The opinion of the court was delivered by: Gladys Kessler United States District Judge
Plaintiff Jonathan H. Levy, proceeding pro se, brings this action against Defendant, the United States Postal Service ("USPS"), under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. In his FOIA request, Plaintiff seeks all documents in the possession of Defendant concerning anthrax hoax letters sent in May 2003 to the Los Gatos and Campbell, California police departments, as well as to a private residence in San Jose, California. This matter is before the Court on Defendant's Motion to Dismiss or in the Alternative for Summary Judgment [Dkt. No. 9]. Upon consideration of the Motion, Opposition, Reply, and the entire record herein, and for the reasons set forth below, Defendant's Motion to Dismiss for Summary Judgment is granted as to those documents withheld pursuant to Exemption 7(C) and Exemption 7(F) and denied as to those documents withheld pursuant to Exemption 5 and Exemption 7(D).
On March 10, 2005 Plaintiff submitted a FOIA request to Defendant seeking all documents and information concerning anthrax hoax letters sent to the Los Gatos and Campbell, California police departments and to a private residence in San Jose, California in May 2003. The requested information related to the role allegedly played by Plaintiff's client, Philip J. Kronzer, in the sending of the hoax letters.
An internal USPS inquiry determined that the United States Postal Inspection Service ("USPIS"), through its San Francisco Division, was at that time conducting an investigation concerning the anthrax hoax letters.*fn2 On March 30, 2005, USPS informed Plaintiff that his FOIA request was related to an open investigation and that the material requested was being withheld pursuant to FOIA's Exemption 7(A), 5 U.S.C. § 552(b)(7)(A), which exempts information related to an ongoing law enforcement investigation from disclosure under FOIA. The USPS asked Plaintiff to contact the agency again in sixty to ninety days to determine if the investigation had subsequently been closed.
On July 16, 2005 Plaintiff contacted USPS to inquire about the status of the investigation. On August 1, 2005, Plaintiff was informed that the investigation remained open. Plaintiff again contacted USPS on November 20, 2005, and on December 5, 2005, USPS informed him that the investigation remained open.
On December 31, 2005, Plaintiff appealed the agency's refusal to produce relevant documents to the USPS Chief Counsel, Consumer Protection & Privacy. By a letter dated January 10, 2006, the USPS Law Department upheld the USPS's decision to withhold documents pursuant to Exemption 7(A). On May 30, 2006, Plaintiff then filed suit in this Court.
At some point, the investigation was closed and 566 pages of responsive records were then produced to Plaintiff on August 23, 2006, including thirty-three pages that were released with redactions. An additional 339 pages responsive to Plaintiff's FOIA request were withheld under various FOIA exemptions.
On September 14, 2006, USPS completed a second review of the 339 pages of withheld documents. Six pages were found to be duplicates and Plaintiff was provided with an additional twenty-three pages.
On September 19, 2006, Plaintiff sent a letter to USPS stating that he accepted its decision not to disclose twenty-nine of the remaining pages, and prior to filing its Motion to Dismiss or in the Alternative for Summary Judgment, USPS produced twenty-four pages of additional documents. Thus, when USPS filed the instant Motion, only 257 pages were subject to dispute between the parties. During briefing of this Motion, Defendant released an additional 21 pages of material to Plaintiff.
Furthermore, in the course of briefing this Motion, the parties have further narrowed the records at issue to what they jointly refer to as Documents 7, 8, 9, 11, 15, 16, 17, 18, 20, and 22-25.
FOIA "requires agencies to comply with requests to make their records available to the public, unless the requested records fall within one or more of nine categories of exempt material." Oglesby v. Dep't of the Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996) (citing 5 U.S.C. §§ 552(a), (b)). An agency that withholds information pursuant to a FOIA exemption bears the burden of justifying its decision, Petroleum Info. Corp. v. Dep't of the Interior, 976 F.2d 1429, 1433 (D.C. Cir. 1992) (citing 5 U.S.C. § 552(a)(4)(B)), and must submit an index of all materials withheld. Vaughn v. Rosen, 484 F.2d 820, 827-28 (D.C. Cir. 1973).
In determining whether an agency has properly withheld requested documents under a FOIA exemption, the district court conducts a de novo review of the ...