FOIA Appeal of Response 21-FOI-00090

January 11, 2022

SENT BY E-MAIL

XXXX
XXXX

Re: 2022-APP-00001; Appeal of Response 21-FOI-00090

Dear XXXX:

By correspondence of June 23, 2021, you submitted a Freedom of Information Act (FOIA) request (21-FOI-00090), requesting any and all of the following within the period of September 5, 2020 to December 31, 2020:

  • Minutes, memoranda, summaries and/or the like, memorializing any meeting and/or electronic communication which took place between XXXX, XXXX, XXXX, and XXXX, during which the obligations of XXXX, XXXX, and/or related entities (XXXX parties) were discussed;
  • Minutes, memoranda, summaries and the like, memorializing any meeting or electronic communication, including Zoom video meetings, between any of the XXXX parties and representatives of the NCUA, concerning the XXXX parties' debt obligations to the NCUA;
  • Contracts or agreements amending mortgages, assignments of rents and leases, security agreements, fixture filings and other loan documents by and between the XXXX parties and/or the NCUA; and
  • Between January 1, 2020 to December 31, 2020, correspondence to include electronic communications between the XXXX parties and/or representatives of the NCUA.

By letter of September 13, 2021, a senior attorney advisor in the National Credit Union Administration’s (NCUA) Office of General Counsel responded to your request and advised that your request was granted in part. 31 pages of publicly releasable responsive records were sent to you. We redacted the remaining records as exempt from release under the FOIA exemptions at 5 U.S.C. § 552(b)(4), (5), (6) and (8). The senior attorney advisor’s response explained that subsection (b)(4) (Exemption 4) protects from disclosure trade secrets and commercial or financial information obtained from a person, which is considered privileged or confidential. Subsection (b)(5) (Exemption 5) protects from disclosure inter-agency or intra-agency memorandums or letters (including communications also related to or involving deliberative process and attorney work-product) 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 its disclosure would constitute a clearly unwarranted invasion of personal privacy. Subsection (b)(8) (Exemption 8) protects matters that are contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions.

You have appealed this determination in a correspondence dated December 13, 2021.1 Your appeal is denied, as discussed more fully below.

Your appeal contends, without further discussion, that the “material sough[t] did not fall within the exemptions to production set out at [5 U.S.C. §552(b)(4), (5), (6) and (8)].” Upon review, we affirm the partial denial.

Exemption 5 is applicable in this case.2 Exemption 5 incorporates the privileges available to a governmental agency in civil litigation, notably the deliberative process privilege (sometimes called the executive privilege), the attorney-client privilege, and the attorney work product privilege.3 The deliberative process privilege is generally intended to “prevent injury to the quality of agency decisions.”4 The attorney-client privilege protects “confidential communications between an attorney and his client relating to a legal matter for which the client has sought professional advice.”5 The attorney work product privilege protects documents prepared by an attorney in contemplation of civil litigation,6 administrative proceedings,7 or criminal matters.8 It has also been held to cover documents “relat[ing] to possible settlements” of litigation.9 Communications and internal memoranda among agency staff deliberating legal matters and/or in contemplation of litigation or possible settlement was properly withheld under Exemption 5.

Exemptions 6 and 8 are also applicable. 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.”10 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 6.11 Here, redacted personally identifying information (e.g., name and email address) applies to particular agency personnel. Thus, the redacted personally identifying information qualifies for withholding under Exemption 6.

Exemption 8 provides for protection against release of information contained in “or related to” examination, operating or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions.12 Courts have interpreted Exemption 8 broadly and have declined to restrict its all-inclusive scope.13 The information you requested also meets this broad standard.

Finally, Exemption 4 remains available. Exemption 4 protects “commercial or financial information” obtained from a person14 that is “privileged or confidential.”15 Courts have held information as “commercial or financial” if it relates to business or trade.16 Records are commercial so long as the submitter has a “commercial interest” in them.17 The term “confidential” is given its “ordinary” meaning of “private” or “secret” for purposes of Exemption 4.18 The contract and loan information you requested is confidential commercial or financial information within the scope of Exemption 4.

For these reasons, your FOIA 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: ogis@nara.gov
Web: https://ogis.archives.gov
Telephone: 202.741.5770; Toll-free: 877.684.6448
Fax: 202.741.5769

 

Sincerely,

/s/

Frank Kressman
General Counsel

2022-APP-00001; 21-FOI-00090


Footnotes


1 Pursuant to 12 C.F.R. §792.28, this appeal was required to be filed by Sunday, December 12, 2021; however, we are considering it timely received on Monday December 13, 2021.

2 See 5 U.S.C. §552(b)(5).

3 Id.

4 NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151 (1975).

5 Mead Data Cent. Inc. v. U.S. Dep't of the Air Force, 566 F.2d 242, 252 (D.C. Cir. 1977).

6 See Hickman v. Taylor, 329 U.S. 495, 509-10 (1947).

7 See, e.g., Schoenman v. FBI, 573 F. Supp. 2d 119, 143 (D.D.C. 2008).

8 See, e.g., Rockwell Int'l Corp. v. DOJ, 235 F.3d 598, 604-05 (D.C. Cir. 2001).

9 Cities Serv. Co. v. FTC, 627 F. Supp. 827, 832 (D.D.C. 1984) (noting “attorney's notes or working papers which relate to . . . possible settlement discussions . . . are protected under the attorney work-product privilege”), aff'd, 778 F.2d 889 (D.C. Cir. 1985).

10 5 U.S.C. § 552(b)(6).

11 U.S. Dep’t of State v. Washington Post Co., 456 U.S. 595, 602 (1982).

12 5 U.S.C. §552(b)(8).

13 See Consumers Union of United States, Inc. v. Heimann, 589 F. 2d 531 (D.C. Cir. 1978).

14 The FOIA defines “person” as an “individual, partnership, corporation, association, or public or private organization other than an agency.” 5 U.S.C. § 551(2). A credit union is a “person” under the FOIA.

15 5 U.S.C. § 552(b)(4).

16 See, e.g., 100Reps. LLC v. DOJ, 248 F. Supp. 3d 115, 136 (D.D.C. 2017).

17 Wash. Post Co. v. HHS, 690 F.2d 252, 266 (D.C. Cir. 1982).

18 Food Marketing Institute v. Argus Leader Media, 139 S. Ct. 2356, 2363 (2019).

Last modified on
02/02/22