January 13, 2025
SENT BY E-MAIL
XXXX
Re: 2025-APP-00001; Appeal of Response 2025-FOIA-00003
Dear XXXX:
By correspondence dated December 6, 2024, you submitted a Freedom of Information Act (FOIA) request (2025-FOIA-00003) for all records and information pertaining to the NCUA's investigation and subsequent determination regarding your complaint number XXXX filed on July 8, 2024, against XXXX Federal Credit Union, XXXX, XXXX, XXXX. This complaint alleged violations of the Fair Credit Reporting Act (FCRA). Specifically, the records you requested include the complete investigative file; copies of internal NCUA policies, procedures, and guidelines governing the investigation and adjudication of consumer complaints; all records of communication between the NCUA and XXXX Federal Credit Union or its representatives regarding this investigation; and any records of prior complaints filed against XXXX Federal Credit Union with the NCUA, and any records of enforcement actions taken by the NCUA against XXXX Federal Credit Union in the past five years.
You requested expedited processing of your request, stating: “As an attorney representing myself in this matter, the information sought is necessary for the legal protection of my rights and interests. Disclosure of the requested information is in the public interest as it will shed light on the NCUA's enforcement of the FCRA and its handling of consumer complaints. I am confident that the release of these records will contribute significantly to public understanding of the NCUA's operations and potential systemic issues within the credit union industry.”
By correspondence of December 12, 2024, your request for expedited processing of FOIA request 2025-FOIA-00003 was denied. You were advised that the NCUA’s FOIA regulations, 12 C.F.R. § 792.18, state that you may request expedited processing of your request if you can show a compelling need for the records. To demonstrate a compelling need for expedited processing, you must provide a certified statement that demonstrates: (1) the failure to obtain the records on an expedited basis could reasonably be expected to pose an imminent threat to the life or physical safety of an individual or (2) that you are a representative of the news media and there is urgency to inform the public concerning actual or alleged NCUA activity. The NCUA evaluates requests for expedited processing on a case-by-case basis. You were also advised that, based upon this evaluation, your request for expedited processing was denied because the information you provided in your request fails to demonstrate that failure to obtain the records on an expedited basis could reasonably be expected to pose an imminent threat to the life or physical safety of an individual or that you are a representative of the news media and there is urgency to inform the public concerning actual or alleged NCUA activity.
In a December 12, 2024, email correspondence you appealed the denial of your request for expedited processing of FOIA request 2025-FOIA-00003. After an independent review, your appeal is denied, as discussed more fully below.
In your appeal, you contend that your request meets the criteria for expedited processing under 5 U.S.C. § 552(a)(6)(E)(v)(I) and 12 C.F.R. § 792.18, and that the denial was improper. You argue that your request falls under the criterion for expedited processing related to individuals primarily engaged in disseminating information, where the information sought concerns an urgent matter of public concern. In support of this contention, you note that you are an academic researcher with a demonstrated history of public engagement who is actively involved in disseminating information and contributing to public discourse. You also indicate you are a member of the American Civil Liberties Union (ACLU), and that the requested information is crucial to your research on fairness and transparency in financial institutions’ handling of consumer complaints, potential bias in the NCUA’s complaint resolution process, and a probe into regulatory capture. You argue that this research aims to shed light on matters of significant public concern, including ensuring accountability and fairness within the credit union system; identifying potential systemic issues that may impact consumer’ rights and financial well-being; and promoting transparency and trust in financial institutions.
You also argue that the expedited processing of your request is urgent because you face a “strict deadline of two weeks” on a pending appeal regarding the NCUA’s determination in your case number XXXX, and the requested information is essential to your ability to present a comprehensive appeal.
Standards for Expedited Processing
The FOIA requires agencies to establish regulations with procedures for expedited processing of requests where a requester demonstrates a “compelling need,” or in other cases determined by the agency.1 For purposes of the FOIA, a compelling need means that a failure to obtain the requested records on an expedited basis could reasonably be expected to pose an imminent threat to the life and physical safety of an individual; or if the request is made by a person primarily engaged in disseminating information, urgency to inform the public concerning actual or alleged federal government activity.2 Under the NCUA’s FOIA regulations, a compelling need means that the failure to obtain the records on an expedited basis could reasonably be expected to pose an imminent threat to the life or physical safety of an individual; or the requester is a representative of the news media, and there is urgency to inform the public concerning actual or alleged NCUA activity.3 A “representative of the news media” is defined as “any person actively gathering news for an entity that is organized and operated to publish or broadcast news to the public.”4 Under these narrow circumstances, courts have drawn a distinction between the general public interest in the overall subject matter of a FOIA request and the public interest that might be served by disclosure of the actual records sought.5
In evaluating a request for expedited processing, agencies must be mindful of the public interest in treating all FOIA requests equitably. Ordinarily, agencies aim to process FOIA requests equitably on a first-in, first-out basis.6 Because a decision to process a request out of turn necessarily delays the processing of other FOIA requests, overuse of the expedited process would unfairly disadvantage other requesters.7 Thus, the compelling need test is intended to be narrowly construed.8
You have failed to demonstrate that a compelling need exists that would warrant expedited processing of your FOIA request. You have not asserted that there is an imminent threat to the life or physical safety of an individual. While you contend that you are member of the ACLU and an academic researcher with a demonstrated history of public engagement who is actively involved in disseminating information, you have not demonstrated that you are a representative of the news media who is actively gathering news for an entity that is organized and operated to publish or broadcast news to the public.
Further, you do not qualify as a person primarily engaged in information dissemination. “Courts generally only find that a plaintiff is primarily engaged in information dissemination if information dissemination is the primary activity of the organization, to the exclusion of other main activities.”9 Indeed, courts have found that dissemination of information as “part of [a requester’s] mission,” is not sufficient to demonstrate that a requester is “primarily, and not just incidentally, engaged in information dissemination.”10 For example, one court refused to hold that the ACLU was engaged primarily in information dissemination despite that it sent a bi-monthly newsletter to 40,000 people, maintained a website, and issued right-to-know documents, press releases, brochures, and pamphlets on civil liberties.11 In another case, the court found that the requesters’ assertion that they “maintain websites that receive many visits, analyze public records [regarding law enforcement compliance], and will . . . widely publish and disseminate that information to the press and to the public” was “plainly insufficient” to establish that they are primarily engaged in information dissemination.12 Similarly, your contention that you are an academic researcher and member of the ACLU with a “demonstrated history of public engagement” who is “actively” involved in disseminating information fails to show that you are a person primarily, and not just incidentally, engaged in information dissemination.
Your argument that the expedited processing of your request is urgent because you face a deadline on a pending administrative appeal is also unpersuasive. While agencies are afforded discretion under the FOIA to establish by regulation additional standards for granting expedited processing, the NCUA has not adopted any other expedited processing standards beyond the two described above. Further, courts have found that generalized due process claims alleging a need for records in connection with a judicial or administrative proceeding is insufficient; rather, the due process interest must be critical to preserving a substantial right.13 An impending deadline in an administrative proceeding falls short of that standard.
For these reasons, your appeal is denied and your FOIA request will continue to be processed in normal course.
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-00001
Footnotes
1 5 U.S.C. §552(a)(6)(E)(i).
2 5 U.S.C. §552(a)(6)(E)(v)(I), (II).
3 12 C.F.R. §792.18(a)(1), (2).
4 12 C.F.R. §792.20(d).
5 See Landmark Legal Found. v. EPA, 910 F. Supp. 2d 270, 277 (D.D.C. 2012) (rejecting the notion that a matter is urgent merely because it is a subject of general public interest because “such a justification would likely sweep almost any FOIA request into the ambit of ‘urgency’ since FOIA requests are regularly designed to elicit information about how the government is performing its work.”).
6 See Open America v. Watergate Special Prosecution Force, 547 F.2d 605, 614-16 (D.C. Cir. 1976).
7 See Al-Fayed v. CIA, 254 F.3d 300, 310 (D.C.Cir.2001) (“unduly generous use of the expedited processing procedure would unfairly disadvantage other requesters who do not qualify for its treatment. Indeed, an unduly generous approach would also disadvantage those requestors who do qualify for expedition, because prioritizing all requests would effectively prioritize none.”); see also Mitsubishi Electric Corp. v. DOJ, 39 Ad. L. Rep.2d (P&F) 1133, 1140-42 (D.D.C. 1976) (noting that, if granted, expedited processing “will adversely impact upon the conflicting interests of numerous individuals whose requests and appeals were filed [earlier].”).
8 Id. at 310 (“‘the specified categories for compelling need are intended to be narrowly applied.’”) (quoting H.R.Rep. No. 104–795, at 26 (1996)).
9 Treatment Action Grp. v. FDA & Dep't of Health & Human Servs., No. 15-CV-976 (VAB), 2016 WL 5171987, at *7 (D. Conn. Sept. 20, 2016).
10 Landmark, 910 F. Supp. 2d at 276 (denying expedited processing where the requester stated that “as part of its mission as a tax-exempt, public interest law firm, [it] investigates, litigates, and publicizes instances of improper and/or illegal government activity” and that “[a]mong [its] primary activities is to disseminate to the public about the conduct of governmental agencies.”).
11 See Am. Civil Liberties Union of N. Cal. v. DOJ, No. 04-4447 PJH, 2005 WL 588354 (N.D.Cal. Mar. 11, 2005).
12 See Nat'l Day Laborer Org. Network v. ICE, 236 F. Supp. 3d 810, 817 (S.D.N.Y. 2017).
13 See NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 243 (1978) (noting the “FOIA was not intended to function as a discovery tool.”) (emphasis in original); see also Ferguson v. FBI, 722 F. Supp. 1137 (S.D.N.Y. 1989) (citing unpublished opinion in Rivera v. DEA, 2 GDS ¶ 81,365 at 81,953 (D.D.C. 1981) (“A pending civil suit does not generally qualify a FOIA demand for expedited processing.”)).