Fair Political Practices Commission v. United States Postal Service

Filing 37

ORDER signed by Judge Garland E. Burrell, Jr. on 10/15/12 ORDERING that USP's 29 Motion for Summary Judgment is DENIED,and the FPPC's 30 Cross Motion for Summary Judgment is GRANTED as follows: the USPS shall provide the FPPC with th e requested information, namely, the number of pieces of mail sent on October 9th, 10th, and 22nd in 2008 using Permit No. 2058, within twenty (20) days of the date on which this Order is filed. Judgment shall be entered in favor of the Plaintiff. CASE CLOSED (Benson, A.)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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FAIR POLITICAL PRACTICES
COMMISSION,

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Plaintiff,
v.

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UNITED STATES POSTAL SERVICE,

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Defendant.
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2:12-cv-00093-GEB-CKD
ORDER DENYING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
AND GRANTING PLAINTIFF’S
CROSS MOTION FOR SUMMARY
JUDGMENT

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Pending are cross-motions for summary judgment concerning

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whether the United States Postal Service (“USPS”) properly withheld from

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the California Fair Political Practices Commission (“FPPC”) the quantity

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of mail sent by a USPS customer. The USPS withheld the requested

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numerical information under 5 U.S.C. § 552(b)(3) (“Exemption 3”) of the

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Freedom of

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410(c)(2)

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withholding

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Exemption 3. Exemption 3 authorizes a statute to exempt matters from

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disclosure “if the statute requires that the matters be withheld from

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the public in such a manner as to leave no discretion on the issue; or

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. . . establishes particular criteria for withholding or refers to

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particular types of matters to be withheld . . . ” 5 U.S.C. § 552(b)(3).

Information
of

the

Act

Postal

decision

(“FOIA”),

contending

Reorganization

because

the

PRA

1

Act

is

a

that

39

U.S.C. §

(“PRA”)

justified

its

statute

authorized

by

1

At the hearing on the motions, the USPS argued that because

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the number of items mailed by its customer is recorded in USPS Form

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3602, it constitutes “information of a commercial nature” exempted from

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disclosure by 39 U.S.C. § 410(c)(2) of the PRA. Section 410(c)(2)

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prescribes that the following need not be disclosed: “information of a

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commercial nature, including trade secrets, whether or not obtained from

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a person outside the Postal Service, which under good business practice

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would not be publicly disclosed.”

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I. FACTUAL BACKGROUND

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The FPPC is the State of California agency responsible for

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“the

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California’s Political Reform Act of 1974 (“the Act”). (Pl.’s Statement

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of Undisputed Material Facts (“Pl.’s SUF”) ¶ 1 (citing

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§§ 83100, 83111).) It is tasked with investigating possible violations

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of the Act upon receipt of a sworn complaint, and with bringing

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enforcement proceedings under the Act upon a showing of probable cause.

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(Pl.’s SUF ¶ 1.) The FPPC previously received a sworn complaint alleging

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that

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disclosure requirements for mass mailings by mailing over two hundred

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substantially

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California campaign.” (Decl. of Zachary Norton (“Norton Decl.”) ¶ 2.))1

impartial,

a

recalled

effective

California

similar

pieces

administration

elected

of

mail

and

official

“in

implementation”

Cal. Gov’t Code

violated

connection

of

the

with

a

Act’s

local

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In response to the complaint, the FPPC served an Investigative

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Subpoena on the USPS seeking “the number of mail pieces delivered on

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October 9th, 10th, and 22nd in 2008 using Permit No. 2058.” (Def.’s

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Resp. SUF at ¶ 5.) The USPS considered the FPPC’s subpoena under 39

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1

The USPS initially objected to the materiality of paragraphs 1
through 4 of Plaintiff’s Statement of Undisputed Material Facts. (Def.’s
Resp. SUF ¶¶ 1-4.) However, at the October 9, 2012 hearing, the USPS
withdrew these objections.
2

1

C.F.R. § 265.11(a)(6), which prescribes that the USPS may “[h]onor

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subpoenas or court orders only when disclosure is authorized.” The USPS

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“assesses whether disclosure is authorized [under this regulation] by

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determining whether documents may be released pursuant to the Freedom of

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Information Act.”(Def.’s Statement of Undisputed Facts (“Def.’s SUF”)

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¶ 5; Decl. of Alexander W. Wood (“Wood Decl.”) ¶ 6.) The USPS later sent

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the FPPC three responsive postal statements, called Form 3602s, but

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aside from the permit holder’s name, the USPS “redacted virtually all of

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the [] information on the forms, including the total pieces mailed”

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under FOIA Exemptions 3 and 4. (Def.’s Resp. SUF ¶ 7.) The FPPC

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administratively appealed the redaction of these forms to the USPS Chief

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Counsel. (Def.’s SUF ¶ 8.) The USPS denied the appeal and affirmed the

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redaction under Exemptions 3 and 4. (Id. at ¶ 10.)

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Subsequently, the FPPC filed the instant lawsuit under FOIA,

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in

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withholding the records requested based on Exemptions 3 and 4; a

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declaration that the USPS’s actions were so flagrant as to be arbitrary

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and

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Exemptions 3 or 4 in response to the FPPC’s request; an order directing

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the immediate disclosure and production of the requested records; and

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attorneys’ fees and costs. (Compl. ¶¶ 30-35.)

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which

it

seeks

capricious;

The

an

USPS

a

declaration

injunction

concedes

that

the

precluding

that

the

USPS

the

violated

USPS

information

from

the

FOIA

by

asserting

FPPC

seeks

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“pertains to an organization that is not a commercial enterprise [and]

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was mailed in connection with an election campaign that is now over.”

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(Wood Decl. ¶ 11; Wood Decl., Ex. G, 38:9-11; Def.’s Mot. 9:5-6.)

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Further, the USPS no longer asserts Exemption 4 as a basis for its

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3

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withholding decision.2 Therefore, the sole issue in the motions is

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whether 39 U.S.C. § 410(c)(2) authorizes the USPS to redact and withhold

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the quantity of mail sent by the permit holder using Permit No. 2058.

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II. DISCUSSION

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“The

Freedom of

Information

Act

.

. .

requires

federal

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agencies to make Government records available to the public, subject to

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nine exemptions for specific categories of material.” Milner v. Dep’t of

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Navy, 131 S. Ct. 1259, 1261-62 (2011). However, Exemption 3 of the FOIA

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does not require disclosure of “matters that are . . . specifically

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exempted from disclosure by statute . . . if that statute . . .

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establishes particular criteria for withholding or refers to particular

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types of matters to be withheld.” 5 U.S.C. § 552(b)(3)(A)(ii).

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“As a general rule, we employ a two-part inquiry to determine

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whether Exemption 3 applies to a particular FOIA request. First, we

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determine whether the withholding statute meets the requirements of

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Exemption 3. Then, we determine whether the requested information falls

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within the scope of the withholding statute.” Carlson v. U.S. Postal

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Serv., 504 F.3d 1123, 1127 (9th Cir.2007) (citation omitted). When

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determining whether information falls within the scope of Exemption 3,

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deference to an agency’s interpretation of the withholding statute is

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2

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See Def.’s Mot. 2:12 n.1. The parties also initially disputed the
scope of Plaintiff’s FOIA request. See (Pl.’s Cross Mot. for Summ. J.
& Opp’n (“Pl.’s Mot.”) 4:22-23; 1:5-6 (alleging that the USPS
“unilaterally expanded the scope of the appeal to include information
about ‘mailing costs’ and ‘mailing dates’” even though the “one piece of
information the FPPC sought was simply the number of pieces of mail
sent”); Def.’s Reply & Opp’n 6:2-3, 5:20 (asserting that Defendant’s
confusion about the scope of the request is “understandable” given
“Plaintiff’s own lack of clarity”). The parties now agree that the FPPC
seeks “only the number of pieces mailed,” therefore only those arguments
concerning the quantity of mail sent are considered here. (Def.’s Reply
& Opp’n 6:3-4.)
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“inappropriate” because the “basic policy of FOIA is to ensure that

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Congress and not administrative agencies determines what information is

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confidential.” Id. (citation omitted).

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The USPS argues that § 410(c)(2) is a withholding statute

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under Exemption 3 that satisfies the first Exemption 3 requirement. The

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FPPC does not concede that § 410(c)(2) is a viable withholding statute

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under Exemption 3, but assumes arguendo that the statute meets the

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requirements of Exemption 3, and contends: “the Postal Service simply

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has not and cannot demonstrate that information pertaining to only the

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number of pieces mailed comes within the scope of that statute.” (Pl.’s

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Mot. 7:22 n.3.) In light of each party’s respective argument, the Court

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“assume[s] without deciding that 39 U.S.C. § 410(c)(2) qualifies as an

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Exemption 3 statute for purposes of th[e] [motions] and proceed[s]

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directly to the question whether the requested records fall within the

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scope of § 410(c)(2).” Carlson, 504 F.3d at 1127.

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The USPS asserts that the quantity of mail sent is exempted

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from disclosure by § 410(c)(2) because this statute does not require

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disclosure of the following: “information of a commercial nature . . .

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which under good business practice would not be publicly disclosed.”

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§ 410(c)(2).

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Carlson, holding that the first issue for determination is whether the

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withheld information is of a commercial nature. Carlson, 504 F.3d at

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1129.

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commercial if it relates to commerce, trade, or profit.’” Id. (citation

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omitted) (applying “the common meaning of the term [‘commercial’]”).

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Carlson also states: “The majority of cases which have upheld USPS's

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withholding of information under § 410(c)(2) have concerned proprietary

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information.” Id.; see, e.g., Wickwire Gavin, P.C. v. U.S. Postal Serv.,

In

The Ninth Circuit discussed the scope of § 410(c)(2) in

Carlson,

the

Ninth

Circuit

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states:

“‘[i]nformation

is

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356 F.3d 588, 589 (4th Cir. 2004) (upholding under the PRA’s business

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practice

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spreadsheets

4

bidders

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supplies”); Amer. Postal Workers Union, AFL-CIO v. U.S. Postal Serv.,

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742 F. Supp. 2d 76, 81 & 83 (D.D.C. 2010) (stating that such data as

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“[t]he Postal Service's decisions regarding lump-sum bonus and salary

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increases” is properly considered commercial information under the PRA;

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and

that

exception

detailing

sought

“no

the

“to

USPS’s
quantity

become

evidence

[was

withholding
and

USPS's

of

pricing
exclusive

presented]

“thirteen

information”
provider

contradicting

of

the

pages
in

of

which

mailing

agency's

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contention that private sector delivery firms would not disclose this

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information”); Reid v. U.S. Postal Serv., No. 05-cv-294-DRH, 2006 WL

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1876682, at *6 (S.D. Ill. July 5, 2006) (upholding the USPS’s refusal to

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release information that could reveal the postage rate it charges

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mailers, which included the postage amount and the total number of items

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mailed); Airline Pilots Ass’n, Int’l v. U.S. Postal Serv., No. 03-2384,

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2004 WL 5050900 (D.D.C. June 24, 2004) (determining under the PRA’s good

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business

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information,

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contained in a delivery agreement between the USPS and FedEx); Robinett

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v. U.S. Postal Serv., No. CIV. A. 02-1094, 2002 WL 1728582, at *5 (E.D.

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La. July 24, 2002) (withholding information “reflecting the Postal

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Service’s evaluation of [plaintiff’s] employment application” where such

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information falls under the Postal Service’s “regulations defin[ing]

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‘information of a commercial nature’” and “ha[s] ‘customarily been

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safeguarded in both the public and private sectors’”); Weres Corp. v.

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USPS, No. 95-1984 (NHJ), 1996 U.S. Dist. LEXIS 22636, at *9 (D.D.C.

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Sept. 23, 1996) (deciding that the USPS need not disclose pricing

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information it received from unsuccessful bidders in response to its

practice

standard

methods

of

that

the

operation,

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USPS
and

need

not

performance

disclose

rate

requirements

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commercial solicitation when the USPS “set forth an undisputed, non-

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conclusory, and logical ‘good business practice’ rationale for its

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decision to withhold unsuccessful bid prices from public disclosure”).

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Carlson

further

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numbers,

hours

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‘information of a commercial nature,’ and, therefore, are not within the

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scope of § 410(c)(2).” Carlson, 504 F.3d at 1130.

states:
of

“Post

operation

office

and

names,

final

addresses,

collection

times

telephone
are

not

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In this case, the FPPC seeks the number of items mailed by a

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noncommercial organization in connection with an election that is now

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over. (Wood Decl. ¶ 11;

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information is commercial and proprietary, because “the number of pieces

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of mail a customer entrusts to the Postal Service is connected with

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trade and traffic of commerce in general” and because this information

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“was collected as part of the commercial transaction between the Postal

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Service and its customer.” (Supplemental Wood Decl. ¶ 2; Def.’s Mot.

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9:6-7.) “The Postal Service considers the actual number of pieces

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mailed,

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information. . ., to be commercial information and thus not available

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for disclosure.” (Supplemental Wood Decl. ¶ 2.) It argues that the

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information sought is of a commercial nature because its disclosure

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could potentially impair the relationship between the USPS and its

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customers, and could cause such users to use the delivery services of

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the USPS’s competitors, who are not subject to FOIA’s requirements.

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(Def.’s Mot. 10:12-13.) The FPPC counters that it strains credibility to

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suggest that “the number of pieces of mail sent . . . . relates to

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commerce, trade, or profit, such that it is proprietary to the Postal

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Service.” (Pl.’s Mot. 8:24-25.)

whether

disclosed

Norton Decl. ¶ 9.) The USPS contends this

in

isolation,

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7

or

connected

with

other

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The USPS also argues in a footnote in its Reply Brief that the

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subject information falls within the sixth category of 39 C.F.R. §

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265.6(b)(3), which it characterizes as a “regulation[] clarifying the

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type of information that satisfies the good business practice exception”

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of § 410(c)(2). (Def.’s Reply & Opp’n 6:18 n.4; Def.’s Mot. 8:18-19.)

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The referenced regulation prescribes in pertinent part: “Records not

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subject to mandatory public disclosure [include] [r]ecords compiled

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within the Postal Service which would be of potential benefit to persons

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or firms in economic competition with the Postal Service.” 39 C.F.R. §

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265.6(b)(3)(vi). The USPS contends that disclosing the quantity of mail

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sent “could potentially impair the relationship between the Postal

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Service and its customers” and could cause its customers to “migrate to

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its competitors, who are not subject to FOIA’s requirements.” (Wood

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Decl. ¶ 11; Def.’s Mot. 10:12-13.) The FPPC counters that the USPS’s

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claim—that its competitors could benefit if it disclosed the quantity of

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mail sent by Respondent—is “completely unsupported.” (Pl.’s Mot. 10:2.)

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The FPPC further argues that the USPS cannot suffer competitive harm

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since it lacks competitors, given its government sanctioned, criminally

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enforced monopoly over door-to-door mail service. (Pl.’s Mot. 10:3-11:9;

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Pl.’s Reply & Opp’n 6:6-10.)

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As the Ninth Circuit states in Carlson, “because both [the

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regulation and the statute] require that the information be of ‘a

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commercial nature’ in the first instance,” the issue here is whether the

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amount of mail sent by a noncommercial entity in connection with a

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noncommercial election is “information of a commercial nature,” as that

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term is used in § 410(c)(2). Carlson, 504 F.3d at 1129. The USPS has not

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supported its conclusion that the mere disclosure of the number of

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documents mailed in the situation at issue here constitutes “information
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of a commercial nature” within the meaning of § 410(c)(2). As the Ninth

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Circuit states in Kamman v. IRS:

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[FOIA] exemptions are to be narrowly construed by
the courts. The burden is on the government to prove
that a particular document falls within one of the
exemptions. Affidavits of agency employees may be
used to satisfy this burden. However, the government
may not rely upon conclusory and generalized
allegations of exemptions. The affidavits must
contain reasonably detailed descriptions of the
documents and allege facts sufficient to establish
an exemption.

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56 F.3d 46, 48 (9th Cir. 1995)(citations omitted). Here, the USPS

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concedes that the sender “is not a commercial enterprise,” the documents

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were “mailed in connection with an election campaign that is now over,”

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and the only information sought is “the number of mail pieces delivered

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on October 9th, 10th, and 22nd in 2008 using Permit No. 2058.”

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Decl. ¶¶ 1, 11; Def.’s Resp. SUF at ¶ 5.) The USPS has not shown that

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the requested information is within the realm of what is considered to

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be commercial information; nor has it shown how the disclosure of the

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requested

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relationship between the USPS and its customers. Further, the USPS has

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not

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information merely because this information is recorded in USPS Form

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3602, since this recording has not been shown to be “information of a

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commercial nature” within the meaning of § 410(c)(2).

shown

numerical

that

the

information

mail

could

quantities

at

potentially

issue

are

its

impair

(Wood

the

proprietary

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Nor, despite its asserted concerns, has the USPS shown that

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disclosure of the specific and limited information at issue here could

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result in the users of the USPS’s mail delivery services ceasing to use

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the USPS for such services and instead using the services of the USPS’s

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competitors, who are not subject to FOIA’s requirements. This assertion

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is not supported with facts showing that the information is commercial
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in nature, or that any of USPS’s competitors would not have to release

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such information in response to a subpoena from the FPPC. It is

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undisputed that California “Government Code Section 83118 provides the

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FPPC with the power to subpoena any records . . . material to the

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performance of FPPC’s duties,” which include enforcing the disclosure

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requirements for political mass mailings. (Wood Decl., Ex. C.)

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“[I]t is clear that the Postal Service may not rest [its

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arguments for its withholding decision] on bare allegations as to what

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might be,” and that such conclusory assertions are insufficient support

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for its exemption decision.

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512 F.

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Congressional policy favoring disclosure of governmental information,

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this court can find no reason to distinguish between the Postal Service

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and other” entities that could be required to disclose the same type of

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numerical information in response to a FPPC subpoena. Id. at 462.

Supp.

454,

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Nat’l W. Life Ins. Co. v. United States,

462 (N.D.

Tex.

1980).

“In

light

of

the clear

III. CONCLUSION

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Since the FPPC requests just the amount of mail sent by an

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admittedly noncommercial enterprise in connection with a completed

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noncommercial California election, and the USPS has not shown that this

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request involves “information of a commercial nature” under § 410(c)(2),

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Exemption

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disclosed. Therefore, the USPS’s Motion for Summary Judgment is DENIED,

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and the FPPC’s Cross Motion for Summary Judgment is GRANTED as follows:

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the USPS shall provide the FPPC with the requested information, namely,

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the number of pieces of mail sent on October 9th, 10th, and 22nd in 2008

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/

27

/

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/

3

is

inapplicable,

and

10

the

information

sought

must

be

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using Permit No. 2058, within twenty (20) days of the date on which this

2

Order is filed. Judgment shall be entered in favor of the Plaintiff.

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Dated:

October 15, 2012

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GARLAND E. BURRELL, JR.
Senior United States District Judge

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