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Case TitleSMITH et al v. UNITED STATES DEPARTMENT OF LABOR et al
DistrictDistrict of Columbia
CityWashington, DC
Case Number1:2010cv01253
Date Filed2010-07-23
Date Closed2011-07-27
JudgeJudge James E. Boasberg
PlaintiffELLEN ELISABETH SMITH Sole Proprietor of Legal Publication Services.
PlaintiffLEGAL PUBLICATION SERVICES
doing business as MINE SAFETY AND HEALTH NEWS
DefendantUNITED STATES DEPARTMENT OF LABOR
DefendantOFFICE OF INSPECTOR GENERAL Component of United States Department of Labor
DefendantMINE SAFETY & HEALTH ADMINISTRATION Component of the United States Department of Labor
Documents
Docket
Complaint
Complaint attachment 1
Complaint attachment 2
Complaint attachment 3
Complaint attachment 4
Complaint attachment 5
Complaint attachment 6
Complaint attachment 7
Complaint attachment 8
Complaint attachment 9
Complaint attachment 10
Complaint attachment 11
Complaint attachment 12
Opinion/Order [26]
FOIA Project Annotation: After conducting an in camera review, Judge James Boasberg has ruled that the Department of Labor properly withheld 77 lines in a 234-page report of the Mine Safety and Health Administration's investigation of a mining accident that occurred in Martin County, Kentucky in 2000 under Exemption 5 (deliberative process privilege), Exemption 6 (invasion of privacy) and Exemption 7(C) (invasion of privacy concerning law enforcement records). The report, conducted by the Department's Inspector General, was requested by Ellen Smith, publisher of the newsletter Mine Safety and Health News. Boasberg pointed out that the redactions under Exemption 5 were both predecisional and deliberative. He noted that "since the redacted portion of the report contains information about a citation that was considered but not issued, the subject matter is necessarily antecedent to the decision not to issue that citation. Plaintiff's contentions to the contrary‚Ä"stating that the 'OIG Report was published on December 9, 2002, well after the citations were issued,'‚Ä"hold no water because the question is whether the deliberation, not the publication of the report, preceded the citation. It obviously did." Turning to the privacy claims, Boasberg observed that "all of the redactions here are either personal or job-performance related. . .Performance appraisals are precisely the sort of information found in protected personnel files. The withheld information, therefore, logically meets the 'similar files' threshold requirement for Exemption 6." He found that "the information redacted directly relates to performance appraisals and contains some negative evaluations. This is identical to what [previously decided] cases kept private." As to the public interest, he indicated that "plaintiff argues that the public interest is great because it involves the propriety of a government investigation into a mining disaster. Yet she fails to satisfy her burden for two central reasons. First, Plaintiff's 'evidence' consists only of unsubstantiated allegations of a government cover-up. Her supporting 'statements' in the OIG report are, in actuality, only 'allegations' and 'suggestions' by others that were determined to be unfounded. Second, the Court's in camera review has demonstrated that the redacted material is entirely unrelated to the allegations Plaintiff makes. The public interest, therefore, does not outweigh the individuals' privacy interests."
Issues: Exemption 5 - Privileges - Deliberative process privilege - Deliberative, Exemption 5 - Privileges - Deliberative process privilege - Predecisional, Exemption 6 - Invasion of privacy, Exemption 7(C) - Invasion of privacy concerning law enforcement records
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2010-07-231COMPLAINT against MINE SAFETY & HEALTH ADMINISTRATION, OFFICE OF INSPECTOR GENERAL, UNITED STATES DEPARTMENT OF LABOR ( Filing fee $ 350, receipt number 4616031448) filed by ELLEN ELISABETH SMITH, LEGAL PUBLICATION SERVICES. (Attachments: # 1 Civil Cover Sheet)(dr) (Main Document 1 replaced on 7/26/2010) (dr). (Additional attachment(s) added on 7/26/2010: # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K) (dr). (Entered: 07/26/2010)
2010-07-23SUMMONS (5) Issued as to MINE SAFETY & HEALTH ADMINISTRATION, OFFICE OF INSPECTOR GENERAL, UNITED STATES DEPARTMENT OF LABOR, U.S. Attorney and U.S. Attorney General (dr) (Entered: 07/26/2010)
2010-08-102NOTICE of Appearance by Drew E. Shenkman on behalf of LEGAL PUBLICATION SERVICES, ELLEN ELISABETH SMITH (Shenkman, Drew) (Entered: 08/10/2010)
2010-08-123NOTICE of Appearance by Daria J. Zane on behalf of MINE SAFETY & HEALTH ADMINISTRATION, OFFICE OF INSPECTOR GENERAL, UNITED STATES DEPARTMENT OF LABOR (Zane, Daria) (Entered: 08/12/2010)
2010-08-124Joint MOTION for Extension of Time to Respond to Complaint and to Set Briefing Schedule by LEGAL PUBLICATION SERVICES, MINE SAFETY & HEALTH ADMINISTRATION, OFFICE OF INSPECTOR GENERAL, ELLEN ELISABETH SMITH, UNITED STATES DEPARTMENT OF LABOR (Attachments: # 1 Text of Proposed Order)(Zane, Daria) (Entered: 08/12/2010)
2010-08-125RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed in a FOIA Case as to the U.S. Attorney for DC; MINE SAFETY & HEALTH ADMINISTRATION served on 7/27/2010, answer due 8/26/2010 for U.S. Attorney. (Shenkman, Drew) (Entered: 08/12/2010)
2010-08-126RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on Attorney General. Date of Service Upon Attorney General 07/28/2010. (Shenkman, Drew) (Entered: 08/12/2010)
2010-08-127RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. MINE SAFETY & HEALTH ADMINISTRATION served on 7/28/2010; OFFICE OF INSPECTOR GENERAL served on 7/28/2010; UNITED STATES DEPARTMENT OF LABOR served on 7/28/2010 (Shenkman, Drew) (Entered: 08/12/2010)
2010-08-13MINUTE ORDER granting 4 Joint Motion to Enlarge Time to Respond to Complaint and for Briefing Schedule. Defendants shall file their dispositive motion on or before September 28, 2010; plaintiff shall file her opposition on or before October 29, 2010; and defendants shall file their reply on or before November 18, 2010. Signed by Judge Henry H. Kennedy, Jr. on August 13, 2010. (NP) (Entered: 08/13/2010)
2010-09-288Consent MOTION for Extension of Time to Submit Dispositive Motion , Consent MOTION to Amend/Correct Order on Motion for Extension of Time to, Set/Reset Deadlines,, by UNITED STATES DEPARTMENT OF LABOR (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order)(Zane, Daria) (Entered: 09/28/2010)
2010-09-29MINUTE ORDER granting 8 Defendants' Consent Motion to Enlarge Time to SubmitDispositive Motion and Motion for Amendment to Briefing Schedule. Accordingly, defendants' dispositive motion is due on October 15, 2010; plaintiff's opposition is due on November 15, 2010; and defendants' reply is due on December 9, 2010. Signed by Judge Henry H. Kennedy, Jr. on September 29, 2010. (NP) (Entered: 09/29/2010)
2010-10-159Consent MOTION for Extension of Time to Submit Dispositive Motion or Status Report by UNITED STATES DEPARTMENT OF LABOR (Attachments: # 1 Text of Proposed Order)(Zane, Daria) (Entered: 10/15/2010)
2010-10-18MINUTE ORDER granting 9 Defendants' Consent Motion to Enlarge Time to SubmitDispositive Motion and Motion for Amendment to Briefing Schedule. Accordingly, defendants shall file their dispositive motion or a status report on or before November 1, 2010. Signed by Judge Henry H. Kennedy, Jr. on October 18, 2010. (NP) (Entered: 10/18/2010)
2010-11-0110MOTION to Dismiss and , MOTION for Summary Judgment by UNITED STATES DEPARTMENT OF LABOR (Attachments: # 1 Memorandum in Support of Motion to DIsmiss and Motion for Summary Judgment, # 2 Statement of Facts in Support of Motion for Summary Judgment, # 3 Declaration of Kimberly Pacheco and Exhibits A-D, # 4 Declaration of Wm Thompson and Exhibits A-D, # 5 Declaration of Lanesia Washington and Exhibits A-C, # 6 Exhibit 1, EMAIL, # 7 Exhibit 2, Vaughn index, # 8 Text of Proposed Order)(Zane, Daria) (Entered: 11/01/2010)
2010-11-2411Consent MOTION for Extension of Time to File Response/Reply re 10 MOTION to Dismiss and, MOTION for Summary Judgment , by LEGAL PUBLICATION SERVICES, ELLEN ELISABETH SMITH (Attachments: # 1 Text of Proposed Order)(Shenkman, Drew) Modified on 11/29/2010 to add relationship and create link (dr). (Entered: 11/24/2010)
2010-12-03MINUTE ORDER granting 11 Plaintiff's Consent Motion to Enlarge Time for Plaintiff to Respond to Defendants' Motion for Summary Judgment and to Dismiss. Accordingly, plaintiff's response to defendants' dispositive motion is due on December 10, 2010; and defendants' reply is due on January 18, 2011. Signed by Judge Henry H. Kennedy, Jr. on December 3, 2010. (NP) (Entered: 12/03/2010)
2010-12-1012Cross MOTION for Summary Judgment or Alternatively for In Camera Review of the Last Seven FOIA Documents at Issue by LEGAL PUBLICATION SERVICES, ELLEN ELISABETH SMITH (Attachments: # 1 Exhibit A to Plaintiff's Memorandum of Law, # 2 Declaration of Ellen Elisabeth Smith, # 3 Declaration of Dr. Celeste Monforton, # 4 Declaration)(Shenkman, Drew). Added MOTION for In Camera Review on 12/13/2010 (znmw, ). (Entered: 12/10/2010)
2010-12-1013Memorandum in opposition to re 10 MOTION to Dismiss and MOTION for Summary Judgment filed by LEGAL PUBLICATION SERVICES, ELLEN ELISABETH SMITH. (Attachments: # 1 Exhibit A to Plaintiff's Memorandum of Law, # 2 Declaration of Ellen Elisabeth Smith, # 3 Declaration of Dr. Celeste Monforton, # 4 Text of Proposed Order)(Shenkman, Drew) (Entered: 12/10/2010)
2010-12-1014NOTICE OF SEPARATE FILING OF CD EXHIBIT by LEGAL PUBLICATION SERVICES, ELLEN ELISABETH SMITH re 13 Memorandum in Opposition, 12 Cross MOTION for Summary Judgment or Alternatively for In Camera Review of the Last Seven FOIA Documents at Issue (Shenkman, Drew) (Entered: 12/10/2010)
2011-01-1815Consent MOTION for Extension of Time to File Reply to Opposition to Motion for Summary Judgment and Opposition to Cross Motion for Summary Judgment by UNITED STATES DEPARTMENT OF LABOR (Attachments: # 1 Text of Proposed Order)(Zane, Daria) (Entered: 01/18/2011)
2011-01-19MINUTE ORDER granting 15 Consent Motion to Enlarge Time to Submit itsOpposition to the Plaintiff's Motion for Summary Judgment and Reply to the Plaintiff's Opposition to Motion for Summary Judgment. Accordingly, defendants' reply in support of its summary judgment motion and opposition to plaintiffs' cross-motion are due on January 21, 2011. Signed by Judge Henry H. Kennedy, Jr. on January 19, 2011. (NP) (Entered: 01/19/2011)
2011-01-2116Memorandum in opposition to re 12 Cross MOTION for Summary Judgment or Alternatively for In Camera Review of the Last Seven FOIA Documents at Issue filed by UNITED STATES DEPARTMENT OF LABOR, OFFICE OF INSPECTOR GENERAL, MINE SAFETY & HEALTH ADMINISTRATION. (Attachments: # 1 Exhibit 1, # 2 Statement of Facts Response to Plaintiff's Statement of Facts, # 3 Text of Proposed Order)(Zane, Daria) Modified to add filers on 1/24/2011 (znmw, ). (Entered: 01/21/2011)
2011-01-2117REPLY to opposition to motion re 10 MOTION to Dismiss and MOTION for Summary Judgment filed by MINE SAFETY & HEALTH ADMINISTRATION, OFFICE OF INSPECTOR GENERAL, UNITED STATES DEPARTMENT OF LABOR. (See Docket Entry 16 to view document. Counsel is reminded to file oppositions and replies as separate docket entries in future). (znmw, ) (Entered: 01/24/2011)
2011-01-2418NOTICE of Filing Exhibit E to Pacheco Declaration, Exhibit 3 [ECF No. 10-3] by UNITED STATES DEPARTMENT OF LABOR, MINE SAFETY & HEALTH ADMNINISTRATION, OFFICE OF INSPECTOR GENERAL re 10 MOTION to Dismiss and MOTION for Summary Judgment (Attachments: # 1 Exhibit E to Pacheco Declaration)(Zane, Daria) Modified to add filers on 1/25/2011 (znmw, ). (Entered: 01/24/2011)
2011-01-25NOTICE OF ERROR re 18 Notice (Other); emailed to daria.zane@usdoj.gov, cc'd 5 associated attorneys -- The PDF file you docketed contained errors: 1. Modified to add filers; Counsel is reminded to select all represented parties in future. (znmw, ) (Entered: 01/25/2011)
2011-01-2819REPLY to opposition to motion re 12 Cross MOTION for Summary Judgment or Alternatively for In Camera Review of the Last Seven FOIA Documents at Issue filed by LEGAL PUBLICATION SERVICES, ELLEN ELISABETH SMITH. (Shenkman, Drew) (Entered: 01/28/2011)
2011-01-2820ENTERED IN ERROR..... MOTION (alternatively) for In Camera Review by ELLEN ELISABETH SMITH. (See Docket Entry 19 to view document. Counsel is advised to file the reply and motion as separate docket entries in future). (znmw, ) Modified on 1/31/2011 (znmw, ). (Entered: 01/31/2011)
2011-01-31NOTICE OF CORRECTED DOCKET ENTRY: Docket Entry 20 MOTION for In Camera Review was entered in error and will not be refiled. (znmw, ) (Entered: 01/31/2011)
2011-02-0421NOTICE of Filing by UNITED STATES DEPARTMENT OF LABOR, OFFICE OF INSPECTOR GENERAL, MINE SAFETY & HEALTH ADMINISTRATION re 10 MOTION to Dismiss and MOTION for Summary Judgment (Attachments: # 1 Exhibit)(Zane, Daria) Modified filers on 2/7/2011 (znmw, ). (Attachment 1 replaced to correct sideways pages on 2/7/2011) (znmw, ). (Entered: 02/04/2011)
2011-03-1222NOTICE OF WITHDRAWAL OF APPEARANCE as to MINE SAFETY & HEALTH ADMINISTRATION, OFFICE OF INSPECTOR GENERAL. Attorney Daria J. Zane terminated. (Zane, Daria) (Entered: 03/12/2011)
2011-03-1423NOTICE of Appearance by Laurie J. Weinstein on behalf of MINE SAFETY & HEALTH ADMINISTRATION, OFFICE OF INSPECTOR GENERAL, UNITED STATES DEPARTMENT OF LABOR (Weinstein, Laurie) (Entered: 03/14/2011)
2011-03-29Case Randomly Reassigned to U.S. District Judge James E. Boasberg. Judge Henry H. Kennedy no longer assigned to the case. (jeb, ) (Entered: 03/29/2011)
2011-07-07MINUTE ORDER: Having reviewed the parties' Cross-Motions for Summary Judgment, and given the limited amount of material in dispute, the Court ORDERS that the Defendants produce the seven remaining disputed documents to the Court for in camera review on or before July 14, 2011. Signed by Judge James E. Boasberg on 7/7/2011. (lcjeb3) (Entered: 07/07/2011)
2011-07-07Set/Reset Deadlines: Defendants shall produce the seven remaining disputed documents to the Court for in camera review on or before 7/14/2011. (ad) (Entered: 07/07/2011)
2011-07-1324NOTICE OF IN CAMERA FILING by MINE SAFETY & HEALTH ADMINISTRATION, OFFICE OF INSPECTOR GENERAL, UNITED STATES DEPARTMENT OF LABOR (Attachments: # 1 Vaughn Index)(Weinstein, Laurie) (Entered: 07/13/2011)
2011-07-2625ORDER granting 10 Defendants' Motion for Summary Judgment; denying 12 Plaintiff's Motion for Summary Judgment; Judgment is ENTERED in favor of Defendants. Signed by Judge James E. Boasberg on 7/26/2011. (lcjeb3) (Entered: 07/26/2011)
2011-07-2626MEMORANDUM AND OPINION to the Order granting Defendants' Motion for Summary Judgment; denying Plaintiff's Motion for Summary Judgment. Signed by Judge James E. Boasberg on 7/26/2011. (lcjeb3) (Entered: 07/26/2011)
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