Todd Okun, Esq.
Styskal, Wiese & Melchione, LLP
550 North Brand Boulevard
Suite 550
Glendale, CA 91203
Re: FOIA Appeal, your letter dated August 5, 1999
Dear Mr. Okun:
On June 11, 1999, you filed a request pursuant to the Freedom
of Information Act (FOIA) on behalf of your client, Bellco Federal
Credit Union (Bellco). You requested records concerning Bellco's
application and appeal to convert to a community charter. Dianne
Salva, NCUA's FOIA Officer, responded to the request on July 9,
1999. Your request was granted in part and denied in part. Seven
documents were withheld pursuant to exemption 5 of the FOIA.
On July 23rd , you wrote to Ms. Salva concerning her
July 9th response. Ms. Salva responded to your letter
on August 13th. We received your FOIA appeal on August
6th. Your appeal is granted in part and denied in
part. Portions of all pages withheld are now released. Enclosed
are 23 pages released with redactions. The portions redacted
continue to be withheld pursuant to exemption 5 of the FOIA.
The information redacted from the enclosed documents consists primarily of staff recommendations made prior to any action by either the Region I Office or the NCUA Board. Factual information in the documents is released. 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 USC 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 rationales enumerated in Russell apply in this case. The second enumerated rationale does not apply since the NCUA Board has taken final agency action in the Bellco appeal.
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 the requester's 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
99-0817
SSIC 3212
Enclosures