United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
MATTER is before the Court on Plaintiff's Motion for
Summary Judgment, (Doc. 34), filed October 18, 2018;
Defendants' Response to Plaintiff's Motion for
Summary Judgment and Defendants' Cross Motion for Summary
Judgment, (Doc. 35), filed November 8, 2018;
Plaintiff's Reply to Defendant's Response to
Plaintiff's Motion for Summary Judgment, (Doc. 40),
filed December 21, 2018; and Defendants' Reply to
Plaintiff's Response to Defendant's Cross Motion for
Summary Judgment, (Doc. 43), filed March 5, 2019. Having
considered the briefs, the record of the case, and relevant
law, Plaintiff's Motion for Summary Judgment,
(Doc. 34), is DENIED, Defendants' Cross Motion for
Summary Judgment, (Doc. 35), is GRANTED, and
Plaintiff's claims are DISMISSED as set forth below.
September 3, 2013, Plaintiff submitted a request to the U.S.
Department of Labor Wage and Hour Division
(“Defendant”) pursuant to 5 U.S.C. § 552,
the Freedom of Information Act (“FOIA”). (Doc.
1-2 at 8). Plaintiff asked for documents and materials about
a charge he brought against his former employer, the New
Mexico Department of Workforce Solutions
(“NMDWS”), and the resulting correspondence
between NMDWS and Defendant. Id.
September 23, 2013, Defendant responded to Plaintiff's
request by providing 80 pages of disclosable documents, which
were partially redacted, and stating it was withholding 18
documents in their entirety. Id. at 9. Defendant
stated the information that was withheld was exempt from
disclosure pursuant to FOIA Exemptions 4, 5, 6, 7(c), 7(d),
and 7(e). Id. at 9-10 (citing 5 U.S.C. §§
552(b)(4), (5), (6), and (7)). Defendant explained that
Exemption 4 protects “trade secrets, commercial, or
financial information obtained from a person that is
privileged or confidential, ” and that, before
releasing this information, Defendant must go through the
“EO 12600 process.” Id. at
Defendant further explained that this process requires
advising the submitter of the confidential information of the
FOIA request and “soliciting views as to whether the
disclosure would cause substantial harm if the information is
released.” Id. Therefore, Defendant instructed
Plaintiff to notify Defendant if he wished to obtain
documents pursuant to the EO 12600 process. Id.
addition to explaining the EO 12600 process for information
withheld under Exemption 4, Defendant advised Plaintiff that
he could appeal Defendant's decision to withhold
information under the other exemptions by filing an appeal
with the Solicitor of Labor within 90 days. Id. at
11. Defendant explained the appeal must: (1) state, in
writing, the grounds for the appeal, including any supporting
statements or arguments; (2) be addressed to the Solicitor of
Labor in Washington, D.C.; and (3) be clearly marked
“Freedom of Information Act Appeal” on the
envelope and letter of appeal itself. Id.
October 1, 2013, Plaintiff sent a letter to Defendant
“to request the additional documents covered by EO
12600 process.” Id. at 12. Plaintiff stated
that he would like the information contained in
“Exemption 4-All, Exemption 5-All, Exception [sic]
7/c.” Id. On December 5, 2013, Defendant
responded to Plaintiff's request by stating that
Exemptions 5 and 7(c) are not part of the EO 12600 process
and providing documents that had been withheld pursuant to
Exemption 4. Id. at 13. Because portions of these
documents were still redacted under Exemption 7(c), Defendant
informed Plaintiff that his request was denied in part.
Therefore, Defendant again explained that Plaintiff could
file an appeal with the Solicitor of Labor within 90 days and
set forth the requirements for the appeal process,
i.e., stating in writing the grounds for the appeal,
addressing the appeal to the Solicitor of Labor in
Washington, D.C., and clearly marking “Freedom of
Information Act Appeal” on the envelope and letter of
appeal. Id. at 14.
December 15, 2013, Plaintiff sent a letter to Defendant
titled “Freedom of Information Act Appeal.” (Doc.
1-3 at 1). Plaintiff stated he was appealing Defendant's
decision to redact and withhold information in four
documents, which Plaintiff titled Exhibits A-D and attached
to his letter. Plaintiff stated that portions of Exhibits A,
C, and D should not have been redacted, and that the two
lists described in Exhibit B should have been provided to
him. Id. at 1-2; (Doc. 35-6 at 1-6). Defendant
responded to Plaintiff's appeal on January 14, 2014,
stating it had received the appeal and it was being
processed. (Doc. 1-3 at 3).
states that in January 2015 he hired an attorney to inquire
as to the status of his appeal. (Doc. 34 at 2, ¶ 6). On
May 5, 2016, Plaintiff filed his Complaint in state court
and, on June 1, 2016, Defendant removed the case to this
Court. (Doc. 1). On September 6, 2017, the Court dismissed
Defendant Saavedra as an improper party, and found that
Plaintiff had exhausted his administrative remedies as to
Defendant U.S. Department of Labor Wage and Hour Division.
(Docs. 24, 26). The Court also granted NMDWS's motion for
summary judgment and dismissed NMDWS from the case. (Docs.
September 5, 2018, Defendant sent Plaintiff seven pages of
documents in response to Plaintiff's FOIA appeal. (Doc.
34 at 2, ¶ 10); (Doc. 35 at 3, ¶ 12); (Doc. 35-8 at
1-7). These documents were identical to Exhibits A-D of
Plaintiff's December 15, 2013 letter, but with fewer
redactions, and included the two lists described in Exhibit
B. Compare (Doc. 35-6 at 1-6) with (Doc.
35-8 at 1-7). In addition, on September 14, 2018, Defendant
sent Plaintiff a Vaughn index, which explained the
documents were redacted pursuant to Exemption 6. (Doc. 35-9
Motion for Summary Judgment, Plaintiff contends Defendant
improperly withheld 18 documents in response to his FOIA
request. (Doc. 34 at 4). He challenges the exemptions
Defendant applied to the 18 documents, and states that
Defendant failed to identify whether the seven pages it
produced on September 5, 2018, were part of the 18 documents
that were initially withheld. Id. at 4-10. Plaintiff
asks the Court to “either review the 18 documents to
see if any of the FOIA exemptions apply, or order
their production.” Id. at 10. In addition,
Plaintiff asks the Court to award him attorney's fees and
costs. Id. at 10-11.
Response/Cross Motion for Summary Judgment, Defendant states
that the only remaining issue in this case is whether
Plaintiff is entitled to unredacted copies of the seven pages
Defendant produced on September 5, 2018. (Doc. 35 at 3-4, 7).
Defendant contends these are the only documents that were the
subject of Plaintiff's FOIA appeal, and that Plaintiff
did not appeal any of the remaining documents that were
withheld in response to his FOIA request. Id.
Defendant also argues it properly and lawfully redacted the
seven pages pursuant to Exemption 6, and that Plaintiff's
request for attorney's fees is premature. Id. at
Reply/Response to Defendant's Cross Motion for Summary
Judgment, Plaintiff states that he appealed Defendant's
decision to withhold 18 documents and redact 33 pages in
response to his FOIA request. (Doc. 40 at 1). Plaintiff
argues Defendant has failed to meet its burden under FOIA to
demonstrate it properly withheld information, and that the
seven pages Defendant produced on September 5, 2018, do not
fully address Plaintiff's FOIA appeal. Id. at
1-3. In Defendant's Reply to its Cross Motion for Summary
Judgment, Defendant reiterates that the only documents at
issue are Exhibits A-D attached to Plaintiff's FOIA
appeal, and that Defendant properly redacted those documents
pursuant to Exemption 6. (Doc. 43 at 6-9).
judgment is appropriate “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). A fact is material if it could have an
effect on the outcome of the suit. Smothers v. Solvay
Chems., Inc., 740 F.3d 530, 538 (10th Cir. 2014). A
dispute over a material fact is genuine if the evidence
presented could allow a rational jury to find in favor of the
non-moving party. EEOC v. Horizon/CMS Healthcare
Corp., 220 F.3d 1184, 1190 (10th Cir. 2000). In
considering a summary judgment motion, the court views the
facts in the light most favorable to the non-moving party and
draws all reasonable inferences in favor of that party.
Shero v. City of Grove, 510 F.3d 1196, 1200 (10th
seeking summary judgment bears the initial burden of showing
that there is no genuine dispute as to a material fact.
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670
(10th Cir. 1998). When that party does not have the burden of
persuasion at trial, it can satisfy its burden at the summary
judgment stage by identifying a lack of evidence on an
essential element of the claim. Id. at 671. If the
movant satisfies its burden, the burden then shifts to the
party opposing summary judgment cannot rest on the pleadings
but must go beyond the pleadings and “designate
specific facts so as to make a showing sufficient to
establish the existence of an element essential to that
party's case in order to survive summary judgment.”
Sealock v. Colo., 218 F.3d 1205, 1209 (10th Cir.
2000). The non-movant must set forth specific facts from
which a rational trier of fact could find in the
non-movant's favor, identifying those facts in
affidavits, deposition transcripts, or incorporated exhibits.
Adler, 144 F.3d at 671. The party cannot rest on
ignorance of the facts, speculation, or unsubstantiated
conclusory allegations. Harvey Barnett, Inc. v.
Shidler, 338 F.3d 1125, 1136 (10th Cir. 2003). “A
fact is ‘disputed' in a summary-judgment proceeding
only if there is contrary evidence or other sufficient reason
to disbelieve it; a simple denial, much less an assertion of
ignorance, does not suffice.” Grynberg v. Total
S.A., 538 F.3d 1336, 1345 (10th Cir. 2008).
Freedom of Information Act
enacted FOIA as a means “to open agency action to the
light of public scrutiny.” Dep't of the Air
Force v. Rose, 425 U.S. 352, 361 (1976). As the United
States Supreme Court has “consistently recognized, the
basic objective of the Act is disclosure.” Chrysler
Corp. v. Brown, 441 U.S. 281, 290 (1979). At the same
time, the statute represents a “balance [of] the
public's interest in governmental transparency against
legitimate governmental and private interests that could be
harmed by release of certain types of information.”
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