The opinion of the court was delivered by: David G. Larimer United States District Judge
Plaintiff, the law firm of Dolin, Thomas & Solomon, LLP ("Dolin Thomas"), proceeding pro se, commenced this action against the United States Department of Labor ("DOL"), alleging claims under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. Dolin Thomas alleges that the DOL wrongfully withheld certain documents requested by Dolin Thomas pursuant to FOIA.
Dolin Thomas has moved, and the DOL has cross moved, for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons that follow, the parties' motions are each granted in part and denied in part.
On December 11, 2007, plaintiff mailed three FOIA requests to the DOL, seeking access to agency records relating to DOL Wage and Hour Division Opinion Letters FLSA 2007-1, FLSA 2007-2, and FLSA 2007-4, as well as copies of the opinion letters themselves. Specifically, plaintiff requested photocopies of all documents received by DOL requesting its opinion on the issues covered by the letter, copies of all documents accompanying those requests and the persons or entities who made the requests, and, inter alia, all underlying documentation and communications concerning the analysis of the pertinent issues and the drafting of the opinion letters themselves.
The DOL did not timely respond to the plaintiff's requests, and plaintiff commenced this action on April 22, 2008, seeking to compel a response. On August 11, 2008 and November 14, 2008, DOL responded to plaintiff's request, producing documents and an index listing documents that had been withheld as subject to the attorney-client or deliberative process privileges. Plaintiff moved for summary judgment, alleging that the production was inadequate, and on April 15, 2009, in response to an internal policy change favoring more expansive production of potentially privileged documents, the DOL produced an additional 1,044 pages, some with redactions, of previously withheld material. Additional disclosures were made on September 4, 2009. Collectively, the DOL's Office of the Solicitor and Wage and Hour Division have now produced a total of 1,624 documents, and withheld 435, some of which are duplicative.
Generally, the DOL cited both the deliberative process privilege and the attorney-client privilege as the basis for withholding: (1) "cover letter" e-mails and documents which attached drafts of the opinion letters, and communications concerning the status of the plaintiff's FOIA requests; (2) drafts of the opinion letters at issue; and (3) communications containing orders, advice and interpretations governing internal decisions within the DOL ("secret law"). The DOL also withheld, under the deliberative process privilege only: (4) communications relating to the opinion letter drafting process itself; and (5) copies of prior opinion letters and underlying research documents.
The Freedom of Information Act's purpose is to "promote honest and open government and to assure the existence of an informed citizenry... to hold the governors accountable to the governed." Grand Cent. P'ship, Inc. v. Cuomo, 166 F.3d 473, 478 (2d Cir. 1999). "[D]isclosure, not secrecy, is the dominant objective" of FOIA. Dep't of Interior v. Klamath, 532 U.S. 1, 8 (2001).
An agency's decision to claim one or more of the FOIA exemptions to disclosure must be substantially justified. A mere assertion of privilege is insufficient: rather, the withholding agency must provide a detailed index setting forth the basis for a claimed exemption. See Vaughn v. Rosen, 484 F.2d 820, 827-828 (D.C. Cir. 1973). The index may not consist solely of "conclusory and generalized allegations of exemptions," but must set forth a "relatively detailed analysis in manageable segments." Id., 484 F.2d 820 at 826.
Summary judgment is appropriate to decide FOIA disputes where, as here, there is no genuine dispute as to the material facts. See Adamowicz v. Internal Revenue Serv., 552 F. Supp. 2d 355, 360 (S.D.N.Y. 2008). In order to withstand summary judgment, the agency must demonstrate, "that each document that falls within the class requested either has been produced, is unidentifiable, or is wholly exempt from the Act's inspection requirements." Ruotolo v. Dep't of Justice, 53 F.3d 4, 9 (2d Cir. 1995), quoting Nat'l Cable Television Ass'n, Inc. v. FCC, 479 F.2d 183, 186 (D.C. Cir. 1973).
I. Deliberative Process Privilege
Plaintiff argues that the DOL's reliance on the deliberative process privilege to withhold documents relating to the drafting of opinion letters in general, and to the letters which were the subject of plaintiff's FOIA requests in particular, is inappropriate and insufficient.
The deliberative process exemption applies to documents that are "predecisional" and "deliberative." Nat'l Council of La Raza v. Dep't of Justice, 411 F.3d 350, 356 (2d Cir. 2005). A predecisional document is one that makes recommendations for agency findings, is generated prior to the agency's adoption of a particular policy, and is "prepared in order to assist an agency decision-maker in arriving at his decision." Id. A document may, however, lose its predecisional status if it is later adopted, formally or informally, as the agency position on the issue or is publicly referred to by the agency. See Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 868 (D.C. Cir. 1980). Moreover, the document must reflect the agency's deliberative process, and "reflect the give-and-take of the consultative process," either by assessing the merits of a particular viewpoint, or by spelling out the process used by the agency to formulate a decision. Id., 617 F.2d 854 at 867. The exemption exists "to assure that subordinates within an agency will feel free to provide the decision-maker with their uninhibited opinions and recommendations without fear of later being subject to public ridicule or ...