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
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.").
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.
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 ...