Andrew W. Cohen
Squire, Sanders & Dempsey
P.O. Box 407
Washington, D.C. 20044-0407
Re: FOIA Appeal
(Your Letter dated June 26, 1996)
Dear Mr. Cohen:
On November 8, 1995, your client Robert Cohen filed a request
under the Freedom of Information Act (FOIA) for certain documents
(set forth in four categories) concerning the now liquidated Barnstable
Community Federal Credit Union. Robert Cohen's request was granted
in part and denied in part. (See May 10 and June 3, 1996
letters to you from Richard S. Schulman, NCUA's FOIA Officer.)
The documents denied were described in category 4 of the original
FOIA request and were denied by Mr. Schulman pursuant to exemptions
5 and 6 of the FOIA (5 U.S.C. 552(b)(5) and (6)). On June 26,
1996, we received your appeal of the denied category 4 documents.
On July 23, 1996, we notified you of a 10-day extension for determination
on your appeal pursuant to Section 792.6 of the NCUA Rules and
Regulations (12 C.F.R. 792.6). Your appeal is granted in part
and denied in part. Redacted documents are enclosed and explained
below.
The records requested and denied were described as any documents
relating to twenty-two real estate secured loans made to various
trusts by Barnstable Community FCU where the identity of the beneficiary(ies)
of any of the trusts was identified. According to the list identifying
the loans subject to the request, the loans were recorded by the
Barnstable County Registry of Deeds between January 1984 and March
1986. Upon further review of the documents originally identified
as responsive to the request, we have now determined that none
of these documents specifically indicates its relationship to
the loans identified by the list submitted with the original request.
There are only three documents which we can identify as even
remotely responsive to the request. One document contains information
about xxxxxxxxxxx xxxxxx (highlighted on page 4 of the list with
original request), but there is no information concerning a 1985
loan made by Barnstable Community FCU. We have deleted personal
information (including the identity of the beneficiary of the
trust) pursuant to exemption 6 of the FOIA, and enclosed the redacted
document. A discussion of exemption 6 follows the description
of all of the enclosed documents. We have enclosed a second document
containing information about xxxxxxxxxxxxxxxx (highlighted on
page 4 of the list with original request). This document concerns
a loan made in 1989 rather than 1985. However there is a handwritten
note on the bottom of the document alluding to a 1985 loan. Again,
personal information including the beneficiary of the trust is
deleted pursuant to exemption 6 of the FOIA. The third and last
document enclosed identifies xxxxxxxxxx (highlighted on page 4
of the list with original request), its trustee/borrower and beneficiary.
There was no information at all identifying a particular xxxxxxxxx
loan. Again, the personal information (trustee and beneficiary
identification and net loss information) is deleted pursuant to
exemption 6 of the FOIA.
Exemption 6 of the FOIA permits NCUA to withhold all 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). 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). Personal financial
information contained in loan documents clearly meets the threshold
requirement for exemption 6 information. 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 public interest in the 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. Carter
v. United States Department of Commerce, 830 F.2d 388, 391
(D.C. Cir. 1987). The court in Reporters Committee held
that the interest of the individual FOIA requester is not to be
considered in the balancing. The privacy interest of the individual
is to be balanced against the public interest generally in disclosure.
489 U.S. at 771-772. We believe there is no public interest
in disclosure of individual financial information in the loan
documents requested. The FOIA requester noted in his original
request that information identifying the beneficiaries could be
redacted to protect individual privacy interests. These privacy
interests extend to the other information redacted (loan amounts,
individual borrowers, etc.) Therefore, this information is withheld
pursuant to exemption 6 of the FOIA and the redacted documents
are released. Although the original FOIA request was denied pursuant
to exemptions 5 and 6, we believe that exemption 6 provides the
basis for redacting the documents, exemption 5 is not applicable.
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 the requester resides, where the requester's
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
SSIC 3212
96-0645