Free Motion for Summary Judgment - District Court of Colorado - Colorado

Case 1:04-cv-01264-LTB-PAC

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-01264-LTB-OES MARY M. HULL, Plaintiff, v. UNITED STATES DEPARTMENT OF LABOR, Defendant.

DEFENDANT'S MOTION FOR SUMMARY JUDGMENT WITH RESPECT TO CERTAIN ELECTRONIC DOCUMENTS AND SERVICE CONTRACTS ________________________________________________________________________ Defendant, the United States Department of Labor ("DOL" or the "Department"), moves for summary judgment pursuant to Rule 56 of the Rules of Civil Procedure with respect to certain electronic documents maintained on the computer of John Mayers, the Employee Benefits Security Administration ("EBSA") Senior Investigator on the Qwest pension plan investigation. In addition, defendant seeks summary judgment with respect to two minor redactions to service contracts that have otherwise been provided in full to plaintiff. In support of this motion, the Department relies on the attached Second Supplemental Declaration of Miriam McD. Miller ("Miller 2d Supp. Dec."), and on the

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attached declaration of Joseph J. Plick ("Plick Dec."). STATEMENT OF FACTS This case concerns plaintiff's March 3, 2004 request under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, for over 6,000 pages of documents in the Qwest Pension Plan ("Qwest") file. EBSA compiled the documents in the course of its investigation of Qwest's compliance with the Employee Retirement Income Security Act of 1974 ("ERISA"). Over 5,400 pages of material from the file have been produced to the plaintiff. Specifically, on December 15, 2004, the Department released approximately 4,000 redacted pages from the file. The Department's April 1, 2005 Motion for Summary Judgment and supporting Declaration of Miriam McD. Miller, dated March 30, 2005, explain why certain information was withheld under the FOIA Exemptions, 5 U.S.C. § 552(b). See Docket No. 13. On June 27, 2005, the Department released approximately 1,400 redacted pages. The Department's July 11, 2005 Motion for Summary Judgment With Respect to the Documents Initially Withheld Under FOIA Exemption 7(A), and supporting Supplemental Declaration of Miriam McD. Miller dated July 7, 2005, explain that eleven privileged documents were withheld under FOIA Exemption 5, 5 U.S.C. § 552(b)(5), which protects from disclosure documents normally privileged in the civil discovery

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context. See Docket No. 23. As shown in the March 30, 2005 Miller Declaration and July 7, 2005 Supplemental Miller Declaration, the Qwest investigative file also includes electronic documents that were created by John Mayers, EBSA's Senior Investigator on the Qwest pension plan investigation. Mr. Mayers maintained these electronic documents on his computer. In general, the electronic documents were printed-out for inclusion in the paper file that has been completely processed under the FOIA. See Docket No. 27 (Defendant's Reply In Support of Defendant's July 11, 2005 Motion for Summary Judgment), at Exhibit A-12 (Declaration of John Mayers) at ¶ 6. However, during a review of the electronic documents to confirm that they had been printed out for inclusion in the paper file, defendant ascertained that eight responsive electronic documents had not been printed out for inclusion in the paper file. See id. at ¶¶ 8,9. See also Miller 2d Supp. Dec. at ¶¶ 4,5.1 Those eight electronic documents have been printed out, numbered S-1 through S78, and processed under the FOIA. On December 27, 2005, defendant provided to plaintiff, by overnight mail, a copy of the following pages of material which were deemed

As noted above, 17 documents had not been printed out for inclusion in the paper file. See Docket No. 27 at Exhibit A-12 (Declaration of John Mayers) at ¶¶ 8-9. Nine of those documents, however, post-date the receipt of plaintiff's FOIA request. Id. at ¶ 9. Accordingly, those documents are not responsive to plaintiff's FOIA request in this case. See 29 C.F.R. § 70.20(f) ("In determining records responsive to a request, a component will include only those records existing as of the date of its receipt of the request . . . ."). 3

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releasable under the FOIA in whole or in part: S-1 to S-3, S-42 to S-47, S-60 to S-76. See Exhibit A-2 (letter dated December 27, 2005). The remaining pages of material, specifically, S-4 to S-41, and S-48 to S-59, have been withheld in whole from the plaintiff. See Miller 2d Supp. Dec. at ¶ 5. Defendant has withheld from plaintiff certain pages of material in whole or in part from the collection of pages numbered S-1 through S-78 under FOIA Exemption 5 and/or under FOIA Exemption 7(C). Id. DOL provided to plaintiff on December 27, 2005, via Federal Express delivery, a copy of the four service contracts previously withheld under FOIA Exemption 4. See Exhibit A-1, attached hereto (December 27, 2005 letter to plaintiff's counsel). As set forth in the letter accompanying the documents, defendants provided to plaintiff pages that have been Bates-numbered 860-935 and 951-999. Id. Prior to releasing these documents to plaintiff, defendant was required to obtain permission from all of the contracting parties named in the service contracts, and obtaining such permission took some time. Defendant has, however, withheld certain information on the service contracts under Exemption 7(C). In particular, some information pages 860 and 867 was withheld under this exemption on the grounds that release of the information would invade an individual's personal privacy. See Plick Dec. at ¶¶ 4-7.

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STANDARD OF REVIEW "FOIA facilitates public access to Government documents." Forest Guardians v. FEMA, 410 F.3d 1214, 1217 (10th Cir. 2005). Its "purpose is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the government accountable to the governed." Herrick v. Garvey, 298 F.3d 1184, 1189 (10th Cir. 2002) (citations omitted). The right of access, however, is subject to nine exemptions. See 5 U.S.C. § 552(b). Congress created the exemptions because it realized that legitimate government and private interests could be harmed by the release of certain information. See United States Dep't of Justice v. Julian, 486 U.S. 1, 8 (1986). Nevertheless, "FOIA is to be broadly construed in favor of disclosure, and its exemptions are to be narrowly construed." Herrick, 298 F.3d at 1189 (quotation omitted). The FOIA explicitly places the "burden on the agency to sustain its action." 5 U.S.C. § 552(a)(4)(B). In a FOIA action seeking review of an agency's decision to withhold information, this Court exercises de novo review. Id. In general, FOIA cases are resolved at the summary judgment stage. See Flightsafety Services Corp. v. DOL, 326 F.3d 607, 610 (5th Cir. 2003). Usually, a motion for summary judgment is properly granted only when there is no genuine issue of material fact. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The material submitted by the parties in support of and in opposition to the motion must be

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construed liberally in favor of the party opposing the motion. Harsha v. United States, 590 F.2d 884, 887 (10th Cir. 1979). ARGUMENT I. The Department Properly Withheld Certain Information in the Senior Investigator's Electronic Files under FOIA Exemption 5 The Department is withholding under Exemption 5 the following documents: (1) nine quarterly case summaries, (2) "Weekly Report Topics"; (3) four drafts of the Tolling Agreement; (4) portions of the "Analysis of Appendix M"; and (5) the Senior Investigator's August 14, 2001 Memorandum to the File. See Miller 2d Supp. Dec. at ¶ 5. Exemption 5 exempts from disclosure "inter-agency or intra-agency" records that are normally privileged in the civil discovery context. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975); Casad v. HHS, 301 F.3d 1247, 1251 (10th Cir. 2002). Exemption 5 therefore covers documents subject to the deliberative process privilege and the attorney-client privilege. The deliberative process privilege protects the decision making process of government agencies. Id. This privilege "rests on the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news, and its object is to enhance the quality of agency decisions by protecting open and frank discussions among those who make them within the Government." Department of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 6

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1, 8-9 (2001). To invoke the deliberative process privilege, the communication must be predecisional and it must be "a direct part of the deliberative process in that it makes recommendations or expresses opinions on legal or policy matters." Vaughn v. Rosen, 523 F.2d 1136, 1143-44 (D.C. Cir. 1975). The electronic documents pertinent to this motion are internal EBSA documents that predate EBSA's April 7, 2005 decision to close the investigation. See Miller 2d Supp. Dec. at ¶ 5. This material therefore meets the threshold requirements of the deliberative process privilege. These electronic records are also deliberative. The case summaries and the "Weekly Report Topics" track the progress of the investigation. Id. at ¶ 5©, (d). Their disclosure therefore would reveal the deliberative process itself. Thus, the case summaries and the "Weekly Report Topics" are covered by the deliberative process privilege, and are shielded from disclosure by Exemption 5. Likewise, the drafts of the Tolling Agreement, the Senior Investigator's analysis of Appendix M, and his August 14, 2001 memorandum are deliberative because they were prepared by the Senior Investigator to assist the EBSA decisionmakers concerning the issues under investigation. Id. at ¶ 5(e), (f) and (h). Moreover, these documents reflect the Senior Investigator's candid opinions, and their disclosure would adversely affect the quality of EBSA's deliberative and predecisional process. Id. Accordingly, the drafts of

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the Tolling Agreement, the analytical portions of the Appendix M document, and the Senior Investigator's August 14, 2001 memorandum are covered by the deliberative process privilege, and therefore are exempt from disclosure under Exemption 5. The drafts of the Tolling Agreement are also covered by the attorney-client privilege. The attorney-client privilege concerns "confidential communications between an attorney and his client relating to a legal matter for which the client has sought professional advice." Mead Data Cent., Inc. v. United States Dep't of the Air Force, 566 F.2d 242, 252 (D.C. Cir. 1977). These drafts were created by the Senior Investigator for review by the Department's attorneys in the Regional Solicitor's Office. See Miller 2d

Supp. Dec. at ¶ 5(e). The drafts therefore are covered by the attorney-client privilege, and protected from disclosure under Exemption 5. All of the documents entirely withheld under Exemption 5 -- the case summaries, the "Weekly Report Topics," the drafts of the Tolling Agreement, and the August 18, 2001 memorandum -- have been evaluated for the segregability of privileged information from the non-privileged information. See Miller 2d Supp. Dec. at ¶ 5. Disclosure of the non-privileged information, however, would produce a meaningless document. Id. Accordingly, the four documents were properly withheld in full. See 5 U.S.C. § 552(b) (FOIA requires that "[a]ny reasonably segregable portion of a record shall be provided . . . ").

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II.

The Department Properly Withheld Certain Information under FOIA Exemption 7(C) Exemption 7(C) provides protection for personal information maintained in law

enforcement records. To apply Exemption 7(C), an agency must first identify and evaluate the privacy interest(s), if any, implicated in the requested records. If a privacy interest exists, the public interests then must be assessed. In this regard, the requester must show that the public interest sought to be advanced is a significant one, an interest more specific than having the information for its own sake. Second, the requester must show the information is likely to advance that interest. See NARA v. Favish, 124 S.Ct. 1570, 1580-82 (2004). Exemption 7(C) regularly has been applied to withhold references to people who are not targets of the investigation and were merely mentioned in the law enforcement file. See Rugiero v. United States Dept. of Justice, 257 F.3d 534, 552 (6th Cir. 2001); Halpern v. FBI, 181 F.3d 279, 297 (2d Cir. 1999); SafeCard Services, Inc. v. S.E.C., 926 F.2d 1197, 1206 (D.C. Cir. 1991). Exemption 7(C) also protects witness names, addresses, and telephone numbers. See, e.g., Alirez v. NLRB, 676 F.2d 423, 425 (10th Cir. 1982). On Bates numbered pages 860 and 867, redacted copies of which defendant provided to plaintiff on December 27, 2005, defendant redacted the names, job descriptions, telephone numbers, and other identifying information about third parties 9

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pursuant to Exemption 7(C). See Plick Dec. at ¶¶ 5-7. These redactions were proper under the caselaw. See, e.g., Rugiero, 257 F.3d at 552. No significant public interest would be advanced by revealing this information. On page S-75, a redacted copy of which defendant provided to plaintiff on December 27, 2005, defendant redacted a personal phone number under FOIA Exemption 7(C). Similarly, this redaction was proper under the caselaw, see, e.g., Alirez, 676 F.2d at 425, and no significant public interest would be advanced by revealing this information either. Finally, defendant produced to plaintiff undated "contacts" information, with certain information redacted under Exemption 7(C). See Miller 2d Supp. Dec. at ¶ 5(g). This redaction was also proper under this exemption. /// ///

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CONCLUSION For the foregoing reasons, and any which may be presented in its reply brief, the Department's motion for summary judgment should be granted. Dated: This 11 th day of January, 2006. Respectfully submitted, WILLIAM J. LEONE United States Attorney

s/ Michael C. Johnson Michael C. Johnson Assistant United States Attorney 1225 Seventeenth Street, Suite 700 Denver, Colorado 80202 Telephone: (303) 454-0134 FAX: (303) 454-0408 E-mail: [email protected] Counsel for Defendant

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CERTIFICATE OF SERVICE I hereby certify that on this 11 th day of January, 2006, I electronically filed the foregoing document with the Clerk of the Court using the CM/ECF system, which will forward the document to the following CM/ECF participant at the following e-mail address: Curtis L. Kennedy [email protected]

s/ Michael C. Johnson Michael C. Johnson Attorney for Defendant United States Attorney's Office 1225 Seventeenth Street, Suite 700 Denver, Colorado 80202 Telephone: (303) 454-0134 FAX: (303) 454-0408 E-mail: [email protected]

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