January 27, 2005
Mimi Hull, President
ASSOCIATION OF U S WEST RETIREES (AUSWR) AUSWR Board Members and General
Membership
This is a follow-up to my January 18 report concerning the request made under
the Freedom of Information Act ("FOIA") for copies of the transcripts of the
SEC's interviews/depositions of about 80 persons concerning the SEC's
'investigation' into Qwest's federal securities laws violations. The SEC fully
denied our request in a brief January 21, 2004, dated letter sent to me. A copy
of the SEC's letter is attached hereto in Adobe PDF file format.
We have appealed the denial and the text of the appeal letter sent today is
reproduced below.
Curtis
CurtisLKennedy@aol.com
303-770-0440
===========================================
January 27, 2005
General Counsel
UNITED STATES SECURITIES & EXCHANGE COMMISSION 450 Fifth Street, NW, Room 1012-B
Washington, DC 20549-0207
Frank A. Henderson, FOIA Branch Chief
UNITED STATES SECURITIES & EXCHANGE COMMISSION FOIA Office, Stop O-5
6432 General Green Way
Alexandria, VA 22312-2413
Tele: 202-555-8315
Fax: 703-914-1149
Re: Freedom of Information Act Request – APPEAL
Transcripts of Interviews/Depositions of Qwest witnesses
December 15, 2004 - FOIA Request
January 21, 2005 - FOIA Request Denial
Mr. Henderson and General Counsel:
This is a timely appeal submitted under the Freedom of Information Act (FOIA),
as amended, 5 U.S.C. § 552, of the January 21, 2005, decision letter from Frank
A. Henderson, FOIA Branch Chief fully denying the December 15, 2004, FOIA
request served on the Securities Exchange Commission (SEC) in Denver, CO and
Alexandria, VA. Copies of both my December 15, 2004, letter and Mr. Henderson's
January 21 letter are attached hereto. The FOIA request concerns information
about the SEC’s investigation of Qwest Communications International, Inc.
Accordingly, please let this letter serve as an appeal by myself and on behalf
of the requesters Nelson Phelps and Mimi Hull identified in the December 15
letter. The December 15 FOIA request was for approximately 80
interview/depositions conducted by SEC staff of witnesses, which transcripts
have been released to both the plaintiffs and the defendants in the numerous
securities actions consolidated in the Denver
Federal Court as Case No. 01-RB-1451, District of Colorado. Since those
transcripts have been released to numerous litigants, the SEC should not be
invoking FOIA Exemption 7(A), which exemption authorizes the withholding of
“records or information compiled for law enforcement purposes, but only to the
extent that production of such law enforcement records or information .
. . could reasonably be expected to interfere with enforcement proceedings.”
Therefore, we, again, ask that the SEC comply with the letter and spirit of FOIA
and make those same transcripts available to the requesters. To the extent the
SEC’s position is to the contrary, we trust there will be an attempt to remove
all alleged “exempt information” so as to make the documents suitable for
release. If papers are going to be withheld, we request an index listing the
withheld documents.
In the January 21 denial letter, Mr. Henderson invokes Exemption 7(A) under FOIA.
It is our position that Exemption 7(A) is being abused. It should be beyond
question that Exemption 7(A) is temporal in nature and is not intended to
endlessly protect material simply because requested papers are in some
investigatory file somewhere at the SEC. Furthermore, Mr. Henderson says nothing
about whether any additional enforcement proceedings are a real possibility.
There is no legal action pending. The SEC has settled the case against Qwest.
Mr. chose his words carefully. He does not say “ongoing law enforcement
investigation.” Exemption 7(A) may be invoked so long as a law enforcement
proceeding is pending, or so long as an enforcement proceeding is fairly
regarded as prospective or as preventative.
Unfortunately, Mr. Henderson’s rudimentary statement leaves requesters and
numerous Qwest shareholders to guess whether any “prospective” law enforcement
proceeding has either a concrete possibility or is merely hypothetical. What are
they to think? Is there a prospective criminal action? civil action? regulatory
proceeding? Mr. Henderson should have pointed to a specific pending or
contemplated law enforcement proceeding that could be harmed by the requested
disclosure. Mr. Henderson did not do that. Moreover, he says nothing about the
harm that would result from the release of the transcripts to me and the
requesters.
Clearly, FOIA Branch Chief Henderson’s blanket denial does not comply with
either the letter or spirit of FOIA. The statute was enacted based upon the
fundamental principle that an informed citizenry is essential to the democratic
process and that the more the American people know about their government the
better they will be governed. Openness in government is essential to
accountability and FOIA has become an integral part of that process. FOIA has
been one of the primary means by which members of the public inform themselves
about their government. Since the transcripts have already been released to
numerous litigating parties, there can be no further harm to Qwest. We don’t
believe the requested information can be refused just because the law
enforcement arm of the SEC asserts, without a firm basis, that release would
interfere with future actions.
Furthermore, we do not believe Exemption 7(A) affords protection when the target
of the investigation has possession of the FOIA requested information or
submitted the very information in question. Indeed, the SEC has settled its
claims against Qwest. How could there be any harm to Qwest or the SEC by
allowing us access to the very transcripts that have been released to several
dozen litigants? Revealing the requested documents is certainly not going to
reveal anything not already known by Qwest.
A distinguishing feature of FOIA is that the agency, the Operations Center SEC
office, bears the burden of sustaining its action of withholding records. That
burden cannot be met in this instance. Therefore, we request that you reverse
Mr. Henderson’s decision and direct his office to promptly grant me and the
requesters access to all or part of the documents we have requested. Please send
acknowledgment of your receipt of this FOIA Appeal and advise of the estimated
delivery date of the requested transcripts and the estimated charges. We prefer
that all responsive documents be sent to me in electronic format, on a CD. Thank
you.
Sincerely,
Curtis L. Kennedy
Individual Requester, and on behalf of the Association of U S WEST/Qwest
Retirees
Nelson B. Phelps, Individual Requester
Mary “Mimi”Hull, Individual Requester
FOIAletterAppeal.pdf
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