was incendiary should not come into the trial because it is insufficiently supported because there's no way to challenge or test what's the basis for it didn't follow the n f p a which also inhibited from presenting their case because evidence has been withheld from them plaintiffs have been allowed to present experts who admit that they never tested any of the original evidence and who are opining that our product was the cause of the fire and explosion and so we are we are faced with an inability to counter that or effectively challenge it because they have rejected arson so we've got we've tested it we've followed the n f p a and the conclusion is arson but we don't have access to that this is the case i apologize to my time's up this is the case in which the need of the litigant outweighs any law enforcement privilege that might be asserted here but judge owen to your point we think we were still is required to create the actual record of what there is whether it in fact is covered by the law enforcement privilege and good morning and make it please the court thomas calling for the bureau of alcohol tobacco firearms explosives but the a t f is currently engaged in one of the largest most complex investigations it has ever undertaken into a fire an explosion that killed fifteen people injured more than one hundred more and caused widespread property destruction that investigation is active and ongoing there is a compelling public interest in preserving law enforcement agencies ability to protect the integrity of their ongoing investigations by preventing the disclosures of information that would harm those investigations the question presented on this appeal is whether it was arbitrary  to declining to interrupt its investigation and whether to go through all of the evidence that had collected and turn over any that might be useful to signified in its state court civil litigation just spite the agency's judgment that doing so would interfere with  concluded that this was a criminal of that and that was the conclusion that they released publicly it's an incendiary event which means that someone intentionally supped the fire they are still investigating and trying to identify who committed  and while there is a report into the cause and origin of the fire these are not separate investigations with separate evidence so when the a t f it when they will hopefully identify the person or persons responsible for this and prosecutors bring to secure an indictment and try to prosecute the evidence of what caused the fire will be evidence in that criminal case haven't you may never identify this person so how do you keep the a t f investigators identified several harms that could be expected to occur from turning over evidence one is tipping off the responsible parties to has that then those parties could use two of the responsibility another harm is hindering others from coming forward with information if they know that every you know tip that's given is turned over to private parties to use they may be less likely to do that it also reveals the scope and nature of a t s investigation and essentially discloses everything the government has done so far the supreme court recognize that this was for most the crater so when c f i has come forward and said here are specific items and we need a t f has looked at those individual lee and made a determination as to whether release of those items would interfere with its investigation will they want whatever evidence you have to show that this was not something caused purely by their product it wasn't a spontaneous combustion wasn't some defect in their product it was it was deliberately shot so that ways one problem that agencies have in this is of one of the agents described in the declaration is that people come forward with false confessions and they say i did this here's how i did this i set up whatever device or you know i use these means if the information about them is means hasn't been made public that the only person who knows the precise means that well used or in this case the precise for example location where the fire such the only people who know that are the parties responsible for the act and a t f so a t f can use that kind of control over information in order to know who is making a false confession and who is making a true confession so that's just one example that i think responds to what you're on our stock you see the dilemma here because if a sick parent leave you all know that see if industries is not responsible for this far yet they may be on the hook for billions of dollars  litigation and one of the reasons for doing that is so that civil discovery rules are used to get around the more select criminal discovery rules and allow the government control over when information will be disclosed case i don't know if you can answer this but i don't know if there is a suspect or a target or her someone up there but if there is not i mean because this could just go on for ever we'll never solve this crime so we'll never get over this information and we can be here five years from now ten years from now because we're still investigating we still think there is somebody out there and until we find that person if we ever find that person they can never have this information  not likely that we're going to secure prosecution so we could turn over more evidence and at that time it would make a decision you know in light of the circumstances that we presented that but here we're looking at  in advance of the scheduled hearing and that time the district court suspended proceedings and asked for periodic updates until the report was done and i believe the thinking was that if this turned out if the a determined that this was not a criminal act and it was you know an accident or something else then it would be likely to reconsider its position like a true issue reports saying this was not a this is not an accident this was a criminal act after david or for testimony to that effect and the agency could about my child had discussions trying to narrow the differences between you and why we released information in response to a targeted got my question to you are you willing to give them anything else are you saying we're not going to give them anything else period we've given is max we're going to give you willing to give them more right now there may be specific items said it was far worse it's a criminal act give them the information that supports bad just too that we just related to their product you don't have to say we can't find the guy we can't find whatever i don't know what you've got they've asked for a lot of doing whatever they can get for me i'm asking you as a reaction of the government do you have information that you willing to turn over to them that you haven't already turned over to them i don't know if there are  there be things to turn over i don't know if that is something that a t f would have to but you're not know just because i'm not familiar with all of the evidence that's been collected i have not been involved in this investigation that's a determination for the agents to make if given their familiarity with the evidence and with the harms that might be expected to follow from release if i could just return to the posture which is an e p a action under which the standard is has the agency acted in a reasonable manner now a t f regulations or rather d o j regulation which c f i has not challenge to say it say that a disclosure is not to be made of law enforcement records when disclosure would interfere with proceedings a t s made a judgment which it's entitled to make and in every single case agency is going to come forward and say oh it's going to hurt our mastication can't give you an ink so ari i mean at some point it's like with that speculation the fact that oh if if we give you information maybe informants are going to stop coming forward with that speculation we don't know that's the case it's been three years is there still informants out there well they will it have a chilling effect on them i mean at some point it's like your reason for it's law enforcement investigation we're not going to give it to you at some point that you've got to go beyond that and say well some of it maybe but not all of  us in a difficult situation of having to just blindly accept law enforcement agencies reason that they don't back our investigation well your honor this is a matter that courts  addressed routinely for your requests that for your contains an exemption for law enforcement records were disclosure would interfere with enforcement proceedings agencies regularly submit declarations that are very similar to the types of declarations submitted here and you can look at examples in the cases i cited they often quote the declaration and courts make a determination and him for it as in to eat there is no balancing that goes on the court looks at whether the agency has made a reasonable and plausible explanation and if it has that and that the information is is withheld now under you when we have at least a party in state court litigation that is not against the involved in litigation directly against the government as a c f i is here that party has no right to the information in the government's possession the two regulations permit a discretionary decision as to whether to release the information and they specifically provide that information will not be released in this circumstance c f i has not attacked that regulation and so all the agency did is apply the regulation straightforwardly and what this court should do request made on the officer of the comptroller of the currency o c c did an analysis under its regulations and this court's that's reasonable we won't disturb it that should be the analysis here look at the regulations did it ask whether a t f considered what it was required to consider under the regulations which it did and ask whether its conclusion was reasonable and explained you know so that it didn't make an arbitrary or capricious priority to the public safety and interests in securing it down a fine who is responsible for a crime and facilitating a prosecution that decision is not arbitra you got all the information and just the hell with them i simply well e t f is eight e t f as a law enforcement agency charged with conducting this type of investigation identifying who is responsible and gathering evidence swim agency are you saying if their request was more specific maybe you could work with them and give them something absolutely and that's exactly what we did in this case when they came forward and they said you know here are specific items we want we want disclosing witness statements one to provide significant insight into the direction of a ts investigation revealing what questions were asked of whom there are certain circumstances in which we don't want to disclose who the witnesses are  there's a kind of general examples they could be confidential informants or jailhouse informants disclosing statements also permits the construction of consistent obstructive fabrications by  the parties responsible they can look at what people side and they can change you know their own view to fit in with that also just closing statements provides for the disclosure of inconsistent statements that allows the people who made inconsistent statements to correct them when they see a way of you know made some mistakes here it also it can make innocent mistakes look bad and people might look at a statement where someone said two different things and assume that person is lying and th you know harass that person or you're out in a position to say when there might be an indictment or is there a low wide open investigation that we just don't know or is it coming to a close or can you  me that i do not know of a timeline that at this point in the show we can say case is going to come to an end in six months or nine months we don't know no i don't believe we know that but i do know that i'd like to address a couple of the questions that the court asked mr pole mr pullum argues in the a t f has argued all along the solution is for the state court to stay this matter in dock at the civil matter in deference to the criminal investigation we would love for that to happen and we have sought that relief repeatedly the a t f has not only not joined in those efforts it has actively opposed our efforts to get the state court to steady the civil litigation we filed in this is in the record two seventy three thirty eight after the district court pulled down the in camera hearing that it had scheduled on the motion for summary judgment based on the evidence that the government submitted publicly  the government submitted a bunch of ex parte material we didn't know what it was what it contained the court pulled down the hearing stay became a stay we then proceeded to negotiate for weeks with the a t f what can you let us do in the state court to support a stay because as this court likely knows it's almost impossible to stay a civil litigation in deference to a criminal investigation in less you have those the investigative agencies support they would not let us even say that the a step that the a t f investigation would likely be concluded at a particular time which was the court's particular interest it was concerned this would be an indefinite stay and we asked me alternately filed a motion with both courts the state the federal and the state court asking that the judges speak to each other and that the that the federal judge accept it in a ex parte communication with the state judge which is permitted simply confirm government would give us about what there was and the courts put its finger on it without knowing exactly what they have it's hard for us to narrow our request we've at every turn expressed our willingness to do that to try to negotiate a narrower scope what did they give us they gave us a no recording that they took from a witness and deleted it from his computer when they when they took it so that we had a transcription of it someone had made and in fact we were being accused one of ou how about just telling us where these were found just the map of these and we've got back too much trouble that's going to be too much work for us the problem the fundamental problem that and then they gave us a crater mapping report  and some data but it required a data key that we spent months negotiating with them and saying we cannot use this kind of man up it does not tell us how deep the crater is without this one piece of data and the a t f refused to give it to us so yes they've given us a few things and by the way that exchange those exchanges with us were submitted described ex part is utterly innocuous descriptions of i am an agent i investigated the fifteen people died we've done some testing and very generic descriptions of the types of harms that mr palmer just described tied to any specific evidence in this case that is the standard that is required to assert law enforcement purpose mr palmer argues the two regulations between regulations do not themselves create any privilege and that is clear in the case law we've cited several cases on that point the puerto rico case in re packaged ice i think is that in that case the two regs don't create privileges and if you look at sixteen point twenty six b five d the categories of information the department says it won't generally produce they were reflect existing legal privileges information that cannot be produced by law information that's barred from being produced by regulation and five the one the only basis they've asserted as the basis for withholding this information is a rift is a codification essentially the law enforcement privilege they are going in their own motion for summary judgment that their action was not because it complied with the law enforcement privilege standard that standard in this court that this circuit is set in kaufman and it is said in department of homeland security and it includes a balancing test that can overcome privilege we have overcome it this is the unicorn your honor this is the case this is the one case where the litigants need clearly outweighs the government's interest at least in not disclosing some of this  you submit a letter to the a t f requesting specific limited evidence and admissions as to their position on whether the farmers criminally suck and whether it was not caused by your product f has one week from friday to reply with a production or legally specific authorities for refusing want you to have your agents listen to this argument and i need you need to tell them that the issue issue a statement from the agents as to why this matter should not be stayed in state court pending the conclusion of your investigation if you cannot produce these specific items requested by  matter in the in the state court proceeding and the the civil action