Ams. for Fair Treatment v. USPS, No. 22-1183, 2023 WL 2610861 (D.D.C. Mar. 23, 2023) (Lamberth, J.)

Ams. for Fair Treatment v. USPS, No. 22-1183, 2023 WL 2610861 (D.D.C. Mar. 23, 2023) (Lamberth, J.)

Re:  Request for records concerning website USPS created for distribution of free COVID-19 test kits

Disposition:  Granting defendant’s partial motion to dismiss; granting in part and denying in part defendant’s motion for summary judgment; granting in part and denying with prejudice in part and without prejudice in part plaintiff’s cross-motion for summary judgment

• Litigation Considerations, Standing, Jurisdiction:  “Because AFFT cannot establish a substantial risk of future harm from USPS’s FOIA regulations as of the time the action commenced, it lacks standing to pursue its challenges to those regulations, and consequently, the Court lacks subject-matter jurisdiction over those claims.”  The court relates that “[plaintiff] asks for injunctive and declaratory relief because USPS does not procedurally permit an appeal to the head of the agency upon an adverse decision by the agency’s general counsel, which it argues the text of FOIA requires.”  “Contrary to USPS’s argument, since [plaintiff] alleges a procedural injury, it is under no obligation to demonstrate that the outcome of its FOIA appeal would have been any different here had the Postmaster General adjudicated that appeal himself.”  “Once plaintiffs alleging procedural injuries demonstrate that an ‘agency action threatens their concrete interest,’ they ‘need not demonstrate that but for the procedural violation the agency action would have been different.’”  “‘Rather, if the plaintiffs can demonstrate a causal relationship between the final agency action and the alleged injuries, the court will assume the causal relationship between the procedural defect and the final agency action.’”  “So, if [plaintiff] wanted to appeal the adverse FOIA decision to the Postmaster General himself and was unable to because of USPS’s FOIA regulations, that could in itself be a procedural injury sufficient to support standing if past harm were sufficient.”  “But [plaintiff] seeks prospective relief on its procedural claims, and that requires a substantial risk of future harm.”  “Here, [plaintiff] filed its second FOIA request on September 2, 2022 – over three months after commencing this action.”  “Accordingly, that request is irrelevant for purposes of assessing standing.”  “Moreover, the complaint does not allege any other facts suggesting a likelihood of future harm, such as a pattern of filing frequent FOIA requests with USPS.”
   
• Litigation Considerations, Adequacy of Search:   “The Court agrees with [plaintiff] in part.”  “USPS’s explanation of its searches omits key details that the applicable case law requires.”  The court explains that while “[defendant’s] statement is ‘reasonably detailed’ as far as it goes, and it sets forth ‘the type of search performed[,]’” “[it] does not ‘set[ ] forth the search terms’ [its] employees used.”  “And in [its] explanation of the search with respect to [one portion of the request], [defendant] discloses neither the ‘search terms’ nor the ‘type of search performed.’”  “The agency also did not search the records of three employees who were obviously involved in placing the Privacy Act Statement on the COVID-19 test kit website.”  The court explains that “their inclusion on some of the [responsive] emails are ‘positive indications of overlooked materials’ that make summary judgment for USPS inappropriate.”  “Finally, USPS does not adequately explain why it apparently failed to search for certain documents that likely existed at the time it conducted its new search after [plaintiff’s] administrative appeal.”  “[Plaintiff] observes, and USPS does not dispute, that ‘USPS changed its published Privacy Act Statement after AFFT submitted its FOIA request’ but before [plaintiff’s] administrative appeal and the new search that the decision on that appeal prompted, and that USPS apparently did not search for records related to that change.”  “USPS’s response is to defend the permissibility under FOIA of its ‘cut-off date’ for records to be searched, which is set by regulation at ‘the date of the search.’”  “But the permissibility of using such a cut-off is beside the point, because the record here demonstrates that ‘the date of the search’ with respect to Item #1 was after [plaintiff’s] administrative appeal, and thus necessarily after the Privacy Act Statement was changed.”  “Nowhere does USPS explain why it apparently did not look for all documents available on the date of that ‘additional search.’”
  
  “That being said, three of AFFT’s arguments in its summary judgment brief go too far.”  “[First,] the court relates that “[plaintiff] faults USPS for failing to disclose each email in every chain individually, on grounds that emails sent later in the chain would have omitted any attachments sent earlier and might have edited the text of earlier emails.”  “But here there is no ‘positive indication[ ]’ in the record that any of the emails had attachments or that earlier responses were doctored by later recipients in the email chain, and so the Court must afford USPS a presumption of good faith in its search.”  “Second, [plaintiff] contends that [USPS’s] declaration discloses for the first time the existence of “various versions of its COVID test kit webpage and comments thereto,” and that USPS should have produced those records.”  “[However,] [plaintiff] does not explain why all versions of the webpage and comments thereto would be responsive to its FOIA request as originally formulated, and [plaintiff] may not now broaden its request during the course of litigation.”  “Third, [plaintiff] generally criticizes [USPS]’s explanations of the offices searched and the decision to search only emails as vague and conclusory.”  “Not so.”
   
• Litigation Considerations, Vaughn Index/Declaration:  The court finds that “USPS has failed in this case to delineate its deliberative process privilege withholdings from its attorney-client privilege withholdings.”  “USPS therefore has not given the Court enough information to determine which withholdings are proper and which are not, to the extent that the privileges do not perfectly overlap.”  “[T]he Court will order USPS to produce a new Vaughn index and supporting affidavit that more adequately explains its withholdings.”  “Accordingly, at this stage, the Court will consider the explanation given for each application of each privilege on its own terms and will order USPS to make clear in those new materials which privilege applies to which redactions.”
   
• Exemption 5, Deliberative Process Privilege:  “The Court . . . concludes that USPS has met its burden of demonstrating that the deliberative process privilege applies to its withholdings under that privilege in all five of the redacted email chains.”  The court finds that “USPS has established that all its deliberative process privilege withholdings in this case are predecisional.”  “USPS argues that ‘[t]he redacted communications are necessarily pre-decisional because they took place prior to [ ] the Postal Service’s final decision to include a Privacy Act Statement on the COVID-19 test kit webpage, which was in the testing phase at the time of the communications.’”  “USPS has also established that all its deliberative process privilege withholdings in this case are deliberative.”  “USPS argues that the emails ‘are deliberative because they comprise drafts of the Privacy Act Statement and discussions related thereto in connection to testing the webpage.’”  “USPS has also established that all its deliberative process privilege withholdings in this case are deliberative.”  “USPS argues that the emails ‘are deliberative because they comprise drafts of the Privacy Act Statement and discussions related thereto in connection to testing the webpage.’”  Additionally, the court finds that “[defendant] explains that the emails ‘consist of drafts and proposed edits to the Privacy Act Statement and discussions related to those drafts in connection with the testing of the webpage,’ – information that by its nature involves legal judgment calls and cannot be purely factual in nature – and there is no indication in the record that would lead the Court to doubt that explanation.”
   
• Exemption 5, Attorney-Client Privilege:  The court holds that “USPS has adequately established that the attorney-client privilege applies to at least two of the five redacted email chains . . . .”  “Those emails are between [an attorney] and her ‘agency clients,’ . . . and they ‘contain[ ] the product of confidential legal discussion amongst government counsel and agency clients.’”  However, regarding other documents, the court finds that “[n]either the Vaughn index nor either of [defendant’s] declarations explains the extent to which [other] emails . . . rested on confidential communications from . . . agency clients.”  “Rather, the Vaughn index simply states that the email chains ‘arise[ ] from agency clients’ request for legal advice concerning the application of the Privacy Act, including its requirements for Privacy Statements, to the COVID-19 test kit webpage.’”  “Arising from a request for legal advice is not the same thing as resting on a confidential communication.”
   
• ​​​​​​​Exemption 5, Foreseeable Harm and Other Considerations:  “The Court concludes that USPS has not met that burden as to either category of Exemption 5 withholdings.”  “With respect to its deliberative process privilege withholdings, USPS offers two foreseeable harm justifications:  that disclosure would (1) chill internal agency discussions and (2) cause public confusion.”  “Neither explanation is sufficient.”  The court finds that “‘[t]he fatal flaw’ with [defendant’s] justification ‘is that it is essentially a restatement of “the generic rationale for the deliberative process privilege itself.”’”  “An agency cannot carry its burden simply by turning that generic rationale ‘into a game of “Mad Libs” and fill[ing] in the blanks with the name of the agency and the things that it does,’ as USPS attempts to do here.”  Additionally, the court finds that “under the FOIA Improvement Act, an agency must demonstrate in each case ‘a specific link between the specified harm – public confusion – and the nature of the withheld documents.’”  Separately, the court notes that “USPS makes no attempt whatsoever in its summary judgment brief to offer a foreseeable harm justification for its attorney-client privilege withholdings, . . . nor does it do so in its reply brief, even after AFFT points out that omission in its summary judgment brief . . . .”  “The Court could therefore treat as conceded AFFT’s argument that USPS has failed to establish that reasonably foreseeable harm would result from disclosure of its attorney-client privilege withholdings.”  “However, . . . the Court will grant USPS a second chance to give an appropriate explanation.”