January 2, 2020
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By letter of September 13, 2019, you submitted a Freedom of Information Act (FOIA) request. You requested a letter of finding and investigation report, if any, related to your complaints, including XXXX. Since you requested records about yourself, your request was also processed under the federal Privacy Act of 1974.
By letter of November 25, 2019, a senior attorney advisor in the NCUA’s Office of General Counsel responded to your request and advised that your request was granted for all the responsive agency records, except for a minor redaction of third party information. One record of publicly releasable responsive records, the credit union’s 2015 cover letter it sent to the NCUA, was attached in full; additionally, approximately 180 unredacted pages, including the Ombudsman’s final reply letters to you and all your account records and communications were sent to you as interim replies. The senior attorney advisor’s response explained that there is no other agency record of letter of finding or investigation report related to your complaints, other than ombuds records. However, our November 25 letter also explained that, to the extent you were requesting ombuds records, those records are confidential and withheld under section 552(b)(3) of the FOIA (“Exemption 3”).1 Exemption 3 allows the withholding of information prohibited from disclosure by another federal statute.
You appealed this determination in a December 3, 2019 email correspondence. Your appeal is denied, as discussed more fully below.
In your appeal, you submitted that our November 25 and interim responses are not responsive to your request because we did not specifically furnish a “letter of finding” and “investigative report” relative to complaints you made regarding the closing of your credit union account. In fact, however, the approximately 180 unredacted pages of information provided to you is responsive to your request. A review of our files reveals that there is no other agency record constituting a “letter of finding” or an “investigative report” relative to your complaints.2
To the extent any additional unreleased documents responsive to your request are in the possession of the agency, those documents are ombuds records. As we correctly noted in our November 25 response, ombuds records are exempt from disclosure under Exemption 3 of the FOIA because they are prohibited from disclosure by federal statute. Specifically, Exemption 3 applies if one of two requirements are met: the federal statute either “requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue,” or “establishes particular criteria for withholding or refers to particular types of matters to be withheld.”3 As we explained in our November 25 response, section 571 of the Alternative Means of Dispute Resolution in the Administrative Process,4 a federal statute, defines “alternative means of dispute resolution” as any procedure that is used to resolve issues in controversy, including the use of ombuds,5 a “neutral” who, with respect to an issue in controversy, functions specifically to aid the parties in resolving the controversy.6 The federal statute provides for confidentiality of dispute resolution communications or communications provided in confidence to the neutral. Further, the statute expressly states that a dispute resolution communication which is between a neutral and a party and which may not be disclosed is also expressly exempt from disclosure under Exemption 3 of the FOIA.7 Thus, the statute is clear; there is no discretion on the issue that ombuds communications records are required to be withheld from public disclosure. In addition, the NCUA Ombudsman has a duty under federal statute to “assure that safeguards exist to encourage complainants to come forward and preserve confidentiality.”8 Accordingly, the approximately 180 unredacted documents released to you were responsive to your request; any additional records, to the extent they exist, are not releasable under Exemption 3.
Further, to the extent that your appeal raised general concerns about transparency, we note that the redactions of third party information on the document attached with our November 25 response was proper. As explained in our interim reply letter, the NCUA was required by Executive Order 12600 and 12 C.F.R. §792.29 to provide a “submitter notice” to the credit union and give it the opportunity to respond before releasing the document. As a result of that process, the agency was required under section 552(b)(4) of the FOIA (“Exemption 4”),9 to redact the third party’s confidential, identifying information, including signature.
Exemption 4 protects from disclosure “commercial or financial information” obtained from a person considered privileged or confidential.10 Courts have broadly interpreted information as qualifying as “commercial or financial” if it relates to business or trade.11 Under the Administrative Procedure Act (APA), the term “person” refers to individuals as well as to a wide range of entities,12 which courts have found to include financial institutions.13 For Exemption 4 purposes, business or trade information obtained from a credit union that is privileged or confidential is subject to withholding under the FOIA. Accordingly, there is a proper basis for the redaction of third party confidential, proprietary business, and identifying information in the document attached to our November 25 response.
Moreover, 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.”14 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;15 (2) determine whether there is a significant privacy interest in the requested information;16 (3) evaluate the requester’s asserted FOIA public interest in disclosure;17 and (4) if there is a significant privacy interest in nondisclosure and a FOIA public interest in disclosure, balance those competing interests to determine whether disclosure “would constitute a clearly unwarranted invasion of personal privacy.”18
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 6.19 Here, the redacted information (extension, signature, name, and title) 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,20 and job title has been found to implicate a substantial privacy interest cognizable under the FOIA.21
Since a substantial privacy interest may be infringed by the disclosure of confidential, identifying personal information, 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.22 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.23
Your appeal has not asserted that any FOIA public interest would be served by disclosure of the redacted third party information. Even assuming disclosure of the redacted third party information did advance a FOIA public interest, in this case, there is a strong privacy interest in non-disclosure. In balancing the competing interests of privacy versus public interest, 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.”24 As we noted in our November 25 response, as well as in our interim reply, the credit union’s public contact information is already available on the document’s letterhead and on the “Credit Union Details” page, which was also attached to our November 25 response letter. Thus, you have an alternative, less intrusive means to contact the credit union, without requiring the disclosure of personally identifying information that would cause an invasion of personal privacy. 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).
For these reasons, any additional responsive ombuds documents, to the extent they exist, were properly withheld under Exemption 3, and the redacted third party information on the 2015 cover letter was properly withheld under Exemptions 4 and 6.
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
Web: https://www.archives.gov/ogis (opens new window)
Telephone: 202-741-5770; Toll-free: 877-684-6448
Acting General Counsel
1 5 U.S.C. §552(b)(3).
2 The responsive records released to you with our interim reply included the NCUA Ombudsman’s final reply letters. We note that the Ombudsman reply letter dated August 20, 2015 indicated that the “response represent[ed] the final agency action in this matter.” The Ombudsman reply letter dated September 3, 2015 noted that the “Ombudsman review is the final NCUA response to your complaint. You have exhausted all NCUA avenues relating to this complaint.” These Ombudsman final reply letters discuss the results of the Ombudsman’s investigation of your complaints and articulate the Ombudsman’s final findings.
3 5 U.S.C. § 552(b)(3)(A).
4 5 U.S.C. §§ 571 et seq.
5 5 U.S.C. §571(3).
6 5 U.S.C. §571(9).
7 5 U.S.C. §574(j).
8 12 U.S.C. §4806(d)(2)(B).
9 5 U.S.C. §552(b)(4).
11 See, e.g., 100 Reporters LLC v. DOJ, 248 F. Supp. 3d 115, 136 (D.D.C. 2017).
12 5 U.S.C. § 551(2).
13 See Lepelletier v. FDIC, 977 F. Supp. 456, 459 (D.D.C. 1997), aff'd in part, rev'd in part & remanded on other grounds, 164 F.3d 37 (D.C. Cir. 1999).
14 5 U.S.C. § 552(b)(6).
16 See Multi Ag Media LLC v. USDA, 515 F.3d 1224, 1229 (D.C. Cir. 2008).
17 See NARA v. Favish, 541 U.S. 157, 172 (2004).
18 5 U.S.C. §552(b)(6); see also Favish, 541 U.S. 157 at 172.
19 U.S. Dep’t of State v. Washington Post Co., 456 U.S. 595, 602 (1982).
20 We find TS Phone and TS Fax to be analogous in that both phone and fax numbers are typically assigned to a particular individual.
21 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).
22 Dep’t of the Air Force v. Rose, 425 U.S. 352, 372 (1976)
23 See NARA v. Favish, 541 U.S. 157 (2004).
24 DOD V. FLRA, 964 F.2d 26, 29-30 (D.C. Cir. 1992).