December 7, 2005
Mimi Hull, President
ASSOCIATION OF U S WEST RETIREES (AUSWR)
AUSWR Board Members and General members
This is a follow-up to my August 18, 2005 update report regarding the Hull v. Department of Labor (Freedom of Information Act - FOIA) lawsuit filed in the Denver Federal Court. The update on August 18 reported we filed some legal papers on July 29, again challenging the DOL's position and asking Denver Federal Chief Judge Babcock to inspect those papers and force the DOL to release those papers. Also the update on August 18 reported that in early August, the United States Attorney defending the DOL's actions told us "the DOL just found some more papers and documents that the DOL has decided to release to us." The U.S. Attorney told us he was informed that the papers were found, all of a sudden, on the hard drive of the computer that the DOL investigator had been using. So, he told us that, eventually, the DOL will send us those "just found" papers.
But, that never happened! Those newly discovered papers were never given to either Ms. Hull or me. We never heard anything more from either the DOL or the United States Attorney.
On December 2, 2005, Chief Judge Babcock entered a ruling deciding the central dispute between the parties, i.e., whether the DOL met its burden contending that certain documents can be withheld from Ms. Hull and AUSWR pursuant to certain Exemptions applicable to the Freedom of Information Act. In short, Chief Judge Babcock ruled that the DOL had to turn over certain withheld documents to the Court so that Judge Babcock could himself examine the papers and then decide whether FOIA required the papers be disclosed to Ms. Hull and AUSWR. You can read Chief Judge Babcock's December 2, 2005 Order at this URL: http://www.uswestretiree.org/Order120205.pdf It is a very well reasoned and colorful 22 page ruling.
Chief Judge Babcock ruled that the DOL had not met its burden to justify withholding eleven documents under FOIA Exemption 5 and three Service Contracts under FOIA Exemption 4. He further explained that he accepted Ms. Hull's argument that she was entitled to in camera review of the withheld documents because of the DOL's bad faith throughout the litigation in response to her FOIA request. He said, "Hull argues, cogently, that a citizen should not have to file a lawsuit to make a federal agency comply with the law.". . . "Hull's extensive list of agency conduct suggests a pattern of obstructing Hull's FOIA request and indicates that the DOL was not behaving in the spirit of FOIA, providing information in an open fashion to enable citizens to hold their government accountable."
Of course, all of the withheld papers concern the DOL's 'investigation' of the Qwest Pension Plan. The next step will be for the DOL to give withheld papers to Chief Judge Babcock and upon his review, he will decide whether those papers should be delivered to Ms. Hull and the AUSWR organization. I will let you what develops next.
Meanwhile, to learn more, you should visit the "Legal Developments" page at the AUSWR website http://www.uswestretiree.org/legal2.htm and under the heading "Freedom of Information Act - Hull v. DOL" view all of the updates, the Complaint and other legal papers that have been posted.