Wilkinson v . Chao CV-03-046-JD 11/24/03 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Scott S . Wilkinson and James Mitchell v. Civil N o . 03-46-JD Opinion N o .

Elaine Chao1

O R D E R

Scott S . Wilkinson and James Mitchell, proceeding pro s e , have sued United States Secretary of Labor Elaine Chao under the Freedom of Information Act,

(“FOIA”), to compel the disclosure of certain documents concerning the denial of overtime pay to Mitchell, an employee of the Labor Department’s Occupational Safety and Health Administration branch (“OSHA”). OSHA has resisted the disclosure of the documents on the grounds that they are protected by the deliberative process privilege. See

(b)(5). On the basis of this privilege, Secretary Chao moves to dismiss the complaint for lack of subject matter jurisdiction or for summary judgment on the plaintiffs’ claim (document n o . 8 ) . The plaintiffs object and cross-move for summary judgment (document nos. 20-21). Secretary Chao objects

1 This action is brought against the defendant in her official capacity as Secretary, United States Department of Labor. to the plaintiffs’ cross-motion (document n o . 2 3 ) .

Standard of Review

Secretary Chao has moved to dismiss this action on the

ground that this court lacks subject matter jurisdiction because

OSHA has not unlawfully withheld records. See Kissinger v .

Reporters Comm. for Freedom of the Press,

(1980); Shaftmaster Fishing Co v . United States,

(D.N.H. 1993). Ordinarily, where evidentiary materials

are submitted on a motion to dismiss for lack of subject matter

jurisdiction, the court is permitted to weigh that evidence to

discern whether a factual predicate for jurisdiction exists.

O’Toole v . Arlington Trust Co.,

4 , 98 (1st Cir. 1982).

Where the jurisdictional issues raised by a motion to

dismiss are intertwined with the merits of the plaintiff’s claim,

however, a court must treat the Rule 12(b)(1) motion as a motion for summary judgment. See Gonzalez v . United States,

(1st Cir. 2002); McLellan Highway Corp. v . United

States,

, 5-6 (D. Mass. 2000). Here, because

FOIA serves as the source of both this court’s subject matter

jurisdiction and the plaintiffs’ cause of action, the

jurisdictional inquiry is intertwined with the merits of their

claim. See United States ex rel. Fine v . M-K Ferguson Co.,

(10th Cir. 1996); Baizer v . Dep’t of Air Force,

2

(N.D. Cal. 1995). Accordingly, the

court must analyze Secretary Chao’s motion under Rule 5 6 .

On a motion for summary judgment, the moving party has the

burden of showing the absence of any genuine issue of material

fact. See Celotex Corp. v . Catrett,

1 7 , 323 (1986).

If the movant does s o , the court must then determine whether the non-moving party has demonstrated a triable issue. Anderson v .

Liberty Lobby, Inc.,

4 2 , 256 (1986). In performing

this analysis, the court must view the entire record in the light

most favorable to the non-movant, “‘indulging all reasonable

inferences in that party’s favor.’” Mesnick v . Gen. Elec. Co.,

(1st Cir. 1991) (quoting Griggs-Ryan v . Smith,

1 2 , 115 (1st Cir. 1990)). Still, “[o]n issues where

the nonmovant bears the ultimate burden of proof, he must present

definite, competent evidence to rebut the motion.”

; see also Invest Almaz v . Temple-Inland Forest Prods.

Corp.,

7 , 76 (1st Cir. 2001). Where, as here, both

sides have moved for summary judgment, the court applies the

foregoing analysis to each motion in turn. See Wightman v .

Springfield Terminal Ry. Co.,

2 8 , 230 (1st Cir. 1996).

3 Background

Mitchell works as an industrial hygienist in OSHA’s Concord,

New Hampshire, area office. Pursuant to the collective

bargaining agreement between his union and the Department of

Labor, Mitchell filed a grievance with OSHA’s regional

administrator on October 8 , 1999, asserting that OSHA had

violated the agreement and the Fair Labor Standards Act (“FLSA”)

by failing to pay him at the overtime rate for fourteen and one-

half hours of work which he performed between September 2 2 , 1999,

and October 6, 1999. The grievance was denied on October 2 1 ,

1999, by OSHA’s regional administrator. Within sixty days of

that date, Mitchell requested arbitration of his claim as provided by the agreement.2

Wilkinson, a federal wage and hour investigator assigned to

work as a union representative, served as Mitchell’s union

advocate at the arbitration proceedings, which began on November

1 4 , 2001, and concluded on September 1 4 , 2002, after a number of

lengthy continuances. The issue in the arbitration was whether

Mitchell did not qualify for overtime pay under the FLSA because

he was working in a “professional capacity” as defined by

(a)(1) and its implementing regulations. The

2 The specific date on which Mitchell requested arbitration does not appear in the record.

4 arbitrator denied Mitchell’s grievance in a written decision

issued on October 1 0 , 2001. While the arbitration was pending, OSHA asked its program manager and senior technical expert concerning position classification and position management, Thomas Wayne Ponton, to review the duties Mitchell performed during the period for which he claimed unpaid overtime. In his declaration submitted in

support of Secretary Chao’s motion for summary judgment, Ponton

describes his assignment as a “final OSHA determination regarding

whether certain work performed . . . by . . . Mitchell was

‘professional’ work, and thus exempt from the [FLSA] overtime

provisions . . . .” First Ponton Decl. ¶ 4 . Secretary Chao has

also submitted another declaration from Ponton, executed on

October 1 5 , 2003 and made in opposition to the plaintiffs’ summary judgment motion. In i t , Ponton states

I was aware at the time I conducted the audit that M r . Mitchell’s request for overtime had been denied, that he had grieved that denial, and that there was a pending arbitration on the grievance. However, I was reviewing the issue to make a final determination for [OSHA], which I did.

Second Ponton Decl. ¶ 5 .

In undertaking his assignment, Ponton created one of the

documents at issue in this litigation, a January 2 3 , 2002, e-mail

message to David May, the area director of OSHA’s Concord office.

5 Ponton describes the e-mail as “a preliminary list of general questions” generated to obtain May’s “interpretation and opinion” of the nature of Mitchell’s work. First Ponton Decl. ¶ 6. Ponton also explains that he intended to use May’s response as part of the “analysis and evaluation process in determining the FLSA status of the work performed . . . .”

¶ 7 .

In response to his e-mail, Ponton received the “19 pages of documentation” which constitute the second document at issue in this case.

¶ 1 0 . Miriam McD. Miller, an attorney at the Department of Labor with knowledge of this document, describes it as an “internal memorandum of case studies” prepared by May and George Kilens, the team leader for OSHA’s Concord office who supervised Mitchell. Miller Decl. ¶ 4 . Both May and Kilens relate that they reviewed files of certain inspections conducted by Mitchell and “prepared written material about the type of work performed.” May Decl. ¶ 7 ; Kilens Decl. ¶ 6.

According to both May and Kilens, “[t]he written material was not simply a recitation of the facts” of Mitchell’s role in those inspections, but reflected their opinions about “the degree of discretion and judgment” associated with his work on them. May Decl. ¶ 8 ; Kilens Decl. ¶ 7 . Kilens explains that the written material he provided to Ponton “did not reach any conclusions about the FLSA . . . . it was not a final decision.”

6 Kilens Decl. ¶ 9. May does not specifically make such a claim, although he describes the information he provided as “preliminary in nature.” May Decl. ¶ 9. Both May and Kilens state that Ponton followed up on the document with additional questions. For his part, Ponton avers that the information contained in the document “was used primarily in an advisory manner in which [he] considered, accepted, discarded and adapted the information in reaching [his] final conclusions.” First Ponton Decl. ¶ 1 0 . Ponton also relates that “the opinions and assessments contained in that written material [received from May and Kilens] played a minuscule role in reaching [his] final determination.”

On April 2 6 , 2002, Ponton generated a document entitled “Fair Labor Standards Act Determination” in which he stated that he “was asked to review . . . Mitchell’s position in order to determine the . . . exemption status of work performed during a specified period of time.” The document expressed Ponton’s conclusion that “it is determined that M r . Mitchell’s work is exempt under the professional exemption criteria.” Ponton describes this document as “the final FLSA determination . . . .” First Ponton Decl. ¶ 9. Miller describes it as “the final audit report . . . .” Miller Decl. ¶ 7 . This document was previously given to Wilkinson and therefore is not directly at issue here.

Peter Beil, the regional labor relations officer who

7 represented the Department of Labor in the arbitration, describes the events leading up to Ponton’s assignment as follows:

As part of management’s case, I had always reserved the right to have a Human Resources Specialist testify. At some point, an arrangement was made to have Thomas Ponton, a Human Relations Specialist for OSHA, conduct an audit of the specific work performed by M r . Mitchell that was at issue in the case.

Beil Decl. ¶ 5 . Beil relates that he discussed Ponton’s

“forthcoming audit” with Wilkinson, telling him that if “Ponton

decided, after the audit, that the work at issue was non-exempt,

[Beil] would likely settle the case for OSHA.”

. Beil

also suggested to Wilkinson that the grievance should be

withdrawn “if the decision was to the contrary . . . .”

After the “audit was completed” and Ponton “issued his

decision,” however, Wilkinson “indicated . . . that withdrawal

was not likely to occur.”

¶ 7 . “As a result,” according to

Beil, he requested that Ponton be allowed to testify on OSHA’s

behalf at the arbitration.

¶ 8 . Beil states that Wilkinson

acquiesced, but requested that Ponton “disclose his notes of his

interviews with M r . Mitchell and management officials.”

Beil explains that he did not understand the request to include

“information gathered in anticipation of interviewing the

employee and management.”

Beil “agreed to provide such

interview notes or memory joggers” which existed.

8 Wilkinson has a different recollection of how Ponton came to

testify as a witness at the arbitration. Wilkinson describes an

April 1 9 , 2002, teleconference with the arbitrator and Beil which

“resulted in Mr. Beil substituting” Ponton for another OSHA

employee who appeared on the witness list Biel had previously

submitted to the arbitrator. Wilkinson Decl. ¶ 8 . According to

Wilkinson, Beil “agreed to share all of M r . Ponton’s work papers,

including interview statements, that were related to his as yet

uncompleted ‘FLSA Exemption Determination’ of Mr. Mitchell.”

Beil later informed Wilkinson, however, that Ponton had

discarded the notes of his interviews after incorporating their

substance into the April 2 6 , 2002 document.3 Ponton subsequently

testified at the arbitration. With respect to this testimony, he

relates merely that “at one point, [he] was asked to testify as

to the determination [he] had made” regarding Mitchell’s

eligibility for overtime. Second Ponton Decl. ¶ 6. On May 2 8 , 2002, Wilkinson requested that Biel produce “all

related interviews taken by M r . Ponton, as well as notes, work

3 Ponton states that Beil “at some point” asked him for his “notes,” which Ponton understood to mean his notes from his interviews with management and Mitchell, rather than “copies of every document [Ponton] had used to develop [his] opinion and decision, or that [he] had used to get ready for the interviews.” Second Ponton Decl. ¶ 6. Ponton explained that he had discarded the notes after incorporating their substance into his report, as he normally does.

9 papers, . . . and correspondence in any related files . . . ” by

way of discovery in the arbitration. Biel Decl. ¶ 1 0 . In his written response, Beil denied that he had ever promised to produce “any materials that may exist in M r . Ponton’s working files” and refused to turn over the information because Wilkinson had “failed to establish a particularized need” for it. 4 Wilkinson subsequently wrote to the Department of Labor on June 7 , 2002, requesting “the entire file” regarding Ponton’s April 2 6 , 2002, report under FOIA. The Department responded in a July 8 , 2002, letter enclosing certain materials, primarily written OSHA regulations and standards. The letter also stated that “[d]ocuments that are internal to management may be denied pursuant to Exemption 5 of FOIA,”

(b)(5), but did not identify any such documents which were responsive to Wilkinson’s request or even explicitly state that they existed.

Wilkinson later submitted a written appeal to the Department

4 Under the Federal Service Labor-Management Relations statute, a federal employer must provide a union representative upon request with data “which is reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining.”

(b)(4)(B). Courts have interpreted this provision to require a union to show a “particularized need” for the data before the employer must produce i t . See, e.g., Am. Federation of Gov’t Employees Local 2343 v . FLRA,

5 , 87 (D.C. Cir. 1998). OSHA’s decision that Wilkinson failed to make this showing with respect to the documents in question has not been challenged in this lawsuit.

10 of Labor, arguing that the he was entitled to an index of the documents being withheld, and that, in any event, exemption 5 did not apply because Ponton’s report was prepared after OSHA had already decided that Mitchell was not entitled to overtime pay. The Department denied this appeal in a letter of September 3 0 , 2002, which identified the documents being withheld as Ponton’s January 2 3 , 2002, e-mail to May and “19 pages of case summaries prepared by M r . May for M r . Ponton.” This lawsuit followed.

Discussion

“The policy underlying [FOIA] . . . ‘is . . . one of broad

disclosure, and the government must supply any information

requested by an individual unless it determines that a specific

exemption, narrowly construed, applies.’” Maine v . Dep’t of

Interior,

0 , 65 (1st Cir. 2002) (quoting Church of

Scientology Int’l v . Dep’t of Justice,

2 4 , 228 (1st Cir.

1994)). Secretary Chao moves for summary judgment on the ground

that the documents withheld are exempt from disclosure under FOIA

by virtue of one its exemptions,

(b)(5). This

provision, often referred to as “exemption 5,” allows an agency

to withhold “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.”

11 Exemption 5 shields documents normally immune from civil

discovery, including those protected by the attorney-client,

attorney work product, or deliberative process privileges. See

NLRB v . Sears, Roebuck, & Co.,

3 2 , 149-55 (1975).

Courts are to construe this exemption “as narrowly ‘as is

consistent with efficient Government operation.’” Providence Journal C o . v . Dep’t of Army,

5 2 , 557 (1st Cir. 1992)

(quoting EPA v . Mink,

3 , 89 (1973)). Indeed,

“‘disclosure, not secrecy, is the dominant objective of [FOIA].’”

Dep’t of Interior v . Klamath Water Users Protective Ass’n,

, 8 (2001) (quoting Dep’t of Air Force v . Rose,

(1976)).

OSHA invoked the deliberative process privilege under

exemption 5 as the basis for withholding the documents at issue

in this case. Secretary Chao defends the decision on the same ground. She does not claim any other privilege with respect to

the documents. The court conducts de novo review of an agency’s

decision to withhold materials under FOIA.

(a)(4)(B); Dep’t of Justice v . Reporters Comm. for Freedom of

the Press,

(1989). Pursuant to section

552(a)(4)(B), an agency bears the burden of proving that the

documents withheld fall within one of the statutory exemptions

from disclosure. See Church of Scientology,

.

12 To establish that the deliberative process shields the

information withheld by OSHA from disclosure under FOIA,

Secretary Chao must prove that the documents are both

“predecisional” and “deliberative.” Providence Journal,

; see also Maine v . Norton,

3 , 66 (D. M e .

2002). The plaintiffs do not dispute that the January 2 3 , 2003, e-mail and the nineteen-page responsive document constitute

“intra-agency memorandums or letters” within the meaning of

section 552(b)(5). They contend, however, that the deliberative

process privilege does not extend to the documents because they

are neither predecisional nor deliberative. They also argue that

Biel waived any privilege attached to the documents by agreeing

to produce all of Ponton’s “work papers” relating to the audit

and that the documents contain segregable factual information

susceptible to disclosure notwithstanding any privilege. “A document will be considered predecisional if the agency

can ( i ) point to the specific agency decision to which the

document correlates, (ii) establish that its author prepared the

document for the purpose of assisting the agency official charged

with making the agency decision, and (iii) verify that the

document precedes, in temporal sequence, the decision to which it

relates.” Providence Journal,

(internal

quotation marks and citations omitted); see also Conservation Law

13 Found., Inc. v . Dep’t of Air Force, N o . 92-156, (D.N.H. Oct. 4 , 1993), available at http://www.nhd.uscourts.gov. “Not surprisingly, it has become nearly axiomatic in jurisprudence under [FOIA] that, to assert the ‘deliberative process’ privilege, the document must have actually been written prior to the time the decision was made.” N . Dartmouth Props., Inc. v . Dep’t of Hous. & Urban Dev.,

5 , 68 (D. Mass. 1997); see also Renegotiation Bd. v . Grumman Aircraft Eng’g Corp.,

6 8 , 184 (1975); Town of Norfolk v . Army Corps of Eng’rs,

(1st Cir. 1992).

Secretary Chao argues that Ponton’s audit represents the operative decision for purposes of determining whether the e-mail message and responsive memorandum are predecisional. The plaintiffs, however, contend that OSHA’s refusal to pay Mitchell at the overtime rate for the hours in question or its subsequent denial of his grievance of that determination actually represents the operative decision. They therefore argue that the

deliberative process privilege does not extend to the documents Ponton used to prepare the audit, which the plaintiffs

characterize as an effort to defend OSHA’s previous decision in the arbitration, rather than an agency decision in its own right.

In support of her position, Secretary Chao relies heavily on the fact that Ponton repeatedly refers to his task as a

14 “determination” in his declarations submitted in connection with

the pending motions. Ponton does not, however, tie this

“determination” to any subsequent action taken by OSHA with

respect to Mitchell’s compensation. In fact, Ponton offers no

explanation at all as to what OSHA did, or intended to d o , as a

result of his “determination.” Even the most general information

as to who asked him to make the “determination,” when he was

asked to do i t , and, most importantly, why he was asked to do i t ,

is conspicuously absent from Ponton’s declarations.5 Ponton’s

declarations therefore fail to establish any agency decision

which followed the creation of the documents at issue here.6

Secretary Chao also argues that the decision reached by

Ponton was whether to settle Mitchell’s overtime claim, which at

that point was already pending before the arbitrator. As the

evidentiary support for this proposition, she relies on Beil’s

testimony, which she characterizes as showing that OSHA “was

5 Indeed, Ponton’s first declaration does not even acknowledge that the arbitration proceedings were already underway when he made his “determination.” 6 Secretary Chao also relies on May’s statement that he prepared the memorandum at issue in this litigation “to assist M r . Ponton in reaching his final determination . . . .” May Decl. ¶ 7 . Like Ponton, May does not explain the purpose of this “final determination.” May’s declaration thus does not establish that the document he created was predecisional, because he does not offer any evidence as to what decision actually followed the document temporally.

15 willing to settle M r . Mitchell’s grievance if M r . Ponton concluded that the work was non-exempt.” That is not what Beil says in his declaration, however. Beil actually states that he “informed M r . Wilkinson that, if M r . Ponton decided, after the audit, that the work at issue was non-exempt, I would likely settle the case for OSHA.” Beil Decl. ¶ 6 (emphasis added). Contrary to Secretary Chao’s argument, this testimony establishes that the decision to settle Mitchell’s claim belonged to Beil, not Ponton, and that Ponton’s “determination” merely affected the likelihood of a settlement, rather than constituting OSHA’s decision on that issue.7 Like Ponton, Beil also fails to explain why, when, or by whom Ponton was asked to make his “determination.” Beil’s declaration does not provide any evidence to support Secretary Chao’s position that the documents sought here preceded a decision by OSHA.8

7 Beil’s testimony on this point is also hearsay, because he is offering his out-of-court statement to Wilkinson as proof of the truth of what was said, i.e., that OSHA would likely settle Mitchell’s claim if its merit was confirmed by Ponton’s audit. The plaintiffs have not moved to strike or otherwise objected to Beil’s declaration on evidentiary grounds, however. C f . Perez v . Volvo Car Corp.,

, 314 (1st Cir. 2002). 8 Biel and the other affiants who have submitted testimony in support of Secretary Chao’s position also occasionally refer to Ponton’s assignment as an “audit.” See Second Ponton Decl. ¶ 3 ; Miller Decl. ¶ 7 ; Biel Decl. ¶ 7 . The Supreme Court has suggested that documents “containing recommendations which never

16 Although an agency’s declarations are often enough to win it

summary judgment in a FOIA action, they “‘will not suffice if the

agency’s claims are conclusory . . . or if they are too vague or

sweeping.’” Cooper Cameron Corp. v . Dep’t of Labor,

(5th Cir. 2002) (quoting Hayden v . Nat’l Sec. Agency/

Cent. Sec. Serv.,

(D.C. Cir. 1979)); see also

Hunt v . CIA,

(9th Cir. 1992) (“Affidavits

must describe the justifications for nondisclosure with

reasonably specific detail.”) The declarations submitted with

Secretary Chao’s summary judgment papers simply characterize

Ponton’s audit as a “final determination,” without explaining

what the determination decided or what OSHA did or planned to do

as a result. Accordingly, they “fail to carry [Secretary’s

Chao’s] burden of proof [that section 5 applies] because at no

place do they define, explain, or limit the ‘deliberative

ripen into agency decisions” are nevertheless exempt from disclosure if generated as part of an agency’s “continuing process of examining [its] policies . . . .” Sears,

. Secretary Chao does not argue that Ponton’s “audit” was part of any such “continuing process” so as to excuse her from identifying an actual decision which resulted from the process. In any event, merely stating that documents were created as part of an audit is insufficient to invoke the deliberative process privilege. See Coastal States Gas Corp. v . Dep’t of Energy,

5 4 , 868 (D.C. Cir. 1980) (“Characterizing . . . documents as ‘predecisional’ merely because they play into an ongoing audit process would be a serious warping of the meaning of the word”).

17 process’ which [she] seek[s] to protect.” Vaughn v . Rosen,

(D.C. Cir. 1975); see also Bay Area Lawyers Alliance for Nuclear Arms Control v . Dep’t of State,

(N.D. Cal. 1992). Summary judgment in Secretary Chao’s favor is therefore inappropriate.

Beyond failing to identify an agency decision which followed the creation of the documents at issue, the declarations filed by Secretary Chao actually support the plaintiffs’ argument that Ponton’s report was created solely to assist OSHA in defending against Mitchell’s claim in the arbitration. Ponton confirms that prior OSHA decisions on Mitchell’s overtime claim preceded what he seeks to characterize as the “final determination” on the issue. See Second Ponton Aff. ¶ 5 . Moreover, neither Ponton nor Beil claims that OSHA regularly undertakes such a “final determination” in the middle of a pending arbitration or otherwise explains why the agency would commit its resources to arbitrating a wage decision which it did not even view as final in the first place, as Secretary Chao argues was the case here.

To the contrary, Beil’s declaration suggests that Ponton’s involvement with OSHA’s handling of Mitchell’s claim was a direct result of Beil’s desire to use Ponton as a witness in the arbitration proceeding. Immediately after noting that he had “always reserved the right to have a Human Resources Specialist

18 testify” as part of OSHA’s case, Beil states that “[a]t some

point, an arrangement was made to have Thomas Ponton, a Human

Relations Specialist for OSHA, conduct an audit of the specific

work performed by M r . Mitchell that was at issue in the case.”

Beil Aff. ¶ 5 . In the absence of any evidence to the contrary,

the only reasonable inference to draw from this testimony is that

Ponton was asked to conduct the audit as part of his preparation

to provide testimony on OSHA’s behalf before the arbitrator.9

Based on this record, there can be no dispute that Ponton’s

e-mail and the response of May and Kilens were not predecisional,

i.e., they did not predate an agency decision on Mitchell’s

eligibility for overtime pay. Instead, they were created after

that decision had been reached, as part of OSHA’s subsequent

effort to defend the decision before the arbitrator. “Of course,

once the decisionmaker has reached a conclusion and the process

is over, the post-decisional views of subordinates about that decision are not within the scope of the [deliberative process]

privilege.” United States v . Hooker Chems. & Plastics Co.,

, 43 (W.D.N.Y. 1988); see also Massachusetts v . Dep’t of

9 Secretary Chao and the affiants, through the use of vague language such as “at some point” and “an arrangement was made,” obfuscate the facts surrounding how Ponton came to make his “determination” of the merits of Mitchell’s overtime claim. Such obfuscation does little to advance the merits of the Secretary’s position in this case.

19 Health & Human Servs.,

5 , 44 (D. Mass. 1989)

(exemption 5 inapplicable to materials discussing prior agency

decisions); Ditlow v . Volpe,

(D.D.C.

1973). Accordingly, the documents at issue here do not fall

within the protections of exemption 5.10

“When an agency seeks to protect material which, even on the

agency’s version of the facts, falls outside of the proffered

exemption, summary judgment in favor of the FOIA plaintiff is

appropriate.” Petroleum Info. Corp. v . Dep’t of Interior,

(D.C. Cir. 1992). Stripped of their conclusory

assertions that the documents sought in this case were created to

assist in Ponton’s “final determination,” the declarations

submitted by Secretary Chao’s own witnesses demonstrate that

Ponton was charged with defending a previous OSHA decision,

rather than making one in his own right. Secretary Chao has not

submitted any other evidence which creates a factual dispute as to this conclusion. Because the documents are not predecisional,

exemption 5 does not protect them from disclosure under FOIA.

See Providence Journal, 981 F.2d at 558. As a result, the court

does not need to reach the plaintiffs’ other arguments. Their

cross-motion for summary judgment is granted.

10 Secretary Chao has not claimed that the documents would be immune from civil discovery and thus protected by exemption 5 on any basis other than the deliberative process privilege. The court’s exemption 5 analysis is therefore limited to that ground.

20 Conclusion For the foregoing reasons, Secretary Chao’s motion to dismiss o r , in the alternative, for summary judgment (document n o . 8 ) is DENIED. The plaintiffs’ cross-motion for summary judgment (document n o . 21) is GRANTED. The plaintiffs’ motion for a hearing on the merits of plaintiffs’ motions to amend the complaint and theory of liability (document n o . 18) is DENIED as moot. Secretary Chao shall make the January 2 3 , 2003 e-mail and the responsive memorandum available to the plaintiffs in accordance with

(a)(3) and 552(a)(4)(A) by December, 5 , 2003. The clerk of court shall enter judgment accordingly and close the case.

SO ORDERED.

Joseph A . DiClerico, J r . District Judge November 2 4 , 2003

cc: James R. Mitchell, pro se Scott S . Wilkinson, pro se Gretchen Leah Witt, Esquire

21