Molchatsky et al v. United States Of America

Filing 14

DECLARATION of Howard Elisofon in Opposition re: 5 MOTION to Dismiss for Lack of Jurisdiction.. Document filed by Phyllis Molchatsky, Steven Schneider. (Oleske, John)

Howard Elisofon, Esq.
Christopher J. Sullivan, Esq.
John Oleske, Esq.
Kerry K. Jardine, Esq.
Attorneys for Plaintiffs
Herrick, Feinstein LLP
2 Park Avenue
New York, New York 10016
Tel: [phone]
Email: [e-mail]

ELECTRONICALLY-FILED DOCUMENT

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--------------------------x
: Case No 09 CIV 8697 (LTS/AJP)
PHYLLIS MOLCHATSKY and STEVEN
SCHNEIDER, M.D.,
Plaintiffs,

: DECLARATION OF
HOWARD R. ELISOFON

vs.
UNITED STATES OF AMERICA,
Defendant.
--------------------------x

HOWARD R. ELISOFON, an attorney duly admitted to practice before the U.S.
District Court for the Southern District of New York, declares under penalty of perjury as
follows:
1.

I am a member of the law firm Herrick, Feinstein LLP, attorneys for

plaintiffs Phyllis Molchatsky and Steven Schneider, M.D (collectively "Plaintiffs"). I have
personal knowledge of the facts set forth herein. I make this Declaration on behalf of Plaintiffs
in opposition to the Government's motion to dismiss this matter.
2.

Attached hereto as Exhibit A is a true and correct file copy of a Freedom

of Information Act Request we served upon the SEC on January 26, 2009 (the "Request"), by

which we sought additional evidence relating to the potential existence of policies, practices, and
procedures of the SEC, not mentioned in the Report.
3.

Attached hereto as Exhibit B is a true and correct copy of the SEC's

response to the Request dated February 23, 2009 (the "Response") in which the SEC objected to
most of the Requests on the grounds of burdensomeness and/or the law-enforcement privilege,
referred us to publicly-available records-control and enforcement manuals, and deferred
responding to one of our requests dealing with personal relationships and personal gifts between
SEC staffers and employees of regulated entities. The SEC eventually responded to this last
request by referring us to SEC ethics guidelines.
4.

Attached hereto as Exhibit C is a true and correct copy of our appeal from

the Response dated April 24, 2009 (the "Appeal") in which we demonstrated the SEC's
obligation to produce the requested documents. The SEC did not respond to our appeal within
the 20-day mandate required by 5 U.S.C. § 552(a)(6)(A)(ii).
5.

Attached hereto as Exhibit D is a true and correct copy of a letter to the

SEC dated July 27, 2009, in which we reminded the SEC of its obligation to respond to our
appeal.
6.

The following day, we received a telephone call from a Ms. Celia L.

Jacoby with the SEC's FOJA response office. She indicated that the SEC had not received our
appeal. My colleague re-forwarded the appeal, receipt of which Ms. Jacoby confirmed the email
dated July 28, 2009, attached hereto as Exhibit B.
7.

We have no record of any further communication from the SEC

concerning our appeal after the July 28, 2009 email from Ms. Jacoby, and thereafter deemed the
SEC's denial of our appeal as final.

Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury under the laws of the
United States of America that the foregoing is true and correct.

Date: New York, New York
February 26, 2010

Is!

HOWARD R. ELISOFON

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HE R R I C K
NEW YORK I
NEWARK

H0wARI) R. ELIsOF0N
PARTNER
Direct Tel: [phone]
Direct Fax: 212.545,3366

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PRINCETON

Email: [e-mail]

January 26, 2009
VIA ELECTRONIC MAIL (FOIAPA(SEC.GOV )
& REGULAR MAIL
Securities and Exchange Commission
Office of FOIA and Privacy Act Operations
100 F Street, N.E.
Washington, D.C. 20549-5100
Re:

FOIA Request Concerning Bernard L. Madoff Investment Securities, LLC
and Internal SEC Practices and Procedures

Dear Sir/Madam:
This is a request under the Freedom of Information Act, 5 U.S.C. § 552, et seq.,
which relates to Bernard L. Madoff Investment Securities, LLC, or any Bernard L. Madoffrelated entity (collectively referred to as "Madoff") and the internal SEC Practices and
Procedures relevant to the past collection, handling, processing, and reporting of information
concerning Madoff. We request that a copy set of the following documents concerning these
matters be provided to us:
Any written communications or documents' sent between any person or entity
and the SEC, or between SEC employees, prior to December 11, 2008 concerning
any potential violations of applicable laws, regulations or rules of any regulatory
or self-regulatory agencies concerning Madoff, or concerning any allegation that
Madoffs internal policies, practices and procedures were insufficient to prevent
such violations.
2.

Any written communications or documents concerning any audit or investigation
of Madoff by the SEC which audit or investigation was ever classified as "closed"
by the SEC or was concluded in any other fashion.

3.

Any written communications or documents concerning any referrals or other
communication of information prior to December 11, 2008 between, among, or
within any SEC office, division, or other sub-unit to any other such office,
division, or other sub-unit, including, but not limited to, the Commissioners and
Chair of the SEC, concerning Madoff.

The terms "communication," "concerning," and "document" are defined as set forth in Local Rule 26.3 of the
Local Rt les of the United States District Court for the Southern District of New York,
HERRICK, FEINSTEIN LLP

A New York limited
liability partnership
including New York
professional corporations

2 PARK AVENUE, NEW YORK, NY 10016 • TEL [phone] • FAx [phone] •
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www.herrick.com

HE R R I C K

Securities and Exchange Commission
April 2, 2009
Page 2
4.

Any written communications or documents concerning any referrals or other
communication of information prior to December 11, 2008 from any lawenforcement, regulatory or self-regulatory agency (including, but not limited to,
NASD and its successor FINRA) to any other office, division, or other sub-unit of
the SEC, including, but not limited to, the Commissioners and Chair of the SEC,
concerning Madoff.

5.

Any written communications or documents concerning any audit, inquiry or other
investigation of Macloff by any self-regulatory agency (including, but not limited
to, NASD and its successor Fll'RA).

6.

Any written communications or documents concerning any manuals, policies,
procedures, practices, rules, regulations, directives, orders, instructions or customs
concerning the conduct by the SEC of audits, inquiries or other investigations of
broker/dealers, investment advisory firms, or hedge funds.

7.

Any written communications or documents concerning any manuals, policies,
procedures, practices, rules, regulations, directives, orders, instructions or customs
concerning the monitoring, research, intake, collection, review, or handling of
complaints from the public or industry participants regarding potential fraud or
other wrongdoing by broker/dealers, investment advisory firms, or hedge funds or
their employees.

8.

Any written communications or documents concerning any manuals, policies,
procedures, practices, rules, regulations, directives, orders, instructions or customs
concerning the monitoring, research, intake, collection, review, or handling of
publicly-available information regarding potential fraud or other wrongdoing by
broker/dealers, investment advisory firms, or hedge funds or their employees.

9.

Any written communications or documents concerning any manuals, policies,
procedures, practices, rules, regulations, directives, orders, instructions or customs
concerning the forwarding of information regarding potential fraud or other
wrongdoing by broker/dealers, investment advisory firms, or hedge funds
between, among, or within any SEC office, division, or other sub-unit to any other
such office, division, or other sub-unit, including, but not limited to, the
Commissioners and Chair of the SEC.

10.

Any written communications or documents concerning any manuals, policies,
procedures, practices, rules, regulations, directives, orders, instructions or customs
concerning the assignment of SEC personnel to perform any of the functions
identified in the above requests.

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Securities and Exchange Commission
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11.

Any written communications or documents concerning any manuals, policies,
procedures, practices, rules, regulations, directives, orders, instructions or customs
concerning the supervision of SEC personnel in their performance of any of the
functions identified in the above requests.

12.

Any written communications or documents concerning any manuals, policies,
procedures, practices, rules, regulations, directives, orders, instructions or customs
concerning the prohibition or removal of SEC personnel from performance of any
of the functions identified in the above requests, whether on the grounds that said
personnel suffer from a conflict of interest, or otherwise.

13.

Any written communications or documents concerning any manuals, policies,
procedures, practices, rules, regulations, directives, orders, instructions or customs
concerning the prohibition of SEC personnel from accepting personal gifts or
engaging in personal relationships with principals or employees of entities subject
to SEC regulation.

14.

Any written communications or documents concerning any manuals, policies,
procedures, practices, rules, regulations, directives, orders, instructions or customs
concerning the prohibition or removal of SEC personnel from performance of any
of the functions identified in the above requests, whether on the grounds that said
personnel suffer from a conflict of interest, or otherwise.

15.

Any written communications or documents concerning any incident in which any
SEC personnel were determined to have violated any of the manuals, policies,
procedures, practices, rules, regulations, directives, orders, instructions or customs
identified in the above requests, which incident related to Madoff, including, but
not limited to, letters of reprimand, demotions, or other forms of discipline.

16.

Any written communications or documents concerning any manuals, policies,
procedures, practices, rules, regulations, directives, orders, instructions or customs
concerning the storage, retention, and/or destruction of records.

17.

Any written communications or documents concerning Harry Markopolous,
including, but not limited to, all communications or documents concerning Mr.
Markopolous' allegations that Madoff was operating a ponzi scheme or was
otherwise engaged in any wrongdoing.

18.

Any written communications or documents concerning any SEC investigation or
inquiry of Madoff conducted in 1999, which was subsequently closed or
otherwise terminated.

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Securities and Exchange Commission
April 2, 2009
Page 4
19.

Any written communications or documents concerning any SEC investigation or
review of Madoff conducted in 2004, which was subsequently closed, concluded,
or otherwise terminated.

20.

Any written communications or documents concerning any SEC investigation or
review of Madoff conducted in 2005, which was subsequently closed or otherwise
terminated, including any written communications or documents concerning
interviews conducted by SEC staff of Bernard Madoff or members of his family.

21.

Any written communications or documents concerning the SEC investigation or
review of Madoff conducted in 2006 that resulted in the requirement that Madoff
register as an investment advisory firm.

22.

Any written communications or documents concerning any other SEC
investigation or review of Madoff.

The documents called for by this request do not include any privileged documents
or material. However, the production of all non-privileged internal investigative documents or
memoranda wherever located, in the possession, custody or control of the SEC, or in the
possession, custody or control of its representatives, employees, agents, consultants, auditors,
investigators or other persons, is requested.
To the extend the responses to these requests may be substantial, you may
provide documents on a rolling basis as they become available, but in any event, all requests
must be responded to, and responsive documents produced, within a reasonable time. To that
end, please provide responses to individual requests to the extent documents become available,
without regard to the availability of documents to satisfy other requests. Furthermore, to the
extent the requests call for copies of documents maintained in electronic format by the SEC,
please provide such copies in their native format.
Finally, we ask that these requests be interpreted and responded to in the spirit of
President Obama's Memorandum for the Heads of Executive Departments and Agencies
concerning the Freedom of Information Act, dated January 21, 2009, in which he instructed:
The Freedom of Information Act should be administered with a
clear presumption: In the face of doubt, openness prevails.
The Government should not keep information confidential merely
because public officials might be embarrassed by disclosure,
because errors and failures might be revealed, or because
of speculative or abstract fears. Nondisclosure should never
be based on an effort to protect the personal interests of
Government officials at the expense of those they are supposed
to serve. In responding to requests under the FOIA, executive

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HE R R I C K

Securities and Exchange Commission
April 2, 2009
Page 5
branch agencies (agencies) should act promptly and in a spirit
of cooperation, recognizing that such agencies are servants of
the public.
All agencies should adopt a presumption in favor of disclosure,

in order to renew their commitment to the principles embodied
in FOIA, and to usher in a new era of open Government. The
presumption of disclosure should be a pp lied to all decisions
involving FOIA.2
We would greatly appreciate your prompt response. Please do not hesitate to
contact me at [phone] if you have any questions. Thank you very much for your
anticipated assistance and cooperation.

Respectfully submitted,

Howard R. Elisofon

2

Text accessible at hiLtp://www,whitehouse.gov/the press office/FreedomofinformationAct! (emphasis added).

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IIJIU1IIII1R

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
STATION PLACE
100 F STREET, NE
WASHINGTON, DC 20549
Office of Freedom of Information
& Privacy Act Operations

Mail Stop 5100

February 23, 2009

Mr. Howard Elisofon
Herrick, Feinstein LLP
2 Park Avenue
New York, NY 10016
Re: Freedom of Information Act (FOIA), S U.S.C. § 552
Request No. 09-02219-FdA
Dear Mr. Elisofon:
This letter is a partial response to your request, dated
January 26, 2009 and received in this office on January 29,
2009, for certain information concerning any Bernard L. Madoff
related entity.
The tracking software the Commission uses to process FOIA
requests typically accommodates only one subject per request.
Your letter enumerates twenty-two (22) separate items. For your
convenience, however, I have assigned the single FOIA number
referenced above to your request. I will respond to all of the
subjects in your letter under this same number. In the future,
however, please limit any request to a single subject. See "How
to Make a FOIA or Privacy Act Request" at
http://www.sec.gov/foia/howfo2.htm.
With regard to the following request numbers, your request
is too broad and a reasonable search cannot be conducted: 6-12
and 14. For much of these requests there is extensive
information available at www.sec.qov. Please review and
research the publicly available material. If you are unable to
locate what you need, please contact us and identify expressly
those records you require.
With respect to number 16, please refer to the Commission's
records control schedule at 17 CFR § 200.80f. For numbers 6 and
9 we refer you to the Commission's Enforcement Manual on our
website.

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HERRICK
NEW YORK
NEWARK
PRINCETON

HOWARD ELISOFON
[phone]
EMAIL:
1LiSOFON(,ERR1CK.COM

April 24, 2009
BY FEDERAL EXPRESS
Andrew N. Vollmer
Acting General Counsel
Office of the General Counsel
U.S. Securities and Exchange Commission
100 F Street, NE
Washington, DC 20549
Re:

Freedom of Information Act Appeal - Request No. 09-02219-FOIA

Dear Mr. Vollmer:
This letter constitutes our appeal from the denial by the United States Security and
Exchange Commission ("SEC") of the above-referenced Freedom of Information Act request
(the "Request"). The Request, dated January 26, 2009, is appended hereto as Exhibit A. SEC's
letter in response denying the request, dated February 23, 2009 (the "Denial"), is appended
hereto as Exhibit B. In the Denial, SEC sets forth two categories of objections (in aaddition to its
purported ongoing consideration of a single request), each of which we address in turn.
First, the Denial characterizes Requests nos. 6-12 and 14 as "too broad" and states that "a
reasonable search cannot be conducted." The Denial then refers us to the SEC's website and
states that if we are unable to locate the requested documents on the website, we should contact
SEC "and identify expressly those records [we] require." The Denial also refers us to SEC's
records control schedule with respect to no. 16 and its Enforcement Manual with respect to nos.
6 and 9.
As a threshold matter, SEC cannot refuse to produce documents simply by characterizing
FOJA requests as "too broad," without providing any basis for the assertion that "a reasonable
search cannot be conducted." See Truitt v. Department of State, 897 F.2d 540, 542 (D.C. Cir.
1990) (agency "must conduct a search reasonably calculated to uncover all relevant documents")
(emphasis added). Indeed, as you may know, the FOIA statute was amended in 1974 to change
the requirement for the content of a FOIA request from a "request for identifiable records" to a
"request for records which. . . . reasonably describes such records." Id. at 545. This change was
made to "make[] explicit the liberal standard for identification that Congress intended and that
HERRICK, FEINSTEIN LLP
A N,York inted I
IbJty patheship
icIdng NewYork I
profeoonaIcorporatons

2 PARK AVENUE, NEW YoRK, NY xoox6 TEL 2 1 2 . 9 7 , I 40 0 • FAX zIz.92.I500 • www.heerick.com

HE R R I C K
' kndrew

N. Vollmer
April 24, 2009

courts have adopted." Id. at 545. See also McGehee v. CIA, 697 F.2d 1095, 1101, vacated in
part on other grounds 711 F.2d 1076 (1983) (agency must take reasonable steps "to ferret out
requested documents"); Sears v. Gottschalk, 502 F.2d 122, 126 (4 th Cir. 1974) ("equitable
considerations of the costs, in time and money, of making records available for examination do
not supply an excuse for non-production").
Moreover, the particular nature of our Requests nos. 6-12, which call for production of
documents relating to SEC's "manuals, policies, procedures, practices, rules, regulations,
directives, orders, instructions or customs," are, as a matter of law, not overly broad, and require
SEC to attempt to conduct a reasonable search before denying the Requests out of hand, as
appears to have been done in this case. Specifically, in National Cable Television Assoc. v.
Federal Communications Comm., 479 F.2d 183 (D.C. Cir. 1973)—which was decided before the
1974 clarification of the FOJA statute noted above—the court rejected FCC's attempt to evade
its FOJA responsibilities by characterizing a request as overly broad, where the request sought
documents relating to agency rule-making. There, the court stated that:
Where rulemaking proceedings have taken place, the agency has,
by definition, already identified its supporting documents. Indeed,
it would be a most reasonable practice for the agency to retain the
documents as a group or index them for future retrieval.
[Id. at 192-193].

Here, the Requests at issue are no different than those in National Cable. Those Requests
seek documents relating to SEC's adoption and application of various internal-control
mechanisms, which SEC should have no less ability to search for and review than it would the
documents relating to rule-making that were the subject of the National Cable decision.
Between that decision, the liberal standard for requests that was reinforced by Congress in its
1974 clarification, and the burden on the agency to "ferret out" responsive documents, SEC is
clearly under an obligation to do more in response to our Requests than simply disregard them
under the cover that they are "overly broad" and purportedly do not allow for a reasonable
search. Indeed, it is SEC's responsibility to attempt a search, and if such a search is allegedly
unproductive due to overbreadth, SEC bears the "burden of showing that its search was
adequate" through submission of sworn testimony. Carney v. U.S. Dep't of Justice, 19 F.3d 807,
812 (2d Cir.), cert. denied, 130 L. Ed. 2d 38, 115 S. Ct. 86(1994).
Second, the Denial states that SEC is withholding documents responsive to Requests nos.
1-5, 15, and 17-22 pursuant to the law enforcement exemption set forth in 5 U.S.C. §
552(b)(7)(A), 17 C.F.R. § 200.80(b)(7)(i). The Denial states, without any explanation or support
whatsoever, that the disclosure of these documents "could reasonably be expected to interfere
with enforcement activities." This invocation of the law enforcement exemption is patently
improper here, and is obviously being invoked to protect the SEC from embarrassment and
further exposure to liability, rather than to further any legitimate law enforcement purpose.

HERRICK
drew N. Vollmer
April 24, 2009
For one thing, SEC is not entitled to deny FOIA requests based on the law enforcement
exemption without conducting a reasonable search and then making an individualized
assessment of the documents uncovered by this search. Meeropol v. Meese, 790 F.2d 942 (D.C.
Cir. 1986) (requiring Department of Justice to first search before withholding production on
grounds of law enforcement exemption). The logic of this rule is unmistakable, in that even
though a particular request may call for documents covered by the exemption, it may also
include documents that have already been made public or related only to investigative or
enforcement matters no longer relevant to ongoing or future law enforcement efforts by the SEC.
Moreover, the Requests at issue here relate solely to prior, and now closed, SEC inquiries
or investigations of Bernard Madoff Investment Securities ("BMIS"). They do not seek
documents identifying confidential sources or SEC enforcement officers involved in any
investigations. In short, none of the concerns sought to be addressed by the law enforcement
exemption are at issue here. And, as you are aware, SEC has already produced similar
documents to USA Today and other media outlets in response to their own FOIA requests.
Finally, the Denial states that you are is "consulting with other Commission staff
regarding number 13 of your request." Given that Request no. 13 is phrased identically to the
Requests you have denied as overbroad, we presume that you will eventually deny this request
on the same grounds, and we assert the same objection to that prospective denial. Of course, if
SEC decides to produce documents relating to Request no. 13, we are more than willing to
coordinate that production on a rolling basis to accommodate SEC to the extent that production
is voluminous. Please let us know as soon as possible whether SEC intends to produce
documents responsive to this request, or whether it intends to classify that request as overbroad
prior to conducting a reasonable search.
To summarize, the SEC in one general, broad-brush denial has casually dismissed all but
one of our request, and has not produced a single responsive document relating to years of SEC's
development and implementation of its manuals, policies, procedures, practices, rules,
regulations, directives, orders, instructions or customs, along with records of its completed audits
and investigations. This blanket rejection clearly runs afoul of every legal principle and
precedent applied to the FOIA statute, as well as the spirit in which it is to be interpreted and
applied, as was explained by President Obama in one of his first Memoranda for the Heads of
Executive Departments and Agencies:
The Freedom of Information Act should be administered with a
clear presumption: In the face of doubt, openness prevails.
The Government should not keep information confidential merely
because public officials might be embarrassed by disclosure,
because errors and failures might be revealed, or because
of speculative or abstract fears. Nondisclosure should never
be based on an effort to protect the personal interests of
Government officials at the expense of those they are supposed
to serve. In responding to requests under the FOIA, executive
branch agencies (agencies) should act promptly and in a spirit

HERR IC K

Andrew N. Vollmer
April 24, 2009
of cooperation, recognizing that such agencies are servants of
the public.
All agencies should adopt a presump tion in favor of disclosure,

in order to renew their commitment to the principles embodied
in FOIA, and to usher in a new era of open Government.
presumption of disclosure should be applied to all decisions
involving FOIA.'

We look forward to receiving your response, which we hope will not be of the reflexiverejection variety SEC has responded with to date, but rather, will provide an explanation of the
nature of the search SEC has conducted, what types of materials have been collected,
confirmation that those materials will be produced, with any objections to the production of such
materials supported by specific, detailed, and itemized justifications.

Enclosures

1 Text accessible at http://www.whitehouse.gov/thepress office/FreedomoflnformationAct! (emphasis added).

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NEW YORK
NEWARK
PRINCETON

HOwju.D ELISOFON
[phone]

EMAIL:
}1ELIS0F0N(13RR1C1(.c0M

July 27, 2009
BY FEDERAL EXPRESS
David M. Becker
General Counsel
Office of the General Counsel
U.S. Securities and Exchange Commission
100 F Street, NE
Washington, DC 20549
Re: Freedom of Information Act Appeal - Request No. 09-02219-FOIA
Dear Mr. Becker:
I write with respect to our appeal from the denial by the United States Security and
Exchange Commission ("SEC") of the above-referenced Freedom of Information Act request
(the "Request"), which appeal was sent to your office on April 24, 2009.
As we are sure you are aware, under the FOIA statute, administrative agencies such as
the SEC must:
make a determination with respect to any appeal within twenty
days ...afier the receipt of such appeal. If on appeal the denial of
the request for records is in whole or in part upheld, the agency
shall notify the person making such request of the provisions for
judicial review of that determination under paragraph (4) of this
subsection.

§

5 U.S.C. 552(a)(6)(A)(ii)(emphasis added). "If the agency has not responded within the
statutory time limits, then, under 5 U.S.C. 552(a)(6)(C), the requester may bring suit." Oglesby
v. United States Dept ofArmy, 920 F.2d 57,62 (D.C. Cir. 1990).

§

Notwithstanding the 20-day mandate, the SEC has failed to respond to our appeal for
over three months. The SEC has defaulted on its obligations, and in doing so, has exhausted our
administrative remedies. As a result, we are now free to seek relief from the District Court.

HERRICK, FEINSTEIN LU'
A New York limited
liability partnership
including New York
professional corporations

HF 5224106 v.1 #88888/018107/27/2009 03:27 PM
2 PARK AVENUE, NEW YORK, NY iooi6 . TEL [phone]

•

FAX [phone] www.herrick.com

--

HERRICK
David M. Becker
July 27, 2009
However, without waiving our right to seek judicial intervention, and in an effort to
prevent needless litigation, we request that the SEC promptly either affirm or reverse the
rejection of the Request, or else state that it intends not to rule on our appeal. If we do not
receive a such a response within 10 business days, we will consider our appeal to have been
denied in its entirety, and will proceed accordingly.

RespectfulJy submitted,

HF 5224106 v.1 #88888/018107/27/2009 03:27 PM

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Page 1 of 1

Oteske, John
From: Jacoby, Celia L.
Sent:

Tuesday, July 28, 2009 11:24 AM

To:

Oleske, John

Cc:

Elisofon, Howard

Subject: RE: FOIA Appeal
thank you, I have received it and will gather records from the foia office today. Celia Jacoby

From: Oleske, John [mailto:joleske©herrick.com ]
Sent: Tuesday, July 28, 2009 10:59 AM
To: Jacoby, Celia L.
Cc: Elisofon, Howard
Subject: FOIA Appeal
Ms. Jacoby:
Attached please find our appeal to the denial of FOIA Request 09-0221 9-FOIA. Thanks again for your prompt response to our
follow-up letter - we appreciate that your office is overburdened and understaffed. Please let us know if any additional information
will, be helpful in processing our appeal.
John

The information in this message may be privileged, intended only for the use of the named recipient. If you received this
communication in error, please immediately notify us by return e-mail and destroy the original and any copies. Any tax
advice contained in this communication is not intended and cannot be used for the purpose of avoiding tax-related
penalties.

2/26/2010