FOIA NO.

617726

BEFORE THE SOLICITOR OF LABOR

__________________
ON APPEAL FROM THE WAGE AND HOUR DIVISION
__________________
APPELLANT AMERICANS FOR LIMITED GOVERNMENTS FREEDOM OF
INFORMATION ACT APPEAL FOR FAILURE TO CONDUCT REASONABLE
SEARCH
__________________

Nathan Paul Mehrens

Americans for Limited Government
10332 Main Street
No. 326
Fairfax, VA 22030
703.383.0880 [voice]
703.383.5288 [fax]
nathan@getliberty.org
Counsel for Appellant

TABLE OF CONTENTS

TABLE OF CONTENTS .......................................................................................................... 2

TABLE OF AUTHORITIES .................................................................................................... 3
STATEMENT OF FACTS ....................................................................................................... 4
SUMMARY OF THE ARGUMENT .................................................................................... 10
ARGUMENT .......................................................................................................................... 11
I.
THE WAGE AND HOUR DIVISION FAILED TO CONDUCT AN ADEQUATE SEARCH FOR
RECORDS REQUESTED BY APPELLANT .................................................................................... 11
II.
THE RECORDS SOUGHT IN THE INSTANT FOIA REQUEST ARE COVERED BY THE
DEPARTMENTS RECORDS DISPOSITION SCHEDULE AND COULD NOT HAVE BEEN MADE
UNAVAILABLE AS SUGGESTED BY APPELLEE ........................................................................... 12
III. THE DEPARTMENTS FOIA REGULATIONS REQUIRE PRESERVATION OF RECORDS
WHICH ARE SUBJECT TO A FOIA REQUEST ............................................................................. 13
CONCLUSION ...................................................................................................................... 15

TABLE OF AUTHORITIES
Cases
Judicial Watch v. FBI, 2001 U.S. Dist. LEXIS 25732 (D.D.C. 2001)......................................... 11
Oglesby v. U.S. Department of the Army, 920 F.2d 57 (D.C. Cir. 1990) .................................. 11
Steinberg v. U.S. Departmet of Justice, 23 F.3d 548 (D.C. Cir. 1994) ....................................... 11
Weisberg v. U.S. Department of Justice, 705 F.2d 1344 (D.C. Cir. 1983) ................................. 11
Statutes
44 U.S.C. 3301 .......................................................................................................................... 12
5 U.S.C. 552 ................................................................................................................................ 4
Other Authorities
Open Government DOL Records Management, U.S. Department of Labor ....................... 14
Records Control Schedules, National Archives and Records Administration ...................... 13
Regulations
29 C.F.R. 70.27 .......................................................................................................................... 14

STATEMENT OF FACTS

Appellant, Americans for Limited Government, (Appellant) filed a request under

the federal Freedom of Information Act (FOIA), 5 U.S.C. 552 et seq. with the U.S.
Department of Labor on August 12, 2010. A copy of that FOIA request is attached as
Appendix 1.
In its FOIA request, Appellant sought production from the Department of
specifically described federal records regarding the Departments Wage and Hour
Division as follows:
(1) All documents that refer to, reflect, or mention communications
discussing any Wage and Hour opinion letters.
(2) All documents reflecting any meeting, phone call, e-mail, letter, or
other communication regarding any Wage and Hour opinion letters.
On March 16, 2011, Appellants attorney Mark Wohlschlegel asked DOL FOIA
Liaison Thomas Hicks for an update on the status of the FOIA request. A copy of that
request is attached as Appendix 2.
On March 23, 2011, Mr. Hicks replied that the FOIA request had been assigned to
the Employment Standards Administration (the former parent agency of the Wage and
Hour Division). A copy of that notification is attached as Appendix 3.
On December 5, 2011, DOLs website page which is used to track FOIA requests
indicated that this request is in progress. A copy of that page as it existed at that time
is attached as Appendix 4.

On December 6, 2011, Mr. Wohlschlegel asked Mr. Hicks for an update on the
status of the FOIA request. A copy of that request is attached as Appendix 5.
On December 7, 2011, Mr. Wohlschlegel followed up with Dan Daly in the
Department following a phone call from him. Daly was asked for a status update. A
copy of that request is attached as Appendix 6.
On January 4, 2012, DOLs website page which is used to track FOIA requests
indicated that this request is in progress. A copy of that page as it existed at that time
is attached as Appendix 7.
On January 23, 2012, DOLs website page which is used to track FOIA requests
indicated that this request is in progress. A copy of that page as it existed at that time
is attached as Appendix 8.
On February 7, 2012, William A. Nardo, FOIA Officer for the Wage and Hour
Division, emailed Mr. Wohlschlegel regarding this and another FOIA request. As
regards this FOIA request, Nardo stated the following:
On a second FOIA request, 617726, where you are requesting information
regarding opinion letters, I have received responsive material from our
subject matter experts. We must now review and redact information in
accordance with the exemptions of the FOIA. We hope to sent [sic] you
this response in the near future.
A copy of this notification is attached as Appendix 9.
On February 27, 2012, Mr. Wohlschlegel asked Mr. Nardo for an update on the
status of the FOIA request. A copy of that request is attached as Appendix 10.

On February 27, 2012, DOLs website page which is used to track FOIA requests
indicated that this request is in progress. A copy of that page as it existed at that time
is attached as Appendix 11.
Also on February 27, 2012, Mr. Nardo emailed Mr. Wohlschlegel regarding this
and other FOIA requests stating, I have given your request for the status of your 3
FOIAs to my supervisor. When he gets some new information, I will forward it to
you. A copy of that email is attached as Appendix 12.
On February 28, 2012, Mr. Nardo emailed Mr. Wohlschlegel regarding this FOIA
request and noted that responsive records per this request existed and were being
reviewed. Mr. Nardo stated the following:
We are actively working on 617726 regarding the Wage and Hour Opinion
Letters from January to December 2009. We are reviewing responsive
documents and hope to send it to our legal department by next week.
(Emphasis added.)
A copy of this email is attached as Appendix 13.
On the morning of March 2, 2012, Mr. Nardo emailed Mr. Wohlschlegel
regarding this FOIA request stating the following:
FOIA number 617726 is being researched by the Assistant Administrator
for Policy. As this request is old, we are pushing your request to the top
of his to do list.
A copy of this email is attached as Appendix 14.
That afternoon, Mr. Nardo emailed Mr. Wohlschlegel regarding this FOIA
request stating the following:
Your request for the status of FOIA# 617726 regarding the Administrator
Interpretations is being actively reviewed by members of the Wage and
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Hour executive leadership. Once the proper documents have been

identified, they will be mailed to you.
A copy of this email is attached as Appendix 15.
On March 29, 2012, Mr. Wohlschlegel asked Mr. Nardo for an update on the
status of the FOIA request. A copy of that request is attached as Appendix 16.
On March 30, 2012, Mr. Nardo emailed Mr. Wohlschlegel regarding this and
another FOIA request stating the following:
With respect to the Database and Opinion Letter requests, I informed my
supervisor about the lack of progress in answering these requests. Due to
the age of the FOIAs he is personally looking into the situation himself. I
will get back to you when he finds out what is happening. Thanks for
your patience.
A copy of that email is attached as Appendix 17.
On April 4, 2012, DOLs website page which is used to track FOIA requests
indicated that this request is in progress. A copy of that page as it existed at that time
is attached as Appendix 18.
On May 7, 2012, Mr. Wohlschlegel asked Mr. Nardo, for an update on the status
of the FOIA request. A copy of that request is attached as Appendix 19.
On May 9, 2012, Mr. Nardo emailed Mr. Wohlschlegel regarding the FOIA
request stating, Let me bring this up to my supervisor. The answering of this FOIA is
way above my head. A copy of this email is attached as Appendix 20.
On June 6, 2012, Mr. Wohlschlegel asked Mr. Nardo for an update on the status
of the FOIA request. A copy of that request is attached as Appendix 21.

On August 1, 2012, DOLs website page which is used to track FOIA requests
indicated that this request is in progress. A copy of that page as it existed at that time
is attached as Appendix 22.
On August 30, 2012, having not heard back from Mr. Nardo, Mr. Wohlschlegel
asked DOL FOIA Liaison Hicks for an update on the status of this FOIA request. A copy
of that request is attached as Appendix 23.
On November 19, 2012, having not heard back from Mr. Nardo or Mr. Hicks, Mr.
Wohlschlegel asked Mr. Nardo, Mr. Hicks, Mr. Daly, and Ms. Darlene Miller (Solicitors
Office) for an update on the status of this request. A copy of that request is attached as
Appendix 24.
On December 13, 2012, DOLs website page which is used to track FOIA requests
indicated that this request is in progress. A copy of that page as it existed at that time
is attached as Appendix 25.
On February 5, 2013, Appellants General Counsel, Nathan Mehrens, asked Mr.
Nardo for an update on the status of this FOIA request. A copy of that request is
attached as Appendix 26.
Also on February 5, 2013, Mehrens asked Mr. Hicks for an update on the status
of the FOIA request. A copy of that request is attached as Appendix 27.
Later that day, Mr. Nardo emailed Mr. Mehrens, regarding this FOIA request
stating the following:
Mr. Stephen Davis of our staff has been assigned to work on this request.
At the moment he is in a three week training class and is expected to
return to this office on or about February 20th. I will do my best to
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convey to the appropriate staff members the need to respond to your

request.
A copy of this email is attached as Appendix 28.
On December 29, 2014, DOLs website page which is used to track FOIA requests
indicated that this request is in progress. A copy of that page as it existed at that time
is attached as Appendix 29.
On August 13, 2015, Mr. Mehrens discussed the matter with Michelle Moreno,
Government Information Specialist with the Wage and Hour Division. Mr. Mehrens
communicated a written acknowledgement of an agreement to limit the scope of the
records sought to just those in the Office of the Administrator of the Wage and Hour
Division as follows:
(1) To any records in the Office of the WHD Administrator; and
(2) Which discuss whether an opinion letter will be issued on a particular
subject.
A copy of that agreement is attached as Appendix 30.
On August 14, 2015, Ms. Moreno emailed Mr. Mehrens an acknowledgement
regarding the scope of the request. A copy of that acknowledgement is attached as
Appendix 31.
On July 12, 2016, Ms. Moreno sent the final response to Appellant. The response
stated the following:
Pursuant to Departments regulation 29 CFR 70.21(d) we have included
only those responsive documents existing as of the date the search began.
The search began on or about August 14, 2015.
The response further stated:

After researching the history of opinion letters, we did not locate any
documents responsive to your request. Therefore, we must provide a no
records response to your request. In 2009 Wage and Hour discontinued
the use of opinion letters. Additionally, the person who held the
administrator position in 2009 no longer work [sic] in wage and hour [sic].
Furthermore, the Administrators email account was eliminated on or
about 6 months after the person left in accordance with Department of
Labors procedures.
A copy of the final response is attached as Appendix 32.
At no time during the pendency of this FOIA request has Appellant received any
responsive records from DOL, despite several assertions that responsive records exist.

SUMMARY OF THE ARGUMENT

The Wage and Hour Division failed to conduct a reasonable search for records
responsive to Appellants FOIA request. Contrary to the Appellees current assertion,
the requested records were previously compiled and were previously in the clearance
process for production. The Appellees arguments regarding their current inability to
search for records cannot be accurate as their Records Disposition Schedules which
require the preservation of records through the time period sought in the FOIA request.
Even if the records sought are currently outside of the time frame for which
records are sought, those records, per the Departments requirements, could not have
been destroyed until after the instant FOIA request was fulfilled.

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ARGUMENT
I.

THE WAGE AND HOUR DIVISION FAILED TO CONDUCT AN ADEQUATE SEARCH

FOR RECORDS REQUESTED BY APPELLANT

Under the FOIA, an agency must conduct a search that is reasonably calculated
to lead to the discovery of responsive records. In responding to a FOIA request, an
agency has a duty to conduct a reasonable search for responsive records. Judicial Watch
v. FBI, 2001 U.S. Dist. LEXIS 25732, 6-7 (D.D.C. 2001) quoting Oglesby v. U.S. Department
of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990). What the agency must show beyond
material doubt is that it has conducted a search reasonably calculated to uncover all
relevant documents. Weisberg v. U.S. Department of Justice, 705 F.2d 1344, 51 (D.C. Cir.
1983). When determining whether a search conducted under this standard is
reasonable, the courts look to the search method used by the agency. The burden
rests with the agency to establish that it has made a good faith effort to conduct a
search for the responsive records, using methods which can be reasonably expected to
produce the information requested. Judicial Watch, supra, at 7, quoting Oglesby, supra,
at 68. Thus, The fundamental question is not whether there might exist any other
documents responsive to the request, but rather whether the search for those
documents was adequate. Judicial Watch, supra, at 7, quoting Steinberg v. U.S.
Department of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994).
As shown from the chronology of events above, the current position of the Wage
and Hour Division completely ignores the set of responsive records that it previously

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collected and noted to Appellant as under review in 2012. See in particular Appendix 9,
quoted above, where Appellant was told that the Wage and Hour Divisions FOIA
Officer had the responsive records in his possession. The final response sent to
Appellant makes no reference to this set of previously gathered responsive records. See
Appendix 32.
Because the Wage and Hour Division failed to finish the processing work on the
set of responsive records that were gathered at least as early as 2012, they have failed to
perform a reasonable search that meets the standards discussed above.
As such, the Wage and Hour Division should be required to finish processing the
responsive records that were referred to above and to provide them to Appellant.

II.

THE RECORDS SOUGHT IN THE INSTANT FOIA REQUEST ARE COVERED BY THE
DEPARTMENTS RECORDS DISPOSITION SCHEDULE AND COULD NOT HAVE
BEEN MADE UNAVAILABLE AS SUGGESTED BY APPELLEE
Pursuant to the Federal Records Act, the Department has the responsibility to

preserve certain records. These include records that are created in connection with the
transaction of public business and preserved or appropriate for preservation by that
agency. 44 U.S.C. 3301. Records, such as email, must be managed appropriately by
the Department and cannot be disposed of until the point in time specified for each
record type in the Departments approved records disposition schedules. A review of
the Wage and Hour Divisions Standard Forms 115 that were filed with the National
Archives and Records Administration on January 20, 2011 shows that many of the

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records that are created by the Divisions Office of the Administrator are subject to
disposition schedules that go back much further than the date of Appellants FOIA
request. See, Records Control Schedules, National Archives and Records Administration.
Available online at: http://www.archives.gov/recordsmgmt/rcs/schedules/index.html?dir=/departments/department-of-labor/rg-0155
(accessed July 26, 2016).
Given that the Department has the responsibility to retain these records, the
implication that records no longer exist which are the subject of Appellants FOIA
request lacks credibility.

III.

THE DEPARTMENTS FOIA REGULATIONS REQUIRE PRESERVATION OF RECORDS

WHICH ARE SUBJECT TO A FOIA REQUEST
In its final response, the Wage and Hour Division asserted, among other things,

that the email of the previous Administrator of the Division was unavailable as it had
been eliminated on or about 6 months after the person left. See Appendix 32.
Appellant is interpreting this to mean that the email address was eliminated, not that
the federal records which were sent or received via that email address were
eliminated.
The Departments FOIA regulations mandate the preservation of records which
are the subject of a pending FOIA request. These records cannot be destroyed. The
regulation on point states as follows:

13

Each component shall preserve all correspondence relating to the requests

it receives under this part, and all records processed pursuant to such
requests, until such time as the destruction of such correspondence and
records is authorized pursuant to title 44 of the United States Code. Under
no circumstances shall records be destroyed while they are the subject of a
pending request, appeal, or lawsuit under the Act. (Emphasis added.)
29 C.F.R. 70.27.
The Department has also issued guidance on this point. The relevant section of
the Departments guidance states as follows:
DOL Frequently Asked Questions About Records Management
1. How long must I keep DOL records? DOL records must be kept in
accordance with a NARA approved Records Schedules or the agency's
programs records schedules. In the case of legal and litigation holds
and Freedom of Information Act (FOIA) requests, all documents
(record and non-record materials) can not be destroyed or deleted. If
unsure, check with your Agency Records Officer. (Emphasis added.)
Open Government DOL Records Management, U.S. Department of Labor.
Available online at: https://www.dol.gov/general/records#5 (accessed July 22, 2016).
As Appellee knew that certain records, including the Administrators email,
were the subject of a FOIA request and because the Departments regulations require
the preservation of records which are the subject of a FOIA request, Appellee could not
have destroyed these records because they are legally obligated to preserve them. As
such, these records should be searched and any responsive records provided to
Appellant.

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CONCLUSION

The Wage and Hour Division previously collected records that are responsive to
this FOIA request. For reasons that are not clear, it is apparent that they ceased work on
that set of responsive records. Those records which were previously gathered should be
provided to Appellant.
The assertion by the Wage and Hour Division that there no longer exist any
records that are responsive to Appellants request due to the passage of time ignores the
records preservation requirements that exist once a FOIA request is filed.
Additionally, the Wage and Hour Division is ignoring the records disposition
schedules for the records requested by Appellant. Because the Wage and Hour Division
had a responsibility to follow the records disposition schedules, those records must still
be housed in the Division.
Put simply, unless the Wage and Hour Division unlawfully destroyed the
records which are the subject of Appellants request, they still exist within the Division.
Based on the foregoing, Appellant respectfully urges the Solicitor of Labor to
require the Wage and Hour Division to turn over the responsive records which they
previously indicated were gathered per Appellants FOIA request and to, if necessary,
conduct a new search for records responsive to Appellants request.
Given the long delays that the Wage and Hour Division has caused in processing
this request, I request that the process be expedited.

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Dated this 26th day of July, 2016.

Respectfully Submitted,

____________________________________________
Nathan Paul Mehrens
Americans for Limited Government
10332 Main Street
No. 326
Fairfax, VA 22030
703.383.0880 [voice]
703.383.5288 [fax]
nathan@getliberty.org
Counsel for Appellant

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