McKinley v. Federal Deposit Insurance Corporation

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
VERN MCKINLEY, )
)
Plaintiff, )
)
v. ) Civ. Action No. 10-420 (EGS)
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FEDERAL DEPOSIT INSURANCE )
CORPORATION, )
)
Defendant. )
)
MEMORANDUM OPINION
Pending before the Court in this Freedom of Information Act
(“FOIA”) case is defendant’s motion to dismiss and plaintiff’s
motion for summary judgment. Upon consideration of the motions,
the responses and replies thereto, the applicable law, the entire
record, and for the reasons set forth below, the defendant’s
motion to dismiss is DENIED, and the plaintiff’s motion for
summary judgment is GRANTED in part and DENIED WITHOUT PREJUDICE
in part.1 The Court orders defendant to supplement its responses
to plaintiff’s requests as described below.
I. BACKGROUND
Plaintiff Vern McKinley is a private citizen who works “as
an advisor to governments worldwide on financial sector policy
and legal issues.” Complaint (“Compl.”) ¶ 3. In December, 2009,
1
Plaintiff’s Motion for Summary Judgment is styled as a
“Cross-Motion” even though the FDIC has not filed a motion for
summary judgment. For ease of reference the Court will refer to
plaintiff’s motion as a motion for summary judgment.
plaintiff submitted three FOIA requests to the Federal Deposit
Insurance Corporation (“FDIC”) seeking information regarding the
FDIC’s response to the global financial crisis of 2008.
Specifically, plaintiff seeks records about the agency’s creation
and use of a then-new program, the Temporary Liquidity Guarantee
Program (“TLG”), to provide assistance to banks and other
financial institutions. On December 4, 2009, plaintiff sent a
request for “records about the FDIC’s determination on November
23, 2008 to provide financial assistance to Citigroup, Inc.”
Pl.’s Statement of Material Facts Not in Dispute (“Pl.’s Facts”)
¶ 1. On December 20, 2009, plaintiff sent two additional FOIA
requests to the FDIC. Plaintiff requested records about the
FDIC’s “determination on October 14, 2008 to create a new
program,” the TLG program, “to provide financial assistance to
banks, thrift institutions, and certain bank holding companies.”
Pl.’s Facts ¶ 2. He also requested records about FDIC’s
“determination on January 16, 2009 to provide financial
assistance to Bank of America Corp.” Pl.’s Facts ¶ 3. In all
three requests, plaintiff specifically asked for “any information
available on” these determinations “such as meeting minutes or
supporting memos.” Pl.’s Facts ¶¶ 1, 2, 3.
The FDIC did not respond to plaintiff’s requests within the
time limits set forth in 5 U.S.C. § 552(a)(6)(A)(i) and 5 U.S.C.
§ 552(a)(6)(B)(i). Pl.’s Facts ¶ 4. Accordingly, plaintiff
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initiated this lawsuit on March 15, 2010. See generally Compl.
In his complaint, Plaintiff alleges that the FDIC violated the
FOIA by “failing to produce any and all non-exempt records
responsive to Plaintiff’s requests,” Compl. ¶ 19, and requests,
inter alia, that defendant “search for and produce any and all
non-exempt records responsive to plaintiff’s requests.” Compl.
p. 5.
On April 15, 2010, the FDIC responded to all three requests.
Def.’s Statement of Undisputed Facts (“Def.’s Facts”) ¶¶ 6-8.
The FDIC provided the plaintiff with 101 pages of material
responsive to his FOIA requests, but redacted information from
every document it produced pursuant to several FOIA and
Government in the Sunshine Act (“Sunshine Act”) exemptions.
Def.’s Facts ¶¶ 6-8. Shortly thereafter FDIC moved to dismiss
the case, arguing that its responses to plaintiff’s FOIA requests
render the case moot. See generally Def.’s Motion to Dismiss.
Plaintiff opposed the motion to dismiss and simultaneously moved
for summary judgment. In his motion for summary judgment,
plaintiff challenges the adequacy of the agency’s search and its
reliance on the FOIA and Sunshine Act exemptions to withhold the
redacted information. See generally Pl.’s Mem. in Opposition to
Motion to Dismiss and In Support of Motion for Summary Judgment
(“Pl.’s Mem.). Both motions are now ripe for decision by the
Court.
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II. STANDARD OF REVIEW
A. Motion to Dismiss on Mootness Grounds
A case is moot when “the issues presented are no longer
‘live’ or the parties lack a legally cognizable interest in the
outcome.” Cnty. of Los Angeles v. Davis, 440 U.S. 625, 631
(1979)(citations omitted). It is well established that “a
defendant’s voluntary cessation of a challenged practice does not
deprive a federal court of its power to determine the legality of
the practice.” Friends of the Earth v. Laidlaw, 528 U.S. 167,
189 (2000) (quotation omitted). In order to prevail on a
mootness claim occasioned by the defendant’s voluntary conduct,
the movant must show, inter alia, that “interim relief and events
have completely and irrevocably eradicated the effects of the
alleged violation.” Albritton v. Kantor, 944 F. Supp. 966, 974
(D.D.C. 1996) (citing Davis, 440 U.S. at 631).
In a FOIA case, “once all requested records are
surrendered,” the substance of the controversy disappears and
“federal courts have no further statutory function to perform.”
Perry v. Block, 684 F.2d 121, 125 (D.C. Cir. 1982). However, as
the government itself acknowledges, in “instances where an
agency has released documents, but other related issued remain
unresolved, courts frequently will not dismiss the action” as
moot. GUIDE TO THE FREEDOM OF INFORMATION ACT, U.S. Dep’t of
Justice Office of Information Policy, 767-68 & n.180 (2009 Ed.)
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(citing, e.g., Nw. Univ. v. USDA, 403 F. Supp. 2d 83, 85-86
(D.D.C. 2005) (refusing to dismiss action as moot despite belated
release of documents because plaintiff challenged adequacy of
defendant’s document production); Looney v. Walters-Tucker, 98 F.
Supp. 2d 1, 3 (D.D.C. 2000)(finding no mootness even after
production of requested documents because “[i]n a FOIA case,
courts always have jurisdiction to determine the adequacy of the
search”), aff’d per curiam sub nom. Looney v. FDIC, 2 F. App’x 8
(D.C. Cir. 2001)).
B. Summary Judgment
The Court may grant a motion for summary judgment if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with affidavits or declarations,
show that there is no genuine issue of material fact and that the
moving party is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(c). The moving party bears the burden of
demonstrating the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The non-
moving party, however, cannot rely on “mere allegations or
denials.” Burke v. Gould, 286 F.3d 513, 517 (D.C. Cir. 2002)
(quoting Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). If
the Court concludes that “the nonmoving party has failed to make
a sufficient showing on an essential element of [its] case with
respect to which [it] has the burden of proof,” then the moving
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party is entitled to summary judgment. Celotex, 477 U.S. 317,
323.
In a FOIA case, the burden of proof is always on the agency
to demonstrate that it has fully discharged its obligations under
the FOIA. See Dep’t of Justice v. Tax Analysts, 492 U.S. 136,
142 n.3 (1989) (“the burden is on the agency to demonstrate, not
the requester to disprove, that the materials sought . . . have
not been improperly withheld.”). However, when a FOIA plaintiff
moves for summary judgment, he “must offer more than conclusory
statements.” Schoenman v. Fed. Bureau of Investigation, 573 F.
Supp. 2d 119, 134 (D.D.C. 2008) (citations omitted). Indeed, to
prevail on summary judgment on a claim that the agency improperly
withheld requested material, a requester must establish that “the
requested material, even on the agency’s version of the facts,
falls outside the proffered exemption.” Petroleum Info. Corp. v.
U.S. Dep’t of Interior, 976 F.2d 1429, 1433 (D.C. Cir. 1992).
III. ANALYSIS
Pending before the Court is defendant’s motion to dismiss
and plaintiff’s motion for summary judgment. The Court considers
each in turn.
A. Mootness
The FDIC argues that the plaintiff’s claim is moot because
the agency complied with its obligations under the FOIA by
producing the requested documents. Def.’s Mem. in Support of
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Mot. to Dismiss at 4. The plaintiff responds that his claim is
not moot because the documents produced are heavily redacted, and
the FDIC has not met its statutory burden to “justify its claims
of exemption, demonstrate[] that all non-exempt information has
been segregated and disclosed, or prove[] that its searches for
responsive information were reasonably calculated to uncover all
responsive materials.” Pl.’s Mem. at 5. The Court agrees with
plaintiff that his claim is not moot.
It is well established that a case is not moot unless “the
parties lack a legally cognizable interest in the outcome.”
Davis, 440 U.S. at 631. As courts in this Circuit have
repeatedly held, FOIA requesters have a cognizable interest in
having the Court determine (1) whether the search for records was
adequate under the standards for adequate records searches
required by FOIA, and (2) whether the agency has released all
nonexempt material. See, e.g., Perry v. Block, 684 F.2d at 125;
Nw. Univ. v. USDA, 403 F. Supp. 2d at 86; Looney v. Walters-
Tucker, 98 F. Supp. 2d at 3. 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.2 Therefore, defendant’s motion to dismiss is DENIED.
2
Defendant’s argument to the contrary is baseless.
Defendant argues that plaintiff’s “sole claim in this action is
that . . . [the agency has] fail[ed] to respond timely to his
three FOIA requests.” Def.’s Mem. in Support of Motion to
Dismiss at 4 (emphasis in original). Now that the FDIC has
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B. Motion for Summary Judgment
Plaintiff moves for summary judgment on the grounds that
defendant has not met its burden to show it conducted an adequate
search and that it has not met its burden to justify non-
disclosure of responsive documents. The Court will address these
arguments in turn.
1. Adequacy of the Search
As discussed supra, in a FOIA action the burden of proof is
on the defendant agency to show that it complied with the FOIA.
See 5 U.S.C. § 552(a)(4)(B); see also Dep’t of Justice v.
Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755
(1989)(“unlike the review of other agency action that must be
upheld if supported by substantial evidence and not arbitrary and
capricious, the FOIA expressly places the burden on the agency to
sustain its action”). In response to a challenge to the adequacy
of its search for requested records, “the agency may meet its
burden by providing ‘a reasonably detailed affidavit, setting
forth the search terms and the type of search performed, and
responded, the agency argues, plaintiff “has obtained all of the
relief he sought[.]” Id. The government materially
misrepresents plaintiff’s complaint, which clearly states that
the FDIC has “failed to produce any records responsive to
McKinley’s requests or demonstrate that responsive records are
exempt from production.” Compl. ¶ 16 (emphasis added); see also
¶ 19 (“Defendant has violated FOIA by failing to produce any and
all non-exempt records responsive to plaintiff’s requests[.]”)
Plaintiff clearly requests that the Court determine whether the
FDIC has adequately searched for agency records as well as
whether it has disclosed all non-exempt materials.
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averring that all files likely to contain responsive materials .
. . were searched.’” Iturralde v. Comptroller of the Currency,
315 F.3d 311, 313-14 (D.C. Cir. 2003) (quoting Valencia-Lucena v.
U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999)). Although
the affidavit or declaration submitted by the agency “need not
set forth with meticulous documentation the details of an epic
search for the requested records, [it must] describe what records
were searched, by whom, and through what processes.” Hussain v.
U.S. Dep’t of Homeland Security, 674 F. Supp. 2d 260, 264-65
(D.D.C. 2009) (citing Steinberg v. Dep’t of Justice, 23 F.3d 548,
552 (D.C. Cir. 1994); Perry v. Block, 684 F.2d at 127).
The plaintiff argues that the declaration submitted by the
FDIC fails to demonstrate that the agency’s search was adequate.
Pl.’s Reply at 8. Specifically, the plaintiff asserts that the
declaration provided does not explain “why the Executive
Secretary Section [the only Section to search for records in
response to plaintiff’s requests] was believed to be the office
most likely to have responsive records; the search methods used;
descriptions of searches performed; or the names of agency
personnel who conducted the searches. Nor does the FDIC provide
a declaration from an employee with firsthand knowledge of the
searches performed.” Pl.’s Reply at 8. The FDIC has not
responded to this argument.
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The FDIC provided one declaration from Gary Jackson, counsel
in the agency’s FOIA/Privacy Group in Washington, DC. Jackson
states that he is “familiar with the procedures used by the FDIC
in processing and responding to FOIA requests.” Declaration of
Gary Jackson (“Jackson Decl.”) ¶ 5. However, as plaintiff
correctly points out, Jackson does not explain the search methods
employed by the FDIC to respond to plaintiff’s requests, who
conducted the searches, whether he is personally aware of the
search procedures used, or if such procedures were followed by
the Executive Secretary Station. Jackson Decl. ¶¶ 1-19. “All of
these deficiencies undermine the sufficiency” of the declaration.
Prison Legal News v. Lappin, 603 F. Supp. 2d 124, 127 (D.D.C.
2009); see also Morley v. CIA, 508 F.3d 1108, 1122 (D.C. Cir.
2007) (agency must do more than offer “a single, conclusory
affidavit that generally asserts adherence to the reasonableness
standard”). The agency has not provided a sufficient declaration
from which the Court can conclude it conducted an adequate search
for all records within its possession and control. Accordingly,
the Court must GRANT the plaintiff’s motion for summary judgment
regarding the adequacy of the search. The FDIC must either (1)
conduct a new search (or searches) for the records sought by the
plaintiff to ensure the search is adequate consistent with
governing caselaw; or (2) provide the Court with declarations
from which the Court can find that the declarants have personal
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knowledge that the search methodology, procedures, and searches
actually conducted were reasonably designed to locate documents
responsive to plaintiff’s requests. See Lappin, 603 F. Supp. 2d
at 128; see also Davidson v. Envtl. Prot. Agency, 121 F. Supp. 2d
38, 40 (D.D.C. 2000) (requiring agency to either perform
additional searches or to file additional declarations better
explaining how its original searches were adequate).
2. The FDIC’s Withholding of Documents Pursuant to
Several FOIA and Sunshine Act Exemptions
Congress enacted FOIA and the Sunshine Act to “open up the
workings of government to public scrutiny through the disclosure
of government records.” Stern v. FBI, 737 F.2d 84, 88 (D.C. Cir.
1984)(quotation omitted)(discussing FOIA); see also Shurberg
Broad. of Hartford, Inc. v. F.C.C., 617 F. Supp. 825, 828 (D.D.C.
1985) (discussing Sunshine Act). Although these Acts are aimed
toward “open[ness] . . . of government,” Stern, 737 F.2d at 88,
Congress acknowledged that “legitimate governmental and private
interests could be harmed by release of certain types of
information.” Critical Mass Energy Project v. Nuclear Regulatory
Comm’n, 975 F.2d 871, 872 (D.C. Cir. 1992) (citations and
quotations omitted)(discussing FOIA); see also Common Cause v.
Nuclear Regulatory Comm’n, 674 F.2d 921, 928-29 (D.C. Cir. 1982)
(discussing Sunshine Act). As such, pursuant to FOIA’s nine
exemptions or the Sunshine Act’s ten, an agency may withhold
requested information. 5 U.S.C. § 552(a)(4)(B); 5 U.S.C.
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§ 552(b)(1)-(9); 5 U.S.C. § 552b(b); 5 U.S.C. § 552b(c)(1)-(10).
However, because these statutes establish a strong presumption in
favor of disclosure, requested material must be disclosed unless
it falls squarely within one of the exemptions carved out in the
Acts. See Burka v. U.S. Dep’t of Health and Human Servs., 87
F.3d 508, 515 (D.C. Cir. 1996) (FOIA); Common Cause, 674 F.2d at
928-29 (Sunshine Act). The agency bears the burden of justifying
any withholding. See Bigwood v. U.S. Agency for Int’l Dev., 484
F. Supp. 2d 68, 74 (D.D.C. 2007) (FOIA); Common Cause, 674 F.2d
at 628-29 (Sunshine Act). “To enable the Court to determine
whether documents properly were withheld, the agency must provide
a detailed description of the information through a so-called
‘Vaughn index,’ sufficiently detailed affidavits or declarations,
or both.” Hussain, 674 F. Supp. 2d at 267 (citations omitted).
Although there is no set formula for a Vaughn index, the agency
must “disclos[e] as much information as possible without
thwarting the exemption’s purpose.” King v. Dep’t of Justice,
830 F.2d 210, 224 (D.C. Cir. 1987)).
The sole declaration the FDIC provides, that of Gary
Jackson, discussed supra, contains no information regarding any
of the withheld information. The FDIC’s Vaughn index dutifully
identifies each portion of a document withheld and the
exemption(s) cited, and provides a brief description of the
withheld portion and the basis for its withholding. However,
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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. The Agency’s assertion of each exemption, and the
Court’s reason for rejecting it at this stage of the litigation,
will be addressed in turn.
a. Exemption 4
FOIA’s Exemption 4 and the Sunshine Act’s Exemption 4
(collectively, “Exemption 4") are identical: both exempt from
disclosure “trade secrets and commercial or financial information
obtained from a person that is privileged or confidential.” 5
U.S.C. § 552(b)(4); 5 U.S.C. § 552b(c)(4). In order for the
Court to determine whether withheld information is “privileged
and confidential” within the meaning of Exemption 4, the Court
must first determine “whether the information was provided to the
government voluntarily or if it was required to be provided.”
Defenders of Wildlife v. U.S. Dep’t of the Interior, 314 F. Supp.
2d 1, 15-16. (D.D.C. 2004). Depending on the answer to this
question, the Court must then apply the appropriate test for
privilege/confidentiality. See Id.The FDIC has made no effort to explain whether the withheld
information was voluntarily or involuntarily provided. Rather,
the FDIC’s justification for withholding material based on
Exemption 4 consists of vague statements such as “Chairman [of
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the FDIC] Bair discusses details of the condition of the named
banks,” accompanied by conclusory assertions that the material
“includes confidential commercial and financial information
obtained from banks.” Vaughn Index p. 3. The government’s
submission does not permit the Court “to make a rational decision
[about] whether the withheld material must be produced without
actually viewing the documents themselves . . . [and] to produce
a record that will render [its] decision capable of meaningful
review on appeal.” King v. Dep’t of Justice, 830 F.2d at 219(citation omitted). The agency therefore has not met its burden
to justify withholding.
b. Exemption 5
Exemption 5 of the FOIA permits an agency to withhold
records that are “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).
Exemption 5 encompasses the deliberative process privilege, which
protects from disclosure documents that would reveal an agency’s
deliberations prior to arriving at a particular decision. See
Tax Analysts v. Internal Revenue Serv., 294 F.3d 71, 76 (D.C.
Cir. 2002). Information is not protected by the deliberative
process privilege unless it is “predecisional” and
“deliberative,” and an agency may not use Exemption 5 to “shield
documents that simply state or explain a decision the government
14
has already made or protect information that is purely factual.”
In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997).
FDIC has withheld significant portions of three memoranda
from agency staff to the Board of Directors based on Exemption 5.
While the material withheld certainly may contain information
protected by the deliberative process privilege, the Court cannot
conclude that it does on the record before it. As a threshold
matter, the memoranda cited as “predecisional” are dated the same
day as the board meetings at which the final decisions were made.
See generally Vaughn Index. However, a document can only be
“predecisional,” and therefore protected by the deliberative
process privilege, if “it was generated before the adoption of an
agency policy.” Judicial Watch, Inc. v. FDA, 449 F.3d 141, 151
(D.C. Cir. 2006)(quotation omitted)(emphasis added). While the
fact that the dates are identical does not necessarily mean that
Exemption 5 withholding is improper, “the agency must ‘illustrate
a chronology’ in some way in order to justify predecisional
withholding.” Hussain, 674 F. Supp. 2d at 271 (quoting Judicial
Watch v. FDA, 449 F.3d at 151). Without more information, the
Court cannot find that FDIC’s explanation of its withholdings
under Exemption 5 is adequate.
c. Exemption 8
The FDIC also asserts Exemption 8 of FOIA and the Sunshine
Act, which are identical, to withhold significant portions of the
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board meeting minutes and the memoranda from agency staff to the
board. Under Exemption 8, “matters . . . 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” are exempted from
disclosure. 5 U.S.C. § 552(b)(8); 5 U.S.C. § 552b(c)(8). While
Exemption 8 has been broadly construed by the courts, there are
some limits to its interpretation. See GUIDE TO THE FREEDOM OF
INFORMATION ACT, U.S. Dep’t of Justice Office of Information
Policy, 663 (2009 Ed.). Based on the extremely limited
information provided by the FDIC, the Court cannot determine
whether the material withheld contains or is derived from any
part of an examination, operating report or condition report.
See, e.g., Vaughn Index at 5-6 (various portions of November 23,
2008 Memo from FDIC Staff to Board of Directors withheld pursuant
to Exemption 8 on the grounds that it contains “discussion of
condition of bank and options for improving conditions of bank”;
“discussion of bank condition and risk issues”; and “discussion
of bank condition, options for taking action, effect of not
acting, and how bank condition affects other areas”). Nor does
the agency explain what specific information about the financial
institutions is contained in these memoranda that would justify
its withholding based on Exemption 8. Based on the current
record, the Court cannot find that FDIC has fulfilled its
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obligations under FOIA or the Sunshine Act with respect to its
withholdings under Exemption 8.
d. Exemption 9
Sunshine Act Exemption 9(A)(ii) permits an agency to
withhold information if its “premature” disclosure would
“significantly endanger the stability of any financial
institution.” 5 U.S.C. § 552b(c)(9)(A)(ii). Like the exemptions
previously discussed, Exemption 9 must be narrowly construed, and
the agency bears the burden of proof to show that it is properly
invoked. See Common Cause, 674 F.2d at 929, n.18.
Once again, the FDIC has failed to meet its burden to show
information was properly withheld under the claimed exemption.
As plaintiff correctly points out, the agency asserts that
“disclosure would endanger the stability of a financial
institution,” see generally Vaughn index, while completely
ignoring the requirements that the disclosure must be found to be
“premature” as well as likely to “significantly” endanger the
banks’ stability.3 Pl’s Reply at 18-19. In addition, the Vaughn
Index fails to discuss with any specificity the nature or type of
3
The Court is particularly troubled by the agency’s
failure to address the temporal component of the exception given
that much of the information withheld was shared at the meetings
in which the FDIC’s Board of Directors decided to provide
assistance to the banks, presumably due to the banks’ immediate
need for help. On this record, the Court fails to understand why
disclosure of such information should be considered “premature”
and thus subject to Exemption 9.
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information withheld. Accordingly, the Court cannot conclude
that the material at issue was properly withheld under Exemption
9.
e. Segregability
“If a record contains information that is exempt from
disclosure, any reasonably segregable information must be
released after deleting the exempt portions, unless the nonexempt
portions are inextricably intertwined with exempt portions.”
Hussain, 674 F. Supp. 2d at 272 (citations omitted). Despite the
fact that the FDIC has withheld numerous documents in part, it
has provided no explanation as to how it met the segregability
requirement. Accordingly, defendant has not met its burden to
show that it has disclosed all reasonably segregable information.
IV. CONCLUSION
For the foregoing reasons, the Court concludes that this
action is not moot. Accordingly, defendant’s motion to dismiss
is DENIED. The Court further concludes that FDIC has not met its
burden to show that it conducted an adequate search for records
responsive to plaintiff’s FOIA requests. Accordingly,
plaintiff’s motion for summary judgment is GRANTED as it pertains
to the adequacy of the FDIC’s search. The Court further
concludes that, based on the current record, the defendant has
not fulfilled its obligations under FOIA or the Sunshine Act to
justify withholding of documents or parts of documents pursuant
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to the Acts’ exemptions. However, the record is not sufficiently
developed for the Court to grant summary judgment for plaintiff
on this issue. See, e.g., Petroleum Info. Corp. v. U.S. Dep’t of
Interior, 976 F.2d at 1433 (summary judgment on exemptions from
disclosure should be granted for a FOIA plaintiff when the
requested material, “even on the agency’s version of the facts,
falls outside the proffered exemption.”). Accordingly,
plaintiff’s motion for summary judgment regarding the agency’s
use of exemptions is DENIED WITHOUT PREJUDICE. This matter is
remanded to the FDIC so that it may (1) either conduct new
searches for the records sought by plaintiff or submit
declarations that adequately demonstrate that the agency employed
search methods reasonably likely to lead to discovery of records
responsive to the plaintiff’s requests; and (2) demonstrate that
responsive documents have been produced to plaintiff, and that
responsive documents and parts of documents not provided to
plaintiff have been properly withheld under FOIA or Sunshine Act
exemptions claimed by the FDIC. An appropriate order accompanies
this memorandum opinion.
SIGNED: Emmet G. Sullivan
United States District Court Judge
December 23, 2010
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