Int'l Union of Elevator Constructors Local 2 v. U.S. Dep't of Labor

191 L.R.R.M. (BNA) 2807

804 F.Supp.2d 828

INTERNATIONAL UNION OF ELEVATOR CONSTRUCTORS LOCAL 2, and Frank Christensen, Business Manager, Plaintiffs,

v.U.S. DEPARTMENT OF LABOR, Defendant.

No. 10 C 1935.

United States District Court, N.D. Illinois, Eastern Division.

Aug. 17, 2011.

Travis J. Ketterman, Gregory Nathan Freerksen, Whitfield McGann & Ketterman, Chicago, IL, for Plaintiffs.

Harpreet Kaur Chahal, United States Attorney's Office, Chicago, IL, for Defendant.

MEMORANDUM OPINION AND ORDER

RUBEN CASTILLO, District Judge.

The International Union of Elevator Constructors Local 2 and Frank Christensen (collectively, the “Union”) bring this action under the Freedom of Information Act (“FOIA” or “the Act”), 5 U.S.C. § 552 et seq., seeking documents from the United States Department of Labor (“Department of Labor” or “Department”). (R. 1, Compl. ¶ 1.) The Department of Labor contends that the documents the Union seeks fall under FOIA Exemption 7(A), which exempts from disclosure records and information compiled for law enforcement purposes if production “could reasonably be expected to interfere with enforcement proceedings.” 5 U.S.C. § 552(b)(7)(A). Presently before the Court are the parties' cross-motions for summary judgment, and the Union's motion for disclosure of the Department of Labor's in camera submissions. (R. 39, DOL's Mot.; R. 53, Union's Mot.; R. 69, Union's Mot. for Disclosure.) For the reasons stated below, the Department of Labor's motion for summary judgment is granted, and the Union's motions are denied.

BACKGROUND ¹

I. The Union's FOIA request and initial suit

On July 18, 2008, the Union mailed a FOIA request to the director of the Office of Labor–Management Standards (“OLMS”).² OLMS is the agency authorized to administer and enforce provisions of the Labor–Management Reporting and Disclosure Act of 1959 (“LMRDA”), 29 U.S.C. § 401 et seq. (R. 51, Union's 56.1 Resp. ¶ 1.) Its responsibilities include promoting labor union and labor-management transparency through reporting and disclosure requirements; conducting civil and criminal investigations regarding possible violations of the LMRDA; and promoting union democracy and financial integrity in unions through standards for union officer elections and union trusteeships, and safeguards for union assets. ( Id.)

In its request, the Union sought 15 categories of documents related to the Union and civil investigations of the Union conducted by OLMS from the period of January 1, 2005, to the present. (R. 58, DOL's 56.1 Resp. ¶¶ 1–2.) Specifically, the Union requested the following records:

a. Any and all documentation, ESI, and tangible materials that are related to the O'Hare Airport investigation performed by Barbara Moriarty, Stephen J, Bubulka, and/or any other investigator(s), and the complaint that initiated this investigation;

b. any and all documentation, ESI, and tangible materials that are related to the investigation concerning the Marquette Restaurant, including the names of the investigator(s), regarding I.U.E.C., Local 2, and/or its Officers;

c. any and all documentation, ESI, and tangible materials concerning the AON Building investigation, regarding I.U.E.C. Local 2 and/or its Officers;

d. any and all documentation, ESI, and tangible materials pertaining to John H. Thompson and his Management status;

e. any and all documentation, ESI, and tangible materials gathered for the Thompson Consulting and/or Thompson Inspection website;

f. any and all documentation, ESI, and tangible materials gathered regarding telephone conversations had between the Department of Labor and the law firm of Querry & Harrow involving I.U.E.C., Local 2, and/or its Officers;

g. any and all documentation, ESI, and tangible materials concerning telephone conversations with the Department of Labor and Kevin Caplis and/or April Walkup;

h. any and all documentation, ESI, and tangible materials regarding Steve Hynes, John H. Sena, and Kurt MacGregor, concerning the Department of Labor investigation about removed or removing officers of Local 2;

i. any and all documentation, ESI, and tangible materials concerning the Local 2 Elections that took place in November 2004 and January 2005; ³

j. any and all documentation, ESI, and tangible materials concerning John H. Thompson wherein he, or the Department of Labor, had knowledge of the identity of who the Sons of Liberty consisted of;

k. any and all documentation, ESI, and tangible materials Barbara Moriarty gave to John H. Thompson or any of his family members; i.e. prior knowledge of subpoenas;

l. any and all documentation, ESI, and tangible materials of the investigation of Local 2's November 2004 and January 2005 elections wherein paperwork was allegedly taken off of a vehicle;

m. any and all documentation, ESI, and tangible materials concerning Dennis Hastert's involvement with any of the above;

n. any and all documentation, ESI, and tangible materials regarding the Postmaster General's investigation into the complaint of physical threats that was filed by Frank J. Christensen against Harold Thurmer and John H. Thompson; and

o. the return of any and all documentation, ESI, and tangible materials concerning the Local 2 Elections that took place in November 2004 and January 2005.

(R. 51, Union's 56.1 Resp. ¶ 2.)

On July 23, 2008, OLMS sent a letter to Christensen acknowledging receipt of the FOIA request and promised that a “substantive response” would be forthcoming. (R. 58, DOL's 56.1 Resp. ¶ 4.) OLMS failed to provide a response, however, and the Union filed suit, No. 09 C 0326, in this Court on January 19, 2009. ( Id. ¶¶ 5–7.) On February 18, 2009, the Department of Labor responded to the Union's FOIA request, refusing to disclose any documents and asserting Exemption 7(A). ( Id. ¶¶ 8–10.)

The parties subsequently reached a settlement. ( Id. ¶ 11.) The Department of Labor agreed to provide all publicly available responsive documents to the Union, and the suit was dismissed without prejudice on September 29, 2009. ( Id. ¶¶ 11–12.) Pursuant to the settlement agreement, the Department of Labor provided a supplemental FOIA response and released 190 pages of publicly available documents to the Union on October 2, 2009. ( Id. ¶ 14; R. 51, Union's 56.1 Resp. ¶ 13.) The Department of Labor withheld the remaining responsive documents, consisting of nearly 4,000 pages, and reasserted FOIA Exemption 7(A). ( Id. ¶ 15.)

II. The current lawsuit

On October 16, 2009, the Union appealed the denial of the remaining documents to the Department of Labor. ( Id. ¶ 18.) After the Department of Labor did not respond to their FOIA appeal within 20 days, the Union filed a motion to reinstate the prior suit in this Court on January 13, 2010. ( Id. ¶ 19.) On January 25, 2010, the Department of Labor denied the Union's appeal. ( Id. ¶ 20.) This denial constituted final agency action for purposes of judicial review. The Union filed the complaint in this case on March 26, 2010, objecting to the Department of Labor's assertion of Exemption 7(A) and seeking the release of the withheld documents. (R. 1, Compl.) On May 19, 2010, the Union filed a motion requesting an order compelling the Department of Labor to prepare a Vaughn index, which the Court denied. (R. 34, Mem. Opinion and Order.)

On January 18, 2011, the Department of Labor moved for summary judgment. (R. 39, DOL's Mot.). In its supporting memorandum, the Department of Labor maintains that the remaining responsive documents are properly withheld under FOIA Exemption 7(A) because the Union and Christensen are the targets of a pending criminal investigation and releasing the requested documents is reasonably expected to interfere with that investigation. (R. 40, DOL's Mem. at 1.) To support the withholding of these documents, the Department of Labor initially provided three sworn declarations: two from Mary J. Kebisek (“Kebisek”), (R. 41, DOL's Facts, Ex. 1 (“Kebisek Decl.”); R. 57, DOL's Reply, Ex. 1 (“Second Kebisek Decl.”)), and one from William Thompson, II (“Thompson”), (R. 42, DOL's Facts, Ex. 2 (“Thompson Decl.”)). Kebisek has been the District Director of OLMS since 2004 and supervises investigations conducted by OLMS into alleged violations of LMRDA. (R. 41, Kebisek Decl. ¶ 1.) Thompson is the Associate Solicitor for Management and Administrative Legal Services, Officer of the Solicitor, at the Department of Labor, and supervises the FOIA Appeals Unit and the FOIA Litigation Unit for the Department of Labor. (R. 42, Thompson Decl. ¶ 1.)

According to Kebisek's declarations, OLMS is currently conducting an investigation into possible criminal violations of the LMRDA by the Union and its officers, employees, and employers over the past seven years. (R. 41, Kebisek Decl. ¶ 12.) Kebisek maintains that the documents responsive to the Union's FOIA request relate to this pending OLMS investigation. ( Id.) The approximately 3,900 pages withheld from the Union are comprised of approximately 750 documents, which fall in the following categories:

a. Correspondence: 320 documents;

b. Witness and informant statements: 178 documents;

c. Internal memoranda: 153 documents;

d. Union documents and reports: 87 documents;

e. Court filings: 12 documents; and

f. Newspaper articles: 1 document.

(R. 57, Second Kebisek Decl. ¶ 6.) Kebisek states that records also include closed OLMS investigations of the Union and its officers, employees, and employers pertaining to alleged civil violations of the LMRDA from 2004 through 2006. ( Id. ¶ 11.)

The Union filed a cross-motion for summary judgment on March 11, 2011, (R. 48, Union's Mot.), and a corrected motion on March 14, 2011. (R. 53, Union's Mot.) In its motion, the Union claimed that the Department of Labor had failed to demonstrate that the withheld documents fall within Exemption 7(A) and that an in camera review of the documents was warranted. (R. 53, Union's Mot.)

On June 6, 2011, after reviewing the Department of Labor's submissions in...