Case Detail

FOIA Project Annotation: Judge Ketanji Brown Jackson has ruled that the FDIC has failed to justify its claims that 12 documents responsive to Vern McKinley's two FOIA requests for records about the agency's consideration of placing Citibank in receivership between October 2008 and April 2009 and the agency's analysis of Citibank's solvency during the same period are protected by Exemption 4 (confidential business information), Exemption 5 (privileges), or Exemption 8 (bank examination reports) and has ordered the agency to provide the documents for in camera review. In response to McKinley's requests, the FDIC located 19 documents, all of which it claimed were exempt. After the agency upheld its decision on appeal, McKinley filed suit. At that time, the agency provided a Vaughn index and after reviewing the index McKinley decided to only challenge the exemption claims on 12 documents. He argued that the agency had failed to provide sufficient justification for any of its exemption claims. Jackson first found the agency had failed to explain whether the records were provided voluntarily or involuntarily for purposes of Exemption 4. She pointed out that "in the absence of details from the FDIC regarding its acquisition of the allegedly exempt information from Citibank, this Court cannot identify and apply the appropriate text for privilege or confidentiality." She found the agency had failed to explain what role records it claimed were protected by the deliberative process privilege under Exemption 5 had played in any decision. Here, she explained that "while the eight documents that the FDIC has withheld pursuant to Exemption 5 in the context of the instant case certainly might contain information that the deliberative process privilege protects, this Court cannot conclude that they do on the record before it." Although she acknowledged the breadth of coverage under Exemption 8, she found the agency's affidavit parroted the language of the exemption without explaining why the records were covered by Exemption 8. She pointed out that "this Court has no doubt that the agency must, at the very least, specify whether it characterizes the relevant report as an examination report, an operating report, or a condition report. The FDIC's Vaughn index does not do so; instead, it reveals that the document at issue is a 'table' or a 'memorandum,' and then merely parrots the statute in regard to the document's content." She added that "absent from this description is any sense of the agency's position regarding how or why â€"precisely â€" these tables fall within the specific contours of Exemption 8." She also found the agency's claims that no non-exempt information could be segregated and released wanting. Ordering the agency to provide the 12 documents for in camera review, she noted in a footnote that "the Court cannot determine whether any portions of the withheld records can be reasonably segregated without first addressing whether the document is subject to exemption. Reviewing the documents in camera will assist the Court in making both the exemption and segregability determination."
Issues: Exemption 4 - Confidential business information, Exemption 5 - Privileges - Deliberative process privilege - Deliberative, Exemption 8 - Bank examination records

Date Filed	Doc #	Docket Text
2015-10-21	1	COMPLAINT against FEDERAL DEPOSIT INSURANCE CORPORATION ( Filing fee $ 400 receipt number 0090-4285822) filed by VERN MCKINLEY. (Attachments: # 1 Summons US Attorney for DC, # 2 Summons US Attorney General, # 3 Summons FDIC, # 4 Civil Cover Sheet)(Bekesha, Michael) (Entered: 10/21/2015)
2015-10-21		Case Assigned to Judge Ketanji Brown Jackson. (md) (Entered: 10/22/2015)
2015-10-22	2	SUMMONS (3) Issued Electronically as to FEDERAL DEPOSIT INSURANCE CORPORATION, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Consent Forms)(zrdj) (Entered: 10/22/2015)
2015-10-27	3	GENERAL ORDER AND GUIDELINES FOR CIVIL CASES BEFORE JUDGE KETANJI BROWN JACKSON. The Court will hold the parties and counsel responsible for following these directives, and parties and counsel should pay particular attention to the Courts instructions for briefing motions. Failure to adhere to this Order may, when appropriate, result the imposition of sanctions and/or sua sponte denial of non-conforming motions. Signed by Judge Ketanji Brown Jackson on 10/27/2015. (lckbj1) (Entered: 10/27/2015)
2015-11-04	4	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 11/2/2015. ( Answer due for ALL FEDERAL DEFENDANTS by 12/2/2015.), RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 11/2/2015., RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. FEDERAL DEPOSIT INSURANCE CORPORATION served on 11/2/2015 (Attachments: # 1 Affidavit of Cristina Rotaru)(Bekesha, Michael) (Entered: 11/04/2015)
2015-11-17	5	NOTICE of Appearance by William Mark Nebeker on behalf of FEDERAL DEPOSIT INSURANCE CORPORATION (Nebeker, William) (Entered: 11/17/2015)
2015-11-30	6	NOTICE of Appearance by Daniel Harold Kurtenbach on behalf of FEDERAL DEPOSIT INSURANCE CORPORATION (Kurtenbach, Daniel) (Entered: 11/30/2015)
2015-12-02	7	ANSWER to Complaint by FEDERAL DEPOSIT INSURANCE CORPORATION.(Kurtenbach, Daniel) (Entered: 12/02/2015)
2015-12-02		MINUTE ORDER. Before the Court in this FOIA case are a complaint and an answer. It is hereby ORDERED that the parties shall promptly confer and file a joint proposed schedule for briefing or disclosure, by 12/16/2015. Signed by Judge Ketanji Brown Jackson on 12/2/2015. (lckbj1) (Entered: 12/02/2015)
2015-12-14	8	PROPOSED BRIEFING SCHEDULE (Joint) by FEDERAL DEPOSIT INSURANCE CORPORATION. (Kurtenbach, Daniel) (Entered: 12/14/2015)
2015-12-18		MINUTE ORDER. Based on the representations in the parties Joint 8 Proposed Schedule, it is hereby ORDERED that the parties shall file a status report, on or before 2/5/2016, which shall contain a proposed schedule for further proceedings, if litigation is going to be necessary. Signed by Judge Ketanji Brown Jackson on 12/18/2015. (lckbj1) (Entered: 12/18/2015)
2016-02-04	9	Joint STATUS REPORT by FEDERAL DEPOSIT INSURANCE CORPORATION. (Kurtenbach, Daniel) (Entered: 02/04/2016)
2016-02-08		MINUTE ORDER. Based on the representations in the parties' Joint Status Report, it is hereby ORDERED that the following briefing schedule is set for this matter: Defendant's Motion for Summary Judgment is due by 3/16/2016. Plaintiff's Consolidated Opposition to Defendant's Motion for Summary Judgment and Cross Motion for Summary Judgment is due by 4/15/2016. Defendant's Consolidated Reply in Support of its Motion for Summary Judgment and Opposition to Plaintiff's Cross Motion for Summary Judgment is due by 5/17/2016. Plaintiff's Reply in Support of its Cross Motion for Summary Judgment is due by 6/1/2016. Signed by Judge Ketanji Brown Jackson on 02/08/2016. (lckbj1) (Entered: 02/08/2016)
2016-03-16	10	MOTION for Summary Judgment and Memorandum of Law by FEDERAL DEPOSIT INSURANCE CORPORATION (Attachments: # 1 Statement of Facts Statement of Material Facts Not In Dispute, # 2 Declaration Declaration of Hugo A. Zia, # 3 Exhibit Exhibits 1-5, # 4 Text of Proposed Order)(Kurtenbach, Daniel) (Entered: 03/16/2016)
2016-04-14	11	Memorandum in opposition to re 10 MOTION for Summary Judgment and Memorandum of Law filed by VERN MCKINLEY. (Attachments: # 1 Statement of Facts, # 2 Text of Proposed Order)(Bekesha, Michael) (Entered: 04/14/2016)
2016-04-14	12	Cross MOTION for Summary Judgment by VERN MCKINLEY (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Text of Proposed Order)(Bekesha, Michael) (Entered: 04/14/2016)
2016-05-17	13	Memorandum in opposition to re 12 Cross MOTION for Summary Judgment , filed by FEDERAL DEPOSIT INSURANCE CORPORATION. (Kurtenbach, Daniel) Modified on 5/18/2016 (jf). (Entered: 05/17/2016)
2016-05-18	14	REPLY to opposition to motion re 10 MOTION for Summary Judgment filed by FEDERAL DEPOSIT INSURANCE CORPORATION. (Kurtenbach, Daniel) Modified on 5/19/2016 (jf). (Entered: 05/18/2016)
2016-05-23	15	REPLY to opposition to motion re 12 Cross MOTION for Summary Judgment filed by VERN MCKINLEY. (Bekesha, Michael) (Entered: 05/23/2016)
2017-08-07	16	MEMORANDUM OPINION AND ORDER denying Defendant's 10 Motion for Summary Judgment and Plaintiff's 12 Cross-Motion for Summary Judgment without prejudice; requiring supplemental submissions from Defendant on or before 9/5/2017; and setting a briefing schedule for renewed motions for summary judgment. Defendant's Motion for Summary Judgment is due on or before 10/3/2017; Plaintiff's Consolidated Opposition to Defendant's Motion for Summary Judgment and Cross-Motion for Summary Judgment is due on or before 10/31/2017; Defendant's Consolidated Reply in Support of its Motion for Summary Judgment and Opposition to Plaintiff's Cross-Motion for Summary Judgment is due on or before 11/14/2017; and Plaintiff's Reply in Support of its Cross-Motion for Summary Judgment is due on or before 11/28/2017. See attached document for details. Signed by Judge Ketanji Brown Jackson on 8/7/2017. (lckbj3) (Entered: 08/07/2017)
2017-08-07		Set/Reset Deadlines: Cross Motions due by 10/31/2017. Response to Cross Motions due by 11/14/2017. Reply to Cross Motions due by 11/28/2017. (gdf) (Entered: 08/07/2017)
2017-08-25	17	Consent MOTION for Extension of Time to Submit Vaughn Index by FEDERAL DEPOSIT INSURANCE CORPORATION (Kurtenbach, Daniel) (Entered: 08/25/2017)
2017-08-28		MINUTE ORDER granting, for good cause shown, 17 Consent Motion for Extension of Time to Submit Vaughn Index. FDIC shall submit a revised Vaughn index and/or supplemental declaration(s), and copies of the twelve documents for in camera review, on or before 9/13/2017. Signed by Judge Ketanji Brown Jackson on 08/28/2017. (lckbj1) (Entered: 08/28/2017)
2017-09-09	18	Consent MOTION for Extension of Time to Submit Vaughn Index by FEDERAL DEPOSIT INSURANCE CORPORATION (Kurtenbach, Daniel) (Entered: 09/09/2017)
2017-09-13		MINUTE ORDER granting, for good cause shown, 18 Consent Motion for Extension of Time to Submit Vaughn Index. It is hereby ORDERED that Defendant's Vaughn Index is due on or before 10/3/2017. Signed by Judge Ketanji Brown Jackson on 09/13/2017. (lckbj1) (Entered: 09/13/2017)
2017-10-03	19	NOTICE Of In Camera, Ex Parte Submission by FEDERAL DEPOSIT INSURANCE CORPORATION re 16 Order on Motion for Summary Judgment,,,,,,,, Set/Reset Deadlines,,, (Nebeker, William) (Entered: 10/03/2017)
2017-10-03	20	Second MOTION for Summary Judgment and Memorandum in Support by FEDERAL DEPOSIT INSURANCE CORPORATION (Attachments: # 1 Statement of Facts, # 2 Text of Proposed Order, # 3 Declaration Declaration of Doreen R. Eberley, # 4 Exhibit Exh. 1 Vaughn Index, # 5 Exhibit Exhs. 2, 3, 4, 5, # 6 Exhibit Exh. 6 Redacted Documents)(Kurtenbach, Daniel) (Entered: 10/03/2017)
2017-10-30	21	Memorandum in opposition to re 20 Second MOTION for Summary Judgment and Memorandum in Support filed by VERN MCKINLEY. (Attachments: # 1 Text of Proposed Order)(Bekesha, Michael) (Entered: 10/30/2017)
2017-10-30	22	Cross MOTION for Summary Judgment by VERN MCKINLEY (Attachments: # 1 Text of Proposed Order)(Bekesha, Michael) (Entered: 10/30/2017)
2017-11-14	23	Memorandum in opposition to re 22 Cross MOTION for Summary Judgment filed by FEDERAL DEPOSIT INSURANCE CORPORATION. (Attachments: # 1 Statement of Facts FDIC's Response to Plaintiff's Statement of Material Facts Not in Dispute, # 2 Declaration Supplemental Declaration of Hugo A. Zia, # 3 Text of Proposed Order)(Kurtenbach, Daniel) (Entered: 11/14/2017)
2017-11-14	24	REPLY to opposition to motion re 20 Second MOTION for Summary Judgment and Memorandum in Support filed by FEDERAL DEPOSIT INSURANCE CORPORATION. (Kurtenbach, Daniel) (Entered: 11/14/2017)
2017-11-27	25	REPLY to opposition to motion re 22 Cross MOTION for Summary Judgment filed by VERN MCKINLEY. (Attachments: # 1 Exhibit A)(Bekesha, Michael) (Entered: 11/27/2017)
2018-09-30	26	ORDER Granting Defendant's 20 Motion for Summary Judgment and Denying Plaintiff's 22 Cross-Motion for Summary Judgment. Signed by Judge Ketanji Brown Jackson on 09/30/2018. (lckbj1) (Entered: 09/30/2018)
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