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American Federation of Government Employees, Local 812 v. Broadcasting Board of Governors

May 18, 2010

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 812, ET AL., PLAINTIFFS,
v.
BROADCASTING BOARD OF GOVERNORS, DEFENDANT.



The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge

MEMORANDUM OPINION

Plaintiffs Verla Wiley and American Federation of Government Employees, Local 1812 ("AFGE," "Local 812," or "the union") have brought this action against the United States Broadcasting Board of Governors ("BBG" or "the agency") under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. Plaintiffs seek to compel disclosure of documents related to the BBG's alleged refusal to grant Wiley, a union official and former BBG employee, unescorted access to an agency facility known as the "Cohen Building." After searching its records, the BBG identified 230 responsive pages, of which it produced 164 pages in their entirety, withheld 23 pages in their entirety, and produced 43 pages in redacted form. The BBG now moves for summary judgment. Plaintiff Wiley, proceeding pro se, has cross-moved for summary judgment, arguing both that the search was inadequate and that the redactions and withholdings are improper; plaintiff AFGE has also cross-moved for summary judgment, arguing only that BBG's search was inadequate. Upon consideration of the parties' submissions and the entire record, and for the reasons discussed herein, defendant's motion is granted in part and plaintiffs' cross- motions for summary judgment are denied in part. Defendant will also be required to supplement its declarations, and the remainder of the parties' summary judgment motions will be held in abeyance pending the Court's review of defendant's additional declarations.

BACKGROUND

The BBG is a federal agency that oversees the International Broadcasting Bureau ("IBB"), which carries out government-sponsored nonmilitary international broadcasting services through Voice of America ("VOA") and other entities. See generally 22 U.S.C. §§ 6202, 6204, 6206. The BBG itself is a bipartisan independent body composed of nine voting members: eight Governors appointed by the President (one of whom is appointed as Chairman) and the Secretary of State. See id. § 6203(b). AFGE Local 812 is the collective bargaining representative for a unit of BBG employees. (AFGE's Statement of Material Facts as to Which There Is No Genuine Dispute ("AFGE SMF") ¶ 1.) Wiley was a BBG employee for 39 years and, for all times relevant to this dispute, Local 812's vice-president. (Wiley's Statement of Undisputed Material Facts ("Wiley SMF") ¶ 1; AFGE SMF ¶ 2.) Wiley retired from the BBG in May 2005 but continues to serve as Local 812's vice-president. (Wiley SMF ¶¶ 1-2; AFGE SMF ¶¶ 2-3.)

On February 2, 2007, the union filed a grievance under the Negotiated Labor-Management Agreement ("NLMA"), alleging that the BBG had violated the agreement by refusing to grant Wiley unescorted access to the "Cohen Building," a BBG office facility. (AFGE SMF ¶ 8.) Over two years later on March 13, 2009, Wiley wrote a letter to the agency requesting records under FOIA ("the FOIA request"). (See Wiley's Opp'n to Def.'s Mot. for Summ. J. & Mem. in Supp. of Cross-Mot. for Summ. J. ("Wiley Opp'n"), Ex. E ("FOIA Request).)*fn1 Wiley's letter stated that upon her retirement, the former director of the agency's Office of Security, John Wybenga, personally gave her an IBB "retiree badge" that enabled her to move freely around the Cohen Building without an escort; however, beginning in June 2006, the agency no longer treated that badge as valid for unescorted access, so Wiley "must sign in and be escorted at all times." (Id. at 1.) This, she asserted, "disrupted union business" and "hampered" her ability to perform her union duties. (Id.) Wiley's letter also asserted that the refusal to grant her unescorted access to the building "after [she has] come through [the agency's] security checkpoint system indicates that the BBG and the Office of Security believe that [she is] a security risk . . . ." (Id.)

Wiley requested 14 categories of documents, summarized as follows:

(1) her security file from January 1999 to the present, including any record "regarding inferred security risks, building access, BBG retirees, the I.D. Badge and any other issues that included her name in the discussion";

(2) all records between "BBG/VOA/IBB management, the Office of Security, and intelligence agencies" regarding Wiley and "inferred security risks, building access, BBG retirees, the I.D. Badge and any other issues that included her name in the discussion";

(3) all records between "BBG management, IBB, VOA, and the Office of Security over the issues of the I.D. Badge, retirees, and access to the Cohen Building for [Wiley]";

(4) all records regarding "what prompted the Agency and the Office of Security to ban Verla Wiley from the building" in 2006 and why;

(5) all records "finding Verla Wiley a security risk," if the agency's decision to deny her unescorted access to the Cohen Building was a "risk-based decision" under Homeland Security Presidential Directive 12 ("HSPD-12");

(6) all records regarding "why [Wiley] wasn't told when [she] retired in 2005 that [her] retiree badge was not adequate for unescorted access to the Cohen Building" and that such access would require "a background investigation using the SF-86 form";

(7) all records "explaining why there is a need for [Wiley] to fill out any background investigation form when [her] retiree badge did not expire until 2009, and [she] continued [her] union activities without a break in service after retiring from the agency";

(8) all records regarding agency policy "prior to 2004" for retired employees who continued to do "volunteer work" for Local 1812, in light of the Office of Security's purported statement that the policy "restricting BBG retirees' access to the Cohen Building was implemented on August 24, 2004";

(9) all records "informing employees that that IBB Identification Retiree Badges will no longer be valid for unescorted access to the building";

(10) all records "regarding the Building Committee, the deciding officials who allegedly in August 2004, voted to restrict retirees from having access to the building unless escorted, and why the decision to restrict was done at that particular time since there appeared to be no high terror alert and it was three (3) years after September 11, 2001";

(11) all records "regarding terror alerts from September 01, 2001 to September 30, 2004";

(12) all records regarding "why the Agency and the Office of Security applied an August 2004 policy for Retirees, instead of respecting Verla Wiley's rights" as a union official and "abid[ing] by the Negotiated Labor-Management Agreement";

(13) all records regarding "how other Union Executive Board Officers who had retired from the Agency were permitted to use their retiree badges until 2007 without the requirement of a permanent escort";

(14) "a copy of the follow-up recommendations and any other documents dealing with" criticisms of the Office of Security and Office of Personnel that were made in a 1993 document entitled "A Just Workplace Task Force Report," which was issued ...


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