October 26, 2021
SENT BY E-MAIL
XXXX
XXXX
Re: 2021-APP-00003; Appeal of Response 21-FOI-00101
Dear XXXX:
By correspondence of August 2, 2021, you submitted a Freedom of Information Act (FOIA) request (21-FOI-00101), requesting all applications, notices, filings, comment letters, and other materials filed by Thrivent Federal Credit Union with the NCUA, to include all correspondence between the credit union and the NCUA in connection with its acquisition by Thrivent Bank.
By letter of September 20, 2021, a senior attorney advisor in the National Credit Union Administration’s (NCUA) Office of General Counsel responded to your request and advised that your request was granted in part. 80 pages of publicly releasable responsive records were sent to you. We redacted the remaining records as exempt from release under the FOIA exemptions at 5 U.S.C. §552(b)(4), (6) and (8). The senior attorney advisor’s response explained that subsection (b)(4) (Exemption 4) protects from disclosure trade secrets and commercial or financial information obtained from a person, which is considered privileged or confidential. Subsection (b)(6) (Exemption 6) protects information about individuals when its disclosure would constitute a clearly unwarranted invasion of personal privacy. Subsection (b)(8) (Exemption 8) protects matters that are 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.
You have appealed this determination in a correspondence dated September 28, 2021. Your appeal is denied, as discussed more fully below.
Your appeal contends that the information we withheld as exempt from release “consists of the notice that was posted on the Thrivent FCU’s website, posted in its branches and published in the local newspaper as required by 12 C.F.R. § 708a.303(b)(1).” You note that this notice “was obviously published because the board of directors of Thrivent FCU could not have voted to proceed with the proposed merger until after the Notice was published as is evident from the statement . . . that appeared on the credit union’s website that states the board determined to proceed with the merger.”1 You deduce that members of the public could therefore have read the notice as a result of its purported publication. You contest the applicability of Exemption 4, asserting that, because it was presumably published for public consumption, “the final form of the Notice approved by the NCUA” does not qualify for this exemption as it is “no longer confidential.” In addition, you challenge the applicability of Exemption 8, asserting that the notice is not related to examination, operating or condition reports and “since [the notice] has been disclosed as required by NCUA regulation,” this exemption is inapplicable as its disclosure “clearly will not harm the financial security of credit unions or interfere with their relationship with NCUA.”2
In addition, your appeal notes that “the wholesale deletion of material” from the records3 released to you “do not appear consistent” with the FOIA’s requirement to provide any reasonably segregable portion of responsive records. Upon review, we affirm the partial denial.
Courts have acknowledged that a FOIA exemption “can serve no purpose once information . . . becomes public.”4 Accordingly, courts have found that an “official” disclosure waives an otherwise applicable FOIA exemption.5 However, mere “[s]peculation as to the content of the withheld information does not establish that it has entered the public domain.”6 In order for a waiver to occur the information sought must have already been “disclosed and preserved in a permanent public record.”7 The FOIA requester bears the burden of showing that the withheld information is publicly available by establishing three elements to prove that an official public disclosure has occurred: the information requested (1) is “as specific as the information previously released,” (2) “match[es] the information previously disclosed,” and (3) has “already . . . been made public through an official and documented disclosure.”8 As such, an agency may properly invoke an exemption to withhold information when the information that is publicly available is not “identical to that being withheld.”9 Moreover, to be an “official” disclosure, the release must have been made by “the agency from which the information is being sought.”10
In your appeal, you infer that because the credit union has seemingly issued an online statement that its board has determined to move forward with a proposed merger, information we withheld as exempt from release consists of a public notice required by §708a.303(b)(1) of the NCUA’s regulations. However, this is merely a speculative deduction as to the content of the withheld information, which does not establish that the requested information is, in fact, available in the public domain. Pointing to a purported online statement that a credit union board has voted to proceed with a proposed merger is insufficient to meet your burden of showing that the withheld information is already publicly available. Specifically, you have not shown that the information withheld as exempt is as “specific as” or “matches” the information ostensibly released to the public by the credit union. Even assuming that the same notice information was, in fact, posted per NCUA’s regulations on Thrivent FCU’s website, in its branches, and published in the local newspaper, in order for a waiver of an applicable FOIA exemption to occur, an official disclosure must have been made by the agency from which the information is being sought (NCUA). Here, you contend that the credit union made a public disclosure, not the NCUA. Thus, we disagree with your assertion that Exemption 4 is waived or inapplicable because it was published by the credit union for public consumption and is no longer confidential.
Exemption 4 protects “commercial or financial information” obtained from a person11 that is “privileged or confidential.”12 The term “confidential” is given its “ordinary” meaning of “private” or “secret” for purposes of Exemption 4.13 Accordingly, “at least where commercial or financial information is both customarily and actually treated as private by its owner and provided to the government under an assurance of privacy, the information is ‘confidential’ within the meaning of Exemption 4.”14 The merger information you requested is confidential financial information within the scope of Exemption 4. Credit unions customarily and actually treat sensitive information regarding a potential merger as private or as closely-held financial information. As such, the information you requested was properly withheld as exempt from FOIA release under Exemption 4.
In addition, Exemption 8 is not waived (as discussed above) and also remains available. Exemption 8 provides for protection against release of information 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.15 Courts have interpreted Exemption 8 broadly and have declined to restrict its all-inclusive scope.16 Information relative to a credit union’s potential merger meets this broad standard insofar as it relates to its operation and condition. Moreover, the fact that the requested information is in possession of the NCUA due to its regulatory and supervisory relationship with the credit union lends further support to an implied assurance of confidentiality for purposes of Exemption 4, as described above.
Finally, we note that the partially redacted documents released to you constitute the reasonably segregable portions of the requested records. As a general rule, “non-exempt portions of a document must be disclosed unless they are inextricably intertwined with exempt portions.”17 In determining what is reasonably segregable for release, the primary consideration is the “informational value” of what can be disclosed.18 For example, an agency is not required to segregate any remaining nonexempt information where “only a few meaningless words or phrases would remain.”19 In this case, consistent with the requirements under the FOIA, we redacted and withheld only what was fully exempt or inextricably intertwined with exempt portions, as necessary to protect the exempt information.20
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
2021-APP-00003; 21-FOI-00101
Footnotes
1 In support of this contention, you included with your appeal an image appearing to be a statement from the credit union’s website entitled “Thrivent Credit Union Board votes to proceed with proposed merger approval process.”
2 We note that your appeal does not dispute the applicability of Exemption 6.
3 Specifically, your appeal challenges redactions to “the letters dated February 25, March 16 and August 4, 2021.”
4 Cottone v. Reno, 193 F.3d 550, 555 (D.C. Cir. 1999).
5 See, e.g., New York Times Co. v. DOJ, 756 F.3d 100 (2d Cir. 2014).
6 Higgins v. DOJ, 919 F. Supp. 3d 131, 147 (D.D.C. 2013).
7 Cottone, 193 F.3d at 554 (noting “materials normally immunized from disclosure under FOIA lose their protective cloak once disclosed and preserved in a permanent public record.”).
8 Id. at 556.
9 Marino v. DOJ, No. 16-5280, 2017 U.S. App. LEXIS 24658 (D.D. Cir. Dec. 6, 2017) (finding the requester “failed ‘to point to “specific” information’ in the public domain that is ‘identical to that being withheld’”); see also Pickard v. DOJ, 713 Fed. Appx. 609 (9th Cir. 2018) (noting that what requester sought “is not exactly the same information that was publicly disclosed, so [the FOIA exemption] applies.”); Am. Civil Liberties Union v. CIA, 109 F. Supp. 3d 220, 241 (D.D.C. 2015) (rejecting waiver argument because requester “merely pointed to alleged disclosures of vaguely similar information but has failed to identify officially disclosed information that ‘precisely track[s]’ or ‘duplicates’ the information it has requested”), aff’d, 640 Fed. Appx. at 12.
10 Frugone v. CIA, 169 F. 3d 772, 774 (D.C. Cir. 1999).
11 The FOIA defines “person” as an “individual, partnership, corporation, association, or public or private organization other than an agency.” 5 U.S.C. § 551(2). A credit union is a “person” under the FOIA.
12 5 U.S.C. § 552(b)(4).
13 Food Marketing Institute v. Argus Leader Media, 139 S. Ct. 2356, 2363 (2019).
14 Id. at 2366.
15 5 U.S.C. §552(b)(8).
16 See Consumers Union of United States, Inc. v. Heimann, 589 F. 2d 531 (D.C. Cir. 1978).
17 Mead Data Cent., Inc. v. United States Dep't of the Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977).
18 Neufeld v. IRS, 646 F.2d 661, 666 (D.C. Cir. 1981); see also Brown v. DOJ, No. 08-0821, 2010 WL 3398866 (D.D.C. Aug. 30, 2010) (an agency “need not expend substantial time and resources to ‘yield a product with little, if any, informational value.’”).
19 Amnesty Int'l USA v. CIA, No. 07-5435, 2010 WL 5421928 (S.D.N.Y. Dec. 21, 2010).
20 See, e.g., Skurow v. DHS, No. 11-1296, 2012 WL 4380895 (D.D.C. Sept. 26, 2012).