Free Response to Motion - District Court of Colorado - Colorado

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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 RESPONSE TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

Defendant, the United States Department of Labor (hereafter "defendant" or "DOL") responds in opposition to plaintiff Mary M. Hull's Motion for Summary Judgment in this Freedom of Information Act ("FOIA") case. The short answer to plaintiff's motion is that it is moot. She asks that DOL be ordered to produce Qwest pension plan service contracts which had been withheld under FOIA Exemption 4. But those service contracts have been produced to her. She also contends that DOL "asserts no FOIA Exemption and gives no explanation for not releasing" 11 computer discs and 17 documents. With respect to the 11 computer discs, they contain only copies of electronic documents which defendant fully addresses in defendant's Vaughn indices. With respect to the 17 documents, only eight are responsive to plaintiff's FOIA request.

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Defendant has produced some of those eight documents to plaintiff, and has asserted FOIA exemptions as to others. Defendant is filing on January 11, 2006 a motion for summary judgment in which defendant asserts that portions of the eight documents are not releasable under various FOIA exemptions. Because plaintiffs' motion for summary judgment is moot, the motion should be denied. I. STATEMENT OF FACTS

This case involves plaintiff's FOIA request for a copy of approximately 6,000 pages of records compiled by DOL's Employee Benefits Security Administration ("EBSA"), during its investigation of the Qwest Pension Plan under the Employee Retirement Income Security Act of 1974 ("ERISA"). On March 3, 2004, plaintiff submitted a FOIA request to DOL, seeking a copy of EBSA's file in its open investigation of Qwest. See Docket No. 1 (Complaint) at 3-4. EBSA withheld the records under FOIA Exemption 7(A), which authorizes the withholding of "records or information compiled for law enforcement purposes, but only to the extent that production of such law enforcement records or information . . . could reasonably be expected to interfere with enforcement proceedings." 5 U.S.C. § 552(b)(7)(A).

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A.

DOL's Initial Release of Documents and April 1, 2005 Motion for Summary Judgment On December 15, 2004, in response to plaintiff's FOIA request, DOL released

over 4,000 pages of redacted records to her. The remaining information was withheld from plaintiff under FOIA Exemptions 2, 3, 4, 5, 7(A), 7(C) and 7(E). On April 1, 2005, defendant filed a motion for summary judgment, with an accompanying Vaughn declaration, asserting that the documentation should be withheld under these FOIA exemptions. See Docket No. 13. B. DOL's Subsequent Release of Documents Following the Processing of Former Exemption 7(A) Documents, and Defendant's July 11, 2005 Motion for Summary Judgment EBSA closed its investigation of Qwest on April 7, 2005. Accordingly, EBSA reprocessed the documents that were being withheld under Exemption 7(A). On June 27, 2005, approximately 1,400 redacted pages of documents formerly covered by Exemption 7(A) were released to plaintiff. See Docket No. 23 (Defendant's Motion for Summary Judgment, filed July 11, 2005), Supplemental Declaration of Miriam McD. Miller, at ¶¶ 2-3. Defendant then filed on July 11, 2005 its summary judgment motion with respect to the documents initially withheld under FOIA Exemption 7(A). See Docket No. 23. Among the arguments asserted in plaintiff's response in opposition to defendant's July 11, 2005 summary judgment motion, plaintiff contended that defendant had not produced 11 computer discs. See Docket No. 24 at 11 (citing to Hull Affidavit at ¶ 17). 3

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In defendant's reply to plaintiff's response brief, defendant addressed this argument. Defendant included with its reply brief the declaration of EBSA's Senior Investigator John Mayers, who had been assigned to conduct the Qwest Pension Plan investigation. 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 ¶ 4. Mr. Mayers noted in his declaration that he had created electronic documents during the course of the Qwest investigation, and had maintained those electronic documents on his computer hard drive. Id. at ¶ 5. He acknowledged that 11 floppy discs were created which contained copies of all the electronic documents on his computer hard drive. Id. at ¶ 7. Those 11 floppy discs were created specifically in response to plaintiff's March 3,

2004 FOIA request. Id. But the 11 floppy discs are not themselves independent records. Rather, they are simply copies of electronic documents contained on Mr. Mayers' computer hard drive. Id. at ¶¶ 5-7. On August 13, 2005, Mr. Mayers reviewed all the electronic documents on his hard drive to ascertain whether or not those documents had been printed out for inclusion in the Qwest investigative file. Id. at ¶ 8. He determined that 17 documents had not been printed out for inclusion in the investigative file. Id. at ¶ 9. Nine of these documents were created after March 3, 2004, the date of plaintiff's FOIA request to DOL. Thus,

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these nine documents were not responsive to plaintiff's FOIA request. In short, a total of eight documents responsive to the FOIA request had not been printed out for inclusion in the investigative file. C. DOL's Release of Exemption 4 Documents, and Defendant's January 11, 2006 Motion for Summary Judgment Regarding the Remaining Eight Documents 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.1 With respect to the eight remaining responsive documents Mr Mayers identified as

Defendant demonstrates in its summary judgment motion, to be filed on January 11, 2006, that the redactions on pages 860 and 867 are proper under Exemption 7(C). 5

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documents from his computer hard drive which were not included in the investigative file, those eight documents are addressed in defendant's motion for summary judgment which is being filed January 11, 2006. In this summary judgment motion, defendant demonstrates that the eight documents have been printed-out, the pages of the documents have been numbered S-1 through S-78, and the pages have been 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 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). Defendant further demonstrates in its summary judgment motion that, to the extent some of the pages of material have been withheld in whole or in part, they have properly been withheld under FOIA Exemption 5 and FOIA Exemption 7(C). Defendant has now addressed all of the electronic documents contained on Mr. Mayers' 11 floppy discs. The vast majority of the electronic documents on the discs have been addressed in defendant's previous summary judgment motions, and the eight remaining documents are addressed in defendant's January 11, 2006 summary judgment motion. II. ARGUMENT

The Supreme Court has held, under the "case or controversy" requirement in Article III of the Constitution, that "federal courts are without power to decide questions

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that cannot affect the rights of litigants in the case before them." City Of Albuquerque v. U.S. Dept. Of Interior, 379 F.3d 901, 918 -19 (10th Cir. 2004)(quoting North Carolina v. Rice, 404 U.S. 244, 246 (1971). "A case is moot when the issues presented are no longer `live' or the parties lack a legally cognizable interest in the outcome." City of Erie v. Pap's A.M., 529 U.S. 277, 287 (2000) (quotation marks and citations omitted); Utah Animal Rights Coalition v. Salt Lake City Corp., 371 F.3d 1248, 1256 (10th Cir. 2004). "[A]n actual controversy must be extant at all stages of review, not merely at the time the complaint is filed." Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997). The crucial question is whether "granting a present determination of the issues offered . . . will have some effect in the real world." Kennecott Utah Copper Corp. v. Becker, 186 F.3d 1261, 1266 (10th Cir. 1999) (quotation marks and citations omitted). Plaintiff's motion for summary judgment is moot, because the issues presented in the motion are no longer "live." No controversy exists as to the issues presented in the motion. A. Plaintiff's Request that Defendant Produce Qwest Pension Plan Service Contracts is Moot Plaintiff first asserts that she is entitled to 125 pages of Qwest's "service contracts" which defendant is withholding under Exemption 4, 5 U.S.C. § 552(b)(4). See Plaintiff's Motion at 2-3. In particular, plaintiff asks for copies of documents that have been Bates-numbered 860-935 and 951-999. Id. at 3. 7

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Defendant has provided this information to plaintiff. On December 27, 2005, defendant provided to plaintiff a copy of the four service contracts previously withheld under FOIA Exemption 4. See Exhibit A-1, attached hereto. As set forth in the letter to plaintiff accompanying the December 27, 2005 submission, defendant provided to plaintiff documents that have been Bates-numbered pages 860-935 and 951-999. Id. Plaintiff's request for an order requiring defendant to produce those particular Batesnumbered pages is therefore moot. City of Erie, 529 U.S. at 287. B. Plaintiff's Contention that Defendant Has Failed to Assert a FOIA Exemption or Explanation for Not Releasing 11 Computer Discs is Moot Plaintiff argues in her summary judgment motion, as she did in her response brief filed July 29, 2005, that defendant has not justified its failure to produce 11 computer disks. See Plaintiff's Motion at 3. See also Docket No. 24 at 11, Part E. To the contrary, defendant has set forth a rational justification for declining to release the disks to plaintiff. The disks contain nothing more than copies of the electronic documents created by the EBSA investigator during the course of the Qwest investigation. See Docket No. 27 at Exhibit A-12 (Declaration of John Mayers) at ¶¶ 5-7. Defendant has produced or otherwise addressed all of the material on the 11 discs, and therefore plaintiff's request is moot. The vast majority of the electronic documents on the 11 floppy discs have been addressed in defendant's previous summary judgment motions. As defendant has noted 8

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above, Mr. Mayers determined that 17 electronic documents had not been printed out for inclusion in the investigative file. Id. at ¶ 9. Nine of these documents, however, postdate 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 . . . ."). Thus, only eight responsive documents which were not printed out for inclusion in the investigative file are at issue. With respect to those eight responsive documents, the documents have been printed-out, numbered S-1 through S-78, and processed under the FOIA. On December 27, 2005, defendant provided to plaintiff, by overnight mail, a copy of the following documents which were deemed releasable under the FOIA in whole or in part: S-1 to S3, S-42 to S-47, S-60 to S-76. See Exhibit A-2 (letter dated December 27, 2005). To the extent some of the documents numbered S-1 through S-78 have been withheld in whole or in part from plaintiff, those documents are now addressed in defendant's motion for summary judgment which is being filed January 11, 2006. In its summary judgment motion, defendant demonstrates that the documents are being properly withheld in whole or in part under FOIA Exemption 5 and FOIA Exemption 7(C). Plaintiff's assertion that defendant has not provided an explanation for withholding the 11 floppy discs, see Plaintiff's Motion at 3, and has not asserted any applicable FOIA

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exemption as to those floppy discs, see id., is therefore moot. C. Plaintiff's Assertion that Defendant Has Not Addressed the 17 Documents is Moot As noted previously in this response brief, although Mr. Mayers determined that 17 electronic documents had not been printed out for inclusion in the investigative file, only eight of those electronic documents are responsive to plaintiff's FOIA request. Those documents have been numbered S-1 through S-78, and defendant has provided a number of those documents to plaintiff. See Part B, supra. To the extent some of the documents numbered S-1 through S-78 have been withheld in whole or in part from plaintiff, those documents are addressed in defendant's motion for summary judgment which is being filed January 11, 2006. Plaintiff's assertion that defendant has not tendered releasable documents to her, or otherwise asserted a basis for withholding any documents, see Plaintiff's Motion at 4, is therefore not correct. Defendant is addressing the documents.2 Plaintiff's contention is thus moot. Utah Animal Rights Coalition, 371 F.3d at 1256.3

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See also Exhibit A-3, Declaration of Michael C. Johnson.

Plaintiff also requests that this Court establish a deadline by which DOL is required to deliver to the Court those documents which are to be reviewed in camera. See Plaintiff's Motion at 4-5. But defendant has already delivered the documents to the Court for in camera review. On December 21, 2005, defendant delivered the documents to chambers for such review. 10

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III.

CONCLUSION

For the foregoing reasons, and any that may be presented at a hearing on this matter, plaintiff's motion for summary judgment should be denied. Dated: This 10 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 10 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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