Case Detail

FOIA Project Annotation: Judge Colleen Kollar-Kotelly has decided to conduct an in camera review of a memorandum memorializing a conversation between President Donald Trump and Michael Rogers, the former director of the National Security Agency, to determine if the memo is protected by the presidential communications privilege. The Protect Democracy Project submitted a FOIA request to the NSA for the memo, known as the Ledgett Memorandum after the former Deputy Director of the NSA who drafted the memo. The agency issued a Glomar response neither confirming nor denying the existence of records. However, after the memo was identified in the Mueller Report, the agency agreed to process the request. The agency claimed the memo was protected by Exemption 5 (privileges). The Project argued that the disclosure of the memo's contents in the Mueller Report served as an official acknowledgement and waived the privilege. Explaining her decision to order an in camera review, Kollar-Kotelly noted that "the Court must evaluate not only whether the Ledgett Memorandum qualifies for the presidential communications privilege, but also whether the contents of the memorandum satisfy the disclosure/acknowledgment criteria. Complicating this evaluation is the fact that, in general, the presidential communications privilege extends to documents in their entirety. In this case, however, the Project appears to suggest that is not the case, or should not be the case, when some of the contents have been officially acknowledged or disclosed." She pointed out that "in light of [these] arguments and legal principles, making a responsible de novo determination of NSA's exemption claims requires in camera review." Although the NSA had submitted two affidavits, Kollar-Kotelly found neither of them provided sufficient justification for the claimed exemption. NSA argued that in camera review was not appropriate. Kollar-Kotelly indicated that although in camera review was frowned upon, particularly in situations dealing with national security issues, the affidavits that the agency submitted "are too broad and vague to determine whether the [memo] , or portions of it, were properly withheld." She pointed out that "the Court must consider whether the relevant information in the Ledgett Memorandum has been officially acknowledged, which requires close comparison of the relevant information disclosed in the Mueller Report and the relevant information contained in the Ledgett Memorandum. The affidavits do not provide detail on the latter for the Court to make a responsible de novo determination. Revealing enough of those contents via additional affidavits filed on the public docket to facilitate the determination may not be possible and is also problematic for the same reasons that NSA argues the memorandum should be withheld."
Issues: Litigation - In camera review, Exemption 5 - Privileges, Exemption 5 - Privileges - Waiver of privilege

Date Filed	Doc #	Docket Text
2017-05-24	1	COMPLAINT against NATIONAL SECURITY AGENCY ( Filing fee $ 400 receipt number 0090-4965090) filed by PROTECT DEMOCRACY PROJECT, INC.. (Attachments: # 1 Exhibit FOIA Request, # 2 Exhibit NSA Response, # 3 Civil Cover Sheet, # 4 Summons NSA Summons, # 5 Summons Attorney General Summons, # 6 Summons USAO-DC Summons)(Abate, Michael) (Entered: 05/24/2017)
2017-05-24		Case Assigned to Judge Colleen Kollar-Kotelly. (sth) (Entered: 05/25/2017)
2017-05-25	2	LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by PROTECT DEMOCRACY PROJECT, INC. (Abate, Michael) (Entered: 05/25/2017)
2017-05-25	3	SUMMONS (3) Issued Electronically as to NATIONAL SECURITY AGENCY, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Summons, # 2 Summons, # 3 Summons)(sth) (Entered: 05/25/2017)
2017-05-26	4	ORDER Establishing Procedures for Cases Assigned to Judge Colleen Kollar-Kotelly. Signed by Judge Colleen Kollar-Kotelly on May 26, 2017. (NS) (Entered: 05/26/2017)
2017-06-05	5	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 6/2/2017. Answer due for ALL FEDERAL DEFENDANTS by 7/2/2017. (Abate, Michael) (Entered: 06/05/2017)
2017-06-05	6	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. NATIONAL SECURITY AGENCY served on 5/31/2017 (Abate, Michael) (Entered: 06/05/2017)
2017-06-15	7	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 06/01/2017. (Abate, Michael) (Entered: 06/15/2017)
2017-06-30	8	ANSWER to Complaint by NATIONAL SECURITY AGENCY.(Motgi, Anjali) (Entered: 06/30/2017)
2017-07-07		ENTERED IN ERROR.....MINUTE ORDER. The parties shall file a schedule not later than August 11, 2017. Signed by Judge Colleen Kollar-Kotelly on 7/7/2017. (lcckk1) Modified on 7/10/2017 (znmw). (Entered: 07/07/2017)
2017-07-07	9	ORDER. The parties shall file the schedule not later than August 11, 2017. Signed by Judge Colleen Kollar-Kotelly on 7/7/2017. (lcckk1) (Entered: 07/07/2017)
2017-07-07		Set/Reset Deadlines: The parties shall file schedule by 8/11/2017. (dot) (Entered: 07/07/2017)
2017-07-10		NOTICE OF CORRECTED DOCKET ENTRY: Docket Entry Minute Order was entered in error and was refiled as Docket Entry 9 Order with order attached. (znmw) (Entered: 07/10/2017)
2017-07-24	10	NOTICE of Appearance by Benjamin Leon Berwick on behalf of PROTECT DEMOCRACY PROJECT, INC. (Berwick, Benjamin) (Entered: 07/24/2017)
2017-08-03	11	Consent MOTION to Amend/Correct 1 Complaint, by PROTECT DEMOCRACY PROJECT, INC. (Attachments: # 1 Exhibit Amended Complaint, # 2 Text of Proposed Order Proposed Order)(Abate, Michael) (Entered: 08/03/2017)
2017-08-07		MINUTE ORDER: The Court has received Plaintiff's 11 Consent Motion to File Amended Complaint. The Motion is GRANTED as the Court finds that "justice so requires." Signed by Judge Colleen Kollar-Kotelly on 8/7/2017. (lcckk1) (Entered: 08/07/2017)
2017-08-07	12	AMENDED COMPLAINT against NATIONAL SECURITY AGENCY, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE, DEPARTMENT OF JUSTICE filed by PROTECT DEMOCRACY PROJECT, INC..(znmw) (Entered: 08/08/2017)
2017-08-11	13	Joint STATUS REPORT and Proposed Schedule by DEPARTMENT OF JUSTICE, NATIONAL SECURITY AGENCY, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE. (Motgi, Anjali) (Entered: 08/11/2017)
2017-08-14		MINUTE ORDER: The Court has received the parties' 13 Joint Status Report. The parties shall abide by the following schedule. By AUGUST 18, 2017, the parties shall file a proposed schedule with respect to Defendants Department of Justice and Office of the Director of National Intelligence. By OCTOBER 25, 2017, the parties shall file a proposed production schedule with respect to Defendant National Security Agency. Signed by Judge Colleen Kollar-Kotelly on 8/14/2017. (lcckk1) (Entered: 08/14/2017)
2017-08-14		Set/Reset Deadlines: Parties proposed schedule due by 8/18/2017. Parties proposed production schedule due by 10/25/2017. (dot) (Entered: 08/15/2017)
2017-08-18	14	ANSWER to 12 Amended Complaint by DEPARTMENT OF JUSTICE, NATIONAL SECURITY AGENCY, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE. Related document: 12 Amended Complaint filed by PROTECT DEMOCRACY PROJECT, INC..(Motgi, Anjali) (Entered: 08/18/2017)
2017-08-18	15	Joint STATUS REPORT and Proposed Schedule by DEPARTMENT OF JUSTICE, NATIONAL SECURITY AGENCY, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE. (Motgi, Anjali) (Entered: 08/18/2017)
2017-08-28		MINUTE ORDER: The Court has received the parties' 15 Joint Status Report and Proposed Schedule for Defendants Office of the Director of National Intelligence ("ODNI"), and the Department of Justice ("DOJ"). The parties shall abide by the following schedule. By OCTOBER 10, 2017, ODNI and DOJ will complete the searches for Plaintiff's FOIA requests made to those Defendants. By OCTOBER 25, 2017, the parties will file a joint proposed production schedule with respect to those Defendants. Signed by Judge Colleen Kollar-Kotelly on 8/28/2017. (lcckk1) (Entered: 08/28/2017)
2017-08-28		Set/Reset Deadlines: ODNI and DOJ will complete the searches by 10/10/2017. Joint proposed production schedule due by 10/25/2017. (dot) (Entered: 09/01/2017)
2017-09-18		Case directly reassigned to Judge Timothy J. Kelly. Judge Colleen Kollar-Kotelly is no longer assigned to the case. (ztnr) (Entered: 09/18/2017)
2017-10-25	16	Joint STATUS REPORT and Proposed Schedule by DEPARTMENT OF JUSTICE, NATIONAL SECURITY AGENCY, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE. (Motgi, Anjali) (Entered: 10/25/2017)
2017-11-02	17	Case randomly reassigned to Judge Rudolph Contreras. Judge Timothy J. Kelly is no longer assigned to the case. (ztnr) (Entered: 11/03/2017)
2017-11-22		Case directly reassigned to Judge Colleen Kollar-Kotelly. Judge Rudolph Contreras is no longer assigned to the case. (ztnr) (Entered: 11/22/2017)
2017-12-04		MINUTE ORDER: The Court has received the parties' 16 Joint Status Report and Proposed Schedule for Defendants Office of the Director of National Intelligence ("ODNI"), Department of Justice ("DOJ"), and National Security Agency ("NSA"). The parties shall abide by the following schedule. ODNI shall review for responsiveness and process for production 400 pages of potentially responsive records per month, beginning with a first production on DECEMBER 20, 2017 . ODNI shall produce all non-exempt responsive records by APRIL 2, 2018 . DOJ shall review for responsiveness and process for production 1000 potentially responsive items per month, beginning with a first production on DECEMBER 20, 2017 . DOJ shall produce all non-exempt responsive records by MAY 2, 2018 . NSA shall review for responsiveness and process responsive records on the following schedule: First production on DECEMBER 20, 2017 ; second production on MARCH 20, 2018 ; and final production on MAY 21, 2018 . NSA shall produce all non-exempt responsive records by this final production date. Signed by Judge Colleen Kollar-Kotelly on December 4, 2017. (lcckk1) (Entered: 12/04/2017)
2018-04-13	18	MOTION for Summary Judgment against National Security Agency by PROTECT DEMOCRACY PROJECT, INC. (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Text of Proposed Order)(Abate, Michael) (Entered: 04/13/2018)
2018-04-16		MINUTE ORDER: The Court has received Plaintiff's 18 Motion for Summary Judgment Against National Security Agency. Plaintiff has not given any indication that Plaintiff intended to file such a motion, nor has the Court invited it. The Court's Minute Order of December 4, 2017, set forth a schedule for continued processing and production of non-exempt responsive materials by each of the three Defendants. Of particular note here, Defendant National Security Agency was to make a final production on May 21, 2018, more than five weeks beyond Plaintiff's submission of its 18 Motion on April 13, 2018. The Court expected that the parties would abide by their representation, in their 16 Joint Status Report, that they would "submit a Joint Status Report within thirty days of the final Defendant's final production." As it is now, the Court is unaware of Defendants' views of the status of this case, which may shape the most appropriate means of handling it. Accordingly, in the interest of efficient resolution of this matter, the Court shall DENY WITHOUT PREJUDICE Plaintiff's 18 Motion. The parties shall file a Joint Status Report on or before APRIL 30, 2018 , that, at a minimum, identifies the status of document productions and withholdings by each Defendant, indicates Plaintiff's view as to those productions, and proposes a briefing schedule, if applicable. The Court observes that it is strongly disinclined to resolve portions of this Freedom of Information Act case on a piecemeal basis prior to completion of all processing and production. Signed by Judge Colleen Kollar-Kotelly on April 16, 2018. (lcckk1) (Entered: 04/16/2018)
2018-04-16		Set/Reset Deadlines: Joint Status Report due by 4/30/2018. (dot) (Entered: 04/16/2018)
2018-04-30	19	Joint STATUS REPORT by PROTECT DEMOCRACY PROJECT, INC.. (Abate, Michael) (Entered: 04/30/2018)
2018-05-15		MINUTE ORDER: The Court has received the parties' 19 Joint Status Report and Proposed Schedule, which indicates that the parties disagree as to whether Plaintiff's motion for summary judgment against Defendant NSA should be briefed before the productions by all Defendants have been completed. While Defendants NSA and ODNI have completed their processing of Plaintiff's request, Defendant DOJ requires an additional four months to do so. Although Plaintiff identifies some basis for asserting economy in bifurcation, the Court remains of the view that it is ultimately more efficient for the Court to resolve one or more motions for summary judgment as to all Defendants at once. See Min. Order of Apr. 16, 2018 ("The Court observes that it is strongly disinclined to resolve portions of this Freedom of Information Act case on a piecemeal basis prior to completion of all processing and production."). Moreover, Plaintiff appears not to have sought expedited treatment for any of the FOIA requests at issue in this case. Accordingly, in an exercise of the Court's discretion to efficiently resolve this case, the Court adopts the following timeline. Defendant DOJ shall complete its processing of Plaintiff's FOIA request by SEPTEMBER 3, 2018 . Based on Plaintiff's interest in resolving this case efficiently, the Court shall, sua sponte , require that Defendants ODNI and DOJ share draft Vaughn indices with Plaintiff by SEPTEMBER 17, 2018 , unless the parties expressly agree to the contrary. The parties shall file a Joint Status Report by OCTOBER 3, 2018 , confirming the status of Defendants' productions and draft Vaughn indices and proposing a briefing schedule applicable to the entirety of the case. If, contrary to appearances, Plaintiff did seek expedited treatment of its FOIA requests by any of Defendants, then Plaintiff may file a notice with the Court by MAY 18, 2018 , indicating those Defendants as to which Plaintiff did seek expedited treatment and describing the resolution of any such request. Upon the filing of any such notice, the Court shall re-evaluate the aforementioned deadlines. Signed by Judge Colleen Kollar-Kotelly on May 15, 2018. (lcckk1) (Entered: 05/15/2018)
2018-05-15		Set/Reset Deadlines: Joint Status Report due by 10/3/2018, confirming the status of Defendants' productions and draft Vaughn indices and proposing a briefing schedule applicable to the entirety of the case. (dot) (Entered: 05/16/2018)
2018-06-19	20	Joint MOTION to Dismiss Certain Defendants , Joint MOTION to Modify Scheduling Order by PROTECT DEMOCRACY PROJECT, INC. (Attachments: # 1 Text of Proposed Order)(Abate, Michael) (Entered: 06/19/2018)
2018-06-20	21	ORDER. Defendants DOJ and ODNI are DISMISSED from this lawsuit and relieved of all remaining obligations under existing scheduling orders established by the Court. See Order for further details. Signed by Judge Colleen Kollar-Kotelly on June 20, 2018. (lcckk1) (Entered: 06/20/2018)
2018-06-20	22	SCHEDULING AND PROCEDURES ORDER. Signed by Judge Colleen Kollar-Kotelly on June 20, 2018. (lcckk1) (Entered: 06/20/2018)
2018-06-20		Set/Reset Deadlines: Defendant's Cross Motion due by 8/9/2018; Response to Cross Motion due by 8/30/2018; Reply to Cross Motions due by 9/14/2018. Plaintiff's Summary Judgment Motion due by 6/25/2018; Response to Motion for Summary Judgment due by 8/9/2018; Reply to Motion for Summary Judgment due by 8/30/2018. (dot) (Entered: 06/21/2018)
2018-06-25	23	MOTION for Summary Judgment by PROTECT DEMOCRACY PROJECT, INC. (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Text of Proposed Order)(Abate, Michael) (Entered: 06/25/2018)
2018-08-09	24	Cross MOTION for Summary Judgment by DEPARTMENT OF JUSTICE, NATIONAL SECURITY AGENCY, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE (Attachments: # 1 Declaration of Steven E. Thompson, # 2 Exhibit to Thompson Declaration, # 3 Text of Proposed Order)(Motgi, Anjali) (Entered: 08/09/2018)
2018-08-09	25	RESPONSE re 18 MOTION for Summary Judgment against National Security Agency (Opposition) filed by DEPARTMENT OF JUSTICE, NATIONAL SECURITY AGENCY, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE. (Attachments: # 1 Declaration of Steven E. Thompson, # 2 Exhibit to)(Motgi, Anjali) (Entered: 08/09/2018)
2018-08-30	26	REPLY to opposition to motion re 23 MOTION for Summary Judgment filed by PROTECT DEMOCRACY PROJECT, INC.. (Abate, Michael) (Entered: 08/30/2018)
2018-08-30	27	RESPONSE re 24 Cross MOTION for Summary Judgment filed by PROTECT DEMOCRACY PROJECT, INC.. (Abate, Michael) (Entered: 08/30/2018)
2018-09-13	28	REPLY to opposition to motion re 24 Cross MOTION for Summary Judgment filed by NATIONAL SECURITY AGENCY. (Motgi, Anjali) (Entered: 09/13/2018)
2019-04-25	29	Joint MOTION to Modify Case Schedule by PROTECT DEMOCRACY PROJECT, INC. (Attachments: # 1 Exhibit Proposed Order)(Abate, Michael) (Entered: 04/25/2019)
2019-04-26	30	ORDER. The parties' Motion to Modify Case Schedule is GRANTED. Defendant U.S. National Security Agency shall have until JUNE 10, 2019 , to inform this Court and Plaintiff The Protect Democracy Project, Inc. whether it maintains its Glomar response in this case. See Order for further details. Signed by Judge Colleen Kollar-Kotelly on April 26, 2019. (lcckk1) (Entered: 04/26/2019)
2019-04-26		Set/Reset Deadlines: Defendant U.S. National Security Agency shall have until JUNE 10, 2019, to inform this Court and Plaintiff The Protect Democracy Project, Inc. whether it maintains its Glomar response in this case. (dot) (Entered: 04/26/2019)
2019-06-10	31	NOTICE of Withdrawal of Glomar Response by NATIONAL SECURITY AGENCY (Motgi, Anjali) (Entered: 06/10/2019)
2019-06-11		MINUTE ORDER: The Court has received Defendant U.S. National Security Agency's 31 Notice of Withdrawal of Glomar Response, which indicates that in addition to withdrawing its Glomar response, Defendant has "conducted searches for, and located, all responsive materials, and has applied redactions, pursuant to the FOIA's exemptions, where appropriate," to the materials responsive to Plaintiff's Second Amended Request. Defendant has also "referred the responsive materials for a consultation to account for third-party equities but has not yet received a response regarding those equities." Because the parties' pending summary judgment cross-motions turn on Defendant's since-withdrawn Glomar response, the Court shall DENY WITHOUT PREJUDICE Plaintiff's 23 Motion for Summary Judgment and Defendant's 24 Cross-Motion for Summary Judgment. Defendant expects that its consultation regarding referred documents will be finished by June 21, 2019. Accordingly, the parties shall confer and submit a Joint Status Report by JUNE 28, 2019 , proposing a schedule for further proceedings in this case. Signed by Judge Colleen Kollar-Kotelly on June 11, 2019. (lcckk1) (Entered: 06/11/2019)
2019-06-11		Set/Reset Deadlines: Joint Status Report due by 6/28/2019, proposing a schedule for further proceedings in this case. (dot) (Entered: 06/12/2019)
2019-06-28	32	Joint STATUS REPORT by PROTECT DEMOCRACY PROJECT, INC.. (Abate, Michael) (Entered: 06/28/2019)
2019-07-03		MINUTE ORDER: The Court has received the parties' 32 Joint Status Report, which sets forth the parties' divergent proposed schedules for briefing renewed cross-motions for summary judgment. Plaintiff has not persuaded the Court that Defendant U.S. National Security Agency's sixty-day proposal for its Motion for Summary Judgment is unreasonable. Accordingly, the Court shall adopt a sixty-day timeline in the accompanying Scheduling and Procedures Order. However, in light of Plaintiff's interest in expediency, the Court shall in that Scheduling and Procedures Order adopt a condensed timeline for Plaintiff's response and Cross-Motion for Summary Judgment, as well as the parties' further briefing. Upon receiving Defendant's Motion for Summary Judgment, Plaintiff may request an extension of time if the deadline for its response and Cross-Motion for Summary Judgment is insufficient to address Defendant's arguments. Signed by Judge Colleen Kollar-Kotelly on July 3, 2019. (lcckk1) (Entered: 07/03/2019)
2019-07-03	33	SCHEDULING AND PROCEDURES ORDER. Signed by Judge Colleen Kollar-Kotelly on July 3, 2019. (lcckk1) (Entered: 07/03/2019)
2019-07-03		Set/Reset Deadlines: Plaintiff's Cross Motion due by 9/26/2019. Response to Cross Motion due by 10/28/2019. Reply to Cross Motion due by 11/12/2019. Defendant's Summary Judgment Motion due by 8/27/2019. Response to Motion for Summary Judgment due by 9/26/2019. Reply to Motion for Summary Judgment due by 10/28/2019. (dot) (Entered: 07/05/2019)
2019-08-27	34	MOTION for Summary Judgment by NATIONAL SECURITY AGENCY (Attachments: # 1 Declaration of Linda M. Kiyosaki)(Motgi, Anjali) (Entered: 08/27/2019)
2019-09-23	35	Memorandum in opposition to re 34 MOTION for Summary Judgment filed by PROTECT DEMOCRACY PROJECT, INC.. (Attachments: # 1 Statement of Facts)(Abate, Michael) (Entered: 09/23/2019)
2019-09-23	36	Cross MOTION for Summary Judgment by PROTECT DEMOCRACY PROJECT, INC. (Attachments: # 1 Statement of Facts, # 2 Text of Proposed Order)(Abate, Michael) (Entered: 09/23/2019)
2019-10-28	37	REPLY to opposition to motion re 34 MOTION for Summary Judgment filed by NATIONAL SECURITY AGENCY. (Attachments: # 1 Declaration Steven E. Thompson (Supplemental))(Motgi, Anjali) (Entered: 10/28/2019)
2019-10-28	38	Memorandum in opposition to re 36 Cross MOTION for Summary Judgment filed by NATIONAL SECURITY AGENCY. (Attachments: # 1 Declaration Steven E. Thompson (Supplemental))(Motgi, Anjali) (Entered: 10/28/2019)
2019-11-11	39	REPLY to opposition to motion re 36 Cross MOTION for Summary Judgment filed by PROTECT DEMOCRACY PROJECT, INC.. (Abate, Michael) (Entered: 11/11/2019)
2019-11-22	40	NOTICE of Appearance by Emily Sue Newton on behalf of NATIONAL SECURITY AGENCY (Newton, Emily) (Entered: 11/22/2019)
2020-03-06	41	ORDER for in camera review. Signed by Judge Colleen Kollar-Kotelly on 3-6-2020. (lcckk3) (Entered: 03/06/2020)
2020-03-06	42	MEMORANDUM OPINION on in camera review. Signed by Judge Colleen Kollar-Kotelly on 3-6-2020. (lcckk3) (Entered: 03/06/2020)
2020-03-23	43	ORDER granting 34 Motion for Summary Judgment; denying 35 36 Motion for Summary Judgment. Signed by Judge Colleen Kollar-Kotelly on March 23, 2020. (lccck1) (Entered: 03/23/2020)
2020-03-23	44	MEMORANDUM OPINION accompanying 43 ORDER. Signed by Judge Colleen Kollar-Kotelly on March 23, 2020. (lccck1) (Entered: 03/23/2020)
2020-05-08	45	NOTICE OF APPEAL TO DC CIRCUIT COURT as to 44 Memorandum & Opinion, 43 Order on Motion for Summary Judgment, by PROTECT DEMOCRACY PROJECT, INC.. Filing fee $ 505, receipt number ADCDC-7104824. Fee Status: Fee Paid. Parties have been notified. (Abate, Michael) (Entered: 05/08/2020)
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