April 6, 2005
Mimi Hull, President
ASSOCIATION OF U S WEST RETIREES
Board Members and general membership
This is a follow-up to my February 8, 2005,
report regarding the Hull v. Department of Labor (Freedom
of Information Act - FOIA) lawsuit filed in the Denver Federal
Court.
Today, the United States Attorney representing the
Department of Labor (DOL) sent me the DOL's sworn statement setting
forth the reasons the DOL has withheld approximately 1,200 to 1,500
papers pertaining to the "ongoing" investigation, which papers the
DOL considers exempt under FOIA and will not be released, at this
time. For instance, the DOL is withholding 24 witness statements,
The DOL states emphatically that "public access to
documents revealing the status of the investigation could trigger
public interference with the investigation, and therefore hamper its
progress."
Also, during last August 2004, the DOL asked Qwest to state
its position whether certain materials contained with the DOL's
investigatory file were considered proprietary company information
and the DOL received feed back in late September 2004. Therefore,
some information is being withheld - such as bank account numbers
and the identity of certain person's names and Social Security
numbers, and Qwest's payments to investment advisors. The United
States Attorney sent me copies of the position statements gathered
from Qwest.
So that you may have a better understanding, I have attached
hereto the DOL's March 30, 2005, statement - "Declaration of Miriam
McD. Miller", together with Qwest's position statements about
certain "confidential commercial information" Qwest sent to the DOL
in September 2004.
To date, the DOL has not explained why it took the lawsuit
to get the DOL to turn over the other 4,200 pages. And, the DOL
does not state when this "ongoing" investigation that began in April
2001 will be concluded.
Several months ago, we proposed an agreement to have the
remaining papers released as soon as the DOL's "ongoing"
investigation is concluded, and we asked for payment of attorney's
fees - only $2,500 as a compromise - since the lawsuit was clearly a
catalyst to get the DOL to turn over 4,200 pages of information and
provide a requested Vaughn Index. We contend that Ms. Hull has
substantially prevailed and, pursuant to FOIA, the government should
pay some amount of reasonable attorney's fees.
However, the DOL will not agree to pay for any of the
litigation costs and attorney's fees and the DOL seeks dismissal of
the pending FOIA case. FOIA provides that the court "may assess
against the United States reasonable attorney fees and other
litigation costs reasonably incurred in any case . . . in which the
complainant has substantially prevailed." 5 U.S.C. §
552(a)(4)(E).
We will respond to the DOL's request for dismissal of the
case and ask for an order requiring the DOL make payment
of reasonable attorney's fees and costs. Also, we will ask the
federal court retain jurisdiction of this case so as to ensure there
is further compliance with the FOIA request once the "ongoing"
investigation is concluded.
I will send you an update about what happens.
Curtis
303-770-0440
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