R.C. Eickelberg, CEO
Deer Valley Federal Credit Union
16215 N. 28th Avenue
Phoenix, AZ 85053
FOIA Appeal, your letter dated October 21, 1999
Dear Mr. Eickelberg:
On September 29, 1999, you filed a Freedom of Information Act (FOIA) request for copies of the field of membership expansion application and supporting documents filed by Honeywell FCU, located in Minneapolis, MN. This request was submitted to NCUA's Region V office. On October 14, 1999, J. Leonard Skiles, NCUA's Region V Director, responded to your request, enclosing approximately 20 pages of responsive records. Approximately sixty pages of responsive documents were withheld pursuant to exemption 4 of the FOIA.
5 U.S.C. 552(b)(4). We received your October 21, 1999 appeal
on October 26. Your appeal is granted in part and denied in part.
Enclosed are five pages (four with redactions) previously withheld.
The redactions are made pursuant to exemptions 4 and 6 of the
FOIA. The rest of the documents continue to be withheld pursuant
to exemption 4 of the FOIA. The exemptions are discussed below.
Exemption 4 of the FOIA protects two categories of information:
(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). All of the information withheld is within
the commercial/financial category. The term "commercial"
has been interpreted to include anything "pertaining or relating
to or dealing with commerce." American Airlines, Inc.
v. National Mediation Board, 588 F.2d 863, 870 (2d Cir. 1978).
All of the information withheld pursuant to exemption 4 meets
the broad interpretation of commercial or financial information.
Information "obtained from a person" has been held
to include information obtained from a corporation. Nadler
v. FDIC, 92 F.3d 93, 95 (2d Cir. 1996). Information obtained
from a credit union meets the standard of obtained "from
a person" under Nadler. 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/financial information
submitted to an agency is "confidential" under exemption
4. According to Critical Mass, information required to
be submitted to an agency (which is the case here) is confidential
if its release would (1) impair the Government's ability to obtain
necessary information in the future; or (2) cause substantial
harm to the competitive position of the person from whom the information
was obtained. See National Parks & Conservation
Association v. Morton, 498 F.2d 765 (D.C. Cir. 1974). We
believe the information withheld meets the substantial harm prong
of National Parks as noted in Critical Mass.
Exemption 6 of the FOIA 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
which 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, 272 (1976). Personal information about Honeywell
FCU officials has been redacted from three of the released pages.
This information meets the threshold requirement for exemption
6 protection. There is minimal, if any public interest in disclosing
this personal information. The individuals' privacy interests
outweigh any public interest in disclosure.
Pursuant to 5 U.S.C.552(a)(4)(B), 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
99-1043
SSIC 3212
Enclosure
cc: Region V Director
Douglas Young, Honeywell FCU