April 6, 2022
SENT BY E-MAIL
XXXX
XXXX
Re: 2022-APP-00002; Appeal of Response 2022-FOIA-00005
Dear XXXX:
By correspondence of January 28, 2022 (received on January 31, 2022), you submitted a Freedom of Information Act (FOIA) request (2022-FOIA-00005), requesting all correspondence received from XXXX of XXXX Federal Credit Union (charter XXXX) by the NCUA’s Consumer Assistance Center related to your complaint #XXXX. You subsequently sent additional emails on February 4, 7, 16, 19, 21 and March 4, 2022 requesting: a newspaper article from XXXX in XXXX; a police report dated 9/23/2019 and any related documents; a transcript from the credit union’s XXXX branch for the wire transfer on 8/30/2019 at 12:39 pm; and the name of the individual who made the outgoing call to your wife’s cell phone from the credit union before money was wired. Because you requested records about yourself, your request was also processed under the federal Privacy Act of 1974.
By letter of March 8, 2022, a Senior Attorney and FOIA Officer (FOIA Officer) in the NCUA’s Office of General Counsel responded to your request and advised that your request was granted in part. 17 pages were attached, consisting of agency records responsive to your request for correspondence from XXXX of XXXX regarding your complaint #XXXX. The FOIA Officer also indicated in our reply that the agency did not have any records responsive to the other portions of your request.
You have appealed this determination in an email dated March 9, 2022. You sent several subsequent emails on March 10 and 11, 2022, reiterating your desire to appeal our response, reminding us of what was requested in your initial request and subsequent emails, and asking for “all that is requested by us, regarding #XXXX.”
Your appeal is granted in part. Enclosed are 44 additional pages of responsive records, comprising a March 31, 2020 letter, with attached exhibits, from XXXX of XXXX to the NCUA’s Consumer Assistance Center, regarding your complaint #XXXX. As discussed more fully below, your appeal is denied with respect to the portions of your request for a transcript from the credit union’s XXXX branch for the wire transfer on 8/30/2019 at 12:39 pm; and the name of the individual who made the outgoing call to your wife’s cell phone from the credit union before money was wired.
Your appeal does not expressly state a reason for your appeal but indicates that you “expect [the NCUA] to get what was requested,” and you “expect to see what wasn’t sent” with our March 8, 2022 response.
The FOIA establishes a statutory framework for public requests for “agency records” and imposes requirements on agencies1 to make such records promptly available.2 “Records” include information “maintained by an agency.”3 Generally, there is 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.4 “By control we mean that the materials have come into the agency’s possession in the legitimate conduct of its official duties.”5 The FOIA only obligates the NCUA to provide access to those records meeting this two-part test.
Your January 28, 2022 initial FOIA request stated that, “if for some reason, you can't locate what's needed, then may I suggest you [contact] mr. XXXX esquire etc. (XXXX) XXXX, to kindley replace of what was sent [sic].” However, the NCUA is not generally required to conduct a search for records outside its possession or control,6 nor to “obtain records from any other sources” in response to a FOIA request.7 Indeed, “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.”8 The NCUA is not required under the FOIA to “dig out all the information that might exist, in whatever form or place it might be found.”9 The “FOIA was not intended to reduce government agencies to full-time investigators on behalf of requesters.”10
The NCUA has no obligation under the FOIA to conduct a search for records outside its possession or control or “to get what was requested” from a third-party source, such as a credit union employee, in response to a FOIA request. Accordingly, we affirm the March 8, 2022 response relative to the remaining portions of your request.
For these reasons, your FOIA appeal is granted in part and denied in part. 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
General Counsel
2022-APP-00002; 2022-FOIA-00005
Footnotes
1 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).
2 5 U.S.C. §552(a)(3)(A).
3 5 U.S.C. §552(f)(2)(A).
4 See DOJ v. Tax Analysts, 492 U.S. 136, 144-45 (1989).
5 See Id. at 145.
6 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).
7 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”).
8 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)).
9 Frank v. DOJ, 941 F. Supp. 4, 5 (D.D.C. 1996).
10 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).