Judicial Watch, Inc. v. U.S. Postal Service

• Decision Date: 21 January 2004
• Docket Number: No. CIV.A.02-01101(HHK).,CIV.A.02-01101(HHK).
• Citation: 297 F.Supp.2d 252
• Parties: JUDICIAL WATCH, INC., Plaintiff, v. UNITED STATES POSTAL SERVICE, Defendant.
• Court: U.S. District Court — District of Columbia

Page 252

297 F.Supp.2d 252

JUDICIAL WATCH, INC., Plaintiff, v. UNITED STATES POSTAL SERVICE, Defendant.

No. CIV.A.02-01101(HHK).

United States District Court, District of Columbia.

January 21, 2004.

COPYRIGHT MATERIAL OMITTED

Larry Klayman, Paul J. Orfanedes, James F. Peterson, Judicial Watch, Inc., Washington, DC, for Plaintiff.

Tamara Lynn Ulrich, Washington, DC, for Defendant.

MEMORANDUM OPINION AND ORDER

KENNEDY, District Judge.

Plaintiff, Judicial Watch, Inc. ("Judicial Watch"), brings this action against defendant United States Postal Service ("USPS"), pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. Plaintiff seeks access to various records related to defendant's decisions regarding the discovery of anthrax at USPS facilities in October 2001. In response, defendant seeks to withhold and redact certain documents by invoking certain privileges under FOIA Exemption 5, 5 U.S.C. § 552(b)(5).

Before this court are the parties' crossmotions for summary judgment. Upon consideration of the motions, the respective oppositions thereto, and the record of this case, the court concludes that defendant's motion for summary judgment must be granted in part and denied in part without prejudice, and that plaintiff's cross-motion must be denied without prejudice.

I. BACKGROUND

On October 25, 2001, Judicial Watch, pursuant to FOIA, requested that USPS provide certain records relating to the discovery of anthrax at U.S. Postal Service facilities. In particular, Judicial Watch requested access to

all correspondence, memoranda, documents, reports, records, statements, audits, lists of names, applications, diskettes, letters, expense logs and receipts, calendar or diary logs, facsimile logs, telephone records, call sheets, tape records, video recordings, notes, examinations, opinions, folders, files, books, manuals, pamphlets, forms, drawings, charts, photographs, electronic mail, and other documents and things that refer or relate to the following in any way:

1. The process for identification of postal workers infected and/or exposed to anthrax.

2. The decision to conduct tests at the Brentwood USPS facility.

3. The decision to quarantine portions of the Brentwood USPS facility.

4. The decision to test other USPS facilities for anthrax contamination.

5. The decision to suspend mail delivery to zip codes 20007, 20005, 20004.

6. The decision to keep the Brentwood USPS facility open.

7. The decision to test Brentwood USPS facility employees for anthrax.

.... The time frame for this request is from September 11, 2001 to the present.

Pl.'s Ex. 1 at 1-2 (Judicial Watch Ltr. to Post Master, Oct. 25, 2001) ("October Letter"). Perhaps ironically, USPS claimed not to have received the October Letter because of mail service disruptions caused by the anthrax scare and the need to sanitize (irradiate) mail. In December 2001, having received no response, Judicial Watch faxed USPS a copy of the October Letter. In January 2002, USPS replied to the October Letter and attempted to identify the documents responsive to Judicial Watch's seven requests. See Pl.'s Ex. 2 at 1-2 (Faruq Ltr. to Calabrese, Jan. 22, 2002) ("USPS Letter"). USPS's response letter indicated that Judicial Watch could appeal to USPS's General Counsel if it construed the USPS response to be a denial of the FOIA requests in the October Letter. Id. at 2. In February 2002, Judicial Watch appealed to USPS's General Counsel. On June 6, 2002, after receiving no response from USPS's General Counsel, Judicial Watch filed the present action.

In October 2002, USPS released to Judicial Watch 1,228 pages in their entirety and 124 redacted pages related to the October 2001 anthrax contamination. In addition to redacting 124 pages, USPS withheld 401 otherwise relevant pages pursuant to various FOIA exemptions. The present action concerns only 15 pages redacted and 399 pages withheld pursuant to FOIA Exemption 5.¹

II. ANALYSIS

A. Legal Standard

Under Fed.R.Civ.P. 56, summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, admissions on file and affidavits show that there is no genuine issue of material fact in dispute and that the moving party is entitled to judgment as a matter of law. Material facts are those "that might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

In FOIA cases, agency decisions to withhold or disclose information under FOIA are reviewed de novo by this court. Mead Data Cent., Inc. v. U.S. Dep't of Air Force, 566 F.2d 242, 251 (D.C.Cir.1977) (finding that the district court "decides a claim of exemption de novo"). FOIA places "the burden ... on the agency to sustain its action." 5 U.S.C. § 552(a)(4)(B). The agency may meet this burden by submitting affidavits or declarations that describe the withheld material in reasonable detail and explain why it falls within the claimed FOIA exemptions. Summers v. Dep't of Justice, 140 F.3d 1077, 1080 (D.C.Cir.1998). The court should grant a FOIA requester's motion for summary judgment "[w]hen an agency seeks to protect material which, even on the agency's version of the facts, falls outside the proffered exemption ...." Petroleum Info. Corp. v. U.S. Dep't of Interior, 976 F.2d 1429, 1433 (D.C.Cir.1992). Conversely, the agency affidavits "cannot support summary judgment if they are conclusory, merely reciting statutory standards, or if they are too vague or sweeping." King v. U.S. Dep't of Justice, 830 F.2d 210, 219 (D.C.Cir.1987) (internal quotations omitted). Finally, an agency's judgment regarding the applicability of a FOIA exemption is accorded no particular deference. Mead Data Cent., 566 F.2d at 251 ("[T]he agency's opinions carry no more weight than those of any other litigant in an adversarial contests before a court.").

B. FOIA Background

Congress enacted FOIA "to open up the workings of government to public scrutiny through the disclosure of government records." Stern v. FBI, 737 F.2d 84, 88 (D.C.Cir.1984) (internal quotations omitted). FOIA was intended to "`ensure an informed citizenry, vital to the functioning of a democratic society.'" Critical Mass Energy Project v. Nuclear Regulatory Comm'n, 975 F.2d 871, 872 (D.C.Cir.1992) (quoting FBI v. Abramson, 456 U.S. 615, 621, 102 S.Ct. 2054, 72 L.Ed.2d 376 (1982)). In so doing, however, Congress acknowledged that "legitimate governmental and private interests could be harmed by release of certain types of information." Id. In order to balance these competing interests, FOIA contains nine exemptions under which an agency may withhold information. 5 U.S.C. § 552(a)(4)(B) & (b)(1)(9). Because FOIA creates a policy favoring disclosure, however, the Act's exemptions are to be narrowly construed. Dep't of Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976).

When an agency refuses to disclose certain documents pursuant to a FOIA exemption, it must ordinarily produce a "Vaughn Index," a description of each document withheld or redacted and an explanation of the reasons for non-disclosure. See Vaughn v. Rosen, 484 F.2d 820, 827 (D.C.Cir.1973) ("Vaughn I") (creating a "system of itemizing and indexing" that requires agencies invoking FOIA exemptions to "correlate statements made in the ... refusal justification with the actual portions of the document"). The Vaughn Index must permit a reviewing court to engage in a meaningful review of the agency's decision. See Oglesby v. U.S. Dep't of Army, 79 F.3d 1172, 1176 (D.C.Cir.1996). Because the applicability of the deliberative process privilege is dependent on the content of each document and the role it plays in the decisionmaking process, an agency's affidavit describing the withheld documents must be specific enough so that the elements of the privilege can be identified. Senate of Puerto Rico v. U.S. Dep't of Justice, 823 F.2d 574, 585 (D.C.Cir. 1987); Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 866 (D.C.Cir.1980); Mead Data Cent., Inc., 566 F.2d at 251.

An agency's failure to provide a Vaughn Index is not, by itself, reason to reject a claim of exemption. See Gallant v. NLRB, 26 F.3d 168, 173 (D.C.Cir.1994) (holding that "production of a Vaughn Index was not necessary given the adequacy of the government's affidavits."). An agency may submit materials in "`any form,'" including an affidavit or oral testimony, "`so long as they give the reviewing court a reasonable basis to evaluate the claim of privilege.'" Id. (citing Delaney, Migdail & Young, Chartered v. IRS, 826 F.2d 124, 128 (D.C.Cir.1987)). Indeed, an agency need not provide document-by-document information if what it provides is "`sufficiently distinct to allow a court to determine ... whether the specific claimed exemptions are properly applied.'" Id. (citing Vaughn v. United States, 936 F.2d 862, 868 (6th Cir.1991)). Essentially, an agency must "disclos[e] as much information as possible without thwarting the exemption's purpose." King, 830 F.2d at 224.

However, as a purely practical matter, document-by-document justification will usually be necessary. This is because, in addition to distinguishing exempt from non-exempt documents, an agency must perform a "segregability analysis": It must also distinguish exempt from non-exempt material within each document. See Vaughn I, 484 F.2d at 825 ("[A]n entire document is not exempt merely because an isolated portion need not be disclosed. Thus the agency may not sweep a document under a general allegation of exemption, even if that general allegation is correct with regard to part of the information."). An agency must attempt to redact exempt information and produce any relevant non-exempt information. See 5 U.S.C. § 552(b) ("Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection."). If an...