Case Detail

FOIA Project Annotation: Judge Amy Berman Jackson has ruled that the Federal Reserve conducted an adequate search for records pertaining to the potential consequences of a collapse of Lehman Brothers and AIG and properly claimed Exemption 4 (confidential business information), Exemption 5 (privileges), and Exemption 8 (bank examination records) to withhold portions of the records. Vern McKinley submitted two requestsâ€"one pertaining to Lehman Brothers and the other to AIG. He argued the agency's search was inadequate because it focused solely on its Project Collect Repository, which contained hundreds of thousands of documents collected as part of the agency's response to the financial crisis, and excluded records of the Federal Reserve Bank of New York. Jackson pointed out that "even if the Court were to agree with McKinley on that point, any records that remain at the FRBNY and not in the Project Collect repositoryâ€"to the extent that such records existâ€"are beyond the scope of McKinley's FOIA requests. McKinley's AIG request asked only for records 'concerning or relating to the Board's decision that detail that "the orderly failure of AIG was likely to have a systemic effect on financial markets. . ."' So the FRBNY cannot possess any of the materials that fall within this request because the records that FRBNY has in its possession are records that the FRBNY consulted in deciding what information to send to the Board. These records are not related to the Board's decision, and therefore do not fall within McKinley's request." As to McKinley's request pertaining to Lehman Brothers, Jackson noted that "since the Board was the only body that considered whether to take action under Section 13(3) of the Federal Reserve Actâ€"not the FRBNYâ€"the request refers only to information that the Board itself considered, which again is contained entirely in the Project Collect repository." Of the 83 records withheld, McKinley claimed that 16 of them were in the public domain because they had been published by the Financial Crisis Inquiry Commission. The agency told Jackson it had provided the documents to the congressional committee under a written confidentiality agreement. She indicated that "the mere fact that the committee subsequently, and without authorization, published the records does not constitute a waiver of the Board's FOIA Exemptions." McKinley argued the agency had not shown why information redacted under Exemption 4 could not be made public. But Jackson noted that two documentsâ€"information supplied by a confidential market source and financial information about Lehman Brothers' foreign operations supplied by foreign bank supervisory agenciesâ€"had been supplied voluntarily and were not the kind of information a company would customarily make public. Jackson agreed that the other two documents, which had been supplied involuntarily, would impair the agency's ability to get similar information in the future if disclosed. Turning to Exemption 5, Jackson rejected McKinley's claim that the exemption did not protect factual material. She noted that "because McKinley's sole argument for disclosure rests on the flawed assumption that factual material is not deliberative, the Court finds each of the sixty-two redacted or withheld records to be protected from disclosure under FOIA Exemption 5." On Exemption 8, McKinley argued the agency had not shown that the records came from a supervised financial entity. Jackson disagreed, observing that "McKinley points to no evidence that would controvert the Board's declarations, nor any evidence of agency bad faith. In camera review confirms that the disputed records contain properly exempted information from supervised financial entities."
Issues: Adequacy - Search, Exemption 4 - Confidential business information, Exemption 5 - Privileges - Deliberative process privilege - Deliberative, Exemption 8

Date Filed	Doc #	Docket Text
2010-05-11	1	COMPLAINT against BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM ( Filing fee $ 350, receipt number 4616029603) filed by VERN MCKINLEY. (Attachments: # 1 Civil Cover Sheet)(td, ) (Entered: 05/12/2010)
2010-05-11		SUMMONS (3) Issued as to BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM, U.S. Attorney and U.S. Attorney General (td, ) (Entered: 05/12/2010)
2010-05-21	2	SUMMONS Returned Executed by VERN MCKINLEY. BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM served on 5/17/2010, answer due 6/16/2010. (Attachments: # 1 Declaration of Cristina Rotaru)(Orfanedes, Paul) Modified date served and answer deadline on 5/24/2010 (znmw, ). (Entered: 05/21/2010)
2010-05-24		Set/Reset Deadlines to correct date of service and answer deadline: Answer due by 6/16/2010, (znmw, ) (Entered: 05/24/2010)
2010-06-08	3	NOTICE of Change of Address by Paul J. Orfanedes (Orfanedes, Paul) (Entered: 06/08/2010)
2010-06-14	4	Consent MOTION for Extension of Time to File Answer by BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM (Attachments: # 1 Proposed Order)(Simon, Jeremy) (Entered: 06/14/2010)
2010-06-15		MINUTE ORDER granting 4 Motion for Extension of Time to File Answer. The Court having considered the defendant's Consent Motion for Extension of Time to File Answer, and it appearing to the Court that there is good cause to grant the relief requested therein based upon the consent of the plaintiff as represented to the Court by the defendant, it is ORDERED that the motion is GRANTED. It is further ORDERED that the defendant shall answer or otherwise respond to the plaintiff's complaint on or before July 1, 2010. Signed by Judge Reggie B. Walton on 6/15/2010 (lcrbw1). (Entered: 06/15/2010)
2010-06-15		Set/Reset Deadlines: Answer or otherwise respond to complaint by 7/1/2010, (mpt, ) (Entered: 06/15/2010)
2010-07-01	5	ANSWER to 1 Complaint by BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM.(Simon, Jeremy) (Entered: 07/01/2010)
2010-07-20	6	STATUS REPORT (Joint Status Report) by BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM. (Simon, Jeremy) (Entered: 07/20/2010)
2010-11-23	7	NOTICE of Appearance by Michael Bekesha on behalf of VERN MCKINLEY (Bekesha, Michael) (Entered: 11/23/2010)
2010-11-23	8	STATUS REPORT (Joint Status Report) by BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM. (Attachments: # 1 Proposed Order)(Simon, Jeremy) (Entered: 11/23/2010)
2010-12-03	9	ORDER. The defendant shall produce to the plaintiff a Vaughn index on or before February 4, 2011, and the plaintiff shall notify the defendant in writing of any objections he has regarding the defendant's Vaughn index, if he intends on raising any objections to the index, on or before February 18, 2011. Furthermore, the defendant shall file its motion for summary judgment, if it intends to file such a motion, on or before March 21, 2011; the plaintiff shall file his memorandum in opposition to the defendant's summary judgment motion, as well as his cross-motion for summary judgment, if he intends to file these submissions, on or before April 18, 2011; the defendant shall file its brief in reply to the plaintiff's opposition memorandum, as well as its memorandum in opposition to the plaintiff's summary judgment motion, if it intends to file these submissions, on or before May 23, 2011; and the plaintiff shall file his brief in reply to the defendant's opposition memorandum, if he intends to file a reply, on or before June 20, 2011. Finally, the parties shall appear before the Court for a status conference at 9:30 a.m. on September 20, 2011. Signed by Judge Reggie B. Walton on 12/3/2010 (lcrbw1). (Entered: 12/03/2010)
2010-12-06		Set/Reset Deadlines/Hearings: Vaughn index due by 2/4/2011; Any objections due by 2/18/2011; Summary judgment motion due by 3/21/2011; Opposition to motion for summary judgment and cross-motion for summary judgment due by 4/18/2011; Reply to motion for summary judgment and opposition to cross-motion due by 5/23/11; Reply to cross motion due by 6/20/2011. A Status Conference is set for 9/20/2011 at 09:30 AM in Courtroom 16 before Judge Reggie B. Walton.(ad) (Entered: 12/06/2010)
2011-03-11	10	Joint MOTION for Extension of Time to File Defendant's Summary Judgment Motion and to Modify Briefing Schedule by BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM (Attachments: # 1 Proposed Order)(Simon, Jeremy) (Entered: 03/11/2011)
2011-03-15		Set/Reset Hearings: Status Conference reset for 12/1/2011 09:30 AM in Courtroom 16 before Judge Reggie B. Walton. (mpt, ) (Entered: 03/15/2011)
2011-03-15		MINUTE ORDER granting 10 Motion for Extension of Time and to Modify Briefing Schedule. The Court having considered the parties' Joint Motion for Extension of Time and to Modify Briefing Schedule, and it appearing to the Court that there is good cause to grant the relief requested therein based upon the joint nature of the parties' request, it is ORDERED that the motion is GRANTED. It is further ORDERED that the defendant shall file its motion for summary judgment, if it intends to file such a motion, on or before May 9, 2011. It is further ORDERED that the plaintiff shall file his cross-motion for summary judgment, if he intends to file such a motion, as well as his memorandum in opposition to the defendant's summary judgment motion, if he intends to oppose the motion, on or before June 20, 2011. It is further ORDERED that the defendant shall file his memorandum in opposition to the plaintiff's cross-motion for summary judgment, if it intends to oppose the motion, as well as its brief in reply to the plaintiff's opposition memorandum, if it intends to file a reply brief, on or before August 4, 2011. It is further ORDERED that the plaintiff shall file his brief in reply to the defendant's opposition memorandum, if he intends to file a reply brief, on or before September 1, 2011. It is further ORDERED that the status conference originally scheduled for 9:30 a.m. on September 20, 2011, is now scheduled for 9:30 a.m. on December 1, 2011. Signed by Judge Reggie B. Walton on 3/15/2011 (lcrbw1). (Entered: 03/15/2011)
2011-03-15		Set/Reset Deadlines: Motion for Summary Judgement due by 5/9/11; Cross Motion and Opposition to Motion for Summary Judgement due by 6/20/11; Opposition to Cross Motion and Reply to Opposition to Motion for Summary Judgment due by 8/4/11; Reply to Opposition to Cross Motion due by 9/1/11. (mpt, ) (Entered: 03/15/2011)
2011-03-30		Case randomly reassigned to U.S. District Judge Amy Berman Jackson. Judge Reggie B. Walton no longer assigned to the case. (gt, ) (Entered: 03/30/2011)
2011-05-03	11	Consent MOTION for Extension of Time to File Motion for Summary Judgment and to Modify Briefing Schedule by BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM (Attachments: # 1 Proposed Order)(Simon, Jeremy) (Entered: 05/03/2011)
2011-05-04		MINUTE ORDER granting 11 Motion for Extension of Time to file Motion for Summary Judgment and to Modify Briefing Schedule. The Motion for Summary Judgement is due by 6/8/2011; Response and Cross Motions due by 7/25/2011; Reply and Response to Cross Motions due by 9/14/2011; Reply to Cross Motions due by 10/7/2011. The status hearing set for 12/1/2011 will be heard before Judge Amy Berman Jackson in Courtroom 2 at 9:00 a.m. Signed by Judge Amy Berman Jackson on 5/4/11. (MT) (Entered: 05/04/2011)
2011-05-04		Set/Reset Hearings: Status Conference is set for 12/1/2011 at 9:00 AM in Courtroom 2 before Judge Amy Berman Jackson. (jth) (Entered: 05/05/2011)
2011-05-23	12	Consent MOTION for Leave to File Memorandum in Support of Motion for Summary Judgment in Excess of Page Limits Under Local Rule 7(E) by BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM (Attachments: # 1 Proposed Order)(Simon, Jeremy) (Entered: 05/23/2011)
2011-05-25		MINUTE ORDER granting 12 Consent Motion for Leave to File Memorandum in Support of Motion for Summary Judgment in Excess of Page Limits Under Local Rule 7(E). It is ORDERED that any Memorandum in Support of Motion for Summary Judgment shall be no more than 60 pages. Signed by Judge Amy Berman Jackson on 5/25/11. (MT) (Entered: 05/25/2011)
2011-06-08	13	MOTION for Summary Judgment in Part, Local Rule 7(h) Statement, and Supporting Memorandum of Points and Authorities by BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM (Attachments: # 1 Proposed Order, # 2 Declaration of Alison M. Thro, # 3 Declaration of Jan Voigts, # 4 Declaration of Jeanmarie Davis, # 5 Declaration of Jeff J. Stehm, # 6 Declaration of Lucinda Brickler, # 7 Declaration of Michael R. Foley, # 8 Declaration of Patricia C. Mosser, # 9 Declaration of Patrick M. Parkinson, # 10 Declaration of Richard Charlton, # 11 Declaration of Richard M. Ashton)(Simon, Jeremy) (Entered: 06/08/2011)
2011-06-08	14	Consent MOTION for Extension of Time to File Motion for Summary Judgment as to One Referred Document by BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM (Attachments: # 1 Proposed Order)(Simon, Jeremy) (Entered: 06/08/2011)
2011-06-09		MINUTE ORDER granting 14 Consent Motion for Extension of Time to File Motion for Summary Judgment as to One Referred Document. The motion for summary judgment as to one referred document is due 7/8/2011. Signed by Judge Amy Berman Jackson on 6/9/11. (MT) (Entered: 06/09/2011)
2011-06-23	15	Consent MOTION for Extension of Time to File Opposition to Motion for Summary Judgment and Cross-Motion for Summary Judgment and to Modify Briefing Schedule by VERN MCKINLEY (Attachments: # 1 Text of Proposed Order)(Bekesha, Michael). Added MOTION to Modify on 6/23/2011 (jf). (Entered: 06/23/2011)
2011-06-23		MINUTE ORDER granting 15 Consent Motion for Extension of Time. The opposition to the motion for summary judgment and cross-motion for summary judgment will be due 8/31/11, the reply to the motion for summary judgment and the opposition to the cross-motion for summary judgment will be due 10/19/2011, and the reply to the cross-motion for summary judgment will be due 11/16/2011. The time for the replies will not be further extended and the parties should abide by LCvR 7(e). Signed by Judge Amy Berman Jackson on 6/23/2011. (MT) (Entered: 06/23/2011)
2011-06-23		Set/Reset Deadlines: Opposition to Summary Judgment/Cross Motion for Summary Judgment due by 8/31/2011; Reply to Summary Judgment and Response to Cross Motion due by 10/19/2011; Reply to Cross Motion due by 11/16/2011. (jth) (Entered: 06/23/2011)
2011-07-07	16	Consent MOTION for Extension of Time to File Motion for Summary Judgment As To One Referred Document by BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM (Attachments: # 1 Proposed Order)(Simon, Jeremy) (Entered: 07/07/2011)
2011-07-08		MINUTE ORDER granting 16 Consent Motion for Extension of Time to File Motion for Summary Judgment as to One Referred Document. The motion for summary judgment will be due 7/15/2011. Signed by Judge Amy Berman Jackson on 7/8/2011. (MT) (Entered: 07/08/2011)
2011-07-08		Set/Reset Deadlines: Summary Judgment motion as to One Referred Document due by 7/15/2011. (tb, ) (Entered: 07/08/2011)
2011-07-15	17	MOTION for Summary Judgment As to One Referred Document, Local Rule 7(h) Statement and Supporting Memorandum by BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM (Attachments: # 1 Proposed Order, # 2 Declaration of Laura M. Richards)(Simon, Jeremy) (Entered: 07/15/2011)
2011-08-31	18	Memorandum in opposition to re 13 MOTION for Summary Judgment in Part, Local Rule 7(h) Statement, and Supporting Memorandum of Points and Authorities MOTION for Summary Judgment in Part, Local Rule 7(h) Statement, and Supporting Memorandum of Points and Authorities MOTION for Summary Judgment in Part, Local Rule 7(h) Statement, and Supporting Memorandum of Points and Authorities , 17 MOTION for Summary Judgment As to One Referred Document, Local Rule 7(h) Statement and Supporting Memorandum MOTION for Summary Judgment As to One Referred Document, Local Rule 7(h) Statement and Supporting Memorandum filed by VERN MCKINLEY. (Attachments: # 1 Declaration of Michael Bekesha)(Bekesha, Michael) (Entered: 08/31/2011)
2011-08-31	19	Cross MOTION for Summary Judgment by VERN MCKINLEY (Attachments: # 1 Text of Proposed Order, # 2 Declaration of Michael Bekesha)(Bekesha, Michael) (Entered: 08/31/2011)
2011-10-19	20	Memorandum in opposition to re 19 Cross MOTION for Summary Judgment (Defendant's Combined Reply in Support of Its Motion for Summary Judgment and Opposition to Plaintiff's Cross-Motion for Summary Judgment and Response to Plaintiff's Statement of Facts) filed by BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM. (Attachments: # 1 Declaration of David G. Caperton, # 2 Supplemental Declaration of Alison M. Thro, # 3 Proposed Order)(Simon, Jeremy) (Entered: 10/19/2011)
2011-10-19	21	REPLY to opposition to motion re 13 MOTION for Summary Judgment in Part, Local Rule 7(h) Statement, and Supporting Memorandum of Points and Authorities MOTION for Summary Judgment in Part, Local Rule 7(h) Statement, and Supporting Memorandum of Points and Authorities MOTION for Summary Judgment in Part, Local Rule 7(h) Statement, and Supporting Memorandum of Points and Authorities , 17 MOTION for Summary Judgment As to One Referred Document, Local Rule 7(h) Statement and Supporting Memorandum MOTION for Summary Judgment As to One Referred Document, Local Rule 7(h) Statement and Supporting Memorandum (Defendant's Combined Reply in Support of Its Motion for Summary Judgment and Opposition to Plaintiff's Cross Motion for Summary Judgment) filed by BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM. (Attachments: # 1 Declaration of David G. Caperton, # 2 Supplemental Declaration of Alison M. Thro)(Simon, Jeremy) (Entered: 10/19/2011)
2011-11-16	22	REPLY to opposition to motion re 19 Cross MOTION for Summary Judgment filed by VERN MCKINLEY. (Bekesha, Michael) (Entered: 11/16/2011)
2011-11-28		Set/Reset Hearings: The Status Conference presently scheduled for 12/1/2011 at 9:00 AM is rescheduled for 1/13/2012 at 10:00 AM in Courtroom 3 before Judge Amy Berman Jackson. (jth) (Entered: 11/28/2011)
2012-01-13		Minute Entry for proceedings held before Judge Amy Berman Jackson: Status Conference held on 1/13/2012. (Court Reporter Catalina Kerr) (jth) (Entered: 01/13/2012)
2012-02-03		MINUTE ORDER. The parties are ORDERED to submit to the Court on or before February 13, 2012 a joint statement containing a list or table that identifies: (1) each of the 67 documents that the Board has withheld under FOIA exemptions, which plaintiff has specifically challenged in Sections D(i) and D(ii) of his Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment and in Support of the Cross-Motion for Summary Judgment [Dkt. # 19]. Each document should be identified by the exact bates range that appears in the Board's Vaughn Index (Ex. I, J to Thro Decl.), (2) whether the document is an AIG or Lehman Brothers document, and (3) the exemption(s) under which the government has withheld the document. It is further ORDERED that defendant is directed to deliver those 67 withheld documents to chambers on or before February 15, 2012 for in camera inspection to assist the Court in making a responsible de novo determination, see Ray v. Turner, 587 F.2d 1187, 1195 (D.C. Cir. 1978). Signed by Judge Amy Berman Jackson on 2/3/12. (lcabj1) (Entered: 02/03/2012)
2012-02-04		Set/Reset Deadlines: Joint Statement pursuant to the Court's Minute Order entered on 2/3/2012 is due by 2/13/2012. (jth) (Entered: 02/04/2012)
2012-02-13	23	STATUS REPORT (Joint Statement Pursuant to February 3, 2012 Minute Order) by BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM. (Attachments: # 1 Index)(Simon, Jeremy) (Entered: 02/13/2012)
2012-02-15	24	NOTICE of Compliance with Court's Minute Order of February 3, 2012 by BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM (Simon, Jeremy) (Entered: 02/15/2012)
2012-03-29	25	ORDER granting 13 Motion for Summary Judgment; granting 17 Motion for Summary Judgment; denying 19 Motion for Summary Judgment. It is hereby ORDERED that defendant's motions for partial summary judgment are GRANTED and plaintiff's cross-motion for summary judgment is DENIED. Signed by Judge Amy Berman Jackson on 3/29/12. (lcabj1) (Entered: 03/29/2012)
2012-03-29	26	MEMORANDUM OPINION. Signed by Judge Amy Berman Jackson on 3/29/12. (lcabj1) (Entered: 03/29/2012)
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