Opinion
CV-01-515-ST.
December 12, 2001
FINDINGS AND RECOMMENDATION
INTRODUCTION
Plaintiff George W. Goodman ("Goodman") brings this lawsuit against the Department of Labor ("DOL") for failing to adequately respond to his request for documents under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. His Complaint alleges that the DOL not only exceeded the 20 day response time, as required by 5 U.S.C. § 552(a)(6)(A), but also claimed several exemptions and withheld approximately 104 pages of information from its disclosure to Goodman. Accordingly, Goodman seeks:(1) to enjoin the DOL from withholding these records; (2) to direct the DOL to produce the records requested for an in camera review by the court; (3) to provide him the records requested; and (4) to recover reasonable attorney fees and costs. This court has federal question jurisdiction over Goodman's claims under 5 U.S.C. § 552 and 28 U.S.C. § 1331.
The DOL has filed a Motion for Summary Judgment (docket #9). For the reasons set forth below, the DOL's motion should be granted.
FACTS
The following facts relate to Goodman's FOIA request. On May 4, 2000, J. Davidson and Sons Construction, Inc. ("J. Davidson") was issued three citations and orders relating to an on-the-job injury sustained by an employee. Declaration of Miriam McD. Miller ("Miller Dec"), ¶ 2; Second Declaration of Miriam McD. Miller ("Miller 2nd Dec"), ¶ 4. On May 23, 2000, the Western District Manager ("District Manager") for the Mine Safety and Health Administration ("MSHA") authorized a special investigation, conducted by Special Investigator David Brabank ("Brabank"), into the facts surrounding the issuance of these citations and orders. Miller 2nd Dec, ¶ 4.
On November 17, 2000, Brabank submitted a written report to the District Manager recommending that MSHA assess individual civil penalties against J. Davidson's owner, Roy Davidson ("Davidson"), for two violations and against its foreman, Clifford Wigle ("Wigle"), for three violations, and the case file was forwarded for review to the Administrator for Metal and Nonmetal Mine Safety and Health in Arlington, Virginia. Id. ¶ 5. On December 8, 2000, a summary case analysis and recommendation for civil penalties was submitted to the Chief of Technical Compliance and Investigations ("Chief"). Id. ¶ 6. On December 20, 2000, the Chief forwarded the case file to the Office of the Solicitor and requested a legal review and summary analysis. Id.
On January 10, 2001, the Office of the Solicitor provided the Chief with a legal analysis and found sufficient evidence to proceed against Davidson and Wigle on two of the violations. Id. ¶ 7. With respect to the third violation against Wigle, the memorandum states "we do not agree that there is sufficient evidence to establish that Wigle knowingly authorized, ordered, or carried out this violation." Id.
On January 23, 2001, Goodman, the attorney for Davidson and Wigle, filed a FOIA request seeking copies of MSHA's records relating to its investigation and basis for the violations against his clients. Complaint, Ex A; Miller Dec, ¶ 2. On February 28, 2001, MSHA released portions of the investigative files to Goodman, but claimed exemptions under 5 U.S.C. § 552(b)(5), (7)(A), (C), (D) and withheld approximately 104 pages. Complaint, Ex C. On April 26, 2001, Davidson and Wigle were informed of MSHA's intent to seek individual civil penalties against them on two violations. Miller 2nd Dec, ¶ 8.
On May 15, 2001, Goodman filed this FOIA Complaint. On May 29, 2001, Paul Belanger, MSHA's Supervisory Special Investigator at the Western District office, conferred with Wigle, Davidson, and Goodman, discussed the potential civil penalty assessments, and requested that the parties produce information to persuade MSHA not to proceed. Id. ¶ 8. That same day, MSHA's Western District Manager reported the results of the conference to the Chief and recommended civil penalties against both individuals and the Chief then produced that information and recommendation to the Director of the Office of Assessments on June 6, 2001. Id. ¶ 9.
On June 21, 2001, MSHA issued civil penalties totaling $2,000 against Davidson and Wigle for "an unwarrantable failure to comply with a mandatory standard." Id. ¶ 10. Goodman's clients challenged these penalties by filing petitions with the Federal Mine Safety and Health Review Commission. Id.
In a prehearing order issued on September 27, 2001, Administrative Law Judge Richard W. Manning ("ALJ") instructed the parties to conduct settlement negotiations. Affidavit of George W. Goodman in Support of Reply ("Goodman 2nd Aff"), Ex A. If negotiations failed, the parties were to submit to the ALJ by November 5, 2001, a "letter briefly describ[ing] the areas of agreement and disagreement" and the ALJ would schedule a hearing and "require the parties to exchange witness and exhibit lists."Id.
On October 15, 2001, Goodman served MSHA with a request for production of documents and included requests for information relating to the 104 withheld pages. Affidavit of George W. Goodman, ¶ 4. MSHA responded, but provided no new information concerning the withheld documents. Goodman 2nd Aff, ¶ 8.
DISCUSSION
I. Legal Standard
Congress enacted FOIA to "facilitate public access to Government documents." United States Dep't of State v. Ray, 502 U.S. 164, 173 (1991). Accordingly, FOIA "`mandates a policy of broad disclosure of government documents.'" Maricopa Audubon Soc'y v. United States Forest Serv., 108 F.3d 1082, 1085 (9th Cir 1997), quoting Church of Scientology v. Department of the Army, 611 F.2d 738, 741 (9th Cir 1980). The district court has jurisdiction under FOIA "to enjoin [an] agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant." 5 U.S.C. § 552(a)(4)(B).
Summary judgment in a FOIA case is appropriate only if the government proves that "the material at issue falls within one of the nine statutory exemptions found in § 522(b)" which must be "narrowly construed." Maricopa Audubon Soc'y, 108 F.3d at 1085. When claiming an exemption, the government "need not specify its objections [to disclosure] in such detail as to compromise the secrecy of the information" and can meets its burden by submitting affidavits consisting of "reasonably detailed descriptions of the documents and allege facts sufficient to establish an exemption." Lewis v. Internal Revenue Serv., 823 F.2d 375, 378 (9th Cir 1987), quoting Church of Scientology, 611 F.2d at 742; see also Minier v. Central Intelligence Agency, 88 F.3d 796, 803-04 (9th Cir 1996). However, boilerplate affidavits do not sustain the agency's burden. Wiener v. Federal Bureau of Investigation, 943 F.2d 972, 978-79 (9th Cir 1991).
II. Analysis
The DOL rests its argument solely on exemption 5 U.S.C. § 552(b)(7)(A), as amended, ("Exemption 7(A)"), which permits an agency to withhold "[r]ecords or information compiled for law enforcement purposes, but only to the extent that the 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). "The principal purpose of Exemption 7(A) is to prevent disclosures which might prematurely reveal the government's cases in court, its evidence and strategies, or the nature, scope, direction, and focus of its investigations, and thereby enable suspects to establish defenses or fraudulent alibis or to destroy or alter evidence." Maydak v. United States Dep't of Justice, 218 F.3d 760, 762 (DDC 2000), citing National Labor Relations Bd. v. Robbins Tire Rubber Co., 437 U.S. 214, 227, 241-42 (1978) ("Robbins Tire"). Exemption 7(A) is also meant to prevent litigants from identifying and intimidating or harassing witnesses. Robbins Tire, 437 U.S. at 239-40.
The DOL requests to reserve the right to address the other exemptions should its Exemption 7(A) argument fail.
Under Exemption 7(A), the DOL must establish that:(1) it is a law enforcement agency; (2) the withheld records were compiled for law enforcement purposes; and (3) disclosure of the records could reasonably be expected to interfere with enforcement proceedings. 5 U.S.C. § 552(b)(7)(A). The court need only make generic determinations that "with respect to particular kinds of enforcement proceedings, disclosure of particular kinds of investigatory records withheld while a case is pending would generally interfere with enforcement proceedings." Robbins Tire, 437 U.S. at 236. The determination as to whether a release of records could reasonably be expected to interfere with enforcement proceedings is to be made as of the time the agency decided to withhold the documents. See Bonner v. United States Dep't of State, 928 F.2d 1148, 1152 (D.C. Cir 1991).
Goodman disputes only the third element and challenges the sufficiency of the DOL's generic showing that the withheld investigatory records interfere with prospective enforcement proceedings. He also argues that rules of discovery, pursuant to 29 C.F.R. § 2700. 56(b), require the DOL to produce the withheld records or, alternatively, the DOL has waived its exemption privilege.
A. Interference with Enforcement Proceedings
The issue is whether as of February 28, 2001, the release of records requested by Goodman could reasonably be expected to interfere with MSHA's enforcement proceedings. The declarations by the DOL's Co-Counsel for Administrative Law, Miriam McD. Miller ("Miller"), are clear that the withheld records at issue include intra-agency investigative memoranda and witness statements, including:
(1) recommended disposition of the case; (2) evidence gathered in the . . . investigation; (3) prosecutorial theory of the case. ; (4) attorney's analysis of the case; (5) summary case analysis containing description of the accident, various proofs, names of witnesses and their expected testimony and recommendation for disposition of the matter; (6) special investigation report containing the agency's theory of the case reflecting among other things the establishment's normal practices and its knowledge of the hazard; (7) possible Knowing Wilful Violation Forms containing the agency description of the accident, the gravity of the violation and the degree of negligence imputed to the establishment[; and (8)] . . . information furnished by establishment employees about working conditions . . . and how those conditions may have contributed to the accident."
Miller Dec, ¶ 8.
Miller also avers that "every document in the file has been reviewed" and the withheld records "represent a virtual blueprint of the agency's thinking and enforcement strategy" and "could be particularly valuable to a target in the event of settlement negotiations." Id. ¶¶ 9, 10, 12. Lastly, Miller states that a premature release of the redacted records "would substantially interfere with the investigation by precluding the agency from presenting its strongest case . . . [and] could create a great potential for witness intimidation [including undue influence or retaliation], coercion, and could deter cooperation in the future." Id. ¶ 11.
The impetus behind amending Exemption 7(A) was that "Congress recognized that law enforcement agencies had legitimate needs to keep certain records confidential, lest the agencies be hindered in their investigations or placed at a disadvantage when it came time to present their cases." Robbins Tire, 437 U.S. at 224. This case is past the investigation stage and has entered the penalty phase where it is pending before the ALJ. As evidenced by the discovery request and prehearing order, Goodman's clients are in the midst of the administrative enforcement proceeding. The withheld documents relate to this ongoing civil penalty proceeding which, if disclosed, could reasonably be expected to expose and impede the DOL's enforcement strategies.
Miller's declarations specify and detail the circumstances of the J. D. Davidson investigation and while the declarations do not "tailor the explanation[s] to the specific document[s] withheld," Wiener, 943 F.2d at 979, they are sufficient to show that the information requested" logically falls within" Exemption 7(A) and "that disclosure would actually interfere with a particular enforcement proceeding." Lewis, 823 F.2d at 380.
The reasons provided for withholding this information satisfy the DOL's burden of proof. Moreover, the declarations are sufficiently detailed such that neither a Vaughn index nor an in camera inspection of the withheld records is warranted.
A Vaughn index is a specific cross-referenced list of all documents requested by a FOIA plaintiff, describing the document sufficiently to identify it, but not so much as to reveal the information's secret nature. See Vaughn v. Rosen, 484 F.2d 820, 826-27 (D.C. Cir 1973).
Pursuant to 5 U.S.C. § 552(a)(4)(B), an in camera examination is "designed to be invoked when the issue before the District Court could not be otherwise resolved." See Favish v. Office of Indep. Counsel, 217 F.3d 1168, 1176 (9th Cir 2000), citing Robbins Tire, 437 U.S. at 224.
B. Discovery Matters
Next, Goodman argues that summary judgment is inappropriate because the DOL has failed to follow its own discovery rules or, in the alternative, waived its entitlement to assert any exemption from disclosure.
1. Rules of Discovery
Goodman correctly asserts that "[p]arties may obtain discovery of any relevant non-privileged matter that is admissible evidence or appears likely to lead to the discovery of admissible evidence." 29 C.F.R. § 2700. 56(b). However, "FOIA was not intended to supplement or displace rules of discovery." John Doe Agency v. John Doe Corp., 493 U.S. 146, 153 (1989); see also Robbins Tire, 437 at 242 (holding "we cannot see how FOIA's purposes would be defeated by deferring disclosure until after the Government has `presented its case in court'").
While Goodman's need for discovery is legitimate, the scope of discovery in an administrative hearing is not the issue before this court. Instead, the issue before this court is merely whether the DOL's withheld documents fall within the purview of FOIA's Exemption 7(A). Summary judgment is appropriate on Goodman's FOIA Complaint because the government has proven that "the material at issue falls within one of the nine statutory exemptions found in § 522(b)." Maricopa Audubon Soc'y, 108 F.3d at 1085.
Additionally, it is difficult to see the necessity of obtaining the withheld information prior to settlement negotiations, as urged by Goodman. At a settlement conference, Goodman can request that the DOL reveal in confidence whatever factual information he needs to assist the parties' good faith negotiations. Should the DOL resist and negotiations fail, the discovery issues that Goodman raises are appropriately reserved for the ALJ.
2. Waiver
Lastly, Goodman argues that the DOL's reference to portions of a memorandum in Miller's 2nd Declaration is analogous to a waiver of attorney client privilege. Generally, a "[v]oluntary disclosure of a privileged attorney communication constitutes waiver." Clady v. County of Los Angeles, 770 F.2d 1421, 1433 (9th Cir 1985), cert. denied, 475 U.S. 1109 (1986). Goodman argues that since Miller voluntarily disclosed portions of the withheld memorandum, the DOL has waived its FOIA exemptions. His argument fails.
"[I]nformation initially contained in a record made for law enforcement purposes continues to meet the threshold requirements of Exemption 7[A] where that recorded information is reproduced or summarized in a new document prepared for a no[n]-law-enforcement purpose." Federal Bureau of Investigation v. Abramson, 456 U.S. 615, 631-32 (1982). Moreover, in order to satisfy its burden, the government must detail some facts without "compromis[ing] the secrecy of the information." Lewis, 823 F.2d at 378. A waiver analysis is inapplicable here because Miller was merely detailing a description of memoranda contained within a file that was initially created for law enforcement purposes in an effort to permit the court to assess its Exemption 7(A) status.
III. Conclusion
When analyzing Exemption 7(A), the court weighs two competing interests:the individual's right to understand the charges and the government's right to keep information in confidence to the extent necessary for enforcement. See John Doe Agency, 493 U.S. at 152. While the DOL has made the requisite showing to meet Exemption 7(A) with respect to Goodman's FOIA request, Goodman may still be entitled to obtain all or some of these same documents through discovery requests in the ongoing enforcement proceeding.
RECOMMENDATION
For the reasons stated above, the DOL's Motion for Summary Judgment (docket #9) should be granted.
SCHEDULING ORDER
Objections to the Findings and Recommendation, if any, are due January 4, 2002. If no objections are filed, then the Findings and Recommendation will be referred to a district court judge and go under advisement on that date.
If objections are filed, the response is due no later than January 23, 2002. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will be referred to a district court judge and go under advisement.