Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United America Financial, Inc. v. Potter

January 22, 2008

UNITED AMERICA FINANCIAL, INCORPORATED, PLAINTIFF,
v.
POSTMASTER GENERAL JOHN E. POTTER, U.S. POSTAL SERVICE, DEFENDANT.



The opinion of the court was delivered by: John D. Bates United States District Judge

MEMORANDUM OPINION

Plaintiff United America Financial, Inc. ("UAF") brings this action against the head of the U.S. Postal Service ("Postal Service" or "USPS") under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. UAF seeks disclosure of documents that concern allegations that UAF was engaged in an identity theft scam involving USPS employees. Defendant has disclosed roughly 50 pages in full or redacted form, and withheld the remainder under various FOIA exemptions and the Privacy Act. Currently pending are cross-motions for summary judgment.*fn1

For the reasons set forth below, the Court will deny the motions without prejudice with respect to the documents withheld by the Office of Inspector General and the Inspection Service, and grant defendant's motion in limited part with respect to documents withheld by the Compensation Office, subject to the reservations noted below.

BACKGROUND

On or about January 27, 2006, the USPS circulated an article to its employees entitled "A dropped PIN: Nigerian identity thieves targeting USPS employees." See Pl.'s Mem., Ex. A; Moore Decl. ¶¶ 6, 13-14. The article warned employees that:

Nigerians posing as representatives of the Office of Federal Employees Group Life Insurance (OFEGLI) have been asking employees for their Social Security numbers, Employee IDs and USPS PINs. This group surfaced in Pittsburgh under the name Employee Services Division, UAF, and is distributing business cards claiming to represent FEGLI . . . If anyone matching this description contacts you, call your local Inspection Service office immediately.

Pl.'s Mem., Ex. B. The article cautioned USPS employees not to allow such persons on postal premises and provided further guidance on safeguarding employee identification information. Id. The article was posted on an internal website accessibly only to Postal Service employees, referred to as "NewsLink" and "LiteBlue." Moore Decl. ¶ 13.

By letter dated February 1, 2006, plaintiff submitted a FOIA request to the Postal Service requesting (1) "the names of all people responsible for creating" the foregoing document; (2) all "supporting documents" and "investigative documents" pertaining to that document; and (3) "all drafts of documents containing 'UAF' and 'Nigerian' and 'identity thieves' which were created during January 2006." Pl.'s Mem., Ex. B. Plaintiff suggested that a "Mr. Soos" was involved in creating the document. Id. Plaintiff asserted later in the administrative process that the government had acted improperly in accusing UAF of being composed of "Nigerian identity thieves," and that it sought the documents to refute the allegations. See Pl.'s Mem., Ex. G.

Three offices within the USPS considered likely to have responsive information were searched: (1) the Compensation Office in the Human Resources Department at headquarters, as the office responsible for generating and posting the article; (2) two divisions of the Inspection Service, which conducts criminal, civil, and administrative investigations, and also employs the Mr. Soos referenced in plaintiff's FOIA request; and (3) the Office of the Inspector General ("OIG"), which was considered the office likely to have an investigative file relating to the subject of plaintiff's request. Moore Decl. ¶ 17; Baxter Decl. ¶¶ 6, 20; Cuthbertson Decl. ¶ 3.

The Compensation Office informed plaintiff that it had located eleven pages of responsive documents, releasing five pages in full and one redacted page, while withholding the remainder pursuant to Exemptions 2, 3, 5, 6 and 7(C). Moore Decl. ¶ 11; Tyrrell Decl. ¶ 2. The Inspection Service located 176 pages of responsive documents, initially releasing five pages with redactions, and subsequently releasing 21 pages in full and an additional 26 redacted pages, withholding the remainder pursuant to Exemptions 2, 5, 6, 7(A), 7(C), 7(D), and 7(E). Baxter Decl. ¶¶ 22, 23, 29; Malone Decl. ¶ 5. OIG located an investigative file relating to UAF which it withheld in its entirety pursuant to Exemption 7(A). Cuthbertson Decl. ¶ 5; O'Connor Decl. ¶ 6.

Defendant has submitted several declarations explaining the basis for the claimed exemptions, and has moved for summary judgment. Plaintiff responds that the declarations are inadequate, and also moves for summary judgment. After the briefing was completed, defendant submitted the documents at issue for in camera review at the Court's request.

STANDARD OF REVIEW

"Summary judgment is the preferred method of resolving cases brought under FOIA." Evans v. U.S. Office of Personnel Management, 276 F. Supp. 2d 34, 37 (D.D.C. 2003); see also Summers v. Dep't of Justice, 140 F.3d 1077, 1080 (D.C. Cir. 1998). The standard is a familiar one: summary judgment is appropriate when the pleadings and the evidence demonstrate that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The party seeking summary judgment bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may successfully support its motion by identifying those portions of "the pleadings, the discovery and disclosure materials on file, and any affidavits" which it believes demonstrate the absence of a genuine issue of material fact. Fed. R. Civ. P. 56(c); see Celotex, 477 U.S. at 323.

In determining whether there exists a genuine issue of material fact sufficient to preclude summary judgment, the court must regard the non-movant's statements as true and accept all evidence and make all inferences in the non-movant's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A non-moving party, however, must establish more than the "mere existence of a scintilla of evidence" in support of its position. Id. at 252. By pointing to the absence of evidence proffered by the non-moving party, a moving party may succeed on summary judgment. Celotex, 477 U.S. at 322. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (internal citations omitted). Summary judgment is appropriate if the non-movant fails to offer "evidence on which the jury could reasonably find for the [non-movant]." Id. at 252.

In the FOIA context, the Court may award summary judgment solely on the basis of information provided by the department or agency in affidavits or declarations when they "describe the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith."

Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). The declarations and accompanying Vaughn index (see Vaughn v. Rosen, 484 F.3d 820, 827-28 (D.C. Cir. 1973)) serve three important functions:

[I]t forces the government to analyze carefully any material withheld, it enables the trial court to fulfill its duty of ruling on the applicability of the exemption, and it enables the adversary system to operate by giving the requester as much information as possible, on the basis of which he can present his case to the trial court.

Judicial Watch v. Food and Drug Admin., 449 F.3d 141, 146 (D.C. Cir. 2006). Thus, the agency affidavits or declarations must contain "reasonable specificity of detail rather than merely conclusory statements." Consumer Federation of America v. Dep't of Agriculture, 455 F.3d 283, 287 (D.C. Cir. 2006) (citations and internal quotation marks omitted); see also Kimberlin v. Dep't of Justice, 139 F.3d 944, 950 (D.C. Cir. 1998) (explaining that declarations ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.