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Barkley v. United States Department of Labor

United States District Court, D. Arizona

June 9, 2017

Joshua S. Barkley, Plaintiff,
v.
United States Department of Labor, et al., Defendants.

          ORDER

          David K. Duncan United States Magistrate Judge

         This case arises from Plaintiff's action alleging that Defendant U.S. Department of Labor (“DOL” or “Defendant”) violated the Freedom of Information Act (“FOIA”) in its responses to Plaintiff's multiple FOIA requests. (Doc. 1 at 2) Pending is Defendant's Motion for Summary Judgment (Doc. 34), to which Plaintiff filed a Response (Doc. 37). Defendant then filed a Reply (Doc. 38). The Court has federal question jurisdiction and, upon the parties' consent to Magistrate Judge jurisdiction, pursuant to 28 U.S.C. § 636(c). (Doc. 27) For the reasons set forth below, Defendant's Motion will be granted and this action terminated.

         I. BACKGROUND

         Plaintiff states that he was a Professional Medical Transport (“PMT”) employee, a previous officer of the Independent Certified Emergency Professionals (“ICEP”) union organization, and a candidate in an election of officers in the ICEP that was supervised by Defendant. (Doc. 1 at 2) In 2014, Defendant commenced an investigation of a complaint that the ICEP had failed to conduct an election of officers required by federal law (Doc. 35 at 1), which resulted in the court-ordered election of ICEP officers in which Plaintiff was a candidate. (Id. at 2) The Secretary of Labor filed a complaint in this Court, alleging that ICEP violated 29 U.S.C. § 481(b) and 29 C.F.R. § 452.23 by failing to hold an election of officers at a minimum of once every three years. (Perez v. Independent Certified Emergency Professionals, CV-14-01723-PHX-NVW, Doc. 1 at 1-2) The Court entered default judgment in that matter on December 3, 2014 and ordered ICEP to conduct an election of officers, to be supervised by DOL. (Id., Doc. 40)

         As alleged in the current action, between July 2014 and April 2016, Plaintiff made seven FOIA requests to DOL for documents pertaining to the DOL investigation and the ICEP election. (Doc. 35-1 at 14-77) In response to Plaintiff's first FOIA request dated July 4, 2014 (Id. at 15-16), DOL advised him that he could file an administrative appeal within 90 days of the date of denial. (Id. at 45-46) The date of DOL's denial notice was September 5, 2014. (Id. at 45) Plaintiff's second FOIA request was made on December 16, 2014, and DOL's notice of denial was dated December 30, 2014 (Id. at 50-51). Plaintiff's third FOIA request was dated December 17, 2014 (Id. at 36-37), and the denial notice was dated December 30, 2014 (Id. at 53-54). Plaintiff submitted his fourth FOIA request on May 6, 2015 (Id. at 29-30), which DOL denied on May 19, 2014 (Id. at 56-57). Plaintiff's fifth FOIA request was submitted to DOL on August 25, 2015 (Id. at 32-36), and DOL denied it on August 28, 2015 (Id. at 59-60). Plaintiff submitted his sixth FOIA request on October 30, 2015 (Id. at 38-40), after which DOL denied it on November 6, 2015 (Id. at 62-63). Plaintiff made his seventh FOIA request on April 1, 2016. (Id. at 65-77) This request was partially denied, as is discussed in greater detail below.

         The Office of Labor-Management Standards (“OLMS”) within DOL advised Plaintiff that while researching his requests, it determined that the records he sought “are records compiled for OLMS enforcement and investigative proceedings that are currently pending.” (Id. at 45, 50, 53, 56, 59, 62) Respecting each of Plaintiff's first six requests, the DOL denials were based on Exemption 7(A) of the FOIA (5 U.S.C. § 552(b)(7)(A)), that DOL advised Plaintiff “authorizes the withholding of records or information compiled for law enforcement purposes, to the extent that production could reasonably be expected to interfere with enforcement proceedings[, ]” and which DOL noted had been construed by courts to include “criminal and civil actions, as well as regulatory proceedings.” (Id. at 45, 50, 53, 56, 59, 62)

         After the DOL denied Plaintiff's sixth request on November 6, 2015, the DOL investigation concluded, thus removing the supplication of the Exemption 7(A) bar. (Doc. 35 at 7) On April 5, 2016, DOL notified Plaintiff it had received his seventh request, and that the request was “complex, ” which would require about 60 days to process. (Doc. 35-1 at 75) DOL made an initial release of documents responsive to the seventh request on August 30, 2016 and notified Plaintiff he could appeal within 90 days of this initial release. (Id. at 90-92) On September 28, 2016, the DOL made a second release of documents and again notified Plaintiff of his right to an administrative appeal within 90 days of the date on the FOIA response document. (Id. at 99-100) DOL asserts that it received no additional FOIA requests from Plaintiff after April 1, 2016. (Doc. 35 at 12)

         Plaintiff sent DOL an email dated February 29, 2016, stating that he was appealing DOL handling of a number of FOIA requests. (Doc. 35-1 at 103) Defendant DOL's Statement of Facts avers that:

63. On February 29, 2016, Plaintiff submitted an email indicating he was appealing the handling of several FOIA requests, and attached copies of requests that were purportedly dated July 24, 2015; May 4, 2015 (identical to Request 4, received by email dated May 6, 2015); November 15, 2015 (identical to one of the requests included in Request 7); and November 19, 2015 (identical to the amended Request 6, except omitting bullet point 7).
64. On March 30, 2016, the DOL's Appeals Unit, Office of the Solicitor General, sent Plaintiff a letter acknowledging receipt of his appeal.
65. Pursuant to Department regulations, a party must file an appeal within 90 days of the date of the action being appealed. In addition, the appeal must include the assigned request number, copies of the initial request, and the agency's response to that request.
66. Mr. Barkley's submission was deficient in that it was not submitted within 90 days of any agency response, did not include the assigned request number for each request, and did not contain copies of the agency's response to those requests. Furthermore, the letters Mr. Barkley attached to his email did not correspond to the requests he originally sent to the agency. For instance, he attached a July 24, 2015 letter that appears to correspond to only a portion of Request 5, which he actually submitted by email on August 25, 2015; he also attached letters dated November 15 and 19, 2015, which were not submitted to the agency on those dates, but appear to be portions of Requests 6 and 7.
67. On September 9, 2016, the DOL issued its final response to Plaintiff's appeal. In its response, the agency noted that it had made an initial disclosure to Plaintiff's request on August 30, 2016, and that it anticipated making the second disclosure by September 30, 2016.
68. The agency notified Plaintiff that his appeal was therefore being closed as moot, and informed him that he could file a new appeal with respect to any additional responses if he chose to do so. Plaintiff submitted ...

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