June 8, 2022
SENT BY E-MAIL
Re: 2022-APP-00004; Appeal of Response 2022-FOIA-00008
By correspondence of March 30, 2022, you submitted a Freedom of Information Act (FOIA) request (2022-FOIA-00008) for “a copy of the full report regarding my anti-harassment claim at NCUA.” Since your request involved information about yourself, we also processed it under the Privacy Act of 1974, if applicable.
By letter of May 12, 2022, a Senior Attorney and FOIA Officer (FOIA Officer) in the NCUA’s Office of General Counsel responded to your request and advised that your request was denied. The FOIA Officer’s response explained that the foreseeable harm standard was considered when reviewing records and applying FOIA exemptions. The FOIA Officer determined the withheld information is exempt from release under one or more of the statutory exemptions at 5 U.S.C. § 552(b)(2), (5), and (6). Subsection (b)(2) (Exemption 2) exempts from mandatory disclosure records that are related solely to the internal personnel rules and practices of an agency. Subsection (b)(5) (Exemption 5) protects interagency or intra-agency memoranda or letters which would not be available by law to a party other than an agency in litigation with the agency. Subsection (b)(6) (Exemption 6) protects information about individuals when the disclosure of such information would constitute a clearly unwarranted invasion of personal privacy.
In addition, the FOIA Officer explained that withheld information is exempt from release under the Privacy Act at 5 U.S.C. § 552a(d)(2)1 and (k)(2).2 Under the Privacy Act, the withholding of the records is required to protect certain civil or criminal law enforcement or investigatory actions, if any. Withheld information contains investigatory material of actual, potential, or alleged violations. Multiple courts have upheld the exemption for investigative records covering many purposes, such as discrimination complaints,3 and fraud, waste, and abuse complaints.4 The FOIA Officer further explained that withheld information could qualify as investigative and as compiled for law enforcement purposes under the Privacy Act (k)(2) exemption. Withheld information could contain investigatory material of actual, potential, or alleged criminal, civil, or administrative violations, compiled for law enforcement purposes (except under (j)(2)). Release of such information would impede or damage investigations or disclose security-sensitive or confidential business information or constitute an unwarranted invasion of third-party personal privacy.
You appealed this determination in a correspondence dated May 12, 2022. Upon a full and independent review, your appeal is denied, as discussed more fully below.
The FOIA provides that an agency may withhold responsive records if the agency reasonably foresees that disclosure would harm an interest protected by one of the nine exemptions that the FOIA enumerates or disclosure is prohibited by law.5
FOIA Exemption 2
Exemption 2 exempts from mandatory disclosure agency records that are “related solely to the internal personnel rules and practices of an agency.”6 The Supreme Court in Milner v. Department of the Navy set forth three elements that must be satisfied for information to fit within Exemption 2: (1) the information must be related to “personnel” rules and practices; (2) the information must relate “solely” to those personnel rules and practices; and (3) the information must be “internal.”7
Under Milner’s three-part test, “personnel” encompasses, for example, “‘the selection, placement, and training of employees and . . . the formulations of policies, procedures, and relations with [or involving] employees or their representatives,’”8 as well as rules “dealing with employee relations or human resources,” which “concern the conditions of employment in federal agencies—such matters as hiring and firing, work rules and discipline, compensation and benefits.”9 For purposes of the test’s second prong, the term “solely” is given its “usual” meaning, that is, “exclusively or only.”10 Under the third prong, the information must be “‘internal,’ meaning that ‘the agency must typically keep the records to itself for its own use.’”11 Courts have treated “agency procedures for the conduct of sexual harassment investigations” as predominantly “internal” for purposes of Exemption 2.12
In this case, the requested report “regarding [your] anti-harassment claim” consists of information that meets the Milner three-part test. The agency record you have requested is related to employee relations and human resource matters, the conditions of employment, and work rules and potential discipline. The report relates exclusively to those personnel matters. Per internal agency instruction,13 the requested report is an internal use document, prepared by an independent third-party factfinder to inform the NCUA Office of Ethics Counsel’s (OEC) inquiry, review, and recommendations on the matter, and for use by management in making a determination as to any appropriate remedies or corrective action. The record is marked and treated as confidential and kept for official internal agency use. Accordingly, the use of Exemption 2 is affirmed.
FOIA Exemption 5
Exemption 5 is also applicable. Exemption 5 incorporates the privileges available to a governmental agency in civil litigation, notably the deliberative process privilege, the attorney-client privilege, and the attorney work product privilege.14 The deliberative process privilege is generally intended to “prevent injury to the quality of agency decisions.”15 To qualify for the deliberative process privilege, an agency must show that the documents are both “pre-decisional” and “deliberative.” Records are pre-decisional when they precede an agency decision and are prepared in order to assist an agency in arriving at its decision, and documents are deliberative when they comprise part of the process by which government decisions are made.16 Records are protected under Exemption 5 where they “reflect the consultative process” underlying an agency’s decisions.17
The requested record is pre-decisional and deliberative and its disclosure will harm the agency’s decision-making process. The anti-harassment claim report that you requested is pre-decisional insofar as it was prepared by an independent third-party factfinder for assisting the agency in its investigation of your workplace harassment allegations and it preceded OEC’s findings as to whether unlawful harassment was substantiated in this case. The requested report also preceded management’s ultimate determination as to whether corrective action was warranted in this matter. The requested report is deliberative insofar as it reflects the consultative process between the independent third-party factfinder, OEC, and management in the course of the agency’s review of an active anti-harassment inquiry.
The recommendations and rationales contained in the record are the preliminary findings and recommendations of the independent third-party contractor and are not necessarily reflective of the agency’s own final determinations regarding your claim. Public release of the requested report would be harmful to the deliberative process in that confusion will result from disclosure of the report’s initial recommendations and findings by the third-party factfinder, which may or may not be consistent with the agency’s own final conclusions and recommended actions, if any.
Additionally, disclosure of the requested record would discourage the openness and frankness necessary for a full and thorough administrative inquiry of reports of harassing behavior. Courts have noted that “experience teaches that those who expect public dissemination of their remarks may well temper candor” to the detriment of agency decision-making.18
Recognizing the importance of candor in the investigation and review of sensitive harassment allegations, internal NCUA instruction provides that the agency will ensure the confidentiality of matters referred to its Anti-Harassment Program, to the greatest extent possible, in accordance with applicable law.19 Agency instruction also dictates that confidential information collected pursuant to the anti-harassment complaint process will generally only be shared with individuals who have an official need to know, due to the nature of the allegations or in order to determine appropriate action.20 Maintaining such confidentiality to the greatest extent possible is essential for ensuring confidence, trust, and candid participation in the NCUA’s anti-harassment process. Disclosure of the requested report would have a harmful chilling effect on the agency’s deliberative process by inhibiting the candor and transparency of those reporting or providing evidence of harassment, witnesses, and other participants involved in anti-harassment investigations and inquiries. Indeed, as one Court noted:
The disclosure of witnesses' names and the details of their factual statements about the charges of [harassment] allegedly perpetrated by the plaintiff does not reflect on the activities of the government in carrying out its mission. Disclosure would not significantly advance the public knowledge of government operations. More importantly, there is a very real public interest in encouraging cooperation and participation of agency employees in investigations of civil rights violations. The disclosure of their identifying information under FOIA would discourage that participation.21
In light of these reasonably foreseeable harms, the requested record was properly withheld pursuant to Exemption 5.
FOIA Exemption 6
The FOIA Officer was also correct in applying Exemption 6 in this case. Exemption 6 protects information about individuals in personnel and medical files and similar files when the disclosure of such information “would constitute a clearly unwarranted invasion of personal privacy.”22 Exemption 6 has been interpreted broadly, such that all information that “applies to a particular individual” meets the threshold requirement of falling within the category of “personnel and medical files and similar files” to warrant protection under Exemption 6.23 Courts have specifically noted that “the disclosure of the names of witnesses, plaintiff's co-workers, investigators, and other personnel mentioned in the reports of investigations, who have thus been implicated — directly or indirectly — in [workplace harassment] charges, would be extremely invasive of a well-recognized privacy interest.24 Here, the requested record contains personally identifying information applicable to the alleged harasser, particular witnesses, and other agency personnel and thus qualifies for withholding under Exemption 6.
Because FOIA Exemptions 2, 5, and 6 apply to justify the withholding of the record you requested, this response will not address the Privacy Act exemptions. As noted by the FOIA Officer in the May 12 response, however, Privacy Act exemptions (d)(2) and (k)(2) remain applicable as well.
For these reasons, your appeal is denied. Pursuant to 5 U.S.C. §552(a)(4)(B) of the FOIA, you may seek judicial review of this determination by filing suit against the NCUA. Such a suit may be filed in the United States District Court where you reside, where your principal place of business is located, the District of Columbia, or where the documents are located (the Eastern District of Virginia).
The 2007 FOIA amendments created the Office of Government Information Services (OGIS) to offer mediation services to resolve disputes between FOIA requesters and Federal agencies as a non-exclusive alternative to litigation. Using OGIS services does not affect your right to pursue litigation. You may contact OGIS in any of the following ways:
Office of Government Information Services
National Archives and Records Administration
8601 Adelphi Road - OGIS
College Park, MD 20740-6001 E-mail: firstname.lastname@example.org
Web: (opens new window)
Telephone: 202.741.5770; Toll-free: 877.684.6448
1 Subsection (d)(2) exempts from release investigative or evaluative records that could interfere with pending or prospective law enforcement proceedings, or could impose an impossible administrative and investigative or evaluative burden.
2 Subsection (k)(2) exempts from release records containing investigatory material compiled for law enforcement purposes other than material covered by the general law enforcement exemption.
3 See Menchu v. HHS, 965 F. Supp. 2d 1238, 1248 (D. Or. 2013).
4 See Gowan v. Air Force, 148 F.3d 1182, 1188-89 (10th Cir. 1998).
5 See 5 U.S.C. § 552(a)(8)(A)(i).
6 5 U.S.C. § 552(b)(2).
7 See Milner v. U.S. Dep't of the Navy, 562 U.S. 562, 570 & n.4 (2011).
8 Id. at 569.
10 Id. at 570 n.4
12 Sinsheimer v. DHS, 437 F. Supp. 2d 50, 56 (D.D.C. 2006).
13 See NCUA Instruction XXXX
14 See 5 U.S.C. § 552(b)(5).
15 NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151 (1975).
16 See Phillips v. Immigration and Customs Enforcement, 385 F. Supp. 2d 296 (S.D. N.Y. 2005).
17 Adamowicz v. IRS, 672 F. Supp. 2d 454, 469 (S.D.N.Y. 2009).
18 Machado Amadis v. United States Dep't of State, 971 F.3d 364, 371 (D.C. Cir. 2020) (quoting Sears at 150–51 (quotation marks omitted)).
19 See NCUA Instruction XXXX.
20 Id. pp. 3 & 7.
21 Sinsheimer at 56 (emphasis added).
22 5 U.S.C. § 552(b)(6).
23 U.S. Dep’t of State v. Washington Post Co., 456 U.S. 595, 602 (1982).
24 Sinsheimer at 56.