Case Detail

FOIA Project Annotation: Judge Reggie Walton has ruled that records pertaining to third-party contractor independence requirements of the Office of the Comptroller of the Currency are protected by Exemption 8 (bank examination records). The Comptroller issued a Consent Order requiring several banks to retain an independent consultant acceptable to the Comptroller to conduct an independent review of specific foreclosure practices. Aurora Bank hired Allonhill, LLC to review its foreclosure practices, but the Comptroller terminated its contract because of an alleged conflict of interests between its previous work and the Comptroller's independence requirements. The law firm of Williams & Connolly, representing Allonhill, requested general information about third-party contractor independence requirements. The agency disclosed 13 pages, eight of which were already publicly available, and withheld the rest under Exemption 8. Williams & Connolly filed suit and in lieu of a Vaughn index, the agency provided two declarations with appendices summarizing the agency's search and explaining the nature of the withheld records and the basis for withholding them. Williams & Connolly argued that the records did not fall under Exemption 8 because they pertained to third-party contractors rather than banks. Walton noted that "under the plain language of Exemption 8, and contrary to the plaintiff's position, the documents withheld by the Comptroller fall within the purview of Exemption 8â€"regardless of whether the documents were generated as part of a third-party driven independent foreclosure reviewâ€"so long as they were prepared in furtherance of the Comptroller's 'responsib[ility] for the regulation or supervision of financial institutions,' reducing the pertinent question in this case to whether the Comptroller regulates or supervises financial institutions. And because the Comptroller is explicitly charged with regulating financial institutions, based on the plain language of the statute, Exemption 8 applies to the requested documents." Williams & Connolly contended that Exemption 8 applied to regulation of financial institutions and not unrelated third parties. But Walton observed that a recent district court decision, Public Investors Arbitration Bar Association v. SEC, 930 F. Supp.2d 55 (D.D.C. 2013), had found that SEC records concerning the selection of third-party arbitrators were protected by Exemption 8 if they pertained to the agency's regulation of financial institutions. Walton pointed out that "the Court is persuaded by the defendant's position that withholding the requested documents furthers one of the exemption's underlying purposesâ€"it encourages banks to be candid and transparent with the Comptroller regarding the independent third-party contractors each bank was required to hire pursuant to the Consent Order issued by the Comptroller to review the bank's foreclosure practices." Williams & Connolly also challenged the agency's decision not to provide a Vaughn index. However, Walton noted that "in cases where a sworn declaration is sufficient to identify the applicability of an exemption, such as Exemption 8, that protects an entire category of withheld information, there is no need for additional clarification." He added that "because Exemption 8 categorically applies to the requested records in this case, it would be futile to order the Comptroller to do more than what it has already done."
Issues: Exemption 8 - Bank examination records

Date Filed	Doc #	Docket Text
2013-03-27	1	COMPLAINT against OFFICE OF COMPTROLLER OF CURRENCY ( Filing fee $ 350 receipt number 0090-3263386) filed by WILLIAMS & CONNOLLY, LLP. (Attachments: # 1 Civil Cover Sheet, # 2 Summons)(Elliott, Andrew) (Entered: 03/27/2013)
2013-03-27		Case Assigned to Judge Reggie B. Walton. (kb ) (Entered: 03/27/2013)
2013-03-27	2	Electronic Summons (1) Issued as to OFFICE OF COMPTROLLER OF CURRENCY. (Attachments: # 1 Consent Form, # 2 Notice of Consent)(kb) (Entered: 03/27/2013)
2013-04-10	3	NOTICE of Appearance by Claire M. Whitaker on behalf of OFFICE OF COMPTROLLER OF CURRENCY (Whitaker, Claire) (Entered: 04/10/2013)
2013-04-17	4	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 4/1/2013. Answer due for ALL FEDERAL DEFENDANTS by 5/1/2013. (Elliott, Andrew) (Entered: 04/17/2013)
2013-04-17	5	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 4/1/2013. (Elliott, Andrew) (Entered: 04/17/2013)
2013-04-17	6	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. OFFICE OF COMPTROLLER OF CURRENCY served on 4/1/2013 (Elliott, Andrew) (Entered: 04/17/2013)
2013-04-30	7	ANSWER to Complaint by OFFICE OF COMPTROLLER OF CURRENCY.(Whitaker, Claire) (Entered: 04/30/2013)
2013-05-14	8	MEET AND CONFER STATEMENT. (Attachments: # 1 Text of Proposed Order)(Elliott, Andrew) (Entered: 05/14/2013)
2013-05-22		ENTERED IN ERROR.....MINUTE ORDER. In accordance with the parties' Joint Scheduling Statement (see ECF No. 8 ), it is ORDERED that the following briefing schedule shall apply: (1) the defendant shall file its motion for summary judgment and the plaintiff shall file its cross-motion for summary judgment on or before June 28, 2013; (2) the defendant shall file its opposition to the plaintiff's cross-motion for summary judgment and the plaintiff shall file its opposition to the defendnat's motion for summary judgment on or before July 29, 2013. Signed by Judge Reggie B. Walton on 5/22/2013. (lcrbw2) Modified on 5/23/2013; corrected Minute Order filed same date.(ztnr, ) (Entered: 05/22/2013)
2013-05-22		MINUTE ORDER. In accordance with the parties' Joint Scheduling Statement (see ECF No. 8 ), it is ORDERED that the following briefing schedule shall apply: (1) the defendant shall file its motion for summary judgment and the plaintiff shall file its cross-motion for summary judgment on or before June 28, 2013; (2) the defendant shall file its opposition to the plaintiff's cross-motion for summary judgment and the plaintiff shall file its opposition to the defendant's motion for summary judgment on or before July 29, 2013; and (3) the parties shall file their replies on or before August 12, 2013. Signed by Judge Reggie B. Walton on 5/22/2013. (lcrbw2) (Entered: 05/22/2013)
2013-05-23		Set/Reset Deadlines: Summary Judgment Motion and Cross Motion due by 6/28/13; Opposition to Motions due by 7/29/13; Replies due by 8/12/13(mpt, ) (Entered: 05/23/2013)
2013-06-28	9	Cross MOTION for Summary Judgment by OFFICE OF COMPTROLLER OF CURRENCY (Attachments: # 1 Exhibit 1 (Declaration of Ashley W. Walker, dated 6/3/13), # 2 Exhibit 2 (Suppl. Decl. of Ashley W. Walker,dated 6/27/13), # 3 Exhibit 3 (Declaration of Monica A. Freas, dated 6/7/13), # 4 Exhibit 4 (Suppl. Dec. of Monica A. Freas, dated 6/25/13), # 5 Exhibit 5 (Declaration of Noelle Kurtin, dated 6/3/13), # 6 Statement of Facts, # 7 Text of Proposed Order)(Whitaker, Claire) (Entered: 06/28/2013)
2013-06-28	10	Cross MOTION for Summary Judgment by WILLIAMS & CONNOLLY, LLP (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Declaration, # 4 Text of Proposed Order)(Elliott, Andrew). Added MOTION for Hearing on 7/1/2013 (td, ). (Entered: 06/28/2013)
2013-07-29	11	Memorandum in opposition to re 9 Cross MOTION for Summary Judgment filed by WILLIAMS & CONNOLLY, LLP. (Attachments: # 1 Declaration, # 2 Statement of Facts, # 3 Text of Proposed Order)(Elliott, Andrew) (Entered: 07/29/2013)
2013-07-29	12	RESPONSE re 10 Cross MOTION for Summary Judgment MOTION for Hearing filed by OFFICE OF COMPTROLLER OF CURRENCY. (Attachments: # 1 Exhibit Second Suppl. Dec. of Freas, # 2 Statement of Facts Defendant's Reply to Plaintiff Statement of Material Facts as to Which it Contendfs there is No Dispute, # 3 Text of Proposed Order)(Whitaker, Claire) (Entered: 07/29/2013)
2013-08-02	13	Consent MOTION for Extension of Time to File Response/Reply as to 9 Cross MOTION for Summary Judgment by Defendant and 10 Cross Motion by Plaintiff filed by OFFICE OF COMPTROLLER OF CURRENCY (Attachments: # 1 Text of Proposed Order)(Whitaker, Claire) (Entered: 08/02/2013)
2013-08-12	14	REPLY to opposition to motion re 10 Cross MOTION for Summary Judgment MOTION for Hearing filed by WILLIAMS & CONNOLLY, LLP. (Attachments: # 1 Declaration of Andrew Elliott)(Elliott, Andrew) (Entered: 08/12/2013)
2013-08-15	15	REPLY to opposition to motion re 9 Cross MOTION for Summary Judgment filed by OFFICE OF COMPTROLLER OF CURRENCY. (Attachments: # 1 Attachment A)(Whitaker, Claire) (Entered: 08/15/2013)
2013-08-15	16	Memorandum in opposition to re 10 Cross MOTION for Summary Judgment MOTION for Hearing filed by OFFICE OF COMPTROLLER OF CURRENCY. (Whitaker, Claire) (Entered: 08/15/2013)
2014-01-16		MINUTE ORDER granting 13 Motion for Extension of Time to File Response/Reply nunc pro tunc. For good cause shown the Motion for Extension of Time to File Rely is granted and all filed motions are deemed to be timely filed. Signed by Judge Reggie B. Walton on 1/16/2014. (lcrbw3) (Entered: 01/16/2014)
2014-03-31	17	ORDER granting 9 Motion for Summary Judgment; denying 10 Motion for Summary Judgment; denying 10 Motion for Hearing. For the reasons to be set forth in the Memorandum Opinion to be issued by the Court within the next sixty days, absent extraordinary circumstances, the Court will grant the Defendants Motion for Summary Judgment and deny the Plaintiffs Motion for Summary Judgment and Request for Hearing in a final Order that will be issued contemporaneously with the forthcoming Memorandum Opinion. Accordingly, it is ORDERED that the Defendants Motion for Summary Judgment is GRANTED. It is further ORDERED that the Plaintiffs Motion for Summary Judgment and Request for Hearing is DENIED. It is further ORDERED that this Order is not a final Order subject to appeal. See attached image for further details. Signed by Judge Reggie B. Walton on 3/31/2014. (lcrbw3, ) (Entered: 03/31/2014)
2014-04-30	18	ORDER re 9 Cross MOTION for Summary Judgment filed by OFFICE OF COMPTROLLER OF CURRENCY, 10 Cross MOTION for Summary Judgment and MOTION for Hearing filed by WILLIAMS & CONNOLLY, LLP. In accordance with the attached Order, it is hereby ORDERED that the Defendant's Motion for Summary Judgment is GRANTED. It is further ORDERED that the Plaintiff's Motion for Summary Judgment and Request for Hearing is DENIED. Finally, it is herebyORDERED that this case is CLOSED. Signed by Judge Reggie B. Walton on 4/30/2014. (lcrbw3) (Entered: 04/30/2014)
2014-04-30	19	MEMORANDUM OPINION. Signed by Judge Reggie B. Walton on 4/30/2014. (lcrbw3) (Entered: 04/30/2014)
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