October 1, 2025
SENT BY E-MAIL
XXXX
Re: 2025-APP-00016 (Appeal of Response 2025-FOIA-00040)
Dear XXXX:
On August 22, 2025, you submitted a Freedom of Information Act (FOIA)/Privacy Act (PA) request (2025-FOIA-00040) to the National Credit Union Administration (NCUA). You requested records related to your whistleblower complaint(s) against XXXX Federal Credit Union (XXXX), particularly those that reflect XXXX's official response or characterization of you or your disclosures. Specifically, you requested the following:
- All documents, letters, memoranda, or position statements submitted to the NCUA by XXXX in response to any whistleblower complaints submitted by me, XXXX, between January 1, 2023, and July 1, 2025.
- Any emails, notes, or internal NCUA communications discussing or summarizing XXXX's responses, especially if XXXX impugned my character.
- Any investigative summaries, findings, or conclusions by NCUA staff reflecting how XXXX's response was weighed, verified, or used to close or dismiss my complaint(s).
- Any documents or communications in which NCUA staff refer to me by name (XXXX), or in which NCUA discusses my whistleblower complaint(s) in the context of XXXX's defense, rebuttal, or retaliation narrative.
By letter of September 11, 2025, the NCUA FOIA Processing Center (FOIA Office) notified you that the NCUA conducted a search and located no records responsive to your request.
You appealed this determination in a September 11, 2025, correspondence. In your appeal, you contend that it is not credible that your properly framed FOIA/PA requests1 resulted in the "implausible result," of no records found. You argue that, at a minimum, "there should exist case logs, intake records, or closure memoranda" relating to your whistleblower complaints and the "total absence of records" found "strongly suggests the search was inadequate or improperly confined."
Upon a full and independent review, your appeal is denied, as discussed more fully below.
Adequacy of Search for Responsive Records
In your notice of appeal, you question the adequacy of the agency's search for records responsive to your request. You contend that it is "highly improbable that no such records exist" and that a sufficiently comprehensive search "would yield absolutely nothing." You note that the September 11, 2025, response does not detail which agency offices were searched. Further, a PA request requires the NCUA to search all relevant "systems of records" containing information about you, but the September 11 response letter made no mention of any PA systems searched. You ask that the agency conduct a new search of all relevant divisions and systems of records; identify the agency custodians involved and systems searched; and provide a Vaughn index citing the applicable FOIA exemptions for any records withheld.
The FOIA generally provides a statutory right of public access to government information in executive branch agency records. An agency2 that receives a proper request for agency records must make the records promptly available, except to the extent that such records or any portions of such records are protected from public disclosure by one of nine exemptions.3 Information maintained by an agency4 constitutes an "agency record" under the FOIA when the records are created or obtained by an agency, and under agency control at the time of the FOIA request.5
When any person requests access to agency records, the FOIA requires the agency to look for records that are reasonably responsive to the request.6 The agency must make “‘a good-faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.’”7 Where the adequacy of a search is in question, "the focus of the adequacy inquiry is not on the results,"8 or “‘whether there might exist any [] documents possibly responsive to the request, but rather whether the search for those documents was adequate.’”9
Generally, an agency's search is deemed adequate when it is "reasonably calculated to uncover all relevant documents."10 Courts have found that "the adequacy of a FOIA search is generally determined not by the fruits of the search, but by the appropriateness of the methods used to carry out the search."11 For example, one court noted that "simply claiming that it is 'common sense' and 'commonplace knowledge' that records would likely exist is far from the specific evidence that is usually required to overcome an agency's representations" that no records were found.12 Indeed, "the reasonableness of a search is not measured against the scope dictated by a requester's search instructions."13 A requester in general "cannot dictate the search terms," and "[w]here the search terms are reasonably calculated to lead to responsive documents, a court should neither 'micromanage' nor second guess the agency's search."14
You requested information "submitted to the NCUA by XXXX in response to any whistleblower complaints submitted by me." You suggest that "XXXX, as a federally chartered and supervised institution, would have been expected to respond formally to whistleblower complaints," and, at minimum, "a whistleblower complaint necessarily generates a closure file, log entry, or internal memorandum." You argue that the absence of any responsive material found in the agency's search suggests either "records exist but were excluded from the search," or "the search was improperly limited."
However, credit unions are not generally required to report all whistleblower complaints to the NCUA.15 The whistleblower complaint information you requested is not generally obtained, maintained, and controlled by the NCUA as a matter of course. As the FOIA Office explained in an August 18, 2025, interim correspondence to you, the NCUA "does not own, operate, or control credit unions, nor do we establish their operating policies and procedures. Federal credit unions are independent member-owned cooperative organizations operating under policies and procedures approved by the credit union's board of directors." NCUA conducted an adequate search, and no responsive records were found.
For these reasons, your FOIA/PA 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 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-00016; 2025-FOIA-00040
Footnotes
1 You made a similar FOIA/PA request to the NCUA on July 17, 2025 (2025-FOIA-292) that was administratively closed on July 24, 2025.
2 The FOIA applies to agencies within the Executive Branch of the federal government, independent regulatory agencies, and some components within the Executive Office of the President. See 5 U.S.C. §552(f)(1). Amtrak is also subject to the FOIA by statute. See 49 U.S.C. § 24301(e).
3 5 U.S.C. §552.
4 5 U.S.C. §552(f)(2)(A).
5 See DOJ v. Tax Analysts, 492 U.S. 136, 144-45 (1989).
6 5 U.S.C. § 552(a)(3)(D).
7 Nation Mag. v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995) (quoting Oglesby v. U.S. Dep't of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990)).
8 Hornbostel v. U.S. Dep't of the Interior, 305 F. Supp. 2d 21, 28 (D.D.C. 2003), aff'd, No. 03-5257, 2004 WL 1900562 (D.C. Cir. Aug. 25, 2004).
9 Steinberg v. DOJ, 23 F.3d 548, 551 (D.C. Cir. 1994) (quoting Weisberg v. DOJ, 745 F.2d 1476, 1485 (D.C. Cir. 1984)).
10 Weisberg v. DOJ, 705 F.2d 1344, 1351 (D.C. Cir. 1983); see Miccosukee Tribe of Indians of Fla. v. United States, 516 F.3d 1235, 1247-48, 1257-58 (11th Cir. 2008) (reiterating an agency must show search was reasonably calculated to uncover all relevant documents, but rejecting notion that agency must provide testimony from each person involved in search).
11 Jennings v. DOJ, 230 F. App'x 1, 1 (D.C. Cir. 2007) (quoting Iturralde v. Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir. 2003)); see also Newman v. BOP, No. 20-3761, 2022 WL 1521797, at *5 (D.D.C. May 13, 2022) (noting "[t]he touchstone of [a search] inquiry is the reasonableness of the search, not the records produced.").
12 Am. Oversight v. DOJ, 401 F. Supp. 3d 16, 30-31 (D.D.C. 2019) (internal citation omitted).
13 McClanahan v. DOJ, 204 F. Supp. 3d 30, 44 (D.D.C. 2016) (quoting Mobley v. CIA, 806 F.3d 568, 582 (D.C. Cir. 2015)), aff 'd, 712 F. App'x 6 (D.C. Cir. 2018).
14 Bigwood v. DOD, 132 F. Supp. 3d 124, 140 (D.D.C. 2015) (quoting Agility Pub. Warehousing Co. v. NSA, 113 F. Supp. 3d 313, 339 (D.D.C. 2015)).
15 The Federal Credit Union Act, 12 U.S.C. §1790b, makes it unlawful to retaliate against a credit union employee who engages in certain protected whistleblower activity, but there is no requirement for a credit union to notify the NCUA of a whistleblower complaint. However, if a credit union employee has been discharged or discriminated against in violation of §1790b and files a civil action against the credit union for such discharge or discrimination, the complainant must also file a copy of the complaint initiating such action with the Board.