United States District Court for the District of Columbia
January 21, 2004.
JUDICIAL WATCH, INC., Plaintiff
UNITED STATES POSTAL SERVICE, Defendant
The opinion of the court was delivered by: HENRY KENNEDY, District Judge
MEMORANDUM OPINION AND ORDER
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
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
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
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.*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
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
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
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.
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
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
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).
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
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 privilege on summary judgment either in favor of
USPS or Judicial Watch. The court analyzes each category in turn.
a. Draft Procedures for Anthrax Sampling.
USPS withholds 12 pages of documents pursuant to the deliberative
because they are "drafts of procedures related to environmental
sampling of anthrax." Benowitz Supp. Decl. ¶ 5. USPS provides other
details that simply document the fact that the pages are drafts.
Id. ¶¶ 6 ("The document is designated as a draft, and it may
have been revised prior to the issuance of a final version. Therefore,
the document reflects the process through which a final version of the
procedures may have been developed. . . ."), 7 (noting that Pages
251-52 were "designated as a draft" and also were "subject to revision"
and contained handwritten corrections). Only the titles provided by USPS
hint at the specific content of these documents. See
id. ¶ 6 (identifying Pages 94-103 as draft of document sent to
the Center for Disease Control entitled "Procedures for Collecting
Environmental Samples of Anthrax"), 7 (noting Pages 251-52 as draft of
document entitled "USPS Sampling Strategy: A Chronology.").
These descriptions are inadequate to prove the elements of the
deliberative process privilege. First, it is unclear if the drafts are
predecisional. The most basic requirement of the privilege is that a
document be antecedent to the adoption of an agency policy.
See Jordan, 591 F.2d at 774. A post-decisional document, draft
or no, by definition cannot be "predecisional." See Petroleum Info.
Corp., 976 F.2d at 1434 ("A document is predecisional if it was
prepared in order to assist an agency decisionmaker in arriving at his
decision, rather than to support a decision already made.") (internal
quotations and citations omitted). USPS's affidavit does not indicate
whether the 12 pages preceded USPS's final adoption of anthrax-testing
procedures, and therefore may have influenced policy, or whether these
documents merely described USPS's anthrax sampling procedures after the
fact, and therefore are not protected.
Second, even had USPS shown the documents to be predecisional, drafts
are not presumptively privileged. See Arthur Andersen & Co. v.
IRS, 679 F.2d 254, 257 (D.C. Cir. 1982) ("The designation of . . .
documents . . . as `drafts' does not end the inquiry,
however. Coastal States forecloses the . . . argument that
any document identified as a draft is per se exempt."); Mead Data
Cent., 566 F.2d at 257 ("Predecisional materials are not exempt
merely because they are predecisional."). USPS failed to identify the
"function and significance . . . in the agency's decisionmaking
process" of the redacted and withheld documents. Arthur
Andersen, 679 F.2d at 258 (internal quotation marks and citations
omitted). Without specific information, the court cannot determine on its
own whether these documents are deliberative.
Finally, USPS failed to indicate whether these drafts were (1) "adopted
formally or informally, as the agency position on an issue;" or (2) "used
by the agency in its dealings with the public." See id. at
257-58 (internal quotation omitted). Either will defeat a claim of
privilege, for both actions involve the exposure of the withheld
documents to third parties.
These ambiguities, with regard to each element of the deliberative
process privilege, prevent the court from granting summary judgment in
favor of USPS. These ambiguities, at the same time, do not foreclose the
possibility that USPS has properly withheld the documents. Therefore the
court must deny summary judgment to both USPS and Judicial Watch.
b. Chronologies, Timelines, and Summaries
USPS withheld or redacted nearly 200 pages of draft chronologies,
timelines or summaries related to the discovery of anthrax in 2001.
See Benowitz Supp. Decl. ¶¶ 8-13 (noting that 192 documents
were withheld because they were drafts of chronologies, timelines or
summaries of events related to the discovery of anthrax), 31 (noting that
two pages were withheld
as a chronology of events drafted by USPS attorneys),*fn7 34
(noting that USPS redacted Pages 204, 205, 208, and 209 because they are
parts of a draft chronology). Some of these documents were comments,
opinions, and recommendations about the chronologies. Id. ¶¶
For some of the reasons previously expressed with regard to the
descriptions of the draft anthrax procedure documents, USPS's affidavit
is inadequate with regard to the draft chronologies. It does not specify
whether these draft chronologies were antecedent to final policies, and
therefore are predecisional; whether the drafts were adopted as final
policy (and therefore are no longer predecisional); and whether the
agency has not already used the documents in communications with the
However, USPS's affidavit raises other material ambiguities unique to
the chronologies. Generally, factual accounts of events do not fall under
Exemption 5. See Petroleum Info. Corp., 976 F.2d at 1434
(finding that "[u]nder the deliberative process privilege, factual
information generally must be disclosed"); Mead Data Cent., 566
F.2d at 256 ("Many exemption five disputes may be able to be decided by
application of the simple test that factual material must be disclosed
but advisory material . . . may be withheld."). However, some
documents may arrange or deal with facts in such a way that they reveal
the policy judgments of the author and thus an agency's deliberative
process. See id. ("In some circumstances, however, the
disclosure of even purely factual material may so expose the deliberative
process within an agency that it must be deemed exempted. . . ."). As
a result, a court should "shelter factual summaries that were written to
assist the making of a discretionary decision." See Mapother v. Dep't
of Justice, 3 F.3d 1533, 1539 (D.C. Cir. 1993). Exempt factual
materials include, for instance, those that involve
the "interpretation of complex and controversial events critical to
the writing of official histories," Petroleum Info. Corp., 976
F.2d at 1437 (internal citations and quotations omitted), or documents
"in which an agency has winnowed a mass of information into a small set
of facts which, if revealed, would unveil the agency's reasoning by
showing what it considered relevant (and irrelevant)." Id. at
Specific to these documents, the D.C. Circuit found that agencies must
disclose purely factual chronologies. See Mapother, 3 F.3d at
1539-40. That court required the Immigration and Naturalization Service
("INS") to produce a chronology of the Nazi military service history of
former Austrian President Kurt Waldheim because, unlike the rest of the
INS report on Waldheim, the chronology "reflect[ed] no point of view,"
was "organized strictly chronologically, not thematically" and "in no way
betray[ed] the occasion that gave rise to its compilation." Id.
The Mapother court had enough information to decide a summary
judgment motion. See id. at 1539-40 (examining the Waldheim
chronology in camera and finding them reasonably segregable and
subject to disclosure). This court does not. The following is all of
USPS's description of 172 pages of withheld chronologies, timelines,
[The pages] all consist of chronologies of events
related to the discovery of anthrax in the mail
that are designated as drafts. These drafts were
created by and/or circulated among various Postal
Service offices for the purpose of inputting,
updated, and correcting information contained in
the draft chronologies. Some of the draft
chronologies contain handwritten corrections to
the typed text. Therefore the documents reflect
the preliminary views of the authors that may have
been altered or rejected, and they also reflect
editorial judgments. These pages are being
withheld pursuant to the deliberative process
privilege. A final version of the chronology has
been released to Plaintiff.
Benowitz Supp. Decl. ¶ 9. USPS is similarly vague in describing
the other chronologies, though a bit longer, are similarly vague.
Id. ¶¶ 12-13, 31, 34.
It is entirely unclear, from USPS's declaration, if the draft
chronologies simply list facts and involve no judgment, as in
Mapother, or if they involve the sort of fact-winnowing-sifting
wheat from chaff-that required the judgment of agency employees.
Furthermore, USPS's descriptions say nothing about purpose of the draft
chronologies.*fn8 The court simply lacks the specific information it
needs to decide, de novo and on summary judgment, whether these documents
are "deliberative." Such ambiguities require the court to deny summary
judgment to both USPS and Judicial Watch.
USPS also invokes the privilege with regard to 5 other pages of
opinions and comments about the chronologies and their creation, as well
as revisions made by employees. See id. ¶¶ 10-11. The court
must also deny summary judgment to both parties with regard to these
documents. These 5 pages seem "deliberative" because they involve a
"give-and-take" between employees. See Senate of Puerto Rico,
823 F.2d at 585. However, the give-and-take must regard "opinions on
legal or policy matters." Vaughn II, 523 F.2d at 1143-44. If the
chronologies themselves merely restate facts, and do not involve "legal
or policy matters," any comments or opinions about these same
chronologies are not privileged. However, because the USPS affidavit does
not clearly identify the chronologies themselves as factual or
policy-oriented, the court cannot determine whether the opinions and
comments regarding the chronologies are privileged.
c. Materials for Congressional Testimony
USPS withheld 55 pages because they were prepared for the congressional
testimony of USPS officials. Benowitz Supp. Decl. ¶ 14. USPS's
describes the documents as follows: "These documents contain information
compiled specifically to assist the officials in testifying at hearings,
sample questions and answers, and key points of focus for anticipated
testimony." Id. This passage is as ambiguous as the descriptions
of the draft chronologies. First, USPS has not shown, one way or the
other, that the prepared testimony was "antecedent" to USPS policy. If
the testimony simply justified or explained USPS reactions to the anthrax
outbreak to Congress, the materials are not antecedent and therefore are
not protected. See Petroleum Info. Corp., 976 F.2d at 1434. But
USPS does not describe the purpose or nature of the congressional inquiry
or the content of USPS's prepared testimony materials; therefore, the
court cannot conclude that the materials were or were not antecedent and
cannot grant summary judgment in favor of either party.
Secondly, even if the testimony were "antecedent" to policy, USPS does
not indicate one way or the other whether the compilation of information
itself was deliberative. On one hand, USPS officials merely "compiled"
information, which seems to involve little or no judgment at all. See
Petroleum Info. Corp., 976 F.2d at 1435. On the other hand,
providing "key points of focus" suggests discretionary "fact-winnowing"
that is, therefore, deliberative. Id. at 1438.
Finally, USPS fails to identify what, if any, of the prepared testimony
actually was read by USPS employees in public or appeared in published
records. USPS must waive the privilege with regard to the materials it
made available to other parties, whether by reading or publishing
them. See Arthur Andersen, 679 F.2d at 257-58 (requiring
disclosure of predecisional documents "used by the agency in its dealings
with the public"). In sum, these ambiguities require the denial of
summary judgment as to both parties.
d. Meeting Notes
USPS withheld 28 pages of documents which it categorizes as
"consist[ing] of notes of meetings or discussions during which postal
employees and employees of other federal agencies discussed, recommended,
or proposed ways of responding to the discovery of anthrax in the mail."
See Benowitz Supp. Decl ¶ 15. USPS purports to provide more
specific details about each document. Id. ¶¶ 16-19. One page
"lists the names of several Postal Service officials, and contains notes
of proposed actions in response to the discovery of anthrax in the mail."
Id. ¶ 19. Two pages are "primarily related to environmental
testing and safety measures" and "are in the form of questions or are
followed by question marks." Id. ¶ 17. Seventeen pages are
"to do" lists that "contain entries related to actions taken or proposed
in response to the discovery of anthrax in the mail" and again, some
"entries are followed by question marks." Id. ¶ 18. Finally,
three pages "appear to be notes of a meeting between CDC and Postal
Service officials to discuss how to respond to the discovery of anthrax
in the mail." Id. ¶ 19.
These descriptions do not indicate whether or not the documents are
both predecisional and deliberative. First, USPS does not identify
specific final decisions or decisionmaking processes to which
the documents contributed. It is not enough to say that the documents
relate, in some way, to "actions taken or proposed in response to the
discovery of anthrax in the mail," id. ¶ 18, for if they did
not, the documents would not be before the court at all. USPS must
identify particular decisionmaking processes, or else the court cannot
recognize the documents as
"predecisional." See Am. Petroleum Inst., 846 F. Supp. at
88. However, the same vague descriptions leave open the possibility that
these documents did contribute to particular decisionmaking
processes. Second, USPS fails to specify the "deliberativeness" of these
documents. The descriptions indicate generally that the meeting notes
record the policy proposals of various USPS employees. But USPS does not,
as it must, identify the specific harms that would result from the
disclosure of these proposals. Mead Data Cent., 566 F.2d at 258.
Finally, USPS does not indicate whether or not any of the proposals
recorded in the meeting notes were ultimately adopted as policy; those
adopted as policy must be disclosed. See Arthur Andersen, 679
F.2d at 258 (subjecting to disclosure documents "adopted formally or
informally, as the agency position on an issue").
e. Employee Correspondences and Memoranda
USPS withheld 26 pages and redacted 7 pages*fn9 involving
correspondences or memoranda, notable mainly because they were written by
As a general matter, employee-to-supervisor correspondences (all
e-mails, in this case) are more likely than other intra-agency
communications to be protected under the deliberative process privilege.
See Access Reports, 926 F.2d at 1195 ("A document from a junior
to a senior is likely to reflect his or her own subjective
opinions. . . . By contrast, one moving from senior
to junior is far more likely to manifest decisionmaking authority
and to be the denouement of the decisionmaking rather than part of its
give and take.") (citing Senate of Puerto Rico, 823 F.2d at 586;
Coastal States, 617 F.2d at 868). USPS fails to identify the
recipients of the non-legal correspondences. See Benowitz Supp.
Decl. ¶¶ 21-24. It is not possible to tell whether these e-mails were
from junior employees to supervisors and, therefore, part of a
deliberative "give and take"; this would have made it easier to determine
whether these documents were "deliberative."
More problematic, however, is that USPS's affidavit mostly fails to
identify particular decisionmaking processes or final policies to which
the employee e-mails contributed. For instance, USPS indicates that
employees identified "priorities for incidents related to anthrax in the
mails [sic]," Benowitz Supp. Decl. ¶ 21, and "generally describe[d]
the issues" to be discussed at employee meetings. Id. ¶ 22.
In two instances, USPS identifies specific deliberative process or
policy. Id. ¶ 23 (explaining that in one document, employees
"made a recommendation regarding a particular method of testing for
anthrax spores."), 36 (indicating that an e-mail message addressed an
employees opinion on "how to responded to requests for information about
the test results" of a USPS facility). However, USPS does not identify
the specific harm in disclosing any these documents, reiterating only
that each "reflects the predecisional thoughts, judgments, and
recommendations" of USPS employees. See id. ¶¶ 21-24 (using
the same language for each set of employee e-mails); 36-38 (using
similarly conclusory language). Though even a conclusory allegation of
harm would be insufficient, Mead Data Cent., 566 F.2d at 258
(finding that agencies cannot justify withholding documents by
"conclusory allegations of possible harm"), USPS fails to allege any harm
USPS's descriptions of the legal correspondences (analyzed again under
the attorney-client or the attorney work-product privileges) also fail
to provide enough information for a proper de novo review. Two documents
involve legal advice on specific situations from USPS attorneys to USPS
managers. See Benowitz Supp. Decl. ¶¶ 27, 29. These
descriptions are almost detailed enough to be privileged. They
are predecisional in that they are antecedent to policy-the documents are
from employees (attorneys) to managers. See id. Furthermore,
USPS identifies specific decisionmaking processes-what USPS should do
about media requests for access to USPS facilities, id. ¶
27, and what to do about potential USPS employee lawsuits to close USPS
facilities. Id. ¶ 29. In addition, these documents are
deliberative to the extent that they provide advice on matters of agency
policy; they bear on the exercise of agency policy judgments. See
Petroleum Info Corp., 976 F.2d at 1435. USPS fails, however, to
identify the specific harm of releasing these documents. Mead Data
Cent., 566 F.2d at 258. Furthermore, USPS does not indicate, as it
must, that these documents have not been adopted as final agency policy
and that they have not been given, in some way, to the public (i.e.,
communicating policy positions in these documents to the media requesting
access or submitting legal positions in these documents in the course of
public litigation with USPS employees). See Arthur Andersen, 679
F.2d at 258. The court must therefore deny summary judgment to both
parties with regard to these documents.
With regard to all other legal correspondences, USPS has not provided
enough specific information. USPS withheld one other document, "draft
talking points" from a USPS official to USPS attorney. Benowitz Supp.
Decl. ¶ 28. USPS identifies nothing more specific about the content
of this document, does not specify its place in a particular
decisionmaking context, and
does not indicate whether, as a draft, these talking points were
actually used in a communication with the public. See id. USPS
also redacted four pages of a chronology summarizing legal
correspondences by USPS attorneys. See id. ¶ 34 (Pages 204,
205, 208, 209). While some descriptions involve "legal advice" or
"messages between managers," USPS identifies nothing more specific about
any of these pages, nothing about the general purpose of the legal
advice, whether or not USPS ultimately adopted this advice as policy, and
what of these correspondences were already shared with the public via any
actual litigation. Id. Because these descriptions are
insufficient to conduct a de novo review, the court must deny summary
judgment to both USPS and Judicial Watch.
f. Informational Documents and Comments
USPS withholds 83 pages of what it characterizes as informational
documents or comments on them by USPS employees: "drafts of news
releases, published guidance of postal employees, and similar
informational documents" as well as "postal employees' comments,
suggestions, and recommendations concerning such drafts." Benowitz. Supp.
Decl. ¶ 25. After explaining the general category of documents
withheld, the affidavit provides slightly more detail about the
documents-fifteen individual descriptions. Even the most comprehensive of
these descriptions falls short of helping this court determine whether or
not the documents are privileged: "Pages 1677-87 consists of draft
versions of an emergency action plan memo, and e-mail containing the
comments and suggestions of Postal Service employees regarding the draft
versions." Id. ¶ 25(a). This is the most elaborate
description of any of the 83 pages and still fails to pinpoint particular
decisionmaking processes or policies these documents contributed to. More
often, these descriptions provide less information and simply indicate
that the documents
are drafts. See, e.g., id. ¶¶ 25(f), (i) (identifying
withheld Pages 1452-53 as "a draft briefing sheet" and Pages 1588-89 as
"a draft press release"). The court cannot identify specific details that
allow it to conclude, one way or the other, whether or not these
documents are predecisional and deliberative. Furthermore, as with every
other document it identifies as a draft, USPS fails to indicate whether
these documents were adopted as final policies or previously disclosed to
third parties, see Arthur Andersen, 679 F.2d at 258.
In sum, the general insufficiency of USPS's declarations with regard to
each category of documents compels the court to deny USPS's and Judicial
Watch's cross-motions for summary judgment with regard to all documents
withheld or redacted pursuant to the deliberative process privilege.
Without more information, this court can not conduct the required de novo
review of the validity of USPS's withholdings and redactions. See
Mead Data Cent., 566 F.2d at 251.
2. Attorney-Client Privilege
USPS invokes the attorney-client privilege in redacting nine
pages*fn10 (of 15 pages redacted in total) and in withholding eight
pages*fn11 (of 399 pages withheld in total).
The attorney-client privilege exists to protect a client's confidences
to her attorney so that the client may have "uninhibited confidence" in
the inviolability of her relationship with her attorney. Coastal
States, 617 F.2d at 862. The privilege also protects communications
attorney to her client regarding the same issues. Id. To
invoke the privilege, an agency must demonstrate that the document it
seeks to withhold (1) involves "confidential communications between an
attorney and his client" and (2) relates to "a legal matter for which the
client has sought professional advice." Mead Data Cent., 566
F.2d at 252; see also Animal Legal Def. Fund, 44 F. Supp.2d at
302. The privilege does not allow an agency to withhold a document merely
because it is a communication between the agency and its lawyers.
Coastal States, 617 F.2d at 862-63. The agency bears the burden
of showing that the information exchanged was confidential. Mead Data
Cent., 566 F.2d at 253. That is, the agency must show that it
supplied information to its lawyers "with the expectation of secrecy and
was not known by or disclosed to any third party." See id. at
USPS describes two pages in almost enough detail to invoke the
privilege, but ultimately not enough detail to allow the court to grant
summary judgment in its favor. Pages 981-82 are emails from a USPS
attorney to USPS managers, with the heading "Privileged
Information-Attorney/Client Communication" and containing "legal advice
regarding how to respond to requests from the news media for access to
Postal Service facilities." Benowitz Supp. Decl. ¶ 27. This
description fulfills the elements of the privilege by identifying the
pages as (1) a confidential lawyer to agency-client communication and (2)
regarding professional legal advice. These details are specific enough
for the court to determine, on its own, that the elements of the
privilege are fulfilled. However, USPS fails to offer a segregability
analysis. USPS cannot withhold an entire document, Vaughn I, 484
F.2d at 825, without describing the mix of privileged and non-privileged
information and explaining why it would not be possible to simply redact
the privileged materials. Mead Data Cent., 566 F.2d at 261.
The court must also deny summary judgment to both parties with regard
to the other documents USPS attempts to privilege. See Benowitz
Supp. Decl. ¶¶ 28, 30. USPS does little more than identify these
documents as attorney-client communications without establishing that
they involve the provision of legal advice. See id. USPS fails
to show that these documents involved the provision of specifically
legal advice or that they were intended to be confidential.
See id. ¶¶ 28 (indicating that Pages 1187-91 "consist of
draft talking points forwarded by a Postal Service official to the Postal
Service General Counsel"), 30 (noting that Page 1591 "concerns issues
raised by a union representing Postal Service employees"). These
documents might well contain legal advice and confidential information,
but USPS does not say so. As a result, the court cannot grant summary
judgment in favor of either party with regard to these pages.
USPS's justifications for its redactions are similarly insufficient.
See id. ¶ 34 (justifying individual redactions on Pages 191,
197, 200-05, 207-09). All the materials USPS redacted under the
attorney-client privilege are contained in a "chronology that summarizes
correspondence related to the discovery of anthrax." Id. ¶
34. All of these pages apparently involve communications to or from USPS
attorneys regarding the discovery of anthrax in USPS locations in New
York and matters of actual or potential litigation. Id. Though
each redaction is mentioned by page number, USPS simply concludes that
each redaction involves legal advice and relates to actual or potential
litigation. See id. These descriptions are not detailed enough
for the court to determine meaningfully, on its own, whether these
documents are privileged. Without impugning USPS's honesty, the court is
not allowed to grant summary judgment based
on such conclusory statements. To do so would be tantamount to
shirking the court's obligation to conduct a de novo review. See Mead
Data Cent., 566 F.2d at 251. As a result, with regard to these
documents, the court must deny summary judgment to both USPS and Judicial
3. Attorney Work-Product Privilege
USPS invokes the attorney work-product privilege in withholding five
pages*fn12 (of 399 pages withheld in total) and in redacting six
pages*fn13 (of 15 pages redacted in total). The attorney work-product
privilege protects disclosure of materials prepared by attorneys, or
non-attorneys supervised by attorneys, in contemplation of litigation,
that reveal information about an attorney's preparation and strategy
relating to a client's case. See Coastal States, 617 F.2d at
866. The privilege protects the adversary trial process by allowing
attorneys to zealously pursue their clients' interests without worrying
that the fruit of their efforts will be disclosed to an opposing party.
See id. at 864. Factual work-product material is also protected
unless the requesting party can show a substantial need for the material
and an inability to obtain it without suffering undue hardship.
See Fed.R.Civ.P. 26(b)(3); Putnam v. Dep't of
Justice, 873 F. Supp. 705, 711 n.4 (D.D.C. 1995). The work-product
privilege can be waived, however, if the work product is disclosed to a
third party who does not share a "common interest in developing legal
theories and analyses of documents" with the primary party. In re
Sealed Case, 676 F.2d 793, 817 (D.C. Cir.
1984) (quoting United States v. AT & T Co.,
642 F.2d 1285, 1300 (D.C. Cir. 1980)); see In re Lindsey, 158 F.3d 1263,
1282 (D.C. Cir. 1998). Thus, a disclosure to a third party that promotes
the client's trial strategy and is consistent with maintaining secrecy
against trial opponents does not waive the privilege. See AT & T
Co., 642 F.2d at 1299.
The privilege is limited in scope. It only exempts those documents
prepared in contemplation of litigation, not to "every written document
generated by an attorney." Senate of Puerto Rico, 823 F.2d at
586. The D.C. Circuit has found that withheld "documents must at least
have been prepared with a specific claim supported by concrete facts
which would likely lead to litigation in mind." Coastal States,
617 F.2d at 865. An agency that fails to do so cannot invoke the
privilege. Id. (denying agency's attorney work-product privilege
claim when it "neglected to supply the court with sufficient facts,
either in its index or its submitted affidavits, to permit a conclusion
that in fact specific claims had arisen and were likely to be pursued to
the point of litigation by the agency.").
USPS identifies three pages that come close to being privileged, but
the court, deprived of certain details, cannot grant summary judgment in
favor of either party. Pages 1192-94 consist of a memorandum of legal
advice from a USPS attorney to the USPS General Counsel "prepared for the
purpose of responding to actual or potential attempts by Postal Service
employees to take legal action to close Postal Service facilities."
Benowitz Supp. Decl. ¶ 29. These details are particular enough to
indicate that "specific claims had arisen" (the USPS employee litigation)
such that USPS would be forced to engage in litigation. Coastal
States, 617 F.2d at 865. However, USPS provides no indication of
whether the documents have been shared with third parties and, therefore,
whether the privilege has been waived. See In re Sealed Case,
676 F.2d at
817. Specifically, if USPS attorneys prepared these documents to
respond to litigation, and had filed substantially similar materials with
a court such that they were publicly available, USPS would have waived
the privilege. In a normal, adversarial contest in which parties are
presumed to have roughly equal access to the facts, it would be Judicial
Watch's burden to prove that USPS waived the privilege. However, in this
FOIA case, USPS possesses almost exclusive access to the facts and,
therefore, must show that it has not waived the privilege because
Judicial Watch is not positioned to prove otherwise. See King,
830 F.2d at 218 (acknowledging imbalance in access to facts and requiring
agency to "correct, however imperfectly, the asymmetrical distribution of
knowledge that characterizes FOIA litigation"). Finally, USPS has failed
to provide a segregability analysis of these pages.
Other documents USPS identifies are not even "almost" privileged. USPS
identifies Pages 1746-47 as a chronology of the discovery of anthrax
prepared by a USPS attorney in New York "for the purpose of responding to
actual or potential litigation arising from the discovery of anthrax in
the mail." Benowitz Supp. Decl. ¶ 31. Unlike the documents involving
USPS employee litigation, however, the description of these chronology
documents do not identify a specific claim to which USPS is responding;
it does not even suggest that the chronology was prepared for a specific
litigation. See id. USPS does not indicate anything about the
nature of the litigation for which these chronologies were prepared.
Again, without information allowing for an independent determination that
the chronology somehow related to the strategy of USPS attorneys
regarding specific litigation, the court must deny summary judgment to
both parties. Yet again, USPS fails to present a segregability analysis.
Finally, all redacted documents were all part of a "chronology that
correspondence related to the discovery of anthrax. Id.
¶ 34. Yet USPS identifies no specific litigations in justifying the
redactions. See id. (indicating that redactions on Pages 197,
200-04, 206 involved "actual litigation" or "potential litigation" but
identifying no specific claims for which these documents were prepared).
Again, the court is unable to grant summary judgment in favor of either
party with regard to the document redacted pursuant to the work-product
D. Resolution: Detailed Vaughn Index
The court has found that USPS's declaration is, with regard to every
document, insufficiently detailed to allow the court to reach a proper
determination regarding the sufficiency of USPS's justifications for
withholding or redacting documents. The court is now faced with a number
of options. See Spirko v. USPS, 147 F.3d 992 (D.C. Cir. 1998)
(reviewing the different options available to district courts).
First, the court has the discretion to order the documents produced for
an in camera inspection. See id. at 998. The court declines to
do this for the 414 documents USPS has redacted or withheld. This refusal
is proper even when such a task would merely appear to be too
burdensome for the court. King, 830 F.2d at 225 (providing a
court other options for obtaining more information about documents
claimed under a FOIA exemption when an in camera inspection "appear[s]
too burdensome"). Furthermore, the D.C. Circuit has made it clear that an
in camera review is no substitute for the Government's obligation to
provide detailed indexes and justifications. Lykins v. Dep't of
Justice, 725 F.2d 1455, 1463 (D.C. Cir. 1984); accord
Spirko, 147 F.3d at 997; Quinon v. FBI, 86 F.3d 1222, 1228
(D.C. Cir. 1996); Animal Legal Def. Fund, 44 F. Supp.2d at 304.
Second, the court may allow plaintiff discovery. See Spirko,
147 F.3d at 997. Judicial Watch has not requested discovery, and the
court declines to order it as this time. Judicial Watch has, instead,
requested the immediate production of the documents. This the court also
declines to do because the court's conclusion is that USPS's declaration
is insufficient, not necessarily that disclosable documents have been
Third and finally, the court may remand back to the agency for further
review and consideration. This option is the most appropriate at this
point. See Pollard v. FBI, 705 F.2d 1151, 1154 (9th Cir. 1983)
("If the government's initial attempts to provide justification for its
claimed exemption fail to provide a sufficient basis for decision, the
district court may require the government to submit more detailed public
affidavits before resorting to in camera review of the documents
themselves and/or in camera affidavits. By doing so, the
district court will insure that the record made is `as complete a public
record as is possible. . . .'") (quoting Phillippi v. CIA,
546 F.2d 1009, 1013 (D.C. Cir. 1976)). Accordingly, the court remands to
USPS to review all previously withheld and redacted documents. USPS must
disclose all documents, in full, that do not fall within the parameters
of the three privileges, as defined above. After such review, with regard
to documents USPS still identifies as privileged under Exception 5, USPS
must submit to Judicial Watch and this court a detailed Vaughn
It is said that Mead Data Central provides the best general
advice on how much and what kind of detail the Vaughn Index
should contain. See Senate of Puerto Rico, 823 F.2d at 587 ("Our
decision in Mead Data remains perhaps the best general guide to
both the details agencies must provide to support exemption (5) claims
and, correlatively, the level of scrutiny appropriate in court evaluation
of those claims."). General advice aside, the revised Vaughn
index must be
sufficiently detailed such that the court and Judicial Watch can
conduct their own reviews of the applicability of the privileges to
specific documents. The revised index should provide details on
each document-for apparently USPS's category-by-category
approach was not fruitful such that the court could, on its own,
match these details to each element of every privilege that applies to a
particular document. Furthermore, the revised index must also provide
information on any other potentially dispositive issues identified by the
court (e.g., waiver of privilege because documents were adopted as final
policy or because they were released to third parties).
Finally, for each and every document, the revised Vaughn Index
must include a segregability analysis for every document withheld in
full, identifying the proportion of privileged and non-privileged
information, and must explain specifically why the documents can not be
redacted and produced. Documents containing privileged information that
USPS can reasonably segregate must be disclosed and redacted.
Understandably, producing a properly detailed Vaughn Index is
a considerable burden for USPS. However, Congress, in enacting FOIA, has
chosen to place this burden upon agencies, giving them a clear, if
Those burdens [of providing a sufficiently
detailed Vaughn Index] may be avoided at
the option of the agency . . . by immediate
disclosure. Congress has encouraged the agencies
to disclosure exempt material for which there is
no compelling reason for withholding, and an
agency's own balancing of the resource costs of
justifying nondisclosure against the value of
secrecy may provide a rough estimate of how
compelling is its reason for withholding.
Mead Data Cent., 566 F.2d at 261. Whether or not further
withholdings and redactions justify their cost is, of course, up to USPS.
In any case, another insufficiently detailed index will simply not be
acceptable. If USPS fails to file a sufficiently detailed index, the
court will allow Judicial
Watch to refile its motion for summary judgment or file any other
motions (e.g., for in camera inspection or discovery) necessary to obtain
USPS's compliance. See Animal Legal Def. Fund, 44 F. Supp.2d at
For the foregoing reasons, the court concludes that defendants' motion
for summary judgment must be granted in part and denied in part and
without prejudice, and it is further
ORDERED that Plaintiffs' cross-motion for summary judgment
must be similarly denied, also without prejudice; and it is further
ORDERED and ADJUDGED that USPS has properly invoked
Exemptions 2, 3, 6 and 7(c); and it is further
ORDERED that, by no later than March 1, 2004, USPS shall
disclose any previously withheld document, or any portion thereof, that
does not fall within the proper scope of the privileges under Exemption
5, as described above; and it is further
ORDERED that for all documents withheld or redacted, the USPS
shall produce a comprehensive Vaughn index, describing each
document withheld or redacted and explaining the reason for the agency's
nondisclosure in terms of the elements of the privileges USPS intends to
invoke; and it is further
ORDERED that for any document withheld or redacted entirely
that USPS shall detail, in this index, the proportion of exempt and
non-exempt materials, and explanations as to why the wholly withheld
materials cannot simply be redacted; and it is further
ORDERED that this index and affidavit shall correlate claimed
exemptions with particular passages within each document; and it is
ORDERED that this index shall be filed by no later than March