Update (May 15, 2019): Congratulations to Dorsey lawyers for the win against the U.S. Post Office (described below) (for now, at least). U.S. Mag. Judge Becky R. Thorson (D. Minn.) has agreed with Dorsey that the U.S. Post office cannot hide behind a Glomar response (a response to a Freedom of Information Act (“FOIA”) request not only refusing to produce documents but refusing to say whether any documents exist) in response to Dorsey’s request to see certain agreements between the Post Office and other specified private businesses (“Negotiated Service Agreements” (“NSAs”)).
Update (March 25, 2019): The issues in the FOIA dispute, described below, involve “limited scope de novo review.” This term seems like an oxymoron. Does the Court get to do a complete re-evaluation (also known as “de novo review”) or is its review of “limited scope” (not de novo)?
And, the USPS points out in its reply brief, “While it is true that [FOIA] exemptions are ‘narrowly construed,’ the Supreme Court also ‘has recognized that the statutory exemptions are intended to have meaningful reach and application.’” This is not exactly oxymoronic, but it is a bit “three steps forward, three steps back reasoning” (at page 7).
Notwithstanding these equivocal utterances resembling koans (paradoxical anecdotes or riddles, used in Zen Buddhism to demonstrate the inadequacy of logical reasoning and to provoke enlightenment), the USPS’ reply brief is persuasive. We predict that the USPS will be able to rest on its Glomar response and stonewall Dorsey’s FOIA request.
Original post (March 4, 2019): 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 publicly 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.