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SJC-12884,
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Rahimah Rahim v. Rachael Rollins
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in our official capacity as district attorney.
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And I'll also tell counsel that
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Justice Cypher is recused from this matter.
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So we'll start with Ms. Cook.
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May it please the court.
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Kate Cook on behalf of Rahimah Rahim.
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This case turns on two questions.
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First, does Massachusetts law require the district attorney
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to produce records it received from a federal agency?
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And if so, does federal law compel a different result?
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On the first question,
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there can be no doubt that documents
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that the district attorney received,
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relied upon and has retained for several years
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are public records under Massachusetts law.
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The definition of a public record under Massachusetts law
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is any document made or received by a state agency.
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Ownership has no bearing on a state actor's
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obligations under the law
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and there's certainly no exemption for a loan.
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The district attorney did not extinguish
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its Public Records Law obligations
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by entering what it described in its findings report
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as a nondisclosure agreement with the FBI.
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The court made this clear in Champa v. Weston Public Schools
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holding that a confidentiality agreement
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cannot trump the Public Records Law.
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The district attorney in the United States
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have failed to meet their significant burdens
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to show that any exemption applies
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or why none of the records can be produced with reductions.
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As to Statutory Exemption A,
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there simply is no provision in FOIA
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expressly or as a practical matter
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that prohibits disclosure of documents
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in the possession of state agencies.
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FOIA by its own terms does not even apply to state agencies.
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And for a recent example
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of a state rejecting this very argument,
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C. Harper versus Missouri State Highway Patrol
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cited in our reply brief.
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On the second question,
Ms. Cook.
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nothing in federal the law
Ms. Cook,
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I have a question for you.
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Yes.
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Can you address the investigatory exception?
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Because I think the strongest argument
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perhaps from the government
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is that if these records are turned over
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the next time we have a shooting
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that involves our state or federal joint investigations,
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they're not gonna give it to us.
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So that involves an investigatory technique
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which is going to harm public safety.
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So could you address that please?
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Absolutely your Honor.
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There are several reasons why this court
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can enforce the Massachusetts Public Records Law
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and it will not jeopardize public safety
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or future federal state investigations.
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First and foremost,
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let's talk about what these documents are,
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and what they're not.
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These documents were not provided
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to the District Attorney's Office
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during the course of the JTTF investigation.
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They were provided to the district attorney
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at its request after law enforcement officers,
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an FBI officer and a Boston police officer
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shot and killed Ms. Rahim's son.
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Secondly, I anticipate my brother and my sister
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will tell you one of the major reasons
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why this might harm future federal state cooperation
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is because releasing these documents to Ms. Rahim
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will reveal the names
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of the officers involved in the shooting.
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However, that overlooks the fact that over two years ago,
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Ms. Rahim agreed to accept the records
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with any personally identifying information redacted.
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A third and major reason
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why I think the court can take comfort
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that it can enforce this law
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without jeopardizing future investigations
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is that our Massachusetts Public Records Law
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has several and significant exemptions
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that the legislature has carefully balanced
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the need of the public to receive documents
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against various public policy interests,
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including as your Honor notes, the investigatory exemption.
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And we do not dispute that
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there very well could be information in these records
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that is subject to the investigatory exemption.
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What we do dispute is that at this time
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the district attorney has actually met a significant burden
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to prove a specificity
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that any of the information actually meets that exemption.
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I read the so-called Vaughn Index
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and I take your points on specificity in that.
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But you still respectfully haven't answered my question
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about investigatory techniques
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and your client rightfully had a FOIA request
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that was denied and then we get this litigation
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under the Public Records Law.
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And I also very well take your arguments
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that they're two separate analysis
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on the preemption argument,
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which I guess we'll get to.
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But the question I specifically asked you is,
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under the investigatory exception,
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the government argues that if
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someone is able to essentially get
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what used to be federal records,
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assuming that you're correct on possession,
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in this way, the next time there's a shooting
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or the next time the BPD asks for federal documents
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and the feds give it to them under these caveats,
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they're not gonna do it because it's gonna be disclosable
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under the state Public Records Law.
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How do you address that part of the investigatory exception?
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So, I think the United States itself
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has conceded your Honor
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that there are alternative ways
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that they could provide information,
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cooperate with an investigation
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when an FBI officer kills a Massachusetts citizen
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without actually depositing those documents
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where it triggers our Massachusetts state
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Public Records Law.
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They could also perform a live interview.
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There are other ways to do this
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and I would also note, other states--
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They're gonna have to say, "Come down to the Moakley,
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"go into a conference room and read, and then leave."
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Yes your Honor.
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They could do that or they could know
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that we have a very rigorous and robust Public Records Law
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that protects investigatory techniques
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under our state Massachusetts Public Records Law
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Exemption (F).
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And if the court enforces a Public Records Law in this case,
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and it's remanded,
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there will be significant discussions
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and protections provided by that exemption
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to ensure that investigatory techniques
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and the other things that our state legislature have decided
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should be protected would be withheld.
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And I'll turn it to Justice Lowy in a second,
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I just have one last follow-up question on that Ms. Cook.
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And I should probably know this but you'll tell me.
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The remedy you're seeking is a remand
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to really look at
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the sufficiency of the investigatory exception
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as applied in this case, correct?
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We're realistic that
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we don't think the lower court actually did a deep dive
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into what exemptions apply and how.
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Obviously in our complaint and in our briefing,
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we have sought the release of the public records
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to Ms. Rahim, but of course that's always a subject
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to the exemptions that apply.
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And there's other exemptions your Honor,
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that I think the United States and the district attorney
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could take comfort in based on their contention
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that releasing these documents
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jeopardizes future investigations and cooperation,
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including the Public Safety Investigation,
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Great, can I ask you with privacy?
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cause of privacy investigation.
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And as I said, we have already agreed--
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The privacy exemption.
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Pardon me.
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The privacy exemption, right?
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Yes your Honor.
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Okay, thank you.
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Justice Lowy.
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Yes.
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Ms. Cook, what about if there really is a conflict
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with the federal statute
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and that the federal courts would interpret
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the reasonably interfere with law enforcement
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more broadly than we might with our Public Records Law.
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If it's a conflict,
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wouldn't the federal disclosure regime prevail?
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I don't think so your Honor.
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First of all, we are operating in Massachusetts
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on our state Public Records Law
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under Massachusetts Public Records Law.
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The FOIA law and its exemptions
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do not apply to state agencies.
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And courts around the country have reviewed the question
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of whether to incorporate FOIA exemptions
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when a custodian objects 'cause they don't wanna release
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federal documents that they've received
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to conduct state or local government business,
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and courts have routinely said
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that's clearly not what Congress meant
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when they drafted FOIA.
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I think one of the first lines in the statute
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is referring to an agency
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and it's referring to federal agencies.
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So the fact that if a request is made to the FBI
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and they might interpret their federal statute,
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which applies to federal agencies and does not apply
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to the Suffolk District Attorney's Office differently,
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I don't think creates the kind of conflict
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that's contemplated by the Supremacy Clause.
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As this court has said, the Supremacy Clause
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is not a source of federal rights.
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It merely accords priority when there is a conflict
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and there's not a statutory conflict
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between the federal law and our state law.
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There might be a difference of view or desire
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from what the FBI would like
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and what actually is said in the FOIA
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versus our state Public Records Law
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but that's not the kind of conflict
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that triggers the Supremacy Clause.
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Justice Kafker.
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I'm following up on Justice Lowy's question,
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'cause I'm not sure I understand.
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So we have, these were originally federal documents,
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they're federal documents, right?
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There's a federal FOIA request, it's denied.
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So federal government has decided under FOIA,
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this stuff shouldn't be (indistinct), right?
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And now they've loaned the documents
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or even passed on the documents to the state.
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Isn't there a conflict
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between the state's Public Records Law and the federal law
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when the application...
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FOIA says, "Don't release these documents."
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These are federal documents
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and now they're gonna be released
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under the state Public Records Law.
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Isn't that a direct conflict?
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I'm confused.
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If the application of the statute
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leads to different results for federal documents,
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isn't that a conflict governed by the Supremacy Clause?
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No, it's not your Honor.
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First, I just wanted to clarify
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the request that was made to the district attorney
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happened simultaneously with the request
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to the federal government.
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So it's not as though Ms. Rahim
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waited for a rejection and then tried to do a back run
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as I think my brother suggests.
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I just wanna correct that.
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I don't think that matters.
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But it is the (indistinct) included...
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I agree with you.
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I don't think there's anything suspicious
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about what you did, I'm just...
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See, the results...
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I just can't see how we could have
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different results on federal documents
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without having a Supremacy Clause problem.
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So it actually happens all the time.
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And first, the FOIA does not expressly say that
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these particular documents shall not be released.
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That is an interpretation by the FBI
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of what the exemption means and how it applies.
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And the FBI, I would submit,
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when they entered their non-disclosure agreement
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with the District Attorney's Office was well aware that
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states have their own public records laws,
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and that these documents very well
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might be subject to the state public records laws,
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because we're not the first state
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where this issue has arisen.
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And I would suggest your Honor,
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if you look at the Harper case,
275
00:12:15.360 --> 00:12:16.720
this exact argument was made.
276
00:12:16.720 --> 00:12:19.810
Isn't there a conflict that triggers a Supremacy Clause
277
00:12:19.810 --> 00:12:23.300
between FOIA and there the Missouri Sunshine Law?
278
00:12:23.300 --> 00:12:25.430
And the court said, "No."
279
00:12:25.430 --> 00:12:27.090
If you look at that language,
280
00:12:27.090 --> 00:12:29.480
if you do a textual read of FOIA,
281
00:12:29.480 --> 00:12:31.550
there's no way that Congress intended it
282
00:12:31.550 --> 00:12:34.470
to extend to states, period.
283
00:12:34.470 --> 00:12:35.390
Much less
284
00:12:36.560 --> 00:12:38.430
how states incorporate
285
00:12:39.912 --> 00:12:42.240
and interpret their Public Records Law.
286
00:12:42.240 --> 00:12:46.090
Ms. Cook, is this label an issue in that
287
00:12:46.090 --> 00:12:49.487
one of the premises is that these are federal documents
288
00:12:49.487 --> 00:12:52.510
and your position is, once they were given to the state
289
00:12:52.510 --> 00:12:53.980
and came in possession of the state,
290
00:12:53.980 --> 00:12:57.580
they're no longer federal documents,
291
00:12:57.580 --> 00:13:01.700
that they're documents that are possessed by the state
292
00:13:01.700 --> 00:13:04.276
and subject to our public record?
293
00:13:04.276 --> 00:13:05.109
So your Honor,
294
00:13:05.109 --> 00:13:10.109
we don't dispute that these may well be federal property
295
00:13:10.640 --> 00:13:12.900
as my brother claims.
296
00:13:12.900 --> 00:13:16.150
What we are asking this court to affirm
297
00:13:16.150 --> 00:13:18.610
is the fact that our state legislature
298
00:13:18.610 --> 00:13:21.730
has chosen to define public records
299
00:13:21.730 --> 00:13:24.490
as anything made or received.
300
00:13:24.490 --> 00:13:28.550
And I would submit, our state agencies and local governments
301
00:13:28.550 --> 00:13:31.300
receive federal documents all the time
302
00:13:31.300 --> 00:13:35.860
on every possible important issue of public policy.
303
00:13:35.860 --> 00:13:38.890
So if the court today finds that somehow,
304
00:13:38.890 --> 00:13:41.140
just because they came from the federal government,
305
00:13:41.140 --> 00:13:42.270
even though the legislature
306
00:13:42.270 --> 00:13:45.683
has not created any kind of ownership
307
00:13:47.650 --> 00:13:52.050
or property requirement for deciding when
308
00:13:52.050 --> 00:13:55.820
agency has to respond to a public records request.
309
00:13:55.820 --> 00:13:57.400
But if suddenly all documents
310
00:13:57.400 --> 00:14:00.598
that our agencies receive from federal governments
311
00:14:00.598 --> 00:14:02.640
are no longer subject to the Public Records Law,
312
00:14:02.640 --> 00:14:05.080
we will effectively have gutted the law
313
00:14:05.080 --> 00:14:07.740
in large part on a lot of very important areas
314
00:14:07.740 --> 00:14:11.120
that I don't think that our state legislature intended.
315
00:14:11.120 --> 00:14:14.190
And again, and this goes back to Justice Kafker's question,
316
00:14:14.190 --> 00:14:16.590
I don't think you can read FOIA
317
00:14:16.590 --> 00:14:20.150
and reasonably see that that statute
318
00:14:20.150 --> 00:14:23.080
creates a conflict with our state Public Records Law.
319
00:14:23.080 --> 00:14:24.630
It doesn't apply.
320
00:14:24.630 --> 00:14:25.580
In your position,
321
00:14:27.820 --> 00:14:31.230
it makes no difference what preconditions
322
00:14:31.230 --> 00:14:34.840
are established by the feds to get the documents.
323
00:14:34.840 --> 00:14:38.020
And you're referring to the cover letter?
324
00:14:38.020 --> 00:14:39.430
Right.
325
00:14:39.430 --> 00:14:43.580
Your Honor, I don't think that our state agencies,
326
00:14:43.580 --> 00:14:45.970
just like the school district in Champa
327
00:14:45.970 --> 00:14:47.810
can enter side agreements to...
328
00:14:47.810 --> 00:14:49.010
We're gonna call this a loan
329
00:14:49.010 --> 00:14:51.460
so it won't be subject to the Public Records Law.
330
00:14:52.682 --> 00:14:56.090
If every records custodian in the Commonwealth can do that,
331
00:14:56.090 --> 00:14:59.920
then our entire Public Records Law system
332
00:14:59.920 --> 00:15:03.283
has essentially gone down the gutter or could.
333
00:15:05.720 --> 00:15:07.643
Okay, other questions for Ms. Cook?
334
00:15:09.230 --> 00:15:11.780
Let's go with Justice Lenk and then Justice Kafker.
335
00:15:15.871 --> 00:15:17.224
Unmute.
336
00:15:17.224 --> 00:15:18.307
There you go.
337
00:15:23.751 --> 00:15:24.790
I thought that I was gonna get through a session
338
00:15:24.790 --> 00:15:26.282
without having done that (indistinct).
339
00:15:26.282 --> 00:15:27.115
(laughs)
340
00:15:27.115 --> 00:15:30.390
Anyway, I wanted to know whether you could help me
341
00:15:30.390 --> 00:15:32.870
figure out whether or not Harper from Missouri
342
00:15:32.870 --> 00:15:35.120
is the only case that supports your position.
343
00:15:36.130 --> 00:15:38.150
No your Honor, there are other cases
344
00:15:38.150 --> 00:15:41.023
and they're cited in both our opening brief.
345
00:15:42.630 --> 00:15:46.010
And one is out of the State of Washington.
346
00:15:46.010 --> 00:15:48.250
Progressive Animal Welfare Society
347
00:15:48.250 --> 00:15:50.330
versus the University of Washington.
348
00:15:50.330 --> 00:15:52.500
That's a case where the university
349
00:15:52.500 --> 00:15:54.160
had received federal documents
350
00:15:54.160 --> 00:15:56.340
from the National Institute of Health,
351
00:15:56.340 --> 00:15:59.080
which the federal government very much claimed
352
00:15:59.080 --> 00:16:00.410
were subject to an exemption
353
00:16:00.410 --> 00:16:03.490
and did not want the documents to be released.
354
00:16:03.490 --> 00:16:05.250
And the State of Washington held
355
00:16:05.250 --> 00:16:07.190
under our state Public Records Law,
356
00:16:07.190 --> 00:16:09.330
not withstanding claims of preemption,
357
00:16:09.330 --> 00:16:12.210
not withstanding a Supremacy Clause argument,
358
00:16:12.210 --> 00:16:15.550
that as I've already stated,
359
00:16:15.550 --> 00:16:19.410
because FOIA only applies to federal agencies
360
00:16:19.410 --> 00:16:22.103
and not state actors, there is no conflict.
361
00:16:23.593 --> 00:16:25.620
Both the federal statute in...
362
00:16:25.620 --> 00:16:27.377
Excuse me, the federal FOIA statute
363
00:16:27.377 --> 00:16:31.110
and the Washington Public Records Law are in harmony
364
00:16:31.110 --> 00:16:33.690
and those documents had to be produced.
365
00:16:33.690 --> 00:16:35.910
Of course, subject to their own exemptions.
366
00:16:35.910 --> 00:16:38.980
Similarly, Missouri actually had a prior case.
367
00:16:38.980 --> 00:16:41.810
I believe it's Allen versus Department of Elementary
368
00:16:41.810 --> 00:16:43.490
and Secondary Education,
369
00:16:43.490 --> 00:16:44.980
where they similarly found
370
00:16:44.980 --> 00:16:48.320
again, there was a claim that FOIA should apply,
371
00:16:48.320 --> 00:16:51.057
should preempt, and the court said,
372
00:16:51.057 --> 00:16:53.970
"No, under our state Records Law,"
373
00:16:53.970 --> 00:16:55.760
which Missouri has a very similar
374
00:16:56.660 --> 00:16:58.550
Public Records Law to Massachusetts,
375
00:16:58.550 --> 00:17:00.670
instead of saying any document made or received,
376
00:17:00.670 --> 00:17:02.540
it's, any document retained
377
00:17:03.490 --> 00:17:07.347
and which has a similar touchstone of possession
378
00:17:07.347 --> 00:17:09.770
and reach the same conclusion.
379
00:17:09.770 --> 00:17:11.230
Those documents had to be released
380
00:17:11.230 --> 00:17:12.970
under state Public Records Law.
381
00:17:12.970 --> 00:17:15.370
And there's some other cited in our reply brief.
382
00:17:16.220 --> 00:17:18.370
Could you tell me roughly how many states are involved?
383
00:17:18.370 --> 00:17:19.770
How many States do you have?
384
00:17:22.050 --> 00:17:24.430
I believe we have four.
385
00:17:24.430 --> 00:17:25.263
All right.
386
00:17:26.661 --> 00:17:27.494
Any go the other way?
Pardon me.
387
00:17:27.494 --> 00:17:29.030
Did any go the other way.
388
00:17:29.030 --> 00:17:30.618
Not that I'm aware of your Honor.
389
00:17:30.618 --> 00:17:31.690
Okay.
390
00:17:31.690 --> 00:17:33.330
My brother and sister will tell you
391
00:17:33.330 --> 00:17:34.630
this is just like Napa
392
00:17:34.630 --> 00:17:37.130
and you should do exactly what the district court
393
00:17:37.130 --> 00:17:38.930
and the 11th Circuit Court of Appeals
394
00:17:38.930 --> 00:17:40.750
did in the United States v. Napa.
395
00:17:40.750 --> 00:17:42.160
But I will tell you,
396
00:17:42.160 --> 00:17:43.600
this is not like Napa
397
00:17:43.600 --> 00:17:45.850
because the United States v. Napa case
398
00:17:45.850 --> 00:17:48.090
was not a public records case.
399
00:17:48.090 --> 00:17:51.110
Ms. Rahim is before the state's highest court
400
00:17:51.110 --> 00:17:54.480
asking you to enforce our state Public Records Law.
401
00:17:54.480 --> 00:17:56.400
In Napa, that did occur,
402
00:17:56.400 --> 00:17:59.010
but not in the case that my brother and sister rely on.
403
00:17:59.010 --> 00:18:00.700
It happened in an earlier case
404
00:18:00.700 --> 00:18:02.730
before the Georgia Supreme Court,
405
00:18:02.730 --> 00:18:06.230
where that court found under the Georgia Public Records Law,
406
00:18:06.230 --> 00:18:08.320
indeed these records should be released.
407
00:18:08.320 --> 00:18:09.990
What United States v. Napa is,
408
00:18:09.990 --> 00:18:13.130
is a very different case and a different question.
409
00:18:13.130 --> 00:18:15.630
And it involves the fact that
410
00:18:17.230 --> 00:18:19.170
the United States has shared documents
411
00:18:19.170 --> 00:18:21.520
with the City of Atlanta,
412
00:18:21.520 --> 00:18:23.410
pursuant to a federal statute,
413
00:18:23.410 --> 00:18:25.760
which has not been cited, is not claimed,
414
00:18:25.760 --> 00:18:27.960
is not relied upon in this case.
415
00:18:27.960 --> 00:18:32.710
That statute said, if these records are disseminated,
416
00:18:32.710 --> 00:18:35.500
we get to cancel the agreement and get our records back.
417
00:18:35.500 --> 00:18:37.240
And that's what the United States
418
00:18:37.240 --> 00:18:39.570
in their complaint in the district court
419
00:18:39.570 --> 00:18:42.880
sought to plow back and receive their documents
420
00:18:42.880 --> 00:18:44.330
and the court agreed.
421
00:18:44.330 --> 00:18:48.140
And the 11th Circuit affirmed that.
422
00:18:48.140 --> 00:18:49.890
But that's a very different issue.
423
00:18:49.890 --> 00:18:51.990
That issue hasn't arisen in this case.
424
00:18:51.990 --> 00:18:52.823
Could it?
425
00:18:55.170 --> 00:18:57.700
In this case before the SJC?
426
00:18:57.700 --> 00:18:58.533
Yeah, could it?
427
00:18:58.533 --> 00:19:01.610
Because there's no such statute that's being claimed.
428
00:19:01.610 --> 00:19:03.697
There's no statistics that are applicable or what?
429
00:19:03.697 --> 00:19:07.780
So I think there's several reasons why it couldn't
430
00:19:07.780 --> 00:19:09.050
and it hasn't happened here.
431
00:19:09.050 --> 00:19:11.120
Okay.
First of all, in Napa,
432
00:19:11.120 --> 00:19:13.083
the United States sought to intervene.
433
00:19:14.100 --> 00:19:17.320
In Napa, there was the federal statute at play,
434
00:19:17.320 --> 00:19:19.540
which clearly did have a conflict
435
00:19:19.540 --> 00:19:21.090
with the state Public Records Law.
436
00:19:21.090 --> 00:19:23.390
The federal court was left with a decision of,
437
00:19:24.390 --> 00:19:27.370
are we going to enforce what Congress has decided
438
00:19:27.370 --> 00:19:29.700
should be the rights of the federal government
439
00:19:29.700 --> 00:19:30.970
to retrieve its property?
440
00:19:30.970 --> 00:19:32.530
And it decided in the affirmative.
441
00:19:32.530 --> 00:19:35.030
I submit your Honor, those facts just aren't here.
442
00:19:35.030 --> 00:19:39.290
So it's not that maybe under some factual situation
443
00:19:39.290 --> 00:19:42.220
that could occur, but that hasn't happened here.
444
00:19:42.220 --> 00:19:44.350
There's no clawback statute at play.
445
00:19:44.350 --> 00:19:45.783
It hasn't been cited,
446
00:19:47.821 --> 00:19:48.654
and the United States
447
00:19:48.654 --> 00:19:51.710
hasn't asked for their property back either.
448
00:19:51.710 --> 00:19:53.191
Okay.
449
00:19:53.191 --> 00:19:54.024
Justice Kafker.
450
00:19:54.860 --> 00:19:56.720
The Washington case you mentioned,
451
00:19:56.720 --> 00:19:58.450
was there a prior determination
452
00:19:58.450 --> 00:20:00.240
that FOIA would not have allowed
453
00:20:00.240 --> 00:20:02.200
the disclosure of the federal document
454
00:20:02.200 --> 00:20:03.443
in the Washington case?
455
00:20:05.470 --> 00:20:10.470
Was there a prior decision meaning from the lower court?
456
00:20:10.790 --> 00:20:12.999
Or even, did the federal agency
457
00:20:12.999 --> 00:20:15.190
refuse to turn it over under FOIA
458
00:20:16.570 --> 00:20:20.850
and then the state overruled that decision?
459
00:20:20.850 --> 00:20:22.620
I don't think so your Honor.
460
00:20:22.620 --> 00:20:24.820
Okay, and in Napa,
461
00:20:24.820 --> 00:20:26.560
you said the Georgia Supreme Court
462
00:20:26.560 --> 00:20:29.900
says public records require its disclosure,
463
00:20:29.900 --> 00:20:33.900
and then the feds said nothing doing in Napa.
464
00:20:33.900 --> 00:20:35.540
So, isn't that right on point?
465
00:20:35.540 --> 00:20:38.750
I'm confused why that's not exactly the situation
466
00:20:38.750 --> 00:20:42.853
we're inviting if we rule the way you want us to.
467
00:20:46.280 --> 00:20:50.600
I submit that this court has the obligation
468
00:20:50.600 --> 00:20:54.640
to rule on what our Public Records Law requires.
469
00:20:54.640 --> 00:20:59.640
And it will be beneficial to custodians and to requesters.
470
00:20:59.680 --> 00:21:02.560
Are we going to allow our state agencies
471
00:21:02.560 --> 00:21:04.763
to enter agreements that they call a loan,
472
00:21:06.440 --> 00:21:07.680
and are we going to say
473
00:21:07.680 --> 00:21:10.680
any documents received from the federal government
474
00:21:10.680 --> 00:21:12.930
aren't covered by the Public Records Law?
475
00:21:12.930 --> 00:21:15.690
That's certainly not what our state legislature has set.
476
00:21:15.690 --> 00:21:18.770
And so, I don't think the court
477
00:21:18.770 --> 00:21:23.300
should make that very important decision of public policy
478
00:21:23.300 --> 00:21:26.020
based on the specter of what the federal government
479
00:21:26.020 --> 00:21:28.060
may or may not do at some time.
480
00:21:28.060 --> 00:21:29.920
And this case has been percolating
481
00:21:29.920 --> 00:21:31.300
obviously for three years,
482
00:21:31.300 --> 00:21:34.863
the United States has sent a AUSA to every hearing.
483
00:21:35.720 --> 00:21:38.253
They've had opportunities to be involved.
484
00:21:39.330 --> 00:21:41.380
They're saying that you can't turn it off.
485
00:21:41.380 --> 00:21:42.320
I mean, I read the brief.
486
00:21:42.320 --> 00:21:43.950
They disagree with you.
487
00:21:43.950 --> 00:21:47.230
They're pointing out where there is a direct conflict
488
00:21:47.230 --> 00:21:49.840
it's gonna violate the Supremacy Clause.
489
00:21:49.840 --> 00:21:51.800
They do say that your Honor,
490
00:21:51.800 --> 00:21:55.730
but they have yet to point to an actual law
491
00:21:55.730 --> 00:21:59.958
that directly conflicts with state law.
492
00:21:59.958 --> 00:22:01.470
There's no way to read FOIA
493
00:22:01.470 --> 00:22:04.950
and think that it creates any obligation for a state actor.
494
00:22:04.950 --> 00:22:08.520
It is strictly about when a federal records custodian
495
00:22:08.520 --> 00:22:12.010
perceives of public records request, what they provide.
496
00:22:12.010 --> 00:22:13.440
That's what FOIA is.
497
00:22:13.440 --> 00:22:17.060
It does not in any way speak to whether the states
498
00:22:17.060 --> 00:22:18.740
when they are in possession of documents,
499
00:22:18.740 --> 00:22:21.730
which the federal government voluntarily
500
00:22:21.730 --> 00:22:24.520
hands over to a state agency,
501
00:22:24.520 --> 00:22:26.940
how they should be interpreted.
502
00:22:26.940 --> 00:22:29.440
It just doesn't speak to it.
503
00:22:29.440 --> 00:22:31.290
Any further questions for Ms. Cook?
504
00:22:32.464 --> 00:22:34.096
Thank you.
505
00:22:34.096 --> 00:22:36.420
We'll hear from Ms. Patalano.
506
00:22:36.420 --> 00:22:37.253
Good morning.
507
00:22:37.253 --> 00:22:38.490
If it may please the court your Honor,
508
00:22:38.490 --> 00:22:40.910
it's Donna Patalano on behalf of the Commonwealth.
509
00:22:40.910 --> 00:22:43.620
I know that there is a,
510
00:22:43.620 --> 00:22:45.920
based on the questions of my sister,
511
00:22:45.920 --> 00:22:47.670
that there is this draw
512
00:22:47.670 --> 00:22:50.300
to go to the investigatory exemption,
513
00:22:50.300 --> 00:22:51.600
but I think it's important
514
00:22:53.372 --> 00:22:56.380
for the court to fully define made or received
515
00:22:56.380 --> 00:22:59.210
under the Massachusetts Public Records Law.
516
00:22:59.210 --> 00:23:02.920
Whether these federal FBI are property
517
00:23:02.920 --> 00:23:04.440
implicating national security
518
00:23:04.440 --> 00:23:06.410
and loan to the district attorney
519
00:23:06.410 --> 00:23:08.037
were in fact made or received.
520
00:23:08.037 --> 00:23:09.960
And the answer must be, no.
521
00:23:09.960 --> 00:23:12.870
And the statutory interpretation needs to be addressed.
522
00:23:12.870 --> 00:23:14.411
Well, Ms. Patalano,
523
00:23:14.411 --> 00:23:17.288
but the plain language really is against you.
524
00:23:17.288 --> 00:23:18.578
I mean--
525
00:23:18.578 --> 00:23:19.900
(indistinct) your Honor.
526
00:23:19.900 --> 00:23:22.473
Made means created,
527
00:23:23.360 --> 00:23:25.670
received means come into possession of.
528
00:23:25.670 --> 00:23:26.820
You didn't create them,
529
00:23:26.820 --> 00:23:29.727
but you certainly came in possession of these documents.
530
00:23:29.727 --> 00:23:33.200
The legislator could have said owned, they didn't.
531
00:23:33.200 --> 00:23:35.730
And the way I look at your interpretation
532
00:23:35.730 --> 00:23:39.170
of made or received, it seems to be owned.
533
00:23:39.170 --> 00:23:40.360
Your Honor, I think that
534
00:23:40.360 --> 00:23:42.844
it's important to read the words together,
535
00:23:42.844 --> 00:23:45.560
to understand the property rights
536
00:23:45.560 --> 00:23:48.820
that are implicated by made or received.
537
00:23:48.820 --> 00:23:51.730
And because it's not defined in the statute,
538
00:23:51.730 --> 00:23:53.660
you need to understand the plain
539
00:23:53.660 --> 00:23:55.960
and ordinary meaning of the words.
540
00:23:55.960 --> 00:23:58.530
And here it's really, the analogy
541
00:24:01.340 --> 00:24:03.233
is really to an easement.
542
00:24:05.515 --> 00:24:07.997
We received the federal property and the motion judge below
543
00:24:10.830 --> 00:24:13.160
did define them as federal property.
544
00:24:13.160 --> 00:24:15.960
And we received them not with the full property rights.
545
00:24:15.960 --> 00:24:20.960
We had no right to disseminate the information to anybody
546
00:24:21.180 --> 00:24:23.277
without the permission of the FBI.
547
00:24:23.277 --> 00:24:28.277
The overall gloss is for disclosure, right?
548
00:24:29.852 --> 00:24:31.130
Of the Public Records Law.
549
00:24:31.130 --> 00:24:32.000
Of public records.
550
00:24:32.000 --> 00:24:35.000
So when we're looking at the statutory interpretation,
551
00:24:35.000 --> 00:24:40.000
we have to keep in mind that disclosure is favored, correct?
552
00:24:40.650 --> 00:24:41.520
Yes.
553
00:24:41.520 --> 00:24:44.890
So when we get into this easement property rights,
554
00:24:44.890 --> 00:24:47.520
to me it seems like a bit of a stretch
555
00:24:47.520 --> 00:24:48.760
because made or received
556
00:24:48.760 --> 00:24:52.200
has particular plain language connotations.
557
00:24:52.200 --> 00:24:56.200
Well, first I do wanna clarify for the record that,
558
00:24:56.200 --> 00:25:00.070
but for a stipulation that we entered into in 2017,
559
00:25:00.070 --> 00:25:03.440
this property would be in the hands of the FBI.
560
00:25:03.440 --> 00:25:06.570
And I think that really supports our argument,
561
00:25:06.570 --> 00:25:09.050
that it was only for a loan
562
00:25:09.050 --> 00:25:11.020
that the district attorney received them.
563
00:25:11.020 --> 00:25:13.670
And public policy really supports this.
564
00:25:13.670 --> 00:25:15.720
It would be contrary to the public interest
565
00:25:15.720 --> 00:25:18.350
as you brought up in your questions,
566
00:25:18.350 --> 00:25:22.370
that a reading to release this
567
00:25:22.370 --> 00:25:24.620
when we're not the owners of this property,
568
00:25:24.620 --> 00:25:27.360
where we may not understand the importance
569
00:25:27.360 --> 00:25:30.030
of the individuals who are named
570
00:25:30.030 --> 00:25:32.120
to the investigations that are revealed,
571
00:25:32.120 --> 00:25:35.300
the investigatory techniques that are revealed
572
00:25:35.300 --> 00:25:37.830
and the cases that might be implicated here.
573
00:25:37.830 --> 00:25:39.523
That's known to the FBI.
574
00:25:40.474 --> 00:25:42.200
That gets to the exception.
575
00:25:42.200 --> 00:25:46.250
What about the point that you can contract away
576
00:25:46.250 --> 00:25:48.460
your public records obligation
577
00:25:48.460 --> 00:25:50.490
that's been raised by counsel
578
00:25:50.490 --> 00:25:54.290
by having the caveats in calling this a loan
579
00:25:54.290 --> 00:25:56.470
as opposed to a possession.
580
00:25:56.470 --> 00:25:59.833
Well, I think that when you talk about made or received,
581
00:26:01.970 --> 00:26:05.150
that has to go back the contract to the property rights
582
00:26:05.150 --> 00:26:07.330
that we had when we received them.
583
00:26:07.330 --> 00:26:10.830
And that we could not compel the federal government
584
00:26:10.830 --> 00:26:14.180
to provide us anything and to not recognize
585
00:26:14.180 --> 00:26:17.120
the reservation of rights that the FBI had
586
00:26:17.120 --> 00:26:19.810
when they provided these documents and materials
587
00:26:19.810 --> 00:26:23.180
to the district attorney would essentially chill
588
00:26:23.180 --> 00:26:25.290
whatever happens in the future.
589
00:26:25.290 --> 00:26:26.720
And you're right, these two things,
590
00:26:26.720 --> 00:26:30.870
the property rights and the investigatory exception
591
00:26:30.870 --> 00:26:34.080
really have to be read together.
592
00:26:34.080 --> 00:26:38.300
I think these were not materials that were deposited to us.
593
00:26:38.300 --> 00:26:39.660
And I think that's one of the reasons
594
00:26:39.660 --> 00:26:44.660
why the summary judge when he was considering it
595
00:26:44.780 --> 00:26:46.510
went to the Broker Analysis
596
00:26:46.510 --> 00:26:48.760
and really looked at the four factors--
597
00:26:48.760 --> 00:26:50.260
But they were deposited to you.
598
00:26:50.260 --> 00:26:52.620
Someone took a bankers box of documents
599
00:26:52.620 --> 00:26:53.670
and gave them to you.
600
00:26:55.070 --> 00:26:56.930
Well, loaned them to us, yes.
601
00:26:56.930 --> 00:26:59.800
They are supposed to be back in the property of the FBI--
602
00:26:59.800 --> 00:27:02.180
Right. And right now they're at the BPD
603
00:27:02.180 --> 00:27:03.013
or in your office, correct?
604
00:27:03.013 --> 00:27:05.040
They're in my office your Honor, yes.
605
00:27:05.040 --> 00:27:06.980
Under the 2017 stipulation.
606
00:27:06.980 --> 00:27:08.610
Otherwise, believe me they would be back
607
00:27:08.610 --> 00:27:10.250
in the hands of the FBI.
608
00:27:10.250 --> 00:27:12.050
So when you trip over them in the morning,
609
00:27:12.050 --> 00:27:14.724
wouldn't you say you've received them?
610
00:27:14.724 --> 00:27:16.910
(laughs)
611
00:27:16.910 --> 00:27:18.730
Your honor, I would prefer
612
00:27:18.730 --> 00:27:20.760
not to trip over them in the morning
613
00:27:20.760 --> 00:27:23.240
so that I would move to the...
614
00:27:23.240 --> 00:27:25.350
If the manner received in the property rights
615
00:27:25.350 --> 00:27:27.430
are not compelling to this court
616
00:27:27.430 --> 00:27:31.070
then I would certainly cite for public safety purposes,
617
00:27:31.070 --> 00:27:34.017
the public safety, the privacy
618
00:27:34.017 --> 00:27:35.961
and the investigatory exemption.
619
00:27:35.961 --> 00:27:37.550
On that, can you tell me...
620
00:27:37.550 --> 00:27:39.510
I looked at the Vaughn Index
621
00:27:40.715 --> 00:27:43.790
and there's a lot of sameness in that.
622
00:27:43.790 --> 00:27:44.623
Yes your Honor.
623
00:27:44.623 --> 00:27:47.140
I commend your office for the diligence
624
00:27:47.140 --> 00:27:49.943
in putting that together and how thorough it is.
625
00:27:50.780 --> 00:27:54.330
It certainly identifies the individual documents,
626
00:27:54.330 --> 00:27:58.000
but it has the sameness of description.
627
00:27:58.000 --> 00:27:58.833
Sure.
628
00:27:59.810 --> 00:28:01.830
How does that particularize,
629
00:28:01.830 --> 00:28:04.760
since it's your burden on an exemption,
630
00:28:04.760 --> 00:28:07.980
what needs to be litigated
631
00:28:07.980 --> 00:28:10.960
in order to satisfy that exemption?
632
00:28:10.960 --> 00:28:13.460
Well, first I do wanna point out
633
00:28:13.460 --> 00:28:18.460
that Ms. Rahim did receive over a thousand separate records,
634
00:28:18.640 --> 00:28:21.010
individual records from our office,
635
00:28:21.010 --> 00:28:22.830
and then the Vaughn Index,
636
00:28:22.830 --> 00:28:26.900
again, it's challenging in order to give specificity
637
00:28:26.900 --> 00:28:29.700
because of the investigatory exemption
638
00:28:29.700 --> 00:28:31.730
and what might be revealed
639
00:28:31.730 --> 00:28:34.360
as to matters of national security
640
00:28:34.360 --> 00:28:37.180
when there are terrorism investigations
641
00:28:37.180 --> 00:28:39.563
and that those investigations are ongoing.
642
00:28:42.222 --> 00:28:43.310
Are you relying
643
00:28:46.240 --> 00:28:47.170
on that specter,
644
00:28:47.170 --> 00:28:49.750
or are you also relying on the fact
645
00:28:49.750 --> 00:28:52.220
that next time there's an investigation
646
00:28:53.200 --> 00:28:55.940
involving the BPD and the FBI,
647
00:28:55.940 --> 00:28:58.060
you'll not get the documents?
648
00:28:58.060 --> 00:29:01.140
I think you can't separate those two items.
649
00:29:01.140 --> 00:29:03.290
They have to be seen together.
650
00:29:03.290 --> 00:29:06.370
That there could certainly be a chilling effect
651
00:29:06.370 --> 00:29:09.550
if these matters are provided.
652
00:29:09.550 --> 00:29:12.100
And I do have to go back to the property interest again
653
00:29:12.100 --> 00:29:15.580
because this material, because it is federal property,
654
00:29:15.580 --> 00:29:17.980
because it is the property of the FBI,
655
00:29:17.980 --> 00:29:20.620
they are really in the best position to determine
656
00:29:20.620 --> 00:29:22.950
what is of a sensitive nature,
657
00:29:22.950 --> 00:29:27.060
what continues to be of an investigatory nature
658
00:29:27.060 --> 00:29:28.740
and should be exempt.
659
00:29:28.740 --> 00:29:31.810
And one of the reasons why the motion judge again,
660
00:29:31.810 --> 00:29:36.800
relied on as a secondary reason
661
00:29:36.800 --> 00:29:41.180
why these documents should not be released
662
00:29:41.180 --> 00:29:43.820
for the investigatory exemption.
663
00:29:43.820 --> 00:29:44.737
Justice Kafker.
664
00:29:46.160 --> 00:29:47.190
I'm trying to understand
665
00:29:47.190 --> 00:29:50.100
whether I'm misunderstanding the conflict,
666
00:29:50.100 --> 00:29:52.090
the Supremacy Clause issue
667
00:29:52.090 --> 00:29:55.670
'cause it's a much easier way for you to win if I'm right,
668
00:29:55.670 --> 00:29:56.940
than what you're trying to do
669
00:29:56.940 --> 00:30:01.000
when you're swimming upstream pretty hard.
670
00:30:01.000 --> 00:30:03.400
So am I wrong on that that
671
00:30:03.400 --> 00:30:05.970
if the feds declare this federal document
672
00:30:05.970 --> 00:30:08.930
not releasable under FOIA,
673
00:30:08.930 --> 00:30:11.230
and then we have the exact same document
674
00:30:11.230 --> 00:30:14.173
being released under state law,
675
00:30:15.150 --> 00:30:17.323
why isn't that a Supremacy Clause problem?
676
00:30:18.380 --> 00:30:19.920
Your Honor, I didn't have a moment
677
00:30:19.920 --> 00:30:22.060
to say at the beginning of the argument
678
00:30:22.060 --> 00:30:24.800
that given the United States compelling interest
679
00:30:24.800 --> 00:30:26.750
in that conflict,
680
00:30:26.750 --> 00:30:29.420
that I'm gonna leave it to Joshua Handell
681
00:30:29.420 --> 00:30:31.650
of the United States to address those matters
682
00:30:31.650 --> 00:30:33.770
in the government's amicus brief.
683
00:30:33.770 --> 00:30:34.950
I'll wait for Mr. Handell
684
00:30:34.950 --> 00:30:36.310
Thank you
Thank you.
685
00:30:36.310 --> 00:30:37.173
Justice Lowy.
686
00:30:38.570 --> 00:30:42.070
With our Public Records Law nonetheless,
687
00:30:42.070 --> 00:30:44.240
one of the reasons that a public record
688
00:30:44.240 --> 00:30:47.210
doesn't have to be produced is because
689
00:30:47.210 --> 00:30:51.230
statutorily it's prohibited from being produced.
690
00:30:51.230 --> 00:30:56.230
And I think your position is that the federal statute
691
00:30:57.653 --> 00:30:59.513
(indistinct) USC, whatever it is,
692
00:31:00.748 --> 00:31:04.607
procludes producing these documents.
693
00:31:06.710 --> 00:31:10.610
And that that's a statutory reason
694
00:31:10.610 --> 00:31:13.640
under the Mass Public Records Law.
695
00:31:13.640 --> 00:31:17.260
So do we have any case, Public Records Law case,
696
00:31:17.260 --> 00:31:20.580
where the statutory reason for not producing
697
00:31:20.580 --> 00:31:24.410
was a statute that wasn't a Massachusetts statute?
698
00:31:24.410 --> 00:31:25.820
Not that I'm aware of your Honor,
699
00:31:25.820 --> 00:31:27.500
but I'd also like to take a moment
700
00:31:27.500 --> 00:31:30.790
just to point out how the cases that my sister's cited
701
00:31:30.790 --> 00:31:33.630
do not necessarily support her position.
702
00:31:33.630 --> 00:31:36.473
In particular in the Allen case out of Missouri,
703
00:31:37.900 --> 00:31:40.200
there's a difference because they talk about
704
00:31:40.200 --> 00:31:44.040
documents being retained, and that's not what happened here.
705
00:31:44.040 --> 00:31:46.700
The documents should be back in the hands of the FBI.
706
00:31:46.700 --> 00:31:49.710
We had no interest in retaining those documents
707
00:31:49.710 --> 00:31:54.710
and that is completely different than made or received,
708
00:31:54.930 --> 00:31:56.670
I would argue here.
709
00:31:56.670 --> 00:31:59.147
The other thing about the Washington case,
710
00:31:59.147 --> 00:32:01.510
the state law there is different.
711
00:32:01.510 --> 00:32:06.150
And in Harper, it's the shooting of a state trooper
712
00:32:06.150 --> 00:32:09.520
and not in a federal investigation
713
00:32:09.520 --> 00:32:12.800
that implicates matters of national security
714
00:32:12.800 --> 00:32:15.140
into a terrorism investigation.
715
00:32:15.140 --> 00:32:17.030
So I think for those reasons,
716
00:32:17.030 --> 00:32:18.890
both on the law and on the facts,
717
00:32:18.890 --> 00:32:20.980
those cases are not supportive
718
00:32:20.980 --> 00:32:25.340
of what the Commonwealth is asking for here.
719
00:32:25.340 --> 00:32:26.173
I mean, sorry,
720
00:32:26.173 --> 00:32:27.980
not supportive of what the plaintiff is asking for here.
721
00:32:27.980 --> 00:32:28.903
My apologies.
722
00:32:30.000 --> 00:32:31.003
Justice Lenk.
723
00:32:31.003 --> 00:32:34.103
What would you say is your most persuasive case?
724
00:32:35.080 --> 00:32:37.160
I do your Honor think that Napa,
725
00:32:37.160 --> 00:32:39.960
although as my sister pointed out,
726
00:32:39.960 --> 00:32:42.060
has a different procedural background.
727
00:32:42.060 --> 00:32:44.560
It really talks to the fact that the federal property
728
00:32:44.560 --> 00:32:46.520
should be controlled by FOIA
729
00:32:46.520 --> 00:32:49.977
and not by a state Public Records Law.
730
00:32:51.040 --> 00:32:52.460
And I can say that
731
00:32:52.460 --> 00:32:55.240
the DA should not be put in the position here to decide
732
00:32:55.240 --> 00:32:56.410
what records to release
733
00:32:56.410 --> 00:32:58.473
when they are the property of the FBI.
734
00:33:01.560 --> 00:33:03.810
If there are no further questions,
735
00:33:03.810 --> 00:33:05.760
I give my time to my brother.
736
00:33:06.608 --> 00:33:08.343
Mr. Handell.
737
00:33:08.343 --> 00:33:09.620
Good morning your Honor.
738
00:33:09.620 --> 00:33:12.930
May it please the court, Josh Handell for the United States.
739
00:33:12.930 --> 00:33:14.850
At the outset, I wanna make clear that
740
00:33:14.850 --> 00:33:16.350
we agree with the district attorney
741
00:33:16.350 --> 00:33:18.800
that probably the most straightforward way
742
00:33:18.800 --> 00:33:23.220
to resolve this case is to read the exemptions in the PRL
743
00:33:23.220 --> 00:33:25.720
to encompass federal investigatory records
744
00:33:25.720 --> 00:33:28.130
that the FBI has already determined
745
00:33:28.130 --> 00:33:32.040
are exempted from disclosure under FOIA Exemption 7.
746
00:33:32.040 --> 00:33:33.000
We think that that reading
747
00:33:33.000 --> 00:33:36.730
will avoid an unnecessary conflict between sovereigns,
748
00:33:36.730 --> 00:33:39.550
will preserve the benefits of federal state law enforcement
749
00:33:39.550 --> 00:33:40.700
going forward.
750
00:33:40.700 --> 00:33:44.420
It appropriately allocates the risk assessment to the FBI
751
00:33:44.420 --> 00:33:46.250
rather than to the district attorney
752
00:33:46.250 --> 00:33:47.710
who has no reason to be aware
753
00:33:47.710 --> 00:33:50.360
of other pending federal investigations.
754
00:33:50.360 --> 00:33:53.090
And it respects the considered judgment of the FBI
755
00:33:53.090 --> 00:33:56.450
as to which of its own records would, if disclosed,
756
00:33:56.450 --> 00:33:58.675
be harmful to federal enforcement actions.
757
00:33:58.675 --> 00:34:02.490
Mr. Handell, how does that work where
758
00:34:02.490 --> 00:34:04.640
we have an exemption, there is a FOIA exemption
759
00:34:04.640 --> 00:34:07.373
that was applied in this case for investigatory means,
760
00:34:08.460 --> 00:34:13.433
and then we have an index which is somewhat broad.
761
00:34:14.610 --> 00:34:16.610
Does that speak to a remand
762
00:34:16.610 --> 00:34:21.610
or how can we essentially import the FBI's answers
763
00:34:22.380 --> 00:34:26.613
to FOIA exemption to the state litigation?
764
00:34:28.110 --> 00:34:29.940
Yes your Honor.
765
00:34:29.940 --> 00:34:32.300
I'm sorry, my connection cut out just a little bit
766
00:34:32.300 --> 00:34:33.240
during your question there,
767
00:34:33.240 --> 00:34:34.640
but I think I got the gist of it.
768
00:34:34.640 --> 00:34:37.440
So tell me if I'm off base with my answer.
769
00:34:37.440 --> 00:34:39.900
So I think there are two justifications
770
00:34:39.900 --> 00:34:44.769
for essentially reading PRL Exemption (F)
771
00:34:44.769 --> 00:34:47.010
and FOIA Exemption 7(A)
772
00:34:47.010 --> 00:34:50.080
as the essentially categorical matches.
773
00:34:50.080 --> 00:34:52.730
The first is that state courts
774
00:34:52.730 --> 00:34:56.740
should defer to the expertise of the federal agency
775
00:34:56.740 --> 00:34:58.610
that owns the federal records,
776
00:34:58.610 --> 00:35:00.840
engaging the likely downstream effects
777
00:35:00.840 --> 00:35:03.900
of public disclosure of its own records.
778
00:35:03.900 --> 00:35:07.200
And the second is that in the event that
779
00:35:08.110 --> 00:35:11.430
the courts of the Commonwealth contravene,
780
00:35:11.430 --> 00:35:13.880
the federal agencies express determination
781
00:35:13.880 --> 00:35:15.340
against public disclosure,
782
00:35:15.340 --> 00:35:18.960
in this case, the resulting harm to the FBI's interests
783
00:35:18.960 --> 00:35:21.150
and the steps that the Bureau will be forced to take
784
00:35:21.150 --> 00:35:24.200
to safeguard those interests in the future
785
00:35:25.836 --> 00:35:28.480
are almost certain to prejudice the prospect
786
00:35:28.480 --> 00:35:30.330
of effective federal state
787
00:35:30.330 --> 00:35:32.670
and local law enforcement cooperation
788
00:35:32.670 --> 00:35:35.010
in a manner that is contrary to the public interest.
789
00:35:35.010 --> 00:35:37.480
I don't think either of those justifications
790
00:35:37.480 --> 00:35:41.750
requires a granular re-examination by this court
791
00:35:41.750 --> 00:35:43.830
of the FBI's FOIA analysis,
792
00:35:43.830 --> 00:35:47.010
or a more granular explanation about
793
00:35:47.010 --> 00:35:49.430
why disclosure of these
794
00:35:50.390 --> 00:35:53.350
FBI determined non-FOIAble documents
795
00:35:53.350 --> 00:35:55.960
would be harmful to law enforcement interests
796
00:35:55.960 --> 00:35:57.320
under exemption (f).
797
00:35:57.320 --> 00:35:58.153
Thank you.
798
00:35:58.153 --> 00:35:59.011
And I think Justice Kafker
799
00:35:59.011 --> 00:36:00.560
probably has a question on Supremacy Clause.
800
00:36:00.560 --> 00:36:03.390
So you probably turn to that, Justice Kafker.
801
00:36:03.390 --> 00:36:05.430
The way you answered that question, Mr. Handell,
802
00:36:05.430 --> 00:36:07.420
which is, they shouldn't differ,
803
00:36:07.420 --> 00:36:09.720
but you're not saying...
804
00:36:09.720 --> 00:36:11.700
Are you suggesting that
805
00:36:11.700 --> 00:36:13.770
if they come to opposite conclusions,
806
00:36:13.770 --> 00:36:15.690
it's not a preemption problem,
807
00:36:15.690 --> 00:36:17.320
it's not a Supremacy Clause problem?
808
00:36:17.320 --> 00:36:19.850
'Cause you're softening this a little
809
00:36:19.850 --> 00:36:21.230
and I'm just trying to understand
810
00:36:21.230 --> 00:36:22.990
why you're doing it that way.
811
00:36:22.990 --> 00:36:25.760
If we come to the opposite conclusion
812
00:36:25.760 --> 00:36:28.930
interpreting a parallel investigatory language,
813
00:36:28.930 --> 00:36:31.440
is that not a federal conflict
814
00:36:31.440 --> 00:36:35.260
that's gonna be a Supremacy Clause problem?
815
00:36:35.260 --> 00:36:37.100
Your Honor, I absolutely do think
816
00:36:37.100 --> 00:36:39.090
that would pose a Supremacy Clause problem.
817
00:36:39.090 --> 00:36:41.040
I wanted to open with the idea
818
00:36:41.040 --> 00:36:45.410
that these statutory schemes can and should be harmonized,
819
00:36:45.410 --> 00:36:47.660
because I think that that's in the interest of
820
00:36:47.660 --> 00:36:49.510
the federal government and the state government
821
00:36:49.510 --> 00:36:52.100
to operate their law enforcement
822
00:36:52.100 --> 00:36:55.460
and public disclosure regimes in harmony where possible.
823
00:36:55.460 --> 00:36:58.250
But if this court determines
824
00:36:58.250 --> 00:37:02.380
that there's no way to harmonize the demands of state law
825
00:37:02.380 --> 00:37:06.000
with the FBI's application of federal law in this case,
826
00:37:06.000 --> 00:37:07.380
then you're absolutely correct.
827
00:37:07.380 --> 00:37:09.030
The latter must prevail.
828
00:37:09.030 --> 00:37:11.700
And that's because release under the PRL
829
00:37:11.700 --> 00:37:13.280
would directly conflict
830
00:37:13.280 --> 00:37:15.150
with the federal government's determination
831
00:37:15.150 --> 00:37:17.720
that public disclosure of these sensitive
832
00:37:17.720 --> 00:37:19.610
federal law enforcement records
833
00:37:19.610 --> 00:37:23.000
will inhibit statutorily recognized federal interests.
834
00:37:23.000 --> 00:37:25.730
Ms. Rahim in both her briefs
835
00:37:25.730 --> 00:37:28.270
and in my friend's presentation today
836
00:37:28.270 --> 00:37:30.470
has not disputed that the FBI documents
837
00:37:30.470 --> 00:37:33.390
are federal records and federal property.
838
00:37:33.390 --> 00:37:36.520
In FOIA, Congress authorized federal agencies
839
00:37:36.520 --> 00:37:39.900
to withhold federal records from public disclosure
840
00:37:39.900 --> 00:37:42.160
if they meet certain criteria.
841
00:37:42.160 --> 00:37:45.000
The FBI has determined that these records
842
00:37:45.000 --> 00:37:48.040
satisfy those criteria because public disclosure
843
00:37:48.040 --> 00:37:50.510
could reasonably be expected to interfere
844
00:37:50.510 --> 00:37:52.140
with enforcement proceedings.
845
00:37:52.140 --> 00:37:53.708
So in this context--
846
00:37:53.708 --> 00:37:56.307
And just to help us a little bit,
847
00:37:57.270 --> 00:37:59.190
can you address the three cases
848
00:37:59.190 --> 00:38:00.880
that we've been talking about then?
849
00:38:00.880 --> 00:38:03.750
Is the Missouri case just wrong?
850
00:38:03.750 --> 00:38:07.293
Is the Washington case distinguishable or is Napa correct?
851
00:38:09.460 --> 00:38:11.150
Take us through a brief journey
852
00:38:11.150 --> 00:38:13.690
through those three cases if you could.
853
00:38:13.690 --> 00:38:14.523
Sure.
854
00:38:14.523 --> 00:38:17.420
So, at a high level I would say
855
00:38:17.420 --> 00:38:20.870
that the problem with all of the cases that
856
00:38:20.870 --> 00:38:23.930
were cited by our friends on the other side
857
00:38:23.930 --> 00:38:26.710
is that none of them exhibit the kind of
858
00:38:26.710 --> 00:38:30.120
two benchmarks of federal control that we have here.
859
00:38:30.120 --> 00:38:34.560
First on the front end of the FBI's reservation of rights
860
00:38:34.560 --> 00:38:37.430
through its ladder of transmitting these documents,
861
00:38:37.430 --> 00:38:39.960
which put the district attorney on notice
862
00:38:39.960 --> 00:38:44.410
that the FBI was retaining its control over these records.
863
00:38:44.410 --> 00:38:45.740
It was not relinquishing
864
00:38:45.740 --> 00:38:47.970
any sort of federal proprietary rights.
865
00:38:47.970 --> 00:38:51.480
And then on the back end, the FBI's determination
866
00:38:51.480 --> 00:38:54.010
specifically with respect to these documents
867
00:38:54.010 --> 00:38:56.000
in the context of federal FOIA,
868
00:38:56.000 --> 00:38:58.450
that public disclosure would be harmful
869
00:38:58.450 --> 00:38:59.590
to federal interests.
870
00:38:59.590 --> 00:39:01.360
I don't think any of the other cases
871
00:39:01.360 --> 00:39:04.310
that have been cited have both of those factors.
872
00:39:04.310 --> 00:39:08.110
And I would specifically differentiate the Missouri case.
873
00:39:08.110 --> 00:39:11.870
So I think this was Harper versus State Highway Patrol.
874
00:39:11.870 --> 00:39:12.840
There's a couple of things
875
00:39:12.840 --> 00:39:15.400
that make that particularly in a posit here.
876
00:39:15.400 --> 00:39:19.130
So, first, the intermediate appellate court in that case
877
00:39:19.130 --> 00:39:20.900
considered a narrative report
878
00:39:20.900 --> 00:39:23.890
created by the State Highway Patrol
879
00:39:23.890 --> 00:39:26.390
that attached a copy of an FBI report.
880
00:39:26.390 --> 00:39:28.830
And the court found that the records at issue
881
00:39:28.830 --> 00:39:32.150
are not agency records for the purposes of FOIA.
882
00:39:32.150 --> 00:39:34.820
That's a direct quote from the decision.
883
00:39:34.820 --> 00:39:36.640
So already, this is a very different case
884
00:39:36.640 --> 00:39:38.480
because no one here can test
885
00:39:38.480 --> 00:39:41.490
that the FBI documents at issue in this litigation
886
00:39:41.490 --> 00:39:44.530
are of federal agency records subject to FOIA.
887
00:39:44.530 --> 00:39:47.200
Second, the Harper case
888
00:39:47.200 --> 00:39:49.610
contains no discussion of whether the FBI
889
00:39:49.610 --> 00:39:52.060
made any express reservation of its rights
890
00:39:52.060 --> 00:39:55.260
when it provided a copy of its report to the state agency,
891
00:39:55.260 --> 00:39:58.520
nor did the claimant in that case, as far as I'm aware,
892
00:39:58.520 --> 00:40:01.310
avail herself of the federal FOIA process,
893
00:40:01.310 --> 00:40:04.420
receive a reason to federal determination against disclosure
894
00:40:04.420 --> 00:40:05.740
and then come to state court
895
00:40:05.740 --> 00:40:07.770
to make an end run around that determination.
896
00:40:07.770 --> 00:40:11.680
So unlike here, in that case there was no clear conflict
897
00:40:11.680 --> 00:40:13.720
between the federal government and the state
898
00:40:13.720 --> 00:40:15.493
with respect to public disclosure.
899
00:40:17.240 --> 00:40:19.260
And I believe that the same holds true
900
00:40:19.260 --> 00:40:20.320
with the Washington case.
901
00:40:20.320 --> 00:40:23.750
I don't recall what the third case was
902
00:40:23.750 --> 00:40:24.820
that we were discussing.
903
00:40:24.820 --> 00:40:27.940
I think Justice Gaziano wants to keep you
904
00:40:27.940 --> 00:40:29.510
in certain time constraints
905
00:40:29.510 --> 00:40:32.420
given how many other cases we still have to go into.
906
00:40:32.420 --> 00:40:33.650
(laughs)
907
00:40:33.650 --> 00:40:35.510
I will not ask for all the three.
908
00:40:35.510 --> 00:40:36.480
Sure.
909
00:40:36.480 --> 00:40:38.593
Any further questions of Mr. Handell?
910
00:40:39.930 --> 00:40:41.420
Thank you counsel.
911
00:40:41.420 --> 00:40:42.520
Thank you very much.
912
00:40:43.507 --> 00:40:44.603
(mumbles) your Honors.
913
00:40:47.150 --> 00:40:47.983
Thank you.