June 7, 1999
Jonathan M. Mastrangelo, Esq.
Wilmer, Cutler & Pickering
2445 M Street, NW
Washington, DC 20037
Re: FOIA appeal, your letter dated May 7, 1999
Dear Mr. Mastrangelo:
You wrote to appeal NCUA's initial determinations to Freedom of
Information Act (FOIA) requests made by John Mirvish of your firm.
Your appeal concerns the initial determinations dated April
7, 1999, April 13, 1999, April 15, 1999 and April 30, 1999. These
initial determinations were made by Dianne Salva, NCUA's FOIA
Officer. On May 27, 1999, you spoke to both Ms. Salva and Hattie
Ulan of my staff regarding your appeal letter. Pursuant to the
telephone conversation, Ms. Salva is reviewing the redactions
made from the field of membership worksheets enclosed with the
April 7, 1999 initial determination. Ms. Salva will send you
new copies of the worksheets with less information redacted.
You are not appealing the use of specific exemptions, but rather,
are requesting more information on the documents (and portions
of documents) withheld. Your objection is that the "initial
determinations do not satisfactorily describe the withheld information
or provide reasons justifying nondisclosure." Below, we
provide you with the types of documents withheld pursuant to each
exemption noted in the four initial determinations subject to
your appeal. We have not provided detailed information on each
of the documents (and portions of documents) withheld.
The FOIA requires that an initial decision inform the requester
of the reasons for the denial. 5 U.S.C. 552(a)(6)(A)(i). There
is no statutory requirement for specific information on each document
withheld. Nor does the NCUA FOIA regulation require any further
explanation. See 12 U.S.C. part 792, subpart A. Ms. Salva
did provide you with the exemptions applicable to information
withheld. The information was withheld pursuant to exemptions
4, 5, 6, and 8. 5 U.S.C. 552(b) (4), (5), (6) and (8). Ms. Salva's
letters noted what types of information each exemption protects.
We will expand briefly in identifying some of the specific types
of documents that were withheld pursuant to each exemption noted.
Exemption 4 was used to protect business and marketing plans,
financial analyses and budget projections. Exemption 5 was used
to protect internal NCUA memoranda. Exemption 6 was used to protect
home addresses and home telephone numbers. Exemption 8 was used
to protect information found in examination reports.
Production of a detailed index describing the withheld information
would be extremely burdensome and is not required at this stage
of FOIA processing. Cases interpreting the FOIA have held that
agencies need not provide a Vaughn Index (see Vaughn
v. Rosen, 484 F.2d 820 (D.C. Cir. 1973)) unless ordered by
a court after a FOIA plaintiff has exhausted the administrative
process. Judicial Watch, Inc. v. Clinton, 880 F.Supp.
1 (D.D.C. 1995).
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
99-0520
SSIC 3212