Citizens for Resp. & Ethics in Wash. v. USPS, No. 20-2927, 2021 WL 3662843 (D.D.C. Aug. 17, 2021) (Bates, J.)

Citizens for Resp. & Ethics in Wash. v. USPS, No. 20-2927, 2021 WL 3662843 (D.D.C. Aug. 17, 2021) (Bates, J.)

Re:  Request for records concerning Postmaster General Louis DeJoy's potential conflicts of interest

Disposition:  Denying defendant's motion for summary judgment; granting plaintiff's cross-motion for summary judgment

• Exemption 3:  The court relates that "the parties agree that the disclosure-exemption provision of the Postal Reorganization Act . . . is appropriately categorized as an Exemption 3 statute."  "That provision authorizes withholding '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.'"  "The parties disagree, however, as to whether the withheld material constitutes 'information of a commercial nature' subject to withholding."  The court finds that "[t]he regulations promulgated under the Postal Reorganization Act specify that '[i]nformation is of a commercial nature if it relates to commerce, trade, profit, or the Postal Service's ability to conduct itself in a businesslike manner.'"  "Such business information is thus distinct from information relating to USPS's role as a government entity."  "Here, the withheld documents detailing DeJoy's financial disclosures, recusal and divestiture obligations, and related communications with OGE are government-specific documents regarding USPS's accountability to the public, not its business operations."  "By documenting the postmaster general's financial ties in an effort to avoid conflicts of interest and maintain public trust in the agency, USPS is acting in its 'public character' by providing a governmental service accountable to the taxpayers who fund its operations."  "As [plaintiff] points out, the requested materials thus veer away from proprietary business data like 'pricing, rates, contract terms, and compensation for individual employees,' which are exempt under FOIA."
   
• Exemption 5, Attorney-Client Privilege:  The court relates that "USPS argues that this Court ought to infer confidentiality because DeJoy, acting as 'the Government,' 'is dealing with its attorneys as would any private party seeking advice to protect personal interests.'"  The court notes that "USPS's employee manual, which states unequivocally that '[d]isclosures made by an employee to an agency ethics official are not protected by the attorney-client privilege.'"  "Furthermore, the regulations of the OGE, which oversees the ethics requirements for executive branch agency officials, provide that '[a] current or former employee who discloses information to an agency ethics official, to a Government attorney, or to an employee of the Office of Government Ethics does not personally enjoy an attorney-client privilege with respect to such communications.'"  The court finds that "[t]he plain text of these provisions makes clear that the attorney-client privilege does not apply to communications between DeJoy and USPS ethics counsel or OGE attorneys."  Additionally, the court finds that "[h]aving presumably familiarized himself with the regulations quoted above, DeJoy could not possibly have relied on an expectation of attorney-client privilege in submitting his requests to the OGE."
   
• Exemption 5, Deliberative Process Privilege:  The court relates that "[plaintiff] does not challenge USPS's deliberative-process claims as to the formal request for a certificate of disclosure submitted on DeJoy's behalf or the attachments thereto."  "It does, however, challenge USPS's invocation of the privilege as to the withheld recusal memoranda, asserting that those documents 'embody final agency decisions regarding Mr. DeJoy's recusal and screening requirements.'"  The court finds that "[plaintiff] has the better of this argument."  "Indeed, it is clear from USPS's own descriptions that the recusal memoranda represent final – if impermanent – agency decisions."  "Both memoranda are entitled 'Notification of Commitment to Recuse and Screening Arrangement' and purport to 'establish[ ] . . . recusal and screening arrangement[s]' regarding certain entities."  "That the memoranda were 'notif[ying]' ethics counsel of 'commitments' and 'arrangements' DeJoy had already undertaken pursuant to his ethics obligations strongly implies that decisions underlying those commitments had already been made."  "USPS describes the recusal memoranda as 'interim opinions and decisions put into place while the Postal Service' made its 'final decision' on divestiture."  "And before the divestiture decision was finally made, '[t]he recusal memoranda remained in place in accordance with 5 C.F.R. § 2635.403(d).'"  "Just because the recusal memoranda may have been superseded by the subsequent certificate of divestiture process does not mean they were predecisional for purposes of the deliberative-process privilege."  The court finds that "[plaintiff] comes closer to the mark when it characterizes the recusal records as a 'series of discrete, subsidiary decisions, as well as records memorializing those decisions.'"
   
• Exemption 6:  The court holds that "USPS may not invoke Exemption 6 to withhold the recusal memoranda."  "To the extent any truly private information appears in the recusal documents – or, consistent with the segregability discussion infra, in the certificate of divestiture documents – such as DeJoy's Social Security number, home address, or personal phone number, USPS may redact it pursuant to Exemption 6."  The court relates that "USPS invokes this privilege to withhold the recusal memoranda, asserting that DeJoy's financial records are 'clearly a type of personal information,' that their disclosure would entail an unjustified intrusion of DeJoy's privacy, and that they fall within the definition of 'similar files' which should be afforded the same protection as personnel or medical information."  The court finds that "[a]s a threshold matter, USPS's position on Exemption 6 is self-contradictory."  "On one hand, USPS claims the contested 'documents contain financial information about the Postmaster General, which is clearly a type of personal information' in which he has a privacy interest."  "But at the same time, USPS concedes that 'all of Mr. DeJoy's financial information is already publicly available via his OGE 278e and subsequent OGE 278-T forms,' the financial disclosure reports mandated for certain high-level government officials."  "USPS goes on to acknowledge that 'nothing in the documents at issue contribute[s] any more understanding' regarding DeJoy's financial assets."  "It is unclear to the Court, therefore, just what USPS purports to shield from disclosure under Exemption 6."  "With regard to already-public information, '[o]ne can have no privacy interest' if 'the person asserting his privacy is himself responsible for placing that information into the public domain.'"  The court also finds that "there is . . . a strong public interest in information relating to public officials' potential conflicts of interest" and notes that "the media has reported on possible conflicts stemming from DeJoy's disclosure of his stake in USPS contractors and competitors."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  The court notes that "[t]he main dispute over segregability involves the documents related to the request for a certificate of divestiture; [plaintiff] acknowledges a deliberative-process privilege over some, but not all, of those withheld records."  The court finds that "[plaintiff] has carried its production burden to rebut the presumption of compliance."  "At the very least, the information which is already publicly available through DeJoy's OGE filings must be segregated and released."  "The Court will also order USPS to re-examine the withheld documents pertaining to the certificate of divestiture and apply the claimed exemptions more narrowly, redacting or – if warranted – withholding them consistent with this Memorandum Opinion."  "Given that the total universe of responsive documents is only thirteen pages, the Court is not concerned that this ruling will require USPS 'to commit significant time and resources to the separation of disjointed' portions of otherwise withheld records."