Postmaster General Louis DeJoy is one of the most important people in the country. He oversees a federal force of mail carriers tasked with delivering an unprecedented number of mail-in ballots, which Americans have requested in record numbers so they can safely vote in this fall’s election amid a pandemic that is devastating the U.S.
DeJoy has also faced extensive questions about conflicts of interest: from his work in the private sector, to his political ties to Donald Trump and the Republican Party, to allegations that he illegally used bonuses to reimburse employees for political donations.
So several members of Congress, along with good-government groups and HuffPost, have made a simple request of DeJoy: Reveal your calendar of appointments.
The schedules of federal officials are routinely made public. But the U.S. Postal Service is refusing, using legal arguments that aren’t likely to succeed, but could delay release until well after the election.
Rep. Alexandria Ocasio-Cortez, a New York Democrat, asked DeJoy to give a copy of his calendar appointments to the House Oversight and Reform Committee during a recent hearing, and the committee followed up with a subpoena when the Postal Service did not submit the calendar or other relevant documents sought by the committee. HuffPost filed a Freedom of Information Act request last month, which the USPS denied. DeJoy has created a calendar on a government computer, the letter says ― but it doesn’t belong to the agency.
A ‘Personal Record’ on a government computer
DeJoy’s history as a fundraiser for Trump and an executive at XPO Logistics, a supply distributor that holds USPS contracts, has raised Democrats’ concerns about political manipulation and conflicts of interest. One way to assess the level of outside influence in a government agency is to request copies of agency officials’ calendars under FOIA.
The USPS acknowledges in denial letters that DeJoy has an electronic calendar that was created on an agency computer. He uses it to conduct agency business. Some among the agency staff use it to check his availability. USPS ethics officers have complete access to the calendar to screen for conflicts of interest, DeJoy said last month when questioned by Ocasio-Cortez.
But the USPS says DeJoy’s calendar is a personal record.
FOIA doesn’t explicitly deal with the issue of calendars, but there is significant case law. To justify its denials, the USPS cites a 2004 ruling by U.S. District Judge Richard Leon. In that case, which went to court in the District of Columbia as the federal government transitioned from print to electronic record-keeping, Leon blocked Bloomberg News from obtaining an electronic calendar kept by the chairman of the Securities and Exchange Commission.
The calendar wasn’t intended to be an official record, and wasn’t distributed to his staff, the ruling says. USPS letters denying access to DeJoy’s calendar likewise say it “was not intended to be an official record of his schedule.”
But the Bloomberg case didn’t set a binding precedent. And other key decisions unmentioned by the USPS favor releasing officials’ calendars under FOIA as public records.
A 1984 ruling set the standard. That case, Bureau of National Affairs v. Department of Justice, considered whether former Attorney General William Baxter’s personal calendar and daily appointment logs were agency records or personal ones. The U.S. Court of Appeals for the D.C. Circuit ultimately found the daily logs were an agency record, but the calendar, which largely duplicated the information and served mainly to remind Baxter of his daily business, was not.
Two years after the 2004 Bloomberg case, the D.C. Circuit ordered the release of electronic calendars kept by several U.S. Department of Agriculture officials. It’s unclear why the USPS is relying on a lower court’s ruling that came to the opposite conclusion over a similar question two years earlier.
American Oversight, a liberal group that uses FOIA to disseminate government records, has routinely used the law to obtain calendars throughout the Trump administration, according to Dan McGrath, the group’s lead counsel for federal investigations. Only for DeJoy’s calendar has American Oversight received a denial citing the Bloomberg case, McGrath said.
“For a head of an agency to not have any record of their business we think is unreasonable,” McGrath said. “They can’t just not have any record of how officials are going to allocate their time.”
Running out the clock
In a year when the pandemic will drive millions of voters to use mail-in ballots, the geographic distribution of postal efficiency could easily decide the election. Yet four months ahead of Election Day, mail service flagged amid far-reaching changes from a politically connected appointee. It’s the type of scenario that freedom of information laws were designed for.
But the USPS doesn’t have to make rock-solid legal arguments to withhold DeJoy’s calendar, or any of the other records critics want to see, ahead of the election. Nov. 3 is less than two months away. FOIA allows for a weekslong administrative process to resolve disputes and appeals. Lawsuits often take years to settle. Documents like DeJoy’s calendar, which might shed light on the agency’s politicization, will likely stay out of the public eye until well after Election Day has passed.
That leaves only one likely option for the public to see what documents like DeJoy’s calendar reveal. On Wednesday, the House Oversight and Reform Committee subpoenaed the USPS for documents related to the delays and mail-in ballots, accusing the agency of withholding them. A USPS spokesperson disputed that, saying the agency had remained in touch with the committee.
It remains to be seen whether DeJoy and the USPS hand over the records Congress wants to see. If they don’t fully comply — which would not be a first for the Trump administration — Congress would then have to pursue contempt charges, likely sending the case back to federal court.
Congress in theory has the power to arrest people who defy subpoenas, but does not commonly use it. The committee could also, in theory, refer the matter to the U.S. Attorney’s Office for legal action if DeJoy were to disregard a subpoena.
But taking things that far would require support from the acting U.S. attorney for the District of Columbia. Attorney General William Barr took the unusual step appointing Michael Sherwin, one of his deputies, to head the D.C. U.S. Attorney’s Office in May.
Sherwin’s appointment, about two weeks after the USPS Board of Governors nominated DeJoy as postmaster general, prompted allegations that Barr had politicized an office handling multiple cases involving the president and his associates.