Jerome G. Snider, Esq.
Davis Polk & Wardwell
450 Lexington Avenue
New York, NY 10017
Re: Freedom of Information Act Appeal dated June 3, 1997
Dear Mr. Snider:
On May 1, 1997, you filed a request under the Freedom of Information
Act (FOIA) for certain documents dated or created from January
1, 1979 through January 1, 1984. You requested documents pertaining
to Davisville Credit Union, in connection with proposed and actual
mergers with NCUA-insured credit unions, including but not limited
to Quonset Point Credit Union and Amtrol Employees Federal Credit
Union. Richard Schulman, NCUA's FOIA Officer, responded to your
request on May 16, 1997 stating that the NCUA had nothing in its
files responsive to your request. You have appealed this determination
stating that you have come across documents showing that Davisville
Credit Union corresponded with NCUA regarding the actual or proposed
mergers subject to your request. However, you did not provide
any information about those documents that might otherwise assist
in the processing of your request. Instead, you asked us to reinspect
our records, to determine whether there are any responsive documents
and if no responsive documents can be found, you asked us whether
the records were destroyed or what record-keeping practices might
account for the disappearance of such documents. We have found
no responsive records. We confirm the FOIA Officer's finding
and deny your appeal.
We note that Davisville Credit Union was chartered in the state
of Rhode Island and was never federally insured. Davisville was
insured by the Rhode Island Share and Deposit Indemnity Corporation
(RISDIC). The only existing records NCUA has located pertaining
to Davisville Credit Union concern Davisville's attempt to obtain
federal share insurance and are dated from 1990 through 1991.
These records were part of the subject of your September 17,
1996 FOIA request. Many of these records have been made available
to you. (See my January 28, 1997 response to your December
12, 1996 FOIA appeal.)
You appear to be questioning NCUA's search for the documents requested.
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, 841 (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, 23 F.3d 458 (D.C. Cir. 1994) quoting from Weisberg
v. United States Department of Justice, 745 F.2d 1476 (D.C.
Cir. 1984).
You have requested records which you allege were dated or created between
January 1, 1979 and January 1, 1984. Assuming these documents
did exist at one time, they now would be between thirteen and
eighteen years old. NCUA, and all federal agencies, maintain
most records only for a limited period of time. Records are maintained
pursuant to both government-wide and individual agency schedules.
(See applicable regulations of the National Archives and
Records Administration, 36 C.F.R. 1228.) Under NCUA's record
retention schedules, routine correspondence for federal credit
unions is transferred to the appropriate Federal Records Center
when it is three years old and destroyed when it is seven years
old. For state chartered credit unions, routine correspondence
is transferred to the Federal Records Center when it is three
years old and destroyed when it is five years old. Any correspondence
concerning the possible merger of Davisville Credit Union with
a federally insured credit union would have been placed in the
federally insured credit union's file, sent to the Federal Records
Center after three years and then destroyed either two or four
years later. Thus, any correspondence that might have been responsive
to your request would have been destroyed by 1991 and NCUA is
under no further obligation to search for the requested records.
Pursuant to 5 U.S.C. 552(a)(4)(B), you may seek judicial review of this determination by filing suit to against NCUA. Such a suit may be filed in the United States District Court in the district where the requester resides, where the requester's principal place of
business is located or in the District of Columbia.
Sincerely,
Robert M. Fenner
General Counsel
GC/HMU:bhs
SSIC 3212
97-0605