EEOC v. Whiting-Turner Contracting Co., No. 21-00753, 2022 WL 3221825 (M.D. Tenn. Aug. 9, 2022) (Newbern, M.J.)
EEOC v. Whiting-Turner Contracting Co., No. 21-00753, 2022 WL 3221825 (M.D. Tenn. Aug. 9, 2022) (Newbern, M.J.)
Re: Inadvertent disclosure of records in response to request for records concerning investigation of requester
Disposition: Granting in part and denying in part defendant’s motion to require requester to destroy or return documents obtained through its FOIA request
- Litigation Considerations & Waiver and Discretionary Disclosure, Waiver: The court relates that “[w]hat the EEOC seeks by its motion is, in essence, the ability to claw back the information from the . . . files that it inadvertently produced in response to [the] FOIA request.” “As the basis for its request, the EEOC cited FOIA Exemption 7(A) . . . and stated that [the requester] was not entitled to the charge files because the files ‘were compiled for law enforcement purposes and their production interferes with ongoing enforcement proceedings.’” “The FOIA does not contain a claw-back provision; thus, courts must rely on their inherent authority to control and preserve the integrity of judicial proceedings to order the return of documents that agencies inadvertently disclose pursuant to FOIA requests.”
First, the court relates that “[t]he EEOC . . . argues that, by issuing a FOIA request after this action had been filed, [the requester] wrongfully circumvented the sequencing of discovery established by Federal Rule of Civil Procedure 26.” The court holds that “[t]he EEOC offers no authority to support its argument that the Federal Rules of Civil Procedure prohibited [the requester] from making a FOIA request after the initiation of this action or required it to seek leave of court to do so.” “A review of relevant caselaw shows that, although courts do not endorse the substitution of a FOIA request for civil discovery and may employ certain means to discourage it, they do not find that the Federal Rules of Civil Procedure bar or limit such requests.”
Second, the court relates that “[t]he EEOC next argues that the files requested by [the requester] are exempt from disclosure under FOIA Exemption 7(A) . . . and must be returned on that basis.” The court preliminarily finds that “[the requester] does not argue that the [documents have been officially acknowledged] or that the public-domain doctrine applies here, and the Court finds no reason that the doctrine should be considered as a basis for finding waiver by the EEOC in this case.” The court then finds that “[t]he EEOC has not made the required showing for the Court to find that Exemption 7(A) applies to any of the documents it claims to have inadvertently produced.” “But the Court is not required to make that finding in ruling on this motion.” “Instead, the Court must decide if it should employ its inherent authority to allow the EEOC an opportunity to correct its inadvertent disclosure of information that may be subject to Exemption 7(A).” “Considering the parties’ arguments and its ‘“inherent authority”’ – and obligation – ‘“to control and preserve the integrity” of [its] judicial proceedings,’ the Court will require that [the requester] return to the EEOC any documents included in the FOIA production that have not been otherwise produced in discovery.” “The Court finds that the EEOC acted quickly to notify [the requester] of the inadvertent disclosure, sending a letter within ten days of the disclosure.” “The EEOC notified the Court of this issue and its ongoing efforts toward independent resolution in the initial case management conference.” “Since that time, the EEOC has diligently sought the return of the documents through informal efforts with [the requester] and through the Court’s formal discovery dispute processes.” “Accordingly, the Court will afford the EEOC the opportunity to review the inadvertently produced documents to determine if they are properly withheld under Exemption 7(A).” “Any documents to which Exemption 7(A) does not apply shall be returned to [the requester].”