June 2, 2025
SENT BY E-MAIL
XXXX
Re: 2025-APP-00013 (Appeal of Response 2025-FOI-169)
Dear XXXX:
On April 1, 2025, you submitted a Freedom of Information Act (FOIA) request (2025-FOI-169) to the National Credit Union Administration (NCUA) for “documents related to executive compensation and salary changes at XXXX Federal Credit Union (XXXX) from 2018 to 2024,” including, “[c]ompensation information for [certain specified] executive positions at [XXXX] for the years 2020 through 2024.”
By letter of April 28, 2025, the NCUA FOIA Processing Center (FOIA Office) notified you that the NCUA did not locate records responsive to your request. However, as a courtesy, the FOIA Office referred you to information on aggregate salary and benefits per employee for XXXX available on the NCUA’s website via the Financial Performance Report at https://fpr.ncua.gov. The FOIA Office also provided the quarterly report for the December 2024 reporting cycle for your reference.
You appealed this determination in a May 8, 2025, correspondence. In your appeal, you state that the Financial Performance Report includes aggregate salary and benefit data, but it does not contain the executive-specific compensation information you requested. You also note the response did not explain whether responsive records were withheld under exemptions or clarify the scope of the search conducted.
After a full and independent review, your appeal is denied, as discussed more fully below.
Adequacy of Search for Responsive Records
In your notice of appeal, you question the adequacy of the agency’s search for records responsive to your request. You contend that the April 28, 2025, response does not detail what databases, examination materials, or correspondence files were searched, nor whether any agency divisions were consulted. Further, you assert the response does not indicate whether documents exist but were withheld under FOIA exemptions or simply not held. You suggest that the timing and lack of transparency of the response do not reflect a diligent or exhaustive search for the requested records.
The FOIA generally provides a statutory right of public access to government information in executive branch agency records. An agency1 that receives a proper request for agency records must make the records promptly available, except to the extent that such records or any portions of such records are protected from public disclosure by one of nine exemptions.2 Information maintained by an agency3 constitutes an “agency record” under the FOIA when the records are created or obtained by an agency, and under agency control at the time of the FOIA request.4
When any person requests access to agency records, the agency must make “’a good-faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.’”5 Where the adequacy of a search is in question, “the focus of the adequacy inquiry is not on the results,”6 or “’whether there might exist any other documents possibly responsive to the request, but rather whether the search for those documents was adequate.’”7 When the requested records are categorically exempt, however, courts have found that no search is required.8
You argue that, as the primary regulator of federal credit unions, the NCUA should reasonably be expected to maintain records related to executive compensation, particularly for a large institution like XXXX. You assert that executive compensation is directly tied to the soundness, governance, and risk management practices of a financial institution and, as such, is subject to regulatory scrutiny under laws like the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act).
However, under current law, federal credit unions are not required to report executive-specific compensation information to the NCUA.9 While Section 956 of the Dodd-Frank Act requires the NCUA and other federal financial regulators to jointly prescribe regulations or guidelines with respect to incentive-based compensation practices at certain covered financial institutions, the Dodd-Frank Act does not require a covered financial institution to report the actual compensation of particular individuals.10 The executive-specific compensation information you requested is not generally obtained, maintained, and controlled by the NCUA as a matter of course.
Further, records responsive to your request, if any, would be categorically exempt under one or more of the FOIA exemptions at 5 U.S.C. §§ 552(b)(4) (Exemption 4), (b)(6) (Exemption 6), and (b)(8) (Exemption 8). Exemption 4 protects from disclosure trade secrets and commercial or financial information obtained from a person, which is considered privileged or confidential.
Exemption 6 protects information about individuals when its disclosure would constitute a clearly unwarranted invasion of personal privacy. 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.
To the extent that responsive records exist, the requested executive-specific compensation could reasonably be expected to qualify as confidential commercial or financial information exempt from disclosure under Exemption 4.
Further, disclosure of responsive records, if any, would cause a clearly unwarranted invasion of personal privacy. On balance, any public interest11 in disclosing the requested information would be outweighed by the personal privacy interests of the individual credit union executives; thus, the requested information would also be protected from disclosure under Exemption 6.
Any responsive records, to the extent that they exist, could also reasonably be expected to be exempt from disclosure under Exemption 8. Generally, Exemption 8 is very broadly construed and exempts “all records, regardless of the source, of [a financial institution’s] financial condition and operations [that are] in the possession of a federal agency ‘responsible for the regulation or supervision of financial institutions.’”
Because any records responsive to your request would be categorically exempt from disclosure under one or more of Exemptions 4, 6, or 8, the NCUA is not required to search for the requested records.
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: 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
2025-APP-00013; 2025-FOI-169
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.
3 5 U.S.C. §552(f)(2)(A).
4 See DOJ v. Tax Analysts, 492 U.S. 136, 144-45 (1989).
5 Nation Mag. v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995) (quoting Oglesby v. U.S. Dep't of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990)).
6 Hornbostel v. U.S. Dep't of the Interior, 305 F. Supp. 2d 21, 28 (D.D.C. 2003), aff'd, No. 03-5257, 2004 WL 1900562 (D.C. Cir. Aug. 25, 2004).
7 Steinberg v. DOJ, 23 F.3d 548, 551 (D.C. Cir. 1994) (quoting Weisberg v. DOJ, 745 F.2d 1476, 1485 (D.C. Cir. 1984)).
8 See, e.g., Boyd v. EOUSA, No. 16-5133, 2016 WL 6237850, at *1 (D.C. Cir. Sept. 16, 2016).
9 Under the NCUA’s regulations, corporate credit unions must annually prepare, maintain, and make available to its members, a disclosure of the dollar amount of compensation paid to its most highly compensated employees. See 12 C.F.R. §704.19. However, this requirement does not apply to natural person federal credit unions that serve consumers, including XXXX.
10 Public Law 111-203, 124 Stat. 1376 (2010), codified at 12 U.S.C. §5641.
11 The only relevant public interest in disclosure is the extent to which disclosure would serve the “core purpose of the FOIA,” which is “contributing significantly to public understanding of the operations or activities of the government.” Sheet Metal Workers Int’l Ass’n, Local Union No. 19 v. U.S. Dep't of Veterans Affairs, 135 F.3d 891, 897 (3d Cir. 1998) (citing U.S. Dep’t of Defense et al. v. Federal Labor Relations Auth., 510 U.S. 487, 495–496 (1994))