Pejouhesh v. USPS, No. 17-1684, 2022 WL 768470 (D.D.C. Mar. 14, 2022) (Moss, J.)

Pejouhesh v. USPS, No. 17-1684, 2022 WL 768470 (D.D.C. Mar. 14, 2022) (Moss, J.)

Re:  Request for records concerning plaintiff

Disposition:  Granting in part and denying in part defendant's motion for summary judgment and denying plaintiff's cross-motion for summary judgment.

• Waiver and Discretionary Disclosure:  "[I]t appears that the government filed the Affidavit in Support of an Arrest Warrant—without redactions—on the public docket in Plaintiff's criminal case."  "Under the 'public domain doctrine,' records 'normally immunized from disclosure under FOIA lose their protective cloak once disclosed and preserved in a permanent public record.'"  "To ensure that the document filed in Plaintiff's criminal case is, in fact, the same document that the Postal Service withheld in part from Plaintiff under Exemption 7(C), the Court will order that the Postal Service file a status report within 14 days explaining (1) whether the 'victim statements' it withheld under Exemption 7(C) were publicly released on Plaintiff's criminal docket, and (2) whether the document containing those statements should be released under the public domain doctrine."
   
• Exemption 7(E); Litigation Considerations, In Camera Inspection:  "Because this case has been pending for over four years, and given the Postal Service's repeated failures to provide detailed declarations or a detailed Vaughn index, the Court ordered the Postal Service to produce the 17-page Operation Plan for ex parte, in camera review."  "Having reviewed the Plan, the Court finds that it served the law enforcement purpose of memorializing a common plan for Postal Inspection Service officers to follow when arresting Plaintiff and executing a search warrant."  "The first prong of [the] Exemption 7(E) standard is thus satisfied."  "The Operation Plan also satisfies Exemption 7(E)'s 'low bar' for the agency to justify withholding documents the release of which would 'disclose techniques and procedures for law enforcement investigations.'"  "The Court agrees with the Postal Service's description and assessment of the Operation Plan."  "Although in a general sense, the kinds of techniques described in the Plan may not be novel or secret, the details contained in the Plan, if disclosed, could assist criminals in evading detection or arrest."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  "The Court concludes that segregability is not possible for the Operation Plan."  "As discussed, the Postal Service has provided the document to the Court . . . and the Court has determined that the Plan almost exclusively consists of enforcement personal identifying information, plans, and techniques, which are properly withheld under FOIA Exemption 7(E)."  "The Court, moreover, credits the Postal Service's view that releasing the Operation Plan—even in redacted form—could 'enable individuals to learn how the [Postal] Inspection Service approache[s] arrest operations.'"  "The Court thus concludes that the Operation Plan is not reasonably segregable."
  
  "Finally, with respect to all other documents described in the Postal Service's Vaughn index, the Court concludes that the Postal Service produced all segregable, non-exempt information."  "[F]or every document other than the Operation Plan and the affidavit containing victim statements, the Postal Service withheld only '[the] Postal Inspector's name' or '[the] Postal Inspector's name and initials.'"  "An individual's name, when properly redacted pursuant to Exemption 7(C) . . . cannot be reasonably segregated."  "The Court, accordingly, finds that segregability is not possible for the remaining documents described in the Postal Service's Vaughn index."
   
• Procedural Requirements, Searching for Responsive Records:  "As explained above, the Postal Service searched its computer database and located 61 pages of responsive records, released 37 pages (either in full or with redactions), and withheld the remainder or referred them to agencies for review."  "The Postal Service also determined that 'all hard copy documents and evidence were destroyed when [Plaintiff] exhausted [the] appeals' of his conviction."  "Thus, '[t]he only documents that remain[ed]' in existence were those 'attached to the case file in [the computer database] when the case was active.'"  "Unsatisfied, Plaintiff submitted a second FOIA request in 2017."  "In response, the Postal Service did not conduct an additional search, and it advised Plaintiff that 'he [had been] provided with all remaining responsive material in existence which relate to the subject of his request.'"  "Second, the Court has already held that 'the Postal Service conducted adequate searches for the records Plaintiff sought' through both FOIA requests."  "Thus, to the extent Plaintiff now suggests in his opposition brief that the Postal Service 'did not conduct[ ] [an] adequate . . . search for all records Plaintiff sought,' . . . that argument is foreclosed by the law of the case."
   
• Litigation Considerations, Vaughn Index/Declaration:  "[D]espite Plaintiff's claims to the contrary, there is no evidence that the Postal Service failed to include any documents in its Vaughn index."  "The Court has no reason to question the Postal Service's representations, made under the penalty of perjury, that the 61 pages of records listed in the Vaughn index are the only 'responsive material in existence.'"  "All 61 pages are accounted for in the Vaughn index."  "The Court thus concludes that no responsive records in existence were omitted from the Vaughn index.