October 14, 2026
SENT BY EMAIL
XXXX
Re: 2026-APP-00011 (Appeal of Response 2026-FOIA-00014)
Dear XXXX:
On August 7, 2026, you submitted a Freedom of Information Act (FOIA) request (2026-FOIA-00014) to the National Credit Union Administration (NCUA). You requested “all documents for a harassment complaint in which I was the subject of…all intake forms, interviews, affidavits, management correspondence, OGC input, and final NCUA decision,” for the period from 2/1/2026 to 12/31/2026. Because you requested records that are maintained as part of NCUA Privacy Act System of Records NCUA-28, Anti-Harassment Case Tracking and Records (NCUA-28), NCUA processed your request under the Privacy Act of 1974 (5 U.S.C. § 552a), as well as the FOIA (5 U.S.C. § 552).
In a response dated September 8, 2026, the NCUA FOIA Processing Center (FOIA Office) denied your request in full. Information was withheld pursuant to Privacy Act (PA) exemptions 5 U.S.C. §§ 552a(d)(5) (Exemption (d)(5)) and (k)(2) (Exemption (k)(2)), and FOIA exemptions 5 U.S.C. §§ 552(b)(2) (Exemption 2), (b)(5) (Exemption 5), and (b)(6) (Exemption 6).
The FOIA Office explained Exemption (d)(5) and Exemption (k)(2) exempt access to information compiled in anticipation of civil litigation and information compiled for agency investigative purposes, respectively. Exemption 2 protects from disclosure records that are related solely to the internal personnel rules and practices of an agency. Exemption 5 protects privileged inter-agency or intra-agency information, including information protected by the deliberative process, attorney-work product, and/or attorney-client privileges. 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, NCUA determined that the harm from disclosure is reasonably foreseeable.
You appealed this determination in a correspondence received on September 15, 2026. In your appeal, you ask that NCUA conduct a new review of the requested records.
Upon a full and independent review, your appeal is denied, as discussed more fully below.
PA Exemption (d)(5)
In your appeal, you argue that the fact that records were generated during an internal workplace investigation does not, by itself, establish that every record was compiled in reasonable anticipation of a civil action or proceeding. You request that NCUA identify the factual basis for applying Exemption (d)(5) to the withheld records, including what civil action or proceeding is reasonably anticipated and when that civil action or proceeding is anticipated.
Under Exemption (d)(5), information compiled in anticipation of civil litigation is exempt from the PA’s general access provisions. The exemption allows agencies to withhold information that is compiled in anticipation of court proceedings or quasi-judicial administrative hearings1. Documents prepared in connection with litigation to which the agency is a potential party or a potential material participant are also exempt.2
The harassment complaint records you requested meet these standards. The requested records were all compiled in reasonable anticipation of a civil or administrative proceeding such as a civil lawsuit, any Equal Employment Opportunity (EEO) complaint or adjudication,3 negotiated or administrative grievance, Merit Systems Protection Board (MSPB) appeal, or other statutory grievance procedure. Your initial request states you have filed a formal EEO complaint contending that the harassment complaint against you was retaliatory. NCUA may be a potential party or participant in that EEO process, or any subsequent litigation. For these reasons, Exemption (d)(5) is applicable.
PA Exemption (k)(2)
In your appeal, you acknowledge the requested records are maintained as part of an NCUA Privacy Act System of Records, and NCUA-28 is exempted from the PA access provisions. However, you note that Exemption (k)(2) contains an exception. You request that NCUA explain why the requested records qualify for withholding under Exemption (k)(2), and whether the exception applies.
Exemption (k)(2) allows agencies to promulgate rules to exempt any system of records from the PA access provisions if the system of records is for investigatory material compiled for law enforcement purposes.4 Material compiled for the purpose of investigating agency employees for suspected violations of law can fall within Exemption (k)(2).5 However, “[t]o the extent that such an investigatory record is used as a basis for denying an individual any right, privilege, or benefit to which the individual would be entitled in the absence of that record, the individual must be granted access to that record except to the extent that access would reveal the identity of a confidential source.”6
NCUA has promulgated regulations at 12 CFR part 792 to exempt NCUA–28 from the PA access provisions in accordance with subsection (k)(2).7 NCUA–28 contains information collected by NCUA to assist the agency with conducting internal investigations into allegations of harassment brought by current NCUA employees and NCUA contractors and taking appropriate action(s) to address such allegations. Because of the investigatory nature of information that is maintained in this system of records, NCUA determined an exemption for NCUA–28 is necessary for the agency to continue to investigate alleged violations of law, regulation, and NCUA policy and also to determine continued suitability for federal employment.
You have not asserted you have been denied any right, privilege, or benefit, nor do you contend that NCUA’s maintenance of the requested investigatory record is the basis for denying any right, privilege, or benefit to which you are entitled. The requested records do not qualify for the exception to Exemption (k)(2); therefore, the requested investigatory materials are properly withheld.
FOIA Exemption 2
You argue in your appeal that records containing factual information concerning the allegations against you, investigative findings, or the disposition of the complaint, are distinguishable from genuinely internal rules or practices. You ask that NCUA explain how the withheld records fall within Exemption 2.
Exemption 2 exempts from mandatory disclosure agency records that are “related solely to the internal personnel rules and practices of an agency.”8 Three elements must be satisfied for information to fit within Exemption 2: (1) the information must be related to “personnel” rules and practices; (2) the information must relate “solely” to those personnel rules and practices; and (3) the information must be “internal.”9
Under the first prong of this three-part test, “personnel” encompasses, for example, “‘the selection, placement, and training of employees and . . . the formulations of policies, procedures, and relations with [or involving] employees or their representatives,’”10 as well as rules “dealing with employee relations or human resources,” which “concern the conditions of employment in federal agencies—such matters as hiring and firing, work rules and discipline, compensation and benefits.”11 For purposes of the test’s second prong, the term “solely” is given its “usual” meaning of “exclusively or only.”12 Under the third prong, the information must be “‘internal,’ meaning that ‘the agency must typically keep the records to itself for its own use.’”13 Courts have treated “agency procedures for the conduct of sexual harassment investigations” as predominantly “internal” for purposes of Exemption 2.14
The records you requested consist of information that meets this three-part test. The requested records are related to employee relations and human resource matters, the conditions of employment, and work rules and potential discipline. The records relate exclusively to those personnel matters. Per agency instruction, the NCUA Process for Harassment Reports is internal.15 Accordingly, the use of Exemption 2 is affirmed.
FOIA Exemption 5
While you recognize that privileged legal advice and protected deliberative material may be exempt from disclosure, you argue that not all factual material contained in an investigative file is privileged. You request that NCUA distinguish between protected legal advice or deliberative communications and underlying factual material, investigative records, witness statements, factual findings, and other non-privileged information.
Exemption 5 incorporates the privileges available to a governmental agency in civil litigation, notably the deliberative process privilege, the attorney-client privilege, and the attorney work product privilege.16 The deliberative process privilege is generally intended to “prevent injury to the quality of agency decisions.”17 To qualify for the deliberative process privilege, an agency must show that the documents are both “pre-decisional” and “deliberative.” Records are pre-decisional when they precede an agency decision and are prepared in order to assist an agency in arriving at its decision, and documents are deliberative when they comprise part of the process by which government decisions are made.18 Records are protected under Exemption 5 where they “reflect the consultative process” underlying an agency’s decisions.19
The requested records are pre-decisional and deliberative and disclosure will harm the agency’s decision-making process. The requested records are pre-decisional insofar as they are prepared to assist NCUA in its investigation of harassment allegations and to determine whether corrective action must be taken. The requested reports are deliberative insofar as they reflect the consultative process in the course of the agency’s internal review of a harassment allegation.
Disclosure of the requested records will discourage the openness and frankness necessary for a full and thorough administrative inquiry of reports of harassing behavior. Courts have observed that “experience teaches that those who expect public dissemination of their remarks may well temper candor” to the detriment of agency decision-making.20 Given the particular importance of candor in the investigation and review of sensitive harassment allegations, internal agency instruction provides that information collected pursuant to NCUA’s policy on preventing harassment will be kept confidential, to the greatest extent possible, in accordance with applicable law and a thorough and fair process.21 Agency instruction also dictates that confidential information collected pursuant to the anti-harassment complaint process will generally only be shared with individuals who have an official need to know due to the nature of the allegations, or to third parties as required by law or regulation.22 Maintaining such confidentiality to the greatest extent possible is essential for ensuring confidence, trust, and candid participation in the NCUA’s anti-harassment process. Disclosure of the requested records will have a harmful chilling effect on the agency’s deliberative process by inhibiting the candor and transparency of those reporting or providing evidence of harassment, witnesses, and other participants involved in anti-harassment investigations and inquiries.23 In light of these reasonably foreseeable harms, the requested records are properly withheld pursuant to Exemption 5.
FOIA Exemption 6
While acknowledging that NCUA may need to protect the privacy of other employees, witnesses, complainants, or other individuals, you ask the agency to consider whether any records can be partially released with personally identifiable information redacted.
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.”24 Exemption 6 has been interpreted broadly, such that 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 6.25 Courts have specifically noted that “the disclosure of the names of witnesses, plaintiff's co-workers, investigators, and other personnel mentioned in the reports of investigations, who have thus been implicated — directly or indirectly — in [workplace harassment] charges, would be extremely invasive of a well-recognized privacy interest.26 Here, the requested records contain personally identifiable information about particular witnesses, co-workers, investigators, and other agency personnel and thus qualifies for withholding under Exemption 6.
Reasonable Segregability
Even if some portions of the requested records are determined to be exempt, you ask the agency to release all reasonably segregable non-exempt information.
If an agency determines that it cannot or should not make full disclosure of a requested record, the FOIA calls for agencies to “consider whether partial disclosure of information is possible” and “take reasonable steps necessary to segregate and release nonexempt information.”27 However, NCUA is not required to disclose information “inextricably intertwined with exempt portions,”28 and “need not disclose a redacted version of [a record] if the unredacted markings would have minimal or no information content.”29
The requested records that were withheld are fully exempt under one or more of Exemptions 2, 5, or 6, or inextricably intertwined with exempt portions of the records. There are no reasonably segregable portions of the agency’s responsive records that can be disclosed without causing reasonably foreseeable harm to employer-employee relations, agency decision-making and public confidence, agency relations with supervised entities, or cause a clearly unwarranted invasion of personal privacy. Accordingly, the requested information is properly withheld as fully exempt pursuant to one or more FOIA exemptions.
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://www.archives.gov/ogis
Telephone: 202.741.5770; Toll-free: 877.684.6448
Fax: 202.741.5769
Sincerely,
/s/
Frank Kressman
General Counsel
OGC/PY
3212/3226
2026-APP-00011; 2026-FOIA-00014
Footnotes
1 See 120 Cong. Rec. at 36,959-60, reprinted in Source Book, at 936-38. See e.g., Lewis v. U.S. Dep’t of Labor, 419 F.3d 970, 977 and n. 9 (9th Cir. 2005) (documents prepared in connection with anticipated civil litigation recognized as exempt); Martin v. Office of Special Counsel, MSPB, 819 F.2d 1181, 1188-89 (D.C. Cir. 1987) (finding that administrative proceeding before MSPB is quasi-judicial and documents prepared in anticipation of administrative hearing were properly withheld).
2 Davidson v. United States, 264 F. Supp. 3d 97, 111 (D.D.C. 2017), aff’d sub nom. Davidson v. Dep’t of State, 728 F. App’x 7 (D.C. Cir. 2018) (exemption “unquestionably” protects from disclosure “documents prepared for actions in the district courts,” “documents prepared for quasi-judicial administrative proceedings,” and “documents prepared in connection with litigation to which the agency is a potential party or a potential material participant”) (internal citations omitted).
3 See 29 C.F.R. Part 1614.
4 5 U.S.C. 552a(k)(2).
5 See Strang v. U.S. Arms Control & Disarmament Agency, 864 F.2d 859, 862-63 n.2 (D.C. Cir. 1989) (records involving an existing agency employee investigated for violating national security regulations); Croskey v. Office of Special Counsel, 9 F. Supp. 2d 8, 11 (D.D.C. 1998) (finding an investigation report developed to determine whether plaintiff had been fired for legitimate or retaliatory reasons was exempt pursuant to (k)(2)); Mittleman v. Treasury, 919 F. Supp. 461, 469 (D.D.C. 1995) (finding that Inspector General’s report “pertain[ing] to plaintiff’s grievance against Treasury officials and related matters . . . falls squarely within the reach of exemption (k)(2)”).
6 40 Fed. Reg. 28948, 28,973 (July 9, 1975), https://www.justice.gov/paoverview_omb-75.
7 91 Fed. Reg. 1072, 1073 (January 12, 2026) (“Access to records contained in this system would inform the subject of an actual or potential investigation, of the existence of that investigation, of the nature and scope of the investigation, of the information and evidence obtained as to their activities, and of the identity of witnesses. Such access would impede an investigator’s ability to freely investigate such cases, including concerns that some witnesses have been promised confidentiality and would not want their statements provided to the subject of the investigation.”).
8 5 U.S.C. § 552(b)(2).
9 See Milner v. U.S. Dep't of the Navy, 562 U.S. 562, 570 & n.4 (2011).
10 Id. at 569.
11 Id.
12 Id. at 570 n.4
13 Id.
14 Sinsheimer v. DHS, 437 F. Supp. 2d 50, 56 (D.D.C. 2006).
15 NCUA Instruction 1235.08 (Rev. 2), Prevention of Harassment in the Workplace (Jan. 22, 2026).
16 5 U.S.C. § 552(b)(5).
17 NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151 (1975).
18 See Phillips v. Immigration and Customs Enforcement, 385 F. Supp. 2d 296 (S.D. N.Y. 2005).
19 Adamowicz v. IRS, 672 F. Supp. 2d 454, 469 (S.D.N.Y. 2009).
20 Machado Amadis v. United States Dep't of State, 971 F.3d 364, 371 (D.C. Cir. 2020) (quoting Sears at 150–51 (quotation marks omitted)).
21 NCUA Instruction 1235.08 (Rev. 2).
22 Id.
23 Sinsheimer at 56 (“Disclosure of [witnesses' names and details of their factual statements about the [harassment] charges] would not significantly advance the public knowledge of government operations. More importantly, there is a very real public interest in encouraging cooperation and participation of agency employees in investigations of civil rights violations. The disclosure of their identifying information under FOIA would discourage that participation.”).
24 5 U.S.C. § 552(b)(6).
25 U.S. Dep’t of State v. Washington Post Co., 456 U.S. 595, 602 (1982).
26 Sinsheimer at 56.
27 5 U.S.C. § 552(a)(8)(A)(ii).
28 Mead Data Cent., Inc. v. United States Dep't of the Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977).
29 Perioperative Servs. & Logistics, LLC v. U.S. Dep’t of Veterans Affairs, 57 F.4th 1061, 1069 (D.C. Cir. 2023) (citing Mead Data Center, Inc. v. Dep’t of the Air Force, 566 F.2d 242, 261 n.55 (D.C. Cir. 1977)).