Janine R. Menhennet, Esq.
Ott & Horowitz
700 North Central Avenue
8th Floor
Glendale, CA 91203
Re: Freedom of Information Act Appeal -
(Your letter dated November 15, 1995)
Dear Ms. Menhennet:
On September 1, 1995, Patrick Carey of your lawfirm filed a Freedom
of Information Act (FOIA) request with Daniel Murphy, NCUA Region
VI Director. The request was forwarded to NCUA's Central Office.
Richard Schulman, NCUA's FOIA Officer, responded to the request
on October 26, 1995. Mr. Schulman denied the request in full
pursuant to exemptions 5, 6, and 8 of the FOIA. The denial was
also made pursuant to the "no disclosure without consent"
rule of the Privacy Act (12 USC 552a(b)). We received your November
15 appeal on November 22, 1995. We have determined that portions
of documents responsive to the FOIA request should be released.
Mr. Schulman's denial is reversed in part and your appeal is
granted in part. Exemption 7 of the FOIA, although not used in
the original denial, is invoked to withhold certain responsive
information. Documents responding to the FOIA request include
portions of two letters and two internal memoranda, and a portion
of an NCUA regional management report. The two letters are withheld
pursuant to exemption 7 (see discussion below.) The two
memoranda and segment of the management report are redacted and
enclosed. The enclosed documents have been redacted to eliminate
non-responsive material as well as material withheld pursuant
to exemption 7. Some of the redacted portions may also have been
withheld from disclosure pursuant to other exemptions, but since
they are not responsive to the request, we will not address the
applicable exemptions.
The request was for "all records in the possession of the
NCUA regarding any complaints or allegations regarding
that have been received between January 1, 1994 and the
present" (September 1, 1995). Enclosed with your appeal
was a Privacy Act Request signed by for all information
concerning her. requests the same records as Mr.
Carey does in the original FOIA response. The September 1, 1995
FOIA request did not identify as the requester. We
will consider as the requester for purposes of this
appeal.
Exemption 6
Exemption 6 permits the government to withhold all information
about individuals in "personnel, medical and similar files"
where the disclosure of such information "would constitute
a clearly unwarranted invasion of personal privacy." 5 USC
552(b)(6). Generally, exemption 6 of the FOIA does not apply to
the individual about whom the requested information concerns.
The exemption 6 information withheld concerned When
Mr. Schulman issued his October 26 denial to Mr. Carey's FOIA
request, he was not aware that was involved in the
FOIA request. Since has now submitted a request for
the documents originally requested, she is treated as the FOIA
requester. The information is releasable to her. We note that
the information released is personal and would be subject to exemption
6 if the requester were someone other than .
Exemptions 5 and 8
We note that some of the material released could be withheld under
exemptions 5 and 8 of the FOIA. We have, however, determined
to release the material under our discretionary authority. We
see no foreseeable harm in its disclosure. There is no need to
discuss these exemptions, but we note that the decision to disclose
in this case in no way precludes NCUA from using exemptions 5
and 8 in the future, in similar requests for information.
Privacy Act
Mr. Schulman's October 26 letter included the "no disclosure without consent" rule of the Privacy Act as an additional basis of denial of your FOIA request. The Privacy Act is only triggered when information is found in a system of records, that is "a group of any records under the control of any agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual." 5 USC 552(a)(5). None of the documents responding to the FOIA request are found within a system of records. Therefore the Privacy Act is not triggered. We note that the "no disclosure without consent" provision of the Privacy Act is found at 5 USC 552a(b) rather than 5 USC 552(a)(2) as cited in Mr.
Schulman's letter.
Exemption 7
Exemption 7 (D) of the FOIA protects from disclosure "records
or information compiled for law enforcement purposes, but only
to the extent that the production of such law enforcement records
or information ... (D) could reasonably be expected to disclose
the identity of a confidential source ..." 5 U.S.C. 552(b)(7).
The exemption 7(D) information requested is contained in the
enclosed two internal NCUA memoranda and management report. The
7(D) information has been redacted. Two additional letters are
withheld in full pursuant to exemption 7(D).
Courts have held that the "law" to be enforced includes
both civil and criminal statutes, as well as statutes authorizing
administrative (regulatory) proceedings. See Cappabianca
v. Commissioner, United States Customs Service, 847 F. Supp.
1558 (M.D. Fla. 1994) and Center for National Policy Review
on Race & Urban Issues v. Weinberger, 502 F.2d 370 (D.C.
Cir. 1974). NCUA has all three types of authority pursuant to
various provisions of the Federal Credit Union Act (see e.g.
Sections 120, 202, 205, & 206 of the Federal Credit Union
Act, 12 U.S.C. 1766, 1782, 1785 & 1786). The documents withheld
were part of NCUA's law enforcement function.
Exemption 7(D) protects against disclosure of information pertaining
to confidential sources. No balancing of the public interest
is involved under exemption 7(D). See Jones v. FBI,
41 F.3d 238 (6th Cir. 1994). Exemption 7(D) has been interpreted
broadly by the courts. Part of the rationale for exemption 7(D)
is to ensure that cooperating citizens will not be harassed and
will continue to cooperate. Helmsley v. United States Dept.
of Justice, No. 90-2413, slip op. at 13 (D.D.C. Sept. 24,
1992). Exemption 7(D) is intended to avert the drying up of sources.
Providence Journal Co. v. United States Dept. of the Army,
981 F. 2d 552 (1st Cir. 1992). More than the name and address
of a confidential source may be withheld. Courts have held that
an agency may withhold any portion of a document that would reveal
the identity of the confidential source. Church of Scientology
v. IRS, 816 F. Supp. 1138 (W.D. Tex. 1993). Specific identifying
information has been redacted from the enclosed documents. Two
letters are withheld in their entirety since they, or any substantial
segment of them, could be used to identify the source of the information.
The information concerning is released and enclosed,
information subject to exemption 7(D) is withheld.
Pursuant to 5 U.S.C. 552(a)(4)(B), you may seek judicial review of this determination by filing suit to enjoin NCUA from withholding the documents you requested and to order production of the documents. Such a suit may be filed in the United States District
Court in the district 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).
Sincerely,
Robert M. Fenner
General Counsel
Enclosures
GC/HMU:bhs
95-1133
SSIC 3212