so the c d c has suggested that the site specific exception is moot so there were two exceptions of the two thousand and two act that were brought well and the bore graphically what it in terms of what's now rejected is it only the university of hawaii the location at the university of hawaii and the names of people and nothing else that's that and they know you know the answers to all of these things so from both sides it seems like a rather airy dispute i think to some extent and part of it has to do with  the the fact that this is a case of first impression so in this case first started of course put to put it back into context this case first started they were producing nothing under an interpretation of the war that was completely inaccurate ok and that's that's true but they're not now so do we get to decide what they want they get to get whether what they did to begin with was wrong and why would only well as it concerns the the health and safety exception i think the court  that issue is clearly not mood that has to do with the reduction of the university of wise identity and the university of why staff and the those names are still  know what the identity is because the c d c has conceded that these records are about the university of hawaii although it doesn't produce that information on its own the documents itself but even then we don't get it the issue of their original you know non non disclosure because they did says or some of them said at the beginning well our policy not to produce anything because anything is going to cause i also a safety problem but there they have left that up sign and they didn't give it you know and other words all the material about what the regulations were and how they were violated and so on you have it all not to speak for them but i believe their position is that they are still allowed to withhold the identity of the university of why under the height and in order to understand why that is wrong this court would need to interpret the scope of that exception  that way they did not disclose anything in response to the original request but no response to somebody else's request yes in response to someone else's request they disclosed information that ey that's correct under for you they cannot withhold information unless it's expressively exempted and yet they're continuing to withhold this information claiming that it's a threat to health and safety under the two thousand and two act exception  rights and your argument is it's not a threat to health and safety our argument is that when you look at what congress is intent was with respect to that exception they did not properly interpret the scope of that exception did not consider the factors that the congress wanted to be considered in the scope of that exception and therefore were withholding information that was inconsistent with the then submit enough information and they were withholding information that's  be helpful to have your legal argument but is your legal argument that that's primarily because once the information is out there it's not going to endanger public health and safety job knowledge when it's already people are you know i think that's a secondary argument i think the primary argument is that the interpretation itself is wrong what it becomes and that's because when you look at what congress did with respect to the health and safety exception it didn't impose an absolute prohibition on disclosing the identity of registered persons you look at the legislative history and in the legislative history the congress explained quote we are striving to ensure a fair balance between public accountability and security they wanted a case by case analysis and they explain that one of the factors to consider in the course of that analysis is whether or not the university in this case is publicly known to be working with select agents but i was at what i saw the first time that was a factor though in the end what other factors are that's the only factor that congress specifically identified as that's why i said that seemed to be the argument but but in this case what happened was that the c d c ignored that factor in effect refused to consider it in the course of doing their determination as to whether or not there was a health and safety risk and the the district court below allowed that to happen didn't independently analyze what the scope of the exception was and proceeded by just accepting what the c d c said with respect to there's a risk to health and safety from disclosing their special reports because by their very nature and purpose they would be a threat to health and safety from the disclosure the dischord also erred by allowing for again as part of this overall analysis allowing for a deference that's reserved for national security agencies that that special deference does not come just simply because the agency is claiming national security it comes from express intent of congress and that that's reserved for exemption one cases the national security act cases and other laws where congress has imposed a broad exception on matters and set the criteria on matters that are outside the normal expertise of the courts in contrast here the health and safety exception is not the near blanket exemption that congress imposed for the national security agencies and it's also not something that's outside of the normal expertise of this courts unlike classified matters or intelligence gathering gathering activity and i would note that even if national security deference which the district court used in this case applied c s conduct on appeal has undermined the district court's decision or finding below that the agency did not engage in bad faith the district court knew about one red flag that had come up in the briefing below and that had to do with  repeatedly declaring that if it disclosed any redacted information that information would be meaningless but when they actually did disclose redacted information the district court held that the information it clearly wasn't meaningless and the district court held that it was the c d c inspectors they're using the health and safety exception for the u h staff with respect to the c d c inspectors they were performing their official statutory duties and their names should not have been redacted the district court erred when it required that there be a cognizable need for this first specifically for the inspectors names this court however has emphasized that there's no need for a showing of public interest in the specific information unless the agency first passes passes the first step in the exemption six analysis in that first step the nature of a non specular privacy interest in the likelihood of harm are balanced against the generalized public interest in problem is chris that we still have a moving along with these privacy cases you know even though the statute says personnel files and medical files and similar files we seem to be applying it to public employees and public duties in the forest case and all larry was private people for the most part as i recall but how do you distinguish those cases i guess  privacy interest in cities that the c d c inspector's extremely narrow because their names and contact information including their position titles such as inspector or microbiologist all that's  public information so what the c d c is arguing instead is that these inspectors are going to be harassed by persons with nefarious intent not because they deal with bio toxins on an everyday basis since that information is public knowledge but because they worked on a specific exception there was no evidence that the c d c inspectors generally have ever been harassed nor is there any evidence to explain why they would be harassed for this specific inspection at u h the other harassment cases that this court has affirmed have dealt with either private citizens or with specific evidence that would support anticipated harassment or both the close is case that also is somewhat  information information please yet so in force employees there was also the issue with respect to disciplined employees and the disclosure of their information that would that was leading to their discipline it wasn't case the closest case for the c d c is lore and in that case there were there were redacted from the records the identity of f b i agents who were merely doing their job but in their case their job w highly controversial investigation of the t w a eight hundred crash and the plaintiffs in that case conceded that if you were given the f b i agents names that he was going to contact them and given the level of attention to the case both internationally nationally it was likely that there would be harassment we have no evidence of controversy or harassment here i would like to reserve a couple minutes for rebuttal all right think and i'm here for the centers for disease control and prevention as i would really like to address the point that this appeal is at this point silly particularly with respect to the disclosure of the name of the registered ent ourselves have made and the agency has made mistakes and it's not going to say that it hasn't what what the court is being us to order the agency to disclose is a document that lists says a c d c document lists the name and address of the registered and t and then describes all the regulatory violations and what the agent was already described because it's just closed that's correct but it's not the reason that your  and also several your resolve the dispute that's correct can i kind just address the point of the agency's point that even if people who are familiar with the case who are familiar with for you who can put all the pieces together what the registered entity is there is no document out there in the world that has all of this information together on it the agent didn't see it is very clear it's dealing with how we keep safe and secure  entities like anthrax smallpox a bowl of rice and things that are incredibly dangerous and the reason that the agency has to be extremely careful in what it discloses is that you know obviously the dangers a very great if this stuff ever gets out and you're on a it's also want to to respond that at some point it was mentioned that the agencies position is just not to disclose anything that's actually not true and what about racial position only only because this was the first request that the agency had ever received that specifically asked for two documents tied to a specific asked for documents about a specific entity ordinarily requests just before had asked for not the names of the registered entity is tied to the security even biohazard violations but people would ask for as in the case where we've released and twenty fifteen they would say we just want to know what the violations are and that's very similar but not tied to any specific place obviously the hazards involved in that a significantly less than releasing things where you say here is the registered entity here or the problems in the security and basically would be disclosing a list of vulnerabilit want to trivialize the agency's decision that it is a bad idea to have or you are may reveal that elsewhere you know what we have not done is what congress has perhaps just by statute from doing which is issuing the document that puts all in one place somebody sorry for a person who's never heard of for and never heard of this procedure but still with the agency if you if your honour's order release determine certain public disclosure of the information would endanger public health or safety so if the player only was not contemplating a generic determination right but you're making a generic determination you're saying in any instance as i understand it i always say don't know why you're not saying this there is a inspection report a portion of which has the name of the an address of the place and a person that so just just to just to back up to the agency is habit of it will disclose if the information is not tied to a specific register understand but this is specifically talking about when it is try corporation the agency made a determination that even though the agency had had said that it would produce these two records and that they were sponsored records which in of the agency probably would not do again well the statute actually might require it because it says any portion of an evaluation it certainly doesn't contemplate withholding the entire nation no but it bans the agency from disclosing the identity or location of the registered entity if it's determined that the scores are within danger of public health or safety and the agency made that determination in the knowledge that it had produced responsive darl at but it made it and not as you're explaining your position it is an across the board generic position who will always be the case even if the information is public which is what the legislative history said was was the context in which it went to danger they publicly you're on it that's it it's very difficult to understand what the what the concept of public information is as i say i really want to step back at this point and say to everyone in this courtroom maybe it does look silly because we've been bandying around the name of the registered entity what that agency says is even though we have through our own fault release test a class of people who understand for you  the litigation know that the documents were released in response to requests there is none the less value in not having the cage or someone i was with the public the whole give and that position think i am going to take the last legend because in this case the agency took the position it did because the inspection report found huge vulnerability is and dangerous and so was the angel points out the agency says this is page one fifty nine of your acceptance of record that this information could allow people to more easily achieved legal access to purified strains of deadly pathogens and or concentrat biological toxins that have the potential to pose a significant threat for use as a biological weapon and that seems completely off basically true you are that if you know if you have a document from the government that says the name here's the address and here that all the problems with bio security and safety that that would pose a threat to public health and safety don't enter into if you had a report that said this place is great everything's wonderful of that then you might or might agency wrestled mightily with this case because it had to deal with you know somebody asking for specific documents or spread a specific registered entity so right from the gate it's like do we disclose responsive documents do we not do that this consider how it prepares us reports i mean it's it's very difficult and the agency wants to be able to disclose information in the aggregate but it has really good reason to resist you know and as i say there's a federal statute which does seem to be on point not giving out information that's basically a road map to you know secret safe i don't think that's that's quite fair because congress specifically but the agent seen from disclosing the identity of the registered entity if it had made the finding that i'd left the agency to make that finding i think all of this court has to grapple with is whether that finding is valid in this case given the other things that the agency has done and i agree that's a completely legitimate question we ourselves have got  into a really very bad situation and we always really want this point as to not make things worse and not have to disclose that document that has everything on it all in one place that would be released to the thinking about the possibility is of building a dirty bomb and biohazards and issues of you know really serious moment that that is a risk that knowing the specific identity has a specific inspect s that target looked at specific facilities and know what the weaknesses are in those facilities adds another layer of danger that just having them on a phone and e mail list doesn't add so that's that's really our position on that and that there's really nothing to be gained on the other side you have to show that you know the request that has to show that there's a significant interest in the extra information and that the interest is likely to be advanced and there's no significant interest in the names and addresses of the specific people who specifically inspected this registered entity counsel do you agree with opposing counsel that the only matters in issue are the identity of the facility and the i think it helps to take in the context where congress was when it adopted the two thousand to act so opposing counsel references ebola anthrax raisen those  severe and serious dangers congress knew about those dangers it knew what inspection reports were when it adopted this act and it doctor these exceptions this was immediately after the nine eleven attacks  immediately after the anthrax mailings congress knew about the threat of bioterrorism and persons with nefarious intent which is the focus of the c d c s decorations but it's still an act of the law not an absolute prohibition as it originally had thought immediately after nine eleven but it enact a law that had a condition it that required the c d c to make a determination as the health and safety and it wanted that it wanted that because there was a public accountability component for these entities especially entities that are publicly operating with bio toxins people know that they operate with biotoxins there's an accountability component to know whether they are doing so safely and in the in the context of the c d c s regulations i think the difficulty and actually to go to judge roland's point at the end i would note that  the the issue of cite specific i am not conceding that it's moot i still think that that issue and as you can tell from the c d c s argument they're arguing that this information is all prohibited from being  the only issues that were remaining now word the identity of the facility in the inspector in response to judge a person's question about what information was still redacted in the inspection report that's the information that's still redacted but the site specific exception and the regulatory deficiencies that issue the interpretation of that exception and whether or not the c d c should be allowed to withhold that information in the future is still and what the interpretation of that exception means is still hotly contested between the parties but not you you never made a printer practice claim and we have complaint but in the summary judgment motion there was evidence presented as to the standard practice i understand but there's what there isn't is any suggestion that you want any more information i understand that your honor ends that and that is because we were waiting for this issue to be decided instead of just making repeated requests for the same information over the same type of information over and over again well maybe in tonight but if you need to the exemption six question yes so for exemption six karen us who dealt with private citizens they were foreign students and foreign instructors that were at a u s military school and these are not private citizens here and also dealt  with as i said evidence all the cases before were private citizens or evidence of anticipated harassment and there was very clear evidence of anticipated harassment because people that were in similar positions and in the foreign military had been had had their families and themselves targeted and killed if their identities had become public who is actually saying there was no privacy interest here you don't have to go to the public interest or are you saying there is a public interest what i'm saying is that you don't get to a non trivial privacy interest because that still involves as this court said in the only motive that still involves some balancing of the public interest it's just the more generalized public interest and it's in the past when this court has held that that's a non trivial privacy interest it's involved either pipe or private citizens or there's been some evidence to show that either because of controversy or because of actual evidence of harassment  tell inspector is is less than twenty i don't know exactly how many if you were to go through the law of somebody wanted him and so it was so that's another factor here because these people people are looking for him they know that these people know where these toxins are and so on and so on so that the additional and privacy so there has to be additional privacy interest in not knowing that they were specters for this particular place correct that that is the argument as i understand it is that something specific about this inspection but there's no evidence to show that there's anything specific to this inspection and balancing what's  interest in getting their names and their contacts are our position would be that and this court in your name otoh was very clear that the initial stage we don't have to show any public interest in getting the information but if the government shills a basis for keeping that information for withholding information the in what shop legation then the obligation is to come forward with some be the public interest i think the public interest is just the fact that these are people that are doing their job and these are these are the inspectors who made this specific decision with respect to this inspection and their performance statutory duties the question is does it shed light on government conduct and the this information sheds light on what they were doing in their official duties so your argument is any time information will shed light on government conduct it must be produced regardless of any other interest of the though you're out i think it's a it's a balancing test so in the end it comes down to what is the what is the harm and what is the specific privacy interested issue and then balanced against what is the interest your basic argument as i understand is there's no non trivial privacy interest because the only interest is that these people were showing their job and that's not a privacy interest yes and there's there's no evidence to show that they would be harassed which is