August 17, 1995
D. Ronald Ryland, Esq.
Sheppard, Mullin, Richter & Hampton
Seventeenth Floor
Four Embarcadero Center
San Francisco, CA 94111
Re: Freedom of Information Act - Appeal
(Your July 25, 1995 Letter Concerning
Delegations of Authority)
Dear Mr. Ryland:
On June 5, 1995, Bruce Pearson (your co-counsel in this matter)
filed a Freedom of Information Act (FOIA) request for "copies
of the documents, information, and/or authority(ies) referenced
in the enclosure." The enclosure is NCUA Chartering Delegations
1 and 2, dated December 1994. This enclosure was originally sent
in response to a May 25, 1995 FOIA request made by a Mr. Joseph
Melchione, a partner in Mr. Pearson's lawfirm. By letter dated
July 6, 1995, Richard Schulman, NCUA's FOIA Officer, responded
to the FOIA request. NCUA Board meeting minutes and documents
referenced in the enclosure were released. Several Board Action
Memoranda (BAMs) were withheld pursuant to exemption 2 of the
FOIA. We received your July 25 appeal on August 1, 1995. We
note that your appeal was sent to the United States Attorney in
San Francisco rather than to NCUA's Office of General Counsel
as required by Section 792.6(a)(1) of the NCUA Regulations (12
CFR 792.6(a)(1)). You believe that the documents withheld pursuant
to exemption 2 should be released. You also raise two other issues
in your appeal. The documents withheld pursuant to exemption
2 are released. We have also released two additional BAMs we
have located which were presented at open NCUA Board meetings.
All three issues you raise in your appeal are addressed below.
First, you note that the Preamble to NCUA's Delegations of Authority
was not included as a responsive document to Mr. Pearson's June
5 FOIA request. The Preamble was not included because it was
not responsive to the FOIA request. Mr. Pearson requested documents
"referenced in the enclosure" (certain chartering delegations).
The Preamble to the NCUA Delegations was not referenced in the
enclosure, therefore it was not responsive to Mr. Pearson's request.
You also note that the Preamble was not included in response
to Mr. Melchione's May 25 FOIA request. Mr. Melchione's request
was for documentation regarding "delegation for decision
making to the Regional Directors ... for matters falling under
IRPS 94-1, Section 1751 of the Federal Credit Union Act or Section
1785(c) of the Federal Credit Union Act." The Preamble is
a general statement regarding all delegations. It contains no
specific reference to IRPS 94-1 or Sections 1751 or 1785 of the
FCU Act. We did not believe it to be responsive to Mr. Melchione's
request. We note further that Mr. Melchione did not appeal his
May 25 FOIA request.
Second, you indicate your belief that there are "guidelines" established by the NCUA that govern the Regional Director's consideration of mergers and that these guidelines have not been released pursuant to your FOIA request. The legal, regulatory and interpretive guidance for mergers are Sections 109 and 205 of the FCU Act; Part 708 of the NCUA Rules and Regulations, and Interpretive Ruling and Policy Statement (IRPS)
94-1. We believe you have access to these documents. In addition,
the NCUA has issued a Credit Union Merger Procedures and Merger
Forms Manual. For the most part, this is a how to manual for
mergers. It does not set forth specific merger guidelines. A
copy of the Merger Manual is enclosed.
Third, you appeal the denial of BAMs pursuant to exemption 2 of
the FOIA. Six BAMs (dated 11/19/86, 6/10/87, 6/15/89, 3/11/92,
6/23/92, 6/15/93) and one NCUA Board notation vote (dated 5/6/94)
were withheld pursuant to exemption 2. We have determined that
these previously denied documents do not contain exemptible material
and are therefore released. Copies of these BAMs and the notation
vote which were previously denied are enclosed. Non-responsive
portions of the BAMs have been redacted. Minutes from the 3/11/92
closed Board meeting are also enclosed. We have also located
two additional BAMs (dated 5/12/83 and 11/3/88) which were presented
at open NCUA Board meetings. These BAMs are also enclosed.
Sincerely,
James J. Engel
Acting General Counsel
Enclosures
GC/HMU:bhs
95-0802
SSIC 3212