July 11, 2000
Barbara Schwarz
Re: FOIA Appeal, your letter of April 20, 2000
Dear Ms. Schwarz:
You filed a Freedom on Information Act (FOIA) request on October
15, 1999. Dianne Salva, NCUA's FOIA Officer, responded to your
request on January 18, 2000. No responsive documents were found.
On February 14, with a follow-up letter on February 28, you requested
search documents created for the October 15 request. Dianne Salva
responded to your request on April 7, 2000, enclosing approximately
100 pages of search documents. No records were withheld. On
April 20, 2000, you appealed the April 7 response contending that
there were additional responsive documents that were withheld.
Included with this appeal was a new request for search records
created in response to your February 14 and February 28 requests
(FOIA requests 00-210 and 00-181). You asked that this request
for search records be treated as a new FOIA request. We responded
to your appeal on May 10, 2000. Ms. Salva responded to the request
for search records for FOIA requests 00-210 and 00-181 on June
5, 2000, indicating that no additional search records were found.
We received your June 12 appeal to Ms. Salva's June 5 response
on June 15, 2000. We did find two additional pages of search
documents. One page is enclosed. One page of notes drafted by
staff in preparation of our response to your April 20 appeal is
withheld pursuant to exemption 5.
You set forth several questions in your appeal. We have attempted
to answer your questions in the numbered paragraphs (corresponding
to the numbered paragraphs of your letter) below:
1. You note that in addition to a request for search records
to FOIA requests 00-210 and 00-181, in your April 20 appeal, you
also requested litigation records on your case 99-3234-HHK, and
that that portion of your request was ignored. That portion of
your request was addressed in paragraph number 2. of our May 10,
2000 response to your appeal. We stated there and reiterate here
that we have no records concerning case 99-3234-HHK.
2, 3 & 4. You request here that a search be made for records
of all offices that responded to your earlier FOIA requests.
Pursuant to this appeal, we contacted all of the offices Ms. Salva
contacted pursuant to your October 15, 1999 FOIA request (all
6 Regional offices, Office of the Secretary of the Board, Office
of Inspector General, Office of General Counsel, and Asset Management
and Assistance Center). As noted above, two additional pages
of responsive documents have been identified. One page is enclosed,
one page is withheld pursuant to exemption 5 of the FOIA. All
other search records were sent to you on April 7.
5. You again note your belief that NCUA (specifically the Office
of General Counsel) has litigation records on your case 99-3234-HHK.
As noted in paragraph 1. above, we have no records concerning
case 99-3234HHK. You also believe that Pat Slye (NCUA's regulatory
affairs specialist within the Office of General Counsel) has records
on your FOIA/Privacy requests. Pat Slye works with Dianne Salva
on initial FOIA/Privacy requests. All records generated by Ms.
Slye were included with the enclosures sent to you with Ms. Salva's
letter of April 7.
6. You note your concern with the possible misspelling of your
name. We addressed this issue in our May 10 response to your
April 20 appeal. (See numbered paragraph 5. of our May
10, 2000 letter.) As noted there, the search was made under the
correct spelling of your name. You have been supplied with all
search records.
7. You again indicate your belief that search documents exist
(e.g. work sheets and computer printouts) and they are being illegally
withheld. All NCUA staff that conducted a search for your records
have been contacted. There were no worksheets or computer printouts
generated by your request for records. Two pages of additional
records were identified as responsive. One page is enclosed,
one page is withheld.
8. You request a search of records of the NCUA Chairman and Special
Counsel to the General Counsel Hattie Ulan. The Secretary of
the NCUA Board is responsible for FOIA requests for NCUA Board
records. She has indicated that there were no search documents
created. There is one document created by Ms. Ulan. It consists
of one half page of handwritten notes. This page is withheld
pursuant to exemption 5 of the FOIA.
9. You again request a search declaration. There is no requirement that a search declaration be provided at this point in the administrative process. Federal agencies are under a duty to conduct a reasonable search for records when a FOIA request is received. Patterson v. Internal Revenue Service, 56 F.3d 832 (7th Cir. 1995). The question is not whether any documents responsive to the request might exist, but rather whether the search for any responsive documents was adequate. Steinberg v. United States Department of Justice, 745 F.2d 1476 (D.C. Cir. 1984). We believe a reasonable search was conducted and you have now received all of the responsive documents. As noted above, one document is being withheld pursuant to exemption 5 of the FOIA.
Exemption 5
One-half page of notes is withheld pursuant to 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). One
of the policy purposes constituting a basis for the deliberative
process privilege is to encourage open, frank discussions on matters
of policy between subordinates and superiors. The half page of
notes withheld here were used in discussion and preparation of
our May 10 response to your April 20 FOIA appeal.
Pursuant to 5 U.S.C. 552(a)(4)(B) of the Freedom of Information
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
GC/HMU:bhs
00-0629
SSIC 3212
FOIA 00-278