DBW Partners, LLC v. USPS, No. 18-3127, 2019 WL 5549623 (D.D.C. Oct. 28, 2019) (Contreras, J.)

DBW Partners, LLC v. USPS, No. 18-3127, 2019 WL 5549623 (D.D.C. Oct. 28, 2019) (Contreras, J.)

Re:  Requests for records concerning USPS's Postage Reseller Program

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

• Exemption 6:  The court holds that "[t]he government did not meet its burden and has not established that Exemption 6 justified a categorical Glomar response."  The court relates that "USPS issued a Glomar response to the [plaintiff's] request for records relating to any ethics investigation of [USPS's Chief Customer and Marketing Officer] based on Exemption 6."  The court finds that "[t]here can be little question that [USPS's Chief Customer and Marketing Officer] has a significant – meaning more than de minimis – privacy interest in the records of any ethics investigation and also in the fact of their existence."  However, the court finds that "[t]wo considerations weaken [USPS's Chief Customer and Marketing Officer's] privacy interest somewhat."  "First, he was a government official during the relevant time period . . . ."  "Second, some of the facts that could be revealed by responsive records are already matters of public record."  "Given [the] balancing of the private and public interests implicated, the Court is unable to conclude that a Glomar response was appropriate."  "The Court does not find it 'logical' or 'plausible,' . . . for the USPS to suggest that it would be a 'clearly unwarranted' invasion of privacy . . . to even acknowledge the existence of records relating to an ethics review of [USPS's Chief Customer and Marketing Officer]."  "[USPS's Chief Customer and Marketing Officer] was a high-ranking official relative to his agency, making his privacy interested minimal, though not de minimis."  "There is a significant public interest in how he carried out his duties."  "The records requested by [plaintiff] would shed light on how the USPS responds when a high-ranking official interacts in the ways [USPS's Chief Customer and Marketing Officer] did with leadership of a private corporation that does business with the government."  Moreover, the court finds that "[t]he public interest here is bolstered by the fact that [USPS's Chief Customer and Marketing Officer's] interactions with Stamps.com – almost certainly the subject of any ethics investigation that produced responsive records – go to the core purpose of FOIA."  "An investigation into the sequence of events laid out by [plaintiff] would shed light on what the Postal Service is up to."  "Any ethics investigation would necessarily concern the Postal Service's relationships with its private partners and whether those relationships are handled in the best interest of taxpayers."  "The ethics investigation that is the obvious focus of the request does not center on [USPS's Chief Customer and Marketing Officer's] personal conduct, such as alleged mis-use of a government vehicle or an inappropriate relationship with a subordinate."  "Fewer privacy interests are raised when, as here, the allegedly unethical conduct relates to agency operations and not merely to personal conduct."
   
• Exemption 3 & Litigation Considerations, "Reasonably Segregable" Requirements:  The court finds that, "as to the OIG Whitepaper, the Defendants' Motion for Summary Judgment is denied, and the Plaintiff's Motion for Summary Judgment is granted in part and denied in part."  The court relates that "USPS OIG relies on the Postal Reorganization Act, 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.'"  "Even though the Declarations describe the OIG Whitepaper at a high order of abstraction, the Court does not find it at all implausible that the Whitepaper contains information that is properly withheld under the Postal Reorganization Act."  The court relates that defendant explains that "[Negotiated Service Agreements] are customized contractual agreements between USPS and particular mailers, that the terms of these contracts are subject to mutual nondisclosure agreements, and that these terms of are kept secret to maintain competitive advantages for USPS."  However, the court also finds that "[a]lthough [defendants'] Declarations adequately explain that the OIG Whitepaper contains some commercial information that falls under the FOIA exception in the Postal Reorganization Act, they do not explain with reasonable specificity how so much of the Whitepaper could plausibly contain such information and they do not describe any review of the document for reasonably segregable non-exempt material."  "Considering that the existence of USPS Reseller Programs and [Negotiated Service Agreements] are already public knowledge, it is implausible that the OIG Whitepaper does not contain at least somewhat more segregable non-exempt information than what the USPS OIG has already revealed."