23:22

Judge:

“A specific individualized right to petition an agency to seek, for affected people, that is an issue that we need to deal with, to seek and obtain correction. That sounds like something like the FOIA, ordinarily there was no right to obtain government information but now there is one because it was created by the statute.”

DOJ:

“The FOIA is written in a very different terms. It requires an agency to make certain records public and it specifically vests the District Court with jurisdiction to compel the release of records.”

Judge:

“But it does create a petition proceeding which leads to a conclusion it appears to, and I don’t know how the Salt court missed this, they said there was nothing in the statute that gave anybody any rights but there is, it says affected people can seek and obtain corrections and the point, so I don’t understand how you can say that isn’t both an individualized legal right and a final decision.”

*****

25:23

Judge:

“And OMB did issue guidelines and HHS did issue guidelines and now we are proceeding under those guidelines and that didn’t seem to be going on in the Fourth Circuit which is why I think the case is totally irrelevant.”

*****

27:08

Judge:

“The statute is amazing actually, and troubling, for all these reasons.”

*****

27:28

Judge:

“It does create an individual right of access to the agency or right to some decision by the agency.”

Case Name: Americans for Safe Access v. HHS

Case Number: 07-17388

Case Panel: DW NELSON, BERZON, CLIFTON, CJJ

Hearing Location: San Francisco, CA