November 30, 2020
SENT BY E-MAIL
XXXX
XXXX
Re: 2021-APP-00001; Appeal of Response 2020-FOIA-00014
Dear XXXX:
By correspondence of September 23, 2020, you submitted a Freedom of Information Act (FOIA) request (2020-FOIA-00014), requesting certain agency records on a numbered complaint (Case Number XXXX)1 to the National Credit Union Administration’s (NCUA) Office of Consumer Financial Protection (OCFP). Specifically, you asked for a copy of your complete loan file with the federal credit union that is the subject of that complaint. Because you requested records about yourself, your request was also processed under the federal Privacy Act of 1974.
A Senior Attorney and FOIA Officer (FOIA Officer) in the NCUA’s Office of General Counsel provided an initial acknowledgement by letter of October 2, 2020, and notified you that your request required additional processing time due to the need to search for records in separate NCUA offices with subject matter interest and to consult with them. You were notified that the targeted response date was November 5, 2020.2 We provided you with an interim update by letter of October 28, 2020, in which the FOIA Officer again advised that your request necessitated additional time for processing, and also that a notice to parties that may have submitted confidential information was required as well. The letter explained that such parties are given an opportunity to review the materials they submitted and to object to their release, based on the applicability of certain exemptions contained in the FOIA. The letter also explained that the submitter notice process sometimes delays a FOIA response but November 5, 2020 remained our target response date.
By letter of November 3, 2020, the FOIA Officer responded to your request and advised that your request was granted in part. Five pages of responsive agency records were attached, with some redactions. Redacted and withheld information was exempt from release under one or more of the exemptions at 5 U.S.C. §552(b)(4), (6), and (8). Our response explained that Exemption 4 protects trade secrets and commercial or financial information obtained from a person that is privileged or confidential. Exemption 6 protects information about individuals when its disclosure would constitute a clearly unwarranted invasion of personal privacy. Exemption 8 protects matters contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions. In addition, while outside the scope of the FOIA, as a courtesy to you we attached eight additional pages with some redactions.3 Those additional pages were received by the agency from the credit union after the completion of our FOIA search.
You have appealed this determination in a correspondence dated November 3, 2020.4 Your appeal is denied, as discussed more fully below.
Your appeal contends that our November 3 response does not “show what my FOIA or I ask for and that is and was [all] my records” (brackets in original). Your appeal also asks if the credit union is being further compelled by the agency to produce all of your records. Your appeal did not challenge the applicability of Exemptions 4, 6, or 8, or otherwise contest the redacted or withheld information. Upon review, we affirm the November 3 response.
The FOIA establishes a statutory framework for public requests for “agency records” and imposes requirements on agencies5 to make such records promptly available.6 “Records” include information “maintained by an agency.”7 The Supreme Court has established a two-part test for determining when a “record” constitutes an “agency record” under the FOIA: Agency records are records that are (1) either created or obtained by an agency, and (2) under agency control at the time of the FOIA request.8 “By control we mean that the materials have come into the agency’s possession in the legitimate conduct of its official duties.”9
The FOIA only obligates an agency to provide access to those records meeting this two-part test. An agency is not required to “obtain records from any other sources” in response to a FOIA request.10 Courts have held that “it does not matter that [an agency] could possess the documents by requesting them from [a third party]: a federal right of access does not render a private organization’s data ‘agency records’ subject to the FOIA, because ‘FOIA applies to records which have been in fact obtained, and not to records which merely could have been obtained.”11 Thus, an agency is not generally required to conduct a search for records outside its possession or control.12 Indeed, the FOIA does not obligate an agency to “dig out all the information that might exist, in whatever form or place it might be found.”13 The general rationale is that the “FOIA was not intended to reduce government agencies to full-time investigators on behalf of requesters.”14
Further, agencies are not required to answer questions posed as FOIA requests,15 nor required to make automatic releases of records on a continuous basis.16 By practical necessity, an agency’s search obligations under the FOIA are limited to a temporal cut-off date, and agency records created or obtained after that cut-off are construed as not responsive to a request.17 Courts generally favor a date-of-search cut-off because it tends to result “in the retrieval of more [responsive] documents,”18 and typically “results in a much fuller search and disclosure” than some other cut-off date, such as one based on the request date or the receipt date.19
The partially redacted records you received in response to your September 23 request constitute all the responsive agency records in the NCUA’s possession and control as of the date of our search.20 While not obligated under the FOIA, we also provided partially redacted copies of additional records the agency received from the credit union after the date-of-search cut-off, as a courtesy to you. We note that full consumer loan files are generally not maintained, possessed, and controlled by the NCUA as a matter of course; consumer loan files are proprietary business records kept by the borrower’s credit union. However, in the course of the OCFP’s investigation of your consumer complaint, the agency obtained from the credit union certain records relative to your loan file. Of those, all responsive records were released to you with our November 3 response, with some redactions. The NCUA has no obligation under the FOIA to conduct a search for records outside its possession or control or to obtain “all [your] records” from a third-party source, such as a credit union, in response to a FOIA request. The agency is also not required to supplement or update our response to your September 23 FOIA request on a continuous basis. Accordingly, upon review, we affirm the November 3 response.
For these reasons, your FOIA appeal is denied. Pursuant to 5 U.S.C. §552(a)(4)(B) of FOIA, you may seek judicial review of this determination by filing suit against the NCUA. Such a suit may be filed in the United States District Court where you reside, where your principal place of business is located, the District of Columbia, or where the documents are located (the Eastern District of Virginia).
The 2007 FOIA amendments created the Office of Government Information Services (OGIS) to offer mediation services to resolve disputes between FOIA requesters and Federal agencies as a non-exclusive alternative to litigation. Using OGIS services does not affect your right to pursue litigation. You may contact OGIS in any of the following ways:
Office of Government Information Services
National Archives and Records Administration
8601 Adelphi Road - OGIS
College Park, MD 20740-6001 E-mail: ogis@nara.gov
Web: https://ogis.archives.gov
Telephone: 202-741-5770; Toll-free: 877-684-6448
Fax: 202-741-5769
Sincerely,
/s/
Frank Kressman
Acting General Counsel
Footnotes
1 OCFP completed its investigation of your complaint (XXXX) and issued a final determination to you by letter of October 27, 2020.
2 See 12 C.F.R. §792.15.
3 Upon your receipt of our response, you notified us that you were unable to read the attached responsive agency records. Therefore, we re-sent clearer copies of the records, for which you acknowledged receipt and legibility on November 3, 2020.
4 Your appeal was received by the NCUA Office of General Counsel on November 4, 2020.
5 The FOIA applies to agencies within the Executive Branch of the federal government, independent regulatory agencies, and some components within the Executive Office of the President. See 5 U.S.C. §552(f)(1). Amtrak is also subject to the FOIA by statute. See 49 U.S.C. § 24301(e).
6 5 U.S.C. §552(a)(3)(A).
7 5 U.S.C. §552(f)(2)(A).
8 See DOJ v. Tax Analysts, 492 U.S. 136, 144-45 (1989).
9 See Id. at 145.
10 Callaway v. Dept. of the Treasury, 893 F. Supp. 2d 269, 275 (D.D.C. 2012) (quoting Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 153 (1980)); see also Williams v. U.S. Attorney’s Office, No. 03-674, 2006 WL 717474, at *5 (N.D. Okla. Mar. 16, 2006) (noting that the FOIA obligates agency to search only “its own records,” not “records of third parties”).
11 Rocky Mountain Wild, Inc. v. U.S. Forest Serv., 878 F.3d 1258, 1263 (10th Cir. 2018) (quoting Forsham v. Harris, 445 U.S.169, 186 (1980)).
12 See Jones-Edwards v. NSA, 196 F. App’x 36, 38 (2d Cir. 2006); see also Lewis v. DOJ, 867 F. Supp. 2d 1, 12-13 (D.D.C. 2011) (finding agency obligated to search only those records in its custody and control at time of request).
13 Frank v. DOJ, 941 F. Supp. 4, 5 (D.D.C. 1996).
14 Assassination Archives & Research Ctr. v. CIA, 720 F. Supp. 217, 219 (D.D.C. 1989), aff’d in pertinent part, No. 89-5414, 1990 WL 123924 (D.C. Cir. Aug. 13, 1990) (per curiam).
15 See e.g., Hall & Assocs. v. EPA, No. 16-5315, 2018 WL 1896493, at *2 (D.C. Cir. Apr. 9, 2018).
16 See Tuchinsky v. Selective Serv. Sys., 418 F. 2d 155, 158 (7th Cir. 1969); see also Mandel Grunfeld & Herrick v. U.S. Customs Serv., 709 F.2d 41, 43 (11th Cir. 1983) (finding requestor not entitled to automatic mailing of materials as they are updated); Howard v. Sec’y of the Air Force, No. SA-89-CA-1008, slip op. at 6 (W.D. Tex. Oct. 2, 1991) (noting that request for records on a continuing basis could “create an enormous burden, both in time and taxpayers’ money”); Lybarger v. Cardwell, 438 F. Supp. 1075, 1077 (D. Mass. 1977) (determining that the “open-ended procedure” advanced by requestor whereby records are automatically disclosed is not required by the FOIA and “will not be forced” upon an agency).
17 See Defenders of Wildlife v. Dep’t of the Interior, 314 F. Supp. 2d 1, 12 no. 10 (D.D.C. 2004); Bonner v. U.S. Dept. of State, 928 F. 2d 1148, 1152 (D.C. Cir. 1991).
18 Pub. Citizen v. Dep’t of State, 276 F.3d 634, 644 (D.C. Cir. 2002).
19 McGehee v. CIA, 697 F.2d 1095, 1104 (D.C. Cir. 1983), vacated on other grounds on panel reh’g &reh’g en banc denied, 711 F.2d 1076 (D.C. Cir. 1983); see also Van Strum v. EPA, 972 F.2d 1348, at *2 (9th Cir. 1992) (noting date-of-search cut-off date is “the most reasonable date for setting the temporal cut-off”).
20 The date-of-search cut-off date for this request was October 14, 2020.