July 15, 2024
SENT BY E-MAIL
XXXX
Re: 2024-APP-00004; Appeal of Response 2024-FOI-198
Dear XXXX:
On May 20, 2024, you submitted a Freedom of Information Act (FOIA) request (2024-FOI-198) to the National Credit Union Administration (NCUA) requesting: “All documents sufficient to detail all incurred expenses, costs, or receipts associated with the implementation or execution of Executive Order 14019 by the agency. All documents that identify the source or line of funding used for the expenses/expenditures associated with implementation or execution of Executive Order 14019. All legal opinions or memos surrounding Executive Order 14019 drafted, created, or retained by the agency. All documents, emails, or correspondence that include both the text of ‘Executive Order 14019’ OR ‘14019’ AND ‘Antideficiency Act’. All communications between the agency and XXXX (XXXX@who.eop.gov), or XXXX XXXX@omb.eop.gov), or XXXX, Special Assistant to the President for Democracy and Civic Participation. Please search the inboxes of personnel assigned to the agency’s Office of General Counsel (or the agency’s equivalent) as the primary custodians. The time period for this request is from 12:01 PM EST on January 20, 2021, to the present date....”
In a letter dated June 14, 2024, your request was granted in part. In total, 33 pages of responsive records were provided to you, with some redactions. 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)(5) (Exemption 5), which protects inter-agency or intra-agency memorandums, letters, or other communications. 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 email correspondence that was received on June 17, 2024. In your appeal, you contend that “the redacted material pertains to communications that are clearly internal to a singular agency and, therefore, should not qualify for the ‘interagency or intra-agency’ exemption intended to protect deliberative processes involving multiple agencies.” Further, you assert that “it is evident that the redacted information consists of internal communications within NCUA, from NCUA staff, to other NCUA staff.” You argue that “the application of Exemption 5 is improper because it is designed to protect communications between different agencies or between an agency and outside consultants, not purely internal communications within a single agency.” 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.1 Exemption 5 exempts from mandatory disclosure agency records that are “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.”2
As a threshold matter, Exemption 5 applies to records that are inter-agency or intra-agency memorandums or letters. “Intra-agency” communications “are those that remain inside a single agency,” while “inter-agency” communications “go from one governmental agency to another.”3 Intra-agency and inter-agency communications are treated identically by courts interpreting the FOIA.4 Although you mischaracterize the scope of Exemption 5, you concede in your appeal that the redacted records are internal communications within the NCUA and between NCUA staff. As such, the redacted intra-agency communications that are responsive to your request consist of information that falls squarely within the scope of the plain language of Exemption 5.
Exemption 5 incorporates the privileges available to an agency in litigation, including the deliberative process privilege.5 The privilege is intended to “prevent injury to the quality of agency decisions,”6 and applies when documents are both “pre-decisional” and “deliberative.” Records are pre-decisional when they precede an agency decision and are prepared 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.7 The deliberative process privilege protects “recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency.”8
The rationale behind the privilege is “the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news, and its object is to enhance ‘the quality of agency decisions,’ by protecting open and frank discussion among those who make them within the Government.”9 The redacted information consists of intra-agency pre-decisional and deliberative discussions between agency staff; therefore, Exemption 5 is applicable. It is reasonably foreseeable that the full disclosure of the requested internal agency communications, which consist of subjective staff advice, recommendations, and personal opinions as to what agency policy should be, would cause harm to the agency’s decision-making process by incumbering open and candid internal policy deliberations among agency staff.
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.10 The 33 pages of redacted 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 internal staff communications and agency decision-making. The information that was redacted is fully exempt and properly withheld under Exemption 5.
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-00004; 2024-FOI-198
Footnotes
1 See 5 U.S.C. § 552(a)(8)(A)(i).
2 5 U.S.C. § 552(b)(5).
3 Tigue v. U.S. Dep’t of Justice, 312 F.3d 70, 77 (2d Cir. 2002).
4 Renegotiation Bd. v. Grumman Aircraft Eng'g Corp., 421 U.S. 168, 188 (1975) (“Exemption 5 does not distinguish between inter-agency and intra-agency memoranda.”).
5 See 5 U.S.C. § 552(b)(5).
6 NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151 (1975).
7 See Phillips v. Immigration and Customs Enforcement, 385 F. Supp. 2d 296 (S.D. N.Y. 2005).
8 Grand Cent. P’ship v. Cuomo,166 F.3d 473, 482 (2d Cir. 1999) (internal quotation marks and citations omitted).
9 Dep't of the Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8-9 (2001) (quoting Sears, 421 U.S. at 151; accord Coastal States Gas Corp. v. Dept. of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980) (“The [deliberative process] privilege has a number of purposes: it serves to assure that subordinates within an agency will feel free to provide the decisionmaker with their uninhibited opinions and recommendations without fear of later being subject to public ridicule or criticism; to protect against premature disclosure of proposed policies before they have been finally formulated or adopted; and to protect against confusing the issues and misleading the public by dissemination of documents suggesting reasons and rationales for a course of action which were not in fact the ultimate reasons for the agency's action.”).
10 See 5 U.S.C. § 552(a)(8)(A)(ii).