Dbw Partners, LLC v. United States Postal Service ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
DBW PARTNERS, LLC :
d/b/a THE CAPITOL FORUM :
:
Plaintiff, : Civil Action No.: 18-3127 (RC)
:
v. : Re Document Nos.: 11, 12
:
UNITED STATES POSTAL SERVICE and :
UNITED STATES POSTAL SERVICE :
OFFICE OF INSPECTOR GENERAL :
:
Defendant. :
MEMORANDUM OPINION
DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; GRANTING IN PART AND
DENYING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION
This case arises from two separate but related Freedom of Information Act (“FOIA”)
requests by DBW Partners, LLC, doing business as the Capitol Forum, a subscription news
service. The requests, directed at the United States Postal Service (“USPS”) and the USPS
Office of Inspector General (“OIG”), both concerned the USPS’s Postage Reseller Program. In
response to the first request, the USPS stated that it was not obligated to search for any
responsive records and that it could neither confirm nor deny that such records existed (that is, it
issued what is called a “Glomar response”). In response to the second, the OIG initially withheld
a requested report and later, after this litigation began, produced a heavily redacted version. The
USPS and OIG moved for summary judgment, arguing that they fulfilled their obligations under
FOIA. The Capitol Forum filed a cross-motion for summary judgment arguing that this was not
the case. Because the Court finds that the USPS and USPS OIG did not carry their burdens
under FOIA, the Court denies their motion and grants the Capitol Forum’s motion in part.
II. FACTUAL BACKGROUND
The Capitol Forum is a self-described “subscription news service providing
comprehensive coverage of competition policy and in-depth market and political analysis of
specific transactions and investigations.” Compl. ¶ 7, ECF No. 7. Two FOIA requests that it
submitted in 2018 form the basis for this litigation. Both relate generally to the USPS’s Postage
Reseller Program and Negotiated Service Agreements (“NSAs”)—which allow companies to
resell USPS services at discount prices—and to the USPS’s relationship with Stamps.com, a
private company whose business model relied on participating in the Postage Reseller Program.
See id. ¶¶ 1–2.
To a large extent, the Capitol Forum’s interest in the Postage Reseller Program and NSAs
stems from a series of events in the summer of 2017. In July of that year, USPS’s Chief
Customer and Marketing Officer James Cochrane agreed to sit down for a broadcasted interview
with a representative of Stamps.com. See Williams Decl. Ex. O, ECF No. 12-3. Originally
scheduled for August 2, it was rescheduled to July 30 at Stamps.com’s request. Id. at 1; see also
Defs.’ Resp. to Pl.’s Statement of Undisputed Material Facts (“SOMF”) ¶ 8, ECF No. 14-1.
During the interview, Cochrane spoke favorably about the Postage Reseller Program, saying that
“we thought resellers were an excellent opportunity,” that “resellers have been a very effective
addition to the Postal Service portfolio,” and that “we looked at resellers and things like PC
Postage providers, like Stamps.com . . . as excellent partners on bringing the best solution to
customers.” Defs.’ Resp. to Pl.’s SOMF ¶ 8, ECF No. 15-1. The interview was posted on
Stamps.com’s blog on August 1. Id. ¶ 9. On August 2, Stamps.com held an earnings call with
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its investors, during which Stamps.com executives referred to Cochrane’s comments during the
July 30 interview. Williams Decl. Ex. P.
The Capitol Forum insinuates that this whole sequence of events raises ethical questions.
It suggests that the call date was moved up in order to make sure that Cochrane’s message of
support and enthusiasm could be highlighted on the August 2 earnings call. It also observes that
Stamps.com’s stock price rose by thirty-six percent in the two days following the release of
Cochrane’s statements—translating to a $978 million increase in the company’s value. Williams
Decl. ¶ 30. These gains disappeared over the course of 2018 as the Postage Reseller Program
received more scrutiny from the USPS OIG, from Congress, and in the press. See id. ¶¶ 31–32;
Williams Decl. Ex. R.
That scrutiny began not long after Cochrane’s interview with Stamps.com. On
September 17, 2017, the USPS OIG informed Cochrane that it “plan[ned] to research postal
partnerships, particularly in the mail service provider area” and that this could include “the
reseller and PC Postage programs” as well as “private sector best practices for such
partnerships.” Williams Decl. Ex. Q. The OIG produced a report, titled “Postal Partnerships:
The Complex Role of Middlemen and Discounts in the USPS Package Business” (the “OIG
Whitepaper” or the “Whitepaper”) which, according to reporting by the Capitol Forum, criticized
the USPS’s lack of oversight of its contracts with its partners and estimated that reseller
programs and NSAs were costing the USPS over $1 billion annually. Williams Decl. Ex. R.
The Capitol Forum has also produced emails between USPS ethics officials, with one official
forwarding a transcript of Cochrane’s remarks in the interview to another, who agreed with the
former that the two should “discuss this.” Williams Decl. Ex. C. From this, the Capitol Forum
infers that an ethics review must have been conducted. Id. at 4.
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One of the FOIA requests at issue was sent to USPS on October 23, 2018 and sought
“[a]ny documents or communications related to an ethics investigation and/or ethics review of
former [USPS] Chief Customer and Marketing Officer James Cochrane” between July 1, 2017
and October 23, 2018. Williams Decl. Ex. A. The USPS responded with a Glomar response.
Williams Decl. Ex. B. It cited Exemption 6 to FOIA, which allows an agency to withhold
“personnel files and medical files and similar files the disclosure of which would constitute a
clearly unwarranted invasion of personal privacy.” Id. (citing 5 U.S.C. § 552(b)(6)). The agency
explained that it could not even acknowledge whether responsive records existed because
“[a]cknowledging the existence or nonexistence of investigative records would compromise the
individual’s personal privacy interest because it would confirm whether the Postal Service
investigated the individual’s conduct.” Id. at 2. The Capitol Forum appealed the denial of its
FOIA request, and the appeal was denied on December 19, 2018. Compl. Ex. A.
The other request, sent on July 26, 2018, sought a copy of the OIG Whitepaper detailing
USPS’s work with resellers and NSAs. Williams Decl Ex. U. The agency withheld the
Whitepaper, citing Exemption 3 to FOIA, which allows an agency to withhold records
“specifically exempted from disclosure by statute . . . if that statute . . . establishes particular
criteria for withholding or refers to particular types of matters to be withheld.” Williams Decl.
Ex. V (quoting 5 U.S.C. § 552(b)(3)). The agency pointed to a provision of the Postal
Reorganization Act establishing that the USPS was not obligated 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.” Id.
(quoting 29 U.S.C. § 410(c)(2)). The Capitol Forum appealed the denial of this FOIA request as
well, and the appeal was denied on September 10, 2018. Compl. Ex. B.
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DBW Partners brought this FOIA suit against the USPS and the USPS OIG on December
28, 2018. Compl. After this suit was filed but before moving for summary judgment, USPS
produced to the Capitol Forum a heavily redacted version of the Whitepaper. Nickoski Decl. Ex.
H at 41–82, ECF No. 11-3. Both parties then moved for summary judgment. Defs.’ Mot. for
Summ. J., ECF No. 11; Pl.’s Cross-Mot. for Summ. J., ECF No. 12. Both motions are now ripe
for review.
III. ANALYSIS
A. Legal Standard
FOIA “sets forth 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) (quoting NLRB v. Robbins Tire & Rubber Co., 437 U.S.
214, 242 (1978)). The Act mandates release of properly requested federal agency records, unless
the materials fall squarely within one of nine statutory exemptions. Milner v. Dep’t of Navy, 562
U.S. 562, 565 (2011); Students Against Genocide v. Dep’t of State, 257 F.3d 828, 833 (D.C. Cir.
2001) (citing 5 U.S.C. § 552(a)(3)(A), (b)). Additionally, FOIA “requires that even if some
materials from the requested record are exempt from disclosure, any ‘reasonably segregable’
information from those documents must be disclosed after redaction of the exempt information
unless the exempt portions are ‘inextricably intertwined with exempt portions.’” Johnson v.
Exec. Office for U.S. Attorneys, 310 F.3d 771, 776 (D.C. Cir. 2002) (citing 5 U.S.C. § 552(b);
Mead Data Cent., Inc. v. Dep’t of the Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977)).
Exemptions must be “narrowly construed,” and “conclusory and generalized allegations of
exemptions are unacceptable.” Prop. of the People, Inc. v. Office of Mgmt. & Budget, 330 F.
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Supp. 3d 373, 380 (D.D.C. 2018) (quoting Morley v. CIA, 508 F.3d 1108, 1114–15 (D.C. Cir.
2007).
“FOIA cases typically and appropriately are decided on motions for summary judgment.”
Defs. of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009) (citing Bigwood v.
U.S. Agency for Int’l Dev., 484 F. Supp. 2d 68, 73 (D.D.C. 2007)). An agency is entitled to
summary judgment if no material facts are genuinely in dispute and the agency demonstrates
“that its search for responsive records was adequate, that any exemptions claimed actually apply,
and that any reasonably segregable non-exempt parts of records have been disclosed after
redaction of exempt information.” Competitive Enter. Inst. v. EPA, 232 F. Supp. 3d 172, 181
(D.D.C. 2017). 1 “This burden does not shift even when the requester files a cross-motion for
summary judgment because ‘the Government ultimately has the onus of proving that the
documents are exempt from disclosure,’ while the ‘burden upon the requester is merely to
establish the absence of material factual issues before a summary disposition of the case could
permissibly occur.’” Hardy v. ATF, 243 F. Supp. 3d 155, 162 (D.D.C. 2017) (brackets omitted)
(quoting Pub. Citizen Health Research Grp. v. FDA, 185 F.3d 898, 904–05 (D.C. Cir. 1999)).
To carry its burden, the agency must provide “a relatively detailed justification,
specifically identifying the reasons why a particular exemption is relevant and correlating those
claims with the particular part of the withheld document to which they apply.” Elec. Privacy
Info. Ctr. v. DEA, 192 F. Supp. 3d 92, 103 (D.D.C. 2016) (quoting Mead Data Cent., 566 F.2d at
251). The agency “cannot justify its withholdings on the basis of summary statements that
1
The Capitol Forum has not challenged the adequacy of USPS’s search for responsive
records. However, because the Court is ruling that a Glomar response is not an appropriate
response to the request for records of the ethics investigation, USPS will have to conduct an
additional search for such records and the adequacy of that search could be challenged at a later
date.
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merely reiterate legal standards or offer ‘far-ranging category definitions for information,’”
Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice, 955 F. Supp. 2d 4, 13
(D.D.C. 2013) (quoting King v. U.S. Dep’t of Justice, 830 F.2d 210, 221 (D.C. Cir. 1987)), but it
“may rely on declarations that are reasonably detailed and non-conclusory,” Pinson v. U.S. Dep’t
of Justice, 245 F. Supp. 3d 225, 239 (D.D.C. 2017); see also Larson v. Dep’t of State, 565 F.3d
857, 862 (D.C. Cir. 2009) (requiring that, to support summary judgment, agency affidavits must
“demonstrate that the information withheld logically falls within the claimed exception, and . . .
not [be] controverted by either contrary evidence in the record nor by evidence of agency bad
faith” (quoting Miller v. Casey, 730 F.3d 773, 776 (D.C. Cir. 1984) (quotation omitted))). While
reviewing courts should “respect the expertise of an agency,” Hayden v. NSA / Cent. Sec. Serv.,
608 F.2d 1381, 1388 (D.C. Cir. 1979), courts review an agency’s decision to withhold records de
novo and will only endorse that decision if the agency's justification for invoking a FOIA
exemption “appears ‘logical’ or ‘plausible,’” Pinson, 245 F. Supp. 3d at 239 (quoting Wolf v.
CIA, 473 F.3d 370, 374–75 (D.C. Cir. 2007)).
B. Ethics Records
USPS issued a Glomar response to the Capitol Forum’s request for records relating to
any ethics investigation of Cochrane based on Exemption 6. This exemption permits the
withholding of “personnel and medical files and similar files the disclosure of which would
constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). The
analysis for this Exemption “requires, first, a determination of whether the document in question
qualifies as ‘a personnel, medical, or similar file[].’” Judicial Watch, Inc. v. Dep’t of the Navy,
25 F. Supp. 3d 131, 140 (D.D.C. 2014) (alteration in original) (quoting Multi Ag Media LLC v.
Dep’t of Agric., 515 F.3d 1224, 1228 (D.C. Cir. 2008)). For purposes of this determination, the
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term “similar files” is “construed broadly and is ‘intended to cover detailed Government records
on an individual which can be identified as applying to that individual.’” Gov’t Accountability
Project v. U.S. Dep’t of State, 699 F. Supp. 2d 97, 105–06 (D.D.C. 2010) (quoting Dep’t of State
v. Wash. Post. Co., 456 U.S. 595, 602 (1982)). The Capitol Forum has not disputed that the
records it requested would be sufficiently similar to qualify. See Pl.’s Mem. of Law in Supp. of
Cross-Mot. for Summ. J. and in Opp’n to Defs.’ Mot. for Summ. J. (“Pl.’s MSJ”) at 11, ECF No.
12-1.
The Court must next “determine whether there is a ‘substantial’ privacy interest in
preventing the document[s’] disclosure.” Judicial Watch, 25 F. Supp. 3d at 140 (quoting Nat’l
Ass’n of Retired Fed. Emps. v. Horner, 879 F.2d 873, 874 (D.C. Cir. 1989)). “[U]se of the word
substantial in this [FOIA] context, means less than it might seem. A substantial privacy interest
is anything greater than a de minimis privacy interest.” Multi Ag Media, 515 F.3d at 1229–30. If
a substantial privacy interest is identified, then the Court must then “determine whether [the
records’] disclosure ‘would constitute a clearly unwarranted invasion of personal privacy’”
within the meaning of the statute. Id. at 1228 (quoting 5 U.S.C. § 552(b)(6)). This requires
“balanc[ing] the privacy interest that would be compromised . . . against any public interest in
the requested information.” Id.; see also Sullivan v. Veterans Admin., 617 F. Supp. 258, 260
(D.D.C. 1985) (describing two steps to the balancing analysis: first, “identify[ing] the nature and
magnitude of the various interests involved” and second, “balancing these competing interests”).
Further, to justify a Glomar response, “[t]he agency must demonstrate that
acknowledging the mere existence of responsive records would disclose exempt information.”
Elec. Privacy Info. Ctr. v. NSA, 678 F.3d 926, 931 (D.C. Cir. 2012) (citing Wolf, 473 F.3d at
374). Put another way, “[a] Glomar response is valid ‘if the fact of the existence of the agency
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records falls within a FOIA exemption.’” People for the Ethical Treatment of Animals v. NIH
(“PETA”), 745 F.3d 535, 540 (D.C. Cir. 2014) (quoting Wolf, 473 F.3d at 374). A Glomar
response can be justified based on agency affidavits containing “reasonable specificity of detail
rather than merely conclusory statements” so long as they are not “called into question by
contradictory evidence in the record.” Id. (quoting Elec. Privacy Info. Ctr., 678 F.3d at 931). If
a Glomar response is so justified, the agency is under no obligation to undertake any search for
records. Id.
There can be little question that Cochrane 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. This Circuit has recognized the “‘substantial’ privacy interest held by ‘the targets of
law-enforcement investigations . . . in ensuring that their relationship to the investigations
remains secret.’” PETA, 745 F.3d at 541 (quoting Roth v. U.S. Dep’t of Justice, 642 F.3d 1161,
1174 (D.C. Cir. 2011)). The Circuit has further observed that “the same concerns exist in the
context of non-criminal investigations” and, thus, that records of many kinds of investigations
implicate substantial privacy interests for the subjects of those investigations. Id. (citing
McCutchen v. U.S. Dep’t of Health & Human Servs., 30 F.3d 183, 187 (D.C. Cir. 1994)) (finding
privacy interest in National Institute of Health investigation into animal treatment at state
research laboratory); see, e.g., Kimberlin v. Dep’t of Justice, 139 F.3d 944, 948 (D.C. Cir. 1998)
(finding same in Office of Professional Responsibility investigation into an Assistant U.S.
Attorney); Chang v. Dep’t of Navy, 314 F. Supp. 2d 35, 43–44 (D.D.C. 2004) (finding same in
records of non-judicial punishment proceedings against a naval officer).
Two considerations weaken Cochrane’s privacy interest somewhat. First, he was a
government official during the relevant time period, which means he “may have a somewhat
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diminished privacy interest,” but with the caveat that government officials “do not surrender all
rights to personal privacy when they accept a public appointment.” Quiñon v. FBI, 86 F.3d
1222, 1230 (D.C. Cir. 1996). Second, some of the facts that could be revealed by responsive
records are already matters of public record. See Citizens for Responsibility & Ethics in Wash. v.
U.S. Dep’t of Justice (“CREW”), 840 F. Supp. 2d 226, 233 (D.D.C. 2012) (“[G]eneral principles
of privacy have far less force in [a] case [where] the information . . . is already a matter of public
record.”). For instance, it is undisputed that Cochrane was interviewed and spoke favorably
about Stamps.com, and an email has been produced showing ethics officials discussing his
actions. However, “the fact that an event is not wholly private does not mean that an individual
has no interest in limiting disclosure or dissemination of the information.” U.S. Dep’t of Justice
v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 770 (1989) (quotations omitted).
Although Cochrane’s privacy interest is thus weakened, neither of these concerns cuts against
him strongly enough to eliminate it entirely, and so it remains more than de minimis, and the
Court proceeds to consider the public interest.
“[T]he relevant public interest under FOIA is the extent to which disclosure of requested
files would serve the core purpose of the FOIA, which is contributing significantly to public
understanding of the operations or activities of the government.” Multi Ag Media, 515 F.3d at
1231 (quotations and alterations omitted); see also PETA, 745 F.3d at 524 (“[T]he only
cognizable public interest under FOIA is ‘the citizens’ right to be informed about what their
government is up to.’”) (quoting Reporters Comm., 489 U.S. at 773). The public interest is,
therefore, narrow in scope, but when it comes to records of an investigation, it can take a few
different forms: “[f]or example, the public may have an interest in knowing that a government
investigation itself was comprehensive, that the report of an investigation released publicly is
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accurate, [or] that any disciplinary measures imposed are adequate . . . .” Stern v. FBI, 737 F.2d
84, 92 (D.C. Cir. 1984).
Cochrane—as Chief Customer and Marketing Officer—held a high-ranking position in
the context of the USPS. He was certainly a higher-ranked government official than the
researchers in PETA, 745 F.3d at 538, or the “staff-level government lawyer” in Kimberlin, 139
F.3d at 949. He is not as high-ranking a government official, though, as the U.S. Representative
and Committee Chair in CREW, 840 F. Supp. 2d at 228, 231, nor have his actions garnered as
much public attention as the maritime collision that prompted the non-judicial punishment
proceedings in Chang, 314 F. Supp. 2d at 44 (“The . . . incident led to an investigation by the
National Transportation Safety Board, two suits in admiralty . . . an internet website providing
pictures of the damage and substantial media coverage.”). Some details of Cochrane’s conduct
are public knowledge, but there has been no official acknowledgment of an investigation. In
PETA the D.C. Circuit noted that “official acknowledgment” by the government of complaints or
investigations “would carry an added and material stigma” for the subjects of the complaints and
thus carries “special significance.” PETA, 745 F.3d at 542.
Defendants, however, are also mistaken in arguing that the information requested by the
Capitol Forum does not implicate the public interest at all because it relates only to “an isolated
episode regarding a former employee and would not shed any light on how the agency is
performing its statutory duties or carrying out its mission.” Mem. of Law in Supp. of Defs.’
Mot. for Summ. J. (“Defs.’ MSJ”) at 8–9, ECF No. 11-1. A specific request does not mean there
is no public interest and, indeed, narrow requests are generally easier for agencies and courts to
deal with than broad ones. Cf. Benavides v. Drug Enf’t Admin, 968 F.2d 1243, 1249 (D.C. Cir.
1992) (“A district court has discretion . . . to avoid overly broad fishing expeditions.” (quotations
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omitted)). Likewise the fact that the request focused on “an isolated episode” is not dispositive.
In the past, the fact that a single incident or a single investigation was the focus of a FOIA
request has not counted against the requestor in the public interest balancing. E.g., Chang, 314
F. Supp. 2d at 43–44 (analyzing, under the Privacy Act, the disclosure of one officer’s non-
judicial punishment records stemming from a single incident). Additionally, it has not been
established that this event was “isolated.” A request about a single investigation can still shed
light on government operations—either the operations under investigation or the operations of
the investigation itself. Stern, 737 F.2d at 92. Finally, “the mere fact that records pertain to an
individual’s activities does not necessarily qualify them for exemption” because “[s]uch records
may still be cloaked with the public interest if the information would shed light on agency
action.” Nation Magazine, Wash. Bureau v. U.S. Customs Serv., 71 F.3d 885, 894–95 (D.C. Cir.
1995).
Defendants also point to PETA, Defs.’ MSJ at 9, in which the D.C. Circuit held that a
Glomar response was acceptable for a FOIA request seeking “materials related to all [National
Institute of Health (“NIH”)] investigations into complaints” regarding three particular NIH-
funded researchers at a state university. PETA, 745 F.3d at 541. PETA is distinguishable on two
significant grounds from the instant case. First and foremost, PETA was decided under FOIA
Exemption 7(C), which protects “records or information compiled for law enforcement
purposes” if disclosure “could reasonably be expected to constitute an unwarranted invasion of
personal privacy.” Id. (quoting 5 U.S.C. § 552(b)(7)). Although invocations of Exemption 7(C)
are analyzed through a similar balancing of public and private interests, Exemption 6 has a
different standard, one that tilts more strongly in favor of disclosure and requires that records be
turned over unless the invasion of personal privacy would be “clearly unwarranted.” Stern, 737
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F.2d at 91 (“Exemption 7(C) places a greater emphasis on protecting personal privacy than does
Exemption 6 . . . .”); Wash. Post Co. v. U.S. Dep’t of Health & Human Servs., 690 F.2d 252, 261
(D.C. Cir. 1982) (“Under Exemption 6, the presumption in favor of disclosure is as strong as can
be found anywhere in the Act.”). Second, the individuals whose privacy was at risk in PETA
were not government officials, but state employees who merely received federal funding. See
PETA, 745 F.3d at 538. Their research was government-funded, but it was not government
activity in any meaningful sense. Id. at 524 (noting that “whether private individuals conduct
animal research in an appropriate manner . . . does not speak directly to governmental activity.”).
Given this 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,” Wolf, 473 F.3d at 375, for the USPS to suggest that it would be a “clearly
unwarranted” invasion of privacy, Stern, 737 F.3d at 91, to even acknowledge the existence of
records relating to an ethics review of Cochrane. Cochrane 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 the Capitol
Forum would shed light on how the USPS responds when a high-ranking official interacts in the
ways Cochrane did with leadership of a private corporation that does business with the
government. Cochrane was never as prominent a figure as the Representative in CREW and his
actions did not garner as much attention as the naval accident in Chang, but this does not mean
that he did not give up some of his right to privacy by taking a high-level role in the government
or that the public lacks an interest in his actions. If the public interest side of the Exemption 6
balancing depends too much on the profile of the subject of the request, or on the amount of
interest that the public has shown before any disclosures are made, FOIA would become a
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significantly weakened means for public oversight of government operations. FOIA would
become largely ineffective with respect to lower-profile federal agencies like the USPS or
instances of government misbehavior that has not yet garnered media attention. The public’s
interest does not have to be broad to be significant.
The public interest here is bolstered by the fact that Cochrane’s interactions with
Stamps.com— almost certainly the subject of any ethics investigation that produced responsive
records 2—go to the core purpose of FOIA. An investigation into the sequence of events laid out
by the Capitol Forum 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 Cochrane’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.
For these reasons, as to the ethics investigation records, the Court denies Defendants’
Motion for Summary Judgment and grants Plaintiff’s Cross-Motion for Summary Judgment.
The government did not meet its burden and has not established that Exemption 6 justified a
categorical Glomar response. The Court therefore orders that USPS conduct a search for
responsive documents and produce any responsive documents within thirty days of the date of
2
The Court recognizes that the Capitol Forum requested records of any ethics
investigation between certain dates rather than focused on particular subject matter. At the same
time, the request is clearly focused on Cochrane’s interactions with Stamps.com and on the
ethics review that the Capitol Forum has reason to believe was conducted during the relevant
time period. The Court sees no reason to ignore such obvious realities in considering the USPS’s
response. Of course, the Court also does not mean to rewrite the Capitol Forum’s FOIA request
to limit its scope. To the extent that any other ethics investigations of Cochrane occurred in the
relevant time period, these would also be responsive.
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this opinion. Plaintiffs may then file a response to these updated submissions within twenty-one
days.
C. OIG Whitepaper
The USPS OIG initially withheld the entirety of the OIG Whitepaper on the basis of
Exemption 3. Compl. ¶ 19. Under Exemption 3, an agency can withhold from disclosure
matters that are “specifically exempted from disclosure by statute,” provided that the statute
either “requires that the matters be withheld from the public in such a manner as to leave no
discretion on the issue” or “establishes particular criteria for withholding or refers to particular
types of matters to be withheld.” 5 U.S.C. § 552(b)(3)(A). For this exemption, then, the agency
must “show [1] that the statute claimed is one of exemption as contemplated by Exemption 3 and
[2] that the withheld material falls within the statute.” Larson v. Dep't of State, 565 F.3d 857,
865 (D.C. Cir. 2009) (citing Fitzgibbon, 911 F.2d at 761–62). The 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.” 39
U.S.C. § 410. The Capitol Forum has not disputed that the Postal Reorganization Act is a
withholding statute under Exemption 3. See Pl.s’ MSJ at 16.
After this litigation began, the USPS OIG produced to the Capitol Forum a heavily
redacted version of the Whitepaper, Nickoski Decl. Ex. H (“Whitepaper”), ECF No. 11-3 at 41–
82, accompanied by a one-page Vaughn index, Martin Decl. Attach. 1, ECF No. 11-4 at 5. After
this partial production, the USPS OIG argues that it has met its burden, Defs.’ MSJ at 11–14, and
the Capitol Forum makes three arguments to the contrary: (1) that the Whitepaper is not exempt
from disclosure; (2) that, even if some portions are exempt from disclosure, more portions of it
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are nonetheless segregable; and (3) that the Vaughn index created by the USPS OIG is
insufficient. See Pl.s’ MSJ at 16–21.
The Capitol Forum’s first argument, that the Whitepaper as a whole is not exempt from
disclosure can be disposed of fairly easily. The USPS OIG has produced a declaration by Dennis
Nicoski, USPS’s Director of Field Sales Strategy and Contracts, explaining the need to withhold
the OIG Whitepaper. See Whitepaper. The Nicoski Declaration explains that NSAs 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. Id. ¶¶ 11, 14, 18. According to the declaration, it
is not just the terms of these agreements that the USPS would like to keep secret; even simply
“[k]nowing how the Postal Service thinks about such contracts, discusses such contracts or
otherwise acts surrounding such contracts could provide another company with a competitive
advantage.” Id. ¶ 13. The Capitol Forum attacks the Nicoski Declaration as “unsupported,”
“highly conclusory,” and “speculative.” Defs.’ MSJ at 16. The Court disagrees. The
Declaration is based on Nicoski’s personal knowledge, Nicoski Decl. ¶ 2, and it is further
supported by the Declaration of Elizabeth P. Martin, ECF No. 11-4, Counsel to the Inspector
General for the USPS, which explains that the Whitepaper was produced by the OIG’s Risk
Analysis Research Center, “a component of the OIG that conducts in-depth reserch and analysis
on postal issues to identify opportunities for revenue growth and increased operational
efficiencies,” id. ¶ 3. 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.
16
Plaintiffs also argue that, insofar as the existence or terms of particular NSAs are either
publicly known or easily discernable, these may not be withheld. E.g., Pl.’s MSJ at 17, ECF No.
12-1. This argument fails because, as this Court has explained, the relevant provision of the
Postal Reorganization Act, 39 U.S.C. § 410(c)(2) is relatively broad. See Airline Pilots Ass’n,
Int’l v. U.S. Postal Serv., No. 03-cv-2384, 2004 WL 5050900 at *6 (June 24, 2004). The Act
was designed to make USPS function more like a modern, competitive business. See Am. Postal
Workers Union AFL-CI v. U.S. Postal Serv., 742 F. Supp. 2d 76, 82 (D.D.C. 2010) (citing
Franchise Tax Bd. V. U.S. Postal Serv., 467 U.S. 512, 519–20 (1984)). In it, “Congress,
specifically delineat[ed] the circumstances under which FOIA does not apply to USPS, [and]
used the words ‘good business practice.’” Airline Pilots Ass’n, 2004 WL 5050900 at *6 (citing
39 U.S.C. § 410(c)(2)). This language designates a broad swath of documents as protected, as
most modern businesses would not publicize sensitive trade information even if it was already
public in some limited form. The Court, therefore, need not consider in any detail the Capitol
Forum’s proffered declaration concerning technology that allows NSA price information to be
discerned by scanning package barcodes. See Def’s MSJ at 1; Lodhia Decl., ECF No. 12-4.
The more difficult questions are whether the USPS OIG properly segregated those
portions of the OIG Whitepaper that it was required to produce from those that are exempt from
production, and, relatedly, whether the Vaughn index accompanying the production is
sufficiently detailed. To meet its burden on segregability, a government agency must usually
submit a sufficiently detailed Vaughn index for each document and an affidavit or declaration
stating that it has released all segregable material. 5 U.S.C. § 552(b) (“Any reasonably
segregable portion of a record shall be provided to any person requesting such record after
deletion of the portions which are exempt.”); see Johnson, 310 F.3d at 776 (citing Armstrong v.
17
Exec. Office of the President, 97 F.3d 565, 578–79 (D.C. Cir. 1996)) (“The combination of the
Vaughn index and the affidavits . . . are sufficient to fulfill the agency’s obligation to show with
‘reasonable specificity’ why a document cannot be further segregated.”). An agency does not
necessarily need to produce a Vaughn Index in every FOIA suit. Rather, an agency “may carry
its burden of properly invoking an exemption by submitting sufficiently detailed affidavits or
declarations, a Vaughn index of the withheld documents, or both.” Hardy v. Bureau of Alcohol,
Tobacco, Firearms & Explosives, 243 F. Supp. 3d 155, 162 (D.D.C. 2017) (citing Judicial
Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208, 215 (D.C. Cir. 2013)). Regardless of how an
agency carries its burden, the bottom line is that, as a matter of law, “FOIA itself places the
burden on the agency to sustain the lawfulness of specific withholdings in litigation.” Nat. Res.
Def. Council v. Nuclear Regulatory Comm’n, 216 F.3d 1180, 1190 (D.C. Cir. 2000); see also 5
U.S.C. § 552(a)(4)(B).
The OIG Whitepaper produced to the Capitol Forum is indeed very heavily redacted. See
Whitepaper. It comprises forty-two pages, a full thirty of which are redacted in their entirety,
and several that are not entirely redacted reveal merely vague headings, single sentences left
unredacted, or contact information at the bottom of a page. See id. Of course, “no genuine
dispute is shown merely because a released record was heavily redacted. Plunkett v. Dep’t of
Justice, 924 F. Supp. 2d 289, 304 (D.D.C. 2013). If the agency “show[s] with reasonable
specificity why material could not be segregated,” through affidavits, declarations, and a Vaughn
index, the agency “meets its burden under FOIA.” Billington v. U.S. Dep’t of Justice, 301 F.
Supp. 2d 15, 23 (D.D.C. 2004) (citing Armstrong, 97 F.3d at 579). If the USPS was reasonably
specific in explaining why so much of the document either was or could not be segregated from
“information of a commercial nature, including trade secrets . . . which under good business
18
practice would not be publicly disclosed,” 39 U.S.C. § 410, it may meet its burden
notwithstanding the heavy redactions.
Although the Nicoski and Miller 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. The Nicoski Declaration describes
what NSAs are, why they are important, and why USPS cannot disclose their terms or the
agency’s broader “thought processes, procedures and tactics with regard to NSAs.” 3 Nicoski
Decl. ¶ 19, see id. ¶¶ 11–19. It then explains that the USPS management determined the OIG
Whitepaper contained protected commercial information and that it could not be disclosed, and
that, at the start of litigation, it agreed to take another look and “did unredact and produce certain
information that in its view would not pose a risk of disclosing particular NSAs, the Postal
Service’s thoughts, actions, or other internal workings . . . and associated business decisions.”
Id. ¶¶ 22–24. The Miller Declaration provides background about the OIG Risk Analysis
Research Center, which produced the Whitepaper, and reiterates that the Whitepaper was not
3
The Court observes that not all “thought processes, procedures and tactics” are
necessarily exempt under the Postal Reorganization Act. It is “good business practice” for a
company to keep some of these things secret, but most modern businesses are willing to publicly
explain, for instance on quarterly earnings calls, at least some of their strategic decisions and
future plans. The Postal Service, too, has explained some of its goals and priorities, including in
a 2017 hearing before the House of Representatives’ Committee on Oversight and Government
Reform, cited in the OIG Whitepaper. Whitepaper, ECF No. 11-3 at 54 n.48 (citing
Accomplishing Postal Reform in the 115th Congress – H.R. 756, The Postal Service Reform Act
of 2017: Hearing before the Committee on Oversight and Government Reform, House of
Representatives, 115th Cong., 1st Sess. (February 7, 2017) (statement of Megan Brennan,
Postmaster General and Chief Executive Officer of USPS), https://docs.house.gov/meetings/GO/
GO00/20170207/105526/HHRG-115-GO00-Transcript-20170207.pdf). In assessing whether to
withhold certain “thought processes, procedures and tactics,” the Postal Service must make that
assessment within the context of what it has already said publicly about such matters.
19
published on the OIG website because it contained commercial information and that “OIG
deferred to the view of USPS Management and declined to disclose the whitepaper in response
to the Capitol Forum’s FOIA request” for the same reason. Miller Decl. ¶ 6. The Vaughn index
itself provides the least information of all. It contains a single entry, which indicates simply that
the OIG Whitepaper was partially withheld on the basis of Exemption 3 and the Postal
Reorganization Act. 4
Considering that the existence of USPS Reseller Programs and NSAs 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. While the
Nicoski Declaration and, to a lesser extent, the Miller Declaration explain why commercial
information in the Whitepaper cannot be revealed, the USPS OIG has provided little to no
evidence suggesting or explaining that whatever non-exempt information remains below the
current redactions is so “inextricably intertwined with exempt portions,” Mead, 566 F.2d at 260,
that there are no further “reasonably segregable portion[s]” that it is obligated to produce, 5
U.S.C. § 552(b). All the Court is told is that “the Postal Service did unredact and produce
certain information that in its review would not pose a risk of disclosing” exempt information.
Nicoski Decl. ¶ 24 (emphasis added). This does not explain whether the Defendants have
unredacted and produced all information that would not risk disclosing exempt information, as
required by FOIA. 5 U.S.C. § 552(b); compare, e.g., Adoinser v. Dep’t of Justice, 811 F. Supp.
2d 284, 295 (D.D.C. 2011) (finding that all reasonably segregable non-exempt material was
4
The fact that this Vaughn index does not help the agency carry its burden is not
dispositive because agencies are under no obligation to produce a Vaughn index at all. It is only
one of several means by which an agency may carry its FOIA burden. Hardy, 243 F. Supp. 3d at
162 (“An agency may carry its burden of properly invoking an exemption by submitting
sufficiently detailed affidavits or declarations, a Vaughn index of the withheld documents, or
both . . . .”).
20
released based in part on a declaration stating that “[a]ll responsive page were examined [by the
agency] to determine whether any reasonably segregable information could be released”).
Further, although the Capitol Forum does not raise this concern, the Court notes that the
USPS OIG’s redactions are internally inconsistent. For instance, one page containing some
unredacted text is a table of contents for the report. Whitepaper, ECF No. 11-3 at 42. Most
headings are redacted, but some have been revealed, including for example “Management of
Channel Partnerships,” located at page 9 of the Whitepaper, and “OIG Recommendations,”
located at page 18. Id. But pages 9 and 18 of the report are redacted in their entirety, without
even the previously revealed heading visible. Id. at 51, 60. Conversely, on page 17 of the report,
USPS OIG has revealed the heading “Concerns Regarding Sales Partners,” along with a
paragraph of text, id. at 59, but in the table of contents, no entry for page 17 has been left
unredacted, id. at 42. In light of the length of the document and the relative paucity of
unredacted portions, these inconsistencies, though minor, are noticeable and do suggest a less-
than-precise review of which portions of the report could have been produced without disclosing
exempt information. This adds to the Court’s conviction that the agency has not met its burden
of explaining its withholdings and segregability review with reasonable specificity.
Where an agency fails to meet its burden, FOIA provides courts “a host of procedures” to
determine whether records should be turned over, including discovery, further agency affidavits,
and in camera review of the records in question. Allen v. CIA, 636 F.2d 1287, 1298 (D.C. Cir.
1980), abrogated on other grounds by Founding Church of Scientology of Wash., D.C., Inc. v.
Smith, 721 F.2d 828, 830– 31 (D.C. Cir. 1983). A combination of the latter two are appropriate
here, given that a single document of moderate length is at issue. Id. The Court exercises its
“broad discretion” and orders submission of the OIG Whitepaper within thirty days for in
21
camera review, along with updated justifications for the any exemptions. Id. at 1297; see
Graham v. Mukasey, 247 F.R.D. 205, 207 (D.D.C.2008) (citing Weissman v. CIA, 565 F.2d 692,
698 (D.C. Cir.1977)) (stating, in a FOIA case, that in camera review is appropriate “where the
record is vague or the agency claims [are] too sweeping or suggestive of bad faith”). The USPS
OIG’s updated justifications may come in the form of new agency affidavits or a revised Vaughn
index discussing particular redactions in more detail. See Vaughn v. Rosen, 484 F.2d 820, 826–
28 (D.C. Cir. 1973). Plaintiffs may then file a response to these updated submissions within
twenty-one days. Accordingly, 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. 5
IV. CONCLUSION
For the foregoing reasons, Defendants’ Motion for Summary Judgment is DENIED and
Plaintiff’s Cross-Motion for Summary Judgment is GRANTED IN PART AND DENIED IN
PART. An order consistent with this Memorandum Opinion is separately and
contemporaneously issued.
Dated: October 28, 2019 RUDOLPH CONTRERAS
United States District Judge
5
The Capitol Forum also asks the Court to assess litigation fees and costs against the
USPS and USPS OIG. Compl. ¶¶ 31, 35; Pl.’s MSJ at 21–22; see 5 U.S.C. § 552(a)(4)(E)
(stating that a court may “assess . . . fees and other litigation costs . . . in any case under this
section in which the complainant has substantially prevailed”). The Court agrees with the
Defendants that this request for fees and costs is “premature” at this stage because the Capitol
Forum has not yet established that it has “substantially prevailed.” Reply in Supp. of Defs.’ Mot.
for Summ. J. and Opp’n to Pl.’s Cross-Mot. for Summ. J. at 10, ECF No. 14.
22