may please the court i'm will have from the department of justice on behalf of the da of the district court in this case erroneous lee concluded that a video that documents the entirety of a drug interdiction operation in one of the world's busiest hubs of drug trafficking activity wouldn't reveal anything new even to an expert about how the d n a investigates cried that conclusion was profoundly mistaken and the video at issue in this appeal exemplifies the type of record that exemption seventy was designed to protect now i should note at the outset that the record in this case does contain some sealed material and i'll do my best to answer the court's questions with respect to that material with as much specificity as i can without divulging anything but i think that it's fair to note at the outset that it stands to reason and should come as no surprise that a video that documents the entirety of a law enforcement operation reveals the techniques and procedures that the law enforcement agency involved applied during that operation and indeed i do not think that my colleague seriously disputes that fact i do not think that my colleague seriously disputes the fact that this video depicts law enforcement techniques and procedures and rather what my colleague argues is that various you tube clips and other videos found online reveal more or less the same thing for how to do the exact flight pattern and positioning of the plane  indicated in more detail and i think paragraph fifteen of the under seal declaration that we filed in district court the flight pattern that the government uses in filming clandestinely as opposed to filming without investigating international drug trafficking is by conducting this sort of surveillance and attempting at least for the bulk of the time of the recording to hide from view and so what the district court did with that and i think what my colleague on the other side argues on appeal is that this report pointed to a video that the d a disclosed to the plaintiffs in this case in a different way and that are involving an operation a jamaican operation and the flight pattern of surveillance aircraft is simply different and although it may not be clear to a lay person how those differ it would be clear to drug traffickers that i could give you from ation about how plane remains unseen during the period of its operation there's a question as to when that still relevant here given that we're now only talking about a portion of the video as i understand  but the government has an obligation to come forward with non conclusory explanations of what the video reveals and i'm left wondering after reading the briefs and i'm hoping the parties can help me as to to reveal than what was in the declaration so we certainly think it would have been appropriate for the district court to hear from the expert as i was watching the video again as we indicated to the district court we made a good faith effort  to identify with specificity in the under seal declaration all of the techniques and procedures in that you already shaded all information relevant to the withholdings andersen exemption seven it was in the declaration we did say that and we said that to the extent that the court had questions about the declaration to the extent that the court had questions as it was viewing the video we would be happy to provide an in person account and i think that the relevance of that fact comes out when in looking at the district court's opinion over and over again the district court says see things such as it was not apparent to the district court or it was not clear to the district court how the video would disclose the claims techniques and procedures and perhaps a specific example will help to illustrate the point so on in paragraph thirty eight which is at page sixty one and sixty two of the special appendix the da explained this is and is under seal declaration that he explained that an expert could determine the number and the type of aircraft that were used in this op ration and conveyor for estimate the number of law enforcement personnel that were used in this operation and the district court responds to that and i have to paraphrase because part of the discussion was redacted but the court's response to that was essentially that it was not easy to determine the type of aircraft or the number of aircraft from the district court's review of the video and in doing so the district court appeared to make a factual error about the number of aircraft depicted and so we think that that just betrays a sort of compromised analysis of the video and again you know we did our absolute best to provide as much specificity as we could in the underseal declaration and to the extent the court had further question to the extent that certain things were not apparently said as much as you could what limited you saw in the under seal declaration nothing at us that's right so there are two there were other declaration corded has as much as you have that's right that's right and so we believe that all of the material is is there in the under seal declaration which we have provided to the court on appeal on you say use a military a sealed declaration there explaining that the throughout the video i was in that that are redacted by this record so so yes i do want to clarify that the discussion that i raised earlier was not with respect to the surveillance aircraft but with respect to the aircraft that were depicted in the video itself but yes the tele metric data was redacted ultimately by the district court although tentatively i think that there's a footnote in the district court's opinion that suggests that the court is willing to reconsider that judgment  and we think that certainly at the very least that information which reveals the location of the target plane or the location of the surveillance plane with respect to the various targets certainly that is material that ought to be redacted and  and again i so so we have identified not just the surveillance techniques and procedures that are at issue in this case but also you know we have a video here that documents a law enforcement operation and  documents and it shows that number and type of aircraft that were used that shows the on the ground techniques that were used during this you know extensively planned military style operation and it should come as no surprise that a video of that type would indeed reveal information that is sensitive well let me let me ask this i mean you thank you and talk about a paper which makes some sense to me so maybe this this will help so the argument made from that case i guess it's a district court case is is that is widely known that polygraph examinations are used in law enforcement so there's nothing that would fall with these and nothing to protect as to that fact but still reveal it revealing us the specifics as to a specific polygraph examination might reveal would reveal and should be protected information about how the law enforcement structures a particular examination maybe of a particular personality type and the pattern of the way in which the questions are asked of their specifics and the depiction of the polygraph would be all those things what i'm having difficulty with is i understand the concept that the  revelation of a law enforcement operation and interdiction effort potentially dangerous and interdiction effort involving multiple aircraft and many law enforcement personnel  the public depiction of that could reveal information about the way law enforcement planned such operations that could be confidential but i am i am not as easily understanding from the affidavit and perusing the video what you what is depicted on the video that would be an expert's i reveal confidential information that is not already publicly sure so i'd be happy to address that in as much detail as i absolutely can so then the video will reveal the number of aircraft that were used in this operation and the type and that is not information that the da or the federal government has ever released and with it drug traffickers or other experts could estimate the number of law enforcement personnel to expect in such an operation and it also shows what the priority of law enforcement will ask up on that one for just a moment sooner the number of aircraft involved in the number of personnel that's why is that  why is that information that is and it should that is not specific to this operation and of no it's not on forcemeat technique at all it's just something individual about this particular law enforcement operation and meaningless outside that context well a respectfully that's just not correct that the way that the d a plans for this type of operation is it is extensively planned and vero are certain techniques that are used and one of the techniques that are used is sort of the number of personnel and the number of aircraft assets that are dedicated to the interdiction effort and the declaration explains that a couple of things that first if this information becomes public that will constrain the options of the da in future operations because drug traffickers will know what to expect and so da will have to change its plans accordingly and and design i perfect operations accordingly and in addition it will if if if the government doesn't change if the da doesn't change its operations then drug traffickers or others will know what to expect in this kind of operation the element of surprise will be compromised and you know real law enforcement interests will be at risk and that i think should give the call to the court great pause and it's the to do another drug interdiction operation of that kind so in that country there's an interim unary so i appreciate the question and i want to be absolutely clear about the jamaica video which i think is the video talking about you're speaking out so this is a video that depicts no american law enforcement activity whatsoever it's a video that the plaintiff mr schwartz in this case described in an article as the efforts of jamaican law enforcement to extract a dangerous man from a residential neighborhood so it doesn't depict any american law enforcement activity and the surveillance craft which is i think what the district court found to be relevant made no effort to hide from view was in broad daylight it was it made no effort to hide from view and that is in contrast to what was true in this case which is that it reveals american law enforcement entered action efforts and the aircraft had a different flight pattern because it was attempting to hide from view so that's the jamaica video and there are others that the district court thought were relevant and again i urge the court to review those videos because they just are it is apples and oranges i mean you have you have i think six you tube clips that depicts no law enforcement activity at all just depicts various drug suspected drug traffickers under forms of surveillance there's four videos i think that show a brief clips of high speed chases on open water and then there there war the narco wars clip which the district court described as the most relevant which shows literally nine seconds of footage nine seconds of surveillance footage of a honduran police vessel firing on suspected drug traffickers in open water and that is simply nothing like the operation in this case and any techniques and procedures that one could discern from watching those brief clips do not reveal anything close to the breadth and scope and type of information that would be compromised upon the release of this video and the other you were listing the elements so the first was the number of aircraft and the number of law enforcement personnel involved in the operation would be revealed and we're focusing not just on the portion that the district court has ordered to be produced right what other information should we be focusing on the video so i think critically it shows what the priority of law enforcement was  aircraft that remained airborne the aircraft that landed what was the role of the aircraft that remain airborne what was the role of the aircraft that landed so all of this it is information that one can discern from the video it's information that has never been released and it's information that if it got into the wrong hands could do real damage to the d e a s logs or anything more specific about the rule of the aircraft that landed in the role of the aircraft attendant but i'm constrained again in what i can say in open court it is in our declaration and i would point your honor to i think it's paragraph thirty eight of the under seal declaration which talks in a little bit more detail about the different rules of the aircraft here it sounds like you're arguing for a  what american personnel do and drug interdiction that just can't be disclosed i can see with the differences between having airplanes and having vans or having bodes whatever it is you have if there are american personnel it will be showing what it is they do and what it is they do is going to indicate how they plan to do things so i just don't know i mean your  term at airplanes i understand you're talking about these people on this place you're talking about it's not been but the thing is any any drug interdiction measure that and also american personnel will show what american personnel do and from that people can deduce what american personnel intend to do there for their methods so i certainly don't mean to be making any sort of categorical argument the argument that that i am making here is that when you have a video that documents the entirety not a snippet but the entirety of a sensitive law enforcement operation on that it does stand to reason that that will reveal information and new extent that video or any other agency record would reveal new information about how the da or another law enforcement agency investigates crime and information that if it fell into the wrong hands could be used to harm those interests then we are then that is absolutely right that that is protected but i do i do want to emphasize the other side of that coin which is that if the analysis applied by the district court in this case were appropriate and correct that is if you could say that while in this video we have a helicopter and in this video we see a boat and in this video we see some drug traffickers and if you put them all together then that more or less reveals what we have here if that were the appropriate analysis then it would be hard to imagine any video of a law enforcement operation that would not have to be disclosed and there is a real purpose why d n a and other law enforcement agencies record this type of thing it is to gather evidence in in their investigations of international drug trafficking activity and hand and how they plan to use and it's it it is it depends it depends is the answer depends on the operation whether or not it's used in court or whether or not it's just used to follow up here's a further leads used in court it's been made well but it may well just be used to provide further leads to law enforcement and that's one of the reasons why law enforcement agencies record this type of thing another reason is to apply lessons learned is to have a record of the operation that they can review afterwards and learn from in planning the next one and if the district court's judgment releasing the video essentially in its entirety were affirmed then you would be putting law enforcement agencies to a choice and the choice is that you can decide that you do want to have this potential evidence and you do want to have this recording but you have to be willing to release that information to the very targets of the activity or make a disclosure as to what those techniques are and and how they can be detected in for us to take to be able to take judicial notice i think the general rule is that yes i think particularly in a for you case where the information is designed or where the information is invoked to show that certain withheld records are already in the public domain yes i think that it's appropriate if that information was available at the time of the district court proceeding we take it take additional notice at any time so long as  to be adjudicated facts but even if the court does take judicial notice of them that we think that they're largely cumulative of the information that's already in the record they don't again like the information record they do not reveal anything close to what's revealed in the records here i just asked one other question or maybe a couple questions you made one set of arguments about the tracking plane's altitude positioning your speed distance from a target and the years speed altitude and location of the tracked plane and i as i understand it that's all somewhat beside the point now because the plaintiff is not seeking that portion of the video so i think that some of it is has been mooted out by the fact that the that the plaintiff is no longer seeking the portion of the video that just tracks the target plane but in the same way that there are surveillance aircraft or that viewing the video shows sort of the relationship between the surveillance aircraft and the target plane after the drug traffickers land the video does show the relationship the spatial relationship between the surveillance your craft you can well i'm not totally sure what your honour's referring to with respect to other aircraft there's no indication from the video that there's other drug suspect a drug smuggling aircraft but with respect to the american aircraft and yes that's right the video does show the sort of spatial relationship between the surveillance craft and the american and when you say spatial relationship is that is specific could an expert discern more about that spatial relationship than a lay person and yes that's right and that is again in the under seal declaration which essentially says that this provides suspected drug traffickers of a road map our map of where to look to determine whether they're being whether they're being surveilled thank you enforcement activity is unprecedented it is untethered from the text of the freedom and information act or exemption seventy it is in untethered from applicable precedent and it is antithetical to the policy that the freedom of information act was designed to promote it is d's burden to establish that the video is exempt it is not mr schwartz is a burden to disprove da's claims it isn't d's burden to identify segregate bill portions of the video that's in five fifty two b it is not mr schwartz's burden to limit the video to portions that he wants and mr short's has made it clear to deviate from the outset of this case that he is interested in a limited portion of the end of the video depicting the use of deadly force against time durrance but mr schwartz is not in a position to pick and choose what parts of the video he wants to see without seeing the video moreover a court reviews the government's whole withholding did no vote not in deference to unsubstantiated conclusions about what the record will reveal and if i'm not sure what i'm not sure that's right and i think the text of exemption seventy is very helpful here da in its brief relied on in one nine hundred eighty five case interpreting the national security act to reach the conclusion that exemption seventy ad to be broadly construed and that's the term they use that it should be broadly construed that is in the face of abundant supreme court precedent and i think a more helpful case for this court to look at is miller and miller's helpful because it says not only are exemptions to be narrowly construed but they are to be exclusive of one another and exemptions seventy protection law enforcement records that would not might or possibly but would disclose and that means making something that is secret no longer secret techniques and procedures and judge or a cop sitting by designation in the lowenstein case explain that those are technical or particular ways of going about an investigation so you look at the text it does not simply say law enforcement activity because that would encompass all law enforcement activity or virtually all law enforcement activity would it confronted an argument by the department of the navy route involving exemption two that is remarkably similar to the argument that d e a s providing here a that if this record is released it's going to compromise the health and  personnel but that's covered by exemption seven and also said this just to be protected because it risks the circumvention of law but the circumvention of law is not an inquiry for techniques and procedures in the circuit and it is an inquiry in the d c circuit and that's a distinction you're not disagreeing with that logic decisions like hyper which makes some sense to me and i'm not sure it's made out on the basis of this affidavit but the mere fact that we know that there are things like aerial surveillance that we know there that there is drug interdiction that takes place in other countries that we know that lots of law enforcement people are involved now we know there may be more than one aircraft doesn't mean that watching an a efficiently and minimize harm to people and in the area particular types of surveillance they use the capabilities of cameras when used in an operation you could reveal a video could potentially  i think the argument is that the revelation of law enforcement investigative practices will have could have other these other harms but they're focusing on these are their argument has to be because i agree with you this is the only one they're making and they have to make it that they're saying that there is there are secret ways we do these broader things that are revealed on this video we it's difficult for us to address the specifics not having seen the video but we think it's a very difficult showing to make it would be to us if this court were the first court to find that a video depicting public law enforcement activity was protected under exemption seventy there is not a single case cited by da protecting a video on that equipment that's used in surveillance but seen one horseman do its job that's covered by exemption seven an exemption seventh and moreover the fact that if you look at that text of exemption seven exemption seven a exemption seven c exemption seven exemption seven f they all start with could reasonably be expected exemption seventy says wood so it really has to they have to make a positive showing that this would be disclosed not just ok you see if you airplane's that shows you how we do our job and again we don't think there's any real risk that the e a here because they can invoke exemptions of enough for exemption seventy if they feel that's a concern and that's what justice kagan addressed in moner you call this public law enforcement in the open at least in terms of when there's interaction certainly with non drug traffickers as there was here and there are a number of bystanders in the village mr schwarz limited his request for the video to x it to keep out the first two hours were as far as we know there was no use of his really only interested in the combination that's correct accounted for you you don't have to go this far to make your argument but if you're saying public that would mean any time law enforcement decides to make a video of anything for training purposes a swat team response to a home search warrant is executed that that is because there were other people around there's no possibility internal that's not previously known that is secret is made public by the video not something else and that's why i think our case and the evidence that we've submitted is much much stronger than  just a few points in response on first picking up on your question judge jacobs i think that much of the issue between us is that mr schwartz begs the question he begs the question saying that this information is public and and our position is that's simply not the case that nothing about the records that mr schwartz has pointed to makes any this operation public or any comparable law enforcement operation public  second judge livingston you mentioned a paper a couple of times and we think that that is the right way to think about this case that yes at a certain level of generality the fact that the da interdict struggles is well known the fact th interdict drugs in central america is known but just isn't piper the fact that the f b i uses polygraph exams is well known the question is whether or not revelation of this particular record would reveal anything new about how the government investigates crime and in this case we think that that is plainly correct and finally i do want to emphasize that we do not claim entitlement to deference in this case and we certainly do not claim or believe that courts lack the institutional capacity to make these sorts of judgments our argument is simply that the district court of viewed this video in terms of what was apparent from the video to the court rather than in terms of what the d a noted would be a parents to a suspected drug trafficker and as i noted earlier you have a declaration before you that says that if this type of information is released to the public that will harm the element of surprise future operations constrain law enforcement's ability to plan a future operations and that should give the court great pause and it is what exemption seven he was designed to provide there are no further questions thank you very much thank you both of your arguments the court