United States District Court, D. Arizona
Joshua S. Barkley, Plaintiff,
United States Department of Labor, et al., Defendants.
K. Duncan United States Magistrate Judge
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.
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)
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.
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)
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)
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
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 ...