Michael Crotty
Deputy General Counsel for Litigation
1120 Connecticut Avenue, N.W.
Washington, D.C. 20036
Re: FOIA Appeal, your letter dated June 6, 1997
Dear Mr. Crotty:
On May 13, 1997, you submitted a Freedom of Information Act (FOIA)
request to NCUA's Region V Director on behalf of the American
Bankers Association. You requested the following documents: 1)
the portion of Holyoke Community Federal Credit Union's charter
that contains its current field of membership; and 2) any and
all correspondence since August 1, 1996, between the Holyoke Community
Federal Credit Union or its predecessor(s) and the National Credit
Union Administration which pertains in any way to any changes,
proposed, approved, rejected or pending, to the credit union's
field of membership. The credit union did apply for a field of
membership expansion prior to the August 1, 1996 date noted in
your request. There has not yet been final agency action on the
application. Phillip R. Crider, the Region V Director, responded
to your request on May 16, 1997. You were provided with a current
copy of section 5 of the credit union's charter. Section 5 of
the charter sets forth the field of membership. All other requested
documentation (that noted in item 2 above) was denied pursuant
to exemption 5 of the FOIA. We received your June 6, 1997 appeal
on June 9. Your appeal is granted in part and denied in part.
The responsive documents (some with redactions) are enclosed.
We have included some correspondence prior to August 1, 1996
as it relates to the outstanding field of membership expansion
request.
The enclosed documents constitute the credit union's application
package for a field of membership expansion. Only one two-page
document was withheld in full pursuant to exemption 4. As you
can see from the enclosed documents, very little information has
been redacted. Information was withheld and redacted pursuant
to exemptions 4 and 6 of the FOIA as explained below.
Exemption 4
The information withheld pursuant to exemption 4 consists of certain
strategic planning information contained in correspondence the
credit union submitted to NCUA. One two-page document is withheld
in full. Exemption 4 of the FOIA covers 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),
and information obtained from a corporation is included as information
obtained from a person. Nadler v. FDIC, 92 F.3d 93,95
(2d Cir. 1996).
The third requirement of exemption 4 is met if information is "privileged or confidential." In Critical Mall Energy Project v. NRC, 975 F.2d 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. Information which is required to be submitted is subject to
a stricter standard than information which is voluntarily submitted.
Under the stricter "required to be submitted" standard,
information is confidential if it meets one of the two prongs
of National Parks & Conservation Association v. Morton,
498 F.2d 765 (D.C. Cir. 1974). The information is confidential
under National Parks 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. National Parks
at 770. We believe that the commercial information withheld meets
the second prong of National Parks.
Exemption 6
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). The information withheld pursuant
to exemption 6 consists of home addresses and two home telephone
numbers of persons submitting letters in support of expansion
of the credit union's field of membership. Copies of the letters,
with home addresses and telephone numbers redacted, are enclosed.
The redacted information clearly meets the threshold privacy
requirement for exemption 6 personal information. Home addresses
and telephone numbers apply to a particular individual. Once
a privacy interest is established, application on 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). According to the courts,
the public interest in the information is to "shed light
on an agency's performance of its statutory duties." United
States Department of Justice v. Reporters Committee, 489 U.S.
749 (1989). The burden of establishing that disclosure would
serve the public interest is on the requester. Carter v. United
States Department of Commerce, 830 F.2d 388 (D.C. Cir. 1987).
We do not believe there is any public interest in disclosing
the home addresses and telephone numbers. Disclosure of this
information would not shed light on NCUA's performance of its
statutory duties. Therefore, no balancing is necessary and the
information is withheld pursuant to exemption 6. National
Association of Retired Federal Employees v. Horner, 879 F.2d
873 (D.C. Cir. 1989), cert. denied, 494 U.S. 1078 (1990).
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 and portions of documents withheld and to order production of the documents. Such a suit may be filed in the United States District Court in the district where the requester 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
SSIC 3212
97-0615
Enclosures
cc: Region V Director