Case Detail

FOIA Project Annotation: Judge Emmet Sullivan has ruled that the FDIC has so far failed to show that it conducted an adequate search or properly applied several FOIA and Sunshine Act exemptions to records it withheld from Vern McKinley. McKinley asked for records on the agency's decision to provide financial assistance to several banks during the financial bailout. McKinley filed suit after the agency failed to respond on time. The agency then disclosed heavily redacted records and argued in court that the case was now moot. Sullivan quickly dismissed the mootness argument, pointing out that the agency had not explained how it searched for records or why the invoked exemptions applied. Sullivan noted that the agency's affidavit "does not explain the search methods employed by the FDIC to respond to plaintiff's requests, who conducted the searches, whether [the declarant] is personally aware of the search procedures used, or if such procedures were followed by the Executive Secretary Station [where the search was performed]." The agency cited Exemption 4 (confidential business information) under both FOIA and the Sunshine Act, but Sullivan indicated the agency had failed to show whether the information was voluntarily submitted or why it was confidential at all. As to Exemption 5 (privileges), Sullivan pointed out that "while the material withheld certainly may contain information protected by the deliberative process privilege, the Court cannot conclude that it does on the record before it. As a threshold matter, the memoranda cited as 'predecisional' are dated the same day as the board meetings at which the final decisions were made. However, a document can only be 'predecisional,' and therefore protected by the deliberative process privilege, if 'it was generated before the adoption of an agency policy.' While the fact that the dates are identical does not necessarily mean that Exemption 5 withholding is improper, 'the agency must "illustrate a chronology" in some way in order to justify predecisional withholding.'" He also found the agency's Exemption 8 (bank examination reports) claims wanting. He observed that "while Exemption 8 has been broadly construed by the courts, there are some limits to its interpretation. Based on the extremely limited information provided by the FDIC, the Court cannot determine whether the material withheld contains or is derived from any part of an examination, operating report or condition report." Finally, he rejected the agency's claim under Exemption 9 of the Sunshine Act, which allows the agency to withhold information when its premature disclosure could harm the stability of a financial institution. He indicated that "the agency asserts that 'disclosure would endanger the stability of a financial institution,' while completely ignoring the requirements that the disclosure must be found to be 'premature' as well as likely to 'significantly' engage the banks' stability."
Issues: Adequacy - Search, Exemption 5 - Privileges

FOIA Project Annotation: Judge Emmet Sullivan has ruled that the FDIC conducted an adequate search for records concerning several decisions it made during the financial crisis, including support for Citigroup and Bank of America. Vern McKinley's requests referenced specific FDIC press releases describing actions taken on specific dates and asked for information related to the FDIC's findings, under 13(c) of the Federal Deposit Insurance Act, that failure to provide emergency assistance to financial institutions would have "serious adverse effects on economic conditions or financial stability." McKinley also asked for "any information available on [these] determination[s] such as meeting minutes [and/or] supporting memos." When the FDIC failed to respond to his request on time, McKinley filed suit. The FDIC then disclosed 101 pages with redactions. In his initial ruling in the case, Sullivan concluded the agency's search was inadequate and ordered it to either conduct a further search or better explain its original search. The FDIC then withdrew all its original exemption claims and disclosed the 101 pages without redaction. It also provided two detailed affidavits explaining why its original search was limited to the Executive Secretary Section of the FDIC Legal Division. McKinley continued to argue the agency's search was inadequate and should have included emails, notes, and memoranda from other departments within the agency. This time, Sullivan agreed with the agency. He noted that "the requests pointed to the precise section of the statute giving FDIC the authority to provide emergency assistance to financial institutions only upon the recommendation of its Board of Directors, and asked for information related to specific determinations made by the FDIC Board under that provision of the statute. Because the FDIC Board was the only entity that could make those determinations, it was reasonable for the FDIC to limit the scope of its searches to records related to specific Board actions and to conclude that 'meeting minutes' and 'supporting memos' referred to the meeting minutes and Case Memoranda prepared for the Board meetings at which the FDIC made each of the three determinations referenced in the plaintiff's requests." McKinley argued that "any information available" encompassed records created in other departments that may have been prepared for the Board's consideration. But Sullivan noted that the "language asking for 'any information available' fails to provide a reasonable description of the type or location of additional records sought and does not describe the records 'in a way that enables the FDIC's staff to identify and produce the records with reasonable effort and without unduly burdening or significantly interfering with any of the FDIC's operations.' Instead, the language is analogous to requests for records that relate 'in any way' to a person or event, which courts have repeatedly found to be overly broad and unreasonable." He added: "Because plaintiff failed to specify how additional documents might be related to the Board's determinations or where those records might be found, it was reasonable for the FDIC to disregard the 'any information available' language when interpreting plaintiff's requests." McKinley also argued that Nation Magazine, Wash. Bureau v. U.S. Customs Service, 71 F.3d 885 (D.C. Cir. 1995), stood for the proposition that agencies must construe requests liberally. However, Sullivan observed that "plaintiff's argument that an agency's interpretation of his requests must be broader than the description reasonably contained in his requests finds no support in Nation Magazine."
Issues: Adequacy - Search

Date Filed	Doc #	Docket Text
2010-03-15	1	COMPLAINT against FEDERAL DEPOSIT INSURANCE CORPORATION ( Filing fee $ 350, receipt number 4616028239) filed by VERN MCKINLEY. (Attachments: # 1 Civil Cover Sheet)(jf, ) (Entered: 03/15/2010)
2010-03-15		SUMMONS (3) Issued as to FEDERAL DEPOSIT INSURANCE CORPORATION, U.S. Attorney and U.S. Attorney General (jf, ) (Entered: 03/15/2010)
2010-03-26	2	SUMMONS Returned Executed by VERN MCKINLEY, U.S. ATTORNEY'S OFFICE, FEDERAL DEPOSIT INSURANCE CORPORATION & US ATTORNEY GENERAL, served on 3/22/2010, answer due 4/21/2010. (Attachments: # 1 Declaration of Cristina Rotaru)(Orfanedes, Paul) Modified on 3/29/2010 to add party(s) served (jf, ). (Entered: 03/26/2010)
2010-04-08	3	NOTICE of Appearance by Alexander Daniel Shoaibi on behalf of FEDERAL DEPOSIT INSURANCE CORPORATION (Shoaibi, Alexander) (Entered: 04/08/2010)
2010-04-16	4	NOTICE of Appearance by Daniel Harold Kurtenbach on behalf of FEDERAL DEPOSIT INSURANCE CORPORATION (Kurtenbach, Daniel) (Entered: 04/16/2010)
2010-04-21	5	MOTION to Dismiss by FEDERAL DEPOSIT INSURANCE CORPORATION (Attachments: # 1 Memorandum in Support, # 2 Exhibit A Part 1, # 3 Exhibit A Part 2, # 4 Exhibit B Part 1, # 5 Exhibit B Part 2, # 6 Exhibit C Part 1, # 7 Exhibit C Part 2)(Kurtenbach, Daniel) (Entered: 04/21/2010)
2010-04-21	6	NOTICE of Appearance by Barbara Katron on behalf of FEDERAL DEPOSIT INSURANCE CORPORATION (Katron, Barbara) (Entered: 04/21/2010)
2010-05-03	7	Memorandum in opposition to re 5 MOTION to Dismiss filed by VERN MCKINLEY. (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Orfanedes, Paul) (Entered: 05/03/2010)
2010-05-03	8	Cross MOTION for Summary Judgment by VERN MCKINLEY (Attachments: # 1 Text of Proposed Order)(Orfanedes, Paul) (Entered: 05/03/2010)
2010-05-06	9	REPLY to opposition to motion re 5 MOTION to Dismiss as Moot filed by FEDERAL DEPOSIT INSURANCE CORPORATION. (Kurtenbach, Daniel) (Entered: 05/06/2010)
2010-05-17	10	Memorandum in opposition to re 8 Cross MOTION for Summary Judgment filed by FEDERAL DEPOSIT INSURANCE CORPORATION. (Attachments: # 1 Statement of Facts, # 2 Declaration of Gary Jackson, # 3 Exhibit FDIC's Vaughn Index)(Kurtenbach, Daniel) (Entered: 05/17/2010)
2010-05-25	11	Consent MOTION for Extension of Time to File Response/Reply as to 8 Cross MOTION for Summary Judgment by VERN MCKINLEY (Attachments: # 1 Text of Proposed Order)(Orfanedes, Paul) (Entered: 05/25/2010)
2010-05-26		MINUTE ORDER granting 11 consent motion for extension of time. Plaintiff shall file his reply in support of 8 plaintiff's cross-motion for summary judgment by no later than June 4, 2010. Signed by Judge Emmet G. Sullivan on May 26, 2010. (lcegs4) (Entered: 05/26/2010)
2010-05-27		Set/Reset Deadlines: Reply to Motion for Summary Judgment due by 6/4/2010. (clv, ) (Entered: 05/27/2010)
2010-06-03	12	NOTICE of Change of Address by Paul J. Orfanedes (Orfanedes, Paul) (Entered: 06/03/2010)
2010-06-04	13	Unopposed MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Michael Bekesha, :Firm- Judicial Watch, Inc., :Address- 425 Third Street, S.W., Suite 800. Phone No. - 202-646-5172. Fax No. - 202-646-5199 by VERN MCKINLEY (Attachments: # 1 Declaration of Michael Bekesha, # 2 Text of Proposed Order)(Orfanedes, Paul) (Entered: 06/04/2010)
2010-06-04	14	REPLY to opposition to motion re 8 Cross MOTION for Summary Judgment filed by VERN MCKINLEY. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Bekesha, Michael) (Entered: 06/04/2010)
2010-06-07		MINUTE ORDER denying without prejudice 13 motion for leave to appear pro hac vice due to failure to comply with Local Civil Rule 83.2(d)(5). Signed by Judge Emmet G. Sullivan on June 7, 2010. (lcegs4) (Entered: 06/07/2010)
2010-06-07	15	Unopposed MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Michael Bekesha, :Firm- Judicial Watch, Inc., :Address- 425 Third Street, S.E., Suite 800, Washington DC 20024. Phone No. - 202-646-5172. Fax No. - 202-646-5199 by VERN MCKINLEY (Attachments: # 1 Declaration of Michael Bekesha, # 2 Text of Proposed Order)(Orfanedes, Paul) (Entered: 06/07/2010)
2010-06-07		MINUTE ORDER granting 15 Motion for Leave to Appear Pro Hac Vice. Michael Bekesha is granted leave to appear pro hac vice in the above-captioned case. Signed by Judge Emmet G. Sullivan on June 7, 2010. (lcegs4) (Entered: 06/07/2010)
2010-12-23	16	ORDER denying 5 Motion to Dismiss; granting in part and denying in part 8 Motion for Summary Judgment. In accordance with this order and accompanying memorandum opinion, the parties shall file a joint recommendation for further proceedings within 30 days of the date of this Order. Signed by Judge Emmet G. Sullivan on December 23, 2010. (lcegs4) (Entered: 12/23/2010)
2010-12-23	17	MEMORANDUM OPINION. Signed by Judge Emmet G. Sullivan on December 23, 2010. (lcegs4) (Entered: 12/23/2010)
2011-01-20	18	STATUS REPORT Joint Status Report by FEDERAL DEPOSIT INSURANCE CORPORATION, VERN MCKINLEY. (Kurtenbach, Daniel) Modified to add party on 1/21/2011 (znmw, ). (Entered: 01/20/2011)
2011-01-20		MINUTE ORDER. In light of the parties' representations in 18 joint status report that they need additional time to discuss procedures for working out their remaining issues, whether by settlement or by additional submissions to this court, it is hereby ORDERED that the parties continue to confer on these issues, and that they file a joint recommendation for further proceedings by no later than February 22, 2011. Signed by Judge Emmet G. Sullivan on January 20, 2011. (lcegs4) (Entered: 01/20/2011)
2011-01-20		Set/Reset Deadlines: Joint recommendation for further proceedings due by 2/22/2011 (clv, ) (Entered: 01/20/2011)
2011-02-22	19	STATUS REPORT Second Joint Status Report by FEDERAL DEPOSIT INSURANCE CORPORATION. (Kurtenbach, Daniel) (Entered: 02/22/2011)
2011-02-23		MINUTE ORDER. In 19 the parties' joint status report, the parties represent that they have resolved all issues regarding redactions in the FDIC's production of documents to plaintiff. The only issue remaining before the Court is whether the FDIC satisfied its obligation to conduct a reasonable search for responsive materials. It is hereby ORDERED that the FDIC file its motion for summary judgment on this remaining issue only, by no later than March 18, 2011. Plaintiff shall file his opposition and cross motion by April 13, 2011. The FDIC shall file its opposition and reply by no later than May 9, 2011. Plaintiff shall file his reply by no later than May 20, 2011. SO ORDERED. Signed by Judge Emmet G. Sullivan on February 23, 2011. (lcegs4) (Entered: 02/23/2011)
2011-02-23		Set/Reset Deadlines: Defendant's summary judgment motion due by 3/18/11; plaintiff response and cross motions due by 4/13/2011; defendant reply and response to Cross Motions due by 5/9/2011. Plaintiff's reply to Cross Motions due by 5/20/2011. (clv, ) (Entered: 02/23/2011)
2011-03-18	20	MOTION for Summary Judgment by FEDERAL DEPOSIT INSURANCE CORPORATION (Attachments: # 1 Text of Proposed Order, # 2 Declaration of Fredrick L. Fisch, # 3 Exhibit 1-6 of Fisch Declaration, # 4 Declaration of Catherine L. Hammond)(Kurtenbach, Daniel) (Entered: 03/18/2011)
2011-04-13	21	Memorandum in opposition to re 20 MOTION for Summary Judgment filed by VERN MCKINLEY. (Attachments: # 1 Text of Proposed Order)(Bekesha, Michael) (Entered: 04/13/2011)
2011-04-13	22	Cross MOTION for Summary Judgment by VERN MCKINLEY (Attachments: # 1 Text of Proposed Order)(Bekesha, Michael) (Entered: 04/13/2011)
2011-04-14	23	ERRATA by VERN MCKINLEY 22 Cross MOTION for Summary Judgment filed by VERN MCKINLEY, 21 Memorandum in Opposition filed by VERN MCKINLEY. (Bekesha, Michael) (Entered: 04/14/2011)
2011-05-09	24	REPLY to opposition to motion re 20 MOTION for Summary Judgment filed by FEDERAL DEPOSIT INSURANCE CORPORATION. (Kurtenbach, Daniel) (Entered: 05/09/2011)
2011-05-09	25	Memorandum in opposition to re 22 Cross MOTION for Summary Judgment filed by FEDERAL DEPOSIT INSURANCE CORPORATION. (Attachments: # 1 Statement of Facts Supplemental)(Kurtenbach, Daniel) (Entered: 05/09/2011)
2011-05-20	26	REPLY to opposition to motion re 22 Cross MOTION for Summary Judgment filed by VERN MCKINLEY. (Bekesha, Michael) (Entered: 05/20/2011)
2011-08-08	27	ORDER granting 20 defendant's motion for summary judgment and denying 22 plaintiff's cross motion for summary judgment. This is a final appealable order. Signed by Judge Emmet G. Sullivan on August 8, 2011. (lcegs4) (Entered: 08/08/2011)
2011-08-08	28	MEMORANDUM OPINION. Signed by Judge Emmet G. Sullivan on August 8, 2011. (lcegs4) (Entered: 08/08/2011)
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