United States District Court, D. Minnesota
AMENDED ORDER ADOPTING REPORT AND
RECOMMENDATION
Wilhelmina M. Wright United States District Judge
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.
BACKGROUND
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 U.S. 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.
ANALYSIS
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).
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. 2014).
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.
I.
Standard of Review of USPS's Decision to ...