UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AMERICANS FOR FAIR TREATMENT,

Plaintiff,

v. Case No. 1:22-cv-01183-RCL

UNITED STATES POSTAL SERVICE, et al.,

Defendants.

MEMORANDUM OPINION

This case concerns a Freedom oflnformation Act ("FOIA") request by Plaintiff Americans

for Fair Treatment ("AFFT"), a non-profit organization focused on government employees' unioin

rights, for information from Defendant United States Postal Service ("USPS" or "Postal Service").

Specifically, the plaintiff requests information about a website USPS created to distribute free

COVID-19 tests. Before the Court are USPS's Motion [ECF No. 83] for Summary Judgment

("Defs.' Mot.") and AFFT's renewed Cross-Motion [ECF No. 85] for Summary Judgment ("Pl. 's

Mot."). For the reasons that follow, the Court will DENY WITHOUT PREJUDICE USPS's

motion for summary judgment and GRANT IN PART AFFT's cross-motion for summary

judgment.

I. FACTUAL BACKGROUND

Most of the relevant factual background in this case was recounted in this Court's prior

Memorandum Opinion, issued in March 2023. See Ams. for Fair Treatment v. US. Postal Serv.,

, 47--48 (D.D.C. 2023) (Lamberth, J.). To briefly recount, on February 7, 2022,

AFFT requested the following records from USPS:

1 1. All records concerning the "Privacy Act Statement" contained on USPS 's webform through which members of the public may order rapid antigen COVID-19 tests (https://special.usps.com/testkits). The records requested include, but are not limited to, those that reflect USPS 's decision to depart from using its default "Privacy Act notice' that is "for personal information collected online" (which is published at https://about.usps.com/who/legal/privacy-policy/full- privacypolicy.htm) and instead to use a "Privacy Act Statement" that says USPS may, without consent, disclose information it obtains about the public through the COVID-19 test webform to "labor organizations as required by applicable law."

2. All records concerning USPS 's disclosure to any labor organization of information it obtained through the COVID-19 test webform.

FOIA Request at 1, Ex. A to Compl., ECF No. 1-1. 1 USPS initially deemed the request "broad in

scope" and informed AFFT that it would take "no further action and incur no chargeable costs ...

unless [they] hear[ d] back" with a reformulated request, limited to a "specific department or

geographic area of interest or to a particular timeframe." Initial FOIA Decision Letter at 17, Ex.

4 to First Deel. of Elisabeth Kines Messenger, ECF No. 18-2. AFFT thereafter exchanged

communications with Janine Castorina, Chief Privacy and Records Management Officer for USPS,

between February 8 and February 11, 2022, in which the parties discussed the scope of the FOIA

request. Deel. of Janine Castorina ,r 6, ECF No. 14-2 ("First Castorina Deel.").

After these communications, USPS reached an initial decision on February 25, 2022, and

informed AFFT that there were no responsive records as to either Item #1 or Item #2.

,r 7.

USPS explained that Item #1 "appears to compare the Privacy Act Statement, contained on the

Postal Service's website for ordering COVID-19 tests with the Postal Service's general Privacy

Policy contained on its website," and explained that "Privacy Act Statements and Privacy Policies

are separate and distinct with different purposes," and therefore "[t]here was no decision to

1 USPS refers to the two paragraphs of AFFT's request as "Item #1" and "Item #2," respectively, and the Court will do the same.

2 substitute one for the other." Second FOIA Decision Letter at 1, Ex. D to Compl., ECF No. 1-4.

With respect to Item #2, the letter stated that "[USPS's] Labor Relations [Department] was

contacted to locate [responsive] records" and that "[a]fter the search was completed it was

determined no records have been released to any labor organizations," and thus "there are no

records responsive to your request."

Under the procedures established by the FOIA, AFFT administratively appealed USPS 's

initial decision to USPS 's general counsel, who affirmed in part and reversed in part. Ams. for

Fair Treatment, 663 F. Supp. 3d at 47; see also

(a)(6)(A)(i)(III)(aa). USPS's general

counsel ruled that USPS 's initial search with respect to Item #1 was inadequate because the

"request was not only limited to a purported decision to depart from the Privacy Act Notice

Language."

. However, the general counsel also determined that "USPS did conduct

an adequate search with respect to Item #2."

(emphasis added). USPS, pursuant to

the general counsel's decision, conducted an additional search with respect to Item #1 and

produced nine pages of responsive records, comprising five email chains.

. The

documents, however, were heavily redacted.

USPS justified the redactions by invoking the

deliberative process and attorney-client privileges under FOIA Exemption 5.

AFFT brought

this litigation to challenge the redactions.

II. PROCEDURALBACKGROUND

On April 28, 2022, AFFT sued USPS, as well as then-Postmaster General Louis DeJoy2

and General Counsel Thomas Marshall in their official capacities (collectively, "USPS"). See

generally Compl., ECF No. 1. The Complaint asserted four counts: (1) withholding non-exempt,

non-excluded responsive records in violation of FOIA,

,r,r 54-60; (2) failing to conduct an

2 Undet Fed. R. Civ. Pr. 25(d), Postmaster General David P. Steiner is "automatically substituted as a party"

as the successor for previous Postmaster General Louis DeJoy.

3 adequate search for responsive records in violation of FOIA,

,r,r 61-68; (3) arbitrary and

capricious or contrary-to-law action in violation of the Administrative Procedure Act ("APA") by

not allowing an appeal to the head of the agency,

,r,r 69-7 5; and (4) ultra vi res action on the

same ground,

,r,r 76-80.

The parties litigated a previous round of cross-motions for summary judgment in 2022. See

First Mot. for Summ. J., ECF No. 14; Pl.'s Cross-Mot. for Summ. J., ECF No. 18. The parties

motions for summary judgment were each granted in part and denied in part, and the Court ordered

USPS (1) to conduct an additional search in a manner consistent with the instructions in the

Memorandum Opinion and (2) to file a new Vaughn index and supporting affidavit explaining the

propriety of its Exemption 5 withholdings. Ams. For Fair Treatment, 663 F. Supp. 3d at 63.

Additionally, the Court dismissed Counts III and IV of the Complaint, the APA and ultra vires

counts, respectively. Id. at 62. After the first round of summary judgment briefing, then, the only

remaining claims were AFFT's FOIA claims.

USPS conducted three supplemental searches and filed an updated Vaughn index and a

Third Supplemental Declaration by Janine Castorina on December 12, 2024, ultimately producing

519 pages ofresponsive records. See Third Supp. Deel. of Janine Castorina at 1, Pl. 's Mot., ECF

No. 83-3 ("Third Supp. Castorina Deel."); Vaughn Index, Ex. 1 to Mot. for Summ. J. by U.S. Postal

Serv., ECF No. 83-4. In the Third Supplemental Castorina Declaration, USPS invoked the

deliberative process privilege, pursuant to FOIA Exemption 5, over the contents of emails between

USPS internal clients concerning the Privacy Act Statement in the initial production of emails

(pages "USPS_1" through "USPS _9") and the supplemental productions (pages "USPS_1 0"

through "USPS_519"). Third Supp. Castorina Deel. ,r 54. USPS also invoked the attorney-client

privilege under Exemption 5 over portions of USPS_l through USPS_6 and USPS_l0 through

4 USPS_515. Id. ,r 60. In the Vaughn Index, USPS also claimed the deliberative process privilege

and attorney-client privilege with respect to pages USPS_192, USPS_193, USPS_194, and

USPS_196, stating that those pages "do not feature meaningful segregable information." Vaughn

Index at 46-48. USPS also represents that it conducted a "line-by-line review" of the records to

identify information that was exempt from disclosure, and that it found that "all non-exempt

information was segregated and any non-exempt portions were released." Third Supp. Castorina

Deel. ,r 76.

USPS renewed its Motion for Summary Judgment on December 12, 2024. ECF No. 83 .

AFFT cross-moved for summary judgment on January 14, 2025. ECF Nos. 84, 85. USPS filed

its opposition and reply on February 12, 2025. Combined Mem. in Opp'n to Pl.'s Cross-Mot. for

Summ. J. and Reply in Further Support ofDefs.' Mot. for Summ. J., ECF No. 86 ("Defs.' Reply").

AFFT filed its reply on February 21, 2025. Pl. 's Reply in Supp. of Renewed Cross-Mot. for Summ.

J., ECF No. 88 ("Pl.'s Reply"). AFFT no longer contests the adequacy ofUSPS's search, and the

only two issues before the Court at this stage relate to USP S's invocation of FOIA Exemption 5.

Specifically at issue is (i) whether USPS fulfilled its segregability requirements and (ii) whether it

successfully demonstrated foreseeable harm. Defs.' Reply at 1.

III. LEGAL STANDARD

A. The Freedom of Information Act

The FOIA requires agencies to make certain information available to the public upon

request.

. Congress enacted the FOIA to "pierce the veil of administrative secrecy

and to open agency action to the light of public scrutiny." Reps. Comm. for Freedom of the Press

v. Fed. Bureau ofInvestigation,

(D.C. Cir. 2021) (quoting Dep't of the Air Force

v. Rose,

(1976)). Generally, the FOIA mandates a strong presumption in favor

5 of agency disclosure. Am. Civ. Liberties Union v. US. Dep 't of Just.,

(D.C. Cir.

2011). Agencies may only withhold information that falls within one ofFOIA's nine enumerated

exemptions from disclosure.

(b); see also Elliott v. US. Dep't ofAgric.,

(D.C. Cir. 2010). "These exemptions are explicitly made exclusive ... and must be

narrowly construed." Rose,

(internal quotation marks and citations omitted). And

in 2016, Congress enacted the FOIA Improvement Act, which mandated that agencies may only

withhold information under an exemption if an agency "reasonably foresees that disclosure would

harm an interest protected by an exemption" or if"disclosure is prohibited by law." Reps. Comm.,

-58 (quoting

(a)(8)(A)(i)).

B. Summary Judgment Under Rule 56(a) in FOIA Disputes

Granting summary judgment is appropriate when "the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter oflaw."

Fed. R. Civ. P. 56(a). Most FOIA cases are decided on motions for summary judgment. Defs. of

Wildlife v. US. Border Patrol,

(D.D.C. 2009). To prevail on a motion for

summary judgment, "the defending agency must prove that each document that falls within the

class requested either has been produced, is unidentifiable or is wholly exempt from the Act's

inspection requirements." Hunton & Williams LLP v. US. Env 't Prat. Agency,

(D.D.C. 2017) (citing Weisbergv. US. Dep 't ofJust.,

(D.C. Cir. 1980))

(internal quotation marks omitted). To meet this requirement, "a defendant may rely on

declarations that are reasonably detailed and non-conclusory."

These declarations receive a

presumption of good faith, which cannot be rebutted with purely speculative claims about the

existence and discoverability of other documents. Safecard Serv., Inc. v. Sec. & Exch. Comm 'n,

(D.C. Cir. 1991). Courts may "rely on government affidavits to support the

6 withholding of documents under FOIA exemptions." Ctr. for Nat. Sec. Stud. v. US. Dep 't ofJust.,

, 926 (D.C. Cir. 2003). Agencies that prevail on summary judgment typically do so

by providing" Vaughn indices describing the withheld documents and explaining why the withheld

information fell under the claimed exemptions." Larson v. Dep 't ofState,

(D.C.

Cir. 2009). A Vaughn index itemizes a document into manageable parts so that a district court

judge "may examine and rule on each element of the itemized list." Vaughn v. Rosen,

(D.C. Cir. 1973).

IV. DISCUSSION

USPS withheld records under FOIA Exemption 5, which exempts from disclosure any

"inter-agency or intra-agency memorandums or letters that would not be available by law to a party

other than an agency in litigation with the agency."

(b)(5). To qualify for

Exemption 5, a document must satisfy two conditions: First, it must be from a government agency,

and second, "it must fall within the ambit of a privilege against discovery under judicial standards

that would govern litigation against the agency that holds it." Dep 't of Interior v. Klamath Water

Users Prat. Ass 'n,

(2001 ). One such privilege is the "deliberative process privilege,"

which protects an agency from disclosing documents reflecting intermediate deliberations of its

policy covering what the law is.

. This privilege protects intermediate deliberations,

including advisory opinions, recommendations, and deliberations comprising the process by which

governmental decisions and policies are formed. NL.R.B. v. Sears, Roebuck & Co.,

(1975). However, it does not protect from disclosure final '"opinions and interpretations'

which embody the agency's effective law and policy" because allowing an agency to withhold

these documents would allow the agency to promulgate "secret (agency) law" internally.

.

7 Second, attorney-client privilege can also extend to government agencies under this section

ofFOIA, treating the "client" as the agency and the attorney as an agency lawyer. Tax Analysts v.

Internal Revenue Serv. ,

(D.C. Cir. 1997). USPS invoked attorney-client

privilege and the deliberative process privilege to justify its Exemption 5 withholdings. 3 As

explained below, the Court finds that USPS has failed to properly support its Exemption 5

withholdings under the deliberative process privilege but has properly supported its withholdings

under the attorney-client privilege. However, because USPS has further failed to meet its

segregability burden, the Court will deny USPS 's motion for summary judgment.

A. Individual Defendants

The plaintiff, in addition to USPS, named Postmaster General Louis DeJoy and Thomas J.

Marshall, General Counsel of the USPS, as individual defendants. CompI. ,r,r 8-9. But

"[i]ndividual federal officials are not proper defendants in a FOIA action because it is the agency's

responsibility to produce records." Jefferson v. Reno,

(D.D.C. 2000).

Accordingly, the Court will dismiss Counts 1 and 2 against the individual defendants and only

assess the FOIA claims against USPS.

B. The Deliberative Process Privilege

The deliberative process privilege allows a government agency to withhold or redact

documents under FOIA Exemption 5 when the records' contents reflect an advisory opinion,

recommendation, or deliberation comprising the process by which an agency forms its decisions

or policies. Klamath,

. To determine whether a document falls under one of these

3 Exemption 5 pennits an agency to invoke work-product privilege, protecting government attorney ' work-product during litigation. Sears,

. This Exemption incmporates Federal Ru le of Civil Procedure 26(b) 3), which defines work-product privilege as a barrier fo r a party to obtain documents that are prepared in anticipation of litigation unless a party shows it has substantial need for the material and cannot obtain the equivalent information by other means. Fed. R. Civ. P. 26(b)(3). USPS has not invoked that privilege here.

8 categories, a court first looks to whether the document was predecisional, meaning it was

"generated before the adoption of an agency policy." Coastal States Gas Corp. v. Dep 't ofEnergy,

(D.C. Cir. 1980). Next, a court determines whether the document was

deliberative, meaning it reflected "the give-and-take of the consultative process."

Because the

Court has already determined that the withholdings are both pre-decisional and deliberative, see

Ams. For Fair Treatment, 663 F. Supp. 3d at 57, it will begin and end its discussion of the

deliberative process privilege with the overarching "foreseeable harm" requirement imposed by

the FOIA Improvement Act of 2016.

i. USPS Failed to Demonstrate Foreseeable Harm

Since 2016, the FOIA has allowed agencies to withhold information under an exemption

only if an agency "reasonably foresees that disclosure would harm an interest protected by an

exemption" or if "disclosure is prohibited by law." Reps. Comm.,

-58 (quoting

(a)(8)(A)(i)). For withholdings made under the deliberative process privilege, "the

foreseeability requirement means that agencies must concretely explain how disclosure 'would'-

not 'could'-adversely impair internal deliberations." Id. at 369-70. "[B]oilerplate and generic

assertions that release of any deliberative material would necessarily chill internal discussions,"

for example, cannot carry the day. Ams. for Fair Treatment, 663 F. Supp. 3d at 59. Rather, to

demonstrate foreseeable harm, the agency must provide a "focused and concrete demonstration of

why disclosure of the particular type of material at issue" will impede similar agency deliberations

going forward. Reps. Comm.,

.

Here, USPS has failed to adequately establish a reasonably foreseeable harm. First, USPS

claims that disclosure would cause harm because disclosing the records at issue, USPS_ l through

USPS_519, "would prevent [USPS] officials, employees, and attorneys from speaking candidly

9 amongst each other regarding new initiatives and policy developments." Defs.' Reply at 7. This

language is far too speculative and does not explain a particular harm that the agency would suffer.

The FOIA specifically requires a concrete explanation of why preventing officials from speaking

candidly amongst each other would harm the agency. Reps. Comm.,

. The language

here fails that requirement, and this Court in the past has held similar language to be impermissible

boilerplate. See, e.g., Nat'! Pub. Radio v. US. Dep't of Homeland Sec., No. 20-cv-2468-RCL,

, at *7-8 (D.D.C. Sept. 28, 2022) (Lamberth, J.) (holding that similar language

in both the agency's declaration and its Vaughn index was "a generic, boilerplate justification"). 4

Second, USPS argues that it faces foreseeable harm because disclosure would chill USPS

employees from communicating with the White House regarding the Privacy Act Statement. See

Pl. 's Mot. at 10. It further claims that encouraging frank discussion with the White House will be

necessary as the new Administration's shifting priorities on data privacy only amplify the "unique

sensitivity" of the Privacy Act Statement. Id. at 10-11. To support its argument, USPS cites the

Third Supplemental Castorina Declaration, which states that disclosure would impair the White

House's ability to coordinate with government agencies like the Postal Service when responding

to a crisis like the COVID-19 pandemic. See Third Supp. Castorina Deel. ,r 69.

Castorina attempts to explain why disclosure would be particularly harmful to USPS by

stating that critically evaluating the Privacy Act without fear of disclosure is essential to ensuring

4 AFFT also contend<, that when USPS aid in iti summary judgment briefing that disclosure "might cause a chilling effect' within the agency, it only explained how release "could' ha1m the agency by adversely impairing internal agency deliberations-not, as Reporters Committee requires, how it "would" do so. Mem. Of Law in Opp'n to Defs.' Renewed Mot. for Summ. J. and in Supp. of Pl.'s Renewed Cross-Mot. for Summ. J. at 10-11, ECF No. 84 (quoting Defs.' Mot. at 29) (emphasis added). USPS responds that its use of the word "might" in that earlier motion was an error and that the harm USPS states it would face in the Vaughn Index and Third Castorina Declaration, mainly that disclosure would impair its internal clients' ability to seek legal guidance and counsel over concerns regarding the Privacy Act, is foreseeable. Id.; see also, e.g., Vaughn Index at 2. This dispute is ultimately immaterial because the language in the Vaughn Index is still boilerplate and fails to establish a reasonably foreseeable harm.

10 that the USPS can gather necessary information about providing free COVID-19 test kits to the

American public. Third Supp. Castorina Deel. ,r 67. Withholding the documents would allow

USPS to evaluate Privacy Act compliance issues and provide rigorous legal analysis to properly

deliver the free COVID-19 test kits to the American public. Id. However, this assertion is

fundamentally conclusory; it only speculates about a harm that could happen, not one that would

happen. See Reps. Comm.,

. The Vaughn Index provides no more clarity as

it regularly repeats this explanation for foreseeable harm. 5

Additionally, the Court is unpersuaded that disclosure of communications between USPS

and the White House would cause a foreseeable harm. The Vaughn Index contains only boilerplate

language, stating that release of information would "hinder internal clients' ability to seek legal

guidance, and without the benefit of context, disclosure could result in the public's

misunderstanding or misstatement of internal deliberations." E.g., Vaughn Index at 83-84. This

surface-level language appears throughout the Index and does not do enough to explain what harm

would result from disclosure of communications between the White House and USPS. Merely

stating that harm would result from disclosing communications about USPS 's response to inquiries

regarding the Privacy Act statement is the exact type of "Mad Libs" statement that this Court

previously held to be impermissibly vague. See Nat'! Pub. Radio v. US. Dep 't ofHomeland Sec.,

No. 20-cv-2468-RCL,

, at *8 (D.D.C. Sept. 28, 2022) (Lamberth, J.). It is not

enough to provide a generalized statement; USPS must explain why harm would result to provide

a concrete demonstration that harm would result from disclosure. The conclusory language in the

5 USPS claims that "[r]elease would harm its ability to ensure that the requirements of the Privacy Act are met and would undermine internal clients' ability to freely communicate que tions and concerns along with coun els ability to communicate with.one another. Furthermore, revealing internal policy-making and legal discussions would hinder internal clients ability to eelc.legal guidance, and without the benefit of context disclosure could result .in the public misunderstanding or misstatement of internal deliberations, including with respect to the Privacy Act Statement, the final version of which is not included in these passages." Ex. 1 at 2-7, ECF No. 83-4.

11 Vaughn Index does not establish foreseeable harm, so USPS needs to provide non-speculative

factual evidence to demonstrate why the internal clients would be harmed by mandated disclosure. 6

See, e.g., Machado Amadis v. U.S. Dep 't ofState,

,371 (D.C. Cir. 2020) (holding that

agency successfully established foreseeable harm because its forms focused on "the information

at issue" instead of providing a generalized statement).

C. Attorney-Client Privilege

For the reasons explained below, USPS successfully invokes the attorney-client privilege

on USPS_l through USPS_6 and USPS_l0 through USPS_519. The attorney-client privilege

covers "confidential communications between an attorney and [their] client relating to a legal

matter for which the client has sought professional advice." Mead Data Cent. , Inc. v. U.S. Dep 't

of the Air Force,

(D.C. Cir. 1977). In FOIA cases, the attorney-client privilege

treats the agency as the "client" and the agency lawyer as the "attorney." Tax Analysts,

. "[A] fundamental prerequisite to assertion of the privilege" is "confidentiality both at the

time of the communication and maintained since." Coastal States,

. "The burden

is on the agency to demonstrate that confidentiality was expected in the handling of these

communications, and that it was reasonably careful to keep this confidential information protected

from general disclosure."

To satisfy this burden, the government must provide "'detailed and

specific information' that the withheld information falls within the attorney-client privilege."

Transgender L. Ctr. v. U.S. Immigr. & Customs Enf't, No. 21-cv-2153-RCL,

, at

6 USPS additionally claims that harm could result from disclosure because the public might misconstrue the conversation taking place in the emails and erroneously as ume that USPS is misusing customer information, creating public distrust. Defs. ' Mot. at 31. However, the statement in the Vaughn Index that lhe public would misunderstand the internal deliberations is speculative and does not provide enough detail to establish that harm would result, so USPS needs to provide a stronger factual basis for why the public would misunderstand the deliberations here and how that would actionably harm the agency.

12 *8 (D.D.C. Feb. 25, 2025) (Lamberth, J.) (quoting Campbell v. US. Dep 't ofJust.,

(D.C. Cir. 1998)).

Here, USPS provides a satisfactory explanation for why the attorney-client privilege

applies to the emails at issue. In the Vaughn Index, USPS explains that the email correspondence

concerns the agency-clients' requests for legal advice concerning the application of the Privacy

Act while the agency crafted its Privacy Act statement for the COVID-19 test kit webpage. See

Vaughn Index at 4. The index also identifies the specific employees involved in the

communications: Janine Castorina, and Christopher Gillespie and Christopher Lind, employees

who acted and communicated at the direction of Janine Castorina.

Because USPS identifies

the specific employees involved and shows that legal advice was sought, requiring confidentiality,

USPS has successfully met its burden to provide "detailed and specific information" that the

withheld emails fall within the attorney-client privilege.

As for foreseeable harm, the Vaughn Index explains that disclosure would prevent USPS

attorneys from supplying "candid guidance concerning compliance, including as to the Privacy

Act, and would be unable to candidly discuss internal clients' compliance concerns." Id. at 6.

USPS claims that the harm of disclosure in the attorney-client privilege context is therefore

"virtually self-evident." Pl. 's Mot. at 17 (citing United States v. Philip Morris,

(D.C. Cir. 2003)). USPS states that the Third Supplemental Castorina Declaration adequately

explains the foreseeable harm USPS would face if information about its internal discussions in

relation to the Privacy Statement were disclosed, asserting that "[ e]xposing such communications

to public scrutiny would interfere with the attorney-client relationship between postal attorneys

and internal clients by impeding the sharing of candid advice that is critical to an attorney's ability

to render legal advice." Third Supp. Castorina Deel. ,r,r 72-74.

13 AFFT counters that this language would create a "categorical exemption" to the foreseeable

harm requirement, citing broadly to Blade v. US. Department of Labor, No. 20-2591,

(D.D.C. Nov. 4, 2024). Pl.'s Reply. at 8. In Blade, the court held that the Department of

Labor ("DOL") failed to satisfy the foreseeable harm test because it attempted to withhold all legal

advice, regardless of whether it addressed the issue at hand, and because it did not identify the

specific employees who received the communications. Blade,

at *34. DOL's

explanation of harm stated that release of the documents would undermine its ability to "utilize its

legal counsel for assistance in resolving complex problems if such information was routinely

disclosed to the public."

The court deemed that language too broad to establish foreseeable

harm.

Here, USPS avoids the issues DOL faced in Blade by (1) stating that the legal advice at

issue was directly related to the Privacy Act issue, (2) identifying the specific employees involved,

and (3) linking the disclosure harm to USPS's ability to disseminate candid legal guidance to

employees concerning Privacy Act compliance. Vaughn Index at 3. This language, albeit broad

in a generic sense, addresses the deliberations that occurred when crafting the Privacy Act

statement because it contains specific detail indicating the legal advice was sought regarding the

Postal Service's compliance with the Privacy Act. It is therefore enough to pass the standard for

foreseeable harm under attorney-client privilege, and USPS is entitled to attorney-client privilege

over USPS_l through USPS_6 and USPS_l0 through USPS_515. However, the analysis does not

stop here, as USPS must also prove it met its segregability burden to win on summary judgment.

As the Court will now explain, USPS has failed to do so.

14 D. USPS Failed to Meet Its Segregability Burden

The FOIA requires that "any reasonably segregable portion of a record shall be provided

to any person requesting such record after the deletion of the portions which are exempt."

(b). The D.C. Circuit has long held that "non-exempt portions of a document must be

disclosed unless they are inextricably intertwined with exempt portions." Mead Data Cent.,

( emphasis added). Agencies are generally entitled to a presumption that they complied

with the obligation to disclose reasonably segregable material, but they must explain the grounds

for their conclusions regarding segregability with "reasonable specificity." Khatchadourian v. Def

Intel. Agency,

, 81 (D.D.C. 2020) (Lamberth, J.). To satisfy the "reasonable

specificity" standard, agencies must provide detailed justifications that they properly segregated

non-exempt material; mere conclusory statements are not enough. Ctr. for Pub. Integrity v. US.

Dep't of Com.,

, 116 (D.D.C. 2019). In the context of a Vaughn index, an

agency attempting to withhold segregable information "must provide a particularized explanation

of non-segregability for each document." Ctr. for Biological Diversity v. US. Env 't Prot. Agency,

, 152 (D.D.C. 2017). Plaintiffs can rebut the government's presumption by

providing a "quantum of evidence" to show that the agency did not comply with its obligation to

disclose reasonably segregable material. Sussman v. US. Marshals Serv.,

(D.C. Cir. 2007).

Here, the only documents in question are a one-page email and one-page attachment at

pages USPS_l92 and USPS_193, and a two-page email and one-page attachment at pages

USPS_194 through USPS_196. See Vaughn Index at 46-48. AFFT claims that USPS has failed

to "show with reasonable specificity why the documents cannot be further segregated." PL 's Reply

at 1 (internal quotation marks omitted). AFFT further alleges that USPS relied on boilerplate

15 language when it stated in the Third Supplemental Castorina Declaration that it conducted a "line-

by-line review" of the records to determine what information would be exempt from disclosure.

Id. at 2. To rebut the presumption that USPS complied with the obligation to disclose reasonably

segregable material, AFFT alleges that USPS submitted contradictory statements about

segregability, simultaneously saying "that it (1) withheld 'inextricably intertwined' non-exempt

information, yet (2) segregated 'all non-exempt information' and released 'any non-exempt

portion."' Id. at 3.

The Court finds this argument unpersuasive. For one thing, a document can have both

segregable information and inextricably intertwined information; the two are not mutually

exclusive. AFFT appears to be providing circular reasoning to explain an alleged contradiction,

for there is nothing preventing USPS from withholding information that is inextricably intertwined

while also segregating non-exempt information that is not inextricably intertwined. And in any

event, the plaintiff does not explain why this alleged contradiction violates Mead Data Center.

Nonetheless, because USPS fails to explain with reasonable specificity why the documents

should be non-exempt and segregated, it fails to meet its segregability burden. When analyzing

the defendant's renewed motion for summary judgment, the Court must consider whether the

defendant made non-conclusory statements in its Vaughn Index. See Ctr. for Pub. Integrity, 401

F. Supp. 3d at 116. A closer examination of the Vaughn Index reveals that USPS made only

conclusory statements and fails to satisfy the Khatchadourian standard of "reasonable specificity"

required for segregability. To show USPS properly segregated exempt material from non-exempt

material in these emails, it states that "these pages do not feature meaningful segregable

information" when explaining in the index why certain email chains meet the segregability

requirement. Id. Additionally, the Third Supplemental Castorina Declaration states that a line-by-

16 line review of the records was conducted, and that all non-exempt information was segregated.

Third Supp. Castorina Deel. iJ 76. AFFT in its reply emphasizes that the Vaughn Index gives no

indication how USPS conducted its segregability analysis, and that the Castorina Declaration gives

no information why a line-by-line review, without more, would satisfy the Khatchadourian test.

Pl. 's Reply at 2.

The Court agrees with AFFT. Neither the Vaughn Index nor the Third Supplemental

Castorina Declaration provides enough information to conclude USPS properly segregated

information with "reasonable specificity." The Court in Khatchadourian held that a line-by-line

analysis is necessary but not sufficient to satisfy the "reasonable specificity" test. Khatchadourian,

453 F. Supp. 3d at 83. Indeed, the court held that the agency's proffer was insufficient despite its

line-by-line analysis. Id. Here, without any supplemental information explaining why a line-by-

line review was sufficient in either Castorina's Declaration or the Vaughn index, USPS cannot pass

the "reasonable specificity" test. USPS needs to provide more information about which

information was exempt and which information was inextricably intertwined such that it could not

be segregated. See, e.g., Johnson v. Exec. Off For US Atty's,

(D.C. Cir. 2002)

(holding that agency's Vaughn index described each document withheld with sufficient detail but

not so much detail that the exempt material would be effectively disclosed). USPS can provide an

updated Vaughn index to explain its segregability analysis in greater detail, providing specific

findings of which material is segregable.

V. CONCLUSION

For the foregoing reasons, the Court will GRANT IN PART AFFT's cross-motion for

summary judgment and DENY WITHOUT PREJUDICE USPS 's motion for summary

judgment. In sum, with respect to attorney-client privilege, USPS has met its burden for the

17 foreseeable harm requirement. Because the attorney-client privilege applies to pages USPS_ 1

through USPS_6 and USPS_l0 through USPS_515, the Court will GRANT summary judgment

for USPS as to those documents. However, USPS failed to demonstrate with reasonable specificity

the bases for its conclusions regarding segregability, so the Court will DENY summary judgment

for USPS as to documents USPS_192 through USPS_196.

Further, USPS failed to demonstrate a concrete foreseeable harm under the deliberative

process privilege, so the Court will DENY USPS 's cross-motion for summary judgment as to

documents USPS_7 through USPS_9 and USPS_516 through USPS_519. The Court will

ORDER that USPS either :

(1) Provide a concrete explanation as to how its disclosure of documents USPS_7-

USPS _9 and USPS _516-USPS _519 would prevent its officials from speaking candidly

or chill employees from communicating with the White House regarding the Privacy

Act Statement, and (2) Provide a reasonably specific basis for its conclusions regarding

segregability for documents USPS_192 through USPS_l96;

• OR disclose documents USPS_7 through USPS_9, USPS_516 through USPS_519,

USPS_192, USPS_l93, and USPS_194 through USPS_196 in their entirety to AFFT.

An Order consistent with this Memorandum Opinion will follow.

Date: August __!_!__ 2025 Royce C. Lamberth United States District Judge

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