May 13, 2019
SENT BY E-MAIL
On December 10, 2018, the Consumer Financial Protection Bureau (CFPB) referred part of your Freedom of Information Act (FOIA) request to the National Credit Union Administration (NCUA). You requested data within the fields “TS Name,” “TS Phone Number,” and “TS Fax,” or Data Items 17-19, from the Federal Reserve’s HMDA Loan/Application Register Transmittal Sheet.
By letter of March 1, 2019, a senior attorney advisor in the NCUA’s Office of General Counsel responded to your request and advised that your request was denied. Sixteen pages of records were withheld as exempt from FOIA release under the exemption at 5 U.S.C. §552(b)(6). The senior attorney advisor’s response explained that Exemption 6 protects information about individuals when its disclosure would constitute a clearly unwarranted invasion of personal privacy.
You appealed this determination in a correspondence dated April 15, 2019. Your appeal is denied, as discussed more fully below.
In your appeal, you noted that the CFPB and the Federal Reserve, both considering similar requests, determined to grant your request for the three fields from the HMDA Transmittal Sheets. You referenced the CFPB’s conclusion that Data Items 17-19 (TS name, TS Phone, and TS Fax) were not properly withheld under Exemption 6 because the FOIA public interest in knowing how the government processes and verifies HMDA data outweighed the privacy interest in individuals’ business contact information.
Your appeal also argued that the ability to contact the credit union’s contact person about questions related to HMDA data should not be limited to only agency personnel but should include researchers, economists, and the public when needed. Further, you asserted that you have been using the data for the past nineteen years to generate market share information on mortgage companies that are merged with their affiliates and the Transmittal Sheet data is often wrong. You have indicated that you hope to analyze discrepancies in the HMDA data that could arise from failure to cap the loan amount field and Data Items 17-19 would be helpful to you in that pursuit.
We note at the outset that the NCUA is not bound by another federal regulatory agency’s appeal determination.1 Upon review, we find that the requested Data Items 17-19 (TS name, TS Phone, and TS Fax) were properly withheld.
Our March 1 letter explained that the requested information in the three fields from the HMDA Transmittal Sheets was withheld based on Exemption 6 of the FOIA. Under the FOIA, 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.”2
Determining whether information warrants protection under Exemption 6 requires a four-step analysis: (1) determine whether the information is a personnel, medical, or “similar” file;3 (2) determine whether there is a significant privacy interest in the requested information;4 (3) evaluate the requester’s asserted FOIA public interest in disclosure;5 and (4) if there is a significant privacy interest in non-disclosure and a FOIA public interest in disclosure, balance those competing interests to determine whether disclosure “would constitute a clearly unwarranted invasion of personal privacy.”6
The Supreme Court has emphasized that Exemption 6 should be interpreted broadly, and 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 6.7 Here, the requested information, TS name, TS Phone, and TS Fax, applies to a particular individual employed at a credit union. Thus, the threshold requirement is satisfied. Moreover, there is a significant privacy interest in the requested information. Personally identifying information such as a person’s name, address, phone number,8 and job title has been found to implicate a substantial privacy interest cognizable under the FOIA.9
Since a substantial privacy interest may be infringed by the disclosure of Data Items 17-19, the third step of the analysis requires the assessment of the FOIA public interest in disclosure.
Information that serves the “basic purpose” of the FOIA to “open agency action to the light of public scrutiny” constitutes a FOIA public interest in disclosure.10 For instance, information that informs the public about “an agency's performance of its statutory duties falls squarely within that statutory purpose.”11 When disclosure of information could result in the invasion of personal privacy, the burden is on the requester to establish that disclosure would serve a FOIA public interest.12
As discussed above, your appeal indicates that you have in the past used the requested data to generate market share information on mortgage companies that are merged with their affiliates and you contend that members of the public, including researchers and economists, should have the ability to contact the credit union’s contact person with questions about the credit union’s HMDA data. You argue that the Transmittal Sheet data is often wrong and the ability to contact the credit union’s contact person would help you to analyze potential discrepancies in the HMDA data.
We are not persuaded that your appeal has established that disclosure of Data Items 17-19 would serve a FOIA public interest. The proper approach for determining whether there is a FOIA public interest in disclosure is to evaluate “the nature of the requested document and its relationship to ‘the basic purpose of the [FOIA]’” to open agency action to the light of public scrutiny.13 Indeed, “the operative inquiry in determining whether disclosure of a document implicating privacy issues is warranted is the nature of the requested document itself, not the purpose for which the document is being requested.”14
The information at issue in this appeal is from the HMDA Loan/Application Register Transmittal Sheet, which requires submitters to provide the “name, telephone number, [and] facsimile number” of “a person who may be contacted about questions regarding your register.”15 Your appeal explained that your purpose for obtaining the requested information is to have the ability to contact a credit union’s contact person in case of discrepancies in the credit union’s HMDA submission but you have provided no information about how disclosure of this requested information would advance a FOIA public interest. Knowing the name, telephone number, and fax number of a person to contact with questions about submitted data does not, in and of itself, “[shed] light on the operations of government”16 or otherwise relate to the basic purpose of the FOIA. The general knowledge that the government collects the name, telephone number, and fax number of a designated contact person vis-à-vis Data Items 17-19 sheds light on how the government verifies submitted information but disclosure of that personally identifying information does not itself shed light on agency action. Therefore, your appeal does not establish that disclosure would serve a FOIA public interest.
Even assuming disclosure of Data Items 17-19 did advance a FOIA public interest in knowing how the government verifies data, in this case, the privacy interest in non-disclosure outweighs the FOIA public interest in disclosure. In balancing these competing interests, courts have recognized that an alternative, less intrusive means to obtain information that would serve a FOIA public interest reduces the need to require disclosure of information that would cause an invasion of personal privacy. In other words, when assessing the public interest side of the balancing equation, it is appropriate to consider “the extent to which there are alternative sources of information available that could serve the public interest in disclosure.”17 General contact information for any federally insured credit union is publicly available on the NCUA’s website at https://mapping.ncua.gov/ResearchCreditUnion.aspx (opens new window). If discrepancies in HMDA data are found, researchers, economists, and members of the public have an alternative, less intrusive means to contact the credit union to inquire about its data, without requiring the disclosure of personally identifying information that would cause an invasion of personal privacy.
Moreover, courts have found that a public interest in nondisclosure may offset a FOIA public interest in disclosure.18 Here, we find there is a strong public interest in the nondisclosure of personal privacy information. Personally identifying information, particularly that of credit union employees who may serve in a gatekeeper capacity with respect to loan information, is vulnerable to phishing, spoofing, and other cybersecurity attacks. This heightened public interest in security of personally identifying information would offset a FOIA public interest in knowing how the government verifies data.19
For these reasons, the requested Data Items 17-19 (TS name, TS Phone, and TS Fax) were properly withheld under Exemption 6. Pursuant to 5 U.S.C. §552(a)(4)(B) of 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
Web: https://www.archives.gov/ogis (opens new window)
Telephone: 202-741-5770; Toll-free: 877-684-6448
Michael J. McKenna
1 The NCUA’s FOIA regulations are codified at 12 C.F.R. Part 792, Subpart A. Pursuant to these regulations, the authority to determine FOIA appeals rests with the NCUA’s General Counsel or designee. See 12 C.F.R. § §792.28.
2 5 U.S.C. § 552(b)(6).
4 See Multi Ag Media LLC v. USDA, 515 F.3d 1224, 1229 (D.C. Cir. 2008).
5 See NARA v. Favish, 541 U.S. 157, 172 (2004).
6 5 U.S.C. §552(b)(6); see also Favish, 541 U.S. 157 at 172.
7 U.S. Dep’t of State v. Washington Post Co., 456 U.S. 595, 602 (1982).
8 We find TS Phone and TS Fax to be analogous in that both phone and fax numbers are typically assigned to a particular individual.
9 See Id. at 600; see also, Performance Coal Co. v. U.S. Dep’t of Labor, No. 10-1698, 2012 WL 746411, at *8 (D.D.C. Mar. 7, 2012).
10 Dep’t of the Air Force v. Rose, 425 U.S. 352, 372 (1976).
11 DOJ v. Reporters Comm. For Freedom of the Press, 489 U.S. 749, 773 (1989)
12 See NARA v. Favish, 541 U.S. 157 (2004).
13 See Reporters Comm., 489 U.S. at 772 (quoting Dep't of the Air Force v. Rose, 425 U.S. 352, 372 (1976)); see also, People for the Am. Way Found. V. Nat’l Park Serv., 503 F. Supp. 2d 284, 304 (D.D.C. 2007) (“Accordingly, to assess the public interest, the Court must examine ‘the nature of the requested document and its relationship to the basic purpose of [FOIA] to open agency action to the light of public scrutiny.’” (quoting Judicial Watch of Florida, Inc. v. DOJ, 102 F. Supp. 2d 6, 17 (D.D.C. 2002)).
14 Summers v. DOJ, 517 F. Supp.2d 231, 240 (D.D.C. 2007) (finding plaintiff’s argument that knowing the names of the FBI agents in question would enable him to contact them to seek more information was insufficient to establish a FOIA public interest in disclosure); see also McGehee v. DOJ, 800 F. Supp. 2d 220, 234 (D.D.C. 2011) (“Although the Jonestown Massacre may have elicited a great deal of public attention, the relevant question is not whether the public would like to know the names of FBI agents and victims involved, but whether knowing those names would shed light on the FBI’s performance of its statutory duties.”)
15 12 C.F.R. Pt. 1003, App. A.
16 See Berger v. IRS, 487 F. Supp. 2d 482, 505(D.N.J. 2007) (finding that disclosure of IRS employee’s time sheets “would primarily serve Plaintiffs’ particular private interests as individual taxpayers” and “would not be ‘instrumental in shedding light on the operations of government.’”) (quoting Lewis v. EPA, No. 06-2660, 2006 WL 3227787, at *6 (E.D. Pa. Nov. 3, 2006).
17 DOD V. FLRA, 964 F.2d 26, 29-30 (D.C. Cir. 1992).
18 See e.g., Perlman v. DOJ, 312 F.3d 100, 106 (2d Cir. 2002) (“The strong public interest in encouraging witnesses to participate in future government investigations offsets the weak public interest in learning witnesses and third party identities.”), cert. granted, vacated & remanded, 541 U.S. 970 (2004), reinstated after remand, 380 F.3d 110 (2d Cir. 2004) (per curiam).
19 We reiterate, however, that your appeal does not establish that disclosure would serve a discernable FOIA public interest.