                  UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF COLUMBIA


______________________________
                              )
AMERICAN POSTAL WORKERS       )
UNION, AFL-CIO,               )
                              )
          Plaintiff,          )
                              )
     v.                       )       Civ. Action No. 09-0237 (EGS)
                              )
UNITED STATES POSTAL SERVICE, )
                              )
          Defendant.          )
                              )

                       MEMORANDUM OPINION

     Pending before the Court in this Freedom of Information Act

case are defendant’s motion for summary judgment and plaintiff’s

cross-motion for summary judgment.    Upon consideration of the

motions, the responses and replies thereto, the applicable law,

the entire record, and for the reasons set forth below, the

defendant’s motion for summary judgment is GRANTED. Plaintiff’s

cross-motion for summary judgment is DENIED.

I.   BACKGROUND

     Plaintiff, the American Postal Workers Union, AFL-CIO,

requested information from the United States Postal Service (the

“Postal Service”) under the Freedom of Information Act (“FOIA”)

by letter dated September 10, 2008.    In particular, plaintiff

requested “the most recent Pay for Performance bonus and/or pay

increases . . . contain[ing] the following information: finance

number, last name, first name, middle initial, level, title, PFP
lump-sum amount, PFP wage increase.”    Def’s Mem. Ex. J,

Declaration of Jane Eyre (“Eyre Decl.”), Ex. 1.    Defendant denied

plaintiff’s request, invoking the FOIA exemptions contained in

5 U.S.C. § 552(b)(3) (“Exemption 3”) and 5 U.S.C § 552(b)(6)

(“Exemption 6”).   Eyre Decl., Ex. 2   After its administrative

appeal of the agency’s determination was denied, plaintiff filed

this action on February 6, 2009.

II.   STANDARD OF REVIEW

      The Court may grant a motion for summary judgment if the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with affidavits or declarations,

show that there is no genuine issue of material fact and that the

moving party is entitled to judgment as a matter of law.    Fed. R.

Civ. P. 56(c).   The moving party bears the burden of

demonstrating the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).     Factual

assertions in the moving party's affidavits or declarations may

be accepted as true unless the opposing party submits his own

affidavits or declarations or documentary evidence to the

contrary.   Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992).

      In a FOIA case, the Court may grant summary judgment based

on the information provided by the agency in affidavits or

declarations when the affidavits or declarations describe "the

documents and the justifications for nondisclosure with


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reasonably specific detail, demonstrate that the information

withheld logically falls within the claimed exemption, and are

not controverted by either contrary evidence in the record nor by

evidence of agency bad faith."     Military Audit Project v. Casey,

656 F.2d 724, 738 (D.C. Cir. 1981); see also SafeCard Services,

Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (agency

affidavits must be "relatively detailed and non-conclusory").

Such affidavits or declarations are accorded "a presumption of

good faith, which cannot be rebutted by 'purely speculative

claims about the existence and discoverability of other

documents.'" SafeCard Services, Inc., 926 F.2d at 1200 (quoting

Ground Saucer Watch, Inc. v. Central Intelligence Agency, 692

F.2d 770, 771 (D.C. Cir. 1981)).

III. ANALYSIS

     A.   FOIA

     Congress enacted FOIA to “open[] up the workings of

government to public scrutiny through the disclosure of

government records.” Stern v. FBI, 737 F.2d 84, 88 (D.C. Cir.

1984) (quotation omitted).   Although FOIA is aimed toward

“open[ness] . . . of government,” id., Congress acknowledged that

“legitimate governmental and private interests could be harmed by

release of certain types of information.” Critical Mass Energy

Project v. Nuclear Regulatory Comm'n, 975 F.2d 871, 872 (D.C.

Cir. 1992) (citations and quotations omitted). As such, pursuant

                                   3
to FOIA's nine exemptions, an agency may withhold requested

information. 5 U.S.C. § 552(a)(4)(B); 5 U.S.C. § 552(b)(1)-(9).

However, “[b]ecause FOIA establishes a strong presumption in

favor of disclosure . . . requested material must be disclosed

unless it falls squarely within one of the nine exemptions carved

out in the Act.”     Burka v. U.S. Dep't of Health and Human Servs.,

87 F.3d 508, 515 (D.C. Cir. 1996) (citations omitted).

     B.     Defendant’s Invocation of Exemption 3

     Exemption 3 permits an agency to withhold information that

is “specifically exempted from disclosure by statute,” provided

that the statute either (i) “requires that the matters be

withheld from the public in such a manner as to leave no

discretion on the issue”; or (ii) “establishes particular

criteria for withholding or refers to particular types of matters

to be withheld[.]”    5 U.S.C. § 552(b)(3).   Determining whether

Exemption 3 has been properly invoked requires a two-step

analysis.    First, the Court must determine whether “the statute

in question [is] a statute of exemption as contemplated by

exemption 3” and, second, whether “the withheld material

satisf[ies] the criteria of the exemption statute[.]”     Fitzgibbon

v. CIA, 911 F.2d 755, 761 (D.C. Cir. 1990) (citing CIA v. Sims,

471 U.S. 159, 167 (1985)); see also Larson v. Dep't of State, 565

F.3d 857, 868 (D.C. Cir. 2009) (“under Exemption 3 the [agency]

need only show that the statute claimed is one of exemption as


                                   4
contemplated by Exemption 3 and that the withheld material falls

within the statute.”)

     Under Exemption 3, “only explicit nondisclosure statutes

that evidence a congressional determination that certain

materials ought to be kept in confidence will be sufficient to

qualify[.]”   Irons & Sears v. Dann, 606 F.2d 1215, 1220 (D.C.

Cir. 1979).   In the instant case, defendant relies upon 39 U.S.C.

§ 410(c)(2) in support of its claim that it is permitted to

withhhold the information requested by plaintiff.   Under

§ 410(c)(2) the Postal Service 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).

     As a threshold matter, the parties agree that § 410(c)(2) is

a statute of exemption as contemplated by Exemption 3.   The

parties disagree, however, on whether the requested information

falls within the scope of § 410(c)(2).   In support of its

position that the requested information is covered by

§ 410(c)(2), defendant has submitted the declaration of Jane

Eyre, the Manager of the Records Office of the Postal Service.

Ms. Eyre explains that the Pay for Performance (“PFP”) program is

a “merit program” in which salary increases and/or lump sum

bonuses are awarded to individuals using “a wide range of scores


                                 5
based on an individual’s performance and corporate/unit

indicators.”   Eyre Decl. ¶ 10.   According to Ms. Eyre, the PFP

program is “unlike most other government programs, where salary

increases are based in large part on cost of living allowance

(COLA) and time in service.   The PFP program is grounded in the

USPS mandate to provide service in a competitive marketplace and

create a performance based culture.”    Eyre Decl. ¶ 10.

     Plaintiff makes two arguments against the application of

Exemption 3 to the information it has requested.    First, it

argues that the requested information is not “of a commercial

nature” within the meaning of § 410(c)(2).    Second, plaintiff

argues that “good business practices” would not prevent the

disclosure of the requested information.     The Court will address

each argument in turn.

                i.   Information of a Commercial Nature

     Defendant asserts that the PFP information is “of a

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

information “is used to place a numeric value on employees for

purposes of making employee staffing decisions, which in effect

are labor decisions with underlying commercial and financial

implications.” Def’s Reply Mem. at 4 (citing to Second

Declaration of Jane Eyre, hereinafter “Second Eyre Decl.”, ¶ 3).

Plaintiff finds fault with this analysis, asserting that

“[n]owhere does the [Postal Service] demonstrate that the PFP


                                  6
information actually has financial implications; nowhere does it

explain who faces the purported financial implications; and

nowhere does it detail how the financial implications could

arise.”   Pl.’s Reply Mem. at 5.   The Court finds this assertion

unpersuasive.

     The Postal Service has promulgated regulations containing a

non-exhaustive list of information that is to be considered

commercial in nature.   Among other types of information, the

regulations state that “[r]ecords compiled within the Postal

Service which would be of potential benefit to persons or firms

in economic competition with the Postal Service” are commercial

in nature and therefore exempt from mandatory disclosure.    29

C.F.R. § 265.6(b)(3)(vi).

     Under § 410(c)(2) and its accompanying regulation, courts

have allowed the Postal Service to withhold various types of

information using Exemption 3.     See, e.g., Wickwire Gavin, P.C.

v. U.S. Postal Serv., 356 F.3d 588 (4th Cir. 2004) (agency

properly withheld portions of a contract between the Postal

Service and a supplier of packing supplies that contained

quantity and pricing information); Reid v. U.S. Postal Serv., No.

05-294, 2006 U.S. Dist. LEXIS 45538 (S.D. Ill. July 5, 2006)

(agency properly withheld the financial reports of the Postal

Service, as well as the postage statements – containing

information related to the sender, the category of mail, the


                                   7
weight of the package, the total postage amount, etc. – of a

third party to whom the Postal Service granted a permit); Airline

Pilots Ass’n, Int’l v. U.S. Postal Serv., No. 03-2384, 2004 U.S.

Dist. LEXIS 26067 (D.D.C. June 24, 2004) (agency properly

withheld redacted portions of an agreement between the Postal

Service and the Federal Express Corporation relating to the

shipment of certain items); Robinett v. U.S. Postal Serv., No.

02-1094, 2002 U.S. Dist. LEXIS 13779 (E.D. La. July 24, 2002)

(agency properly withheld material reflecting the Postal

Service’s evaluation of plaintiff’s employment application).1

     Not only does the type of information requested by plaintiff

fall within the scope of 29 CFR § 265.6(b)(3)(vi) because it is

information that “would be of potential benefit to persons or

firms in economic competition with the Postal Service,” the Court

also concludes that the information is commercial under a common

understanding of the word.   See e.g., Carlson, 504 F.3d at 1129

(holding that “information is commercial if it relates to

commerce, trade, or profit”) (citation omitted); Merriam-



     1
       By comparison, the Ninth Circuit in Carlson v. U.S.
Postal Serv., 504 F.3d 1123, 1128 (9th Cir. 2007), held that
“[p]ost office names, addresses, telephone numbers, hours of
operation and final collection times are not ‘information of a
commercial nature,’ and, therefore, are not within the scope of §
410(c)(2).” Similarly, the District Court of the Northern
District of Texas held that the Postal Service improperly
withheld the names and duty stations of employees of the Postal
Service. Nat’l Western Life Ins. Co. v. U.S., 512 F. Supp. 454,
462 (N.D. Tex. 1980)

                                 8
Webster’s Collegiate Dictionary, Tenth Ed. (1998) (defining the

word “commercial”, in part, as “occupied with or engaged in

commerce or work intended for commerce;” “viewed with regard to

profit;” or “emphasizing skills and subjects useful in

business.”)

     Plaintiff has requested that the Postal Service disclose

information containing the agency’s decisions regarding bonuses

and salary increases for its employees.     The Postal Service’s

decisions regarding lump-sum bonus and salary increases are based

on individual, unit and corporate performance indicators devised

by the Postal Service and reflecting the agency’s efforts to

“improve customer service, generate revenue, manage costs and

enhance a performance-based culture.”     Second Eyre Decl. Ex. 1 at

1.   The Court, therefore, agrees with defendant that such data is

properly considered commercial information.

           ii.   Good Business Practice

     Plaintiff also argues that the fact that defendant “presents

no evidence that the aforementioned disclosures have ever placed

[the Postal Service] at a competitive disadvantage or caused

private companies to hire away [Postal Service] workers creates

the presumption that disclosing the requested information meets

the good-business-practice standard.”     Pl.’s Opp’n at 12.

           Plaintiff, however, by focusing on the question of

competitive disadvantage, fails to apply the correct analysis to


                                  9
the question of whether good business practice would prevent the

disclosure of the information.   The existing case law that

addresses this issue makes clear that a determination of whether

the disclosure of particular information would be a “good

business practice” does not rest on a conclusion of competitive

disadvantage to the Postal Service; instead, courts look to the

common practices of other businesses.   See, e.g., Wickwire Gavin,

356 F.3d at 594 (“In determining whether Exemption 3 applies, it

is uncontroverted that the statutory term ‘good business

practice’ should be decided with reference to what businesses

normally do”);   Airline Pilots Ass’n, No. 03-2384, 2004 U.S.

Dist. LEXIS 26067, at *19 (“The contours of the good business

practice exemption are to be gleaned by looking to the commercial

world, management techniques, and business law, as well as to the

standards of practice adhered to by large corporations.”

(internal quotations omitted)); Robinett, No. 02-1094, 2002 U.S.

Dist. LEXIS 13779, at *15-16 (“to determine what constitutes

‘good business practice,’ the agency can refer to business law

and recommended management techniques in the commercial world”);

Reid, No. 05-294, 2006 U.S. Dist. LEXIS 45538, at *17 (“Whether

an action is considered a good business practice can be

‘ascertain[ed] by looking to the commercial world, management

techniques, and business law, as well as to the standards of




                                 10
practice adhered to by large corporations.’” (citing Nat'l

Western, 512 F. Supp. at 459)).

     Indeed, even plaintiff recognizes that § 410(c)(2) was

adopted as part of the Postal Reorganization Act, a statute that

was designed, in part, to “eliminate outmoded legislative,

budgetary, financial and personnel policies so that [the Postal

Service] could employ modern management and business

practices[.]”   Pl.’s Mem. at 6 (citing Carlson, 504 F.3d at

1127); see also Franchise Tax Bd. v. U.S. Postal Serv., 467 U.S.

512, 519-520 (1984) (“In passing the Postal Reorganization Act of

1970. . . . Congress also indicated that it wished the Postal

Service to be run more like a business than had its predecessor,

the Post Office Department.”)   Therefore, in determining whether

it would be good business practice to disclose requested

commercial information, the Postal Service should be expected to

evaluate the information in the same manner as a corporation in

the commercial world.

     The statements of defendant’s declarant, Ms. Eyre, provide

sufficient, non-conclusory support for defendant’s position that

the information requested is not generally released by businesses

in the private sector.   In particular, Ms. Eyre states that:

     The PFP program is grounded in the Postal Service
     mandate to provide service in a competitive marketplace
     and create a performance-based culture. The PFP
     program helps the Postal Service attract applicants and
     retain employees through performance-based incentives.
     Disclosing details about, and the amounts paid in

                                  11
     connection with, the PFP program would allow
     competitors to mirror these incentives and draw away
     talented employees, thereby harming the Postal
     Service’s ability to remain competitive. . . . With the
     exception of the top level executives of publicly
     traded firms, private businesses do not routinely
     disclose detailed salary information to the public.

Eyre Decl. ¶¶ 13-14.

     The Court finds this statement persuasive, and plaintiff

offers no evidence contradicting the agency’s contention that

private sector delivery firms would not disclose this

information.   See Wickwire Gavin, 356 F.3d at 594 (“[Plaintiff’s]

failure to build any record whatsoever concerning the business

practice of [the Postal Service’s] competitors is fatal.”).

Moreover, even accepting plaintiff’s position that commercial

information must be disclosed unless it places the Postal Service

at a competitive disadvantage, the outcome would be the same.

     Finally, to the extent that plaintiff argues that the

release by the Postal Service in prior years of similar

information requires the disclosure of the currently requested

information, the Court also disagrees.   Defendant has

persuasively demonstrated that the content of previously released

materials was substantively different than the information

plaintiff now requests.   See Second Eyre Decl. ¶¶ 7-8 (“While

[the Postal Service] has previously released Economic Value Added

(“EVA”) information, it has not previously released PFP

information for the performance system now in place.     EVA differs


                                12
from PFP in that while EVA was a performance-based pay program,

it was team-based whereas PFP is an individual incentive

program.”)

     Furthermore, “while it is generally true that the government

bears the burden of proving that its withholding of information

is justified by one or more of the [FOIA] exemptions, a plaintiff

asserting a claim of prior disclosure must bear the initial

burden of pointing to specific information in the public domain

that appears to duplicate that being withheld.”    Afshar v. Dep’t

of State, 702 F.2d 1125, 1130 (D.C. Cir. 1983) (citing Casey, 656

F.2d at 741-45).   For the reasons set forth above, plaintiff has

failed to demonstrate that the information requested is the

“duplicate” of information that is already in the public domain.

     C.   Defendant’s Invocation of Exemption 6

     Because defendant properly withheld the requested documents

under Exemption 3, the Court declines to address whether

Exemption 6, permitting an agency to withhold “personnel and

medical files and similar files the disclosure of which would

constitute a clearly unwarranted invasion of personal privacy,” 5

U.S.C. § 552(b)(6), would also apply.

     D.   Segregability

     An agency claiming an exemption is required to provide "any

reasonably segregable portion of a record . . . after deletion of

the portions which are exempt."    5 U.S.C. § 552(b); see also Mead


                                  13
Data Cent., Inc. v. U.S. Dep't of the Air Force, 566 F.2d 242,

260 (D.C. Cir. 1977) ("[I]t has long been a rule in this Circuit

that non-exempt portions of a document must be disclosed unless

they are inextricably intertwined with exempt portions.")

      Defendant has asserted that there is no reasonably

segregable material in the PFP information.   Def.’s Mem. at 8.

Although plaintiff has not challenged this determination, “it is

error for a district court to simply approve the withholding of

an entire document without entering a finding on segregability.”

Kimberlin v. DOJ, 139 F.3d 944, 950 (D.C. Cir. 1998) (quoting

Schiller v. NLRB, 964 F.2d 1205, 1210 (D.C. Cir. 1992)); see also

Trans-Pacific Policing Agreement v. U.S. Customs Serv., 177 F.3d

1022, 1028 (D.C. Cir. 1999) (“[T]he District Court had an

affirmative duty to consider the segregability issue sua

sponte.”)

      In light of plaintiff’s lack of objection to defendant’s

assertion of non-segregability and the narrow category of

information requested by plaintiff, namely records containing a

list of lump-sum bonuses and salary increases for employees of

the Postal Service, the   Court agrees with the agency that there

is no segregable portion of the records.

IV.   CONCLUSION

      For the foregoing reasons, it is hereby ordered that

defendant’s motion for summary judgment is GRANTED; and


                                14
plaintiff’s cross-motion for summary judgment is DENIED.   An

appropriate Order accompanies this Memorandum Opinion.


     SIGNED:   Emmet G. Sullivan
               United States District Court Judge
               September 30, 2010




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