Case 1:20-cv-02580 Document 1 Filed 09/15/20 Page 1 of 21

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

AMERICAN OVERSIGHT,
1030 15th Street NW, B255
Washington, DC 20005

v.
U.S. POSTAL SERVICE,
475 L’Enfant Plaza SW
Washington, DC 20260

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Plaintiff, )
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Defendant. )

Case No. 20-cv-2580

COMPLAINT
1.

Plaintiff American Oversight brings this action against the U.S. Postal Service

under the Freedom of Information Act, 5 U.S.C. § 552 (FOIA), and the Declaratory Judgment
Act, 28 U.S.C. §§ 2201 and 2202, seeking declaratory and injunctive relief to compel
compliance with the requirements of FOIA.
JURISDICTION AND VENUE
2.

This Court has jurisdiction over this action pursuant to 5 U.S.C. § 552(a)(4)(B)

and 28 U.S.C. §§ 1331, 2201, and 2202.
3.

Venue is proper in this district pursuant to 5 U.S.C. § 552(a)(4)(B) and 28 U.S.C.

§ 1391(e).
4.

Because Defendant has failed to comply with the applicable time-limit provisions

of FOIA, American Oversight is deemed to have exhausted its administrative remedies pursuant
to 5 U.S.C. § 552(a)(6)(A)(ii) and is now entitled to judicial action enjoining Defendant from
continuing to withhold department or agency records and ordering the production of agency
records improperly withheld.

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PARTIES
5.

Plaintiff American Oversight is a nonpartisan non-profit section 501(c)(3)

organization primarily engaged in disseminating information to the public. American Oversight
is committed to promoting transparency in government, educating the public about government
activities, and ensuring the accountability of government officials. Through research and FOIA
requests, American Oversight uses the information it gathers, and its analysis of it, to educate the
public about the activities and operations of the federal government through reports, published
analyses, press releases, and other media. The organization is incorporated under the laws of the
District of Columbia.
6.

Defendant U.S. Postal Service (USPS) is an agency of the executive branch of the

U.S. government headquartered in Washington, D.C., and an agency of the federal government
within the meaning of 5 U.S.C. § 552(f)(1). USPS has possession, custody, and control of
records that American Oversight seeks.
STATEMENT OF FACTS
7.

On July 29, 2020, American Oversight submitted a FOIA request to USPS

seeking:
All calendars or calendar entries for Louis DeJoy including any
calendars maintained on behalf of Louis DeJoy, from June 15, 2020
through two weeks after the date the search is conducted.
American Oversight requests that the calendars be produced in a
format that includes all invitees, any notes, and all attachments.
Please do not limit your search to Outlook calendars; we request the
production of any calendar—paper or electronic, whether on
government-issued or personal devices—used to track or coordinate
how Mr. DeJoy allocates his time on agency business.
The search would include any calendars associated with his
individual email account where he keeps track of official business,

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as well as any official calendars maintained for him, including by
his administrative assistant or scheduler.
Exhibit A.
8.

On August 7, 2020, USPS responded to American Oversight’s request stating that

there were no responsive “agency records subject to the FOIA.” Exhibit B.
9.

USPS’s response stated that “the Postmaster General’s electronic calendar

maintained on a postal computer was created for his personal use and contains personal and
business appointments, only a few employees have access to the Postmaster General’s calendar
for the purpose of determining his availability, and it was not intended to be an official record of
his schedule.” Id.
10.

The response concluded “the Postmaster General’s calendar and calendar entries

are not agency records subject to the FOIA.” Id.
11.

American Oversight appealed this response on August 14, 2020, arguing that the

Postmaster General’s calendar is composed of agency records and that an agency search that
identified no agency records used to track or coordinate the agency head’s time on agency
business was inadequate. Exhibit C.
12.

USPS assigned American Oversight’s appeal tracking number 2020-APP-00101.

13.

As of the date of this complaint, American Oversight has not received a response

to its appeal.
14.

On information and belief, at least one USPS agency ethics officer uses

Postmaster General DeJoy’s calendar to screen for potential conflicts of interest.
15.

On information and belief, at least one USPS agency ethics officer has full access

to Postmaster General DeJoy’s calendar.

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16.

On August 24, 2020, Postmaster General DeJoy testified to the House of

Representatives Committee on Oversight and Reform that he maintained a daily calendar in
response to a question from a committee member regarding his busy schedule as Postmaster
General.
17.

Postmaster General DeJoy further testified that at least one ethics officer looks at

his calendar to screen his meetings for conflicts of interest.
18.

Postmaster General DeJoy also testified that at least one agency ethics officer has

full access to his calendar.
19.

On information and belief, Postmaster General DeJoy’s immediate predecessor,

Postmaster General Megan Brennan, maintained a calendar on postal technological systems that
had the capability to send and receive calendar invitations to and from other USPS employees
and other individuals.
20.

On information and belief, Postmaster General DeJoy’s electronic calendar on a

postal computer also has the capability to send and receive calendar invitations to and from other
individuals, as was the case for his predecessor and as is commonplace for contemporary
electronic calendars.
21.

On information and belief, USPS complies with the Federal Records Act

requirements to “make and preserve records containing adequate and proper documentation of
the organization, functions, policies, decisions, procedures, and essential transactions of [its]
agency,” 44 U.S.C. § 3101, and regulations promulgated by the Archivist of the United States
under the Act.

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Exhaustion of Administrative Remedies
22.

As of the filing of this complaint, USPS has not notified American Oversight of a

determination with respect to American Oversight’s appeal of USPS’s response, and American
Oversight is entitled to judicial review. 5 U.S.C. § 552(a)(6)(A)(ii).
COUNT I
Violation of FOIA, 5 U.S.C. § 552
Failure to Conduct Adequate Searches for Responsive Records
23.

Plaintiff repeats the allegations in the foregoing paragraphs and incorporates them

as though fully set forth herein.
24.

Plaintiff properly requested records within the possession, custody, and control of

Defendant.
25.

Defendant is an agency subject to FOIA and must therefore make reasonable

efforts to search for requested records.
26.

Defendant has failed to promptly review agency records for the purpose of

locating those records that are responsive to Plaintiff’s FOIA request.
27.

Defendant’s failure to conduct adequate searches for responsive records violates

28.

Plaintiff is therefore entitled to injunctive and declaratory relief requiring

FOIA.

Defendant to promptly make reasonable efforts to search for records responsive to Plaintiff’s
FOIA request.

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COUNT II
Violation of FOIA, 5 U.S.C. § 552
Wrongful Withholding of Non-Exempt Responsive Records
29.

Plaintiff repeats the allegations in the foregoing paragraphs and incorporates them

as though fully set forth herein.
30.

Plaintiff properly requested agency records within the possession, custody, and

control of Defendant.
31.

Defendant is an agency subject to FOIA and must therefore release in response to

FOIA requests any non-exempt agency records and provide a lawful reason for withholding any
materials.
32.

Defendant is wrongfully withholding non-exempt agency records requested by

Plaintiff by failing to produce non-exempt records responsive to its FOIA request.
33.

Defendant is wrongfully withholding non-exempt agency records requested by

Plaintiff by failing to segregate exempt information in otherwise non-exempt records responsive
to its FOIA request.
34.

Defendant’s failure to provide all non-exempt responsive records violates FOIA.

35.

Plaintiff is therefore entitled to declaratory and injunctive relief requiring

Defendant to promptly produce all non-exempt records responsive to its FOIA request and
provide indexes justifying the withholding of any responsive records withheld under claim of
exemption.
REQUESTED RELIEF
WHEREFORE, American Oversight respectfully requests the Court to:
(1) Order Defendant to conduct a search reasonably calculated to uncover all records
responsive to American Oversight’s FOIA request;

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(2) Order Defendant to produce, within twenty days of the Court’s order, any and all nonexempt records responsive to American Oversight’s FOIA request and Vaughn
indexes of any responsive records withheld under claim of exemption;
(3) Enjoin Defendant from continuing to withhold any and all non-exempt agency
records responsive to American Oversight’s FOIA request;
(4) Award American Oversight the costs of this proceeding, including reasonable
attorneys’ fees and other litigation costs reasonably incurred in this action, pursuant
to 5 U.S.C. § 552(a)(4)(E); and
(5) Grant American Oversight such other relief as the Court deems just and proper.
Dated: September 15, 2020

Respectfully submitted,
/s/ Daniel A. McGrath
Daniel A. McGrath
D.C. Bar No. 1531723
AMERICAN OVERSIGHT
1030 15th Street NW, B255
Washington, DC 20005
(202) 897-4213
daniel.mcgrath@americanoversight.org
Counsel for Plaintiff

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EXHIBIT A

Case 1:20-cv-02580 Document 1 Filed 09/15/20 Page 9 of 21

July 29, 2020
VIA EMAIL
Jane Eyre
Deputy Chief FOIA Officer
Privacy & Records Management Office
U.S. Postal Service
475 L’Enfant Plaza SW, RM 1P830
Washington, DC 20260
FOIA12@usps.gov
Re: Freedom of Information Act Request
Dear Ms. Eyre:
Pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, and the
implementing regulations of your agency, American Oversight makes the following
request for records.
On May 6, 2020, the Postal Board of Governors of the United States Postal Service (USPS)
announced the selection of Louis DeJoy to be Postmaster General.1 Prior to his
appointment, Mr. DeJoy was the “the lead fundraiser for the 2020 Republican National
Convention in Charlotte.”2 Some have raised concerns about Mr. DeJoy’s partisan history.3

United States Postal Service, Board of Governors Announces Selection of Louis DeJoy to Serve as
Nation’s 75th Postmaster General, May 6, 2020, https://about.usps.com/newsroom/nationalreleases/2020/0506-bog-announces-selection-of-louis-dejoy-to-serve-as-nations-75thpostmaster-general.htm.
2 Daniel Finnegan, Lead Fundraiser for Charlotte RNC Named Postmaster General. He Starts in
June., Triad Business Journal (May 7, 2020, 11:01 AM),
https://www.bizjournals.com/charlotte/news/2020/05/07/lead-fundraiser-for-charlotternc-named-postmaster.html.
3 Jacob Bogage, Trump Ally Takes Over Crisis-Ridden Postal Service As Top Senate Democrat
Demands Inquiry on Hiring, Wash. Post (June 15, 2020, 7:00 AM),
https://www.washingtonpost.com/business/2020/06/15/trump-postal-service-dejoy/;
Donald K. Sherman, Trump's New Postmaster General Could Corrupt a Key Institution Ahead of
Election Day, NBC Opinion (July 19, 2020, 7:38 AM),
https://www.nbcnews.com/think/opinion/trump-s-2020-usps-appointment-couldcorrupt-key-institution-ahead-ncna1234125.
1

1030 15th Street NW, Suite B255, Washington, DC 20005   AmericanOversight.org

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American Oversight seeks records with the potential to shed light on Mr. DeJoy’s activities
as Postmaster General.
Requested Records
American Oversight requests that USPS produce the following records within twenty
business days:
All calendars or calendar entries for Louis DeJoy including any calendars
maintained on behalf of Louis DeJoy, from June 15, 2020 through two weeks after
the date the search is conducted.
American Oversight requests that the calendars be produced in a format that
includes all invitees, any notes, and all attachments. Please do not limit your
search to Outlook calendars; we request the production of any calendar—paper or
electronic, whether on government-issued or personal devices—used to track or
coordinate how Mr. DeJoy allocates his time on agency business.
The search would include any calendars associated with his individual email
account where he keeps track of official business, as well as any official calendars
maintained for him, including by his administrative assistant or scheduler.
Fee Waiver Request
In accordance with 5 U.S.C. § 552(a)(4)(A)(iii) and your agency’s regulations, American
Oversight requests a waiver of fees associated with processing this request for records.
The subject of this request concerns the operations of the federal government, and the
disclosures will likely contribute to a better understanding of relevant government
procedures by the general public in a significant way. Moreover, the request is primarily
and fundamentally for non-commercial purposes.
American Oversight requests a waiver of fees because disclosure of the requested
information is “in the public interest because it is likely to contribute significantly to
public understanding of operations or activities of the government.”4 The public has a
significant interest in understanding the priorities of and influences on USPS’s Postmaster
General, especially in light of the increased interest in voting by mail.5 Records with the
potential to shed light on this matter would contribute significantly to public
understanding of operations of the federal government, including which actors play a role
in handling postal policy.

5 U.S.C. § 552(a)(4)(A)(iii).
See, e.g., Nick Corasaniti and Michael Wines, Beyond Georgia: A Warning for November as
States Scramble to Expand Vote-By-Mail, N.Y. Times, June 10, 2020,
https://www.nytimes.com/2020/06/10/us/politics/voting-by-mail-georgia.html.

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American Oversight is committed to transparency and makes the responses agencies
provide to FOIA requests publicly available, and the public’s understanding of the
government’s activities would be enhanced through American Oversight’s analysis and
publication of these records.
This request is primarily and fundamentally for non-commercial purposes.6 As a 501(c)(3)
nonprofit, American Oversight does not have a commercial purpose and the release of the
information requested is not in American Oversight’s financial interest. American
Oversight’s mission is to promote transparency in government, to educate the public
about government activities, and to ensure the accountability of government officials.
American Oversight uses the information gathered, and its analysis of it, to educate the
public through reports, press releases, or other media. American Oversight also makes
materials it gathers available on its public website and promotes their availability on social
media platforms, such as Facebook and Twitter.7
American Oversight has also demonstrated its commitment to the public disclosure of
documents and creation of editorial content through regular substantive analyses posted
to its website.8 Examples reflecting this commitment to the public disclosure of
documents and the creation of editorial content include the posting of records related to
the Trump Administration’s contacts with Ukraine and analyses of those contacts;9
posting records and editorial content about the federal government’s response to the
Coronavirus pandemic;10 posting records received as part of American Oversight’s “Audit
the Wall” project to gather and analyze information related to the administration’s
proposed construction of a barrier along the U.S.-Mexico border, and analyses of what
those records reveal;11 the posting of records related to an ethics waiver received by a

See 5 U.S.C. § 552(a)(4)(A)(iii).
American Oversight currently has approximately 15,600 page likes on Facebook and
104,300 followers on Twitter. American Oversight, Facebook,
https://www.facebook.com/weareoversight/ (last visited July 28, 2020); American
Oversight (@weareoversight), Twitter, https://twitter.com/weareoversight (last visited
July 28, 2020).
8 See generally News, American Oversight, https://www.americanoversight.org/blog.
9 Trump Administration’s Contacts with Ukraine, American Oversight,
https://www.americanoversight.org/investigation/the-trump-administrations-contactswith-ukraine.
10 See generally The Trump Administration’s Response to Coronavirus, American Oversight,
https://www.americanoversight.org/investigation/the-trump-administrations-responseto-coronavirus; see, e.g., CDC Calendars from 2018 and 2019: Pandemic-Related Briefings and
Meetings, American Oversight, https://www.americanoversight.org/cdc-calendars-from2018-and-2019-pandemic-related-briefings-and-meetings.
11 See generally Audit the Wall, American Oversight,
https://www.americanoversight.org/investigation/audit-the-wall; see, e.g., Border Wall
Investigation Report: No Plans, No Funding, No Timeline, No Wall, American Oversight,
6
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senior Department of Justice attorney and an analysis of what those records demonstrated
regarding the Department’s process for issuing such waivers;12 and posting records and
analysis of federal officials’ use of taxpayer dollars to charter private aircraft or use
government planes for unofficial business.13
Accordingly, American Oversight qualifies for a fee waiver.
Guidance Regarding the Search & Processing of Requested Records
In connection with its request for records, American Oversight provides the following
guidance regarding the scope of the records sought and the search and processing of
records:
▪

Please search all locations and systems likely to have responsive records,
regardless of format, medium, or physical characteristics. For instance, if the
request seeks “communications,” please search all locations likely to contain
communications, including relevant hard-copy files, correspondence files,
appropriate locations on hard drives and shared drives, emails, text messages or
other direct messaging systems (such as iMessage, WhatsApp, Signal, or Twitter
direct messages), voicemail messages, instant messaging systems such as Lync or
ICQ, and shared messages systems such as Slack.

▪

Our request for records includes any attachments to those records or other
materials enclosed with those records when they were previously transmitted. To
the extent that an email is responsive to our request, our request includes all prior
messages sent or received in that email chain, as well as any attachments to the
email.

▪

Please search all relevant records or systems containing records regarding agency
business. Do not exclude records regarding agency business contained in files,
email accounts, or devices in the personal custody of your officials, such as
personal email accounts or text messages. Records of official business conducted

https://www.americanoversight.org/border-wall-investigation-report-no-plans-nofunding-no-timeline-no-wall.
12 DOJ Records Relating to Solicitor General Noel Francisco’s Recusal, American Oversight,
https://www.americanoversight.org/document/doj-civil-division-response-noel-franciscocompliance; Francisco & the Travel Ban: What We Learned from the DOJ Documents, American
Oversight, https://www.americanoversight.org/francisco-the-travel-ban-what-we-learnedfrom-the-doj-documents.
13 See generally Swamp Airlines: Chartered Jets at Taxpayer Expense, American Oversight,
https://www.americanoversight.org/investigation/swamp-airlines-private-jets-taxpayerexpense; see, e.g., New Information on Pompeo’s 2017 Trips to His Home State, American
Oversight, https://www.americanoversight.org/new-information-on-pompeos-2017-tripsto-his-home-state.

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using unofficial systems or stored outside of official files are subject to the Federal
Records Act and FOIA.14 It is not adequate to rely on policies and procedures that
require officials to move such information to official systems within a certain
period of time; American Oversight has a right to records contained in those files
even if material has not yet been moved to official systems or if officials have, by
intent or through negligence, failed to meet their obligations.15
▪

Please use all tools available to your agency to conduct a complete and efficient
search for potentially responsive records. Agencies are subject to government-wide
requirements to manage agency information electronically,16 and many agencies
have adopted the National Archives and Records Administration (NARA)
Capstone program, or similar policies. These systems provide options for searching
emails and other electronic records in a manner that is reasonably likely to be
more complete than just searching individual custodian files. For example, a
custodian may have deleted a responsive email from his or her email program, but
your agency’s archiving tools may capture that email under Capstone. At the same
time, custodian searches are still necessary; agencies may not have direct access to
files stored in .PST files, outside of network drives, in paper format, or in personal
email accounts.

▪

In the event some portions of the requested records are properly exempt from
disclosure, please disclose any reasonably segregable non-exempt portions of the
requested records. If a request is denied in whole, please state specifically why it is
not reasonable to segregate portions of the record for release.

▪

Please take appropriate steps to ensure that records responsive to this request are
not deleted by the agency before the completion of processing for this request. If
records potentially responsive to this request are likely to be located on systems
where they are subject to potential deletion, including on a scheduled basis, please
take steps to prevent that deletion, including, as appropriate, by instituting a
litigation hold on those records.

See Competitive Enter. Inst. v. Office of Sci. & Tech. Policy, 827 F.3d 145, 149–50
(D.C. Cir. 2016); cf. Judicial Watch, Inc. v. Kerry, 844 F.3d 952, 955–56 (D.C. Cir. 2016).
15 See Competitive Enter. Inst. v. Office of Sci. & Tech. Policy, No. 14-cv-765, slip op. at 8
(D.D.C. Dec. 12, 2016).
16 Presidential Memorandum—Managing Government Records, 76 Fed. Reg. 75,423
(Nov. 28, 2011), https://obamawhitehouse.archives.gov/the-pressoffice/2011/11/28/presidential-memorandum-managing-government-records; Office of
Mgmt. & Budget, Exec. Office of the President, Memorandum for the Heads of Executive
Departments & Independent Agencies, “Managing Government Records Directive,” M-1218 (Aug. 24, 2012), https://www.archives.gov/files/records-mgmt/m-12-18.pdf.
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Conclusion
If you have any questions regarding how to construe this request for records or believe
that further discussions regarding search and processing would facilitate a more efficient
production of records of interest to American Oversight, please do not hesitate to contact
American Oversight to discuss this request. American Oversight welcomes an opportunity
to discuss its request with you before you undertake your search or incur search or
duplication costs. By working together at the outset, American Oversight and your agency
can decrease the likelihood of costly and time-consuming litigation in the future.
Where possible, please provide responsive material in an electronic format by email.
Alternatively, please provide responsive material in native format or in PDF format on a
USB drive. Please send any responsive material being sent by mail to American Oversight,
1030 15th Street NW, Suite B255, Washington, DC 20005. If it will accelerate release of
responsive records to American Oversight, please also provide responsive material on a
rolling basis.
We share a common mission to promote transparency in government. American Oversight
looks forward to working with your agency on this request. If you do not understand any
part of this request, please contact Megan Field at foia@americanoversight.org or
(202) 897-2465. Also, if American Oversight’s request for a fee waiver is not granted in
full, please contact us immediately upon making such a determination.
Sincerely,

Austin R. Evers
Executive Director
American Oversight

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EXHIBIT 

Case 1:20-cv-02580 Document 1 Filed 09/15/20 Page 16 of 21

~

UNITED ST/JTES

1/ifl, POST/JL SERVICE

August 7, 2020

VIA ELECTRONIC MAIL: foia@americanoversight.org

Mr. Austin Evers
American Oversight
1030 15th Street NW, Suite 8255
Washington , D.C . 20005-1503

RE: Freedom of Information Act Request for Records - Case No. 2020-FPRO-01553
Dear Mr. Evers:
This responds to your Freedom of Information Act (FOIA) request dated July 29, 2020 in which
you seek access to Postal Service records concerning:
All calendars or calendar entries for Louis DeJoy including any calendars
maintained on behalf of Louis DeJoy , from June 15, 2020 through two weeks after
the date the search is conducted.
The FOIA affords requesters access to "agency records ." Agency records are records that are
either created or obtained by an agency and under agency control at the time of the FOIA
request. Agency records do not include personal records or records that are in the possession of
the Postal Service but over which the Postal Service does not exercise control. See 39 C.F.R. §
265.1 (b)(1 ). A court found that the chairman 's electronic calendar maintained on an agency
computer was not an agency record because it was created for the chairman's personal use and
included personal and business appointments, only a few employees had access to it for the
purpose of determining the chairman 's availability, and it was not intended to be an official record
of the chairman's schedule . Bloomberg, L.P. v. U.S. Sec. & Exch. Comm'n , 357 F.Supp.2d 156
(D.D.C. 2004). Here , the Postmaster General's electronic calendar maintained on a postal
computer was created for his personal use and contains personal and business appointments,
only a few employees have access to the Postmaster General's calendar for the purpose of
determining his availability , and it was not intended to be an official record of his schedule .
Therefore, the Postmaster General 's calendar and calendar entries are not agency records
subject to the FOIA.
If you are not satisfied with the response to this request, you may file an administrative appeal
within 90 days of the date of this response letter by writing to the General Counsel, U.S. Postal
Service, 475 L'Enfant Plaza SW, Washington, DC 20260 or via email at FOIAAppeal@usps .gov.
Your appeal must be postmarked or electronically transmitted within 90 days of the date of the
response to your request. The letter of appeal should include, as applicable :

4 75 L'ENFANT PLAZA, SW
WA SHINGTON,

DC 20260

WWW.USPS.COM

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-2-

(1) A copy of the request, of any notification of denial or other action, and of any other
related correspondence;

(2) The FOIA tracking number assigned to the request;

(3) A statement of the action, or failure to act, from which the appeal is taken;

(4) A statement identifying the specific redactions to responsive records that the
requester is challenging;

(5) A statement of the relief sought; and

(6) A statement of the reasons why the requester believes the action or failure to act is
erroneous.

For further assistance and to discuss any aspect of your request, you may contact the
undersigned or FOIA Public Liaison listed below:

PRIVACY AND RECORDS MANAGEMENT OFFICE
U.S. POSTAL SERVICE

475 PLAZA SW RM 1P830
WASHINGTON, DC 20260-1101

Phone: (202) 268-2608 Fax: (202) 268?5353

FOIA Public Liaison:
Name: Nancy Chavannes-Battle
Phone: (202) 268-2608

Additionally, you may contact the Office of Government Information Services (OGIS) at the
National Archives and Records Administration to inquire about the FOIA mediation services they
offer. The contact information for OGIS is as follows: Office of Government Information Services,
National Archives and Records Administration, 8601 Adelphi College Park, Maryland
20740-6001, e-mail at ogis@nara.gov; telephone at 202-741?5770; toll free at 1-877-684-6448; or
facsimile at 202-741-5769.

Sincerely,

W6 4%me

Emily Saunders
Executive Administrator to the Postmaster General

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EXHIBIT 

Case 1:20-cv-02580 Document 1 Filed 09/15/20 Page 19 of 21

August 14, 2020
VIA EMAIL
General Counsel
U.S. Postal Service
475 L’Enfant Plaza SW
Washington, DC 20260
FOIAAppeal@usps.gov
Re: Freedom of Information Act Request Appeal - FOIA Case No. 2020-FPRO-01553
Dear Appeals Officer:
Pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, and United States Postal
Service (USPS) regulations, 39 C.F.R. § 265, American Oversight submits the following
administrative appeal.
On July 29, 2020 American Oversight submitted a FOIA request to USPS seeking the following:
All calendars or calendar entries for Louis DeJoy including any
calendars maintained on behalf of Louis DeJoy, from June 15,
2020 through two weeks after the date the search is conducted.
American Oversight requests that the calendars be produced in
a format that includes all invitees, any notes, and all
attachments. Please do not limit your search to Outlook
calendars; we request the production of any calendar—paper
or electronic, whether on government-issued or personal
devices—used to track or coordinate how Mr. DeJoy
allocates his time on agency business.
The search would include any calendars associated with his
individual email account where he keeps track of official
business, as well as any official calendars maintained for him,
including by his administrative assistant or scheduler.
Ex. A (emphasis added).
On August 7, 2020, USPS responded to American Oversight’s request asserting that the
Postmaster General’s calendar and calendar entries were not “agency records” subject to FOIA,
stating that his “electronic calendar maintained on a postal computer,” which “contains
personal and business appointments,” and which “only a few employees have access to,” was
“created for his personal use.” Ex. B.
American Oversight appeals this response.
Preservation Hold

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American Oversight strongly disagrees with USPS’s determination that it has calendar files for
the Postmaster General that do not qualify as agency records, and American Oversight is
willing to pursue all legal avenues, including potential litigation, to ensure public access to
these public records of significant import.
USPS, and its agency head and employees, are consequently on notice that litigation is
reasonably foreseeable, and should institute a preservation hold to ensure that relevant
documents—here Postmaster DeJoy’s calendars on postal systems and devices, and any
calendars on private devices that have information related to USPS business—are preserved
and not deleted.
Inadequate Administrative Determination
As an initial matter, USPS’s response constitutes an inadequate administrative determination.
USPS supports its assertion that the requested records are not agency records merely by,
essentially, asserting the facts in a district court case are the same as the facts applicable to
this request. USPS does not identify who the “few employees” are who do access Postmaster
DeJoy’s calendar or describe how appointments with the head of this large federal agency are
maintained without any integrated calendar system. Despite the paucity of factual information
provided, American Oversight appeals on the basis of the facts available to it but reserves its
right to raise additional arguments on the basis of an adequate factual record.
It is Implausible that There Are No Agency Records Tracking or Allocating Postmaster
General DeJoy’s Time on Agency Business
American Oversight requested calendars and calendar entries maintained by or for Postmaster
DeJoy and specified that its request sought all records “used to track or coordinate how Mr.
DeJoy allocates his time on agency business.” Ex. A. Incredibly, USPS has responded that there
are no responsive agency records, asserting that Postmaster DeJoy maintains only a calendar
for “personal use,” and which is not intended to be an “official record of his schedule.” Ex. B.
This response is deficient on several counts.
First, the Federal Records Act requires agency heads, like Postmaster DeJoy, to “make and
preserve records containing adequate and proper documentation of the organization,
functions, policies, decisions, procedures, and essential transactions of [their] agency.” 44
U.S.C. § 3101 (emphasis added). Moreover, regulations promulgated by the Archivist of the
United States specifically require that, to meet these obligations, agencies must ensure the
“creation and maintenance of records that: ... Document the persons, places, things, or matters
dealt with by the agency ... [and] Make possible a proper scrutiny by the Congress or other duly
authorized agencies of the Government ... [and] Document important board, committee, or
staff meetings.” 36 C.F.R. § 1222.22.
Despite these mandates, USPS’s response to American Oversight’s request maintains that
Postmaster DeJoy has no official calendar whatsoever, and identifies no agency records “used
to track or coordinate how Mr. DeJoy allocates his time on agency business.” See Exs. A & B.
Instead, USPS asserts that the Postmaster General only has a calendar for “personal use.” Ex. B.
To the extent that this assertion were true, it would be clear evidence that head of USPS is
wantonly violating the Federal Records Act by failing to “make and preserve records” of
important agency business—namely, the schedule, meetings, priorities, and actions of the
agency’s highest-ranking official. See 44 U.S.C. § 3101.

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Second, the assertion that Postmaster DeJoy has only a calendar for “personal use,” that is
viewed and used only by a “few” agency employees is also simply factually implausible.
Postmaster DeJoy heads a massive federal agency with an annual budget of over $70 billion
and responsibility for critical public functions. It is beyond reasonable belief that there are no
agency records available to communicate and manage the complex schedule and
responsibilities of an agency head charged with such a herculean task. Common sense dictates
that USPS’s no records response constitutes a clear “positive indication[] of overlooked
materials” demonstrating the inadequacy of its search. Valencia-Lucena v. U.S. Coast Guard, 180
F.3d 321, 325 (D.C. Cir. 1999) (citations omitted).
Perhaps as a practical matter, Postmaster DeJoy’s meetings, appointments, and schedule are
maintained on the calendar of an assistant or secretary. If that is the case, those files are
responsive to American Oversight’s request and should be processed and produced. American
Oversight clearly requested calendars maintained by “or on behalf of” Postmaster DeJoy and
“any calendar [] used to track or coordinate how Mr. DeJoy allocates his time on agency
business” without limitation to which individual had actual custody of the records. Ex. A.
Further, the calendar maintained by Postmaster DeJoy “on a postal computer” containing
“personal and business appointments,” and accessed by employees “for the purpose of
determining his availability,” Ex. B., is an agency record subject to production under the FOIA
(particularly if, as USPS’s response suggests, this is the only record “used to track or coordinate
how Mr. DeJoy allocates his time on agency business”). This is particularly true given that
Postmaster DeJoy has put this calendar on an agency computer and where agency officials rely
on it to determine his availability. Tax Analysts v. U.S. Department of Justice, 845 F.2d 1060,
1069 (D.C.Cir.1988).
Conclusion
American Oversight appeals the USPS’s response to its FOIA request. Accordingly, American
Oversight requests that USPS (1) conduct a search reasonably calculated to uncover all
responsive records, (2) review each responsive document and produce any and all nonexempt
responsive records, or nonexempt portions of responsive records, and (3) justify the
withholding of any responsive records, or portions thereof, under the claim of exemption.
Thank you for your consideration of this appeal. As provided in 5 U.S.C. § 552(a)(6)(A)(ii), we
look forward to your determination on our appeal within twenty working days. For questions
regarding any part of this appeal or the underlying request for records, please contact Megan
Field at foia@americanoversight.org or 202.897.2465.
Sincerely,

Austin R. Evers
Executive Director
American Oversight
Attachments:
1. Exhibit A - American Oversight’s FOIA Request
2. Exhibit B - USPS’s August 7, 2020 Response

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