NRPLUS MEMBER ARTICLE W hat started as a friendly wager has turned into a Freedom of Information Act (FOIA) lawsuit against the U.S. Postal Service (USPS).
In February 2022, Elisabeth Kines Messenger was enduring the burdensome pandemic lockdowns in Washington, D.C.; meanwhile, her friend experienced a much different, less restrictive climate in South Carolina, after moving from New York City.
A month earlier, President Joe Biden had committed to making available to the American people 1 billion free at-home tests — up to four per residential address — in order “to mitigate the spread of COVID-19.” Most of the eventual 70 million deliveries would be mailed directly to applicants by USPS. After the White House announcement, the pair of friends noticed a disclaimer stating that tests would be sent to communities most in need, which sparked their curiosity.
“We joked about it, but in the back of our minds we thought, ‘Let’s see if this is really for the people who are the neediest,’” Messenger said. “I wanted to prove to myself that there was, in fact, a rigging of these public services and it was really in favor of people who got in line with the draconian measures to lock things down.”
She also noticed a troubling disclosure in USPS’s privacy statement. The agency claimed it would “not disclose your information to third parties without your consent” except to law enforcement for purposes of investigating fraud, USPS auditors, and labor organizations.
Labor’s inclusion shocked Messenger. Before serving as chief executive officer of Americans for Fair Treatment (AFFT), she worked in operations and business-development positions in the entertainment industry. Purchasing data for marketing purposes is expensive, and not always accurate. But USPS has what is known as “fresh data” (i.e., up-to-date private information).
Accessing someone’s private information is troubling enough, as Messenger believes data rights are human rights because “if you can’t control your digital fingerprint today, that’s incredibly serious.” But she also views USPS privileging labor organizations by granting access to “fresh data” as “unfair,” since labor unions are highly political organizations, disproportionately skewing toward Democratic, progressive causes far more often than to their Republican, conservative counterparts.
“You have what is a private company, so to speak, and they’re getting this information for free that the rest of the country and the private sector would have to pay for,” she said. “If this were the NRA, there would be outrage. This is the same thing.”
In a statement, the USPS noted that the Privacy Act requires the agency to inform individuals who provide personal information of the circumstances when it might be necessary to disclose their information to third parties. One such circumstance could “potentially involve disclosure to our unions.”
“As an employer subject to the National Labor Relations Act, the Postal Service has an obligation to provide information requested by one of our unions that is relevant to that union’s responsibilities regarding administration or enforcement of an existing collective-bargaining agreement,” said Darlene Casey, senior public-relations representative at USPS. “If any of the Postal Service’s unions were to make a request for information regarding COVID test kits, the Postal Service would be obligated to consider the relevance of the information to such administration or enforcement, and whether it would therefore be necessary for us to provide the information to the union.”
She added, “The Privacy Act statement essentially acknowledges this possibility, in the interest of the full transparency that is required by the Privacy Act.”
Nevertheless, to learn how USPS used the personal data and why labor organizations were included in the initial privacy statement, Messenger and AFFT filed a FOIA request, but found the government agency deeply resistant to disclosure, providing highly redacted emails. Yet even in the emails, USPS employees indicate “many of the contours of this program were guided by the White House,” as well as concern that government agencies — like U.S. Immigration and Customs Enforcement (ICE) — could utilize the program with the “goal of identifying immigrants for deportation.”
To vindicate its right to obtain the requested information, AFFT filed a lawsuit in a Washington, D.C., federal court through the Fairness Center, a law firm that provides free legal services to those hurt by public-sector union officials. On March 23, U.S. district judge Royce Lamberth ordered the USPS to “conduct an additional search” regarding the “changes made to the Privacy Act Statement after AFFT filed its administrative appeal,” as well as submit a detailed description of how it fulfilled the FOIA request and a new Vaughn Index — a list of all the documents that the government wants to keep secret in a FOIA case. The new request was ordered to be completed by July 5.
For David R. Dorey, senior litigation counsel at the Fairness Center, the order proves the case has “legs,” and that the lawsuit is a “way to vindicate AFFT’s and others’ FOIA rights and put the post office on a path to good.”
However, both Messenger and Dorey see the USPS’s foot-dragging and insufficient response to FOIA requests as a pervasive issue across federal, state, and local government agencies. From their experience, most problems stem from a lack of education in FOIA’s mechanics and extend even to a government employee’s training on how to fulfill requests — or employees’ complete lack of awareness that they are the appointed FOIA officer.
“Every American does not understand the intricacy of this system, and, to me, that goes against the very purpose of the design,” Messenger said. “The design was radical transparency for the everyday American, and when you have to navigate this web of people and rules — that’s incredibly burdensome and not in the spirit of FOIA.”
This “spirit of FOIA” dates back to President Lyndon B. Johnson, who, after signing the Freedom of Information Act of 1966, said, “A democracy works best when the people have all the information that the security of the Nation permits.”
AFFT hopes its lawsuit against the USPS will highlight the need to reevaluate FOIA, making government entities more transparent and accountable to the American people, in accordance with the law’s original intent.
“Our client believes that through the political process, it would be helpful for all of us to reiterate that taking FOIA — or whatever it’s called in various jurisdictions — seriously is among the most important things the government will do,” Dorey said. “FOIA cannot be subordinated to anything else.”
He added, “The overarching issue is, it needs to be the most important thing the agency is doing, and so the best people need to be assigned to deal with it. And unless there is political pushback, that is never going to change.”
As for the bet, Messenger won, receiving her tests six weeks before her friend in South Carolina, though she would rather not have seen one of America’s “sacred” institutions treat citizens’ private information without respect.
“Even when our country was founded, they thought about mail — that’s how important this is,” Messenger said. “To me, to see this precious institution that I feel very fondly for — and to be hijacked to harvest data for a political entity, made me outraged.”