CLIFFORD v. SOCIAL SECURITY ADMINISTRATION COMMISSIONER

Filing 38

DECISION AND ORDER ON DEFENDANT'S MOTION TO DISMISS AND MOTION FOR SUMMARY JUDGMENT - granting 20 Motion to Dismiss; denying 20 Motion for Summary Judgment. By JUDGE D. BROCK HORNBY. (mnw)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
PETER R. CLIFFORD,
PLAINTIFF
V.

CAROLYN W. COLVIN, ACTING
COMMISSIONER, SOCIAL SECURITY
ADMINISTRATION,
DEFENDANT

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CIVIL NO. 1:14-CV-275-DBH

DECISION AND ORDER ON DEFENDANT’S MOTION TO
DISMISS AND MOTION FOR SUMMARY JUDGMENT
The Social Security Administration’s (“SSA”) motion for summary
judgment on this Freedom of Information Act (“FOIA”) complaint is DENIED.1
Contrary to the SSA’s argument, the fact that the plaintiff seeks access to SSA
records for his own litigation purposes does not void his right of access under
FOIA (“a party’s asserted need for documents in connection with litigation will
not affect, one way or the other, a determination of whether disclosure is
warranted under FOIA.” Columbia Packing Co., Inc. v. U.S. Dep’t. of Agric., 563
F.2d 495, 499 (1st Cir. 1977)).
Likewise, the fact that the plaintiff sought a seal or redaction of this FOIA
lawsuit because of his reputational concerns in the SSA sanctions proceeding
against him does not make these documents exempt from disclosure. In fact,

In light of the outcome, I overlook the parties’ failure to comply with Local Rule 56(h) concerning
a notice of intent to file a motion for summary judgment and a conference of counsel.
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with the filing of my ruling on the motion for temporary restraining order (“TRO”),
the sealing and redaction were lifted. Decision and Order on Pl.’s Mot. for TRO
(ECF No. 37); Order Vacating Orders to Seal (ECF No. 36).
The FOIA exemption on which the SSA relies, 7(A), exempts from
disclosure: “records or information compiled for law enforcement purposes, but
only to the extent that the production of such law enforcement records or
information could reasonably be expected to interfere with enforcement
proceedings.” 5 U.S.C. § 552(b)(7)(A) (emphasis added). The plaintiff agrees that
what he seeks are investigative records, Complaint ¶ 18, but that is only the first
part of what is required to support an agency’s refusal to disclose. The SSA has
totally failed to articulate any basis on which the second part―that disclosure
of the records “could reasonably be expected to interfere with enforcement
proceedings”―is satisfied. The cases are clear that a blanket exemption may not
be claimed and that while generic categories of documents can be claimed as
exempt, “there must nevertheless be some minimally sufficient showing,” and
“withholdings

should

be

justified

‘category-of-document

by

category-of-

document . . . not . . . file-by-file.’” Curran v. Dep’t of Justice, 813 F.2d 473, 475
(1st Cir. 1987). “[T]he classification should be clear enough to permit a court to
ascertain ‘how each . . . category of documents, if disclosed, would interfere with
the investigation.” Id. (quoting Campbell v. Dep’t of Health & Human Servs., 682
F.2d 256, 265 (D.C. Cir. 1982)). The SSA has wholly failed to meet that standard
at this stage of the litigation.2
The SSA mentions in passing that the documents have been properly withheld under the
Privacy Act. This argument lacks any development. “Rather than guessing at what these
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The SSA’s motion to dismiss Count II, however, is GRANTED. That is the
count that asks for injunctive relief to prevent the SSA from proceeding with its
sanctions proceeding against the plaintiff until this FOIA lawsuit is resolved. In
the First Circuit, injunctive relief may issue if the plaintiff prevails on the merits,
the plaintiff would suffer irreparable injury without the injunction, the harm to
the plaintiff outweighs the harm to the defendant, and the public interest would
not be adversely affected. Joyce v. Town of Dennis, 720 F.3d 12, 25 (1st Cir.
2013) (citing Asociación de Educación Privada de P.R., Inc. v. García–Padilla,
490 F.3d 1, 8 (1st Cir. 2007)). I explained in my ruling on the request for a TRO
why the plaintiff cannot succeed on his request to enjoin the SSA from pursuing
the sanctions proceeding against him.

He has not shown any connection

between his access to the investigative file and the outcome of the sanction
proceedings against him.

In addition, the public interest weighs in favor of

avoiding delay in the SSA sanction proceedings.

I conclude, therefore, that

injunctive relief is not available to prevent the SSA from proceeding with its
sanctions proceeding despite the fact that the plaintiff may ultimately acquire
documents in this FOIA lawsuit.
SO ORDERED.
DATED THIS 6TH DAY OF NOVEMBER, 2014
/s/D. Brock Hornby
D. BROCK HORNBY
UNITED STATES DISTRICT JUDGE

arguments may or may not portend, we fall back upon the prudential rule that ‘issues adverted
to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are
deemed waived.’” Marek v. Rhode Island, 702 F.3d 650, 655 (1st Cir. 2012) (quoting United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)).

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