Gluckman v. United States Department of Labor
Filing
26
MEMORANDUM OPINION. Signed by District Judge James R. Spencer on 11/26/13. (kyou, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
RICHMOND DIVISION
DAVID ELLIOTT GLUCKMAN,
v.
Plaintiff,
Civil Action No. 3:13–CV–169
UNITED STATES DEPARTMENT
OF LABOR,
Defendant.
MEMORANDUM OPINION
THIS MATTER is before the Court on a Motion for Summary Judgment filed by
Defendant United States Department of Labor (“DOL”), (ECF No. 13), and a Motion for
Partial Summary Judgment filed by Plaintiff David Elliott Gluckman, (ECF No. 15). Plaintiff
has sued Defendant pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552,
asserting that Defendant, through its Office of Foreign Labor Certification (“OFLC” or
“Defendant”) has failed to produce requested documents in a timely manner. A hearing on
both motions was held on October 1, 2013. For the reasons stated below, the Court
GRANTS Plaintiff’s Motion for Partial Summary Judgment on the exemption‐based issues.
The Court DENIES Defendant’s Motion for Summary Judgment regarding the adequacy of
OFLC’s search.
I.
FACTUAL BACKGROUND
Except as otherwise noted, the following facts are not in dispute. OFLC is a
component of Defendant’s Employment and Training Administration (“ETA”). On March 15,
2012, Plaintiff, an immigration attorney, requested documents under FOIA from the OFLC
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regarding OFLC’s Program Electronic Review Management System (“PERM”). PERM
implements Defendant’s responsibilities under the Immigration and Nationality Act, 8
U.S.C. § 1182(a)(5)(A), specifically the review and, where appropriate, certification of
permanent labor certification applications from U.S. employers. In order to hire a foreign
national to work permanently in the United States, a U.S. employer must first obtain a
permanent labor certification from OFLC and then submit an immigration petition to the
Department of Homeland Security’s (“DHS”) U.S. Citizenship and Immigration Services
(“USCIS”). The permanent labor certification certifies that there are not sufficient U.S.
workers who are able, willing, qualified, and available to accept the particular job position
intended for the foreign national, and that the employment of the foreign national will not
adversely affect the wages and working conditions of similarly employed American
workers. See 8 U.S.C. § 1182(a)(5)(A). Accordingly, obtaining a permanent labor
certification from PERM is the first step in obtaining a green card for a foreign national to
work in the United States.
When filing an application for a permanent labor certification, the employer must
attest that it has taken certain actions specified in the DOL regulations to determine
whether or not there are a sufficient number of American workers able, willing, qualified,
and available to take the job position intended for the foreign national and that the
employment of the foreign national will not affect the wages and working conditions of
similarly employed American workers. See 20 C.F.R. § 656.17(e) (describing an employer’s
obligations to first recruit American employees prior to submitting an application to
PERM). In order to monitor employers’ compliance with these regulations, PERM audits
some applications. Defendant did not reveal information regarding the procedures used by
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PERM to audit the permanent labor certification applications or the criteria considered,
thus prompting Plaintiff’s request under FOIA for information.
Specifically, Plaintiff’s March 15, 2012 FOIA request to OFLC requested:
1.
Any and all policies and/or records containing criteria for—or
providing instruction, guidance, or direction related to—the selection of
PERM applications for audit and/or the exercise of the Certifying Officer’s
authority pursuant to 20 C.F.R. § 656.20 created, developed, maintained,
used, implemented, and/or disseminated (internally or externally) by the
OFLC on or after January 1, 2009; and
2.
Any and all records—such as worksheets, templates, checklists, or
similar documents—used by the Certifying Officer, analysts, Department of
labor employees, or contractors working with, for, or under the direction of
OFLC, when reviewing or processing Applications for Permanent
Employment Certification created, developed, used, implemented, and/or
disseminated (internally or externally) by the OFLC on or after January 1,
2009. This request does not seek records filled out or completed in relation
to specific PERM applications.
(Compl., Ex. A). On April 4, 2012, Defendant advised Plaintiff that his FOIA request had
been assigned to OFLC on March 15, 2012. Defendant informed Plaintiff by email and
regular mail on August 3, 2012 that his request for a waiver of the fees associated with the
FOIA request was denied and advised Plaintiff that he would either need to make an
advance payment of $223.07 or narrow his request in a way that would reduce the fee in
order for Defendant to take further action on the FOIA request. On August 14, 2012,
Defendant notified Plaintiff that it had received his advance payment of $223.07 and that it
anticipated completing the FOIA request within twenty (20) business days.
On September 26, 2012, Defendant wrote Plaintiff seeking clarification on the scope
of the request, to which Plaintiff responded with the requested clarification that same day.
Plaintiff obtained legal counsel after Defendant subsequently failed to provide any
responsive documents. Following a phone conversation between the parties, Plaintiff’s
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counsel proposed by email on March 14, 2013 an agreement wherein Plaintiff would
narrow the scope of the first part of his FOIA request such that the request “does not seek
audit responses or Form 9089s submitted by employers to OFLC in relation to specific
PERM applications.” (Ans., Ex. 1). In exchange, Defendant would make every reasonable
effort to respond to the entirety of the FOIA request within twenty (20) business days, but,
in any event, within no more than forty‐five (45) business days. The email gave Defendant
until noon on March 15, 2013 to confirm the agreement in writing, and advised the
Defendant that Plaintiff would otherwise immediately proceed with filing a complaint in
this Court. The parties dispute whether their initial phone conversation about this
proposed agreement required that Defendant confirm the agreement in writing by March
15, 2013 at noon. Nonetheless, Plaintiff filed his Complaint in this Court on March 18, 2013.
Since Plaintiff’s filing of this lawsuit, Defendant has provided eight disclosures,
including five interim responses between March and May 2013 as well as three additional
disclosures made between June and August 2013. Defendant’s disclosures are as follows:
(1) March 19, 2013: first interim response consisting of 4 documents released with
redactions pursuant to FOIA Exemptions 51 and 7(E), and 11 documents released in
full;
(2) March 29, 2013: second interim response consisting of 165 documents all fully
withheld pursuant to FOIA Exemptions 5 and 7(E);
(3) April 11, 2013: third interim response consisting of 180 documents all fully
withheld pursuant to FOIA Exemptions 5 and 7(E);
(4) April 26, 2013: fourth interim response consisting of one document released with
redactions pursuant to FOIA Exemptions 5 and 7(E), and 8 documents fully withheld
pursuant to FOIA Exemptions 5 and 7(E);
1
Plaintiff disputes Defendant’s contention that the first interim response redacted documents
pursuant to Exemption 5 as well as Exemption 7(E).
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(5) May 10, 2013: fifth interim response consisting of 14 documents released in full, 11
documents released with redactions pursuant to FOIA Exemptions 5 and 7(E), and
64 documents fully withheld pursuant to FOIA Exemptions 5 and 7(E);
(6) June 27, 2013: sixth disclosure consisting of a Vaughn index as well as 98 documents
released with redactions pursuant to FOIA Exemptions 5 and 7(E), and 186
documents released in full;
(7) July 17, 2013: seventh disclosure consisting of 10 documents fully withheld
pursuant to FOIA Exemptions 5 and 7(E), 14 documents redacted pursuant to FOIA
Exemptions 5 and 7(E), 5 documents released in full, and 10 previously released
documents re‐released with corrections; and
(8) August 2, 2013: eighth disclosure consisting of 1 document redacted pursuant to
FOIA Exemptions 5 and 7(E), 1 document released in full, and 1 previously released
document re‐released with corrections.
In summary, 272 documents that were either redacted or fully withheld pursuant to FOIA
Exemptions 5 and 7(E) remain at issue.
To search for responsive documents regarding Plaintiff’s FOIA request, Defendant
conducted two searches of three OFLC offices—the National Office in Washington, D.C.; a
National Processing Center in Atlanta, Georgia; and a National Processing Center in
Chicago, Illinois. The first search was conducted at the Atlanta National Processing Center
(“ANPC”) in May and August of 2012, and the second search was conducted by the ANPC,
the Chicago National Processing Center (“CNPC”), and the National Office in March of 2013.
II.
PROCEDURAL HISTORY
On March 18, 2013, Plaintiff filed suit seeking injunctive relief that would require
Defendant to produce all records responsive to Plaintiff’s FOIA request and a Vaughn index
of any and all responsive records being withheld under a claim of exemption. Plaintiff
further seeks injunctive relief that would enjoin Defendant from withholding any non‐
exempt records that are responsive to the FOIA request, in addition to attorneys’ fees and
costs. Defendant filed its Motion for Summary Judgment on August 2, 2013, arguing that it
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is entitled to judgment as a matter of law because it has provided 217 of the 489
documents responsive to Plaintiff’s FOIA request in full and without redaction. Regarding
the remaining 272 documents at issue, Defendant avers that it released 121 documents
with necessary redactions and withheld the remaining 151 documents entirely pursuant to
FOIA Exemptions 5 and 7(E). See 5 U.S.C. §§ 552(b)(5), (b)(7)(E).
On August 14, 2013, Plaintiff filed a response in opposition to Defendant’s Motion
for Summary Judgment and also filed a Cross Motion for Partial Summary Judgment.
Plaintiff asserts that Defendant is not entitled to summary judgment because material
issues of fact remain in dispute as to Defendant’s search for documents responsive to his
FOIA request, but that Plaintiff is entitled to partial summary judgment because no factual
issues remain as to Defendant’s improper withholdings of the 272 documents at issue. As
an alternative to summary judgment, Plaintiff requested that the Court conduct an in
camera review of the requested documents. A motions hearing was held on October 1,
2013. The Court subsequently conducted an in camera review of a portion of the relevant
withheld documents in this matter.
III.
STANDARD OF REVIEW
Disputes over FOIA requests that are brought to court should generally be resolved
on summary judgment. See Harrison v. U.S. Agency for Int’l Dev., 372 F.3d 286, 290 (4th Cir.
2004). A motion for summary judgment should be granted where “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 Celotex Corp. v. Catrett, 477 U.S. 317, 325
(1986). If there is no genuine dispute as to any material fact, it is the “affirmative obligation
of the trial judge to prevent factually unsupported claims and defenses from proceeding to
6
trial.” Drewitt v. Pratt, 999 F.2d 774, 778‐79 (4th Cir. 1993) (internal quotation marks and
citations omitted). However, if the Court finds that there is a genuine issue of material fact,
the motion must be denied. 10A Charles Alan Wright & Arthur R. Miller, Federal Practice
and Procedure § 2720 (3d ed. 2011).
A court must look to the specific facts pled to determine whether a triable issue
exists. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247‐49 (1996). “The moving party
bears the burden of establishing the nonexistence of a triable issue of fact by showing—
that is, pointing out to the district court—that there is an absence of evidence to support
the nonmoving party’s case.” Celotex, 477 U.S. at 325 (internal quotation marks and
citations omitted). All “factual disputes and any competing, rational inferences [are
resolved] in the light most favorable to the party opposing that motion.” Rossignol v.
Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003) (internal quotation marks and citations
omitted). “Only disputes over facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary judgment.” Anderson, 477 U.S.
at 248. “Mere unsupported speculation is not sufficient to defeat a summary judgment
motion if the undisputed evidence indicates the other party should win as a matter of law.”
Francis v. Booz, Allen & Hamilton, Inc., 452 F.3d 299, 308 (4th Cir. 2006). Summary
judgment may be granted if the nonmoving party’s evidence is only colorable or is not
significantly probative. Anderson, 477 at 249–50.
When faced with crossmotions for summary judgment, the Court applies the same
standard as that applied to individual motions for summary judgment. See Rossignol, 316
F.3d at 523. The Court must consider “each motion separately on its own merits to
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determine whether either of the parties deserves judgment as a matter of law.” Id. (internal
citations and quotation marks omitted).
IV.
DISCUSSION
A. Applicability of Exemptions
Subject to specified statutory exemptions, FOIA requires federal agencies to
promptly make its records available to any member of the public who makes a request for
the records that reasonably describes the records sought and is made in accordance with
published rules regarding the timing, place, fees, and procedures to be followed. See 5 U.S.C.
§ 552(a)(3)(A). In the interest of promoting an informed citizenry, “[i]n general, FOIA
exemptions should be narrowly construed to favor disclosure.” Harrison, 372 F.3d at 290
(citing Bowers v. U.S. Dep’t of Justice, 930 F.2d 350, 354 (4th Cir. 1991)). The federal agency
bears “the burden of demonstrating that a requested document falls under an exemption.”
Id. (citing City of Va. Beach, Va. v. U.S. Dep’t of Commerce, 995 F.2d 1247, 1252 (4th Cir.
1993)). “The government can meet this burden by describing the withheld material with
reasonable specificity and explaining how it falls under one of the enumerated
exemptions.” Id. (citing Miscavige v. IRS, 2 F.3d 366, 367‐68 (11th Cir. 1993)). “Whether a
document fits within one of FOIA’s prescribed exemptions is a matter of law,” Wickwire
Gavin, PC v. U.S. Postal Serv., 356 F.3d 588, 591 (4th Cir. 2004), and the court determines
the matter de novo, 5 U.S.C. § 552(a)(4)(B).
1.
Analysis of Exemption 7(E)
Under Exemption 7(E), an agency may withhold:
records or information compiled for law enforcement purposes, but only to
the extent that the production of such law enforcement records or
information . . . (E) would disclose techniques and procedures for law
enforcement investigations or prosecutions, or would disclose guidelines for
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law enforcement investigations or prosecutions if such disclosure could
reasonably be expected to risk circumvention of the law[.]
Tax Analysts v. IRS, 294 F.3d 71, 76 (D.C. Cir. 2002) (citing 5 U.S.C. § 552(b)(7)). An agency
may properly withhold “internal agency materials relating to guidelines, techniques,
sources, and procedures for law enforcement investigations and prosecutions, even when
the materials have not been compiled in the course of a specific investigation.” Id. at 79.
“Exemption 7(E) sets a relatively low bar for the agency to justify withholding: Rather than
requiring a highly specific burden of showing how the law will be circumvented, exemption
7(E) only requires that the [agency] demonstrate logically how the release of the requested
information might create a risk of circumvention of the law.” Blackwell v. FBI, 646 F.3d 37,
42 (D.C. Cir. 2011) (internal citations omitted) (quoting Mayer Brown, LLP v. IRS, 562 F.3d
1190, 1194 (D.C. Cir. 2009)). In order for the Court to ascertain whether this exemption
applies, OFLC must show that the relevant records were compiled for “law enforcement
purposes.”
Under Exemption 7, “law enforcement purposes” includes enforcement pursuant to
both civil and criminal statutes. See, e.g., Tax Analysts, 294 F.3d at 77. “FOIA makes no
distinction between agencies whose principal function is criminal law enforcement and
agencies with both law enforcement and administrative functions” Id. “Courts can usually
assume that government agencies act within the scope of their legislated authority.” Pratt v.
Webster, 673 F.2d 408, 418 (D.C. Cir. 1982). Agencies whose principal function is not law
enforcement face a more exacting scrutiny of Exemption 7 claims. Id.
The Government usually meets this burden by showing that the records at issue are
involved with the enforcement of a statute or regulation within its authority and that the
records were compiled for adjudicative or enforcement purposes. See, e.g., Cooper Cameron
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Corp. v. U.S. Dep’t of Labor, Occupational Safety & Health Admin., 280 F.3d 539, 545 (5th Cir.
2002) (holding that the Occupational Safety and Health Administration (“OSHA”) acted
pursuant to its statutory mandate to inspect workplaces, question employees, and cite
employers that violate safety and health regulations); Birch v. U.S. Postal Serv., 803 F.2d
1206, 1211 (D.C. Cir. 1986); see also Allnutt v. U.S. Dep’t of Justice, Nos. CIV. Y‐98‐901, CIV.
Y‐98‐1722, 2000 WL 852455, at *1 (D. Md. Oct. 23, 2000), aff’d sub nom. Allnut v. Handler, 8
F. App’x 225 (4th Cir. 2001) (holding that the Internal Revenue Service may use Exemption
7(E) because it has a law‐enforcement mandate).
At the outset, Defendant cannot show that OFLC has an enforcement mandate.
Instead, OFLC refers any possible fraud or willful misrepresentation in connection with the
permanent labor certification program to the DOJ, DHS, or other government entity, as
appropriate, for investigation, and sends a copy of the referral to the Department of Labor’s
Office of Inspector General. 20 C.F.R. § 656.31. In comparison, the Cooper Cameron
Corporation court held that that OSHA had an enforcement mandate under 29 U.S.C. § 659,
which enabled OSHA to assess penalties against employers found in violation of
occupational safety standards. 280 F.3d at 545 n.23. Similarly, in Birch, a court held that the
Postal Service met the threshold because it had statutory authority to investigate and
enforce laws regarding the use of mail and other postal matters under 18 U.S.C. § 3061. 803
F.2d at 1211. Under section 3061, the Postal Service has the power to serve warrants, make
arrests, carry firearms, and make seizures of property. 18 U.S.C. § 3061(a). In contrast,
OFLC does not have any law enforcement related mandate.
Additionally, the Court finds that the withheld documents at issue were not
“compiled for law enforcement purposes.” While it is true that OFLC may refer specific
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cases to law enforcement agencies, OFLC does not assert that any of the 272 withheld
documents pertain to any specific violations being investigated by an agency with an
enforcement mandate. The 272 relevant withheld documents are better characterized as
compiled for audit purposes—the documents list audit criteria, itemize the procedures
OFLC staff should take when processing applications with specific audit criteria present,
and contain templates of audit notification letters. To construe these documents as
“compiled for law enforcement purposes” would improperly broaden the meaning of the
term. As such, the Court holds that Exemption 7(E) is inapplicable to the 272 documents at
issue in this matter.
2.
Exemption 5
Under Exemption 5, an agency may withhold “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. § 552(b)(5). Encompassed within this
exemption is the “deliberative process privilege,” which applies where documents are both
predecisional and deliberative. Rein v. U.S. Patent & Trademark Office, 553 F.3d 370, 371‐72
(4th Cir. 2009). The agency has the burden to show that specific exemptions apply to
specific documents listed in its Vaughn index. See Rein, 553 F.3d at 369; Ethyl Corp. v. EPA,
25 F.3d 1241, 1249 (4th Cir. 1994); see also City of Va. Beach, Va., 995 F.2d at 1253–54.
“The agency must therefore explain why the exemption applies to the document or type of
document withheld.” Judicial Watch, Inc. v. FDA, 449 F.3d 141, 147 (D.C. Cir. 2006).
Communications are predecisional where they are “antecedent to the adoption of an
agency policy.” Ancient Coin Collectors Guild v. U.S. Dep’t of State, 641 F.3d 504, 513 (D.C.
Cir. 2011). Communications are deliberative where the “material reflects the give‐and‐take
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of the consultative process by revealing the manner in which the agency evaluates possible
alternative policies or outcomes.” Rein, 553 F.3d at 372‐73. “Thus, the privilege will
encompass recommendations, draft documents, proposals, suggestions, and other
subjective documents which reflect the personal opinions of the writer rather than the
policy of the agency.” Id. at 373 (internal quotation marks omitted) (quoting City of Va.
Beach, Va., 995 F.2d at 1253). “[T]he deliberative process privilege embodied in Exemption
5 serves a number of purposes among which are the protection of subordinates’
willingness to provide decision‐makers with frank opinions and recommendations and the
prevention of the premature disclosure of proposed policies before they have been finally
formulated or adopted.” Wolfe v. Dep’t of Health & Human Servs., 839 F.2d 768, 775 (D.C.
Cir. 1988).
[I]f documents are not a part of a clear ‘process’ leading to a final decision on
the issue . . . they are less likely to be properly characterized as predecisional;
in such a case there is an additional burden on the agency to substantiate its
claim of privilege. The identity of the parties to the memorandum is
important; a document from a subordinate to a superior official is more likely
to be predecisional, while a document moving in the opposite direction is
more likely to contain instructions to staff explaining the reasons for a
decision already made.
Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 868 (D.C. Cir. 1980). Additionally,
contested documents must be viewed in the context with which the documents are
generated in order to ascertain whether the materials “bear on the formulation or exercise
of agency policy‐oriented judgment . . . [and] whether disclosure would tend to diminish
candor within an agency.” City of Va. Beach, Va., 995 F.2d at 1254 (internal citations
omitted); see also Carter, Fullerton & Hayes, LLC v. FTC, 601 F. Supp. 2d 728, 739 (E.D. Va.
2009) (“Agencies are, and properly should be, engaged in a continuing process of
examining their policies; . . . the lower courts should be wary of interfering with this
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process. . . . [T]he line between predecisional documents and postdecisional documents
may not always be a bright one.”) (quoting City of Va. Beach, Va., 995 F.2d at 1253).
In Coastal States Gas Corporation, a district court found that documents labeled
“drafts, proposals and recommendations” were properly withheld under Exemption 5
because the Government’s Vaughn index revealed that they were drafted at a time when
litigation was likely and, as such, were protected by the attorney work‐product privilege.
617 F.2d at 860. On appeal, the Department of Energy argued that “these memoranda were
‘pre‐decisional’ because the regional counsel did not have final decision‐making authority
over interpretation of the regulations, and they were ‘deliberative’ because they were an
early part of the enforcement process, subject to continuing debate within the agency as
the investigation continued.” Id. at 866. The District of Columbia Circuit held that these
documents were not “predecisional” because they were “simply straightforward
explanations of agency regulations in specific factual situations . . . more akin to a ‘resource’
opinion about the applicability of existing policy to a certain state of facts, like examples in
a manual, to be contrasted to a factual or strategic advice giving opinion.” Id. at 868. The
court further held that the documents did not reflect “agency give‐and‐take of the
deliberative process by which the decision itself is made.” Id. (quoting Vaughn v. Rosen, 523
F.2d 1136, 1144 (D.C. Cir. 1975)).2
Upon in camera review, the Court finds that the OFLC documents are not
recommendatory in nature. Instead, they are more similar to the legal memoranda used as
2 The court further held that the case was unique because of the atmosphere of crisis at the agency
during the time the documents were issued. Coastal States Gas Corp., 617 F.2d at 869 n.22. The
court stated the agency was failing to fulfill an intense need for guidance in the form of final
interpretations and regulations by both the compliance personnel and the companies being
audited. Id.
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“resource opinions” by Department of Energy employees in Coastal States Gas Corporation.
OFLC has not met its burden to show that the withheld documents were not official policies
or that they were subject to continuing debate. To the contrary, OFLC’s Vaughn index
indicates that the vast majority of the documents have been withheld because disclosure
“would reveal [OFLC] techniques or procedures and guidelines.” (See, e.g., Carlson Decl., Ex.
14, 1). OFLC consistently characterizes these documents as policy, criteria, or templates
used by lower level employees in order to assess PERM applications. (See, e.g., Def.’s Mem.
Supp. Mot. Summ. J. 19‐21). The Court’s in camera review of a portion of the relevant
documents reveals that the withheld documents are not predecisional in nature. As such,
Exemption 5 is inapplicable to the 272 documents withheld by Defendant as a matter of
law. 3
B. Adequacy of Defendant’s Response to Plaintiff’s FOIA Request
An agency subject to a FOIA request must demonstrate that “it has conducted a
search reasonably calculated to uncover all relevant documents,” although “the relevant
question is not whether every single potentially responsive document has been unearthed.”
Ethyl Corp., 25 F.3d at 1246 (internal quotation marks and citations omitted). In
demonstrating that its search was adequate, “an agency may not rest on an affidavit that
simply avers that the search was conducted in a manner consistent with customary
practice and established procedure.” Id. at 1246‐47 (internal quotation marks and citations
omitted). “Rather, the affidavit must be reasonably detailed . . . and [aver] that all files likely
to contain responsive materials (if such records exist) were searched so as to give the
3 Because these documents are not predecisional, Defendant has failed the threshold test for the
application of Exemption 5, and the Court need not decide whether the documents are deliberative.
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requesting party an opportunity to challenge the adequacy of the search.” Id. at 1247
(internal quotation marks omitted) (quoting Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68
(D.C. Cir. 1990)).
1.
Adequacy of Places Searched
“FOIA demands only a reasonable search tailored to the nature of a particular
request. When a request does not specify the locations in which an agency should search,
the agency has discretion to confine its inquiry to a central filing system if additional
searches are unlikely to produce any marginal return; in other words, the agency generally
need not ‘search every record system.’” Campbell v. U.S. Dep’t of Justice, 164 F.3d 20, 28
(D.C. Cir. 1998).
In Oglesby, a plaintiff challenged the reasonableness of the State Department’s
search because the agency only searched the record system “most likely” to contain the
requested information. 920 F.2d at 67. The State Department chose to search a single
record system because it was the one “most likely to contain the information which had
been requested for the time period” based on the plaintiff’s letter. Id. The court held that
the State Department’s affidavit did not adequately describe the agency’s search. Id. It
reasoned that “[t]here is no requirement that an agency search every record system. . . .
However, the agency cannot limit its search to only one record system if there are others
that are likely to turn up the information requested.” Id. at 68 (internal citations omitted).
Further the court held that, at the very least, the state was required to explain that no other
record system was likely to produce results. Id. Similarly, in Davis v. U.S. Department of
Defense, another case cited by Plaintiff, the court held that an agency’s declaration
regarding the record systems it searched were conclusory where they simply averred that
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they were searched “because they were the locations where records related to the request
were reasonably expected to be found.” 3:07‐CV‐492, 2010 WL 1837925, at *5 (W.D.N.C.
May 6, 2010).
In contrast, in Campbell, the District of Columbia Circuit upheld the Federal Bureau
of Investigation’s (“FBI”) decision to limit its search for information to files that it could
locate by searching its Central Records System index, which was capable of locating most,
but not all, documents responsive to a general request for information about a particular
subject. 164 F.3d at 27. The court recognized that while there was another potentially
responsive record system, the agency was not required to search the second system unless
expressly asked to do so in a FOIA request because it was unlikely that additional
information would be found. Id. at 27‐28.
Defendant represents that it has searched some combination of records from email
accounts, shared drives, and hard copy files in the ANPC, CNPC, and National Office. Each
office searched a different combination of things. At ANPC, four certifying officers were
directed to conduct separate searches for the Audit, Appeals, Supervised Recruitment, and
Analyst Review Divisions for “all records responsive to plaintiff’s . . . request.” (Carlson
Decl. ¶ 43). OFLC employees performed searches on the ANPC, CNPC, and National Office
shared drives—which contained all information, including policy, emails, directives, and
written communications regarding case adjudications. In addition, some individuals
searched their emails and their own hard drives. Defendant describes the shared drive and
asserts that additional records such as employee emails on computer hard drives or paper
files in hard copy are rare. Defendant also divulged that OFLC had an additional office, the
National Prevailing Wage Center, which processes prevailing wage data for OFLC programs
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located in Washington, D.C. Defendant reports that the records of the National Prevailing
Wage Center were not searched because it would not have contained responsive records.
It is clear that Defendant’s search is dissimilar to the inadequate search in Oglesby
where the agency confined its search to its search to only one record system based on the
bald assertion that it was the only one that would have contained pertinent records. OFLC’s
search is closer to that of the FBI’s search in Campbell because Plaintiff did not request that
a particular record system be searched and because the OFLC has asserted that its offices’
various shared drives are the systems most likely places to locate most, if not all, of the
responsive documents to Plaintiff’s request. Under Campbell, it is not dispositive that
Defendant’s employees searched or did not search other systems or formats—including
National Prevailing Wage Center records, personal hard drives, and paper hard copy files—
for documents that were unlikely to be found. As such, the Court holds that the scope of
OFLC’s search was adequate.
2.
Withholding of Responsive Documents
FOIA requires a requester to “reasonably describe” the records sought. 5 U.S.C. §
552(a)(3). An agency also has a duty to construe a FOIA request liberally. Nation Magazine,
Wash. Bureau v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995). “[An] agency must be
careful not to read the request so strictly that the requester is denied information the
agency well knows exists in its files, albeit in a different form from that anticipated by the
requester.” Hemenway v. Hughes, 601 F. Supp. 1002, 1005 (D.D.C. 1985). “[W]hen a FOIA
requester ‘seek[s] all of a certain set of documents’ while also ‘evincing a heightened
interest in a specific subset thereof,’ such a request ‘is reasonably susceptible to the
broader reading’ of seeking the entire set of documents despite the fact that a specific
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subset of documents is named.” Mobley v. CIA, 924 F. Supp. 2d 24, 39 (D.D.C. 2013) (quoting
LaCedra v. Exec. Office for U.S. Attorneys, 317 F.3d 345, 348 (D.C. Cir. 2003)).
In Nicholls v. U.S. Office of Personnel Management, a court held that the Office of
Personnel Management’s (“OPM”) “liberal” interpretation of a plaintiff’s request was
improper in light of the plain meaning of the request. 863 F. Supp. 2d 4, 10 (D.D.C. 2012).
The plaintiff requested “records relating to any formal or informal appeals made either to
any individual agency or to OPM regarding the termination, denial of employment, or
withdrawal of an employment offer pursuant to 5 U.S.C. § 3328.” Id. OPM reasoned that
“any adjudication—and, presumably, any reconsideration—occurs before terminations or
denials of employment, thus rendering the records not responsive.” Id. at 11. The court held
that OPM read the plaintiff’s request too narrowly: “plaintiff sought documents relating to
appeals . . . regarding the termination, denial of employment, or withdrawal of an
employment. . . . She did not . . . request documents related to ‘appeals from’ employment
actions.” Id. (internal citations omitted). The court reasoned that the plaintiff’s use of words
like “relating to” and “regarding” plainly indicated that she sought information about
appeals lodged at any point during the section 3328 process, not only those taken after the
relevant employment action. Id.
In National Security Counselors v. Central Intelligence Agency, a court rejected the
National Security Administration’s (“NSA”) attempt to restrict the meaning of a requestor’s
FOIA attempt based on the court’s more liberal construction. Civil Action Nos. 11–443, 11–
444, 11–445(BAH), 2013 WL 4111616, at *36 (D.D.C. Aug. 15, 2013). The plaintiff asked for
copies of all current training handbooks, manuals, guidelines, checklists, worksheets, and
similar documents provided to NSA FOIA and Privacy Act analysts. Id. The plaintiff
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contended that NSA failed to liberally construe his FOIA request where it failed to provide
copies of templates used in FOIA request processing by NSA employees. Id. The NSA
contended that the templates were not responsive because they were “boilerplate
paragraphs” that did not contain “guidance, policy, or procedures for the NSA employee to
consider or evaluate.” Id. at *36. The National Security Counselors court concluded that the
templates should have been included in a “liberal” interpretation of the plaintiff’s request
because they were arguably included under the definition of “similar documents” and that
the “templates appear[ed] to play an important role in the guidance documents that the
NSA provide[d] to its FOIA analysts.” Id. at *37.
Here, Defendant properly withheld the documents at issue by reasonably
interpreting them to be unresponsive to Plaintiff’s FOIA request. In the initial FOIA request
at issue, Plaintiff’s sought:
1. Any and all policies and/or records containing criteria for ‐ or providing
instruction, guidance, or direction related to ‐ the selection of PERM
applications for audit and/or the exercise of the Certifying Officer’s
authority pursuant to 20 C.F.R. § 656.20, created, developed, maintained,
used, implemented, and/or disseminated (internally or externally) by the
OFLC on or after January 1, 2009.
2. Any and all records—such as worksheets, templates, checklists, or similar
documents—used by the Certifying Officer, analysts, Department of labor
employees, or contractors working with, for, or under the direction of
OFLC, when reviewing or processing Applications for Permanent
Employment Certification created, developed, used, implemented, and/or
disseminated (internally or externally) by the OFLC on or after January 1,
2009. This request does not seek records filled out or completed in
relation to specific PERM applications.
(Compl., Ex. A).4
4 Here, there appears to be a factual dispute between the parties. Defendant asserts that Plaintiff
agreed to limit his FOIA request on March 14, 2013. (See Second Carlson Decl. ¶¶ 38, 43). Plaintiff
asserts that he merely proposed to limit his request if OFLC accepted in writing and that OFLC
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Defendant excluded documents it described as Board of Alien Labor Certification
Appeals (“BALCA”) generated documents, employer specific documents, ETA Form 9089s,
and duplicates.
Unlike in Nicholls, Defendant’s plain meaning interpretation of Plaintiff’s request for
criteria providing instruction, guidance, or direction related to the selection of PERM
applications was accurate. The BALCA documents at issue are in the public domain and it
was reasonable for OFLC to consider them unresponsive to Plaintiff’s request because they
are not “policies” or “guidance” containing criteria for the selection PERM applications for
audit or records used by OFLC staff when processing PERM applications. (See Second
Carlson Decl. ¶ 36). Similarly, unlike in National Security Counselors, BALCA opinions are
not “templates,” “checklists,” or similar guidance documents even under a broad definition
or liberal interpretation.
Defendant also avers that production of the PERM Program Integrity Protection
(“PPIP”) files were nonresponsive because they are a “live” list of constantly updated
employers that have been precluded from filing PERM applications. While this list is
reviewed by OFLC employees, it is not a worksheet, checklist, or template used when
reviewing applications. Under National Security Counselors, the agency reasonably
interpreted Plaintiff’s request for worksheets, templates, and other similar documents
related to processing of PERM applications as a request for “guidance documents” or
never fulfilled the condition to write a response. (Pl.’s Mem. Opp. 20). Defendant counters that the
parties actually agreed to narrowing the FOIA request after a telephone conference on March 14,
2013 and that Plaintiff attempted to make the parties agreement contingent upon written
confirmation on March 15. (Carlson Decl. ¶¶ 37‐38; Second Carlson Decl. ¶¶ 39‐40). While we have
no record of the teleconference, it appears that the agreement outlined in an email by the parties on
March 14, 2013 does contain a clause requiring written confirmation by the Defendant. (Def.’s Ans.,
Ex. 1, at 2). In any event, this fact is not material because the relevant documents are nonresponsive
under either interpretation of the FOIA request.
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“instructions” used by OFLC employees in processing such applications. The PPIP files were
properly withheld because they fell outside even a liberal interpretation of Plaintiff’s
effective request for instructions regarding how OFLC employees process PERM
applications. Similarly, the PPIP list does not constitute OFLC “policies” regarding the
selection of PERM applications for audit because, as a “blacklist” of banned employers, it
falls outside any reasonable interpretation of Plaintiff’s request. Accordingly, the Court
finds that OFLC reasonably interpreted Plaintiff’s FOIA request and properly withheld only
unresponsive documents.
3.
Description of Search Methodology
As stated previously, in judging the adequacy of an agency search for documents, the
relevant question is whether the agency has “demonstrated that it has conducted a ‘search
reasonably calculated to uncover all relevant documents.’” Ethyl Corp., 25 F.3d at 1246‐47
(quoting Weisberg v. U.S. Dep’t of Justice, 705 F.2d 1344, 1350‐51 (D.C. Cir. 1983)). “In
demonstrating the adequacy of its search, however, an agency may not rest on an affidavit
that simply avers that the search was conducted in a manner ‘consistent with customary
practice and established procedure.’” Id. “Rather, the affidavit must be reasonably detailed,
‘setting forth the search terms and the type of search performed.’” Id. (citing Oglesby, 920
F.2d at 68). The vast majority of cases in which an agency’s declaration was found to be
deficient regarding its description of search methodology and terms used are where
agencies provide conclusory descriptions or no description at all. See, e.g., Oglesby, 920 F.2d
at 68; Kean v. NASA, 480 F. Supp. 2d 150, 157 (D.D.C. 2007) (describing agency’s
declaration as inadequate because it provided neither information on databases searched
nor methodology and search terms used).
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Defendant reports that it provided a list of search terms to the employees that
searched the National Office records. Defendant states that almost every employee at the
National Office used the terms when searching electronic records in addition to relying on
their own specialized knowledge. Declarant Carlson stated that he personally used the
recommended terms. Defendant also reports that two National Office employees used their
own list of search terms and that one employee “did not use a coordinated set of search
terms.” (Carlson Decl. ¶¶ 31‐33).
In contrast, with regard to the searches conducted at ANPC, Defendant repeatedly
asserts that each person who searched a shared drive “conducted a search for what was
responsive and did not use a coordinated set of search terms, but instead relied upon their
specialized knowledge of the relevant files to pull all documents that may be responsive.”
(E.g., Second Carlson Decl. ¶ 14). Regarding CNPC, Defendant also asserts that each
employee did not use a specific set of search terms. The declaration merely indicates that
each employee was provided a list of search terms including “guidance, directives, PPIP,
worksheets, audit, criteria, audit criteria, and directions.” (Carlson Decl. ¶ 53).
The Court finds that OFLC applied adequate search methodology in its search of the
National Office records. During the search of the National Office, the majority of OFLC
employees used defined search terms that are readily ascertainable by the Court. As in
Oglesby and Ethyl Corporation, the OFLC’s terms were reasonably calculated to uncover all
relevant documents.
Regarding OFLC’s search of the ANPC and CNPC, the Court lacks sufficient
information from which to decide the adequacy of the searches because Defendant’s
employees did not use a specific set of search terms. Defendant’s explanations of their
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searches are thus conclusory and insufficient, and Defendant has not met its burden to
demonstrate the adequacy of its search. See Ethyl Corp., 25 F.3d at 1246‐47. Because the
methodology of OFLC’s search of the ANPC and CNPC was inadequate, summary judgment
is inappropriate in this matter. Accordingly, the Court DENIES Defendant’s Motion for
Summary Judgment.
4.
Countervailing Facts and Bad Faith
Because the Court has determined that there is an issue of material fact as to the
adequacy of OFLC’s search, the Court declines to address whether the agency’s search was
made in bad faith or whether countervailing facts exist.
V.
CONCLUSION
For the aforementioned reasons the Court GRANTS Plaintiff’s Motion for Partial
Summary Judgment on the exemption‐based issues and DENIES Defendant’s Motion for
Summary Judgment regarding the adequacy of OFLC’s search.
Let the Clerk send a copy of this Memorandum Opinion to all counsel of record.
An appropriate Order shall issue.
____________________/s/_________________
James R. Spencer
United States District Judge
ENTERED this 26th day of November 2013.
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