good morning may it please the court i'm michael to cash in on behalf of plaintiff a palin edward toughly i'd like to reserve three minutes of my time in this case concerns the names of aliens who were released from the federal government during in during from detention during the course of removal proceedings they were released due to fiscal uncertainty today we're talking about whether these names may be withheld under the freedom of information act specifically the personal privacy exemption request and do you would theory under our theory right now we're talking about aliens i know we're talking about a more i think there is the names of order for the names of government employees once they're hired  there is a standard if you ask for their resumes if they're hired their resumes and usually those names are made public so under that type a standard on what especially the d c circuit has already concluded those names those resumes may be made available to the public if the question specifically for just names of those and to individuals that may have been convicted of a crime i think there's a balancing test there that we need to be don and it would be different than the balancing test that we would have here because i think the privacy interest for employees of the government that are put in high stress situations would be different then potentially be aliens that are at issue in th respect your honor our interest is a little bit different than that in this case the federal government said that they were holding on to the serious criminal offenders in releasing individuals that posed a last or no  no public safety threat at all and once that statement was announced and individuals were released the usa today this is going back almost three years did a study they wrote an article saying that  records they received contradicted what the government said that the individuals being released were not a public safety risk and that they were not criminal significant criminal offenders the usa today also said but them to gets too many details about all the crimes that were being committed and who they were being committed by because ice would not release the names of the individuals so mr toughly following seeing that usa today story wanted to see standards of ice and if the federal government were to say we will not hire anybody convicted of a crime to be a border patrol agent and there is information or belief a reasonable belief that border patrol agents that have criminal kicked to death and may have criminal background is that not something the public would be equally interested in the public would be interested in it but it would be a different standard then in a different theory than what we're arguing about today today we're talking about the standard that we set up in the faddish case that you weigh the personal privacy against you know whether or not there is sufficient evidence to warrant a belief by a reasonable person i mean a legit government impropriety has occurred and that's why we're  only six percent of the released detainees have ever been convicted of a significant criminal offense none of which was murder rape kidnapping aggravated assault of or offenses of that nature so that if it's only six percent which is a lower rate than the average american citizen what is it that that makes you feel that you want to know the names of all hundred forty nine people that you dangerous all drug trafficking larceny weapons offense domestic violence and you know smuggling so yes there's a wide range of crimes that were committed crimes were committed by almost fifty percent of the elements that were dangerous and they possibly could be you know judicial watch and mr toughly don't divide define what a crime it is oh no you don't that's that's the truth of the answer is yes most of them are traffic where the release criminals appeared and then the subsequent removal proceedings committed additional crimes while under government supervision who would have been removed from the country i'm trying to understand how would getting the simply google lexis databases some other databases to determine if these individuals have committed additional crimes it is possible the government in their briefs without citing of any evidence has said that at least some of these individuals have been deported their ways to access information especially in the world today with the internet to get a better understanding of who these individuals are so that we can go back to our original purpose which is see whether or not the federal government correctly told the american public that they were only going to release individuals that were not of public safety it was you got as far as i can tell you got everything you asked for except they wanted out the names so blacked out the names as  i know all of that you were working about with the release criminals appeared in any subsequent removal proceedings committed additional crimes while under government supervision i don't know what soon you were referring to while they were released  or have been removed from the country so you know everything you need to know about their records at the time they were actually released and so as i understand it you need the names just to search the  i'm not an expert but there are a lot of that information is available in the important thing to know and what makes this case different from the many cases that the government cited too such as ray forest service employee employees l or even the most recent one circuit case regarding the names of foreign military personnel in each of those instances there was an investigative process in place to research investigate see whether or not the government was following through on their promises following through on what their policy was and they were public reports being made every year in all of those cases and so because of that the courts there said there was more of a privacy interest in those individuals names and less of a public interest because the government was already doing that work would you listen if their example one of the things you were the names for is where they appear to me subsequent removal proceedings could you say as you stand here today that there is a there is a website that you would be able to find this information if you if you knew their names there is an opportunity it's not my understanding that there's a particular web site but there is a lot of information that's made available to the public they make the names confidential and removal proceedings so how would you get them from assuming that to be true sure i mean some of the time it's reported in the newspaper depending on who these individuals are had they committed crimes there would be a public interest in it those individuals would be removed you know there also was really a website that you could find where they committed additional crimes or whether they were removed from the country could you point to a specific website that you would be able to use to f information like this nexus provide arrest records chart charge and conviction records had they stayed in parts of arizona the local police fishel as you can enter names into various databases there that are all made available in the public in the sheriff's department in the police department you can enter individuals names and it will provide you information about their criminal background and we did some of that mr toughly did some of that along with judicial watch for the individual would they wish the removal is a little bit more difficult than if they had committed additional crimes while they were here you know this would also show had these individuals not committed any additional crimes had not been charged i'm not being convicted in the federal government was correct was being truthful when they put out their policy saying that they were not putting people back on the street that were a risk to the public however if they use names if one hundred forty nine nine names or at a minimum the sevent names of individuals that were previously convicted had they gone back out on the street while they were still in removal proceedings and continue committing crimes the public has a right to know that the federal government decided to release these individuals back onto the street knowing that they had been convicted of a crime before and there's a possibility that they were going to be the there's a possibility that they would command and be convicted of a crime and afterwards in your grief  impropriety might it be crewed what is the evidence that you have produced a reasonable person would warrant his belief that the government the alleged government impropriety might have  they had received information they reported that it contradicted the government's statements when the federal gov't when asked for comment from the federal government the federal government said they acknowledged the discrepancy and so the usa today provides us with that foundation and it provides us with the evidence based on their research that there is a reason that a reasonable person could believe that there was a legit government impropriety and so that's what we would rely on that interests at stake which the the district court we think properly found to be a significant privacy interest and the district court judgment was that the the interest of the requestor here criminal charges is something that is protected under one hundred four if there's other information that was given as to these individuals that pertains to their health situation their family situation and all of that would be possibly open to being tracked an associated with these individuals and the other thing that the the district court alluded to the potential for harassment of these individuals and this is something that this court has recognized as being a an appropriate and appropriate concern it's not far for harassment not and you don't have to document that it doesn't have to be an actuality so while we haven't placed all our eggs in that basket contrary to what civil b claim that is an important consideration and it is consideration which which entered into the thinking of the of the district who are the second thing i wanted to say  case you know we hear about whether the government was truthful or it's really not a matter of of truth or falsity it's a matter of criticism or contention about the judgment that was being exercised and we all know government officials and people in government positions make mistakes and make errors in judgment and what we what we were stressing in our brief is well what did the government know at the time it decided to release these individuals and that information has been amply provided to civil be so that they know just as much as logic certainly seeing what actually happened if you can track down what actually happened you know that might might you know help did the district court said it was kind of a marginal utility the core of the scrutiny though has to be what what the decision maker knew at the time the decision maker act that it's interesting and relevant and certainly the public would be interested in saying gee they released individual acts and then look what happened out there and doesn't that reflect badly on the judgment but the critical thing again anytime you're assessing responsibility is to look at what the decision maker sequenced so that you can determine is this a good policy in the example i get in for instance where they're going to hire five thousand new ice officers under reduced standards you might want to know if and they did it she's isn't that a legitimate interest to know what they do when you hire i saw fences with criminal records your honor it's certainly that there's an interest and that's why the district court talked about marginally remember that that process the question is the incremental value of the information that's been provided not that the information in the information may have some relevance but it is in for mentally and the balance of the serious infringement on privacy interests in this case is it worth it incrementally to to publicize all these names also this court has been very wary under the public other means of research and that information will leave this to us still other information and which again will shed light on what the government is doing and so on the farthest service case which we've cited and the law are the court in called derivative use so so for those reasons because it is a balancing test and this is an incremental some incremental help but only incremental and  well forget about the privacy interests look at the public interest in this again as a balancing process and the privacy interests there are serious and they need to be weighed properly so how would you distinguish union leader from this case opinion in the court said the evidence in union wieder was at least enough to warrant a reasonable belief that the alleged government impropriety might have occurred there were six people they were convicted criminals and the question in union leader was pursuing was why were these people at large so i think when one takes from one thousand years something like that if and my god all these people six people for him and we're at large and if we only can find out the names will contact state and local authorities and then the state local authorities may be able to tell us about interaction with ice which then would shed light on why i've did not move more expeditiously to get rid of these folks so it was a derivative use case but putting the derivative use aside the point is that there really was something there that the court excepted as a weighty interest that is why the one thousand years go by and this person was at large we don't have an thing like that here and so union leader if there are other problems with the union leader decision but accepting it on its own face  thank you i'm going back to union leader case or to touch upon that briefly you know the ninth circuit recently in camera nassi said that the first circuit how there was a public interest in the aliens identities because of evidence that the aliens had previously committed crimes or been order remained in the us such evidence was at least enough to warrant a reasonable belief that the alleged government impropriety might have occurred that's what we have here we have ilene's that were released while they were going through removal proceedings we have a usa today article and which was provided or built upon by federal records saying that the federal government there seem to be so the discrepancy between what the federal government said and the aliens that were actually released ice actually agreed with that acknowledged the discrepancy and so mr toughly wants to know if that also took place but the hundred forty nine aliens that were released in arizona with respect to the personal privacy it's information made available to all including many who might not have such high founded motives i think you can i think you can look at the motives of the requester and give significant weight to that i think court has done so in both the layer and the forest service employees cases and both of those cases the court specifically said that the derivative use that the only way that this information will be helpful to the foyer requesters is if they purposes for which the request of information is made you know reporters committee was also very different because the court there found that there was no public interest at all not for the rap sheet i mean we're talking about different things here now but nevertheless the sentence i read the supreme court whether the case was different or not doesn't matter i'm not sure why you resist it's obvious once you get the disclosure you know the only difference i can say were reporters committee was there was no public interest so there was no in that instance the supreme court found there was no motive for their four year requesters to get that information besides finding out information about the individuals whose rap sheets they wanted there wasn't a public interest at all to zero in this case the government has even said there is they believe that some public interest mr toughly thinks to greater public interest but those cases are very different i think you also look at the rate case by the supreme court and in that instance to the court found that there wasn't a real public interest in the names of the individuals that from haiti and also in that case they said that there was no way to find out any more information except for by going to contact those individuals here mr toughly has a public interest we think that public interest is to determine whether or not the individuals released in arizona were a public safety risk which would have contradicted what the federal government said and you know he wants to use the names to research and see whether or not the federal government was true to what they said he doesn't want to contact these individuals judy watch does not want to contact these individuals it's merely about getting into whether or not the government did what they said they were going to do and that what they did was truthful in correct and reasonable per person would believe that there is a strong public interest in that and