May 24, 2000
Randall P. Whatley, President
Cypress Media Group
P.O. Box 53198
Atlanta, GA 30355
Re: FOIA Appeal, your letter dated April 26,
2000
Dear Mr. Whatley:
On February 29, 2000, you filed a Freedom of
Information Act (FOIA) request for copies of documents in seven
categories concerning a training contract advertised as RFP NCUA-99-R-0009.
Your fifth category was a request for "a copy of all notes
from conversations with or other information gathered from conversations
with references that were contacted for Cypress Media Group, Inc."
Dianne Salva, NCUA's FOIA Officer, responded to your request
on April 13, 2000. Enclosed with Ms. Salva's response were documents
(some with redactions) responsive to all but the fifth category
noted above. There are six pages of documents responsive to the
fifth category of your request. These pages were withheld in
full pursuant to exemptions 4 and 5 of the FOIA. We received
your April 26 appeal on May 1. In your appeal you request information
(Who was the source of a "lukewarm" reference and what
did this person say that was construed to be lukewarm?) that is
found on two of the six pages that were withheld. Your appeal
is granted in part and denied in part. The two pages are released
with redactions. The information redacted is withheld pursuant
to exemptions 4, 5, and 6 of the FOIA.
The answers to questions redacted on the enclosed
pages are withheld pursuant to exemptions 4 and 5. The redacted
material was used in preparing the evaluation sheets that you
received. The contact person's name, company and telephone number
are withheld pursuant to exemption 6.
Exemption 4 of the FOIA protects (1) trade secrets and (2) information which is commercial or financial, obtained from a person and privileged or confidential.
5 U.S.C. 552(b)(4). The redacted information
falls within the commercial category. The term "commercial"
has been interpreted to included anything "pertaining or
relating to or dealing with commerce." American Airlines,
Inc. v. National Mediation Board, 588 F.2d 863, 870 (2d Cir.
1978). The information withheld meets the broad interpretation
of commercial. The information was obtained from an individual.
In Critical Mass Energy Project v. NRC, 975 F2d 871 (D.C.
Cir. 1992), cert. denied, 507 U.S. 984 (1993), the court
established two distinct standards to be used in determining whether
commercial information is "confidential" under exemption
4. According to Critical Mass, information voluntarily
submitted to an agency is categorically protected provided it
is not customarily disclosed to the public by the submitter (the
supplier of the information). In this case the information is
a reference on Cypress from a party to whom Cypress had previously
supplied services. It was voluntarily submitted. A reference
of this type would not customarily be disclosed to the public
by the submitter and is therefore properly withheld pursuant to
exemption 4.
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). Any one of the following three policy purposes
have been held to constitute a basis for the deliberative process
privilege: (1) to encourage open, rank 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 redacted information was used in preparation of the
evaluation sheets. Policy reasons (1) and (3) enumerated in Russell
apply in this case. The second policy does not apply since NCUA
has already made a decision on the contract about which you request.
Exemption 6 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).
The courts have held that all information that 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 personal information withheld clearly meets the threshold
standard. There is minimal, if any, public interest in disclosing
this personal information. The individual's privacy interests
outweigh any public interest in disclosure.
Pursuant to 5 U.S.C. 552(a)(4)(B) of the FOIA,
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
GC/HMU:bhs
00-0505
SSIC 3212
FOIA 00-213
Enclosure