PART 265—PRODUCTION OR DISCLOSURE OF MATERIAL OR INFORMATION 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. Source: 81 FR 86271, Nov. 30, 2016, unless otherwise noted. Subpart A—Procedures for Disclosure of Records Under the Freedom of Information Act § 265.1 General provisions. (a) Policy. http://about.usps.com/who-we-are/foia/welcome.htm. (2) Requests made by individuals for records about themselves under the Privacy Act of 1974, 5 U.S.C. 552a, are processed under part 266 of this chapter as well as under this subpart. (3) It is the policy of the Postal Service to make its official records available to the public to the maximum extent consistent with the public interest. This policy requires a practice of full disclosure of those records that are covered by the requirements of the FOIA, subject only to the specific exemptions required or authorized by law. The exemptions from mandatory disclosure for various types of records provided by 5 U.S.C. 552(b) and 39 U.S.C. 410(c) reflect the fact that under some circumstances, the public interest may be better served by leaving the disclosure of particular records to the discretion of the Postal Service rather than by requiring their disclosure. This Postal Service policy does not create any right enforceable in court. (4) Nothing in this subpart shall be construed to entitle any person, as of right, to any service or to the disclosure of any record to which such person is not entitled under the FOIA. (b) Definitions—(1) Record. record (A) Recorded, regardless of media, format, or physical characteristics, including electronic data; and (B) In the custody or control of the Postal Service. (ii) The definition of a record does not include any discrete, distinct, or segregable grouping of information created at the discretion of an employee primarily for the employee's convenience and not disclosed to other employees. The definition of a record is not the same as a “document;” a single “document” may be a single record or it may include multiple records and groupings of information that do not constitute records as defined in this section. (2) Component. component [82 FR 32767, July 18, 2017, amended at 83 FR 48235, Sept. 24, 2018] § 265.2 Proactive disclosure of Postal Service records. (a) In general. http://about.usps.com/who-we-are/foia/welcome.htm. (b) Records available in an electronic format. http://about.usps.com/who-we-are/foia/welcome.htm. (1) Opinions. http://about.usps.com/who-we-are/foia/welcome.htm. (2) Administrative manuals and instructions. http://about.usps.com/who-we-are/foia/welcome.htm. (3) Previously released records. (4) Public index. (ii) The index contains references to matters issued after July 4, 1967, and may reference matters issued prior to that date. (iii) Any person may arrange for the inspection of any matter in the public index in accordance with the procedures of § 265.3. (iv) Copies of the public index and of matters listed in the public index may be requested through the procedures described in § 265.3, with payment of any applicable fees. (v) Materials listed in the public index that were created on or after November 1, 1996, will also be available in electronic format at the Postal Service's Web site at http://about.usps.com/who-we-are/foia/welcome.htm. § 265.3 Procedure for submitting a FOIA request. (a) To whom submitted. http://about.usps.com/who-we-are/foia/welcome.htm. (b) Form of request. (c) Content of request. e.g., (d) First-party requests. (e) Third-party requests. e.g., (f) Improper requests. [81 FR 86271, Nov. 30, 2016, as amended at 83 FR 48235, Sept. 24, 2018] § 265.4 Responsibility for responding to requests. (a) In general. (b) Authority to grant or deny requests. (c) Receipt and tracking of requests. (d) Acknowledgments of requests. [81 FR 86271, Nov. 30, 2016, as amended at 82 FR 15139, Mar. 27, 2017] § 265.5 Timing of responses to requests. (a) In general. (b) Multitrack processing. (i) The request involves voluminous documents; (ii) The complexity of the material; (iii) The request involves record searches at multiple facilities or locations; (iv) The request requires consultation among components or other agencies; (v) The number of open requests submitted by the same requester. (2) Within each track, the Postal Service processes requests in the order in which they are received. When appropriate, the FOIA RSC or the component will notify the requester if it has placed the request in the “Complex” track, and provide the requester with an opportunity to limit the scope of the request. If the requester limits the scope of the request, it may result in faster processing. (c) Expedited processing. (i) Circumstances in which the lack of expedited processing could reasonably be expected to pose an imminent threat to the life or physical safety of an individual; (ii) An urgency to inform the public about an actual or alleged Federal Government activity, if made by a person who is primarily engaged in disseminating information. (2) A requester who seeks expedited processing must submit a statement, certified to be true and correct, explaining in detail the basis for making the request for expedited processing. For example, under paragraph (e)(1)(ii) of this section, a requester who is not a full-time member of the news media must establish that the requester is a person whose primary professional activity or occupation is information dissemination, though it need not be the requester's sole occupation. Such a requester also must establish a particular urgency to inform the public about the government activity involved in the request—one that extends beyond the public's right to know about government activity generally. The existence of numerous articles published on a given subject can be helpful in establishing the requirement that there be an “urgency to inform” the public on the topic. As a matter of administrative discretion, a component may waive the formal certification requirement. (3) A component shall notify the requester within 10 calendar days of the receipt of a request for expedited processing of its decision whether to grant or deny expedited processing. If expedited processing is granted, the request shall be given priority, placed in the processing track for expedited requests, and shall be processed as soon as practicable. If a request for expedited processing is denied, any appeal of that decision shall be acted on expeditiously (d) Unusual circumstances. (e) Aggregating requests. [81 FR 86271, Nov. 30, 2016, as amended at 82 FR 32767, July 18, 2017] § 265.6 Responses to requests. (a) Grants of requests. (b) Adverse determinations of requests. (c) Content of denial. (1) The name and title or position of the person responsible for the denial; (2) A brief statement of the reasons for the denial, including any FOIA exemption applied by the component in denying the request; (3) An estimate of the volume of any records or information withheld, such as the number of pages or some other reasonable form of estimation, although such an estimate is not required if the volume is otherwise indicated by deletions marked on records that are disclosed in part or if providing an estimate would harm an interest protected by an applicable exemption; and (4) A statement that the denial may be appealed under § 265.8, and a description of the requirements set forth therein. (5) A statement notifying the requester of his or her right to seek dispute resolution services from the FOIA Public Liaison or the Office of Government Information Services. (d) Markings on released documents. (e) Use of record exclusions. (2) Any component invoking an exclusion must maintain an administrative record of the process of invocation and approval of exclusion by OIP. [81 FR 86271, Nov. 30, 2016, as amended at 83 FR 48235, Sept. 24, 2018] § 265.7 Confidential commercial information obtained from submitters. (a) Definitions Confidential commercial information (2) Submitter (b) Designation of confidential commercial information. (c) When notice to submitters is required. (i) The requested information has been designated in good faith by the submitter as information considered protected from disclosure under Exemption 4; or (ii) The Postal Service has a reason to believe that the requested information may be protected from disclosure under Exemption 4, but has not yet determined whether the information is protected from disclosure under that exemption or any other applicable exemption. (2) The notice shall either describe the commercial information requested or include a copy of the requested records or portions of records containing the information. In cases involving a voluminous number of submitters, notice may be made by posting or publishing the notice in a place or manner reasonably likely to accomplish it. (d) Exceptions to submitter notice requirements. (1) The Postal Service determines that the information is exempt under the FOIA or 39 U.S.C. 410(c); (2) The information has been lawfully published or has been officially made available to the public; (3) Disclosure of the information is required by a statute other than the FOIA or by a Postal Service regulation; if disclosure is required by a Postal Service regulation and the submitter provided written justification for protection of the information under Exemption 4 at the time of submission or a reasonable time thereafter, advanced written notice of the disclosure must be provided to the submitter; or (4) The designation made by the submitter under paragraph (b) of this section appears obviously frivolous or overly broad, except that, in such cases, the component shall give the submitter written notice of any final decision to disclose the information and must provide that notice within a reasonable number of days prior to a specified disclosure date. (e) Opportunity to object to disclosure. (2) A submitter who fails to respond within the time period specified in the notice shall be considered to have no objection to disclosure of the information. Information received by the Postal Service after the date of any disclosure decision shall not be considered by the Postal Service. Any information provided by a submitter under this subpart may itself be subject to disclosure under the FOIA. The Postal Service must consider a submitter's objections and specific grounds for nondisclosure in deciding whether to disclose the requested information. (f) Determination that confidential treatment is warranted. (g) Notice of intent to disclose. (1) A statement of the reasons why each of the submitter's disclosure objections was not sustained; (2) A description or copy of the information to be disclosed; and (3) A specified disclosure date, which shall be a reasonable time subsequent to the notice. (h) Notice of FOIA lawsuit. (i) Requester notification. § 265.8 Administrative appeals. (a) Requirements for making an appeal. [email protected]. (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. (b) Adjudication of appeals. (2) An appeal ordinarily will not be adjudicated if the request becomes a matter of FOIA litigation. (3) On receipt of any appeal, the General Counsel, or his or her designee, must take appropriate action to ensure compliance with applicable classification rules. (c) Decisions on appeals. (d) When appeal is required. (e) Appeal procedures for the Office of the Inspector General. § 265.9 Fees. (a) In general. (b) Definitions. (1) Commercial-use requester (2) Direct costs (3) Search (4) Duplication (5) Review (6) Educational institution (7) Noncommercial scientific institution (8) Representative of the news media news (c) Charging fees. (1) Search. (ii) For each half hour spent by personnel searching for requested records, including electronic searches that do not require new programming, the fee shall be $21.00. (iii) Requesters shall be charged the direct costs associated with conducting any search that requires the creation of a new computer program to locate the requested records. Requesters shall be notified of the costs associated with creating such a program and must agree to pay the associated costs before the costs may be incurred. (iv) For requests that require the retrieval of records stored at a Federal records center operated by the National Archives and Records Administration (NARA), or other storage facility, additional costs may be charged for their retrieval. (2) Duplication. (3) Review. i.e., (d) Restrictions on charging fees. (2)(i) If a component fails to comply with the time limits in which to respond to a request, it may not charge search fees, or, in the instances of requests from requesters described in paragraph (d)(1) of this section, may not charge duplication fees. (ii) If a component has determined that unusual circumstances as defined by the FOIA apply and the component provided timely written notice to the requester in accordance with the FOIA, the component has an additional 10 days to respond to the request. (iii) If a component has determined that unusual circumstances as defined by the FOIA apply and more than 5,000 pages are necessary to respond to the request, the component may charge search fees, or, in the case of requesters described in paragraph (d)(1) of this section, may charge duplication fees if the following steps are taken: (A) The component provides timely written notice of unusual circumstances to the requester; and (B) The component discussed or made three good faith attempts to discuss via mail, email, or telephone how the requester could effectively limit the scope of the request in accordance with 5 U.S.C. 552(a)(6)(B)(ii). (iv) If a court has determined that exceptional circumstances exist, a failure to comply with the time limits shall be excused for the length of time provided by the court order. (3) No search or review fees will be charged for a quarter-hour period unless more than half of that period is required for search or review. (4) Except for requesters seeking records for a commercial use, components shall provide without charge: (i) The first 100 pages of duplication (or the cost equivalent for other media); and (ii) The first two hours of search. (5) When, after first deducting the 100 free pages (or its cost equivalent) and the first two hours of search, a total fee calculated under paragraph (c) of this section is $25.00 or less for any request, no fee will be charged. (e) Notice of anticipated fees in excess of $25.00. (2) In cases in which a requester has been notified that the actual or estimated fees are in excess of $25.00, the request shall not be considered received and further work will not be completed until the requester agrees in writing to pay the actual or estimated total fee, or designates some amount of fees the requester is willing to pay, or in the case of a noncommercial use requester who has not yet been provided with the requester's statutory entitlements, designates that the requester seeks only that which can be provided by the statutory entitlements. Components are not required to accept payments in installments. (3) If the requester has indicated a willingness to pay some designated amount of fees, but the component estimates that the total fee will exceed that amount, the component shall toll the processing of the request when it notifies the requester of the estimated fees in excess of the amount the requester has indicated a willingness to pay. The component shall inquire whether the requester wishes to revise the amount of fees the requester is willing to pay or modify the request. Once the requester responds, the time to respond will resume from where it was at the date of the notification. (4) Components shall make available their FOIA Public Liaison or other FOIA contact to assist any requester in reformulating a request to meet the requester's needs at a lower cost. (f) Charges for other services. (g) Aggregating requests. (h) Advance payments. i.e., (2) When a component determines or estimates that a total fee to be charged under this section will exceed $250.00, it may require that the requester make an advance payment up to the amount of the entire anticipated fee before beginning to process the request. A component may elect to process the request prior to collecting fees when it receives a satisfactory assurance of full payment from a requester with a history of prompt payment. (3) Where a requester has previously failed to pay a properly charged FOIA fee within 30 calendar days of the billing date, a component may require that the requester pay the full amount due on that prior request, and the component may require that the requester make an advance payment of the full amount of any anticipated fee before the component begins to process a new request or continues to process a pending request or any pending appeal. Where a component has a reasonable basis to believe that a requester has misrepresented the requester's identity in order to avoid paying outstanding fees, it may require that the requester provide proof of identity. (4) In cases in which a component requires advance payment, the request shall not be considered received and further work will not be completed until the required payment is received. If the requester does not pay the advance payment within 30 calendar days after the date of the component's fee determination, the request will be administratively closed. (i) Other statutes specifically providing for fees. (j) Requirements for waiver or reduction of fees. (i) Disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the Postal Service, and (ii) Disclosure of the information is not primarily in the commercial interest of the requester. (2) In deciding whether 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 Postal Service, components shall consider all four of the following factors: (i) The subject of the request must concern identifiable operations or activities of the Postal Service, with a connection that is direct and clear, not remote or attenuated. (ii) Disclosure of the requested records must be meaningfully informative about government operations or activities in order to be “likely to contribute” to an increased public understanding of those operations or activities. The disclosure of information that already is in the public domain, in either the same or a substantially identical form, would not contribute to such understanding where nothing new would be added to the public's understanding. (iii) The disclosure must contribute to the understanding of a reasonably broad audience of persons interested in the subject, as opposed to the individual understanding of the requester. A requester's expertise in the subject area as well as the requester's ability and intention to effectively convey information to the public shall be considered. A representative of the news media does not automatically satisfy this consideration. (iv) The public's understanding of the subject in question must be enhanced by the disclosure to a significant extent. (3) To determine whether disclosure of the requested information is primarily in the commercial interest of the requester, components shall consider the following factors: (i) Whether there is a commercial interest, as defined in paragraph (b)(1) of this section, that would be furthered by the requested disclosure. If so, then the requester will be given an opportunity to provide explanatory information regarding this consideration. (ii) Whether any identified commercial interest of the requester in disclosure outweighs the public interest, as defined in paragraph (j)(1)(i) of this section, in disclosure. If so, then the disclosure is primarily in the commercial interest of the requester. The component ordinarily shall presume that if a news media requester has satisfied the public interest standard, the public interest is the primary interest served by the requested disclosure. Disclosure to data brokers or others who merely compile and market government information for direct economic return shall not be presumed to primarily serve the public interest. (4) Where only some of the records to be released satisfy the requirements for a waiver of fees, a waiver shall be granted for those records. (5) Requests for a waiver or reduction of fees should be made when the request is first submitted to the component and should address the criteria referenced above. A requester may submit a fee waiver request at a later time so long as the underlying record request is pending or on administrative appeal. When a requester who has committed to pay fees subsequently asks for a waiver of those fees and that waiver is denied, the requester shall be required to pay any costs incurred up to the date the fee waiver request was received. [81 FR 86271, Nov. 30, 2016, as amended at 82 FR 2896, Jan. 10, 2017; 82 FR 12921, Mar. 8, 2017; 83 FR 48235, Sept. 24, 2018; 84 FR 56385, Oct. 22, 2019] Subpart B—Production or Disclosure in Federal and State Proceedings § 265.11 Compliance with subpoena duces tecum, court orders, and summonses. (a) Compliance with subpoena duces tecum. (2) Time, leave, and payroll records of postal employees are subject to production when a subpoena duces tecum or appropriate court order has been properly served. The custodian of the records may designate a postal employee to present the records. The presentation by a designee rather than the employee named in the subpoena or court order must meet with the approval of the attorneys for each side. In addition, such records may be released if authorized in writing by the employee. (3) If the subpoena involves a job-connected injury, the records are under the exclusive jurisdiction of the Office of Workers' Compensation Programs, Department of Labor. Requests for authorization to produce these records shall be addressed to: Office of Workers' Compensation Programs, U.S. Department of Labor, Washington, DC 20210-0001. Also notify the attorney responsible for the issuance of the subpoena or court order. (4) Employee medical records are primarily under the exclusive jurisdiction of the U.S. Civil Service Commission. The Commission has delegated authority to the Postal Service and to the Commission's Regional Directors to release medical information, in response to proper requests and upon competent medical advice, in accordance with the following criteria: (i) Except in response to a subpoena or court order, do not release any medical information about an employee to any non-Federal entity or individual without authorization from the employee. (ii) With authorization from the employee, the Area, Information Systems Service Center, or Chief Field Counsel will respond as follows to a request from a non-Federal source for medical information: (A) If, in the opinion of a Federal medical officer, the medical information indicates the existence of a malignancy, a mental condition, or other condition about which a prudent physician would hesitate to inform a person suffering from such a condition as to its exact nature and probable outcome, do not release the medical information to the employee or to any individual designated by him, except to a physician, designated by the employee in writing. If a subpoena or court order was issued, the responding official shall caution the moving party as to the possible dangers involved if the medical information is divulged. (B) If, in the opinion of a Federal medical officer, the medical information does not indicate the presence of any condition which would cause a prudent physician to hesitate to inform a person of the exact nature and probable outcome of his condition, release it in response to a subpoena or court order, or to the employee or to any person, firm, or organization he authorizes in writing. (C) If a Federal medical officer is not available, refer the request to the Civil Service Commission regional office with the medical certificates or other medical reports concerned. (5) Do not release any records containing information as to the employee's security or loyalty. (6) Honor subpoenas or court orders only when disclosure is authorized. (7) When authorized to comply with a subpoena duces tecum, do not leave the original records with the court. (b) [Reserved] § 265.12 Demands for testimony or records in certain legal proceedings. (a) Scope and applicability of this section. (i) Records contained in the files of the Postal Service; (ii) Information relating to records contained in the files of the Postal Service; or (iii) Information or records acquired or produced by the employee in the course of his or her official duties or because of the employee's official status. (2) This section does not create any right or benefit, substantive or procedural, enforceable by any person against the Postal Service. (3) This section does not apply to any of the following: (i) Any legal proceeding in which the United States is a party; (ii) A demand for testimony or records made by either House of Congress or, to the extent of matter within its jurisdiction, any committee or subcommittee of Congress; (iii) An appearance by an employee in his or her private capacity in a legal proceeding in which the employee's testimony does not relate to the employee's official duties or the functions of the Postal Service; or (iv) A demand for testimony or records submitted to the Postal Inspection Service (a demand for Inspection Service records or testimony will be handled in accordance with rules in § 265.13). (4) This section does not exempt a request from applicable confidentiality requirements, including the requirements of the Privacy Act, 5 U.S.C. 552a. (b) Definitions. (1) Adjudicative authority (i) A court of law or other judicial forums, whether local, state, or federal; and (ii) Mediation, arbitration, or other forums for dispute resolution. (2) Demand (3) Employee (4) General Counsel (5) Legal proceeding (i) A proceeding before an adjudicative authority; (ii) A legislative proceeding, except for a proceeding before either House of Congress or before any committee or subcommittee of Congress; or (iii) An administrative proceeding. (6) Private litigation (7) Records custodian (8) Testimony (9) United States (c) Requirements for submitting a demand for testimony or records. (2) A demand for testimony or records issued pursuant to the rules governing the legal proceeding in which the demand arises must: (i) Be in writing; (ii) Identify the requested record and/or state the nature of the requested testimony, describe the relevance of the record or testimony to the proceeding, and why the information sought is unavailable by any other means; and (iii) If testimony is requested, contain a summary of the requested testimony and a showing that no document could be provided and used in lieu of testimony. (3) Procedures for service of demand are made as follows: (i) Service of a demand for testimony or records (including, but not limited to, personnel or payroll information) relating to a current or former employee must be made in accordance with the applicable rules of civil procedure on the employee whose testimony is requested or the records custodian. The requester also shall deliver a copy of the demand to the District Manager, Customer Services and Sales, for all current employees whose work location is within the geographic boundaries of the manager's district, and any former employee whose last position was within the geographic boundaries of the manager's district. A demand for testimony or records must be received by the employee whose testimony is requested and the appropriate District Manager, Customer Services and Sales, at least ten (10) working days before the date the testimony or records are needed. (ii) Service of a demand for testimony or records other than those described in paragraph (c)(3)(i) of this section must be made in accordance with the applicable rules of civil procedure on the employee whose testimony is requested or the records custodian. The requester also shall deliver a copy of the demand to the General Counsel, United States Postal Service, 475 L'Enfant Plaza SW., Washington DC 20260-1100, or the Chief Field Counsel. A demand for testimony or records must be received by the employee and the General Counsel or Chief Field Counsel at least ten (10) working days before the date testimony or records are needed. (d) Procedures followed in response to a demand for testimony or records. (2) An employee may not give testimony or produce records without the prior authorization of the General Counsel. (3)(i) The General Counsel may allow an employee to testify or produce records if the General Counsel determines that granting permission: (A) Would be appropriate under the rules of procedure governing the matter in which the demand arises and other applicable laws, privileges, rules, authority, and regulations; and (B) Would not be contrary to the interest of the United States. The interest of the United States includes, but is not limited to, furthering a public interest of the Postal Service and protecting the human and financial resources of the United States. (ii) An employee's testimony shall be limited to the information set forth in the statement described at paragraph (c)(2) of this section or to such portions thereof as the General Counsel determines are not subject to objection. An employee's testimony shall be limited to facts within the personal knowledge of the employee. A Postal Service employee authorized to give testimony under this rule is prohibited from giving expert or opinion testimony, answering hypothetical or speculative questions, or giving testimony with respect to privileged subject matter. The General Counsel may waive the prohibition of expert testimony under this paragraph only upon application and showing of exceptional circumstances and the request substantially meets the requirements of this section. (4) The General Counsel may establish conditions under which the employee may testify. If the General Counsel authorizes the testimony of an employee, the party seeking testimony shall make arrangements for the taking of testimony by those methods that, in the General Counsel's view, will least disrupt the employee's official duties. For example, at the General Counsel's discretion, testimony may be provided by affidavits, answers to interrogatories, written depositions, or depositions transcribed, recorded, or preserved by any other means allowable by law. (5) If a response to a demand for testimony or records is required before the General Counsel determines whether to allow an employee to testify, the employee or counsel for the employee shall do the following: (i) Inform the court or other authority of the regulations in this section; and (ii) Request that the demand be stayed pending the employee's receipt of the General Counsel's instructions. (6) If the court or other authority declines the request for a stay, or rules that the employee must comply with the demand regardless of the General Counsel's instructions, the employee or counsel for the employee shall respectfully decline to comply with the demand, citing United States ex rel. Touhy Ragen, (7) The General Counsel may request the assistance of the Department of Justice or a U.S. Attorney where necessary to represent the interests of the Postal Service and the employee. (8) At his or her discretion, the General Counsel may grant a waiver of any procedure described by this section, where waiver is considered necessary to promote a significant interest of the United States or for other good cause. (9) If it otherwise is permissible, the records custodian may authenticate, upon the request of the party seeking disclosure, copies of the records. No employee of the Postal Service shall respond in strict compliance with the terms of a subpoena duces tecum unless specifically authorized by the General Counsel. (e) Postal Service employees as expert witnesses. (f) Substitution of Postal Service employees. (g) Fees and costs. (i) Costs of time spent by employees, including attorneys, of the Postal Service to process and respond to the demand; (ii) Costs of attendance of the employee and agency attorney at any deposition, hearing, or trial; (iii) Travel costs of the employee and agency attorney; (iv) Costs of materials and equipment used to search for, process, and make available information. (2) All costs for employee time shall be calculated on the hourly pay of the employee (including all pay, allowance, and benefits) and shall include the hourly fee for each hour, or portion of each hour, when the employee is in travel, in attendance at a deposition, hearing, or trial, or is processing or responding to a request or demand. (3) At the discretion of the Postal Service, where appropriate, costs may be estimated and collected before testimony is given. (h) Acceptance of service. § 265.13 Compliance with subpoenas, summonses, and court orders by postal employees within the Postal Inspection Service where the Postal Service, the United States, or any other Federal agency is not a party. (a) Applicability of this section. (1) Proceedings where the United States, the Postal Service, or any other Federal agency is a party; (2) Congressional requests or subpoenas for testimony or documents; (3) Consultative services and technical assistance rendered by the Inspection Service in executing its normal functions; (4) Employees serving as expert witnesses in connection with professional and consultative services under 5 CFR part 7001, provided that employees acting in this capacity must state for the record that their testimony reflects their personal opinions and should not be viewed as the official position of the Postal Service; (5) Employees making appearances in their private capacities in proceedings that do not relate to the Postal Service ( e.g., (6) When in the opinion of the Counsel or the Counsel's designee, Office of the Chief Postal Inspector, it has been determined that it is in the best interest of the Inspection Service or in the public interest. (b) Purpose and scope. (c) Definitions. (1) Authorizing official (2) Case matter (3) Demand (4) Document (5) Employee Inspection Service employee, (6) Inspection Service (7) Inspection Service Legal Counsel (8) Inspection Service Manual (9) Nonpublic (10) Official case file (11) Postal Inspector reports (12) Testify testimony (13) Third-party action (d) Policy. (i) The Postal Inspector in Charge of the affected field Division, or designee, for Division personnel and records, after that official has determined through consultation with Inspection Service legal counsel that no legal objection, privilege, or exemption applies to such testimony or production of documents. (ii) The Chief Postal Inspector or designee for Headquarters employees and records, after that official has determined through consultation with Inspection Service legal counsel, that no legal objection, privilege, or exemption applies to such testimony or production of documents. (2) Consideration shall be given to: (i) Statutory restrictions, as well as any legal objection, exemption, or privilege that may apply; (ii) Relevant legal standards for disclosure of nonpublic information and documents; (iii) Inspection Service rules and regulations and the public interest; (iv) Conservation of employee time; and (v) Prevention of the expenditure of Postal Service resources for private purposes. (3) If additional information is necessary before a determination can be made, the authorizing official may, in coordination with Inspection Service legal counsel, request assistance from the Department of Justice. (e) Compliance with subpoena duces tecum. duces tecum (2) Do not release any record containing information relating to an employee's security or loyalty. (3) Honor subpoenas and court orders only when disclosure is authorized. (4) When authorized to comply with a subpoena duces tecum (5) Postal Inspector reports are considered to be confidential internal documents and shall not be released unless there is specific authorization by the Chief Postal Inspector or the Inspector in Charge of the affected field Division, after consulting with Inspection Service legal counsel. (6) The Inspection Service Manual and other operating instructions issued to Inspection Service employees are considered to be confidential and shall not be released unless there is specific authorization, after consultation with Inspection Service legal counsel. If the requested information relates to confidential investigative techniques, or release of the information would adversely affect the law enforcement mission of the Inspection Service, the subpoenaed official, through Inspection Service legal counsel, may request an in camera, ex parte (7) Notes, memoranda, reports, transcriptions, whether written or recorded and made pursuant to an official investigation conducted by a member of the Inspection Service, are the property of the Inspection Service and are part of the official case file, whether stored with the official file. (f) Compliance with summonses and subpoenas ad testificandum. (2) Postal Inspector reports or records will not be presented during testimony, in either state or federal courts in which the United States, the Postal Service, or another federal agency is not a party in interest, unless authorized by the Chief Postal Inspector or the Postal Inspector in Charge of the affected field Division, who will make the decision after consulting with Inspection Service legal counsel. If an attempt is made to compel production, through testimony, the employee is directed to decline to produce the information or matter and to state that it may be exempted and may not be disclosed or produced without the specific approval of the Chief Postal Inspector or the Postal Inspector in Charge of the affected field Division. The Postal Service will offer all possible assistance to the courts, but the question of disclosing information for which an exemption may be claimed is a matter of discretion that rests with the appropriate official. Paragraph (e) of this section covers the release of Inspection Service documents in cases where the Postal Service or the United States is not a party. (g) General procedures for obtaining Inspection Service documents and testimony from Inspection Service employees. (2) Before or simultaneously with service of a demand described in paragraph (g)(1) of this section, the requesting party shall serve on the Counsel, Office of the Chief Postal Inspector, 475 L'Enfant Plaza SW., Washington, DC 20260-2101, an affidavit or declaration containing the following information: (i) The title of the case and the forum where it will be heard; (ii) The party's interest in the case; (iii) The reasons for the demand; (iv) A showing that the requested information is available, by law, to a party outside the Postal Service; (v) If testimony is sought, a summary of the anticipated testimony; (vi) If testimony is sought, a showing that Inspection Service records could not be provided and used in place of the requested testimony; (vii) The intended use of the documents or testimony; and (viii) An affirmative statement that the documents or testimony is necessary for defending or prosecuting the case at issue. (3) The Counsel, Office of the Chief Postal Inspector, shall act as agent for the receipt of legal process for demands for production of records or testimony of Inspection Service employees where the United States, the Postal Service, or any other federal agency is not a party. A subpoena for testimony or for the production of documents from an Inspection Service employee concerning official matters shall be served in accordance with the applicable rules of civil procedure. A copy of the subpoena and affidavit or declaration, if not previously furnished, shall also be sent to the Chief Postal Inspector or the appropriate Postal Inspector in Charge. (4) Any Inspection Service employee who is served with a demand shall promptly inform the Chief Postal Inspector, or the appropriate Postal Inspector in Charge, of the nature of the documents or testimony sought and all relevant facts and circumstances. (h) Authorization of testimony or production of documents. (2) Before authorizing the requested testimony or the production of documents, the Chief Postal Inspector or the Postal Inspector in Charge of the affected field Division shall consider the following factors: (i) Statutory restrictions, as well as any legal objection, exemption, or privilege that may apply; (ii) Relevant legal standards for disclosure of nonpublic information and documents; (iii) Inspection Service rules and regulations and the public interest; (iv) Conservation of employee time; and (v) Prevention of expenditures of government time and resources solely for private purposes. (3) If, in the opinion of the authorizing official, the documents should not be released or testimony should not be furnished, that official's decision is final. (4) Inspection Service legal counsel may consult or negotiate with the party or the party's counsel seeking testimony or documents to refine and limit the demand, so that compliance is less burdensome, or obtain information necessary to make the determination whether the documents or testimony will be authorized. If the party or party's counsel seeking the documents or testimony fails to cooperate in good faith, preventing Inspection Service legal counsel from making an informed recommendation to the authorizing official, that failure may be presented to the court or other body conducting the proceeding as a basis for objection. (5) Permission to testify or to release documents in all cases will be limited to matters outlined in the affidavit or declaration described in paragraph (g)(2) of this section or to such parts as deemed appropriate by the authorizing official. (6) If the authorizing official allows the release of documents or testimony to be given by an employee, arrangements shall be made for the taking of testimony or receipt of documents by the least disruptive methods to the employee's official duties. Testimony may, for example, be provided by affidavits, answers to interrogatories, written depositions, or depositions transcribed, recorded, or preserved by any other means allowable by law. (i) While giving a deposition, the employee may, at the option of the authorizing official, be represented by Inspection Service legal counsel. (ii) While completing affidavits, or other written reports or at any time during the process of preparing for testimony or releasing documents, the employee may seek the assistance of Inspection Service legal counsel. (7) Absent written authorization from the authorizing official, the employee shall respectfully decline to produce the requested documents, testify, or, otherwise, disclose the requested information. (8) If the authorization is denied or not received by the return date, the employee, together with counsel, where appropriate, shall appear at the stated time and place, produce a copy of this section, and respectfully decline to testify or produce any document on the basis of the regulations in this section. (9) The employee shall appear as ordered by the subpoena, summons, or other appropriate court order, unless: (i) Legal counsel has advised the employee that an appearance is inappropriate, as in cases where the subpoena, summons, or other court order was not properly issued or served, has been withdrawn, discovery has been stayed; or (ii) Where the Postal Service will present a legal objection to furnishing the requested information or testimony. (i) Inspection Service employees as expert or opinion witnesses. (j) Postal liability. (k) Fees. (2) Unless limited by statute, such costs shall also include reimbursement to the Postal Service for the usual and ordinary expenses attendant upon the employee's absence from his or her official duties in connection with the case or matter, including the employee's salary and applicable overhead charges, and any necessary travel expenses as follows: (i) The Inspection Service is authorized to charge reasonable fees to parties demanding documents or information. Such fees, calculated to reimburse the Postal Service for the cost of responding to a demand, may include the costs of time expended by Inspection Service employees, including attorneys, to process and respond to the demand; attorney time for reviewing the demand and for legal work in connection with the demand; expenses generated by equipment used to search for, produce, and copy the requested information; travel costs of the employee and the agency attorney, including lodging and per diem where appropriate. Such fees shall be assessed at the rates and in the manner specified in § 265.9. (ii) At the discretion of the Inspection Service where appropriate, fees and costs may be estimated and collected before testimony is given. (iii) The provisions in this section do not affect rights and procedures governing public access to official documents pursuant to the Freedom of Information Act, 5 U.S.C 552. (l) Acceptance of service. Subpart C—Availability of Records § 265.14 Rules concerning specific categories of records. (a) Records available to the public on request. (b) Information not subject to mandatory public disclosure. (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. (c) Records or information compiled for law enforcement purposes. (i) Could reasonably be expected to interfere with enforcement proceedings; (ii) Would deprive a person of a right to a fair trial or an impartial adjudication; (iii) Could reasonably be expected to constitute an unwarranted invasion of personal privacy; (iv) 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 a record or information compiled by a criminal law enforcement authority (such as the Postal Inspection Service) in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source; (v) 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; or (vi) Could reasonably be expected to endanger the life or physical safety of any individual. (2) Whenever a request is made which involves access to records that could reasonably be expected to interfere with law enforcement proceedings, and (i) The investigation or proceeding involves a possible violation of criminal law; and (ii) There is reason to believe that, (A) The subject of the investigation or proceeding is not aware of its pendency, and (B) Disclosure of the existence of the records could reasonably be expected to interfere with enforcement proceedings, the Postal Service may, during only such time as that circumstance continues, treat the records as not subject to the requirements of the Freedom of Information Act. (3) Whenever informant records maintained by a criminal law enforcement agency (such as the Postal Inspection Service) under an informant's name or personal identifier are requested by a third party according to the informant's name or personal identifier, the records may be treated as not subject to the requirements of the Freedom of Information Act unless the informant's status as an informant has been officially confirmed. (4) Authority to disclose records or information compiled for law enforcement purposes to persons outside the Postal Service must be obtained from the Chief Postal Inspector, U.S. Postal Service, Washington, DC 20260-2100, or designee. (d) Disclosure of names and addresses of specifically identified Postal Service customers. (1) Change of address. (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. (3) Name and address of postage evidencing user. (4) Post Office boxholder information. Application for Post Office Box or Caller Service, (i) Except as provided in paragraph (d)(4)(iii) of this section, the boxholder applicant name and address from PS Form 1093 will be provided only in those circumstances stated in paragraphs (d)(5)(i) through (iii) of this section. (ii) Except as provided in paragraph (d)(4)(iii) of this section, the names of persons listed as receiving mail, other than the boxholder applicant, will be furnished from PS Form 1093 only in those circumstances stated in paragraphs (d)(5)(i) and (iii) of this section. (iii) When a copy of a protective order has been filed with the postmaster, information from PS Form 1093 will not be disclosed except pursuant to the order of a court of competent jurisdiction. (5) Exceptions. (i) To a Federal, State or local government agency upon prior written certification that the information is required for the performance of its duties. The Postal Service requires government agencies to use the format appearing at the end of this section when requesting the verification of a customer's current address or a customer's new mailing address. If the request lacks any of the required information or a proper signature, the postmaster will return the request to the agency, specifying the deficiency in the space marked `OTHER'. A copy of PS Form 1093 may be provided. (ii)(A) To a person empowered by law to serve legal process, or the attorney for a party in whose behalf service will be made, or a party who is acting pro se 1 1 pro se ( 1 ( 2 pro se; ( 3 ( 4 ( 5 ( 6 e.g., (B) By submitting such information, the requester certifies that it is true. The address of an individual who files with the postmaster a copy of a protective court order will not be disclosed except as provided under paragraphs (d)(5)(i), (iii), or (iv) of this section. A copy of Form 1093 will not be provided. The Postal Service suggests use of the standard format appearing at the end of this section when requesting information under this paragraph. When using the standard format on the submitter's own letterhead, the standard format must be used in its entirety. The warning statement and certification specifically must be included immediately before the signature block. If the request lacks any of the required information or a proper signature, the postmaster will return it to the requester specifying the deficiency. (iii) In compliance with a subpoena or court order, except that change of address or boxholder information which is not otherwise subject to disclosure under these regulations may be disclosed only pursuant to a court order. (iv) To a law enforcement agency, for oral requests made through the Inspection Service, but only after the Inspection Service has confirmed that the information is needed in the course of a criminal investigation. (All other requests from law enforcement agencies should be submitted in writing to the postmaster as in paragraph (d)(5)(i) of this section.) (6) Jury service. (7) Address verification. (8) Business/Residence location. (9) Private mailbox information. Application for Delivery of Mail Through Agent, (i) Except as provided in paragraph (d)(9)(iii) of this section, information from PS Form 1583 will be provided only in the circumstance stated in paragraph (d)(5)(iii) of this section. (ii) To the public only for the purpose of identifying a particular address as an address of an agent to whom mail is delivered on behalf of other persons. No other information, including, but not limited to, the identities of persons on whose behalf agents receive mail, may be disclosed to the public from PS Form 1583. (iii) Information concerning an individual who has filed a protective court order with the postmaster will not be disclosed except pursuant to the order of a court of competent jurisdiction. (e) Information not available for public disclosure. (2) Records or other documents which are classified or otherwise specifically authorized by Executive Order 12356 and implementing regulations to be kept secret in the interest of the national defense or foreign policy are not subject to disclosure pursuant to this part. (3) Records consisting of trade secrets or confidential financial data, the disclosure of which is prohibited by 18 U.S.C. 1905, are not subject to disclosure pursuant to this part. (4) Other records, the disclosure of which is prohibited by statute, are not subject to disclosure pursuant to this part. (f) Protection of the right of privacy. (g) Disclosure in part of otherwise exempt record. [81 FR 86271, Nov. 30, 2016, as amended at 82 FR 12921, Mar. 8, 2017; 82 FR 32767, July 18, 2017; 83 FR 9433, Mar. 6, 2018; 83 FR 48236, Sept. 24, 2018]