nearly thirty thousand pages of records it was appropriate to redact only the names of the agents who have been subject to allegations of misconduct in the complaint records and in the investigative records that were disclosed this court has recognized in numerous previous cases like schiffer hunt and a bronze key that individual government employees especially those at a lower level have a significant privacy interest in not being associated with allegations of misconduct or professional wrongdoing and the district court here in reaching the opposite conclusion on the balance of the public versus the privacy interest at stake relied on a spreadsheet from the office of inspector general that was produced in as part of their records issue here that's reproduced in there are excerpts of record at fifty one to eighty eight and as we've explained in our brief they just records conclusion that quote virtually no investigations took place was not individual officials who are accused need to be disclosed and that's the argument that without those names they cannot track the complaints from the original complaint through the whatever the referral is to the conclusion how do you respond to that so if i can make a couple of points in response your honor st as a general matter for it doesn't require the agencies to keep records in a particular manner nor does it provide a mechanism for raising grievances against the manner of recordkeeping by the agencies but specifically with regard to the records that have been produced in this case the the plaintiffs have not demonstrated that even if had the names of the individual agents that it would prove the marginal additional usefulness in addition to the extensive information they already have regarding date location and the substance of the allegation and what not that might allow them to draw connections between the records it is issue in this case if i could point you to a specific example in the record the excerpts of record fifty three which is part of as i mentioned the office of inspector general spreadsheet there is a particular complaint that that complaint is also in excerpts of record one hundred and seventy three where you will find a report a sample report of investigation from the customs and border protection office of professional responsibility and you can tie the complaints together by the date that the it was received and the substance of the allegations here there's no identified individual in the complete excerpts of record fifty three dollars and that's very common in the vast majority of the individual agent they sometimes provide a physical description but more often say that the alleged individual who committed the misconduct is identified and so there's no reason to think that if you had the names of the agents you would be able to draw the kinds of threats that plaintiffs are suggesting you need and in addition they have a substantial amount of information that might allow them to do that already so there's wouldn't be able to meet the standard that this court they're looking at the records there's never a name person and then to fight never know your honor i'm suggesting that in the vast majority of the complaints as there filed with the agency the complainant has not identified by name individual and so that name has not been redacted in that particular record and so what i'm suggesting is that plaintiffs cannot demonstrate as they have suggested that if they if we acted the names of of the agents where they appear throughout the record that that would provide the kind of common thread that they're suggesting that it would that instead the kind of information they do have like the date of the complaint was filed substance of the allegations at issue of the location that it took place that that kind of information would already be in lots of instances certainly not all of them but lots of instances all out there what they're looking for us is repeat offenders well so they have to be able to to that particular complaint st of all as i mentioned it's difficult to tell from the record where an individual was subject to repeat allegations because in lots of instances the specific individual was not named but even if you thought that there was a public interest in identifying whether there are people whose names appear more than once in the records at issue here is special given the substantial information that we just already have that the remedy that would be appropriate under those circumstances is not the the disclosure of all of the names of the agents including what is likely to be a large number of individuals who are not subject to repeat allegations but would need to be something more specific and if plaintiffs were like like what if you could could you go to judge wallace's question he's asking a a much more specific question about the repeat offender so what is it you're suggesting if they can't trace them i mean it does seem like you're trying to have it both ways because in one instance you're saying there's a lot of information and they could probably figure out who some of these people are don't i don't know how they would do that but but don't don't follow that now please just focus if you would on george wallace's question sure so i'm sorry if i didn't  respond to your question appropriately but i take the public interest that you are identifying as whether or not someone has been subject to repeat allegations and in order to conclude that there is in fact  sufficient public interest in knowing that information notwithstanding the fact that there's no way to determine as they just report found the veracity of the allegations here and so there's no way to know whether disciplinary actions were supposed to be or should have been we know that but if you could get to the answer to the question surface so i understand all right so what i'm saying your honor is that it's a balancing and that given the significant privacy interests at stake here that some people were identified as having multiple allegations against them and i assume from that there would be an inference that they were they had actually done something because otherwise why no your honor i was out a fair inference no i don't think that's a fair inference without any additional information about the recipe of the allegations you cannot conclude that simply because someone has been subject to multiple complaints that there is  actual support for those complaints the mere fact of the allegation cannot itself support the conclusion that there was some wrongdoing at issue and this is not a case in which this is a case it's not a case in which we are  underlying veracity of the allegations i just getting back to wallace's question which is that there's a separate interest separate public interest and identity if there are repeat offenders and not necessarily who those people are but are those folks being followed up the remedy you start to say remedy would be something more limited and i don't think we'll let you finish so i want to make sure i understand your thought there yes and if i could i think the public interest in question there would be and i so st to answer your specific question in order to get that information st of all plaintiffs could also file a more specific foyer request which to my knowledge they have not done looking for records that are specifically related to individuals who've been subject to multipl which requires disclosure of all the names of all the samus whether there are multiple allegations against them or not is yes your honor and if i also might mention that there are it is difficult to tell in many instances whether somebody specifically this subject of an allegation or a witness or someone who's been identified as hearty an interest and so it would also need to be something that specifically set out how you figure out which knew which agents are in fact subject to multiple complaints which is very difficult given the nature of the records at issue here where many of the complaints don't specifically name an individual by name some of them give a physical description but most haven't i as i said an unidentified individual who has been subject to some allegation on a certain date and location so and as i mentioned plaintiffs could if they wanted that specific information file an additional more limited foyer request to my knowledge they have not done so but if i could touch i believe on the point you're making judge kristin about the question of whether there have been sufficient investigation of repeat allegations i think that's slightly different than the it is different right the mere identification of the allegations and if i could briefly touch on that and that speaks to the district court's conclusion which we contend was incorrect about there being quote virtually no investigations there as the record demonstrates were substantial investigations and i think it's a little different and i and i appreciate your starting with the notation about the spreadsheet and the misunderstanding about the the annotation that helps to interpret that spreadsheet that helpful but but they have articulated a separate interest one that is not trying to reinvent the government's investigation but is instead the public's interest in verifying that there is an like forest service employees which i would note is an exemption six case and is thus just to be clear we're communicating i'm asking you to turn the page and talk about the other public interest in the question of investigation so as i mentioned they have not submitted number of reports from government oversight entities demonstrate there have been some issues with investigation which they in the time since two thousand and fourteen which is the time of the foyer request the agency has been working on including inspector general the quality of investigations would not be appreciably furthered by knowing the names of specific individual agents who have been subject to allegations of misconduct and subject to these kinds of events have there  there is information that would make a reasonable person think that the investigations were inadequate or the government has had failed in some way that the court and went on to provide  a case not from this court your honor as far as i know and fact the cases largely go the other way that where there are allegations of the kind of issue here that the government has not been investigating claims properly the court has said that the significant privacy interest of the individuals who are named in those investigative documents outweighs any public interest since you can imagine there's no question thank you so you just indicated that the your position is that the public  interest in knowing that there is a follow up wouldn't be furthered by by knowing individual names and i think that circles back to judge wallace's point which is with the public's interest in verifying that there is that follow up is happening with that interest be furthered by knowing whether there are repeat offenders not necessarily your honor well without any knowledge about whether the allegations were true or not which the district recognized cannot be substantiated in this case and isn't at issue in this case there's no basis to conclude that the investigations weren't sufficiently thorough or weren't appropriate even if they're against an individual who's been in charge and why is there are in some instances there are some problems  indicated and some into this is if nothing else and this isn't about the weight this question isn't aimed at a criticism of the process it's inherently difficult because people are moving through quickly so given that that is the situation in some of the instances the follow up of course comes months later and so the fact that something can't be verified pretty problematic because people aren't there and you are right so that's the understanding the situation that we're dealing with i question your position and i appreciate to hear more about why you think the public's interest wouldn't be furthered in verifying one way or another whether there are really a cluster of complaints about around particularly employees whether we know the name of that employer or not well your honor if you are suggesting and i think plaintiffs have suggested that the government is not sufficiently investigating those complaints i'm not i'm not suggesting that well i don't think in this case as in you know forest service employees and larn schiffer that that particular public interest even if it would be served by knowing that there are in fact allegations against an individual can outweigh the significant privacy interests at stake and if i could reserve the remainder of my investigations there which often involve a single incident in which there were multiple completed government investigations which were made public and where therefore the marginal disha utility of the information sought really wasn't going to further the public interest that had been identified  nd this is a problem that really is of the government's own making and if it hasn't been clear so far i'd like to emphasize that we would gladly accept some alternative other than the names of these officials if that would allow us to trace the  information so feel like been discussed between counsel yes your honor we tried to raise this issue with counsel prior to summary judgment briefing and they refused to engage unfortunately it's too bad you haven't gone to our mediation program and your honor we would be clearly the government has a reason not forgive the names they don't even know of if there was anything to these and then then it goes to the new york times and main mention the names in the person so they have kind of good interest shot so your position is that you don't need the names if there's a way of adana fine types that is that you could give a number to each of the hits that's right because you want the end result that's correct and that's strikes me that in a case like this where both sides are right we're not put in a position that's a very friendly one and it strikes me also that both sides would win with the the actual process without the den of fighting the name of the individual and i would strongly encourage both sides to try and do this we have when when is something that we need to with we have tried to understand these crucial records in a way that would permit the public to answer the questions that we've raised and brief about what's happening what's the extent of what's happening and how is what's happening being addressed so those are different public interest now you're suggesting that you want to reinvent a repeat their investigation we have case law about that oh no he slipped bring into that that's really different than the public interest in verifying that follow up is occurring hence i think you have a much stronger argument this this is just me speaking here i mean you're absolutely right i'll just finish if i could when you talk about the interest in knowing whether there are repeat offenders is there a cluster around individuals and following up cordingley right yes you're as opposed to wanting to follow up on individual names i'm sorry if i'm not being clear we have said over and over again that we are not trying to reinvent these investigations there would be no way to do so just as a factual matter these are passed occurrences as you noted that this is a transit population this ship has sailed we're trying to understand one the repeat offender problem which you identify and two what happens through and looked at the tracking numbers the dates and the like there certainly were more of them that allow tracking from complaints through to the conclusion there and the yes in fact you're on a best part of the problem each d h has oversight and to use is it uses its own system of complaint numbering so there's not ten i g refers a complaint to a different entity that entity assigns a different number and there's no way to actually well at the supplemental excerpts of record one hundred and sixty eight dollars you have an example of an i g case summary report that describes a single complaint with multiple different records you also have complaints that are grouped together without unique numbers and that's for example it at the supplemental excerpts of a single cite to a document that they have any numbers on it otherwise there was not there was a real gap it was more allegations conclusory allegations so we actually i think if you look at the documents that are in the beginning of our s c r there's actually ten or twelve pages that are examples and i know we did cite to these so as you're two to three for example you have a c r c complaint that is forwarded to c b p there's no way to check the c b p production that we received against that complaint to see what c b p did with that complaint upon receipt of the referral even the spreadsheet that counsel referred to which has many different complaint numbers we did try to make sense of those numbers we tried to go through the different components and see if we could match them up and to the extent that that's a fair actual issue is that something should not be decided on summary judgment is the question about whether things are track not something that would need to be considered in an evidentiary set well as as this court said if there are questions of material fact in a for your case then there are the correct procedural posture is evidence your hearing or further factual development of the record by the district court and we would submit that that would be appropriate here to the extent that those questions trouble this court this court's review is do novo and we do think that there is sufficient record evidence before you  identify where these gaps truly exist but again if that's a book i am strong forgive me for interrupting count i didn't mean to we are a little bit hamstrung it's a little unusual because we have a very diligent district court judge who had information was operating under a mistaken understanding and the government assumed that you knew something you didn't know was available on the web site so now what we have is briefing saying oh there's this information this key that explains a spreadsheet to anybody circle back and give that information to the districts or a court to take the next step as far as i can tell they never did and that information was available before summary judgment commenced in this proceeding which is why we argue that the argument is waived and we also make their honor that the teachings of the government has provided do not actually change the way the district court might just change the district court's ruling it may cost and it's tough for us to know what the district court it would have done if it had all that information understood what the government is now saying about how you interpret that spreadsheet and so the kind of that i feel like we're kind of suggesting here is something that typically happens in the trial court i'm not criticizing the truck but i think you didn't have this information because the government had not provide we're just we are where we are at this point so for our purposes given that there are very serious privacy interests here and i think from just speaking for myself also very important competing interest in knowing that there is a robust system in place to follow up by i feel like we're maybe delving into something that the trial court you a slightly different question as as i had mentioned to opposing counsel there certainly is evidence of problems with the follow up investigation including their own consultants program i'm just not sure how that leads to getting the read acted names of the individuals that seems only only purpose there with the tracking we discussed allegations against repeated allegations i don't think we can call them repeat offenders and there hasn't been substantiated repeated repeated allegations and now you're talking about well the investigation it will show us something about the investigation i'm having trouble with why the retracted names provide you with any material or i think we say appreciably further is the a c l u use ability to understand the gaps or any problems yes your honor this goes to the marginal additional utility point which is typically addressed at that rd step of the toughly balancing analysis and we would submit that looking at the record as produced by the government here we still don't know the number of complaints that the department of homeland security received during this period of time from two thousand and nine to two thousand and fourteen we don't know the total number of officials against to maliki sions were submitted we don't know their rank or level of responsibility where they were promoted i mean they're the number the amount of information that we don't have is is is actually a lot and just because there's some information in the public record about these problems don't they they gave us wretches they were all of the different issue that's not before us whether whether their response here for your requests was complete or not and we're focusing on a much narrower issue with josie what what is the provision of the names of these low level see there actually produced a much more coherent record there were no number of immigration judges we don't have that here there were seven hundred and forty some odd isolated discrete complaints that were actually you know sort of grouped in a way that you could count the number of total and the d c circuit said that even there the categorical withholding of the immigration judges names was improper and or for as privacy exemptions because there was still so much information that the public didn't know for example how many complaints have been alleged against each judge whether those whether any of those complaints or what proportion of those complaints were substantiated st is not substantiated and we submit that this case is very similar to that case in terms of the lower level officials point again we recognize that there is a privacy interest here and we would accept something other than the names that would allow us to do the make sense of the records that we have but also your honor these department of homeland security officials or the line level officers who interact with these children there are no other federal government officials who interact with these children they're the ones who have primary response right that has echoed to the the public's right to know what's up with the h s is investigate and that i understand your your argument but then it's starts sounding like we want to reinvestigate we want to publish their names we want to harass them the just record itself publishing the names of these individuals will put them in danger you're your honor  we've can we've consistently emphasize two separate public interests and i know that sometimes they seem like they collapse on each other but the question of who these officers are in the role that they play to the extent that yes they have a privacy interest but at the balancing stage when you have to consider the public interest in knowing their identities which is what which is that which was their public interest and knowing that these individuals are is the at the argument you're making that there is a public interest in knowing the identities of them so you know your honor in so knowing whether there are certain officials again the officials who have the statutory and and law enforcement responsibility of interacting with these children whether they are if there are  repeat repeat offenders if there are people against whom there are repeat allegations and then how the oversight side of how it is that we're getting back to whether d h s is falling down on the job of investigators into public interest and what's the other one whether there  understanding how that shows what the government is up to we might be there is we might be saying the same thing in two different ways it may be that you i understand our public interest collectively as effectively about this oversight question we think that to assess the oversight you have to know how in among other things the oversight agencies deal with repeat offenders ok so that's your public interest how whether d h as is appropriately investigating and disciplining people against whom they multiple allegations or or even if there's just one single but very substantial or or troubling allegations are on our i think also the public has an under has an interest in understanding how oversight functions separate and apart from the officers themselves i think that the reports that we put in the record indicate that this is something that is of significant public interest the agency itself has identified see arius limitations and its oversight function that can be mission compromising toughly there was a high interest in determining whether the aliens who were released as part of this program were going out who had criminal backgrounds were going out and committing that is distinguishable is where the court talks about how the public already had all of the information that was available to ice when ice made the decision to release those individuals and here as i've identified there are a number of i here i would disagree on i think again our purpose is not we're not seeking the names for the sake of the names we're trying to make sense of the records that are in front of us and so i would say that our the nexus between the names here and the information sought the names here and the public interest that we've identified is very different from that in toughly and in forest service employees and in lair i think we again we we would accept some alternative to the names that would allow the public to look at the records that we've obtained and make sense of them and i think that you know there are cases where agencies have done that to answer an earlier question that you  counsel in terms of has there ever been a case where there's a faddish showing in the names have been ordered released the answer is casa to maryland which is a th circuit decision which we cite which the district court cites which the government never addresses in any of its briefing in that case there was a single incident a raid where the eight the agency itself undertook an investigation of the alleged racial profiling that had occurred during that law enforcement activity and found that all of the allegations of misconduct were unsubstantiated and the court nevertheless said that the information had to be released because the public had a right to understand whether the investigation itself had been conducted properly and whether the conclusions of that investigation were warranted and this court has recognized time and time again that there is a public interest in understanding how these government agencies operate cameron as he made that point as well the facts there were very different because you had a record of congressional oversight and public reports that were sufficient to allow the public to answer the questions that the requesters had to answer or to address the point that we should have somehow brought a different kind of foyer you know our fair request is in the record i think that the categories that are included in it are such that councils is mistaken in that we had some obligation to file a different request for discipline our requests very specifically addresses discipline and i don't know how a different request would have changed the outcome here given the way the government has chosen to engage on the one last point on the disciplinary point i think this is an important factual point to clarify for the record the government has said that part of the reason there are more disciplinary records before us is because of the timing of our request our request was filed in december twenty four teen the minister of complaint that triggered the impetus for our request was in june two thousand and fourteen that's six months but our request goes from two thousand and nine through two thousand and fourteen so even if there were cases where there was still a pending investigation and it just hadn't concluded and discipline had been imposed that i would submit not possible to be the majority of the cases here the one disciplinary record we do have from the government in response was for a request we got exactly one pertain to an incident that occurred in november two thousand and eight and the discipline was imposed in july two thousand and nine so within a year and so it stands to reason that if we have a request that spans five years there should have been more disciplinary records and the thing that we establish in our brief your honour's is that with robust reports of investigation by i g by c r c by internal affairs the entity that imposes discipline into the part of homeland security cannot do its job and so that is i think another important factual clarification for the record and if there are no further questions thank y have some time for re thank you your honor if i could make two quick points in on repeat all a lot of the concerns that opposing counsel has raised with regard to the information they're missing could be filled in by filing a new foyer request or looking for more specific information to my knowledge they as a result she got nearly thirty thousand pages of documents that address a number of issues and to the extent she has raised issues about the adequacy of the response that's again not before us lowered clearly her problem is to try to make or tails of it and the government again i am not casting aspersions it's just that i think it is correct that this record is such that you understandably redacted names and she's left with case numbers as the complaints are referred you know as you know from groups for some reason maybe it's just customer history but they start with a new case number so she hands are tied no your honor in we've also noted that there is a lot of information that they have been that has been disclosed including date substance of allegation and whatnot that would allow in addition to case numbers for threads to be drawn between the various documents but if i could briefly address the nd point as well i think some of the questions from from your honor and from george wallace suggests that there are substantial interest on both sides and that's always the case in exemptions six dollars and seven dollars cases which require the court to balance the privacy interests of the individual against the public interest at stake and to draw a conclusion about which  outweighs the other and in the vast majority of cases that are similar to this case including as i mentioned before for services larger brodsky this shift for the court came to the conclusion in the majority of those cases especially the  it's cases that the significant privacy interests at stake outweighed the public interests if this report came to a different conclusion here and here you are and i'm concerned about this key that you about the spreadsheet that you've indicated and explained clearly on going to he would waive this privacy interests in the same way no your honor the balancing here is a legal question and this court should consider the interest on both sides and i submit in light following the example of the previous cases of this circuit come to the conclusion that the significant privacy interests at stake here cannot be outweighed by the public interest articulated by posing counsel and i c m out of time but if they're over the