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 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 THE DOCUMENTS INITIALLY WITHHELD UNDER FOIA EXEMPTION 7(A) ________________________________________________________________________ Defendant, 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 the documents initially withheld under FOIA Exemption 7(A) that have now been processed pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. In support of this motion, the Department relies on the attached Supplemental Declaration of Miriam McD. Miller ("Miller Supp. Dec."). BACKGROUND This case involves Plaintiff Mary M. Hull's FOIA request for records compiled by the Department's Employee Benefits Security Administration ("EBSA"). Specifically, on

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March 3, 2004, Plaintiff requested all the records in EBSA's open investigation of the Qwest Pension Plan ("Qwest") being conducted under the Employee Retirement Income Security Act of 1974 ("ERISA"). On March 4, 2004, EBSA denied the request under FOIA Exemption 7(A), which authorizes 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). EBSA's decision was affirmed on administrative appeal. Plaintiff filed this civil action for judicial review on June 18, 2004. EBSA's file in this case consists of over 6,000 pages. Over 4,000 redacted pages were released to the Plaintiff on December 15, 2004. The Department then accounted for the withheld information. On April 1, 2005, Department moved for summary judgment with respect to the undisclosed material. See Docket Entry No. 13. The Department contended that some information was properly withheld under FOIA Exemption 7(A). The Department further argued that the remainder of the material was properly withheld under FOIA Exemptions 2,1 3,2 4,3 5,4 Exemption 2 protects from disclosure "matters that are . . . related solely to the internal personnel rules and practices of an agency." 5 U.S.C. § 552(b)(2). Exemption 3 incorporates the nondisclosure provisions contained in other federal statutes. 5 U.S.C. § 552(b)(3).
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Exemption 4 shields from disclosure confidential commercial information. (continued...) 2

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7(C), 5 and 7(E).6 Plaintiff opposed the Department's motion for summary judgment, and requested the Court to conduct an in camera review of the material withheld under Exemption 7(A). See Docket Entry No. 14. Notably, Plaintiff did not dispute that the Department properly redacted information and properly withheld approximately 600 pages of information under Exemptions 2, 3, 4, 5, 7(C), and 7(E). 7 Instead, Plaintiff limited her objections to the documents entirely withheld under Exemption 7(A). Exemption 7(A) no longer applies in this case, however, because EBSA closed its investigation of Qwest on April 7, 2005. See, e.g., NLRB v. Robbins Tire & Rubber Co.,

(...continued) 5 U.S.C. § 552(b)(4). Exemption 5 exempts from disclosure "inter-agency or intra-agency" records that are normally privileged in the civil discovery context. 5 U.S.C. § 552(b)(5). Exemption 7(C) protects the personal privacy interests in material maintained in law enforcement files. 5 U.S.C. § 552(b)(7)(C). Exemption 7(E) protects from disclosure information compiled for law enforcement purposes where release of the information "would disclose techniques and procedures for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law." 5 U.S.C. § 552(b)(7)(E). The Department therefore maintains that Plaintiff concedes that this information was properly withheld. See Rafferty v, NYNEX Corp., 744 F.Supp. 324, 331 (D.D.C. 1990) (holding that where plaintiff's memorandum in opposition to motion for summary judgment offers no rebuttal to defendants' argument, plaintiff may be deemed to have conceded that issue), aff'd, 60 F.3d 844 (D.C. Cir. 1995). 3
7 6 5 4

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437 U.S. 214, 230 (1978) (Exemption 7(A) is temporal in nature, and is not intended to "endlessly protect material simply because it [is] in an investigatory file."). The Department therefore re-processed the documents initially withheld under FOIA Exemption 7(A), and released 1,402 redacted documents on June 27, 2005.8 See Miller Supp. Dec. Exhibit A-11. However, eleven documents consisting of fifty pages were entirely withheld under FOIA Exemption 5. As discussed below, this information has been properly withheld. The Department has now accounted for all responsive documentation that was initially withheld from Plaintiff under Exemption 7(A). Summary judgment therefore should be granted in the Department's favor. STANDARD OF REVIEW The FOIA "provides the public with a right of access to federal agency records." Herrick v. Garvey, 298 F.3d 1184, 1189 (10th Cir. 2002). 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." Id. (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.

Attached as an exhibit are four additional pages that were inadvertently withheld from Plaintiff. 4

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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 construed liberally in favor of the party opposing the motion. Harsha v. United States, 590 F.2d 884, 887 (10th Cir. 1979). ARGUMENT THE DEPARTMENT PROPERLY W ITHHELD CERTAIN INFORMATION THAT WAS INITIALLY WITHHELD UNDER FOIA EXEMPTION 7(A) A. The Department Properly Withheld Eleven Privileged Documents Under FOIA Exemption 5 The Department is withholding under Exemption 5 eleven privileged documents (50 pages). See Miller Supp. Dec. ¶¶ 8-10. Exemption 5 exempts from disclosure "inter5

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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 protects material covered by the deliberative process privilege. See Casad, 301 F.3d at 1251. 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. 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). In this case, all eleven documents were created by government officials for consideration by other government officials. See Miller Supp. Dec. ¶¶ 8, 10. Thus, each of these documents satisfy the threshold requirement of Exemption 5 that the document is an "inter-agency or intra-agency" communication. The eleven documents also are predecisional because they were all created before the investigation was closed on April

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7, 2005. See Miller Supp. Dec. ¶¶ 10, 11. Finally, all eleven documents are deliberative because each communication plays an important role in EBSA's probe of the Qwest Pension Plan. Thus, the eleven documents are covered by the deliberative process privilege, and therefore protected from disclosure by Exemption 5. See Casad, 301 F.3d at 1251. Each of these eleven documents has been evaluated for the segregability of privileged information from the non-privileged information. See Miller Supp. Dec. ¶ 10. Disclosure of the non-privileged information, however, would produce a meaningless document. Accordingly, each of the eleven documents was 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 . . . "). B. The Department Properly Redacted Information on the 1,402 Pages of Material Released to the Plaintiff on June 27, 2005. Where applicable on the 1,402 pages of material released to the Plaintiff, the Department redacted certain information. At the point of the redaction, the Department cited the pertinent FOIA Exemption or Exemptions, and indicated the kind of information that had been redacted. A record of these redactions can also be found in the charts attached to the Miller Supplemental Declaration. The vast majority of the redactions involve Exemption 7(C). Exemption 7(C) excuses from disclosure "records or information compiled for law enforcement purposes" 7

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if their production "could reasonably be expected to constitute an unwarranted invasion of personal privacy."9 5 U.S.C. § 552(b)(7)(C); Alirez v. NLRB, 676 F.2d 423, 426-427 (10th Cir. 1982) (interpreting and applying Exemption 7(C)). Accordingly, the Court must weigh "the personal privacy of citizens against the uncontrolled release of information compiled through the power of the state." National Archives and Records Administration v. Favish, 541 U.S. 157, 172 (2004). Exemption 7(C) therefore has been routinely applied to withhold references to people who just happen to be mentioned in law enforcement documents. See, e.g., Alirez, 676 F.2d 127-128. Here, personal data about individuals indirectly involved in this case has been redacted from the disclosed documents. See Miller Supp. Dec. ¶ 12.b. These people certainly have an interest in being free from public scrutiny arising from the release of their identities in connection with EBSA's investigation. No public interest would be served by disclosing this information. Thus, disclosure of the personal identities of individuals, who just happen to be involved in this investigation, would constitute an unwarranted invasion of personal privacy. This information therefore was properly redacted by EBSA when it disclosed the documents to Plaintiff. See Alirez, 676 F.2d at 428.

Plaintiff does not dispute that the documents in this case were prepared for civil law enforcement purposes, and therefore potentially eligible for Exemption 7's protections. 8

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In light of the unusual amount of publicity this investigation of the Qwest Pension Fund has generated, the EBSA investigator's name and personal identifiers have been redacted from the documents released to the Plaintiff. Under these special circumstances, the EBSA investigator has a personal privacy interest in being free from public examination. Moreover, there is no public interest in the EBSA investigator's name and other personal information about that investigator. In this particular situation, the name and personal information about the EBSA investigator have been properly redacted under Exemption 7(C). See 5 U.S.C. § 552(b)(7)(C). Defendant has also redacted a limited amount of information, on the 1,402 pages of material that has been released to the Plaintiff in a redacted format, under three other FOIA exemptions. In particular, defendant has asserted Exemptions 2, 5 and 7(E) as to other information redacted from the 1,402 pages of material. Defendant's Vaughn index, attached hereto, explains in detail the factual basis for withholding this other information under Exemptions 2, 5 and 7(E). Defendant notes also that it has already set forth, in its Motion for Summary Judgment, filed April 1, 2005, the legal justification for generally withholding information under Exemptions 2, 5 and 7(E). In particular, defendant set forth at pages 11-4 of its April 1, 2005 summary judgment motion the legal basis for withholding information under Exemption 2, and set forth at pages 16-17 and 10-11 of its April 1, 2005 motion the legal basis for withholding information under Exemptions 5 and

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7(E), respectively. Defendant respectfully submits that it has set forth in its Vaughn index the factual basis, and has set forth at the above-cited pages of its April 1, 2005 motion the legal basis, for withholding the limited amount of information it is withholding on the 1,402 pages of material under Exemptions 2, 5 and 7(E). Defendant respectfully refers the Court and plaintiff to its attached Vaughn index and to pages 10-14 and 16-17 for its factual and legal argument justifying withholding of this additional limited information. CONCLUSION For the foregoing reasons, and any that may be presented in its reply brief or at a hearing on this matter, Defendant's motion for summary judgment with regard to the documents formerly withheld under FOIA Exemption 7(A) should be granted, and this matter should be dismissed. Dated: This 11th day of July, 2005. Respectfully submitted, WILLIAM J. LEONE Acting 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 10

Of Counsel: Jennifer Toth, Esq. Office of the Solicitor U.S. Department of Labor

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CERTIFICATE OF SERVICE I hereby certify that on this 11th day of July, 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 11th day of July, 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]

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