 Ladies and gentlemen, welcome and thank you for joining 2021 Sunshine Week at NARA. Before we begin, please ensure that you have opened the WebEx participant and chat panel by using the associated icons located at the bottom of your screen. Please note all audio connections are muted and this conference is being recorded. You are welcome to submit written questions throughout the session, which will be addressed at the Q&A session of the meeting. To submit a written question, select all panelists from the drop-down menu in the chat panel, then enter your question in the message box provided and send. If you require technical assistance, please send a chat to the event producer. With that, I'll turn the webinar over to David Ferriero, Archivist of the United States. Please go ahead. Or Alina Simo. Yes, good morning, everyone. Good afternoon, everyone. Rather sorry. This is Alina Simo. I am the Director of the Office of Government Information Services. I want to welcome everyone this afternoon. Thank you all for joining us virtually at the National Archives today as we kick off our celebration of Sunshine Week 2021. Whether you're joining us by WebEx or the NARA YouTube channel, we welcome you. I hope everyone has been staying healthy, safe, and well. As some of you may know, OGIS results void disputes, identifies methods to improve compliance with the statute and educate our stakeholders about the void process. And we're very excited, once again, to help David Ferriero, the Archivist of the United States, host Sunshine Week at the Archives. It is hard to believe that one year ago we had to cancel our Sunshine Week events due to the global pandemic. But if this past year has taught us anything, it is that we can adapt to changing circumstances. And we have been successful in hosting numerous virtual events in March 2020. Each year, we honor Sunshine Week by promoting dialogue about the importance of open government and access to information, values that are central to the mission of the National Archives and Records Administration. We have put together an exciting program this afternoon, and I particularly please that we will be bringing viewpoints from both the judicial and legislative branches. Please visit our website, archives.gov.org, slash OGIS. There, you will find more information regarding today's program, including speaker biographies. This will help maximize the time you hear from all of our speakers today. A few brief housekeeping items before we launch into today's program. Members of the OGIS staff will be monitoring the chat functions both in WebEx and the NARA YouTube channel throughout this afternoon. We will leave a few minutes at the end of each segment for audience questions that you may type directly into the chat function of either platform. If you experience any technical difficulties while participating in WebEx, please feel free to chat our event producer for assistance. On the YouTube channel, our OGIS staff will do their best to assist you with any technical issues. Unlike other public events, OGIS has hosted in the past. We will not be accepting questions via telephone, and we will not take a break. Now, it is my honor and pleasure to introduce the Archivist of the United States, David Theriault, who will officially pick off our program today. David Theriault was confirmed as the 10th Archivist of the United States, on November 6, 2009. Prior to his confirmation as Archivist, David served as the Andrew W. Mellon Director of the New York Public Libraries and held top positions at two of the major nation's academic libraries, MIT in Cambridge, Massachusetts, and Duke University in Durham, North Carolina. He earned his Bachelor of Arts and Master of Arts degrees in English Literature from Northeastern University in Boston and a Master of Arts degree from the Simmons College of Library and Information Science, also in Boston. Since early in his tenure, David has committed the National Archives to the principles of open government, transparency, participation, and collaboration, which are the very values we are all celebrating today. David has also been a constant supporter of OGIS and the work that we do, and we are extremely grateful for his distinct support and leadership. Please join me now in welcoming the Archivist of the United States, David S. Berio, to kick off today's program. Thank you. David, over to you. And greetings from my office at the National Archives building on Pennsylvania Avenue here in Washington. A year after the COVID-19 pandemic forced cancellation of Sunshine Week events across the country, including here at the National Archives, I recognize the difficult times we've all faced over the past year as we've distanced ourselves from one another, juggled professional and personal obligations, and grappled with national and international unrest and uncertainty. Sunshine Week is an annual nationwide celebration of access to public information, mid-March that coincides with the birthday of the fourth President of the United States, James Madison. Tomorrow, March 16th marks 270 years since his birth, and it's particularly fitting that we at the National Archives celebrate Mr. Madison. Among the many treasures of America's past and the holdings of the National Archives, are two documents that Mr. Madison played a pivotal role in drafting and promoting the U.S. Constitution and the Bill of Rights. Mr. Madison was largely responsible for the proposals guaranteeing freedom of the press and ensuring jury trials matters that are near and dear to today's program gifts as well as to our democracy. In a letter penned in 1825, Mr. Madison said, the advancement and diffusion of knowledge is the only guardian of true liberty. 141 years later, in 1966, the 34th President of the United States, Lyndon Baines Johnson, echoed that sentiment in signing the Freedom of Information Act into law. In his bill signing statement, President Johnson noted, I have always believed that freedom of information is so vital that only the national security, not the desire of public officials or private citizens should determine when it must be restricted. Today, government transparency remained as important as ever, both within and beyond the FOIA framework. Our National Archives staff works to make access happen, not just during Sunshine Week, but each and every day, even during a global pandemic. Despite teleworking full-time, staff members from our Office of Research Services are responding to reference requests, preparing and submitting digitized files and metadata for upload into the National Archives catalog, among many other tasks. Mission Essential staff members in our National Personal Records Center in St. Louis have regularly reported to work throughout the pandemic to access paper records often needed to support veterans and their families with urgent matters, such as medical emergencies, homeless veterans seeking shelter and funeral services for deceased veterans. These exceptional National Archives staff pioneered alternate work processes, incorporating physical distancing and other protective measures to ensure a safe work environment while providing this critical service. As we work to cultivate access to important government records, the National Archives also continues to set the pace in the government-wide effort to modernize federal agency recordkeeping and transform to a fully electronic government. Since the pandemic started one year ago in our Office of Government Information Services, the federal FOIA ombudsman has responded to more than 4,000 inquiries from requesters and agencies seeking assistance for the FOIA process. OGIS has published seven compliance assessments on topics as wide-ranging as agency communication with requesters during the pandemic and proactive posting of documents on agency FOIA websites. OGIS connects with customers many other ways, including through the FOIA Advisory Committee and in public events such as this one. It's a special treat to welcome the Honorable Judge Royce Lamberth of the U.S. District Court here in Washington, D.C. Judge Lamberth is a longtime friend of the National Archives, and in pre-pandemic times, frequently presided over naturalization ceremonies as immigrants have taken their oaths of U.S. citizenship in front of the Declaration, the Constitution, and the Bill of Rights our nation's cherished Charters of Freedom. Today he is joined by his biographer and former law clerk, Adam Perlman, to discuss open government and legal landscape. Following the conversation, another friend of the National Archives, Senator Patrick Leahy of Vermont, will join us in a recorded message. Senator Leahy, who chairs the Senate Appropriations Committee, was elected to the Senate in 1974, the same year that Congress amended FOIA in the wake of a Watergate scandal and several other court decisions. In his four-plus decades since, he's led every congressional effort to reform FOIA and is a true champion of the statute and of government transparency overall. Finally, we'll close our celebration with a panel of open government experts, continuing the discussion about U.S. transparency. I'm pleased to welcome Michael Takesha of Judicial Watch, Katie Townsend of the Reporters' Committee for Freedom of the Press, and Alexander Perlov-Giles of Gibson Dunn Crutcher's Media Entertainment and Technology Practice and a member of the FOIA Advisory Committee. Their discussion will be moderated by Kirsten Mitchell of OGIS. So happy Sunshine Week. I hope you enjoyed today's program, and I turn the microphone back to Alina. David, thanks very much for that and see the after-conclusion. And we're right on schedule, so I'm going to continue our celebration of open government, introducing our first event on our agenda. I know you all share my excitement in hearing from senior United States District Court Judge Royce D. Lambert today. Judge Lambert has served on the United States District Court for the District of Columbia since 1987, including as the presiding judge of the United States Born Intelligence Surveillance Court from 1995 to 2002 as Chief Judge from 2008-2013 and since 2013 as a senior judge. Most recently, Judge Lambert has been assigned as a visiting judge for the U.S. District Court for the Western District of Texas, which makes sense since Judge Lambert is a San Antonio native, having earned his BA from the University of Texas and an LLD from the University of Texas School of Law. We owe our gratitude today to Adam Perlman, Judge Lambert's former locker for pulling together the segment today. Adam himself has a distinguished resume. He has a national security law expert with many years of experience, both in the executive and judicial branches of government. He has a J.D. from GW Law School and a BA from UCLA. I was particularly intrigued to learn that Adam speaks and reads Portuguese, but we hope the conversation with Judge Lambert today will be in English. Please join me in welcoming senior Judge Royce Lambert and his former locker, Adam Perlman, for what is sure to be a fascinating conversation regarding Judge Lambert's judicial legacy. Over to you gentlemen. Thank you. Thank you, Alina, and I can promise it will be in English today. There are clips of me in Portuguese out there, but we'll spare everybody that's suffering. Thanks again, Alina. Thank you, Mr. Ferriero. Thank you, National Archives, and Alina, your whole team at OGIS. On behalf of me and Judge Lambert, I think it's fair to say we are both honored to be here. As recently as last week, the Washington Post called Judge Lambert a fiery presence on the bench, and I think we'll probably see a bit of that today. As his biographer, I might have certain biases, but one of the questions that I've been asking people who I've interviewed is not some sycophantic exercise of is he the best trial judge on the bench, or is he the nicest or is he the most eloquent? What I have asked is is he one of the most consequential trial jurors in the United States in the last 50 years, and not a single person that I've spoken to so far has quarreled with that proposition. His cases touching on government transparency are but one reason why Mr. Ferriero himself once mentioned to me that at least at some point there are more published FOIA cases than any other judge. He's in the Freedom Forum Institute's National Freedom of Information Hall of Fame. And of course there's more from the law that he's created in national security cases with respect to the handling of classified information or to his defense of or adjudication of some of the biggest civil suits brought against the United States to some key rulings with respect to the very secretive grand jury process. Today we get to publicly talk about some of these issues and perhaps preview some of the stories and perspective that may ultimately appear in the book. A couple of quick ground rules. We have about an hour and plan to save some time for Q&A, but obviously won't be discussing any matter that's currently in any stage of litigation. Nothing said should be construed as suggesting how Judge Lamberth might rule in any particular case in the future, nor as any opinion that I might offer today necessarily represent the policy or position of any department or agency that I've happened to work for. And I figure we'll just kick this off that because it's Sunshine Week, let's begin with a case that's implicated and needs in a small way, the Sunshine Act. Judge, can you talk to us about your 1993 case of Association of American Physicians and Surgeons versus Clinton? Well, it was one of the first cases I had involving the Sunshine Act. The advisory committee act was intended to be open and if you did not have all government employees, the meetings had to be open and if they were not open, the minutes had to be public and when President Clinton first came to office, he decided to set up a task force to decide health care should be reformed, something that ultimately happened under President O'Biden years later, but when President Clinton first took office, he set up a health care task force and he made the first lady the chairman of the task force. She was not a government employee, so it was clear to me when the case was brought by this Association of Physicians and Surgeons that she had to have the meetings open to the public and the minutes had, the meetings that had already been held had to be made public and the statute was crystal clear and so I ordered that the meetings be open to the public and the meeting minutes be made public and it was like a huge upsetting of the apple cart for the Clinton administration, it was I had ruled, they took office May, January 20th I had ruled by early March that all this had to be done. They took an emergency appeal and the appeal was decided by May, so it was going a very fast track. Interestingly enough, the court of appeals reversed me. It was an interesting experience for a district judge. I had been on some time by then and I was quite confident that on the law I was right. Twenty years later I still think on the law I was right. The law was crystal clear if you're not a government employee this is the way it works. The court of appeals found that she was the functional equivalent of a government employee. Obviously the first lady was unique but she was not a government employee. The conflict of interest laws did not apply. All the normal things that go along with government employment like conflict of interest laws and statutory requirements that would apply to who could meet with there and who couldn't and all those sorts of things did not apply. The groups did not have to make disclosures since she was not a government employee. All those sorts of things but the court of appeals actually ruled that she was the functional equivalent of a government employee. They reversed me and said this could all be known as secret. You can imagine that there was quite a consternation and ultimately I was blamed when the healthcare test went down in flames and it was one of the major failures of the new Clinton administration and it was a complete disaster in public relations for the new Clinton administration that the whole healthcare task was founded on their lack of transparency and their refusal to do this out in the open and the way they went about trying to secretly develop a plan to re-connoiter the whole healthcare system and it was done when the Obama administration came in and they then did it all in the open they then ran into some trouble because they couldn't get a single Republican to vote for it so it was also a controversial plan. It became known as Obamacare because they didn't get a single Republican vote but they got it through. It was voted through contrary to the Clinton plan but in any event it was a major setback for the Clinton administration in secret and it didn't succeed. I was never in doubt about what the law was I was always in doubt about why the Supreme Court refused to take the case but obviously it was a very political case in terms of what is the role of the First Lady and what does that mean just rewriting the law to take care of the First Lady's position which the Court of Appeals did very conveniently and say she's the functional equivalent of the government employee. That was one of the most significant early on cases I had about openness in government but I certainly had my share over the years. I have one thing while we're here and that is it's a great honor to be invited by David Ferriero to give this talk today. The Archives under his leadership has done a terrific job of responding and being transparent and helping with government transparency and I very much appreciate Mr. Ferriero's efforts and keeping this going some agencies have done better than others during the pandemic the Archives is one of those really tried to keep the effort on going many agencies have really just stopped processing FOIA and it has been a real hardship in many agencies to get documents out at all because they've given such a back seat to FOIA during this year of the pandemic. The Archives has really led the way in not letting that happen and I commend the Archives leadership of the Archives and how he has really not let that happen with the Archives. The Archives is under his leadership a leading part of the government always in transparency and openness and I'm delighted to be able to have the opportunity to talk about that subject today. Indeed and I guess that's a good way to get immediately to the what is really the work force law I guess of government transparency and that would be the Freedom of Information Act that's very familiar to everyone. There's certainly more, we'll talk about more but let's talk about FOIA for a couple of minutes. Evidently you're nearing about 200 published FOIA opinions and in one from a few years ago called LeBeau, the Department of Justice you did note that and I'll quote for anyone skeptical of the truth behind the cliche that freedom is not free FOIA litigation is perhaps one of the best examples of the cost of open government. In this area of law fights over singular words in individual sentences routinely last several rounds of administrative review and litigation including volleying between the district and appellate courts. This opinion alone will dedicate several hundred words to examining and I may withhold a single sentence. That's of course just one opinion that you know one passage in one opinion of many many years of FOIA jurisprudence but it is certainly a resource intensive process and can you briefly talk about how you handle FOIA cases as a judge versus how you litigated them when you were an assistant U.S. Attorney? Well most FOIA cases will go with the some process of getting the documents processed first and been going by way of motion for some adjustment opposition reply and a presumption of regularity. Sometimes you will have cases I had a case called judicial watch I had many cases with judicial watch you're going to hear one of the representatives on the panel today I'm going to stay on the line and hear that panel because I like to hear practitioners in this area and judicial watch certainly is one of the leading practitioners that appears before me a lot. One of their early cases that I had with them back in 98 was they were alleging that the Department of Commerce had records that would prove their thesis that if you made a certain contribution to the Democratic National Committee of $100,000 you would get on a trade mission and could fly overseas with Secretary Brown and Secretary Commerce and if you made that amount of contribution to DNC then you would get to go on a trade mission with Secretary Commerce overseas and they were trying to get records to demonstrate from the Commerce Department they came up with enough information that I was allowing discovery so they had shown inconsistencies in Commerce's affidavits and I had opened up discovery and I said to Mr. Clayman who was in representing judicial watch that every time he got some discovery he turned over a rock and I would have to authorize some more discovery and I would be doing it step by step for you because normally you don't allow discovery for you but he kept overturning rocks and finding other stuff and it finally got to the point where he overturned some information that demonstrated that this Deputy Under Secretary had taken a box of documents home and then they denied they had these documents but he had them at home and he had the documents at his house and he had pretty good evidence of this so he had a whistleblower that actually had given him a statement that he filed with me in camera so I actually got the marshals and gave him a subpoena and they went over and they got the box of documents at this Deputy Under Secretary's House and it was the documents that were the smoking gun and I got them by subpoena from the Deputy Under Secretary's House so it was obviously an unusual Freedom to Information Act case that goes that way but it proved the truth of what they were trying to prove in the first place and that is what you call open government. The documents were there but they were at his house so they denied them on the Freedom to Information Act. They didn't have them in the government position because the Secretary took them home and a first for me I've had some other interesting for you cases as well. I have a couple if you want to talk about a couple I've had with Landmark Legal Foundation I don't know if they topped that one where the Deputy Under Secretary took them home but Yeah, no you've got a couple of different ones with Landmark Legal against EPA involving a couple of different administrators. I think from both parties I want to emphasize that I held both a Republican EPA head and a Democratic EPA head for both miscreants. The first one, the Republican head of EPA I had information just before the I guess this would have been in I forget which election anyway as a Republican head of EPA and the Landmark Legal Foundation had information that she was going to leave office on January 20th and they were trying to get records of all the regulations that she was trying to repeal and other regulations she was trying to hurry up right before she left office and they're trying to get all these records just before she was leaving office and so what she was doing those last few days was she was leaving office and they came in like two days before she was leaving office and they had some information that showed some things that had been going on in the administrator's staff that led me to agree that I would give an order that she could not destroy her hard drive on the day she was leaving office and could not destroy any other records in her office so I had a hearing two days before she left office and entered an order that her hard drive be preserved by the government and her other records and so on and issued the order on the morning of the inauguration she went to her office and physically destroyed the hard drive on her computer and destroyed all the records that they would have been seeking and I ended up with a order she'll call us why she should not be held in contempt and the agency should not be held in contempt as well and it turned out at the trial that no one told her about my order so she actually honestly did not know of my order the agency lawyers did not tell her no one told her so she actually had no personal knowledge of my order so I held the agency in contempt but she did not ever she was never told anyone no one ever told her that I had entered that order and she could not be held personally in contempt of my order I could not hold her and did not hold her personally in contempt you can't hold someone in contempt if they don't know of the order so but I did hold the agency in contempt and they did get stopped with attorney sleeves and a lot of bad publicity for having destroyed the records that would have shown what the plaintiffs wanted personally perhaps but of course it had been destroyed at that point there were other records that then demonstrated some of what the plaintiffs wanted but the key was was gone obviously that's not openness in government when you're destroying your hard drive on the day you leave an office probably other actions could have been taken under Federal Records Act maybe other statutes maybe were being violated that day as well that was not the formium the contempt motion but in any event just to show that it's not always just one party four years later I have another four years another four years later a different administrator not even that the one that replaced that one but it's another one and in the discovery there began to be some suspicious things that nothing that ever goes to the administrator no policies are ever acted on by the administrator herself and it begins to look a little suspicious that how has this agency ever run the administrator herself she never had the fingerprint for anything and how do they actually decide anything before the administrator has never actually done anything and so I begin to wonder maybe something's going on and somewhere in there based on some discovery I allow which is unusual for but I did allow some discovery they find out she had created a FOIA account in her dog's name and if you wanted to go to the administrator for her approval of anything you send it to her dog and all of the FOIA stuff went in her dog's name to her and she did everything in her dog's name not in her name and then when you made a FOIA request it was processed in her name and no one ever processed any FOIA documents in her dog's name so they had been denying under FOIA all of these requests because they never processed anything in her dog's name no one had ever requested anything in her dog's name they didn't know it was in her dog's name actually that one created such a scandal that she ended up being forced to resign as administrator so I never actually had to rule on contempt or any of that stuff because she was forced to resign the public acclimation I guess after a landmark legal uncovered all of that in the discovery so I've had my share of unusual FOIA cases as well in my time my enlarge those are the exceptions not the rules luckily but sometimes you do uncover unusual circumstances right it's easy and admittedly a little bit fun in a dark way to poke fun at the foibles of government and misdeeds of some people over the years it's just a matter of statistics when you're dealing with an organization of literally millions of people you're going to find some people who would be badly sometimes of course unfortunately with the pan of the agency well yes it is very much so and that brings up other questions of leadership and standards and ethics as well but as you mentioned despite having these numerous high profile sensational cases where it's clear that somebody in the government behaved badly and that's to be generous sometimes still in FOIA cases start off with the presumption of good faith can you explain a bit about that for us and what a plaintiff really has to show to pierce that veil and get discovery well there has to be something unusual I mean we day to day we expect the government to act in good faith and day to day that's what we see the government doing and day to day the FOIA people in most instances have no axe to grind and you know they're just processing the documents and screening them the FOIA lawyers have no axe to grind the justice lawyers that typically are in the case have not been involved in the underlying dispute and have no special reason to cover up or be a participant in the covering up things obviously there is an overall temptation in the government to not want to come forward and make clear that they screwed this up that's a human tendency to not want to admit your mistakes or broadcast your mistakes but we find across the board that in most instances the government tries to make arguments that are facially valid and we can look at them and analyze whether they're facially valid or not and there's got to be something more than just speculation to get you into discovery there's got to be some factual basis what I was finding in those cases we've been talking about was the something more that led to getting you discovery we're not going to give discovery and let you open the coffers to the government files in every case it would just bog down the government so they could not function if we did that in every case so you've got to have the something more something suspicious something that points to being able to put this burden on the government and there's got to be something that would lead a judge to think the government is doing something suspicious before we're going to put that burden on the government of going through all that and many plaintiffs will try to do that but almost always I see what they're doing is just speculating that well there must be something there and they really have nothing more than speculation then they've got to have some basis for the speculation before I'm going to authorize the discovery but I understand in the back of my mind that it's possible there's something there so plaintiffs frequently then will say well look at it in camera looking at it in camera is not a really great basis because that's really just substituting my judgment for the government's judgment it's looking at the documents themselves that they're choosing to give me not any real answer to whether or not the government is hiding things or not disclosing things that they should be disclosing I'm looking at things in the vacuum when I'm looking at them in camera and the plaintiff isn't getting to see what I'm seeing but the public isn't getting to see it either and it's an uncomfortable situation that I'm in to just think that I weigh some magic wand and look at it in camera that's a great way to do it I really rarely want to look at things in camera because I think that's just cutting the plaintiff out of the process totally for me to look at it in camera that's not a great answer either and I've seen you get pretty frustrated with plaintiffs who come into court citing nothing but anonymously sourced news reports as well I think that's considered speculation I try to resist when people tell me well based on some story in the Washington Post I try to just knock the post but I don't credit news accounts news accounts are not evidence so I try to resist saying I don't believe what I read in the Washington Post I just say I don't believe news accounts although I read the post every day so I couldn't say this but there's evidence so you need something and evidence not just the Washington Post or to say that you have evidence what is the respective role as you see both from your experiences being civil chief in DC and from the bench what would you what do you think and what might you recommend what are the roles of the responsive office and agency council and the justice department in these cases well hopefully they work together agency council are closer to the agency people that are working in the documents that know about the documents that understand the documents that understand the record keeping system and hopefully they can educate lawyers the justice lawyers hopefully understand the judicial process better know the judges better if they practice in our court they probably have an inkling about the judges and how the judges have ruined another FOIA cases know the kinds of things that appeal and don't appeal to the judges may even know some of the case law the judges rely on know that there are certain judges you might as well not make that argument too and so other judges you might want to look at what you're arguing and certain approaches you might want to take having written as many FOIA opinions as I have now you know when I first came on the court I think my first five years when lawyers started finding me to myself I was quite alarmed I said don't you have something better than that because I really wanted you know some real judge that excited the case you know and decided this and said just me and the lawyers were very delighted they found something I had said before that they thought I'd want to do that again that I was hoping they had something better than just citing me but I find lawyers really like it when they find something I've said before they think I ought to say the same thing again you know well lawyers do that and lawyers find where I've ruled in this FOIA extension before I guarantee if they got the same extension they're going to find where I've said that before you know and it's a pretty smart lawyer actually because I don't want to contradict myself so you know the agency lawyers really don't have that kind of depth of knowledge of how to present the case that the justice lawyers and the U.S. attorneys do even the U.S. attorneys have a more depth of knowledge of the judges here sometimes the justice always do if they get a lot of FOIA cases here they'll know very well which ones are going to appeal to me and which ones they could not me to myself in I do try over the years to not contradict myself I think many judges try to do it that way so it's smart for a lawyer to decide to judge themselves because I don't want to be inconsistent with all the practices the lawyers don't always appreciate that judges have that mindset now I've just shot myself but I guess by revealing that little tactic you know sometimes you've been overturned too and it would be a bad idea to join a principle but every so often you're known as an expert and having developed a lot of different areas of national security law as well both on the district court and on the foreign intelligence surveillance court so between FISA and the Classified Information Procedures Act the Foreign Sovereign Immunities Act and and other areas of national security law Guantanamo but one former very senior national security lawyer once posited to me that he thought that FOIA in some ways was what really gave rise to important elements of national security law across the spectrum especially when it came to requests of the national security agency during the Vietnam era I mean what do you think of that piece? well I think it's true I mean I think that for the longest time NSA was never thought to be subject at all to any open records production or to any kind of production of any records to the public and when it became subject to FOIA was a rude awakening the NSA and CIA are extremely conscientious about their duty to protect national security secrets and I find both of them to be extremely helpful to the court trying to marshal the arguments that are very helpful to the court so that we can understand the issues I sometimes get some briefing on those kinds of issues I find that across the board they are excellent lawyers they provide excellent health I think when I do seminars for judges for the federal judicial center and otherwise my concern is that many judges think that you just give blind deference to the security agencies and I do not think that's what Congress ever intended and I don't think that's what the constitution envisions that we have to give deference to national security concerns but it's not blind deference we have to look at the issues we have to study what the arguments are and we have to decide ourselves under article 3 we're judges we make independent decisions and some of these issues are tough I think that we have to make sure we know what they're doing is right and that it's not for some nefarious or political reason but it's for some valid national security reason and I have never found that when I got to the bottom line that I could not get to the right result with the concurrence of the national security agencies sometimes with having them reconsider where they were with my thoughts in mind as well as at home but I don't think that we've ever gotten to the loggerheads that could not ultimately reach a result that we could both live with but it takes some effort and some work some of those cases are criminal cases where in particularly in some of the terrorist cases the judge has a very tough task in criminal cases in particular where you have to follow the classified information procedure act and those are very tough issues about national security in point it's not as detailed or as tough to do because the statute is more differential but not totally differential to the classified information that the security agencies want to protect but these are difficult issues and I find across the board that they are consciously trying to do the right thing I know that the ACLU and the national security practitioners on the other side are very useful in helping them keep on the right track the FISA court for example has found these amicus lawyers that are participating the process now to actually be helpful to the process not a hindrance to the process and I think that is ultimately going to turn out to be an improvement to the public perception of the FISA court and to the public perception that the FISA court is not just a rubber stamp for the government but that is part of a judicial process that will be more fair and perceived to be more fair ultimately and transparency in government is important and it's important if the FISA court is going to be a court it has to be partly look like it's a court and a court can't be everything can't be secret if it's a court right and circling back to Mr. Kerrio's introductory remarks where President Johnson had cited national security concerns when FOIA was passed too and as mentioned these other bodies of law in addition to those of course these aren't the only ways to shed light on government conduct one of your first cases as an assistant United States attorney was a case called Berlin Democratic Club which was brought up in Bivens can you quickly explain what a Bivens case is and what happened in BDC well in the Berlin Democratic Club case the Army was accused of spying on anti-war dissidents in Germany and other activities that were during the Vietnam War and engaging in other improper surveillance activities overseas and one of the first principles that was litigated in the case was does the Constitution follow the flag and the chief judge of this court clearly ruled that the Constitution follow the flag and if the United States government is doing something overseas against the United States citizen the Constitution is right there with that U.S. citizen if the U.S. government is doing it the Constitution follow the flag and that U.S. citizen has rights against the U.S. government in that overseas city and we went from there and we started looking then at what the U.S. government had been doing to U.S. citizens in Germany and it turned out contrary to what I told the court in the first instance I found affidavits from generals and others that turned out to be false and I learned a huge lesson from that case and ended up taking 13 trips to Germany with my own investigation ordered by the Secretary of Defense that ended up in quite a donny book that lasted for several years before we finally came to a settlement between the ACLU and me as to how to get out of that case with the settlement satisfactory of the ACLU and the government that ultimately settled that case with total reform of what the Army had been doing in surveillance activities in the Vietnam era. Another seminal example from when you were on the bench I think all I have to say is the case name tell us about Cobell. Well Cobell was a case where it's one of those cases where it was filed shortly after I go on the bench and I knew from the beginning it was going to be a major case the 500,000 class action case of 500,000 individual Indians the money was the Indians own money the government was holding in trust for the individual Indians it was land and timber and oil interest that the Indians owned the Indians money it was their money held in trust for them by the Department of Interior the Department of Interior had records but had bollocks up the records could not account for the records could not account for who they were paying want to and from the outset I was dumbfounded because I had spent my career really after the Army in the Justice Department and just for two years was constantly lied to by Justice Department and Interior Department lawyers and did not believe they were lying being told by the Indians lawyers they were lying and did not believe it until finally I figured out they had been lying and I was just dumbfounded when I finally figured out that I had been told all these lies and you don't want to lie to me for two years and think you're not going to pay a price so without being the first Secretary of the Interior and Secretary of Treasury held in contempt it was the first time I think we have shown that it was the first cabinet member held in contempt by a member of the Judiciary I think in history it was so egregious that the administration could not even appeal my contempt by me the administration changed I thought the new administration would come in and wear their white hats they didn't so I held the second Secretary of Interior in contempt but the result of that was although I was confident what I did the court of appeals decided that better to just remove me from the case because I was too pro-Indian and the final result was the case settled on appeal and the Indians got $3.4 billion which I thought to me proved that I had been right all along the Indians were screwed out of more than $3.4 billion but the government cost $3.4 billion like the case go away for Indians in fact they never got the $3.4 billion if I hadn't forced the government to produce all the documents they did produce I will say that and for perspective the $3.4 billion is the largest settlement the U.S. government has ever entered into at least certainly at that time I'm not sure if it's been I think it's still the largest settlement everybody government is $3.4 billion yeah if anyone were to use the government was so scared of it was the money obviously right that's chunk of change for everybody watching there is a documentary on the Covell case called 100 Years that Chip cycled off Netflix after two years but I'm told that you can still stream it on PBS until March 21st it's a fascinating case but as we get closer to the end we've talked a lot about executive branch and obviously Congress and the courts are subject to different rules should Congress or the courts be subject to greater transparency well I'm doubtful the courts are very open most of our proceedings are open we really have to judge by closing anything and I think we're we really do very little in camera and we have to justify anything we're going to do in camera or ex parte I think that and Congress mostly is open they have very few hearings that aren't open but I'm pretty satisfied with how the courts and Congress are doing they're not they're always going to be backroom deals but I mean you can't I think that I don't think that I don't perceive that to be anything that would be cured by legislation I may be wrong I don't know if there are proponents to do anything I haven't seen any legislation but I thought it would actually cure anything I do think there's a lot of talk about what the Supreme Court should tell us their proceedings and their privilege to talk about that with some of the members of the court and I will tell you up front I think that the members of some members of the court I'll put it that way have a valid concern that it would impact the way they use the arguments now they have a small bar that they use the arguments with that small very insular bar and they use the arguments as a way to talk among themselves with the members of their bar and they really it's the first discussion they have among themselves of the case they don't talk among themselves until they have it overlaugured they don't go a lot of each other about how they're going to do the case until they hear the lawyers and they have a session after the oral argument where they vote and they assign out the opinion and the opinions majority and minority and that's right after the oral arguments probably that pride year the following week and so that's the key time that's all key to the argument and they use the argument among themselves and having these down to a lawyer some of the questions traditionally have been to bring up points they want to make to their colleagues and they're using the argument to make sure they're getting those points across their colleagues so the argument is in a way that they use it as part of how they're going to take positions in conference with their colleagues and that's part of how they use the argument and the experienced members of the bar know that's how the argument is being used they're practicing their arguments on that kind of basis now if you're Ford Motor Company and you have an argument there and millions of people are going to be watching that argument are you worried about those few people that care about how the case comes out are you worried about 20 million people that are going to be watching it on TV and I tell you Ford might really care more about that 20 million people than this little case and the Supreme Court justices I think are worried to death about what's going to happen to their arguments so I really understand why they're reluctant I understand the argument on why they're reluctant some of I think that what is into the happening from the pandemic and having these arguments on tape by four arguments on audio tape is kind of interesting I think that there's been some speculation that the junior justices have kind of liked it because they get automatic time that otherwise it was time to squeeze in hard to squeeze in your questions if everybody gets a limited amount of time it seems to have loosened up things to where Justice Thomas now asks more questions than he ever has it sort of demonstrates the fallacy of the old school idea that Justice Thomas was just a clone of Justice Scalia and many more people now realize Justice Thomas is actually brilliant and has a mind of his own and thinks for himself and demonstrates it in the questions he asks and people now realize that he's a leader to his own right and thinks some pretty deep thoughts for himself that he demonstrates a question to be asked now which surprises some people extremely enough to be I think that this whole debate is pretty interesting question I can't see the Supreme Court agreeing to ever a television whether they would agree to delay the audio I don't know maybe the progressives might want to do it I'm not so sure that the court is ready for that yet either frankly from the public point of view I sort of think the public has a better understanding of the Supreme Court from this experience because they understand better that these are serious minded people that look at the issues consciously that don't look at it as political as politicians that look at it as serious legal questions that are looking at serious legal issues and five to four votes don't really mean what the public perception is of what five to four votes mean these are even tough questions that they're dealing with at the Supreme Court level sticking with the courts but shifting both in the level of the court and from civil to criminal looking at the traditionally very secret grand jury process numerous cases including several of yours quote the adage that there's a tradition in the United States older than the nation itself that proceedings before a grand jury should remain secret. Last year was a big deal when Attorney General Barr wrote a letter to Congress citing the rule of criminal procedure rule 6E about grand jury secrecy for saying why parts of the Mueller report couldn't even be turned over to Congress that it held in a case in 2011 that a district court has inherent powers with respect to grand juries and the special circumstances can justify the release of grand jury materials outside the balance of rule 6E in that case you ordered President Nixon's grand jury testimony and some other materials to be released. How did you come to that conclusion? That traditionally there is inherent power in the court that should allow historical records to overcome the 6E justification for keeping seal it was so unusual to have a president actually test by a grand jury and Nixon had test by in the grand jury and it was almost all the participants were dead by the time that the case came to me as chief judge of the court and it seemed to me that I should have the inherent power to release historical records like that to the public and that the public should have the right to see what had happened in the criminal case of Nixon and the Watergate people were all of the basic participants were dead by this time and the public was still very interested in what had happened in Watergate and whether Nixon was guilty or not guilty and all the issues many of the public were still very interested in so it seemed to me that the chief judge of the court overseeing the grand jury should still have the power to do it and so I relied on that inherent power of the court and ultimately I did release the transcript of Nixon's testimony and it was released in subsequent litigation by others who then sought other material from grand juries in another case that I issued three opinions in 2011 then on the same day and in one of those called McKeever 2017 whatever it was one of those in McKeever I did not release something and he appealed and ultimately the court of appeals found that the special circumstances that I used in the Nixon case was not valid that the courts had no power to ever violate 60 and so although my theory had been adopted by the circuit the 7th circuit and I think the 11th circuit had all gone with what I did the DC circuit had gone contrary to me so my own circuit abandoned me and three of the circuits affirmed me but the Supreme Court went the other way and luckily for me Justice Breyer of all people wrote a separate opinion and in well you can quote what Breyer said because I've gone up I think you have the quote of what Breyer said in his separate concurrence yeah he issued a statement regarding denial of cert I I want to quote you first then I'll quote Breyer and then I think we have to turn it over for a question or two because McKeever at West decided I think because we released three of these opinions on the same day West only published one of them McKeever was not it which I'll quantificate I think McKeever was the most important both because he went to the Supreme Court but also because of the content of the actual case there was a non-watergate case there was a fascinating fact pattern and you dropped in a footnote I'll quote it is antithetical government to say that some class of public records is forever and always off limits even from consideration for public release even after the underlying practical needs for secrecy in the records has long since lapsed in a constitutional democracy that values openness and transparency in government records no matter how sensitive it is imperative that the court look to the underlying purpose of any rule calling for nearly unqualified secrecy of a class of records for perpetuity now Justice Breyer beautifully written Justice Breyer seems to have agreed that rule 60 deserves another look he said whether the district retains authority to release grand jury materials outside the situation specifically enumerated in the rules or in situations like this is an important question he says it's one that I think the rules committee both can and should revisit well as a result of that invitation I got my current chief judge Beryl Howell and I have sent a letter to the rules committee of the judicial conference of the U.S. and they have agreed in April to take up this issue of whether 60 should be amended and we kind of despised our justification for what we think and using the language that Adam wrote for me that I signed that opinion we lead with Adam and the letter that Beryl and I sent to the rules committee saying we should amend 60 and give it to that press authority that I sold to the three circuits but could not sell to my own circuit I wasn't going to take credit for it that was your opinion but thank you sir I know that we run time we can talk about this for hours and filibuster if you will Judge Lamberth you've been a fiery presence here as well and I guess to circle back to another Washington Post article recently talking about the debates in the White House about whether to release visitor logs a piece in the post reminded us of the 2016 statement by Josh Ernest who has been President Obama's press secretary who posited that there is really no constituency for government transparency except the press I think we'll leave it to the next panel to debate that proposition I think we both would take issue with that if anybody has questions and if there's time I'm sure you'll take them but our hour is running thank you Judge thank you everybody for allowing us to be with you today I think we have a couple of questions for the judge we've been keeping track of the chat we have one question does the judge think the 25 year limit is being enforced for records in reference to B-5? certainly not and it should be and I have a couple of cases now where I'm trying to force it thanks and as a follow up to the question about congressional records how about Capitol Police should they be subject to FOIA? I don't know I I don't think I've ever ruined on the issue and I probably will get it now I have the first one you know I had this well I can't talk about that just before I came on this call I ordered the government to show me why I couldn't release a tape that they put in evidence last weekend in my salmon case and they showed one of the show calls by Friday they're responsible but we don't have a way to put it in the record and I just signed an order to make it public and there's a big issue about what Capitol Police tapes have to be under protective order and what to be public I better not get into all that but I just made some things public they didn't think to be my public I better not get into that because stuff that I used in evidence to hold the salmon in jail I made public and I didn't care what they said thanks in evidence in a criminal case I didn't really care where it came from they put it in a criminal case and I was going to use it so I was going to make it public I think our last question has to do about the consequences for agencies that simply stop processing FOIA request and ignore statutory deadlines during the pandemic or otherwise well it's a problem because you have to figure out some of the agencies where they have the people that would do processing of particular classified FOIA stuff were only older employees who really were most objective to the pandemic and most at risk and did not have a vaccine and really were not coming to work at all and could not work from home with classified information so it's hard for me to say that the agency had to make them come to work in conditions that they were really putting their lives at risk so I mean you really have to go agency by agency and what personnel they have it's a very intensive inquiry into what you do you certainly can't do it across the board but what what you can do in the particular agency you really it takes an inquiry into how they can cope with the pandemic it's not an easy answer I mean I have cases where the agency convinced me that the people they would need to actually work on it there was no one that had familiarity or could have familiarity with the documents that you know would know about that kind of classified information that was could safely actually visually come in and do the work in the classified setting that they need to do it in they weren't going to take all those classified documents to their house there was no way it was going to get done I could understand that but they didn't have to show that I wasn't going to say you can just stop Martha we started with a quote from his from Judge's opinion on LeBeau a few years ago and I suppose we can close with it too on exactly that point Judge said at one point courts go to great lengths to protect the rights of FOIA plaintiffs individual citizens who seek to shine the light of transparency upon the operations of their government sometimes they successfully prompt the revealing of government misconduct often times they endeavor to research a topic of personal interest or fulfill a historical curiosity and may or may not be satisfied by what is released versus what is withheld in the process innumerable resources are poured into the balancing of interests of justice apply in these cases and all wrap up selfishly with a controversial statement that you know it's certainly true that democracy and accountability are not necessarily efficient but I'm being marginally sarcastic when I say show me an efficient government and I'll show you a society that you probably don't want to live in and there's a whole other conversation that we'll be happy to come back for but that's my last word and thank you all again all right, thank you Adam and please I'd like everyone to thank the judge for his time today it was a very robust discussion of open government and the judicial landscape given us a lot to think about I wish you had another hour because I think we'll quickly gudge so thank you again all right we're going to move to the next step of our program Judge Lambert has promised to stay on and observe so we welcome your continued participation next to our program this afternoon we are honored to share pre-recorded videos from Senator Crawford Leahy as many of you know Senator Leahy is a long time leader in promoting government transparency in the Freedom of Information Act Senator Leahy has worked with members on both sides of the aisle to enhance and expand Americans access to information about what the government is doing he has authored several important pieces of open government legislation and chaired several hearings in the Senate Judiciary Committee of particular significance for my office, OGIS Senator Leahy is the author of the Open Government Act and made the first significant reforms to FOIA in more than a decade the Open Government Act which became law in 2007 created our office, OGIS so without further ado we look forward to hearing Senator Leahy's remarks today and as a quick reminder for the speakers please mute your phones and your audio will be coming through your computer speakers just a reminder please turn on your computer speakers Thank my friend David Ferriero he's the activist of the United States and he's hosting this important sunshine week of it we both know David and I and everybody else that the American people's right to know what their government is doing as in our FOIA our nation's premier transparency law that's essential to protecting against abuses by the powerful it's a transparency tool it empowers the American people with a role in serving as a check against government wrongdoing it's a defining feature of American democracy it reflects a simple principle that a government of, by and for the people cannot be one whose actions are hidden from them now the COVID-19 pandemic has posed serious and unique challenges to government transparency we've seen FOIA processing across agencies being dramatically affected now I'm going to work with both Democrats and Republicans to fully understand how FOIA compliance has been affected during the pandemic what lessons will we learn and what additional resources are required to improve FOIA processing but I'm increasingly concerned about another problem this is one not caused by the pandemic it's the growing blind spot we have regarding private contractors engaged in government functions I find that a lot of Americans don't realize that nearly 40% of our federal government operations are run by private contractors and they're not subject to FOIA think what this includes private prisoners immigrant detention facilities have been right for the abuses and misconduct and Americans have virtually no way of understanding nearly 40% of the federal government's operations or where their money is going so we have to eliminate this artificial blind spot and our transparency laws we've got to apply FOIA to private contractors when they're doing government work and that's not a radical idea states across the country including Iowa Texas, Kentucky South Carolina and many others already apply their public record laws on private contractors doing government work think of it it's just common sense if you're being paid with taxpayer dollars to do government work well then you ought to be accountable to the taxpayers and the federal government needs to catch up to the states so I'm going to work hard this congress on legislation to expand FOIA's application to private contractors without it I'm afraid the Americans are going to be faced with an expanding cloud over the federal government's operations so I want to thank everyone who's attending this conference you are important efforts and sure we keep bringing more sunshine into the halls of power that's something we all want to do all right thanks very much to Senator Leahy for those remarks lots to absorb in that segment as well so I'm very excited to introduce our next set of participants we'll be discussing the current transparency landscape of sitting topics during some time full credit for pulling together this distinguished panel goes to our very own Kirsten Mitchell who not only is our compliance team lead for OGERS but is a former journalist herself who used state and federal records access laws to shine the light on how the government operates she has an MA in journalism and public affairs from American University and a VA in English from Mary Washington College I cannot think of a more appropriate moderator for this panel then Kirsten today is joined by Michael Bateschow Alexander Perloff-Giles and Katie Thompson Michael is a senior attorney for judicial watch a conservative non-profit activist group that uses freedom of information laws to obtain records related to activities of government officials for over 11 years Michael has litigated over 100 public records cases in both state and federal courts he has a JD from the University Missouri Columbia School of Law and Political Science from Northwestern University Alexandra is currently an attorney with Gibson down in Crutcher Media, Entertainment and Technology Group and between 2019 and 2020 she was the First Amendment Fellow at the New York Times where she was the principal attorney in charge of public records with us she has a JD from Yale Law School an MA from the University of Paris and a VA in History of Art and Architecture from the Harvard University Katie has served as the legal director at the Reporters Committee for Freedom of the Press since 2014 where she leads litigation efforts in public records court access and legal defense cases Prior to joining Reporters Committee Katie, like Alexandra, was an attorney at Gibson down in Crutcher specializing in media and entertainment litigation she has a JD from the University of Virginia in English and a BS in Broadcast Journalism from the University of Florida Kirsten, over to you I leave you in the hands of three attorneys good luck Thank you Alina and thank you Alexandra, Katie and Michael for joining us today and thank you to Judge Lamberth and Adam Perlman that was a great discussion and these types of conversations really do contribute to a shared understanding of government transparency and as we know so well at OGIS that shared understanding is so important to preventing and resolving disputes I'd like to talk about a few things that Judge Lamberth said but first I'd like to jump into something that Senator Leahy said he noted that federal government contractors make up an artificial blind spot in our government transparency laws Alexandra, Katie and Michael do you agree how big of a problem is this and are there other areas besides private prisons and immigrant detention facilities that this affect? Sure, I'm happy to start with that one certainly I think there are many, many agencies including the Department of Defense, Department of Energy all kinds of agencies use outside contractors and the Ninth Circuit just went on bonk to reverse an earlier decision regarding the consultant corollary so that's the question of whether the deliberative process privilege under Section 5 would protect outside consultants and the on bonk court ultimately recognize the consultant corollary joining most other circuits who have considered the question, the Sixth Circuit is now the outlier in questioning whether outside consultants are covered by the privilege but there was an interesting split in the decisions including Judge Bumatea Trump appointee and three Democratic appointees all in separate opinions coming out saying the context of the statute says inter and intra agency doesn't say anything about outside contractors, independent contractors and so it does allow for a kind of end run around FOIA given the vast amount of the quantity of government operations that are now outsourced to contractors of different kinds Katie, do you have anything to add to that? Sure person, I would say a couple of things I think particularly we've seen this become a problem in the context that we're flagged so in the private prison context the immigration detention so it is context so it is a whole in FOIA and I think that we would certainly welcome Seth Blum on the part of Senator Leah and his colleague to kind of plug that whole in conjunction where they think other FOIA reforms that we in the sort of requester community would certainly love to see the Congress tackle including things like public interest balancing and other recommendations that have been made Michael? Yeah, I mean from my perspective I didn't really think about it as being that big of an issue. I guess I haven't done enough FOIA work when it's come to contractors but I always assumed a lot of those records were public so let me request I've sent that never seemed to have issues getting records that may be in the possession of a contractor you know I think there's a definition of agency record or record at least in FOIA that may encompass those records and I'm not sure that has been fully litigated so I mean we always welcome improvements in the legislation but I guess it wouldn't be on the top of my priority list at this point. Great, thank you. So let's return to Judge Lambrose and Adam Perlman's conversation. I wanted to ask specifically about one thing and then sort of open it up to your reactions but one of the things that the judge said was he rarely wants to look at documents in camera in FOIA litigation and I think some people might be surprised by that. I wonder if you could talk about that do you think judges should be looking at documents in camera and let's go around the same way we did at the beginning so over to you Alexandra. Sure, yeah. As a FOIA litigant we absolutely think it's a win to get in camera review because it's the only check on the otherwise unbridled discretion of the agency. I mean it might be that their position is legitimate but we as the requesters simply have no way of knowing and so from our point of view I think in camera review helps ensure that the system works the way it does and if it is done enough time to make the agency think that there's a real risk that their assertions will be questioned in the subject of scrutiny I think that's important. I can just add to that I think the FOIA makes in camera review an available tool with the discretion of the district court judge for a reason because it's intended to be an aid to the court to exercise the court's denuclear review of our agency with holding. I think we're all mindful that judges have a lot of cases and they see a lot of FOIA cases and they probably don't require and I don't think we would take the position that in camera review is appropriate in every single case. I think in many cases I think however in many cases I do think it's appropriate and I think what's the benefit from it. You know we tend in our practice to request in camera review infrequently because we recognize it is an additional burden on the court on summary judgments but at the same time I think there's certainly an appropriate case for it and I would well be important to utilize it more frequently I think that would be probably beneficial for the entire process because you may be able to cut out perhaps one round of summary judgment breathing if you have an isolated set of documents subject to in camera review. Okay Michael let's follow up a little bit just on what Alexandra and said going back to something Judge Lambert said and that is that he feels when he's doing this in camera review that it's he's looking at things in a vacuum so he's sort of I think he says something to the effect of substitute my judgment for the government judgment and he is just looking at what the government is letting him look at and he's looking at things in a vacuum. How do you respond to that? Yeah I guess I disagree with the other two panelists and agree with Judge Lambert my biggest concern with in camera review is it really cuts the plaintiff out the requester out of the process I did see a process and I think it was the Eastern District of Pennsylvania where the judge allowed the requester to submit questions that the judge should be thinking about when looking at the records but without that the judge is looking at it in the vacuum and the plaintiff really loses the opportunity to advocate for their position. I still will occasionally as Katie said we try to do it infrequently as well. There are instances especially when it comes to attorney client privilege or attorney work product where we think we're down to one or two records and we'll ask for in camera review but the bigger problem I see and one that Katie also flagged was maybe we'll cut out another round of summary judgment briefing. For us my biggest frustration is the fact that we have numerous rounds of summary judgment briefing. The government if they fail to satisfy their burden the first time around we think that should be it that their government shouldn't get two, three, four, five bites of the apple because the law is clear the government's burden if they can't satisfy it release the records and let's move on and I think that would be a much better process than numerous summary judgment briefings or in camera review. Okay. Katie and Alexander do you want to respond to that at all? I guess the only thing I'll add is I agree that it only makes sense when you have a narrow set of documents or a single document so in some ways that is a reminder to the requesters to submit good FOIA requests that are specific and a judge is never going to order in camera review if you have a kitchen sink FOIA request for all email communications from 2010 to 2020 or something like that. So if you have a very narrow FOIA request then I think it's an appropriate tool. And I think I would just add to that that there's always an asymmetry of information of employer limitation. I mean the requesters always have a different bandage in terms of what they know. They don't have the records. They don't have the documents themselves. They're doing the same thing that the court is doing in terms of relying on the agency decorations whatever submitted by the agency. And so I do think that I take Michael's point that he does have to request her out of the process but to some extent the requesters already pretty limited in terms of what the requesters knows about the records anyway, about the contents of the records are limited to what the agency said publicly in our filing. So in that sense I do think it can be valuable to have some purposes of the court to exercise that to know their review of the withholding to utilize that in camera review as a tool. Great. Thank you. So I wanted to turn and talk a little bit about the new administration. The new administration is just more than seven weeks old and we have a new Attorney General and this morning at the Department of Justice Sunshine Week event Attorney General Merrick Garland said, quote, open government and democratic accountability are at the heart of who we are and he thanked FOIA professionals across the government for, quote, keeping the faith. There was a headline on the Reporters Committee website earlier this month that noted, quote, a quiet confirmation hearing with some positive engagement on media law. So I'm going to start this question with Katie and then allow the others to join. Katie, can you tell us a bit more about the positive engagement on media law and for all three of you, what would you like to see come from Merrick Garland as Attorney General? Sure. I'll just take those both at the same time. I think in 2016 when Judge Garland and Chief Judge Garland actually was nominated for the Supreme Court the Reporters Committee did what it does for every Supreme Court nominee, which is kind of a round-up summary of their decisions that have affected that affect First Amendment rights and particular media law issues including FOIA and transparency. And one of the things that we saw, and I think this is consistent with the Reporters Committee's experience with the litigants, frankly, was in his record Judge Garland had his decisions were in many cases very indicative of a judge that recognizes and strongly believes in the value of open government and transparency. I tend to think of his record on the DC Circuit in terms of transparency as involving really key to access to court records decisions including that life decision and more recently in 2020 the Leopold against the United States decision that the Reporters can do with a party in that case and it's a pretty litigated, it's maybe a little bit biased but it's a really groundbreaking case in terms of the common law right of access and application of the common law right of access to electronic surveillance materials, Store Communications Act and Penrithshire Act materials and I think that opinion really talks about in really powerful terms the importance of court transparency, public access and oversight of the judicial process. On the FOIA front I think there are a number of decisions and I'd be interested to hear Michael deal on this but I think there are a number of decisions but I think of Judge Garland sort of record on FOIA issues I'd say with the ACLU against the CIA case back in 2013 or 2014 that dealt with Goelma response to records requested related to the CIA Goelma program that was going to the DC Circuit reverse to disreport affirmants of that Goelma response in an opinion written by Judge Garland I also think of the other case these were the two FOIA cases that Judge Garland actually pointed to in his questionnaire for the Supreme Court in 2016 will cause an action against the FTC case which was the first case to interpret of who is a representative of the news media for FOIA to date a really important decision that I think was very pro-reporter because it interpreted I think consistently with the statutory intent represented what the news needed to be broad, appropriately broad but broad. So I think we were I do think that these are issues that based on his judicial records that Garland cares about the Reporters Committee along with our colleagues at the Knight First Amendment Institute at Columbia University we've seen no time. Judge Garland's letter just last or now Attorney General Garland Attorney General Garland a letter just last week urging him to do what he indicated he was going to do in his confirmation hearing when he mentioned FOIA the importance of FOIA and transparency but really he pointed to three broad categories and steps we would love to see the Department of Justice take under his leadership which includes adopting more stringent standards for DOJ defending agency positions on litigation particularly in areas where legal harm provision encouraging additional proactive disclosure of things like visitor logs, agency head calendar, things that get requested really frequently that agencies can just actively disclose and improving other FOIA procedures and processes we all know that the Department of Justice and OIG carries a lot of sway in terms of what other agencies are doing and so doing things like encouraging agencies to work more with OGIS in the mediation process is something that we included as a recommendation so there are a number of things that we flagged I think we would love to see the Department of Justice do under the treatment of Garland. Great. Alexander, anything to add? I haven't litigated in front of Judge Garland so I can't speak as well as Katie to interpret in that area more broadly I would say there are a small class of kind of political requests where you would expect the administration to matter for the outcome or for the position that the agency takes so I'll give an example I just represented Senator Weidman Representative Malinowski in an amicus brief in a case brought by the Open Society Justice Initiative against the CIA and ODNI Office of the Director of National Intelligence for the ODNI Khashoggi report obviously that came out outside of the FOIA proceedings and that is sort of about a political FOIA request as you are going to get. I think that is the exception I think the issues that we see most often in FOIA in terms of delay are not the result of sort of deliberate top down agency decisions to gum up the process and so I am perhaps less optimistic that we're going to see dramatic changes as a result of the new administration whatever their sort of targeted positions on transparency issues may be. Okay report jumping over to Michael I just wanted to jump in and say that the Khashoggi report is the report on the killing of journalist Khashoggi who was a Washington Post reporter and the report is the CIA ODNI report. I just wanted to put some context there for people who are just immersed in the issues as we are. So Michael what would you like to see with the new Maryland as Attorney General? Yeah I'm optimistic that the Attorney General is going to take transparency and open government seriously. I do have some concerns from his time on bench on the DC circuit there was in particular one opinion on the court process he was part of the panel he didn't offer the opinion but I guess the good news is it's kind of because of that opinion that the foreseeable harm provision made its way to Congress and past but the opinion there wasn't all that favorable to the requestor community and so I'd like to see a lot of the things that Katie said from Attorney General Garland I think other issues that hopefully he can address and have some guidance for agencies and control over the agencies that he has control over you know one issue is text messages that's an issue that we've really started to see a lot of that some agencies don't believe text messages or agency records and so we think Attorney General Garland could you know make it clear that all communications regardless if they're emails, letters, text messages and now because of the pandemic Teams, WebEx Zoom and any other type of instant chat, instant messaging platform that those records are really being captured and preserved in response to federal record but also and then processed and responded to in FOIA okay great yeah text messages are a big big thing these days so I wanted to you mentioned foreseeable harm let's talk about that a little bit of course that's the exercise in which FOIA processes consider the reasonably expected consequences of this closure in each particular case and I believe it's something that all three of you have litigated I'm wondering what the state of it is these days and I'm going to jump this one over to Katie because I know it was one that she was eager to answer so over to you Katie I love talking about foreseeable harm yeah so I think it's important to point out and I know we're going to talk probably about the two most recent Supreme Court decisions involving the construction interpretation of FOIA exemption one exemption for exemption for the August leader case and then more recently the U.S. wildlife services case that addressed the scope of exemption five I think it's important to point out that both of those cases involved pre-2016 amendment FOIA request so neither of them dealt with the interplay between foreseeable harm provision or the additional requirements of the foreseeable harm provision alongside these exemptions so that I would like pointing that out because I think it's important to note the foreseeable harm provision was added to the Act in 2016 and it places an additional requirement on agencies in terms of their showing to the district court but I think more critically important is that it should be affecting agency conduct at the processing stage so what the foreseeable harm provision does is prohibit actually prohibit agencies from withholding records that fall within the scope of an exemption unless the agency reasonably foresees that disclosure of the harm the interests that it were uninterested is intended to be protected by that exemption and we know from the legislative history of the 2016 amendment that Congress particularly had in mind exemption five and that the process privilege when it was thinking about and when it enacted the foreseeable harm provision there have been a number of district court decisions that I think there are a number of district court decisions in DDC some in FDNY as well and I think do a pretty good job actually of interpreting and applying the foreseeable harm provision there were the case in 2018 or 2019 the Machado-Amonis decision which is in the DC circuit which addressed foreseeable harm in the context of exemption five with respect to a narrow set of documents there's another case pending before the DC circuit now that I argued on behalf of the Reporters Committee in the Associated Press just a month ago or so that deals pretty squarely with the application of foreseeable harm to different types of documents that will be held related to impersonation of members of the news media under exemption five or pursuant to exemption five and so I think we'll get more guidance that's a very long way of saying that there are some cases that have been percolating and developments in cases at the district court level we're starting to see those at the appellate court level and I think we should or I anticipate we'll be getting some additional guidance both in the DC circuit and most likely from the second circuit as well I think there are some decisions coming out of the district court in New York as to how that provision should be interpreted and applied. Michael what are you seeing with regard to foreseeable harm? Yeah I mean I don't have much to add to what Katie said I think we've seen some good opinions at the district court and the DC circuit hasn't really addressed the issue and they should be addressing it soon enough in Katie's case and Judicial Watch has a case also where briefing recently began so I think it's stay tuned we'll have a lot more to talk about next year on the topic. Okay well speaking of about court rulings let's talk Supreme Court for a bit we've had back to that cases of the US Supreme Court earlier this month U.S. Fish and Wildlife Services versus the Sierra Club the High Court lower bed exemption, five privilege, protects from disclosure in-house draft biological opinions that are both pre-incisional and deliberative even if the draft reflects the DC's last use about the proposal I'm wondering how do you see this ruling affecting agency disclosure and in fairness this ruling just came out about a week and a half ago maybe not even so maybe asking this question prematurely but I'm asking it nonetheless Alexander? I should say this was a case that was before my judge when I was clerking so I'm probably somewhat limited in what I should say about it but I think it's a fairly idiosyncratic case I mean it's interesting to me that the Supreme Court took it I don't think it gives us a lot of guidance on the issues that more frequently plague requesters when it comes to exemption five in other words everyone agrees but the standard is pre-incisional and deliberative there's no dispute about that and in that case it was this peculiar posture of where one agency's job ends and the other begins what is final and so I think in some ways our just leader media which we can get to has more broad implications and we've had time to see that decision bear out in terms of what it has done to exemption four but I think it remains to be seen what impacts the official wildlife services case will have on exemption five but I don't see it as some game changing I don't know if others disagree Yeah in terms of notice that it was idiosyncratic and I think during oral arguments there was some chatter going on whether the case was really a FOIA case or whether it was an endangered species act case because it dealt with records that were required as part of administration of the endangered species act Katie I think I cut you off I'm sorry No I think I actually cut you off I was just going to say that I agree actually I think it doesn't seem to be a huge departure from the way the species case was going it has been going for quite some time in terms of the interpretation of exemption five and the scope of the deliberative process published and so I agree completely with Leslie that it's the Arctic leader decision is far more impactful in terms of its practical ramifications on requesters and again I'll just reiterate that both of them were pre foreseeable harm and I think foreseeable harm the foreseeable harm provision has the most work to do in exemption five so even how impact will be especially wildlife services and the interpretation of the scope of the exemption how that will play out post foreseeable harm I think it may end up not being particularly practically impactful for practitioner's approaches let's talk about exemption four and the food marketing institute versus our this leader which the Supreme Court in 2019 redefined the word confidential employees exemption four which as you know trade secrets and commercial or financial information obtained from a wide range of entities that is privileged and confidential and the Supreme Court a little bit confidential use anything quote customarily and actually treated as private by its owner and then a question that came up during oral argument in that case but I'm going to ask the three of you and that is what is the stop an agency I mean not an agency entities from customarily and actually treating as private everything that's submitted to the government I mean anyone who's worked on a sort of regulatory matter in private practice responding to an inquiry from a state attorney general or something knows but companies do treat everything as private so that doesn't entirely answer the question and that's where I think to go to Katie's point I mean in many ways if we come back to what the foreseeable standard what's the foreseeable harm standard means and we ask what is the interest that is being protected by the exemption we come back to the interest is in some sort of competitive apartment so I think in a lot of ways and obviously this remains to be tested but the impact of the Supreme Court's decision should be very minimal and we should end up back at something that looks like the competitive harm standard that we had before but I think this comes up a lot in a variety of cases and the real question is what is the government doing with these records if it's relying on them to regulate in some way then it doesn't matter what the position of the company is in a certain way whether I mean that's it becomes part of the government regulatory process. Michael Katie Yeah I mean I think it's just a big concern and I think it's what the court's question was about but if anybody has ever seen companies like to put on we'll use emails as an example companies usually automatically stamp all their emails confidential or privileged most people know that just because you have a stamp on it it doesn't really mean anything now that may mean something and there will be problems when it comes to transparency but I think as Alexandra said we have to wait and see and see what the interplay is between the decision and how foreseeable harm the new provision how the courts look at it and just go from there I think it's too early to tell. Katie did you have anything you'd like to add? Katie We the recorders committee filed and the Oregon leader made this point that was a pre-2016 amendment case that foreseeable harm basically does the work of the national parks test which is what the D.C. circuit has been applying for quite some time which is this requirement of competitive showing a competitive farm and basically saying that maybe the court should the court was appropriately granted it didn't quite work out that way it would have been nice maybe if it did I do think that a practical matter we're seeing some problematic what I would say is problematic exemption for cases there's a case pending in the 9th circuit the request was made by the Center for Investigative Reporting it was mitigated by the Department of Labor right after the court issued a favorable opinion on the exemption for withholdings in that case the private companies one of the private companies whose information was reportedly at issue intervened for purposes of appealing the decision the Department of Labor wasn't going to and I do question whether pre-argued leader that would have been a step that they would have taken I think it has broadened the scope of the application of the initial exemption which is the question that courts are looking at first so I do think it is I agree completely with Lexi and Michael that for civil harm it obviously applies exemption for it's going to be it applies to exemption for I think how that's going to play out we'll just have to wait and see okay let's jump to the COVID-19 pandemic can we still talk a little bit not just through the FOIA lens but sort of broadening out how the COVID-19 pandemic has affected government transparency yeah I can start with that on the plus side you've had a lot more especially at local levels public meetings over zoom which means they're a lot more accessible to the public people are able to be eating dinner at home helping their kids with homework going on at a public meeting and even participate in some circumstances so I think part of it the pandemic has been helpful same with some courts around the country now their proceedings are more accessible online than they were before so from that perspective I think the pandemic has helped further or advance use of technology to make government more available to people I'd say that's the plus the negative is FOIA processing is at a snail's pace and it probably was beforehand but you know where I would have 500 pages reviewed by an agency every month I now have 300 pages being reviewed every month and if you have a couple thousand pages that need to be processed these cases are going to go on 2, 3, 4, 5 years and by the time you get to the end of it you're going to forget what you even asked for and why you were interested in it so I mean I think that's problematic that being at the federal level at the local level you had places like DC where they essentially suspended the time limits that the agencies had to respond to FOIA requests which means you couldn't sue over the request which means practically speaking FOIA was shut down Montgomery County, Maryland had the same and other counties around the country also so I think the pandemic has been problematic I mean on a lot of reasons but just talking about open government when it's come to FOIA it's really slowed down and made records less available to the public and so it sounds like good on the open meetings front but not so good on the open records front Kavie Alexander what are you all seeing? Yeah, I think Oh, don't have any Go ahead Okay, I'll I think I get asked this question a lot and my response is sort of how has the pandemic not affected youth and transparency? I think it's really affected every aspect of it and I appreciate Michael pointing out that it's a bit of a mixback actually there are some positives I think the live streaming of appellate proceedings not just live streamed audio at the Supreme Court the live streamed audio among the federal court appeals consistently we're seeing access, telephonic access to federal district court proceedings and I will say as a member of the public and as an attorney it's great for me to be able to listen to a hearing that's going on in I don't know the Southern District of California or the Central District of California which I would have never been able to hear before so I think those are all good positive things for the public even on the court access side there are some areas where the pandemic has been pretty devastating though for public access particularly among state trial courts particularly in the criminal context it's very difficult for reporters to report on issues arising out of requests to be to be let out of prison while their sentences are pending because of COVID so a lot of those have created some problems I would say on the open meeting side again it's a bit of a mixback you do have some local agencies that are using Zoom really effectively again you have other communities that don't have those kinds of resources that don't even have broadband in some cases so it's a real mixback I would say on the FOIA front it's not there are still shining lights perhaps I think in terms of FOIA and state public records it's been difficult I think FOIA has already there was already a backlog I think if you look back at the backlog from the 2016 shutdown which was about a month long we're still seeing the impact from currently and so you think about FOIA processing being delayed in some cases there are some agencies that are still operating we'll say that they're operating their FOIA processing at 50% of what they were a year ago that's been a year and so you think of the delays in the backlog that's just being built up it's really terrifying to think about I will note that as as Lambert said during his talk with Adam that it is agency by agency so we certainly saw on the as litigants there were agencies that operated on classified servers that had to shut down their FOIA processing that wasn't true with respect to all agencies so it isn't across the board but we've certainly seen things slow down I would say pretty significantly everywhere and that was also Michael pointed out that that's the case the state public records level as well and it has been it's not just municipalities and states that have stopped through emergency action stopped FOIA processing or stopped compliance with the act which we have seen but it's also just sort of across the board the same kind of issues you might see at the federal level people aren't going into the office they don't have access to the record and it's really slow things down Ellen Sandra I agree with everything they've both said I don't have a lot to add I think what Katie said at the very end about classified records is where I've seen the biggest impact at the federal level so national security related cases even if they're already in litigation and there have been commitments to produce a certain amount if the AUSA says they can't go into the secured facility to review the documents then you're at an impact and that might be one thing if COVID lasted three months but it's now a year later and there has to be some other measure in place I think one thing we need to turn it over to questions soon but I wanted to ask you just one more question before Marcia hops on with questions and that is that various studies show an increase in the number of FOIA cases filed in the last several years and also increased numbers of FOIA requests from businesses and parties seeking their own records so people seeking records about themselves that brings me to the question is FOIA becoming less of a disclosure statute and we'll go Katie, Michael, Alexandra I don't think so I mean we've certainly seen an uptick and I think it's been pretty steady and consistent a sharp uptick in the number of FOIA requests and in FOIA litigation under the Obama administration that went up during the Trump administration I expect that we'll go up with the Biden administration I think it's sort of a trend that we will see increase I don't necessarily think that makes the statute or the act used by commercial requesters for example I don't think that makes it any less of a tool for public access I know my constituency as a lawyer or a legal director for the reporters committee is news organization, journalists and we've only seen an increase in the interest of reporters in using the act and I'd love to hear luxury stuff on that from her time with the New York Times but I think that they're really fantastic and again I might be biased but I think there's really fantastic reporting that is coming notwithstanding the delays and the other problems that we see with just the processing and the procedures and the delay and the backlog and all of that notwithstanding all of that there are reporters and newsrooms out there that use for it incredibly effectively and do really excellent reporting based on that so I think it is still and will remain still a vital tool really for journalists I think that with this influx of requests I think to keep it effective make sure that it is effective in serving its goal that the fact that there's an increase in commercial workers I think there are other things that can be done with respect to processing including increased resources towards processing that can help make this more effective and more efficient but I don't think that means just because others are using the public that it's an important tool yeah I think FOIA is a great tool that's an imperfect tool you know I think we've done a lot of patchwork over the past 30 40 years to improve the statue but no one's really taken a step back to look at the statue as a whole and see if it's still working so I always encourage members of congress and their staff to take a step back and figure out if we rewrote FOIA today could we make it so much better make it more of a disclosure than a withholding statue I'm not quite sure there's an appetite for that in the request of community as a whole there's definitely not an appetite for that within congress but I think as Katie said it's a great tool it's successful at times I just think it could be so much more with some revisions if not a full rewriting but also as Katie said additional resources not only human capital but also the use of technology could really have the agencies really be able to respond more frequently more frequently and more quickly I mean the other thing I'll just say is there are a lot more records being created today than were being created when FOIA passed even 10 years ago I mean as I said we have email messages all other types of electronic communications you just have tons of records being created the agencies aren't equipped to handle them and I think a lot of the delays you're seeing is because you don't just have one letter being sent per day or a hundred letters being sent per day you're having thousands of emails being sent today sent each day and the agency needs to figure out how to deal with it and congress hasn't given them the resources needed to deal with it Yeah I'll take a question today I certainly agree that it's a technology problem that the number of records is vast but also the capacity to search should be also dramatically more efficient I think the question you raised about all these other people using FOIA other than journalists is that a problem and I think there could be some you can imagine some solution shy of reforming the statute that would help with some massive delay that that causes so Margaret Kwaka Denver has written a lot about first you had an article called FOIA Inc. about the problem of commercial requesters and then she followed that up with an article first person FOIA about the problem of first person requesters and they're different agencies for which those are different problems so regulatory agencies like FDA have the commercial requestor problem say immigration agencies like CVP have the first person FOIA problem and you could imagine for instance the sort of VIP access for news media requesters we already have the fee waiver system but a way to get a human being on the phone to address something to move it through more quickly to sort of privilege what the statute is designed to do in terms of informing the public without necessarily sort of creating bright line rules about who gets to be a requestor or not. Well that's certainly an interesting idea so we have one question via WebEx that I'd like to ask and you've probably seen it in the chat but it does foreseeable harm play against the chilling effect in any way for open and candid discussions. I mean that's the agency argument every time right that it inhibits the candor of agency discussions if all of this comes out and then I mean I think it's a real question for the requestor community to talk about what the foreseeable harm standard means for exemption for if you think it's easier how you show that what exactly is the showing that we expect of agencies for them to meet their burden of showing that disclosure would cause foreseeable harm I think is a harder question and you know when we litigate we say all of these assertions are speculative and so forth but I think it's hard to articulate what the definition of showing is on the part of the agency that disclosure would indeed harm the candor of deliberations which is a valid interest protected by the exemption. I would just say on that deliberate process privilege in the civil discovery context at least in the DC circuit is different than it is in the FOIA context and it's not supposed to be that way and so courts know how to handle this exact issue and they do it in the civil discovery discovery context and I would just argue that we have to get back to that when it comes to FOIA. I think the 9th circuit still treats deliberate process privilege the same where you really look at the foreseeable harm of the decision making process the particular decision being made and not this general idea that any decision making process in the future may be detrimental to release the records because it is it's hard to figure out what it means to be acting in a fishbowl as one of the agencies like to talk about. Just brought a case on to appeal that concerned final drafts of a statement by former acting Attorney General Sally Yates and the question is that her delivery if her draft statement would be made public does that mean future Attorney Generals would be afraid to have opinions that doesn't really seem to make sense but it may make sense when it comes to particular decisions especially for lower level employees but once you're a political appointee it doesn't make as much sense so the courts know how to deal with this issue we just need to get back to what the exemption was supposed to be. Do you have anything to add? Yeah, I agree with a lot of what Michael said I think that the common law the political process privilege is what FOIA is supposed to incorporate it's been interpreted quite broadly in the FOIA context and really gotten away from initial if you look back at older DC circuit decisions that are intended to address the scope of the deliberative process for the coastal states for example some of the factors the courts look at there is the communication from someone who is in an inferior position to a superior is someone in a superior position those are things that can also go and I can be considered you're trying to determine whether or not it's the harm that the agency is asserting is going to befall if the disclosure is made is a harm to the decision making process because disclosure of this document is going to chill candid communications like this in the future I think these are all these factual factors that go into play whether or not that harm is really reasonable it's reasonable for the agency to make that harm so I agree that there is an aspect of the placebo harm provision in the deliberative process context which is about bringing it back in line so what it was really intended to begin with and has really just been expanded and expanded in the FOIA context over I would say over the years great thank you so we do have another question someone writes in I'd be interested if the current panel has any suggestions on how to solve the processing delay issues for classified records do they see judicial orders forcing staff to come in during the pandemic do they have ideas I just wanted to clarify one thing which is to say that just because an agency does go across the single review on a classified server does not necessarily mean that those documents are classified and I think State Department is a good example where they effectively from down there for processing regardless of the nature of the request in part because they were doing everything on classified servers and that I think is a I think they're moving away from that actually and I think that that's one way you can help address this problem of ensuring that not having not requiring everything to be done whatever that what's being requested is and you know those types of records don't need to be stored in that way for example that's one way to I would think to address that potential problem I'll just say I think a judicial order is a last resort and you hope that you can work something out with the attorneys on the other side and it might not be the AUSA assigned to the case but a colleague who can go in and do some of the review particular and you know in the one case I'm thinking of where this is really an issue I gather very few people are allowed at a time in the facility anyway so with what we know now without COVID I think the risks are somewhat minimal there was a sort of funny back and forth where I was told you don't actually expect someone to go in and I said well you do receive your paper every day right I mean someone is going into the printing press when we consider it an essential operation it manages to happen so but I would hope that we don't need to get to the judicial order part in those cases Michael did you have anything to add I don't have anything to add on that okay great well thank you so I don't believe we have any other questions Marsha do we have any others can I add one thing Christian of course I enjoyed this discussion it's always good to hear practitioners talk about the real mini gritty so that was a very nice discussion I enjoyed all of that oh thank you so much so thank you no other questions yep okay thank you Marsha oh there is there is one other so I think I will ask this I will ask it of Alexandra and then I will turn it over to Alina for closing remarks so this question is then also does the contract corollary harm against the foreseeable harm and I'm asking that of you yeah I think this is a reference to the consultant corollary and I don't think there is odds with one another I think one's a question of what is included in inter and intra agency and then one's a question of even if you fall within the exception then have you also shown foreseeable harm that would result from disclosure so I think there are sort of two stages of the inquiry and not in conflict okay Alina I'm going to send it over to you but I would like to thank Alexandra, Katie and Michael so much for this I'm sorry we are not on the stage in the gallant theater in person but perhaps the next time we will all be together so over to you Alina yes, totally a great question I hope we can all be together next year I hope everyone can join us in thanking our panel participants it was a great discussion I think we could also have gone another hour so maybe next year we'll schedule it for a little bit longer David do you want to say a few parting remarks before we close up I just want to add my thanks to the panel and to my favorite judge in the DC district court and Adam we're looking forward to being able to launch that biography here at the National Archives Adam so get cracking thanks to all of you who have tuned in and I hope you have learned as much as I have and enjoyed the conversation stay safe and hope to see you in person I hope next year I really appreciate it I just want to thank everyone who participated in today's event thanks for our virtual viewing audience for joining us for celebration sometime week at the National Archives I would like to just give a special thanks to our amazing OJIS staff who is instrumental in planning and executing this great afternoon thanks also to special assistance to the archivist Maureen McDonald our deputy director of congressional fair Sean Wharton and to our WebEx special events and AD staff which is really Jamie Atkinson for ensuring that everything ran smoothly if you'd like to learn more about the work that we do at OJIS please visit our website archives.gov read our blog the FOIA Umbudsman and follow us on our twitter handle at FOIA underscore thank you again to everyone for joining us for our sometime week celebration and we hope you will join us again next year stay safe thanks everyone bye bye that concludes our event thank you for using event services you may now disconnect