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July 2, 2001
EXEMPTION 6
Re: FOIA Appeal, your letter dated May 29, 2001
Dear M : EXEMPTION 6
On April 10, 2001, you made a request for records pursuant to
the Freedom of Information Act (FOIA), 5 U.S.C. 552, and Privacy
Act, (PA) 5 U.S.C. 552a. On May 15, Dianne Salva, NCUA's FOIA
Officer, responded to your request, enclosing 61 pages of responsive
documents. One 5-page document was identified and withheld pursuant
to exemptions 7(A), 7(C), and 8 of the FOIA and exemption (k)(2)
of the PA. The withheld document was found in NCUA's system of
records number 8 entitled, "Investigative Reports Involving
Any Crime, Suspected Crime or Suspicious Activity Against a Credit
Union, NCUA." We received your May 29, 2001, appeal on June
4, 2001. In addition to appealing the FOIA officer's determination
to withhold the 5-page document, you request that NCUA investigate
EXEMPTIONS 7(A) & 8 in relation to its release of your financial
transactions at the FCU to your former employer, and hold accountable
the EXEMPTION 7(A) & 8 FCU agents who perpetrated the release.
Your appeal for release of the 5-page document is denied pursuant
to exemptions 6, 7(A) and 7(C) of the FOIA and subsection (k)(2)
of the PA as explained below. As noted in Ms. Salva's letter,
NCUA has already processed your request for investigation through
its Region VI Office. There is no administrative review process
for this procedure.
Exemption 7(A) - FOIA
Exemption 7(A) authorizes the withholding of "records or
information compiled for law enforcement purposes, but only to
the extent that production of such law enforcement records or
information…could reasonably be expected to interfere with
enforcement proceedings." 5 U.S.C. 552(b)(7)(A). Criminal,
civil and regulatory proceedings have all been held to be law
enforcement proceedings for purposes of this exemption. Rosenglick
v. IRS, No. 97-747-18A, 1998 U.S. Dist. LEXIS 3920, at *6
(M.D. Fla. Mar. 10, 1998). A two-step test is necessary in order
to determine the applicability of exemption 7(A). First, a law
enforcement proceeding must be pending, proceeding or prospective;
and second, release of information about it could reasonably be
expected to cause some articulable harm. NLRB v. Robbins Tire
& Rubber Co., 437 U.S. 214, 224 (1978) and Manna v.
United States Department of Justice, 51 F.3d 1158 (3rd
Cir. 1995). There is a reasonable possibility of a prospective
proceeding given the nature and age of the document withheld,
so the first test is met. Release of the type of information
withheld could clearly interfere with prospective proceedings.
Therefore the documents continue to be withheld pursuant to
exemption 7(A).
Exemptions 6 and 7(C) - FOIA
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).
Exemption 7(C) is the law enforcement counterpart to exemption
6. It provides protection for law enforcement information the
disclosure of which "could reasonably be expected to constitute
an unwarranted invasion of personal privacy." 5 U.S.C. 552(b)(7)(C).
FOIA case law has established that law enforcement includes civil
and criminal statutes, as well as statutes authorizing administrative
(regulatory) proceedings. Center for National Policy Review
on Race and Urban Issues v. Weinberger, 502 F.2d 370, 373
(D.C. Cir. 1974).
The privacy interests to be protected are not your interests,
since you are making the information request. Rather, the privacy
interests of other parties named in the withheld document are
those protected. The courts have held that all information that
applies to a particular individual meets the threshold requirement
for privacy 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 standard for withholding information
pursuant to exemption 7(C) is more easily met than the standard
for exemption 6. Disclosure need only reasonably be expected
to constitute an invasion of privacy; balancing against the public
interest is not required. See United States Department
of Justice v. Reporters Committee for Freedom of the Press,
489 U.S. 749 (1989) and SafeCard Services v. SEC, 926 F.2d
1197, 1206 (D.C. Cir. 1989). The withheld information meets the
requirement for exemption 6 protection. Although there may be
some public interest in disclosing this personal information,
an individual's privacy interests, especially in a law enforcement
related document, clearly outweigh any public interest in disclosure.
The standard for withholding information for both exemptions
6 and 7(C) is met.
Exemption 8 - FOIA Exemption 8 of the FOIA protects matters that are "contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions." 5 U.S.C. 552(b)(8). The withheld document, although not prepared
The courts have discerned two major purposes for exemption 8 from
its legislative history: 1) to protect the security of financial
institutions by withholding from the public reports that contain
frank evaluations of a bank's stability; and 2) to promote cooperation
and communication between employees and examiners. See
Atkinson v. FDIC, 1 GDS 80,034, 80,102 (D.C. Cir. 1980).
The information withheld fits squarely within the language of
exemption 8. The purposes of the exemption are also met. Release
of the information withheld could reasonably harm the financial
security of a credit union and interfere with the relationship
between a credit union and NCUA.
Subsection (k)(2) - PA
Subsection (k)(2) of the PA provides that agencies may exclude
a system of records from its disclosure provisions if the system
contains "investigatory material compiled for law enforcement
purposes." 5 U.S.C. 552a(k)(2). As noted above, the withheld
document was found in NCUA system of records - 8 Investigative
Reports Involving Any Crime, Suspected Crime or Suspicious Activity
Against a Credit Union. NCUA has excluded this system from the
disclosure provisions of the PA. (See 5 U.S.C. 552a(d)(1).)
The document withheld contains investigatory material compiled
for law enforcement purposes. Enclosed is a copy of the Federal
Register publication concerning system 8.
Pursuant to the FOIA and PA (5 U.S.C. 552(a)(4)(B) of the FOIA
and 5 U.S.C. 552a(g) of the PA), 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 where the
requester resides, where the requester's principle place of business
is located, the District of Columbia, or where the document is
located (the Eastern District of Virginia). Sincerely,
Robert M. Fenner
GC/HMU:bhs
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