May 28, 1998
William Kelly, Jr.
Director, Center for Credit Union Research
University of Wisconsin-Madison
School of Business
Grainger Hall
975 University Avenue
Madison, WI 53706-1323
Re: FOIA Appeal, your letter dated April 28, 1998
Dear Mr. Kelly,
On March 5, 1998, you filed a Freedom of Information Act (FOIA)
request seeking comparative information on losses to the National
Credit Union Share Insurance Fund (NCUSIF) caused by federally-chartered
and federally insured, state-chartered credit unions. You requested
the number of credit unions causing an insurance loss, and the
dollar value of the insurance loss for each credit union. You
also requested the credit union, charter type, asset size and
insurance loss for each of the top five credit union losses for
each year. You sought the information for the years 1971 - 1996.
On April 9, 1998, Dianne Salva, NCUA Staff Attorney, responded
to your request. Since our historical data files date back only
to 1984, you only received information for the years 1984 -1996.
We received your April 28 appeal on May 4. You again request information
for the years 1971-1984. We again note the NCUA does not maintain
records on individual credit unions causing losses to the NCUSIF
prior to 1984. The NCUA Annual Reports for the years 1971 -1984
do contain some information on liquidations and losses to the
NCUSIF for those years. However, there is little, if any information
in the Annual Reports on specific credit union losses. Hattie
Ulan of my office spoke to your associate Elaine and told her
of the availability of the Annual Reports and the information
they contain. We understand that you have already reviewed the
Annual Reports.
The records that you are requesting would now be from fourteen
to twenty-seven years old. NCUA, and all federal agencies, maintain
most records only for a limited period of time before they are
sent to one of several Federal Records Centers (FRCs). The records
are then maintained at the FRC for a certain period of time and
are then destroyed. Records are maintained pursuant to both government-wide
and individual agency schedules. (See applicable regulations
of the National Archives and Records Administration, 36 C.F.R.1228.)
Under NCUA's record retention schedules, credit union liquidation
files are transferred to the FRC when they are no longer needed.
The records are destroyed five years after notification of cancellation
of the charter. Any liquidation records sent to a FRC from 1971
- 1984 would have been destroyed several years ago.
Federal agencies are under a duty to conduct a reasonable search for records when a FOIA request is received. Patterson v. Internal Revenue Service,
56 F.3d 832, 841 (7th Cir. 1995). The question is not
whether any documents responsive to the request might exist, but
rather whether the search for any responsive documents was adequate.
Steinberg v. United States Department of Justice, 23 F.3d
458 (D.C. Cir. 1994) quoting from Weisberg v. United States
Department of Justice, 745 F.2d 1476 (D.C. Cir. 1984). Given
the age of the records requested and the retention schedules noted
above, we believe any further search for records would be futile.
Pursuant to 5 U.S.C. 552(a)(4)(B), you may seek judicial review
of this determination by filing suit against NCUA. 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
or in the District of Columbia.
Sincerely,
Robert M. Fenner
General Counsel
GC/HMU:bhs
SSIC 3212
98-0503