Case Detail

FOIA Project Annotation: Judge Beryl Howell has ruled that the Treasury Department properly invoked Exemption 5 (privileges) to withhold from Judicial Watch all or part of more than 200 pages of records concerning the treatment of OneUnited Bank's application for funding during the financial bailout, particularly as it pertained to allegations of favoritism shown to Rep. Barney Frank (D-MA) and Rep. Maxine Waters (D-CA). Howell started her discussion by rejecting Judicial Watch's claim that the deliberative process privilege was qualified and only applied when the agency showed a foreseeable harm from disclosure. Howell noted that "analyzing deliberative process privilege claims without regard to a FOIA plaintiff's particular assertions of need is most consistent with the traditional understanding that Exemption 5's privileges are not treated as qualified because 'Exemption 5 was intended to permit disclosure of those intra-agency memoranda which would "routinely be disclosed" in private litigation.'" She approved of withholding an email string concerning a press inquiry even though it was created after the application was granted. She noted that "post-decisional documents properly fall under the deliberative process privilege when they recount or reflect pre-decisional deliberations. . .[T]he email string regarding a press inquiry reflects internal deliberations as to how to respond to a press inquiry regarding the agency's earlier decision to award TARP funding to OneUnited. As such, the emails were properly redacted pursuant to the deliberative process privilege." Judicial Watch argued that an email discussion of information provided by OneUnited could not qualify under the attorney-client privilege. Howell disagreed, pointing out that "the fact that a request for legal advice concerned information originating with a third party does not necessarily defeat the claim of privilege. . .Such a request for legal advice concerns the agency's own actions and legal interests in connection with its handling of OneUnited. . ." Judicial Watch contended that a document withheld under Exemption 4 (confidential business information) did not meet the test to show competitive harm. But Howell explained the government had also asserted that disclosure would harm program effectiveness and that Judicial Watch had not challenged that claim at all. Some records received from the FDIC were withheld under Exemption 8 (bank examination records). Judicial Watch claimed the exemption covered only specific reports. But relying on another recent district court decisionâ€"McKinley v. FDIC, 744 F. Supp. 2d 128 (D.D.C. 2010), Howell observed that "the FDIC obtained the information it relayed to the defendant through its monitoring of the condition of the financial institutions it regulates. As such, like the withholdings in McKinley, the defendant's withholdings were properly made pursuant to Exemption 8 even if no specific report was identified."
Issues: Exemption 5 - Privileges - Deliberative process privilege - Deliberative, Exemption 5 - Privileges - Deliberative process privilege - Predecisional

Date Filed	Doc #	Docket Text
2009-08-11	1	COMPLAINT against U.S. DEPARTMENT OF TREASURY ( Filing fee $ 350, receipt number 4616023090) filed by JUDICIAL WATCH, INC. (Attachments: # 1 Civil Cover Sheet)(tr) (Entered: 08/12/2009)
2009-08-11	2	LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by JUDICIAL WATCH, INC. identifying Corporate Parent NONE for JUDICIAL WATCH, INC.. (tr) (Entered: 08/12/2009)
2009-08-11		SUMMONS Issued(3) as to U.S. DEPARTMENT OF TREASURY, U.S. Attorney and U.S. Attorney General (tr) (Entered: 08/12/2009)
2009-09-21	3	NOTICE of Appearance by Elizabeth J. Shapiro on behalf of U.S. DEPARTMENT OF TREASURY (Shapiro, Elizabeth) (Entered: 09/21/2009)
2009-09-21	4	Consent MOTION for Extension of Time to File Answer or Otherwise Respond to the Complaint by U.S. DEPARTMENT OF TREASURY (Attachments: # 1 Text of Proposed Order)(Shapiro, Elizabeth) (Entered: 09/21/2009)
2009-09-22	5	NOTICE of Appearance by Teresa M. Schreffler on behalf of U.S. DEPARTMENT OF TREASURY (Schreffler, Teresa) (Entered: 09/22/2009)
2009-09-22		MINUTE ORDER granting 4 Defendant's First Consent Motion for Enlargement of Time to File Answer or Otherwise Answer Complaint. Accordingly, defendant's answer is due on October 21, 2009. Signed by Judge Henry H. Kennedy, Jr. on September 22, 2009. (NP) (Entered: 09/22/2009)
2009-10-21	6	ANSWER to 1 Complaint by U.S. DEPARTMENT OF TREASURY. Related document: 1 Complaint filed by JUDICIAL WATCH, INC..(Schreffler, Teresa) (Entered: 10/21/2009)
2009-10-28	7	ORDER directing the parties to submit a joint case management report no later than November 17, 2009. Signed by Judge Henry H. Kennedy, Jr. on October 28, 2009. (NP) (Entered: 10/28/2009)
2009-11-16	8	NOTICE of Appearance by Jason B. Aldrich on behalf of JUDICIAL WATCH, INC. (Aldrich, Jason) (Entered: 11/16/2009)
2009-11-17	9	NOTICE (The Parties' Joint Case Management Report) by U.S. DEPARTMENT OF TREASURY re 7 Order (Schreffler, Teresa) (Entered: 11/17/2009)
2009-11-18		MINUTE ORDER. This court adopts and the parties shall be bound by the briefing schedule they propose and that is set forth in their 9 Joint Case Management Report. SO ORDERED. Signed by Judge Henry H. Kennedy, Jr. on November 18, 2009. (NP) (Entered: 11/18/2009)
2010-02-12	10	Consent MOTION for Extension of Time to Comply with the Court's November 18, 2009 Order by U.S. DEPARTMENT OF TREASURY (Attachments: # 1 Text of Proposed Order)(Schreffler, Teresa) (Entered: 02/12/2010)
2010-02-16		MINUTE ORDER granting 10 Defendant's Consent Motion for an Extension of Time toComply with the Court's November 18, 2009 Order. Accordingly, defendant shall produce its draft Vaughn Index and affidavit of all records withheld no later than February 23, 2010; and the parties shall file its joint status report no later than March 23, 2010. Signed by Judge Henry H. Kennedy, Jr. on February 16, 2010. (NP) (Entered: 02/16/2010)
2010-03-23	11	STATUS REPORT (Joint) by JUDICIAL WATCH, INC., U.S. DEPARTMENT OF TREASURY. (Orfanedes, Paul) (Entered: 03/23/2010)
2010-03-25		MINUTE ORDER directing the parties to file a joint status report and/or a briefing schedule for dispositive motions to the Court on or before April 9, 2010. Signed by Judge Henry H. Kennedy, Jr. on March 25, 2010. (NP) (Entered: 03/25/2010)
2010-04-09	12	STATUS REPORT (JOINT) by JUDICIAL WATCH, INC., U.S. DEPARTMENT OF TREASURY. (Orfanedes, Paul) (Entered: 04/09/2010)
2010-04-12		MINUTE ORDER. The court adopts and the parties shall be bound by the briefing schedule they propose and that is set forth in 12 their April 9, 2010 status report. Signed by Judge Henry H. Kennedy, Jr. on April 12, 2010. (NP) (Entered: 04/12/2010)
2010-06-09	13	NOTICE of Change of Address by Paul J. Orfanedes (Orfanedes, Paul) (Entered: 06/09/2010)
2010-06-09	14	NOTICE of Change of Address by Jason B. Aldrich (Aldrich, Jason) (Entered: 06/09/2010)
2010-06-14	15	MOTION for Summary Judgment by U.S. DEPARTMENT OF TREASURY (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Text of Proposed Order, # 4 Declaration of Joseph J. Samarias with Vaughn Index, # 5 Declaration of Michelle Borzillo, # 6 Declaration of Frank D. Vance Jr., # 7 Declaration of OneUnited Bank)(Schreffler, Teresa) (Entered: 06/14/2010)
2010-07-14	16	First MOTION for Extension of Time to File Opposition to Defendant's Motion for Summary Judgment by JUDICIAL WATCH, INC. (Attachments: # 1 Proposed Order)(Aldrich, Jason) (Entered: 07/14/2010)
2010-07-15		MINUTE ORDER granting 16 Plaintiff's Unopposed Motion for Extension of Time to File Opposition to Defendant Department of Treasury's Motion for Summary Judgment. Accordingly, plaintiff's opposition/cross-motion is due on July 28, 2010; defendant's reply/opposition to cross-motion is due on August 18, 2010; and plaintiff's reply is due on September 1, 2010. Signed by Judge Henry H. Kennedy, Jr. on July 15, 2010. (NP) (Entered: 07/15/2010)
2010-07-16		Set/Reset Deadlines: Plaintiff's opposition/cross-motion due by 7/28/2010. Defendant's reply/opposition to cross-motion due by 8/18/2010. Plaintiff's reply due by 9/1/2010. (tr) (Entered: 07/16/2010)
2010-07-28	17	Memorandum in opposition to re 15 MOTION for Summary Judgment Plaintiff's Opposition to Defendant's Motion for Summary Judgment filed by JUDICIAL WATCH, INC.. (Attachments: # 1 Text of Proposed Order)(Aldrich, Jason) (Entered: 07/28/2010)
2010-08-18	18	REPLY to opposition to motion re 15 MOTION for Summary Judgment filed by U.S. DEPARTMENT OF TREASURY. (Schreffler, Teresa) (Entered: 08/18/2010)
2010-10-22	19	STATUS REPORT (Joint) by U.S. DEPARTMENT OF TREASURY. (Schreffler, Teresa) (Entered: 10/22/2010)
2010-12-08	20	STATUS REPORT (Joint) by JUDICIAL WATCH, INC., U.S. DEPARTMENT OF TREASURY. (Aldrich, Jason) (Entered: 12/08/2010)
2010-12-21	21	SCHEDULING ORDER. Signed by Henry H. Kennedy, Jr. (lchhk1) (Entered: 12/21/2010)
2011-01-20		Case reassigned to U.S. District Judge Beryl A. Howell. Judge Henry H. Kennedy no longer assigned to the case. (gt, ) (Entered: 01/20/2011)
2011-01-25	22	Supplemental MOTION for Summary Judgment by U.S. DEPARTMENT OF TREASURY (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Declaration with Vaughn Index, # 4 Text of Proposed Order)(Schreffler, Teresa) (Entered: 01/25/2011)
2011-02-25	23	Memorandum in opposition to re 22 Supplemental MOTION for Summary Judgment filed by JUDICIAL WATCH, INC.. (Attachments: # 1 Text of Proposed Order)(Aldrich, Jason) (Entered: 02/25/2011)
2011-03-25	24	REPLY to opposition to motion re 22 Supplemental MOTION for Summary Judgment filed by U.S. DEPARTMENT OF TREASURY. (Schreffler, Teresa) (Entered: 03/25/2011)
2011-06-29		MINUTE ORDER (paperless) directing the defendant to produce unredacted copies of the 13 disputed sets of documents for ex parte, in camera inspection. The defendant shall produce the disputed documents to the Court by July 6, 2011. Signed by Judge Beryl A. Howell on 6/29/2011. (lcbah2) (Entered: 06/29/2011)
2011-06-29		Set/Reset Deadlines: Defendant shall produce the disputed documents to the Court by 7/6/2011. (tcb) (Entered: 06/29/2011)
2011-06-29		Set/Reset Deadlines: Defendant to produce disputed documents to the Court by 7/6/2011. (zmm, ) (Entered: 06/30/2011)
2011-07-06	25	NOTICE of Submission of Ex Parte, In Camera Material by U.S. DEPARTMENT OF TREASURY (Schreffler, Teresa) (Entered: 07/06/2011)
2011-07-06		MINUTE ORDER (paperless) directing the defendant to produce, where applicable, the redacted versions of the unredacted documents that were produced for ex parte, in camera inspection on July 6, 2011. The redacted versions shall be produced for all disputed documents that were redacted, and not withheld in their entirety, from the defendant's productions. The defendant shall produce the redacted versions of these documents to the Court by July 8, 2011. The defendant's submission shall also explain the status of the documents stamped with Bates numbers UST JW 000809 and 000825, which were submitted to the Court on July 6, 2011, but which do not appear to be addressed in the defendant's Vaughn indices or other prior filings in this matter. Signed by Judge Beryl A. Howell on 7/6/2011. (lcbah2) (Entered: 07/06/2011)
2011-07-06		Set/Reset Deadlines: Redacted versions of unredacted documents produced for ex parte, in camera inspection due by 7/8/2011. (zalg, ) (Entered: 07/07/2011)
2011-07-07	26	NOTICE of Submission of Ex Parte, In Camera Redacted Material by U.S. DEPARTMENT OF TREASURY (Schreffler, Teresa) (Entered: 07/07/2011)
2011-07-11	27	MEMORANDUM OPINION regarding 15 defendant's motion for summary judgment and 22 defendant's supplemental motion for summary judgment. Signed by Judge Beryl A. Howell on 7/11/2011. (lcbah2) (Entered: 07/11/2011)
2011-07-11	28	ORDER granting in part and denying in part 15 Defendant's Motion for Summary Judgment and granting in part and denying in part 22 Defendant's Supplemental Motion for Summary Judgment for the reasons set forth in the accompanying Memorandum Opinion. Signed by Judge Beryl A. Howell on 7/11/2011. (lcbah2) (Entered: 07/11/2011)
2011-07-19	29	NOTICE of Production of Redacted Material by U.S. DEPARTMENT OF TREASURY (Schreffler, Teresa) (Entered: 07/19/2011)
2011-07-21		MINUTE ORDER (paperless) On July 11, 2011, this Court granted in part and denied in part the defendant's motions for summary judgment in this case. In partially denying the motions, the Court ordered that on or before July 22, 2011, the defendant shall produce to the plaintiff copies of the three sets of OFS Investment Committee meeting minutes, Bates numbers 537-538, 539-540, and 541-542, that do not redact the headers on these documents, or shall file a renewed motion explaining why the headers are not reasonably segregable from the minutes. ECF No. 28 . On July 19, 2011, the defendant filed a notice indicating that it had produced the documents referenced in the Court's July 11 Order. ECF No. 29 . Therefore, the claims raised in this lawsuit are now resolved and this case is hereby dismissed. Signed by Judge Beryl A. Howell on 7/21/2011. (lcbah2) (Entered: 07/21/2011)
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