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ANDERSON v. USPS

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


June 9, 1998

THOMAS P. ANDERSON, JR., Plaintiff,
v.
UNITED STATES POSTAL SERVICE, Defendant.

The opinion of the court was delivered by: KATZ

MEMORANDUM

 Katz, J.

 June 9, 1998

 Factual Background

 In this pro se action, plaintiff Thomas Anderson seeks information about a pending criminal investigation through the Freedom of Information Act ("FOIA") and the Privacy Act. Anderson is an employee of the Postal Inspection Service, and the Inspection service is conducting an investigation in which he is involved. On December 2, 1996, he was interrogated by two postal inspectors in part of an ongoing investigation, and that interrogation was electronically recorded. See Compl. Ex. B. Plaintiff made FOIA requests seeking access to his investigative file, and defendant has released a variety of materials from that file. See Def. Mot. Ex. A, P 4. On January 8, 1998, in order to close out a separate FOIA action, Anderson entered into a settlement and stipulation with defendant not to request information provided in response to his FOIA request. Compl. Ex. A. On January 19, 1998, Anderson filed another FOIA request seeking the contents of any other investigative file relating to him that had not already been produced. See id. Ex. B. The Inspection Service received the request on January 30, 1998. See id. Ex. B P 2. On February 27, 1998, the Inspection Service sent a letter acknowledging receipt of his request and stating that there would be a delay in furnishing copies of the materials requested. See id. Ex. D. On March 30, 1998, Anderson filed this lawsuit, in which he asks this court to compel disclosure of the requested information. Defendant has moved for summary judgment. *fn1"

 Discussion

 Exhaustion of Administrative Remedies

 Anderson claims that the defendant's delay in responding to his requests constitutes exhaustion of administrative remedies under the FOIA, but he does not indicate whether he has exhausted his administrative remedies under the Privacy Act. See Compl. P 18. *fn2" The FOIA contains what has been called a "constructive exhaustion" exception: 5 U.S.C. § 552(a)(6)(A) states that the agency to which a FOIA request has been submitted must notify the person making the request whether it will comply within ten days after receiving the request, and § 552(a)(6)(B) imposes a twenty day time limit on the agency to respond after an administrative appeal. Section 552(a)(6)(C) provides that a person making a request will be deemed to have exhausted his administrative remedies if the agency fails to comply with either deadline. However, section 552(a)(6)(B) allows for a ten day extension in limited circumstances, with written notice to the person making the request. The courts have also limited the constructive exhaustion requirement somewhat; section 552(a)(6)(C) allows recourse to the courts to compel the agency's response to a request and force the agency to release the requested documents, but once the agency responds, the requester must exhaust administrative remedies before seeking judicial review. See McDonnell v. United States, 4 F.3d 1227, 1240-41 (3d Cir. 1993); Oglesby v. United States Dept. of Army, 287 U.S. App. D.C. 126, 920 F.2d 57, 64 (D.C. Cir. 1990).

 A FOIA response is sufficient for purposes of requiring an administrative appeal if it includes: 1) the agency's determination of whether or not to comply with the request; 2) the reasons for its decision; and 3) notice of the right of the requester to appeal to the head of the agency if the initial agency decision is adverse. See Oglesby, 920 F.2d at 65. Anderson received a vague positive response to his FOIA request from the agency outside of the statutory time limit, and the agency is now informing the court, via the government's motion, that the documents requested are outside of the purview of FOIA. It appears that plaintiff has exhausted his administrative remedies under the FOIA, and the court will address the merits of his FOIA claim. *fn3"

 FOIA Exemptions

 The documents Anderson seeks are exempt from disclosure under Exemption 7(A) of the FOIA. See 5 U.S.C. § 552(b)(7)(A). Exemption 7(A) authorizes the withholding of records or information compiled for law enforcement purposes. To fit within Exemption 7(A) the government must show that: 1) a law enforcement proceeding is pending or prospective; and 2) release of the information could reasonably be expected to cause some articulable harm. See Manna v. Dept. of Justice, 51 F.3d 1158, 1164 (3d Cir. 1995). A court may also take the requestor's identity into account in making this determination. See id.

 The government has submitted a declaration of Thomas P. Dagley, the Acting Manager of the Internal Affairs Division of the United States Postal Inspection Service, that claims the release of the report of the investigation would expose actual or prospective witnesses to undue influence or retaliation and would disclose the focus of their investigative activities by releasing sensitive information prior to disposition of the case by the agency or the United States Attorney. Def. Mot. Ex. A, P 3; see Manna, 51 F.3d at 1164-65. *fn4" Interference is reasonably likely in this case, because Anderson seeks the reports of any interviews that have occurred thus far, and these will disclose the identities of the persons interviewed. Def. Mot. Ex. A, P 3. Any statement by Anderson as to his motives is not sufficient, for in Exemption 7 cases, a plaintiff's affidavit of subjective intent is irrelevant. See Pully v. IRS, 939 F. Supp. 429, 436 (E.D. Va. 1996). Neither a Vaughn index nor in camera review of the documents in question is necessary in light of the documentation submitted by the government. See Wright v. OSHA, 822 F.2d 642, 646 (7th Cir. 1987); see also Manna, 51 F.3d at 1163-64. The court finds that the government has made an adequate showing that some form of harm is reasonably likely to occur.

 Alternatively, the documents sought by Anderson are exempt from disclosure under Exemption 7(C). This exemption authorizes the withholding of records or information compiled for law enforcement purposes, if such records "could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C). This exemption also requires a balancing of the privacy interests at risk against the public interests, if any, that would be served by disclosure. See Manna, 51 F.3d at 1165. The public interest in a citizen's access to personal information compiled by his government employer must be balanced against the privacy interests of those persons involved in the investigation. The protection of 7(C) extends to law enforcement officers as well as interviewees and witnesses involved in criminal investigations, who have a "substantial privacy interest" in non-disclosure of their identities "because disclosure may result in embarrassment and harassment." See id. at 1166, citing McDonnell, 4 F.3d at 1255. Given the pending nature of the criminal investigation and the risk of harm and retaliation to the persons currently involved in this investigation, the protection of these persons' privacy interests outweighs any public interest implicated by Anderson's current FOIA requests.

 The Postal Inspection Service avers that a number of documents have been released to Anderson, and that he may renew his request once the current investigation has closed. Def. Mot. Ex. A, P 4. Anderson may find the agency will prove more willing to provide information at a later date.

 An appropriate Order follows.

 ORDER

 AND NOW, this 9th day of June, 1998, upon consideration of defendant's Motion for Summary Judgment, and the response thereto, and plaintiff's Motion to Compel the Government to Produce a Vaughn Index, and the response thereto, it is hereby ORDERED that plaintiff's Motion is DENIED and defendant's motion is GRANTED.

 BY THE COURT:

 MARVIN KATZ, J.


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