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FOIA Appeal of Response 2023-FOIA-00001

May 31, 2023

SENT BY E-MAIL

XXXX

Re: 2023-APP-00001; Appeal of Response 2023-FOIA-00001

Dear XXXX:

By correspondence of December 16, 2022, you submitted a Freedom of Information Act (FOIA) request (2023-FOIA-00001), requesting the following:

  1. Documents related to Job Announcement XXXX and XXXX for the position of XXXX (XXXX) in 2020, to include communications mentioning me (XXXX) during and after my application process.
  2. Documents and related communications regarding my selection for the position and the decision to rescind the offer, to include documents and communications regarding any of the specific facts or statements upon which the determination to rescind the offer was made.
  3. A copy of published procedures and guidance used to make your determination.
  4. The résumés of all persons selected for interview.
  5. Releaseable documents related to the person ultimately selected for the position.

Because you requested records about yourself, your request was also processed under the federal Privacy Act of 1974.

By letter of February 1, 2023 (Response Letter), counsel in the NCUA’s Office of General Counsel (FOIA Counsel) responded to your request and advised that your request was granted/denied in part.  One hundred fifty-one pages were attached, with some redactions, consisting of agency records responsive to your request.  FOIA Counsel stated in the reply that the foreseeable harm standard was considered when reviewing records and in applying FOIA exemptions.  FOIA Counsel also indicated redacted and withheld information is exempt under one or more of the FOIA exemptions at 5 U.S.C. § 552(b)(4), (5), and (6).

You appealed this determination in a correspondence dated May 2, 2023.  Upon a full and independent review, your appeal is granted in part and denied in part, 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.1

FOIA Exemption 4

Your appeal notes that, “Exemption 4 protects from disclosure trade secrets and commercial or financial information obtained from a person that is considered privileged or confidential. NCUA has not identified any particular documents withheld by this exemption . . . A clarification of this matter is, therefore, necessary.”

Upon review, the Response Letter erroneously cited Exemption 4. You correctly note that no requested documents are identified as withheld under this exemption, and it is not applicable in this case. Accordingly, your appeal is granted with respect to Exemption 4.

Rather than invoking Exemption 4, the Response Letter should have referenced the applicability of Exemption 2.

FOIA Exemption 2

The Response Letter erred in failing to cite Exemption 2. Responsive records that were withheld or redacted (including records that were produced to you) cited Exemption 2 in multiple instances, but the Response Letter did not reference or explain the applicability of that particular exemption. Exemption 2 exempts from mandatory disclosure agency records that are “related solely to the internal personnel rules and practices of an agency.”2

In Milner v. Department of the Navy, the Supreme Court established three elements that must be satisfied for records to fall 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.”3

Under Milner’s three-part test, “personnel” encompasses, for example, “‘the selection, placement, and training of employees and . . . the formulations of policies, procedures, and relations with [or involving] employees or their representatives,’”4 as well as rules “dealing with employee relations or human resources,” which “concern the conditions of employment in federal agencies—such matters as hiring and firing, work rules and discipline, compensation and benefits.”5 For purposes of the test’s second prong, the term “solely” is given its “usual” meaning of “exclusively or only.”6 Under Milner’s third prong, the information must be “‘internal,’ meaning that ‘the agency must typically keep the records to itself for its own use.’”7

In this case, you requested documents related to the job announcement for the position of XXXX in 2020; the documents and related communications regarding your selection for the position and the decision to rescind the offer; a copy of published procedures and guidance used in making the determination; the résumés of all persons selected for interview; and the documents related to the person ultimately selected for the position. These requested agency records consist of information that meets the Milner three-part test. The records are all related to employee relations and human resource matters, the conditions of employment, hiring and firing, and compensation and benefits. The information relates only to those personnel rules and practices. The records are treated as confidential and kept for official internal agency use. Accordingly, Exemption 2 is applicable here.

FOIA Exemption 5

In your appeal, you recognize “the deliberative nature of certain of the documents at issue,” but you assert “NCUA’s application of the exemption remains, however, overly broad since its response fails to document any decision whatsoever.” Specifically, you argue that “NCUA has not disclosed any document from [a] twelve-day period” during which you contend “logic dictates that a decision to rescind [your tentative job offer] was made.”

A review of the NCUA’s files reveals that there are no other agency records that are responsive to your request. “Agencies are under no obligation to create or generate records in the course of discharging their obligations under FOIA and the Privacy Act.”8 In response to your request, the agency conducted a diligent search and has disclosed to you all relevant responsive documents, with some information appropriately redacted or withheld pursuant to Exemption 5.

Exemption 5 incorporates the privileges available to a governmental agency in civil litigation, including the deliberative process privilege.9 The deliberative process privilege is intended to “prevent injury to the quality of agency decisions,”10 and applies when documents are both “pre-decisional” and “deliberative.” Records are pre-decisional when they precede an agency decision and are prepared in order to assist an agency in arriving at its decision, and documents are deliberative when they comprise part of the process by which government decisions are made.11 Records withheld or redacted are pre-decisional and deliberative and their disclosure will harm the agency’s decision-making process.

The documents and related communications regarding your selection for the XXXX position and the decision to rescind the tentative offer are pre-decisional in that they preceded management’s determination as to your employment with the agency. The requested records are also deliberative as they comprise part of the process by which agency hiring decisions are made. Thus, the applicability of Exemption 5 is affirmed.

FOIA Exemption 6

Exemption 6 protects information about individuals in personnel and medical files and “similar files” when the disclosure of such information “would constitute a clearly unwarranted invasion of personal privacy.”12

Your appeal acknowledges that Exemption 6 “has admittedly been interpreted broadly, such that all information that ‘applies to a particular individual’ meets the threshold requirement” of falling within the exemption. However, you argue that “NCUA’s position that the identity of an employee, especially one that had decisional hiring authority, leads to the absurd result that an official decision was made, but that the identity of the decisionmaker cannot be disclosed.”

In support of your position, you cite several cases to assert the proposition that the Exemption 6 threshold is not satisfied when the information pertains to federal government employees but it is essentially business in nature, rather than personal. Specifically, your appeal cites Protect Our Defenders v. DOD, 401 F. Supp. 3d 259, 287 (D. Conn. 2019); Families for Freedom v. U.S. Customs & Border Prot., 797 F. Supp. 2d 375, 388-89 (S.D.N.Y. 2011); and Aguirre v. SEC, 551 F. Supp. 2d 33, 54 (D.D.C. 2008).

NCUA acknowledges that “[w]hile th[e] definition of ‘similar files’ appears to be all encompassing, it does have limits.”13 However, the underlying facts of the cases you cited are distinguishable from the matter at hand. Protect Our Defenders involved documents that the Court determined were not records “on an individual.” Rather, they were “records unrelated to a specific person that included names of personnel who worked on the agency matter,” specifically, a “general training memo [and] talking paper concerning data on agency discrimination.” Families for Freedom also involved two documents that were not records “on an individual” and neither contested document “contained any personal or identifying information apart from names of authors [and] recipients.” Aguirre is also distinguishable. The court in that case determined that the redacted information did not fall within Exemption 6 because the exemption does not cover “information merely identif[ying] the names of government officials who authored documents and received documents.”

By contrast, here, the redacted documents are records “on an individual.” Further, the redacted documents do not merely identify the names of agency employees who authored or received documents. Rather, the redactions involve personally identifying information regarding a small number of agency employees.

Exemption 6 allows an agency to withhold personally identifying information, such as email addresses, if disclosure of such information “would constitute a clearly unwarranted invasion of personal privacy.”14 While “[t]he privacy interests of U.S. government officials might be ‘somewhat diminished’ due to the countervailing interest of the public ‘to be informed about what their government is up to,’ federal employees nonetheless maintain an identifiable privacy interest in avoiding disclosures of information that could lead to annoyance or harassment.”15 Such harassment does not have to rise to the level that life or physical safety is in danger.16

In this case, because you participated in the application process up to the final (tentative offer) stage, you are presumably already aware of the agency offices involved in the hiring decision and the identity of employees with decisional hiring authority. Moreover, records that were produced to you consisting of direct correspondence between you and agency personnel involved in the hiring process did not redact employees’ email addresses or other personally identifying information. Accordingly, disclosure of the remaining redacted information relative to employees’ personally identifying information will not “shed light on an agency's performance of its statutory duties or otherwise let citizens know what their government is up to.”17 The threat to employees’ privacy outweighs the public interest justification asserted in your appeal. For these reasons, the applicability of Exemption 6 is affirmed.

Vaughn Index

Your appeal acknowledges that “this request is currently outside the litigation context.” Nevertheless, you have requested a so-called “Vaughn index,” which is an index of withheld documents or portions of documents that a plaintiff in a FOIA litigation is entitled to.18

The agency declines to provide a Vaughn index in this matter.

Privacy Act

Your appeal contends that while “NCUA has produced a number of documents in response to [your] request under the Privacy Act,” some of those documents “include statements . . . that were either factually incorrect and/or appear to rely upon documents not yet produced by NCUA.” Specifically, you note “NCUA did not produce any documents related to [your] XXXX background check.”

Under the Privacy Act, the subsection (k)(5) exemption is generally applicable to background employment and personnel-type investigative files.19 However, subsection (k)(5) is a narrow exemption, requiring an expressed promise of confidentiality after the effective date of the Privacy Act, and is limited to source identifying material.20

Your appeal is granted in part with respect to your requested background investigation files but denied to the extent of source-identifying material redacted or withheld under subsection (k)(5). Redactions for exempt information are currently in process and the releasable responsive records are forthcoming and will be provided to you as soon as they are available.

For the reasons above, your FOIA/Privacy Act 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 (You will be leaving NCUA.gov and accessing a non-NCUA website. We encourage you to read the NCUA's exit link policies. (opens new page).)
Telephone: 202.741.5770; Toll-free: 877.684.6448
Fax: 202.741.5769

 

Sincerely,

/s/

Frank Kressman
General Counsel

2023-APP-00001; 2023-FOIA-00001


Footnotes


1 See 5 U.S.C. § 552(a)(8)(A)(i).

2 5 U.S.C. § 552(b)(2).

3 See Milner v. U.S. Dep't of the Navy, 562 U.S. 562, 570 & n.4 (2011).

4 Id. at 569.

5 Id.

6 Id. at 570 n.4.

7 Id.

8 Schoenman v. FBI, 764 F. Supp. 2d 40, 48 (D.D.C. 2011).

9 See 5 U.S.C. § 552(b)(5).

10 NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151 (1975).

11 See Phillips v. Immigration and Customs Enforcement, 385 F. Supp. 2d 296 (S.D. N.Y. 2005).

12 5 U.S.C. § 552(b)(6).

13 Aguirre v. S.E.C., 551 F. Supp. 2d 33, 53 (D.D.C. 2008).

14 Shurtleff v. United States Env't Prot. Agency, 991 F. Supp. 2d 1, 18 (D.D.C. 2013) (citing U.S. Dep't of State v. Washington Post Co., 456 U.S. 595, 600, 102 S.Ct. 1957, 72 L.Ed.2d 358 (1982)); see also Waterman v. IRS, 288 F. Supp. 3d 206, 211 (D.D.C. 2018) (holding that work telephone numbers and email addresses of agency employees could be withheld because such information sheds little light on agency activities and release could cause harassment or threats of employees), vacated & remanded on other grounds, 755 F. App'x 26 (D.C. Cir. 2019).

15 Fams. for Freedom v. U.S. Customs & Border Prot., 797 F. Supp. 2d 375, 398 (S.D.N.Y. 2011) (citing Cawthon v. United States Dep't of Justice, No. 05–0567, 2006 WL 581250, at *3 (D.D.C. Mar. 9, 2006); Lesar v. U .S. Dep't of Justice, 636 F.2d 472, 487 (D.C.Cir.1980) (the privacy interest of civilian federal employees includes the right to control information related to themselves and to avoid disclosures that “could conceivably subject them to annoyance or harassment in either their official or private lives.”).

16 See Nix v. United States, 572 F.2d 998, 1006 n. 8 (4th Cir.1978).

17 U.S. Dep't of Defense v. FLRA, 510 U.S. 487, 497, 114 S.Ct. 1006, 127 L.Ed.2d 325 (1994) (citations and internal quotation marks omitted).

18 See Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir.1973), cert. denied, 415 U.S. 977 (1974).

19 See 5 U.S.C. § 552a(k)(5).

20 See id.; see also Vymetalik v. FBI, 785 F.2d 1090, 1093-98 (D.C. Cir. 1986); Doe v. FBI, 936 F.2d 1346, 1356 n.12 (D.C. Cir. 1991).

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