Case Detail

FOIA Project Annotation: A federal court in Virginia has ruled that the Labor Department improperly invoked Exemption 5 (deliberative process privilege) and Exemption 7(E) (investigative methods and techniques) to withhold information concerning the process for approving permanent labor certifications allowing foreign nationals to work in the United States. The Office of Foreign Labor Certification responded to David Gluckman's request by withholding 272 documents in full or with redactions under Exemptions 5 and 7(E). The court explained that Exemption 7(E) had a "relatively low bar for the agency to justify withholding." And that "the Government usually [meets the threshold for Exemption 7 coverage that records must be compiled for law enforcement purposes] by showing that the records at issue are involved with the enforcement of a statute or regulation within its authority and that the records were compiled for adjudicative or enforcement purposes." That being the case, however, the court then noted that "Defendant cannot show that OFLC has an enforcement mandate. Instead, OFLC refers any possible fraud or willful misrepresentation in connection with the permanent labor certification program to the DOJ, DHS, or other government entity, as appropriate, for investigation, and sends a copy of the referral to the Department of Labor's Office of Inspector General." The court added that 'the 272 relevant withheld documents are better characterized as compiled for audit purposesâ€"the documents list audit criteria, itemize the procedures OFLC staff should take when processing applications with specific audit criteria present, and contain templates of audit notification letters. To construe these documents as 'compiled for law enforcement purposes' would improperly broaden the meaning of the term." Having found Exemption 7(E) inapplicable, the court found that Exemption 5 did not cover the documents either. The court pointed out that "OFLC has not met its burden to show the withheld documents were not official policies or that they were subject to continuing debate. . .OFLC consistently characterizes these documents as policy, criteria, or templates used by lower level employees in order to assess PERM applications." The court rejected Gluckman's argument that the agency had not conducted an adequate search and had excluded potentially responsive records. Instead, the court found the agency had properly interpreted the scope of Gluckman's request and that categories of records not searched by the agency did indeed fall outside the scope of the request.
Issues: Exemption 5 - Privileges - Deliberative process privilege - Deliberative, Exemption 7(E) - Investigative methods or techniques

Date Filed	Doc #	Docket Text
2013-03-18	1	COMPLAINT against United States Department of Labor ( Filing fee $ 350, receipt number 34683020410.), filed by David Elliott Gluckman. (Attachments: # 1 Civil Cover Sheet, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Receipt)(kyou, ) (Entered: 03/18/2013)
2013-03-18	2	Summons Issued as to United States Department of Labor, U.S. Attorney and U.S. Attorney General(placed in pick-up box for counsel) (kyou, ) (Entered: 03/18/2013)
2013-03-28	3	Certificate Reporting Service by United States Department of Labor. United States Department of Labor served on 3/18/2013, answer due 5/17/2013. (NOTE: DEADLINE FOR ANSWER RESET TO 4/17/2013 REFLECTING 30-DAY RESPONSE PERIOD FOR A FOIA CASE.) (cmcc, ) (Entered: 03/29/2013)
2013-04-01	4	SUMMONS Returned Executed: Service by certified mailed received by United States Attorney for the EDVA 3/18/13 (lsal) (Entered: 04/01/2013)
2013-04-17	5	ANSWER to 1 Complaint, by United States Department of Labor. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Wu, Elizabeth) (Entered: 04/17/2013)
2013-04-24	6	NOTICE OF PRETRIAL CONFERENCE(khan, ) (Entered: 04/24/2013)
2013-04-24		Set/Reset Hearings: Initial Pretrial Conference set for 5/23/2013 at 09:15 AM in Chambers before District Judge James R. Spencer. (khan, ) (Entered: 04/24/2013)
2013-05-20	7	NOTICE by David Elliott Gluckman of Unwillingness to Proceed Before the U.S. Magistrate Judge (Moore, Jonathan) (Entered: 05/20/2013)
2013-05-23		Minute Entry for proceedings held before District Judge James R. Spencer:Initial Pretrial Conference held on 5/23/2013. (khan, ) (Entered: 05/23/2013)
2013-05-23	8	VACATED PURSUANT TO ORDER ENTERED 7/19/13 (dkt #12) PRETRIAL ORDER. Signed by District Judge James R. Spencer on 5/23/13. (khan, ) Modified on 2/10/2014 (khan, ). (Entered: 05/23/2013)
2013-05-23	9	NOTICE to Counsel that the parties have chosen to proceed in this case without the initial disclosures specified in Rule 26(f) (khan, ) (Entered: 05/23/2013)
2013-06-05		Set/Reset Hearings: Bench Trial set for 9/5/2013 at 09:30 AM in Richmond Courtroom 7000 before District Judge James R. Spencer. (khan, ) (Entered: 06/05/2013)
2013-06-21	10	NOTICE by David Elliott Gluckman of Compliance with Scheduling and Non-Jury Pretrial Order (Moore, Jonathan) (Entered: 06/21/2013)
2013-07-17	11	Joint MOTION to Vacate 8 Pretrial Order and Enter Briefing Schedule by United States Department of Labor. (Attachments: # 1 Proposed Order)(Wu, Elizabeth) (Entered: 07/17/2013)
2013-07-19	12	ORDER that Defendant's dispositive motion shall be filed on or before August 2. 2013; Plaintiffs response to Defendant's motion and any cross-motion shall be filed on or before August 14, 2013; Defendant's reply and response to any cross-motion filed by Plaintiff shall be filed on or before August 26, 2013; and Plaintiffs reply to Defendant's response to any cross-motion shall be filed on or before August 29, 2013; It is further ORDERED that the hearing on the parties' dispositive motions shall commence at 9:30 a.m. on September 5, 2013; The Court hereby VACATES the Pretrial Order entered on May 23, 2013. Signed by District Judge James R. Spencer on 7/18/13. (kyou, ) (Entered: 07/19/2013)
2013-08-02	13	MOTION for Summary Judgment by United States Department of Labor. (Wu, Elizabeth) (Entered: 08/02/2013)
2013-08-02	14	Memorandum in Support re 13 MOTION for Summary Judgment filed by United States Department of Labor. (Attachments: # 1 Declaration of W.Carlson, # 2 Exhibit 1 to Declaration, # 3 Exhibit 2 to Declaration, # 4 Exhibit 3 to Declaration, # 5 Exhibit 4 to Declaration, # 6 Exhibit 5 to Declaration, # 7 Exhibit 6 to Declaration, # 8 Exhibit 7 to Declaration, # 9 Exhibit 8 to Declaration, # 10 Exhibit 9 to Declaration, # 11 Exhibit 10 to Declaration, # 12 Exhibit 11 to Declaration, # 13 Exhibit 12 to Declaration, # 14 Exhibit 13 to Declaration, # 15 Exhibit 14 to Declaration (Vaughn Index))(Wu, Elizabeth) (Entered: 08/02/2013)
2013-08-12		Set/Reset Deadlines as to 13 MOTION for Summary Judgment . Motion Hearing set for 9/5/2013 at 09:30 AM in Richmond Courtroom 7000 before District Judge James R. Spencer. (khan, ) (Entered: 08/12/2013)
2013-08-14	15	MOTION for Partial Summary Judgment by David Elliott Gluckman. (Moore, Jonathan) (Entered: 08/14/2013)
2013-08-14	16	Memorandum in Support re 15 MOTION for Partial Summary Judgment (Partial) filed by David Elliott Gluckman. (Attachments: # 1 Exhibit 1 - Declaration of J. Zimskind, # 2 Exhibit 2 - Sample Audit Letters (att to Zimskind Decl), # 3 Exhibit 3 - ETA Posting (att to Zimskind Decl), # 4 Exhibit 4 - Job Posting (att to Zimskind Decl), # 5 Exhibit 5 - Declaration of D. Dyer, # 6 Exhibit 6 - Sample Audit Letter (att to Dyer Decl), # 7 Exhibit 7 - Prior Declaration of W. Carlson, # 8 Exhibit 8 - Excerpt from DOL Ann Rep, # 9 Exhibit 9 - Document #17, # 10 Exhibit 10 - Unpublished Cases Cited in Pl's Mem)(Moore, Jonathan) (Entered: 08/14/2013)
2013-08-14	17	Memorandum in Opposition re 13 MOTION for Partial Summary Judgment filed by David Elliott Gluckman. (Attachments: # 1 Exhibit 1 - Declaration of D. Gluckman, # 2 Exhibit 2 - E-mail (att to Gluckman Decl), # 3 Exhibit 3 - Document #26, # 4 Exhibit 4 - Document #44, # 5 Exhibit 5 - Document #80, # 6 Exhibit 6 - Document #359, # 7 Exhibit 7 - July 9, 2013 E-mail, # 8 Exhibit 8 - Document #385, # 9 Exhibit 9 - Unpublished Cases Cited in Pl's Opp Mem)(Moore, Jonathan) (Entered: 08/14/2013)
2013-08-15		Set/Reset Hearings in re 13 Motion for Summary Judgment and 15 Motion for Partial Summary Judgment: Motion Hearing reset for 10/1/2013 at 9:15 AM in Richmond Courtroom 7000 before District Judge James R. Spencer (rpiz) (Entered: 08/15/2013)
2013-08-26	18	REPLY to Response to Motion re 13 MOTION for Summary Judgment filed by United States Department of Labor. (Attachments: # 1 Exhibit 1 Second Declaration of William L. Carlson)(Wu, Elizabeth) (Entered: 08/26/2013)
2013-08-26	19	RESPONSE in Opposition re 15 MOTION for Partial Summary Judgment filed by United States Department of Labor. (Attachments: # 1 Exhibit A Form 9089)(Wu, Elizabeth) (Entered: 08/26/2013)
2013-08-29	20	REPLY to Response to Motion re 15 MOTION for Partial Summary Judgment filed by David Elliott Gluckman. (Attachments: # 1 Exhibit 1 - Document #35, # 2 Exhibit 2 - Excerpts from Document #494)(Moore, Jonathan) (Entered: 08/29/2013)
2013-10-01	21	Minute Entry for proceedings held before District Judge James R. Spencer:Motion Hearing held on 10/1/2013 re 15 MOTION for Partial Summary Judgment filed by David Elliott Gluckman, 13 MOTION for Summary Judgment filed by United States Department of Labor. Arguments heard. Matter taken under advisement. (Court Reporter Jeff Kull, OCR.)(khan, ) (Entered: 10/01/2013)
2013-10-03	22	NOTICE of Appearance by Jonathan Holland Hambrick on behalf of United States Department of Labor (Hambrick, Jonathan) (Entered: 10/03/2013)
2013-10-03	23	NOTICE by United States Department of Labor of Submission of Materials for In Camera Review (Hambrick, Jonathan) (Entered: 10/03/2013)
2013-10-23	24	NOTICE by United States Department of Labor of Second Submission of Materials for In Camera Review (Wu, Elizabeth) (Entered: 10/23/2013)
2013-10-29	25	Objection to 24 NOTICE of Second Submission of Materials for In Camera Review filed by David Elliott Gluckman. (Moore, Jonathan) (Entered: 10/29/2013)
2013-11-26	26	MEMORANDUM OPINION. Signed by District Judge James R. Spencer on 11/26/13. (kyou, ) (Entered: 11/26/2013)
2013-11-26	27	ORDER granting 15 Motion for Partial Summary Judgment on the the exemption-based issues; denying Motion for Summary Judgment regarding the adequacy of the OFCL's search. Signed by District Judge James R. Spencer on 11-26-13. (kyou, ) (Entered: 11/26/2013)
2014-04-09	28	STATUS REPORT by David Elliott Gluckman, United States Department of Labor. (Wu, Elizabeth) (Entered: 04/09/2014)
2014-09-18	29	STIPULATION of Dismissal by United States Department of Labor. (Wu, Elizabeth) (Entered: 09/18/2014)
2014-10-08	30	STIPULATION OF SETTLEMENT AND ORDER OF DISMISSAL as to David Elliott Gluckman and U.S. Department of Labor by and through their counsel hereby enter into this Stipulation that defendant shall pay $51,375.00 to Plaintiff in full and complete satisfaction of Plaintiff's claims for attorney's fees, costs and litigation expense under the Freedom of Information Act under the above captioned matter. (SEE ORDER FOR DETAILS). So Ordered: Signed by District Judge James R. Spencer on 10/8/14. (jtho, ) (Entered: 10/08/2014)
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