UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
HASSAN ALI PEJOUHESH,
Plaintiff,
v. Civil Action No. 17-1684 (RDM)
UNITED STATES POSTAL SERVICE,
Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiff Hassan Ali Pejouhesh, proceeding pro se, brings this action under the Freedom
of Information Act (“FOIA”), 5 U.S.C. § 552, seeking records from the U.S. Postal Inspection
Service—the U.S. Postal Service’s law enforcement division—related to his prosecution and
conviction for aiding and abetting bank fraud, possession of stolen mail, and aggravated identity
theft. After receiving two requests from Plaintiff, the Postal Service released some records,
withheld others, and informed Plaintiff that, pursuant to the U.S. Postal Inspection Service’s
records retention policy, the Postal Service had destroyed all other responsive records that it once
possessed. Plaintiff then brought this suit, challenging the withholdings and the retention policy
on a variety of grounds.
The Postal Service has now moved to dismiss Plaintiff’s challenge to the records
retention policy for lack of standing and has moved for summary judgment with respect to the
adequacy of its search and the lawfulness of its withholdings. Dkt. 16. Although advised by the
Court of the need to respond to the Postal Service’s motion and cautioned about the
consequences of failing to do so, over eight months have now passed since Plaintiff’s deadline to
respond, and he has failed to file a brief in opposition. Reviewing the record as a whole, albeit without the benefit of Plaintiff’s views, the Court concludes (1) that Plaintiff lacks standing to
challenge the Postal Inspection Service’s records retention policy; (2) that the Postal Service
conducted an adequate search for responsive records; and (3) that the Postal Service has justified
some, but not all, of its withholdings.
The Court will accordingly GRANT in part and DENY in part the Postal Service’s
motion to dismiss and/or for summary judgment.
I. BACKGROUND
Because Plaintiff has not responded to Defendant’s motion for summary judgment, the
Court will treat the Postal Service’s uncontested evidence as true.1 See Fed. R. Civ. P. 56(e)(2);
see also Winston & Strawn, LLP v. McLean, 843 F.3d 503, 507 (D.C. Cir. 2010); Local Civ. R.
7(h)(1). Plaintiff was convicted on charges of “aiding and abetting bank fraud, possession of
stolen mail, and aggravated identity theft,” United States. v. Pejouhesh, 603 Fed. App’x 347 (5th
Cir. 2015), and he is currently incarcerated the Federal Correctional Institution in Beaumont,
Texas. Dkt. 1 at 1 (Compl.).
1 The Postal Service filed its motion on March 20, 2018, Dkt. 16, and the Court issued an order directing that Plaintiff respond on or before May 11, 2018, Dkt. 17. In late April, Plaintiff filed a motion of non-service and motion to strike the Postal Service’s motion for failure to effect service. Dkt. 18; Dkt. 19. In response, the Postal Service represented to the Court that the motion had, in fact, been mailed to Plaintiff at the time the motion was filed, and it further represented that, in light of Plaintiff’s claim that he did not receive the motion, it re-served him on May 7, 2018. Dkt. 20. The Court, in turn, denied Plaintiff’s motion to strike but extended his time to file an opposition to the Postal Service’s motion to dismiss and/or for summary judgment until July 6, 2018. Minute Order (May 17, 2018). Three days before the Court entered that order, the Clerk’s Office received a letter from Plaintiff indicating that he still had not received the Postal Service’s motion. Dkt. 21. That letter, however, is dated May 8, 2018, just the day after the Postal Service mailed Plaintiff a second copy of its motion and before that mailing could reasonably have made its way to Plaintiff at his place of incarceration. The Court has not received any materials from Plaintiff since that letter.
2 In late 2016, Plaintiff submitted a FOIA request to the United States Postal Inspection
Service, seeking “arrest warrants, search warrants, . . . warrants and detainers; all data reports,
investigative reports, scientific lab reports, and all exploratory records and reports; [and] factual
proof of authorized jurisdiction ceded to the Federal Administrative U.S. Attorney’s Office from
the Governor to the United States as required by law.” Dkt. 16-3 at 3 (Mungin Decl. ¶ 6). In
response, the Postal Service conducted a search and located 61 pages of responsive material in its
digital records. Id. (Mungin Decl. ¶ 8). It released 23 pages of documents with redactions, citing
FOIA Exemptions (b)(6) and (b)(7)(C), and withheld 17 other pages in their entirety pursuant to
FOIA Exemptions (b)(6), (b)(7)(C), and (b)(7)(E). Id. Seven documents originated with other
agencies and were referred to those agencies for their review and direct response to Plaintiff, and
14 pages were deemed to be duplicative and were not released. Id.
Believing that more documents existed, Plaintiff then submitted a second FOIA request
in March 2017, seeking “the search and seizure warrant for safe deposit box number 241 located
at Capital One Bank[,] [and the] search warrant for his office, home, and his three cars.” Id. at
4–5 (Mungin Decl. ¶ 9). Because Plaintiff had already been “provided with all remaining
responsive material in existence which related to the subject of his request,” the Postal Inspection
Service did not conduct an additional search. Id. Plaintiff then filed an administrative appeal on
May 1, 2017, and the Postal Service affirmed the initial decision in part and remanded in part.
Dkt. 1-1 at 1. With respect to Plaintiff’s contention that the Postal Inspection Service should
have located additional responsive records, the Postal Service explained, as the Postal Inspection
Service had previously advised Plaintiff, that “all hard copy documents and evidence were
destroyed when [Plaintiff] exhausted [the] appeals” of his conviction. Id. As a result, “the 23
pages that [he] received were the only remaining documents that relate[d] to [his] request.” Id.
3 The destruction of those records, moreover, was proper according to the Postal Service because
“[t]he U.S. Postal Inspection Service has a retention policy wherein hardcopy records can be
disposed of once the associated case is closed.” Id. at 2.
With respect to Plaintiff’s remaining contentions, the Postal Service concluded that the
Postal Inspection Service properly relied on FOIA Exemptions 6 and 7 to withhold or to redact
portions of the materials Plaintiff sought. Id. The Postal Service did, however, identify one error
that the Postal Inspection Service had made: It declined to release 14 pages of responsive records
on the ground that those pages were “duplicative of records that” had already been released to
Plaintiff; on further review, however, the Postal Service concluded that the records were not in
fact duplicative. Id. at 2–3. As the Postal Service explained, although the records at issue were
“mostly comprised of information that is identical to the information contained in [the] records
that [had been] released to” Plaintiff, they were “only substantially similar records and not
duplicate records.” Id. The Postal Service, accordingly, remanded Plaintiff’s “request for
further processing with regard to [those] 14 pages.” Id. at 3.
Plaintiff then initiated this suit, “appealing [that] final decision” and challenging the
Postal Inspection Service’s retention policy as violative of FOIA and his rights to “due process.”
Id. at 1, 5 (Compl.).2 In addition to seeking injunctive and declaratory relief, he seeks damages
on his FOIA and due process claims. Id. at 8 (Compl.) The Postal Service has moved to dismiss
Plaintiff’s challenge to the retention policy for lack of standing, and it has moved for summary
judgment on Plaintiff’s remaining claims. See Dkt. 16. As noted above, notwithstanding the
2 Plaintiff’s complaint appears to be missing a page; according to Plaintiff’s handwritten pagination, the complaint goes from page 4 to page 6.
4 Court’s caution and the passage of over a year from the time the Postal Service filed its motion,
Plaintiff has not responded to the motion.
II. ANALYSIS
The Postal Service’s motion breaks down into two parts: It first argues that Plaintiff
lacks standing to challenge the Postal Inspection Service’s records retention policy, and it then
argues that Plaintiff’s remaining claims fail based on the uncontested facts.
A. Policy and Practice Claim
Plaintiff’s principal challenge is directed at the Postal Inspection Service’s records
retention policy, which allows for the destruction of records relating to an investigation “once the
associated case is closed.” Dkt. 1-1 at 2. According to Plaintiff, this policy “precludes
disclosure under” FOIA, and it violates the due process rights of the subjects of those
investigations, who receive no notice prior to the destruction of the records and who may need
the records for, among other things, seeking “post-conviction relief.” Dkt. 1 at 4–5, 8 (Compl.).
The Postal Service does not take issue with Plaintiff’s claim on the merits but, rather, argues that
Plaintiff lacks standing to pursue the claim. The Court agrees.
A party seeking to invoke the Court’s jurisdiction bears the burden of demonstrating that
he has standing to sue and must carry that burden in “the manner and [with] the degree of
evidence required at the successive stages of the litigation.” Lujan v. Defs. of Wildlife, 504 U.S.
555, 561 (1992) (citation omitted). Thus, at the motion to dismiss stage, a plaintiff must allege
“general” facts that, if accepted as true, would establish “injury resulting from the defendant’s
conduct,” while at the motion for summary judgment stage, a plaintiff must offer evidence of
“specific facts” to support his claim to standing. Id. Because the Postal Service has moved to
dismiss for lack of standing, and it has not offered its own evidence, the Court will consider
5 whether Plaintiff has alleged facts or otherwise carried his burden of establishing a “plausible”
claim to standing. See Pub. Citizen, Inc. v. Trump, No. CV 17-253, 2019 WL 498528, at *6
(D.D.C. Feb. 8, 2019).
As is often repeated, the “irreducible constitutional minimum” for Article III standing is
that the plaintiff has suffered or will imminently suffer “(1) an injury in fact, (2) that is fairly
traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a
favorable judicial decision.” Spokeo Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (citing Lujan,
504 U.S. at 560–61). Where, as here, standing turns on a claim of future injury, the “threatened
injury must be certainly impending;” “[a]llegations of possible future injury” will not suffice.
Whitmore v. Arkansas, 495 U.S. 149, 158 (1990) (internal quotation marks and citation omitted);
see also Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013). Where a plaintiff seeks
injunctive relief based on allegations of past wrongdoing, moreover, the plaintiff must show that
he likely to face the same injustice in the future; it is not enough to have suffered a past injury.
City of Los Angeles v. Lyons, 461 U.S. 95, 110–11 (1983).
Even liberally construed, Plaintiff’s complaint does not satisfy this standard, and Plaintiff
has failed to otherwise explain how he has standing to seek injunctive or declaratory relief. With
respect to any records Plaintiff sought that were not preserved, those records are gone, and
neither an injunction nor a declaratory judgment can remedy that loss. Nor has Plaintiff offered
any reason to believe that he will seek records from the Postal Inspection Service at some time in
the future, that those records have not yet been destroyed, and that the Postal Inspection Service
is likely to destroy those records in the absence of injunction. In short, Plaintiff has not
alleged—or even suggested—that he is likely to suffer any future injury or that an injunction or
6 declaratory judgment would accord him any relief. Under those circumstances, the Court lacks
jurisdiction to consider what is, at best, a speculative claim.
Plaintiff also seeks damages, and, because damages are backward-looking, the Court
must consider whether he has alleged a plausible damages claim. He has not. Plaintiff cites to 5
U.S.C. § 552(a)(4)(E) in his claim for damages. Dkt. 1 at 8 (Compl.). But that provision merely
authorizes courts to award attorneys fees and costs to a prevailing party. It does not create a
damages remedy, and it does not accord any relief to those, like Plaintiff, who have not prevailed
in a FOIA case. Plaintiff also refers to “due process relief” in that same paragraph of his
complaint. Id. But that claim fails at the threshold as well. The sovereign immunity of the
United States extends to the Postal Service, and thus, absent a waiver, the Postal Service is not
subject to suit for damages. See Dolan v. U.S. Postal Serv., 546 U.S. 481, 484 (2006). Plaintiff
has failed to identify any waiver that might apply here, nor is the Court aware of one. The
Federal Tort Claims Act, 28 U.S.C. § 1346(b), for example, does not provide a basis to recover
from the United States for alleged constitutional deprivations, see, e.g., FDIC v. Meyer, 510 U.S.
471, 477–78 (1994).
The Court will, accordingly, grant the Postal Service’s motion to dismiss Plaintiff’s
policy or practice claim.
B. Search and Withholdings
The Postal Service has also moved for summary judgment with respect to the adequacy
of its search and the lawfulness of its withholdings. As explained below, the Court concludes
that the Postal Service conducted an adequate search but that, on the present record, the Postal
Service has failed to justify some of its withholdings.
7 1. Adequacy of the Search
“An agency has an obligation under FOIA to conduct an adequate search for responsive
records.” Ewell v. U.S. Dep’t of Justice, 153 F. Supp. 3d 294, 301 (D.D.C. 2016). The adequacy
of an agency’s search “is judged by a standard of reasonableness.” Weisberg v. U.S. Dep’t of
Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984). In other words, the agency must conduct a search
that is “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)). To prevail on summary judgment, “the agency must show that it made a
good faith effort to conduct a search for the requested records, using methods which can be
reasonably expected to produce the information requested.” Oglesby v. U.S. Dep’t of Army, 920
F.2d 57, 68 (D.C. Cir. 1990). It need not demonstrate, however, that it located every document
that the FOIA requester expected the agency to find; that is, “the adequacy of a search is
‘determined not by the fruits of the search, but by the appropriateness of [its] methods.’” Hodge
v. FBI, 703 F.3d 575, 579 (D.C. Cir. 2013) (alteration in original) (quoting Iturralde v.
Comptroller of the Currency, 315 F.3d 311, 315 (D.C. Cir. 2003)).
As documented in the declaration of Kimberly Mungin, “an Information Disclosure
Technician for the Office of Counsel . . . at the United States Postal Inspection Service,” Dkt. 16-
3 at 2 (Mungin Decl. ¶ 1), the Postal Service conducted a search for responsive records that was
“reasonably calculated to uncover all relevant documents,” Valencia-Lucena, 180 F.3d at 325.
Mungin “searched the agency electronic files which contain investigations stored and catalogued
in the Inspection Service computer database known as the Inspection Service Integrated
Information System.” Dkt. 16-3 at 4 (Mungin Decl. ¶ 7). A request was also “sent to the Postal
Inspector assigned to the case for any responsive material related to [Plaintiff’s] FOIA request.”
8 Id. That Postal Inspector indicated that all hardcopies of potentially responsive records were
destroyed when Plaintiff exhausted his appellate rights and that, as a result, “[t]he only
documents that remain[ed] [were] the ones attached to the case file in” the electronic database.
Id. Finally, and most importantly, Mungin is familiar with “the records and record systems
employed by” the Postal Investigative Service, and she attests that the locations that were
searched “were the most likely, and only, place[s] where responsive records could be located.”
Id. at 2, 4 (Mungin Decl. ¶¶ 2, 7).
This search was sufficient, and, given the overlap between Plaintiff’s two FOIA requests,
nothing further was required to respond to Plaintiff’s second request.3 The Court, accordingly,
concludes that the Postal Service conducted adequate searches for the records Plaintiff sought.
2. Withholdings
The Postal Inspection Service located 61 pages of records responsive to Plaintiff’s FOIA
requests. It referred seven of those pages to other agencies, ultimately released 37 pages with
redactions pursuant to FOIA Exemptions (b)(6) and (b)(7)(C), and withheld 17 pages in their
entirety pursuant to FOIA Exemptions (b)(6), (b)(7)(C), and (b)(7)(E). The Court’s review of
the propriety of these withholdings is hampered by the fact that the Postal Service did not submit
a Vaughn index in support of its motion, and the declaration that it did submit is cursory. As the
D.C. Circuit has explained, nothing in the case law dictates what form an agency’s description of
the bases for its withholdings must take, but, regardless of the form, the evidentiary material
3 The Postal Service’s brief represents that a further search was conducted in response to Plaintiff’s second, overlapping request. Dkt. 16-2 at 15. That is not correct. As the brief elsewhere asserts, id. at 5, and the Mungin declaration attests, Dkt. 16-3 at 5 (Mungin Decl. ¶ 9), a second search was not conducted because the first search located all potentially responsive records that the Postal Inspection Service still had. This discrepancy in the Postal Service’s brief, however, is immaterial.
9 must provide “the reviewing court a reasonable basis to evaluate [its] claim of privilege.”
Gallant v. NLRB, 26 F.3d 168, 173 (D.C. Cir. 1994) (quoting Delaney, Migdall & Young,
Chartered v. IRS, 826 F.2d 124, 128 (D.C. Cir. 1987)). As explained below, the Court concludes
that the Postal Service has adequately supported its invocation of FOIA Exemption 6. It has not,
however, provided the Court sufficient information to permit it to evaluate the Postal Service’s
reliance on FOIA Exemptions 7(C) and 7(E).
The Postal Service redacted portions of the responsive records pursuant to FOIA
Exemption 6. That exemption shields “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). “[T]he mere fact that an agency file or record contains personal, identifying
information,” however, “is not enough to invoke Exemption 6;” in addition, the information must
be “of such a nature that its disclosure would constitute a clearly unwarranted privacy invasion.”
Judicial Watch, Inc. v. U.S. Dep’t of State, 282 F. Supp. 3d 36, 49–50 (D.D.C. 2017) (quoting
Nat’l Ass’n of Home Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002)). The Court,
accordingly, must first determine whether “disclosure would compromise a substantial, as
opposed to a de minimis, privacy interest.” Nat’l Ass’n of Retired Fed. Emps. v. Horner, 879
F.2d 873, 874 (D.C. Cir. 1989). If the agency clears that first hurdle, the Court must then
“balance the privacy interest in non-disclosure against the public interest” in disclosure.
Consumers’ Checkbook Ctr. for the Study of Servs. v. U.S. Dep’t of Health & Human Servs., 554
F.3d 1046, 1050 (D.C. Cir. 2009).
The Postal Inspection Service correctly applied this framework. As explained in the
Mungin declaration, she considered four questions in assessing whether Exemption 6 authorized
the Postal Inspection Service to redact “victims[’] account numbers, addresses, telephone
10 numbers and motor vehicle tag numbers.” Dkt. 16-3 at 6 (Mungin Decl. ¶ 13). She first
concluded that the information was “similar to what . . . is found in personnel or medical files.”
Id. She then concluded that the victims possessed “a significant”—and not de minimis—interest
“in that information.” Id. Third, she “evaluated the requester’s asserted FOIA public interest in
disclosing this information.” Id. And, finally, she conducted the required balancing and
determined that disclosure of “[t]his highly personal information would constitute a clearly
unwarranted invasion of the personal privacy of third parties.” Id.
Mungin’s conclusion is well-supported by the case law. Account and vehicle tag
numbers, addresses, and telephone numbers are precisely the sort of “bits of personal
information . . . the release of which would ‘create[ ] a palpable threat to privacy.’” Judicial
Watch, Inc. v. Food & Drug Admin., 449 F.3d 141, 152–53 (D.C. Cir. 2006) (quoting Carter v.
U.S. Dep’t of Commerce, 830 F.2d 388, 391 (D.C. Cir. 1987)). And while “the court must
‘balance’ the individual's right of privacy against the public interest in disclosure,” Prison Legal
News v. Samuels, 787 F.3d 1142, 1147 (D.C. Cir. 2015), that balancing is not difficult where, as
here, Plaintiff has not provided any explanation regarding the public interest in disclosure, and
no such interest is apparent. See Fitzgibbon v. CIA, 911 F.2d 755, 768 (D.C. Cir. 1990)
(“[S]omething . . . outweighs nothing every time.” (internal citation omitted)). The Court,
accordingly, concludes that the Postal Inspection Service properly relied on Exemption 6 to
redact victims’ “account numbers, addresses, telephone numbers and motor vehicle tag
numbers.” Dkt. 16-3 at 6 (Mungin Decl. ¶ 13).
On the present record, however, the Court cannot say the same about the Postal Service’s
invocation of Exemptions 7(C) or 7(E), at least in certain respects.
11 Exemption 7(C) protects similar interests to Exemption 6 but applies to a narrower
category of records. See Tracy v. U.S. Dep’t of Justice, 191 F. Supp. 3d 83, 95 (D.D.C. 2016).
While Exemption 6 applies broadly to all “[g]overnment records on an individual which can be
identified as applying to that individual,” U.S. Dep’t of State v. Wash. Post Co., 456 U.S. 595,
602 (1982) (quotations and citation omitted), Exemption 7(C) applies only to “records . . .
compiled for law enforcement purposes,” 5 U.S.C. § 552(b)(7)(C). Exemptions 6 and 7(C),
moreover, differ in other respects. Notably, while Exemption 6 is available only if the disclosure
“would constitute a clearly unwarranted invasion of personal privacy,” 5 U.S.C. § 552(b)(6)
(emphasis added), “[t]he adverb ‘clearly’ . . . is not used in Exemption 7(C),” Nat’l Archives &
Records Admin. v. Favish, 541 U.S. 157, 165–66 (2004). Similarly, while “Exemption 6 refers
to disclosures that ‘would constitute’ an invasion of privacy, Exemption 7(C) encompasses any
disclosure that ‘could reasonably be expected to constitute’ such an invasion.” Dep’t of Justice
v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 756 (1989) (emphasis added).
The Postal Inspection Service relied on Exemption 7(C) to withhold “law enforcement
employees[’] names, victims[’] names, victims[’] email addresses and third party statements.”
Dkt. 16-3 at 6 (Mungin Decl. ¶ 14). With respect to much of this information, Mungin engaged
in a similar process to the process she used in applying Exemption 6. She concluded, for
example, that revealing the identity of the victims and law enforcement employees “could result
in unwanted contacts, threats, and harassment” and that “[t]he substantial privacy interests of the
third parties” outweighed the public interest in disclosure. Id. at 6–7 (Mungin Decl. ¶¶ 14–15).
Overall, moreover, she concluded that “the private interests of the postal inspectors, victims[’]
names, victim email addresses, and third party statements far outweighed the [P]laintiff’s
12 interests and the public would not benefit from knowing the names.” Id. at 7 (Mungin Decl. ¶
16).
The Court agrees that much of this information falls well within the scope of Exemption
7(C). The D.C. Circuit has recognized, for example, that law enforcement officials “have a
legitimate interest in preserving the secrecy of matters that conceivably could subject them to
annoyance or harassment in either their official or private lives,” Lesar v. U.S. Dep’t of Justice,
636 F.2d 472, 487 (D.C. Cir. 1980), and it has “adopted a categorical rule permitting an agency
to withhold information identifying private citizens mentioned in law enforcement records,
unless disclosure is ‘necessary in order to confirm or refute compelling evidence that the agency
is engaged in illegal activity,’” Schrecker v. U.S. Dep’t of Justice, 349 F.3d 657, 661 (D.C. Cir.
2003) (quoting SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1206 (D.C. Cir. 1991)). Under this
precedent, it is clear that “names” and “email addresses” of victims and law enforcement
employees fall squarely within Exemption 7(C). Dkt. 16-3 at 6 (Mungin Decl. ¶ 14).
At least on the present record, however, the Court cannot assess how Exemption 7(C)
applies to the “third party statements” that the Postal Inspection Service elected to withhold. To
be sure, to the extent those statements disclose the names or other identifying information about
witnesses, that information likely falls within the scope of the exemption, and it is also possible
that everything contained in those statements could be used to identify a witness. It is also
possible, however, that substantial portions of those statements do not raise any plausible privacy
concern. The problem is that nothing in the Mungin declaration or otherwise in the record
permits the Court to determine whether the Postal Inspection Service had sufficient basis to
withhold substantial portions of the third-party statements. The Court, accordingly, cannot grant
13 summary judgment in favor of the Postal Service with respect to those records without further
information.
Nor can the Court assess whether the Postal Inspection Service properly invoked
Exemption 7(E). That exemption permits an agency to withhold “records or information
compiled for law enforcement purposes” if the release of those records “would disclose
techniques and procedures for law enforcement investigations or prosecutions, or would disclose
guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably
be expected to risk circumvention of the law.” See 5 U.S.C. § 552(b)(7)(E).
The Court can quote the Postal Service’s evidentiary submission on this issue in full:
Exemption (b)(7)(E) was applied to the U.S. Postal Inspection Service Search Warrant/Arrest Operation Plan documents. Each document was evaluated to determine if any information could be segregated and released. The documents withheld in their entirety contained law enforcement sensitive information that could not be released without destroying the integrity of the document, law enforcement techniques, or without identifying third party individuals. In these instances, the [Postal Inspection Service] was forced to withhold the entire document.
Dkt. 16-3 at 7 (Mungin Decl. ¶ 17). This showing is insufficient to support the Postal Service’s
motion for summary judgment.
As an initial matter, the Postal Service fails to explain how the identity of “third party
individuals” implicates Exemption 7(E), which addresses law enforcement techniques,
procedures, and guidelines. Likewise, although the Mungin declaration refers to “law
enforcement techniques,” it does so in the disjunctive and otherwise fails to show that the each of
the records at issue would, if disclosed, reveal a law enforcement technique, procedure, or
guideline. But, even putting those problems aside, the declaration fails to offer any basis to
conclude that “disclosure could reasonably be expected to risk circumvention of the law.” 5
U.S.C. § 552(b)(7)(E).
14 The Postal Service attempts to elide this final difficulty by quoting the D.C. Circuit’s
decision in Public Employees for Environmental Responsibility v. International Boundary and
Water Commission (“PEER”), 740 F.3d 195, 204 & n.4 (D.C. Cir. 2014), for the proposition that
“[c]ourts are divided as to whether the phrase ‘if such disclosure could reasonably be expected to
risk circumvention of the law’ applies only to ‘guidelines’ or also applies to ‘techniques and
procedures.’” Dkt. 16-2 at 19. Then, citing a decision for the Second Circuit, the Postal Service
posits that “the better-reasoned decisions recognize that providing categorical protection to
‘techniques and procedures’ (i.e., not requiring a showing that ‘disclosure could reasonably be
expected to risk circumvention of the law’) is consistent with both the plain meaning of the
statute and the history of the amendments to Exemption (7)(E) in 1986.” Id. What the Postal
Service fails to note, however, is that in the PEER case, the D.C. Circuit—after noting the split in
authority—went on to say: “This Court has applied the ‘risk circumvention of the law”
requirement both to records containing guidelines and to records containing techniques and
procedures.” 740 F.3d at 204 n.4 (emphasis added). That is the law of this Circuit, and this
Court is bound to apply it.
Although Exemption 7(E) does not impose “a highly specific burden” on law
enforcement agencies to show how “the law will be circumvented,” it does require agencies to
“‘demonstrate[] logically how the release of [the requested] information might create a risk of
circumvention of the law.’” Mayer Brown LLP v. IRS, 562 F.3d 1190, 1194 (D.C. Cir. 2009)
(citation omitted). That burden is not a demanding one, see PEER, 740 F.3d at 205 n.4, but
agencies are not free simply to read the requirement out of the statute. Because the Postal
Service entirely ignores the requirement, the Court cannot grant summary judgment in its favor
with respect to the Postal Inspection Service’s invocation of Exemption 7(E).
15 Finally, the Postal Service has failed to carry its burden of showing that it released all
reasonably segregable material. See Armstrong v. Exec. Office of the President, 97 F.3d 575,
578 (D.C. Cir. 1996). FOIA requires that agencies disclose “[a]ny reasonably segregable portion
of a record . . . after deletion of the portions which are exempt.” 5 U.S.C. § 552(b). Under D.C.
Circuit precedent, the Court “must make specific findings of segregability regarding the
documents to be withheld” before “approving the application of a FOIA exemption.” Sussman v.
U.S. Marshals Serv., 494 F.3d 1106, 1116 (D.C. Cir. 2007). Although the precise standard the
Court is required to apply “is not clear,” id. at 1117, the Court cannot discharge this obligation
without any evidence regarding the nature of the records at issue or the agency’s efforts to
segregate non-exempt material. Yet, here, Mungin merely attests that she “made every effort to
segregate material that may be disclosed entirely or with minimal redactions” and that “[i]t is not
possible to reveal any additional information without revealing the substance of the information
exempted.” Dkt. 16-3 at 8 (Mungin Decl. ¶ 19). Whatever standard applies, that is too little
information to allow the Court to conduct even a cursory review.
The Court, accordingly, concludes that the Postal Service properly redacted victims’
“account numbers, addresses, telephone numbers and motor vehicle tag numbers” pursuant to
Exemption 6 and that it properly redacted “law enforcement employees[’] names, [and]
victims[’] names, [and] email addresses” pursuant to Exemption 7(C). But, in all other respects,
the Court lacks sufficient information assess the Postal Inspection Service’s withholding and
must, accordingly, deny the Postal Service’s motion for summary judgment.
16 CONCLUSION
For the reasons explained above, the Postal Service’s motion to dismiss and/or for
summary judgment, Dkt. 16, is hereby GRANTED in part and DENIED in part. The Postal
Service may renew its motion with additional support.
SO ORDERED.
/s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge
Date: March 26, 2019