May 15, 2025
SENT BY E-MAIL
XXXX
Re: 2025-APP-00012 (Appeal of Response 2025-FOI-170)
Dear XXXX:
On April 1, 2025, you submitted a Freedom of Information Act (FOIA) request (2025-FOI-170) to the National Credit Union Administration (NCUA) for the following:
“All approved Agency RIF and Reorganization Plans (“ARRPs”) plans, or records reflecting such approved plans, following your agency’s submission of ARRPs to [the Office of Management and Budget (OMB)] and [the Office of Personnel Management (OPM)] for approval as required by OMB Director Vought and OPM Acting Director Ezell’s February 26, 2025 memorandum titled “Guidance on Agency RIF and Reorganization Plans Requested by Implementing The President’s ‘Department of Government Efficiency’ Workforce Optimization Initiative.”
By letter of April 10, 2025, the NCUA FOIA Processing Center (FOIA Office) denied your FOIA request in full. 46 pages responsive to your request were withheld in full pursuant to FOIA exemptions at 5 U.S.C. §§ 552(b)(2) (Exemption 2) and (b)(5) (Exemption 5). The FOIA Office explained that Exemption 2 protects from disclosure records that are related solely to the internal personnel rules and practices of an agency. Exemption 5 protects from disclosure inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than in litigation with the agency. The FOIA Office also explained that, in determining whether to withhold information, the NCUA determined that the harm from disclosure is reasonably foreseeable because the records are pre-decisional and pending review and approval.
You appealed this determination in an April 17, 2025, correspondence. In your appeal, you argue that Exemption 2 is inapplicable because the ARRPs concern a large-scale, government-wide reorganization and reduction in the size of federal agencies that goes far beyond individual personnel matters. You note that Exemption 2 relates “solely” to the internal personnel rules and practices of an agency, with an emphasis on the word “personnel.” Thus, Exemption 2 applies only where the matters are “exclusively” or “only” related to “personnel.” You contend that the ARRPs are of far greater significance as they concern a whole-of-government reorganization.
Additionally, you argue that, while you are willing to accept the exemption of any pre-decisional records, your request is for “approved” ARRP plans which are not pre-decisional and therefore should not be withheld pursuant to Exemption 5. Further, you contend that there is no foreseeable harm in the disclosure of approved ARRPs because they have been approved, and the agency has been “given the all clear to proceed with implementation.” You assert that disclosure of actions the agency has decided to take cannot plausibly harm or chill the agency’s deliberative process; thus, at a minimum there should be segregable nonexempt information that may be released.
After a full and independent review, your appeal is granted in part and denied in part. Enclosed are four additional pages of responsive records, comprising information relative to the NCUA’s Voluntary Separation Program that was approved by the NCUA Board on March 21, 2025. As discussed more fully below, your appeal is denied with respect to the portion of your request for the agency’s approved ARRPs.
Exemption 2
In your appeal, you contend that the NCUA’s use of Exemption 2 is “wholly inappropriate here” because the requested plans concern a government-wide reorganization and thus are not related solely to the agency’s personnel rules and practices.
Exemption 2 exempts from mandatory disclosure agency records that are “related solely to the internal personnel rules and practices of an agency.”1 Generally, there are three elements that must be satisfied for information to fit 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.”2
Under this three-part test, consistent with its plain meaning, the term “personnel” covers “‘the formulations of policies, procedures, and relations with [or involving] employees or their representatives,’”3 and records “dealing with employee relations or human resources,” which “concern the conditions of employment in federal agencies.”4 In applying the test’s second prong, the term “solely” is given its usual meaning of “exclusively or only.” 5 For purposes of the test’s third prong, the information must be “‘internal,’ meaning that ‘the agency must typically keep the records to itself for its own use.’”6
Withheld information responsive to your request consists of information that meets the three-part test described above. The withheld information is related to personnel rules and practices and relates exclusively to those personnel matters. While developed in response to a larger government-wide restructuring initiative, the withheld information addresses only the NCUA’s internal personnel rules and practices. It does not address the conditions of employment in the federal sector as a whole nor apply to any other federal agencies. The information is typically or ordinarily kept within the agency for internal agency use. Additionally, it is reasonably foreseeable that the full disclosure of the requested internal agency personnel records, which deal solely with internal personnel rules and practices, would cause harm to the agency’s employer-employee relationship and incumber frank and open communications between agency leadership and staff. Thus, considering these reasonably foreseeable harms, the requested records were properly withheld under Exemption 2.
Exemption 5
Your appeal challenges the NCUA’s reliance on the deliberative process privilege under Exemption 5 because the request is for “approved” ARRP plans which by definition are “not pre-decisional.” Further, you argue that there is no foreseeable harm to the agency’s deliberative process in disclosing approved plans that the agency “has been given the all clear to proceed with implementation.”
Exemption 5 incorporates the deliberative process privilege, the attorney-client privilege, and the attorney work product privilege. 7 The deliberative process privilege is generally intended to “prevent injury to the quality of agency decisions.” 8 The privilege protects “debate and candid consideration of alternatives,” thus improving agency decision making. 9 After all, “experience teaches that those who expect public dissemination of their remarks may well temper candor . . . to the detriment of the decision-making process.” 10 Records are protected as pre-decisional and deliberative where they are “antecedent to the adoption of an agency policy,” 11 and where they are “part of the deliberative process in that it makes recommendations or expresses opinions on legal or policy matters.”12
The records you requested are pre-decisional and deliberative and their full disclosure will harm the agency’s decision-making process. The responsive records are pending approval and antecedent to the adoption of final policy and procedure regarding the NCUA’s reduction in force and reorganization efforts. If disclosed, the requested records will hinder the free flow of ideas and open communication within the agency. Additionally, disclosure of the requested records will undermine public confidence by creating confusion about the agency’s policies and plans for reorganization or reduction in force because the records reflect potential policies and procedures under consideration by the NCUA but have not been approved for implementation by the NCUA Board. Given these reasonably foreseeable harms, the requested records were properly withheld under Exemption 5.
Reasonably Segregable
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.” 13 However, the NCUA is not required to disclose information “inextricably intertwined with exempt portions,” 14 and “need not disclose a redacted version of [a record] if the unredacted markings would have minimal or no information content.”15
The 46 pages of documents that were withheld are fully exempt under Exemption 2, Exemption 5, or both, or inextricably intertwined with exempt portions of the records. There are no reasonably segregable portions of the agency’s responsive records that can be disclosed without causing reasonably foreseeable harm to agency and staff relations, agency decision-making or public confidence. Accordingly, the requested ARRP was properly withheld as exempt pursuant to one or more FOIA exemptions.
Responsive Records
Upon review, in addition to the properly withheld 46 pages, four additional pages responsive to your request have been identified as “reflecting such approved [ARRP] plans” following the NCUA’s required submission of its ARRP to OMB and OPM. Four pages of responsive records are being released to you in full.
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 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-00012; 2025-FOI-170
Footnotes
1 5 U.S.C. § 552(b)(2).
2 See Milner v. U.S. Dep't of the Navy, 562 U.S. 562, 570 & n.4 (2011).
3 Id. at 569.
4 Id.
5 Id. at 570 n.4
6 Id.
7 Id.
8 NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151 (1975).
9 Jordan v. DOJ, 591 F.2d 753, 772 (D.C. Cir. 1978) (en banc).
10 Machado Amadis v. United States Dep't of State, 971 F.3d 364, 371 (D.C. Cir. 2020) (quoting Sears at 150–51 (quotation marks omitted)).
11 Ancient Coin Collectors Guild v. U.S. Dep't of State, 641 F.3d 504, 513 (D.C. Cir. 2011) (quoting Jordan v. DOJ, 591 F.2d 753, 774 (D.C. Cir. 1978) (en banc)); see also Adamowicz v. IRS, 672 F. Supp. 2d 454, 469 (S.D.N.Y. 2009) (protecting documents that “reflect the consultative process” underlying an agency’s decisions).
12 Vaughn v. Rosen, 523 F.2d 1136, 1143-44 (D.C. Cir. 1975).
13 5 U.S.C. § 552(a)(8)(A)(ii).
14 Mead Data Cent., Inc. v. United States Dep't of the Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977).
15 Perioperative Servs. & Logistics, LLC v. U.S. Dep’t of Veterans Affairs, 57 F.4th 1061, 1069 (D.C. Cir. 2023) (citing Mead Data Center, Inc. v. Dep’t of the Air Force, 566 F.2d 242, 261 n.55 (D.C. Cir. 1977)).