Announcer: SJC-12884,
Rahimah Rahim v. Rachael Rollins
in our official capacity as district attorney.
-: And I'll also tell counsel that
Justice Cypher is recused from this matter.
So we'll start with Ms. Cook.
-: May it please the court.
Kate Cook on behalf of Rahimah Rahim.
This case turns on two questions.
First, does Massachusetts law require the district attorney
to produce records it received from a federal agency?
And if so, does federal law compel a different result?
On the first question,
there can be no doubt that documents
that the district attorney received,
relied upon and has retained for several years
are public records under Massachusetts law.
The definition of a public record under Massachusetts law
is any document made or received by a state agency.
Ownership has no bearing on a state actor's
obligations under the law
and there's certainly no exemption for a loan.
The district attorney did not extinguish
its Public Records Law obligations
by entering what it described in its findings report
as a nondisclosure agreement with the FBI.
The court made this clear in Champa v. Weston Public Schools
holding that a confidentiality agreement
cannot trump the Public Records Law.
The district attorney in the United States
have failed to meet their significant burdens
to show that any exemption applies
or why none of the records can be produced with reductions.
As to Statutory Exemption A,
there simply is no provision in FOIA
expressly or as a practical matter
that prohibits disclosure of documents
in the possession of state agencies.
FOIA by its own terms does not even apply to state agencies.
And for a recent example
of a state rejecting this very argument,
C. Harper versus Missouri State Highway Patrol
cited in our reply brief.
On the second question, -: Ms. Cook.
-: nothing in federal the law -: Ms. Cook,
I have a question for you.
-: Yes.
-: Can you address the investigatory exception?
Because I think the strongest argument
perhaps from the government
is that if these records are turned over
the next time we have a shooting
that involves our state or federal joint investigations,
they're not gonna give it to us.
So that involves an investigatory technique
which is going to harm public safety.
So could you address that please?
-: Absolutely your Honor.
There are several reasons why this court
can enforce the Massachusetts Public Records Law
and it will not jeopardize public safety
or future federal state investigations.
First and foremost,
let's talk about what these documents are,
and what they're not.
These documents were not provided
to the District Attorney's Office
during the course of the JTTF investigation.
They were provided to the district attorney
at its request after law enforcement officers,
an FBI officer and a Boston police officer
shot and killed Ms. Rahim's son.
Secondly, I anticipate my brother and my sister
will tell you one of the major reasons
why this might harm future federal state cooperation
is because releasing these documents to Ms. Rahim
will reveal the names
of the officers involved in the shooting.
However, that overlooks the fact that over two years ago,
Ms. Rahim agreed to accept the records
with any personally identifying information redacted.
A third and major reason
why I think the court can take comfort
that it can enforce this law
without jeopardizing future investigations
is that our Massachusetts Public Records Law
has several and significant exemptions
that the legislature has carefully balanced
the need of the public to receive documents
against various public policy interests,
including as your Honor notes, the investigatory exemption.
And we do not dispute that
there very well could be information in these records
that is subject to the investigatory exemption.
What we do dispute is that at this time
the district attorney has actually met a significant burden
to prove a specificity
that any of the information actually meets that exemption.
-: I read the so-called Vaughn Index
and I take your points on specificity in that.
But you still respectfully haven't answered my question
about investigatory techniques
and your client rightfully had a FOIA request
that was denied and then we get this litigation
under the Public Records Law.
And I also very well take your arguments
that they're two separate analysis
on the preemption argument,
which I guess we'll get to.
But the question I specifically asked you is,
under the investigatory exception,
the government argues that if
someone is able to essentially get
what used to be federal records,
assuming that you're correct on possession,
in this way, the next time there's a shooting
or the next time the BPD asks for federal documents
and the feds give it to them under these caveats,
they're not gonna do it because it's gonna be disclosable
under the state Public Records Law.
How do you address that part of the investigatory exception?
-: So, I think the United States itself
has conceded your Honor
that there are alternative ways
that they could provide information,
cooperate with an investigation
when an FBI officer kills a Massachusetts citizen
without actually depositing those documents
where it triggers our Massachusetts state
Public Records Law.
They could also perform a live interview.
There are other ways to do this
and I would also note, other states--
-: They're gonna have to say, "Come down to the Moakley,
"go into a conference room and read, and then leave."
-: Yes your Honor.
They could do that or they could know
that we have a very rigorous and robust Public Records Law
that protects investigatory techniques
under our state Massachusetts Public Records Law
Exemption (F).
And if the court enforces a Public Records Law in this case,
and it's remanded,
there will be significant discussions
and protections provided by that exemption
to ensure that investigatory techniques
and the other things that our state legislature have decided
should be protected would be withheld.
-: And I'll turn it to Justice Lowy in a second,
I just have one last follow-up question on that Ms. Cook.
And I should probably know this but you'll tell me.
The remedy you're seeking is a remand
to really look at
the sufficiency of the investigatory exception
as applied in this case, correct?
-: We're realistic that
we don't think the lower court actually did a deep dive
into what exemptions apply and how.
Obviously in our complaint and in our briefing,
we have sought the release of the public records
to Ms. Rahim, but of course that's always a subject
to the exemptions that apply.
And there's other exemptions your Honor,
that I think the United States and the district attorney
could take comfort in based on their contention
that releasing these documents
jeopardizes future investigations and cooperation,
including the Public Safety Investigation,
-: Great, can I ask you with privacy?
-: cause of privacy investigation.
And as I said, we have already agreed--
Hon. Frank: The privacy exemption.
-: Pardon me.
-: The privacy exemption, right?
-: Yes your Honor.
-: Okay, thank you.
Justice Lowy.
-: Yes.
Ms. Cook, what about if there really is a conflict
with the federal statute
and that the federal courts would interpret
the reasonably interfere with law enforcement
more broadly than we might with our Public Records Law.
If it's a conflict,
wouldn't the federal disclosure regime prevail?
-: I don't think so your Honor.
First of all, we are operating in Massachusetts
on our state Public Records Law
under Massachusetts Public Records Law.
The FOIA law and its exemptions
do not apply to state agencies.
And courts around the country have reviewed the question
of whether to incorporate FOIA exemptions
when a custodian objects 'cause they don't wanna release
federal documents that they've received
to conduct state or local government business,
and courts have routinely said
that's clearly not what Congress meant
when they drafted FOIA.
I think one of the first lines in the statute
is referring to an agency
and it's referring to federal agencies.
So the fact that if a request is made to the FBI
and they might interpret their federal statute,
which applies to federal agencies and does not apply
to the Suffolk District Attorney's Office differently,
I don't think creates the kind of conflict
that's contemplated by the Supremacy Clause.
As this court has said, the Supremacy Clause
is not a source of federal rights.
It merely accords priority when there is a conflict
and there's not a statutory conflict
between the federal law and our state law.
There might be a difference of view or desire
from what the FBI would like
and what actually is said in the FOIA
versus our state Public Records Law
but that's not the kind of conflict
that triggers the Supremacy Clause.
-: Justice Kafker.
-: I'm following up on Justice Lowy's question,
'cause I'm not sure I understand.
So we have, these were originally federal documents,
they're federal documents, right?
There's a federal FOIA request, it's denied.
So federal government has decided under FOIA,
this stuff shouldn't be (indistinct), right?
And now they've loaned the documents
or even passed on the documents to the state.
Isn't there a conflict
between the state's Public Records Law and the federal law
when the application...
FOIA says, "Don't release these documents."
These are federal documents
and now they're gonna be released
under the state Public Records Law.
Isn't that a direct conflict?
I'm confused.
If the application of the statute
leads to different results for federal documents,
isn't that a conflict governed by the Supremacy Clause?
-: No, it's not your Honor.
First, I just wanted to clarify
the request that was made to the district attorney
happened simultaneously with the request
to the federal government.
So it's not as though Ms. Rahim
waited for a rejection and then tried to do a back run
as I think my brother suggests.
I just wanna correct that.
-: I don't think that matters.
But it is the (indistinct) included...
I agree with you.
I don't think there's anything suspicious
about what you did, I'm just...
See, the results...
I just can't see how we could have
different results on federal documents
without having a Supremacy Clause problem.
-: So it actually happens all the time.
And first, the FOIA does not expressly say that
these particular documents shall not be released.
That is an interpretation by the FBI
of what the exemption means and how it applies.
And the FBI, I would submit,
when they entered their non-disclosure agreement
with the District Attorney's Office was well aware that
states have their own public records laws,
and that these documents very well
might be subject to the state public records laws,
because we're not the first state
where this issue has arisen.
And I would suggest your Honor,
if you look at the Harper case,
this exact argument was made.
Isn't there a conflict that triggers a Supremacy Clause
between FOIA and there the Missouri Sunshine Law?
And the court said, "No."
If you look at that language,
if you do a textual read of FOIA,
there's no way that Congress intended it
to extend to states, period.
Much less
how states incorporate
and interpret their Public Records Law.
-: Ms. Cook, is this label an issue in that
one of the premises is that these are federal documents
and your position is, once they were given to the state
and came in possession of the state,
they're no longer federal documents,
that they're documents that are possessed by the state
and subject to our public record?
-: So your Honor,
we don't dispute that these may well be federal property
as my brother claims.
What we are asking this court to affirm
is the fact that our state legislature
has chosen to define public records
as anything made or received.
And I would submit, our state agencies and local governments
receive federal documents all the time
on every possible important issue of public policy.
So if the court today finds that somehow,
just because they came from the federal government,
even though the legislature
has not created any kind of ownership
or property requirement for deciding when
agency has to respond to a public records request.
But if suddenly all documents
that our agencies receive from federal governments
are no longer subject to the Public Records Law,
we will effectively have gutted the law
in large part on a lot of very important areas
that I don't think that our state legislature intended.
And again, and this goes back to Justice Kafker's question,
I don't think you can read FOIA
and reasonably see that that statute
creates a conflict with our state Public Records Law.
It doesn't apply.
-: In your position,
it makes no difference what preconditions
are established by the feds to get the documents.
-: And you're referring to the cover letter?
-: Right.
-: Your Honor, I don't think that our state agencies,
just like the school district in Champa
can enter side agreements to...
We're gonna call this a loan
so it won't be subject to the Public Records Law.
If every records custodian in the Commonwealth can do that,
then our entire Public Records Law system
has essentially gone down the gutter or could.
-: Okay, other questions for Ms. Cook?
Let's go with Justice Lenk and then Justice Kafker.
Unmute.
There you go.
-: I thought that I was gonna get through a session
without having done that (indistinct).
(laughs)
Anyway, I wanted to know whether you could help me
figure out whether or not Harper from Missouri
is the only case that supports your position.
-: No your Honor, there are other cases
and they're cited in both our opening brief.
And one is out of the State of Washington.
Progressive Animal Welfare Society
versus the University of Washington.
That's a case where the university
had received federal documents
from the National Institute of Health,
which the federal government very much claimed
were subject to an exemption
and did not want the documents to be released.
And the State of Washington held
under our state Public Records Law,
not withstanding claims of preemption,
not withstanding a Supremacy Clause argument,
that as I've already stated,
because FOIA only applies to federal agencies
and not state actors, there is no conflict.
Both the federal statute in...
Excuse me, the federal FOIA statute
and the Washington Public Records Law are in harmony
and those documents had to be produced.
Of course, subject to their own exemptions.
Similarly, Missouri actually had a prior case.
I believe it's Allen versus Department of Elementary
and Secondary Education,
where they similarly found
again, there was a claim that FOIA should apply,
should preempt, and the court said,
"No, under our state Records Law,"
which Missouri has a very similar
Public Records Law to Massachusetts,
instead of saying any document made or received,
it's, any document retained
and which has a similar touchstone of possession
and reach the same conclusion.
Those documents had to be released
under state Public Records Law.
And there's some other cited in our reply brief.
-: Could you tell me roughly how many states are involved?
How many States do you have?
-: I believe we have four.
-: All right.
Any go the other way? -: Pardon me.
-: Did any go the other way.
-: Not that I'm aware of your Honor.
-: Okay.
-: My brother and sister will tell you
this is just like Napa
and you should do exactly what the district court
and the 11th Circuit Court of Appeals
did in the United States v. Napa.
But I will tell you,
this is not like Napa
because the United States v. Napa case
was not a public records case.
Ms. Rahim is before the state's highest court
asking you to enforce our state Public Records Law.
In Napa, that did occur,
but not in the case that my brother and sister rely on.
It happened in an earlier case
before the Georgia Supreme Court,
where that court found under the Georgia Public Records Law,
indeed these records should be released.
What United States v. Napa is,
is a very different case and a different question.
And it involves the fact that
the United States has shared documents
with the City of Atlanta,
pursuant to a federal statute,
which has not been cited, is not claimed,
is not relied upon in this case.
That statute said, if these records are disseminated,
we get to cancel the agreement and get our records back.
And that's what the United States
in their complaint in the district court
sought to plow back and receive their documents
and the court agreed.
And the 11th Circuit affirmed that.
But that's a very different issue.
That issue hasn't arisen in this case.
-: Could it?
-: In this case before the SJC?
-: Yeah, could it?
Because there's no such statute that's being claimed.
There's no statistics that are applicable or what?
-: So I think there's several reasons why it couldn't
and it hasn't happened here.
-: Okay. -: First of all, in Napa,
the United States sought to intervene.
In Napa, there was the federal statute at play,
which clearly did have a conflict
with the state Public Records Law.
The federal court was left with a decision of,
are we going to enforce what Congress has decided
should be the rights of the federal government
to retrieve its property?
And it decided in the affirmative.
I submit your Honor, those facts just aren't here.
So it's not that maybe under some factual situation
that could occur, but that hasn't happened here.
There's no clawback statute at play.
It hasn't been cited,
and the United States
hasn't asked for their property back either.
Justice Lenk: Okay.
-: Justice Kafker.
-: The Washington case you mentioned,
was there a prior determination
that FOIA would not have allowed
the disclosure of the federal document
in the Washington case?
-: Was there a prior decision meaning from the lower court?
-: Or even, did the federal agency
refuse to turn it over under FOIA
and then the state overruled that decision?
-: I don't think so your Honor.
-: Okay, and in Napa,
you said the Georgia Supreme Court
says public records require its disclosure,
and then the feds said nothing doing in Napa.
So, isn't that right on point?
I'm confused why that's not exactly the situation
we're inviting if we rule the way you want us to.
-: I submit that this court has the obligation
to rule on what our Public Records Law requires.
And it will be beneficial to custodians and to requesters.
Are we going to allow our state agencies
to enter agreements that they call a loan,
and are we going to say
any documents received from the federal government
aren't covered by the Public Records Law?
That's certainly not what our state legislature has set.
And so, I don't think the court
should make that very important decision of public policy
based on the specter of what the federal government
may or may not do at some time.
And this case has been percolating
obviously for three years,
the United States has sent a AUSA to every hearing.
They've had opportunities to be involved.
-: They're saying that you can't turn it off.
I mean, I read the brief.
They disagree with you.
They're pointing out where there is a direct conflict
it's gonna violate the Supremacy Clause.
-: They do say that your Honor,
but they have yet to point to an actual law
that directly conflicts with state law.
There's no way to read FOIA
and think that it creates any obligation for a state actor.
It is strictly about when a federal records custodian
perceives of public records request, what they provide.
That's what FOIA is.
It does not in any way speak to whether the states
when they are in possession of documents,
which the federal government voluntarily
hands over to a state agency,
how they should be interpreted.
It just doesn't speak to it.
-: Any further questions for Ms. Cook?
Thank you.
We'll hear from Ms. Patalano.
-: Good morning.
If it may please the court your Honor,
it's Donna Patalano on behalf of the Commonwealth.
I know that there is a,
based on the questions of my sister,
that there is this draw
to go to the investigatory exemption,
but I think it's important
for the court to fully define made or received
under the Massachusetts Public Records Law.
Whether these federal FBI are property
implicating national security
and loan to the district attorney
were in fact made or received.
And the answer must be, no.
And the statutory interpretation needs to be addressed.
-: Well, Ms. Patalano,
but the plain language really is against you.
I mean--
-: (indistinct) your Honor.
-: Made means created,
received means come into possession of.
You didn't create them,
but you certainly came in possession of these documents.
The legislator could have said owned, they didn't.
And the way I look at your interpretation
of made or received, it seems to be owned.
-: Your Honor, I think that
it's important to read the words together,
to understand the property rights
that are implicated by made or received.
And because it's not defined in the statute,
you need to understand the plain
and ordinary meaning of the words.
And here it's really, the analogy
is really to an easement.
We received the federal property and the motion judge below
did define them as federal property.
And we received them not with the full property rights.
We had no right to disseminate the information to anybody
without the permission of the FBI.
-: The overall gloss is for disclosure, right?
-: Of the Public Records Law.
-: Of public records.
So when we're looking at the statutory interpretation,
we have to keep in mind that disclosure is favored, correct?
-: Yes.
-: So when we get into this easement property rights,
to me it seems like a bit of a stretch
because made or received
has particular plain language connotations.
-: Well, first I do wanna clarify for the record that,
but for a stipulation that we entered into in 2017,
this property would be in the hands of the FBI.
And I think that really supports our argument,
that it was only for a loan
that the district attorney received them.
And public policy really supports this.
It would be contrary to the public interest
as you brought up in your questions,
that a reading to release this
when we're not the owners of this property,
where we may not understand the importance
of the individuals who are named
to the investigations that are revealed,
the investigatory techniques that are revealed
and the cases that might be implicated here.
That's known to the FBI.
-: That gets to the exception.
What about the point that you can contract away
your public records obligation
that's been raised by counsel
by having the caveats in calling this a loan
as opposed to a possession.
-: Well, I think that when you talk about made or received,
that has to go back the contract to the property rights
that we had when we received them.
And that we could not compel the federal government
to provide us anything and to not recognize
the reservation of rights that the FBI had
when they provided these documents and materials
to the district attorney would essentially chill
whatever happens in the future.
And you're right, these two things,
the property rights and the investigatory exception
really have to be read together.
I think these were not materials that were deposited to us.
And I think that's one of the reasons
why the summary judge when he was considering it
went to the Broker Analysis
and really looked at the four factors--
-: But they were deposited to you.
Someone took a bankers box of documents
and gave them to you.
-: Well, loaned them to us, yes.
They are supposed to be back in the property of the FBI--
-: Right. And right now they're at the BPD
or in your office, correct?
-: They're in my office your Honor, yes.
Under the 2017 stipulation.
Otherwise, believe me they would be back
in the hands of the FBI.
-: So when you trip over them in the morning,
wouldn't you say you've received them?
(laughs)
-: Your honor, I would prefer
not to trip over them in the morning
so that I would move to the...
If the manner received in the property rights
are not compelling to this court
then I would certainly cite for public safety purposes,
the public safety, the privacy
and the investigatory exemption.
-: On that, can you tell me...
I looked at the Vaughn Index
and there's a lot of sameness in that.
-: Yes your Honor.
-: I commend your office for the diligence
in putting that together and how thorough it is.
It certainly identifies the individual documents,
but it has the sameness of description.
-: Sure.
-: How does that particularize,
since it's your burden on an exemption,
what needs to be litigated
in order to satisfy that exemption?
-: Well, first I do wanna point out
that Ms. Rahim did receive over a thousand separate records,
individual records from our office,
and then the Vaughn Index,
again, it's challenging in order to give specificity
because of the investigatory exemption
and what might be revealed
as to matters of national security
when there are terrorism investigations
and that those investigations are ongoing.
-: Are you relying
on that specter,
or are you also relying on the fact
that next time there's an investigation
involving the BPD and the FBI,
you'll not get the documents?
-: I think you can't separate those two items.
They have to be seen together.
That there could certainly be a chilling effect
if these matters are provided.
And I do have to go back to the property interest again
because this material, because it is federal property,
because it is the property of the FBI,
they are really in the best position to determine
what is of a sensitive nature,
what continues to be of an investigatory nature
and should be exempt.
And one of the reasons why the motion judge again,
relied on as a secondary reason
why these documents should not be released
for the investigatory exemption.
-: Justice Kafker.
-: I'm trying to understand
whether I'm misunderstanding the conflict,
the Supremacy Clause issue
'cause it's a much easier way for you to win if I'm right,
than what you're trying to do
when you're swimming upstream pretty hard.
So am I wrong on that that
if the feds declare this federal document
not releasable under FOIA,
and then we have the exact same document
being released under state law,
why isn't that a Supremacy Clause problem?
-: Your Honor, I didn't have a moment
to say at the beginning of the argument
that given the United States compelling interest
in that conflict,
that I'm gonna leave it to Joshua Handell
of the United States to address those matters
in the government's amicus brief.
-: I'll wait for Mr. Handell
Thank you -: Thank you.
-: Justice Lowy.
-: With our Public Records Law nonetheless,
one of the reasons that a public record
doesn't have to be produced is because
statutorily it's prohibited from being produced.
And I think your position is that the federal statute
(indistinct) USC, whatever it is,
procludes producing these documents.
And that that's a statutory reason
under the Mass Public Records Law.
So do we have any case, Public Records Law case,
where the statutory reason for not producing
was a statute that wasn't a Massachusetts statute?
-: Not that I'm aware of your Honor,
but I'd also like to take a moment
just to point out how the cases that my sister's cited
do not necessarily support her position.
In particular in the Allen case out of Missouri,
there's a difference because they talk about
documents being retained, and that's not what happened here.
The documents should be back in the hands of the FBI.
We had no interest in retaining those documents
and that is completely different than made or received,
I would argue here.
The other thing about the Washington case,
the state law there is different.
And in Harper, it's the shooting of a state trooper
and not in a federal investigation
that implicates matters of national security
into a terrorism investigation.
So I think for those reasons,
both on the law and on the facts,
those cases are not supportive
of what the Commonwealth is asking for here.
I mean, sorry,
not supportive of what the plaintiff is asking for here.
My apologies.
-: Justice Lenk.
-: What would you say is your most persuasive case?
-: I do your Honor think that Napa,
although as my sister pointed out,
has a different procedural background.
It really talks to the fact that the federal property
should be controlled by FOIA
and not by a state Public Records Law.
And I can say that
the DA should not be put in the position here to decide
what records to release
when they are the property of the FBI.
If there are no further questions,
I give my time to my brother.
-: Mr. Handell.
-: Good morning your Honor.
May it please the court, Josh Handell for the United States.
At the outset, I wanna make clear that
we agree with the district attorney
that probably the most straightforward way
to resolve this case is to read the exemptions in the PRL
to encompass federal investigatory records
that the FBI has already determined
are exempted from disclosure under FOIA Exemption 7.
We think that that reading
will avoid an unnecessary conflict between sovereigns,
will preserve the benefits of federal state law enforcement
going forward.
It appropriately allocates the risk assessment to the FBI
rather than to the district attorney
who has no reason to be aware
of other pending federal investigations.
And it respects the considered judgment of the FBI
as to which of its own records would, if disclosed,
be harmful to federal enforcement actions.
-: Mr. Handell, how does that work where
we have an exemption, there is a FOIA exemption
that was applied in this case for investigatory means,
and then we have an index which is somewhat broad.
Does that speak to a remand
or how can we essentially import the FBI's answers
to FOIA exemption to the state litigation?
-: Yes your Honor.
I'm sorry, my connection cut out just a little bit
during your question there,
but I think I got the gist of it.
So tell me if I'm off base with my answer.
So I think there are two justifications
for essentially reading PRL Exemption (F)
and FOIA Exemption 7(A)
as the essentially categorical matches.
The first is that state courts
should defer to the expertise of the federal agency
that owns the federal records,
engaging the likely downstream effects
of public disclosure of its own records.
And the second is that in the event that
the courts of the Commonwealth contravene,
the federal agencies express determination
against public disclosure,
in this case, the resulting harm to the FBI's interests
and the steps that the Bureau will be forced to take
to safeguard those interests in the future
are almost certain to prejudice the prospect
of effective federal state
and local law enforcement cooperation
in a manner that is contrary to the public interest.
I don't think either of those justifications
requires a granular re-examination by this court
of the FBI's FOIA analysis,
or a more granular explanation about
why disclosure of these
FBI determined non-FOIAble documents
would be harmful to law enforcement interests
under exemption (f).
-: Thank you.
And I think Justice Kafker
probably has a question on Supremacy Clause.
So you probably turn to that, Justice Kafker.
-: The way you answered that question, Mr. Handell,
which is, they shouldn't differ,
but you're not saying...
Are you suggesting that
if they come to opposite conclusions,
it's not a preemption problem,
it's not a Supremacy Clause problem?
'Cause you're softening this a little
and I'm just trying to understand
why you're doing it that way.
If we come to the opposite conclusion
interpreting a parallel investigatory language,
is that not a federal conflict
that's gonna be a Supremacy Clause problem?
-: Your Honor, I absolutely do think
that would pose a Supremacy Clause problem.
I wanted to open with the idea
that these statutory schemes can and should be harmonized,
because I think that that's in the interest of
the federal government and the state government
to operate their law enforcement
and public disclosure regimes in harmony where possible.
But if this court determines
that there's no way to harmonize the demands of state law
with the FBI's application of federal law in this case,
then you're absolutely correct.
The latter must prevail.
And that's because release under the PRL
would directly conflict
with the federal government's determination
that public disclosure of these sensitive
federal law enforcement records
will inhibit statutorily recognized federal interests.
Ms. Rahim in both her briefs
and in my friend's presentation today
has not disputed that the FBI documents
are federal records and federal property.
In FOIA, Congress authorized federal agencies
to withhold federal records from public disclosure
if they meet certain criteria.
The FBI has determined that these records
satisfy those criteria because public disclosure
could reasonably be expected to interfere
with enforcement proceedings.
So in this context--
-: And just to help us a little bit,
can you address the three cases
that we've been talking about then?
Is the Missouri case just wrong?
Is the Washington case distinguishable or is Napa correct?
Take us through a brief journey
through those three cases if you could.
-: Sure.
So, at a high level I would say
that the problem with all of the cases that
were cited by our friends on the other side
is that none of them exhibit the kind of
two benchmarks of federal control that we have here.
First on the front end of the FBI's reservation of rights
through its ladder of transmitting these documents,
which put the district attorney on notice
that the FBI was retaining its control over these records.
It was not relinquishing
any sort of federal proprietary rights.
And then on the back end, the FBI's determination
specifically with respect to these documents
in the context of federal FOIA,
that public disclosure would be harmful
to federal interests.
I don't think any of the other cases
that have been cited have both of those factors.
And I would specifically differentiate the Missouri case.
So I think this was Harper versus State Highway Patrol.
There's a couple of things
that make that particularly in a posit here.
So, first, the intermediate appellate court in that case
considered a narrative report
created by the State Highway Patrol
that attached a copy of an FBI report.
And the court found that the records at issue
are not agency records for the purposes of FOIA.
That's a direct quote from the decision.
So already, this is a very different case
because no one here can test
that the FBI documents at issue in this litigation
are of federal agency records subject to FOIA.
Second, the Harper case
contains no discussion of whether the FBI
made any express reservation of its rights
when it provided a copy of its report to the state agency,
nor did the claimant in that case, as far as I'm aware,
avail herself of the federal FOIA process,
receive a reason to federal determination against disclosure
and then come to state court
to make an end run around that determination.
So unlike here, in that case there was no clear conflict
between the federal government and the state
with respect to public disclosure.
And I believe that the same holds true
with the Washington case.
I don't recall what the third case was
that we were discussing.
-: I think Justice Gaziano wants to keep you
in certain time constraints
given how many other cases we still have to go into.
(laughs)
I will not ask for all the three.
-: Sure.
-: Any further questions of Mr. Handell?
Thank you counsel.
-: Thank you very much.
Ms. Patalano: (mumbles) your Honors.
-: Thank you.