We came across the caption Dorsey & Whitney LLP v. U.S. Postal Service recently and were intrigued.
We have recently been troubled by rising stamp prices and inexplicably delayed mail; perhaps, we wondered, Dorsey decided to do something about it?
Is the information sought, ““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 publically disclosed”? (5 U.S.C. § 410(c)(2)).
Who decides what “good business practice” is?
Dorsey, on behalf of some client who desires to go nameless, presumably, seeks information relating to “Negotiated Service Agreements (“NSAs”) between the Postal Service and three specific commercial partners.” The Postal Service responded with a flat-out “NO.” As if this were a matter of national security, the Postal Service even refuses to say whether any such NSAs exist. (This, apparently, is known as a “Glomar response.” The origin of the term is worth noting: see Phillippi v. CIA, 546 F.2d 1009, 1013 (D.C. Cir. 1976) (raising issue of whether CIA could refuse to confirm or deny its ties to Howard Hughes’ submarine retrieval ship, the Glomar Explorer).
The Postal Service sets out its basis for claiming that, under good business practice, the existence (let alone the substance) would not be publicly disclosed here (at page 8-9). We’ll follow the case to see whether Dorsey can persuade Judge Wilhemina M. Wright (D. Minn.) that the firm has a right to see the Postal Service’s particular NSAs.