March 22, 1996
Oliver Garcia, Esq.
Williams & Connolly
725 Twelfth Street, NW
Washington, DC 20005
Re: Follow-up to Freedom of Information Act Appeal
(Your March 6, 1996 Letter)
Dear Mr. Garcia:
This is in response to your March 6, 1996 letter which set forth
several concerns with our February 27, 1996 reply to your Freedom
of Information Act (FOIA) appeal. We are treating your March
6 letter as a request for reconsideration of our February 27 response.
Your first concern was with our representation of the date of
receipt of your appeal letter. Your appeal letter was dated January
24, 1996. You noted in your March 6 letter that the appeal was
hand-delivered to the NCUA on January 24. Enclosed with the March
6 letter was a copy of the delivery sheet signed, on January 24,
by the security officer in the lobby of our building. We made
an error in calculating the twenty days for responding to your
appeal by using January 29 as the date of receipt instead of January
24. This was an unintentional administrative error.
Your next concern addresses our reliance on the case of Ripskis v. Dept. of Housing and Urban Development, 746 F.2d 1 (D.C. Cir. 1984). We incorrectly cited this case as weighing in favor of non-disclosure of information rather than disclosure of information in an exemption 6 FOIA situation. Although I am at a loss to explain how this unfortunate error occurred, it was just that, an unfortunate error. Ripskis holds that the clearly unwarranted language of exemption 6 weights the scales in favor of disclosure rather than non-disclosure. According to the language of exemption 6, the privacy interest will prevail and documents will not be disclosed if disclosure would "constitute a clearly unwarranted invasion of personal privacy," (5 USC 552(b)(6), emphasis added). Unless the invasion of personal privacy was clearly unwarranted, a public interest, if one is found, would outweigh the privacy interest and documents should be disclosed. We note that the court in Ripskis balanced the scales in favor of non-disclosure, that is, it found a clearly unwarranted invasion of personal privacy. As noted in our February
27 response, we believe that "the balance of xxxxx privacy
interest against any public interest is clearly in favor
of his privacy." at p. 2, emphasis added.
We cited McCutchen v. HHS, 30 F.3d 183 (D.C. Cir. 1994)
for the premise that a general public interest in mere allegations
of wrongdoing does not outweigh an individual's privacy interest
in unwarranted association with such allegations. You pointed
out that McCutchen interprets exemption 7(C) rather than
exemption 6 and hence cannot not be relied upon. We acknowledge
that McCutchen does not apply to exemption 6 and our reliance
on it was misplaced. Other caselaw applies a standard similar
to that set out in McCutchen to an exemption 6 case. (See
Carter v. U.S. Department of Commerce, 830 F.2d 388
(D.C. Cir. 1987) where the court held that disclosure of certain
information concerning records of dismissed federal employee investigations
would create a clearly unwarranted invasion of personal privacy
pursuant to exemption 6. The court held that the documents should
not be released.) Carter was decided prior to the Supreme
Court decision of Department of Justice v. Reporters Committee
for Freedom of the Press, 109 S. Ct. 1468 (1989). The Reporters
Committee case narrowed the public interest used in the balancing
test from the particular purposes for which the information is
sought to the nature of the requested documents and their relationship
to the public interest generally. Reporters Committee
109 S. Ct. at 1480-81.
Upon reconsideration of xxxxx privacy interest and its balance
against the public interest in disclosure of certain records,
we have made a determination to release certain records. Certain
other records remain withheld pursuant to exemption 6. Our original
February 27, 1996 response with the corrections noted above continues
to apply to the documents withheld.
Our reconsideration is based on the nature of some of the responsive
records and their availability to the public. Certain cases in
which xxxxx was involved have been decided by the federal courts.
These cases are either reported decisions or are accessible through
Westlaw or other legal databases. We have determined that although
xxxxx has a strong privacy interest in these matters, the cases
are a matter of public record and we are required to provide access
to them through the FOIA. These records do not meet the practical
obscurity standard as set forth in the Reporters Committee
case. Enclosed are copies of Mann v. Carver, 644 F.Supp.
129 (E.D. Missouri, 1986); International Union v. Auto Glass
Employees FCU et al., 858 F.Supp. 711 (M.D. Tenn. 1994) and
its 6th Circuit Court of Appeals decision; and the unpublished
district court decision Allen et al v. CNS FCU (South Carolina
District, Charleston Division (8/24/94)) and its 4th Circuit Court
of Appeals decision captioned Huggins v. Apperson, (unpublished
decision, see 69 F.3d 533, 4th Cir. S.C.).
You asked in your original December 21, 1995 FOIA request that
you be provided with an estimate of the amount of fees if locating
or duplicating records would exceed $25.
We note that in light of your very broad FOIA request, there are thousands of potentially responsive documents relating to the above-noted cases. Many of the documents have
been sent to several different archive locations and some are
retained by private counsel hired by NCUA. These documents would
need to be located, duplicated and redacted. It would take numerous
hours just to determine the cost involved in generating the releasable
portions of documents. We request that you review the enclosed
cases and then notify us if you wish to further pursue your original
request or if you wish to narrow the request. We will then estimate
the time and cost of responding to the request.
As noted in the last paragraph of our February 27 letter, 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). Your appeal rights
run from the date of this letter rather than from February 27.
Sincerely,
Robert M. Fenner
General Counsel
Enclosures
GC/HMU:bhs
96-0315
SSIC 3212