Re: FOIA Appeal, your letter dated March 22,
2000
Dear:
On December 24, 1999, you filed a Freedom of
Information Act (FOIA) request for copies of all reports and other
writings concerning 1) the analysis of data which was part of
NCUA Investigation No. 97-06; and 2) the analysis of data which
was part of NCUA's response to your November 2, 1999, complaint
against . Dianne Salva, NCUA's FOIA Officer, responded
to your request on March 16, 2000. Approximately 51 pages of
documents were identified as responsive to part 1) of your request.
These documents consist of internal memoranda, and drafts thereof,
and various correspondence. These responsive documents were withheld
pursuant to exemptions 5 and 8 of the FOIA and subsection (d)(5)
of the Privacy Act. In response to part 2) of your request, you
received approximately 69 pages of documents. Six additional
pages were withheld pursuant to subsection (d)(5) of the Privacy
Act. We received your March 22 appeal on March 24. Your appeal
is granted in part and denied in part. One page responsive to
part 1) of your request (previously withheld pursuant exemption
8 of the FOIA) is now released and enclosed. The remaining documents
continue to be withheld pursuant to exemptions 5 and 8 of the
FOIA and subsection (d)(5) of the Privacy Act. We have identified
several additional documents responsive to part 1) of your request.
These documents are also withheld pursuant to exemptions 5 and
8 of the FOIA and subsection (d)(5) of the Privacy Act. The documents
and the applicable exemptions are discussed below.
Additional Responsive Documents
We have identified approximately 35 pages of
additional documents responsive to your FOIA request. The majority
of these documents are the handwritten notes of the attorneys
who worked on Investigation 97-06. Also included are a few pages
of internal memoranda and one short e-mail. As noted above, all
of
these documents are withheld pursuant to exemptions
5 and 8 of the FOIA and subsection (d)(5) of the Privacy Act.
Exemption 5 of the FOIA protects "inter-agency
or intra-agency memorandums or letters which would not be available
by law to a party ... in litigation with the agency." 5
USC 552(b)(5). Included within exemption 5 is information subject
to the deliberative process privilege and the attorney work-product
privilege. Most of the responsive documents are withheld pursuant
to the attorney work product privilege of exemption 5 and subsection
(d)(5) of the Privacy Act. (See discussion below.) A
few pages are withheld pursuant to the deliberative process privilege
of exemption 5. The information withheld pursuant to the deliberative
process privilege consists of staff opinions and recommendations
prior to final agency action. The purpose of this privilege is
"to prevent injury to the quality of agency decisions."
NLRB v. Sears, Roebuck & Co. 421 U.S. 132, 151 (1975).
Any one of the following three policy purposes have been held
to constitute a basis for the deliberative process privilege:
(1) to encourage open, frank discussions on matters of policy
between subordinates and superiors; (2) to protect against premature
disclosure of proposed policies before they are finally adopted;
and (3) to protect against public confusion that might result
from disclosure of reasons and rationales that were not in fact
ultimately the grounds for an agency's action. Russell v.
Department of the Air Force, 682 F.2d 1045 (D.C. Cir. 1982).
The first and third policies enumerated in Russell apply
in this case. The second policy does not apply since Investigation
97-06 is closed.
The attorney work product privilege protects
documents and other memoranda prepared by an attorney in contemplation
of litigation. The privilege applies to civil, criminal and administrative
proceedings. Exxon Corp. v. Department of Energy, 585
F. Supp. 690, 700 (D.D.C. 1983). In exemption 5 cases involving
the deliberative process privilege, it is the general rule that
factual material must be separated out from deliberative material
and disclosed. This disclosure rule does not apply to the attorney
work-product privilege. In Martin v. Office of Special Counsel,
819 F.2d 1181 (D.C. Cir. 1987), the court rejected a factual/deliberative
distinction and approved withholding witness statements in their
entirety. In addition, the Supreme Court has held that termination
of litigation does not vitiate the protection for material otherwise
properly categorized as attorney work-product. There is no temporal
limitation on work-product protection under the FOIA. FTC
v. Grolier, 462 U.S. 19 (1983). The fact that NCUA has decided
not to pursue Investigation 97-06 any further does not affect
the applicability of the attorney work-product privilege of exemption
5.
Pursuant to the Privacy Act, a system of records means a group of records from which information can be retrieved by an individual's name or some other
identifier. 5 U.S.C. 552a(a)(5). Section
(d) of the Privacy Act, 5 U.S.C. 552a(d), addresses access to
information contained within a system of records. Unless subject
to an exemption, individuals have access to information about
themselves contained within a system of records. Subsection
(d)(5) provides an exemption from individual access "to any
information compiled in reasonable anticipation of a civil action
or proceeding." This provision has been held to be similar
to the attorney work-product privilege of exemption 5 of the FOIA.
See Martin, supra. The courts have interpreted
Section (d)(5) of the Privacy Act broadly. It has been interpreted
to extend to records compiled in anticipation of civil proceedings,
including quasi-judicial proceedings, whether or not by attorneys.
Crooker v. Marshals Service, No. 85-2599, slip op. at
2-3 (D.D.C. Dec. 16, 1985) and Martin, supra.
The information withheld pursuant to exemption 8 consists of a discussion of examination issues found in internal memoranda. These memos are also withheld pursuant to exemption 5. Exemption 8 of the FOIA,
5 U.S.C. 552(b)(8), applies to 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.
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 reference about a named financial
institution can be withheld pursuant to exemption 8. See
Atkinson v. FDIC, 1 GDS 80,034, at 80,102 (D.D.C. 1980)
and Wachtel v. Office of Thrift Supervision, No. 3-90-833
(M.D. Tenn. 11/20/90). Although the memos do contain some non-financial
information, courts do not require agencies to segregate and disclose
those portions of documents that are unrelated to the financial
condition of the institution. See Atkinson. Hence,
the memos are withheld in full pursuant to exemption 8.
Pursuant to 5 U.S.C 552(a)(4)(B) (FOIA) and
552a(g) of the Privacy Act, 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
you
reside, where your 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
Enclosure
GC/HMU:bhs
00-0356
SSIC 3212
FOIA 00-124