city's thought process. >> Your honor, if I understand part of your question, it was, you know, involving the redactions of the the vehicles in the parking lots and the VIN numbers. There are sections within the Idol Public Records Act that allows you to redact personal identifying type of information. When reviewing those, we felt in part because of the way these materials were being shared um nationwide really that not knowing exactly who those vehicles belong to, what could be done with that sort of information, we eroded on the side of trying to protect whoever the owner of those vehicles would be, trying to protect their privacy interest. And that's why we we rejected those. I'm trying to find the exact um section, but I I'm not able to find that right this second. But there is a section that allows you to redact personal type of information, identifying information that would include um things such as, you know, financial account number, social security numbers, driver's license numbers, certain information within a driver's license number, and and things of that matter. So I guess another question I have then going on this same line is that if we if we are to interpret the statute as Mr. scholars as you've indicated and following your briefing and saying that it doesn't specifically say that the family members have uh an interest a privacy interest. In subp paragraph 17A um Roman numeral 2, it says that the disclosure or release of information is likely to violate legitimate and substantial privacy interests of the person identified when such interests are weighed against the general public information. If Mr. Fascal or Miss Batista if the court limits the interpretation of there uh to of the person identified being the deedant themselves then and the city were to release images video uh not blurring not redacting just showing the dead bodies. What's the recourse? The deceited person doesn't have they're not here to challenge that. So who then on their behalf but the family can I what's the point in having that particular subsection of unwarranted invasion of personal privacy if it's left to the deedent to try to come forth to claim some interest uh in saying you can't release an image of my dead body. I mean that doesn't that doesn't logically make sense. So I'm trying to understand how we can be so narrowly interpreting it if that's what the city is asking. >> Well, for one, uh this may be splitting hairs here, but uh estates of deceased individuals have residual interests. The mere fact that a family member can't bring a claim on behalf of a deceased uh but the estate can is not a concept that is utterly alien to law whether in Idaho or elsewhere. Uh I think it might be unusual to interpret um you know a right of survivorship in this context that does not in your to surviving family members but does to the estate. So sorry, but >> it's not completely unprecedented. >> I'm sorry to interrupt you, but are you saying then that what should have happened is that these families should open up a probate and be representatives of the estate of these two individuals or in order to come and assert. I'm I'm confused on what you're what you're distinguishing. >> I mean, yes, I think that is the distinction that I'm drawing. uh simply to say that if it's a personal representative of the deceased or the deceased estate bringing claims that is the answer to your question. I don't necessarily think that it is it's an unusual result. I will freely concede that and it may or may not be what the legislature intended but at the end of the day um it is what the statute says and I mean that is that is where we come down and unusual unorthodox strange though it may seem that seems to be what in our view the statute suggests. >> Okay. And so if the court does find that these family, these particular plaintiffs, excuse me, have a privacy interest, does the city agree that the other deceased victim's families would have a similar interest or is does the city believe that they should be required as Mr. James has done here on behalf of two of the deedants families filed suit to assert such interest? I think that I can only answer the claims of the parties that have filed suit here, but as a general principle, I don't think there's much difference. Yeah. If if one set of family members have a privacy interest, so do all. And I mean, there's a there's a reason why the materials, the additional redactions the city has prepared um apply to all bedrooms. You know, so go one, so go all. It's the same thing. And I don't necessarily think that there is any reason why at this point in this litigation a separate suit would have to be filed by the additional family members. If your honor says there's a privacy interest here and it weighs strongly in favor of X or Y, uh the city is going to abide by that ruling uh across the board here. Uh, it's not going to sit here and play games and say, "Well, two family members or two families have brought suit, but the other two haven't. So, these images can go out, these images can't, and uh, too bad you didn't file suit." Uh I think that we do not dispute that the city has an obligation to apply these uh statutory exceptions and do so in good faith and to the best of uh the city's ability. If the court gives clearance and guidance uh we might appeal your ruling, but we will abide by it. And if the clear implication of it is that these are privacy interests that apply to all of the family members and the waiting of the competed interests competing interests does not favor disclosure. We're not going to stand on principle or procedure and say no two families have voiced their uh interests four families haven't. Two images get released and the other two don't. I I there's no difference here. We will abide by your ruling, whatever it is, your honor, subject to potentially appealing it. >> And then so my last question, Mr. FC, sorry, I I do um just have one more. So the the city has asserted obviously that the public has an interest in law enforcement's investigation. And that is the primary interest that we're weighing against this privacy interest. And what whether or not the release would constitute an unwarranted invasion of that personal privacy as opposed to say a warranted invasion of the personal privacy. The videos depict law enforcement's actions as we know as far as going into the scene and and those things. um as well as the written reports that the city has already uh released or made publicly available on the website. Um so I am wondering how that public interest is enhanced with images of these the bodies, the blood spatter, the blood stains. um when all those descriptions are available in reports, how should be we should we weigh that or the court should weigh that against the the privacy interest? I guess I'm wondering what is the threshold the city sees as the unwarranted invasion as opposed to just a warranted invasion. I mean, your honor, at some level, as we set forth in our brief, it is difficult for us to answer that question that we aren't the party that wants it. It is difficult for me on a personal level to understand why imagery, body cam videos, and what have you. Uh why they are necessary, what clear uh legitimate interest their disclosure serves. I'm not the requesting party. The city has 200 of them lined up. If we turn around and say we draw the line somewhere, it might satisfy some of them. It might satisfy all of them. I don't know. The city might end up defending uh several lawsuits from parties that are interested and think that the precise imagery that you have just listed off is utterly essential. Whether because they have questions about the investigation, whether they have questions about Mr. Cobberger's guilt, whatever the reason may be, we can only speculate as to what that might be or whether those lawsuits will be filed. At the end of the day, a line had to be drawn. And our understanding is that where warranted and unwarranted lie here, it is I mean not it doesn't end at the edge of one of the deceased bodies, but it's it's kind of close to that. Crime scene photographs that show dead bodies are clearly an unwarranted invasion of personal privacy. There's a Supreme Court case that says exactly that. Justice Kennedy talked about it at length. We do not dispute that. However, body cam videos, photographs, other records that were compiled during the course of the investigation that are careful to omit imagery of the bodies themselves that show how officers processed the scene, that showed how officers investigated the crime, and that dispel beyond, in my view, any possible basis to question that this was a properly run investigation. And there is no reason to doubt the guilt of the party who has admitted that he committed it. I think that it is nothing short of conspiracy theory that uh gets into why these materials in any form uh redacted any any form greater I should say than All right, let me back up that just a second. I do not see how anything other than conspiratorial interests would support the release of imagery and body cams beyond the version the city initially prepared and that initially provided to the court for its review. I also don't see how the city can reliably stand up in front of a judge, whether it's this judge or another court, in an action brought by a requesting party saying, "We need this imagery. We think that it has these redacted photos with these black boxes that uh the second set of redactions prepared by the city or something in between. We don't think this is enough. We think these are investigative records. We think we need them to prove or disprove what we think are our understanding of how things went down. Bottom line, as I said, your honor, a line had to be drawn somewhere. And if the city came down slightly on the wrong side of the balance, I don't know what there is to say other than we will accept your honor's assessment of where the proper balance lies. We might appeal it. We will however comply with it. And we are talking about at the end of the day concepts of warranted and unwarranted. Your honor has been on the bench for a long time. warrants, reasonable suspicion, fourth amendment, what is these are not standards that are amanable to uh mechanistic, clearly defined, easily applied in all circumstances definitions. Courts have been wrapping themselves in knots since the beginning of our country trying to define what is reasonable suspicion, what is probable cause, what is a warranted intervention, what is an unwarranted inter intervention. And I don't know what else I have to say other than we think the line was appropriately drawn by the city in this case in the initial set of redacted photographs and videos that it released. If your honor disagrees, we will move from there. >> Right. Thank you, Mr. Pascal. Mr. James, in your reply, >> your honor, in and your honor, as some very good questions of all of us. Um, and I think it's important to look at what the city did as opposed to now necessarily what it's arguing. Uh before all of this started, the city released to KTVB these these images and redacted the bodies and they redacted the well I should say they blurred to be consistent. They blurred the bodies and why did they blur the bodies? In their view it was redacting the bodies. And why did they do that? I think one can reasonably infer the city did that because they believe the exceptions within the statute applied. That's why they did it. And Mr. Pascal has has candidly just admitted that you know under the Supreme Court analysis that the desine images are an unwarranted invasion into personal privacy. So I think look at what the city did. It it followed the statute it thought by redacting those images which means the privacy there it's an unwarranted invasion of personal privacy to show the images. The question then becomes to whom we would assert both for the deedent and for the immediate family members. Um but the reality is they interpreted the statute the way we're interpreting the statute. That's why they did that. Now the subsection of the statute and the relevant language, you know, the city argues, you know, you need to follow the statute, but what they're really arguing is you need to follow our interpretation statute and and and the court ultimately needs to determine what these words mean. But the the the term used in the statute is somewhat ambiguous. It says disclosure or release of information is likely to violate the legitimate substantial privacy interests of the person identified when such interests are weighed against the general public information. So what does the language of the person identified? Well, one can interpret that to mean the person identified is the person whose privacy interests are being violated who are coming forward. And and that's reasonable. I'll illustrate why this doesn't just apply to images. Um, there could be a a person uh who's in the image that that is not the deceit and and and it and it's like the the example I gave of the the naked girl. It's an unwarranted invasion into their privacy and the and this is the mechanism for them to assert it is is it's an unwarranted invasion on the person identified and and and it could be um a person who's not the person the picture was taken of whose privacy interests are being being violated um is my point. And probably the the girl example isn't the best, but there are situations where there could be information that's disclosed that shows one person, but it vi it violates the privacy rights of another. Maybe a you know the wife or or or husband um a disclosure of uh certain images or information about their spouse may be an invasion of their privacy too and they have a right to assert it. So I think the court can interpret that statute to apply um where the privacy interest of the person identified or the people who are people identified are the people bringing bringing the uh the the claim here. Um and also I just remind us not to forget that there's a common law right of privacy out there which standing alone I think is a is a basis to grant the the injunction. Um so thank you your honor. in some I I I think the city's actions already answered the the central question here. There is a privacy interest. There isn't a warranted invasion. The real question gets to be this balancing test then. And I think that's where Mr. Ball Pascal was going when he said several times in end of the day you really get to this balancing test. And I'll just say a few words on that. Um there is a balancing test and we recognize the importance of transparency in government and we recognize the importance uh of the policies underlying the statute regarding disclosure of information that's not subject to the exceptions and we understand that I I will contend this is a unique case with the worldwide attention and because we're at an inflection point in technology and at an inflection point in this true crime phenomena um that has all collided to make this I think a unique case. Um and how that fits into the analysis I think is something for the court to consider. Uh but when you look at what these images would show the dead bodies, I mean what more do we need to know? The the autopsy reports for whatever reason already out there. If you want to know how many times these child was stabbed, just go read the autopsy reports. They're circulating everywhere. If you want to know how gory the scene was, you can read all that. I think that was partly what the court was looking at in some of the questioning is this this information is already available out there. Um, you know, do we really need to put gory images of bodies and and blood, which is part of the body? No matter how that's argued, it's part of the body to put it out there in in the world. Um, under the unique circumstances of this case, no. because there's already so much information out there, you can find this stuff elsewhere without having to look at these images. So, in conclusion, your honor, I think the city has already admitted that the the uh the statutory unwarranted invasion of personal privacy interests apply um because they've already uh interpreted the statute to to to redact images before any of this got started. And the question then gets to be where is the line for the court? And I think the court has already found that the desine images are are over the line. We think some audio and and some other images are over the line and we we um respectfully ask the court to enter the permanent junction. Thank you. >> All right. Thank you, Mr. James. >> I thank you councel for your submissions um including the briefing on this. I am going to take the matter under advisement and issue a decision. In the meantime, uh the temporary order that is in place specifically was in place until an an extension is granted or the order is vacated upon further hearing. Uh the temporary order will remain in place um pending the court's decision. Am going to issue an amended temporary restraining order, however, uh because the original order did just prohibit uh disclosing any images, audio, or video depicting the inside of Madison Boen's bedroom. given the additional plaintiffs in the matter and uh the city's uh agreement at this point in time based upon the argument presented in answer to the court's question that if the court does find there's a privacy interest ultimately for these families that that privacy interest would extend to the other at least deedence uh victim's families uh without filing a suit in the matter going to just extend the temporary restraining order to include that there wouldn't be any disclosure of images, audio or video depicting inside of Madison Mogan's bedroom. Um, which or excuse me, I am going to say of the at this point in time of the Madison Mogan's bedroom, Haley Gonal's bedroom, which was also blackboxed at one point in time. Um and then Xanacodal's bedroom in which uh Mr. Ethan Chapen was located. Um at this point in time just so that um there aren't any additional release with those things until we can get at least a final decision here. Um quite frankly, I think the court has made clear in its uh temporary uh order decision that was issued on August 15th that I think we are really looking at uh the death scene images um whether or not those should be released um and if so to the extent of which whether they're blurred or otherwise redacted what that is going to look like so as not to cross the threshold of the unwarranted invasion that's being asserted. But again, I thank council for your time here this morning as well as your briefing on the issue and the declarations. I will take the matter under adisement and we will be in recess for today. Anything further uh Mr. James in this matter? >> No. On behalf of my clients, uh we thank the court for the judicial guidance the court has provided and the uh riveted attention the court has given to this case and the expedited nature of the o of the case. Um and we are grateful that the court however it comes out, we are grateful for the court's um guide judicial guidance. >> All right. You're welcome. Thank you, Mr. James. And Mr. Plescal, anything else on behalf of the city here today? Uh, I would just like to thank you as well for your time and your attention to this matter, your honor. And uh, that is all. Thank you. >> Thank you. We will be in reset.