Whereas I have briefly been away from my computer, the Ninth Circuit has been busy as a beaver. And cranked out a half-dozen published opinions yesterday. With more from the California Court of Appeal.
Good for them. Glad to see that someone is working hard.
Though I was somewhat surprised by this opinion by Judge Leavy. When I read the beginning of the opinion, I was on board. Douglas Carlson submits a FOIA request that wants to know the addresses and hours and final collection times for all of the post offices in the United States. That seems fine to me, and I was surprised that the district court denied the request. I don't know why he wants it, but that information seems fairly relevant to a governmental mission. Maybe he's got a theory, I thought, regarding underserved locations. Or maybe he's just weird. Whatever. Just give him the stuff. No harm in it. And Judge Leavy was obviously going that same way. Good. You've got my -- meaningless -- vote as well.
But then I read the rest of the opinion. And it became clear that the only reason Carlson wants this data -- which he expressly demands in its electronic form as it appears on the USPS's web site -- is because he wants to establish a commercial web site that mirrors the USPS's. And since the web page for which he seeks the data is the USPS's most popular one, and one that gets a lot of traffic (and hence potential income for the USPS), the USPS doesn't want that. Which is why it invoked the commercial activity exception to FOIA.
Judge Leavy reverses the district court and orders production of the requested records. But, upon reflection, I'm not persuaded. Maybe in a different context I'd find the commercial activity exception inapplicable. Or if there was some protective provision that allowed production but not reproduction, maybe then I would find production warranted. But not here. It seems in this case simply that Carlson wants to make money through FOIA by replicating a commercial activity of the post office. And that's not my sense of what FOIA was (or is) designed to do.
Admittedly, I don't feel massively strongly about this. There are surely bigger problems in the world. But I might lean to affirming on this one. Notwithstanding the unanimous contrary opinion of Judges Leavy, Farris, and Boochever.
