BALL v. BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM

Filing 23

MEMORANDUM AND OPINION. Signed by Judge Tanya S. Chutkan on 3/31/2015. (lctsc2)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

LAURENCE M. BALL,
Plaintiff,
v.
BOARD OF GOVERNORS OF THE
FEDERAL RESERVE SYSTEM,
Defendant.

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Civil Action No. 13-cv-603 (TSC)

MEMORANDUM OPINION
In this Freedom of Information Act case, Plaintiff Laurence Ball seeks four documents
from the Federal Reserve System’s Board of Governors (the “Board”)—two memorandums
analyzing the Federal Reserve’s legal justification for extending loans to Bear Stearns/JPMorgan
and American International Group (“AIG”) during the 2008 financial crisis, and two
spreadsheets listing the collateral securing those loans. The parties have filed cross-motions for
summary judgment. Upon consideration of the motions, the oppositions and the replies thereto,
the entire record, and for the following reasons, Plaintiff’s motion is denied and Defendant’s
motion is granted.
I.

BACKGROUND
a. Overview of the Federal Reserve System
Congress created the United States Federal Reserve System through passage of the

Federal Reserve Act in 1913. The System is comprised of the Board and twelve regional Federal
Reserve Banks (“FRBs”). Each FRB operates within its own region of the United States. The
Board is composed of seven members appointed by the President and confirmed by the Senate,
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and acts as the central supervisory authority of the Federal Reserve System. 12 U.S.C. § 241. It
is responsible for overseeing the operation of the system and promulgating and administering
regulations, and plays a key role in supervising and regulating the United States banking system.
See McKinley v. Bd. of Governors of the Fed. Reserve Sys., 849 F. Supp. 2d 47, 52 (D.D.C.
2012). The FRBs are considered the “operating arm” of the Reserve System. They engage in
both public and private functions by carrying out federal monetary policy while also holding
deposits and making loans to private banks.
As a result of the Great Depression, in 1932 Congress amended the Federal Reserve Act
and added paragraph 3 to section 13. Section 13(3) allows the Board, “[i]n unusual and exigent
circumstances,” and “by the affirmative vote of not less than five members,” to “authorize any
[FRB]” to extend emergency loans to individuals, partnerships, and corporations. 12 U.S.C. §
343(3)(A). The FRB must conduct an independent investigation into whether the potential
loan’s recipient is able to first “secure adequate credit . . . from other banking institutions.” Id.
Between 1932 and 1936, FRBs were authorized to make approximately 123 loans totaling $1.5
million. (Pl. Mot. 4). FRBs made no loans pursuant to section 13(3) again until 2008. (Id.).
b. Bear Stearns and AIG
Beginning with the deterioration of the U.S. housing market in late 2007 and 2008,
financial markets experienced substantial uncertainty that resulted in severe liquidity pressures
upon various financial institutions. (Def. Mot. 4). In early March 2008, the Board became
aware that Bear Stearns, one of the companies experiencing liquidity problems, might soon
declare bankruptcy. The Board became increasingly concerned about the potential impact of a
Bear Stearns bankruptcy on broader financial markets. (Id.). As a result, it began collecting
real-time data on, among other things, various financial institutions’ exposure to Bear Stearns in

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an effort to assess the gravity of the potential bankruptcy. Bear Stearns did not qualify as a
depository institution and was therefore ineligible to borrow through the Federal Reserve’s
regular short-term lending program. As a result, on March 14, 2008, the Board authorized the
Federal Reserve Bank of New York (“FRBNY”), pursuant to section 13(3), to extend an
emergency, temporary loan to Bear Stearns through JPMorgan Chase & Co. (Id. at 5). On
March 16, 2008, the Board authorized the FRBNY to make a second emergency transaction to
JPMorgan in order to facilitate its acquisition of Bear Stearns. Under this authorization, the
FRBNY made a non-recourse loan to a limited liability company, later named Maiden Lane LLC
(the “Maiden Lane Loan”), with the loan secured by the Bear Stearns assets that Maiden Lane
acquired. (Id.).
AIG, the world’s largest provider of life, health, and casualty insurance, was also
experiencing the effects of similar market pressures in 2008. (Id. at 5-6). On September 12,
2008, the Board became aware of AIG’s impending liquidity crisis. As a result, it encouraged
AIG to pursue private sector options and began to analyze the broader implications of AIG’s
crisis. (Id. at 6). On September 16, 2008, after determining that “a disorderly failure of AIG
could add to already significant levels of financial market fragility and lead to . . . materially
weaker economic performance,” (Pl. Mot. 5), the Board again invoked section 13(3) and
authorized the FRBNY to lend up to $85 billion to AIG (the “AIG Loan”). (Def. Mot. 7). The
FRBNY established the AIG Revolving Credit Facility, which was secured by nearly all of
AIG’s assets, in order to provide direct financial support to AIG. (Id.).
c. Ball’s FOIA Request
On October 10, 2012, Plaintiff Ball, an economics professor at Johns Hopkins University,
submitted to the Board a FOIA request seeking documents related to the Bear Stearns and AIG

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loans. Ball sought two legal memorandums prepared by Board staff addressing the Board’s
section 13(3) authority—one for the Maiden Lane Loan (“Document 1”) and one for the AIG
Loan (“Document 2”). (Caperton Decl. Ex. A). Ball also sought two bank examination
spreadsheets identifying the assets pledged as collateral for the Maiden Lane Loan (“Document
3”) and the AIG Loan (“Document 4”). (Pl. Mot. 7).
On December 20, 2012, the Board denied Ball’s FOIA request in full, stating that the
requested documents consisted of exempt information pursuant to FOIA Exemptions 4, 5, and 8.
Ball appealed the Board’s denial, and on January 31, 2013, the Board, while reversing its prior
decision on some of the previously invoked exemptions, ultimately denied Ball’s appeal and
continued to withhold the four documents in their entirety. Ball then filed the instant suit.
II.

LEGAL STANDARD
a. Motion for Summary Judgment
Summary judgment may be granted if “the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v.
Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). Summary judgment may be rendered on a “claim or
defense . . . or [a] part of each claim or defense.” Fed. R. Civ. P. 56(a). “A party asserting that a
fact cannot be or is genuinely disputed must support the assertion by citing to particular parts of
materials in the record.” Fed. R. Civ. P. 56(c)(1)(A). “A fact is ‘material’ if a dispute over it
might affect the outcome of a suit under governing law; factual disputes that are ‘irrelevant or
unnecessary’ do not affect the summary judgment determination.” Holcomb, 433 F.3d at 895
(quoting Liberty Lobby, 477 U.S. at 248). An issue is “genuine” if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party. See id. The party seeking

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summary judgment “bears the heavy burden of establishing that the merits of his case are so
clear that expedited action is justified.” Taxpayers Watchdog, Inc., v. Stanley, 819 F.2d 294, 297
(D.C. Cir. 1987).
In considering a motion for summary judgment, “[t]he evidence of the non-movant is to
be believed, and all justifiable inferences are to be drawn in his favor.” Liberty Lobby, 477 U.S.
at 255; see also Mastro v. Potomac Elec. Power Co., 447 F.3d 843, 850 (D.C. Cir. 2006). The
nonmoving party’s opposition, however, must consist of more than mere unsupported allegations
or denials, and must be supported by affidavits, declarations, or other competent evidence,
setting forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e);
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The nonmovant is required to provide
evidence that would permit a reasonable jury to find in his favor. Laningham v. U.S. Navy, 813
F.2d 1236, 1242 (D.C. Cir. 1987).
b. FOIA
“FOIA provides a ‘statutory right of public access to documents and records’ held by
federal government agencies.” Citizens for Responsibility & Ethics in Washington v. DOJ, 602
F. Supp. 2d 121, 123 (D.D.C. 2009) (quoting Pratt v. Webster, 673 F.2d 408, 413 (D.C. Cir.
1982)). FOIA requires that federal agencies comply with requests to make their records
available to the public, unless such “information is exempted under clearly delineated statutory
language.” Id. (internal quotation marks omitted); see also 5 U.S.C. § 552(a), (b).
“‘FOIA cases typically and appropriately are decided on motions for summary
judgment.’” Georgacarakos v. FBI, 908 F. Supp. 2d 176, 180 (D.D.C. 2012) (quoting Defenders
of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009)). The district court
conducts a de novo review of the government’s decision to withhold requested documents under

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any of FOIA’s specific statutory exemptions. 5 U.S.C. § 552(a)(4)(B). The burden is on the
agency to show that nondisclosed, requested material falls within a stated exemption. Petroleum
Info. Corp. v. U.S. Dep’t of the Interior, 976 F.2d 1429, 1433 (D.C. Cir. 1992) (citing 5 U.S.C. §
552(a)(4)(B)). In cases concerning the applicability of exemptions and the adequacy of an
agency’s search efforts, summary judgment may be based solely on information provided in the
agency’s supporting declarations. See, e.g., ACLU v. U.S. Dept. of Def., 628 F.3d 612, 619 (D.C.
Cir. 2011); Students Against Genocide v. Dept. of State, 257 F.3d 828, 838 (D.C. Cir. 2001). “If
an agency’s affidavit describes the justifications for withholding the information with specific
detail, demonstrates that the information withheld logically falls within the claimed exemption,
and is not contradicted by contrary evidence in the record or by evidence of the agency’s bad
faith, then summary judgment is warranted on the basis of the affidavit alone.” ACLU, 628 F.3d
at 619. “Ultimately, an agency’s justification for invoking a FOIA exemption is sufficient if it
appears ‘logical’ or ‘plausible.’” Id. (internal quotation marks omitted) (quoting Larson v. Dep’t
of State, 565 F.3d 857, 862 (D.C. Cir. 2009)). However, a motion for summary judgment should
be granted in favor of the FOIA requester “[w]hen an agency seeks to protect material which,
even on the agency’s version of the facts, falls outside the proffered exemption.” Coldiron v.
DOJ, 310 F. Supp. 2d 44, 48 (D.D.C. 2004) (citing Petroleum Info. Corp., 976 F.2d at 1433).
The FOIA requires that “[a]ny reasonably segregable portion of a record shall be
provided to any person requesting such record after deletion of the portions which are exempt.”
5 U.S.C. § 552(b). More specifically, “[i]t has long been a rule in this Circuit that non-exempt
portions of a document must be disclosed unless they are inextricably intertwined with exempt
portions.” Mead Data Central, Inc. v. U.S. Dep’t of the Air Force, 566 F.2d 242, 260 (D.C. Cir.
1977). In order to withhold a record or portion thereof under a FOIA exemption, “the

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Government must make that showing in its Vaughn index and in such affidavits as it may submit
therewith.” Kimberlin v. DOJ, 139 F.3d 944, 950 (D.C. Cir. 1998). “The purpose of a Vaughn
index is to permit adequate adversary testing of the agency’s claimed right to an exemption, and
those who contest denials of FOIA requests -- who are, necessarily, at a disadvantage because
they have not seen the withheld documents -- can generally prevail only by showing that the
agency’s Vaughn index does not justify withholding information under the exemptions invoked.”
Schiller v. NLRB, 964 F.2d 1205, 1209 (D.C. Cir. 1992) (internal quotation marks and citations
omitted), abrogated on other grounds by Milner v. Dep’t of Navy, 562 U.S. 562 (2011).
III.

ANALYSIS
a. Adequacy of the Search
The parties dispute the adequacy of the Board’s search with respect to one document—

the collateral spreadsheet for the AIG Loan. Ball argues that the Board should have searched the
FRBNY’s files in addition to the Board’s own files, and this failure resulted in the Board only
locating a partial list of the collateral pledged for the AIG Loan. The Board responds that under
its own regulations and the FOIA, it was not required to search the FRBNY’s files, and therefore
the search of its own files was adequate.
In ruling on the adequacy of an agency’s search in response to a FOIA request, “[t]he
question is not whether there might exist any other documents possibly responsive to the request,
but rather whether the search for those documents was adequate. The adequacy of the search, in
turn, is judged by a standard of reasonableness and depends, not surprisingly, upon the facts of
each case. In demonstrating the adequacy of the search, the agency may rely upon reasonably
detailed, nonconclusory affidavits submitted in good faith.” Steinberg v. DOJ, 23 F.3d 548, 551
(D.C. Cir. 1994) (internal citations omitted). An agency may prove the reasonableness of its

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search via the declaration of a responsible agency official, so long as the declaration is
reasonably detailed and not controverted by contrary evidence or evidence of bad faith. Military
Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). There is no requirement that an
agency search every record system, but the agency must conduct a good faith, reasonable search
of those systems of records likely to possess the requested information. Oglesby v. Dep’t of
Army, 920 F.2d 57, 68 (D.C. Cir. 1990). The agency declaration can demonstrate reasonableness
by “setting forth the search terms and the type of search performed, and averring that all files
likely to contain responsive materials (if such records exist) were searched.” Sanders v. Obama,
729 F. Supp. 2d 148, 155 (D.D.C. 2010), aff’d sub nom. Sanders v. DOJ, 10-5273, 2011 WL
1769099 (D.C. Cir. Apr. 21, 2011) (citation omitted). Once an agency has provided adequate
affidavits, the burden reverts to the plaintiff to demonstrate the lack of a good faith search. Id.
The presumption of good faith “cannot be rebutted by purely speculative claims about the
existence and discoverability of other documents.” SafeCard Servs. v. SEC, 926 F.2d 1197, 1200
(D.C. Cir. 1991) (internal quotation marks omitted).
Ball’s FOIA request sought a list of the specific assets pledged as collateral for the AIG
Loan and their individual values as determined by the Federal Reserve. (Caperton Decl. Ex. A).
The Board’s search in response to this request is detailed in declarations by David G. Caperton,
Special Counsel for Oversight Reviews in the Legal Division of the Board, and Louise L.
Roseman, Director of Reserve Bank Operations and Payment Systems (“RBOPS”) and the
official responsible for overseeing RBOPS’ search. Caperton and Roseman, with the assistance
of Board staff, conducted a thorough search, the details of which are set forth in their sworn
declarations.

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Ball does not challenge the Board’s search of its own records, and, based on the search
procedures set forth in the Caperton and Roseman Declarations, the court confirms that the
Board’s search of its records was adequate. Caperton and Roseman are both responsible
government agency officials and their testimonials are neither lacking in detail nor controverted
by contrary evidence or evidence of bad faith. See Military Audit Project, 656 F.2d at 738.
Ball instead asserts that the Board should have searched FRBNY files in addition to its
own files, and its failure to do so renders the Board’s search inadequate. Ball argues that the
Board’s own regulations require it to search the FRBNY’s files, and “[h]ad the Board properly
searched all records systems . . . it might have uncovered a complete collateral listing for the
AIG loan among the FRBNY’s records.” (Pl. Mot. 29). The Board responds that it was under no
obligation to search FRBNY files because the records Ball seeks are not the type covered by
Board regulations.
In its Rules Regarding Availability of Information, the Board defines “Records of the
Board” as follows:
(i)(1) Records of the Board include:
(i) In written form, or in nonwritten or machine-readable form; all information
coming into the possession and under the control of the Board, any Board
member, any Federal Reserve Bank, or any officer, employee, or agent of the
Board or of any Federal Reserve Bank, in the performance of functions for or on
behalf of the Board that constitute part of the Board’s official files; or
(ii) That are maintained for administrative reasons in the regular course of
business in official files in any division or office of the Board or any Federal
Reserve Bank in connection with the transaction of any official business.
12 C.F.R. § 261.2(i)(1). Prior courts have taken varying approaches on how to interpret this
confusingly drafted regulation. As this court interprets it, Records of the Board (whether in
category (i) or (ii)) must be “information coming into the possession and under the control of [a
designated entity or employee] . . . in the performance of functions for or on behalf of the
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Board.” Category (i) encompasses records “that constitute part of the Board’s official files,”
which are defined in the regulation as “the Board’s central records.” 12 C.F.R. § 261.2(a).
Category (ii) encompasses records “[t]hat are maintained for administrative reasons in the
regular course of business in official files in any division or office of the Board or any Federal
Reserve Bank in connection with the transaction of any official business.” Records of the Board
therefore include: (1) records in the Board’s central files, whether created by the Board or
created by a Federal Reserve Bank working for or on behalf of the Board; and (2) records housed
in a division or office of the Board or any Federal Reserve Bank for administrative reasons, so
long as the record was created while that entity was working for or on behalf of the Board in
connection with official business. Crucial to the inquiry here, for a FRB record to be a Board
record, the FRB must have been working for or on behalf of the Board.
While this interpretation is in some tension with the holdings of other courts,1 this court
finds it correct based on the structure of the regulation and its history. Part of the confusion
appears to stem from the practice of reading categories (i) and (ii) as entirely independent from
one another. Categories (i) and (ii) must be read in conjunction with each other to have any real

For example, the Second Circuit has held that category (ii) includes “records of the twelve Federal Reserve Banks
that are maintained for administrative reasons, in the regular course of business, in the Board’s official files or by
any Federal Reserve Bank, and in connection with the transaction of any official business.” Fox News Network,
LLC v. Bd. of Governors of the Fed. Reserve Sys., 601 F.3d 158, 162 (2d Cir. 2010). That interpretation appears to
include all records of the FRBs regarding official business, which does not seem to be the proper scope of category
(ii). The Southern District of New York, in a slightly different formulation, held that Records of the Board include
“records (1) constituting a part of the Board’s official files and (2) maintained in the performance of functions for or
on behalf of the Board, or records (1) maintained for administrative reasons, (2) in the regular course of business,
(3) in the Board’s official files, and (4) in connection with the transaction of any official business.” Bloomberg L.P.
v. Bd. of Governors of Fed. Reserve Sys., 649 F. Supp. 2d 262, 273 (S.D.N.Y. 2009) (citations omitted), aff’d, 601
F.3d 143 (2d Cir. 2010). The Bloomberg court went on to hold that “if a record is kept in the Board’s official files at
a FRB . . . it qualifies as a Board ‘agency record.’” Id. (emphasis in original). This interpretation equates the
reference to “Board’s official files” in category (i) with “official files” in category (ii). As this court interprets the
regulation, the reference in category (ii) to “official files” is not a reference to the Board’s official files, but instead a
reference to the official files in “any division or office of the Board or any Federal Reserve Bank.” This
interpretation is supported by other parts of the regulation, which differentiate between the Board’s official files and
other places Board records may be found. See 12 C.F.R. § 261.2(n)(1) (“Search means a reasonable search . . . of
the Board’s official files and any other files containing Board records . . .”).
1

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meaning. Read together, Records of the Board include two categories of records—the Board’s
official files and “administrative reasons” records—both of which must satisfy the precondition
of being information created for or on behalf of the Board.
A prior version of the regulation is significantly clearer regarding the intended structure
of the provision:
(d)(1) “Records of the Board” includes applications, rules, statements, opinions, orders,
memoranda, letters, reports, accounts, and other written material, as well as magnetic
tapes, computer printouts of information obtained through use of existing computer
programs, maps, photographs, and other materials in nonwritten or machine readable
form that are under the control of the Board, that contain information of the Board, and
that:
(i) Constitute part of the Board’s official files; or
(ii) Are maintained for administrative reasons in the regular course of business in
official files in any division or office of the Board or any Federal Reserve Bank in
connection with the transaction of any official business.
Rules Regarding Availability of Information, Final Rulemaking, 53 Fed. Reg. 20,812, 20,815
(June 7, 1988). When the Board amended the regulation to the current version to implement the
Electronic Freedom of Information Act Amendments of 1996, it did not indicate that it intended
to make any substantive changes to the definition of “Records of the Board.” See 62 Fed. Reg.
54,356 (Oct. 20, 1997). The court therefore finds that the proper interpretation is that the
language before “that constitute” in category (i) is a precondition applicable to both records “that
constitute part of the Board’s official files” and “that are maintained for administrative reasons”
in other locations. This interpretation—that all Records of the Board must have been created
“for or on behalf of” the Board—is in accord with the Board’s own interpretation asserted here
and in prior cases. See Auer v. Robbins, 519 U.S. 452 (1997).
The question, then, is whether the FRBNY was acting “for or on behalf of” the Board
with respect to the AIG Loan. If it was, the collateral spreadsheet Ball seeks may be a Record of
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the Board, because while the court is satisfied that it is not in the Board’s central records under
category (i), it could be maintained at the FRBNY for administrative reasons under category (ii),
meaning the Board should have searched the FRBNY’s records in response to Ball’s request.
The Board asserts that the FRBNY was not acting “on behalf of” the Board as it
interprets the phrase in the regulation. The Board argues that “on behalf of” means “under
delegated authority,” and because the FRBNY was not acting under the delegated authority of
the Board when it extended the AIG Loan, FRBNY records with respect to that loan are not
Board records. (Def. Opp’n 16-18). The Board cites Fox News Network in support. In that case,
the Second Circuit held that the FRBs were not operating on behalf of the Board or under the
delegated authority of the Board when they extended the loans at issue. The Court found that
those loans were issued under the FRBs’ own statutory authority (12 U.S.C. § 347b(a)) and did
not require Board authorization, meaning the FRBs exercised their own power, not power
delegated by the Board. Fox News Network, 601 F.3d at 161. The Board argues that the same
analysis applies here—because the FRBNY was acting pursuant to its independent authority
under section 13(3) to make the AIG Loan and not under any power delegated by the Board, the
FRBNY was not acting “on behalf of” the Board.
Ball argues that Fox News Network is inapposite for two reasons. First, the court in Fox
News Network rested its analysis on the FRBs’ powers under § 347b, which gives the FRBs
independent authority to issue loans. Ball argues that here, the AIG Loan is fundamentally
different because it was issued pursuant to section 13(3), which does not give the FRBs authority
to independently issue loans, but instead “is clear that Board action is required before a Federal
Reserve Bank may lend under this provision.” (Pl. Reply 20). Second, Ball argues that the court
in Fox News Network did not actually decide whether “on behalf of” means “under delegated

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authority,” and that this court (like the court in Fox News Network) should not defer to the
Board’s interpretation. Ball further asserts that even if the court does find that “on behalf of”
means “under delegated authority,” “a Federal Reserve Bank’s extension of credit under Section
13(3) is made pursuant to ‘delegated authority from the Board.’” (Pl. Reply 20) (citation
omitted).
If the court were to adopt the reasoning in Fox News Network, then the FRBNY records
in this case may well be Board records. The Fox News Network court found that “[s]ince the
Board neither issues nor authorizes the specific loans that Fox News seeks documentation of, we
agree that the Federal Reserve Banks did not issue each loan on ‘behalf of the Board,’ or under
the ‘delegated authority’ of the Board.” Fox News Network, 601 F.3d at 161. It follows that if
the Board did “authorize[] the specific loans”—as the Board unquestionably did here—then the
FRBNY did issue the loans “on behalf of” the Board.2
However, this court finds that based on the plain language of the regulation (and in
accordance with the Board’s interpretation), mere authorization by the Board does not mean the
FRBNY was acting on the Board’s behalf. The version of section 13(3) in force at the time of
the AIG Loan allowed the Board to “authorize any Federal reserve bank” to make emergency
loans. “Authorize” means “[t]o give legal authority; to empower” or “[t]o formally approve; to
sanction.” Black’s Law Dictionary 159 (10th ed. 2014). Under Ball’s interpretation, because the
Board authorized FRBNY to make the AIG Loan, this means the FRBNY was acting “on behalf
of” the Board, and FRBNY’s records qualify as Board records.
Conversely, the Board argues that “on behalf of” equals “under delegated authority” and
that authorization alone is not enough to find the FRBNY acted on behalf of the Board; for a

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It is unclear whether all the loans at issue in Fox News Network were issued pursuant to § 347b or if some may
have been issued pursuant to section 13(3). That court only references § 347b in its discussion.

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FRB to act on behalf of the Board, the Board has to have delegated its own power to the FRB.
Therefore, for the Board to prevail, “on behalf of” must be more akin to delegation than
authorization. To delegate is “[t]o send as a representative with authority to act; to depute;” “[t]o
give part of one’s power or work to someone in a lower position within one’s organization;” or
“[t]o choose someone to do a particular job, or to be a representative of a group or organization.”
Black’s Law Dictionary 519 (10th ed. 2014).
An analysis of the phrase “on behalf of” reveals that it contemplates something more like
delegation than authorization. Black’s Law Dictionary defines “on behalf of” to mean “in the
name of, on the part of, as the agent or representative of.” Black’s Law Dictionary 184 (10th ed.
2014); see also 2 Oxford English Dictionary 73 (2d ed. 1989) (“On the part of (another), in the
name of, as the agent or representative of, on account of, for, instead of (With the notion of
official agency.”). An agent is “[s]omeone who is authorized to act for or in place of another; a
representative.” Black’s Law Dictionary 75 (10th ed. 2014). A representative is “[s]omeone
who stands for or acts on behalf of another.” Black’s Law Dictionary 1494 (10th ed. 2014).
Intrinsic to all these definitions is the concept that one stands in another’s shoes, representing a
principal and exercising the principal’s power. Acting “on behalf of” requires more than
authorization; it requires a principal to delegate power to the representative to act on their behalf.
Authorization is merely the act of giving permission or formally approving. Even if one is
authorized to act, this does not mean they are acting on behalf of another. The court therefore
agrees with the Board that for a FRB record to become a Board record, the FRB must have been
performing a function that was more than just authorized by the Board—the FRB must be doing
something more like acting under the Board’s delegated authority.

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This discussion is not merely academic, as the difference between “authorize” and
“delegate” is evident in the language of section 13(3). Contrary to Ball’s assertion, section 13(3)
does not require FRBs to act under the delegated authority of the Board—it only requires the
Board to authorize (that is “to empower; to formally approve; to sanction”) the FRBs’ actions.
As it stood in 2008, section 13(3) stated that “[i]n unusual and exigent circumstances, the Board .
. . may authorize any Federal reserve bank . . . to discount for any individual, partnership, or
corporation, notes, drafts, and bills of exchange . . . .” Section 13(3) gave the Board the power to
authorize the FRBs to extend loans. It did not give the Board the power to extend a loan,
therefore the Board could not delegate that authority to the FRBNY. FRBs could choose not to
extend a loan, even after the Board had authorized it. This suggests that even where Board
authorization is necessary, “[t]he power to make loans is explicitly granted by statute only to the
Federal Reserve Banks themselves.” Fox News Network, 601 F.3d at 161. The fact that the
Board authorized the AIG Loan does not mean the FRBNY was acting on behalf of the Board
when it made the loan, because the Board had not delegated authority to FRBNY and FRBNY
was not acting as the Board’s representative. Therefore, FRBNY records with respect to the AIG
Loan are not Board records under the Board’s regulations. The Board therefore was not required
to search FRBNY’s records.
Even if the court were to find that some of the FRBNY’s records could be considered
Board records, the Board has shown that collateral spreadsheets like the ones sought by Ball are
not the type of Board records that would be housed at FRBNY for “administrative reasons”
under 12 C.F.R. § 261.2(i)(1)(ii). As the Board explains:
[I]n conducting the search for records responsive to plaintiff’s FOIA Request, [the Board]
concluded that none of [the] Board records maintained for administrative reasons at the
FRBNY, which include . . . examination and inspection workpapers and correspondence
of state member banks and bank holding companies, informal enforcement action case
15

files, supervisory activity correspondence, examiner training files, [and] legal activity
files . . . were reasonably likely to contain records responsive to [Item 4.] This is because
. . . these records primarily relate to examination and supervisory activities, certain data
collection and reporting activities, and the selection and appointment of FRB directors,
and not to section 13(3) lending activities.
(Caperton Suppl. Decl. ¶ 7). The Board also submitted the declaration of Robert deV. Frierson,
Secretary of the Board, who incorporated by reference the declaration of Jennifer Johnson,
former Secretary of the Board. Johnson’s declaration explains the various functions delegated by
the Board to the FRBs and the categories of “administrative reasons” documents that are stored
at FRBs. (Frierson Decl. Ex. A).3 These declarations adequately describe what types of
“administrative reasons” records are housed at the FRBs, and why the collateral spreadsheets at
issue (if they exist) would not be among them. Therefore, even if the FRBNY may have some
documents which could qualify as Board records, the Board has reasonably described the process
by which it decided to not search FRBNY records, and the court finds the Board’s rationale
reasonable in light of the request. Ball’s “purely speculative claims about the existence and
discoverability of other documents” do not overcome the “presumption of good faith” afforded
to the Board’s declarations. SafeCard Servs., 926 F.2d at 1200.
b. Documents 1 and 2—the Board Memorandums
The Board relies on Exemption 5 to withhold the legal memorandums analyzing the
Board’s section 13(3) power to authorize the Maiden Lane Loan and the AIG Loan, invoking the
deliberative process privilege for both documents, and the attorney-client privilege for Document
1. The Board also relies on Exemption 4 to withhold approximately two pages of Document 2
(which Ball contests), and Exemption 8 for a small portion of Document 2 (which Ball does not
contest).

3

The Johnson declaration was apparently prepared for the Fox News Network case after it was remanded to the
district court, but was never filed with the court as the case settled.

16

i. Exemption 5
Exemption 5 allows an agency to withhold “inter-agency or intra-agency memorandums
or letters which would not be available by law to a party other than an agency in litigation with
the agency.” 5 U.S.C. § 552(b)(5). To satisfy its burden under the FOIA, the agency must show
(1) that the records are inter-agency or intra-agency records, and (2) that they “would not be
available by law to a party other than an agency in litigation with the agency.” Courts have
construed the latter requirement as akin to the protections available to parties in civil litigation,
including the attorney-client privilege, attorney work product privilege, and the executive
deliberative process privilege. Elec. Frontier Found. v. DOJ, 739 F.3d 1, 4 (D.C. Cir. 2014).
The parties here do not dispute that Documents 1 and 2 are inter-agency or intra-agency
records, and the Board asserts that they would not be available by law under the deliberative
process privilege, which is applicable to agency materials that are “both ‘predecisional’ and a
part of the ‘deliberative process.’” McKinley v. Bd. of Governors of Fed. Reserve Sys., 647 F.3d
331, 339 (D.C. Cir. 2011). Ball does not challenge the Board’s invocation of the deliberative
process privilege per se —he does not argue that the documents are not predecisional4 or that
they were not part of the agency’s deliberative process.5 Rather, he alleges that the Board
adopted the memorandums as its “working law,” meaning the documents can no longer be
withheld based on the deliberative process privilege.
The court is satisfied, based on the Vaughn index and the Board’s declarations, that
Documents 1 and 2 “‘reflect[ ] advisory opinions, recommendations, and deliberations

A document is predecisional if it “was prepared in order to assist an agency decisionmaker in arriving at his
decision, rather than to support a decision already made.” Petroleum Info. Corp., 976 F.2d at 1434 (internal
quotation marks omitted).
4

A document is part of the deliberative process when it “makes recommendations or expresses opinions on legal or
policy matters.” Vaughn v. Rosen, 523 F.2d 1136, 1144 (D.C. Cir. 1975).
5

17

comprising part of a process by which governmental decisions and policies are formulated, [or]
the personal opinions of the writer prior to the agency’s adoption of a policy.’” Elec. Frontier
Found., 739 F.3d at 7 (citation omitted). On their face, the documents were properly withheld
pursuant to Exemption 5.
1.

“Working Law”

Under the “working law” FOIA doctrine, “the reasons which did supply the basis for an
agency policy actually adopted . . . if expressed within the agency, constitute the ‘working law’
of the agency” and are not protected from disclosure. NLRB v. Sears, Roebuck & Co., 421 U.S.
132, 152-53 (1975). “Exemption 5 does not apply to final agency actions that constitute
statements of policy or final opinions that have the force of law, or which explain actions that an
agency has already taken.” Taxation With Representation Fund v. IRS, 646 F.2d 666, 677 (D.C.
Cir. 1981). The purpose of the doctrine is to prevent agencies from “develop[ing] a body of
‘secret law,’ used by it in the discharge of its regulatory duties and in its dealings with the public,
but hidden behind a veil of privilege because it is not designated as ‘formal,’ ‘binding,’ or
‘final.’” Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 867 (D.C. Cir. 1980).
Documents that “are not the ideas and theories which go into the making of the law, [but] are the
law itself . . . should be made available to the public.” Elec. Frontier Found., 739 F.3d at 8.
In response to Ball’s assertion that the documents constitute the Board’s working law, the
Board explains that Document 1 “recounts legal advice and recommendations provided orally by
Board attorneys to Board members prior to March 16, 2008 in support of staff’s recommendation
that the Board authorize the Maiden Lane Loan, as well as staff’s analysis of the Board’s legal
authority to extend the Loan, and staff’s recommendations with regard to conditions that must be

18

satisfied to meet the statutory prerequisites of section 13(3).” (Caperton Decl. ¶ 11).6 The Board
describes Document 2 as “a draft memorandum from [Board General Counsel] Alvarez and other
Board staff members . . . to the Board dated September 15, 2008 entitled Issues Related to
Possible IPC Lending to American International Group and labeled ***DRAFT***. Document
2 contained Board staff’s analysis of AIG’s operations, current difficulties, liquidity, solvency,
and related issues, and discussed possible risks and benefits of a loan to AIG to assist the Board
in deciding whether to authorize the AIG Loan.” (Id.). The Board argues that these are not the
types of documents that are traditionally considered the working law of the agency, but instead
are “advisory opinions [and] recommendations” made by subordinates to their superiors
“comprising part of a process by which governmental decisions and policies are formulated, [or]
the personal opinions of the writer prior to the agency’s adoption of a policy.” Elec. Frontier
Found., 739 F.3d at 7.
The D.C. Circuit recently synthesized prior decisions regarding similar documents in
Electronic Frontier Foundation:
The authorities that control the disposition of this case are the decisions holding that the
deliberative process privilege does cover legal memoranda that concern the advisability
of a particular policy, but do not authoritatively state or determine the agency’s policy.
For example, we have held exempt from disclosure memoranda containing legal advice
from the Legal Adviser to the Secretary of State “concerning United States policy on
issues involving” affairs in the Middle East. Brinton v. Dep’t of State, 636 F.2d 600, 602
(D.C. Cir. 1980). The court explained that “[t]here can be no doubt that such legal
advice, given in the form of intra-agency memoranda prior to any agency decision on the
issues involved, fits exactly within the deliberative process rationale for Exemption 5.”
Id. at 604. The Legal Adviser’s “role is to give advice to those in the State Department
who do make the policy decisions,” and, thus, the “flow of advisory material is exactly
opposite of the paradigm of ‘final opinions,’ which typically flow from a superior with
policy-making authority to a subordinate who carries out the policy.” Id. at 605 (citation
omitted). In Murphy v. Dep’t of Army, 613 F.2d 1151, 1154 (D.C. Cir. 1979), this court
held that the privilege covers a memorandum from the Army General Counsel to
6

Caperton explains that while Document 1 was created on April 2, 2008—after the Board’s March 16 decision—it
memorializes advice and recommendations made before the decision. (Caperton Decl. ¶ 11). Ball does not
challenge this assertion or argue that the timing of the memorandum impacts the application of Exemption 5.

19

Assistant Secretary providing advice on whether to enter a contract, because “[t]he
Assistant Secretary who had decision-making power . . . sought advice from the general
counsel . . . on the legal questions raised.” (citations omitted) (emphasis added) . . . [In
this case, e]ven if the OLC Opinion describes the legal parameters of what the FBI is
permitted to do, it does not state or determine the FBI’s policy. The FBI was free to
decline to adopt the investigative tactics deemed legally permissible in the OLC Opinion.
Id. at 8-10 (emphasis in original). Similarly, Documents 1 and 2 do not dictate or describe Board
law or policy—they contain recommendations and opinions of Board staff given to the Board to
assist in their decision-making.
a. Public Adoption
Ball argues that Board personnel made numerous public statements that indicate that the
Board has adopted Documents 1 and 2 as the working law of the agency. In support of this
assertion, Ball cites the following:


A press release issued the same day the Board authorized the AIG Loan, stating that
the Board had “determined, in current circumstances, [that] a disorderly failure of
AIG could add to already significant levels of financial market fragility and lead to
substantially higher borrowing costs, reduced household wealth, and materially
weaker economic performance.” (Pl. Mot. 5).



A statement by Board Vice Chairman Donald L. Kuhn in testimony before the Senate
Committee on Banking, Housing, and Urban Affairs, in which Mr. Kuhn said that
“the prospect of AIG’s disorderly failure posed considerable systemic risks . . . as a
consequence of its significant and wide-ranging operations. Such a failure would also
have further undermined business and household confidence . . . .” (Id. at 5-6).



Testimony of Board Chairman Ben Bernanke before the House Committee on
Financial Services in February 2009, where he described the Board’s authorization of
the loans to “stabilize systemically critical financial institutions” as “essential to
protect the financial system as a whole.” (Id. at 6).



A report to Congress by the Board stating that “[t]he sudden imminence of insolvency
for Bear Stearns, the large presence of Bear Stearns in several important financial
markets . . . and the potential for contagion to similarly situation firms . . . if Bear
Stearns were suddenly unable to meet its obligations to counterparties” supported the
Board’s determination “that unusual and exigent circumstances existed” to justify the
invocation of Section 13(3). (Id.).



Testimony given in July 2010 by Board General Counsel Scott Alvarez, one of the
authors of Document 1, to the Financial Crisis Inquiry Commission (“FCIC”).
20

During that testimony, Alvarez was asked “Would it be the case that insofar as these
kinds of memoranda and decisions interpret what are admittedly relatively vague
terms of [section] 13(3), do you guys regard that as worthy of Chevron deference?”
Alvarez responded “Absolutely. Now, even I will admit that Chevron deference is
strongest when there’s a rulemaking involved, and this wasn’t a rulemaking, but we
are an expert agency interpreting our own statute and we have a long history in these
interpretations, so I think we would get some deference.” (Id. at 6-7).
A document that was not originally the working law of the agency can become so “‘if an
agency chooses expressly to adopt or incorporate by reference’ a memorandum that would have
otherwise been protected by the privilege.” Elec. Frontier Found., 739 F.3d at 10 (emphasis in
original) (citing Sears, Roebuck & Co., 421 U.S. at 161 (“[W]hen adopted, the reasoning
becomes that of the agency and becomes its responsibility to defend.”)). However, “‘the [D.C.
Circuit] has refused to equate reference to a report’s conclusions with adoption of its reasoning,
and it is the latter that destroys the privilege.’ Access Reports v. Dep’t of Justice, 926 F.2d 1192,
1197 (D.C. Cir. 1991) (a department head’s ‘confused statement’ in testimony before a Senate
committee that might be read as a reference to the privileged document ‘fell far short of the
express adoption required by Sears.’); Common Cause v. IRS, 646 F.2d 656, 660 (D.C. Cir.
1981) (‘casual allusion in a post-decisional document to subject matter discussed in some predecisional, intra-agency memoranda is not the express adoption or incorporation by reference
which . . . would remove the protection of Exemption 5.’).” Id.
The first four Board statements cited by Ball shed no light on whether the Board adopted
Documents 1 and 2 as its working law. At most, the press release, testimony, and Congressional
report merely recount the general factual background and reasons for the Board’s decisions with
respect to the Maiden Lane Loan and the AIG Loan. Nowhere are Documents 1 and 2
mentioned or relied on as the basis for those decisions. The Board’s generic explanation of its
prior decision-making process says nothing about whether Documents 1 and 2 have been
adopted as the Board’s working law.
21

The last example—Alvarez’s testimony to the FCIC—is a closer call. Alvarez seemed to
suggest that the memorandums should be entitled to deference, which may suggest that they
represent the Board’s official interpretation of section 13(3) and have been adopted as the
agency’s official policy. But this argument is problematic for several reasons. First, the context
of Alvarez’s statement casts significant doubt as to whether it is worthy of the significance Ball
ascribes to it.7 In the course of Alvarez’s testimony, FCIC identified a memo regarding a
specific lending facility and asked if it was “a fair representation of the Board’s views of the
meaning and substance of the various key provisions of 13(3)?” Alvarez responded that the
memo “doesn’t try to capture all of our thoughts on 13(3), it just captures what we thought about
13(3) as it applied to the CPFF. So there’s memos that we wrote on a variety of different 13(3)
transactions and they’re slightly different or focused on different things depending on what the
author [] – what the kind of loan was that we were dealing with.” When pushed on whether the
Board had memorialized its interpretation of section 13(3), Alvarez explained that “we didn’t do
a single memo that tried to encapsulate, we didn’t do a law review article . . . we were more ad
hoc . . . when Bear Stearns, we did a Bear Stearns memo, when CPFF, we did that. TALF, we
did a TALF memo, we did an AIG memo, we did one for each extension.” (Caperton Suppl.
Decl. ¶ 3).
Alvarez disclaimed the proposition that the memos are the working law of the agency
regarding its interpretation of section 13(3), and explained that a memo was drafted for each
transaction, and that the contents of each memo differed depending on the facts and
circumstances. He noted that the Board did not try to encapsulate its thinking regarding the legal

7

Apparently there is no transcript of the testimony, so the Board attempted to recreate Alvarez’s testimony from an
audiofile of the interview. Since Ball does not contest the authenticity of the transcription, the court will assume it is
accurate.

22

interpretation of section 13(3) into one document, but created multiple documents, each of which
“just capture[d] what we thought about 13(3) as it applied” to the different transactions. (Id.).
This suggests that Documents 1 and 2 were not the agency exposition of its working law, but
were instead deliberative documents regarding the pros and cons of making particular decisions.
And although Alvarez claimed the Board should be afforded Chevron deference, it is not
clear exactly what Alvarez believed should be afforded that deference. When asked if “these
kinds of memoranda and decisions” were worthy of Chevron deference, Alvarez responded that
“we are an expert agency interpreting our own statute and we have a long history in these
interpretations so I think we would get some deference.” (Id.). While it is possible Alvarez
meant that the memos should be given deference as the written record, it is also possible that he
meant that the Board’s actual decision to authorize the loans, based on its interpretation of
section 13(3), should receive deference.
In addition, it is not clear whether Alvarez had the authority to adopt Board policy in the
first place. Ball acknowledges this possibility, Pl. Reply 5-6, but nonetheless argues that
Alvarez’s statement is at least some evidence of the Board’s adoption of Documents 1 and 2 as
its working law, especially considering that the Board apparently relied on the advice in
Documents 1 and 2 by authorizing the loans. Ball cites Nat’l Council of La Raza v. DOJ, 411
F.3d 350, 357 n.6 (2d Cir. 2005), in which the court held that “even assuming arguendo that
these employees do not themselves have the power to adopt or incorporate the OLC
Memorandum, their statements serve as evidence of the Department’s position on the matter.”
However, in La Raza, the “repeated references to the OLC Memorandum” at issue had been
made not only by subordinate employees, but also the Attorney General, who did have the
authority to adopt agency policy. Id. at 357. The court in La Raza did not suggest that it would

23

have given any weight to the employee statements if they had not also been made by the
Attorney General. Id. Here, while Alvarez is a senior agency official, the final decision whether
to authorize the loans was made by the Board, not Alvarez. The Board could choose to use or
ignore the advice in Documents 1 and 2, and there is no indication as to how Documents 1 and 2
influenced the Board’s decision, if at all. Ball has not provided sufficient evidence that
Documents 1 and 2 were adopted as the Board’s working law, and “it is [the plaintiff’s] and not
the Board’s burden to establish that predecisional records have been adopted as policy.”
McKinley v. Bd. of Governors of the Fed. Reserve Sys., 849 F. Supp. 2d 47, 63 (D.D.C. 2012).
The Board has therefore met its burden with respect to the application of Exemption 5.
The court’s decision is in accord with the courts in McKinley v. FDIC, 744 F. Supp. 2d
128 (D.D.C. 2010) (“McKinley I”); McKinley v. Bd. of Governors of Fed. Reserve Sys., 647 F.3d
331 (D.C. Cir. 2011) (“McKinley D.C. Cir.”), and McKinley v. Bd. of Governors of the Fed.
Reserve Sys., 849 F. Supp. 2d 47 (D.D.C. 2012) (“McKinley II”). In McKinley I, the Board
withheld, inter alia, a memorandum from the Board’s General Counsel and legal staff to the
Board regarding the authority of the Federal Reserve to provide an extension of credit to Bear
Stearns through JPMorgan Chase. (Caperton Decl. Ex. F). The memorandum in McKinley I is
substantially similar to Document 1 and concerns a separate but related transaction to the Maiden
Lane Loan. (Caperton Decl. ¶ 19). The documents have the same date, were prepared by the
same authors, and concern loans made pursuant to section 13(3) two days apart, both regarding
Bear Stearns. The court in McKinley I held that the memorandum in that case could be withheld
pursuant to Exemption 5; the D.C. Circuit affirmed that decision in McKinley D.C. Cir.
In McKinley II, the court considered a document almost identical to Document 2. The
plaintiff in that case dropped its objection to the withholding of Document 2 specifically, but

24

challenged the withholding of an earlier draft. “Document 2 is substantially the same document
as document 753-764 in McKinley II. Document 2 and document 753-764 have the same date,
authors, recipients, and subject, but contain some differences in text, reflecting that Document 2
is an updated draft of document 753-764.” (Caperton Decl. ¶ 25). The court in McKinley II
upheld the agency’s assertion of Exemption 5. While Ball contends that McKinley II is
inapposite because that court did not consider the exact same memorandum as Document 2, he
has not identified any salient difference which should lead this court to disagree with the holding
in that case. As in the McKinley cases, the court here finds that Documents 1 and 2 were
properly withheld pursuant to the deliberative process privilege under Exemption 5.
c. Documents 3 and 4—Collateral Spreadsheets – Exemption 8
The Board withheld Documents 3 and 4 in their entirety pursuant to Exemption 8, which
allows agencies to withhold records “contained in or related to examination, operating, or
condition reports prepared by, on behalf of, or for the use of an agency responsible for the
regulation or supervision of financial institutions.” 5 U.S.C. § 552(b)(8). Ball does not dispute
that Documents 3 and 4 are “contained in or related to examination, operating, or condition
reports.” Given that the “‘related to’ language [in Exemption 8] casts a wide net of nondisclosure over any documents that are logically connected to an ‘examination, operating, or
condition report[ ],’” Pub. Investors Arbitration Bar Ass’n v. SEC, 930 F. Supp. 2d 55, 62
(D.D.C. 2013), and Ball does not contest that the spreadsheets are related to bank examination
reports, the court finds that the Board has sufficiently established this element.
Ball’s sole argument in opposition to withholding of the documents under Exemption 8 is
that the collateral spreadsheets contain information provided to the Board from the FRBNY, and
because the FRBs are not “financial institutions,” the spreadsheets were not “prepared . . . for the

25

use of an agency responsible for the regulation or supervision of financial institutions.” Ball
asserts that: (1) it is illogical and erroneous for the Board to argue that the FRBs are both
regulators and regulated entities; (2) the cases interpreting Exemption 8 have relied on two
definitions of “financial institution,” neither of which contemplates the FRBs as financial
institutions; and (3) finding that the FRBs are financial institutions would not further the
purposes of Exemption 8, which is further evidence that the exemption does not apply.
As with any question of statutory interpretation, the court starts with the plain meaning of
the text. That interpretation is informed by the D.C. Circuit’s teaching that “the meaning of
exemption 8 [is] clear,” and “its broad, all-inclusive scope should be applied as written since
Congress ha[s] ‘intentionally and unambiguously’ so contemplated.” Gregory v. FDIC, 631 F.2d
896, 898 (D.C. Cir. 1980) (per curiam) (quoting Consumers Union of United States, Inc. v.
Heimann, 589 F.2d 531, 533 (D.C. Cir. 1978)). Because “Congress has intentionally and
unambiguously crafted a particularly broad, all-inclusive definition . . . it is not [the court’s]
function, even in the FOIA context, to subvert that effort.” Heimann, 589 F.2d at 533; see also
McKinley I, 744 F. Supp. 2d at 143.
Bearing in mind the broad scope of Exemption 8, the court must determine the meaning
of “financial institution” as used in the exemption. Few courts have had occasion to analyze
whether the FRBs qualify as financial institutions; the Board identified only a single case where
a court held that FRBs are financial institutions, and Ball did not cite any cases that held they
were not. In Clarkson v. Greenspan, No. 97-2035, 1998 U.S. Dist. LEXIS 23566 (D.D.C. June
30, 1998), the FRBs sought to withhold examination reports conducted by the Board, arguing
that the Board was an agency responsible for the supervision of the FRBs, which in turn were
financial institutions. The court held that:

26

A financial institution is any “organization authorized to do business under state or
federal laws relating to financial institutions, including, without limitation, banks and
trust companies, . . . .” Pub. Citizen v. Farm Credit Admin., 938 F.2d 290, 292 (D.C. Cir.
1991) (quoting Black’s Law Dictionary 568 (5th ed. 1979)) . . . Federal Reserve Banks
serve as the “bankers’ banks,” doing “for existing banks what an ordinary bank does for
its customers.” H. Rep. No. 69, 63rd Cong., 1st Sess. 32, 36 (1913). The Federal
Reserve Banks are regulated by the Board of Governors of the Federal Reserve System.
The Banks withheld any examinations of the Reserve Banks conducted by or for the
Board of Governors. Since the examinations were done by or for the agency responsible
for regulating the Federal Reserve Banks, the defendant Banks properly invoked
Exemption 8.
Id. at *23-24. Other courts have interpreted “financial institution” broadly to include other nontraditional financial entities. Pub. Citizen v. Farm Credit Admin., 938 F.2d 290, 292 (D.C. Cir.
1991) (the National Consumer Cooperative Bank was a financial institution because “[t]he
NCCB is authorized to do business under Title 12, the portion of the United States Code relating
to ‘Banks and Banking’ and other matters concerning financial institutions. Moreover,
institutions providing credit services, as does the NCCB, are included within the term ‘financial
institutions.’”); Nat’l Cmty. Reinvestment Coal. v. Nat’l Credit Union Admin., 290 F. Supp. 2d
124, 135 (D.D.C. 2003) (dismissing case for lack of standing but finding that credit unions are
financial institutions under Exemption 8); Mermelstein v. SEC, 629 F. Supp. 672, 675 (D.D.C.
1986) (Boston Stock Exchange was a financial institution based on a definition of financial
institution found in the legislative history of the Sunshine Act, a statute similar to FOIA).
Courts have generally used two definitions of “financial institution” to guide their
analysis. First, Black’s Law Dictionary defines financial institution as “[a] business,
organization, or other entity that manages money, credit, or capital, such as a bank, credit union,
savings-and-loan association, securities broker or dealer, pawnbroker, or investment company.”
Black’s Law Dictionary 748 (10th ed. 2014).8 Second, courts cite the definition in the legislative

Black’s did not define the term “financial institution” at the time FOIA was enacted. The D.C. Circuit used a prior
edition of Black’s in its decision in Public Citizen, as did the court in Clarkson (which held that Federal Reserve
8

27

history of the Sunshine Act, which uses the term twice (and in one instance adopts FOIA
Exemption 8 in its entirety). A Senate report for the Sunshine Act defined financial institutions
as including “banks, savings and loan associations, credit unions, brokers and dealers in
securities or commodities, such as the New York Stock Exchange, investment companies,
investment advisors, self-regulatory organizations subject to 15 U.S.C. § 78(s) and institutional
managers as defined in 15 U.S.C. § 78m(f).” S. Rep. No. 94–354, at 24 (1975).9
Ball argues that because the FRBs are not banks in the traditional sense, they are not the
type of institution intended to be covered by Exemption 8. The exemption covers “financial
institutions,” not just banks. Even if Exemption 8 was so limited, FRBs could still be considered
banks. Ball notes the distinction in the Federal Reserve Act between “reserve bank” and “bank,”
“national bank,” or “member bank” to argue that FRBs are statutorily distinct from normal
banks. (Pl. Opp’n 18). While Ball is correct that a reserve bank is distinguished from a national
bank or member bank, it is not true that the Federal Reserve Act specifically excludes FRBs
from the definition of “bank.” In fact, the Act states that “[w]herever the word ‘bank’ is used in
this chapter, the word shall be held to include State bank, banking association, and trust
company, except where national banks or Federal reserve banks are specifically referred to.” 12
U.S.C. § 221. “Bank” therefore includes FRBs in at least some sections of the Federal Reserve
Act, and in fact there are multiple sections in the Act where FRBs and member banks are

Banks are financial institutions). See Pub. Citizen, 938 F.2d at 292; Clarkson, 1998 U.S. Dist. LEXIS 23566, at
*23.
“Financial institution” is defined elsewhere in the U.S. Code, but these definitions are ultimately inconclusive. For
example, Title 18 defines financial institution to include Federal Reserve Banks for the purposes of a computer fraud
statute, but excludes Federal Reserve Banks in a bribery statute. See 18 U.S.C. §§ 1030, 212. The Bankruptcy Code
definition includes Federal Reserve Banks. 11 U.S.C. § 101(22)(A). A provision in the Graham-Leach-Billey Act
regarding fraudulent access to financial information resembles the Black’s definition: “any institution engaged in the
business of providing financial services to customers who maintain a credit, deposit, trust, or other financial account
or relationship with the institution.” 15 U.S.C. § 6827(4)(A). While these definitions are not dispositive, they are
some evidence that the term does not categorically exclude FRBs.
9

28

referred to interchangeably. See 12 U.S.C. § 248 (granting the Board the authority “[t]o examine
at its discretion the accounts, books, and affairs of each Federal reserve bank and of each
member bank”); § 501 (making it unlawful for any employee of “any Federal reserve bank, or
any member bank” to certify a check without an underlying deposit). Further, as the court in
Clarkson noted, the FRBs are traditionally considered the “‘bankers’ banks.’” Clarkson, 1998
U.S. Dist. LEXIS 23566, at *23.
Bank or not, FRBs are included in the broader definition of financial institution, which is
any “entity that manages money, credit, or capital.”10 Pursuant to the Federal Reserve Act, each
FRB commences with a subscribed capital of at least $4,000,000. 12 U.S.C. § 281. FRBs may
receive deposits, make advances on promissory notes, buy and sell debentures, and buy and sell
bonds and notes. See 12 U.S.C. §§ 342, 347d, 347, 347c, 350, 355(1). FRBs may act as
depositories for various institutions, §§ 393-95, and “[t]he moneys held in the general fund of the
Treasury . . . [may] be deposited in Federal reserve banks . . . and disbursement may be made by
checks drawn against such deposits.” Id. at § 391. Ball is correct that FRBs engage in other
activities which are not the domain of traditional financial institutions, including managing the
nation’s monetary policy and examining member banks. It may also be true that the FRBs have
a public purpose, at least in part. This does not mean, however, that the FRBs do not also
function as financial institutions. Like many other banks or financial institutions, the FRBs may
“adopt and use a corporate seal . . . make contracts . . . sue and be sued . . . [and] prescribe . . .
bylaws . . . regulating the manner in which its general business may be conducted.” 12 U.S.C. §

10

The examples of financial institutions provided in Black’s—“such as a bank, credit union, [etc.]”—are
representative and do not provide an exhaustive list of entities which are financial institutions. See Am. Council of
Life Insurers v. D.C. Health Benefit Exch. Auth., No. 14-CV-1138, 2014 WL 5893464, at *12 (D.D.C. Nov. 13,
2014) (“The words ‘such as’ preceding the example have meaning, and indicate that the example that follows is not
exclusive but only an available option.”).

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341. As a publication by the Federal Reserve titled “The Federal Reserve System: Purposes &
Functions” explains, the FRBs “carr[y] out a variety of System functions, including operating a
nationwide payments system, distributing the nation’s currency and coin, supervising and
regulating member banks and bank holding companies, and serving as banker for the U.S.
Treasury . . . each Reserve Bank acts as a depository for the banks in its own District.”11 The
FRBs are hybrid entities, with some public and some private functions,12 but at least some of
their functions are those of a financial institution. They manage “money, credit, or capital,” and
therefore under a plain meaning interpretation they qualify as financial institutions.
Contrary to Ball’s assertion, finding the FRBs to be financial institutions would further
Exemption 8’s purposes: “(1) to ensure the security of financial institutions by eliminating the
risk that disclosure of examination, operation, and condition reports containing frank evaluations
of the investigated banks [] might undermine public confidence and cause unwarranted runs on
banks; and (2) to safeguard the relationship between the banks and their supervising agencies
because if details of the bank examinations were made freely available to the public and to
banking competitors, banks would cooperate less than fully with federal authorities.” McKinley
I, 744 F. Supp. 2d at 142-43, aff’d on other grnds, McKinley D.C. Cir., 647 F.3d 331. As the
D.C. Circuit has explained, “the exemption was drawn to protect not simply each individual bank
but the integrity of financial institutions as an industry.” Gregory, 631 F.2d at 898. Ball argues

“The Federal Reserve System: Purposes and Functions” is a Board publication upon which courts have relied to
explain the workings of the Federal Reserve. See Fed. Open Mkt. Comm. of Fed. Reserve Sys. v. Merrill, 443 U.S.
340, 343 n.2 (1979); Fox News Network, LLC v. Bd. of Governors of The Fed. Reserve Sys., 639 F. Supp. 2d 384,
401 (S.D.N.Y. 2009), vacated and remanded on other grounds, 601 F.3d 158 (2d Cir. 2010). In the Purposes and
Functions’ “Glossary of Terms,” financial institution is defined broadly: “Institution that uses its funds chiefly to
purchase financial assets, such as loans or securities (as opposed to tangible assets, such as real estate).” BD. OF
GOVERNORS, FED. RESERVE SYSTEM, THE FED. RESERVE SYSTEM: PURPOSES AND FUNCTIONS (2005).
11

12

See U.S. Shipping Bd. Emergency Fleet Corp. v. W. Union Tel. Co., 275 U.S. 415, 425-26 (1928)
(“Instrumentalities like the national banks or the federal reserve banks, in which there are private interests, are not
departments of the government. They are private corporations in which the government has an interest.”).

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that because “a Federal Reserve Bank [does not have] the option of declining to provide
information that the Board determines ‘in its discretion’ to examine,” release of the records here
could not possibly chill the frank exchange of information between the Board and FRBNY. (Pl.
Mot. 20). However, as the Board points out, the fact that it can require examination of the FRBs
is no different than any other financial institution subject to mandatory supervision by a federal
regulator. If a financial institution cannot expect confidentiality, it may be less cooperative and
forthright in its disclosures, even if an examination is mandatory. There is no reason to believe
the FRBs would not react the same way. See Roseman Decl. ¶ 12. Similarly, it seems likely that
financial institutions which provide the FRBs with information would be significantly more
cautious if they knew that, once transmitted to the Board, their information lost the protection to
which it would normally be entitled. Creating an environment conducive to frank exchange is
particularly important in circumstances like the 2008 financial crisis, where real-time data was
circulating between financial institutions and regulators at lightning speed, and this frank
exchange is what Congress sought to protect with Exemption 8.
Even if the Banks are not “financial institutions” under Exemption 8, the Board could
likely still withhold Documents 3 and 4. “[T]he D.C. Circuit has held that, for purposes of
Exemption 8, ‘examination reports need not pertain to an institution that is regulated or
supervised by the withholding agency.’ This means that agencies that do not directly regulate or
supervise a particular financial institution may still withhold information about that institution
under Exemption 8, so long as the withholding agency is one that is ‘responsible for the
regulation or supervision of financial institutions’ more generally.” Pub. Investors Arbitration
Bar Ass’n, 930 F. Supp. 2d at 62-63, aff’d, 771 F.3d 1 (D.C. Cir. 2014) (citing Pub. Citizen, 938
F.2d at 294). The Board is clearly an agency that is “responsible for the regulation and

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supervision of financial institutions more generally.” The parties did not address whether Bear
Stearns and AIG themselves are financial institutions, but it is reasonably likely that they are,
meaning the Board could likely have withheld the documents under Exemption 8 even if the
FRBNY was not a financial institution.
d. Segregability
As noted above, under FOIA an agency must produce “any reasonably segregable
portion” of a record that is not exempt from disclosure, 5 U.S.C. § 552(b), and the court must
affirmatively determine whether the agency has done so. Caperton’s declaration explains that he
“worked with other members of the Board’s Legal Division to create the Vaughn Index” for
Documents 1 and 2 and “personally reviewed each page of information identified in the Vaughn
index.” (Caperton Decl. ¶ 17). In addition to this review, Caperton affirms that Documents 1
and 2 are substantially similar to documents withheld in their entirety in McKinley I, McKinley
D.C. Cir., and McKinley II. (Caperton Decl. ¶ 18). With respect to Documents 3 and 4,
Caperton “determined that they contained no reasonably segregable, non-exempt information”
because he “determined that the entirety of those documents, which are bank examination
workpapers, are contained in or related to examination, operating or condition reports prepared
by, on behalf of, or for the use of the Board in its capacity as financial institution supervisor of
the FRBNY, and that no portion of those documents was unrelated to a bank examination.”
(Caperton Decl. ¶ 33). The Vaughn index reasonably describes the documents withheld and the
basis for withholding them in full. The court is therefore satisfied that the Board has produced
all reasonably segregable nonexempt information.

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IV.

CONCLUSION
For the foregoing reasons, the Board’s motion for summary judgment is granted and

Ball’s motion for summary judgment is denied. Because Exemptions 5 and 8 permit the Board
to withhold Documents 1-4 in their entirety, the court need not discuss the Board’s other bases
for withholding. An appropriate Order accompanies this Memorandum Opinion.

Date: March 31, 2015

Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge

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