Tostige v. United States Postal Service

Filing 41

ORDER granting 21 --motion for summary judgment; directing the Clerk to ENTER JUDGMENT for the defendant and against the plaintiff, to TERMINATE any pending motion, and to CLOSE the case. Signed by Judge Steven D. Merryday on 3/21/2014. (BK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
KIRK TOSTIGE,
Plaintiff,
v.

CASE NO.: 8:12-cv-2103-T-23TGW

UNITED STATES POSTAL
SERVICE,
Defendant.
____________________________________/
ORDER
This action results from Kirk Tostige’s request under the Freedom of
Information Act (FOIA) for United States Postal Service (USPS) e-mails. Tostige’s
FOIA letter sent to the USPS states:
[I] [r]equest copies of all e-mails with the name of Kirk Tostige,
Tostige or ET Tostige in the body of the message from the following
sender or recipient:
[e-mail]
[e-mail]
[e-mail]
[e-mail]
This information requested is for time period Jan.1, 2011 through Feb
29, 2012.

(Doc. 21-1 at 14 (emphasis removed))
In response, the USPS delivered (to Tostige) hundreds of pages of e-mails,
some of which the USPS redacted. Tostige protested the redactions, but most of the
redactions are no longer in dispute. The parties now dispute only fifteen redacted
pages of e-mails. (Doc. 22 at 20 (“This action is only targeted at pages: 1-2, 196-97,

285-88, 432 and 540-45 . . . .”)) For each of the disputed pages, the USPS cites
Exemption 5 of FOIA, 5 U.S.C. § 552(b)(5), which exempts from disclosure “interagency or intra-agency memorandums or letters which would not be available by law
to a party other than an agency in litigation with the agency.” Although Exemption
5 is worded poorly, “[s]tated simply, ‘agency documents which would not be
obtainable by a private litigant in an action against the agency under normal
discovery rules (e.g., attorney-client, workproduct, executive privilege) are protected
from disclosure under Exemption 5.’” Moye, O’Brien, O’Rourke, Hogan, & Pickert v.
Nat’l R.R. Passenger Corp., 376 F.3d 1270, 1277 (11th Cir. 2004) (quoting Grand Cent.
P’ship, Inc. v. Cuomo, 166 F.3d 473, 481 (2d Cir. 1999)).
In a Vaughn Index,1 the USPS cites Exemption 5 when redacting from the email pages identified by Tostige. (Doc. 21-3 at 3-11) The USPS explains that the
USPS cites Exemption 5 when redacting five forms of communication – “[a]ttorney
client privileged communication, information about internal grievance process[es]
and procedures, identifying information of other employees, information about [the]
status of other employees and an accident report.” (Doc. 21 at 12-13) Furthermore,
the USPS proffers an affidavit signed by Chistopher T. Klepac, Chief Counsel,
Federal Requirements, Legal Strategy Section, Law Department, USPS, which
(1) verifies the forms of communication that the USPS redacted under Exemption 5
and (2) explains that “[e]ach [redacted] document was individually reviewed for

1

See generally Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973).

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segregability of non-exempt information and it was determined that all reasonably
segregable information has been released to plaintiff.” (Doc. 21-2 at 4-6)
Tostige argues that the Vaughn Index is inadequate. However, the Vaughn
Index, and especially the portions of the Index describing the disputed documents, is
sufficiently detailed; for each redacted e-mail, the Index lists the page number of the
e-mail, the date of the e-mail, the subject line of the e-mail, the applicable exemption,
and a brief statement that explains how the cited exemption applies to the e-mail.
(Doc. 21-3 at 3-11); Miccosukee Tribe of Indians of Florida v. United States, 516 F.3d
1235, 1260 (11th Cir. 2008) (“The index usually consists of a listing of each withheld
document, or portion thereof, indicating the specific FOIA exemption applicable and
the specific agency justification for the non-disclosure.”). Accordingly, the Vaughn
Index, which the USPS is not required to produce,2 is sufficient.
The defendant’s motion (Doc. 21) for summary judgment is GRANTED. The
clerk is directed (1) to enter judgment in favor of the defendant and against the
plaintiff, (2) to terminate any pending motion, and (3) to close the case.
ORDERED in Tampa, Florida, on March 21, 2014.

2

Miccosukee Tribe of Indians of Fla. v. United States, 516 F.3d 1235, 1259 (11th Cir. 2008)
(“[D]epending on the circumstances, an adequate factual basis may be provided through a singular
method-such as affidavits, a Vaughn Index, or an in camera review, or a combination of these
methods.”).

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