4-4.24 Considering FOIA Exemptions

4-4.24.1 General

  1. General. To the extent the responsive records or information are not exempt from disclosure under a PRA exemption (see 4-4.23), the records custodian must consider whether they are exempt from disclosure under the FOIA exemptions described in 4- through 4-
  2. The U.S. Department of Justice’s Guide to the Freedom of Information Act available at http://www.justice.gov/oip/foia_guide09.htm includes guidance regarding application of the FOIA exemptions.

  3. Discretionary Disclosures. A records custodian may, and is encouraged to, disclose records or information that are otherwise exempt from disclosure under a FOIA exemption if such disclosure is not prohibited by law, executive order, or regulation and the disclosure would not cause foreseeable harm covered by a FOIA exemption. Before making such a discretionary disclosure, the custodian must consider the following:
    1. The effect of non-disclosure on the public’s right to know about a particular matter.
    2. The effect of disclosure on the right of privacy of any affected individuals. In particular, information covered by Exemption 6 is not appropriate for discretionary disclosure (see 4-
    3. The effect of disclosure on the public interest in the economical, efficient, and orderly operation of the nation’s mail system.
    4. The effect of disclosure on the security of the mails, Postal Service property, and Postal Service employees.
    5. The age of the document and the sensitivity of its content.
    6. Any other factors that may be relevant under the circumstances.

4-4.24.2 Exemptions

4- Exemption 1 — Information Properly Classified Under Executive Order to Be Kept Secret in National Defense or Foreign Policy Interest

Exemption 1 (5 U.S.C. 552(b)(1)) exempts from disclosure records or information that meet both of the following requirements:

  1. Are specifically authorized under criteria established by an executive order to be kept secret in the interest of national defense or foreign policy, and
  2. Are in fact properly classified pursuant to such executive order.

Classified records in the custody of the Postal Service are managed by the Postal Inspection Service.

4- Exemption 2 — Information Related Solely to Agency Internal Personnel Rules and Practices

Exemption 2 (5 U.S.C. 552a(b)(2)) exempts from disclosure records or information related solely to an agency’s internal personnel rules and practices.

Exemption 2 covers only records or information that meet both of the following requirements:

  1. Concern Human Resources and employee relations (e.g., hiring, selection, placement, and training; policies and procedures governing current employees; employee relations and Human Resources; compensation and benefits; conditions of employment; work rules, disciplinary procedures and appeals, and termination); and
  2. Are not of a significant public interest (i.e., the records or information do not shed light on the Postal Service’s operations or activities).

The types of records or information covered by Exemption 2 may be appropriate for discretionary disclosure when there is no foreseeable harm in releasing them (see 4-4.24.1.b).

4- Exemption 3 — Specifically Exempted Form Disclosure by Another Federal Statute

Exemption 3 (5 U.S.C. 552(b)(3)) exempts from disclosure information that is exempt from disclosure under another federal statute, including the Postal Reorganization Act (39 U.S.C. 410(c) and 412). Exhibit 4- lists the statutes and a brief description of the type(s) of information withheld under each statute most frequently relied upon by the Postal Service. Other statutes may apply. When withholding records under Exemption 3, records custodians must cite in the response letter the federal statute relied on to withhold the records.

Exhibit 4- 

Exemption 3 Statutes




39 U.S.C. 410(c)(1)

Permits the withholding of the name or address, past or present, of any Postal Service customer.

39 U.S.C. 410(c)(2)

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 disclosed. Such information includes, but is not limited to, the following:

39 U.S.C. 410(c)(3)

Information prepared for use in the negotiation of collective bargaining agreements under 39 U.S.C. Chapter 12 and minutes of notes kept during the negotiating sessions.

39 U.S.C. 410(c)(4)

Information prepared for proceedings under 39 U.S.C. Chapter 36 relating to rates, classification, and service changes.

39 U.S.C. 410(c)(5)

Reports and memoranda of consultants or independent contractors, except to the extent that they would be required to be disclosed if prepared within the Postal Service.

39 U.S.C. 410(c)(6)

Investigatory files, whether or not considered closed, compiled for law enforcement purposes, except to the extent available by law to a party other than the Postal Service.

39 U.S.C. 412

Prohibits the disclosure of mailing lists or other lists of names or addresses, past or present, of Postal Service customers or other persons to the public by any means for any purpose, except as specifically authorized by law. In response to a proper FOIA request, the Postal Service may, to the extent required by law, provide a listing of Postal Service employees working at a particular Postal Service facility. See 39 CFR 265.14(e). Regarding Privacy Act requests, the Postal Service may release a list of names and addresses of individuals pursuant to a written request by, or with the prior written consent of, each individual whose name and address is contained in such list, provided that such names and addresses are derived from records maintained by the Postal Service in a system of records as defined by the Privacy Act. See 39 CFR 266.3(b)(3)(iv). (See 39 CFR 266.3(b)(3) for other exceptions not related to the FOIA or the Privacy Act.)

18 U.S.C. 1461

Records concerning nonmailable matter.

18 U.S.C. 2510 – 2520

Records relating to wiretap requests and information.

Rule 6(e) of the Federal Rules of Criminal Procedure

Grand jury information.

Section 7(b) of the Inspector General Act of 1978

Confidentiality of employee complaint information.

4- Exemption 4 — Trade Secrets and Privileged or Confidential Commercial or Financial Information Obtained by Agency From Any Person

Exemption 4 (5 U.S.C. 552(b)(4)) exempts from disclosure trade secrets and privileged or confidential commercial or financial information obtained by an agency from any person, such as a supplier or customer. The records custodian must follow the procedures in section 5-2c before disclosing third-party business information.

4- Exemption 5 — Internal or Interagency Information

Exemption 5 (5 U.S.C. 552(b)(5)) exempts from disclosure interagency or internal memoranda or letters that would not be available by law to a private party in litigation with the Postal Service. This incorporates civil discovery privileges, including the deliberative process privilege, attorney-client privilege, and attorney work-product privilege. The deliberative process privilege permits withholding of pre-decisional, deliberative (nonfactual) information such as drafts, internal proposals, estimates, statements of opinion, analysis, advice, and recommendations of agency employees to be used in the decision-making process of an agency. The types of records covered by Exemption 5 may be appropriate for discretionary disclosure when there is no foreseeable harm in releasing them (see 4-4.24.1.b). However, always consult a Postal Service attorney concerning information that may be classified as attorney-client or attorney work-product privileged, such as any communications to or from a Postal Service attorney.

4- Exemption 6 — Personal, Medical, and Similar Information the Disclosure of Which Would Constitute a Clearly Unwarranted Invasion of Personal Privacy

Exemption 6 (5 U.S.C. 552(b)(6)) exempts from disclosure personal and medical and similar files, the disclosure of which would be a clearly unwarranted invasion of personal privacy. “File” under Exemption 6 broadly includes actual hard copy files as well as other types of records and bits of information. “Personnel,” “medical,” and “similar” files are similarly interpreted broadly and are not limited to records or information containing only intimate details or highly personal information about an individual, but can encompass many different types of files and information in the possession of the Postal Service that specifically identify an individual.

In determining whether to release records that may be protected by Exemption 6, the custodian must balance the privacy interests of the individuals involved against the public interest, if any, that would be sufficient to outweigh the privacy interests of the individuals involved. For the purposes of Exemption 6, the only public interest to be weighed is the extent to which disclosure would serve the “core purpose” of the FOIA, which is to contribute significantly to public understanding of the operations or activities of the government, or, in other words, to shed light on the conduct of the Postal Service. Additionally, Exemption 6 cannot be invoked to withhold from a requester information pertaining only to himself or herself (see 4-4.4).

Once a custodian has determined that the privacy interest of the individual outweighs any public interest, material covered by Exemption 6 is not appropriate for discretionary disclosure.

4- Exemption 7 — Certain Information Compiled for Law Enforcement Purposes

Exemption 7 (5 U.S.C. 552(b)(7)) exempts from disclosure records or information compiled for law enforcement purposes, but only to the extent that the disclosure of such records or information:

  1. Exemption 7(A) – could reasonably be expected to interfere with enforcement proceedings.
  2. Exemption 7(B) – would deprive a person of a right to a fair trial or impartial adjudication.
  3. Exemption 7(C) – could reasonably be expected to constitute an unwarranted invasion of personal privacy.
  4. Exemption 7(D) – could reasonably be expected to disclose the identity of a confidential source, including a state, local, or foreign agency or authority or any private institution which furnished information on a confidential basis and, in the case of records or information compiled by criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source.
  5. Exemption 7(E) – would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.
  6. Exemption 7(F) – could reasonably be expected to endanger the life or physical safety of any individual.
4- Exemption 8 — Information Related to Agency Responsible for Regulation or Supervision of Financial Institutions

Exemption 8 (5 U.S.C. 552(b)(8)) exempts records and information contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions and rarely, if ever, applies to Postal Service records or information.

4- Exemption 9 — Geological/Geophysical Information and Data Concerning Wells

Exemption 9 (5 U.S.C. 552(b)(8)) exempts geological and geophysical information and data, including maps concerning wells.