and it then amended foia. >> congress amended foia, yes, your honor. >> all right.sume that we read statute more or less the way that foia does -- >> ok. >> the amended foia. do you meet the amended foia criteria? >> we do, your honor. >> all right. and which prong of it and why? >> we meet the first of all, i would just like to say that the senate legislative history expressly considered this very question and said that if that that we i'm sorry. can i step back one second, your honor? we don't think that you need to meet those amended so the amended foia. but taking that as a given, your honor, what the senate report said was -- >> it seems to be eminently reasonable despite robertson. >> it seems your honor, once this court -- >> i mean, but that's basically what you're arguing, is that one of the two foia exceptions. so tell me which one. >> so it's the foia exception, your honor, that that establishes particular criteria for withholding or refers to particular types of matters withheld. and we think in the legislative history what the senate report said was tha

and it only is notwithstanding foia. congress is free to do precisely that with respect to the whistleblower act, either notwithstanding all laws or notwithstanding the whistleblower protection act, and pass the most general statute imaginable. it doesn't have to be specific. >> so you want us to decouple foia from this. it would be ok under foia for the agent to withhold this information? >> that's exactly what congress has said. >> because you think it's that you think it's that particular types of matter to be withheld. you agree with the government that that includes this kind of material. >> it very well may satisfy foia, particularly because of the first clause, which is "notwithstanding foia." so you don't have to deal with this. but here, the statute doesn't say anything like that and so for that reason it's not specific. >> no. but the statute -- the statue other than the foia exemption 3 language doesn't talk about when a matter is kept secret by statute, as opposed to by regulation. so given that it's all tied

statute that morals the way amended foia. the amended foia criteria? >> we do. >> which prong and why? >> we -- first of all i would li to say that the senate legislative history considered and said if stion that -- i'm sorry, can i step second.e we don't think that we need to foia.he manned -- amended foy kwrafplt but what -- senate report said seems reasonable inently despite robertson. you are arguing one of the two exceptions. tell me which one. >> it is the one that stablishes particular criteria for withhold ago are refers to particular times of matters withheld. legislative he history what the senate report aid was the sims statute, the 102 d-3 of the national security act of 1947 would qualify. that is statute that said the director of c.i.a. shall be esponsible for protecting intelligence sources from unauthorized disclosure. that is all it said. hat is no different from our statute. we think that even if this -- is a little more specific. >> then more specific. court k that if the relies on statute that we meet that makes and perfect sense. >

the amended foia. the meet the amended foia criteria? >> we do. >> which probably does but which from and why? >> the senate legislative history consider this question and said that if -- i'm sorry. can i step back one second, your honor? we don't think that you need to meet those amended, the amended foia. but taking that as a given, but the senate report said -- >> it seems the eminently reasonable despite robertson. i mean, expensive what you were arguing, one of the two foia exceptions. to me which one. >> it's the exception that establishes particular criteria for withholding or refers to particular types of matters withheld. we think in the legislative history what the senate report said was that the trend by statute, one of two d. three would qualify and that's a statute that said the direct of us that they shall be responsible for protecting intelligence sources and methods from unauthorized disclosure but that was hosted. that's no difference for our statute and we think that even can we think -- >> yours is a bit more specific.

but that's somewhat -- >> next question. >> i have a question on foia. i have a vague recollection that obama either made a statement or issued an executive order that foia during his administration should be more generously interpreted, more broadly interpreted vis-a-vis how it was being handled under bush and there was more denials of foia requests. in your sense do you think that has come to pass or not? >> the 2009 document which she's referring to was issued soon after the inauguration of president obama. we call it the holder memo, but it was attorney general holder who was replacing or basically vacating what the george w. bush administration's attorneys had. so the holder memo in january or february of 2009 was extremely supportive of public disclosure and there's a wide spectrum of opinion of how effective that was. dogs bark and cows moo and administrators don't like to disclose things, regardless who is at the top of the agency. from my perspective as a viewer, the holder memo has not been implemented. but i am encouraging our colleagues for c

i want to remove on to reverse foia litigation, which i guess is a lot less frequent than foia litigation, but there's an interesting d.c. case. jurowitz versus usa which begins on page 34, the summary of that begins on that page. and reverse foia suits, as you know, are apa suits seeking to enjoin a government agency from releasing documents that foia exempts from disclosure. so, in jurowitz, the d.c. circuit held that the usda had not acted arbitrarily and capriciously in releasing information that dog breeders had submitted regarding their gross revenue and business volume. now, all animal dealers must complete a form 7003 which asks for the number of animal purchases and sales during a given year and gross revenue from regulated activities. and the humane society saw copies of these forms, 7003s, for all missouri dog breeders. the usda agreed to provide the information. the dog breeders brought a reverse foia suit claiming that those documents should have been with held under exemptions 4 and 6. with respect to exemption 4, which covers confidential commercial information, the court n

it was ultimately codified in the foia amendments in 1996 was for the agency to come back to the requester and say, i don't understand what your request is asking for or this is really too complex and it's -- too time consuming and if you are willing to narrow the request and here are some suggestions, we can handle the request more expeditiously for you. that's basically the tradeoff for the agency is that the request gets narrow and more manageable and the bone that's being thrown to the requester is that they will respond to it more expeditiously. that often times still is not -- it doesn't happen in practice. but that's kind of where the statute is supposed to be. i have a friend who is a litigator in the national security area at the moment. and he has been fighting with the cia on several occasions as to whether he had asked for records that had the modifiers like pertaining to or related to. and the agency said, that's way -- that's way too complicated for us to possibly deal with. of course, they didn't bother to ask the requester how he would like to narrow it. but i will say that

and then when we went back and appealed this decision, which we frankly felt was a denial of our foia request, they came back again and said, sorry, we don't have them. in august we subsequently learn that the national archives did a search for documents pertaining to "one." guess what? they didn't find postal service documents but they did find 250 pages of doj documents. what does this mean? it means they're out there. it means we have to get our hands on them. and it means that the mattachine society of d.c. is not going to stop until we do. let me very, very quickly -- this is something i hope we discuss after my esteemed colleagues give you their opening remarks, let me talk to you briefly about why we're doing this work. you know, some people have said, well, this is interesting. but it was a long time ago. it doesn't matter. we're on to different issues, marriage equality, parents ride, enda, we have to get enda passed. to that i say to you, ladies and gentlemen, the work of the mattachine society is a testament to history itself. it's a testament to uncovering deleted historie

the foia requests for what the fbi was doing in the '50s, bringing that information to lying is critical. and the nsa and the wayed a ward snowden brought to light the idea that the government us doing many things we are not aware of. now it's comforting, spokeswoman in a way to hear national security officials say, oh, it's very good we have this debate now. i tend to look at is in a somewhat different way, usually belter to debate things before the government starts doing them to you, but at least we're having the debate now. >> and i would add, that's a really great point you raise, sir, and it really underscores the work that the society of d.c. and mcdermoth are doing together. nico hastings, the curator and library afternoon of book ted university of michigan's library sid the following. i think it's relevant to your point. in preserving documents and records archiveis have enabled the documents to be revisited and re-entered as arch year of history reshape the collective memory. she was talking about the internment of japans americans during world war ii but that statement is so r

best way to make sure there is transparency to be actively involved. >> i have a similar question on foia. i'm ying lee. what do you think the prospects are for the redacted information, the most vital information, to be released sometime in the future? >> right. you mean specifically in the richard documents? >> no, no, all the documents. >> oh -- >> all fbi documents have been redacted, there is more material acted --d -- read redacted than released. i just wonder is anything original or put forward -- [inaudible] >> right. there are certain rules on automatic declassification that require records to be released, and that has resulted in the release of much more information, but over classification of records is a huge problem in government, has been for decades, and it's very frustrating to people who are trying to understand their history. what you see in these records is that in the 1950s and 1960s jay edgar hoover's fbi was secretly involved in events in effect trying to alter history by tampering with people's first amendment rights, leaking information, shaping how people viewed e

i don't know that for example someone that sends a foia request that has nothing to do with lgbt issues are having a better time at it and we are. >> i do think that you are onto something both in the federal government ended the presidential where the foia requests are seen as something to do and meanwhile you have some projects that you want to do doubles your own idea and he would always rather give priority to carrying out your own ideas. yes. >> in the third row. >> when you talk about the government controlling ideas because if we look at florence, it was action and if you look at marriage at his actions and it's about the action of two men or women getting married. was there ever an attempt by the federal government to define in a way to take it outside of just the controlling of ideas because it seems like otherwise it is a purely mental concept once you take the action out of it. >> we deny the distinction is meaningful. the point of the law and practice is targeting a behavior, i'm sorry in principle it's targeting the behavior and in practice as we all knew it's targeted anyo

i don't know that, for example, someone who sends a foia request is having any better a time at it than we are. >> i do think you're onto something. some project you wanted to do that was your own idea and you'd always rather give priority to carrying out your own ideas. yes. in the third row. >> nick little with the center for inquiry. i think it's interesting when you talk about the government controlling ideas because if we look at lawrence, it was actions, it was about same-sex intercourse. if you look at marriage, it's actions. it's about the action of two men or two women getting married. was there ever an attempt by the federal government to define homosexuality in a way to take it outside of just the controlling of ideas because it cements like otherwise it's a purely mental concept. once you take the actions out of it. >> we deny in my world we deny the distinction is meaningful. the point of sodomy laws in practice, you know, it's targeting a behavior. -- i'm sorry in principle it's targeting a behavior. in practice as we all knew it targeted anyone who was gay who was seen as

and this is something that's well understood in the foia context, freedom of information act context. it allows the government to with hold information if releasing it would unduly compromise social privacy. the supreme court held in 1989 that a rap sheet would be covered by this exemption despite the fact that all of the information in a rap sheet is available by virtue of a diligent door-to-door combing of court records. so why was the rap sheet still private? because, the court held, while the information in it was publicly available, it was practically obscure. this is such a commonsense concept, and deserves a home in fourth amendment jurisprudence. the sum total of a person's movements in public over extended periods of time may be publicly available information, but using normal powers of human observation, it is practically obscure. so when the government uses drones or stingrays or gps technology to pierce that obscurity, it has compromised the control that he person would otherwise exercise privacy of -- exercise over this information, and that's a privacy violation. third,

i'm wondering in any of the data sets that you're looking at including from this foia request, can you look at the impact of these -- this enforcement regime on green card holders, maybe even those who originally entered as refugees? and in general, long-time residents with legal status. >> so, we would not be able to see if they entered as refugees or not. we do -- i do -- we do have a field in the data that is a self-reported green card holder. you know, i.c.e. asks people, what's your status and if people answer, they have a green card, that's how it gets reported. so, you know, it's not confirmed but we wouldn't expect that that number is going to be underreported. you would expect perhaps it's overreported, not underreported. and we found surprisingly few green card holders in the data set. i mean, it was on the order of around 5,000 a year out of, you know, around 300,000 or 400,000 removals a year. again, i apologize i don't have all the exact numbers in my head. but, you know, i'm happy to follow up with both of you all and give you exact percentages. but it was a surprisingly