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United America Financial, Inc. v. Potter

November 3, 2009


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


Plaintiff United America Financial, Inc. ("UAF") brings this action against the head of the United States Postal Service ("Postal Service" or "USPS") under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. UAF submitted a FOIA request to the USPS seeking disclosure of documents that concern allegations that UAF was engaged in an identity theft scam involving USPS employees. In response, the Postal Service conducted a search for responsive documents from its Compensation Office, Inspection Service, and Office of Inspector General, and then it made a series of partial productions at various stages of this litigation. See United Am. Fin. Inc. v. Potter, 531 F. Supp. 2d 29 (D.D.C. 2008) ("UAF"); Order at 2-3 (filed Mar. 5, 2009). The USPS invoked several FOIA exemptions to withhold hundreds of pages of documents in whole or in part but subsequently reevaluated those decisions and made additional disclosures. Now, after two rounds of cross-motions for summary judgment, the parties have narrowed the dispute to discrete redactions in seventeen documents comprised of twenty-one pages, as well as one document the plaintiff claims is missing. Currently pending before the Court are the parties' latest renewed cross-motions for summary judgment.*fn1 For the reasons set forth below, the Court concludes that many of the redactions in the remaining documents at issue are supported by Exemptions 5, 6, 7(C), and 7(D), and will grant defendant's motion in those respects. However, some of the redactions pursuant to those exemptions are not adequately supported, and plaintiff's motion will be granted for those portions of the documents.


The factual background of this case is set out at length in the Court's earlier opinion, and is only briefly revisited here. Plaintiff submitted a FOIA request to the USPS on February 1, 2006, seeking information related to an article circulated among Postal Service employees on or about January 27, 2006 entitled "A dropped PIN: Nigerian identity thieves targeting USPS employees." See UAF, 531 F. Supp. 2d at 36. 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." Id. Plaintiff contends that the government improperly labeled its salespeople as "identity thieves" simply because they were black and had Nigerian names. See Pl.'s Mem. at 2. Plaintiff sought public disclosure of documents surrounding the investigation to support that contention. Id.

Three offices within the USPS generated responsive information: (1) the Office of Inspector General ("OIG"), which was considered the office likely to have an investigative file relating to the subject of plaintiff's request; (2) two divisions of the Inspection Service, which conducts criminal, civil, and administrative investigations; and (3) the Compensation Office in the Human Resources Department at headquarters, as the office responsible for generating and posting the article. See UAF, 531 F. Supp. 2d at 36. During the first round of briefing, the OIG reported that it had located an investigative file relating to UAF, which it withheld in its entirety pursuant to Exemption 7(A). Id. at 37. 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). Id. The Compensation Office reported 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). Id.

The Court held that the record was insufficient to support the exemptions claimed by the OIG and the Inspection Service, denied defendant's motion for summary judgment without prejudice, but provided defendant an opportunity to support the exemptions with a more detailed Vaughn index. Id. at 38-41. With respect to the documents withheld by the Compensation Office, the Court granted in part and denied in part defendant's motion for summary judgment and, among other things, directed defendant to provide a more detailed justification for withholding the identities of USPS employees involved in responding to the alleged identity theft situation. Id. at 41-48.

The Court recognized then that one of the main issues in the case would be defendant's withholding of names of USPS personnel involved in responding to the perceived identify theft situation:

Plaintiff represents that its primary interest is in obtaining the names of the persons spreading the allegations that UAF is involved in identity theft, and that it may pursue a civil rights or other lawsuit for which it would need the employees' names. Defendant asserts that these employees have a strong privacy interest in the nondisclosure of their names, and thus invokes Exemptions 6 and 7(C) to justify withholding their names.

UAF, 531 F. Supp. 2d at 45 (citations omitted). The Court cautioned defendant that all USPS employees could not be treated categorically alike -- some were victims, while others were involved in responding to the allegations against UAF -- and that context matters in assessing the privacy interest. Id. at 46. The Court further emphasized that "[a] 'bare conclusory assessment' that public disclosure of an employee's name would constitute an invasion of personal privacy is insufficient to support the existence of a privacy interest" under Exemptions 6 and 7(C), and that "an agency must at least explain the ground for concluding that there is some factual basis for concerns about harassment, intimidation, or physical harm." Id. at 47 (citations omitted).

Following issuance of the Court's first opinion, the parties filed renewed cross-motions for summary judgment, but due to the evolving state of document disclosures and lack of communication between the parties, the record was insufficient to allow resolution on the merits, and both motions were denied without prejudice. See Order at 2-3 (filed Mar. 5, 2009).

Now, at this third round of briefing, the issues have crystallized considerably:

* The OIG has 137 pages of responsive records. Thirty-four pages were released in their entirety, and 103 pages were released with redactions pursuant to FOIA Exemptions 6, 7(C), and 7(D). See Def.'s Mem. at 2.

* The Inspection Service has focused on 118 pages of responsive records.*fn2 Of this set of documents, 40 pages are duplicates, 28 pages were released with redactions based on Exemptions 5, 6, 7(C), and 7(D), and 50 pages were withheld in full under Exemptions 6, 7(C), and 7(D). See id. at 5-6 & Baxter Decl. ¶ 8.

* The Compensation Office released the four emails previously reviewed by the Court, with "minimal" redactions under Exemption 7(C) to withhold the names of law enforcement personnel. See id. at 8.

Defendant has moved for summary judgment with respect to each of the claimed exemptions.

In many respects, plaintiff does not oppose defendant's motion for summary judgment. Plaintiff no longer seeks to litigate any redactions made by the Compensation Office (see Pl.'s Mem. at 8-9 & n.12), nor does plaintiff generally seek the documents withheld in their entirety or information recognized as highly private by the Court's earlier decision (e.g., victims' social security numbers, home phone numbers, and home addresses). Indeed, plaintiff's response to defendant's motion puts in issue withholdings from only seventeen documents -- ten redacted documents from the OIG, and seven redacted documents from the Inspection Service -- and one document plaintiff alleges is missing. These documents consist largely of emails, fax cover sheets, and interview and incident reports that were generated during a criminal investigation into plaintiff's activities,*fn3 and that remain redacted primarily to withhold the identities of Postal Service employees who played different roles in the UAF investigation, as well as communications characterized as "deliberative" in nature.*fn4

Hence, the renewed cross-motions for summary judgment focus on whether the redactions in this limited subset of documents have been legitimately made under Exemptions 5, 6, 7(C), or 7(D).


"Summary judgment is the preferred method of resolving cases brought under FOIA." Evans v. U.S. Office of Personnel Mgmt., 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 is 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, Inc. 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 Fed'n of Am. v. Dep't of Agric., 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 must be sufficiently detailed "to permit adequate adversary testing of the agency's claimed right to an exemption").


The focus of the Court's analysis at this stage of the litigation has become four FOIA exemptions -- Exemptions 5, 6, 7(C), and 7(D) -- and their applicability to discrete redactions in seventeen documents. The standards that govern the exemptions were set forth in large part in the first UAF opinion. Before evaluating the validity of the particular ...

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