23-1005 Bloomberg L.P. v. United States Postal Service In the United States Court of Appeals for the Second Circuit
August Term 2023 Argued: April 16, 2024 Decided: September 26, 2024
No. 23-1005
BLOOMBERG L.P. AND DOW JONES & COMPANY, INC., Plaintiffs-Appellants, v. UNITED STATES POSTAL SERVICE, Defendant-Appellee.
Appeal from the United States District Court for the Southern District of New York
Before: LYNCH, PÉREZ, AND KAHN, Circuit Judges.
On appeal from a judgment of the United States District Court for the Southern District of New York (Cote, J.).
The Freedom of Information Act (“FOIA”) was designed to create a broad public right of access to official information held by federal agencies. Under this general statutory presumption of access, federal agencies must disclose agency records upon request unless said records fall into one of nine specific statutory exemptions. This case concerns FOIA Exemption #3, which establishes that the general FOIA disclosure requirement “does not apply to matters that are . . . specifically exempted from disclosure by statute . . . if that statute . . . establishes particular criteria for withholding or refers to particular types of matters to be withheld.” 5 U.S.C. § 552(b)(3)(A)(ii). The withholding statute relevant to this case is the Postal Reorganization Act of 1970 (the “Postal Reorganization Act”), specifically a provision allowing the United States Postal Service (“USPS” or “Postal Service”) to withhold production of “information of a commercial nature.” 39 U.S.C. § 410(c)(2).
Appellants in this case are the publishers of two media outlets that produce reporting on economics and urban policy trends—CityLab and The Wall Street Journal. Reporters from each outlet sought disclosure of aggregated, anonymized change-of-address (“COA”) data collected by USPS that they wish to use to produce reporting about movement trends in the United States. USPS denied the FOIA requests at issue, citing FOIA Exemption #3 and asserting that the data was protected as “information of a commercial nature” because it intended to incorporate the data into a commercial product called “Population Mobility Trends.” The district court granted summary judgment to USPS. Because we agree that USPS has satisfied its burden of demonstrating that the requested COA data is protected as “information of a commercial nature” pursuant to the Postal Reorganization Act and FOIA Exemption #3, we affirm.
AFFIRMED. Judge Kahn concurs and dissents in a separate opinion.
2 ADAM A. MARSHALL (Katie Townsend, on the brief), Reporters Committee for Freedom of the Press, Washington, D.C., for Plaintiffs-Appellants.
TOMOKO ONOZAWA (Benjamin Torrance, on the brief) for Damian Williams, United States Attorney for the Southern District of New York, New York, NY, for Defendant-Appellee.
MYRNA PÉREZ, Circuit Judge:
The Freedom of Information Act (“FOIA”) generally requires federal
agencies to produce any document considered an agency record “upon any
request” by a member of the public. 5 U.S.C. § 552(a)(3)(A). FOIA was “designed
to create a broad right of access to ‘official information.’” U.S. Dep’t of Justice v.
Reps. Comm. for Freedom of Press, 489 U.S. 749, 772 (1989) (quoting EPA v. Mink, 410
U.S. 73, 80 (1973)). Under this general statutory presumption of access, federal
agencies must disclose agency records upon request unless said records fall into
one of nine specific statutory exemptions. See 5 U.S.C. § 552(b)(1)–(9). Most cases
about FOIA exemptions require a reviewing court to consider the detailed factual
contents of a specific set of documents and determine whether disclosure of said
documents would infringe on an interest protected by one of the FOIA
3 exemptions, such as national security under Exemption #1, id. § 552(b)(1), or
personal privacy under Exemption #6, id. § 552(b)(6).
This case concerns an exemption of a different kind—FOIA Exemption #3,
which establishes that the general FOIA disclosure requirement “does not apply
to matters that are . . . specifically exempted from disclosure by statute . . . if that
statute . . . establishes particular criteria for withholding or refers to particular
types of matters to be withheld.” Id. § 552(b)(3)(A)(ii). The withholding statute
relevant to this case is the Postal Reorganization Act of 1970 (the “Postal
Reorganization Act”), specifically a provision allowing the United States Postal
Service (“USPS” or “Postal Service”) to withhold production of “information of a
commercial nature.” 39 U.S.C. § 410(c)(2).
Appellants in this case, Bloomberg L.P. (“Bloomberg”) and Dow Jones &
Company, Inc. (“Dow Jones”), are the publishers of two media outlets that
produce reporting on economics and urban policy trends—CityLab, published by
Bloomberg, and The Wall Street Journal, published by Dow Jones. Appellants
sought disclosure of aggregated, anonymized change-of-address (“COA”) data
collected by USPS that they wish to use to produce reporting about population
4 movement trends in the United States. Reporters from each outlet had requested
and received similar COA records previously.
USPS denied the FOIA requests at issue, citing FOIA Exemption #3 and
asserting that the data was protected as “information of a commercial nature”
because it intended to incorporate the data into a commercial product called
“Population Mobility Trends.” The district court granted summary judgment to
USPS. Because we agree that USPS has satisfied its burden of demonstrating that
the requested COA data is protected as “information of a commercial nature”
pursuant to the Postal Reorganization Act and FOIA Exemption #3, we affirm.
BACKGROUND
The events of this case began in 2021, when reporters from Bloomberg and
Dow Jones writing for CityLab and The Wall Street Journal made separate FOIA
requests for COA data for specific time periods during the Covid-19 pandemic.
Bloomberg’s reporters requested data reflecting the net flow of population
between specific zip codes for December 2020, and Dow Jones’s reporters
requested similar data for the first six months of 2021. USPS had fulfilled similar
requests from both publications in the past. The reporters intended to use this
data to support their reporting about population movement trends during the
5 pandemic. USPS denied Dow Jones’s request on September 17, 2021, and
Bloomberg’s request on April 19, 2021, stating that the requested data was “under
development for a commercial product.” J. App’x at 45, 59.
A. COA Data and Appellants’ Data Reporting
When individuals, families, or businesses move to a new address, either
permanently or temporarily, they can notify USPS and have their mail forwarded
to the new address using an online or mail-in COA request. USPS retains data
from these requests for a four-year period, after which it is permanently deleted.
As will be discussed below, at various points in time and in various ways, USPS
has made certain COA data available to the public in aggregated, anonymized
datasets.
COA data is neither perfectly accurate nor the only source of information
about population and movement trends. However, it provides a spotlight into
how our country is changing that some find interesting and useful. As relevant to
this case, data journalists from CityLab and The Wall Street Journal used COA data
to produce journalistic products about movement trends during and because of
the Covid-19 pandemic. See, e.g., Marie Patino et al., More Americans Are Leaving
Cities, But Don’t Call It an Urban Exodus, Bloomberg (Apr. 26, 2021),
6 https://bloom.bg/3M7fu05 [https://perma.cc/D5P7-TGD8]; Yan Wu & Luis Melgar,
Americans Up and Moved During the Pandemic. Here’s Where They Went., Wall St. J.
(May 11, 2021), https://on.wsj.com/3NgWCx2 [https://perma.cc/3QWU-HRA9].
B. Access to COA Data, Historically and Today
Historically, USPS published some generalized COA data online for free,
and allowed other, more specific forms of COA data to be produced in response
to FOIA requests. USPS’s “Frequently Requested Records” page allows anyone to
download spreadsheets of COA data from 2018 through June of 2023 that provide
the total number of COA filings into and out of each ZIP code in the United States
for each calendar year. See Frequently Requested Records: Change of Address Stats,
USPS FOIA Library, https://about.usps.com/who/legal/foia/library.htm
[https://perma.cc/T8M7-XQ63] (last visited Aug. 14, 2024). This publicly available
data does not allow a viewer to determine how many individuals or families
moved out of any specific ZIP code into another specific ZIP code. Anyone seeking
that type of data would need to request it through FOIA—which reporters from
CityLab and The Wall Street Journal had done, successfully, on more than one
occasion. See J. App’x at 115, 128.
7 The availability of COA data changed when USPS began developing
Population Mobility Trends, the “commercial product” USPS referenced in its
decisions to deny the two FOIA requests relevant to this case. Population Mobility
Trends is a “tabular dataset built upon aggregated USPS National Change of
Address data and 2020 Census demographics” that provides certain COA and
Census data for a 48-month period and is updated monthly. J. App’x at 141. Any
individual or organization may purchase a Population Mobility Trends license,
but the licensing costs range from $91,000 for a limited amount of data from a 12-
month window to $277,000 for an “Enterprise” level of data from the full 48-month
window. See J. App’x at 161. Purchasers must also sign a “Data License
Agreement” that contains certain restrictions on public disclosure of the
underlying data that Appellants contend could make the data less useful for public
reporting projects.
The data available through Population Mobility Trends is both over- and
under-inclusive of the data previously available through FOIA requests. By
incorporating Census data and other anonymized data collected through COA
requests, Population Mobility Trends provides users with information about the
demographic characteristics of individuals and families moving between specific
8 ZIP codes, including age, household size, and income. However, for any given
ZIP code, Population Mobility Trends provides data about movement to only nine
other ZIP codes—the top three destinations within the same county, the top three
destinations in other counties within the same state, and the top three destinations
outside the state. Population Mobility Trends also provides no information about
ZIP codes with fewer than 11 total COA requests within the past calendar year.
Data about movement between many specific ZIP codes is thus now unavailable,
through either Population Mobility Trends or FOIA. USPS also ended its practice
of providing more generalized COA data on its website in June 2023. Population
Mobility Trends is now the only way to access aggregated, anonymized COA data
in any large-scale, usable format.
C. Procedural History
As referenced above, a Wall Street Journal reporter submitted Dow Jones’s
relevant FOIA request on September 15, 2021, which USPS denied in a timely
manner on September 17, 2021. Dow Jones filed an administrative appeal, which
the USPS General Counsel’s Office denied on December 9, 2021. A City Lab
reporter submitted Bloomberg’s relevant FOIA request in March 2021, which
USPS denied in a timely manner on April 19, 2021. Bloomberg similarly filed an
9 administrative appeal, which the USPS General Counsel’s Office denied on July
29, 2021.
Appellants initiated this consolidated lawsuit on July 18, 2022, seeking
declaratory relief and an order directing USPS to immediately disclose the
responsive records. As in most FOIA cases, the parties cross-moved for summary
judgment. See Seife v. U.S. FDA, 43 F.4th 231, 238 (2d Cir. 2022) (“FOIA cases are
often resolved by summary judgment.”). The key evidence before the district
court included declarations by Jeffrey Tackes, the Director of Digital Business
Services at USPS, and by Marie Patino and Paul Overberg, the reporters who filed
the FOIA requests. The district court granted summary judgment to USPS in an
opinion and order dated June 13, 2023, and the judgment was entered the next day.
Appellants then filed a timely notice of appeal.
STANDARD OF REVIEW
We review orders granting summary judgment in FOIA cases de novo. N.Y.
Times Co. v. U.S. Dep’t of Health & Hum Servs., 15 F.4th 216, 219 (2d Cir. 2021). The
agency, in this case the Postal Service, bears the burden of proof, with “doubts
resolved in favor of disclosure.” A. Michael’s Piano, Inc. v. FTC, 18 F.3d 138, 143 (2d
Cir. 1994). The agency can satisfy this burden by providing “[a]ffidavits or
10 declarations . . . giving reasonably detailed explanations why any withheld
documents fall within an exemption.” Carney v. U.S. Dep’t of Justice, 19 F.3d 807,
812 (2d Cir. 1994). “[T]he agency’s justification is sufficient if it appears logical
and plausible.” ACLU v. U.S. Dep’t of Def., 901 F.3d 125, 133 (2d Cir. 2018).
DISCUSSION
We affirm the order and judgment of the district court. USPS has satisfied
its burden of establishing that the requested COA data is “information of a
commercial nature” that would not be disclosed under good business practices
and may be withheld pursuant to FOIA Exemption #3 and the Postal
Reorganization Act. In today’s information economy, user and location
intelligence, such as the COA data, undoubtedly has commercial value. And while
merely having value is insufficient to make the requested documents “of a
commercial nature,” the COA data was part of a specific commercial product
derived from USPS’s primary line of business—delivering the mail.
I. Relevant Law
This case involves two major federal statutes: FOIA, 5 U.S.C. § 552, and the
Postal Reorganization Act, 39 U.S.C. § 101 et seq. FOIA was enacted to “keep[]
citizens in the know about their government.” What is FOIA?, FOIA.gov,
11 https://www.foia.gov/about.html [https://perma.cc/S3J6-7XK2] (last visited Aug.
14, 2024). The Postal Reorganization Act was enacted to “improve and modernize
the postal service” and enable one of our oldest and most important governmental
institutions to adapt to a growing economy. Postal Reorganization Act, Pub. L.
No. 91-375, 84 Stat. 719 (1970). This case concerns the interaction of these two
statutes through FOIA Exemption #3, which establishes that FOIA’s agency
records disclosure requirement “does not apply to matters that are . . . specifically
exempted from disclosure by statute . . . if that statute . . . establishes particular
criteria for withholding or refers to particular types of matters to be withheld.” 5
U.S.C. § 552(b)(3)(A)(ii).
A. Public Access to Information and the Freedom of Information Act
FOIA was enacted “to facilitate public access to Government documents”
and is “premised on ‘a policy strongly favoring public disclosure of information
in possession of federal agencies.’” Jabar v. U.S. Dep’t of Just., 62 F.4th 44, 49 (2d
Cir. 2023) (per curiam) (quoting Halpern v. Fed. Bureau of Investigation, 181 F.3d 279,
286 (2d Cir. 1999)). Indeed, “[t]he generation that made the nation thought secrecy
in government one of the instruments of Old World tyranny and committed itself
to the principle that a democracy cannot function unless the people are permitted
12 to know what their government is up to.” Mink, 410 U.S. at 105 (Douglas, J.,
dissenting) (citation omitted).
Accordingly, “any member of the public is entitled to have access to any
record maintained by a federal agency, unless that record is exempt from
disclosure under one of the Act’s nine exemptions.” A. Michael’s Piano, 18 F.3d at
143; see also Knight First Amend. Inst. at Columbia Univ. v. U.S. Citizenship & Immigr.
Servs., 30 F.4th 318, 327 (2d Cir. 2022). We interpret these nine exemptions with “a
narrow compass,” and the “limited exemptions do not obscure the basic policy
that disclosure, not secrecy, is the dominant objective of the Act.” ACLU v. CIA,
24 F.4th 863, 867 (2d Cir. 2022) (internal quotation marks and citation omitted);
Dep’t of the Air Force v. Rose, 425 U.S. 352, 361 (1976). In crafting FOIA’s nine
exemptions, Congress balanced the strong interest in government accountability
against “legitimate governmental and private interests [that] could be harmed by
release of certain types of information.” FBI v. Abramson, 456 U.S. 615, 621 (1982).
B. The U.S. Postal Service and the Postal Reorganization Act of 1970
Mail delivery through USPS is “a basic and fundamental service provided
to the people by the Government of the United States.” 39 U.S.C. § 101(a). USPS
is one of our democracy’s oldest institutions. It is an institution that, in fact,
13 predates the Declaration of Independence—the Continental Congress appointed
Benjamin Franklin as the first Postmaster General in 1775. See The United States
Postal Service: An American History 2 (PDF pagination) (2002),
https://about.usps.com/publications/pub100.pdf [https://perma.cc/FYE4-87S5].
“Our founding fathers knew that a robust, reliable, and secure means of
exchanging information was critical to unify the distant parts of our nation.” Id.
And although many things have changed, “the Postal Service’s historic mission
remains the same—to provide all Americans, in all areas and communities, with
access to prompt, reliable, and efficient services.” Id.
USPS, including the men and women who make up its workforce, is also
one of our country’s most cherished institutions. A 2023 Gallup poll indicated that
77% of the American public views USPS favorably. See Public Service Means Public
Input, American Postal Workers Union (Jan. 8, 2024),
https://apwu.org/news/magazine/public-service-means-public-input
[https://perma.cc/3VXW-7GRC]. “As the eyes and ears of the neighborhoods they
serve, Postal Service employees go the extra mile for customers and communities
every day and are highly committed to their role as public servants.” Committed
to Public Service, U.S. Postal Serv., https://about.usps.com/publications/annual-
14 report-comprehensive-statement-2014/ar2014/annualreport2014 tech 006.htm
[https://perma.cc/V44V-FR3Y].
As the Postal Service grew larger over time, Congress recognized that the
agency had become “heavily overburdened and in deep trouble” due to large
agency budget deficits. H.R. Rep. No. 91-1104, at 4–5 (1970). The Postal
Reorganization Act, codified at 39 U.S.C. § 101 et seq., allowed the Postal Service
to modernize and survive in a growing economy.
Through the Postal Reorganization Act, Congress deemed it “essential” that
the postal agency become “self-supporting” and “no longer rely on massive
annual infusions of general revenues . . . at the taxpayers’ expense.” H.R. Rep. No.
91-1104, at 17. Congress thus “transformed the Post Office Department into a
Government-owned corporation called the United States Postal Service.” USPS v.
Council of Greenburgh Civic Ass’ns., 453 U.S. 114, 122 (1981). Congress intended to
improve and modernize “the Postal Service to be run more like a business than
had its predecessor, the Post Office Department.” Kuzma v. USPS, 798 F.2d 29, 31
(2d Cir. 1986) (quoting Franchise Tax Bd. of Cal. v. USPS, 467 U.S. 512, 519–20 (1984)).
This did not mean the newly reorganized USPS would operate like a
business in all aspects—as the Supreme Court has recognized, “[t]he Postal Service
15 has different goals, obligations, and powers from private corporations. . . . The
most important difference is that it does not seek profits, but only to break even[.]”
USPS v. Flamingo Indus. (USA) Ltd., 540 U.S. 736, 747 (2004) (citation omitted).
What the Postal Reorganization Act did mean, though, was that USPS would not
be subject to certain federal statutes “which in most instances apply to
Government agencies and functions.” S. Rep. No. 91-912, at 5 (1970). One of the
federal laws that Congress specified would have a different applicability to the
reorganized USPS was FOIA.
C. The FOIA Exemption Relevant to this Case
As discussed above, all agency records are presumptively available under
FOIA unless they fall into one of nine statutory exemptions. This case concerns
only one of these exemptions: FOIA Exemption #3.
1. FOIA Exemption #3
FOIA Exemption #3 establishes that the general FOIA disclosure
requirement “does not apply to matters that are . . . specifically exempted from
disclosure by statute . . . if that statute . . . establishes particular criteria for
withholding or refers to particular types of matters to be withheld.” 5 U.S.C. §
552(b)(3)(A)(ii). To claim FOIA Exemption #3, “the government must demonstrate
16 that: ‘(1) the statute invoked qualifies as an Exemption 3 withholding statute, and
(2) the materials withheld fall within that statute’s scope.’” Spadaro v. U.S. Customs
& Border Prot., 978 F.3d 34, 42 (2d Cir. 2020) (brackets omitted) (quoting A. Michael’s
Piano, 18 F.3d at 143); see also Wilner v. Nat’l Sec. Agency, 592 F.3d 60, 72 (2d Cir.
2009).
“Exemption 3 differs from other FOIA exemptions in that its applicability
depends less on the detailed factual contents of specific documents; the sole issue
for decision is the existence of a relevant statute and the inclusion of withheld
material within the statute’s coverage.” Wilner, 592 F.3d at 72 (quoting Ass’n of
Retired R.R. Workers v. U.S. R.R. Ret. Bd., 830 F.2d 331, 336 (D.C. Cir. 1987)). FOIA
Exemption #3 thus “incorporates the policies” of the other statute being invoked.
A. Michael’s Piano, 18 F.3d at 143.
2. The Postal Reorganization Act’s “Information of a Commercial Nature” Exemption
The withholding statute incorporated into FOIA Exemption #3 in this case
is a provision of the Postal Reorganization Act exempting USPS from FOIA
disclosure of six different categories of documents. Only one of those categories
of documents is at issue in this case: the “information of a commercial nature”
exemption. In enacting this “commercial nature” exemption, “Congress spoke
17 loudly . . . providing USPS with a broad release from many FOIA disclosure
requirements with which other agencies must comply.” Wickwire Gavin, P.C. v.
USPS, 356 F.3d 588, 592 (4th Cir. 2004).
The text of the exempting provision reads in relevant part that “[FOIA] shall
not require the disclosure of . . . 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). This “information of a commercial nature” exception can be broken
down into two elements: the requested information must be “of a commercial
nature” and must be something “which under good business practice would not
be publicly disclosed.” See id. 1
1We caution that our analysis of this particular withholding statute should not be read as an interpretation of FOIA Exemption #4’s more generalized protection for “commercial or financial information.” 5 U.S.C. § 552(b)(4). Both exemptions rely on the word “commercial.” FOIA Exemption #4 establishes that FOIA “does not apply to matters that are . . . trade secrets and commercial or financial information obtained from a person and privileged and confidential.” Id. However, the Postal Reorganization Act’s relevant withholding language contains no such qualifier about the source of the information. In fact, the Postal Reorganization Act explicitly states that it protects “information of a commercial nature . . . whether or not obtained from a person outside the Postal Service.” 39 U.S.C. § 410(c)(2) (emphasis added). When interpreting a statute, we must “give effect, if possible, to every clause and word.” Seife, 43 F.4th at 239 (quoting Duncan v. Walker, 533 U.S. 167, 174 (2001)). If we are to give every word of Exemption #4 meaning, then “the confidential commercial or financial information must be obtained from a person” to be protected. Id. at 240. The “contemplated harm” under Exemption #4 is to “the submitter” of commercial information. Id. Exemption #4 exists to protect businesses that are required to submit confidential commercial information to an agency for regulatory purposes from competitors who could otherwise seek to obtain that information through FOIA. In the case of USPS and COA data, however, no person submits commercial or financial information. Rather, the data is rendered commercial information by virtue of the Postal Service’s efforts to couple it with other demographic data. The interests protected by Exemption #4 are thus not implicated when we give effect to every word in both statutes. 18 II. Analysis
We affirm the judgment of the district court. The requested COA data is
“information of a commercial nature . . . which under good business practice
would not be publicly disclosed.” See id. The requested COA data is a valuable
monetizable commodity generated as part of USPS’s core “commercial” activity—
the delivery of the mail. Pursuant to its statutory mandate under the Postal
Reorganization Act, USPS has chosen to sell this monetizable commodity to
generate revenue. USPS has satisfied its burden of proof for withholding the COA
data pursuant to FOIA Exemption #3 and the Postal Reorganization Act.
A. Framing the Narrow Dispute in This Case
To start, it is useful to frame the relatively narrow scope of the dispute in
this case. As discussed above, when withholding documents under a FOIA
Exemption #3 statute, an agency such as USPS must “demonstrate that: ‘(1) the
statute invoked qualifies as an Exemption 3 withholding statute, and (2) the
materials withheld fall within that statute’s scope.’” Spadaro, 978 F.3d at 42
(brackets omitted) (quoting A. Michael’s Piano, 18 F.3d at 143). No party in this
case contests that the Postal Reorganization Act’s “information of a commercial
nature” language constitutes an Exemption #3 withholding statute. The only
19 dispute before us is whether the requested COA data is “of a commercial nature,”
39 U.S.C. § 410(c)(2), and thus “fall[s] within that statute’s scope,” Spadaro, 978 F.3d
at 42 (citation omitted).
B. The Requested COA Data Is Protected by the Postal Reorganization Act’s “Information of a Commercial Nature” Exemption
USPS bears the burden of demonstrating that the requested COA data
satisfies both elements of the “information of a commercial nature” exemption.
USPS can satisfy this burden by providing “[a]ffidavits or declarations . . . giving
reasonably detailed explanations why any withheld documents fall within an
exemption.” Carney, 19 F.3d at 812. The relevant “declarations” in this case, as
discussed above, are the original and supplemental declarations of Jeffrey Tackes,
USPS’s Director of Digital Business Services (the “Tackes Declarations”). USPS
has met its burden on both elements—the facts from the Tackes Declarations
demonstrate that the requested COA data is both “of a commercial nature” and is
the type of data a private business ordinarily would not disclose under good
business practice.
20 1. The COA Data Is “Of a Commercial Nature” Because It Is a Monetizable Commodity Derived from the Postal Service’s Core Business of Delivering Mail
USPS took the position at oral argument that the requested COA data is “of
a commercial nature” because it has monetary value. The district court took a
similar approach, finding that “[e]xchanging data for money falls within the plain
meaning of the word ‘commerce’ and the term ‘information of a commercial
nature.’” Bloomberg L.P. v. USPS, No. 22cv6112 (DLC), 2023 WL 3976010, at *4
(S.D.N.Y. June 13, 2023). We agree with the Ninth Circuit that merely having
monetary value “is too broad a definition of commercial[.]” Carlson v. USPS, 504
F.3d 1123, 1129 (9th Cir. 2007). We find that the requested COA data is “of a
commercial nature” for a narrower reason—not only does it have monetary value,
but that value is derived from and related to USPS’s core “commercial” activity of
delivering the mail.
The Postal Reorganization Act does not define the term “commercial.”
When a statute does not define a specific term, we “look to its ordinary meaning
found in ‘contemporary dictionary definitions.’” Mader v. Experian Info. Sols., Inc.,
56 F.4th 264, 269 (2d Cir. 2023) (quoting El Omari v. Int’l Crim. Police Org., 35 F.4th
83, 88 (2d Cir. 2022)). At the time the Postal Reorganization Act was enacted,
Black’s Law Dictionary defined “commercial” as “[r]elating to or connected with 21 trade and traffic or commerce in general,” and defined “commerce” as “[t]he
exchange of goods, productions, or property of any kind.” Commercial, Black’s
Law Dictionary (Rev. 4th ed. 1968); Commerce, Black’s Law Dictionary (Rev. 4th
ed. 1968). 2
In today’s information-driven economy, the requested COA data is
undoubtedly related to the trade, traffic, and exchange of goods in which USPS
engages. As the Tackes Declarations explain, through the process of operating a
nationwide mail network, “USPS generates intellectual property in the form of
data that competes directly with data assets and services offered by other data
creators and data brokers in the marketplace.” J. App’x at 29. Private businesses
“commonly monetize data assets, particularly those that generate unique value in
the marketplace.” Id. The requested COA data is exactly this type of “data asset.”
As a data asset, the requested COA data undoubtedly has great economic
value. As the Tackes Declarations explain, “location data sources are critical
inputs used . . . to process and/or visualize real world population movement
trends. Location data intelligence is leveraged in many markets and use cases,
2In the similar context of FOIA Exemption #4, this Court defined “commercial” as “pertaining or relating to or dealing with commerce.” American Airlines, Inc. v. Nat’l Mediation Bd., 588 F.2d 863, 870 (2d Cir. 1978). The Ninth Circuit adopted an essentially identical definition in the specific context of the Postal Reorganization Act’s “information of a commercial nature” language. See Carlson, 504 F.3d at 1128–29. 22 including placement or staging of services (retail, real estate, construction,
marketing, etc.).” Id. at 37. Monetization of data assets is a common practice
among large businesses today, and there is no doubt that a data asset as large and
robust as the USPS COA database has significant potential value.
As stated above, it would be insufficient to say the requested COA data is
“commercial” merely because it has potential economic value. The value needs to
have some relation to the “commerce” in which USPS engages—the delivery of
the mail.
At oral argument, Appellants presented the hypothetical of USPS choosing
to sell access to the private schedules of the Postmaster General or the members of
the USPS Board of Governors. Such information would certainly have value to
corporate lobbyists. This information would not, however, derive this value from
any connection to the trade or commerce in which USPS engages. The daily
schedules of high-ranking officers are documents that any federal agency would
keep in the course of its ordinary governmental functions. Such schedules are
much more akin to the documents concerning the “names, addresses, telephone
numbers, and regular business hours of post offices” that the Ninth Circuit found
to not constitute “commercial information” in Carlson. 504 F.3d at 1129.
23 The requested COA data, however, is not something kept in the ordinary
course of governmental business that merely happens to have economic value.
COA data is a specific, monetizable data asset that USPS generates through
carrying out its statutorily mandated commercial activity of delivering the mail.
This data is “commercial” in every sense of the word.
Appellants are certainly correct that the Postal Service is late to the game in
realizing that the COA data has commercial value—after all, the record indicates
that USPS had granted similar FOIA requests mere months before denying the
requests at issue in this case. However, nothing in FOIA or the Postal
Reorganization Act precludes the Postal Service from changing how it treats
certain information as it adapts to shifts in the broader economy. Indeed,
delegating this type of business decision to the Postal Service itself was one of the
primary motivations for the Postal Reorganization Act. See Kuzma, 798 F.2d at 31
(discussing a USPS regulation that “manifested . . . the specific concerns of the
Postal Reorganization Act in modernizing the day-to-day managerial operations
of the postal system” and “represents a proper exercise of the business discretion
afforded to USPS by congressional mandate”). Additionally, it strikes us as
relevant that USPS did not withhold this information out of a general interest in
24 someday monetizing it—at the time USPS denied Appellants’ FOIA requests, the
development of Population Mobility Trends was already under way. This is a
sharp distinction from the information about Post Office locations in Carlson,
which provided USPS with only the vague and undefined benefit of potentially
increasing website traffic. See Carlson, 504 F.3d at 1127–28.
2. The COA Data Is Information That Would Not Ordinarily Be Disclosed Under Good Business Practice
In addition to demonstrating that requested documents are “of a
commercial nature,” USPS must demonstrate that the requested documents
“under good business practice would not be publicly disclosed.” 39 U.S.C.
§ 410(c)(2). We find the Fourth Circuit’s analysis of “good business practice” to be
compelling—whether release of the documents would be good business practice
“should be decided with reference to what businesses normally do.” Wickwire
Gavin, 356 F.3d at 594.
The Tackes Declarations establish that as a valuable, monetizable data asset
that USPS intended to sell through Population Mobility Trends, the requested
COA data would not ordinarily be disclosed “under good business practice.” Put
25 simply, a private business would not give away for free the information that it was
also attempting to sell. 3
As part of the development process for Population Mobility Trends, USPS
conducted extensive market research, which included “valuating the other
services in the market; determining how those services are consumed[; and]
determining which licensing terms are applicable for this type of data offering[.]”
J. App’x at 37. The original Tackes Declaration provided three specific examples
of competitor private businesses that sell similar types of location data. 4 See id.
USPS reviewed this research and made a reasonable determination that “other
private businesses that gather and sell location data would not customarily release
to the public information relating to population movement patterns and trends.”
Id. at 37–38.
3The concurring and dissenting opinion points out that USPS conceded that it could not assert Exemption #3 over the requested data if it did not maintain the Population Mobility Trends product. Concurring and Dissenting Op. 2-3. But because the Population Mobility Trends product is on the market, and because we have concluded that the requested COA information is commercial, that the Population Mobility Trends does not contain all of the information that Appellants may want does not render the relevant data non- commercial. 4 See, e.g., Here Technologies, https://here.com/ [https://perma.cc/L328-D5JP] (last visited Aug. 15, 2024) (private business that sells mapping data); SafeGraph, https://safegraph.com [https://perma.cc/HM6Y- S3UB] (last visited Aug. 15, 2024) (private company that collects, analyzes, and sells point-of-interest data generated through web traffic analysis); Unacast, https://www.unacast.com [https://perma.cc/8ZP4-M3RY] (last visited Aug. 15, 2024) (private company that collects, analyzes, and sells foot traffic data). 26 Appellants point to several examples in the record of other businesses
publishing articles and studies produced using internally generated data about
population movement, including a study from social media company LinkedIn
and studies from moving and real estate companies such as Zillow, Redfin, and
Allied Van Lines. Appellants also cite an academic paper based on data Facebook
freely disclosed as part of its “Data for Good” initiative. We find the district court’s
analysis of these public studies to be compelling—these companies published
these reports or provided data for these reports to promote their primary, revenue-
generating lines of business, such as social networking, home sales, and moving
and storage. See Bloomberg, 2023 WL 3976010 at *5. USPS could have elected to
make a similar business decision and offer COA data for free as a means of
publicizing mail service, but instead it elected to monetize the data under its
statutory mandate to generate new streams of revenue. The Postal Reorganization
Act gives USPS the right to make such a decision.
C. The Postal Reorganization Act and the Structure of Exemption #3 Obviate Any Tension Between Public Access and the Agency’s Operational Mission
Many of the other FOIA exemptions require a weighing of competing
interests. See, e.g., Reps. Comm. for Freedom of Press, 489 U.S. at 772 (weighing
privacy concerns with the public interest in analyzing a request under FOIA 27 Exemption #7). However, a determination of whether documents were properly
withheld under Exemption #3 and the Postal Reorganization Act requires no such
weighing of interests. Indeed, “Exemption 3 differs from other FOIA exemptions
in that its applicability depends less on the detailed factual contents of specific
documents; the sole issue for decision is the existence of a relevant statute and the
inclusion of withheld material within the statute’s coverage.” Wilner, 592 F.3d at
72 (quoting Ass’n of Retired R.R. Workers, 830 F.2d at 336). Exemption #3
“incorporates the policies” of the other statute being invoked. A. Michael’s Piano,
18 F.3d at 143.
The policies invoked by the Postal Reorganization Act are entirely about
“making the United States Postal Service more businesslike, similar in function
and management to its competitors.” Wickwire Gavin, 356 F.3d at 596. Through
the Postal Reorganization Act and FOIA Exemption #3, Congress has granted the
Postal Service a relatively broad FOIA exemption that is substantially different
from exemptions available to other agencies. The public interest in data-informed
journalism that Appellants present is certainly compelling. However, Congress
has made a policy choice not to require USPS, or a reviewing court, to weigh that
public interest when determining whether to withhold commercial information.
28 CONCLUSION
This Court construes FOIA exemptions narrowly and resolves doubts
against the agency to vindicate FOIA’s statutory interest of “strongly favoring
public disclosure of information in the possession of federal agencies.” Jabar, 62
F.4th at 49. However, in recognizing the unique importance of and unique
challenges involving USPS as an institution, Congress elected to grant USPS
certain exemptions from some generally applicable aspects of administrative law
through the Postal Reorganization Act. Today, we find that USPS has carried its
burden of establishing that the requested COA data is information of a
commercial nature that would not be publicly disclosed under good business
practice. That is enough to resolve the case before us. For the foregoing reasons,
we AFFIRM the judgment of the district court.
29 MARIA ARAÚJO KAHN, Circuit Judge, concurring in part and dissenting in part:
The majority opinion persuasively explains why the requested change-of-
address (“COA”) data for sale as part of the Population Mobility Trends product
is a valuable commodity that is “of a commercial nature,” and would not
otherwise be disclosed “under good business practice.” See Majority Op. at 21–
29. Accordingly, I join the majority in affirming the district court’s judgment as
to that data. However, I respectfully dissent from Section II.B.2 of the majority
opinion to the extent it addresses the COA data requested by the Appellants that
is not available as part of the Population Mobility Trends product. 1 I would
remand for the district court to determine—with the benefit of additional
briefing—whether the data not included within the Population Mobility Trends
Product would ordinarily be disclosed “under good business practice.” 39 U.S.C.
§ 410(c)(2).
1 My dissent extends to footnote three on page twenty-six of the majority opinion, which briefly addresses the arguments set forth in this opinion. As explained infra, if the requested COA data that is unavailable through the Population Mobility Trends product would not ordinarily be disclosed “under good business practice,” 39 U.S.C. § 410(c)(2), then Exemption #3 does not apply to that data. In that case, the policies behind the Postal Reorganization Act would not supplant the interests animating the Freedom of Information Act (“FOIA”). Indeed, FOIA would require disclosure. See Jabar v. U.S. Dep’t of Just., 62 F.4th 44, 49 (2d Cir. 2023) (per curiam). Accordingly, my dissent is concerned with ensuring that Exemption #3 applies to all COA data requested by the Appellants, including the data not for sale as part of the Population Mobility Trends product.
1 The Population Mobility Trends product allows a licensed user to
purchase some, but not all, of the COA data requested by the Appellants. For
every ZIP code, the product offers users the most popular locations to which
individuals, families, and businesses moved, providing ZIP codes for the top
three destinations within the county, within the state but outside the county, and
outside the state (for a total of nine ZIP codes). In doing so, Population Mobility
Trends combines movement data with demographic information to deliver an
anonymized impression of the people and entities relocating throughout the
county, state, and country. As relevant to the Appellants’ instant Freedom of
Information Act (“FOIA”) requests, the product does not offer migration
information for destination ZIP codes beyond the aforementioned “top three”
categories or for destination ZIP codes with fewer than 11 COA requests within
the past year. It is this data, which is no longer accessible (even from behind a
paywall), that I am concerned may ordinarily be disclosed “under good business
practice.” 39 U.S.C. § 410(c)(2).
The majority opinion is certainly correct that, “a private business would
not give away for free the information that it was also attempting to sell.”
Majority Op. at 26. But that is not necessarily true of information that is not for
2 sale. At oral argument, the government conceded that, “to the extent the data is
not being sold commercially, . . . I don’t think we would have a basis to assert
Exemption 3 over that data. Again, assuming it is not being offered for sale.”
Oral Arg. Audio Recording at 27:47–28:05. And, as explained above, this data is
not included for sale in the Population Mobility Trends product.
It may be that providing this subset of omitted data would undermine the
commercial viability of Population Mobility Trends. It is unclear, however, that
the record supports that conclusion. The declarations of Jeffrey Tackes, USPS’s
Director of Digital Business Services, only briefly—and broadly—address this
subject. Tackes notes that “[p]ublicly releasing the requested COA data sought
by the FOIA Requests will provide information and insights to marketplace data
providers, data aggregators and data solutions that will harm USPS’s ability to
license this data for its full commercial value.” J. App’x 38. It is clear why his
statement is true for the COA data included in Population Mobility Trends, but it
is less obvious why the same rationale extends to the COA data that is not.
Accordingly, additional briefing is necessary to clarify the issue.
To be clear, my interest in this data is not merely academic. If this portion
of the COA data is not exempt from disclosure pursuant to Exemption 3, then
3 FOIA demands disclosure. See Jabar v. U.S. Dep’t of Just., 62 F.4th 44, 49 (2d Cir.
2023) (per curiam) (emphasizing that agencies must disclose requested
documents that fall outside of an enumerated exemption).
Thus, while I join the majority opinion in full as to the data included in the
Population Mobility Trends, I respectfully dissent from Section II.B.2 of the
majority opinion to the extent it addresses the requested COA data that is
unavailable through Population Mobility Trends. Moreover, I would hold that
remand is required for the district court to assess whether that unavailable
information would ordinarily be disclosed “under good business practice.” 39
U.S.C. § 410(c)(2).