March 11, 2025
SENT BY E-MAIL
XXXX
Re: 2025-APP-00009 (Appeal of Response 2025-FOI-125)
Dear XXXX:
On February 3, 2025, you submitted a Freedom of Information Act (FOIA) request (2025-FOI-125) to the National Credit Union Administration (NCUA) for the following: “... full disclosure of the financial transactions, endorsements, and related documentation for the auto loans, motor loans, credit cards and deposits I have held with XXXX. Specifically, I seek: A complete accounting of the funds created for these loans, credit card accounts, savings accounts, and checking accounts including any endorsements and the funding source. Copies of the ALLONGE to the promissory notes or any attached indorsements for the following: Chrysler Sebring auto loan Motorcycle loan Lincoln MKZ auto loan Infiniti QX60 auto loan XXXX credit cards Any disclosures that were not provided to me at the time of signing. I respectfully request a fee waiver for this FOIA request, as I meet the criteria outlined in the fee waiver standard. My request is made in the public interest and is not for commercial use.”
By email of February 4, 2025, you were notified that the NCUA was closing its administrative file on your request because, as worded, it appears the records you seek are not federal agency records that belong to the NCUA. The NCUA FOIA Processing Center (FOIA Office) advised you that the FOIA is a federal law allowing for the public to request access to federal agency records. Under the FOIA, the NCUA’s agency records are records that are either created or obtained by the NCUA, and under NCUA’s control at the time of the FOIA request. The records you reference, if available, may belong to, and may be under the control of a credit union or other third-party business entity, not the NCUA. The NCUA generally does not keep or maintain personal or financial records of individuals. The FOIA Office also advised that you may wish to contact XXXX directly to obtain your account records. Further, if you believe a credit union is violating a consumer protection regulation or law, the NCUA’s Consumer Assistance Center would be best able to address your concerns.
You appealed this determination in a February 11, 2025, email correspondence. In your appeal, you contend that the NCUA, as the primary federal regulator of credit unions, has oversight over federally insured credit unions and their financial records, including those related to loan origination, securitization, and fund creation. You argue that these records should be accessible under FOIA as they pertain to institutions under NCUA supervision. You also assert that, as part of the NCUA’s regular audits, examinations, and oversight of credit unions, including XXXX, the NCUA may have obtained, reviewed, or retained relevant documentation concerning financial transactions, loan endorsements, and allonges related to your accounts. You have requested that the NCUA conduct a more thorough search of its records, including regulatory examinations, reports, and communications with XXXX, to locate responsive documents.
Upon a full and independent review, your appeal is denied, as discussed more fully below.
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 The Supreme Court has established 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 an agency to provide access to those records meeting this two-part test. An agency is not required to “obtain records from any other sources” in response to a FOIA request.6 Courts have held that “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.”7 An agency is not generally required to conduct a search for records outside its possession or control.8 Indeed, the FOIA does not obligate an agency to “dig out all the information that might exist, in whatever form or place it might be found.”9 The general rationale is that the “FOIA was not intended to reduce government agencies to full-time investigators on behalf of requesters.”10
We note that full personal financial and consumer loan files are generally not maintained, possessed, and controlled by the NCUA as a matter of course; personal financial and consumer loan files are proprietary business records kept by the member’s credit union. Further, the NCUA has no obligation under the FOIA to conduct a search for records outside its possession or control or to obtain records from a third-party source, such as a credit union, in response to a FOIA request. Accordingly, upon review, the February 4, 2025, response is affirmed.
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 any documents, if available, 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: This is an external link to a website belonging to another federal agency, private organization, or commercial entity. https://ogis.archives.gov (Opens new window)
Telephone: 202.741.5770; Toll-free: 877.684.6448
Fax: 202.741.5769
Sincerely,
/s/
Frank Kressman
General Counsel
GC/PY
2025-APP-00009; 2025-FOI-125
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 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”).
7 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)); see also Physicians Comm. for Responsible Med. v. USDA, 316 F. Supp. 3d 1, 9 (D.D.C. 2018) (noting “[the agency] did not create the records plaintiff seeks,” and rejecting argument “that the agency has the authority to audit” the records, finding that “[b]y ordering the agency to ‘exercise its right of access,’ the Court ‘effectively would be compelling the agency to “create” an agency record,’” which would extend the FOIA’s reach beyond Congress’ intent).
8 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).
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).