United States District Court, District of Columbia
MEMORANDUM OPINION DENYING DEFENDANTS' MOTION FOR
SUMMARY JUDGMENT; GRANTING IN PART AND DENYING IN PART
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT RE DOCUMENT NOS.
RUDOLPH CONTRERAS United States District Judge
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
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.
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 its
investors, during which Stamps.com executives referred to
Cochrane's comments during the July 30 interview.
Williams Decl. Ex. P.
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.
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.
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.
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.
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.
“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)).