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DBW Partners, LLC v. United States Postal Service

United States District Court, District of Columbia

October 28, 2019



          RUDOLPH CONTRERAS United States District Judge


         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.


         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, 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 See Williams Decl. Ex. O, ECF No. 12-3. Originally scheduled for August 2, it was rescheduled to July 30 at'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 . . . 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's blog on August 1. Id. ¶ 9. On August 2, held an earnings call with its investors, during which 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'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 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.

         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.

         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)). ...

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