September 3, 2025
SENT BY E-MAIL
XXXX
Re: 2025-APP-00015 (Appeal of Response 2025-FOI-190)
Dear XXXX:
On April 25, 2025, you submitted a Freedom of Information Act (FOIA) request (2025-FOI-190) to the National Credit Union Administration (NCUA). You requested "e-mails sent to [NCUA board members] Todd Harper and Tanya Otsuka dated April 16 regarding the job elimination from the executive branch (White House or [OMB] e-mail)..."
By letter of July 17, 2025, the NCUA FOIA Processing Center (FOIA Office) granted your FOIA request in part. Two (2) pages representing all records responsive to your request were provided to you, with partial redactions to certain information pursuant to the FOIA exemption at 5 U.S.C. §552 (b)(6) (Exemption 6). The FOIA Office explained that Exemption 6 protects information about individuals in personnel and medical files, or similar files, when the disclosure of such information would constitute a clearly unwarranted invasion of personal privacy. The FOIA Office also explained that, in determining whether to withhold information, the NCUA determined that the harm from disclosure is reasonably foreseeable.1
You appealed this determination in an August 7, 2025, correspondence. In your appeal, you contend that the NCUA's redactions pursuant to Exemption 6 were improperly applied. You argue that the public interest in understanding who was exercising executive power on behalf of the President to terminate two NCUA board members outweighs the personal privacy interests of the government official who carried out the presidential directive.
Upon a full and independent review, your appeal is granted in part, as discussed more fully below.
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.2 Determining whether information warrants protection under Exemption 6 requires a four-step analysis. First, determine whether the information is a personnel, medical, or "similar" file.3 Second, determine whether there is a significant privacy interest in the requested information.4 Third, evaluate the requester's asserted FOIA public interest in disclosure.5 Fourth, if there is a significant privacy interest in non-disclosure and a FOIA public interest in disclosure, balance those competing interests to determine whether disclosure "would constitute a clearly unwarranted invasion of personal privacy."6
Exemption 6 is interpreted broadly, and all information that "applies to a particular individual" meets the threshold requirement of falling within the category of "personnel and medical files and similar files" to warrant protection under Exemption 6.7 Here, the threshold requirement is satisfied. The requested records include personally identifying information (PII) that applies to government employees. PII, including names and e-mail addresses, has been found to implicate a substantial privacy interest cognizable under the FOIA.8
Since a substantial privacy interest may be infringed by the disclosure of the requested PII, the next steps of the analysis require an assessment of the asserted public interest followed by a "balancing of the public interest served by disclosure against the harm resulting from the invasion of privacy."9 When the disclosure of requested information could result in the invasion of personal privacy, the burden is on the requester to establish that disclosure would serve a public interest.10 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."11
In your appeal you argue that there is a "profound public interest in understanding who is exercising executive power," and the requested information is crucial for public oversight. You assert that that the public's interest in knowing who communicated the terminations to NCUA board members Todd Harper and Tanya Otsuka "decisively outweighs" the personal privacy interests of the White House official who sent the termination notices. You note that the terminations involved a high-level federal employee carrying out significant official duties on behalf of the President and the public has a compelling right to know their identity. As an analogous example, you point to a similar FOIA response concerning the removal of a Federal Trade Commission (FTC) official by similar means. An e-mail that was disclosed in that FOIA response did not contain redactions to the PII of the official that communicated the FTC official's removal, demonstrating that another agency did not shield such identifying information by invoking FOIA exemptions.12 You contend that because the personal privacy interest of the government official is outweighed by the public interest served by disclosing the requested information, the two pages of responsive records should be released in their entirety, without redactions.
Courts have found that "persons who have placed themselves in the public light, e.g., through politics, or voluntarily participate in the public arena have a significantly diminished privacy interest than others. "13 If the information sought relates to a government employee, "the level of responsibility held by [the] federal employee," as well as the activity involved, are appropriate considerations for determining the extent of the public's interest in knowing the identity of that employee.14 Generally, lower level officials are afforded a greater level of personal privacy interest than more senior officials.15 However, federal employees have a protectable privacy interest in purely personal details that do not shed light on government operations or activities. For example, courts have observed there is a "strong privacy interest in keeping federal employees' personal e-mail addresses private. "16
Further, the privacy interest in non-disclosure of identifying information may be diminished where the information is already in the public domain.17 Indeed, records normally exempt from disclosure under the FOIA "lose their protective cloak once disclosed and preserved in a permanent public record."18
Here, on balance, the personal privacy interest is outweighed by the public interest. The terminations were communicated to the NCUA board members by the "Deputy Director, Presidential Personnel," acting "on behalf of President Donald J. Trump," indicating that this federal employee is a senior official with a high-level of responsibility and, accordingly, a diminished personal privacy interest as compared to others. In addition, the exact information requested is already in the public domain. On April 28, 2025, the terminated NCUA board members filed a civil action in the U.S. District Court for the District of Columbia challenging their removals as unlawful and seeking reinstatement to their positions.19 Information identical to the records sought was presented as evidence in the lawsuit and is a matter of public record. Because the identification of the government official who communicated the terminations is already disclosed in the public domain and preserved in a permanent public record, Exemption 6 does not apply.
For these reasons, your FOIA appeal is granted in part. Two (2) pages of responsive records are being released to you largely without redactions. One remaining redaction, pursuant to Exemption 6, is appropriate to protect the personal e-mail address of a government official. Disclosure of the official's personal e-mail address would shed no light on the operations or activities of the government and would constitute a clearly unwarranted invasion of personal privacy. Although the personal e-mail address is available in the public domain, "[a]n individual's interest in controlling the dissemination of information regarding personal matters does not dissolve simply because that information may be available to the public in some form. "20 The public benefit from disclosure of the official's personal e-mail address is outweighed by the official's privacy interest. Thus, the remaining single redaction is affirmed.
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
2025-APP-00015; 2025-FOI-190
Footnotes
1 5 U.S.C. § 552(a)(8)(A)(i).
2 5 U.S.C. § 552(b)(6).
3 Id.
4 See Multi Ag Media LLC v. USDA, 515 F.3d 1224, 1229 (D.C. Cir. 2008).
5 See NARA v. Favish, 541 U.S. 157, 172 (2004).
6 5 U.S.C. §552(b)(6); see also Favish, 541 U.S. 157 at 172.
7 U.S. Dep't of State v. Washington Post Co., 456 U.S. 595, 602 (1982).
8 See, e.g., Wadhwa v. VA, 707 F. App'x 61, 63-64 (3d Cir. 2017) (protecting personally identifying information, including names, phone numbers, and e-mail addresses, concerning individuals involved in adjudication of discrimination complaints in absence of any FOIA public interest); Maryland v. VA, 130 F. Supp. 3d 342, 353 (D.D.C. 2015) (protecting identifying portions of e-mail addresses of individuals whose businesses were not selected for inclusion in small business database because public interest in such information was "practically nonexistent").
9 Int'l Bhd. of Elec. Workers Local Union No. 5 v. HUD, 852 F.2d 87, 89 (3d Cir. 1988).
10 See NARA v. Favish, 541 U.S. 157 (2004).
11 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)); see also Dep't of the Air Force v. Rose, 425 U.S. 352, 372 (1976) (noting information that serves the "basic purpose" of the FOIA to "open agency action to the light of public scrutiny" constitutes a FOIA public interest in disclosure).
12 The NCUA is not bound by another federal regulatory agency's FOIA determination. The NCUA's FOIA regulations are codified at 12 C.F.R. Part 792, Subpart A. Pursuant to these regulations, the NCUA's Freedom of Information Officer or designee is responsible for making an initial determination whether to grant or deny a request for information submitted under the FOIA. See 12 C.F.R. § 792.14. The authority to determine FOIA appeals rests with the NCUA's General Counsel or designee. See 12 C.F.R. § 792.28.
13 Rosenfeld v. U.S. Dep't of Justice, No. C-07-3240 EMC, 2012 WL 710186 at *5 (N.D. Cal. Mar. 5, 2012).
14 Stern v. Fed. Bureau of Investigation, 737 F.2d 84, 92 (D.C. Cir. 1984).
15 Forest Serv. Emps. for Envt'l Ethics v. U.S. Forest Serv., 524 F.3d 1021, 1025 (9th Cir. 2008) (quoting Dobronski v. Fed. Commc'ns Comm'n, 17 F.3d 275, 280 n.4 (9th Cir. 1994)).
16 Energy Pol'y Advocs. v. U.S. Dep't of the Interior, No. 21-1411, 2023 WL 2585761, at *5 (D.D.C. Mar. 21, 2023).
17 See Davis v. U.S. Dep't of Justice, 968 F.2d 1276 (D.C.Cir.1992); see also Citizens for Responsibility & Ethics in Wash. v. U.S. Dep't of Justice, No. 11-754(GK), 2012 WL 45499 at *6 (D.D.C. Jan. 10, 2012) ("One can have no privacy interest in information that is already in the public domain."); Hall v. U.S. Dep't of Justice, 552 F. Supp. 2d 23, 30-31 (D.D.C. 2008) ("The FOIA exemptions do not apply once the information is in the public domain").
18 O'Neill v. U.S. Dep't of Justice, No. 05-0306, 2007 WL 983143, at *9 (E.D. Wis. Mar. 26, 2007); see, e.g., Trentadue v. Integrity Comm., 501 F.3d 1215, 1234 (10th Cir. 2007) (ordering release of identifying information because a complaint filed and included in a record of appeal is a public document that "mentions the names of [the] individuals," and "[d]isclosure of these names, when [they] are already part of the public record, would not invade the [individuals'] privacy at all.").
19 See Harper, et al. v. Bessent, et al., 1:25-cv-01294, (D.D.C. Apr 28, 2025).
20 Fed. Labor Relations Auth., 510 U.S. 487, 500, 114 S.Ct. 1006, 1015 (1994); see also Sensor Sys. Support, Inc. v. FAA, 851 F. Supp. 2d 321, 335 (D.N.H. 2012); Barnard v. DHS, 598 F. Supp. 2d 1, 12 (D.D.C. 2009) (noting there is "a long line of cases recognizing that individuals maintain an interest in their privacy even where some information is known about them publicly.").