Case Detail
| Case Title | DBW PARTNERS, LLC v. UNITED STATES POSTAL SERVICE et al | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| District | District of Columbia | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| City | Washington, DC | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Case Number | 1:2018cv03127 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Date Filed | 2018-12-28 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Date Closed | 2020-04-29 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Judge | Judge Rudolph Contreras | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Plaintiff | DBW PARTNERS, LLC doing business as CAPITOL FORUM | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Case Description | DBW Partners, which operates Capital Forum, a subscription news service, submitted a FOIA request to the U.S Postal Service for records concerning an ethics investigation into the propriety of an interview given by then Chief Customer and Marketing Officer James Cochrane to Stamps.com. The agency acknowledged receipt of the request but denied it on the basis of Exemption 6 (invasion of privacy). DBW Partners filed an administrative appeal, but the agency upheld its original decision. Capital Forum also submitted a FOIA request to the OIG's office for a report concerning the role of middlemen and discounts in the USPS package business. The agency acknowledged receipt of that request, but denied it under Exemption 3 (other statutes). Capital Forum filed an administrative appeal, which was denied. DBW Partners then filed suit. Complaint issues: Litigation - Vaughn index, Litigation - Attorney's fees | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Defendant | UNITED STATES POSTAL SERVICE | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Defendant | UNITED STATES POSTAL SERVICE OFFICE OF INSPECTOR GENERAL | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Documents | Docket Complaint Complaint attachment 1 Complaint attachment 2 Complaint attachment 3 Complaint attachment 4 Complaint attachment 5 Complaint attachment 6 Complaint attachment 7 Complaint attachment 8 Opinion/Order [18] FOIA Project Annotation: Judge Christopher Cooper has ruled that neither the U.S. Postal Service nor its Office of Inspector General has shown that they properly denied two requests for records from DBW Partners, which operates Capitol Forum, a subscription news service. USPS Chief Customer and Marketing Officer James Cochrane did an interview with Stamps.com, praising the agency's Postage Reseller Program. Stamps.com then posted the interview on its blog a day before its earnings call with investors, during which it referred to Cochrane's interview. Capitol Forum requested records about an ethics investigation or review of Cochrane. The agency issued a Glomar response neither confirming nor denying the existence of records, citing Exemption 6 (invasion of privacy). Capitol Forum filed an administrative appeal, which was denied by the agency. Capitol Forum sent a second request to OIG for its report detailing USPS's work with resellers and negotiated service agreements. The agency denied the request under Exemption 3 (other statutes), citing § 410(c)(2), the good business practices exception contained in the Postal Reorganization Act. Capitol Forum also filed an administrative appeal of that decision, which was again denied by the agency. Cooper noted that "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." However, Cooper observed that Cochrane's personal privacy was diminished somewhat by his government position and by the fact that he had spoken on the record. But Cooper pointed out that "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. . ." However, Cooper found the agency had undervalued the public interest in Cochrane's ethics investigation. He observed that "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 Cochrane. Cochrane was a high-ranking official relative to his agency, making his privacy interest minimal, though not de minimis." He added that "if the public interest side of 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 significantly weakened means for public oversight of government operations. FOIA would become largely ineffective with respect to lower-profile agencies like the USPS or instances of government misbehavior that has not garnered media attention. The public's interest does not have to be broad to be significant." Diminishing Cochrane's privacy interest, Cooper noted, was the fact that the ethics investigation did not focus on him. Cooper explained that "fewer privacy interests are raised when, as here, the allegedly unethical conduct relates to agency operations and not merely to personal conduct." As a result, Cooper found the agency's Glomar response was improper and ordered the agency to search for responsive records. As to Capitol Forum's request for the OIG's report on its ethics investigation, Cooper agreed that it was plausible that the records were covered by the good business practices exception. But Cooper was skeptical as to whether the agency had conducted an appropriate segregability analysis of the heavily redacted document. He pointed out that "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." He indicated that the agency's declarations did not "explain whether the Defendants have unredacted and produced all information that would not risk disclosing exempt information, as required by FOIA." Cooper ordered the agency to provide the document for in camera review.
Opinion/Order [23]Issues: Determination - Glomar response, Exemption 3 - Limited agency discretion, Exemption 6 - Invasion of privacy FOIA Project Annotation: Judge Rudolph Contreras has ruled that the U.S. Postal Service has now provided a sufficient explanation for its decision to continue to withhold 20 pages from a Whitepaper prepared by USPS's Office of the Inspector General concerning the use of middlemen to resell postal services. DBW Partners, which ran the Capital Forum, a subscription news service that focused on specific transactions and investigations, submitted two FOIA requests to USPS pertaining to the agency's relationship with Stamps.com. One request asked for an OIG Whitepaper entitled "Postal Partnerships: The Complex Role of Middlemen and Discounts in the USPS Package Business." USPS withheld the Whitepaper under Exemption 3 (other statutes), citing § 410(c)(2) of the Postal Reorganization Act, which allows the agency to withhold information of a commercial nature that under good business practices would not be publicly disclosed. DBW Partners filed suit and Contreras found that the agency had not shown that the entire Whitepaper was protected. The agency supplemented its affidavit to better justify its Exemption 3 claim. By the time Contreras ruled, only 20 pages of the Whitepaper were still being withheld entirely. DBW Partners challenged the agency's segregability analysis, arguing that the agency had taken a piecemeal approach to the segregability review by addressing the issue section-by-section rather than as a whole. Contreras pointed out that "there is no strict level of detail that an agency must provide when explaining its segregability review, so long as the explanation provided is 'sufficient to explain the reasons [the agency's] withholding and segregation decisions. USPS has explained that it reviewed each position of the document for segregable material and that it has produced what it could. For the most part. . .this suffices to carry the agency's burden on segregability." Contreras had reviewed the remaining redactions in camera and found some portions that could be disclosed. He pointed out that "the Postal Reorganization Act only exempts from FOIA 'information of a commercial nature. . .which under good business practice would not be publicly disclosed. Because the information contained in these paragraphs is not 'of a commercial nature,' it is irrelevant whether it would be good business practice to disclose it. The Postal Service's obligations under FOIA, which favors disclosure, win out where 'information of a commercial nature' is not directly implicated."
Issues: Exemption 3 - Statutory prohibition of disclosure | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| User-contributed Documents | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
 Docket Events (Hide) | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
