Mr. Andrew Kaminski
110 Greenpoint Avenue
Brooklyn, NY 11222
Re: FOIA Appeal, your letter dated December
4, 2000
Dear Mr. Kaminski:
We received your December 4, 2000, Freedom
of Information Act (FOIA) appeal on December 8, 2000. In your
appeal, you reference Dianne Salva's (NCUA's FOIA Officer) response
to you dated November 2, 2000. Ms. Salva's November 2nd
letter was a final response to two of your FOIA requests, one
dated August 13th and another dated August 16, 2000.
You received an interim response from Ms. Salva to your August
13th request, dated October 6, 2000. (See discussion
below.) The November 2nd response specifically responded
to your August 16th request and noted that no additional
documents were found responding to your August 13th
request. Included with the November 2nd letter were
8 documents (for a total of 43 pages) sent in response to your
August 16th request concerning NCUA's investigation
of Currency Transaction Reporting Act violations by Polish and
Slavic Federal Credit Union (P & S FCU). Twenty-four documents
were withheld. You returned the 8 documents noting they were
already in your possession for "many, many months and are
totally inadequate to satisfy" your request. You also returned
the invoice (bill for $413) enclosed with the November 2nd
letter. The FOIA Officer is not aware of what documents you already
possess. Unless you specifically exclude certain responsive documents
in a FOIA request, all responsive, releasable documents and appropriate
charges therefore will be forwarded to you. You remain responsible
for the charges set forth in the invoice. We have not treated
this portion of your letter as part of your FOIA appeal.
You note in your letter that you are appealing
NCUA's response to your request for documents concerning the selection
of the Advisory Board to P & S FCU. This is an appeal of
Ms. Salva's October 6, 2000, response to your August 13, 2000,
request. Your appeal specifically states you seek records of
any information concerning qualification for and, instructions
regarding those to be denied eligibility to the Advisory Board,
and any information specifically concerning you and the Advisory
Board selection process. Your August 13, 2000, request also included
records concerning selection of the board of directors of P &
S FCU (put in place when the FCU was released from conservatorship).
You received 16 documents totaling approximately 56 pages in
response to your August 13th request. Several of the
released pages had information redacted. Thirty-three documents
totaling 113 pages were withheld. All redactions and pages withheld
in full were made pursuant to exemptions 5, 6, 7(C), & 8 of
the FOIA. 5 U.S.C. 552(b)(5), (6), (7)(C) & (8). Your appeal
is granted in part and denied in part. A portion of one page
and four complete pages are released and enclosed. Redacted and
withheld information continues to be withheld pursuant to exemptions
5, 6, 7(C) & (8). A discussion of the types of information
withheld and the applicable exemptions follows. We also note
that approximately 29 of the 113 pages withheld were not specifically
responsive to your August 13th FOIA request and this
appeal. Information concerning selection of the Advisory Board
and the board of directors for P & S FCU was not contained
in those 29 pages.
Exemption 5
The information withheld pursuant to exemption
5 includes internal correspondence (including e-mail) and memoranda,
and drafts of memoranda and letters. 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, frank
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 first and third policies enumerated in
Russell apply in this case. The second policy does not
apply since the selection of the Advisory Board and board of directors
has already taken place.
Exemption 6
The information withheld pursuant to exemption
6 includes home addresses, telephone numbers and biographical
and interview information of those who applied to be on the Advisory
Board. Personal information on former officials was also withheld.
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 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 withheld (and redacted) information meets the 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.
The information withheld pursuant to exemption
7(C) includes personal information on former credit union officials.
Exemption 7(C) protects information compiled for law enforcement
purposes that, if released, "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). NCUA proceedings (e.g. investigation
and conservatorship proceedings) qualify as law enforcement for
purposes of exemption 7. In SafeCard Services v. SEC,
926 F.2d 1197, 1206 (D.C. Cir. 1989), the court held that the
categorical withholding of information that identifies third parties
in law enforcement records is appropriate. The balancing used
for exemption 6 material is not necessary for withholding information
pursuant to exemption 7(C). Personal information on former credit
union officials continues to be withheld pursuant to exemption
7(C).
The information withheld pursuant to exemption
8 includes information on the financial condition of the P &
S FCU, including safety and soundness and CAMEL code information.
Exemption 8 of the FOIA applies to information "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 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. Both purposes outlined in
Atkinson are 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.
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 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
Enclosures
GC/HMU:bhs
00-1218
SSIC 3212
FOIA 00-416