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January 21, 2004.


The opinion of the court was delivered by: HENRY 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' cross-motions 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. Page 2


  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 Brenrwood USPS facility.
3. The decision to quarantine portions of the Brenrwood 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 Page 3 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.*fn1


 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 (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. 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 Page 4 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. 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. 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 (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 Page 5 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 (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. 1975) ("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. 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. 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, Migdall & Young, Chartered v. IRS, 826 F.2d 124, 128 (D.C. Cir. 1987)). Indeed, an Page 6 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 agency that can show that certain material in a document is privileged, but cannot be reasonably segregated from non-exempt information, that agency must also "describe what proportion of the information is non-exempt and how that material is disbursed throughout the document," such that "both litigants and judges will be better positions to test the validity of the agency's claim that the non-exempt material is not segregable." Mead Data Cent., 566 F.2d at 261. Page 7

 C. Exemption 5

  The only exemption at issue in this case is 5 U.S.C. § 552(b)(5) ("Exemption 5"). Judicial Watch contests USPS's use of Exemption 5 to redact 15 pages and withhold 399 pages.

  Under Exemption 5, an agency may withhold "inter-agency or intra-agency memorandums or letters which would not be available by law to a party . . . in litigation with the agency." Id. Under the umbrella of Exemption 5, USPS invokes three different privileges: (1) the deliberative process privilege, (2) the attorney-client privilege, and (3) the attorney work-product privilege. The court analyzes the sufficiency of USPS's affidavit*fn2 to support these privilege claims, see generally Benowitz Supp. Decl., and analyzes each privilege in turn. Page 8

  1. Deliberative Process Privilege

  USPS invokes the deliberative process privilege in redacting seven pages*fn3 (of 15 pages redacted under Exemption 5) and in withholding 398 pages*fn4 (of 399 pages withheld under Exemption 5).

  Exemption 5 protects from disclosure any documents that reveal an agency's deliberative process in reaching policy decisions. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975); Jordan v. Dep't of Justice, 591 F.2d 753, 775 (D.C. Cir. 1978) (en banc) (finding that documents reflecting an "agency's group thinking in the process of working out its policy and determining what its law shall be" are exempt under FOIA Exemption 5) (internal quotations omitted). The privilege's rationale is that advice and information would not flow freely within an agency if such consultative information were open to public scrutiny. Mead Data Cent., 566 F.2d at 256; Schell v. HHS, 843 F.2d 933, 942 (6th Cir. 1988) ("It is the free flow of advice . . . that exemption 5 seeks to protect."). The privilege recognizes that "`those who expect public dissemination of their remarks may well temper candor with a concern for appearances . . . to the Page 9 detriment of the decisionmaking process.'" Sears, Roebuck & Co., 421 U.S. at 150-51 (quoting United States v. Nixon, 418 U.S. 683, 705 (1974)). Exemption 5 thus allows agency staffers to provide decisionmakers with candid advice without fear of public scrutiny. The deliberative process privilege advances other salutary interests as well. It helps to prevent premature disclosure of proposed policies and protects against public confusion through the disclosure of documents suggesting reasons for policy decisions that were ultimately not taken. See Am. Petroleum Inst. v. EPA, 846 F. Supp. 83, 88 (D.D.C. 1994). In sum, the privilege is designed to "prevent injury to the quality of agency decisionmaking." Sears, Roebuck & Co., 421 U.S. at 151.

  To invoke the deliberative process privilege, an agency must show that an allegedly exempt document is both "predecisional" and "deliberative." Access Reports v. Dep't of Justice, 926 F.2d 1192, 1194 (D.C. Cir. 1991); Coastal States, 617 F.2d at 866; Animal Legal Def. Fund, Inc. v. Dep't of Air Force, 44 F. Supp.2d 295, 299 (D.D.C. 1999). First, a "predecisional" document is one that is "antecedent to the adoption of agency policy." Jordan, 591 F.2d at 774. Beyond this, an agency must also either "`pinpoint an agency decision or policy to which the document contributed,'" Am. Petroleum Inst., 846 F. Supp. at 88 (quoting Senate of Puerto Rico, 823 F.2d at 585); accord Hinckley v. United States, 140 F.3d 277, 284 (D.C. Cir. 1998), or identify a decisionmaking process to which a document contributed. See Access Reports, 926 F.2d at 1196 (finding that an agency need not identify "a single, discrete decision," since not all processes result in final agency decisions, but must at least identify a specific decisionmaking process). Page 10

  Second, a "deliberative" document is one that is "a direct part of the deliberative process in that it makes recommendations or expresses opinions on legal or policy matters." Vaughn v. Rosen, 523 F.2d 1136, 1143-44 (D.C. Cir. 1975) ("Vaughn II"). It must reflect the "give-and-take of the consultative process." Senate of Puerto Rico, 823 F.2d at 585; see EPA v. Mink, 410 U.S. 73, 88 (1973). Merely factual material is not exempt; the document must "bear on the formulation or exercise of agency policy-oriented judgment." Petroleum Info. Corp., 976 F.2d at 1435 (emphasis in original). Thus, deliberative documents are those "reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated." Sears, Roebuck & Co., 421 U.S. at 150. The deliberative process privilege exists to prevent injury to agency decisionmaking. Id. at 151. However, such harm can not be merely presumed as USPS suggests.*fn5 Mead Data Cent., 566 F.2d at 258 ("An agency cannot meet its statutory burden of justification by conclusory allegations of possible harm."). The agency must identify the role of a contested document in a specific deliberative process, Coastal States, 617 F.2d at 868, in order to "show by specific and detailed proof that disclosure would defeat, rather than further, the purposes of the FOIA." Mead Data Cent., 566 F.2d at 258; see also King, 830 F.2d at 224 (finding, in an Exemption 1 case, that a Vaughn Index "must discuss the consequences of disclosing the sought-after information"); Formaldehyde Inst. v. Dep't of Health & Human Serv., 889 F.2d 1118, 1123-24 (D.C. Cir. 1989) ("The pertinent issue is what harm, if any, the [document's] release would do to [an agency's] deliberative process."). Page 11

  Since the applicability of the deliberative process privilege depends on the content of each document and the role it plays in the decisionmaking process, an agency's affidavit must correlate facts in or about each withheld document with the elements of the privilege. See Senate of Puerto Rico, 823 F.2d at 585; Coastal States, 617 F.2d at 866; Mead Data Cent., 566 F.2d at 251. Without a sufficiently specific affidavit or Vaughn Index, a court cannot decide, one way or the other, a deliberative process privilege claim. Senate of Puerto Rico, 823 F.2d at 585 (finding that in the absence of "any identification of the specific final decisions to which . . . advice or recommendations contained in the withheld documents contributed," a court is "not positioned to pass upon the applicability . . . of this privilege"); see also King, 830 F.2d at 223, 225 (declining, in an Exemption 1 case, to express a view on the validity of a Vaughn Index which "provide[d] an insufficient basis for the de novo review that FOIA mandates").

  In this case, USPS invokes the deliberative process privilege for six different categories of documents: (1) drafts of anthrax sampling procedures, (2) draft chronologies, (3) materials prepared for congressional testimony, (4) meeting notes, (5) employee correspondences and memoranda,*fn6 and (6) draft informational documents. With regard to each document in each category, USPS's affidavit is insufficient to decide the claims of ...

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