February 7, 1996
Mr. William Alston
Re: FOIA Appeal
(Your December 28, 1995 Letter)
Dear Mr. Alston:
You have written to the NCUA several times over the past few months
concerning a Freedom of Information Act (FOIA) request. Your
first request in our file, dated October 20, 1995, is addressed
to Supervisor Andrews. You requested a copy of "Section
748.0(A) in relation to the Arlington School's Federal Credit
Union" for the year 1994. Jane Walters, NCUA Region II Director,
responded to your request on November 1, 1995, enclosing a copy
of Part 748 of the NCUA Rules and Regulations, 12 CFR 748. On
November 7, 1995, you wrote to Ms. Walters, requesting NCUA form
2362, the criminal referral form, filed by Arlington Schools Federal
Credit Union in March 1994. Ms. Walters responded on November
30, 1995, denying your request for the criminal referral form
pursuant to exemptions 6 and 7(C) of the FOIA. On December 5,
1995, your again requested Part 748 of the NCUA Regulations and
NCUA form 2362 as filed by Arlington Schools Federal Credit Union.
Perhaps you had not yet received Ms. Walters' November 30 response.
Ms. Walters responded again on December 22, 1995, enclosing a
second copy of Part 748 and denying the request for form 2362
pursuant to exemptions 6 and 7(C) of the FOIA. We received your
December 28, 1995 appeal on January 10, 1996. In your appeal
you clarify that your request included the written security program
for Arlington Schools Federal Credit Union required by Part 748.0,
in addition to the regulation itself. This was not clear from
any of your earlier requests. Your appeal is denied pursuant
to exemption 7 of the FOIA as explained below. We have enclosed
a blank copy of NCUA form 2362, for your information.
Written Security Program
Section 748.0(a) of the NCUA Rules and Regulations, 12 CFR 748.0(a),
requires each federally insured credit union to develop a written
security program. The NCUA does not require that the security
program be submitted to the NCUA. The NCUA does not have a copy
of the program for Arlington Schools Federal Credit Union. Therefore
it is not an existing NCUA agency record that is subject to the
FOIA.
Criminal Referral Form - NCUA Form 2362
Before discussing exemption 7 specifically, we note that the instructions
on the criminal referral form state:
the report is confidential pursuant to applicable
provisions of the Privacy Act, 5 USC Section 552a,
and the Freedom of Information Act,
5 USC Section 552. Accordingly, the report and the
information that it contains may be shared with
appropriate law enforcement agencies consistent with
applicable laws and regulations.
This notice is included to inform financial institution officials
filing the form to disclose it only to appropriate law enforcement
agencies and also to ensure them that the information they provide
in the form will only be disclosed to the appropriate officials.
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 ... and, in the case of
a record or information compiled by a criminal law enforcement
authority in the course of a criminal investigation ... information
furnished by a confidential source." 5 U.S.C. 552(b)(7).
The first clause of 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). Various portions of form 2362 are withheld
pursuant to exemption 7(D) to protect the identity of a confidential
source.
The second clause of exemption 7(D) protects information compiled
in the course of a criminal investigation. The information on
the form 2362 was submitted for use in a criminal investigation.
The language of this exemption as well as the courts' interpretation
of it indicate that all source provided information is protected.
See Irons v, FBI, 880 F.2d 1446, 1448 (1st Cir.
1989). Therefore, the requested form 2362 is withheld in its
entirety pursuant to the criminal investigation provision of exemption
7(D).
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 document you requested and to order production of the document.
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
Enclosure
GC/HMU:bhs
96-0111
SSIC 3212