December 22, 2025
SENT BY EMAIL
XXXX
Re: 2026-APP-00002 (Appeal of Response 2025-FOI-320)
Dear XXXX:
On August 20, 2025, you submitted a Freedom of Information Act (FOIA) request (2025-FOI-320) to the National Credit Union Administration (NCUA). You requested the following information for NCUA liquidations and conservatorships from 2009 to present:
- The CU number for each CU listed;
- The fiscal cost (that is, the dollar amount of losses) incurred by the NCUSIF for the resolution of each CU listed. If any of the CUs listed were merged without any costs, report as zero (so that I can distinguish between zero and missing data);
- For each conservatorship that was merged, the acquiring CU name and CU number; and
- For each liquidation that also involved a purchase & assumption agreement, the name and CU number of the CU that took over the deposits and selected assets of the liquidated CU. To enable the merger of this information with the information on the web site, please also include the CU name and the date as reported on that web site.
By letter of October 2, 2025, the NCUA FOIA Processing Center (FOIA Office) granted your FOIA request in part. An Excel spreadsheet with 266 entries was released to you with partial redactions. The FOIA Office explained that this represented all the information responsive to your request and information was redacted pursuant to the FOIA exemptions at 5 U.S.C. §552 (b)(4) (Exemption 4) and (b)(8) (Exemption 8). Exemption 4 protects from disclosure records related to trade secrets and other confidential business information. Exemption 8 protects from disclosure records relating to the examination of banks and other financial institutions by agencies that regulate or supervise them. 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 a correspondence received on November 21, 2025. Your appeal challenges the agency’s use of Exemption 4 and Exemption 8 to redact data regarding the fiscal cost incurred by the NCUSIF for the resolution of each credit union listed. Upon a full and independent review, your appeal is denied, as discussed more fully below.
Other Agency Disclosures
In support of your appeal, you argue that other government agencies that perform similar functions to the NCUA but for banks and other financial institutions have publicly disclosed similar data and have not suffered harm from disclosure. As one example, you point to the Federal Deposit Insurance Corporation (FDIC), which “performs functions that are virtually the same as the NCUA,” and has long provided data on resolution costs for failed banks. You also note that you were provided with cost data in response to a similar FOIA request you made to the FDIC in 2022.
However, the notion that FOIA exemptions do not apply because another agency discloses similar information is unconvincing. Agencies generally have discretion to decide whether to invoke applicable FOIA exemptions.2 The FOIA’s exemptions are discretionary, not mandatory.3 As courts have observed, the statutory exemptions “simply permit but do not require, an agency to withhold exempted information.”4 Therefore, an agency’s decision whether to release information can “be grounded either in its view that none of the FOIA exemptions applies, and thus that disclosure is mandatory, or in its belief that release is justified in the exercise of its discretion, even though the data fall within one or more of the statutory exemptions.”5 As such, another agency’s disclosure of information comparable to the requested data is not dispositive here. And, in any case, the NCUA is not bound by another federal agency’s FOIA determination.6
Exemption 4
In your appeal, you assert that disclosure of a single loss figure for each failed credit union does not disclose trade secrets or confidential business information; therefore, Exemption 4 is not applicable.
Exemption 4 is intended to protect the interests of both the government and submitters of information.7 This exemption protects not only trade secrets and commercial or business information, but also “financial information” obtained from a person8 that is “privileged or confidential.”9 The term “confidential” is given its “ordinary” meaning of “private” or “secret.”10 Thus, “where commercial or financial information is both customarily and actually treated as private by its owner and provided to the government under an assurance of privacy, the information is ‘confidential’ within the meaning of Exemption 4.”11
Credit unions customarily and actually treat sensitive financial information as private or confidential information, and any financial data given during an examination or imparted to the agency in the course of its supervision was provided under an implied assurance of confidentiality.12 Indeed, credit unions’ confidential financial information is only in possession of the NCUA due to its regulatory and supervisory relationship with credit unions. Accordingly, the data you requested was properly redacted and withheld as exempt from FOIA release under Exemption 4.
Exemption 8
You also contend that Exemption 8 does not apply because the full release of the requested cost data would not disclose examination-related information for use in supervising or regulating financial institutions.
Exemption 8 provides for protection against release of information 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.13 Exemption 8 was intended by Congress, and has been interpreted by courts, to be “very broadly construed.”14 Courts have noted that “Congress has intentionally and unambiguously crafted a particularly broad, all-inclusive definition,” and “it is not [the courts’] function, even in the FOIA context, to subvert that effort.”15 The primary purpose for Exemption 8 is “to ensure the security of financial institutions by elimination of the risk that disclosure of examination, operation, and condition reports containing frank evaluations of the investigated [institutions] might undermine public confidence and cause unwarranted run on banks.”16 The secondary purpose is to safeguard the relationship between financial institutions and their supervising agencies.17 Generally, “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,’ are exempt.”18 Documents “related to” examination reports that “represent the foundation of the examination process, the findings of such an examination, or its follow-up” also fall within the exemption.19
The requested cost data meets this broad standard insofar as the data is related to records of credit unions’ financial condition and operations that are in the possession of the NCUA, a federal agency responsible for the regulation or supervision of financial institutions. The fact that a credit union has been placed into conservatorship or closed for liquidation does not, in itself, render the exemption inapplicable.20 Courts have held that even records pertaining to institutions that are no longer in operation are protected under Exemption 8 to serve the public policy of promoting “frank cooperation” between institution and agency officials.21 Accordingly, the use of Exemption 8 is also proper.
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
Email: 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
2026-APP-00002; 2025-FOI-320
Footnotes
1 5 U.S.C. § 552(a)(8)(A)(i).
2 See FOIA Update, Vol. VI, No. 3, at 3 (“OIP Guidance: Discretionary Disclosure and Exemption 4”).
3 See Chrysler Corp. v. Brown, 441 U.S. 281, 293(1979) (noting that “Congress did not design the FOIA exemptions to be mandatory bars to disclosure.”).
4 Bartholdi Cable Co. v. FCC, 114 F.3d 274, 282 (D.C. Cir. 1997).
5 CAN Fin. Corp. v. Donovan, 830 F.2d 1132, 1334 n. 1 (D.C. Cir. 1987).
6 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.
7 See Food Mktg. Inst. v. Argus Leader Media, 588 U.S. 427, 440 (2019). Pursuant to Executive Order 12600 (June 23, 1987) and 12 C.F.R. § 792.29, the FOIA Office conducted the submitter notice process for this FOIA/PA request.
8 The FOIA defines “person” as an “individual, partnership, corporation, association, or public or private organization other than an agency.” 5 U.S.C. § 551(2). A credit union is a “person” under the FOIA.
9 5 U.S.C. § 552(b)(4).
10 Food Marketing Institute v. Argus Leader Media, 139 S. Ct. 2356, 2363 (2019).
11 Id. at 2366.
12 See The FOIA Ombuds Blog, October 21, 2019 (“Department of Justice Releases New Guidance on FOIA Exemption 4”) (noting “an agency’s long history of treating financial information confidentially could create the implied assurance that similar financial information will also receive confidential treatment. Similarly, if agencies have a long history of publicly disseminating the information submitted, it would not be reasonable for a submitter to expect that its information would be held confidentially.”).
13 5 U.S.C. §552(b)(8).
14 Pentagon Fed. Credit Union v. Nat’l Credit Union Admin., No. 95-1475, 1996 U.S. Dist. LEXIS 22841, at *11 (E.D. Va. June 7, 1996).
15 Consumers Union of the U.S., Inc. v. Heimann, 589 F.2d 531, 533 (D.C. Cir. 1978).
16 James Madison Project v. Dep’t of the Treasury, 478 F. Supp. 3d 8, 14 (D.D.C. 2020) (internal citation omitted); see also McKinley v. FDIC, 744 F. Supp. 2d 128, 144 (D.D.C. 2010) (noting that the FDIC’s “ability to gather [information] in furtherance of its mission to regulate our nation’s banking system would inarguably be compromised” if information about a bank’s failure was released).
17 See Consumers Union, 589 F.2d at 534; see also Fagot v. FDIC, 584 F. Supp. 1168, 1173 (D.P.R. 1984) (recognizing Exemption 8’s secondary purpose “to provide banks and financial institutions supervised by the federal government sufficient assurance of confidentiality to promote full cooperation with the regulatory agencies”).
18 McCullough v. FDIC, No. 79-1132, 1980 U.S. Dist. LEXIS 17685, at **7-8 (D.D.C. July 28, 1980) (quoting legislative history).
19 Atkinson v. FDIC, No. 79-1113, 1980 WL 355660, at *2 (D.D.C. Feb. 13, 1980).
20 See Gregory v. FDIC, 631 F. 2d 896, 899 (D.C. Cir. 1980).
21 Id.; see also Berliner, Zisser, Walter & Gallegos v. SEC, 962 F. Supp. 1348, 1353 (D. Colo. 1997).