five exemption for allows the withholding if all three elements of the exemption for tests are met those include that the agency obtained the information from a person that the information is privileged or confidential and th information is kershaw information the first part is easy because we can see that the information for these documents came from a person the real focus should be on whether this information is confidential for exemption for purposes the government must that there was actual competition i cite in my brief the rare case which said that if you cannot point to an unsuccessful bidder for a government grant there is no actual competition and just last month august sixth the environmental group that's interested in having more clear months and what's really important is there needs to be identification of an actual competitor not just a hypothetical competitor as i dress for my e're not a competitor for the title ten grants quite frankly my client would probably prefer if there were no total ten grants to any entity but at the very least we want to make sure that the taxpayers funds are they determined that they were not at all interested in this program because they were not providing title ten services in fact subsequent to mention community health requests were information the state of new hampshire  have current competition i'm not quite sure why that is so that's my question is going ask can you imagine a situation in which there is no current competition but the release of the information suppose it was you know coca cola trade secret and there was no pepsi the time the release would create a pepsi with the same product wouldn't that be harmful to coca cola even if it were monopol well then what i hear you saying is you're abandoning the position that you have to have actual competition at the time and accepting the proposition that if it really is secret information the release of it could create competition be competitive hard that's incorrect trade secrets were commercial were financial information or three different types of documents under exemption for you can withhold trade secrets under them for you could hold financial documents under exemption for you can withhold certain commercial documents but the commercial document in order to withhold the documents you need to have a showing of actual competition we're not dealing with financial documents we're not dealing with trade secrets and why would why would you could only be harm if there were presently actual competition because these documents are in application for federal grant funds this is not documents submitted to a regulatory agency such as the f a a to make sure the plane stay in the air these are documents requesting funding and when you have documents requesting funding the only potential competitors are those other people who would be requesting competitive harm would have to give an actual competitor the ability to under bid for whatever it is being and we're not dealing with a lease we're not dealing with something in which geographic areas throughout the country and the sixth year graphic areas were planned parenthood is operating in new hampshire have no other competitor those are the only why why title ten clinics why do we have to focus on instances what's the state of the record in new hampshire it's no i'm asking just the opposite question in vermont i believe that new hampshire does not compete for title ten grants in vermont and i'm not aware of what t competitively awarded anywhere in the country my understanding is that across the country the states that want to apply for these grants are awarded them first there's a preference for a new state or a county who then issue sub grants and if it is a state or county there is a pre award meeting where all the people who are interested get together and they basically split up the what happens in the other states in the country just in new hampshire there's a pretty meeting where the geographic areas are most of my question was why are we focusing on new hampshire so i was trying to get information about the rest of the country and what you're telling me the state of the record is going to  hampshire looked to try and find some competitor who did not provide abortion services and could not find any competitor to planned parenthood though the state of new hampshire had tried for a couple months competition in the marketplace regarding reproductive health care centers because what we're talking about is peak peonies operations manual this is the way that it runs a health clinic that's the documentary talking about we're talking about the fee schedule by which p p a any decides how much it's going to charge what it's going to not charge the full freight that's how it runs its health clinic there's no dispute there's a bit declaration from p p a he's executive this undisputed that in that marketplace there is competition there are other health clinics that operate regardless of whether they see title ten funding as part of their funding stream they run health clinics it to be given the blueprint of p p any and how it runs its health clinic to be given peak peonies feast schedule we give those entities that already exist and invented to see how their competitor is doing business that is substantial competitive harm there are actual competitors in the flaw in the argument has always been this myopic focus on is there competition was there competition in two thousand and eleven for a title ten grand i don't see how that's the question really at all that could be that you could answer that question but i think it's equally fair to say there's competition in the health care marketplace these documents how m p p a need potentially if they're released on their advantage  running those health clinics in that sufficient to invoke exemption for some suggestion in the grease that h h s changed its position on the manual h h s the way the procedural history of the cases about releasing this manual in the end it released parts of it so that's the procedural history that brings us here and did a contest identify any actual competitors including in the that in the health care marketplace there are community health clinics in new hampshire with which they compete and that you're referring to and so that's that read affidavit i think it's what the second page so that's the entire justification about this concern i don't know of a single company or operation that has something that it thinks is confidential that would not claim it could be harmed by competitor if the competitor had it in what circumstances what we forgive a charge that we've provided right but that's the kind of information i think common sense says businesses want to guard because if everyone does we're going to cut a customer a break that's the kind of information that i think commonsense businesses would want the doc the manual there is a discussion in what the manual is and that it is medical procedures or protocols ways of doing the any that prepared of america as the declaration explains has spent lots of you know years putting together i mean that's the fundamental blueprint could you imagine some you know for example the point rejected by personnel policies and i understand his point there you could imagine those don't go as much to the core of the business succeeding you know how much vacation do we give you know you could argue they do but they're removed and just didn't accept that argument what do you say to the point that in his position h h s is taking here preventing the public from knowing what federal government is paying for what it's being charged for medication services i mean i've never frankly judged i never really understood that argument i mean this this hide what the government's paying yes in other words the argument that i think i just heard from opposing counsel is the suggestion that the just position here is effectively keeping the pub from knowing what the government is being charged and that they're in fact maybe being charged much higher rates than you or i mean the only thing that i understand i'm not that argument is that the cleaning is that the charge for that h h s charges for a pill is higher than it can be purchased at wal mart but i mean i think you could say that every time you go to a doctor's office probably m m not sure that that really gets us anywhere that you could get it cheaper as to the why this happened my understanding is that the the executive council's position was that p p and he was not following the title ten restrictions on using funds for abortion related services in the that was the reason th i do remember reading that i thought also there was a there was a cost question was raised which would seem to me to have to come from something that was filed with this state and it may not have been a public document i think the walmart issue came from a document that was released as part of this litigation and a lot of dark by the way lots of documents were released by the department in this case and i do believe the bat issue arose from something that was released as that what i think that the real dispute here is what is the decision the tradition in the in the right to life treated as if there were one decision gets the date wrong for that decision it says that the date for that decision was august tenth but this is government decision making and there are multiple this isn't a long the way that a government agency makes when it's deciding a complicated problem like this so decision one is do we have a sole source grant at all should we have a non competitive bid given this unusual situation we find ourselves in the government needs to do side should we do that or should we do that that happens august nineteenth september thirteenth is when the government decides ok on a we've decided we're going to do a sole source grant and now on september thirteenth we decide we're actually going to issue that grant to p p and me in the meanwhile there are other decision of the government makes we're going to need to publicize this how we're going to do that are we going to do that by posting a press conference and government officials discuss what your communication strategy should be about this decision these are all different government decisions that require lower level government officials to communicate with higher level government officials so to paint with a broad brush and say there was one decision which the right to life want to treat as the decision to give it to to proceed in a say sole source gr model as the only decision i think is fundamentally wrong and once you get past that you see that each document that's in dispute is pretty decisional to a government decision to tell i did my part and so i that case the second circuit said in the memorandum the government agency said consistent with guidance from the u s department of justice the agency would now proceed in a certain way and the question was by saying that we  consistent with legal advice we got we're going to do x does that mean that now the government has to release the reasoning behind the lawyers recommendation and the second circuit said no because mere reliance on on the conclusion reached by the lawyer doesn't ordinarily mean that the government has adopted the reasoning of the lawyer the key from memory and them sets forth the government's reasoning it talks about the manual that sets forth why they can a replacement gradient and it provides it puts the text the bat and it provides that that's the basis it then says and we've consulted with general counsel which agrees that it's legal so we're acting consistent with that that's very much what it page two hundred six of the brennan case says is not enough for the kind of adoption or express incorporation that's required for release to essentially waive the attorney client privilege  justified and yet they're now saying the public cannot test that assertion to see if they say council told us it was legally justified and you are telling us no one in the public can test the accuracy of that assertion i think or h h s i think the distinction i would draw is that h h s provided its reasoning in the memorandum itself it didn't just say we're doing this because the lawyers told us to or it's a we're doing this because this manual says we can here's the way here's what says we can and that's what we're doing and we consulted with the lawyers told us it was legally murder that's the part when you take that it it seems to me they added that they could have just said we think we can do it here's our reasoning we think it's legally justified they could say all those things but they obviously wanted to get a bit more mileage in credibility to what they're saying by saying and by the way we actually checked with the city in o t c we are volunteering to tell you told us it's legal and you're now telling us the public cannot test the accuracy of that and i would say because that i mean but i told you why i think that so because the law of the line that's at least been drawn the second circuit where this has been most developed is conclusion versus rationale that adopting rationale is what brings it over the line in here where the agency gives its own rationale and says the lawyer conclusion is the same is not enough but i do wonder i do understand your point i take part of the recent wire saying that is that memorandum from legal counsel may cover wide range of issues including balancing all different legal discussion going on in it i'm in fact what eleven says category a lot is what we're talking about what category eleven says is an e mail from an o t c attorney to someone in another part of h h s giving that lawyers advice we don't based on what the bonnington except it's not even clear that's the g c opinion so i think that's problematic as well thank you that's right that when you have a reference to an ocean see opinion that that waves any privilege in fact second circuit says that when each he determines there is advantage by referencing a protected document as authoritative it cannot she'll be authority by which  it relies from disclosure and in the second circuit that passing reference was enough for the second circuit to order the schools or of the attorney client privilege opinion as to referenced in the public document and we would ask the court to do the same here it's important to remember that forward to liberty of process privilege all that gets shielded is what is you term an agency policy and if you look at the vonne index you just look only at the moment index the bone index discusses that the decision you made on after that date and it's clear from the fallen index was how are we going to let the public know about our decision how are we going to spin this so we have the least political fallout and that is clearly not protected by the liberal process privilege  the tax code decision the first circuit this court said that discussions of how to justify decisions already made are not protected by the liberty process privilege and so all of those never be a decision from which it could be anything pretty when what we're referring to is the decision deliberations within the government as to whether or not it should notify the public of something correct categories one through fourte rationale it is not a deliberation on how to notify the public and what should be told to the public correct it's only agency policy and the tax code decision is right on point on that  also discussed how they came to be open mic conclusion and if there are you know discussions of how you come to the ultimate conclusion developing that agency policy those could potentially be covered by the older process privilege but when you have the discussions slowly geared toward discussing what the public relations strategy is going to be that's not covered by deliberate process i haven't looked at the charitable trust filings for planned parenthood an interest only for two thousand and eleven two thousand and twelve they don't report the government grants that are already issue in this case the report a toll of thirty thousand dollars in government grants and so my clients are looking into that and trying to figure out how that math works but there was nothing in the charitable trusts that really seem to be applied to pull in this case so they don't have to file their fee schedules i assume they have to file their salaries of top executives that sort of thing correct but fee schedules and types of services provided that stuff doesn't get filed now with that level of specificity the salary schedule