Case Detail

FOIA Project Annotation: Judge Royce Lamberth has ruled that the Department of Labor properly withheld records related to allegations that the union backgrounds of Labor Secretary Hilda Solis and Deputy Solicitor Deborah Greenfield improperly influenced decisions at the agency under Exemption 5 (deliberative process privilege) and Exemption 6 (invasion of privacy). The National Right to Work Legal Defense and Education Foundation argued that the agency's February 2009 decision to delay its LM-2/3 Regulation was the demarcation for what constituted a pre- or post-decisional document and that anything after that date was not protected by Exemption 5. Lamberth located seven items that pertained to the LM-2/3 Regulation and approved the agency's treatment of three of them. As to the other four, Lamberth found the agency had not provided enough justification in its Vaughn Index and ordered the agency "forthwith" to submit them for in camera inspection. He observed that "seven days later, and following the Court's clarification with Department counsel of his definition of 'forthwith,' the Department submitted [the items] to the Court. Most of these items were handwritten notes taken during discussion of various projects. He pointed out as to one set of notes that "it clearly reflects the Department's discussion of elements of its process of formulating and drafting a final Notice of Proposed Rulemaking, including discussions concerning a draft final rule. As such, this material is deliberative and precedisional, and was properly redacted pursuant to the deliberative process privilege of Exemption 5." The agency had withheld Solis' and Greenfield's phone records entirely, as well as job candidate personal information. The Foundation argued that knowing who Solis and Greenfield called was in the public interest. But Lamberth disagreed. He pointed out that "these numbers constitute information that applies to particular individuals despite the fact that it is unknown from the records which individuals are associated with these numbers. . .Disclosure of these numbers could subject the individuals to 'annoyance, embarrassment, and harassment in the conduct of their official and private lives.' While the Foundation has asserted a legitimate public interest in ferreting out 'undue influence' on the government by outside groups, it is not at all clear that disclosure of these numbers would actually advance this rarefied interest in this particular case. In all likelihood, these calls include not only organizations and entities with whom Ms. Solis and Ms. Greenfield regularly deal in their professional capacities, but a host of other private persons. Public disclosure of all of these numbers would result in a concrete invasion of privacy that outweighs the asserted public interest in this case, making the invasion unwarranted." Lamberth actually increased the Foundation's burden of showing a public interest by observing that "if the Foundation wants to know if Secretary Solis and Deputy Solicitor Greenfield corresponded by phone with unions or other organizations with which they are allegedly associated, it could have limited its requests to specific telephone numbers associated with those entities. But it did not do so." He refused to look at the phone records in camera, noting that "since only numbers are redacted, they would tell the Court nothing if provided in unredacted form." Lamberth found no more public interest in disclosure of job candidate information. He observed that "apart from the unsurprising fact that both Ms. Solis and Ms. Greenfield worked for labor organizations in the past, the Foundation provides no facts suggesting improprieties in the Department's hiring process that would justify releasing the names and other information associated with these job candidates. This information clearly applies to particular individuals and their privacy interests outweigh the speculative public interest asserted by the Foundation in this case."
Issues: Exemption 5 - Privileges - Deliberative process privilege - Deliberative, Exemption 6 - Invasion of privacy

Date Filed	Doc #	Docket Text
2009-11-20	1	COMPLAINT against U.S. DEPARTMENT OF LABOR ( Filing fee $ 350, receipt number 4616025614) filed by NATIONAL RIGHT TO WORK LEGAL DEFENSE AND EDUCATION FOUNDATION, INC.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Civil Cover Sheet)(dr) (Entered: 11/23/2009)
2009-11-20		SUMMONS (3) Issued as to U.S. DEPARTMENT OF LABOR, U.S. Attorney and U.S. Attorney General (dr) (Entered: 11/23/2009)
2009-11-20	2	LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by NATIONAL RIGHT TO WORK LEGAL DEFENSE AND EDUCATION FOUNDATION, INC. (NONE)(dr) (Entered: 11/23/2009)
2009-12-17	3	NOTICE of Appearance by Diane M. Sullivan on behalf of U.S. DEPARTMENT OF LABOR (Sullivan, Diane) (Entered: 12/17/2009)
2010-01-04	4	Consent MOTION for Extension of Time to answer or otherwise respond to the complaint by U.S. DEPARTMENT OF LABOR (Sullivan, Diane) (Entered: 01/04/2010)
2010-01-04		MINUTE ORDER: Upon consideration of 4 defendant's motion for an extension of time, and the entire record herein, it is hereby ORDERED that the motion is GRANTED. Defendant shall answer or otherwise respond to plaintiff's complaint by not later than January 12, 2010. SO ORDERED. Signed by Judge John D. Bates on 1/4/2010. (lcjdb1) (Entered: 01/04/2010)
2010-01-12	5	ANSWER to 1 Complaint by U.S. DEPARTMENT OF LABOR.(Sullivan, Diane) (Entered: 01/12/2010)
2010-01-19	6	Order requesting a briefing schedule from the parties. See text of Order for details. Signed by Judge John D. Bates on 1/19/2010. (lcjdb1) (Entered: 01/19/2010)
2010-01-21		Set/Reset Deadlines: Meet & Confer Statement due by 2/16/2010. (tb, ) (Entered: 01/21/2010)
2010-02-16	7	Consent MOTION for Extension of Time to file a briefing schedule by U.S. DEPARTMENT OF LABOR (Sullivan, Diane) (Entered: 02/16/2010)
2010-02-16		MINUTE ORDER: Upon consideration of 7 the parties' joint motion for extension of time, and the entire record herein, it is hereby ORDERED that the motion is GRANTED. The parties shall submit by not later than March 1, 2010, a proposed briefing schedule for the filing of dispositive motions to resolve this matter. SO ORDERED. Signed by Judge John D. Bates on 2/16/2010. (lcjdb1) (Entered: 02/16/2010)
2010-02-24	8	NOTICE (Proposed Briefing Schedule)(Joint) by U.S. DEPARTMENT OF LABOR (Sullivan, Diane) (Entered: 02/24/2010)
2010-02-25		MINUTE ORDER: Upon consideration of 8 the parties' proposed briefing schedule, and the entire record herein, it is hereby ORDERED as follows: Defendant shall file a dispositive motion and Vaughn index by not later than April 30, 2010; plaintiff's opposition shall be filed by not later than May 28, 2010; and defendant's reply, if any, shall by filed by not later than June 11, 2010. SO ORDERED. Signed by Judge John D. Bates on 2/25/2010. (lcjdb1) (Entered: 02/25/2010)
2010-04-30	9	MOTION for Summary Judgment by U.S. DEPARTMENT OF LABOR (Attachments: # 1 Affidavit Declaration of Richard V. French, # 2 Affidavit Declaration of Peter Constantine, # 3 Affidavit Declaration of Andrew Auerbach, # 4 Affidavit Declaration of Stacey E. Williams)(Sullivan, Diane) (Entered: 04/30/2010)
2010-04-30	10	NOTICE (Notice of Filing of Additional Attachments in Support of Defendant's Motion for Summary Judgment) by U.S. DEPARTMENT OF LABOR re 9 MOTION for Summary Judgment (Attachments: # 1 Vaughn Index, # 2 3-5-10 Release to Plaintiff (Deborah Greenfield Calendar), # 3 3-5-10 Release to Plaintiff (Email), # 4 3-5-10 Release to Plaintiff (Emails (outside agency)), # 5 3-5-10 Release to Plaintiff (Emails with Justice), # 6 3-5-10 Release to Plaintiff (Executive Orders Material), # 7 3-5-10 Release to Plaintiff (LM 2-3 Material), # 8 3-5-10 Release to Plaintiff (LM 10 Material), # 9 3-5-10 Release to Plaintiff (LM 30 Material), # 10 3-5-10 Release to Plaintiff (Manager Meeting Minutes), # 11 3-5-10 Release to Plaintiff (Misc Documents (1)), # 12 3-5-10 Release to Plaintiff (Misc Documents (2)), # 13 3-5-10 Release to Plaintiff (Misc Documents (3)), # 14 3-5-10 Release to Plaintiff (Phone Records), # 15 3-5-10 Release to Plaintiff (Secretary Solis Calendar), # 16 3-5-10 Release to Plaintiff (T1 Material))(Sullivan, Diane) (Entered: 04/30/2010)
2010-04-30	11	NOTICE (Notice of Filing of Additional Attachments in Support of Defendant's Motion for Summary Judgment) by U.S. DEPARTMENT OF LABOR re 9 MOTION for Summary Judgment (Attachments: # 1 4-6-10 Release to Plaintiff (E-Mail with Justice), # 2 4-6-10 Release to Plaintiff (Emails outside agency 1), # 3 4-6-10 Release to Plaintiff (Email (outside agency 2)), # 4 4-6-10 Release to Plaintiff (Greenfield Phone Records), # 5 4-6-10 Release to Plaintiff (Email), # 6 4-6-10 Release to Plaintiff (LM-30 Materials), # 7 4-6-10 Release to Plaintiff (Miscellaneous Documents), # 8 4-6-10 Release to Plaintiff (OLMS-CRLM Meeting Agendas), # 9 4-6-10 Release to Plaintiff (OLMS-CRLM Status Report 1), # 10 4-6-10 Release to Plaintiff (OLMS-CRLM Status Report 2), # 11 4-6-10 Release to Plaintiff (Solis Phone Records), # 12 4-6-10 Release to Plaintiff (Solis Speeches), # 13 Handwritten Notes 1, # 14 Handwritten Notes 2)(Sullivan, Diane) (Entered: 04/30/2010)
2010-05-25	12	MOTION to Amend Briefing Schedule by NATIONAL RIGHT TO WORK LEGAL DEFENSE AND EDUCATION FOUNDATION, INC. (znmw, ) (Entered: 05/25/2010)
2010-05-26		MINUTE ORDER: Upon consideration of 12 plaintiff's unopposed motion to amend the briefing schedule, and the entire record herein, it is hereby ORDERED that the motion is GRANTED. Plaintiff shall respond to 9 defendant's motion for summary judgment by not later than June 18, 2010; defendant may file a reply in support of its motion by not later than July 1, 2010. SO ORDERED. Signed by Judge John D. Bates on 5/26/2010. (lcjdb1) (Entered: 05/26/2010)
2010-06-18	13	Memorandum in opposition to re 9 MOTION for Summary Judgment and Plaintiff's Cross-Motion for Partial Summary Judgment filed by NATIONAL RIGHT TO WORK LEGAL DEFENSE AND EDUCATION FOUNDATION, INC.. (LaJeunesse, Raymond) (Entered: 06/18/2010)
2010-06-18	14	REPLY re 9 MOTION for Summary Judgment Plaintiff's Response to Defendant U.S. Dept of Labor Statement of Material Facts and Plaintiff's Local Civil Rule 7(h) Statement of Material Facts in Support of Cross-Motion for Summary Judgment filed by NATIONAL RIGHT TO WORK LEGAL DEFENSE AND EDUCATION FOUNDATION, INC.. (LaJeunesse, Raymond) (Entered: 06/18/2010)
2010-06-18	15	Cross-MOTION for Partial Summary Judgment by NATIONAL RIGHT TO WORK LEGAL DEFENSE AND EDUCATION FOUNDATION, INC. (see Docket Entry 13 to view document). (dr) (Entered: 06/21/2010)
2010-06-29	16	Consent MOTION for Extension of Time to file an opposition to plaintiff's motion for discovery by U.S. DEPARTMENT OF LABOR (Sullivan, Diane) (Entered: 06/29/2010)
2010-07-01		MINUTE ORDER: Upon consideration of 16 defendant's motion for extension of time, and the entire record herein, it is hereby ORDERED that the motion is GRANTED. Defendant shall file its reply in support of its motion for summary judgment, and its opposition to plaintiff's cross-motion for summary judgment, by not later than July 27, 2010. Signed by Judge John D. Bates on 7/1/2010. (lcjdb1) (Entered: 07/01/2010)
2010-07-26	17	REPLY to opposition to motion re 9 MOTION for Summary Judgment filed by U.S. DEPARTMENT OF LABOR. (Sullivan, Diane) (Entered: 07/26/2010)
2010-07-26	18	Memorandum in opposition to re 15 MOTION for Partial Summary Judgment filed by U.S. DEPARTMENT OF LABOR. (Sullivan, Diane) (Entered: 07/26/2010)
2010-07-26	19	RESPONSE re 14 Reply to Document, (Defendant's Response to Plaintiff's Statement of Material Facts) filed by U.S. DEPARTMENT OF LABOR. (Sullivan, Diane) (Entered: 07/26/2010)
2010-07-30	20	Consent MOTION for Extension of Time to File Response/Reply to Defendant's Opp to Plaintiff's Cross-Motion for Summary Judgment by NATIONAL RIGHT TO WORK LEGAL DEFENSE AND EDUCATION FOUNDATION, INC. (LaJeunesse, Raymond) (Entered: 07/30/2010)
2010-08-02		MINUTE ORDER: Upon consideration of 20 plaintiff's motion for extension of time, and the entire record herein, it is hereby ORDERED that the motion is GRANTED. Plaintiff shall file its reply in support of its motion for summary judgment by not later than August 13, 2010. Signed by Judge John D. Bates on 8/2/2010. (lcjdb1) (Entered: 08/02/2010)
2010-08-13	21	REPLY to opposition to motion re 15 MOTION for Partial Summary Judgment filed by NATIONAL RIGHT TO WORK LEGAL DEFENSE AND EDUCATION FOUNDATION, INC.. (LaJeunesse, Raymond) (Entered: 08/13/2010)
2010-12-09	22	NOTICE OF SUBSTITUTION OF COUNSEL by Benton Gregory Peterson on behalf of U.S. DEPARTMENT OF LABOR Substituting for attorney Diane Sullivan (Peterson, Benton) (Entered: 12/09/2010)
2011-01-20		Case reassigned to U.S. District Judge Robert L. Wilkins. Judge John D. Bates no longer assigned to the case. (gt, ) (Entered: 01/20/2011)
2011-10-07	23	Case Reassigned to Chief Judge Royce C. Lamberth. Judge Robert L. Wilkins no longer assigned to the case. (jeb, ) (Entered: 10/07/2011)
2011-11-30	24	ORDER. Defendant shall submit forthwith Vaughn Index items 6, 10, 16, and 18 to the Court for in camera review. Signed by Chief Judge Royce C. Lamberth on November 30, 2011. (lcrcl4) (Entered: 11/30/2011)
2011-12-06	25	NOTICE of in camera submission by U.S. DEPARTMENT OF LABOR (Peterson, Benton) (Entered: 12/06/2011)
2011-12-12	26	ORDER granting 9 defendant's Motion for Summary Judgment; denying 15 plaintiff's Cross-Motion for Partial Summary Judgment. Signed by Chief Judge Royce C. Lamberth on December 12, 2011. (lcrcl4) (Entered: 12/12/2011)
2011-12-12	27	MEMORANDUM OPINION. Signed by Chief Judge Royce C. Lamberth on December 12, 2011. (lcrcl4) (Entered: 12/12/2011)
2012-01-24	28	ERRATA: Ordering the deletion of the words "an anti-union group" from the third line of the first page of 27 Memorandum & Opinion. (rje) (Entered: 01/24/2012)
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