Case Detail

FOIA Project Annotation: Judge Trevor McFadden has ruled that the Federal Reserve properly applied Exemption 4 (commercial and confidential) and Exemption 5 (privileges) to withhold most of the responsive emails from Chairman Jerome Powell containing the keywords "bubble" and "tantrum" in specific contexts in response to two FOIA requests from data journalist Aaron Greenspan, who runs the website PlainSite. Greenspan narrowed his requests to emails using the word "bubble" in the context of "the housing market, stock market, debt, dot-com, asset, and credit bubbles." He narrowed his second request using the word "tantrum" in the context of "any previous or future 'taper tantrum' referring to the tapering of bond purchases, otherwise known as 'Quantitative Easing' or 'QE')." The agency's search yielded 1,600 responsive records. The agency disclosed a few emails but withheld the majority of them under the deliberative process privilege and another handful under Exemption 4. Greenspan sued and asked for a fee waiver. The agency granted his request for a fee waiver and released 14 records responsive to his "bubble" request with redactions. The agency also told Greenspan that it was withholding 963 pages of records responsive to his "bubble" request. The Federal Reserve also released three records responsive to Greenspan's "tantrum" request and withheld 693 responsive pages under Exemption 4 and 5 as well as Exemption 6 (invasion of privacy). In total the agency claimed Exemption 5 for over 1600 pages and Exemption 4 for ten pages. Greenspan challenged only the agency's withholdings under Exemption 4 and Exemption 5. McFadden explained that the agency had to show that the exemptions applied to the withheld material and that disclosure would cause foreseeable harm if disclosed. McFadden first addressed whether the Federal Reserve had appropriately applied Exemption 4. McFadden found that it had. He noted that the withheld records had been submitted by two companies â€" MacroPolicy Perspectives, LLC, a macroeconomics research firm, and Tudor Investment Corporation, a global investment firm. The companies also asserted a commercial interest in the records. And, McFadden noted that "the withheld emails are 'confidential' because the two firms assert they would not customarily make such information public." Greenspan argued that Tudor had not shown that it always keeps such information confidential. However, McFadden indicated that "but that is not the test. Rather, the Board must show that the withheld communication contains information that Tudor has 'customarily and actually treated as private.' That Tudor sometimes discloses other macroeconomic information â€" which it does 'only in limited circumstances and for strategic reasons' â€" does not defeat its claims that it customarily and actually treated the withheld information as private." McFadden then agreed with the agency that it had adequately shown that disclosure would cause foreseeable harm. Turning to the deliberative process privilege claims under Exemption 5, McFadden noted that "most documents the Board withheld are emails and attachments sent among Board staff, other Board Members, and Powell. These communications are intra-agency because Board members and staff exchanged them and did not disclose them publicly." On several occasions, Greenspan contended that records were not deliberative because they did not relate to any actual decision. In response, McFadden pointed out that "the D.C. Circuit has recognized that an agency need not pinpoint an ultimate decision to which the document contributes to assert the privilege. Indeed, 'any requirement of a specific decision after the creation of the document would defeat the purpose of the exemption' because 'the author could not know whether the decision-making process would lead to a clear decision, establishing the privilege or fizzle, defeating it.'"
Issues: Exemption 4 - Confidential business information, Exemption 5 - Privileges - Deliberative process privilege - Predecisional, Exemption 5 - Privileges - Deliberative process privilege - Deliberative

Date Filed	Doc #	Docket Text
2021-07-20	1	COMPLAINT against BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM ( Filing fee $ 402 receipt number ADCDC-8613102) filed by AARON GREENSPAN. (Attachments: # 1 Civil Cover Sheet, # 2 Summons, # 3 Summons to USAO DC, # 4 Summons to USAG)(Golden, Deborah) (Entered: 07/20/2021)
2021-07-21		Case Assigned to Judge Trevor N. McFadden. (adh, ) (Entered: 07/21/2021)
2021-07-21	2	SUMMONS (3) Issued Electronically as to BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Notice and Consent)(adh, ) (Entered: 07/21/2021)
2021-07-21	3	STANDING ORDER Establishing Procedures for Cases Before Judge Trevor N. McFadden. The parties are hereby ORDERED to read and comply with the directives in the attached standing order. Signed by Judge Trevor N. McFadden on 7/21/2021. (lctnm3) (Entered: 07/21/2021)
2021-08-30	4	ANSWER to Complaint by BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM.(Simon, Jeremy) (Entered: 08/30/2021)
2021-08-31	5	VACATED PURSUANT TO MINUTE ORDER ENTERED ON 9/10/2021.....ORDER setting a Telephonic Initial Scheduling Conference for October 4, 2021, at 2:00 p.m before Judge Trevor N. McFadden. Dial-in information will be sent to the parties. See attached Order for additional details. Signed by Judge Trevor N. McFadden on 8/31/2021. (lctnm3) Modified on 9/10/2021 (hmc). (Entered: 08/31/2021)
2021-08-31		Set/Reset Hearings: Telephonic Initial Scheduling Conference set for 10/4/2021 at 2:00 PM before Judge Trevor N. McFadden. (hmc) (Entered: 08/31/2021)
2021-09-10	6	Joint STATUS REPORT by BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM. (Simon, Jeremy) (Entered: 09/10/2021)
2021-09-10		MINUTE ORDER. Upon consideration of the Parties' 6 Joint Status Report, the 5 Order setting Telephonic Initial Scheduling Conference for October 4, 2021 is vacated. The Parties shall submit another Joint Status Report on or before November 4, 2021. SO ORDERED. Signed by Judge Trevor N. McFadden on 9/10/2021. (lctnm3) (Entered: 09/10/2021)
2021-11-04	7	Joint STATUS REPORT by AARON GREENSPAN. (Golden, Deborah) (Entered: 11/04/2021)
2021-11-04		MINUTE ORDER. Upon consideration of the Parties' 7 Joint Status Report, the Parties are hereby ORDERED to submit another Joint Status Report on or before January 7, 2022. SO ORDERED. Signed by Judge Trevor N. McFadden on 11/4/2021. (lctnm3) (Entered: 11/04/2021)
2021-11-05		Set/Reset Deadlines: Joint Status Report due by 1/7/2022. (hmc) (Entered: 11/05/2021)
2022-01-07	8	Joint STATUS REPORT by BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM. (Simon, Jeremy) (Entered: 01/07/2022)
2022-01-07		MINUTE ORDER. Upon consideration of the Parties' 8 Joint Status Report, the Parties shall adhere to the following briefing schedule. Defendant's Motion for Summary Judgment is due on or before March 25, 2022. Plaintiff's Opposition and Cross-Motion is due on or before April 25, 2022. Defendant's Opposition and Reply is due May 16, 2022. Plaintiff's Reply is due on or before May 31, 2022. SO ORDERED. Signed by Judge Trevor N. McFadden on 1/7/2022. (lctnm3) (Entered: 01/07/2022)
2022-01-10		Set/Reset Deadlines: Defendant's Summary Judgment motion due by 3/25/2022. Plaintiff's Opposition and Cross Motion due by 4/25/2022. Defendant's Opposition and Reply. Plaintiff's Reply due by 5/31/2022. (hmc) (Entered: 01/10/2022)
2022-01-25	9	NOTICE of Appearance by Matthew Topic on behalf of AARON GREENSPAN (Topic, Matthew) (Entered: 01/25/2022)
2022-03-17	10	Consent MOTION for Extension of Time to File Motion for Summary Judgment and for Corresponding Adjustment of Remaining Deadlines in Briefing Schedule by BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM. (Attachments: # 1 Proposed Order)(Simon, Jeremy) (Entered: 03/17/2022)
2022-03-18		MINUTE ORDER granting the Government's 10 Consent Motion for Extension of Time. The Parties shall adhere to the following briefing schedule. The Government's motion for summary judgment is now due April 4, 2022. Plaintiff's Opposition and Cross-Motion is now due May 5, 2022. Defendant's Opposition and Reply is now due May 26, 2022. Plaintiff's Reply is now due June 10, 2022. SO ORDERED. Signed by Judge Trevor N. McFadden on 3/18/2022. (lctnm3) (Entered: 03/18/2022)
2022-03-18		Set/Reset Deadlines: Government's motion for summary judgment due April 4, 2022. Plaintiff's Opposition and Cross-Motion due May 5, 2022. Defendant's Opposition and Reply due May 26, 2022. Plaintiff's Reply due June 10, 2022. (hmc) (Entered: 03/18/2022)
2022-04-04	11	MOTION for Summary Judgment by BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM. (Attachments: # 1 Memorandum in Support of Motion for Summary Judgment, # 2 Local Rule 7(h) Statement of Material Facts Not In Genuine Dispute, # 3 Proposed Order, # 4 Declaration of David G. Caperton, # 5 Declaration of Michelle Smith, # 6 Declaration of Andreas Lehnert, # 7 Declaration of Antulio Bomfim, # 8 Declaration of Beth Anne Wilson, # 9 Declaration of Bronwyn Eckhardt, # 10 Declaration of Julia Coronado)(Simon, Jeremy) (Entered: 04/04/2022)
2022-05-05	12	Cross MOTION for Summary Judgment by AARON GREENSPAN. (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts Response to SOF, # 3 Text of Proposed Order)(Topic, Matthew) (Entered: 05/05/2022)
2022-05-05	13	Memorandum in opposition to re 11 MOTION for Summary Judgment filed by AARON GREENSPAN. (Attachments: # 1 Statement of Facts Response to SOF, # 2 Text of Proposed Order)(Topic, Matthew) (Entered: 05/05/2022)
2022-05-26	14	REPLY to opposition to motion re 11 MOTION for Summary Judgment filed by BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM. (Attachments: # 1 Proposed Order)(Simon, Jeremy) (Entered: 05/26/2022)
2022-05-26	15	Memorandum in opposition to re 12 Cross MOTION for Summary Judgment (duplicate of docket entry number 14) filed by BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM. (Attachments: # 1 Proposed Order)(Simon, Jeremy) (Entered: 05/26/2022)
2022-06-10	16	REPLY to opposition to motion re 12 Cross MOTION for Summary Judgment filed by AARON GREENSPAN. (Topic, Matthew) Modified on 6/13/2022 to add docket relationship (zeg). (Entered: 06/10/2022)
2022-12-01	17	MEMORANDUM OPINION re Defendant's 11 Motion for Summary Judgment and Plaintiff's 12 Cross-Motion for Summary Judgment. See attached Opinion for details. Signed by Judge Trevor N. McFadden on 12/1/2022. (lctnm3) (Entered: 12/01/2022)
2022-12-01	18	ORDER. For the reasons stated in the 17 Memorandum Opinion, Defendant's 11 Motion for Summary Judgment is GRANTED and Plaintiff's 12 Cross-Motion for Summary Judgment is DENIED. This is a final, appealable Order. Signed by Judge Trevor N. McFadden on 12/1/2022. (lctnm3) (Entered: 12/01/2022)
Hide Docket Events