Free Motion for Extension of Time - 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 FURTHER EXTENSION OF TIME TO FILE ADDITIONAL VAUGHN INDEX AND SUMMARY JUDGMENT MOTION REGARDING FORMER EXEMPTION 7(A) DOCUMENTS

Defendant, the United States Department of Labor, through its attorneys of record, hereby moves, pursuant to Rule 7(b)(1) of the Federal Rules of Civil Procedure, for a further extension of time to file an additional Vaughn index and motion for summary judgment concerning those documents recently processed by Defendant which had formerly been withheld under Exemption 7(A). As grounds for this motion, Defendant states as follows: 1. This case involves Plaintiff's Freedom of Information Act ("FOIA") request

for records compiled by the Department's Employee Benefits Security Administration ("EBSA"), concerning its investigation of the Qwest Pension Plan under the Employee Retirement Income Security Act of 1974 ("ERISA").

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2.

Defendant initially withheld approximately 1,500 pages of documents

pursuant to FOIA Exemption 7(A), which protects from disclosure information compiled for law enforcement purposes to the extent the production of such information "could reasonably be expected to interfere with enforcement proceedings." 5 U.S.C. § 552(b)(7)(A). 3. EBSA's investigation was open when Plaintiff requested the records.

However, on April 7, 2005, EBSA closed the investigation. 4. Because EBSA has closed the investigation, Exemption 7(A) no longer

applies to the documents withheld by Defendant under Exemption 7(A) concerning the investigation. Exemption 7(A) is temporal in nature and is not intended to "endlessly protect material simply because it [is] in an investigatory file." NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 230 (1978). 5. Defendant has reviewed those documents and processed them under the

FOIA. On or about Monday, June 27, 2005, defendant released a large number of documents in whole and in part to plaintiff pursuant to the mandates of the FOIA. As a result of that processing, Defendant has now determined to continue to withhold some of these former "7(A)" documents under other FOIA exemptions. 6. Because Defendant was not able to complete its processing of the

documents until approximately June 27, 2005, due in part to the number of documents at issue, Defendant has not been able to prepare a supplemental Vaughn index and summary

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judgment motion regarding these former "7(A)" documents in time for filing by June 29, 2005. Defendant had moved, on May 18, 2005, for leave to file by June 29, 2005, its supplemental Vaughn index and summary judgment motion concerning these former "7(A)" documents. 7. Consequently, Defendant respectfully requests the opportunity to file its

Vaughn index and summary judgment motion concerning the former "7(A)" documents by Monday, July 11, 2005. 8. Defendant left a message for plaintiff's counsel, informing him that

defendant would be filing this motion, but Defendant did not receive a response from plaintiff prior to filing this motion with the Court. Dated: This 29th day of June, 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

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CERTIFICATE OF SERVICE I hereby certify that on this 29th day of June, 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 29th day of June, 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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