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COBELL v. NORTON

August 14, 2001

ELOISE PEPION COBELL, ET AL., PLAINTIFFS,
V.
GALE NORTON, SECRETARY OF THE INTERIOR, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Lamberth, District Judge.

MEMORANDUM OPINION

Before the Court are the Department of the Treasury's Motion to File Documents Under Seal ("Motion to File Under Seal"), the Motion of Dow Jones & Company, Inc. to Intervene and For Access to Documents Filed Under Seal On November 2, 2001 ("Motion to Intervene and For Access"); Plaintiffs' Opposition to the Motion ("Plaintiffs' Opposition"); Treasury's Response to the Oppositions Filed by Dow Jones and Plaintiffs ("Treasury Response"); and Plaintiffs' Motion for Ad Hominem Sanctions and Award of Expenses Regarding the Motion ("Motion for Sanctions"). At the heart of these filings lies the December 3, 1999 Recommendation and Report of the Special Master Regarding the Delayed Disclosure of the Destruction of Uncurrent Check Records Maintained by the Department of the Treasury ("Special Master Report" or "Report")*fn1 which concluded, inter alia, that: (1) Treasury attorneys failed to keep themselves fully and timely informed of pleadings and court orders which directly affected their Secretary; (2) Main Treasury did not insert itself into the Cobell litigation for more than two years, despite FMS's troublesome record of reporting significant matters in a timely manner; (3) once involved, Main Treasury did not actively oversee FMS' search and review of the documents; (4) no employee at Main Treasury reviewed any of the Hyattsville files or requested regular written updates concerning the status of the search; (5) representations were made to the Court which were misleading if not false; and (6) many of these events occurred during the time the Court was finding the Secretary of the Treasury in contempt for violating his discovery obligations. See Special Master's Report, at 117-18; Supplemental Recommendation and Report of the Special Master Regarding the Delayed Disclosure of the Destruction of Uncurrent Check Records Maintained by the Department of the Treasury, at 2.

At the Conclusion of the Report, the Special Master recommended that,

the Department of the Treasury and the Department of Justice be required to report to the Court all steps they have taken to ensure that these incidents will never be repeated. I further recommend that this Court take no action at this time until the Court can review what corrective and/or disciplinary measures have been taken to hold accountable those responsible for the conduct described [in the Recommendations].

Report at 122.*fn2

On December 17, 1999, Treasury filed the "Response of the United States to the December 3, 1999, Recommendation and Report of the Special Master" ("Response to Special Master Report") concurring in the Report's recommendations and outlining its contemplated corrective actions. Acknowledging that it "must have in place a process to meet [its] obligations, Treasury noted its regret[] that it did not inform the Court for several months that records were discarded," (Response to Special Master Report, at 1) and informed the Court of its intent to commence an internal review and "then report to the Court on whatever actions are taken." Response to Special Master Report, at 5.*fn3

As part of that internal review, Treasury empaneled a team of investigative attorneys ("Cobell Panel") "to conduct the management review of individual conduct and to offer recommendations to the Department's Deputy General Counsel regarding what management action was appropriate to address the conduct described in the Special Master's Report." Motion to File Under Seal at 3. On September 7, 2000, the Cobell Panel transmitted its recommendations to the Department's Deputy General Counsel ("Cobell Panel Report"); on October 25, 2000, the Deputy General Counsel rendered her decisions concerning the four of the six remaining counsel who were then employed by Treasury and opined as to what her decision would be for the two counsel no longer with the agency.*fn4

The reports reflecting the results of the internal review as well as the correspondence and a memorandum generated by the Deputy General Counsel are the subject of the instant dispute. Specifically, those documents which Treasury seeks to shield from disclosure ("Sealed Documents"), include:

• the September 7, 2000 Cobell Panel Report;

• the letters to each of the six counsel, whose conduct was the subject of the Special Master Report, reflecting the Deputy General Counsel's decision and bases therefor;
• the letter to the Commerce Department regarding the former Treasury employee who is not employed by that agency; and
• the memorandum informing the Deputy Secretary of the Deputy General Counsel's decisions and attachments analyzing relevant Model Rules of Professional Responsibility.

These documents were distributed for comment on November 2, 2000 to the six attorneys whose conduct was implicated in the Special Master Report. In response, Ingrid Falanga "consent[ed] to the unsealing of the documents filed with the Department of Treasury's Motion to File Documents Under Seal, provided that the Department of Treasury agrees that the document that [she] filed yesterday . . . be made part of the record in this case;" Randall Lewis indicated that he "does not object and consents to the unsealing and public filling of the documents attached to the Department of Treasury's Motion to File Documents Under Seal;" Roberta McInerney stated that she "has no objection to the release of those portions of the Treasury Department material which relate to her conduct in this matter." On November 13, 2000, Eleni Constantine affirmed that "the materials relating to the internal Treasury review should be made available as a matter of public record;" James Regan stated that he "does not intend to oppose either the Dow Jones motion or the plaintiffs' request for access to those documents." Daniel Mazella stated that he "takes no position on whether the material [] filed under seal on November 2, 2000, should be made part of the public record."

Treasury argues that, while it is proscribed from publicly disseminating the Sealed Documents in accordance with the Privacy Act 5 U.S.C. § 552a(b), the Court is not so restricted.*fn5 Treasury Response, at 3. Rather, it requests that this Court "not disclose or release any portion of these documents or any information contained therein to the Plaintiffs or the public" in recognition of the fact that they contain "sensitive personnel matters contained in the Employee Performance File System." Motion to Seal at 6.*fn6

Dow Jones & Company, Inc. ("Dow Jones") seeks to intervene in the instant discussion*fn7 and asks the Court to grant public access to the Sealed Documents on the grounds that the Privacy Act does not apply to the Sealed Documents, the Court is not bound by the Act and the presumption that such access is mandated by both common law and constitutionally.*fn8

Dow Jones and plaintiffs argue that the Privacy Act has no application to the instant equation and that the six factors articulated in United States v. Hubbard, 650 F.2d 293 (D.C.Cir. 1980) and the teachings of the ...


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