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Ellen Elisabeth Smith v. Department of Labor

July 26, 2011


The opinion of the court was delivered by: James E. Boasberg United States District Judge


Plaintiff Ellen Smith filed a Freedom of Information Act request seeking Department of Labor documents related to a mining disaster. Deeming DOL's response insufficient, she brought this FOIA suit challenging the Agency's redaction of certain information. As this litigation has progressed, Defendants have made three supplemental releases, effectively narrowing the dispute to just 77 redacted lines on eight pages. Having now reviewed in camera all of the redactions, the Court finds no improper withholding and will thus grant Defendants' Motion for Summary Judgment and deny Plaintiff's Cross-Motion.


Plaintiff is the publisher of a newsletter, Mine Safety and Health News, that covers the mining industry. Pl. Motion, Declaration of Ellen Smith, ¶ 1. In January 2009, she submitted a FOIA request to the Department of Labor to obtain a "copy of the Martin County Coal Corporation Accident investigation, given to the Assistant Secretary of Labor for Mine Safety and Health on or about Dec. 9, 2002 by the Office of the Inspector General." Id., ¶ 10. This report was compiled in response to a mining accident that occurred in Martin County, Kentucky, in October 2000. Id., ¶¶ 3-4.

DOL forwarded the request to OIG, which delegated it to FOIA officer Kimberly Pacheco. Def. Motion, Declaration of Kimberly Pacheco, ¶ 5. Pacheco reviewed agency files and determined that the Agency had already responded to several identical FOIA requests: one from Smith in 2003 and two from third parties in 2004. Id., ¶ 6. In response to these previous requests, DOL had released a two-page cover letter from the Inspector General to the Secretary of Labor, a two-page executive summary, and the 25-page investigative report that OIG had prepared in the course of responding to the accident. Id. Pacheco accordingly responded to Smith's 2009 request by releasing the previously disclosed 29 pages, with some redactions on each page. Id., ¶¶ 7-8.

Plaintiff appealed these redactions to the Solicitor's Office in February 2009. Id., ¶ 9. Because of backlogged appeals, Plaintiff's case was reviewed in November 2009. Def. Motion, Declaration of William W. Thompson II, ¶¶ 6-7. Associate Solicitor for Management and Administrative Legal Services William W. Thompson II affirmed certain redactions, but released 24 of the 29 pages in fuller form. Id., ¶ 7.

Pacheco then received a subsequent FOIA request from Plaintiff on December 13, 2009. Pacheco Decl., ¶ 10. Plaintiff requested the table of contents of, and all exhibits appended to, the accident investigation report. Id. These documents, consisting of 205 pages, were located by an OIG special agent who worked on the investigation. Id. Pacheco reviewed the documents and determined that 106 pages required further review by the Mine Safety and Health Administration (MSHA) because MSHA had generated the information they contained. Id., ¶ 11. On April 15, 2010, OIG released the remaining 99 pages with some redactions and explained that the additional 106 pages were being reviewed by MSHA. Id., ¶ 12.

Plaintiff appealed this response to the Solicitor's Office in May 2010. Thompson Decl., ¶ 8. An additional release was made as a result: 18 redacted pages were released in fuller form. Id., ¶ 9. The Solicitor's Office, however, affirmed the redaction of names of OIG special agents, references to an individual's career plans external to DOL, personal phone numbers, and identifying information of people who were subject to internal personnel discussions. Id., ¶ 13.

MSHA subsequently concluded its review of the documents sent to it. Def. Motion, Declaration of Lanesia Washington, ¶ 6. Portions of exhibits included in MSHA's Draft Internal Review Report to OIG were compared to exhibits included in the Final Report. Id. Some information included in the Draft Report, but not the Final Report, was redacted. Id. MSHA, though, disclosed all 106 pages, at least in some form. Washington Decl., Exh. C.

Plaintiff next filed suit in this Court on July 23, 2010, challenging Defendants' redactions. During the course of the litigation, Defendants released more unredacted pages on three separate occasions. Prior to briefing, Plaintiff had received all 234 pages of the report and its exhibits, with redactions made to information on just 51 individual pages. During the course of briefing Cross-Motions for Summary Judgment, the dispute was narrowed even further. At present, only seven documents covering eight pages and containing 77 redacted lines remain in dispute. See Pl. Motion at 2. On July 7, 2011, this Court ordered Defendants to produce the eight disputed pages for in camera review. Defendants produced those documents six days later, and the Court has since reviewed each redaction along with the Agency's respective justification. *fn1

II.Legal Standard

Summary judgment may be granted if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). "A party asserting that a fact cannot be or is genuinely disputed must support the assertion by citing to particular parts of materials in the record." FED. R. CIV. P. 56(c)(1)(A). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "[A] material fact is 'genuine' . . . if the evidence is such that a reasonable jury could return a verdict for the nonmoving party" on an element of the claim. Liberty Lobby, Inc., 477 U.S. at 248. Factual assertions in the moving party's affidavits or declarations may be accepted as true unless the opposing party submits his own affidavits, declarations, or documentary evidence to the contrary. Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992).

FOIA cases typically and appropriately are decided on motions for summary judgment. Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009); Bigwood v. United States Agency for Int'l Dev., 484 F. Supp. 2d 68, 73 (D.D.C. 2007). A defendant agency seeking summary judgment in a FOIA case must demonstrate that no material facts are in dispute, that it has conducted an adequate search for responsive records, and that each responsive record that it has located has been produced to the plaintiff or is exempt from disclosure. Students Against Genocide v. Dep't of State, 257 F.3d 828, 833 (D.C. Cir. 2001). In a FOIA case, the Court may grant summary judgment based solely on information provided in an agency's affidavits or declarations if they are relatively detailed and "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). Such affidavits or declarations are accorded "a presumption of good ...

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