[Federal Register Volume 83, Number 185 (Monday, September 24, 2018)]
[Rules and Regulations]
[Pages 48233-48237]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-20585]
[[Page 48233]]
=======================================================================
-----------------------------------------------------------------------
POSTAL SERVICE
39 CFR Parts 265 and 266
Production or Disclosure of Material or Information
AGENCY: Postal ServiceTM.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: In June 2018, the Postal Service proposed to amend its Freedom
of Information Act and Privacy Act regulations. Most of these changes
consisted of minor technical corrections. In addition to these
technical changes, the Postal Service proposed changes to create a
definition of ``information of a commercial nature'' as it pertains to
the Postal Reorganization Act's provisions concerning disclosure of
information under the Freedom of Information Act, add guidance for
determining what information qualifies as commercial information under
the Act, and provide specific examples. The Postal Service received
three sets of comments and addresses them here.
DATES: This rule is effective as of October 24, 2018.
FOR FURTHER INFORMATION CONTACT: Ruth B. Stevenson, Attorney, Federal
Compliance, [email protected], 202-268-6627.
SUPPLEMENTARY INFORMATION:
Background
In June 2018, the Postal Service proposed to amend its Freedom of
Information Act (FOIA) and Privacy Act regulations. 83 FR 27933 (June
15, 2018). Most of these changes were minor, intended to improve
clarity and make technical corrections. In addition to these technical
changes, the Postal Service proposed substantive changes intended to
create a definition of ``information of a commercial nature'' as it
pertains to the Postal Reorganization Act's provisions concerning
disclosure of information under the FOIA, add guidance for determining
what information qualifies as commercial information under the Act, and
provide specific examples. The Postal Service received three sets of
comments. The Postal Service has considered these comments and
addresses them below.
The Postal Reorganization Act of 1970 (PRA) subjected the newly
formed United States Postal Service to certain federal statutes,
including the FOIA. See 39 U.S.C. 410(b). The PRA was the result of
over two years of congressional deliberation and debate seeking to
reestablish the Postal Service as an independent executive organization
that would ``be run more like a business than had its predecessor, the
Post Office Department.'' Franchise Tax Bd. of Cal. v. U.S. Postal
Serv., 467 U.S. 512, 520 (1984); see also Nat'l Ass'n of Greeting Card
Publishers v. U.S. Postal Serv., 462 U.S. 810, 822 (1983) (noting that
under the Act ``Congress sought to ensure that the Postal Service would
be managed in a businesslike way''). In recognition of these new
mandates and expectations, Congress specifically exempted the Postal
Service from disclosing six types of operational information under the
FOIA. See 39 U.S.C. 410(c). In particular, Congress exempted
``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). The original form of the PRA's final iteration, H.R. 17070,
would not have subjected the Postal Service to the FOIA at all. Id.
However, the Senate conditioned its approval of H.R 17070 on the
inclusion of several significant amendments embodied in S. 3842,
including Section 410. S. 3842, 91st Cong. (1970); see also e.g., S.
Rep. No. 91-912 (1970); H.R. Rep. No. 91-1363 (1970). This section both
subjects the Postal Service to the FOIA and contains certain specific
exemptions from disclosure. The House accepted the amendments in S.
3842 with few changes and minimal discussion. See H.R. Rep. No. 91-1363
(1970) and Public Law 91-375 (August 12, 1970). In addition, despite
the fact that the inclusion of Section 410 was demanded by the Senate,
the Senate record is devoid of specific discussion of this provision
and its relationship to the FOIA. These omissions from the
congressional record make it difficult to discern, beyond the plain
language, how Congress intended the Postal Service to interpret section
410--specifically, what constitutes ``information of a commercial
nature'' under section 410(c)(2).
The Postal Service's FOIA regulations were originally promulgated
in 1975. See U.S. Postal Service, Freedom of Information Act
Regulations, 40 FR 7330 (Feb. 19, 1975). Just as Congress did not
define commercial information in Section 410, the original Federal
Register notice concerning 39 CFR 265.14(b)(3) did not define, nor even
discuss, commercial information or the proposed exemption of certain
categories of records. Id. Despite some minor clarifying edits, the
regulatory language of Sec. 265.14(b)(3) has remained substantially
unchanged since 1975. See 51 FR 26385 (July 23, 1986) (adding two
categories of records without discussion). Several courts have observed
the absence of such definition, from either Congress or Postal Service
regulations, as they endeavored to define the term themselves. See
e.g., Carlson v. U.S. Postal Serv., 504 F.3d 1123, 1128 (9th Cir. 2007)
(noting that neither Congress nor Postal Service regulations have
defined ``information of a commercial nature''); Nat'l W. Life Ins. Co.
v. U.S., 512 F. Supp. 454, 459-60 (N.D. Tex. 1980) (stating that there
is ``no authority as to what constitutes commercial information'');
Carlson v. U.S. Postal Serv., No. 13-CV-06017-JSC, 2015 WL 9258072, at
*4 (N.D. Cal. Dec. 18, 2015) (stating that ``without a statutory or
regulatory definition,'' the courts have been forced to turn to the
dictionary for the common meaning). It was with these criticisms in
mind that the Postal Service endeavored to make the proposed changes to
its regulations at question here. See proposed Sec. 265.14(b)(3).
Summary of Commenter A's Comments and Postal Service Responses
Commenter A made several thoughtful comments in response to the
proposed rule changes. Chiefly, Commenter A questions the necessity of
making any changes at all to Sec. 265.14 under the assumption that
``there has been relatively little litigation over the scope of either
39 U.S.C. 410(c)(2) or 39 CFR 265.14(b)(3).'' The Postal Service
disagrees. The scope of Section 410(c)(2), and more precisely how to
define commercial information, has been the subject of numerous court
decisions. See e.g., Wickwire Gavin, P.C. v. U.S. Postal Serv., 356
F.3d 588, 594-596 (4th Cir. 2004); Carlson, 504 F.3d at 1128; Nat'l W.
Life Ins. Co., 512 F. Supp. at 459-60; Piper & Marbury v. U.S. Postal
Serv., No. CIV. A. 99-2383JMFCKK, 2001 WL 214217, at *1 (D.D.C. Mar. 6,
2001); Carlson, No. 13-CV-06017-JSC, 2015 WL 9258072, at *4. This topic
has also been the subject of several other filed complaints that either
never, or have not yet, reached judicial decision. Moreover, the scope
of section 410(c)(2) is constantly a topic of controversy in the
administrative appeal decisions the Postal Service issues under the
FOIA. Therefore, the Postal Service believes that the level of
controversy surrounding the scope of section 410(c)(2) merits
regulatory clarification.
Commenter A next posits that the Postal Service's proposed
definition of ``information of a commercial nature'' would do more to
confuse rather than clarify the scope of section 410(c)(2). The Postal
Service proposes to amend
[[Page 48234]]
Sec. 265.14(b)(3) to state ``information is of a commercial nature if
it relates to commerce, trade, profit, or the Postal Service's ability
to conduct itself in a businesslike manner.'' 83 FR 27934, proposed
Sec. 265.14(b)(3). The Postal Service's proposed amendments follow
this subsection with six factors to evaluate in determining whether
particular information meets this definition. Commenter A, while
recognizing that this ``is generally consistent with case law,'' opines
that the definition ``is so broad as to be meaningless.'' Again, the
Postal Service disagrees. The proposed definition is clear, concise,
and places new parameters on the scope of section 410(c)(2) where none
previously existed. Furthermore, it is considerably narrower than both
the current regulatory language of Sec. 265.14(b)(3) and the
relatively boundless statutory text of section 410(c)(2). Moreover, the
addition of six factors to apply in making a determination of
information's commercial nature provide further clarity to the proposed
definition while also providing guidance as to its application in real
world circumstances.
In addition to the proposed definition of ``information of a
commercial nature'' and the six evaluation factors, the proposed
amendment to Sec. 265.14 also includes a demonstrative, non-exclusive
list of 21 examples of specific types of information the Postal Service
has determined meets that definition. 83 FR 27934, proposed Sec.
265.14(b)(3)(ii). The remainder of Commenter A's comments argue that
certain of these listed examples would not qualify for withholding,
including ``Facility-specific volume, revenue, and cost information,''
proposed Sec. 265.14(b)(3)(ii)(J), ``Country-specific international
mail volume and revenue data,'' proposed Sec. 265.14(b)(3)(ii)(K), and
``Parties to Negotiated Service Agreements,'' proposed Sec.
265.14(b)(3)(ii)(O).
Courts have identified several characteristics that tend to weigh
either in favor of or against a determination that information is
commercial in nature. Some of those characteristics include whether and
to what extent the information: Is publicly available, is intrinsically
economic or financial, is transactional, involves cost and pricing,
would be useful to competitors, or could cause competitive harm if
disclosed. See e.g., Carlson, 504 F.3d at 1130 (taking note that most
of the requested information was already publicly available); Nat'l W.
Life Ins. Co., 512 F. Supp. at 459-60 (noting that the information
requested was not ``intrinsically economic or financial''); Carlson,
No. 13-CV-06017-JSC, 2015 WL 9258072, at *7 (noting the transactional
nature of the requested information, its potential utility to
competitors, and recognizing that other courts have protected cost and
pricing information); Wickwire Gavin, 356 F.3d at 595 (rejecting an
``implied additional requirement'' of competitive harm, but noting that
``competitive harm [is] one of many considerations'' in determining the
commercial nature of information).
Facility-specific and country-specific volume, revenue, and cost
information share many of those characteristics. It is non-public,
intrinsically economic and financial, and involves cost and pricing.
Likewise, the Postal Service does not make the parties to its
Negotiated Service Agreements public. The Postal Service uses these
agreements to offer customized pricing and classifications to certain
mailers to compete for those mailers' business. Neither of these items
would typically be released ``under good business practice.'' Other
businesses, including the Postal Service's competitors, do not release
facility-specific or country-specific volume, revenue and cost
information. Customers who hold Negotiated Service Agreements with the
Postal Service do not publicly disclose such agreements.
As such, the Postal Service declines making changes to its proposed
amendments in response Commenter A's comments.
Summary of Commenter B's Comments and Postal Service Responses
Likewise, Commenter B made several thoughtful comments in response
to the proposed rule changes. All of Commenter B's comments relate to
proposed Sec. 265.14(b)(3)(ii)(Q) which deems ``negotiated terms in
leases'' commercial information under section 410(c)(2). Commenter B
asks that the Postal Service delete this item from the list of examples
included at proposed Sec. 265.14(b)(3)(ii). Commenter B's comments do
not contest that negotiated terms in leases qualify as commercial
information under section 410(c)(2), rather, it asserts that
withholding this information is not ``consistent with good business
practices for the commercial and business sector.''
The PRA exempted from disclosure under the FOIA ``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).
Section 410(c)(2) creates a two-pronged inquiry; first, whether the
information is commercial in nature, and second, whether it would be
publicly disclosed under good business practice. See e.g., Wickwire
Gavin, 356 F.3d at 594-95; Carlson No. 13-cv-06017-JSC, 2015 WL
9258072, at *8. In order to determine whether commercial information
would be disclosed under good business practice, courts look to the
common practices of other businesses. See id. The Postal Service notes
that its regulatory changes only encompass the definition of
``commercial information.'' To the extent that Commenter B asserts that
this information is not information that falls within the second prong
of this inquiry, the Postal Service submits that such an assertion is
outside the scope of this rulemaking. However, to the extent Commenter
B's comments have any bearing on the instant rulemaking, the Postal
Service declines to make changes to 39 CFR 265.14(b) that conform to
Commenter B's comments for the reasons discussed below.
First, Commenter B asserts that leasing information should not be
exempt from public disclosure because this type of information is
``routinely made publicly available in the commercial leasing
industry,'' citing searchable databases provided by third-party
companies. The Postal Service is not aware of any of its competitors
publicly releasing the terms of their commercial leases. In fact, it is
common practice for parties to a commercial lease to require non-
disclosure agreements as part of their lease terms for the very purpose
of insuring that terms do not become public. As such, the Postal
Service disagrees that this is a routine procedure in keeping with good
business practice.
Commenter B next points out that the United States General Services
Administration (GSA) provides a searchable database containing
information on the terms of its leases. While true, the Postal Service
occupies a different position than GSA. GSA is not required to operate
in a businesslike manner as its costs are paid through appropriated
funds, whereas the Postal Service is self-funded by revenue it
generates through operations. Congress enacted section 410(c)(2) in
recognition of the Postal Service's dual role as both a government
entity and a business competing in the market. This provision only
applies to the Postal Service. Quite simply, GSA does not enjoy these
same protections that Congress saw fit to provide the Postal Service.
Moreover, section 410(c)(2) references withholding information ``under
good business practice'' with courts looking to the practices of other
businesses. GSA is not a business. Thus, GSA's practices regarding
lease terms do not warrant
[[Page 48235]]
altering the proposed amendments to 39 CFR 265.14(b).
Commenter B also asserts that the past practice of releasing Postal
Service lease information ``has benefited both the Postal Service and
the lessors of postal buildings.'' The Postal Service agrees that such
practice has benefited lessors--but to the detriment of the Postal
Service's bargaining position as lessee. It has been the Postal
Service's experience that negotiations in which the lessor has access
to extensive Postal Service lease information for other properties
result in less-favorable economic terms for the Postal Service. In
other words, the Postal Service is disadvantaged when lessors know
exactly what rents, concessions, and other terms were accepted by the
Postal Service for other properties in the Postal Service's lease
portfolio. The circumstances surrounding the acceptance of less than
optimal terms in one lease do not necessarily support the Postal
Service's acceptance of similar terms in other leases. However, lessors
can use the knowledge of the former to insist on the same non-
beneficial terms in their leases to the detriment of the Postal
Service.
Finally, Commenter B posits that without public access to the
Postal Service's negotiated lease terms, insurance underwriters will
have a more difficult time accurately estimating risk, causing premiums
to increase. Commenter B asserts that this is especially so for ``loss
of rent coverage.'' In theory, an increase in premiums will lead to an
increase in rents. The Postal Service will not speculate on what
factors impact pricing in insurance markets. However, it should be
noted that insurance coverage is the responsibility of the lessor.
Moreover, Postal Service leases do not require lessors to carry loss of
rent coverage as this coverage solely benefits the lessor--protecting
the lessor's income stream. The commercial real estate market dictates
what rents are paid. While a hypothetical increase in insurance rates
for lessors may somewhat increase the lessor's costs, the market will
determine whether such an increase in cost can be passed on to tenants.
In this case, the Postal Service does not believe that this will cause
a significant increase in the rents it pays as determined by relevant
commercial real estate market conditions. Regardless, even if such a
hypothetical cost increase to the lessor were to trickle into the
actual rents paid, the Postal Service estimates that any increase would
be far offset by its improved bargaining position as a result of not
publicly disclosing its lease information. As such, the Postal Service
declines Commentator B's invitation to change the proposed amendments.
Summary of the Commenter C's Comments and Postal Service Responses
Commenter C submitted comments supporting the Postal Service's
proposed changes to 39 CFR 265.14(b). While Commenter C recognizes the
importance of the FOIA's goal of promoting transparency in government,
Commenter C also underlines the importance of ensuring that the Postal
Service can adequately protect third party sensitive business
information. Commenter C notes that the disclosure of such information
may allow an unfair advantage to a business's competitors. Moreover,
Commenter C notes that businesses in the private sector would be much
more hesitant to conduct business with the Postal Service if they faced
uncertainty as to whether the Postal Service could protect their
confidential business information from public disclosure.
The Postal Service appreciates and agrees with Commenter C. In
order to effectively operate in a competitive commercial environment,
the Postal Service must not only protect its own sensitive business
information but must also have the ability to give its partners
adequate assurances that the Postal Service can maintain the
confidentiality of their information. The Postal Service believes that
the edits to 39 CFR 265.14(b) achieve a balance between the goals of
the FOIA and the Postal Service's ability to conduct itself in a
business-like manner.
List of Subjects
39 CFR Part 265
Administrative practice and procedure, Courts, Freedom of
information, Government employees.
39 CFR Part 266
Privacy.
For the reasons stated in the preamble, the Postal Service amends
39 CFR chapter I as follows:
PART 265--PRODUCTION OR DISCLOSURE OF MATERIAL OR INFORMATION
0
1. The authority citation for part 265 continues to read as follows:
Authority: 5 U.S.C. 552; 5 U.S.C. App. 3; 39 U.S.C. 401, 403,
410, 1001, 2601; Pub. L. 114-185.
0
2. Amend Sec. 265.1 by revising paragraph (a)(1) to read as follows:
Sec. 265.1 General provisions.
(a) * * *
(1) This subpart contains the regulations that implement the
Freedom of Information Act (FOIA), 5 U.S.C. 552, insofar as the Act
applies to the Postal Service. These rules should be read in
conjunction with the text of the FOIA and the Uniform Freedom of
Information Act Fee Schedule and Guidelines published by the Office of
Management and Budget (OMB Guidelines). The Postal Service FOIA
Requester's Guide, an easy-to-read guide for making Postal Service FOIA
requests, is available at http://about.usps.com/who-we-are/foia/welcome.htm.
* * * * *
0
3. Amend Sec. 265.3 by revising paragraphs (d) and (e) to read as
follows:
Sec. 265.3 Procedure for submitting a FOIA request.
* * * * *
(d) First-party requests. A requester who is making a request for
records about himself must provide verification of identity sufficient
to satisfy the component as to his identity prior to release of the
record. For Privacy Act-protected records, the requester must further
comply with the procedures set forth in 39 CFR 266.5.
(e) Third-party requests. Where a FOIA request seeks disclosure of
records that pertain to a third party, a requester may receive greater
access by submitting a written authorization signed by that individual
authorizing disclosure of the records to the requester, or by
submitting proof that the individual is deceased (e.g., a copy of a
death certificate or an obituary). As an exercise of administrative
discretion, each component can require a requester to supply a
notarized authorization, a declaration, a completed Privacy Waiver as
set forth in 39 CFR 266.5(b)(2)(iii), or other additional information
if necessary in order to verify that a particular individual has
consented to disclosure.
* * * * *
0
4. Amend Sec. 265.6 by adding paragraph (e)(2) to read as follows:
Sec. 265.6 Responses to requests.
* * * * *
(e) * * *
(2) Any component invoking an exclusion must maintain an
administrative record of the process of invocation and approval of
exclusion by OIP.
0
5. Amend Sec. 265.9 by revising paragraph (c)(3) to read as follows:
Sec. 265.9 Fees.
* * * * *
(c) * * *
[[Page 48236]]
(3) Review. Commercial-use requesters shall be charged review fees
at the rate of $21.00 for each half hour by personnel reviewing the
records. Review fees shall be assessed in connection with the initial
review of the record, i.e., the review conducted by a component to
determine whether an exemption applies to a particular record or
portion of a record. No charge will be made for review at the
administrative appeal stage of exemptions applied at the initial review
stage. However, if a particular exemption is deemed to no longer apply,
any costs associated with a component's re-review of the records in
order to consider the use of other exemptions may be assessed as review
fees.
* * * * *
0
6. Amend Sec. 265.14 by revising paragraphs (b) and (d)(1) and (2) to
read as follows:
Sec. 265.14 Rules concerning specific categories of records.
* * * * *
(b) Information not subject to mandatory public disclosure. Certain
types of information are exempt from mandatory disclosure under
exemptions contained in the Freedom of Information Act and in 39 U.S.C.
410(c). The Postal Service will exercise its discretion, in accordance
with the policy stated in Sec. 265.1(c), as implemented by
instructions issued by the Records Office with the approval of the
General Counsel in determining whether the public interest is served by
the inspection or copying of records that are:
(1) Related solely to the internal personnel rules and practices of
the Postal Service.
(2) Trade secrets, or privileged or confidential commercial or
financial information, obtained from any person.
(3) 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.
Information is of a commercial nature if it relates to commerce, trade,
profit, or the Postal Service's ability to conduct itself in a
businesslike manner.
(i) When assessing whether information is commercial in nature, the
Postal Service will consider whether the information:
(A) Relates to products or services subject to economic
competition, including, but not limited to, ``competitive'' products or
services as defined in 39 U.S.C. 3631, an inbound international
service, or an outbound international service for which rates or
service features are treated as nonpublic;
(B) Relates to the Postal Service's activities that are analogous
to a private business in the marketplace;
(C) Would be of potential benefit to individuals or entities in
economic competition with the Postal Service, its customers, suppliers,
affiliates, or business partners or could be used to cause harm to a
commercial interest of the Postal Service, its customers, suppliers,
affiliates, or business partners;
(D) Is proprietary or includes conditions or protections on
distribution and disclosure, is subject to a nondisclosure agreement,
or a third party has otherwise expressed an interest in protecting such
information from disclosure;
(E) Is the result of negotiations, agreements, contracts or
business deals between the Postal Service and a business entity; or
(F) Relates primarily to the Postal Service's governmental
functions or its activities as a provider of basic public services.
(ii) No one factor is determinative. Rather, each factor should be
considered in conjunction with the other factors and the overall
character of the particular information. Some examples of commercial
information include, but are not limited to:
(A) Information related to methods of handling valuable registered
mail.
(B) Records of money orders except as provided in section 509.3 of
the Domestic Mail Manual.
(C) Technical information concerning postage meters and prototypes
submitted for Postal Service approval prior to leasing to mailers.
(D) Quantitative data, whether historical or current, reflecting
the number of postage meters or PC postage accounts.
(E) Reports of market surveys conducted by or under contract on
behalf of the Postal Service.
(F) Records indicating carrier or delivery lines of travel.
(G) Information which, if publicly disclosed, could materially
increase procurement costs.
(H) Information which, if publicly disclosed, could compromise
testing or examination materials.
(I) Service performance data on competitive services.
(J) Facility specific volume, revenue, and cost information.
(K) Country-specific international mail volume and revenue data.
(L) Non-public international volume, revenue and cost data.
(M) Pricing and negotiated terms in bilateral arrangements with
foreign postal operators.
(N) Information identifying USPS business customers.
(O) Financial information in or the identities of parties to
Negotiated Service Agreements or Package Incentive Agreements.
(P) Negotiated terms in contracts.
(Q) Negotiated terms in leases.
(R) Geolocation data.
(S) Proprietary algorithms or software created by the Postal
Service.
(T) Sales performance goals, standards, or requirements.
(U) Technical information or specifications concerning mail
processing equipment.
* * * * *
(d) * * *
(1) Change of address. The new address of any specific business or
organization that has filed a permanent change of address order (by
submitting PS Form 3575, a hand written order, or an electronically
communicated order) will be furnished to any person upon request. If a
domestic violence shelter has filed a letter on official letterhead
from a domestic violence coalition stating:
(i) That such domestic violence coalition meets the requirements of
42 U.S.C. 10410; and
(ii) That the organization filing the change of address is a
domestic violence shelter, the new address shall not be released except
pursuant to applicable routine uses. The new address of any individual
or family that has filed a permanent or temporary change of address
order will be furnished only in those circumstances stated at paragraph
(d)(5) of this section. Disclosure will be limited to the address of
the specifically identified individual about whom the information is
requested (not other family members or individuals whose names may also
appear on the change of address order). The Postal Service reserves the
right not to disclose the address of an individual for the protection
of the individual's personal safety. Other information on PS Form 3575
or copies of the form will not be furnished except in those
circumstances stated at paragraph (d)(5)(i), (d)(5)(iii), or (d)(5)(iv)
of this section.
(2) Name and address of permit holder. The name and address of the
holder of a particular bulk mail permit, permit imprint or similar
permit (but not including postage meter licenses), and the name of any
person applying for a permit on behalf of a holder will be furnished to
any person upon request. For the name and address of a postage
[[Page 48237]]
meter license holder, see paragraph (d)(3) of this section. (Lists of
permit holders may not be disclosed to members of the public. See
paragraph (e)(1) of this section.)
* * * * *
PART 266--PRIVACY OF INFORMATION
0
7. The authority citation for part 266 continues to read as follows:
Authority: 5 U.S.C. 552a; 39 U.S.C. 401.
0
8. Amend Sec. 266.3 by revising paragraphs (a) introductory text,
(a)(3), (b)(1) introductory text, (b)(1)(i), (b)(1)(iii), (b)(2)
introductory text, (b)(2)(iii), and (b)(2)(xi), and the paragraph
(b)(5) heading to read as follows:
Sec. 266.3 Collection and disclosure of information about
individuals.
(a) This section governs the collection of information about
individuals, as defined in the Privacy Act of 1974, throughout the
United States Postal Service and across its operations;
* * * * *
(3) The Postal Service will maintain no record describing how an
individual exercises rights guaranteed by the First Amendment unless
expressly authorized by statute or by the individual about whom the
record is maintained or unless pertinent to and within the scope of an
authorized law enforcement activity.
* * * * *
(b) * * *
(1) Limitations. The Postal Service will not disclose information
about an individual unless reasonable efforts have been made to assure
that the information is accurate, complete, timely and relevant to the
extent provided by the Privacy Act and unless:
(i) The individual to whom the record pertains has requested in
writing, or with the prior written consent of the individual to whom
the record pertains, that the information be disclosed, unless the
individual would not be entitled to access to the record under the
Postal Reorganization Act, the Privacy Act, or other law;
* * * * *
(iii) The disclosure is in accordance with paragraph (b)(2) of this
section.
(2) Conditions of Disclosure. Disclosure of personal information
maintained in a system of records may be made:
* * * * *
(iii) For a routine use as contained in the system of records
notices published in the Federal Register;
* * * * *
(xi) Pursuant to the order of a court of competent jurisdiction. A
court of competent jurisdiction is defined in Article III of the United
States Constitution including, but not limited to any United States
District Court, any United States or Federal Court of Appeals, the
United States Court of Federal Claims, and the United States Supreme
Court. For purposes of this section, state courts are not courts of
competent jurisdiction.
* * * * *
(5) Employment status. * * *
* * * * *
Ruth Stevenson,
Attorney, Federal Compliance.
[FR Doc. 2018-20585 Filed 9-21-18; 8:45 am]
BILLING CODE 7710-12-P