Am. Oversight v. USPS, No. 20-2580, 2021 WL 4355401 (D.D.C. Sept. 23, 2021) (Contreras, J.)

Am. Oversight v. USPS, No. 20-2580, 2021 WL 4355401 (D.D.C. Sept. 23, 2021) (Contreras, J.)

Re:  Request for work calendar of Postmaster General Louis DeJoy

Disposition:  Denying defendant's motion for partial summary judgment; granting in part and denying in part plaintiff's cross-motion for summary judgment

• Exemption 3:  The court "directs USPS to reevaluate its current redactions to comply with the standard articulated [here] and provide an updated declaration to the Court if it wishes to continue to withhold these records from disclosure."  The court relates that "USPS relies on the Postal Reorganization Act ('PRA'), which specifically exempts from disclosure under FOIA 'information of a commercial nature, including trade secrets, whether or not obtained from a person outside the Postal Service, which under good business practice would not be publicly disclosed.'"  "[Plaintiff] does not dispute that the PRA is a withholding statute under Exemption 3."  "[Plaintiff] does, however, take issue with USPS's assertion that all of the material withheld under this exemption falls within the parameters of the PRA because it is 'commercial' in nature."  The court specifically notes that "USPS's regulations define commercial information as 'relat[ing] to commerce, trade, profit, or the Postal Service's ability to conduct itself in a businesslike manner' and provide a set of six additional, non-determinative factors for determining whether information is commercial."  "As USPS itself explained, the Postal Service considers these factors to determine 'whether the information [at issue] is more akin to its role as a business entity, a competitor in the market, or a provider of basic public services.'"  "The first five factors weigh in favor of withholding, inquiring as to whether the information:  (1) '[r]elates to products or services subject to economic competition, including [certain products and services offered by USPS]'; (2) '[r]elates to the Postal Service’s activities that are analogous to a private business in the marketplace'; (3) '[w]ould be of potential benefit to individuals or entities in economic competition with the Postal Service, its customers, suppliers, affiliates or business partners, or could be used to cause harm to a commercial interest of the [same]'; (4) '[i]s proprietary or includes conditions or protections on distribution and disclosure, is subject to a nondisclosure agreement, or a third party otherwise expressed an interest in protecting such information from disclosure'; (5) '[i]s the result of negotiations, agreements, contracts or business deals between the Postal Service and a business entity.'"  "The sixth factor, however, weighs in favor of disclosure, asking whether the information '[r]elates primarily to the Postal Service’s governmental functions or its activities as a provider of basic public services.'"  "This is 'presumably because such information is subject to public inspection, unlike the types of commercial information that must be withheld to protect USPS's business interests.'"  The court relates that "USPS contends, in essence, that the entirety of Mr. DeJoy's calendar is commercial information simply because the agency is responsible for a myriad of commercial activities."  "But this approach is so broad it would swallow any FOIA obligation entirely . . . ."  "This outcome cannot be reconciled with the intent of Congress, which while exempting the Postal Service’s commercial information from release, notably did not exempt the agency from FOIA requirements altogether."  "Despite this fact, USPS attempts to make much of what it characterizes as 'Congress's repeated exhortation that USPS operate like a private enterprise.'"  "The Court does not dispute that through the PRA, Congress provided USPS 'with a broad release from many FOIA disclosure requirements.'"  "But again, this ignores the fact that unlike private enterprises, Congress determined that USPS would still be subject to FOIA – no doubt an obligation imposed in light of the USPS's public sector work funded by the public's tax dollars."  "USPS also attempts to further limit this factor's application by refusing to disclose any meetings discussing issues of public concern where they 'are likely to be inextricably intertwined with commercially-sensitive information.'"  "The Court is troubled by this speculative language which would seem to imply that the agency has not actually conducted the required analysis for each entry it has redacted, contradicting its other representations to the Court."  "Furthermore, the Court cautions USPS to remember that it is the substance of the calendar entries that is at issue here, not the content of the meetings themselves."
   
• Exemption 5, Deliberative Process Privilege:  The court holds that "USPS is directed to either supplement its current declaration . . . and explain why Exemption 5 applies to each calendar entry, or alternatively, it may select to disclose the calendar entries withheld under this exemption."  The court relates that "USPS seeks to withhold . . . calendar entries that are described by USPS as falling within four general categories:  strategy meetings with subordinates, meetings with the USPS Board of Governors, legal meetings, and meetings with other federal executives and agencies."  "'To establish that a document is protected by the privilege, the agency need[s] . . . [to] establish what deliberative process is involved, and the role that the documents at issue played in that process.'"  "'In addition to explaining the "function and significance of the document(s) in the agency's decisionmaking process," the agency must describe "the nature of the decisionmaking authority vested in the office or person issuing the disputed document(s), and the positions in the chain of command of the parties to the documents."'"  The court finds that "USPS does not do any of these required tasks."  "It provides only the most general descriptions of what these calendar entries could contain – stating that the redacted meetings with subordinates concern 'Postal Service business, services and products, and processes and procedures.'"  "Noticeably absent from all of these descriptions is any semblance of an identification of a specific deliberative process at issue, how these calendar entries contributed to said deliberative process, or any explanation of who issued these calendar entries and their position in the chain of command."  "USPS does not provide even a general description of the specific subject matter of each calendar entry at issue, giving the Court only the four broad categories of the types of meeting entries it has withheld from release."  "The content of these meetings – which would illuminate what deliberative process is implicated – is not provided."
   
• Exemption 5, Attorney-Client Privilege:  The court holds that "[it] cannot meaningfully review whether these records meet the required elements to qualify as attorney-client communications and are indeed privileged."  The court relates that "USPS has . . . redacted 'a narrow subset of calendar entries concerning meetings between the Postmaster General and his attorneys' pursuant to the attorney-client privilege under Exemption 5."  "USPS asserts that select, unspecified, calendar entries meet these requirements because 'the Postmaster General and USPS are clients,' 'the information at issue concerned communications between the Postmaster General and [his agency] attorneys,' 'the calendar entries contained facts sent to counsel for purpose of securing legal advice,' and 'the privilege has been claimed and not waived.'"  "No further specifics are provided, except for a vague statement in the agency's declaration that the calendar entries 'concerned facts, policies, plans and proposals' . . . and that 'some' of the subject lines of these calendar entries 'could' reveal legal advice or topics discussed . . . ."  "This basic recitation of the required elements (with a dose of vague speculation thrown in for good measure) cannot meet USPS's burden here, for as this Court has instructed in the past, an agency 'may not "offer nothing more than conclusory assertions and blanket affirmations" to support its use of the attorney–client privilege.'"
   
• Exemption 6:  "[A]fter balancing the competing interests, the Court finds that Exemption 6 does not apply to Mr. DeJoy's calendar entries concerning successful USPS job applicants."  "It is generally well-accepted that federal employees do not have a reasonable expectation of privacy in their titles or aspects of a successful job application."  "Perhaps in recognition of the limited privacy interest in federal employment, USPS tries to argue (without any real explanation) that the mere fact a successful job applicant interviewed with the Postmaster General implicates their privacy concerns."  "The Court would instead characterize the interview as simply part of an applicant's successful employment application, which as described above carries a limited privacy interest."  "Balanced against this weak privacy interest is the public's 'interest in the competence of people [USPS] employs and in its adherence to regulations governing hiring.'"
   
• Litigation Considerations, Vaughn Index/Declaration:  "[T]he Court directs USPS to, in addition to making the various addendums to the agency declarations described above, update the redactions to indicate which exemption applies to each calendar entry and produce a Vaughn Index of the calendar entries contained in Mr. DeJoy's calendar."  The court reviews "USPS's categorical approach to explaining the basis for the claimed exemptions."  The court relates that "USPS has declined to ["indicate the particular exemption claimed for each withheld document or redacted item"], arguing that doing so would pose a security risk to Mr. DeJoy."  "The agency asserts that such an explanation 'would publicly reveal timing details about the Postmaster General's movement over a five month period' which 'could permit an individual to detect patterns and routines in the Postmaster General's movement, which could jeopardize the safety and security of the Postmaster General.'"  "The Court does not find the agency's argument convincing."  "While it certainly does not take Mr. DeJoy's security needs lightly, these concerns must be balanced against the interests of public transparency and disclosure protected under FOIA."  "USPS contends that requiring the labeling of its redactions 'offers no additional explanation or detail about the asserted Exemptions,' . . . in effect arguing that [plaintiff] is not prejudiced by the categorical approach."  "The Court disagrees."  "Labeling of each redaction would provide helpful insight that is currently lacking, such as how many redactions have been applied under each exemption."  "This information goes toward the overall reasonableness of the agency's withholdings."  "This critique by USPS does point out, however, how this update will not cure the overall informational deficiencies identified by the Court elsewhere in this opinion."  "As a result, the Court will require USPS to also submit a Vaughn Index."