MCKINLEY v. FEDERAL DEPOSIT INSURANCE CORPORATION

Filing 28

MEMORANDUM OPINION. Signed by Judge Emmet G. Sullivan on August 8, 2011. (lcegs4)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
VERN MCKINLEY,
)
)
Plaintiff,
)
)
v.
)
Civ. Action No. 10-420 (EGS)
)
FEDERAL DEPOSIT INSURANCE
)
CORPORATION,
)
)
Defendant.
)
______________________________)
MEMORANDUM OPINION
Pending before the Court in this Freedom of Information Act
(“FOIA”) case are the parties’ cross-motions for summary
judgment.

The only remaining issue in this case is whether

defendant conducted adequate searches for records responsive to
plaintiff’s FOIA requests.

Upon consideration of the motions,

the responses and replies thereto, the applicable law, the
entire record, and for the reasons set forth below, defendant’s
motion for summary judgment is GRANTED, and plaintiff’s crossmotion for summary judgment is DENIED.
I.

BACKGROUND
Plaintiff Vern McKinley is a private citizen who works “as

an advisor to governments worldwide on financial sector policy
and legal issues.”

Compl. ¶ 3.

In December 2009, plaintiff

submitted three FOIA requests to the Federal Deposit Insurance
Corporation (“FDIC”) seeking information regarding its response

to the global financial crisis of 2008.

Specifically, plaintiff

sought records from the FDIC “regarding its October 2008
decision to create a ‘Temporary Liquidity Guarantee Program’ to
provide financial support to banks, thrift institutions, and
certain bank holding companies. . . . [and] regarding its
decisions in November 2008 and January 2009 to extend such
support to Citigroup, Inc. and Bank of America Corp.,
respectively.”

Pl.’s Cross-Mot. for Summary Judgment (“Pl.’s

Cross-Mot.”) at 1-2.
In each request, plaintiff referenced FDIC press releases
describing the FDIC’s actions on specific dates.

Def.’s Mot.

for Summary Judgment (“Def.’s Mot.”) Exs. 1, 3, 5.
Specifically, plaintiff requested information related to the
FDIC’s findings, under section 13(c) of the Federal Deposit
Insurance Act (“FDI Act”), 12 U.S.C. § 1823(c), that failure to
provide emergency assistance to financial institutions would
have “serious adverse effects on economic conditions or
financial stability.”

Def.’s Mot. Exs. 1, 3, 5.

Plaintiff

asked for “any information available on [these] determination[s]
such as meeting minutes [and/or] supporting memos.”

Def.’s Mot.

Exs. 1, 3, 5.
The FDIC did not respond to plaintiff’s requests within the
required time limits, and as a result plaintiff initiated this
lawsuit on March 15, 2010.

Pl.’s Cross-Mot. at 2.
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In his

complaint, plaintiff alleged that the FDIC violated the FOIA by
“failing to produce any and all non-exempt records responsive to
Plaintiff’s requests,” Compl. ¶ 19, and requested, inter alia,
that defendant “search for and produce any and all non-exempt
records responsive to Plaintiff’s requests.”

Compl. at 5.

On

April 15, 2010, the FDIC provided plaintiff with 101 pages of
material responsive to his FOIA requests, but redacted
information from every document it produced, pursuant to several
FOIA and Government in the Sunshine Act (“Sunshine Act”)
exemptions.

McKinley v. Fed. Deposit Ins. Co., 756 F. Supp. 2d

105, 109 (D.D.C. 2010).
The FDIC then moved to dismiss the complaint as moot, and
plaintiff cross-moved for summary judgment regarding the
adequacy of the searches and the FDIC’s use of the FOIA and
Sunshine Act exemptions.

Id. at 109-10.

The Court denied the

agency’s motion to dismiss, granted in part plaintiff’s motion
for summary judgment as to the adequacy of the searches and
denied without prejudice in part plaintiff’s motion for summary
judgment as to the agency’s use of exemptions.

Id. at 116.

The

Court ordered the FDIC to either conduct new searches for the
records sought by plaintiff or submit declarations that
adequately demonstrate that the agency employed search methods
reasonably likely to lead to discovery of records responsive to
plaintiff’s requests.

Id.

The Court also ordered the FDIC to
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demonstrate that responsive documents were produced to
plaintiff, and that responsive documents and parts of documents
not provided to plaintiff were properly withheld under the FOIA
or Sunshine Act exemptions.

Id.

The FDIC subsequently released all the information it had
initially withheld under the FOIA and Sunshine Act exemptions
and moved for summary judgment regarding the adequacy of its
searches.

See generally Def.’s Mot.

In support of its motion

for summary judgment, the FDIC submitted declarations of
Fredrick L. Fisch, the Supervisory Counsel in charge of the
FDIC’s FOIA and Privacy Act Group, and Catherine L. Hammond, the
FDIC employee who conducted the document searches.

See

generally Decl. of Fredrick L. Fisch (“Fisch Decl.”); Decl. of
Catherine L. Hammond (“Hammond Decl.”).

These declarations

describe the general procedures that the FDIC uses to process
FOIA requests, as well as the specific steps taken in response
to plaintiff's requests.

The declarations show that the FDIC

searched the Executive Secretary Section of the FDIC Legal
Division (“ESS”) for records responsive to plaintiff’s requests.
Fisch Decl. ¶¶ 12-15, 18-22, 25-29.

As a result of those

searches, the FDIC produced to the plaintiff the meeting minutes
and the “Case Memoranda” (or “Board Cases”) prepared for the
Board meetings at which the FDIC made each of the three

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determinations referenced in plaintiff’s requests.

Hammond

Decl. ¶¶ 19-20, 24-26, 30-32.
Plaintiff has opposed defendant’s motion for summary
judgment and has cross-moved for summary judgment.

In his

cross-motion, plaintiff argues that the FDIC’s searches were
inadequate and that the agency produced only a subset of the
records he requested.

Pl.’s Cross-Mot. at 4.

He argues that

defendant should have searched for email correspondence, meeting
notes, and memoranda from several other departments within the
FDIC.

Pl.’s Cross-Mot. at 4, 7-8.

Plaintiff also argues that

the FDIC should have searched other records systems in addition
to the ESS.

Pl.’s Cross-Mot. at 4.

The parties’ motions are

now ripe for review by the Court.
II.

STANDARD OF REVIEW
The Court may grant a motion for summary judgment if the

pleadings, depositions, answers to interrogatories, and
admissions on file, together with affidavits or declarations,
show that there is no genuine issue of material fact and that
the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(c).

In a FOIA case, the burden of proof is

always on the agency to demonstrate that it has fully discharged
its obligations under the FOIA.

See U.S. Dep’t of Justice v.

Tax Analysts, 492 U.S. 136, 142 n.3 (1989).

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In response to a challenge to the adequacy of its search
for requested records, “the agency may meet its burden by
providing ‘a reasonably detailed affidavit, setting forth the
search terms and the type of search performed, and averring that
all files likely to contain responsive materials . . . were
searched.’”

Iturralde v. Comptroller of the Currency, 315 F.3d

311, 313-14 (D.C. Cir. 2003) (quoting Valencia-Lucena v. U.S.
Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999)).

In addition,

“[a]ny factual assertions contained in affidavits and other
attachments in support of motions for summary judgment are
accepted as true unless the nonmoving party submits affidavits
or other documentary evidence contradicting those assertions.”
Wilson v. U.S. Dep’t of Transp., 730 F. Supp. 2d 140, 148
(D.D.C. 2010) (citing Neal v. Kelly, 963 F.2d 453, 456-57 (D.C.
Cir. 1992)).
III. ANALYSIS
The only issue remaining for summary judgment in this case
is whether defendant conducted adequate searches for records
responsive to plaintiff’s requests.

Specifically, the Court

must determine (1) whether it was reasonable for the FDIC to
limit the scope of its searches to the meeting minutes and Case
Memoranda prepared for the Board meetings at which the FDIC made
each of the three determinations referenced in the plaintiff’s
requests; and (2) whether it was reasonable for the FDIC to
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limit its searches to records located in the ESS.

For the

reasons discussed below, the Court concludes that defendant’s
searches were reasonable with respect to both issues.

The Court

will address each issue in turn.
A.

Defendant Reasonably Limited the Scope of its Searches
to the Meeting Minutes and Case Memoranda Prepared for
the Board Meetings at which the FDIC Made the
Determinations Referenced in Plaintiff’s Requests

The adequacy of an agency’s search for responsive records
“is measured by the reasonableness of the effort in light of the
specific request.”

Larson v. Dep’t of State, 565 F.3d 857, 869

(D.C. Cir. 2009) (quoting Meeropol v. Meese, 790 F.2d 942, 956
(D.C. Cir. 1986)).

The search for records need not be

exhaustive, see Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68
(D.C. Cir. 1990), but the scope and methodology of the search
must be “reasonably calculated to uncover all relevant
documents.”

Weisberg v. U.S. Dep’t of Justice, 705 F.2d 1344,

1351 (D.C. Cir. 1983).
In determining the proper scope of a FOIA request, “[t]he
linchpin inquiry is whether the agency is able to determine
‘precisely what records (are) being requested.’”

Yeager v. Drug

Enforcement Admin., 678 F.2d 315, 326 (D.C. Cir. 1982) (quoting
S. Rep. No. 93-854, at 10 (1974)) (alteration in original).
Requests must “reasonably describe the records in a way that
enables the FDIC’s staff to identify and produce the records

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with reasonable effort and without unduly burdening or
significantly interfering with any of the FDIC’s operations.”
12 C.F.R. § 309.5(b)(3) (2010).
Defendant argues that it was reasonable to limit its
searches to the meeting minutes and Case Memoranda prepared for
the Board meetings at which the FDIC made the determinations
referenced in plaintiff’s requests because the requests sought
“information about statutory determinations made by the FDIC’s
Board of Directors” and related to “a Board of Directors meeting
on a specific date concerning a specific topic.”
2.

Def.’s Mot. at

To support its interpretation of the scope of plaintiff’s

requests, the FDIC cites the language found in each of the three
requests, which reads:
I am requesting further detail on
information on the [transaction/program]
described in the following FDIC press
release:
[internet URL of FDIC press release]
The source of this power is Section 13(c) of
the FDI Act (12 U.S.C. 1823(c)). There is a
requirement that under this section under
the emergency determination there must be a
finding of "serious adverse effects on
economic conditions or financial stability"
if the action is not taken. I would like any
information available on this determination
such as meeting minutes [and/or] supporting
memos.
Def.’s Mot. Ex. 1 (requesting information on the FDIC Board of
Director’s November 23, 2008 decision to provide financial
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support to Citigroup, Inc.); Def.’s Mot. Ex. 3 (requesting
information on the FDIC Board of Director’s January 16, 2009
decision to provide financial support to Bank of America Corp.);
Def.’s Mot. Ex. 5 (requesting information on the FDIC Board of
Director’s October 13, 2008 decision to create the Temporary
Liquidity Guarantee Program).
Defendant points out that plaintiff specifically requested
information related to the Board’s finding, under Section 13(c)
of the FDI Act, 12 U.S.C. § 1823(c), that failure to provide
emergency assistance to financial institutions would have
“serious adverse effects on economic conditions or financial
stability.”

Def.’s Mot. Exs. 1, 3, 5.

The statutory provision

referenced in the requests (the “systemic risk exception”)
authorizes the FDIC to provide emergency assistance to financial
institutions only upon a recommendation from the Board.
U.S.C. § 1823(c)(4)(G)(i) (2006).

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Defendant explains that this

determination can be made only by the Board and “cannot be taken
by the Chairman of the FDIC, or by a senior executive or other
staff of the FDIC, or by any office or division of the FDIC.”
Def.’s Mot. at 4.
Defendant also argues that it was reasonable to conclude
that “the types of information [plaintiff] was seeking were
‘meeting minutes and supporting memos.’”

Def.’s Mot. at 4.

Specifically, FDIC concluded that “[b]ecause the request
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referred to a specific action taken by the FDIC Board of
Directors, the phrase ‘meeting minutes’ meant the minutes of the
FDIC Board of Directors meeting at which the ‘determination’ was
made. . . . [and] the phrase ‘supporting memos’ meant memoranda
describing, explaining, providing the background and reasoning
for, and/or recommending the action that would become the Board
‘determination.’”

Fisch Decl. ¶¶ 12, 18, 25.

Accordingly, the

FDIC argues that it was reasonable to limit its searches to the
meeting minutes and Case Memoranda prepared for each of the
three Board meetings referenced in the plaintiff’s requests.
Def.’s Mot. at 4.
In response, plaintiff argues that his requests sought “any
and all information available regarding the October 2008
decision to create the Temporary Liquidity Guarantee Program,
the November 2008 decision to extend assistance to Citigroup,
and the January 2009 decision to extend assistance to Bank of
America.”

Pl.’s Cross-Mot. at 4.

A reasonable interpretation

of his requests would include, plaintiff argues, “records
created and/or used by officials and staff members of the
various departments within the FDIC who participated in the
three determinations,” Pl.’s Reply in Support of Cross-Mot. for
Summary Judgment (“Pl.’s Reply”) at 6, and “any email
correspondence, meeting notes, or other memoranda” relating to
the Board’s determinations.

Pl.’s Cross-Mot. at 4.
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Plaintiff

contends that he did not limit his requests to a specific subset
of records and that it was unreasonable for the agency to
conclude that he did.

Pl.’s Cross-Mot. at 4.

Upon consideration of the language of plaintiff’s requests,
the Court finds that it was reasonable for the FDIC to limit its
searches to the meeting minutes and Case Memoranda prepared for
the Board meetings at which the FDIC made the determinations
referenced in plaintiff’s requests.

The requests asked for

information about specific determinations and referenced press
releases from specific dates.

Furthermore, the requests pointed

to the precise section of the statute giving FDIC the authority
to provide emergency assistance to financial institutions only
upon the recommendation of its Board of Directors, and asked for
information related to specific determinations made by the FDIC
Board under that provision of the statute.

Because the FDIC

Board was the only entity that could make those determinations,
it was reasonable for the FDIC to limit the scope of its
searches to records related to specific Board actions and to
conclude that “meeting minutes” and “supporting memos” referred
to the meeting minutes and Case Memoranda prepared for the Board
meetings at which the FDIC made each of the three determinations
referenced in the plaintiff’s requests.
Nonetheless, plaintiff argues that the FDIC unreasonably
limited the scope of his requests because (1) the requests
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included language asking for “any information available” on the
determinations, Pl.’s Cross-Mot. at 4; and (2) the FDIC had a
duty to construe the requests liberally.

Pl.’s Cross-Mot. at 5.

For the following reasons, the Court finds both arguments
unpersuasive.
First, plaintiff argues that the FDIC should have
interpreted his requests as seeking records created or used by
officials and staff members across the various departments
within the FDIC because his requests contained language asking
for “any information available” on the determinations.
Cross-Mot. at 4, 7-8.

Pl.’s

The Court finds, however, that language

asking for “any information available” fails to provide a
reasonable description of the type or location of additional
records sought and does not describe the records “in a way that
enables the FDIC’s staff to identify and produce the records
with reasonable effort and without unduly burdening or
significantly interfering with any of the FDIC’s operations.”
12 C.F.R. § 309.5(b)(3) (2010).

Instead, the language is

analogous to requests for records that relate “in any way” to a
person or event, which courts have repeatedly found to be overly
broad and unreasonable.

See Mason v. Callaway, 554 F.2d 129,

131 (4th Cir. 1977) (plaintiff’s request for “all [material]
pertaining to atrocities committed against plaintiffs” and
contained in the files of various government offices lacked the
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specificity needed for the request to be reasonably described);
Latham v. U.S. Dep’t of Justice, 658 F. Supp. 2d 155, 161
(D.D.C. 2009) (plaintiff’s request for records pertaining “in
any form or sort” to plaintiff was overly broad and burdensome);
Dale v. Internal Revenue Serv., 238 F. Supp. 2d 99, 104 (D.D.C.
2002) (plaintiff’s request for “any and all documents . . . that
refer or relate in any way to [plaintiff]” was not sufficiently
detailed because it did not specify particular records, actions,
years, or offices involved); Judicial Watch, Inc. v. Exp.-Imp.
Bank, 108 F. Supp. 2d 19, 27-28 (D.D.C. 2000) (plaintiff’s
request for records pertaining to any person or company doing
business with China was unreasonably broad and imposed an
unreasonable burden on defendant).

Because plaintiff failed to

specify how additional documents might be related to the Board’s
determinations or where those records might be found, it was
reasonable for the FDIC to disregard the “any information
available” language when interpreting plaintiff’s requests.1

1

This case is distinguishable from LaCedra v. Exec. Office for
U.S. Attorneys, 317 F.3d 345 (D.C. Cir. 2003), which plaintiff
cites to support his argument that the FDIC improperly
restricted the scope of his requests. See Pl.’s Reply at 2-4.
In LaCedra, the requestor asked for “all documents pertaining
to” a specific criminal case and then specifically requested a
subset of those documents. LaCedra, 317 F.3d at 346. The issue
was not whether the initial request for “all documents
pertaining to” the specific criminal case was reasonable, but
rather whether a request “might reasonably seek all of a certain
set of documents while nonetheless evincing a heightened
interest in a specific subset thereof.” Id. at 348.
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Second, plaintiff argues that the FDIC had a duty to
construe his requests liberally and cites Nation Magazine, Wash.
Bureau v. U.S. Customs Serv., 71 F.3d 885 (D.C. Cir. 1995), in
support of his argument.

Pl.’s Cross-Mot. at 5.

In Nation

Magazine, the court concluded that when a request “reasonably
describe[s] the records sought . . . an agency also has a duty
to construe a FOIA request liberally.”

Nation Magazine, 71 F.3d

at 890 (internal quotations omitted).

But this duty only arises

in cases where the request provides a reasonable description of
the records sought.

See 12 C.F.R. § 309.5(c) (2010) (“The FDIC

need not accept or process a request that does not reasonably
describe the records requested . . . .”).

In the instant case,

plaintiff’s requests describe specific actions undertaken on
specific dates within a statutory scheme that permits only the
Board to make recommendations on the FDIC’s behalf.

Plaintiff’s

argument that an agency’s interpretation of his requests must be
broader than the description reasonably contained in the
requests finds no support in Nation Magazine.
Accordingly, in light of the language in plaintiff’s
requests, the Court finds that it was reasonable for the FDIC to
limit its searches to the meeting minutes and Case Memoranda
prepared for the Board meetings at which the FDIC made the
determinations referenced in plaintiff’s requests.

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B.

Defendant Reasonably Limited its Searches to Records
in the Executive Secretary Section of the FDIC Legal
Division

The final issue before the Court is whether it was
reasonable for the FDIC to limit its searches to records in the
Executive Secretary Section of the FDIC Legal Division (“ESS”).
Defendant argues that “[a] search in other records systems would
be called for only if Mr. Fisch’s interpretation of the wording
of Plaintiff’s requests was unreasonable, or if Mr. Fisch was
incorrect about where the records were located.”

Def.’s Reply

in Support of its Mot. for Summary Judgment at 6.

The Court

agrees.
Defendant submitted detailed declarations averring that the
only reasonable place to search for the minutes and supporting
memos requested by plaintiff was the ESS.
18, 25.

Fisch Decl. at ¶¶ 12,

As the declarations state, the FDIC concluded that

“[b]ecause the Minutes of meetings of the FDIC Board of
Directors are exclusively prepared and maintained by [the ESS],
the only reasonable place to search for the Minutes requested by
Plaintiff was the ESS.” Fisch Decl. at ¶¶ 12(f), 18(d), 25(d).
The FDIC also concluded that “[b]ecause the memoranda prepared
for and used by the FDIC Board of Directors that describe,
explain, provide the background and reasoning for, and/or
recommend action . . . are kept and maintained by the ESS as
part of the official records of Board meetings in which such
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memoranda are used, the only reasonable place to search for [the
‘Board Case’ and] ‘supporting memos’ requested by Plaintiff was
the ESS.” Fisch Decl. at ¶¶ 12(g), 18(e), 25(e).
Plaintiff argues that the documents in the responsive
record demonstrate the inadequacy of the FDIC’s searches.
Cross-Mot. at 7-8.

Pl.’s

Plaintiff cites a study referenced in one of

the case memoranda, a list of names of meeting participants and
contributors to each case memorandum, and a list of the various
departments within the FDIC that were represented at the
meetings.

Pl.’s Reply at 5-6.

Significantly, plaintiff does

not argue that the study or any other non-produced document was
responsive to his requests.

Pl.’s Reply at 6 n. 1.

Nor does

plaintiff contest that the meeting minutes and Case Memoranda of
the FDIC Board meetings are exclusively maintained by the ESS.
Rather, plaintiff argues that the fact that the meeting minutes
and Case Memoranda contain these references necessarily implies
that additional documents and correspondence influenced the
Board’s determinations.

Pl.’s Reply at 6.

He argues that this

evidence demonstrates the inadequacy of the FDIC’s searches
because “it is inconceivable that officials and staff members
who participated in meetings and prepared or received the case
memoranda had no prior knowledge of the topics discussed and
possessed no records on the issues and the decisions to be
made.”

Pl.’s Reply at 6.
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Plaintiff’s argument fails because it turns on the finding
that the FDIC’s interpretation of the scope of the requests was
unreasonable.

Pl.’s Reply at 4 (“[T]he FDIC improperly narrowed

Plaintiff’s requests.

Because of this fact alone, the FDIC has

not conducted adequate searches.”).

Essentially, plaintiff

repeats his argument that an adequate search for records would
include all records related in any way to the Board’s
determinations.

As discussed above, the FDIC’s interpretation

of the scope of plaintiff’s requests was reasonable, and the
FDIC reasonably limited its searches to the meeting minutes and
Case Memoranda prepared for the Board meetings at which the FDIC
made the determinations referenced in plaintiff’s requests.
Accordingly, and based upon the declarations submitted by the
FDIC, the Court finds that it was reasonable for the FDIC to
limit its searches for responsive records to the ESS.
CONCLUSION
For the foregoing reasons, the Court concludes that the
FDIC has met its burden to show that it conducted adequate
searches for records responsive to plaintiff’s FOIA requests.
Accordingly, defendant’s motion for summary judgment is GRANTED,
and plaintiff’s cross-motion for summary judgment is DENIED. An
appropriate order accompanies this memorandum opinion.
SIGNED:

Emmet G. Sullivan
United States District Court Judge
August 8, 2011
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