Dorsey & Whitney LLP v. USPS, No. 18-2493, 2019 WL 4164610 (D. Minn. Oct. 11, 2019) (Wright, J.)

Dorsey & Whitney LLP v. USPS, No. 18-2493, 2019 WL 4164610 (D. Minn. Oct. 11, 2019) (Wright, J.)

Re:  Request for records concerning Negotiated Service Agreements ("NSAs") between USPS and private parties for lower rates or more favorable terms

Disposition:  Amending earlier September 3, 2019 opinion; adopting Magistrate Judge's report and recommendation; granting plaintiff's motion for summary judgment; denying defendant's motion for summary judgment

• Litigation Considerations, Standard of Review:  The court holds that "USPS's objection to the R&R's de novo review of USPS's decision to issue a Glomar response is overruled."  The court explains that "[i]n the context of FOIA Exemption 3 cases, a district court may conduct a 'limited' de novo review . . . when the parties agree that the statute at issue falls under Exemption 3's purview and the requested information is covered by that statute."  "USPS contends that a 'limited' de novo standard of review is appropriate here."  "But Dorsey and USPS do not agree that the requested information – the existence of NSAs – is covered by the good business exception."
   
• Exemption 3:  The court holds that "USPS has not carried its burden to establish that its Glomar response is justified pursuant to the good business exception as incorporated by FOIA Exemption 3."  "Rather, the evidence in the record establishes that the existence of NSAs is disclosed under good business practices."  The court relates, citing to 39 U.S.C. § 410(c)(2), that "[a]s relevant here, a statutory 'good business' exception provides that USPS is not required to disclose '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 court finds that "[t]he issue before [it] is whether the existence of NSAs is disclosed under good business practices, not whether the underlying contents of NSAs are disclosed under good business practices."  "The record supports [plaintiff's] contention that the existence of NSAs and other beneficial partnerships is publicly disclosed under good business practice."  The court relates that "[plaintiff] relies on evidence of USPS's prior disclosures."  "For example, USPS's website and manual highlight the availability of NSAs for USPS's customers."  "USPS also has made statements in congressional hearings and press releases regarding its beneficial partnerships with UPS, Amazon, Shutterfly Inc., United Health Group, and State Farm, among others."  "And, [plaintiff] observes, [defendant's] declaration discloses several of USPS's business partners, as well."  "Next, [plaintiff] offers evidence of publicly available information relating to NSA agreements between USPS and its customers."  "For example, USPS has notified the Postal Regulatory Commission of NSAs that USPS has with specific customers."  "The Office of Inspector General generated an audit report of USPS's NSA with Capital One Services, Inc."  "And several news articles identify partnerships between USPS and its customers, including an article in The Wall Street Journal acknowledging the existence of Amazon's NSA with USPS."  "Finally, [plaintiff] introduces evidence that private companies routinely disclose the existence of beneficial business partnerships."  "For example, [plaintiff] submits a FedEx press release in which FedEx describes an extension to its air transportation contract with USPS."  "The totality of the evidence in the record, [plaintiff] contends, defeats USPS's position that the existence of NSAs is exempt from FOIA's disclosure requirements."