morning morning please the court i'm sophia burrell presenting argument as appointed emphasis counsel for the appellant for gregory barca i'd like to reserve three minutes of my time for a battle i'll be discussing three issues presented in this appeal first the district court's decision allowing the office of professional responsibility neither to confirm nor deny the existence of records pertaining to a us a will or apart from those about his handling of mr  confirm nor deny the existence of other records related to a usa will or the government's invocation of exemption seven c is squarely foreclosed by this court's decision in jefferson and which the court held that the government cannot categorically claim that all potential records about a particular assistant u s attorney are our law enforcement records and are therefore covered by exemption seven c the government needed to make a more particular i showing in this case that any records that if they pertain to a us a will or if they existed would have been compiled for of professional responsibilities mission and its basic functions and then it simply stated the records here were pertain were compiled under this authority and our law enforcement records and there was nothing more that was particular to this case nothing about the kind of misconduct that opi i may have been investigating nothing that would have given the court more specific reason to think that opi are was investigating possible violations of law and what the court held in jefferson was that a more particular i showing needed to be made than a flat declaration that all records were law enforcement records so so where the allegations as here include a spectrum of conduct ranging from potentially just you know failure to comply with department policies or the u s attorney's manual all the way down to civil or criminal liability isn't it going to be the case that every time a p r undertakes an investigation with that range of possibilities a range of possible outcomes that is for the purpose of law enforcement under jefferson and so i think what the court said in jefferson is that because of p r can have responsibilities that range from violations of  policy up to potential criminal violations that that means that the government is required to specify what side of the line the investigation in any given case falls on and it's certainly possible that there are a range of outcomes and there's a potential for a criminal standards of the bar or to violate justice department standards on it and another they're going to do that in this separable steps so what do you do then when if you're doing all of those things at the same time well i think what the court  in rural housing is important here and what the court said in that case is there's a need to distinguish between routine oversight or monitoring of government employees on the one hand and investigations into law breaking on the other hand and the court recognize that there's going to be a spectrum there and it pointed out you know conceivably almost any investigation of the government's employees could turn into a law enforcement investigation but what you need is something more particular i want to ask you about the spectrum and i'm something i'm suggesting is that in fact they're doing it's not a range is that they're doing all three or four simultaneously right well i think in that instance there would at least need to be something submitted by the government that would say that there was at least a possibility that this with morph into a criminal investigation at least some lead about misconduct that they believe could potentially violate criminalizing that that was part of the scope of their investigation when they undertook at and i think it's important here to note that the government itself doesn't appear to have believed that a criminal investigation into something suborning perjury might have been warranted because when they stop be hearing before the first before the fourth circuit after mr barch goes direct appeal the government said we think anything that happened here with a way of speaking for all we are i mean it could very well be that the office unleashed attorney is employed says nothing bad happened here and i hope you are come to a different conclusion correct source so they certainly could come to a different conclusion but i think again it goes to the purpose of the investigation when it was initially could result in in civil or criminal penalties is in fact the language that the court used in rural housing to define what counts as a law enforcement investigation and so that this sort of recitation of just what the legal standard is i think doesn't really answer the question about whether that was what opie are was doing when it undertook this investigation it it's more of a conclusory statement to say these are investigations that could have resulted in civil or criminal penalties without specifying what types of criminal penalties and  was really looking at and determining whether there was potentially deliberate misconduct in this case the sort of thing that would allow an inference that that was a real possibility but if i could move very quickly to the documents that opi are produc category of records pertaining to that case and what opie are said again is that these are law enforcement records now even if the court were to accept the argument that these were compiled for law enforcement purposes there are compelling interests and disclosure here that should the the allegations here of already been made public his name has already been made public now he certainly retains some residual privacy interests again so he's not i mean he may not be a high level supervisor but he was the head of a unit o so maybe mid level or something like that correct yes your honor most definitely that is relevant to this case he was the head of the economic crimes unit in the office and as particularly relevant here this was in an office that the fourth circuit faulted for having a pattern of potential discovery violations and discovery of uses so he had a supervisory role in an office that the fourth circuit found had a troubling pattern of misconduct that occurred not just in this case but in several cases that the court had seen before it and in that type of circumstance when someone has a supervisory role i think there is all the more interested in knowing about whether that person committed this kind of to in this case and if he did what if anything i hope you are did about it knowing whether there's been a thorough investigation is also unsubstantiated yes your honor and the court the court delineated in faddish what the sort of threshold showing was that one needs to show to be able to show that there is a public interest and disclosure and what the court said is that the foyer requester has to  i don't think the court has required systemic misconduct in order to find a public interest in some cases where it has required disclosure like and start versus and b i the court didn't find systemic this kind of to found that that particular case there was something significant enough that w disclosure and in this instance you know i would say that systems are made up of people and this was someone who was in charge of a unit in this office and it's a it's a request for records that go to whether this person committed serious potential discovery he says so ms pea sounds like you're asserting a kind of two tiered public interest one is the public interest in whether the misconduct that the four circuit charges in its opinion actually occurred and related maybe they're not entirely distinct but i heard you are making a distinction relatedly an interest in how did the government respond and whether its response to that was adequate is that right that you have a two tier yes your honor i think it's  make a reasoned person think that there was something wrong and the grounds it seems like the four circuit he squarely gives grounds on on the first of those two tiers does does mr parker have to win did he need the favor standard with respect to the sort of related question of whether the government adequately investigated well i i wouldn't say that the the showing has to be sort of sliced up into a particular showing of wrongdoing with with respect to a was a real or and a showing that opi are somehow mishandled this and started for example the court did say that there was interest in knowing about the thoroughness of an internal investigation i think it's at the same thing in not in crew versus d o j and the requests for records on the case involving former congressman tom de lay said there's an interest in knowing about the thoroughness of an investigation and if i can just add it if i have one minute to or less than a minute to say this on the public interest here also warrant favor of granting at the very least  hear from the government the morning may please the court and josh closely on behalf of the f l e's in this case hope they are investigated specific alleged facts of a particular individual and those a investigation into conduct that was surely a potential violation of d o j rules such as if opi are investigated someone for not getting their appellate brief reviewed before filing is that how i mean what a re you only investigate if someone says i want this investigated for misconduct do you know up front where you're going to look at violations of internal rules bar rules civil rules criminal rules or do you have to get into it and see what someone may think it looks like just you know i failed to follow internal policy but then you could very well discover something more i've seen that happen sometimes i think that there are some instances where the conduct is just clearly of the sort that that would not lead to civil or criminal sanctions like the example i gave but in most situations you really get a lot of referrals i'm sure you get a lot of referrals for not checking with a supervisor before filing briefs i would think the supervisor would take care of that directly i don't think there's many of those i would think that most if not all your referrals would be pretty serious by the time something gets referred of p r i think that's ok that's when then when everything's going to be on the lease civil or bar you consider bar enforcement proceedings to count as a form of civil liability yes you're on the case of them just about anything that comes to you you can be able to say it's just always going  and i think it would typically be the case that it would be a law enforcement of us who need more than typically it seems like again if you're only getting i'm assuming liking the trivial referrals that the supervisor can handle herself but that you're getting things that are more substantial at which point my understanding is that there are some circumstances where we are is investigating purely potential violations of the policy things it doesn't make a determination up have seems like you might conduct an investigation differently if o p p r believed that they were you know really work criminal stakes and or going to court kind of civil stakes is that the case that oh p r internally has sort of any kind of you know points of determination things on the on the kind of internal investigations track looking at this is more serious track my understanding is that there's no differentiation and there's no threshold determination that this is a you know we're going to investigate criminal liability here that they investigate the conduct and that may or may not yield a very lengthy investigation because they may look at it and decide there's there's nothing there that it may evolve into something much more serious  find evidence of criminal wrongdoing and they make a referral to another office but so i think what's important for the exemption seven threshold issue is it's looking at the conduct not it's not that the agency makes some sort of determination this is a potentially criminal investigation they're looking at the conduct and they they follow the evidence where it leads but didn't we and then in rural housing there was some acknowledgement that to read the rule the way that you appear to be asking us to read it would the exception would swallow the roll that there really wouldn't be situations in which and i would agree it's not going to be typical what i think what if there were a situation in which an allegation of misconduct comes in to o p p r perry looks at all the information before and says this is really overblown this is not going to be a problem investigates it with that template in mind and lo and behold nothing illegal civil or criminal comes to light and you know in the end a report is made that indeed this was if anything a little bit of a lapse in judgement in that case would you be here arguing that that was protected by seven c as law enforcement of us if if the conduct that they were xiu is nothing law breaking about this but we will do an investigation of course if something serious comes up we will step it up but if but if o p p r as assessment from the outset is no where this is not going to be a violation of law because the referring entity might have thought so would you still be here saying this is a law enforcement vest occasion and yes and i think that gets to the added protections under exemption seven c compared to sanction six there's there's a stronger protection because of the nature of law enforcement proceedings they are there greater harm to person if they were associated with those proceedings and you can always explain that well those allegations didn't you know didn't amount to very much or there wasn't i bet that's a so that really relates to that to the privacy interest if it were as i thought that its view not the view of the program that he was was vindicated what privacy interests with the subject of such investigation have if the referral had been public basically you know impugning that individual's reputation and opi ours investigation clears that individual's our privacy interests on an individual's part of not having that i  privacy interests even if the the information is just favorable for one thing there could be an in an instance where someone is very dissatisfied with the fact that  agency that opi are did not find liability and that could be that could result in repercussions for the subject of the investigation where someone feels like you know justice wasn't done so whether the information is favorable or just favorable i think there's a privacy interest for curtis other than mr brill would say well that's a public interest there's you know that runs up against a public interest in the broader public and at least in the case like this where the four circuit says we have a problem we think there's a lot of of failings here and it leaves the public in a kind of cliffhanger position what does the executive branch do about that interest of that sort i think that it's difficult to say that there would be that that public interest would be significantly advance here where this is one isolated investigation there already a great deal of public information out there about this issue and also there's public information about o p ours investigations and that information is at the aggregate level it's not a not one da that it doesn't get to the public interest you know what i'm saying is the would open your did in any one case is not very probative particularly when there's already a lot of public information about o p s practices generally we decided to you know peer into will report in her brief that contains a great deal of aggregate level information how many matters are referred to the p r what were the outcomes and it has in fact even descriptions of  in which there had been sort of a public denunciation of attorney conduct in something of a q public interest or not and i don't know what it doesn't matter how well you did in other cases people want to know what you  opie our u s attorney refers to the matter to you know p r and the federal government tells the force or we're changing policies as a result of this situation i suffer me to think of you know many many stronger s and bloomgarden and in each of those cases the privacy interests were found to outweigh that public have announced policy changes by the government in those two cases and those three cases i don't i don't believe so and were  parole narrowed i mean back them up here was investigating civil and criminal liability whereas here now p r is really confined to this sort of internal disciplinary and maybe bar referral well there's a real criminal issue here is of p r just keep going along or does it referred to i g o p or would would make findings and if it believed there was a basis for criminal liability it would further that to either relate to the whole investigation or what it when it looks and opens the file and let's say it's becomes pretty clear or quite clear early on this is a criminal matter because of p r just keep going or does every for that criminal matter oh i ga i believe it's still it keeps going it makes its findings but it would prefer i guess the criminal portion about it would refer that to a united states attorney's office  investigation then be focused on internal it's find in the investigation of the focus on me presumably attending violations of internal standards or professional standards i'm not sure how or what internal disciplinary roles or maybe a bar referral on professional standards of advice and beyond that of his highness point to something else that says that over time oh my dear elsewhere i just to get clear what what do you think we should be looked into to determine whether the purpose of an investigation was for law enforcement should we love to the way the referral is fr or should we look to any possible consequences from the conduct identified in the referral or is there a purpose that attaches at the threshold our how how is one to determine what are we even supposed to be focusing on because it what i'm concerned about i'm just put out is that the way you frame the standard it appears that any conduct that's well i look back to the test from real housing which is the focus of it it talks about investigations focusing quote directly on specifically alleged illegal bax illegal acts of particular identified officials acts which could prove result in civil or criminal sanctions and quot and so i think the focus is on the acts what is actually what conduct is being investigated and if that is conduct that could if proven result in civil or criminal sanctions then i think that is of a law enforcement investigation and does open are typically when it begins an investigation and invest and interviews employees do they typically mirandize the employees and or prosecutorial abuse within the department of justice so even if there was a showing of something more broad generally these particular records are right according to the district court did not show would not advance that public interest but the public has if there has been if a reasonable person looking at the circumstances might think that there was pattern of a violation of law the public has an interest in knowing how the government addressed that either way right if it turns out not to be true the public would want to know that and if it turns out to be true the public would want to know that i mean it's not that there's an asymmetry where it turns out fourth circuit expressly found that there was no bad faith in another one the fourth circuit had determined that the document that transcript that had not been turned over to the defense didn't  some discovery filters say that in light of the four services asian it was making a number three or four of them as i counted policy changes yes so why then is there not a substantial public interest in understanding the opening our investigation and how this u s attorneys are the same usa as head of the environmental crime section was issue is i guess that the public interest question has two parts there has to be a significant public interest and it needs to be advanced by disclosure of the particular records at issue and so the question is how much is that public interest advanced by these records given that there's already public information there's numerous filings in mr barker's criminal case before circuits opinion the government's petition for rehearing what are those reveal about of the ars investigation particularly the party declaration that was submitted in camera explains that the documents on the are on the thumb drive if they were combined with certain public information could identify the fact that they were subpoenaed by a grand jury great thank you i think we used up all your rebuttal time but we give you back a minute  thank you so just a couple of quick points i'd like to raise it is the case that the cases that the government has relied on where the court has come out and said that there is an insufficient public interest have all involved with the court as characterized as isolated incidents and that was true in kimberlin it was true in bloomgarden and it was true in boyd and i think that makes those cases fundamentally different from this one where you had one substantiated incident where there are reasonable grounds to believe there was misconduct but also a pattern that was found by the fourth circuit by the net in this panel and that opinion and the connection between a substantiated incident of misconduct coupled with a broader pattern creates a public interest that should be sufficient to override any privacy interests at stake