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FDIC Annual Report on
the Freedom of Information Act
Fiscal Year 2004 (October 1, 2003 - September 30,
2004)
I. Basic Information Regarding
this Report
A. The
FDIC contact person for questions about this report is Fredrick Lee Fisch,
Supervisory Counsel (FOIA/Privacy Act Officer), FDIC Legal Division, 550
17th St. N.W., Room H-3039, Washington, D.C. 20429; Telephone (202)
736-0526; FAX (202) 736-0547.
B. This
report is available on the FDIC web site at
http://www.fdic.gov/about/freedom/reports.html
C. A
paper copy of this report may be obtained by downloading it from the FDIC
web site or by requesting a copy from the FDIC Public Information Center,
801 17th Street. N.W., Washington, D.C. 20006; Telephone (877) 275-FDIC
(3342)
II. How to Make a
FOIA Request to the FDIC
A. All FOIA requests are
processed by the FDIC FOIA/Privacy Act Group in Washington, D.C. Requests
must be in writing and directed to Fredrick Lee Fisch, FOIA Officer, FDIC
Legal Division, 550 17th St. N.W., Room H-3039, Washington, D.C. 20429.
Requests may also be submitted electronically through the FDIC Electronic
FOIA Office on the web site at
http://www2.fdic.gov/efoiarequest/index.asp . The
FDIC publication entitled, “FOIA Guide – Gaining Access to FDIC
Information” explains in detail how to submit a FOIA request to the FDIC.
The FOIA Guide is available on the FDIC web site at
http://www.fdic.gov/about/freedom/Guide.html .
B. The
FDIC makes every effort to comply with the statutory time period for
responding to FOIA requests. Response times range from 1 day to several
months in rare cases. The vast majority of requests are fulfilled within
20 business days.
C. Some
FOIA requests are denied in whole or in part because the information
requested is exempted from disclosure by the FOIA (5 U.S.C. §552 (b)) or
another statute. The exemptions most often applicable to information
requested from the FDIC include (b)(4), (b)(5), (b)(6) and (b)(8). The
FDIC receives a great deal of privileged and private financial information
concerning individuals, business, and banking entities by virtue of its
roles as a federal financial institution regulatory agency as well as the
appointed receiver of virtually all failed U.S. depository institutions.
Therefore, exemptions (b)(4) and (b)(6) are invoked to withhold
confidential or privileged material. The FDIC is also the primary
regulator of most state-chartered financial institutions and therefore
prepares or receives bank examination reports and related material. Such
records are exempted from FOIA disclosure in order to promote frank
communications between financial institutions and the FDIC examination
staff and to maintain stability in the financial system. Accordingly, the
FDIC invokes FOIA exemption (b)(8) for these purposes. Other exemptions,
such as (b)(2) and (b)(7)(A) are used occasionally. In some cases, records
cannot be located.
III. Definitions of Terms and Acronyms Used
in the Report
A.
There are no FDIC-specific acronyms or other terms used in this report.
B.
Basic report terms expressed in common terminology include:
1. FOIA/PA request
– Freedom of Information
Act/Privacy Act request. A FOIA request is generally a request for access
to records concerning a third party, an organization, or a particular
topic of interest. A Privacy Act request is a request for records
concerning oneself; such requests are also treated as FOIA requests. (All
requests for access to records, regardless of which law is cited by the
requester, are included in this report.)
2. Initial Request
– A request to FDIC for access to
records under the Freedom of Information Act.
3. Appeal
– A request to FDIC asking that it
review at a higher administrative level a full denial or partial denial
of access to records under the Freedom of Information Act, or any other FOIA determination such as a matter pertaining to fees.
4. Processed Request or Appeal – A request or appeal for
which FDIC has taken a final action on the request or the appeal in all
respects.
5. Multi-track processing
– A system in which simple
requests requiring relatively minimal review are placed in one processing
track and more voluminous and complex requests are placed in one or more
other tracks. Requests in each track are processed on a first-in/first
out basis. A requester who has an urgent need for records may request
expedited processing (see below)
6. Expedited processing
– The FDIC will process a FOIA
request on an expedited basis when a requester has shown an exceptional
need or urgency for the records which warrants prioritization of his or
her request over other requests that were made earlier.
7. Simple request – A FOIA request that FDIC
(using multi-track processing) places in its fastest (non-expedited)
track based on the volume and/or simplicity of the records requested.
8. Complex request
– A FOIA request that FDIC
(using multi-track processing) places in a slower track based on the
volume and/or complexity of records requested.
9. Grant – A decision to disclose all records in full in
response to a FOIA request.
10. Partial grant
– A decision to disclose a record in
part in response to a FOIA request, deleting information determined to be
exempt under one or more of the FOIA exemptions; or a decision to
disclose some records in their entirety, but to withhold others in whole
or in part.
11. Denial – A decision not to release any part of
a record or records in response to a FOIA request because all the
information in the requested records is determined to be exempt under one
or more of the FOIA's exemptions, or for some procedural reason (such as
because no record is located in response to a FOIA request).
12. Time limits
– The time period in the Freedom of
Information Act for the FDIC to respond to a FOIA request (ordinarily 20
working days from proper receipt of a "perfected" FOIA request).
13. "Perfected" request
-– A FOIA request for
records which adequately describes the records sought, which has been
received by the FDIC FOIA/Privacy Act Group in Washington, D.C., and for
which there is no remaining question about the payment of applicable
fees.
14. Exemption 3 statute– A separate federal statute
prohibiting the disclosure of a certain type of information and
authorizing its withholding under FOIA subsection (b)(3).
15. Median number
– The middle, not average, number. For
example, for the numbers 3, 7, and 14, the median number is 7.
16. Average number – The number obtained by
dividing the sum of a group of numbers by the quantity of numbers in the
group. For example, for the numbers 3, 7, and 14, the average number is
8.
IV. Exemption 3
Statutes
A. 31 U.S.C. § 5318(g)
1. The FDIC used this section of the Bank Secrecy Act on one occasion to
partially deny access to requested records. The material consisted of a
Suspicious Activity Report (SAR) filed by a financial institution in
accordance with the Bank Secrecy Act and SAR regulations issued by the
five federal financial institution supervisory agencies and the U. S.
Department of the Treasury’s Financial Crimes Enforcement Network.
2. The FDIC is unaware of any court case upholding the use of 31 U.S.C. §
5318(g) as an exemption 3 statute. The statute, however, has been widely
upheld when used in litigation to shield SARs from use in discovery or
civil trials.
V. Initial FOIA/PA Access
Requests
A. Numbers of initial requests.
1. Number of requests pending as of end of preceding fiscal year: 63
2. Number of requests received during current fiscal year: 727
3. Number of requests processed during current fiscal year: 733
4. Number of requests pending as of end of current fiscal year: 57
B. Disposition of
initial requests.
1. Number of total grants: 456
2. Number of partial grants: 75
3. Number of denials: 23
(a) Exemptions used
Exemption 1: 0
Exemption 2: 14
Exemption 3: 1
Exemption 4: 39
Exemption 5: 28
Exemption 6: 69
Exemption 7(A): 0
Exemption 7(B): 0
Exemption 7(C): 7
Exemption 7(D): 1
Exemption 7(E): 3
Exemption 7(F): 0
Exemption 8: 25
Exemption 9: 0
(a) no records: 72
(b) referrals: 1
(c) request withdrawn: 37
(d) fee-related reason: 9
(e) records not reasonably described: 45
(f) not a proper FOIA request for some other reason: 0
(g) not an agency record: 9
(h) duplicate request: 6
(i) other (specify): 0
VI. Appeals of Initial
Denials of FOIA/PA Requests
A. Numbers of
appeals.
1. Number of appeals received during fiscal year: 14
2. Number of appeals processed during fiscal year: 14
B. Disposition of
appeals.
1. Number completely upheld: 2
2. Number partially upheld: 3
3. Number completely reversed: 2
(a) Exemptions used
Exemption 1: 0
Exemption 2: 1
Exemption 3: 1
Exemption 4: 4
Exemption 5: 3
Exemption 6: 5
Exemption 7(A): 0
Exemption 7(B): 0
Exemption 7(C): 3
Exemption 7(D): 0
Exemption 7(E): 2
Exemption 7(F): 0
Exemption 8: 3
Exemption 9: 0
(a) no records: 5
(b) referrals: 0
(c) request (appeal) withdrawn: 2
(d) fee related reason: 0
(e) records not reasonably described: 0
(f) not a proper FOIA request for some other reason: 0
(g) not an agency record: 0
(h) duplicate request: 0
(i) other (specify): 0
VII Compliance with
Time Limits/Status of Pending Requests
A. Median processing time for requests processed
during the year.1
1. Simple Requests.
(a) Number of requests processed: 442
(b) Median number of days to process: 13
2. Complex requests.
(a) Number of requests processed: 287
(b) Median number of days to process: 20
3. Requests accorded expedited processing.2
(a) Number of requests processed: 4
(b) Median number of days to process: 3
B. Status of
pending requests.
1. Number of requests pending as of end of current fiscal
year: 57
2. Median number of days that such requests were pending
as of that date: 17
VIII. Comparisons
with Previous Year
A. Requests received.
Prior Reporting Period: 789
Current Reporting Period: 727
B. Requests processed.
Prior Reporting Period: 823
Current Reporting Period: 733
C. Median number of days requests were pending as of
the end of the year.
Prior Reporting Period: 15
Current Reporting Period: 17
D.
Four requests for expedited processing were formally requested and
granted.
E.
Overall response time continues to improve due primarily to staff
training, better communication with requesters, and greater use of
technology. The number of appeals continues to decline signifying improved
quality of initial responses and requester satisfaction. The effectiveness
of FOIA operations is a matter of continuous evaluation.3
The number of requests received on the
FDIC's web site continues to steadily increase.4
Training was provided for employees at the
Dallas Regional Office.5
IX. Costs/FOIA
Staffing
A. Staffing
levels.
1. Number of full-time FOIA personnel: 6
2. Number of personnel with part-time or occasional FOIA
duties (in total work-years): 4
3. Total number of personnel (in work-years): 10 6
B. Total costs
(including staff and all resources).
1. FOIA processing: $1,786,690
2. Litigation-related activities: $100,160 7
3. Total costs: $1,886,850
X. Fees
A. Total amount
of fees collected by agency for processing
requests:
$25,375 8
B. Percentage of
total costs:
1.34%
XI. FOIA
Regulations and Fee Schedule:
FDIC FOIA regulations may be found at: http://www.fdic.gov/regulations/laws/rules/2000-3800.html#2000part309.
Paper copies of this report contain the full text of
the regulations.
The FDIC Records Fee Schedule is set forth below and it may be found at
http://www.fdic.gov/about/freedom/fees.html#schedule.
Federal Deposit
Insurance Corporation
Records
Fee Schedule
April 4, 2005
In accordance with 12 C.F.R. § 309.5(f), the
Federal Deposit Insurance Corporation hereby sets forth the
fees to be charged for the production of agency records.
These fees will be effective for requests submitted no less
than thirty days from the above date of issuance. Persons
requesting records from the FDIC shall be charged for the
direct costs of search, review and duplication as set forth
at 12 C.F.R. § 309.5(f), unless such costs are less
than $10.00. The following fees shall be in effect until further notice.
Hourly labor rates: Executive staff @ $99.00 - Professional
staff @ $62.00 - Clerical staff @ $27.00
Duplication: $0.20 per page
Computer charges: Personal computer rate @ $1.84 per hour of
use (in addition to hourly labor rates); Floppy disks @ $.50 each (plus
data/labor costs); CD @ $1.00 (plus data/labor costs); Magnetic tape
reel/cartridge @ $10.00 each (plus data/labor costs); Large tape
reel/cartridge @ $100.00 each (plus data/labor costs); Mainframe computer
data costs (plus hourly labor rates, if applicable): CPU processing @ $0.18
per second; Disk I/O @ $0.35 per 1000 transactions; Tape I/O @ $0.20 per
1000 transactions; Printing @ $0.88 per 1000 lines.
S pecial
products: Certain reports, manuals and other products
are offered at set prices by agency components which produce them. Prices
may be obtained upon request.
1 Mail-handling procedures initiated after September 11, 2001
continue to cause some disruption to the FDIC’s receipt of FOIA requests
received through the U.S. Postal Service. Nevertheless, FDIC processed 733
cases to conclusion with a very low overall median processing time.
2 Expedited processing is generally granted to
news media requesters, a party whose health or physical safety is in danger,
or for other good cause. Most of the requests accorded expedited processing
were complex matters requiring great attention to detail, the tasking of
multiple Offices and Divisions of the FDIC, the retrieval of records from
remote locations, and extensive redaction and review time. All of the
requests designated for expedited processing were in the educational,
scientific and news media fee category. Last year’s FOIA Annual Report
showed a substantial decrease in processing time for expedited requests,
going from 72 calendar days in fiscal year 2002 to 15 business days in
fiscal year 2003. This year, the FDIC has improved again in reducing the
processing time of expedited requests from 15 business days down to 3
business days. This further improvement is a result of increased
communication with news media requesters. The FDIC regularly contacts news
media and all categories of FOIA requesters to help understand and refine
the scope of the search necessary to satisfy the request. This protocol
often eliminates the need for burdensome and time-consuming searches and
review periods that may have produced little or no responsive material and
would clearly have resulted in response time delays.
3 The FDIC’s FOIA Officer undertakes detailed
periodic analyses of outstanding and closed FOIA requests. The results of
these analyses are communicated through the supervisory chain and discussed
among FOIA staff at regular meetings. This continuous review of response
times, appeal rates, aging of requests, and subject matter trends, as well
as the updating of the FDIC’s FOIA web pages, provides the FDIC with useful
tools in evaluating the efficiency of FOIA operations.
4 The FDIC has posted a great deal of
information directly on the web site, such as records concerning regulatory
proposals, member financial institution data, FDIC enforcement actions,
public comments, and final orders issued from FDIC's Board of Directors. The
on-line agency FOIA Guide also helps requesters to better target their
requests and includes links to the FDIC's FOIA regulation, the Justice
Department's Guide to the FOIA, and popular FOIA records. In September 2004,
the FDIC completed a comprehensive update of all FOIA web pages, ensuring
that all information is current, increasing the number of links to
frequently requested materials, and improving access through more intuitive
selection buttons.
5 One session was held in October 2003 and
another in December 2003. The audience for each two-hour session was
approximately 50 people, consisting of legal, accounting, administrative,
and receivership resolution staff. FOIA staff also issued multiple written
memoranda and provided other guidance to many Offices and Divisions of the
FDIC and coordinated and tracked the FOIA appeals for the General Counsel.
6 This does not include staff at the FDIC's
Reading Room/Public Information Center.
7 The FDIC was named as a party in two new
FOIA-related lawsuits this year. Litigation costs incurred by the FDIC
involve providing assistance to various U.S. Attorney’s Offices in defending
FOIA litigation brought against the Justice Department regarding law
enforcement records, some of which had originated with the FDIC.
8 This does not include fees collected from
the Reading Room/Public Information Center, since those fees are not
generated pursuant to requests for records under section (a)(3) of the FOIA.
The Public Information Center collected fees of $17,905.00 during the same
period. Pursuant to statute, the FDIC’s published regulations afford
discounted search, review, and duplication charges to certain noncommercial
requestors. The FDIC therefore fulfills many FOIA requests at no charge to
these requestors, while accruing substantial cumulative costs.
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