Vol. III • No. 3 • March 15, 2000

Solicitor of Labor Elects to Leave Cloud Over DOL and Union Officer
On Dec. 21, 1999, Solicitor Solano chose to procrastinate with his reply to AFGE 12’s appeal of the denial of an August 5 FOIA request regarding a possible violation of the standards of conduct under the Federal Service Labor-Management Relations Statute (see August 1999 12 Alert).

On January 11, 2000, attorney Katherine A. Meyer (Meyer & Glitzenstein) wrote the following letter to Mr. Solano for AFGE 12 regarding FOIA Appeal # 000052:

“By letter dated December 21, 1999, the Department of Labor acknowledged receipt of the appeal I sent on behalf of the American Federation of Government Employees Local No. 12 (“AFGE 12”). Citing Open America v. Watergate Special Prosecution Force, 547 F.2d 605 (D.C. Cir. 1976), the agency stated that, because of a substantial backlog, which it was dealing with on a “first-in/first out” basis, there would be a delay – of an unspecified period of time – in processing our appeal.

Under the plain language of the Freedom of Information Act (“FOIA”), an agency may exceed the prescribed time limits for a substantive response to an appeal only in unusual circumstances,” and upon written notice to the requester setting forth those circumstances, as well as the “date on which a determination is expected to be dispatched.” 5 U.S.C. s 552(a)(6)(B). Even then, the agency is not entitled to an extension that exceeds ten additional working days. Id. Here, the agency’s letter does not comply with these requirements, since it does not provide any indication of when we can expect a substantive response, nor indicate that this will occur within ten working days.

As to the agency’s reliance on Open America, that 24-year old decision applies to the limited situation where an agency is facing some “exceptional circumstances” that make it impossible for it to comply with the time limits, and, as long as the agency is exercising “due diligence” and processing requests on a first in/first out basis, permits a court with jurisdiction over the matter to retain jurisdiction until the request can be processed. Recent amendments to the statute further explain that such “exceptional circumstances” do not include “a delay that results from a predictable agency workload of requests under this section, unless the agency demonstrates [to the court] reasonable progress in reducing its backlog of requests.” 5 U.S.C. s 552(a)(6)(C).

AFGE 12 does not desire to file a Complaint against the Department of Labor to obtain court jurisdiction over this matter for the purpose of ensuring that the requirements of Open America are in fact present here. Rather, it requests that you exercise your discretion to expedite the processing of its appeal in light of the fact that, as demonstrated in our November 29, 1999 appeal letter, the records at issue concern a matter of great public concern and one that reflects directly on the workings of our government – the core purpose of the FOIA. Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989). In addition to the reasons stated in our appeal letter, expedited release of the requested information is essential to contribute to an informed electorate in the upcoming union elections to be held in February-March.

As explained in our appeal letter, this matter has cast a cloud of suspicion over James Lawson. He and the voters in the upcoming AFGE 12 elections in February-March, where he presumably will be a candidate, deserve to have this cloud dispelled, to have the uncertainty resolved. This matter has also cast a cloud of suspicion over the management of the Department of Labor (”DOL”). DOL administers most of the provisions of the law, including the Labor-Management Reporting and Disclosure Act of 1959, that deals with precisely this type of issue – namely, employers, interfering in the internal affairs of unions, employers bribing union officials, the fiduciary responsibility of union officials, etc. DOL cannot afford to have the public harbor questions and suspicions about its own actions in this area. Such suspicions undermine DOL’s ability to carry out its mission for the American people.

If DOL continues to deny AFGE 12 this information, we can only conclude that DOL management does indeed have something to hide. Such stonewalling of a local union trying to determine if there is corruption in its ranks can only reinforce the impression that there really is a conflict of interest in this specific case.

For all of the foregoing reasons, as well as those put forth in our November 29 appeal letter, we urge you to expedite your response to our appeal. As explained above, AFGE 12 prefers not to have to bring a lawsuit to expedite the release of the requested information. However, if we have not received a substantive response from the agency by the close of business on January 26, 2000 – ten working days from today – we will feel forced into a position of having to pursue legal remedies in order to [obtain] compliance with the law.

I very much appreciate your immediate attention to this matter.
Sincerely, Katherine A. Meyer
cc: Alexis M. Herman, Secretary, U.S. Department of Labor; Senator James Jeffords; Congressman William Goodling”
Solicitor Solano sent an undated response in February which continues the bureaucratic delay and keeps the cloud over DOL and, unfairly, over the union official.

Binion Wins Close Race
Russ Binion, the leader of the Progress Ticket, was reelected as president of AFGE 12 at its February 16 biennial elections. Binion’s ticket won all six races for the general officer positions which are elected DOL-wide by members employed in the DC metro area and by retirees. Binion took over the leadership of AFGE 12 in January 1996 after an 18-month trusteeship that resulted from financial mismanagement of the union.

In the two preceding elections Binion won by 2-1 margins. This time, in a 3-person contest, he got only 54% of the votes for president. This was in spite of the major gains of transit subsidy and a model flexiplace program under his leadership since the trusteeship.

The Progress Ticket won all 26 delegate races except one and tied for a second and won all 26 alternate delegate races. The elections for AFGE 12 Vice Presidents for the nine DOL agencies will be March 16. In these races, members can vote only for one candidate from their respective agency and not for a candidate in each of the nine VP races. Additionally, the run-off election for the tie in the election for the sixth delegate to the AFGE Convention will take place at the same time as the nine VP elections. The results of the February 16 elections: