another possible interpretation just presented by the media coalition committee that the standard for possession custody or control of kissinger mirrors the civil discovery standard for determining possession custody or control if so can the district court  would you have the agency do in a situation if by assumption the records are outside their physical control dominion and control because they're on a separate entity server what is your theory of require the agency to do in that situation well if i think the agency should do what it does when employees have emails on their personal work computer just ask them to produce them being the feds and ask that you added the bottom line of your position is that they have to  then you know the fact that they're not in the agency's official record keeping system doesn't put them beyond the reach of for i mean to prove or secret files were not in the agency's official record keeping system and they were unknown to loony anything that's true but it illustrates that there's not a distinction based on practical ability in this case and under this court's decision and mcgee versus the questions custody or control not custody and under the supreme court's kissinger decision six times says possession or control party which fell under a claim of right the only way to get them back in that case was through a retrieval lawsuit and that time consuming speculative prospect did not give the agency control over the records much less the ability to produce them within for a short deadline here by contrast documents or face the possibility of discovery sections i mean rick aces that i've read i didn't see that potentiality presented it just seems like the agencies have that ability to tame the records of their officers and of course they have a strong incentive to do so given things like adverse inferences that records and i believe the examples in the joint appendix are very clearly agency records like the example i join appendix one fifty three to one fifty eight where he sends material that is redacted under deliberative process privilege from his was whole research center e mail account from the very fact that he they were directed pursuant to privilege shows that it is an interest for agency memorandum that under this course decision involving versus grows and directly relates to agency policy making so i think it's very clear that their agency records as a matter of law that's the extent that the same factors union but then it's i'd it has to be right of course that just because the documents physically are located on your premises that can't be enough because if you still have the ability to physically go to documents as you would with an independent contractor thing you can be required to turn them over that's a different question from the distinction between physical control and legal control the idea that you can exert pressure on somebody to turn them over because you're in there your employees or you may or may not be right about that and i don't think our prior decisions  that the ability to exert pressure necessarily means they're sufficiently within your control that you're obligated to turn them over i mean i think this is an easier case because like i'm blessed it was some of us it was code for they had to go to six hundred miles away to not agency storage facility to get them and that was not going to under some action is taken deliberately just to avoid a forward question that that could nonetheless be within the reach of boy even if it otherwise wouldn't as a kind of delphic put note and i don't know how it would apply in that situation where they're deliberately doing that just to frustrate foyle unlike kissinger itself the person leaves after the foyer request is filed but before any court enters any order does that make a difference because then there's no practical ability to control the person they just voluntarily left the agency i think i think it should still be decided the same way but i admit it's distinguish can be for your privacy act violations based on such conduct so i i think that you would still potentially be a fourth claim but it's a very different case in th thank you thank you may please the court my name is katie townsend and counsel for the coalition of twenty seven media organizations led by the reporters committee for freedom of the press filing in history in this matter let's emphasize the procedural posture in this case government records it will also encourage government officials who seek to shield their conduct from public view t v news non governmental you know accounts to conduct the public's business such a result cannot be reconciled with what is purpose which is was that there's a matter that matters in the sense that it's a better looking chase if we have a bad motor but if we have agency records that meet the test  control more constructive control that that's enough i thought that was your argument that's right you're right it does not matter i think the before the court the district courts focus on withholding alone in a way that swallowed the agency records wrong analysis is the driver as it should be the question of whether the records speak sought all our agency records the type of documents that floyd is supposed to reach is the most important question that's the critical way henri the withholding inquiry right to those documents to the library of congress it was at that point that the supreme court said that because the library of congress was all holding those documents under him under a claim of the right but there was a need to to pursue legal action to pursue litigation in an attempt to clear up that question or to obtain tain sort of legal right over those documents in order to comply with way or less the highly unusual set of facts and the kissinger holding its office is quite narrow the court holds expressly that it's not it's that withholding does not mean instituting a retrieval action simonson before the documents went over to the library of congress they were held at  has control it still has control over at that point over time records and it's not a matter of control over the individual per se it's a matter of control over its own records and that's why the agency records analysis is so important i'm apparently we have the same obligation that they would have in this situation or is which is one which is practically what do they do there's documents that are made by hypothesis agency documents the individual has taken them and put them in the estate of an l c rockefeller somebody comes in and says i'd like to see those documents and what  practically what is the agency obligated to do the agency tells its employee to bring those documents back or in the case of electronic records to comply with what is now law and the federal records act since twenty fourteen which is to send employee is going to say i am by leaving federal law and violating the policy of this agency i'm violating regulations of this agency but i'm still going to do it and i refuse to provide these agency records to you i think in that situation the e c is still at that point at least obligated to i mean at that point there is a dispute between the employee and the agency over whether or not the documents can be provided and maybe that presents a closer question but in some point i'm sorry suppose you co complying with that and if they are caught being there if they're using a non governmental e mail account they're copying their fish the government you know account the same which is that i thought the way that this arose is that the government was producing what the government had and what the government has on its server is so at least some of the stuff that's on a private server because it was copied to the governments over but the theory behind this shoot is that well we don't know that it's everything there may be stuff on the private server and it's also an agency record but there was never a copy to the government server as and then that's where the dispute arises because the government says will we can't get that stuff we only have the stuff that we were copied on and the requester is saying no the government has to take steps to make sure that stuff is turned over from the private server and the dispute the dispute is is there a gap between what's on the everything on the private server over to the library of congress and i think that would depend on the timing of those actions and i think that does go to judge edward edwards question earlier about motive again is this court has still the secretary of state his injury had sent the materials in question to our very congress but access to those materials was permitted by anybody who had the written permission from kissinger himself so kissinger himself was still the secretary of state and himself had access to all the materials that were of issue in the case and could provide access to any third party by providing written permission and how do so that's the question here we know that question's not being answered well good because you're on a private server doesn't answer the question of whether or not there's possession control the agency because you have notions of concern constructive control under allegedly or agency records go on a private server others are being put on the agency's server that's not the picture that kissinger was talking about and so they didn't have to address the construct of control we're talking about whether the agency not situation can say hey you're here you're working here some of those materials on that server or our materials given to us so that we can respond to the forward quest well this time as i read kissinger the court wouldn't hesitate  apparently based on what kids in your opinion says could always go get the documents and one in which virtual documents are on a private server but the person who put them there i e the virgin or you mail could always get their own emails and give them back to the agency you see a distinction between just and i mean i'm not sure what the the basis for the distinction would be on you know there are some circumstances in which you know as was described in terms of sort of a federal record centers somewhere where they're not physically active agency but that is still the agencies to do with what they please just another factual clarification from kissinger the question was posed earlier whether the department of state itself had asked his center to return t otherwise he apparently was in a position to give away what he gave away and so that's it just it's not helpful here we're talking about a situation the government is not claiming that dr hold well the i mean that is i mean there are federal the supreme court to consider talked about the fact that there are there is a federal statute that addresses a circumstance in which agency records or things that should be agency records have escaped the federal agency either because they were wrongfully taken away the case of kissinger and the question was how and the federal agency need to go about getting those materials back and what the what the court was very very clear about in kissinger was the way to get the switches back is through the it was quite clear in kissinger that they said before it is about trying it is about the agency disclosing records that already has and does not require the agency to obtain additional materials and then the statutory term that's at issue here is with paul and the court said so we hold you can read the word hold out of withhold that was almost a quote from kissinger and they said the point is if the agency you hold to the document the agency has it now if it's escaped the agency's possession what i'm getting at is if the if the question is whether the agency has them it's not weighted whether they were created in what in the agency was this question about because it seems to me that at least a fair amount would turn on whether there's a meaningful distinction between the fact that in kissinger the physical document was given to the library of congress subject to some ability for kissinger to get a document back and a situation in which somebody kissinger keeps the document at home which of course he can get back because he has so is there a difference between a situation in which kissinger himself puts the document in his house and keeps it and a situation in which instead of keeping it in his house he gives it to the library of congress subject to his ability to get it back so i think your view is that there's no meaningful distinction between those two but one one question that perhaps points that up is is it the same thing to have the ability to give people access to a document that you've turned over to the library of congress by which i assume it means you can go look at it as opposed to actually having the ability to go retrieve the document itself i guess i guess the it seems to me that the thing that makes the question about whether he's taken into his house a harder one relates to whether whether that constitutes an action that take that takes it out of the control of the agency because if i go for example bring them you know an agency document home overnight and then bring it back the next day it hasn't  my house you might have a federal records a problem with that and the agency could meet address that under the federal records act but to say go for the the federal agency has an obligation to search materials that it does not have the ability because it  the court did not say you have to ask for the materials and in an interesting with his dissent he said the secretary the agency never asked for the materials and the majority apparently didn't consider that relevant and i also pointing out that there is a difference the question is not whether the agency upon request could obtain documents the question is whether the agency is withholding documents that's the statutory term and withholding doesn't mean that there's something that you could get if you ask for it if it would be a to write an opinion the way to describe it would really be an embarrassment but in the world in which we live to say that the hypotheticals are you running through and essentially saying no you can't get access what i know i would be but i want no part of that i don't know how it comes out in the end but i can't imagine writing your opinion on a motion to dismiss no finding on the ig whether it's an agency work or not and write an opinion of the sort you're talking about a lot of people would be laughing at well let me let me just speak because the key part of kissinger is not what i'm asking this court to hold that if if an employee has documents that should be agencies files in aren't then there's nothing to be done about it what kissinger kinds of information in the hands of the in the can possession or control of the agency it's the records tax a different question well but the point is if the reason that an employee would give the materials back at the point is taken away is that the employee has an go well just to be clear on what the pejoratives opinion said about discovered was they said if you wish you were subpoenaed to somebody and that person doesn't have the materials then that person does not have an obligation to go out to get the materials agency responds by saying we don't have the documents what's the what's the government's view on whether to go the agency when in that situation and really you had a few facts a hypothetical about the possible allegations opposers a newspaper article that reports that it's a possible allegation so we know that we take that to be true for purposes that of the motion to dismiss stage and the government responds by saying look at the allegations  allegations against themselves tells us that the documents not within our physical agency confines it's located at our employees residence and therefore we reject the foyer request because we're not withholding i mean i paper and it is just a piece of paper and what all we know is that it's at the employee's house because the complaint alleges that and the other thing we know is if the agency says we're not withholding it because we don't have the document  if literally that's the only allegation in the complaint and then the government the other fact we know is that the government responds by saying we're not withholding it then i mean you may be right or assume that there is some fertile ground in your mind by looking to see what the motivation is but literally we just don't know so who wins do you think in that situation the government wins because it just says you're all allegation in the complaint says it's not somebody as r represents an act of taking that document out of the control of the agency as opposed to everybody understanding that even though it is physically in my house it's still the agency's document the employee gets that the agency gets that it's going to come back and i would be sort of on for just in case there are other or even see records there because we think that it's under the control of the agency that's the analogy because here what they're saying is the agency should search the non governmental fleet now account to your own federal employee have to know all what's there you've changed for you well you have to say i know there are these specific documents they don't want them you say i want the agency records relating to whatever right but that's not what this  not asking for materials on a particular topic it's not for particular documents it's a all we want to do anything that the government is already has on its email servers that's not what we're interested in but i think what's the what's germane is that your response to the foyer request is that we're not withholding because the complaint alleges that the stuff is located on a private server that we don't we can't we can't just go into the private server right it's not our server which is the just seems to be the same response as saying we can't go down into a private home that's not our home and if if and then level of generality if somebody says i mean again then that is a good analogy on a private server that weren't properly recorded in the government files which the district court noted so the admission of a complaint is this employee brought materials home at some point and therefore under the foyer of the agency have to search is to say that if we can't if the government can't get home under withholding maybe you can bake in some of the factual considerations that you're asking about into improper and say in a situation in which the employee just steadfastly refused to turn it over if it's a physical doc and that we don't the government doesn't have a means of going into the house and getting it but it's not improper they have to do some other stuff they have to ask they have to do some things to render it a withholding that's not improper but but you're wanting to win at the threshold stage of whether it's of withholding at all and on whether it's of withholding at all if there's no meaningful distinction between a situation in which all you know is that all th that i do think that if you haven't but there were tears that were in somebody's home and we knew that that person was never going to give them back to the agency or this and that the agency had said or you can take this home but everybody understands this is coming natural sort of one scenario when a private e mail server just the fact of it there is no allegation here or there could be no plausible allegation and it would and it's just not true as a matter of fact that director warning agency staff not to use personal in mail accounts to conduct agency business and if they did to forward them to your official accounts suggest indicating that those non governmental counts were subject to federal record keeping rules and control amdo and addition the agency's claim it lacks control of these emails is implausible because agencies have repeatedly produced emails from employees private accounts in the past and that's relevant because the government conceded on page twenty i don't think so because the agency has leverage and you know the special counsel can bring of disciplinary action of it's within the ambit of the regular he's willing to be fired he's he's worried there's something embarrassing on the personally he doesn't want to get go down this road in fact he's going to quit tomorrow anyway what does he care so he says no it is is the agency violating fully or is it complying with only because it asked i think that this court's precedents in cases like chambers of department of interior show that the fact that the there may be practical difficulties in complying with agency doesn't preclude for a violation like this is you also asking is not enough it's not this you have to ask but that's that's necessary but not sufficient you actually have to produce yes context that's indeed be in a situation where the agency comes in and says first they said this guy said no he's just that kind of a person and then it burned up everything that should rule in those circumstances no even problem with polling and you ha