Dorsey & Whitney LLP v. United States Postal Service
AMENDED ORDER ADOPTING REPORT AND RECOMMENDATION. (Written Opinion). Signed by Judge Wilhelmina M. Wright on 10/11/2019. (RJE)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Dorsey & Whitney LLP,
Case No. 18-cv-2493 (WMW/BRT)
AMENDED ORDER ADOPTING
United States Postal Service,
This matter is before the Court on Defendant’s objections to the May 9, 2019 Report
and Recommendation (R&R) issued by United States Magistrate Judge Becky R. Thorson
on cross-motions for summary judgment. (Dkt. 47.) For the reasons addressed below, the
Court overrules Defendant’s objections, adopts the R&R, grants Plaintiff’s motion for
summary judgment, and denies Defendant’s motion for summary judgment.
Plaintiff Dorsey & Whitney LLP (Dorsey) submitted a Freedom of Information Act
request to Defendant United States Postal Service (USPS) on April 16, 2018, seeking
information about Negotiated Service Agreements (NSAs) between USPS and private
parties for lower rates or more favorable terms. Specifically, Dorsey sought information
relating to NSAs between USPS and three entities: Fujian Zongteng Network Technology
Co., Limited; Enumber, Inc.; and US Elogistics Service Corporation.
USPS submitted a Glomar response, a refusal to disclose or deny even the existence
of any responsive documents.1 Dorsey filed an administrative appeal, which USPS denied.
Dorsey subsequently filed this lawsuit, claiming that USPS’s Glomar response violates the
Freedom of Information Act (FOIA).
Dorsey and USPS filed cross-motions for summary judgment, which this Court
referred to the magistrate judge, pursuant to Title 28, United States Code, Section
636(b)(1). In the R&R that followed, the magistrate judge recommends granting Dorsey’s
motion for summary judgment and denying USPS’s motion for summary judgment. USPS
filed timely objections to the R&R.
In its Glomar response to Dorsey’s FOIA request for information regarding NSAs
between USPS and three companies, USPS asserts that the information Dorsey seeks is
protected from disclosure. In their pending cross-motions for summary judgment, the
parties dispute whether USPS’s Glomar response violates FOIA. Summary judgment is
properly granted when, viewing the evidence in the light most favorable to the nonmoving
party, the Court determines that “there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); accord Mo. Coal.
for Env’t Found. v. U.S. Army Corps of Eng’rs, 542 F.3d 1204, 1209 (8th Cir. 2008).
A Glomar response derives its name from Phillippi v. CIA. See 546 F.2d 1009,
1010-11 (D.C. Cir. 1976) (addressing the CIA’s refusal to confirm or deny whether it had
documents relating to the “Hughes Glomar Explorer,” a ship reputedly owned by the
FOIA promotes public access to government documents by providing “a judicially
enforceable public right to secure [official] information from possibly unwilling official
hands.” Miller v. U.S. Dep’t of Agric., 13 F.3d 260, 262 (8th Cir. 1993) (internal quotation
marks omitted). There are nine exemptions to FOIA’s default rule of public access. 5
U.S.C. § 552(b). Each exemption “must be narrowly construed.” Miller, 13 F.3d at 262
(internal quotation marks omitted). A government agency need not disclose requested
documents that fall within an exception. Instead, the agency may acknowledge the
existence of responsive information and “provide specific, non-conclusory justifications
for withholding that information under one of FOIA’s exemptions.” W. Values Project v.
U.S. Dep’t of Justice, 317 F. Supp. 3d 427, 433 (D.D.C. 2018) (internal quotation marks
omitted). When an agency’s decision to withhold requested information is challenged in
court, the agency bears the burden of demonstrating that an exemption to FOIA applies. 5
U.S.C. § 552(a)(4)(B); accord Miller, 13 F.3d at 262-63.
Exemption 3 to FOIA states that an agency need not disclose information that is
“specifically exempted from disclosure by statute.” 5 U.S.C. § 552(b)(3). As relevant
here, a statutory “good business” exception provides that USPS is not required 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.” 39 U.S.C. § 410(c)(2). Multiple courts have recognized that the good
business exception is an applicable statute under Exemption 3 to FOIA. See, e.g., Wickwire
Gavin, P.C. v. U.S. Postal Serv., 356 F.3d 588, 596-97 (4th Cir. 2004) (holding that
information was exempt from disclosure under the good business exception, as
incorporated by Exemption 3); cf. Carlson v. U.S. Postal Serv., 504 F.3d 1123, 1127 (9th
Cir. 2007) (assuming without deciding that the statutory good business exception falls
within Exemption 3).
Under certain circumstances, even the mere acknowledgment that responsive
information exists may be protected by a FOIA exemption. W. Values Project, 317 F.
Supp. 3d at 433. When disclosing the existence of requested information would cause harm
to an agency, the agency may issue a Glomar response and decline to disclose the existence
or nonexistence of responsive records. People for the Ethical Treatment of Animals v.
Nat’l Insts. of Health, Dep’t of Health & Human Servs., 745 F.3d 535, 540 (D.C. Cir.
USPS maintains that the information sought by Dorsey falls under the good business
exception, as incorporated by Exemption 3 to FOIA. USPS argues its Glomar response is
justified because acknowledging even the existence of NSAs is protected information.
Dorsey disagrees, contending that FOIA requires USPS to disclose at least the existence of
NSAs. Concluding that USPS’s Glomar response is not justified, the R&R recommends
granting Dorsey’s motion for summary judgment and denying USPS’s motion for
summary judgment. USPS objects to the R&R, challenging the standard of review, the
“actual harm” analysis, and the good business exception analysis applied in the R&R.
When a party files and serves specific objections to a magistrate judge’s proposed
findings and recommendations, the district court reviews de novo those portions of the
R&R to which an objection is made. 28 U.S.C. § 636(b)(1). The Court conducts the
following de novo review of each portion of the R&R to which USPS objects.
Standard of Review of USPS’s Decision to Withhold Information
USPS first challenges the R&R’s de novo review of USPS’s decision to issue a
Glomar response to Dorsey.
When an agency’s decision to withhold information pursuant to a FOIA request is
challenged in a federal district court, “the court shall determine the matter de novo.”
5 U.S.C. § 552(a)(4)(B). In the context of FOIA Exemption 3 cases, a district court may
conduct a “limited” de novo review, however, when the parties agree that the statute at
issue falls under Exemption 3’s purview and the requested information is covered by that
statute. Cent. Platte Nat. Res. Dist. v. U.S. Dep’t of Agric., 643 F.3d 1142, 1148 (8th Cir.
USPS contends that a “limited” de novo standard of review is appropriate here. But
Dorsey and USPS do not agree that the requested information—the existence of NSAs—
is covered by the good business exception. See 39 U.S.C. § 410(c)(2). Absent such an
agreement, a “limited” de novo standard of review is not contemplated by Central Platte.
See 643 F.3d at 1147-48. And USPS provides no case law, nor has the Court’s research
produced any, that adopts a “limited” de novo standard of review under these
For these reasons, USPS’s objection to the R&R’s de novo review of USPS’s
decision to issue a Glomar response is overruled.
Indeed, the Eighth Circuit has continued to apply de novo review in cases decided
after Central Platte. See, e.g., Argus Leader Media v. U.S. Dep’t of Agric., 740 F.3d 1172,
1175 (8th Cir. 2014) (performing de novo review of district court’s grant of summary
judgment in a FOIA case after district court’s initial de novo review).
Good Business Exception
USPS also objects to the R&R’s analysis under the good business exception, arguing
that the R&R’s focus on the activity of private companies without consideration of other
relevant factors is erroneous. USPS argues that, contrary to the R&R’s conclusion, the
existence of NSAs would not be disclosed under good business practices.
The good business exception permits USPS to withhold “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.”3
39 U.S.C. § 410(c)(2). A court determines good business practices “by looking to the
commercial world, management techniques, and business law, as well as to the standards
of practice adhered to by large corporations.” Am. Postal Workers Union v. U.S. Postal
Serv., 742 F. Supp. 2d 76, 82 (D.D.C. 2010). And, despite USPS’s arguments to the
contrary, the activities of private businesses are instructive in this analysis. See, e.g.,
Wickwire Gavin, 356 F.3d at 594 (holding that appellant’s “failure to build any record
whatsoever concerning the business practices of USPS’s competitors is fatal” to appellant’s
attempt to challenge USPS’s “invocation of FOIA Exemption 3”); Am. Postal Workers
Union, 742 F. Supp. 2d at 83 (explaining that it was “persuasive” that the plaintiff offered
USPS also objects to the R&R to the extent that the R&R’s analysis assumes without
deciding that the existence of NSAs is “information of a commercial nature.” 39 U.S.C.
§ 410(c)(2). USPS’s conclusory objections to this issue do not trigger de novo review. See
Thompson v. Nix, 897 F.2d 356, 357-58 (8th Cir. 1990) (“[O]bjections must be timely and
specific to trigger de novo review by the District Court of any portion of the magistrate’s
report and recommendation.”). Moreover, the R&R’s assumption favors USPS.
“no evidence contradicting [USPS]’s contention that private sector delivery firms would
not disclose” the information at issue).
In support of its Glomar response, USPS submits two declarations from its Senior
Vice President, Dennis Nicoski.4 Nicoski states that acknowledging the existence of an
NSA “can provide another company with a competitive advantage” over USPS in at least
three ways. Nicoski explains that revealing the existence of an NSA could violate
nondisclosure agreements between USPS and its customers, reduce USPS’s revenue
because customers without NSAs would be incentivized to seek NSAs, and reveal valuable
information to USPS’s competitors. In light of these risks, USPS contends, private
businesses operating under good business practices would not release such information to
Dorsey counters that the existence of NSAs—as well as comparable information—
is routinely disclosed under good business practice. In support of its argument, Dorsey
relies on evidence of USPS’s prior disclosures. For example, USPS’s website and manual
highlight the availability of NSAs for USPS’s customers. USPS also has made statements
in congressional hearings and press releases regarding its beneficial partnerships with UPS,
Amazon, Shutterfly Inc., United Health Group, and State Farm, among others. And,
In a FOIA case, an agency may rely on declarations or affidavits to support its
motion for summary judgment, as USPS does here. See Agility Pub. Warehousing Co.
K.S.C. v. Nat’l Sec. Agency, 113 F. Supp. 3d 313, 324-25 (D.D.C. 2015). A court grants
summary judgment on the basis of such declarations or affidavits only when they contain
“reasonable specificity of detail” and are not “called into question by contradictory
evidence in the record.” Id. (internal quotation marks omitted).
Dorsey observes, the Nicoski declaration discloses several of USPS’s business partners, as
Next, Dorsey offers evidence of publicly available information relating to NSA
agreements between USPS and its customers. For example, USPS has notified the Postal
Regulatory Commission of NSAs that USPS has with specific customers. The Office of
Inspector General generated an audit report of USPS’s NSA with Capital One Services,
Inc. And several news articles identify partnerships between USPS and its customers,
including an article in The Wall Street Journal acknowledging the existence of Amazon’s
NSA with USPS.
Finally, Dorsey introduces evidence that private companies routinely disclose the
existence of beneficial business partnerships. For example, Dorsey submits a FedEx press
release in which FedEx describes an extension to its air transportation contract with USPS.
The totality of the evidence in the record, Dorsey contends, defeats USPS’s position that
the existence of NSAs is exempt from FOIA’s disclosure requirements.
USPS argues that Dorsey’s rebuttal evidence is “immaterial” to the Court’s good
business practice analysis because the evidence “merely tout[s] the benefits of various
public partnerships in the shipping industry,” rather than disclosing specific pricing or
terms. This argument is unavailing. The issue before the Court is whether the existence
of NSAs is disclosed under good business practices, not whether the underlying contents
of NSAs are disclosed under good business practices. The record supports Dorsey’s
contention that the existence of NSAs and other beneficial partnerships is publicly
disclosed under good business practice.
USPS also maintains that the disclosures of USPS-customer partnerships that
Dorsey relies on are distinguishable. Those partnerships, USPS contends, were made in
“non-competitive markets.” USPS argues that the information requested here pertains to a
competitive market. But USPS’s distinction falls short. Conclusory statements about
competitive versus non-competitive markets do not satisfy USPS’s burden of establishing
that one of FOIA’s narrow exemptions applies. See Miller, 13 F.3d at 262-63.
For these reasons, USPS’s objections to the R&R’s analysis of the good business
exception are overruled. The record supports the R&R’s determination that the existence
of NSAs would be publicly disclosed under good business practice.
In sum, USPS has not carried its burden to establish that its Glomar response is
justified pursuant to the good business exception as incorporated by FOIA Exemption 3.
Rather, the evidence in the record establishes that the existence of NSAs is disclosed under
good business practices.
USPS’s motion for summary judgment is denied and Dorsey’s motion for summary
judgment is granted. Because the Court’s conclusion as to the good business exception is
dispositive of both parties’ motions for summary judgment, the Court overrules as moot
USPS’s objection to the R&R’s “actual harm” analysis. USPS does not object to any other
portion of the R&R. In the absence of objections, the Court reviews the remainder of the
R&R for clear error. See Fed. R. Civ. P. 72(b) advisory committee’s note to 1983
amendment (“When no timely objection is filed, the court need only satisfy itself that there
is no clear error on the face of the record in order to accept the recommendation.”); Grinder
v. Gammon, 73 F.3d 793, 795 (8th Cir. 1996) (per curiam). The Court finds no clear error
as to any portion of the R&R to which USPS does not object.
Based on the R&R, the foregoing analysis and all the files, records and proceedings
herein, IT IS HEREBY ORDERED:
Defendant United States Postal Service’s objections, (Dkt. 48), are
The May 9, 2019 R&R, (Dkt. 47), is ADOPTED.
Defendant United States Postal Service’s motion for summary judgment,
(Dkt. 30), is DENIED.
Plaintiff Dorsey & Whitney LLP’s motion for summary judgment, (Dkt. 35),
is GRANTED as to the Glomar response issued by Defendant United States Postal
Dated: October 11, 2019
s/Wilhelmina M. Wright
Wilhelmina M. Wright
United States District Judge
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