Michele S. Ahrens, Esq.
Tredway, Lumsdaine & Doyle
10841 Paramount Boulevard
Downey, CA 90241
Re: Freedom of Information Act Appeal
(Your letter dated August 31, 1995)
Dear Ms. Ahrens:
On June 7, 1995, your filed a Freedom of Information Act (FOIA)
request for documents relating to a complaint made by xxxxxxxxx
(your client) concerning Parishioners Federal Credit Union. On
June 19, 1995, Daniel Murphy, NCUA Region VI Director, denied
your request pursuant to exemptions 5 and 8 of the FOIA. Although
all of the responsive records were exempt from the FOIA, Mr. Murphy
supplied you with a FOIA Request Inventory listing the responsive
records. The inventory notes six responsive documents, dated
from May 16, 1994 to September 2, 1994. You wrote to Richard
Schulman, NCUA's FOIA Officer, on June 28, 1995, requesting that
an NCUA employee submit an affidavit attesting to the first date
of contact between Sylvia Mendez and the NCUA. Mr. Schulman responded
on August 15, 1995, declining your request for an affidavit.
We received your August 31, 1994 FOIA appeal on September 6, 1995.
You state that you are only appealing the denial of the documents
dated in May 1994. These documents are identified in the inventory
as 1- memo to Supervisory Examiner, dated 5/20/94; 2- Report from
General Counsel, dated 5/17/94; and 3- Phone note, dated 5/16/94.
All three documents were denied pursuant to exemption 5. The
denial is upheld on appeal, pursuant to exemptions 5 and 7 of
the FOIA.
Timeliness of Appeal
Section 792.6(a)(2) of the NCUA FOIA Regulations requires that a FOIA appeal "must be in writing and filed within 30 days from receipt of the initial determination."
12 CFR 792.6(a)(2). Mr. Murphy sent out the initial determination
denying your FOIA request on June 19, 1995. This appeal was not
filed until August 31, 1995, well past the 30-day limit. You
did, however, correspond with Mr. Schulman in an attempt to avoid
an appeal. Since your appeal was filed within 30 days of Mr.
Schulman's response to you (dated August 15, 1995), we will consider
this appeal as being timely filed.
Applicable Exemptions
We believe that the documents were properly withheld pursuant to exemption 5 of the FOIA. However, exemption 7 of the FOIA is also applicable to the withheld documents.
The following discussion addresses both exemptions.
Exemption 5
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 U.S.C. 552(b)(5). Included within exemption 5 is information
subject to the deliberative process privilege. 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). Three policy purposes have been held to
constitute the bases 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 courts have established two fundamental requirements for the deliberative process privilege to be invoked. The communication must be predecisional and it must be deliberative. Mapother v. Department of Justice, 3 F.3d 1533 (D. C. 1993). The information withheld is both predecisional and deliberative. None of the information withheld is contained in final opinions of the NCUA.
We believe that all purposes and requirements of exemption 5 are
met in this case. Disclosure of predecisional thoughts included
in various memoranda, Board meeting minutes, draft agreements
and proposals, and audit recommendations could cause injury to
the quality of agency decisions. Therefore the information described
above continues to be withheld pursuant to exemption 5 of the
FOIA.
Exemption 7
Exemption 7(C) of the FOIA protects from disclosure "records
or information compiled for law enforcement purposes, but only
to the extent that the production of such law enforcement records
or information ... (C) could reasonably be expected to constitute
an unwarranted invasion of personal privacy ..." 5 U.S.C.
552(b)(7). The three documents withheld that you are appealing
clearly meet the standards of exemption 7.
They are records or information that were compiled for law enforcement
purposes. Courts have held that the "law" to be enforced
includes both civil and criminal statutes, as well as statutes
authorizing administrative (regulatory) proceedings. See Cappabianca
v. Commissioner, United States Customs Service, 847 F. Supp.
1558 (M.D. Fla. 1994) and Center for National Policy Review
on Race & Urban Issues v. Weinberger, 502 F.2d 370 (D.C.
Cir. 1974). NCUA has all three types of authority pursuant to
various provisions of the Federal Credit Union Act (see e.g.
Sections 120, 202, 205, & 206 of the Federal Credit Union
Act, 12 U.S.C. 1766, 1782, 1785 & 1786). The documents withheld
were part of NCUA's law enforcement function. Release of these
documents could constitute an unwarranted invasion of personal
privacy. Courts have held that in recognition of the strong privacy
interests inherent in law enforcement records, categorical withholding
of information that identifies third parties in law enforcement
records will be appropriate under exemption 7(C). SafeCard
Services . SEC, 863 F.2d 96 (D.C. Cir. 1988).
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 you reside, where your 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
GC/HMU:bhs
95-0907
SSIC 3212