UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _______________________________ ) DAVID S. BRAUN, ) ) Plaintiff, ) ) v. ) Civ. Action No. 16-2079 (EGS) ) UNITED STATES POSTAL SERVICE ) and OFFICE OF MANAGEMENT AND ) BUDGET, ) ) Defendants. ) )
MEMORANDUM OPINION
Plaintiff David Steven Braun requested information from the
United States Postal Service (“USPS”) under the Freedom of
Information Act, 5 U.S.C. § 552 (“FOIA”), and Privacy Act, 5
U.S.C. § 552a. USPS conducted what it considers to be a
reasonable search in response to those requests and released the
records that were not otherwise exempt from disclosure. USPS now
moves for summary judgment, arguing that it has discharged its
FOIA responsibilities. Mr. Braun also moves for summary
judgment, requesting that the Court award him damages in the
amount of $3 million dollars a year for the remainder of his
life.
Upon consideration of the parties’ cross motions, the
oppositions and replies thereto, the applicable law, and the
1 entire record, the Court GRANTS USPS’s motion for summary
judgement and DENIES Mr. Braun’s motion for summary judgment.
I. BACKGROUND
Mr. Braun, appearing pro se, filed his complaint against
USPS and the Office of Management and Budget (“OMB”) on October
17, 2016. See Compl., ECF No. 1 at 1.1 Mr. Braun alleges that he
made at least three requests for records under the Privacy Act
or FOIA to two different components of USPS: the USPS Office of
Inspector General (“OIG”) and the United States Postal
Inspection Service (“USPIS”). See id. at 13-58.2 The relief
sought by Mr. Braun is not wholly clear. Under a section titled
“Requested Goal off this suite,” Mr. Braun requests “that all
records denied in this and previous request’s be reviewed and
1 Mr. Braun does not consistently number the paragraphs in his complaint, nor does his complaint contain page numbers. As such, for ease of reference, the Court refers to both the paragraph numbers (where available) and the page numbers designated by ECF when citing to the complaint. Likewise, because Mr. Braun does not include page numbers on his motion papers, the Court refers to the page numbers designated by ECF when citing to these documents. 2 Because Mr. Braun’s exhibits are not uniquely or consecutively numbered – see, e.g., ECF No. 1 at 59-60 (moving from “Exhibit 8” to “Exhibit 10” with no “Exhibit 9”); id. at 72 (labeled as “Exhibit 14”); id. at 79 (also labeled as “Exhibit 14”) – the Court refers to the page numbers designated by ECF when citing to Mr. Braun’s exhibits.
2 processed for criminal/negligent behavior.” See id. at 12.3 He
further states that “[t]heir seams to be this database, record
issues, that might also need a court order from a Federal
Judge.” Id. Finally, he requests monetary damages “to compensate
[him] for the negligence and malicious behavior and damaged
caused buy the issues brought to light in this suite.” Id.
On January 30, 2017, OMB moved to dismiss all of Mr.
Braun’s claims, and USPS moved to dismiss everything except Mr.
Braun’s Privacy Act claims. See OMB Mot. to Dismiss, ECF No. 22;
USPS Mot. to Dismiss, ECF No. 23. The Court granted both
defendants’ motions, finding that Mr. Braun had failed to
plausibly state a claim that entitled him to relief. See Braun
v. United States Postal Service, 2017 WL 4325645 (D.D.C. Sept.
27, 2017). Accordingly, the only claims remaining are Mr.
Braun’s claims under the Privacy Act against USPS.
On December 8, 2017, USPS filed its motion for summary
judgment as to these remaining claims. See USPS Summ. J. Mot.,
ECF No. 52. USPS also submitted a statement of facts (“SMF”) in
support of that motion. See id., ECF No. 52 at 5-15. On January
15, 2018, Mr. Braun filed his opposition and cross-motion for
summary judgment. See Braun Opp. to Mot. (“Braun Opp.”), ECF No.
3 Mr. Braun's complaint and motion papers are riddled with significant spelling and grammatical errors. For purposes of readability, the Court does not include [sic] after each error when quoting Mr. Braun's complaint or motion papers. 3 53. Mr. Braun did not provide a response to USPS’s statement of
material facts. The parties completed briefing their motions on
February 9, 2018, and the motions are ripe for resolution.
II. LEGAL STANDARD
Summary judgment is granted when there is no genuine issue
of material fact and the movant is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477
U.S. 317, 325 (1986). Likewise, in ruling on cross-motions for
summary judgment, the court shall grant summary judgment only if
one of the moving parties is entitled to judgment as a matter of
law upon material facts that are not genuinely disputed. See
Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of
Justice, 658 F. Supp. 2d 217, 224 (D.D.C. 2009) (citation
omitted). In determining whether a genuine issue of fact exists,
the court must view all facts in the light most favorable to the
non-moving party. See Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986).
When considering a motion for summary judgment, the court
must conduct a de novo review of the record. See 5 U.S.C. §
552(a)(4)(B). In a suit seeking agency documents — whether under
the Privacy Act or FOIA — “the court may rely on a reasonably
detailed affidavit, setting forth the search terms and the type
of search performed, and averring that all files likely to
4 contain responsive materials (if such records exist) were
searched” in granting summary judgment. Chambers v. U.S. Dep’t.
of Interior, 568 F.3d 998, 1003 (D.C. Cir. 2009) (citation and
quotation marks omitted). Such affidavits or declarations are
“accorded a presumption of good faith, which cannot be rebutted
by ‘purely speculative claims about the existence and
discoverability of other documents.’” SafeCard Servs., Inc. v.
SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (citation omitted).
Moreover, “[i]n determining a motion for summary judgment, the
Court may assume the facts identified by the moving party in its
statement of material facts are admitted, unless such a fact is
controverted in the statement of genuine issues filed in
opposition to the motion.” Local Civil Rule 7(h)(1).
III. ANALYSIS
As a preliminary matter, although Mr. Braun made requests
pursuant to the Privacy Act for certain records, the record
systems holding those records are exempt from the requirements
of the Privacy Act. See SMF ¶¶ 9-13, 36-38, ECF No. 52 at 6-7,
11-12. Because USPS proceeded to examine any responsive records
for release pursuant to FOIA, the Court shall analyze the
propriety of USPS’s response under FOIA.
5 A. Adequacy of Searches
“An agency fulfills its obligations under FOIA if it can
demonstrate beyond material doubt that its search was
‘reasonably calculated to uncover all relevant documents.’”
Valencia–Lucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C.
Cir. 1999) (quoting Truitt v. Dep't of State, 897 F.2d 540, 542
(D.C. Cir. 1990)). “‘[T]he issue is not whether any further
documents might conceivably exist but rather whether the
government's search for responsive documents was adequate.’”
Weisberg v. U.S. Dep’t of Justice, 705 F.2d 1344, 1351 (D.C.
Cir. 1983) (quoting Perry v. Block, 684 F.2d 121, 128 (D.C. Cir.
1982)). The standard is one of “reasonableness” and is
“dependent upon the circumstances of the case.” Id. (citations
and internal quotation marks omitted). To establish the adequacy
of its search, an agency “may rely upon affidavits to show it
has conducted a reasonable search, as long as they are
‘relatively detailed’ and nonconclusory and . . . submitted in
good faith.” Id. (citations and internal quotation marks
omitted). If the requestor is able to produce “countervailing
evidence” in response to the agency's affidavits, “and if the
sufficiency of the agency's identification or retrieval
procedure is genuinely in issue, summary judgment is not in
order.” Morley v. CIA, 508 F.3d 1108, 1116 (D.C. Cir. 2007)
(citations and internal quotation marks omitted).
6 Here, Mr. Braun made three requests for records: one
request directed to OIG, and two requests directed to USPIS. SMF
¶¶ 3-4, ECF No. 52 at 6. The request directed to OIG sought “the
complete results of all three main investigation and any other
complaint that were sent to hotline on three occasions.” Id. ¶ 6,
ECF No. 52 at 6. OIG searched its electronic files containing
records of investigations, which are stored in a database known
at the Case Reporting, Investigations Management, and Evidence
System. Id. ¶ 9, ECF No. 52 at 6-7. OIG also searched a database
containing Hotline complaints. Id. ¶ 12, ECF No. 52 at 7. As a
result of its search, OIG found five files in the Hotline
database consisting of 182 pages. Id. ¶ 15, ECF No. 52 at 7-8.
OIG released ninety-seven pages in full, seventy-six pages with
redactions, and referred nine pages to other components of the
Postal Service where those records had originated. Id. ¶ ¶ 16-18,
ECF No. 52 at 8.4 A Vaughn index attached to the declaration
submitted by OIG in support of its motion for summary judgment
explains the legal basis for the redactions made to the
documents. Id. ¶ 20, ECF No. 52 at 8. Most of the redactions were
to withhold the names of individuals in records released to
plaintiff. Id. ¶¶ 21-27, ECF No. 52 at 9-10.
4 Of the nine pages referred to other components of the USPS, at least eight were released either in full or with limited redactions. See SMF ¶¶ 29-34, ECF No. 52 at 10-11. 7 The request directed to USPIS sought “the results of all
investigation’s/problems surrounding my 155 Aurora Light Dr.
B10, Big Sky, MT 59716 rule ski condo” and “all records
regarding my current and past addresses and any investigations
and issues you are aware of.” Id. ¶¶ 35, 44, ECF No. 52 at 11-12.
USPIS searched its Inspection Service Integrated Information
System, which it determined was the only database likely to have
records responsive to plaintiff’s requests. Id. ¶¶ 36-37, 48, ECF
No. 52 at 11-12. A total of eleven pages of records were deemed
responsive and released, either in full or with redactions. Id.
¶¶ 41, 45-47, ECF No. 52 at 12-13.
Mr. Braun does not contest the adequacy of these searches.
See Pl.’s Mot. for Summ. J., ECF No. 53-1. In view of USPS’s
detailed and unchallenged affidavit concerning its searches, the
Court concludes that USPS’s searches were reasonably calculated
to locate the documents sought by Mr. Braun.
B. Propriety of Exemptions
FOIA requires that agencies release all documents requested
unless the information contained within such documents falls
within one of nine exemptions. 5 U.S.C. § 552(a), (b). These
statutory exemptions must be narrowly construed in favor of
disclosure. Dep't of Air Force v. Rose, 425 U.S. 352, 361
(1976). The government bears the burden of justifying the
withholding of any requested documents. U.S. Dep't of State v.
8 Ray, 502 U.S. 164, 173 (1991). Here, OIG and USPS partially
withheld responsive documents pursuant to FOIA Exemptions 3, 6
and 7. Mr. Braun does not challenge the propriety of these
withholdings. Braun Opp., ECF No. 53-1.
1. Exemption 3
Exemption 3 covers records that are “specifically exempted from
disclosure by statute . . . provided that such statute either requires
withholding “in such a manner as to leave no discretion on the issue”
or “establishes particular criteria for withholding or refers to
particular types of matters to be withheld.” 5 U.S.C. § 552 (b)(3);
see also Senate of the Commonwealth of Puerto Rico v. Dep't of
Justice, 823 F.2d 574, 582 (D.C. Cir. 1987). The Inspector General Act
is one such statute, as it provides that OIG, after receipt of a
complaint from an employee, shall not “disclose the identity of the
employee without the consent of the employee.” 5 U.S.C. App. 3 § 7(b).
In addition, the Postal Reorganization Act specifically exempts from
disclosure “information of a commercial nature . . . which under good
business practice would not be publicly disclosed.” 39 U.S.C. §
410(c)(2).
Here, the OIG redacted the names of employee witnesses in an
investigation in two documents pursuant to the Inspector General Act.
USPS Summ. J. Mot. Ex. A, Decl. of Kathy Kikel (“Kikel Decl.”), ECF
No. 52-1 ¶¶ 17-18. According to Ms. Kikel, the OIG “has a duty to
protect the identities of employees who provide information to the
USPS OIG pursuant to an investigation.” Id. ¶ 17. USPS also redacted
9 an “ACE ID” — a unique identifier assigned to authorized users of
Postal Service information resources — and a URL web address to an
internal Postal Service information resource. USPS Summ. J. Mot. Ex.
C, Decl. of Janine Castorina (“Castorina Decl.”), ECF No. 52-3 ¶¶ 6-7.
Ms. Castorina avers that “ACE IDs and URLs used to enable access to
[Postal Service] information resources by authorized individuals
qualify as commercial information under Section 410(c)(2)” because
this technology is used “to meet business and customer service goals.”
Id. ¶ 10. According to USPS, disclosure of this information “would
inhibit the Postal Service’s ability to protect its information
systems and effectively use technology to perform its mission.” Id.
Mr. Braun does not object to these redactions, and the Court
concludes that they satisfy the requirements of FOIA Exemption 3. The
Inspector General Act expressly “refers to particular types of matters
to be withheld,” 5 U.S.C. § 552 (b)(3), because it forbids OIG from
“disclos[ing] the identity of the employee” except in specified
circumstances, 5 U.S.C. App. 3 § 7(b). Likewise, the Postal
Reorganization Act describes information for which mandatory
disclosure is not required by providing that USPS may “withhold
information of a commercial nature,” 39 U.S.C. § 410(c)(2). See also,
e.g., Airline Pilots Ass'n, Int'l v. U.S. Postal Serv., No. 03-2384,
2004 WL 5050900, at *5 (D.D.C. June 24, 2004) (collecting cases
finding that the Postal Reorganization Act falls within FOIA Exemption
3). Accordingly, both are qualifying statutes under FOIA Exemption 3.
Moreover, USPS has established that the redacted information is the
type that it would not normally disclose under the terms of the Postal
10 Reorganization Act because USPS “operates in a competitive market in
which it must protect its information system and related proprietary
information.” Castorina Decl. ¶ 10. Accordingly, the Court concludes
that the redacted information is exempt under FOIA Exemption 3 because
the information is specifically exempted from disclosure by statute.
2. Exemptions 6 and 7
USPS also withheld names, phone numbers, addresses and
other personal identifiers pursuant to FOIA Exemptions 6 and 7.
FOIA Exemption 6 exempts from disclosure “personnel and medical
files and similar files the disclosure of which would constitute
a clearly unwarranted invasion of personal privacy.” 5 U.S.C. §
552(b)(6). Exemption 6 permits withholding of information when
two requirements have been met. See U.S. Dep't of State v.
Washington Post Co., 456 U.S. 595, 598 (1982). The first
requirement is that “the information must be contained in
personnel, medical or ‘similar’ files.” Id. The statutory
formulation “similar files” is understood broadly to include any
“[g]overnment records on an individual which can be identified
as applying to that individual.” Id. at 602 (internal quotation
marks omitted). Thus, Exemption 6 permits exemption of “not just
files, but also bits of personal information, such as names and
addresses, the release of which would create[ ] a palpable
threat to privacy.” Judicial Watch, Inc. v. FDA, 449 F.3d 141,
152 (D.C. Cir. 2006) (internal quotation marks omitted). The
11 second Exemption 6 requirement is that “the information must be
of such a nature that its disclosure would constitute a clearly
unwarranted invasion of personal privacy.” See Washington Post
Co., 456 U.S. at 598. This second requirement demands that a
court “weigh the privacy interest in non-disclosure against the
public interest in the release of the records in order to
determine whether, on balance, the disclosure would work a
clearly unwarranted invasion of privacy.” Lepelletier v. FDIC,
164 F.3d 37, 46 (D.C. Cir. 1999) (internal quotation marks
omitted). The only relevant public interest in this balancing
analysis in a FOIA case is “the extent to which disclosure of
the information sought would she[d] light on an agency's
performance of its statutory duties or otherwise let citizens
know what their government is up to.” Id.
Exemption 7 protects from disclosure “records or
information compiled for law enforcement purposes,” but only to
the extent that disclosure would cause an enumerated harm, see
FBI v. Abramson, 456 U.S. 615, 622 (1982), including where
disclosure “could reasonably be expected to constitute an
unwarranted invasion of personal privacy,” 5 U.S.C. § 552
(b)(7)(C). “To show that the disputed documents were compiled
for law enforcement purposes, the [agency] need only establish a
rational nexus between the investigation and one of the agency's
law enforcement duties and a connection between an individual or
12 incident and a possible security risk or violation of federal
law.” Blackwell v. FBI, 646 F.3d 37, 40 (D.C. Cir. 2011)
(internal quotation marks and citations omitted).
In deciding whether the release of particular information
constitutes an unwarranted invasion of privacy under Exemption
7, [the Court] must balance the public interest in disclosure
against the [privacy] interest Congress intended the Exemption
to protect.” ACLU v. U.S. Dep't of Justice, 655 F.3d 1, 6 (D.C.
Cir. 2011) (internal quotation marks and citation omitted). The
privacy interest at stake belongs to the individual, not the
government agency, see U.S. Dep't of Justice v. Reporters Comm.
for Freedom of the Press, 489 U.S. 749, 763–65 (1989), and
“individuals have a strong interest in not being associated
unwarrantedly with alleged criminal activity,” Stern v. FBI, 737
F.2d 84, 91–92 (D.C. Cir. 1984). When balancing the private
interest against the public interest in disclosure, “the only
public interest relevant for purposes of Exemption 7(C) is one
that focuses on ‘the citizens' right to be informed about what
their government is up to.’” Davis v. U.S. Dep't of Justice, 968
F.2d 1276, 1282 (D.C. Cir. 1992). It is a FOIA requester's
obligation to articulate a public interest sufficient to
outweigh an individual's privacy interest, and the public
interest must be significant. See Nat'l Archives and Records
Admin. v. Favish, 541 U.S. 157, 172 (2004).
13 Here, pursuant to Exemptions 6 and 7, USPS redacted the
names, employee identification numbers, phone numbers, physical
addresses, and email addresses of USPS employees and private
citizens. Kikel Decl., ECF No. 52-1 ¶¶ 19, 22; USPS Summ. J. Mot.
Ex. B, Decl. of Kimberly Mungin (“Mungin Decl.”), ECF No. 52-2 ¶¶
12, 14. USPS asserts that identifying information of these employees
and other individuals was redacted “because if [it] was released,
those individuals could become targets of harassment.” Kikel Decl.,
ECF No. 52-1 ¶ 21; see also id. ¶ 22 (“The individuals whose personal
identifiers were withheld have privacy interests in their private
information. Revealing this information could result in unwanted
contact, threats, and harassment.); Mungin Decl., ECF No. 52-2 ¶ 13
(“Postal Inspectors and other law enforcement agents' identities were
withheld because if their identities are released, they could become
targets of harassing and/or their safety can be put at risk.”); id. ¶
15 (“I determined that withholding the names and or personal
identifiers of law enforcement personnel or other individuals was
necessary to protect them from potential harassment and efforts to
gain further access to such persons or to additional personal
information, and ensure their personal safety.”).
Against these privacy concerns, Mr. Braun has not attempted to
show any legitimate public interest supporting disclosure of these
names, phone numbers, addresses, and other personally identifying
information. Indeed, the Court does not see how disclosure of this
information could “she[d] light on an agency's performance of its
14 statutory duties or otherwise let citizens know what their
government is up to.” Lepelletier, 164 F.3d at 46 (internal
quotation marks omitted). Accordingly, the Court finds that USPS
has properly invoked FOIA Exemptions 6 and 7.
C. Segregability
If a record contains some information that is exempt from
disclosure, any reasonably segregable information not exempt
from disclosure must be released after deleting the exempt
portions, unless the non-exempt portions are inextricably
intertwined with exempt portions. 5 U.S.C. § 552(b); see Trans–
Pac. Policing Agreement v. U.S. Customs Serv., 177 F.3d 1022,
1027 (D.C. Cir. 1999). The Court has an “affirmative duty to
consider the segregability issue.” Trans–Pac. Policing
Agreement, 177 F.3d at 1028. The reviewing court may rely on the
agency's description of the withheld records and its declaration
that it has released all segregable information to conclude that
the agency has fulfilled its obligation to show with reasonable
specificity why documents cannot be further segregated. See
Loving v. Dep't of Defense, 550 F.3d 32, 41 (D.C. Cir. 2008).
Here, USPS’s declarants aver that they “made every effort
to segregate material that could be disclosed entirely or with
minimal redactions.” Kikel Decl., ECF No. 52-1 ¶ 25; Mungin
Decl., ECF No. 52-2 ¶ 16 (“Each document was evaluated to
determine if any information could be segregated and
15 released.”). They further aver that it “was not possible to
reveal any additional information without revealing the
substance of the information exempted” and “only those portions
that really needed to be withheld remained undisclosed.” Kikel
Decl., ECF No. 52-1 ¶ 25; Mungin Decl., ECF No. 52-2 ¶ 18. Based
on these declarations, it appears that both OIG and USPIS
redacted only what was necessary to protect the exempt
information. Because the affidavits show with “reasonable
specificity” why the documents cannot be further segregated, the
Court concludes that USPS released all reasonably segregable
information.
IV. CONCLUSION
For the reasons stated above, USPS’s motion for summary
judgment is GRANTED and Mr. Braun’s cross- motion for summary
judgment is DENIED. An appropriate Order accompanies this
Memorandum Opinion.
SO ORDERED.
SIGNED: Emmet G. Sullivan United States District Judge June 30, 2018