FDIC Must Justify How It Answered FOIA Request

     (CN) – The Federal Deposit Insurance Corp. must conduct a more thorough search for records on its response to the global financial crisis of 2008 for a request under the Freedom of Information Act, a federal judge in Washington, D.C., ruled.




     Vern McKinley, a self-described “advisor to governments worldwide on financial sector policy and legal issues” filed three FOIA requests in December 2009, according to the ruling.
     “Specifically, plaintiff seeks records about the agency’s creation and use of a then-new program, the Temporary Liquidity Guarantee Program, to provide assistance to banks and other financial institutions,”
     The FDIC ignored McKinley’s requests until he filed a complaint in March, and then turned over 101 pages of material with information redacted from every document.
     McKinley then contested the FDIC’s response, while the FDIC argued that the issue was moot since it had complied with the request.
     “Although the agency has released portions of certain agency documents, these additional issues remain in dispute, and the court has jurisdiction to hear these claims,” U.S. District Judge Emmet Sullivan wrote, rejecting the FDIC’s motion to dismiss.
     The FDIC had claimed it withheld documents exempted under trade secrets privilege, interagency and process privilege, agency operating report privilege, and a premature disclosure privilege used when the release of documents endangers the stability of a financial institution.
     “After careful consideration, the court concludes that the agency failed to provide sufficient information to enable the court to conclude that the agency’s non-disclosure of documents is justified,” Sullivan wrote.
     He added that the agency relied on “vague statements” and “conclusory assertions” to justify its actions.
     “The FDIC has made no effort to explain whether the withheld information was voluntarily or involuntarily provided,” Sullivan wrote. “The agency therefore has not met its burden to justify withholding.”
     The FDIC also failed to explain how it met the segregability requirement in selecting some information to release and withholding others, according to the ruling.
     Sullivan granted McKinley’s motion for summary judgment on the FDIC’s failure to prove it conducted an adequate search, but he denied McKinley’s motion on exemptions the FDIC used to withhold the redacted information.
     Sullivan ordered the FDIC to either conduct a new search for responsive material or provide the court with declarations proving that the “search methodology, procedures and searches actually conducted were reasonably designed to locate documents responsive to plaintiff’s requests.”

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