Free Reply to Response to Motion - District Court of Colorado - Colorado

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

Document 27

Filed 08/18/2005

Page 1 of 18

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 REPLY IN SUPPORT OF DEFENDANT'S JULY 11, 2005 MOTION FOR SUMM ARY JUDGMENT, AND RESPONSE TO PLAINTIFF'S PETITION FOR IN CAMERA REVIEW

Defendant, the United States Department of Labor, hereby replies to Plaintiff Mary M. Hull's "Response in Opposition to Defendant's July 11, 2005 Motion for Summary Judgment and Petition for In Camera Review" (hereafter, "Plaintiff's Response"). See Docket Entry No. 24. This case involves Plaintiff's Freedom of Information Act ("FOIA") request for a copy of the 6,000-page file containing records compiled by the Department's Employee Benefits Security Administration ("EBSA"), during its investigation of the Qwest Pension Plan ("Qwest") under the Employee Retirement Income Security Act of 1974 ("ERISA").

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

Document 27

Filed 08/18/2005

Page 2 of 18

I.

INTRODUCTION

On March 3, 2004, Plaintiff submitted a FOIA request to Defendant, seeking a copy of EBSA's file in its open investigation of Qwest. 1 Accordingly, 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). After completing the administrative review process, Plaintiff filed this action for judicial review of EBSA's decision on June 18, 2004. See Docket Entry No. 1. On December 15, 2004, Defendant released over 4,000 pages of redacted records to Plaintiff, in response to her FOIA request. The remaining information was withheld from Plaintiff under FOIA Exemptions 2, 3, 4, 5, 7(A), 7(C), and 7(E). See Docket Entry No. 13, (Defendant's motion for summary judgment).

Plaintiff questions whether EBSA's investigation of Qwest was truly open until the closure date of April 7, 2005. In Plaintiff's view, the lack of post-May 2004 documents produced to her proves that the investigation was closed at some time before April 7, 2005. See Plaintiff's Response at 7. The cut-off date for records responsive to Plaintiff's FOIA request, however, was in March 3, 2004. 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, EBSA was not required to produce records created after March 3, 2004. Plaintiff's reliance on a supposed gap in the records to show that the investigation was closed prior to April 7, 2005 is therefore fatally flawed. 2

1

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

Document 27

Filed 08/18/2005

Page 3 of 18

Plaintiff objected only to the withholding of information under FOIA Exemption 7(A), and requested the Court to conduct an in camera review of that information. See Docket Entry No. 14. That request became moot when 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. Eleven privileged documents were withheld in full under FOIA Exemption 5, 5 U.S.C. § 552(b)(5), which exempts from disclosure inter-agency or intra-agency records that are normally privileged in the civil discovery context. See Docket Entry No. 23. Plaintiff now disputes the withholding of approximately 500 pages of material from the Qwest investigative file.2 Specifically, she belatedly asserts that she is entitled to the information withheld under Exemption 4, 5 U.S.C. § 552(b)(4), which protects confidential commercial information from disclosure. See Plaintiff's Response at 9-10; Hull Declaration ¶ 14. She also contends that the FOIA compels the production of certain information withheld under Exemption 5, 5 U.S.C. § 552(b)(5), which exempts from disclosure privileged information. Id. at 7-8; Hull Declaration ¶ 15. Moreover, to vindicate her position, Plaintiff maintains that this Court should review the 500 pages of

2

Plaintiff mistakenly estimates that 200 pages of documents have been withheld. 3

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

Document 27

Filed 08/18/2005

Page 4 of 18

withheld documents in camera. As demonstrated below, Plaintiff's arguments have no merit. II. ARGUMENT

As a preliminary matter, Plaintiff asserts that certain information has been withheld without explanation. See Plaintiff's Response at 10-11; Hull Declaration ¶ 17. First, she incorrectly states that the following documents have been withheld without explanation: Date Dec. 1998 1999 Document Summary Annual Reports Summary Annual Reports Summary Annual Reports Summary Annual Reports Plan Changes 2-19-04 Report of Interview Employee Handbook Case File Index Vol. VI Status Produced 12-15-04 Vol. 1A Ex. 19 Pages 795802 791794 783790 803810 17401756 29432944 30763339 40724073

Produced 12-15-04

1A

20

Dec. 2000 Dec. 1997

Produced 12-15-04

1A

21

Produced 12-15-04

1A

18

Produced 12-15-04 Produced 6-27-05 Produced 12-15-04 Produced 6-27-05

IIA IV IV VI

3 50 4

4

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

Document 27

Filed 08/18/2005

Page 5 of 18

Yet, the detailed charts attached in support of Defendant's motions for summary judgment show that those documents have been produced to the Plaintiff with redactions. See Docket Entry Nos. 13 and 23. Those documents therefore have not been withheld from Plaintiff without explanation. Plaintiff also points to the eleven computer disks that have not been produced. Those disks contain copies of the electronic documents created by the EBSA investigator during the course of the Qwest investigation, and maintained on the hard drive of the computer in his office. See Exhibit A-12, Declaration of John Mayers (hereafter, "Mayers Dec.") 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. See Mayers Dec. ¶ 8. He determined that seventeen documents had not been printed out for inclusion in the investigative file. Id. at ¶ 9. The Department therefore will process those documents under the FOIA, and release the disclosable portions to the Plaintiff as soon as possible. The Department will also shortly move for summary judgment as to material in those seventeen documents that is exempt from disclosure to the Plaintiff under the FOIA. A. Documents Have Been Properly Withheld Under FOIA Exemption 4 As fully explained in Defendant's initial motion for summary judgment and supporting evidence, certain documents have been withheld in this case under FOIA

5

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

Document 27

Filed 08/18/2005

Page 6 of 18

Exemption 4, 5 U.S.C. § 552(b)(4), which protects from disclosure confidential commercial information. See Docket Entry No. 13, at 14-16; Miller Declaration ¶¶ 30-35 and Exhibit A-10. Originally, Plaintiff had no objection to the withholding of this information when she opposed Defendant's initial motion. See Docket Entry No. 14. Now, however, she argues ­ in opposition to Defendant's second summary judgment motion, in which Defendant did not raise Exemption 4 as a basis for withholding records ­ that Defendant's reliance on Exemption 4 as to certain records in Defendant's first summary judgment motion was improper. Plaintiff has had an opportunity to raise objections to Defendant's reliance on Exemption 4 in response to Defendant's first summary judgment motion. She should not be permitted to do so in response to Defendant's second motion, given that Defendant does not rely on Exemption 4 in its second motion. Assuming that this Court reaches the merits of Plaintiff's argument, Defendant notes that Plaintiff raises objections to Defendant's withholding of information under Exemption 4 in the documents listed below: Date Document Investment Committee Documents 3-25-03 e-mail from O'Herron to DOL IV 46 2949 Vol. Ex. Pg. Comment

6

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

Document 27

Filed 08/18/2005

Page 7 of 18

undated undated 2-00 4-17-03

e-mail from DOL to O'Herron e-mail from DOL to O'Herron Invoice Letter from O'Herron to DOL Employee Benefits Committee Documents 1999 EBC recommendations Selected EBC minutes " " "

IV VI VI VI

45 31 30 28

29502952 40804122 41234125 41284166

III III " " "

11 3 " " "

21422150 22982303 23052312 23222326 23372343 Pages 23382342 produced 12-15-04

" " "

" " "

" " "

23452346 23492352 23622366 Pages 23632365 produced 12-15-04

"

"

"

23802382

7

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

Document 27

Filed 08/18/2005

Page 8 of 18

" "

" "

" "

23852405 24152419 Pages 24142418 produced 12-15-04 Page 2448 produced 12-15-04 Page 2451 produced 12-15-04

"

"

"

24472449

"

"

"

24502452

" " " " " "

" " " " " "

" " " " " "

24652466 24762485 24962503 2506 25152523 25292532 Pages 25282531 produced 12-15-04

" " "

" " "

" " "

25342535 25372540 2544

8

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

Document 27

Filed 08/18/2005

Page 9 of 18

Internal Qwest Documents regarding Plan Reimbursements 6-24-02 5-30-02 Document related to Plan reimbursements Internal Qwest e-mail Letter to Curtis Kennedy 11-10-99 Letter from Qwest to Curtis Kennedy XI 2 65246534 Produced 12-15-04 VI VI 26 26 4168 41704172

As defendant noted in its motion, Exemption (b)(4) protects "trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential." 5 U.S.C. § 552(b)(4). The documents are being withheld under the second category set forth in Exemption 4, that is, they are being withheld because they are "commercial or financial information obtained from a person [that is] privileged or confidential." See Defendant's Motion at Ex. A-1, ¶ 12. The first step in an Exemption 4 analysis is determining whether the information submitted to the government agency was given voluntarily or involuntarily. Utah v. U.S. Dept. of Interior, 256 F.3d 967, 969 (10 th Cir. 2001) (citing Critical Mass Energy Project v. Nuclear Regulatory Comm'n, 975 F.2d 871, 878-79 (D.C. Cir. 1992) (en banc)). Defendant noted in its summary judgment motion that the withheld information was given voluntarily. See Docket Entry No. 13 at 15. Plaintiffs do not dispute this assertion in 9

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

Document 27

Filed 08/18/2005

Page 10 of 18

their response brief. Since the submission was voluntary, the information is "confidential" for the purpose of Exemption 4 if it is of a kind that would customarily not be released to the public by the person from whom it was obtained. See Critical Mass, 975 F.2d at 879. According to the Plaintiff, the Investment Committee documents have been mischaracterized as "confidential information." Yet, in her affidavit, Felicity O'Herron, Qwest's Director of Compensation and Benefits, states that she is unaware that such information has ever been made available to the public. See Docket Entry No. 13, Exhibit A-10, Tab G. Accordingly, this information has been properly withheld under Exemption 4. Next, Plaintiff asserts that the Employee Benefits Committee documents and internal Plan reimbursement documents must be disclosed they "do not involve someone's personal financial information." To the contrary, the O'Herron Affidavit establishes that this information is confidential commercial information, which is exempt from disclosure under Exemption 4. For an unstated reason, Plaintiff also believes that the four service contracts should be disclosed. Releasing these contracts, however, could put the parties at a commercial disadvantage. See Miller Declaration ¶ 31. Moreover, these types of service contracts are not customarily released to the public. Id. Accordingly, these contracts are exemption

10

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

Document 27

Filed 08/18/2005

Page 11 of 18

from disclosure under Exemption 4. Plaintiff then argues for unstated reasons that the Qwest Management Company Annual Report for 2000 that was designated by Qwest as "Proprietary and Confidential" must be released under the FOIA. In addition to the designation, the O'Herron affidavit show that the Management Company document is confidential commercial information that is protected from disclosure by Exemption 4. Finally, Plaintiff merely asserts that the two fiduciary insurance policies should not be withheld. Yet, the O'Herron Affidavit demonstrates that those documents are confidential commercial information that is subject to protection under Exemption 4. See Docket Entry No. 13, Exhibit A-10, Tab G. In sum, the Miller Declaration and the O'Herron Affidavit firmly establish that the documents designated by Plaintiff contain confidential commercial information that is protected by Exemption 4. B. The Department Properly Withheld Privileged Information Under FOIA Exemption 5. Plaintiff also argues that the following information is not covered by the deliberative process privilege, and therefore not protected by Exemption 5:

Date

Document Form 205: EBSA's Closed Case Summaries 11

Vol. I

Ex. 3

Pg. 750-757

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

Document 27

Filed 08/18/2005

Page 12 of 18

8-11-99

DOL print-out of status of cases in the Office of Exemptions and Determinations Draft tolling agreement

I

2

758

undated

IV

61

29052909 Pg. 2910 produced 29272928 redacted copy produced 2942 29472948; 49914992 2956 2966; 5009 2967; 5010 2968; 5011 49894990 redacted copy produced 5007 54825486; 54985521 54875488

3-25-04

Report of Interview

IV

55

2-20-04 3-4-03

Interagency e-mail Memo re interagency meeting

IV IV VII

51 47 26 41 34 23 33 22 32 21 27

undated 3-11-02 3-11-02 3-4-02 3-5-03

Interagency e-mail Report of interagency interview Memo re intra-agency conference call Report of interagency interview Report of interview

IV IV VIII IV VIII IV VIII VIII

7-11-02 1-25-02

Interagency e-mail EBSA referral memo

VIII IX

24

4-5-02

Interagency letter

IX

12

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

Document 27

Filed 08/18/2005

Page 13 of 18

2-22-02

Memo re technical assistance

IX

5490

First, Plaintiff argues that the documents referenced above were not created or issued before the April 7, 2005 decision to close the investigation. This makes no sense. All the information in the investigative file predates the decision to close the file. Thus, the documents reference above, which were produced from the investigative file, are predecisional. Plaintiff then questions the deliberative nature of the designated documents. But paragraphs 36-39 of the Miller Declaration ­ see Docket Entry No. 13 at attachment ­ describe the deliberative function of the Form 205 (pp. 750-757 as noted in the Vaughn index), EBSA's caseload printout (p. 758 of the Vaughn index). Similarly, the

Supplemental Miller Declaration ­ see Docket Entry No. 23 at Exhibit A-11, pp.3-6 ­ provides a detailed explanation regarding the application of the deliberative process privilege to the eleven remaining documents. And the redacted copies of the March 4, 2002, and March 25, 2004, interview reports, which were provided to Plaintiff, clearly indicate that the investigator's opinions that were communicated to the decision makers were deleted.3

These redacted documents also contradict Plaintiff's assertion that no effort was made to segregate the releaseable information from the information protected by the deliberative process privilege, and therefore exempt from disclosure under Exemption 5. 13

3

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

Document 27

Filed 08/18/2005

Page 14 of 18

C.

In Cam era Review of the 500 Pages Is Unnecessary. According to the Plaintiff, she is unable to oppose Defendant's summary judgment

motions because she cannot view the documents in question in this FOIA case. She believes that the "only way to proceed is for the Court to hold an in camera inspection." Plaintiff misconstrues the law in this area, and fails to demonstrate that in camera review is appropriate. . Although the FOIA specifically authorizes in camera review of documents, 5 U.S.C. § 552(a)(4)(B), such review is a matter firmly committed to the Court's broad discretion. NLRB v. Robbins Tire and Rubber Co., 437 U.S. 214, 224 (1978) ("The in camera review provision is discretionary by its terms...."); Spirko v. United States Postal Service, 147 F.3d 992, 996 (D.C. Cir. 1998) (in camera review is committed to "broad discretion of trial court judge."). In camera review is typically ordered as a matter of discretion only in exceptional cases. As the Supreme Court explained in Robbins Tire, the in camera review provision "is designed to be invoked when the issue before the District Court could not be otherwise resolved."). 437 U.S. at 224. Such review "should not be resorted to as a matter of course...." Animal Legal Defense Fund, Inc. v. Department of the Air Force, 44 F. Supp.2d 295, 304 (D.D.C. 1999) (quoting Quinon v. FBI, 86 F.3d 1222, 1228 (D.C. Cir. 1996). It is typically invoked only in exceptional cases (1) because in camera review

14

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

Document 27

Filed 08/18/2005

Page 15 of 18

"circumvents the adversarial process," Jones v. FBI, 41 F.3d 238, 243 (6th Cir. 1994); and (2) because of the burdens involved in such review. See Ray v. Turner, 587 F.2d 1187, 1195 (D.C. Cir. 1978) ("in camera inspection requires effort and resources and therefore a court should not resort to it routinely on the theory that `it can't hurt.'"). In camera review is unnecessary and inappropriate when a federal agency meets its burden of proof in a summary judgment motion by means of a sufficiently detailed affidavit. Young v. CIA, 972 F.2d 536, 538 (4th Cir. 1992). In camera review is generally most appropriate when there is actual evidence of bad faith on the part of the agency. Rugiero v. United States Dept. of Justice, 257 F.3d 534, 547 (6th Cir. 2001) (finding that requester failed to demonstrate "strong evidence of bad faith that calls into question the district court's decision not to conduct an in camera review."). Here, Plaintiff has not demonstrated that this case is exceptional, or that Defendant's motion for summary judgment cannot be resolved without resorting to in camera review of the documents at issue. She has failed to demonstrate bad faith on the part of the Department of Labor in the processing of his FOIA request. See Rugiero, 257 F.3d at 544 (actual agency bad faith in the FOIA action may justify in camera review as a matter of discretion). Plaintiff has not shown that Defendant failed to adequately describe the information withheld, the rationale for its withholding or that Defendant was not reasonable and consistent with its application of the statute to the information withheld.

15

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

Document 27

Filed 08/18/2005

Page 16 of 18

To the contrary, Defendant has sustained its burden of proving that the documents designated by the Plaintiff were properly withheld under FOIA Exemptions 4 and 5. The Miller Declaration completely describes each document withheld under FOIA Exemption 4, and establishes by means of the O'Herron Affidavit that each withheld document contains confidential commercial information. Likewise, the Supplemental Miller Declaration identifies each privileged document, and explains why the deliberative process applies. Finally, the Mayers Declaration shows every available document in this case has been processed by EBSA, because M r. Mayers printed out a hard copy of every electronic document on his hard drive, and placed the documents in the manual file. This Court has an adequate evidentiary basis to determine whether each document was properly withheld, and consequently in camera review of the 500 pages of withheld information is unnecessary. See Pollard v. FBI, 705 F.2d 1151, 1153-1154 (9th Cir. 1983). If the Court disagrees, it should remand this case for EBSA to provide more detailed declarations. Id. III. CONCLUSION

For the foregoing reasons, those in Defendant's prior briefs in this case, and any that may be presented at a hearing on this matter, Defendant's motions for summary judgment should be granted; Plaintiff's request for in camera review should be denied; and this case should be dismissed.

16

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

Document 27

Filed 08/18/2005

Page 17 of 18

Dated: This 18 th day of August, 2005. 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

17

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

Document 27

Filed 08/18/2005

Page 18 of 18

CERTIFICATE OF SERVICE I hereby certify that on this 18 th day of August, 2005, I electronically filed the foregoing document with the Clerk of the Court using the CM/ECF system. I also hereby certify that on this 18 th day of August, 2005, I placed the foregoing document in the U.S. Mail, postage paid, to the following non CM/ECF participants at the following addresses:

Curtis L. Kennedy 8405 E. Princeton Avenue Denver, Colorado 80237-1741

Jennifer Toth, Esq. Office of the Solicitor U.S. Department of Labor Washington, D.C.

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]

18