McKinley v. Board of Governors of the Federal Reserve System , 849 F. Supp. 2d 47 ( 2012 )


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  •                           UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF COLUMBIA
    ____________________________________
    )
    VERN McKINLEY,                             )
    )
    Plaintiff,            )
    )
    v.                                  )       Civil Action No. 1:10-cv-00751 (ABJ)
    )
    BOARD OF GOVERNORS OF
    THE FEDERAL RESERVE SYSTEM,         )
    )
    Defendant.        )
    ____________________________________)
    MEMORANDUM OPINION
    This action involves two requests under the Freedom of Information Act (“FOIA”),
    
    5 U.S.C. § 552
     (2006), made by plaintiff Vern McKinley (“McKinley”), seeking documents
    related to deliberations undertaken by the Board of Governors of the Federal Reserve System
    (“Board”) concerning what systemic effect, if any, the failure of American International Group
    (“AIG”) and Lehman Brothers might have on financial markets. McKinley seeks a declaratory
    judgment that the Board violated FOIA by failing to fulfill his requests for non-exempt
    responsive records and an injunction compelling the Board to comply with the FOIA requests.
    Compl. ¶¶ 14–15. The parties have cross-moved for summary judgment [Dkt. # 13, 17, and 19].
    Because the Court finds that the Board conducted adequate searches and properly invoked FOIA
    exemptions, the Court will grant both of the Board’s motions for partial summary judgment [Dkt.
    # 13 and 17] and will deny McKinley’s cross-motion [Dkt. # 19].
    I.     Background
    The Federal Reserve System is composed of the Board and twelve regional Federal
    Reserve Banks (“FRBs”). The Board is the central supervisory authority of the Federal Reserve
    System. 
    12 U.S.C. § 241
     (2006). It oversees the operation of the system, promulgates and
    administers regulations, and plays a major role in the supervision and regulation of the United
    States banking system. The Board is “authorized and empowered … (1) [t]o examine at its
    discretion the accounts, books, and affairs of each Federal reserve bank and of each member
    bank and to require such statements and reports as it may deem necessary” and (2) “[t]o require
    any depository institution specified in this paragraph to make, at such intervals as the Board may
    prescribe, such reports of its liabilities and assets as the Board may determine to be necessary or
    desirable to enable the Board to discharge its responsibility to monitor and control monetary and
    credit aggregates.” 
    12 U.S.C. § 248
     (2006). Most pertinent to this case, section 13(3) of the
    Federal Reserve Act, as it was in effect in 2008, gives the Board the power to authorize, in
    unusual and exigent circumstances, any FRB to extend credit to any individual, partnership, or
    corporation that is secured to the satisfaction of the lending FRB and meets other specified
    criteria. 
    12 U.S.C. § 343
     (2008), amended by Pub. L. No. 111–203, § 1101(a), 
    124 Stat. 2113
    (2010). However, before the Board may authorize a FRB to make a loan, the FRB must make an
    independent determination concerning whether adequate credit is available from other banking
    institutions and whether the target institution has sufficient lendable collateral to support a loan
    of the magnitude required to meet its expenses. Mosser Decl. ¶ 7.
    A. The Board’s Response to the Financial Crisis and the Worsening Liquidity
    Problems of AIG and Lehman Brothers.
    AIG and Lehman Brothers were among several institutions facing severe capital and
    liquidity problems toward the end of 2008. Thro Decl. ¶ 11. At that time, the Board became
    increasingly concerned about the effects that a possible AIG or Lehman Brothers bankruptcy
    would have on financial markets and individual financial institutions, including on large complex
    banking organizations (“LCBOs”). Foley Decl. ¶ 6. As a result, the Board undertook to
    2
    determine whether or not to authorize the Federal Reserve Bank of New York (“FRBNY”) to
    extend a loan to either or both institutions under section 13(3) of the Federal Reserve Act. In
    making this determination, the Board sought information from the FRBNY concerning the real-
    time exposures of certain counterparties to AIG and Lehman Brothers. 1 
    Id.
     In addition to the
    information supplied by FRBNY examiners, the Board also exchanged information with
    domestic and foreign banking supervisors to assess the potential impact of AIG’s and Lehman
    Brothers’ funding difficulties on regulated financial institutions and markets. 
    Id.
    Over the weekend of September 13, 2008, the Board, FRBNY, U.S. Department of the
    Treasury, and Securities and Exchange Commission brought together leaders of major financial
    firms in an attempt to craft a private sector solution to address Lehman Brothers’ worsening
    capital and liquidity shortfalls. Thro Decl. ¶ 11. No solution could be crafted and Lehman
    Brothers declared bankruptcy on September 15, 2010. 
    Id.
     “Convinced,” however, “that the
    failure of AIG would be catastrophic for a financial system already in acute distress,” the Board
    invoked section 13(3) and authorized the FRBNY to loan up to $85 billion to AIG. Mosser Decl.
    ¶ 6. The FRBNY, in turn, approved the loan. 
    Id.
    B. The FOIA Requests
    McKinley made two separate but related FOIA requests that give rise to this action. On
    March 21, 2010, McKinley submitted his first request (the “AIG request”) to the Board seeking
    “further detail on information contained on p. 3 of the [September 16, 2008] minutes of the
    1        Under authority delegated by the Board, the FRBNY supervises Large Financial
    Institutions (“LFIs”), including financial utilities, that are members of the Federal Reserve
    System. Davis Decl. ¶ 2. All LFIs supervised by the FRBNY are subject to continuous on-site
    monitoring by a team of FRBNY examiners who continually gather and analyze information as
    part of the bank examination process. 
    Id.
     FRBNY examiners request information from
    regulated LFIs on a wide range of subjects to assess the LFI's exposure to particular market
    participants or sectors in order to assess risks to the institution from market events, and to craft
    an appropriate supervisory response. 
    Id.
    3
    Board of Governors of the Federal Reserve[.] . . . The source of power referenced in the minutes
    is Section 13(3) of the Federal Reserve Act.” Ex. A to Thro Decl. McKinley specifically sought
    “any and all communications and records concerning or related to the Board’s decision that
    detail that ‘the disorderly failure of AIG was likely to have a systemic effect on financial markets
    that were already experiencing a significant level of fragility’” as described in the meeting
    minutes.   
    Id.
       The following week, McKinley submitted his second request (the “Lehman
    request”) to the Board seeking:
    [A]ny and all communications and records regarding analysis undertaken
    regarding Lehman Brothers and the assessment in September 2008 or earlier of
    what ‘contagion’ might have flowed from Lehman Brother’s filing of bankruptcy
    as the word contagion was used in the case of the Board of Governors’
    deliberations over Bear Stearns: or ‘systemic effect on financial markets’ that
    might have flowed from a Lehman Brothers bankruptcy as those terms were used
    in the Board’s deliberations over American International Group.
    Ex. E to Thro Decl. “Th[is] analysis,” McKinley asserts in his request, “would likely have been
    undertaken in the context of considering whether to take action under Section 13(3) of the
    Federal Reserve Act to avoid a Lehman bankruptcy.” 
    Id.
    The Manager of the Freedom of Information Office at the Board acknowledged receipt of
    the AIG request on March 22, 2010 and the Lehman request on March 30, 2010. Thro Decl. ¶ 4,
    8. On May 11, 2010, prior to the Board’s review and release of the responsive documents, but
    after the statutorily prescribed waiting period for filing a FOIA action had expired, McKinley
    brought this suit. McKinley alleges a “violation of FOIA” as the sole count and seeks to compel
    the Board “to search for and produce” any and all non-exempt responsive records, and to enjoin
    the Board from “continuing to withhold” any and all non-exempt records responsive to the FOIA
    requests. Compl. ¶¶ 13-15.
    4
    Beginning in August 2010, attorneys at the Board conducted searches to identify any and
    all records responsive to McKinley’s requests. Thro Decl. ¶¶ 15, 22. On November 9, 2010, the
    Secretary of the Board informed McKinley that staff had searched Board records, and had found
    a large number of documents responsive to the AIG and Lehman requests. 2 
    Id. ¶ 6, 10
    . In total,
    the Board released 2,388 pages of responsive documents to McKinley, with 575 pages provided
    in full, 751 pages provided in part, and 1062 pages withheld in full. 3 
    Id.
     The Board claims that
    the 751 pages provided in part and 1062 pages withheld in full contain exempt information
    subject to withholding under FOIA Exemptions 2, 4, 5, 6, or 8. 4 
    Id.
    The Board filed motions for partial summary judgment on June 8, 2011 and on July 15,
    2011 [Dkt. # 13, 17]. McKinley cross-moved for summary judgment on August 31, 2011 [Dkt.
    # 19]. McKinley challenges the adequacy of the Board’s searches and maintains that the Board
    continues to improperly withhold information in eighty-three records. Specifically, McKinley
    2       The Board produced an AIG Vaughn Index and a Lehman Vaughn Index identifying the
    withheld material by document (rather than page), briefly describing the withheld material and
    listing the FOIA exemption pursuant to which the document was withheld. See Vaughn v.
    Rosen, 
    484 F.2d 820
    , 826–28 (D.C. Cir. 1973). For the AIG request, the Board provided
    McKinley with an index bearing bates numbers with the prefix “BOG–FOIA 10–251” and
    running from 000001 to 001134. Thro. Decl. ¶ 6. For the Lehman request, the Board provided
    McKinley with an index bearing bates numbers with the prefix “BOG–FOIA 10–267” and
    running from 000001 to 001254. Id. ¶ 10. Pursuant to the Court’s February 3, 2012 Minute
    Order, the parties submitted a joint statement containing an index of the disputed records,
    catalogued by bates number, and with reference to the Board’s claims of exemption for each
    record [Dkt. # 23].
    3       The 2,388 pages of responsive documents includes: 1133 pages of documents responsive
    to the AIG request and released on November 9, 2010; one page of documents responsive to the
    AIG request and released on May 27, 2011; 1221 pages of documents responsive to the Lehman
    request and released on November 9, 2010; and 33 pages of documents responsive to the
    Lehman request and released on May 27, 2011.
    4       As an initial matter, McKinley does not challenge any of the Board’s withholdings under
    Exemptions 2 or 6. As such, the Court will not address these records. See Pl.’s Reply at 2
    (stating that the exemptions currently at issue are Exemptions 4, 5, and 8).
    5
    asserts that the Board has improperly withhold seventeen records because they are readily-
    available to the public, and challenges the withholding of sixty-six records as improper under the
    Board’s asserted FOIA exemptions. The Board contends that the searches conducted were
    adequate and that it is entitled to withhold the eighty-three disputed records under applicable
    FOIA exemptions.
    II.     Standard of Review
    “FOIA cases are typically and appropriately decided on motions for summary judgment.”
    Moore v. Bush, 
    601 F. Supp. 2d 6
    , 12 (D.D.C. 2009). In the FOIA context, “the sufficiency of
    the agency’s identification or retrieval procedure” must be “genuinely in issue” in order for
    summary judgment to be inappropriate. Weisberg v. DOJ, 
    627 F.2d 365
    , 370 (D.C. Cir. 1980),
    quoting Founding Church of Scientology v. NSA, 
    610 F.2d 824
    , 836 (D.C. Cir. 1979) (internal
    quotation marks omitted). However, a plaintiff “cannot rebut the good faith presumption”
    afforded to an agency’s supporting affidavits “through purely speculative claims about the
    existence and discoverability of other documents.” Brown v. DOJ, 
    742 F. Supp. 2d 126
    , 129
    (D.D.C. 2010), quoting SafeCard Servs., Inc. v. SEC, 
    926 F.2d 1197
    , 1200 (D.C. Cir. 1991)
    (internal quotation marks and citations omitted).
    In any motion for summary judgment, the Court “must view the evidence in the light
    most favorable to the nonmoving party, draw all reasonable inferences in his favor, and eschew
    making credibility determinations or weighing the evidence.” Montgomery v. Chao, 
    546 F.3d 703
    , 706 (D.C. Cir. 2008); see also Anderson v. Liberty Lobby, Inc., 
    477 U.S. 242
    , 247–48
    (1986). However, where a plaintiff has not provided evidence that an agency acted in bad faith,
    “a court may award summary judgment solely on the basis of information provided by the
    agency in declarations.” Moore, 
    601 F. Supp. 2d at 12
    . The district court reviews the agency’s
    6
    action de novo, and “the burden is on the agency to sustain its action.” 
    5 U.S.C. § 552
    (a)(4)(B)
    (2006); accord Military Audit Project v. Casey, 
    656 F.2d 724
    , 738 (D.C. Cir. 1981).
    III.    Analysis
    The purpose of FOIA is to require the release of government records upon request and to
    “ensure an informed citizenry, vital to the functioning of a democratic society, needed to check
    against corruption and to hold the governors accountable to the governed.” NLRB v. Robbins
    Tire & Rubber Co., 
    437 U.S. 214
    , 242 (1978). At the same time, Congress recognized “that
    legitimate governmental and private interests could be harmed by release of certain types of
    information and provided nine specific exemptions under which disclosure could be refused.”
    FBI v. Abramson, 
    456 U.S. 615
    , 621 (1982); see also Ctr. for Nat’l Sec. Studies v. DOJ, 
    331 F.3d 918
    , 925 (D.C. Cir. 2003) (“FOIA represents a balance struck by Congress between the public’s
    right to know and the government’s legitimate interest in keeping certain information
    confidential.”). The Supreme Court has instructed that FOIA exemptions are to be “narrowly
    construed.” Abramson, 
    456 U.S. at 630
    .
    To prevail in a FOIA action, an agency must satisfy two elements. First, the agency must
    demonstrate that it has made “a good faith effort to conduct a search for the requested records,
    using methods which can be reasonably expected to produce the information requested.”
    Oglesby v. U.S. Dep’t of Army, 
    920 F.2d 57
    , 68 (D.C. Cir. 1990). “[A]t the summary judgment
    phase, an agency must set forth sufficient information in its affidavits for a court to determine if
    the search was adequate.” Nation Magazine, Wash. Bureau v. U.S. Customs Serv., 
    71 F.3d 885
    ,
    890 (D.C. Cir. 1995), citing Oglesby, 
    920 F.2d at 68
    . Such agency affidavits attesting to a
    reasonable search “are afforded a presumption of good faith,” Defenders of Wildlife v. U.S. Dep’t
    of Interior, 
    314 F. Supp. 2d 1
    , 8 (D.D.C. 2004) (“Defenders of Wildlife I”), and “can be rebutted
    7
    only ‘with evidence that the agency’s search was not made in good faith,’” 
    id.,
     quoting Trans
    Union LLC v. Fed. Trade Comm’n, 
    141 F. Supp. 2d 62
    , 69 (D.D.C. 2001). Second, an agency
    must show that “materials that are withheld . . . fall within a FOIA statutory exemption.”
    Leadership Conference on Rights v. Gonzales, 
    404 F. Supp. 2d 246
    , 252 (D.C. Cir. 2005).
    A. Whether The Board Conducted Adequate Searches.
    McKinley first argues that the searches performed by the Board were not adequate. Pl.’s
    Cross–Mot. at 3. “An agency fulfills its obligations under FOIA if it can demonstrate beyond
    material doubt that its search was ‘reasonably calculated to uncover all relevant documents.’”
    Valencia–Lucena v. U.S. Coast Guard, 
    180 F.3d 321
    , 325 (D.C. Cir. 1999), quoting Truitt v.
    Dep’t of State, 
    897 F.2d 540
    , 542 (D.C. Cir. 1990). “To meet its burden, the agency may submit
    affidavits or declarations that explain in reasonable detail the scope and method of the agency’s
    search.” Defenders of Wildlife v. U.S. Border Patrol, 
    623 F. Supp. 2d 83
    , 91 (D.D.C. 2009)
    (“Defenders of Wildlife II”). However, “the issue to be resolved is not whether there might exist
    any other documents possibly responsive to the request, but rather whether the search for those
    documents was adequate.” Weisberg v. DOJ, 
    745 F.2d 1476
    , 1485 (D.C. Cir. 1984). The
    process of conducting an adequate search for documents requires “both systemic and case-
    specific exercises of discretion and administrative judgment and expertise” and is “hardly an area
    in which the courts should attempt to micromanage the executive branch.” Schrecker v. DOJ,
    
    349 F.3d 657
    , 662 (D.C. Cir. 2003) (internal quotation marks and citations omitted).
    The Board argues that it performed an adequate search because it thoroughly searched
    materials in the Project Collect Repository, which was created to hold materials related to the
    Federal Reserve’s response to the financial crisis. McKinley does not argue that the search of
    the repository was itself inadequate, but instead argues that the Board was required to search at
    8
    the FRBNY in addition to searching the repository. Pl.’s Cross–Mot. at 4. The Court agrees
    with the Board that the Board was not required to search beyond the repository in order to satisfy
    its FOIA obligation to conduct an adequate search.
    1. The Project Collect Repository
    Public interest in the AIG loan and Lehman Brothers’ bankruptcy prompted the Board’s
    General Counsel to direct “Legal Division staff to gather all materials related to the AIG loan
    and Lehman Brothers bankruptcy, among other topics, as part of a larger effort to collect
    documents related to the Federal Reserve’s response to the financial crisis, known as Project
    Collect.” Thro Decl. ¶ 12. The Project Collect repository contains hundreds of thousands of
    documents collected from approximately 190–200 Board members, officers, and staff in nine
    divisions who were involved in any aspect of the Board’s response to the financial crisis. Id. ¶
    13. To create the repository, Legal Division staff contacted “those involved in the response to
    Lehman Brothers’ capital and liquidity crisis as well as those involved in the response to AIG’s
    liquidity crisis and request for the AIG loan.” Id. In particular, staff “sought all documents
    relating to AIG from January 1, 2008 through the date of collection and all documents relating to
    Lehman Brothers from January 1, 2008 through the date of collection.” Id. Board members,
    officers, and staff were informed of FOIA and Congressional requests for information that the
    Board had received and were asked to forward any potentially responsive documents for
    inclusion in the Project Collect repository. Id.
    2. The Board’s Search of the Project Collect Repository was Adequate
    McKinley argues that the Board conducted inadequate searches because it “failed to
    search records [located] at the FRBNY.” Pl.’s Cross–Mot. at 4. He argues this not because he
    disputes that the FRBNY is not a component of the Board, but because he believes that “certain
    9
    records of FRBNY are nevertheless agency records.” Id. But, even if the Court were to agree
    with McKinley on that point, any records that remain at the FRBNY and not in the Project
    Collect repository – to the extent that such records exist – are beyond the scope of McKinley’s
    FOIA requests. 5 McKinley’s AIG request asked only for records “concerning or relating to the
    Board’s decision that detail that ‘the disorderly failure of AIG was likely to have a systemic
    effect of financial markets . . . .” Ex. A to Thro Decl. (emphasis added). So the FRBNY cannot
    possess any of the materials that fall within this request because the records that the FRBNY has
    in its possession are records that the FRBNY consulted in deciding what information to send to
    the Board. These records are thus not related to the Board’s decision, and therefore do not fall
    within McKinley’s request.      The only records that do fall within McKinley’s request are
    possessed by the Board and, as the Thro declaration explains, were put in the Project Collect
    repository. See Thro Decl. ¶¶ 12–14 (explaining that at the time the Board began the search and
    5       Because McKinley’s request seeks only records contained in the repository, the Court
    need not determine under what circumstances, if any, records created by the FRBNY pursuant to
    its independent lending authority, may constitute records created “on behalf of” the Board,
    subject to disclosure under FOIA. Even if the Court were to find such records and in fact “Board
    records,” however, FOIA reaches only records that the agency controls at the time of the request.
    DOJ v. Tax Analysts, 
    492 U.S. 136
    , 144–45 (U.S. 1989). Control means “the materials have
    come into the agency's possession in the legitimate conduct of its official duties,” 
    id.,
     and is
    determined with regard to the four factors outlined by the D.C. Circuit in Burka, see Burka v.
    U.S. Dep’t of Health and Human Servs., 
    87 F.3d 508
    , 515 (D.C. Cir. 1996). However, “use [of
    the record] is the decisive factor” in deciding whether the agency controls a record under FOIA.
    Judicial Watch v. FHFA, 
    646 F.3d 924
    , 928 (D.C. Cir. 2011) (holding that “where an agency has
    neither created nor referenced a document in the conduct of its official duties, the agency has not
    exercised the degree of control required to subject the document to disclosure under FOIA”)
    (internal quotation marks and citations omitted). “[A] document that could reveal nothing about
    agency decisionmaking is not an agency record” within the meaning of FOIA. 
    Id.
     (internal
    quotation marks omitted). Because the Board could not possibly make use of records that it
    never consulted, the Court finds that such records can reveal nothing about its deliberative
    process and disclosure would do nothing to advance the “core purpose of FOIA,” which is to
    “‘contribut[e] significantly to public understanding of the operations or activities of the
    government.”” 
    Id.,
     quoting DOJ v. Reporters Comm. for Freedom of the Press, 
    489 U.S. 749
    ,
    775 (1989) (emphasis in original).
    10
    identification process for McKinley’s FOIA requests, the Project Collect repository “contained
    Board records from August 2007 to May 2009 and beyond relating to the Federal Reserve’s
    response to the financial crisis, including the AIG loan and the Lehman Brothers bankruptcy.”).
    And the Lehman request directs the Board to produce records regarding analysis
    “undertaken in the context of considering whether to take action under Section 13(3) of the
    Federal Reserve Act” as to Lehman Brothers. Ex. E to Thro Decl. Since the Board was the only
    body that considered whether to take action under Section 13(3) of the Federal Reserve act – not
    the FRBNY – the request refers only to information that the Board itself considered, which again
    is contained entirely in the Project Collect repository. See Thro Decl. ¶¶ 12–14; see also Pl.’s
    Reply at 1, 2 (characterizing his own requests as: “Specifically, McKinley sought all records
    relating to the information relied upon or used by the Board when it decided to authorize the
    Federal Reserve Bank of New York (“FRBNY”) to extend credit to the American International
    Group (“AIG”) as well as the information it relied upon or used when it determined that it would
    not authorize the FRBNY to extend credit to Lehman Brothers”) (emphasis added).
    The Court therefore concludes that the scope of the information compiled in the Project
    Collect repository is sufficiently broad to reasonably capture all Board records that are
    responsive to McKinley’s request.
    The Board has submitted affidavits to the Court “explain[ing] in reasonable detail the
    scope and method of the agency’s search,” 6 Defenders of Wildlife II, 
    623 F. Supp. 2d at 91
    .
    Because in the absence of contrary evidence, agency declarations are given a presumption of
    6      In support thereof, the Board submitted a 25 page affidavit from Allison Thro (“Thro”), a
    senior counsel in the Board’s Legal Division who is primarily responsible for processing
    requests for information the Board receives under FOIA, including performing the search for
    responsive records and determining which records should be redacted, withheld, or disclosed.
    Thro Decl. ¶ 1.
    11
    good faith and are generally sufficient to demonstrate an agency’s compliance with its
    obligations under FOIA, Perry v. Block, 
    684 F.2d 121
    , 127 (D.C. Cir. 1982), and because
    McKinley does not dispute that the Board conducted adequate searches of the Project Collect
    repository, the Court concludes that the Board’s search of the Project Collect repository was
    “reasonably calculated to uncover all relevant documents,” Valencia–Lucena, 
    180 F.3d at 325
    (internal quotation marks and citations omitted).
    B. Whether the Board Properly Withheld the Eighty-Three Records in Dispute
    Finding the Board’s searches to be adequate, the Court next addresses whether the eighty-
    three responsive records that were not produced in full were properly redacted or withheld under
    the Board’s claimed FOIA exemptions.
    When Congress enacted FOIA, it “set forth a policy of broad disclosure of Government
    documents in order to ensure an informed citizenry, vital to the functioning of a democratic
    society.” Critical Mass Energy Project v. Nuclear Regulatory Comm’n, 
    975 F.2d 871
    , 872 (D.C.
    Cir 1992) (en banc), quoting FBI v. Abramson, 
    456 U.S. at 621
     (citations omitted). “At the same
    time, however, ‘Congress realized that legitimate governmental and private interests could be
    harmed by release of certain types of information.’” 
    Id.,
     quoting Abramson, 
    456 U.S. at 621
    .
    “Balancing these private and public interests, Congress enacted nine exemptions to FOIA.” 
    Id.
    When an agency seeks to withhold a document from disclosure, it must specify the
    exemption claimed and explain why it is entitled to claim it. The agency bears the burden of
    justifying the decision to withhold records under FOIA’s statutory exemptions. See 
    5 U.S.C. § 552
    (a)(4)(B). A court may grant summary judgment based solely on information provided in an
    agency’s affidavits or declarations if they “describe the documents and the justifications for
    nondisclosure with reasonably specific detail, demonstrate that the information withheld
    12
    logically falls within the claimed exemption, and are not controverted by either contrary
    evidence in the record nor by evidence of agency bad faith.” Casey, 
    656 F.2d at 738
    . Such
    affidavits or declarations “are accorded a presumption of good faith, which cannot be rebutted by
    purely speculative claims about the existence and discoverability of other documents.” SafeCard
    Servs., Inc., 
    926 F.2d at 1200
     (internal quotation marks and citations omitted). Although an
    agency may be entitled to summary judgment based solely on information in its affidavits or
    declarations, a court may also conduct an in camera review of disputed records. 7 See Ray v.
    Turner, 
    587 F.2d 1187
    , 1195 (D.C. Cir. 1978). However, an agency waives its right to claim a
    FOIA exemption for information that it has officially released in the public domain. Cottone v.
    Reno, 
    193 F.3d 550
    , 554 (D.C. Cir. 1999).
    McKinley alleges that the Board continues to improperly redact or withhold eighty-three
    8
    records. His challenges fall into four categories:       (1) records that are available in the public
    domain; (2) records redacted or withheld under Exemption 4; (3) records redacted or withheld
    7       Although the Board is entitled to summary judgment on the basis of its uncontroverted
    declarations alone, the Court conducted an in camera review of the eighty-three disputed
    records. The Court finds that the Board’s declarations accurately explain in reasonable detail the
    nature of the information redacted or withheld from disclosure; that such information was
    properly redacted or withheld under the claimed exemptions; and that the Board made a good
    faith effort to segregate exempt information from non-exempt information and to disclose all
    non-exempt information reasonably responsive to McKinley’s requests.
    8       Because the Board has claimed multiple exemptions for certain records, and because
    McKinley has not challenged every exemption claimed for each record, there is some disparity
    between the total number of challenges and the total number of redacted or withheld records.
    The Court examines each of McKinley’s challenges, but treats unchallenged exemptions as
    conceded. See Fischer v. DOJ, 
    723 F. Supp. 2d 104
    , 110 (D.D.C. 2010) (treating the defendant's
    arguments as conceded under several FOIA exemptions because the plaintiff did not address the
    arguments in its opposition); Hopkins v. Women's Div., Gen. Bd. of Global Ministries, 
    284 F. Supp.2d 15
    , 25 (D.D.C. 2003) (“It is well understood in this Circuit that when a plaintiff files an
    opposition to a dispositive motion and addresses only certain arguments raised by the defendant,
    a court may treat those arguments that the plaintiff failed to address as conceded.”).
    13
    under Exemption 5; and (4) records redacted or withheld under Exemption 8.             The Court
    addresses each in turn.
    1. Records Available in the Public Domain
    McKinley challenges the withholding of seventeen records on the grounds that the Board
    has waived its FOIA Exemptions because the records have been published by the Financial
    Crisis Inquiry Commission (“FCIC”) and appear in the public domain. Pl.’s Opp. at 7–8.
    McKinley does not challenge the fact that the records fall within a valid exemption;9 instead, he
    argues that records normally exempted from disclosure “lose their protective cloak once
    disclosed and preserved in a permanent public record.” Id. at 7. The Board does not dispute that
    the records at issue have been posted by the FCIC on its public website, but it maintains that the
    publication does not waive the Board’s FOIA Exemptions because the records were provided to
    the FCIC under a written confidentiality agreement that did not authorize public disclosure.
    Def.’s Reply at 11.
    Under the public domain theory, the “Government waives its right to invoke an otherwise
    applicable exemption to the FOIA when it makes an ‘official and documented’ disclosure of the
    information being sought.” Frugone v. CIA, 
    169 F.3d 772
    , 774 (D.C. Cir. 1999), quoting
    Fitzgibbon v. CIA, 
    911 F.2d 755
    , 765 (D.C. Cir. 1990) (emphasis added). To be “official,” the
    release must have been by “the agency from which the information is being sought.” 
    Id.
    Disclosures to Congress are not official disclosures within the meaning of FOIA and do not
    waive an agency’s FOIA Exemptions. Murphy v. Dep’t of the Army, 
    613 F.2d 1151
    , 1155–59
    (D.C. Cir. 1979); see also Rockwell Int’l Corp. v. DOJ, 
    235 F.3d 598
    , 603–04 (D.C. Cir. 2001)
    9      As such, the waiver issue is dispositive to the question of whether these seventeen
    records are subject to release.
    14
    (noting that the rule applies with even greater force when the agency took steps to preserve the
    confidentiality of the information provided to Congress).
    Here, the Board asserts and McKinley does not dispute that it provided sixteen of the
    seventeen records in question to a Congressional committee under a written confidentiality
    agreement and that the seventeenth record was not provided to the FCIC at all. Def.’s Reply at
    13 & n.15. Contrary to McKinley’s claim, and in accordance with the law of this Circuit, the
    mere fact that the committee subsequently, and without authorization, published the records does
    not constitute a waiver of the Board’s FOIA Exemptions. To hold otherwise would frustrate
    “public policy [encouraging] broad congressional access to governmental information” because
    agencies “would invariably become more cautious in furnishing sensitive information to the
    legislative branch.” Murphy, 
    613 F.2d at 1156
    . As such, the Court finds that the Board has not
    waived its FOIA exemptions to the seventeen records published by the FCIC.
    2. Records Redacted or Withheld Under Exemption 4
    McKinley next challenges the Board’s withholding of four records under FOIA
    Exemption 4. 10 FOIA Exemption 4 prohibits disclosure of “trade secrets and commercial or
    financial information obtained from a person and privileged or confidential.”         
    5 U.S.C. § 552
    (b)(4). In this Circuit, the terms “commercial” and “financial” are given their ordinary
    meanings. See Nat'l Ass'n of Home Builders v. Norton, 
    309 F.3d 26
    , 38 (D.C. Cir. 2002).
    “Commercial” is defined broadly to include “records that reveal basic commercial operations or
    relate to income-producing aspects of a business” as well as situations where the “provider of the
    10     The bates numbers for the four records withheld under Exemption 4 are: 10-251-000847;
    10-267-000349-353; 10-267-000799; and 10-267-001172. McKinley does not address the
    Board’s Exemption 4 arguments for records 10-267-000756-757, 10-267-000782 and 10-267-
    001117, so the Court treats these arguments as conceded. See Fischer, 
    723 F. Supp. 2d at 110
    ;
    Hopkins, 
    284 F. Supp. 2d at 25
    .
    15
    information has a commercial interest in the information submitted to the agency.” Baker &
    Hostetler, LLP v. U.S. Dep't of Commerce, 
    473 F.3d 312
    , 319 (D.C. Cir. 2006) (internal
    quotation marks omitted). Banks and other financial institutions are considered “persons” for the
    purposes of the exemption. See 
    5 U.S.C. § 551
    (2).
    Whether commercial or financial information is protected turns in part on whether it was
    provided to the government voluntarily or under compulsion: if the financial or commercial
    information was disclosed to the government voluntarily, it will be considered confidential for
    purposes of Exemption 4 if it is the kind of information “that would customarily not be released
    to the public by the person from whom it was obtained.” Critical Mass, 
    975 F.2d at 879
    . If the
    information was required, however, it will be considered confidential only if disclosure would be
    likely either (1) “to impair the government's ability to obtain necessary information in the
    future”; or (2) “to cause substantial harm to the competitive position of the person from whom
    the information was obtained.” See 
    id.
     at 878–84, reaffirming and quoting test of National Parks
    & Conservation Ass'n v. Morton, 
    498 F.2d 765
    , 770 (D.C. Cir. 1974), but confining it to cases of
    compelled disclosure).
    a. Voluntarily Provided Information
    The Board asserts that two of the four challenged records are properly withheld under the
    Critical Mass standard because they contain voluntarily provided commercial or financial
    information that would not ordinarily have been made public. See Critical Mass, 
    975 F.2d at 879
    . McKinley agrees that Critical Mass governs, but alleges that the Board has failed to
    demonstrate that the withheld records contain information that would not ordinarily have been
    16
    made public.     McKinley’s argument is purely speculative, 11 however, and the Board’s
    uncontroverted declarations describe the records and the justifications for nondisclosure with
    reasonable detail.
    Record 10-251-000847 is an email regarding the “severity of AIG’s capital hole” and
    contains the “identity of [an] outside analyst.” Thro. Decl. at 108. This “confidential market
    source[] . . . would not customarily disclose to the public that they had provided information to
    Board or FRBNY staff.” Id. at 45. And record 10-267-001172 is an email exchange containing
    “confidential commercial or financial information regarding Lehman's foreign operations
    supplied voluntarily by foreign bank supervisory agencies,” id. at 204, and includes “details on
    briefings of . . . foreign bank supervisors regarding Lehman.” Parkinson Decl. ¶ 15. The Board
    asserts that “disclosure of this information likely would impair the Board's ability to obtain
    necessary information in the future as foreign bank supervisory agencies would be unlikely to
    provide information if they knew that it would be disclosed to the public. Thro. Decl. at 204.
    b. Involuntarily Provided Information
    The Board asserts that the two remaining records are properly withheld under the
    National Parks standard because they contain involuntarily provided commercial or financial
    information, disclosure of which would likely either (1) “impair the government's ability to
    obtain necessary information in the future”; or (2) “cause substantial harm to the competitive
    position of the person from whom the information was obtained.” See National Parks &
    Conservation Ass'n, 
    498 F.2d at 770
    . McKinley alleges that the Board has failed to justify
    11      For example, McKinley claims that “viewing the disclosed portion” of record 10-267-
    001172 “suggests the [undisclosed] material” of that record is likewise subject to disclosure.
    Pl.’s Cross–Mot. at 25. The Court rejects this line of reasoning as speculative at best.
    17
    nondisclosure under National Parks. Again, however, McKinley’s allegations are speculative,12
    and the Board’s uncontroverted declarations describe the records and the justifications for
    nondisclosure with reasonable detail.
    Record 10-267-000349-353 is a spreadsheet that provides counterparties’ exposure to
    Lehman. Ex. I to Thro. Decl. at 43. The Board asserts that “[p]rovision of this information was
    mandatory” and that “[d]isclosure is likely to cause substantial competitive injury to financial
    institution(s) or impair the Board's ability to obtain similar, necessary information in the future
    by diminishing the quality or reliability of information provided.” Ex. I to Thro. Decl. at 23.
    Similarly, record 10-267-000799 is an email “conveying information obtained by examiners
    regarding those institutions’ exposure to Lehman Brothers and steps taken by those institutions
    in response to Lehman Brothers’ capital and liquidity shortages.” Foley Decl. ¶ 8. The Board
    contends that “these regulated financial institutions provided this information to FRB
    examination staff on the understanding that it would remain confidential, and would be used for
    supervisory purposes” and that “[d]isclosure of this information would have a chilling effect on
    the exchange of information between the Board or FRBs and regulated financial institutions.”
    
    Id.
    c. Exemption 4 Findings
    In light of these uncontroverted declarations, which “are accorded a presumption of good
    faith [that] cannot be rebutted by purely speculative claims,” SafeCard Servs., Inc., 
    926 F.2d at 1200
    , the Court finds that the Board has “demonstrate[d] that the information withheld logically
    12     For example, McKinley claims that the Board cannot justify withholding record 10-267-
    000349-353 in full because another record, described similarly in the Vaughn index, was merely
    redacted. Pl.’s Cross–Mot. at 20. He reasons that if the information “was harmless enough” to
    produce in one record, then it should be harmless enough to produce in another record. 
    Id.
     This
    argument is purely speculative.
    18
    falls within [Exemption 4].” Casey, 
    656 F.2d at 738
    . McKinley points to no evidence in the
    record that would controvert the Board’s declarations, nor any evidence of agency bad faith. See
    
    Id.
     Furthermore, in camera review of the disputed records confirms the declarations proffered
    on behalf of the Board. As such, the Court holds that records 10-251-000847, 10-251-000349-
    353, 10-267-000799 and 10-267-001172 were properly redacted or withheld under FOIA
    Exemption 4. McKinley’s request to produce them will be denied.
    3. Records Redacted or Withheld Under Exemption 5
    McKinley next challenges the Board’s withholding of sixty-two records under FOIA
    Exemption 5. 13 FOIA Exemption 5 provides agencies with the authority to deny FOIA requests
    where the requested documents include “inter-agency or intra-agency memorandums or letters
    which would not be available by law to a party other than an agency in litigation with the
    agency.” 
    5 U.S.C. § 552
    (b)(5). In determining whether a document was properly withheld
    under Exemption 5, a court must determine that the document satisfies two conditions: “its
    source must be a Government agency, and it must fall within the ambit of a privilege against
    discovery under judicial standards that would govern litigation against the agency that holds it.”
    Dep’t of Interior v. Klamath Water Users Protective Ass’n, 
    532 U.S. 1
    , 8 (2001).
    13     The bates ranges for the sixty-two records withheld under Exemption 5 are: 10-251-
    000071; 10-251-000127; 10-251-000078; 10-251-000083; 10-251-000092–93; 10-251-000103;
    10-251-000104; 10-251-000135; 10-251-000141–146; 10-251-000172–180; 10-251-000753–
    764; 10-251-000261; 10-251-000518; 10-251-000860; 10-251-000848; 10-251-000854; 10-251-
    000855; 10-251-000857; 10-251-000858; 10-251-000865; 10-251-000891; 10-251-000895; 10-
    251-000941–943; 10-251-000957–959; 10-251-000869; 10-251-000871; 10-251-000893; 10-
    251-000898–899; 10-251-000911–912; 10-251-000903; 10-251-000955; 10-251-000964; 10-
    251-000965; 10-251-001119–1120; 10-251-001121–1123; 10-251-001124–1125; 10-251-
    001126–1128; 10-251-001131; 10-251-001132; 10-251-001133; 10-251-001134; 10-267-
    000373; 10-267-000422–424; 10-267-000425–428; 10-267-000616–617; 10-267-000618; 10-
    267-000619–621; 10-267-000756–757; 10-267-000771–772; 10-267-000774–781; 10-267-
    000786–789; 10-267-000792; 10-267-000886–887; 10-267-000988; 10-267-001047; 10-267-
    001048; 10-267-001117; 10-267-001151; 10-267-001152; 10-267-001153; 10-267-001164; and
    10-267-001172. See Ex. 1 to Joint Statement [Dkt. # 23-1].
    19
    With regard to the second condition, the Supreme Court has determined that:
    [T]hose privileges include the privilege for attorney work-product and
    what is sometimes called the “deliberative process” privilege. Work
    product protects “mental processes of the attorney,” while deliberative
    process covers “documents reflecting advisory opinions, recommendations
    and deliberations comprising part of a process by which governmental
    decisions and policies are formulated.
    
    Id.
     (internal citations omitted); accord Schlefer v. United States, 
    702 F.2d 233
    , 237 (D.C. Cir.
    1983).
    “The deliberative process privilege rests on the obvious realization that officials will not
    communicate candidly among themselves if each remark is a potential item of discovery,” and
    the goal behind its exemption “is to enhance ‘the quality of agency decisions’ by protecting open
    and frank discussion among those who make them within the Government.” Klamath Water,
    
    532 U.S. at
    8–9 (internal citations omitted). The deliberative process privilege, however, only
    “protects agency documents that are both predecisional and deliberative.” Judicial Watch, Inc. v.
    Food & Drug Admin., 
    449 F.3d 141
    , 151 (D.C. Cir. 2006) (emphasis added).
    a. The Deliberative Process Privilege
    The Board claims that the sixty-two redacted or withheld records constitute intra-agency
    memoranda or letters and are properly withheld under the deliberative process privilege.
    McKinley does not contest that the records are intra-agency memoranda or letters within the
    20
    meaning of Exemption 5.        Instead, he contends that the records are factual rather than
    deliberative. 14
    McKinley’s argument, however, is foreclosed by the opinion of another court in this
    district, McKinley v. FDIC, 
    744 F. Supp. 2d 128
     (D.D.C. 2010), which was upheld on appeal in
    McKinley v. Bd. of Governors of the Fed. Reserve Sys., 
    647 F.3d 331
     (D.C. Cir. 2011). Two
    years prior to the instant litigation, McKinley filed a similar FOIA request seeking information
    relating to the Board’s decision to invoke section 13(3) of the Federal Reserve Act and authorize
    the FRBNY to extend credit to Bear Stearns. McKinley, 
    744 F. Supp. 2d 128
    . The Board
    redacted or withheld certain records under the deliberative process privilege and McKinley
    challenged those withholdings on the theory that “factual material” is outside the scope of
    Exemption 5 because it does not “reveal any deliberations or judgment calls by Board officials.”
    
    Id. at 138
     (internal quotation marks omitted). The district court rejected McKinley’s argument,
    14      McKinley also asserts that certain of the redacted or withheld records are not
    predecisional because the Board “fails to affirmatively assert” that the withheld material was not
    “formally or informally adopted.” Pl.’s Cross–Mot. at 14. However, it is McKinley’s and not
    the Board’s burden to establish that predecisional records have been adopted as policy. See, e.g.,
    Mayer, Brown, Rowe and Maw, LLP v. IRS, 
    537 F. Supp. 2d 128
    , 134-35 (D.D.C. 2008); Trans
    Union LLC, 
    141 F. Supp. 2d at 70-71
    . McKinley offers no evidence, nor cites to any evidence in
    the record, that would support a finding that any of the records at issue have been adopted as
    policy. Because he fails to meet his burden, McKinley’s argument is without merit.
    Additionally, McKinley alleges that Exemption 5 protects only those communications between
    persons in a “subordinate-superior relationship” and does not protect communications among
    “equals.” Pl.’s Cross–Mot. at 12, 22. However, the underlying employment relationship
    between the persons engaged in communication is not dispositive in a court’s determination as to
    whether a communication contains information protected by Exemption 5. The controlling
    factor remains whether the communication contains information that is both predecisional and
    deliberative. See, e.g., Gold Anti-Trust Action Comm., Inc. v. Board of Governors of Fed.
    Reserve Sys., 
    762 F. Supp. 2d 123
    , 137–38 (D.D.C. 2011) (applying Exemption 5 to, inter alia,
    two emails among Board staff). As such, the Court rejects McKinley’s per se argument that
    communications among equals are never protected from disclosure under the deliberative
    process privilege and finds that the Board’s uncontroverted declarations establish that the
    communications at issue fit squarely within Exemption 5. See Ex. I to Thro. Decl; Ashton Decl.
    ¶¶ 16, 20.
    21
    finding that “disclos[ure of] the withheld factual material would reveal the Board's deliberative
    process.” 
    Id. at 140
    . “[T]he work of Board and FRBNY staff in reaching out and culling certain
    financial statistics and exposure data, and the identities of certain financial institutions, for
    consideration by the Board from the mass of data available to it is itself deliberative.” 
    Id.
    (internal quotation marks omitted). Moreover, “disclosure of the requested factual summar[y]
    prepared [for] decisionmakers would expose [the Board's] decisionmaking process in such a way
    as to discourage candid discussion within the agency and thereby undermine the agency's ability
    to perform its functions.” 
    Id.
     (internal quotation marks omitted). The D.C. Circuit affirmed this
    decision on appeal.    See McKinley v. Bd. of Governors of the Fed. Reserve Sys., 647 F.3d at
    339–40. Although the Circuit Court did not expressly address whether purely factual material
    falls within Exemption 5, it found that all of the withheld records in that case – including those
    containing purely factual matter such as financial statistics, pricing and exposure data, and the
    identities of various financial institutions – fit squarely within Exemption 5. Id.
    Here, as in his previous lawsuit, McKinley argues that the withheld material is “purely
    factual” and therefore not deliberative. Pl.’s Cross–Mot. at 14; see, e.g., Pl.’s Cross–Mot. at 17,
    19, 21–25. And, just as in that case, the record here demonstrates that Board and FRBNY staff
    culled selected facts and data from the mass of available information regarding AIG and Lehman
    Brothers so as to assist the Board in its decision making process. See, e.g., Ashton Decl. ¶ 7
    (“Federal Reserve officials sought to form an opinion about the extent of the financial pressures
    facing [AIG],about the availability and effectiveness of any financial assistance from the private
    sector to resolve those pressures, about the availability and effectiveness of any regulatory relief
    the company may receive from the supervisors of its insurance operations, and the potential for
    widespread effects on the financial system and economy in general from AIG’s financial troubles
    22
    and possible collapse.”); id. ¶ 8 (“[t]he purpose of this analysis was to assist and advise the
    Board members with regard to any decision they may make. . . .”); Parkinson Decl. ¶ 10 (“Board
    members and staff requested information and advice from . . . the FRBNY in order to assist the
    Board in weighing options and considering possible responses to Lehman Brothers’ capital and
    liquidity crisis . . . [including] information regarding other financial firms and markets which
    was critical to the Board’s decision making process.”).
    Absent evidence in the record that would controvert the Board’s declarations, the Court
    accords them a presumption of good faith and finds that the factual materials redacted or
    withheld in the sixty-two records were deliberative within the meaning of Exemption 5. In
    camera inspection confirms that the disputed records contain a mix of factual material and
    analysis in the form of spreadsheets, emails, and memoranda.          Because McKinley’s sole
    argument for disclosure rests on the flawed assumption that factual material is not deliberative,
    the Court finds each of the sixty-two redacted or withheld records to be protected from
    disclosure under FOIA Exemption 5. 15 As such, McKinley’s request to produce them will be
    denied.
    15      Additionally, the Board claims that a small number of the sixty-two records redacted or
    withheld under the deliberative process privilege are also protected from disclosure pursuant to
    the attorney–client privilege.         The attorney-client privilege protects “confidential
    communications between an attorney and his client relating to a legal matter for which the client
    has sought professional advice.” Elec. Privacy Info. Ctr. v. Dep’t of Homeland Sec., 
    384 F. Supp. 2d 100
    , 114 (D.D.C. 2005), quoting Mead Data Ctr., Inc. v. U.S. Dep’t of Air Force, 
    566 F.2d 242
    , 252 (D.C. Cir. 1977). “Although it principally applies to facts divulged by a client to
    his attorney, this privilege also encompasses any opinions given by an attorney to his client
    based on, and thus reflecting, those facts as well as communications between attorneys that
    reflect client-supplied information.” 
    Id.,
     citing Coastal States Gas Corp. v. Dep’t of Energy, 
    617 F.2d 854
    , 863 (D.C. Cir. 1980). McKinley challenges the application of the attorney–client
    privilege to six of these records. Having found these records properly withheld under the
    deliberative process privilege, however, the Court need not address McKinley’s arguments under
    the attorney–client privilege. Nonetheless, the Court would find that the attorney–client
    privilege applies here because the Board’s uncontroverted declarations establish that each of the
    23
    4. Records Redacted or Withheld Under Exemption 8
    Finally, McKinley challenges the Board’s withholding of two records under Exemption
    8. 16 FOIA Exemption 8 provides that an agency may withhold information that is “contained in
    or related to examination, operating or condition reports prepared by, or on behalf of, or for the
    use of an agency responsible for the regulation or supervision of financial institutions[.]” 
    5 U.S.C. § 552
    (b)(8). The exemption serves two purposes:
    (1) to ensure the security of financial institutions by eliminating the risk
    that disclosure of examination, operation, and condition reports containing
    frank evaluations of the investigated banks that might undermine public
    confidence and cause unwarranted runs on banks; and (2) to safeguard the
    relationship between the banks and their supervising agencies because if
    details of the bank examinations were made freely available to the public
    and to banking competitors, banks would cooperate less than fully with
    federal authorities.
    McKinley v. F.D.I.C., 
    744 F. Supp. 2d at
    142–43 (D.D.C. 2010)
    Although FOIA exemptions are generally construed narrowly, DOJ v. Julian, 
    486 U.S. 1
    ,
    8 (1988), it is well-established that the scope of Exemption 8 is “particularly broad,” Consumers
    Union of U.S., Inc. v. Heimann, 
    589 F.2d 531
    , 533 (D.C. Cir. 1978).                The D.C. Circuit
    considered FOIA Exemption 8 for the first time in Consumers Union and concluded that “[i]f the
    Congress has intentionally and unambiguously crafted a particularly broad, all-inclusive
    definition, it is not our function, even in the FOIA context, to subvert that effort.” 
    Id. at 533
    .
    McKinley does not contest the Board’s assertion that Exemption 8 protects information
    obtained from supervised financial entities. Pl.’s Cross–Mot. at 20, 22. Instead, he alleges only
    six records at issue is a protected communication conveying legal advice between parties
    protected by the attorney-client relationship. See Parkinson Decl. ¶ 17; Thro. Decl. ¶¶ 30–32.
    16      The Bates ranges for the two records challenged under Exemption 8 are: 10-267-000349–
    353 and 10-267-000782. McKinley does not address the Board’s Exemption 8 argument for
    record 10-267-000799, so the Court treats that argument as conceded. See Fischer, 
    723 F. Supp. 2d at 110
    ; Hopkins, 
    284 F. Supp. 2d at 25
    .
    24
    that the Board failed to clearly articulate whether records 10-267-000349–353 and 10-267-
    000782 actually contain information from supervised financial entities. 
    Id.
     Characterizing the
    Board’s purported justifications as vague, McKinley asserts that he is entitled to disclosure. 
    Id.
    The Vaughn index, however, plainly describes that the Board redacted or withheld the
    two records at issue because they contain information from supervised financial entities. Record
    10-267-000349–353 is described as “contain[ing] information obtained by FRB and/or Board
    supervisory staff from supervised LFIs, financial utilities or clearing banks . . . in order to assess
    the risks to supervised financial institutions of a possible Lehman bankruptcy.” Ex. I to Thro.
    Decl. at 24, 43 (emphasis added).         Likewise, record 10-267-000782 is described as the
    continuation of an email “contain[ing] information [that] was obtained by the Board or, its
    delegee, the FRBNY, as a result of its oversight authority over financial institutions.” Ex. J to
    Thro. Decl. at 39–40, 69. Such information was “collected by the Board and FRBNY in a
    supervisory capacity from regulated payment, clearing and settlement systems . . . .” Stehm Decl.
    ¶ 7 (emphasis added).
    In light of these declarations, the Court finds that the Board has “demonstrate[d] that the
    information withheld logically falls within [Exemption 8].” Casey, 
    656 F.2d at 738
    . As the
    Court has already mentioned, agency declarations “are accorded a presumption of good faith,
    which cannot be rebutted by purely speculative claims,” SafeCard Servs., Inc., 
    926 F.2d at 1200
    ,
    and McKinley points to no evidence that would controvert the Board’s declarations, nor any
    evidence of agency bad faith, see Casey, 
    656 F.2d at 738
    . In camera review confirms that the
    disputed records contain properly exempted information from supervised financial entities. The
    Court finds that records 10-267-000349–353 and 10-267-000782 were properly redacted or
    withheld under FOIA Exemption 8, and McKinley’s request to produce them will be denied.
    25
    IV.    Conclusion
    Finding that the Board has conducted adequate searches and properly invoked FOIA
    Exemptions 4, 5, and 8, the Court will grant the Board’s June 8, 2011 [Dkt. # 13] and July 15,
    2011 [Dkt. # 17] motions for partial summary judgment and will deny McKinley’s cross-motion
    for summary judgment [Dkt. # 19]. A separate order will issue.
    AMY BERMAN JACKSON
    United States District Judge
    DATE: March 29, 2012
    26
    

Document Info

Docket Number: Civil Action No. 2010-0751

Citation Numbers: 849 F. Supp. 2d 47, 2012 U.S. Dist. LEXIS 43034, 2012 WL 1034464

Judges: Judge Amy Berman Jackson

Filed Date: 3/29/2012

Precedential Status: Precedential

Modified Date: 11/7/2024

Authorities (47)

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Fischer v. U.S. Department of Justice , 723 F. Supp. 2d 104 ( 2010 )

Moore v. Bush , 601 F. Supp. 2d 6 ( 2009 )

Brown v. U.S. Department of Justice , 742 F. Supp. 2d 126 ( 2010 )

Timothy R. Murphy v. Department of the Army , 613 F.2d 1151 ( 1979 )

Carl Oglesby v. The United States Department of the Army , 920 F.2d 57 ( 1990 )

Mead Data Central, Inc. v. United States Department of the ... , 566 F.2d 242 ( 1977 )

Critical Mass Energy Project v. Nuclear Regulatory ... , 975 F.2d 871 ( 1992 )

Judicial Watch, Inc. v. Federal Housing Finance Agency , 646 F.3d 924 ( 2011 )

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Montgomery v. Chao , 546 F.3d 703 ( 2008 )

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