March 15, 1999
Charles J. Mazursky, Esq.
Mazursky, Schwartz & Angelo
10990 Wilshire Boulevard, Suite 1200
Los Angeles, CA 90024-3927
Dear Mr. Mazursky:
On October 28, 1998, your client (b)6, filed a request under the
Freedom of Information Act (FOIA). She requested "all documentation
pertaining to an anonymous letter dated February 18, 1998 and
all subsequent correspondence and reports submitted to your office
[NCUA's Region VI] from Pacific Transportation FCU (PTFCU), CPA
Mike Richards, or other third parties representing PTFCU."
On November 25, 1998, NCUA's Region VI Director denied (b)6 request.
The records were withheld pursuant to exemption 8 of the FOIA
(5 U.S.C. 552(b)(8)). Your sent your January 28, 1999 appeal
to NCUA's Region VI office. We received your appeal on February
12. Your appeal is granted in part and denied in part. The anonymous
letter is released with redactions. The redacted portions are
withheld pursuant to exemptions 6 and 7(C) of the FOIA. All other
records continue to be withheld pursuant to exemption 8. The
two exemptions and their applicability to the records requested
are discussed below.
Exemptions 6 and 7(C)
Exemption 6 of the FOIA protects information about an individual
in "personnel and medical files and similar files" where
the disclosure of such information "would constitute a clearly
unwarranted invasion of personal privacy." 5 U.S.C. 552(b)(6).
Exemption 7(C) is the counterpart to exemption 6 for law enforcement
cases. The privacy standard for withholding information is easier
to reach under exemption 7(C) because it protects information
that "could reasonably be expected to constitute an unwarranted
invasion of person privacy." We believe that information
withheld meets the more difficult standards to withhold under
exemption 6.
The courts have held that all information which applies to a particular
individual meets the threshold requirement for exemption 6 protection.
United States Department of State v. Washington Post Co.,
456 U.S. 595 (1982). Once a privacy interest is established,
application of exemption 6 requires a balancing of the public's
right to disclosure against the individual's right to privacy.
Department of the Air Force v. Rose, 425 U.S. 352,372
(1976).
The anonymous letter contains allegations about your client (b)6,
as well as information about other individuals. The information
about (b)6 is not subject to exemptions 6 or 7(C), since she is
the requester. Information about (b)6 is released to you as her
representative. It would not be released to any other FOIA requester.
Personal information about other individuals (including allegations
of negative job performance and information that may help to identify
the author of the letter) is redacted. The Supreme Court has
held that the public interest in exemption 6 information is to
"shed light on an agency's performance of its statutory duties."
United States Department of Justice v. Reporters Committee,
489 U.S. 749 (1989). The burden of establishing that disclosure
would serve the public interest is on the requester. No information
regarding public interest was submitted with either (b)6 initial
FOIA request or your appeal. We believe there is minimal, if
any, public interest in disclosing the personal information about
individuals other than (b)6. The individuals' privacy interests
clearly outweigh any public interest in disclosure. The anonymous
letter, with redactions, is enclosed.
Exemption 8
Exemption 8 of the FOIA (5 U.S.C. 552(b)(8)) exempts information:
contained in or related to examination, operating or
condition reports prepared by, on behalf of, or for
the use of an agency responsible for the regulation
or supervision of financial institutions.
The courts have discerned two major purposes for exemption 8 from
its legislative history: 1) to protect the security of financial
institutions by withholding from the public reports that contain
frank evaluations of a bank's stability; and 2) to promote cooperation
and communication between employees and examiners. See
Atkinson v. FDIC, 1 GDS 80,034, at 80,102 (D.D.C. 1980).
Either purpose is sufficient reason to withhold an examination
report.
NCUA has incorporated these dual purposes into its regulation.
Section 792.11(a)(8) of the NCUA Regulations implements exemption
8 and adds the following:
This includes all information, whether in formal or informal
report form, the disclosure of which would harm the
financial security of credit unions or would interfere with the
relationship between NCUA and credit unions.
Courts have interpreted exemption 8 broadly. NCUA is not required
to segregate and disclose portions of documents unrelated to the
condition of the credit union. See Atkinson.
The records withheld pursuant to exemption 8 include an investigation report done in response to the anonymous complaint discussed above and several pieces of correspondence (internal memoranda and letters) relating to that investigation. The investigation report itself fits squarely within the language of exemption 8. Its release could reasonably harm the financial security of PFCU and interfere with the relationship between PFCU and NCUA. Courts have held that documents related to reports withheld under exemption 8 may also be exempt from disclosure. Documents concerning a report's follow-up as well as internal memoranda that contain specific information about named financial institutions can be withheld pursuant to exemption 8. See Atkinson and Wachtel v. Office of Thrift Supervision, No. 3-90-833 (M.D. Tenn. Nov. 20, 1990). Hence, the correspondence continues to be withheld pursuant to exemption 8.
Pursuant to 5 U.S.C. 552(a)(4)(B), 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 in the district
where the requester resides, where the requester's principle 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
GC/HMU:bhs
99-0232
SSIC 3212
Enclosure
cc: Region VI Director