October 15, 2026
SENT BY EMAIL
XXXX
Re: 2026-APP-00012 (Appeal of Response 2026-FOI-169)
Dear XXXX:
On June 8, 2026, you submitted a Freedom of Information Act (FOIA) request (2026-FOI-169) to the National Credit Union Administration (NCUA). You requested the following records:
- XXXX — Application, HMDA, and Complaint Records
- All Consumer and Discrimination Complaints Received by NCUA Since January 20, 2025
- NCUA Merger and Acquisition Application Policy Records Since January 20, 2025
In an interim response dated August 4, 2026, the NCUA FOIA Processing Center (FOIA Office) granted your request in part. 32 pages of responsive records were released to you in full and 11 pages were withheld. Additionally, the FOIA Office provided you with two spreadsheets responsive to your request. Information was withheld pursuant to FOIA exemptions 5 U.S.C. §552 (b)(4), (b)(5), (b)(6), and (b)(8). The FOIA Office also notified you that additional records responsive to your request required consultation with another federal agency and would be addressed in a separate response letter once they had been reviewed.
The FOIA Office subsequently completed the processing of your request and sent you a final response on September 15, 2026, granting your request in part. Two pages were released to you in full, and two pages were released with partial redactions. 15 pages were withheld. These pages represented all records responsive to your request. The FOIA Office explained that information was withheld or redacted pursuant to FOIA exemptions 5 U.S.C. § 552 (b)(5) (Exemption 5) and (b)(6) (Exemption 6), and in determining whether to withhold information, NCUA determined that the harm from disclosure is reasonably foreseeable. 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.
You appealed this final response in a correspondence received on September 17, 2026. In your appeal, you contend the pages withheld under Exemption 5 warrant closer review for any segregable factual portions.
Upon a full and independent review, your appeal is denied, as discussed more fully below.
Exemption 5
Your appeal challenges the agency’s withholding, in their entirety, of 15 of 19 total pages under Exemption 5's deliberative process privilege. You suggest that contents of the released or partially released records show the withheld material concerns two proposed rules that include factual content. You argue that purely factual material is not properly withheld under Exemption 5, which protects deliberative recommendations and opinions, not the underlying facts and data an agency relies upon. You ask that any segregable factual content be released even where surrounding analysis or recommendations remain withheld.
Exemption 5 incorporates the deliberative process privilege, the attorney-client privilege, and the attorney work product privilege.1 The deliberative process privilege is generally intended to “prevent injury to the quality of agency decisions.”2 Specifically, three policy purposes typically constitute the bases for this privilege: (1) to encourage open, frank discussions on matters of policy between subordinates and superiors; (2) to protect against premature disclosure of proposed policies before they are finally adopted; and (3) to protect against public confusion that might result from disclosure of reasons and rationales that were not in fact ultimately the grounds for an agency's action.3 The privilege protects “debate and candid consideration of alternatives,” thus improving agency decision making.4 After all, “experience teaches that those who expect public dissemination of their remarks may well temper candor . . . to the detriment of the decision-making process.”5
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.6 Records are protected under Exemption 5 where they “reflect the consultative process” underlying an agency’s decisions.7 “Drafts” in particular are a category of documents more likely to be exempt under the deliberative process privilege.8 The very process by which a "draft" evolves into a "final" document can itself constitute a deliberative process warranting protection of the draft,9 regardless of whether the draft ultimately differs from its final version.10
The deliberative process privilege ordinarily is inapplicable to purely factual matters, or to factual portions of otherwise deliberative documents, which generally must be segregated out and released11 since such release usually would not risk chilling agency deliberations.12 This distinction between deliberative and factual materials can become blurred, however, where the facts themselves reflect the agency's deliberative process.13 Factual information may be withheld when it is so thoroughly integrated with deliberative material that its disclosure would expose or cause harm to the agency's deliberations. For example, if revealing factual information is tantamount to revealing the agency's deliberations, then the facts may be withheld.14 Similarly, an agency may withhold factual information if that factual material is so mixed in with deliberative material that it would not be possible to release meaningful portions of a document.15
The records you requested are pre-decisional and deliberative and disclosure will harm the agency’s decision-making process. Certain responsive records are in draft form and precede the agency’s final decision. Those records contain redline edits that reflect the agency’s deliberative process that, if fully disclosed, will hinder the free flow of ideas and open inter- and intra- agency communication and deliberations. Additionally, premature disclosure of a draft rulemaking before final adoption will create public confusion about the reasons and rationales for the agency’s action.
Furthermore, the requested records that were withheld are fully exempt or inextricably intertwined with exempt portions of the records.16 Based on a good-faith review, there are no reasonably segregable portions of the records that can be disclosed without causing reasonably foreseeable harm to NCUA’s deliberative process. Factual content, if any, is not releasable because it is so thoroughly integrated with deliberative material that its disclosure would expose or chill the agency's deliberations. For instance, the segregation and release of any supporting facts or statistics integrated with agency rationale for a draft proposed rule would expose the very changes and regulatory provisions being contemplated by NCUA. Here, revealing factual content contained in the responsive records is tantamount to revealing the agency’s deliberations. Accordingly, the records are properly withheld pursuant to Exemption 5.17
Prior Disclosures
In your appeal, you observe that portions of the redacted records were previously disclosed with the August 4 interim response without the redactions now applied to the same records. Specifically, you point to a correspondence between NCUA staff and OMB/OIRA staff regarding a proposed rule’s significance determination. You ask that NCUA reconcile this inconsistency and clarify the basis for withholding material previously disclosed without redaction.
As the FOIA Office explained in its August 4 interim response, additional records responsive to your request required consultation with another federal agency. More specifically, during its review, the FOIA Office identified records containing OMB equities which required consultation for OMB’s review and release determinations. That consultation resulted in differing release determinations by NCUA and OMB, respectively.
Agencies generally have individual discretion to decide whether to invoke applicable FOIA exemptions.18 The FOIA’s exemptions are discretionary, not mandatory.19 As courts have observed, the statutory exemptions “simply permit but do not require, an agency to withhold exempted information.”20 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.”21 In this case, notwithstanding NCUA’s own differing determination, the FOIA Office deferred to OMB’s release determination in its final response, as permitted under the FOIA.
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 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
SSIC: 3212
2026-APP-00012; 2026-FOI-169
Footnotes
1 5 U.S.C. § 552(b)(5).
2 NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151 (1975).
3 See, e.g., Russell v. Dep't of the Air Force, 682 F.2d 1045, 1048 (D.C. Cir. 1982); Coastal States Gas Corp. v. DOE, 617 F.2d 854, 866 (D.C. Cir. 1980); Jordan v. DOJ, 591 F.2d 753, 772¬ 73 (D.C. Cir. 1978) (en banc); Kidd v. DOJ, 362 F. Supp. 2d 291, 296 (D.D.C. 2005) (protecting documents on basis that disclosure would "inhibit drafters from freely exchanging ideas, language choice, and comments in drafting documents") (internal quotation marks omitted).
4 Jordan v. DOJ, 591 F.2d 753, 772 (D.C. Cir. 1978) (en banc).
5 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)).
6 See Phillips v. Immigration and Customs Enforcement, 385 F. Supp. 2d 296 (S.D. N.Y. 2005).
7 Adamowicz v. IRS, 672 F. Supp. 2d 454, 469 (S.D.N.Y. 2009).
8 See, e.g., Gerstein v. CIA, No. 06-4643, 2008 WL 4415080, at *16 (N.D. Cal. Sept. 26, 2008) (protecting draft letters); Donham v. U.S. Forest Service, No. 07-111, 2008 WL 2157167, at *5 (S.D. Ill. May 21, 2008) (finding draft documents to be "precisely the kind of documents that Exemption 5 and the deliberative process privilege seek to protect from disclosure").
9 See, e.g., Russell v. Dep't of the Air Force, 682 F.2d 1045, 1048 (D.C. Cir. 1982) ("Failure to apply the protections of Exemption (b)(5) to the . . . editorial review process would effectively make such discussion impossible."); Skull Valley Band of Goshute Indians v. Kempthorne, No. 04-339, 2007 WL 915211, at *14 (D.D.C. Mar. 26, 2007) (citing Russell and noting that “the drafting process is itself deliberative in nature").
10 See, e.g., Sussman v. DOJ, No. 03-3618, 2008 WL 2946006, at *4 (E.D.N.Y. July 29, 2008) (noting that release of draft policy document would allow public "to compare the draft and final versions of the policy"); Reliant Energy Power Generation, Inc. v. FERC, 520 F. Supp. 2d 194, 204 (D.D.C. 2007) (showing how draft differed from final document would expose agency's deliberative process).
11 See, e.g., EPA v. Mink, 410 U.S. 73, 91 (1973) (refusing to extend deliberative process privilege protection to "factual material otherwise available on discovery”); Unidad Latina en Acción v. DHS, 253 F.R.D. 44, 58 (D. Conn. 2008) (ordering release of "purely factual material").
12 See Montrose Chem. Corp. v. Train, 491 F.2d 63, 66 (D.C. Cir. 1974); Public Citizen v. Dep't of State, No. 91-746, 1991 WL 179116, at *4 (D.D.C. Aug. 27, 1991) (citing Montrose Chem. and noting that release of "purely factual matters" generally "would not threaten agency deliberations").
13 See, e.g., Nat'l Wildlife Fed'n v. U.S. Forest Serv., 861 F.2d 1114, 1118 (9th Cir. 1988) (rejecting simplistic fact/opinion distinction and instead focusing on whether documents play role in agency's deliberative process); Skelton v. USPS, 678 F.2d 35, 38-39 (5th Cir. 1982) (explaining that focus should be on whether release of documents would reveal agency's evaluative process).
14 See, e.g., Rein v. USPTO, 553 F.3d 353, 375 (4th Cir. 2009) (protecting factual portions of document that "would reveal the very predecisional and deliberative material Exemption 5 protects"); Horowitz v. Peace Corps, 428 F.3d 271, 277 (D.C. Cir. 2005) (protecting requested document where the decisionmaker’s "thought processes are woven into document to such an extent" that any attempt at segregating out information would reveal agency deliberations).
15 See, e.g., Hawkins v. U.S. Dep't of Labor, No. 3:05CV269J32, 2005 WL 2063811, at *3 (M.D. Fla. Aug. 19, 2005) (protecting factual portions of deliberative document that could not be "segregated in a meaningful way" from deliberative sections); Delta Ltd. v. U.S. Customs & Border Prot. Bureau, 384 F. Supp. 2d 138, 151-52 (D.D.C. 2005) (finding that factual portions of records were too closely mixed in with deliberative portions and therefore were not releasable).
16 See Mead Data Cent., Inc. v. United States Dep't of the Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977).
17 Because your appeal does not challenge the applicability of FOIA Exemption 6, discussion of this exemption is unnecessary. However, Exemption 6 remains applicable.
18 See FOIA Update, Vol. VI, No. 3, at 3 (“OIP Guidance: Discretionary Disclosure and Exemption 4”).
19 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.”).
20 Bartholdi Cable Co. v. FCC, 114 F.3d 274, 282 (D.C. Cir. 1997).
21 CAN Fin. Corp. v. Donovan, 830 F.2d 1132, 1334 n. 1 (D.C. Cir. 1987).