Gold Anti-Trust Action Committee, Inc. v. Board of Governors of the Federal Reserve System

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
GOLD ANTI-TRUST ACTION )
COMMITTEE, INC., )
)
Plaintiff, )
)
v. ) Civil Action No. 09-2436 (ESH)
)
BOARD OF GOVERNORS OF THE )
FEDERAL RESERVE SYSTEM, )
)
Defendant. )
)
MEMORANDUM OPINION
Plaintiff Gold Anti-Trust Action Committee, Inc. (“GATA”) brings this action against the
Board of Governors of the Federal Reserve System (“Board” or “FRB”) pursuant to the Freedom
of Information Act (“FOIA”), 5 U.S.C. § 552 et seq. Plaintiff seeks access to documents for the
period 1990 to 2009 relating to “gold swaps.” In response to plaintiff’s FOIA request, the Board
produced nine documents, but withheld or redacted others pursuant to Exemptions 4 and 5.
5 U.S.C. § 552(b)(4), (5). Before the Court is defendant’s motion for summary judgment, which,
for the reasons explained herein, the Court will grant in part and deny in part.
BACKGROUND
I. 2007 FOIA REQUEST
In a letter dated December 6, 2007, GATA submitted a FOIA request to the Board
seeking copies of all records relating to “gold swaps” from January 1, 1990 to December 6,
2007. (Compl. ¶ 7; Memorandum of Points and Authorities in Support of Defendant’s Motion
for Summary Judgment [“Def.’s Mot.”] at 2 n.1.) The Board responded on April 9, 2008,
disclosing in full or in part 98 documents and withholding in full 144 pages of documents.
(Compl. ¶ 8 and Ex. B; Declaration of Alison M. Thro [“Thro Decl.”] ¶¶ 3, 9.)
GATA appealed the partial denial of its 2007 FOIA request by letter dated May 5, 2008.
(Compl. ¶ 9.) The Board denied the appeal on June 3, 2008. (Id. ¶ 10.) This 2007 FOIA request
is not itself the subject of this appeal.
II. 2009 FOIA REQUEST
By letter dated April 14, 2009, GATA submitted a second FOIA request that is at issue
here. (Thro Decl. ¶ 3 and Ex. 1.) This request sought “all records in the possession or control of
the Federal Reserve Board relating to, explaining, denying or otherwise mentioning: ‘gold
swap,’1 ‘gold swaps,’ ‘gold swapped,’ ‘proposed gold swap,’ ‘proposed gold swaps,’ or
‘proposed gold swapped’ during the time period January 1, 1990, to the date of this request either
(a) involving the United States of America or (b) not involving the United States of America.”
(Id.) The request further identified eighteen subcategories of documents provided “in an effort to
particularize certain categories of records” covered by the request, including “[t]he records
withheld by the Federal Reserve Board in response to GATA’s December 6, 2007 FOIA
request.” (Id.)
The Board responded on August 5, 2009. (Compl. Ex. B; Thro Decl. ¶ 6 and Ex. 4.) The
Board advised GATA that “other than the records withheld in connection with plaintiff’s 2007
FOIA request,” only two additional responsive documents (totaling 173 pages) had been
identified, which were provided to GATA. (Thro Decl. ¶¶ 6, 9, 17, and Ex. 4.) The Board’s
1
The IMF Monetary and Financial Statistics Manual (“MFSM”) defines gold swaps as “forms of
repurchase agreements commonly undertaken between central banks or between a central bank
and other types of financial institutions. They occur when gold is exchanged for foreign
exchange, at a specified price with a commitment to repurchase the gold at a fixed price on a
specified future date so that the original party remains exposed to the gold market.” MFSM ¶ 154
(2000), available at http://www.imf.org/external/pubs/ft/mfs/manual/.
2
letter informed GATA that the pages withheld in response to the 2007 request had been reviewed
again, no additional portions could be released, all the originally withheld material was exempt
from disclosure, and there were no reasonable segregable, disclosable portions. (Id.)
GATA administratively appealed the Board’s partial denial of its 2009 FOIA request on
August 20, 2009. (Compl. ¶ 18 and Ex. C; Thro Decl. ¶ 7 and Ex. 5.) By letter dated September
17, 2009, Board Governor Kevin Warsh denied GATA’s administrative appeal. (Compl. ¶ 19
and Ex. D; Thro Decl. ¶ 8 and Ex. 6.) Plaintiff subsequently filed this suit on December 30,
2009. (Dkt. #1.)
Thereafter, the Board again reviewed the withheld documents. (Thro Decl. ¶ 9.) These
documents had been withheld in response to the 2007 FOIA request and were thus explicitly
covered by the 2009 FOIA request as well. (Id.) Following this review, the Board released an
additional 7 documents (13 pages) in full and 19 documents (3 full pages and 49 redacted pages)
in part. (Id.) These documents were transmitted to plaintiff on June 10, 2010. (Id. ¶ 9 and
Ex. 7.) The volume of materials withheld in whole or in part now stands at 20 documents,
including 49 pages produced with some redactions and 77 pages withheld in full. (Id.) The
Board bases its withholdings on Exemptions 4 and 5, and it has produced a Vaughn Index, which
identifies the date, subject matter, author and recipient (where possible) of each document
withheld, and the length of the document (number of pages); describes the contents of the
documents generally; and states whether the document was withheld in full or provided in
redacted form and the FOIA exemption under which the redacted or withheld information is
being withheld. (Thro Decl. Ex. 8. [“Vaughn Index”].)2
2
The Vaughn Index also specifies whether each withheld document “mentions or relates” to gold
swaps. (Thro Decl. ¶ 19.) The Board has indicated that 17 of the 20 documents withheld in full
or in part do not relate to gold swaps at all, but instead pertained to, for example, the “gold and
3
Defendant has moved for summary judgment contending that its application of FOIA
exemptions was proper. (Def.’s Mot.) Its motion is supported by declarations from Alison M.
Thro, Senior Counsel in the Board’s Legal Division; Timothy Fogarty, Vice President in the
Markets Group at the Federal Reserve Bank of New York (“FRBNY”); and Richard Dzina,
Senior Vice President in the Markets Group at FRBNY. Plaintiff challenges the adequacy of the
Board’s search, as well as the applicability of Exemptions 4 and 5. (Plaintiff’s Memorandum of
Points and Authorities in Opposition to Defendant’s Motion for Summary Judgment [“Pl.’s
Opp.”].)
On January 10, 2011, the Court granted plaintiff’s motion for in camera review of the
withheld or redacted documents (Dkt. #21), and it has relied on this review in reaching the
conclusions of law set forth below.
ANALYSIS
I. STANDARD OF REVIEW
The Court may grant a motion for summary judgment “if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(c). The moving party bears the burden of demonstrating an absence of a genuine issue of
material fact in dispute. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Factual assertions
in the moving party’s affidavits may be accepted as true unless the opposing party submits his
foreign exchange market” or currency swaps. (Id.) These documents are responsive to GATA’s
current FOIA request only because they were withheld pursuant to the 2007 FOIA request, and
they were deemed responsive to that request because the staff conducting the earlier search
employed broader search criteria that identified documents relating either to gold or to swaps.
(Id.)
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own affidavits, declarations, or documentary evidence to the contrary. Neal v. Kelly, 963 F.2d
453, 456-57 (D.C. Cir. 1992).
“FOIA cases typically and appropriately are decided on motions for summary judgment.”
Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009) (citations
omitted). “In a FOIA case, summary judgment may be granted to the government if ‘the agency
proves that it has fully discharged its obligations under the FOIA, after the underlying facts and
the inferences to be drawn from them are construed in the light most favorable to the FOIA
requester.’” Fischer v. U.S, Dep’t of Justice, 596 F. Supp. 2d 34, 42 (D.D.C. 2009) (quoting
Greenberg v. U.S. Dep’t of Treasury, 10 F. Supp. 2d 3, 11 (D.D.C. 1998)).
“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)); see also Steinberg v. U.S. Dep’t of Justice, 23 F.3d
548, 551 (D.C. Cir. 1994). 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. Perry v. Block,
684 F.2d 121, 126 (D.C. Cir. 1982). In the absence of contrary evidence, such affidavits or
declarations are sufficient to demonstrate an agency’s compliance with FOIA. Id. at 127.
However, if the record “leaves substantial doubt as to the sufficiency of the search, summary
judgment for the agency is not proper.” Truitt, 897 F.2d at 542.
“An agency that has withheld responsive documents pursuant to a FOIA exemption can
carry its burden to prove the applicability of the claimed exemption by affidavit.” Larson v.
Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (citing Ctr. for Nat’l Sec. Studies v. U.S.
Dep’t of Justice, 331 F.3d 918, 926 (D.C. Cir. 2003)). “Summary judgment is warranted on the
5
basis of agency affidavits when the affidavits describe the justifications for nondisclosure with
reasonably specific detail, demonstrate that the information withheld logically falls within the
claimed exemption, and are not controverted by either contrary evidence in the record nor by
evidence of agency bad faith.” Id. (quoting Miller v. Casey, 730 F.2d 773, 776 (D.C. Cir.
1984)); see also Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981); Larson,
565 F.3d at 862.
“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.” Ctr. for Nat’l
Sec. Studies, 331 F.3d at 925 (citing John Doe Agency v. John Doe Corp., 493 U.S. 146, 152
(1989)). “While these exemptions are to be ‘narrowly construed,’ courts must not fail to give
them ‘a meaningful reach and application.’” Id. (internal citations omitted). “Ultimately, an
agency’s justification for invoking a FOIA exemption is sufficient if it appears ‘logical’ or
‘plausible.’” Larson, 565 F.3d at 862 (quoting Wolf v. CIA, 473 F.3d 370, 374-75 (D.C. Cir.
2007)).
II. ADEQUACY OF SEARCH
Defendant properly relies upon a reasonably detailed affidavit that demonstrates the
adequacy of the search. Perry, 684 F.2d at 126. As Senior Counsel Alison M. Thro explains, the
Board does not maintain a centralized database containing all of the Board’s records that would
thereby allow the Board to locate all responsive documents with a simple keyword search. (Thro
Decl. ¶ 11.) Instead, FOIA searches are conducted by the Legal Division of the Board, which
contacts areas and staff members responsible for the subject matter involved in a request. (Id. ¶
10-11.) These staff members are then asked to manually search for responsive records or, where
possible, to conduct an electronic search. (Id. ¶ 11.)
6
In responding to GATA’s 2009 FOIA request, Thro explains that she contacted the Legal
Division FOIA staff who had worked on plaintiff’s 2007 FOIA request and obtained the
documents withheld in response to that request. (Id.)
Second, the Board’s Office of the Secretary (“OSEC”) searched its FOIA tracking system
database for FOIA requests submitted by others persons that requested records relating to “gold
swap,” “gold swaps,” or “gold swapped.” (Id. ¶ 14.) Thro explains that this database tracks the
subject matter of FOIA requests submitted to the Board, and therefore, any previous FOIA
request relating to “gold swaps” would have been located through this computerized search.
(Id.) The only reference uncovered by this search was plaintiff’s own 2007 FOIA request. (Id.)
OSEC also maintains records in a database known as the Federal Reserve Integrated
Records Management Architecture (“FIRMA”). (Id. ¶ 11.) Thro explains in great detail how
OSEC staff conducted both an electronic search of the FIRMA database, as well as a manual
search of other OSEC records for any documents relating to gold swaps. (Id. ¶ 15.) These
searches did not uncover any responsive records. (Id.)
Legal Division FOIA staff also contacted subject matter experts within the Legal
Division and at FRBNY. (Id. ¶ 16.) These individuals were identified because of their
familiarity with the subject of gold swaps and had been contacted in connection with GATA’s
2007 FOIA request as well. (Id.) Thro believed “they would be most likely to have access to
any new documents that may have been created” since the 2007 search. (Id.) These individuals
conducted a manual search of their files in 2009, but did not locate any responsive documents.
(Id.)
Finally, the Board’s Legal Division contacted staff at the Federal Open Market
Committee (“FOMC”). (Id. at 17.) The FOMC is responsible for monetary policy and is a
7
separate agency from the Board. (Id.) FOMC staff conducted a computerized search of both the
FOMC Secretariat’s internal document library and the Board’s public website to identify any
documents relating to gold swaps or containing any variation of the term “gold swap.” (Id.)
FOMC Secretariat staff believed this search would be most likely to contain any information
responsive to plaintiff’s FOIA request. (Id.) This search uncovered only two documents, both
publically available. The two documents (totaling 173 pages) were provided to plaintiff, and
they represent the only additional documents not identified pursuant to GATA’s 2007 request.
(Id.) These two documents (consisting of FOMC transcript materials) were provided to plaintiff
in the same form in which they were previously available to the public and therefore contained
some “limited redactions.” (Id.) According to the Board, the redacted portions do not “relate in
any way to gold or gold swaps.” (Id.) The FOMC Secretariat also searched its paper files, as
well as its own log of prior FOIA requests, but found no responsive documents. (Id.)
GATA attacks the adequacy of the Board’s search on several grounds. First, it comes up
with the novel argument that the Board should have identified the “records systems that were not
checked for records responsive to GATA’s FOIA request.” (Pl.’s Opp. at 15 (emphasis in
original).) To fulfill its obligations under FOIA, an agency must “provid[e] ‘a reasonably
detailed affidavit, setting forth the search terms and the type of search performed, and 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, 180 F.3d at326 and Oglesby v. U.S. Dep’t of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990)). The Board has
clearly met this burden, and is not required, as plaintiff suggests, to provide an additional list of
each place it did not search.
8
GATA claims that the Board “presumably” did not seek records from “other potential
sources,” including the other eleven regional federal reserve district banks (in addition to
FRBNY), and it cites this fact as evidence of the inadequacy of the Board’s search. (Pl.’s Opp.
at 16, 23-24.) As explained by Ms. Thro, the “subject matter experts in the Legal Division at the
Federal Reserve Bank of New York” were consulted specifically because of their familiarity
with gold swaps (Thro Decl. ¶ 16) and because of the unique gold custodial services provided to
foreign governments by FRBNY. (Fogarty Decl. ¶¶ 2, 7.) Plaintiff provides no evidence to
support an inference that the other eleven regional federal reserve district banks conducted
similar transactions, provided services involving gold, or would have similar expertise regarding
gold swaps, let alone evidence that “raises substantial doubt” as to the adequacy of the Board’s
search. See Iturralde, 315 F.3d at 314.
Similarly, plaintiff claims that the search was inadequate because some of the materials
provided by the Board had previously been redacted by the FOMC. (Pl.’s Opp. at 17-19.)
GATA claims the Board should have referred its 2009 FOIA request to the FOMC for a separate
response. (Id.) As detailed in Ms. Thro’s declaration, however, the Board contacted the FOMC
Secretariat, which itself conducted its own search of the FOMC records for responsive
documents. (Thro Decl. ¶ 17.) Indeed, this search revealed the only two additional documents
not encompassed by GATA’s 2007 request. Plaintiff does not specify how a separate referral of
its FOIA request to the FOMC would be reasonably likely to produce additional materials,
particularly in light of the fact that plaintiff subsequently submitted a separate FOIA request to
FOMC. (Pl.’s Opp. at 19 n.14.) As for the redacted portions of the FOMC transcripts, both the
Board and the FOMC have indicated to GATA that these portions do not in any way pertain to
gold or gold swaps. (Id.; Thro Decl. ¶ 17.)
9
Next, GATA attacks the search on the grounds that most of the documents withheld have
“nothing to do with ‘gold swaps’” and claims that the Board “has provided no reasonable
explanation” as to why this is the case. (Pl.’s Opp. at 15.) As the Board explained, these
documents are responsive to GATA’s current FOIA request only because they were withheld in
response to the 2007 FOIA request. (Thro Decl. ¶ 19.) The documents were deemed responsive
to that request because broader search criteria were used in order to identify any document “that
could conceivably be related” to gold swaps. (Id.) This broader search therefore identified
documents relating either to gold or to swaps and resulted in the identification of many
documents that evidently did not pertain to “gold swaps.”3 (Id.) While these facts could indicate
that the 2007 FOIA search was overbroad, they do not serve to undermine the adequacy of the
2009 search.
GATA provides a number of declarations in an attempt to support its argument that the
Board’s search was inadequate. These declarations explain the nature of gold swaps, describe
them as one of the mechanisms used by the United States to secretly manipulate currency and
gold markets, and express incredulity at the Board’s “oblivious[ness]” to these facts and the
“inconceivable” lack of documents supporting them. (Powell Decl.; Douglas Decl.; Turk Decl.;
Pl’s Opp. at 21-23.) However, such “speculation as to the existence of additional records . . .
does not render the searches inadequate.” Concepcion v. FBI, 606 F. Supp. 2d 14, 30 (D.D.C.
2009); see also SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1201 (D.C. Cir. 1991) (“Mere
speculation that as yet uncovered documents may exist does not undermine the finding that the
agency conducted a reasonable search for them.”).
3
Having reviewed the withheld documents in camera, the Court agrees with the Board’s
assertion that the vast majority of them do not mention or pertain to gold swaps.
10
Finally, plaintiff challenges the results of the search, complaining that the Board “has
identified very few records” and noting that the search failed to uncover a 2005 paper published
on the Board’s website that mentioned gold swaps conducted by a foreign government. (Pl.’s
Opp. at 19 and n.15.) “[T]he adequacy of a FOIA search,” however, “is generally determined
not by the fruits of the search, but by the appropriateness of the methods used to carry out the
search,” and it “is long settled that the failure of an agency to turn up one specific document in
its search does not alone render the search inadequate.” Iturralde, 315 F.3d at 315.
In sum, plaintiff's arguments fail to raise “substantial doubt” as to the adequacy of the
Board’s search, id. at 314, and thus, the Court grants summary judgment to the defendant on this
issue.4
III. FOIA EXEMPTION 5
Exemption 5 allows an agency to withhold “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). “To qualify, a document must thus satisfy two conditions:
its source must be a Government agency, and it must fall within the ambit of a privilege against
discovery under judicial standard that would govern litigation against the agency that holds it.”
Dep’t of the Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001); see NLRB
v. Sears, Roebuck & Co., 421 U.S. 132, 148 (1975); EPA v. Mink, 410 U.S. 73 (1973). Among
the privileges incorporated by FOIA Exemption 5 are the “deliberative process” privilege and the
“attorney work product” privilege. Klamath, 532 U.S. at 8; see Loving v. Dep’t of Defense, 550
4
Plaintiffs have also requested discovery on the adequacy of the Board’s search. (Plaintiff’s
Motion for Discovery at 4.) Discovery is generally unavailable in FOIA actions, Judicial Watch,
Inc., v. DOJ, 185 F. Supp. 2d 54, 65 (D.D.C. 2002), and “should be denied where an agency’s
declarations are reasonably detailed, submitted in good faith and the court is satisfied that no
factual dispute remains.” Schrecker v. DOJ, 217 F. Supp. 2d 29, 35 (D.D.C. 2002). This case
does not merit an exception to this rule.
11
F.3d 32, 37 (D.C. Cir. 2008); Baker & Hostetler LLP v. Dep’t of Commerce, 473 F.3d 312, 321
(D.C. Cir. 2006). The Board claims that Exemption 5 protects from disclosure a substantial
majority of the documents or portions thereof sought by GATA. (Vaughn Index Item Nos.
[“Documents”] 1-6, 9-10, 11-20, and portions of Documents 7, 8, and 11.) Plaintiff challenges
the Board’s reliance on Exemption 5.
All of the Board’s Exemption 5 claims rest at least in part on the deliberative process
privilege. The deliberative process privilege “covers ‘documents reflecting advisory opinions,
recommendations and deliberations comprising part of a process by which governmental
decisions and policies are formulated.’” Klamath, 532 U.S. at 8 (quoting NLRB v. Sears, 421
U.S. at 150.) The privilege “rests on the obvious realization that officials will not communicate
candidly among themselves if each remark is a potential item of discovery and front page news,
and its object is to enhance ‘the quality of agency decisions.’” Id. at 8-9 (quoting Sears, 421
U.S. at 151.); see Mead Data Cent., Inc. v. U.S. Dep’t of the Air Force, 566 F.2d 242, 256 (D.C.
Cir. 1977) (purpose is to protect the “quality of administrative decision-making [which] would
be seriously undermined if agencies were forced to ‘operate in a fishbowl’ because the full and
frank exchange of ideas on legal or policy matters would be impossible”); Dudman Commc’ns
Corp. v. Dep’t of the Air Force, 815 F.2d 1565, 1568 (D.C. Cir. 1987) (privilege “rests most
fundamentally on the belief that were agencies forced to ‘operate in a fishbowl,’ the frank
exchange of ideas and opinions would cease and the quality of administrative decisions would
consequently suffer” (internal citations omitted)).
For the deliberative process privilege to apply, the material must be both “predecisional”
and “deliberative.” Loving v. Dep’t of Defense, 550 F.3d 32, 38 (D.C. Cir. 2008); In re Sealed
Case, 121 F.3d 729, 737 (D.C. Cir. 1997). A document is predecisional if it is “generated before
12
the adoption of an agency policy.” Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854,
866 (D.C. Cir. 1980). To demonstrate that a document is predecisional, the burden is on the
agency to “establish[ ] what deliberative process is involved, and the role played by the
documents in issue in the course of that process.” Id. at 868. A document is deliberative if it
“reflects the give-and-take of the consultative process.” Id. at 866. The deliberative process
privilege generally does not cover the purely factual portions of documents, except in cases
where the factual material “is so inextricably intertwined with the deliberative sections of
documents that its disclosure would inevitably reveal the government’s deliberations.” In re
Sealed Case, 121 F.3d at 737; see also Quarles v. Dep’t of the Navy, 893 F.2d 390, 392 (D.C.
Cir. 1990) (disclosure of certain factual information can “expose an agency’s decision-making
process in such a way as to discourage candid discussion within the agency and thereby
undermine the agency’s ability to perform its functions” (quoting Dudman, 815 F.2d at 1568)).
Plaintiff challenges the Board’s invocation of the deliberative process privilege primarily
on the grounds that they are not predecisional, deliberative communications, because “there is no
description of the decision they preceded or to which they were related” (Pl.’s Opp. at 26), and
because the Board has failed to “demonstrate the decision to which [each] communication
related,” (Id. at 29).
Courts, however, are reluctant to force agencies to expose their decisionmaking
processes. See, e.g., Sears, 421 U.S. at 151-152 (noting that courts draw a line between
“predecisional communications, which are privileged, and communications made after the
decision and designed to explain it” (internal citations omitted)). The Supreme Court observed
that “[a]gencies, are, and properly should be, engaged in a continuing process of examining their
policies; this process will generate memoranda containing recommendations which do not ripen
13
into agency decisions; and the lower courts should be wary of interfering with this process.” Id.at 151 n.18. Thus, even if an internal discussion does not lead to the adoption of a specific
government policy, its protection under Exemption 5 is not foreclosed as long as the document
was generated as part of a definable decision-making process. See Petroleum Info. Corp. v. U.S.
Dep't of the Interior, 976 F.2d 1429, 1434 (D.C. Cir. 1992). Thus, GATA is incorrect when it
states that the Board must identify a specific decision corresponding to each communication. As
the Supreme Court explained in Sears, “[o]ur emphasis on the need to protect pre-decisional
documents does not mean that the existence of the privilege turns on the ability of an agency to
identify a specific decision in connection with which a memorandum is prepared.” Sears, 421
U.S. at 151 n.18.
Having examined each of the documents at issue in camera, the Court will now turn to
GATA’s challenges to the Board’s invocation of the deliberative process privilege as to specific
documents.
1. Documents 1-6
Documents 1 through 6 relate to a 1993 memorandum analyzing the economic impact on
the price of gold if all official gold were sold. (Thro Decl. ¶ 23.) Document 1 is an email
exchange between Dale Henderson and Ted Truman, the then director of the Board’s Division of
International Finance. (Id.) The redacted portions represent Truman’s comments and questions
about Henderson’s memorandum, as well as Henderson’s answers to these questions. (Id.)
Document 2 is a January 18, 1993 draft of the memorandum itself. (Id.)
Documents 3 through 6 are February 23, 1993 versions of the memorandum, along with
transmittal memoranda from Messrs. Truman and Henderson, provided to Federal Reserve Board
Chairman Alan Greenspan, Undersecretary of the Treasury for International Affairs Jeffrey
Shafer, and Board Governor Janet Yellen. (Id.)
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Ms. Thro avers that these memoranda are typical of analyses provided to senior Board
members and staff in order to inform their consideration of monetary policy. (Id.)
Plaintiff argues, in essence, that only the early drafts of documents may be validly
withheld pursuant to Exemption 5, and that once a memorandum becomes finalized it can no
longer be “predecisional.” (Pl.’s Opp. at 30-32.) Such a narrow view of Exemption 5 ignores
the possibility, as here, that a memorandum may not represent final agency policy, but rather the
“the staff’s recommendations and advice regarding possible ways to proceed and consequences
associated with proceeding in a certain manner.” (Thro Decl. ¶ 23.)
Having reviewed the declaration of Ms. Thro, the Vaughn Index, and these documents in
camera, the Court is satisfied that the redacted portions of Documents 1 through 6 are
predecisional and deliberative and therefore may be properly withheld under Exemption 5.
2. Documents 7-8
Documents 7 and 8 relate to a review of the Federal Reserve System currency swap
arrangements with foreign central banks, and consist of a cover memorandum to Chairman Alan
Greenspan seeking guidance on how to proceed with the proposed review and drafts of a
memorandum analyzing the existing swap agreements and containing the staff’s opinions and
recommendations relating to these agreements. (Id. ¶ 24.) The documents do not describe or
reflect any decision actually taken, but rather are directed to senior Board and FOMC officials
for their consideration of the matter. (Id.)
Based on the declaration of Ms. Thro, the Vaughn Index, and an in camera review of the
documents, the Court concludes that the redacted portions of Documents 7 and 8 are
predecisional and deliberative, and therefore may be properly withheld pursuant to Exemption 5.
3. Document 9
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Document 9 is a draft briefing paper containing economic analysis of the consequences
of a change in gold policies by governments, as well as a transmittal memorandum commenting
on the same. (Id. ¶ 25.) The Court concludes, based on its review, that it has properly been
withheld under Exemption 5.
4. Document 10
Document 10 consists of a staff member’s notes on the discussion by the Gold and
Foreign Exchange Committee of the Group of Ten (or “G-10”), as well as a transmission
memorandum from Mr. Truman to the Board. (Id.) The Board maintains that these notes are
deliberative and predecisional because they are not a “verbatim recounting” of the meeting, but
rather represent the author’s “analysis” of the participants’ views. (Id.; Vaughn Index.) Having
reviewed the document in camera, it is apparent that these notes do not reflect “the writer’s
analytical views regarding the matters discussed” (Vaughn Index), but rather are a
straightforward factual recounting of a meeting with representatives of foreign central banks,
detailing what each of the participants said. The Court therefore finds that Document 10 in its
entirety is factual, not deliberative, and has not properly been withheld under Exemption 5.
5. Document 11
Document 11 consists of a memorandum to the Board regarding a proposed commercial
transaction by a foreign central bank. (Thro Decl. ¶ 26.) The memorandum and its attachments
contain analysis and discussion of the proposed transaction, as well as an analysis of legal issues
raised by the proposal. (Id.) Plaintiff asserts, without explanation, that only a portion of this
document (a two-page staff comment) can validly qualify under Exemption 5. After reviewing
the document in camera, the Court concludes that none of the documents specifies a final Board
policy or explains the reasons behind a Board decision. Rather, the documents are exactly as
Ms. Thro describes them, a “candid analysis and discussion” of a proposed transaction. (Id.) As
16
such, they are plainly deliberative and predecisional, and therefore properly withheld under
Exemption 5.5
6. Document 12
Document 12 is a legal memorandum from a staff attorney in the Board’s Legal Division
to an officer in the Legal Division analyzing the legal authority of the Federal Reserve Banks to
engage in transactions involving gold. (Id. ¶ 27.) Having reviewed the document in camera, the
Court agrees that it is predecisional and deliberative, as well as covered by the attorney-client
privilege. It is therefore properly withheld under Exemption 5.
7. Documents 13-14
Documents 13 and 14 are emails among Board staff regarding the appropriate response to
inquiries regarding claims that the Federal Reserve Board manipulates the gold market. (Id.
¶ 28.) The emails discuss how inquiries might best be responded to and who should respond.
(Id.) They are plainly predecisional and deliberative and properly withheld under Exemption 5.
8. Document 15
Document 15 is a September 17, 2001 draft document entitled “Confidential Draft:
Potential repo/swap involving Treasury gold.” (Id. ¶ 29.) The document identifies issues that
would be raised if a swap or repurchase transaction involving Treasury gold were to occur. (Id.)
The document contains handwritten notes by a reviewer, as well as the reviewer’s handwritten
notes and comments of a conversation relating to gold held by the U.S. Treasury. (Id.)
Plaintiff’s only challenge to the document is that it fails to explicitly specify what policy or
decision it relates to. (Pl.’s Opp. at 35.) The Court rejects this argument for the reasons
5
The Court therefore need not address whether the portions of Document 11 may also be exempt
from disclosure pursuant to the attorney-client privilege, but it is clear from a review of the cover
memo that it is protected by the privilege.
17
explained above, and having reviewed the document in camera, the Court agrees that it is
deliberative and predecisional and is protected by Exemption 5.
9. Documents 16 and 18-20
Documents 16, 18, 19, and 20 are drafts of letters to members of Congress or others
responding to inquiries regarding the Federal Reserve and gold swaps or other issues relating to
gold. (Thro Decl. ¶ 30.) Documents 16 and 20 are drafts of letters to members of Congress for
which the Board was unable to locate a final letter. (Id.) Given the search conducted by the
Board, Ms. Thro avers that it is her belief that a final letter, had it been sent, would have been
located by the search. (Id.) Therefore, Ms. Thro believes Documents 16 and 20 represent drafts
of letters that were never finalized. (Id.) Documents 18 and 19 are drafts of a letter to Rep. Ron
Paul regarding an inquiry he made to the Board. (Id.) The “limited redactions” in these drafts
withhold only the material not included in the final letter, which was provided to GATA in 2007.
(Id.)
With respect to the final letters, which have already been provided to plaintiff, the Court
agrees that disclosure of the draft letters would reveal the predecisional, deliberative process of
the agency in formulating the content of the final letters. Therefore, Documents 16, 18, 19, and
20 are properly withheld pursuant to Exemption 5.
10. Document 17
Document 17 is an email exchange among Board and FRBNY staff discussing what
information to include in response to requests from Congress regarding the Federal Reserve’s
involvement in gold. (Id.) Such a discussion is predecisional and deliberative and thus properly
withheld by the Board under Exemption 5.
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IV. FOIA EXEMPTION 4
The Board has withheld portions of Document 11, as well as three footnotes from
Documents 7 and 8 under FOIA Exemption 4. Exemption 4 exempts from disclosure
information that is (1) commercial or financial, (2) obtained from a person, and (3) privileged or
confidential. 5 U.S.C. § 552(b)(4).
Where the information is “commercial or financial information obtained from a person”
(including corporations), the key inquiry is whether that information is “privileged or
confidential.” Frequently this inquiry focuses on whether the information is “confidential.” The
D.C. Circuit has set out a multi-part test for determining whether information is “confidential.”
First, the court must determine whether the information was submitted to the government
voluntarily. McDonnell Douglas Corp. v. NASA, 180 F.3d 303, 304 (D.C. Cir. 1999). If it was,
then the court must look to see whether the submitted information is “the kind of information
‘that would customarily not be released to the public by the person from whom it was obtained.’”
Id. at 304-05 (quoting Critical Mass Energy Project v. Nuclear Regulatory Comm’n, 975 F.2d
871, 879 (D.C. Cir. 1992) (en banc)). If it is, then the information is “confidential” and protected
from disclosure by Exemption 4. Critical Mass, 975 F.2d at 880. If the submission of the
information was compelled, however, then the court must determine whether its 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.” NASA, 180 F.3d at 305 (citing Critical Mass, 975 F.2d at 878-
80; Nat’l Parks & Conservation Ass’n v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974) (“National
Parks I”)). If the party seeking nondisclosure can show either impaired government ability to
obtain necessary future information or substantial competitive harm, then the information is
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“confidential” and protected from disclosure by Exemption 4. National Parks I, 498 F.2d at 770-
71.
Documents 7 and 8 include information provided by foreign central banks (“FCBs”)
regarding potential draws on currency swap arrangements or inquiries about swap arrangements
that were never actually entered into. (Dzina Decl. ¶ 6.) Document 11 is a memorandum
discussing a proposal by the FRBNY to open a Special Purpose Gold Custody Account at the
request of a U.S. bank to hold gold in connection with a swap agreement between the domestic
bank and an FCB. (Vaughn Index; Fogarty Decl. ¶¶ 4, 11.) Document 11 contains the names of
a FCB, the name of the bank with which it proposed to do business, as well as the details of the
proposed transaction and discussion of FRBNY’s relationships with its other customers.
(Fogarty Decl. ¶¶ 4, 11.)
The Board has satisfied its burden under Exemption 4. First, the information withheld
pursuant to Exemption 4 is commercial and financial in nature, as it details banking
“transactions” and “account arrangements” or “potential transactions” involving FCBs. (Fogarty
Decl. ¶ 4; Dzina Decl. ¶ 4.) While plaintiff argues that “other interests” may be at stake as well,
this does not negate the obviously commercial and financial nature of the withheld information.
Second, the information was obtained from “persons” as defined by FOIA. Specifically,
the information was obtained from FCBs, which are the central banks of foreign governments.
(Fogarty Decl. ¶¶ 2, 6, 11, 12; Dzina Decl. ¶¶ 2, 4.) As such, they are agencies of foreign
governments” and are therefore “persons” under FOIA. Stone v. Export-Import Bank, 552 F.2d
132, 137 (5th Cir. 1977). Although some of the withheld portions of Documents 7, 8, and 11
were created by the FRB and the FRBNY, this does not preclude the application of Exemption 4.
An agency may withhold portions of its own reports containing information “supplied by” third
20
parties. Gulf & West. Indus., Inc. v. United States, 615 F.2d 527, 529-30 (D.C. Cir. 1980); see
also Bloomberg, L.P. v. Bd. of Governors of the Fed. Reserve Sys., 601 F.3d 143, 148-49 (2d Cir.
2010) (distinguishing information “obtained from” an outside person seeking to enter into a
transaction from information pertaining to the completed transaction itself).6
Finally, the information is confidential, as the FCBs provided it voluntarily and do not
customarily release such information to the public. In determining whether the information was
provided voluntarily, “actual legal authority, rather than the parties’ beliefs or intentions, governs
judicial assessments of the character of submissions.” Ctr. for Auto Safety v. Nat’l Highway
Traffic Safety Admin., 244 F.3d 144, 149 (D.C. Cir. 2001.) GATA argues that once the “FCBs
elected to enter into such transactions, the parties were required to provide the information to
[the Board].” (Pl.’s Opp. at 43.) Since plaintiff fails to cite any source that grants the Board the
legal authority to compel any such production from the FCBs, the “agency has no authority to
enforce an information request, [and the] submissions are not mandatory.” Ctr. for Auto Safety,
244 F.3d at 149. Here, it is clear that the Board lacked the legal authority to compel the FCBs to
submit, for example, inquiries about potential swap agreements, draws on existing swap
agreements, or the details of a proposed transaction with a U.S. domestic bank. The Court
therefore concludes that the information withheld by the Board pursuant to Exemption 4 was
submitted voluntarily.
6
Plaintiff admits that “[t]o the extent the records contain and disclose information provided by
FCBs, it could possibly be considered information obtained from a ‘person,’” but nevertheless
argues that a substantial portion of these documents could still be disclosed. (Pl.’s Opp. at 40-
41.) The Court notes that only certain portions of Document 11 and just three footnotes in
Documents 7 and 8 were withheld pursuant to Exemption 4, and the remainder of these
documents were properly withheld pursuant to Exemption 5, so there is no merit to plaintiff’s
argument.
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Finally, the FCBs discussed in Documents 7, 8, and 11 do not customarily disclose to the
public the information withheld by the Board. (Fogarty Decl. ¶¶ 2, 13, 14; Dzina Decl. ¶¶ 2, 9.)
Plaintiff does not appear to challenge this contention.
Therefore, the Board has properly withheld portions of Documents 7, 8, and 11 under
Exemption 4.
V. SEGREGABILITY
GATA challenges the Board’s segregability analysis at various points throughout its
opposition. FOIA requires that an agency produce “[a]ny reasonably segregable portion” of a
record that is not exempt from disclosure. 5 U.S.C. § 552(b). To meet the segregability
requirement, agency declarations must show why any withheld documents cannot be further
segregated “with reasonable specificity.” Armstrong v. Executive Office of the President, 97
F.3d 575, 578 (D.C. Cir. 1996). According to the Thro Declaration, each “document was
reviewed for any reasonably segregable material that was not subject to an exemption, and non-
exempt portions were provided to the plaintiff.” (Thro Decl. ¶ 20.) “Where a page contained
information that was to be withheld from the plaintiff, it was evaluated to ensure that any
information that was not subject to an exemption could be segregated and released.” (Id.) “This
process resulted in the release in part of 19 out of 20 documents.” (Id.) Ms. Thro avers that “[i]t
was not possible to disclose any additional portions, as any releasable material was inextricably
intertwined with exempt information such that disclosure would reveal the exempt information.”
(Id.)
Having reviewed these documents in camera, the Court is satisfied that defendant has
produced all reasonably segregable nonexempt material.
22
CONCLUSION
For the foregoing reasons, the Court grants defendant’s motion for summary judgment
with the exception of Document 10, which the Board must produce to GATA on or before
February 18, 2011. A separate order accompanies this Memorandum Opinion.
/s/
ELLEN SEGAL HUVELLE
United States District Judge
Date: February 3, 2011
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