Wickwire Gavin PC v. US Postal Service ( 2004 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
WICKWIRE GAVIN, P.C., 
Plaintiff-Appellant,
v.  No. 02-2310
UNITED STATES POSTAL SERVICE,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
James C. Cacheris, Senior District Judge.
(CA-01-1900-A)
Argued: September 25, 2003
Decided: January 30, 2004
Before WILKINSON, TRAXLER and GREGORY, Circuit Judges.
Affirmed by published opinion. Judge Gregory wrote the opinion in
which Judge Wilkinson joined. Judge Traxler wrote a separate con-
curring opinion.
COUNSEL
ARGUED: David P. Hendel, WICKWIRE GAVIN, P.C., Vienna,
Virginia, for Appellant. Steven E. Gordon, Assistant United States
Attorney, Alexandria, Virginia, for Appellee. ON BRIEF: Stephanie
M. Himel-Nelson, WICKWIRE GAVIN, P.C., Vienna, Virginia, for
Appellant. Paul J. McNulty, United States Attorney, Alexandria, Vir-
ginia, for Appellee.
2 WICKWIRE GAVIN v. USPS
OPINION
GREGORY, Circuit Judge:
Wickwire Gavin, P.C., ("WG") serves as counsel for T&S Prod-
ucts, Inc. ("T&S"), a former supplier of packing supplies to the
United States Postal Service ("USPS" or "Postal Service"). In 2000,
T&S lost its bid to supply packaging materials to the Postal Service.
Thereafter, WG represented T&S in an unsuccessful bid protest
action. See T&S Prods. Inc. v. United States, 48 Fed. Cl. 100 (2000).
On July 3, 2001, WG submitted a request pursuant to the Freedom of
Information Act ("FOIA") seeking USPS’s contract with Hallmark
Cards, Inc., whose former subsidiary was the successful bidder for the
packaging contract, as well as other documents related to purchases
under the contract. USPS produced the contract and other responsive
documents, but citing exceptions to FOIA, USPS withheld thirteen
pages of spreadsheets detailing quantity and pricing information. WG
initiated a challenge in federal court to USPS’s withholding. On
cross-motions for summary judgment, the district court held that
USPS properly invoked FOIA Exemptions 3 and 4 in withholding the
spreadsheets. For the reasons stated below, we affirm.
I.
In the bidding process through which T&S unsuccessfully bid to
become USPS’s exclusive provider of mailing supplies, USPS chose
the Ensemble Company (hereinafter "Hallmark"), a former subsidiary
of Hallmark Cards, Inc., which Hallmark has now fully absorbed, to
be the exclusive provider. As noted above, WG then represented T&S
in an unsuccessful bid protest action following USPS’s decision to
award the contract to Hallmark. See T&S Prods., Inc. v. United States,
48 Fed. Cl. 100 (2000).
On July 3, 2001, WG submitted a FOIA request seeking a copy of
USPS’s contract with Hallmark and other documents related to the
sales and revenue generated under the contract.1 USPS provided docu-
1
The FOIA request sought: (1) the contract awarded to Hallmark; (2)
all modifications and changes to the contract; (3) the most current pricing
WICKWIRE GAVIN v. USPS 3
ments responsive to the first three requests on August 1, 2001, and
forwarded the other two requests to another internal department. On
August 29, 2001, USPS denied access to items four and five, citing
39 C.F.R. §§ 265.6(b)(3), 265.6(b)(5). On November 26, 2001, USPS
denied WG’s administrative appeal.
Thereafter, WG filed a complaint in federal court, seeking review
of USPS’s partial denial of the FOIA request. The withheld informa-
tion at issue is redacted from thirteen pages of spreadsheets relating
to USPS’s Ready Post Initiative ("RPI"), a program through which
Hallmark is the exclusive supplier of packaging products to USPS for
sale at its facilities.2 The spreadsheets concern purchase information
pursuant to the Hallmark/USPS contract. Specifically, they include
income statements under the RPI and list item retail value of the prod-
ucts shipped. Through the RPI, postal consumers can purchase pack-
ing materials and arrange for shipment at one location. Thus, USPS’s
services are directly pitted against competitors such as Mail Boxes
Etc., UPS, and other all-in-one outlets.
USPS and WG both filed motions for summary judgment. The dis-
trict court denied the parties’ cross-motions for summary judgment
pending completion of discovery. Thereafter, the parties renewed
their motions for summary judgment, and both parties submitted affi-
davit testimony and other evidence relevant to the data in question.
After in camera review of the withheld documents, the district
and product schedule for all product line items being supplied to USPS
by Hallmark; (4) "Any document showing a summary of: (a) the quantity
of each product line item purchased by USPS under the contract; and (b)
the total purchase price paid by USPS for each product line item pur-
chased by USPS under the contract"; and (5) "Any document showing
the most current figures for USPS net revenue from USPS’s retail sale
of items supplied under the above contract. (Note: "net revenue" means
USPS sales revenue minus USPS costs.)" (J.A. 25-26.) Only the fourth
and fifth requests are at issue on appeal. See Appellant’s Br. at 3.
2
Appellee states that "[t]hrough the RPI, USPS sells packaging materi-
als to consumers (e.g., postal consumers may buy envelopes and other
packaging materials in post offices)." Appellee’s Br. at 3 n.2.
4 WICKWIRE GAVIN v. USPS
court granted summary judgment for USPS. The district court held
USPS properly withheld the data pursuant to FOIA Exemptions 3 and
4, 5 U.S.C. §§ 552(b)(3), 552(b)(4).3 First, the court found Exemption
3 applicable because the Postal Reorganization Act, 39 U.S.C.
§ 410(c)(2), contains an exception to the FOIA disclosure requirement
whereby the postal service 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." Dist. Ct. Op. at 8 (quoting
39 U.S.C. § 410(c)(2)) (J.A. 697.) This provision comports with Con-
gress’s overall purposes in passing the Postal Reorganization Act,
which include assuring that USPS "be run more like a business than
had its predecessor, the Post Office Department." Franchise Tax Bd.
of Cal. v. United States Postal Serv., 467 U.S. 512, 520 (1984); see
also Nat’l Ass’n of Greeting Card Publishers v. United States Postal
Serv., 462 U.S. 810, 822 (1983) (noting that under the Act "Congress
sought to ensure that the Postal Service would be managed in a busi-
nesslike way" (internal quotation marks and citation omitted).4 Based
on USPS’s showing that other companies do not disclose such data,
the district court held that Exemption 3 was applicable. Dist. Ct. Op.
at 17-18 (J.A. 706-07.)
The district court also held that Exemption 4, § 552(b)(4), which
protects privileged or confidential trade secrets or other commercial
3
Section 552(b)(3) provides that FOIA does not apply to matters "spe-
cifically exempted from disclosure by statute . . . ." 5 U.S.C. § 552(b)(3).
Section 552(b)(4) permits withholding of "trade secrets and commercial
or financial information [that are] obtained from a person and [are] privi-
leged or confidential . . . ." 5 U.S.C. § 552(b)(4)
4
Before the Reorganization Act, the Post Office Department was an
executive branch department headed by a member of the President’s
Cabinet. Thereafter, the Postal Office Department became USPS, an
independent agency of the Executive Branch. 39 U.S.C. § 201. Under the
Act, USPS thus received broad political and managerial independence as
the Postmaster General was removed from the President’s cabinet, Con-
gress’s role in postal ratemaking ended, and the independent agency was
formed. See generally Mail Order Ass’n. of Am. v. United States Postal
Service, 986 F.2d 509, 519-21 (D.C. Cir. 1993) (discussing purpose and
effects of the Act).
WICKWIRE GAVIN v. USPS 5
5
or financial information, was applicable. The district court reasoned
that the contested data was "privileged or confidential" because dis-
closure would "hamper [USPS’s] ability to obtain similar information
from other private companies, and would likely also harm Hallmark’s
competitive position." Dist. Ct. Op. at 21 (J.A. 710.)
II.
We review the district court’s decision granting summary judgment
de novo. Marshall v. Cuomo, 192 F.3d 473, 478 (4th Cir. 1999).
FOIA cases are generally resolved on summary judgment once the
documents at issue have been properly identified. See, e.g., Miscavige
v. IRS, 2 F.3d 366, 369 (11th Cir. 1993). FOIA places the burden on
the government agency to sustain its action to withhold information
under any of the FOIA Exemptions. 5 U.S.C. § 552(a)(4)(B). In
reviewing a district court’s grant of summary judgment in favor of the
government in a FOIA action, we must determine de novo whether,
after taking the evidence in the light most favorable to the nonmovant,
there remains no genuine issue of material fact and the government
is entitled to judgment as a matter of law. Ethyl Corp. v. EPA, 25 F.3d
1241, 1246 (4th Cir. 1994). We review factual conclusions that place
a document within a FOIA exemption under a clearly erroneous stan-
dard. Id. Whether a document fits within one of FOIA’s prescribed
exemptions is a matter of law, upon which the district court is entitled
to no deference. Id. Finally, we narrowly construe the FOIA exemp-
tions in favor of disclosure. See J.P. Stevens Co. v. Perry, 710 F.2d
136, 139 (4th Cir. 1983).
5
We have held that FOIA Exemption 4 "covers (1) trade secrets and
commercial or financial information, (2) obtained from a third person
outside the government, (3) that is privileged or confidential." Acumenics
Research & Tech. v. United States Dep’t of Justice, 843 F.2d 800, 807
(4th Cir. 1988). To satisfy Exemption 4, the party seeking to avoid dis-
closure must "‘show the likelihood of substantial competitive harm’"
would result from disclosure. Hercules, Inc. v. Marsh, 839 F.2d 1027,
1030 (4th Cir. 1988) (quoting Gulf & W. Indus., Inc. v. United States,
615 F.2d 527, 530 (D.C. Cir. 1979).
6 WICKWIRE GAVIN v. USPS
III.
Appellant WG first argues that the contested spreadsheet data is not
governed by FOIA Exemption 3. WG contends that the district court
erred in failing to include an "additional implied requirement of com-
petitive harm" in applying Exemption 3, and generally overstated the
scope of the Exemption.
Congress enacted FOIA, 5 U.S.C. § 552, to permit a "policy of
broad disclosure of Government documents in order to ensure ‘an
informed citizenry, vital to the functioning of a democratic society.’"
FBI v. Abramson, 456 U.S. 615, 621 (1982) (citations omitted); see
also Bowers v. United States Dep’t of Justice, 903 F.2d 350, 353 (4th
Cir. 1991) ("FOIA was enacted as a general disclosure statute pertain-
ing to all federal records."). In enacting the statute, Congress also rec-
ognized that "legitimate governmental and private interests could be
harmed by release of certain types of information." Id. Accordingly,
Congress crafted nine exemptions to FOIA. 5 U.S.C. § 552(b).
Exemption 3 provides that FOIA does not apply to matters that are
"specifically exempted from disclosure by statute . . . provided that
such statute (A) requires that the matters be withheld from the public
in such a manner as to leave no discretion on the issue, or (B) estab-
lishes particular criteria for withholding or refers to particular types
of matters to be withheld . . . ." 5 U.S.C. § 552(b)(3) (emphasis
added). USPS contends, and the district court held, that the Postal
Reorganization Act, 39 U.S.C. § 410(c)(2), satisfies the second
requirement of Exemption 3. Section 410(c)(2) of the Postal Reorga-
nization Act provides that under various statutes, including FOIA,
USPS may withhold "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 disclosed."
39 U.S.C. § 410(c)(2) (emphasis added).6
6
Below, WG brought a facial challenge to the use of § 410, arguing
that section "is not sufficiently definite to satisfy the requirements of
Exemption 3." The district court, like the other courts to consider the
issue of whether § 410 satisfies Exemption 3, correctly held that it does.
See Nat’l W. Life Ins. Co. v. United States, 512 F. Supp. 454, 459 (N.D.
WICKWIRE GAVIN v. USPS 7
In reviewing the district court’s holding that the "good business
practice" exception applied to the spreadsheets, we first recognize that
facially there would appear to be some tension between the Postal
Reorganization Act and FOIA generally. On one hand, Congress
established USPS "intend[ing] that it should operate more like a pri-
vate business than a governmental agency." National Western, 512 F.
Supp. at 462; see also Loeffler v. Frank, 486 U.S. 549, 556 (1988)
(noting that Congress designed the Postal Service to run more like a
business than had its predecessor). On the other hand, through FOIA,
the "Postal Service is still subject to public responsibility . . . ."
National Western, 512 F. Supp. at 462. However, this apparent ten-
sion between the statutes dissipates upon review of the "good busi-
ness practice" exception. Congress spoke loudly through the Postal
Reorganization Act, providing USPS with a broad release from many
FOIA disclosure requirements with which other agencies must com-
ply. 39 U.S.C. § 409 (stating that 5 U.S.C. § 552 "shall apply to the
Postal Service" but "shall not require disclosure of . . . information of
a commercial nature . . . which under good business practice would
not be publicly disclosed").
In National Western, the court stated that the contours of the "good
business practice" exemption were to be gleaned by "looking to the
commercial world, management techniques, and business law, as well
as to the standards of practice adhered to by large corporations." 512
F. Supp. at 459. Appellant argues that the district court erred in find-
ing Exemption 3 satisfied, because the court’s holding was largely
based on a finding that other corporations did not disclose such infor-
mation to shareholders. At the district court, USPS established a foun-
Tex. 1980) (holding § 410(c)(2) qualifies as an exemption statute); Piper
& Marbury LLP v. United States Postal Serv., No. Civ. A. 99-2383, 2001
WL 214217, at *3 (D.D.C. Mar. 6, 2001) (same); Weres Corp. v. United
States Postal Serv., No. 95-1984, 1996 U.S. Dist. Lexis 22636, *6-7
(D.D.C. Sept. 23, 1996) (same); see also Robinett v. United States Postal
Serv., No. Civ. A. 02-1094, 2002 WL 1728582, at *3 (E.D. La. July 24,
2002) (following National Western and Piper & Marbury). Rather than
pursuing such a facial challenge to the applicability of § 410 on appeal,
Appellant asserts only that the district court overstated the scope of the
"good business practice" exemption.
8 WICKWIRE GAVIN v. USPS
dation for the "good business practice" exception by entering
evidence into the record detailing that large corporations do not pub-
licly disclose information similar to the RPI data at issue, a showing
which WG failed to rebut. WG claims, however, that the district court
should have analyzed whether the data would cause USPS competi-
tive harm. It contends that without reading an implied "competitive
harm" requirement into 39 U.S.C. § 410(c)(2), the "agency would
have unfettered discretion to determine what it may withhold, which
would essentially render the FOIA inapplicable whenever the agency
wished to withhold embarrassing information from the public."
Appellant’s Br. at 22-23.
In support of its assertion that the district court did not properly
apply an implied "competitive harm" requirement, WG claims that the
case law on the "good business practice" exception is clear that USPS
"cannot simply withhold everything a private company might."
Appellant’s Br. at 26-27. WG asserts that National Western and Piper
& Marbury directly support its argument that the RPI information
does not fall under the "good business practice" exemption. We find
these arguments unconvincing.
In National Western, a FOIA requester sought the names and duty
stations of USPS employees in two cities. USPS refused to disclose
the list, and the court granted summary judgment for the requester,
holding that the names and addresses did not constitute "commercial
information" under § 410(c)(2). National Western, 512 F. Supp. at
462. Therefore, the court did not reach the issue of whether the "good
business practice" exemption was applicable, but found that "brief
comments are perhaps necessary . . . because the government has
implicitly argued that the public interest will be disserved by the dis-
closure of this information." Id. Despite the absence of a holding sup-
porting Appellant’s position, WG relies on National Western’s dicta
in which WG finds the proposition that the "good business practice"
standard does not allow the USPS to withhold everything a commer-
cial entity might.7
7
The court states, in dicta, "[a]lthough it may not be good business
practice for a private company to disclose names and addresses of its
employees, that is not the only concern to be considered. The Postal Ser-
WICKWIRE GAVIN v. USPS 9
Citing Piper & Marbury, Appellant argues that other courts have
rejected similar USPS exemption claims. In Piper & Marbury, how-
ever, the information at issue was a contract between USPS and DHL
that the Piper & Marbury firm requested on behalf of its client, UPS.
USPS argued the contract was commercial information that would not
be disclosed under the "good business practice" exemption. The mag-
istrate judge rejected USPS’s claim. The court held that because
USPS was "trying to withhold the entire agreement and not merely
particular information in it," the contract in its entirety did not qualify
as "information" under FOIA or 39 U.S.C. § 410(c)(2). 2001 WL
214217, at *3. The court reasoned, "the exemptions at issue were
meant to protect knowledge, figures or data, and not entire agree-
ments, [as] is supported by even a superficial reading of the exemp-
tions themselves." Id. at *4. Thus, as the district court recognized, see
Op. at 14 (J.A. 703), Piper & Marbury is readily distinguishable
because in that case the "information" at issue was an entire contract,
and here USPS has already provided the contract under FOIA. At
issue in this case is the data generated pursuant to the contract —
indeed the "knowledge, figures or data" themselves to which the court
in Piper & Marbury referred.
Not only is WG’s reliance on National Western and Piper Marbury
unpersuasive, but Appellant has also failed to make any showing that
USPS’s competitors, or any other businesses, do disclose the type of
information at issue in this case. Whereas the government agency has
presented evidence showing that large companies do not disclose such
information, WG has completely abandoned its duty to refute that
vice is still subject to public responsibility, as evidenced by the applica-
bility to the Postal Service of [FOIA]." National Western, 512 F. Supp.
at 462. WG’s argument is inapposite, however. The statement that under
FOIA USPS cannot withhold "everything" a private business might is lit-
tle more than a hollow truism. For WG’s reading of FOIA’s applicability
to USPS says nothing of how broadly 39 U.S.C. § 409(c)(2) exempts
USPS from disclosure requirements with which other government actors
must comply. For no one claims that USPS is solely a corporate entity
entirely unhindered by FOIA, yet WG wishes to convert USPS into a
government agency no different from any other, blithely glossing over
the substantial leeway Congress has accorded the Postal Service under
the statute.
10 WICKWIRE GAVIN v. USPS
"under good business practice [such information] would not be pub-
licly disclosed." 39 U.S.C. § 410(c)(2). The statutory language unam-
biguously provides that precisely the type of information, which WG
neglected to enter into the record, is a relevant consideration. In deter-
mining whether Exemption 3 applies, it is uncontroverted that the
statutory term "good business practice" should be decided with refer-
ence to what businesses normally do. See National Western, 512 F.
Supp. at 459 (noting that to determine what constitutes such practice,
the agency can refer to business law and management techniques in
the commercial domain). WG’s failure to build any record whatsoever
concerning the business practices of USPS’s competitors is fatal. In
fact, at oral argument WG conceded that other businesses do not dis-
close such information. On this record, we must affirm the district
court’s determination that the "good business" practice exception of
39 U.S.C. § 410(c)(2) justified USPS’s invocation of FOIA Exemp-
tion 3.
In its brief and at oral argument, WG continued to rely solely on
its assertion that a finding of competitive harm is necessary for USPS
to invoke Exemption 3. We find this argument unsupported by the
statutory text or its application. In making this argument, WG is first
unable to locate an implied competitive harm requirement in the stat-
ute’s text or its subsequent application. See, e.g., Appellant’s Br. at
28 (arguing without citation that "the Postal Service must also show
that a disclosure would cause it competitive harm . . . .").8 Thus, in
urging this interpretation of the Postal Reorganization Act’s "good
business practice" exception, WG entirely ignores Justice Frankfurt-
er’s three principles of statutory construction: "(1) Read the statute,;
(2) read the statute; (3) read the statute!" Henry J. Friendly, Mr. Jus-
tice Frankfurter and the Reading of Statutes, in, Benchmarks 196, 202
(1967) (quoting Justice Frankfurter).
8
While the Postal Service’s regulations create an express exemption
category for records "which would be of potential benefit to persons or
firms in economic competition with the Postal Service," 39 C.F.R.
§ 265.6(b)(3)(vi), nowhere does it make competition, or competitive
harm a requirement for exemption. See id. § 265.6(b)(3) (detailing that
information of a commercial nature "includes, but is not limited to" the
"economic competition" nondisclosure provision as well as other similar
provisions) (emphasis added).
WICKWIRE GAVIN v. USPS 11
The notion that the Postal Reorganization Act should be read to
contain an "implied competitive harm" requirement is further dis-
pelled by the statute’s language and the purposes behind the enact-
ment, whereby Congress sought to make USPS a more businesslike
entity. See, e.g., S. Rep. No. 912, 91st Cong., 2d Sess. 2 (1970)
("Senate Report") ("[P]ostal management must now be given the
unfettered authority and freedom it has been denied for years to main-
tain and operate an efficient service."); H. Rep. No. 1104, 91st Cong.,
2d Sess. 6 (1970), reprinted in 1970 U.S.C.C.A.N. 3649, 3650 (1970)
("House Report") (stating the Act would "[e]liminate serious handi-
caps that are now imposed on the postal service by certain legislative,
budgetary, financial, and personnel policies that are outmoded, unnec-
essary, and inconsistent with the modern management and business
practices that must be available"); Milner v. Bolger, 546 F. Supp. 375,
378 (E.D. Cal. 1982) ("In order to facilitate the sound, businesslike
operations mandated by Congress, the Postal Service was given a
considerable degree of independence . . . ."). WG simply fails to show
where under the Act’s text, or its implementation by USPS, its
favored implied competitive harm requirement lies.
Moreover, to read an implied "competitive harm" requirement into
the good business practice exception necessarily implies that Con-
gress acted superfluously. For WG’s reading of the Postal Reorgani-
zation Act is logically unsound in that it asks us to assume that
although the Postal Service, like other agencies, is already empow-
ered to withhold data pursuant to FOIA’s Exemption 4 upon a show-
ing of a "substantial likelihood of competitive harm," Marsh, supra,
Congress nonetheless passed another withholding provision for USPS
with precisely the same "competitive harm" requirement. We decline
to make this strained interpretation of 39 U.S.C. § 410(c)(2).
Rather than analyzing "competitive harm" as an implied additional
requirement for withholding under § 410(c)(2), we can conceptualize
competitive harm as one of many considerations embedded within the
good business practice exception itself. That is, Congress passed the
exception, recognizing that the type of information which businesses
do not ordinarily disclose is kept private, in part, to help maintain a
competitive advantage. Other private companies do not disclose such
information precisely because they are competing. Thus, any notion
of a competitive harm component to the good business practice
12 WICKWIRE GAVIN v. USPS
exception is an internal consideration, rather than an additional prong
to be satisfied. As noted above, if "competitive harm" were an addi-
tional requirement, the Postal Reorganization Act would have been
substantially superfluous within the FOIA context.9 In stating that the
USPS was to act in the same competitive mode as other businesses,
Congress legislated broadly and the newly composed USPS was a sea
change from its predecessor. In fact, this drastic change was met with
strong opposition by members of Congress who rued the idea of the
new, independent, businesslike entity. See Senate Report at 23 (set-
ting forth the individual views of Senator Yarborough who stated:
"Groups of postal employees, as well as groups of mail users, have
complained to me of inequities in the present bill if the moneymaking,
budget-balancing, anti-public-service, corporate method is saddled on
the Post Office Department."); Mail Order Ass’n of Am., 986 F.2d at
519 (stating "one representative feared the Postmaster General would
become ‘the absolute czar of the Postal Service, . . . completely and
effectively remove[d] . . . from any possible control by the people or
the people’s elected representatives.’" (quoting 116 Cong. Rec. at
19845 (statement of Rep. Gross)). Because WG fails to find statutory
support for its argument regarding an implied competitive harm
requirement, and its concerns seem echoed by those members of the
legislature that opposed the Postal Reorganization Act generally, its
qualms regarding the Postal Reorganization Act’s FOIA exception
seem ill-suited to determination by the courts, and more properly
lodged with Congress.
Furthermore, the possibility that the "good business practice"
exception could be wrongly applied in a manner so broad that WG’s
concern that FOIA would be "inapplicable whenever the agency
wished to withhold embarrassing information from the public"
appears extremely unlikely to materialize. Such speculation by WG
overlooks the limiting provisions embedded within the text of the
"good business practice" exception.
9
It is perhaps conceivable, though highly doubtful, that USPS might
withhold data that fit Exemption 4 but failed § 410(c)(2). Hypothetically,
perhaps because of something unique to USPS, some narrow category of
information normally disclosed by businesses — thus failing Exemption
3 — would cause USPS competitive harm, satisfying the requirements
of 5 U.S.C. 552(b)(4).
WICKWIRE GAVIN v. USPS 13
On its face, the Postal Reorganization Act offers protection against
overly broad application of the exception by requiring that the mate-
rial at issue qualify as "information." 39 U.S.C. § 410(c)(2). Accord-
ingly, USPS cannot withhold entire agreements or even entire
documents without explanation. Instead it must point to particular
knowledge, figures or data that both qualifies as information, and
would not be disclosed by private businesses. Indeed, in this light, the
"good business practice" exception is perfectly consistent with
FOIA’s overall mandate. As we have recognized, "‘[t]he focus of the
FOIA is information, not documents.’" City of Va. Beach v. U.S.
Dep’t of Commerce, 995 F.2d 1247, 1253 (4th Cir. 1993) (quoting
Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 260
(D.C. Cir. 1977).
In this case, the data in question is undisputably "information."
Moreover, the information that USPS has withheld goes to the heart
of the Postal Reorganization Act’s purpose, making the United States
Postal Service more businesslike, similar in function and management
to its competitors. See Nat’l Ass’n of Greeting Card Publishers, 462
U.S. at 822; Peoples Gas, Light & Coke Co. v. United States Postal
Serv., 658 F.2d 1182, (7th Cir. 1981) (noting "Congress’s express
desire that the Postal Service operate in a businesslike fashion"); May
Dep’t Stores v. Williamson, 549 F.2d 1147, 1148 (8th Cir. 1977)
("Congress specifically declared in creating the USPS that it should
be conducted in a businesslike way"); Prudential Ins. Co. of Am. v.
U.S. Gypsum Co., 146 F. Supp. 2d 643, 659 (D.N.J. 2001) ("[USPS]
has been granted considerable autonomy for certain purposes, particu-
larly to facilitate more competitive business practices"); House Report
at 3653 ("An effective postal service needs an updated financial pol-
icy that is fully responsive to operating needs."); id at 3654 (stating
the Act grants "authority to conduct the affairs of the Postal Establish-
ment on a business like basis"); id. at 3656 (requiring USPS to sub-
mit, as part of its biennial reports, profit and loss statements certified
by a firm of independent public accountants); id. at 3659 ("The Postal
Service is to become self-sustaining—eliminating the postal deficit—
by January 1, 1978.").
In short, WG has fully failed to refute that other businesses, includ-
ing other all-in-one pack and mail companies, do not disclose this
type of information. USPS’s withholding under Exemption 3 appears
14 WICKWIRE GAVIN v. USPS
to be a well-reasoned response, measured to prevent an uneven play-
ing field of information within a competitive industry. Even if we
accepted WG’s doomsday scenario that the USPS might someday
abuse the "good business practice" exception to avoid FOIA’s disclo-
sure requirements, it would be unwarranted to engraft a requirement
of "competitive harm" onto FOIA Exemption 3 as WG advocates.10
Such a radical reworking of the "good business practice" exception
falls within the province of Congress, not within the ambit of the
courts.
IV.
The district court also held that the data at issue was properly with-
held under FOIA Exemption 4, 5 U.S.C. § 552(b)(4). Section
552(b)(4) provides that FOIA does not apply to matters that are "trade
secrets and commercial or financial information obtained from a per-
son and privileged or confidential." In this case, WG contested
whether the information was (1) submitted by a person; and (2) privi-
leged or confidential.
Because we find the spreadsheet data was properly withheld under
Exemption 3, we do not need to reach the issue of Exemption 4’s
applicability to this data. Thus, we do not decide which test governs
within the Fourth Circuit for determining whether information is con-
fidential. Compare Acumenics Research & Tech. v. Dept. of Justice,
843 F.2d 800, 807 (4th Cir. 1988) (applying the Nat’l Parks & Con-
servation Ass’n v. Morton, 498 F.2d 765 (D.C. Cir. 1974), test for
confidentiality under Exemption 4), with Critical Mass Energy Proj-
ect v. Nuclear Regulatory Comm’n, 975 F.2d 871, 877-79 (D.C. Cir.
1992) (en banc) (modifying the National Parks test in cases in which
information is voluntarily submitted to the government).
10
In any event, the district court repeatedly found that even if Exemp-
tion 3 had an "implied competitive harm" requirement, USPS made such
showings. See, e.g., Dist. Ct. Op. at 15-16 (J.A. 704-05) (rejecting WG’s
argument that USPS has no competitive interest in the RPI data); id. at
17 (finding release of the data would provide USPS’s competitors with
"valuable proprietary information" that would have been unavailable or
they would have had to develop at their own cost) (J.A. 706); id. at 18
(J.A. 706-07) (finding release of the information is likely to increase
USPS procurement costs).
WICKWIRE GAVIN v. USPS 15
V.
For the reasons stated above, we affirm the district court and hold
that USPS properly withheld the spreadsheet data under FOIA
Exemption 3. Having found Exemption 3 applicable, we do not need
to review the district court’s determination that Exemption 4 also
applies.
Accordingly, the district court’s order allowing USPS to withhold
the contested data is hereby
AFFIRMED.
TRAXLER, Circuit Judge, concurring:
I concur with my colleagues as to the disposition of this case. I
write separately, however, to emphasize my belief that the plain lan-
guage of Section 410(c)(2)of the Postal Reorganization Act is suffi-
cient to satisfy the requirements of Exemption 3 of the Freedom of
Information Act.
Exemption 3 of FOIA states that the provisions of FOIA do not
apply to matters that are "specifically exempted from disclosure by
statute . . . provided that such statute either (A) . . . [requires with-
holding] in such a manner as to leave no discretion on the issue, or
(B) establishes particular criteria for withholding or refers to particu-
lar types of matters to be withheld." 5 U.S.C.A. § 552(b)(3) (West
1996 & Supp. 2003). Section 410(c)(2) of the Postal Reorganization
Act, 39 U.S.C.A. § 410(c)(2), clearly satisfies the second requirement
of Exemption 3. Section 410(c)(2) provides that the Postal Service
may withhold from a FOIA request "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 disclosed. 39 U.S.C.A. § 410(c)(2) (West 1980).
Wickwire Gavin contends that this court should read into the defi-
nition of a good business practice a requirement that the disclosure of
information would result in a competitive harm. I disagree. When "the
statute’s language is plain, the sole function of the courts is to enforce
16 WICKWIRE GAVIN v. USPS
it according to its terms." United States v. Ron Pair Enters. Inc., 489
U.S. 235, 241 (1989)(internal quotation marks omitted). "Our inquiry
must cease if the statutory language is unambiguous and the statutory
scheme is coherent and consistent." Robinson v. Shell Oil Co., 519
U.S. 337, 341 (1997) (internal quotation marks omitted). The lan-
guage of Section 410(c)(2) clearly states that the Postal Service may
withhold "information of a commercial nature . . . which under good
business practices would not be publicly disclosed." 39 U.S.C.A.
§ 410(c)(2). Because the statutory language is clear, we need look no
further.