Originally published February 13, 2020 at 10:27p.m.

Updated February 13, 2020 at 10:52p.m.

Radio recordings that reportedly could shed light on the 2013 Yarnell Hill Fire tragedy are at issue in an ongoing lawsuit that was heard by the 9th Circuit Court of Appeals in Phoenix on Feb. 7.

A three-justice panel of the 9th Circuit heard an appeal of a lower court’s ruling on former Payson Hotshot superintendent Fred Schoeffler’s ongoing legal effort to get information that he claims has been hidden by the U.S. Department of Agriculture (USDA).

The suit, filed in 2017, seeks aircraft radio transmission recordings from the June 2013 Yarnell Hill Fire that killed 19 members of Prescott’s Granite Mountain Hotshots crew.

The half-hour-long hearing by the panel pits arguments by Schoeffler’s attorney David Richard Schwartz against those by USDA attorney Bill Solomon.

At issue in the suit is whether the USDA adequately searched for the documents that Schoeffler asked for in a 2016 Freedom of Information Act request.

On Feb. 7, Schwartz told the 9th Circuit panel: “This case involves whether the USDA is knowingly hiding records related to the Hotshot deaths in the Yarnell Hill Fire.”

According to the original January 2017 complaint in U.S. District Court, Schoeffler sent a FOIA request to the USDA’s Forest Service in June 2016, seeking all voice recordings and written transcripts related to the June 30, 2013 Yarnell Hill Fire, as well as communications “to and from any and all air resources and any and all Incident Management Team and any and all operational and ground personnel.”

The complaint adds that Schoeffler “is certain that these air-to-ground records exist.”

The USDA later responded that it had turned over the information to a state investigator and that the information had already been made public.

But Schoeffler’s lawsuit claimed that the USDA’s answer was not responsive to his request.

In 2018, Chief U.S. Judge of the U.S. District Court G. Murray Snow ruled that Schoeffler had not exhausted administrative appeals, and the case went on to the 9th Circuit.

Schwartz maintained that the lower court erred, in part, because the USDA has told the courts that the department no longer has the original records.

“It’s not true, and there’s evidence in the record it’s not true,” Schwartz told the panel. “It’s undisputed that in August (2013), USDA FOIA was telling news organizations, ‘we have the recordings.’”

Although the USDA responded that the information had been made public in a Dropbox, Schwartz said, “There is no FOIA exemption that says ‘Oh, we gave it to somebody else, and they made them publicly available; we don’t have to produce what we have.’ That doesn’t exist.”

Judge Andrew Hurwitz pointed out, however, that FOIA requires that a “reasonably adequate search” be conducted. “The fact that you’ve discovered a document that wasn’t produced in the search isn’t evidence that they didn’t conduct a reasonably adequate one,” he told Schwartz.

USDA attorney Solomon also emphasized that point, telling the 9th Circuit panel, “The issue is not whether there might exist some other records possibly responsive to appellant’s FOIA request; the issue is whether the search for those records was adequate.”

Citing case law, Solomon said, “Failure to produce or identify a few isolated records — which is what we’re arguing about here — cannot by itself defeat the adequacy of a search.”

He added: “The fact that the document once existed does not mean it now exists. And the fact that an agency created a document doesn’t necessarily imply that the agency has retained the document.”

In Solomon’s conclusion, he asked the 9th Circuit panel to uphold Snow’s earlier ruling. “In this case, as in any FOIA case, the appellant is entitled to a reasonable search, not a perfect one,” he said. “And a reasonable search is what he got. And for that reason, the Department of Agriculture respectfully requests that this court uphold Chief Judge Snow’s rulings …”

Schoeffler’s attorney Schwartz concluded by asking the court to reverse the lower court’s ruling and remand the case back for bench trial.

“Whatever they have, we want it,” he told the panel. “There’s no declaration, no affidavit; there’s no evidence that they don’t have it today. Give it to us if you’ve got them.”

Judge Hurwitz concluded by saying the case had been submitted.