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April 6, 2005
Mimi Hull, President
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.
Attachment:    (DOL declaration and Qwest statements - 27 pages)
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