January 28, 2025
SENT BY E-MAIL
XXXX
Re: 2025-APP-00005 (Appeal of Response 2025-FOIA-00003); 2025-APP-00006 (Appeal of Response 2025-FOIA-00004); 2025-APP-00007 (Appeal of Response 2025-FOIA-00005); 2025-APP-00008 (Appeal of Response 2025-FOIA-00006)
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 235472 filed on July 8, 2024, against XXXX Federal Credit Union, XXXX, XXXX, XXXX. This complaint alleged violations of the Fair Credit Reporting Act (FCRA).
On December 6, 2024, you submitted a FOIA request (2025-FOIA-00004) for all records and information pertaining to the NCUA’s investigation and subsequent determination regarding your complaint number 236020 filed on July 19, 2024, against XXXX Federal Credit Union. This complaint alleged violations of the FCRA, retaliation, and failure to investigate cybersecurity risk.
On December 6, 2024, you submitted a FOIA request (2025-FOIA-00005) for all records and information pertaining to the NCUA’s investigation and subsequent determination regarding your complaint number 236257 filed on July 25, 2024, against XXXX Federal Credit Union. This complaint alleged violations of the FCRA, retaliation, and failure to investigate FCRA disputes.
On December 6, 2024, you also submitted a FOIA request (2025-FOIA-00006) for all records and information pertaining to the NCUA’s investigation and subsequent determination regarding your complaint number 239587 filed on October 5, 2024, against XXXX Federal Credit Union. This complaint alleged violations of the FCRA, retaliation, and extortion.
Your requests 2025-FOIA-00003, 2025-FOIA-00004, 2025-FOIA-00005, and 2025-FOIA-00006 (collectively, Initial FOIA Requests), asked for responsive records including 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 Initial FOIA Requests. On December 12, 2024, your requests for expedited processing of your Initial FOIA Requests were denied. On the same date, you appealed the denials of your requests for expedited processing of your Initial FOIA Requests. After an independent review, your appeals were denied on January 13, 2025, and you were notified that your Initial FOIA Requests would continue to be processed in normal course. See 2025-APP-00001, 2025-APP-00002, 2025-APP-00003, and 2025-APP-00004.
On January 22, 2025, your Initial FOIA Requests were granted in part. Responsive records were sent to you, with redactions pursuant to FOIA exemptions 5 U.S.C. §§552 (b)(2), (b)(4), (b)(5), (b)(6), and (b)(8).
On January 22, 2025, you appealed the partial denials of your Initial FOIA Requests in a single email correspondence. You also requested expedited processing of your appeals 2025-APP-00005, 2025-APP-00006, 2025-APP-00007, and 2025-APP-00008 (collectively, Request for Expedited Appeals). Because you have combined your appeals jointly in a single filing, this letter responds to your Request for Expedited Appeals collectively.
Your notice of appeal and Request for Expedited Appeals asks for expedited processing of your appeals 2025-APP-00005, 2025-APP-00006, 2025-APP-00007, and 2025-APP-00008 “given the significant public interest in the timely disclosure of this information.” In a follow-up email received on January 23, 2025, you indicated that “the expedited processing requests were made on the grounds that there is an urgent need for the public to know about government/NCUA activity and regulatory capture.”
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
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.5 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.6 Thus, Congress intended the compelling need test to be narrowly construed.7
You have failed to demonstrate that a compelling need exists that would warrant expedited processing of your pending FOIA appeals. You have neither asserted nor demonstrated that there is an imminent threat to the life or physical safety of an individual. Further, you have neither asserted nor 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.8 “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 You have not demonstrated that you are a person primarily engaged in information dissemination. Thus, it is not necessary to move to the second element of this prong of the compelling need test to determine if you have shown there is urgency to inform the public concerning actual or alleged NCUA or federal government activity.
Even if we were to consider the second element, your argument that the expedited processing of your request is warranted because “there is an urgent need for the public to know about government/NCUA activity and regulatory capture,” is unpersuasive. Courts have set out several factors to consider in determining if the “urgency to inform” standard is satisfied.13 These factors include whether the request concerns a matter of exigency to the American public; the consequences of delaying a response would compromise a significant recognized interest; and the request concerns a federal government activity.”14 Additionally, the credibility of the requester’s allegations regarding governmental activity may be considered. The legislative history of the FOIA explains that “[t]he credibility of a requestor who makes repeated claims for expedited processing that are determined to lack factual foundation may be taken into account when the same requestor makes additional requests.”15 Further, 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.16 For example, the court in one case found that by demonstrating public interest in only the general topic as an umbrella issue rather than the specific subject of its requests, the requester failed to demonstrate an urgency to inform.17 Another court rejected the notion that a matter is of public interest or 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.”18 Your generalized assertion of an “urgent need for the public to know about government/NCUA activity and regulatory capture” falls short of the urgency to inform standard.
For these reasons, your Request for Expedited Appeals is denied and your FOIA appeals, 2025-APP-00005, 2025-APP-00006, 2025-APP-00007, and 2025-APP-00008, will continue to be processed in normal course. The targeted response date for your appeals is by February 20, 2025.19
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-00005; 2025-APP-00006; 2025-APP-00007; 2025-APP-00008
Footnotes
1 5 U.S.C. §552(a)(6)(E)(i). Requests for expedited processing which an agency grants are to be processed “as soon as practicable.” 5 U.S.C. §552(a)(6)(E)(iii).
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 Open America v. Watergate Special Prosecution Force, 547 F.2d 605, 614-16 (D.C. Cir. 1976); see also 12 C.F.R. §792.18(c) (“The Information Center will normally process requests in the order they are received in the separate processing tracks. However, in NCUA's discretion, a particular request may be processed out of turn.”).
6 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 requestors 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].”).
7 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)).
8 We note that in your previous requests for expedited processing of your Initial FOIA Requests and your previous appeals of the denials of your requests for expedited processing of your Initial FOIA Requests (2025-APP-00003, 2025-APP-00004, 2025-APP-00005, 2025-APP-0006), you contended that you are member of the American Civil Liberties Union (ACLU) and an academic researcher with a demonstrated history of public engagement who is actively involved in disseminating information. In our responses to those appeals, however, we determined that 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.
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 Al-Fayed v. CIA, 254 F.3d 300, 310 (D.C. Cir. 2001).
14 Id. (citing H.R. Rep. No. 104-795, at 26 (1996)).
15 H.R. Rep. No. 104-795, supra, at 26.
16 See Landmark Legal Found. v. EPA, 910 F. Supp. 2d 270, 277 (D.D.C. 2012); see also Tripp v. DOD, 193 F. Supp. 2d 229, 241 (D.D.C. 2002) (finding that the requester’s “job application . . . and the resulting alleged Privacy Act violations by DOD are not the subject of any breaking news story.”).
17 Elec. Priv. Info. Ctr. v. DOD, 355 F. Supp. 2d 98, 101-102 (D.D.C. 2004) (determining that a requester had “failed to present the agency with evidence that there is a ‘substantial interest’ in the ‘particular aspect’ of [its] FOIA request,” finding that, “[t]he fact that [the requester] has provided evidence that there is some media interest in [the subject matter] as an umbrella issue does not satisfy the requirement that [it] demonstrate interest in the specific subject of [its] FOIA request.”); see also OIP Guidance: FOIA Counselor Q&A (posted Jan. 24, 2006; updated December 19, 2024) (noting that the “term ‘umbrella issue’ . . . refers to the logical distinction between the public interest that can exist in an overall subject that relates to a FOIA request (e.g., some matter of significant, perhaps even controversial, agency activity) and the public interest that might or might not be served by disclosure of the actual records that are at hand in that particular FOIA request.”).
18 Landmark Legal Found. v. EPA, 910 F. Supp. 2d 270, 277 (D.D.C. 2012).
19 See 12 C.F.R. §792.28.