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Citizens for Responsibility and Ethics in Washington v. United States Dep't of Labor

March 22, 2007


The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge


The Citizens for Responsibility and Ethics in Washington ("CREW") filed this case under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, against the Department of Labor ("DOL"). CREW seeks release of the redacted portions of email exchanges relating to DOL's contacts with Richard Berman and various organizations headed or founded by Mr. Berman. DOL filed a motion for summary judgment asserting that the information withheld was not subject to disclosure under FOIA Exemption 5 because the information is protected by the deliberative process privilege. CREW responded with a cross-motion for summary judgment. CREW contends that the deliberative process privilege does not apply. Because the Court agrees with DOL, it will grant DOL's motion for summary judgment and will deny CREW's cross-motion.


CREW is a nonprofit corporation that uses FOIA in its mission to promote government integrity by informing the public regarding government activities. Compl. ¶¶ 4-6. On March 13, 2006, The Washington Post reported that Lynn Gibson, an aide in DOL's public liaison office, sent an email to DOL employees identifying a new website, Compl. Ex. A, Al Kamen, Who Gets the Not-So-Coveted Rosemary?, Wash. Post, Mar. 13, 2006, at A13. According to The Post, the email described as a source for information on labor unions and their expenditures. In contrast, The Post described the website as "a stridently anti-union site that talks about the 'political activities and criminal activity of the labor movement.'" Id. The website is operated by the Center for Union Facts, one of a number of organizations headed or founded by Mr. Berman, a lobbyist. Compl. ¶ 15.

The next day, on March 14, CREW submitted a FOIA request to DOL seeking all records that "mention or relate to the following individuals and entities: Richard Berman, Berman & Company, any employee or representative of Berman & Company and/or Richard Berman, The Center for Union Facts, The Employment Policies Institute Foundation, and The Center for Consumer Freedom."*fn1 Id. Ex. B, FOIA Request Letter, Mar. 14, 2006. CREW received responses from three offices at DOL indicating that there were no responsive documents, and CREW filed this suit. Shortly thereafter, DOL sent responsive documents to CREW. Def.'s Mem. Ex. A-2 & A-3. The documents included three strings of emails that were redacted pursuant to FOIA Exemption 5. Id.

DOL filed a motion for summary judgment claiming that it had fully and adequately complied with CREW's FOIA request. CREW filed a cross-motion, arguing that Exemption 5 does not apply.


Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment must be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); see also Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C. Cir. 1995). Moreover, summary judgment is properly granted against a party who "after adequate time for discovery and upon motion . . . fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true. Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than "the mere existence of a scintilla of evidence" in support of its position. Id. at 252. In addition, the nonmoving party may not rely solely on allegations or conclusory statements. Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999). Rather, the nonmoving party must present specific facts that would enable a reasonable jury to find in its favor. Id. at 675. If the evidence "is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted).

FOIA cases are typically and appropriately decided on motions for summary judgment. Miscavige v. IRS, 2 F.3d 366, 368 (11th Cir. 1993); Rushford v. Civiletti, 485 F. Supp. 477, 481 n.13 (D.D.C. 1980). In a FOIA case, the Court may award summary judgment solely on the basis of information provided by the department or agency in declarations when the declarations describe "the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981); see also Gallant v. NLRB, 26 F.3d 168, 171 (D.C. Cir. 1994). An agency must demonstrate that "each document that falls within the class requested either has been produced, is unidentifiable, or is wholly [or partially] exempt from the Act's inspection requirements." Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978) (internal citation and quotation marks omitted). An agency's declarations are accorded "a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents." SafeCard Services v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal citation and quotation marks omitted).


Under FOIA, federal agencies must release agency records upon request, unless one of nine exemptions applies. 5 U.S.C. § 552. "[D]isclosure, not secrecy, is the dominant objective of the Act." Dep't of the Air Force v. Rose, 425 U.S. 352, 361 (1976). Even though FOIA "strongly favors prompt disclosure, its nine enumerated exemptions are designed to protect those legitimate governmental and private interests that might be harmed by release of certain types of information." August v. FBI, 328 F.3d 697, 699 (D.C. Cir. 2003) (internal quotation marks omitted). The exemptions should be narrowly construed. Dep't of Justice v. Tax Analysts, 492 U.S. 136, 151 (1989).

To prevail in a FOIA case, the plaintiff must show that an agency has (1) improperly (2) withheld (3) agency records. Tax Analysts, 492 U.S. at 142. CREW complains that DOL improperly redacted information that was not exempt from release. DOL contends that the deliberative process exemption, FOIA Exemption 5, applies.

Exemption 5 provides that FOIA does not apply to "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency[.]" 5 U.S.C. ยง 552(b)(5). Exemption 5 encompasses materials which would be protected under the attorney-client privilege, the attorney work-product privilege, or the executive deliberative process privilege. Formaldehyde Inst. v. Dep't Health & Human Servs., 889 F.2d 1118, 1121 (D.C. Cir. 1989); see also NLRB v. ...

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