right the second appeal we will hear this morning is ben baker against the f mr topic morning runners made please the court this is a freedom of information act case issue in this case is disclosure of the names of people in the f b i s investigative files population yet he was charged with only single count the shaking down an f b i informant according to testimony from other officers there were additional officers who were involved in watch rise but were never charged at all  review applying here yes and i realized in horror yesterday as i was preparing we didn't address that in our opening brief so i apologize the government's articulation of the standard view is correct so the the the first question is  of whether there was an adequate factual basis for the exemptions that were being claimed if you conclude that there was and it's a clear error review for the conclusion of whether those fact whether those factual bases applied a balance  what are you expecting to learn or how in what way is this very personal identifying information about the federal and state officials who are involved with is going to be pertin addresses or all of those kinds of things are so so we don't dispute that information the categories of information we're challenging here are first and foremost the identity of the other chicago police department officers who were investigated  believe that watch page one twenty nine records that had been now cannot ask you whether because there is some talk about privacy interests under the illinois statutory regimes this is a federal freedom of information act case are the standards the same under the illinois quibble and i mean that the idea that you're going to reveal the names of all the people who were investigated but pursued it's a little troubling to me but you claimed that there is no privacy interests at all in anything you do as an employee of you know an entity of the state of illinois so i don't know how  law on federal law interact here sure and there's there's two pieces of the privacy interest in the in the public interest in disclosure so we're not arguing that illinois law you know governs how you do the analysis of balancing the privacy versus the the same records of the f b i does and very likely they wouldn't so under illinois law and in my public official when they when they take employment as in all my public officials do so with the understanding that under illinois law there is no expectation of privacy and things that  know a little bit about precedent i can't recall reading in the newspaper but it doesn't mean that it hasn't happened reading a story to the effect of there's been a foil disclosure from fill in the blank you know the i or the illinois state police or anybody else in which we're going to list the names of all the people that we decided to investigate for a particular crime whether it's an extortion racket or whether it's a drug conspiracy or some kind of medicare fraud or whatever else and pick your crime i can't recall sitting there reading we looked at john smith and decided not to pursue charges against him and we looked at suzy jones and we decided not to pursue charges against her having been in the justice department i e we didn't publicize things like that you know if you looked into somebody decided not to go forward then in the interest of the person who was now not going to be dragged through the criminal system you didn't disclose it so can you have any precedence for cases where this sort of thing has been disclosed so the big that as to the people who had been bad going on but i can actually think of reasons why they may have gotten the light sentences and reasons why the prosecutor looking at the evidence from the f might have decided not to pursue charges that wasn't the f b i is decision anyway with the standard under the faddish supreme court test is you know not whether we have proven conclusively that there was government impropriety that this test is whether we've come forward with evidence that would warrant a belief by a reasonable person the government impropriety might have occurred in the course of the advice so that your theory of impropriety is that there was evidence that that x was involved with the protection payment scheme and that the u s attorney having learned from the f b i that x was involved in the extortion scheme decided not to bring charges you know that there could be we think really two explanations for why the additional people were charged or or why watts was not charged with more counts in our issues with the sec it's with that he was charged with one count when the government said there were years of this illegal conduct by watson and his crew and so one explanation is that there was sufficient evidence that was gathered by the f b i and the u s attorney's office nonetheless decided not to charge despite both and under what theory would we have a lawsuit against the u s attorney for not charging somebody the courts don't require the u s attorney to bring charges well this is to go back to the standard famished the question isn't whether there's evidence of illegal behavior by the government or whether the government is legally obligated to do something did it c onclude whether there was negligence so one explanation could be but that's your lawsuit look like so used to somebody for negligence i don't understand it there doesn't need to be a lawsuit it's simply a matter of public interest in the public determining for itself whether public officials whether the f b i did the best most thorough negligent job in investigating other want for spinning so suppose this is a complete hypothetical on my part because i don't have any idea what went on behind this but suppose the government decided to charge watts as it did with just the one charge because it has a private agreement with lots to furnish information over the years and has been known to happen and it wouldn't necessarily be public for a whole lot of reasons but when courts start digging into this and start requiring the publication of lists of people who you know didn't get charged with a not for people who were investigated but not charged i can see significant harm to the government's interests but i would say this is all a dream that that all the issues are addressed in a standard that's put forth in fashion if the requester could come forward with enough evidence to warrant that reasonable belief that government propriety might have occurred because we have a pro disclosure freedom of information act because the entire purpose of it is to allow people to hold the government accountable we get to second guess those decisions and we get to have the information that allows us to to question whether the government acted in an inner proper fashion we don't get to just throw out errors this is bitter suspicion which is the which is the standard that was that that was rejected request than i had understood it to be at some point that it's really not the names and identifying information at the degree of granularity i was thinking about that in a sense it's just the names of the people who were investigated but not charged and i i don't know i mean i can can you think of a nick of an example where that sort of information has been made public  pursuant to a freedom of information act request no your honor and the interest under exemption seven see these privacy interests that are protected protected you can find in lots of places in the criminal justice system for example grand jury secrets secrecy there that the federal government was looking at them when you know ultimately they were in charge you know but what could overcome that interest of eighty seven doesn't say that you can never reveal information compiled for law enforcement purposes it's a more nuanced provision and that only to the extent you can withhold it only to the extent that there's an unwarranted invasion of personal privacy but i'm having trouble thinking under your rationale any case in which revealing a name wouldn't deal the results that you're worried about harassment revenge you know obloquy of sun type or another so is so how where do you think sure because here there is no evidence there's nothing more than bare suspicion what is connected here are statements made at sentencing of relevant conduct which is allowed under the sentencing guidelines is regularly used and doesn't raise any sort of inference that there was a problem year protection racket that's going on masterminded and headed by watts the the the idea that there's nobody else involved is a little difficult to swallow so there's there's a description of the criminal activity and some time frame some scope frame and yet you're saying even with that much of a description we still don't think there's enough it's not like you came in and said we think the chicago police department we think the f b i is a terrible organization give us everybody's name so we can find out if they did something wrong that that's not the case and i think it's pretty close to i mean that's not really it's the watts protection racket in chicago about drugs right but what what mr baker has to show is not that watts was a bad guy or you know there was there was that sense well established right right and named in that investigation why is it misconduct i mean he's saying that you know if you just close these names maybe what we would discover rather than what i would think of as misconduct is just laziness for example or you know we've we've put this case against watts together that's enough or tired of this you know or perhaps just a different priority who knows so i'm not sure that he's looking only for misconduct well if that was the idea anytime somebody had had a relevant conduct at sentencing that was outside of what the charges were in the case which is often then somebody would be able to say boy exemptions that if he doesn't count i get all of the names of everybody who was looked at i got all of the names of all the police officers who helped in the investigation which in the brief was something there they were still looking for which you know they have their own privacy interests here also and you know because of this fact that there are all the conduct that's greater than the charges well we should be able to monday morning quarterback what it's second guessing what the you should have done exactly so your opinion what if you're sure to charge more people they don't show any negligence  conduct correct half of the correct you know i would just say that i think there are in some instances that relevant conduct would be activity that the defendant could have done with the assistance of the various people who are involved in the charges that are brought in other instances the relevant conduct or other nations such as here might just strongly imply that there are other people that the government hasn't for one reason or another gone after and there are lots of reasons that have nothing to do with the government negligence or misconduct or why charges are brought i mean this is sort of speculation on one side but there's plenty of speculation on the other side i mean witnesses could provide helpful information but he lied about other things they're not people are going to put on the stand especially in the context of the narcotics work watts is doing witnesses can be on drugs could be drug addicts particular to their perceptions could not be that reliable witnesses could also be people who are difficult to find people are incarcerated kind that could be outside the statue of limitations or could have been presented a grand jury and they have declined to indict i mean there are there are all sorts of reasons if you're you know going to start speculating about why charges were brought that can happen nothing purposes because the records were provided i mean five thousand eight hundred eighteen pages were provided we're talking about redactions of names in sixty three pages and i think possibly now seven hundred thirty six pages sixty three pages  great that's right right but i think now it's probably the redactions aren't even on sixty three of the pages because there were more nuance that happens a lot along the way that we were literally just talking about names was race in the brief where m action in the state courts and in the state system and push a prosecutor do something in other words to make this an issue an election but you can't do that her in the federal side and that would really what we're talking about here i don't really person in charge and that i agree that that is that is the position that they're putting forward in their brief that does not meet the favor standard they need to before it's something about one of these agents having done something wrong or you know they're having that int disconnect between reports or something i mean they would if they have the records will that burden comes in and as part of the balancing i take it as your view made because you say the stream from ation act is just there it's a government policy toward disclosure of information withhold some information but the withholding can be overcome after the balancing right in favor should actually says you don't there's not even anything on the scale to be in the balancing until they provide that information that evidence  d i do also just want to respond very briefly to the point about the names of the individuals who are were being investigated their privacy interests here because they're quite serious that the brief by the pellet even mentioned a whistle blower seal which is outside the record that was mentioned in brief individuals who helped in the investigation and then it is alleged were retaliated again t their own grief shows how serious the privacy interests are at people who you know participated helped in the investigation and people who were investigated that time and if the court has no further questions the f b i asked that this firm thank not thank you very much is your topic of thinking about a minute thank you first i would point just to our fifty six point one statement in the things that are attached to it which is more than just speculation about whether there was evidence against other officers that had been ignored that includes a declaration by another chicago police department officer about knowledge of other officers being involved so the question then becomes interfaith is that enough to raise a question to warrant a belief by a reasonable person that there might have been impropriety in the watts investigation there still has been no explanation provided certainly by their to then why then why weren't more people charged more get back to what i just asked the same question you got a nonpolitical u s attorney versus a best state prosecutor you can put the pressure on the state prosecutor to do it but you can't do the same thing for the federal and now you're trying to go around it by using foia to to say we're going to really put the pressure on you this well took up to the point of the freedom of information act is that the public has a right to this information and they can certainly