good morning to call the case of the american civil liberties union new jersey versus the department your honour's concerns the f b i profiling of entire racial ethnic racial and ethnic communities for intelligence collection through a program that the bureau's own general counsel acknowledged raises serious civil liberties concerns y in response to the plaintiff's request for information to inform public comment on this program the defendants have made sweeping secrecy claims which the district court erroneously upheld the decision improperly allows the disclosures or stick the government produced approximately two hundred fifty perhaps two hundred eighty documents are that the plaintiffs don't contest there are seventeen documents withheld info that at issue in this notion that second secrecy issues that i want to point out for the courts before going into the substantive issues of the k yes is that contrary to the for us purpose and congress intent the court granted the f request for an entirely secret and one sided non adversarial procedure for resolving a critical claim in this case plaintiff's claim that the government improperly relied on the fully as exclusion provision let me ask you a question  one only in one place in your brief you seem to indicate you want us to review that in your camera presentation do you want us to review that or do you are you simply appealing the merits your honor we appeal the merits and we would like the court to review the substance of what the district court held but because the district court used the wrong procedure to educate that claim the property of lease is to bake a the district court's holding and should this court affirm which we hope the court will not it specially after hearing some of the issues and problems the serious negative consequences arising from the approach the district court took yes we would ask this court to review the ex parte information but that procedure raised for serious problems that should counsel this court to take a different approach and not to endorse the one sided ex parte categorical approach that the district court indors new please explain precisely how your procedure would work in the district court having been a district judge for many years i never had occasion to apply a glow more type procedure nor for that matter was i ever asked true view a declaration of the so is issued a statement indeed i don't know i know answer my question which is what is my procedure right the glamor procedure your honor is the one the government issues a response to for a request identifying the portions of the request that seek excludable records and identifying the specific exclusion at play of the three that are statutorily defined the plaintiff would then challenge that invocation by explaining why the terms of that specific exclusion wouldn't apply for example because the government had officially acknowledged the records at issue and the district court would then adjudicate and resolve that question of whether the government properly interpreted the exclusion provision a public opinion setting forth the reasons for whether or not the government properly interpreted the exclusion and that public opinion would allow the plaintiffs to then determine whether to people the basis for appeal and would form an adversarial briefing before this court that is precisely what courts have done for decades in the go more process since that you see circuit decided filippi versa the cia more than twenty years ago that that procedure is time tested and it's used routinely and the district court below didn't acknowledge that it even considered the proposal to apply that procedure to the exclusion contra context that decision was wrong for percival there is nothing in what i see yet even remotely pursuit all indicate that the purpose for the exclusions is to protect the existence or nonexistence of certain records all three of the exclusion provisions identified categories of records that if they're officially acknowledged the government can't rely on the exclusion and that is precisely what the sponsoring representatives of the of the exclusion provision indicated in their statements on the record they each cited the d c circuits decision in philippian indicated the purpose for passing the problems with the district court's adjudication and lays out the glamour procedure that we propose in particular the problems with the district court's procedure are laid out in that section as well you know one of my problems with your go mark procedure where you're saying the the agency doesn't have to say and the documents are covered by the exclusion because that in itself would be information the purpose i gather is to say if there were any documents covered by the exclusion they were properly excluded your honor the government asserts in their brief that they can protect the secrecy of their reliance on an exclusion right but that interest is protected when they don't have to acknowledge the existence or nonexistence of excludable records say he quit what concerns me is that this is basically an advisory opinion and we don't give advisory opinion you're saying if they have any documents that shouldn't have been excluded we want to know what they are and they're saying well all the if we we aren't saying if we had excludable documents  don't give advice real respect the way your honor we disagree for two reasons first the problem here is the government may be relying on exclusions with unfettered authority and what we seek is that in the right and in camera review by the district judge and are difficult district judges but we you know the system used to rule out lie upon these judges and i think we are justified in relying upon your honor with all due respect to district judges in the glow more process itself the issues the opinions issues are not advisory they constrain when the government improperly or properly relies on certain parts of the foyer to keep information secret we seek the same procedure here that public an adversarial process would did eight seventy nine s f sup second one district of d c twenty twelve and i cite that case because the district court followed precisely the procedure we propose here it adjudicated a would government glaum our response to the plaintiff's request for review of whether the government relied on exclusion there was public adversarial briefing prior to any kind of ex parte in camera in favor of public and adversarial as you'd occasion this is the d c circuits decision and fillip be the second circuit decision and welner of the ninth circuit's decision in the winner all of which we cite in our previous to take you to another issue  turning to the first issue in the case the f b i has use of public source census data about new jersey racial and ethnic communities and its public source because the information we the limited that's that very basis of their contention that contests your right to that that that's not entirely correct your honor the govern claim is broader they claim that we seek information about how the f based arguments that will disclosure of any information from any of the documents withheld info will reveal the scope or focus of investigating i swear this is a confession i spent a good part of my saturday afternoon carefully reading the hardy declaration rather than watching them and scrape say for a few moments which shows you were boring life by point me to something please in the hearty declaration that is less than specific information that you believe that not only that you want with that you believe is required by for it is your honor if you look at the record pages that joint appendix pages one thirty nine to one forty and there is there a description of public source data where it is appears in the documents or what proportion of those documents consist of public source data yet we know from the characterizations of the defendants bond declaration  index and from the partially disclosed note which is located at joint appendix six zero one to fourteen that there is some limited census data in the backgrounds section and the mapping section of these of the location that is information we explicitly do not seek all we seek from that background section is the use of census data and looking at joint appendix six zero one to fourteen particularly joint appendix six in shows how that information appears in the main intelligence notes ten and eleven that partially release note about the end the thirteen gang includes population statistics about seven or eight central american populations in various latino populations in new jersey disclosing simply the fact that the f b i is using latino community communities census data doesn't disclose anything unknown about any particular investigation of a disclosure of the category of information received will cause harm and to go back to just floaters question this information is of critical importance the f b i has as we've shown enjoined appendix in twenty four to twenty five a memo disclosed from michigan opened suspicion lists intelligence collection investigations about racial and ethnic groups the michigan document which we discussed in our brief shows that the f b i is collecting in using the data of middle eastern and muslim populations in michigan based on nothing more than an ugly substantiated assumption that because those communities share national origin and religion with unnamed us with suspected terrorist groups overseas that they are intelligence should be collected by the f b i we need to know which communities the f b i is targeting individuals what that's that's been judge clovers question all along and i'll and i'll echo it and also ask you the are not individual remedies at all that may lie for the specific individual victim of misused data suffice here and outweigh the communities are being targeted so the remedy of law that your honor envisioned isn't possible because the government has shrouded our program your honor the program a shrouded in secrecy and this case  they have but this for your honor is about finding out which communities the f b i is tracking without suspicion of wrongdoing and that is that well his authority isn't some of this  around because you don't have to have a smoking gun to know that there is a particular threat right and sometimes you have to look through where potentially the threat is coming maybe coming from an order to find it and so that you don't have a suspicion of a particular plot when you start your investigation is is that such a terrible thing your hon of violating the equal protection rights of american communities and according to the fifth amendment the f b i cannot target arabs in michigan or latinos in new jersey simply because they share a race or ethnicity with criminal suspects for whom there may be evidence give rise to reasonable suspicion that is impermissible and is that community wide targeting that this is seeking to uncover informations of the public can make comment on a deeply troubling f b i intelligence program this point is that leading to the six circuits recent decision and in reading your twenty jay is it your contention that the sixth circuit case is distinguishable from ours or wrongly decided were both your honor it is wrongly decided it is distinguishable only to be extent that that court didn't have before it the exemption won an exemption seventy issues here the point that we're trying to make about it excuse me why would they make a difference if they had had it before well i've just to answer the question about the legal issues that are different they shouldn't make a difference again to an exemption seven a claim to withhold the public source information that the plaintiffs speaks that decision was wrong your honor because the sixth circuit deferred to the hardy declaration despite its deficiencies which were similar to those we point here on our what we think they want i presume because if they were really just seeking the public source information they wouldn't need to file for a requested public information then they could get it what we think they're seeking is how the f b i selectively compiles public source data and how they use it in their analysis just as the sixth circuit recognized in its opinion and release of that type of information is problematic because it would take the goal of our response i'd like to address the growing more like response that they suggest would not work here for a number of reasons both their radical and i'd like to give the court a practical example as well that would be great let me start with the practical example the organized members of the organized crime unit so the head of the organized crime unit has each individual within that network submit a four way or request to the f b i asking for records in their name now let's say there are three members of the organization that b i says to number one in two we have no records and then they say to number three we cannot confirm nor deny whether we have records rather inconsistent response across right and that tells them right there that a seat two in exclusion for confidential informant was invoked even if they don't have to identify the exclusion and then the organized crime knows who the snitches they know who was informing because of that a different record different response let me take you back to the global are like procedure here because gives information to the requestor about kind of information that's an issue and here they also said you'd identify the particular exclusion well the problem with exclusions is they're limited to three categories ongoing investigation of confidential informants and  three for classified records pertaining to intelligence counterintelligence or international terrorism so that's a much smaller subset than the than the exemptions cover so right there by identifying that one of those exemptions exclusions is that issue that necessarily gives the requestor more information right there so in that sense it it's more than glow mark because it gives the requestor more information  and the other problem is according to the fourth statute records that are subject to an exclusion are quote not subject to the requirements of floyd and so it's more protect the exclusions were intended to be more  issue here and the sixth circuit discussed that also in its opinion and as a practical matter the sixer could also discuss this plaintiffs proposed procedure just gusting in hypotheticals and talking about what may or may not be an issue provides a less coherent review of the issue than the district court reviewing an ex parte in camera declaration which discusses the concrete information that issue  decision was right to force or yes we do we are on our own we would urge the skirt court to follow that decision isn't it isn't it very likely in every case that the excludable doctrines are also protected by one of the exemptions of documents in the excluded excludable documents are also protected by one of the exception that is often the case i'm not sure whether that would one hundred percent but that is often the case so if for example the government invoked an exclusion in an ex parte in camera and the district court decided that it was improperly  then you know the government might try and withhold it under an exemption nevertheless and in response to plaintiffs made an argument that there's a fear here about you know there needs to be an opportunity for you the exclusions because you know otherwise the government could be invoking them improperly well of course there is the opportunity for the district court to review that in camera ex parte declarations but also i would like to point out that exclusions are just very rarely invoked and in fact there is an internal process within the government that before an agency invokes an exclusion it has to go through the department of justice and have that exclusion  suggestion to reef invoke an exclusion reviewed before it can actually decide to go be excluded so there is also an internal process and again they are very rarely invoked if the court has no further questions o exclusion of like issue i'd like to briefly touch on the exemption the plaintiffs primarily point to as i think they said there was no allegation here of bad faith in terms of are you declaration but they point to what they refer to as the contradictory evidence in that the f b i has released similar information and the harvey declaration specifically addresses this at page nine zero nine of the join appendix and mr hardy explained that each office faces different threats in each domain and so each document needs to reread reviewed in the context of that domain and so even if there are similar information that may be released in one location that doesn't necessarily mean that that same document or similar information could be released in another domain and also there's you know sometimes an investigation may be ongoing in one domain it may be closed in another and an example of this is in this very case is the domestic intelligence know number nine which here the f b i released in part because they could  and it talked about how the their what they were able to release some of the public source information about the latino communities because of the fact that the  investigation that was well known that the m s thirteen gang was being investigated and so they were able to be released that information and i think that also shows that the f b i its good faith here in that where they could release information including public source information they did in the harvey declaration also addresses specifically the public source information and why you are released here because could not be could not be released because it tended to reveal the targets or the focus of that investigation and i point the court the joint appendix that one twenty seven to one forty one that's discussed in domain intelligence notes and also nine zero seven of the joint appendix discusses the public source information in the baseline assessment and the e c and nine ten to nine eleven discussing the maps and if this court upholds the exemption on the seven for the f b i to investigate a certain community for instance that the the republic where the so and i have said we have one with the investigate soley based on race or ethnicity but they can't open an assessment or investigate they don't have to have a particular identifiable factual basis but they can i investigate solely because the project is without anything if that's correct you're and that would be consistent with a policy that obviously something well short of probable cause is necessary probably something well sure were at least short of reasonable suspicion is necessary but there would have to be some information related to the prospect of crime were terrorism with a like that would permit the f in the context of investigatory investigatory documents would tend to indicate what you know the f b i is doing what they're investigating in terms of criminal targets and focus so the f b i care could down through the district work but instead raised it in one that is true your honor we raise it in reply we actually before raising a reply presented the proposal to the government the government rejected it and was given an opportunity to address their concerns and they s different than those the cia asserts in philip be and in the legion of death decisions implementing the law more procedure what's good enough to protect the cia's interest in protecting the secrecy of its records is good enough to c circuit twenty thirteen which shows how that public adjudication process leads to opinions that are anything but advisory but limit the government's interpretation of the foyer to improperly exclude information and that's a c l u versus cia seven ten s third for twenty two d c circuit twenty thirteen and to be clear we do not seek more than what glow mark provides we seek exactly the procedure followed by the d c district court in memphis publishing company which i cited earlier and what takes place in a c l u vs cia and on page forty seven of our brief the blue brief note footnote thirty we cite the statements of the congressional sponsors of the four year exclusion provision that talk about the grammar procedure and why the exclusion provision would authorize the f b i and law enforcement agencies to do what the review plaintiff's exclusion claim the f b i is asking for us to say trust us we have internal procedures that ensure we don't exclude documents improperly but the reason that the glow more procedure was created in the first place because the the second point i want to raise is that the public f b i itself invited public comment about the use of the f b i as new authority to conduct suspicion was assessment investigations of racial and ethnic communities and the public cannot provide that comment without the information plaintiffs seek in this for you this is a limited for you to inform the purpose of providing the public comment the f b i itself sought and that's why you're doing this yes your honor that is exactly as we had asked you why you're doing it yes your honor that is in our briefs and work it is an important point and we need to know how the f b i is using that authority and whether it's leading to abuse that is the purpose for which the point was passed my final point your honor is just to respond to the government's interpretation of demand intelligence now number nine the partially released memorandum in this case the point of that memorandum is not to show that pages or it is simply just to show that the granular information that we seek can be segregated  disclosed that partially released document is a window to the others that the government withholds in full and the limited census data and population statistics can be stripped out without any of the information about the identity  target witness statements all of the types of evidence that courts have in the past found or covered by exemptions are seen jesting that it was possible to do that with respect to no nine that no nine shows what's respect to the other notes in this case that's what the hardy declaration has said and the but isn't doesn't your point assume that all the ions are fungible it assumes that weigh on your information or will not reveal other information about investigation targets that could lead people to circumvent investigations and simply that statistics like what is on j a six a law then quantum olen population x number latino popular dominican republic population foreign born residents of honduras that is limited census data being used in these documents and that is all we seek we don't want information around it we don't want that resulting analysis of that information it's just the statistics that are shown on joint appendix six eleven very good thank you very much mr yuri thank you to both counsels a very interesting case it's obviously an important  arranged as well and i would do is i see just a week we can get we just want to have one prepared i'd also ask that within ten days you