                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA

 UTAHAMERICAN ENERGY, INC.,                    )
                                              )
                      Plaintiff,               )
                                               ) Civil Case No. 08-1791 (RJL)
                      v.                       )
                                              )
 U.S. DEPARTMENT OF LABOR,                     )
                                               )
                      Defendant.              )
                                              )

                              MEMORA~tM OPINION
                             (March 3[,2010) [# 12 and13]

       Plaintiff, UtahAmerican Energy, Inc., brings this action against the United States

Department of Labor ("DOL") under the Freedom ofInformation Act ("FOIA"), 5 U.S.C.

§ 552 et seq. (2006) seeking records that the DOL compiled in the course of an

investigation. The case is now before this Court on the parties' cross-motions for

summary judgment. After careful review of the motions, applicable law, and the entire

record herein, the Court has concluded that the DOL has complied with some, but not all,

of its FOIA obligations in this case. Accordingly, both motions are GRANTED in part

and DENIED in part.

                                    BACKGROUND

       This case arises out of the tragic collapse of the Crandall Canyon Mine in Price,

Utah, on August 6, 2007. Six miners were killed that day. (CompI.    ~   7.) Ten days later,

while rescue operations were still ongoing, a second accident occurred at the mine which

caused the death of three rescuers. (Jd.) Naturally, these two events became the subject
of multiple investigations by various government entities. First, the accident was

investigated by the Mining Safety & Health Administration ("MSHA"), the agency

located within the DOL which is authorized by statute to investigate matters of mine

safety.) 30 U.S.C. § 813(a). In addition, as a form of self-evaluation, the DOL set up an

Independent Review Team ("IRT") to investigate the adequacy of the MSHA

investigation. (See Declaration of George M. Fesak ("Fesak Decl.") ~ 20.) Next, the two

accidents became the subject of an investigation and hearings held by Congressional

committees in both the House and the Senate. (Pl.'s Cross-Mot. [# 13] at 5.) Finally,

both the DOL and the Committee of Education and Labor in the House of

Representatives issued criminal referrals on August 27 and April 29, 2008, respectively,

to the Department of Justice concerning potentially false and misleading statements made

before and after the accidents. (Fesak Decl. Ex. J, Declaration of Brett L. Tolman,

United States Attorney for the District of Utah ("Tolman Decl.")       ~~   3, 9.) These subjects

are still being investigated by the United States Attorney for the District of Utah. (Id.)

       In this case, UtahAmerican seeks documents accumulated in the course of the IRT

investigation. 2 On August 14,2008, UtahAmerican's counsel sent a FOIA request to


IMSHA, as a matter of practice, investigates every instance where there is a mining fatality.
(Declaration of George M. Fesak ("Fesak Dec!.") ~ 20.) The Fesak Declaration is appended to
Defendant's Motion for Summary Judgment [# 12].

2 UtahAmerican also filed an earlier FOIA case against MSHA on October 17,2008, in which it
seeks documents compiled by the MSHA investigation team. See UtahAmerican Energy, Inc. v.
MSHA, Civ. No. 08-1780 (D.D.C.) (RWR). For reasons unknown to the Court, plaintiff declined
to notice these two cases as related even though they arise from the same factual events and
share common issues of fact and law, and thus appear to fall within the definition of "related"
cases under the Local Rules of Civil Procedure. See LCvR 40.S(a)(3)(ii)-(iii). Plaintiff failed to
do so even though Rule 40.S(b) requires that the "parties shall notify the Clerk [of Court] of the



                                                2
DOL for documents "connect[ed] with the investigation of the Independent Review

Team." (Fesak Decl. Ex. A at 1.) Specifically, UtahAmerican requested the following:

               Any and all transcripts in MSHA' s actual or constructive
               possession of each and every interview conducted by the IRT,
               including, but not limited to: [1] transcripts of the interviews
               of each and every individual listed in Appendix A ("List of
               Persons Interview") to the report entitled "Independent
               Review of MSHA's Actions at Crandall Canyon Mine" dated
               July 21, 2008; [2] transcripts of interviews of each and every
               individual interviewed by the IRT who worked at the
               Crandall Canyon Mine between January 1, 1995 and July 21,
               2008; and [3] transcripts of interviews of each and every
               individual interviewed by the IRT who was a family member
               of any of the men fatally injured in either of the accidents that
               occurred at the Crandall Canyon Mine on August 6, 2007 and
               August 16, 2007.

(Jd. at 1-2.) In the event interview transcripts did not exist, UtahAmerican requested

"copies of any electronic recordings of such interviews, regardless of format or medium."

(Jd. at 2.)

        On August 18, 2008, UtahAmerican supplemented its FOIA request in a second

letter to the DOL seeking "copies of all documents, records, and exhibits" referenced in

the IRT's July 21,2008 published report. (Fesak Decl. Ex. B at 1.) Also requested in

this letter were "copies of all documents upon which the IRT relied for its factual

findings." (Jd.)



existence of related cases." LCvR 40.5(b) (emphasis added). Furthermore, plaintiffs obligation
to notify the Court of these related cases was ongoing throughout the case. See LCvR
40.5(b)(2)-(3). Notwithstanding such a failure, UtahAmerican, amazingly, invites this Court to
study subtle differences between the litigation positions it took in these two separate cases
because it believes those differences may impact the outcome of this case. (See, e.g., PI.' s Cross-
Mot. at 23, 37-40; PI's Reply [# 19] at 10-20.) Judicial efficiency alone would militate against
that curious request.


                                                 3
       UtahAmerican filed suit on October 20, 2008, claiming that the DOL never

responded to, or even confirmed, receipt of its two FOIA requests. (CompI.      ~~   14, 16.)

Roughly two weeks later, the DOL issued its first response to plaintiff, releasing 14

publicly available documents referenced in the published IRT report. (Fesak Decl. Ex. C

at 1-2.) In this November 6,2008 response, the DOL also directed UtahAmerican to the

MSHA website, where other public documents referenced in the IRT report were

available for viewing, and advised that it was withholding any remaining responsive

material pursuant to FOIA exemptions 5 and 7(A).3 (/d.) On June 19,2009, the DOL

made a second production to UtahAmerican which contained two compact discs of

responsive materials. (Def. 's Mot. Ex. 1 at 2.) Additionally, the DOL claimed it had

withheld responsive material from the second production under FOIA exemptions 2, 5, 6,

7(A), and 7(C). (/d.)

       On July 15,2009, shortly after its second production, the DOL moved for

summary judgment on the grounds that it had fully complied with its obligations in

response to UtahAmerican's FOIA request. UtahAmerican opposes the DOL's motion

and has filed its own cross-motion for summary judgment. Both motions are now ripe for

decision.

                                   LEGAL STANDARD

       In response to a FOIA request, a government agency must conduct a

"reasonabl[ e]" search for responsive records. Baker & Hostetler LLP v. Dep 't of


3 FOIA exemptions are identified here by the subpart number they are assigned in the statute.
For instance, FOIA Exemption 1 is based on the exemption found in 5 U.S.c. § 552(b)(1), and so
on. See 5 U.S.C. § 552(b)(1)-(9).



                                              4
Commerce, 473 F.3d 312,318 (D.C. Cir. 2006). An agency defending against a FOIA

suit can prevail on summary judgment if it shows "beyond material doubt ... that it has

conducted a search reasonably calculated to uncover all relevant documents." Weisberg

v. Dep'to/Justice, 705 F.2d 1344,1351 (D.C. Cir. 1983). "The court applies a

'reasonableness' test to determine the 'adequacy' of a search methodology, consistent

with congressional intent tilting the scale in favor of disclosure." Campbell v. Dep 't 0/

Justice, 164 F.3d 20, 27 (D.C. Cir. 1998) (citation omitted). With respect to withheld

material, the Court "impose[ s] a substantial burden on an agency seeking to avoid

disclosure" based on a FOIA exemption. Vaughn v. Rosen, 484 F.2d 820, 828 (D.C. Cir.

1973).

         Importantly, the Court may award summary judgment solely on the basis of

information provided by the department or agency in affidavits or declarations. See

Military Audit Project v. Casey, 656 F.2d 724,738 (D.C. Cir. 1981). Under the law of

our Circuit, "in the absence of countervailing evidence or apparent inconsistency of

proof, affidavits that explain in reasonable detail the scope and method of the search

conducted by the agency will suffice to demonstrate compliance with the obligations

imposed by the FOIA." Perry v. Block, 684 F.2d 121,127 (D.C. Cir. 1982). When an

agency's affidavits demonstrate that "no material facts are in dispute," and if the agency

"demonstrates 'that each document that falls within the class requested either has been

produced ... or is wholly exempt from the Act's inspection requirements,'" then it is

entitled to summary judgment. Students Against Genocide v. Dep 't o/State, 257 F.3d

828,833 (D.C. Cir. 2001) (quoting Golandv. CIA, 607 F.2d 339,352 (D.C. Cir. 1978».



                                             5
                                          ANALYSIS

       The parties' cross-motions tum on whether DOL conducted an adequate search in

response to UtahAmerican's request and whether it has properly invoked certain FOIA

Exemptions. For the following reasons, the Court finds: (1) that DOL's search was

inadequate in two respects, and (2) that DOL improperly invoked FOIA Exemptions 5

and 7(A) to withhold transcripts of the IRT interviews and associated exhibits.

    1. Adequacy of DOL's Search

       There is little question that DOL made "a good faith effort to conduct a search" for

the records sought in UtahAmerican's first FOIA request, "using methods which can be

reasonably expected to produce the information requested." Baker & Hostetler LLP, 473

F.3d at 318 (quotation marks omitted). Indeed, that request could be and was satisfied by

reviewing an identifiable and discrete set of documents-specifically, transcripts of the

59 interviews the IRT conducted. (Fesak Decl. Ex. K, Declaration of Derek Baxter

("Baxter Decl.") ~ 3.) By taking issue with DOL's claim that much of the transcript

material is exempt and by questioning DOL's lengthy Vaughn index for such material,

UtahAmerican implicitly acknowledges that DOL in fact located and reviewed a

complete set of IRT transcripts. 4 (PI.' s Cross-Mot. at 22.) Thus, it is clear on this record

that the DOL performed an adequate search in response to UtahAmerican's first request.

       Whether the DOL performed an adequate search in response to UtahAmerican's

second request is, however, less clear. In essence, plaintiffs second request sought all


4 The DOL notes that while it maintained six duplicate sets oflRT transcripts, it naturally
reviewed just one set. (Fesak Decl. ~ 13.) UtahAmerican does not challenge the DOL's
exclusion of the five duplicative sets of interview transcripts.


                                                 6
documents that the IRT either referenced in its published report, or relied on to arrive at

its factual findings. (Fesak Decl. Ex. B at 1.) The DOL explains its search by first

describing the universe ofIRT documents. Over the course of the IRT's investigation, it

accumulated transcripts of the interviews it conducted itself along with a large volume of

material it received from the MSHA, including transcripts of the interviews conducted by

the MSHA's investigation team. (Fesak Decl.      ~   9-10.) All of this information was stored

on a secure segregated drive on the MSHA's computer system. (Jd.        ~   24.) According to

the DOL, its search was more than adequate because it "reviewed the complete electronic

file of documents compiled by the [IRT]." (Def. 's Opp'n to PI.'s Cross-Mot. [# 17]

("Def. 's Opp'n") Ex. 4, Declaration of Jennifer C. Honor ("Honor Decl.") ~ 3.)

       The DOL acknowledges, however, that it excluded broad categories of documents

from its review of the overarching IRT file. For instance, the DOL excluded from this

search any material which had already been processed in response the an earlier FOIA

request UtahAmerican made directly to the MSHA. (See Fesak Deci.            ~   10.)

UtahAmerican challenges this decision on the basis that it prevents the Court from

"assess[ing] the validity and extent of the claimed duplication." (PI.' s Cross-Mot. at 23.)

I disagree. The DOL is under no obligation to review the same set of documents twice.

Indeed, it is the law of our Circuit that "[t]he Freedom ofInformation Act does not

require that the agency from which documents are requested must release copies of those

documents when another agency possessing the same material has already done so."

Crooker v. Dep't o/State, 628 F.2d 9,10 (D.C. Cir. 1980).




                                             7
       While the DOL was reasonable to avoid duplicative processing, it was less prudent

when it unilaterally narrowed the scope of plaintiffs second request in another respect.

By redefining plaintiffs request for documents "relied on for [the IRT's] factual

findings" to mean documents "relied on for the final [IRT] report's significant or

principal factual findings," (Def.'s Opp'n Ex. 5, Declaration of Thomas A. Mascolino

("Mascolino Oecl.")   ~   6 (emphasis added)), the DOL failed to comply with its "duty to

construe [the] FOIA request liberally." Nation Magazine v. Us. Customs Serv., 71 F.3d

885, 890 (D.C. Cir. 1995). Stated simply, UtahAmerican's request was for documents

relied on for all of the IRT's factual findings, not just those that the DOL's FOIA

processors deemed to be "significant or principal." A narrowing interpretation of this

nature is unreasonable and, in this situation, resulted in an inadequate search of the

relevant documents requested.

       Additionally, the DOL was unreasonable when it excluded from review, or

withheld as non-responsive, certain materials which were referenced in the IRT report.

While the DOL tries to justify this decision on the grounds that some documents

referenced in the report were not relied on by the IRT for factual findings, this

explanation conflates two distinct components of UtahAmerican's second FOIA request.

(See Def.'s Opp'n at 10-14.) Plaintiff sought both the actual documents cited in the

report, as well as the information relied on by the IRT. Thus, for example, certain e-mail

messages which the DOL appears to concede were "alluded to" or "identified" in the IRT

report are responsive to UtahAmerican's request, even though the DOL claims they were

not relied on for the IRT's factual findings. (Oef.'s Opp'n at 13-14.) The same is true of



                                              8
the transcripts of the Senate Hearing on Crandall Canyon, (Def.'s Opp'n at 10-11), and

any press conference videos which the DOL has stored in its possession, (Def.'s Opp'n at

12-13). Thus the DOL's search was inadequate to the extent it overlooked these

materials, which must now be produced.

    2. FOIA Exemptions

       The DOL, of course, invoked a number ofFOIA Exemptions to redact or withhold

a large number of responsive documents from the IRT file. UtahAmerican's Cross-

Motion for Summary Judgment, however, only opposes the DOL's withholding under

Exemptions 7(A) and 5 for one category of documents: the IRT interview transcripts and

                       5
associated exhibits.       (See PI.'s Cross-Mot. at 26-37.) As such, the DOL is entitled to

                                                                           6
summary judgment on the remaining uncontested exemption claims.                As to


5 UtahAmerican also challenges the DOL's withholding of other information besides the IRT
interview materials based on its argument that this other information is not sufficiently described
in the DOL's Vaughn index. (PI.'s Cross-Mot. at 37-40.) Much of this material, which the DOL
also withheld under Exemption 7(A), is characterized by plaintiff as the fruit ofMSHA's
accident investigation, which IRT subsequently came to possess and review. (See id.; PI's Reply
in Support of its Cross-Mot. ("PI's Reply") [# 19] at 10-20.) As noted above, this material is
already the subject of an earlier FOIA suit plaintiff brought against MSHA, and thus will not be
considered by this Court. UtahAmerican's repeated insistence that these same MSHA
documents be analyzed in both cases is misguided, to say the least, particularly in light of
plaintiff s apparent belief that these two cases are not related under the Local Rules of Civil
Procedure. Thus, for the reasons set forth in footnote 2, the Court declines to engage in such an
analysis.

6 UtahAmerican argues that the Court should not grant summary judgment on uncontested
exemptions, but rather find such issues moot. (PI.' s Reply at 2-3.) UtahAmerican' s attempt to
avoid a decision on the merits with respect to the uncontested exemptions is plainly wrong.
Since UtahAmerican initiated this lawsuit, the DOL has had an obligation to comply with the
FOIA request and a "substantial burden" to prove that any material it withheld falls within one of
FOIA's exemptions. See Vaughn, 484 F.2d at 828. With respect to the material withheld under
uncontested exemption claims, UtahAmerican's choice not to contest simply makes it more
likely for the Court to find the DOL has met its burden. Indeed, with no material facts in dispute
as to material withheld under uncontested exemptions, the Court finds that the DOL has met its



                                                 9
UtahAmerican's challenge to that one category ofIRT interview documents, however,

the Court grants plaintiff summary judgment because DOL inappropriately invoked

Exemptions 7(A) and 5. How so?

           a. Exemption 7(A)

        The DOL is withholding all IRT transcripts in their entirety on the basis of

Exemption 7(A), which permits agencies to withhold "records or information compiled

for law enforcement purposes ... to the extent that the production of such law

enforcement records or information ... could reasonably be expected to interfere with

enforcement proceedings." 5 U.S.C. § 552(b)(7)(A). "The principal purpose of

Exemption 7(A) is to prevent disclosures which might prematurely reveal the

government's cases in court, its evidence and strategies, or the nature, scope, direction,

and focus of its investigations, and thereby enable suspects to establish defenses or

fraudulent alibis or to destroy or alter evidence." Maydak v. Dep't of Justice, 218 F.3d

760, 762 (D.C. Cir. 2000). Bearing in mind that it is the DOL's "substantial burden" to

justify withholding these materials, Vaughn, 484 F.2d at 828, it is clear for the following

reasons that the DOL has not sufficiently demonstrated how releasing the IRT interview

materials "could reasonably be expected to cause some articulable harm" by interfering




burden and released all segregable information. It is therefore entitled to summary judgment on
this information. See Students Against Genocide, 257 F.3d at 833. UtahAmerican points to no
contrary legal authority. The cases it does cite stand only for the proposition that a FOIA case is
rendered moot "once all requested records are surrendered." Perry, 684 F.2d at 125 (D.C. Cir.
1982) (emphasis added). Clearly, that is not the case here, and UtahAmerican acknowledges as
much. (PI.' s Reply at 3 n.2.)




                                                 10
with ongoing enforcement proceedings. 7 See Kay v. FCC, 976 F. Supp. 23, 37 (D.D.C.

1997) (citing Bevis v. Dep'tojState, 801 F.2d 1386,1388 (D.C. Cir. 1986».

       In its effort to meet its burden, the DOL has proffered the declarations of the

United States Attorney for Utah and an attorney from the civil enforcement section at the

DOL. The U.S. Attorney states in his declaration that his office has an ongoing criminal

investigation into events surrounding the Crandall Canyon mine collapse, including

"whether any false statements were made to federal officials." (Tolman Decl.        ~   11.)

Further, the U.S. Attorney opines that releasing the interview transcripts would

undermine this part of the investigation because "those with any potential criminal

liability will know exactly what federal officials contend they said or did not say, or did

or did not do. This creates the possibility for those providing statements to compare their

stories and to collaborate to obtain a consistency of detail and memory that will not be

available if those statements are not released." (ld.) Similarly, The DOL civil

enforcement attorney contends that disclosing portions of the IRT transcripts would

"interfere with the ongoing civil enforcement activities [conducted by MSHA] by

identifYing the nature of the evidence that may be presented at trial and disclosing

MSHA's evaluation of said evidence." (Baxter Decl.        ~~   1,4,6.) He also states that

disclosing portions of other transcripts might "reveal names of potential MSHA

witnesses," which "would interfere with the ongoing enforcement activities by



7 Both parties spent a considerable amount of time briefing a threshold consideration of
Exemption 7(A): whether the information at issue was in fact "compiled for law enforcement
purposes." (Pl.'s Cross-Mot. at 27-29; Def.'s Opp'n 15-21.) The Court need not resolve this
question because of its conclusion with respect to the Exemption's "interference" requirement.


                                               11
identifying the nature of evidence that may be presented at trial and which MSHA and

other witnesses posses such evidence, at a time in which the mine operator has not

commenced discovery." (Id.    ~   10.) Finally, he contends that such disclosure "would

provide company employees with a chance to 'compare their stories' with the version of

events recounted by the MSHA employees." (Id.) For the following reasons, their

concerns, under the unique circumstances here, are hardly enough.

       First, with respect to their mutual fear that releasing the interview transcripts could

cause witness collusion or unfairly preview evidence to be presented at trial, the DOL is

less than convincing. After all, a report based on the IRT interviews was published

nearly two years ago. (PI.'s Cross-Mot. Ex. A.) In addition, the MSHA published a

separate accident investigation report based on its interviews, which included 20 of the

IRT witnesses, on July 24,2008. (PI.'s Cross-Mot. at 32; Fesak DecI.     ~   25.) To this day,

both reports have been available in full on the MSHA's website. 8 The explanations and

accounts of events described in these reports undoubtedly rely in significant part on the

information learned from the interviews conducted during the IRT and MSHA

investigations. Surely, the essence of what the witnesses had to say is-at a minimum-

reflected in these reports. Thus, while it is difficult to know exactly how much of these

witness accounts were not included in the final published reports, DOL's failure to

explain with greater particularity how that information could compromise those ongoing

investigations some two years later should not be rewarded by this Court.



8 Single Source Page for Genwal Resources Inc., Crandall Canyon Mine,
http://www.msha.gov/GenwaIlCrandallCanyon.asp (last visited Mar. 31, 2010).


                                             12
       Thus, the question presented here is whether oblique references to alleged possible

interference with ongoing investigations, under these circumstances, are sufficient to

warrant the agency's non-disclosure. I think not. Any false statement previously given

in the course of the MSHA or IRT investigation which is the subject ofa still-ongoing

investigation was made nearly two years ago. Since that time, any individual under

investigation has had more than ample opportunity to compare his story with the two

published reports or with other witnesses, either directly, or through their respective

counsel. And, of course, if a target of the investigation were to modify, or recant, in the

future any of his prior statements as a result of what he learns by reading these previously

undisclosed IRT interview materials, he will undoubtedly attract prosecutorial attention

either inside or out of the Grand Jury. Simply stated, I believe the risk of witness

collusion at this late date, after so much information has been made public, is exaggerated

and falls far short of the "substantial burden" that must be met to warrant the agency's

use of this Exemption. 9

       Next, DOL argues that disclosing the transcripts could result in witness

intimidation. (Def.' s Opp 'n at 25.) I disagree. The 59 witnesses' identities are already

known publicly, and fortunately, none have been intimidated to date. (PI. 's Cross-Mot. at

31-32.) Exemption 7(A) requires "predictive judgment" of future harm which can

"reasonably be expected." Ctr. for Nat 'I Sec. Studies v. Us. Dep 't ofJustice, 331 F.3d

9 The DOL appears to misunderstand which party carries the burden at this stage of proceedings.
It argues that UtahAmerican fails to "undermine[] DOL's determination that release of witness
transcripts that go beyond that disclosed in the investigative report would cause harm to the on-
going criminal investigation." (Def.'s Opp'n at 28.) But it is the DOL's "substantial burden" to
explain its determination, not UtahAmerican's burden to undermine it.




                                                13
918,928 (D.C. Cir. 2003) (emphasis added). Given that all of the witnesses' identities

are known and the agency's reports have been public for nearly two years, harm to any of

these witnesses cannot be reasonably expected in the future and is thus an insufficient

basis to rely on Exemption 7(A). JO

         In sum, the DOL's arguments and declarations are an insufficient reason to invoke

Exemption 7(A). "Exemption 7(A) does not authorize automatic or wholesale

withholding of records or information simply because the material is related to an

enforcement proceeding." North v. Walsh, 881 F.2d 1088, 1097 (D.C. Cir. 1989).

Because the DOL has not carried its "substantial burden" to demonstrate that releasing

the IRT interview transcripts and associated exhibits would likely interfere with an

ongoing investigation, it cannot now invoke Exemption 7(A) to withhold any of this IRT

material. 11




10 The DOL's final two arguments can be summarily rejected. First, the DOL is simply wrong to
suggest that the transcripts are exempt because producing them now, prior to any discovery
which might occur in subsequent proceedings, would interfere with ongoing investigations.
(Def.'s Opp'n at 27 (citing Supp. Baxter Decl. ~ 3-4).) "The fact that a defendant in an ongoing
criminal proceeding may obtain documents via FOIA that he could not procure through
discovery, or at least before he could obtain them through discovery, does not in and of itself
constitute interference with a law enforcement proceeding." North v. Walsh, 881 F.2d 1088,
1097 (D.C. Cir. 1989). Second, the DOL again misunderstands the burden allocation at this
stage of proceedings when it says "plaintiff cites to no evidence that release of the information at
issue would not reveal the inner workings of the U.S. Attorney's Office's criminal
investigation." (Def.'s Opp'n at 27.) It is the DOL's burden to demonstrate that releasing the
information would reveal details about the ongoing criminal investigation. Not surprisingly, the
DOL has failed to demonstrate how producing this discrete set of interview materials, which was
compiled by the IRT several years ago, could in any way divulge details about the investigation
now taken up by the U.S. Attorney's Office.

11   But see Adair v. MSHA, Civ. No. 08-1573 (D.D.C. Sep. 23,2009) (EGS).



                                                 14
           b. Exemption 5

       As a backstop to Exemption 7(A), the DOL argues that 12 of the 59 interview

transcripts are exempt in their entirety under Exemption 5. Exemption 5 protects from

disclosure "inter-agency or intra-agency memorandums or letters which would not be

available by law to a party other than an agency in litigation with the agency." 5 U.S.C. §

552(b)(5). This Exemption applies to information that would otherwise be subject to an

evidentiary privilege claim, and thus protected from disclosure, in the context of civil

discovery. Rockwell Int '/ Corp. v. Dep 't ofJustice, 235 F.3d 598, 601 (D.C. Cir. 2001).

The privilege claim the DOL seeks to invoke, however, is the so-called "Machin

privilege,,,12 which the Supreme Court has characterized as "protecting confidential

statements made to government air crash safety investigators." Dep't ofJustice v. Julian,

486 U.S. 1, 20 (1988). This case, of course, does not involve that type of investigation.

       Undeterred, the DOL nevertheless claims that the Machin privilege should be

treated by this Court as a broad "accident investigation privilege." (Def.'s Mot. at 6.)

Unfortunately, that phrase does not appear anywhere in the Machin opinion itself. In

fact, so far as I can tell, it does not appear in any federal case! The only cases in our

Circuit which have ever applied the Machin privilege have in fact involved air crash

investigations. See United States v. Weber Aircraft Corp., 465 U.S. 792 (1984); Badwhar

v. Dep 't ofAir Force, 829 F.2d 182 (D.C. Cir. 1987). Moreover, the two cases defendant

relies upon to support converting the Machin privilege to what it characterizes as the



12 The privilege derives its name from Machin v. Zuckert, 316 F.2d 336 (D.C. Cir. 1963).




                                               15
"accident investigation privilege"are, to say the least, of questionable persuasiveness. 13

(Def.'s Opp'n at 31-35.)

       The DOL appears to be asking this Court to expand the Machin privilege beyond

its characterization by the Supreme Court and its application in this jurisdiction under

circumstances where that issue is not even squarely before this Court. Because

exemptions in FOIA cases "must be narrowly construed" and the agency bears a

"substantial burden" to justify withholding information, Vaughn, 484 F.2d at 823, 828,

the DOL's failure to meet its burden here renders this Exemption unavailable.

                                       CONCLUSION

       For these reasons, both parties' cross-motions for summary judgment are

GRANTED in part and DENIED in part. Defendant is entitled to withhold information

under FOIA Exemptions 2, 6, and 7(C), but it must disclose the IRT interview material it

has withheld under Exemptions 5 and 7(A). Furthermore, defendant must complete an

adequate search in response to plaintiffs second FOIA request. An appropriate Order

will issue with this Memorandum Opinion.




                                                          RICHA        . EON
                                                          United States District Judge


13 Both cases are from district courts outside this jurisdiction. Ahearn v. Army Materials &
Mechs. Research Ctr., 583 F. Supp. 1123 (D. Mass. 1984); Cooney v. Sun Shipbuilding &
Drydock Co., 288 F. Supp. 708 (M.D. Pa. 1968). Furthermore, because the information at issue
in Ahearn was compiled by the military, its disclosure may have presented national security
concerns similar to those mentioned in Machin, 316 F.2d at 339, and Weber Aircraft, 465 U.S. at
797, but absent here. That leaves Cooney, which does not appear to have been applied or even
cited in this jurisdiction in the forty years since it was decided.



                                              16
