FOIA Appeal of Response 2024-FOI-119

May 16, 2024

SENT BY E-MAIL

XXXX

Re: 2024-APP-00003; Appeal of Response 2024-FOI-119

Dear XXXX:

By correspondence of March 1, 2024, you submitted a Freedom of Information Act (FOIA) request (2024-FOI-119) to the National Credit Union Administration (NCUA) for all finalized strategic plans for implementing Executive Order 14019 (EO 14019), or related documents submitted to the Office of Management and Budget (OMB) relating to implementation of EO 14019. Also, all documents by which third party organizations will be approved to conduct voter registration activities on federal agency premises under EO 14019.¹ 

In a letter dated April 22, 2024, your request was granted/denied in part. Three pages of responsive records were provided to you, with some redactions, and seven pages withheld. You were advised that the redacted and withheld information is exempt from release pursuant to the FOIA exemption at 5 U.S.C. §552(b)(2) (Exemption 2), which protects records related solely to internal rules and practices. You were also advised that in determining whether to withhold information, the NCUA considered the foreseeable harm standard when reviewing records and applying FOIA exemptions. 

You appealed this determination in an April 22, 2024, email correspondence. In your appeal, you contend that “all agencies were required to submit a finalized plan regarding EO 14019 implementation to OMB. Therefore, the documents not released are likely finalized strategic documents, not pertinent to [Exemption 2], and further, not solely relevant to [Exemption 2] if pertaining to external operations.” Upon review, your appeal is denied, as discussed more fully below.

The FOIA provides that an agency may withhold responsive records if the agency reasonably foresees that disclosure would harm an interest protected by one of the nine exemptions that the FOIA enumerates or disclosure is prohibited by law.² Exemption 2 exempts from mandatory disclosure agency records that are “related solely to the internal personnel rules and practices of an agency.”³ Generally, there are three elements that must be satisfied for information to fit within Exemption 2: (1) the information must be related to “personnel” rules and practices; (2) the information must relate “solely” to those personnel rules and practices; and (3) the information must be “internal.”⁴ 

Under this three-part test, consistent with its plain meaning, the term “personnel” covers “‘the formulations of policies, procedures, and relations with [or involving] employees or their representatives,’”⁵ and records “dealing with employee relations or human resources,” which “concern the conditions of employment in federal agencies.”⁶ In applying the test’s second prong, the term “solely” is given its usual meaning of “exclusively or only.”⁷ For purposes of the test’s third prong, the information must be “‘internal,’ meaning that ‘the agency must typically keep the records to itself for its own use.’”⁸ 

The redacted and withheld information that is responsive to your request consists of information that meets the three-part test described above. The redacted and withheld records are related to employee relations and human resource matters and relate exclusively to those personnel matters. The information is internal to the NCUA and ordinarily kept within the agency for internal agency use. Additionally, it is reasonably foreseeable that the full disclosure of the requested internal agency personnel records, which deal solely with human resource and employee matters, would cause harm to the agency’s employer-employee relationship and incumber frank and open communications between agency leadership and staff. Thus, Exemption 2 is applicable.

If an agency determines that it cannot or should not make full disclosure of a requested record, the FOIA calls for agencies to “consider whether partial disclosure of information is possible” and “take reasonable steps necessary to segregate and release nonexempt information.”⁹ However, the NCUA is not required to disclose information “inextricably intertwined with exempt portions,”¹⁰ and “need not disclose a redacted version of [a record] if the unredacted markings would have minimal or no information content.”¹¹

The three pages of documents that were provided to you consist of the reasonably segregable portions of the agency’s responsive records that can be disclosed without causing reasonably foreseeable harm to agency and staff relations. The information that was redacted and withheld is fully exempt under Exemption 2 or inextricably intertwined with exempt portions of the records. Accordingly, the redacted and withheld information was properly withheld as exempt pursuant to Exemption 2.

For these reasons, your FOIA appeal is denied. Pursuant to 5 U.S.C. §552(a)(4)(B) of the 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
General Counsel

GC/PY
2024-APP-00003; 2024-FOI-119