Court Denies APWU’s Request Seeking USPS Pay For Performance Records

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.

More from the court case

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.

11 thoughts on “Court Denies APWU’s Request Seeking USPS Pay For Performance Records

  1. 1.jusmonoise on Wed, 6th Oct 2010 1:05 pm

    NALC in managements pocket and a bunch of parasites, always lets the APWU negotiate the contract then the NALC says “metoo”

    Really check your facts got it backwards

  2. anyone out there that feels this is fraud or misappropriations of funds i urge
    you to contact your senator or house rep and demand an investigation
    into postal management. how could honest people running a company
    give out even a nickel in bonus money in years that they are claiming
    losses of 3 billion, 5 billion, projected 7 billion. let your senator/congreessman
    know that postal management has paid out millions and perhaps billions of dollars in bonus pay-for-performance money in years that they are claiming
    billions of dollars in losses. perhaps we can find an ethical honest
    congress person somewhere in the good ole USA who will open an investigation
    or inquirey. the postal services desire to “hide” this “gift money to friends” may
    well backfire as it gives their unexcuseable behavior more time in the press.

  3. It’s shameful if the Postal Service is giving out big bonuses to management employees. To comment on the comments, when do we as working people stop attacking each other and work together as unions to make sure we acquire what we should have as working people. Wake up, Management will always take care of their own, as we should take care of workers. What’s wrong with us all trying to save the post office a consitutional right. The corporate mindset is to make money and cares little about the workers providing the service/product as our economy show

  4. I wonder how much $$$ the USPS spent to hide that information? I’m sure the info would have made the USPS look pretty bad in contract negotiations, or they wouldn’t have fought so hard to keep it secret. Nevertheless, we got the info. in the past, so once would think that it wasn’t that important to hide if it was out there in the past for everyone to look at. Potter just doesn’t want us to have any ammo in contract negotiations when he pleas with the arbitrator on how broke the USPS is.
    Great gamesmanship Potter!

  5. I agree with Archer. If Republicans regain the House this November, Darell Issa will most likely be appointed as the Chairman for the Committee on Oversight and Government Reform which oversees the USPS.

    Instead of distorting the facts over the CSRS pre-funding and retirement overcharghe (and calling it a “government bailout”) or attacking the wages and benefits of craft employees, Rep. Issa could demand that postal executives reveal their PAY-For-Performance records. After all, postal employees salaries were publicly released by USPS executives following a FOIA request by a private company. Issa recently stated he only wants government transparency and wants the salaries of all federal employees be made available to the public. The argument that PFP records are of a “commercial nature” and thereby denied to APWU representatives may point to another double-standard by our postal executives. If upper-management truly believed in their PFP program and has nothing to hide, then, those records should have been handed over at the union’s request. I can only assume that APWU will appeal this decision.

    Issa is “guaranteed” to win the 49th District (it will be his sixth time in a row) of North San Diego County. His opponent for this November 2 election, Howard Katz (D) [1], raised only $9,640 to Darrell Issa’s $904,352 [2]. Katz is by far a long-shot in a predominantly Republican district. As a matter of fact, Issa is so certain he will win that he has already commented that he intends to double his staff and start issuing subpoenas aimed at Obama. In the political circle he is known to be scandal-prone with his career motivated by “greed and a desire for power.” [3]

    I can only hope that Issa’s path of destruction be curved towards doing something useful.


    [1] – (Howard Katz for Congress)
    [2] – (
    [3] – (Political Correction)

  6. NALC in managements pocket and a bunch of parasites, always lets the APWU negotiate the contract then the NALC says “metoo”

  7. How about getting Darryl Issa involved in this? You would think, since he is so intent on sticking it to the USPS in general, that he would like to know about all the end of the fiscal year celebrations that Executives enjoyed last month, while the magical postal money fairy was handing out secret bonus checks for “merit.”

    If the USPS is really going down the toilet, why is ANYONE getting a bonus check?

    Anyone out there want to petition Daryyl Issa to check into this most recent debacle? Or should we agree with the courts that we should be kept in the dark about what the incompetent bosses are getting at our expense?

  8. Richard on Wed, 6th Oct
    Another APWU misguided effort to widen the gap between mgt and craft.

    The difference between APWU and NALC is evident. WHAT THE FUXX ARE YOU TALKING ABOUT???

    getting this information would go a long way in proving that management gives out money for doing NOTHING!!!!

    APWU mgt reminds me of Postal mgt. At the upper levels BOTH pretty sorry.

    I did not see where the letter carriers even care about where all the money goes!!!

  9. Another APWU misguided effort to widen the gap between mgt and craft.

    The difference between APWU and NALC is evident.

    APWU mgt reminds me of Postal mgt. At the upper levels BOTH pretty sorry.

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