The American Postal Workers Union, AFL-CIO, requested information from the United States Postal Service under the Freedom of Information Act on September 10, 2008. APWU 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.” APWU had requested that the Postal Service disclose information containing the agency’s decisions regarding bonuses and salary increases for its employees. USPS denied APWU’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”). USPS argued that its Pay for Performance records are based on individual, unit and corporate performance indicators devised by the Postal Service and reflecting its efforts to “improve customer service, generate revenue, manage costs and enhance a performance-based culture” and therefore exempt from public disclosure.
After its administrative appeal of USPS’s determination was denied, APWUf filed suit on February 6, 2009.
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USPS relied upon 39 U.S.C. § 410(c)(2) in support of its claim that it is permitted to withhhold the information requested by APWU. 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), USPS submitted the declaration of Jane Eyre, the Manager of the Records Office of the Postal Service. Ms. Eyre explained that the Pay for Performance program is a “merit program” in which salary increases and/or lump sum bonuses are awarded to individuals using “a wide range of scores based on an individual’s performance and corporate/unit indicators.” 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.”
APWU argued that (1) the requested information is not “of a commercial nature” within the meaning of § 410(c)(2); (2)s that “good business practices” would not prevent the disclosure of the requested information.
Information of a Commercial Nature
USPS asserted 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.” APWU disagreed with USPS’ analysis, asserting that “[n]owhere does the [Postal Service] demonstrate that the PFP 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.”
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.
The Court agreed with USPS that the Pay for Performance records are of a commercial nature and denied APWU’s request.