CNMI FOIA Lawsuit Against DOI and Ombudsman Closed

May 8, 2012

The witch hunt conducted by Attorneys Deanne Siemer and Teresa Kim against the U.S. Department of the Interior’s Ombudsman Pamela Brown Blackburn ended yesterday, May 7, 2012 when U.S. District Judge Reggie B. Walton ordered the defendant’s motion for summary judgment granted and the case closed.

In 2009 the Federal Ombudsman conducted a census of the aliens in the CNMI since the CNMI DOL refused to disclose the needed information or data. The intake forms that the aliens completed were used to organize the applicable information into spreadsheets. The original intake forms were shredded, as they served merely a data collection function.

The Fitial Administration filed a Freedom of Information Act request demanding the input sheets and other information that they knew no longer existed. In his opinion the judge stated:
As an initial matter, the Court will address the plaintiff’s argument that destruction of the records was intentional, and therefore, the defendant’s refusal to take any “remedial actions” precludes the defendant from being able to satisfy its burden of proof. Pl.’s Opp’n at 1. The Court agrees with the defendant that the plaintiff has offered no support for the suggestion that the defendant absolutely knew that a FOIA request would be made for production of the census forms, and thus the defendant had no duty to preserve the documents prior to the request that was made for their production. Defendant’s Reply in Support of Motion for Summary Judgment (“Def.’s Reply”) at 4. Therefore, although the plaintiff correctly points out that courts have occasionally sanctioned an agency for destroying responsive documents in FOIA litigation, in those cases the destruction occurred after the FOIA request was made.
The key word is after. Siemer and Kim sought to have the DOI sanctioned for destroying intake forms after the FOIA request was made.

The judge clarified this again later in his opinion:
The Court agrees with the defendant that the plaintiff has offered no support for the suggestion that the defendant absolutely knew that a FOIA request would be made for production of the census forms, and thus the defendant had no duty to preserve the documents prior to the request that was made for their production. Defendant’s Reply in Support of Motion for Summary Judgment (“Def.’s Reply”) at 4. Therefore, although the plaintiff correctly points out that courts have occasionally sanctioned an agency for destroying responsive documents in FOIA litigation, in those cases the destruction occurred after the FOIA request was made.
The judge pointed out that the FOIA request was made five months after the shredding of the intake forms. He stated:
Accordingly, the Court finds that the destruction of the actual census in-take forms was not done in bad faith and therefore does not merit any remedial action being ordered or preclude the Court from finding that the defendant conducted a reasonable search in the absence of such action. . .

. . . The defendant makes a persuasive argument that the plaintiff’s request was very narrow and specific, and that the defendant complied with that request. The Court therefore agrees with the defendant’s position that despite the “plaintiff’s contention that the destruction of the intake forms was an enormous change in circumstances that somehow alter[ed] the express terms of the FOIA request at issue,” thus requiring a “search beyond that ombudsman’s office specified in the request,” Def.’s Reply at 7 (internal quotation marks and citation omitted), “[i]t is . . . well established that an agency’s duty under [the] FOIA is limited by the FOIA request” and an “agency ‘is not obliged to look beyond the four corners of the request’ in searching for or releasing records,” ” Kowalczyk v. DOJ, 73 F.3d 386, (D.C. Cir. 1996); see also Def.’s Reply at 7.
I wonder how much this wasteful lawsuit cost the bankrupt CNMI Government.

See these posts for background information:

Additional Posts On Witch Hunt:
New Filings in Witch Hunt, June 4, 2011
CNMI Witch Hunts, May 19, 2011
US Response in Witch Hunt Lawsuit, May 7, 2011
CNMI Witch Hunt, May 4, 2011
Much Ado, April 20, 2011

Read Attorney Jane Mack's post, The Power Struggle Over Alien Labor, Day in Court, March 16, 2010

Some Unheard No More! Posts providing background on the CNMI Government's attacks on and conflicts with the DOI and Ombudsman Office:

2010 Labor Report: More Lies, February 9, 2011
Listen Up!, January 13, 2011
Transition to Federalization: The long and winding road, January 11, 2011
Unreal, November 23, 2011
Flawed "Exit Survey", September 1, 2010
Status For Foreign Contract Workers, July 9, 2010
Seriously? July 1, 2010
Provisions in PL 17-1 are Unconstitutional, June 27, 2010
More Jive, June 10, 2010
Post Rerun, June 7, 2010
Short Takes from the CNMI, June 5, 2010
USCIS Parole, June 3, 2010
Educational Campaign?, May 27, 2010
Indigenous People to Hold Rally, May 21, 2010
THE LIE, May 15, 2010
Public Hearing on Resolution 17-4, May 10, 2010
CNMI to Submit Own Report to Congress, May 5, 2010
Predictable Reaction to DOI Report, April 30, 2010
Report from Interior: Status Recommended for Long-term Foreign Workers, April 29, 2010
More Siemer Garbage, April 27, 2010
Status for Foreign Workers, April 26, 2010
Politics As Usual, CNMI Style, April 22, 2010
Letter to Deanne Siemer from Malou, March 27, 2010
CNMI vs US, March 25, 2010
The Ominous Omnibus Bill Now PL 17-1, March 22, 2010
More Whine, Rant, Spin, March 21, 2010
Forum at Kilili Beach, March 20, 2010
More on CNMI vs Feds Fight, March 18, 2010
More Undermining of Federal Authority, March 15, 2010
How Do you Get Something So Wrong? March 14, 2010
Statement From DOI Assistant Secretary Babauta, March 12, 2010
Federal Position Clarified by Federal Labor Ombudsman Pam Brown, March 10, 2010
More Labor Jive, March 9, 2010
Kaipat, and the Battle Continues, March 8, 2010
Assistant Secretary Babauta to Conduct Worker Forums, March 7, 2010
Ombudsman Meeting Draws Huge Crowd, March 4, 2010
Do Not Go to DOL, January 19, 2010
Umbrella Permit Confusion at DOL, January 17, 2010
CNMI Department of Labor Hell, January 15, 2010
Status for Foreign Workers, January 12, 2010
Notice from Federal Ombudsman, December 30, 2009
CNMI News Bites, December 29, 2009
Alien Registration Ends at Midnight, December 28, 2009
Alien Registration Almost Complete, December 27, 2009
Holiday Scrooges, December 23, 2009
Guest Worker News, December 18, 2009
Alien Registration Form Clarified, December 13, 2009
Alien Registration Form, December 12, 2009
Alien Registration Begins, December 10, 2009
More Schemes, December 1, 2009

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