McKinley v. Board of Governors of the Federal Reserve System , 647 F.3d 331 ( 2011 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 21, 2011 Decided June 3, 2011
No. 10-5353
VERN MCKINLEY ,
APPELLANT
v.
BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM ,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:09-cv-01263)
Michael Bekesha argued the cause for the appellant. Paul
J. Orfanedes was on brief.
Samantha L. Chaifetz, Attorney, United States Department
of Justice, argued the cause for the appellee. Tony West,
Assistant Attorney General, Beth S. Brinkmann, Deputy
Assistant Attorney General, Mark B. Stern, Attorney, Katherine
H. Wheatley, Associate General Counsel, Board of Governors of
the Federal Reserve System, and Yvonne F. Mizusawa, Senior
Counsel, were on the brief. R. Craig Lawrence, Assistant
United States Attorney, entered an appearance.
Before: HENDERSON , GARLAND and GRIFFITH , Circuit
Judges.
2
Opinion for the Court filed by Circuit Judge HENDERSON .
KAREN LE CRAFT HENDERSON , Circuit Judge: In December
2008 Vern McKinley (McKinley) submitted a request pursuant
to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, to
the Board of Governors of the Federal Reserve System (Board)
seeking information related to the Board’s March 14, 2008
decision to authorize the Federal Reserve Bank of New York
(FRBNY) to provide a temporary loan to The Bear Stearns
Companies Inc. (Bear Stearns) through an extension of credit to
JPMorgan Chase & Co. (JP Morgan). The Board produced
documents in response to McKinley’s request but withheld
others pursuant to FOIA Exemptions 4, 5, 6 and 8. McKinley
filed suit in district court to compel disclosure of the withheld
documents. He now appeals the district court’s entry of
summary judgment in favor of the Board.
I.
We begin with a brief overview of the Federal Reserve
System before describing the events surrounding the Board’s
March 14, 2008 loan decision and McKinley’s FOIA request.
A. Overview of Federal Reserve System
The Congress created the Federal Reserve System in 1913
to serve as the nation’s central bank. It is not a single entity “but
rather a composite of several parts, both public and private,
organized on a regional basis with a central governmental
supervisory authority.” Reuss v. Balles, 584 F.2d 461, 462 (D.C.
Cir. 1978). Two of the parts are relevant here—the Board and
the Federal Reserve Banks (Reserve Banks). The Board,
composed of seven members appointed by the President and
confirmed by the Senate, is the central supervisory authority of
the Federal Reserve System. 12 U.S.C. § 241. There are
currently twelve Reserve Banks, each located and operating
3
within a specific region of the country.1 A bank organized under
the laws of any State or the District of Columbia may apply to
the Board to join the Federal Reserve System. 12 U.S.C. § 321.
On joining, the bank purchases stock of the Reserve Bank
responsible for the region of the country where the bank is
located and thereby becomes a member bank. Id. Additionally,
all national banks, that is, banks chartered under the National
Bank Act of 1864 (formerly Act of June 3, 1864, ch. 106, 13
Stat. 99) (codified as amended in scattered sections of 12
U.S.C.); see Indep. Ins. Agents of Am., Inc. v. Hawke, 211 F.3d
638, 640 (D.C. Cir. 2000) (“The National Bank Act of 1864 . . . ,
as amended, provides for the chartering of national banks.”),
must join the Federal Reserve System by purchasing stock of the
Reserve Bank located in its district. 12 U.S.C. § 222. The
Reserve Banks, then, “are private corporations whose stock is
owned by the member commercial banks within their districts.”
Comm. for Monetary Reform v. Bd. of Governors of Fed.
Reserve Sys., 766 F.2d 538, 540 (D.C. Cir. 1985). Accordingly,
they have the power to make contracts, to sue and be sued, to
appoint a president and vice presidents, to prescribe bylaws and
to perform other acts consistent with a private corporation. 12
U.S.C. § 341.
Notwithstanding the foregoing powers, the Board exercises
significant supervisory authority over the Reserve Banks. For
example, the Board appoints three of the nine directors of each
Reserve Bank, 12 U.S.C. § 302; the Board approves the
compensation a Reserve Bank pays to its directors, id. § 307; the
Board approves each Reserve Bank’s selection of its president
and first vice president, id. § 341; the Board can suspend or
remove any officer or director of a Reserve Bank, id. § 248(f);
1
The Board can readjust the federal reserve districts, subject to
the requirement that there be at least eight and no more than twelve.
12 U.S.C. § 222.
4
and the Board can “examine at its discretion the accounts,
books, and affairs of each Federal reserve bank and of each
member bank and . . . require such statements and reports as it
may deem necessary,” id. § 248(a)(1). The Reserve Banks are
authorized to lend money to member banks. Id. § 343. “In
unusual and exigent circumstances, the [Board] . . . may
authorize any Federal reserve bank” to lend money to a non-
member institution. Id. § 343(A). Before doing so, however,
the Reserve Bank must “obtain evidence that [the institution] is
unable to secure adequate credit accommodations from other
banking institutions.” Id.
B. Bear Stearns Financing and FOIA Request
In early March 2008 the Board became aware that Bear
Stearns, an important participant in many financial markets, was
experiencing severe liquidity problems and might soon declare
bankruptcy. Stefansson Decl. ¶ 7.2 Bear Stearns was a holding
company comprised partly of registered broker-dealers and, as
such, was regulated by the United States Securities and
Exchange Commission (SEC), not the Board. Winter Decl.
¶¶ 10-11.3 Moreover, because Bear Stearns was not a depository
institution, it was ineligible to borrow through the Federal
Reserve’s regular short-term lending program. Stefansson Decl.
¶ 7. The tools with which the Board could respond to Bear
Stearns’s liquidity problems were accordingly limited.
Believing that a Bear Stearns bankruptcy would have far-
2
Coryann Stefansson is an Associate Director of the Board’s
Division of Banking Supervision and Regulation, a position she has
held since May 2007. Previously she was an FRBNY Assistant Vice
President in Bank Supervision and Regulation from 1998 until 2007.
Stefansson Decl. ¶ 1.
3
Margaret Winter is the FOIA and Privacy Act Officer of the
United States Securities and Exchange Commission. Winter Decl. ¶ 1.
5
reaching and negative effects on financial markets, however, the
Board and Reserve Bank staff surveyed those institutions subject
to the Board’s regulation to assess their exposure to Bear
Stearns. Id. ¶ 8. In particular, they sought to ascertain the
exposure of large complex banking organizations (LCBOs).4 Id.
On March 13, 2008 the SEC notified the Board and the FRBNY
that Bear Stearns had inadequate resources to meet its
obligations and planned to declare bankruptcy the following
morning. Id. ¶ 7 The Board met the following day—March
14—and determined “that, given the fragile condition of the
financial markets at the time, the prominent position of Bear
Stearns in those markets, and the expected contagion that would
result from the immediate failure of Bear Stearns, the best
alternative available was to provide temporary emergency
financing to Bear Stearns through an arrangement with
JPMorgan Chase & Co.” Thro Decl. Ex. A (minutes of Board
3/14/08 meeting).5 The Board accordingly authorized the
FRBNY to extend credit to JP Morgan to allow JP Morgan to
provide a temporary loan to Bear Stearns. The FRBNY, in turn,
approved the loan.6 The loan allowed Bear Stearns to avoid
4
“LCBOs are characterized by the scope and complexity of their
domestic and international operations; their participation in large
volume payment and settlement systems; the extent of their custody
operations and fiduciary activities; and the complexity of their
regulatory structure, both domestically and in foreign jurisdictions.
To be designated as an LCBO, a bank holding company or foreign
banking organization supervised by the Federal Reserve must meet
specified criteria to be considered a significant participant in at least
one critical or other key financial market.” Stefansson Decl. ¶ 3.
5
Alison Thro is “the most senior attorney in the Board’s Legal
Division responsible for reviewing FOIA requests.” Thro Decl. ¶ 1.
6
The FRBNY made the loan through JP Morgan because Bear
Stearns was not a depository institution and therefore was not eligible
6
filing for bankruptcy but, on March 16, the Board and the
FRBNY authorized a second loan to JP Morgan to facilitate JP
Morgan’s acquisition of Bear Stearns.
In December 2008 McKinley submitted to the Board a
FOIA request for “further detail on information contained in the
[March 14, 2008] minutes of the Board.” Thro Decl. Ex. A
(FOIA request). He specifically sought “any supporting memos
or other information that detail the ‘expected contagion that
would result from the immediate failure of Bear Stearns’ and the
related conclusion that ‘this action was necessary to prevent,
correct, or mitigate serious harm to the economy or financial
stability’ as described in the meeting minutes.” Id.
After having received no response from the Board by July
2009, McKinley filed a complaint in district court seeking a
declaratory judgment that FOIA entitles him to disclosure of the
information he requested and seeking disclosure of that
information. Compl. ¶¶ 36-47. The Board then produced 120
pages of previously released or publicly available documents on
August 11, 2009. McKinley v. FDIC, 744 F. Supp. 2d 128, 133
(D.D.C. 2010). On September 30, 2009 the Board produced an
additional forty-eight pages in full and twenty-seven pages with
information redacted. Id. It also identified and withheld 163
pages pursuant to FOIA Exemptions 4, 5, 6 and 8. Id. Eight of
the 163 withheld pages originated with the SEC and the Board
referred the disclosure determination regarding those documents
to receive funds directly from the FRBNY’s discount window.
Stefansson Decl. ¶ 7. “The Discount W indow is the long-standing
program through which the twelve Federal Reserve Banks make short-
term loans (often overnight) to depository institutions, and it can serve
as an emergency, back-up source of liquidity for borrowing depository
institutions that lack other options.” Bloomberg, L.P. v. Bd. of
Governors of Fed. Reserve Sys., 601 F.3d 143, 145-46 n.1 (2d Cir.
2010) (internal quotation marks omitted).
7
to the SEC.7 Id. The remaining withheld pages contain
information collected and used by the Board and the FRBNY to
assess the exposure of regulated financial institutions to Bear
Stearns as well as communications between Board and FRBNY
personnel. See Thro Decl. ¶¶ 17-23 (describing withheld
documents); Stefansson Decl. ¶¶ 12-14 (same). On January 7,
2010 the SEC informed McKinley that it was withholding the
eight documents referred to it by the Board pursuant to FOIA
Exemptions 5 and 8. Winter Decl. ¶ 5.
The Board moved for summary judgment on February 1,
2010 and McKinley filed a cross-motion for summary judgment.
The Board produced a Vaughn index identifying the withheld
material by document (rather than page), briefly describing the
withheld material and listing the FOIA exemption pursuant to
which the document was withheld. See Vaughn v. Rosen, 484
F.2d 820, 826-28 (D.C. Cir. 1973). McKinley does not
challenge the Board’s withholding of five documents pursuant
to FOIA Exemption 6. He challenges only the Board’s reliance
on FOIA Exemptions 4, 5 and 8. The district court held that the
withheld documents are protected from disclosure by FOIA
Exemption 5 or, in the alternative, by Exemption 8 and granted
summary judgment in favor of the Board. McKinley, 744 F.
Supp. 2d at 135-45. The court did not address the applicability
vel non of FOIA Exemption 4.8 Id. at 145. McKinley timely
filed a notice of appeal.
7
McKinley does not discuss the SEC documents on appeal and
has thus waived any challenge to the withholding of those documents.
See New York v. EPA, 413 F.3d 3, 20 (D.C. Cir. 2005) (argument not
raised in opening brief waived).
8
McKinley’s complaint originally included FOIA claims against
the Federal Deposit Insurance Corporation but they were ultimately
dismissed as moot. McKinley, 744 F. Supp. 2d at 131 n.1 (internal
citations omitted).
8
II.
We review the district court’s grant of summary judgment
de novo. Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1111-
12 (D.C. Cir. 2007). Summary judgment is proper if there is no
genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law. Id.FOIA requires federal agencies to disclose records upon
request unless the records fall within one or more enumerated
exemptions. Dep’t of Interior v. Klamath Water Users
Protective Ass’n, 532 U.S. 1, 7 (2001); see 5 U.S.C. § 552. The
exemptions are narrowly construed so as not to “ ‘obscure the
basic policy that disclosure, not secrecy, is the dominant
objective of the Act.’ ” Klamath, 532 U.S. at 8 (quoting Dep’t
of Air Force v. Rose, 425 U.S. 352, 361 (1976)). The relevant
exemption is Exemption 5, which allows an agency to withhold
disclosure of a record if the record meets two requirements: (1)
it is an “inter-agency or intra-agency memorandum[] or letter[]”
that (2) “would not be available by law to a party other than an
agency in litigation with the agency.”9 5 U.S.C. § 552(b)(5).
McKinley argues the withheld material fails to satisfy both
requirements.
A. Inter-Agency or Intra-Agency Memoranda
The Board concedes that the Federal Reserve Banks,
including the FRBNY, are not federal agencies and therefore the
withheld documents are not inter-agency memoranda. The
9
Because we conclude that Exemption 5 shields from disclosure
all of the withheld documents, we do not reach the applicability vel
non of Exemption 8, which allows an agency to withhold disclosure
of a record “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).
9
Board further concedes that the Reserve Banks are not
components of the Board, which concession would appear to
disqualify the withheld documents from constituting intra-
agency memoranda or letters. Under the “consultant corollary”
to Exemption 5, however, we interpret “intra-agency” “to
include agency records containing comments solicited from non-
governmental parties.” Nat’l Inst. of Military Justice v. U.S.
Dep’t of Defense (NIMJ), 512 F.3d 677, 680, 682 (D.C. Cir.),
cert. denied, 129 S. Ct. 775 (2008). “When an agency record is
submitted by outside consultants as part of the deliberative
process, and it was solicited by the agency, we find it entirely
reasonable to deem the resulting document to be an ‘intra-
agency’ memorandum for purposes of determining the
applicability of Exemption 5.” Id. at 680 (quoting Ryan v. Dep’t
of Justice, 617 F.2d 781, 790 (D.C. Cir. 1980)). Thus we held
in NIMJ that the consultant corollary protected opinions and
recommendations submitted by non-governmental lawyers to the
United States Department of Defense regarding the
establishment of military commissions to try suspected terrorists
after the September 11, 2001 attacks. Id. at 678-79.
McKinley does not dispute the “consultant corollary” but
challenges its application to the withheld documents on two
grounds. First, in reliance on the holding in Department of
Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1(2001), he argues the Board failed to demonstrate that the
FRBNY’s interest is identical to that of the Board. At issue in
Klamath was a FOIA request submitted to the United States
Department of the Interior’s Bureau of Indian Affairs (Bureau)
seeking disclosure of communications between the Bureau and
certain Indian tribes—namely, six documents prepared by Indian
tribes at the Bureau’s request and one document prepared by the
Bureau, all of which related to the allocation of water rights
among competing users/uses. 532 U.S. at 6. The United States
Supreme Court held that the requested documents were not
protected from disclosure under Exemption 5. The Court noted
10
that in the “typical” case in which a court applies the consultant
corollary, “the consultant does not represent an interest of its
own, or the interest of any other client, when it advises the
agency that hires it.” Id. at 11. “[The consultant’s] only
obligations are to truth and its sense of what good judgment
calls for, and in those respects the consultant functions just as an
employee would be expected to do.” Id. The Indian tribes, by
contrast, “necessarily communicate with the Bureau with their
own, albeit entirely legitimate, interests in mind.” Id. at 12.
Although that “fact alone distinguishes tribal communications
from the consultants’ examples recognized by several Courts of
Appeals,” the Court explained that the “distinction is even
sharper, in that the [Indian] Tribes are self-advocates at the
expense of others seeking benefits inadequate to satisfy
everyone.” Id. Lest there be any confusion, the Court restated
the “dispositive point”: “that the apparent object of the Tribe’s
communications is a decision by an agency of the Government
to support a claim by the Tribe that is necessarily adverse to the
interests of competitors.” Id. at 14.
Unlike the Indian tribes, the FRBNY “[did] not represent an
interest of its own, or the interest of any other client, when it
advise[d] the [Board]” on the Bear Stearns loan. Id. at 11. As
McKinley’s counsel acknowledged at oral argument, the
FRBNY is an “operating arm” of the Board. Oral Arg. 11:00-
11:05. McKinley nonetheless claims that the FRBNY
represented its own interest in its consultations with the Board
regarding Bear Stearns because the FRBNY had an independent
statutory duty to “obtain evidence that [Bear Stearns was]
unable to secure adequate credit accommodations from other
banking institutions” before making the loan. See 12 U.S.C.
§ 343(A). That the FRBNY had to obtain such evidence before
it could approve the loan authorized by the Board does not mean
its interest diverged from the Board’s interest, however, and to
claim otherwise, we believe, misconstrues the nature of the
Federal Reserve System. The Board, together with the Federal
11
Open Market Committee—a body composed of the Board
members and five presidents or first vice presidents of the
Reserve Banks, 12 U.S.C. § 263—are statutorily mandated to
“maintain long run growth of the monetary and credit aggregates
commensurate with the economy’s long run potential to increase
production, so as to promote effectively the goals of maximum
employment, stable prices, and moderate long-term interest
rates,” 12 U.S.C. § 225a. See Fasano v. Fed. Reserve Bank of
N.Y., 457 F.3d 274, 277-78 (3d Cir. 2006) (“The individual
Federal Reserve Banks serve as the foundation for the Federal
Reserve System. . . . The individual Federal Reserve Banks
carry out the monetary policy . . . formulated [by the Federal
Open Market Committee]. The Board . . . loosely oversees the
Federal Reserve Banks’ operations.”), cert. denied, 549 U.S.
1115 (2007). Board regulations make clear that “[t]he Federal
Reserve System extends credit with due regard to the basic
objectives of monetary policy and the maintenance of a sound
and orderly financial system.” 12 C.F.R. § 201.1(b). As noted,
the Board and Reserve Banks work together “to assist in
achieving national economic goals through [the Reserve
System’s] influence on the availability and cost of bank
reserves, bank credit, and money.” Reuss v. Balles, 584 F.2d
461, 462 (D.C. Cir. 1978). “The key to success of the [Reserve]
System is harmonious interaction between and among [its]
component parts.” Id. Statutes, regulations and case law make
clear, therefore, that the Board and the Reserve Banks share a
common goal, namely “the maintenance of a sound and orderly
financial system.” 12 C.F.R. § 201.1(b). That the Congress
requires both the Board and the relevant Reserve Bank (here,
FRBNY) separately to determine that the loan made to Bear
Stearns through JP Morgan promotes the maintenance of a
sound and orderly financial system does not mean that the
Board’s and the FRBNY’s interests diverged in deciding to
make the loan.
12
McKinley also claims the Board failed to show it solicited
the withheld material from the FRBNY as our precedent
requires. See, e.g., NIMJ, 512 F.3d at 680 (“[A]n agency record
. . . submitted by outside consultants as part of the deliberative
process[] and . . . solicited by the agency [is] an ‘intra-agency’
memorandum for purposes of determining the applicability of
Exemption 5.” (emphasis added) (internal quotation marks
omitted)); id. at 681, 683; Ryan, 617 F.2d at 790 (withheld
records “were generated by an initiative from the Department of
Justice, i.e., the questionnaire sent out by the Department to the
Senators”). The Stefansson declaration, however, adequately
demonstrates that the Board solicited the material from the
FRBNY. When news of Bear Stearns’s financial straits reached
the Board, it began to focus on the effects of a Bear Stearns
bankruptcy on the financial markets and particularly on LCBOs
and other organizations supervised by the Board. Stefansson
Decl. ¶ 8. The Board acted against a “backdrop” of significant
turmoil and uncertainty in the financial markets. Id. ¶ 7.
The deterioration of the U.S. housing market late in the
summer of 2007 precipitated a sharp rise in uncertainty
in financial markets about the value of structured or
securitized assets. As demand for these products fell,
funding pressures increased for a variety of financial
institutions. As uncertainty grew over the magnitude
of losses at financial institutions, these institutions
became unwilling to lend to each other even against
high-quality collateral, asset prices fell, and the
availability of borrowing declined significantly. As a
result, financial institutions faced severe liquidity
pressures. These pressures accelerated rapidly between
mid-January and mid-March 2008 . . . . If left
unabated, this dynamic posed a risk of widespread
insolvencies and severe and protracted damage to the
financial system and, ultimately, to the economy as a
whole.
13
Id. ¶ 6. The Board thus found itself reacting to what it believed
to be an emergency, as evidenced by its decision “to provide
temporary emergency financing to Bear Stearns.” Thro Decl.
Ex. A (minutes of Board 3/14/08 meeting) (emphasis added).
“[A]s part of the Board’s consideration of potential responses to
Bear Stearns’ [sic] funding difficulties” and “in accordance with
well-established supervisory processes, Board and Reserve Bank
staff responsible for LCBO supervision surveyed the LCBOs for
purposes of assessing the LCBOs’ real-time exposures to Bear
Stearns.” McKinley, 744 F. Supp. 2d at 136 (quoting Stefansson
Decl. ¶ 8). The monitoring of LCBOs and advising the Board
of their financial condition “is administered at the Federal
Reserve Banks.” Stefansson Decl. ¶ 2; see also 12 U.S.C.
§ 248(a)(1) (Board may “examine at its discretion the accounts,
books, and affairs of each Federal reserve bank and of each
member bank and . . . require such statements and reports as it
may deem necessary”); id. § 325 (Federal Reserve member
banks are “subject to examinations made by direction of the
[Board] or of the Federal reserve bank by examiners selected or
approved by the [Board]”); id. § 483 (“Every Federal reserve
bank shall at all times furnish to the [Board] such information as
may be demanded concerning the condition of any member bank
within the district of the said Federal reserve bank.”). Thus, to
aid in its deliberative process, the Board sought information
from the FRBNY about the financial condition and exposures of
institutions monitored by the FRBNY. The FRBNY did not
simply provide the information, unprompted, to the Board.
Accordingly, we conclude the withheld material constitutes
“intra-agency memorandums or letters” under FOIA Exemption
5. We turn now to the second prong of Exemption 5.
B. Deliberative Process Privilege
Intra-agency memoranda are exempt from disclosure under
Exemption 5 only if they “would not be available by law to a
party other than an agency in litigation with the agency.” 5
14
U.S.C. § 552(b)(5). To satisfy the second requirement of
Exemption 5, the record must be non-disclosable “under one of
the established civil discovery privileges—here, under the
‘deliberative process’ privilege.” NIMJ, 512 F.3d at 680 n.4
(citing Klamath, 532 U.S. at 8-9). “To qualify for Exemption 5
protection under the deliberative process privilege, ‘an agency’s
materials must be both “predecisional” and a part of the
“deliberative process.” ’ ” Id. (quoting Formaldehyde Inst. v.
Dep’t of Health & Human Servs., 889 F.2d 1118, 1121 (D.C.
Cir. 1989)). McKinley acknowledges that the withheld material
is predecisional but argues that the record is “deliberative” only
if its disclosure would harm the agency’s decisionmaking
process. The Congress enacted FOIA Exemption 5, however,
precisely because it determined that disclosure of material that
is both predecisional and deliberative does harm an agency’s
decisionmaking process. As we have explained, Exemption 5
was created to protect the deliberative process of the
government, by ensuring that persons in an advisory
role would be able to express their opinions freely to
agency decision-makers without fear of publicity. In
the course of its day-to-day activities, an agency often
needs to rely on the opinions and recommendations of
temporary consultants, as well as its own employees.
Such consultations are an integral part of its
deliberative process; to conduct this process in public
view would inhibit frank discussion of policy matters
and likely impair the quality of decisions.
Ryan, 617 F.2d at 789-90; see also Klamath, 532 U.S. at 8-9(“The deliberative process privilege rests on the obvious
realization that officials will not communicate candidly among
themselves if each remark is a potential item of discovery and
front page news, and its object is to enhance the quality of
agency decisions by protecting open and frank discussion among
those who make them within the Government.” (internal
15
quotation marks and citations omitted)); Judicial Watch, Inc. v.
Dep’t of Energy, 412 F.3d 125, 129 (D.C. Cir. 2005)
(deliberative process privilege “ ‘reflect[s] the legislative
judgment that the quality of administrative decision-making
would be seriously undermined if agencies were forced to
“operate in a fishbowl” because the full and frank exchange of
ideas on legal or policy matters would be impossible.’ ”
(alteration in original) (quoting Tax Analysts v. IRS, 117 F.3d
607, 617 (D.C. Cir. 1997))); Formaldehyde, 889 F.2d at 1125(“ ‘[H]uman experience teaches that those who expect public
dissemination of their remarks may well temper candor with a
concern for appearances . . . to the detriment of the
decisionmaking process.’ ” (ellipsis and emphasis in original)
(quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150-51
(1975))); Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d
854, 866 (D.C. Cir. 1980) (deliberative process privilege
protects documents “which would inaccurately reflect or
prematurely disclose the views of the agency”). Our role is not
to second-guess that congressional judgment on a case-by-case
basis. Attempting to do so, moreover, would prove
impracticable:
It would be impossible for courts to administer a rule
of law to the effect that some but not all information
about the decisional process may be disclosed without
violating Exemption 5. Courts would become
enmeshed in a continual process of estimating or, more
accurately, guessing about the adverse effects on the
decisional process of a great variety of combinations of
pieces of information. That would inevitably lead
courts on some occasions to undercut legitimate
Exemption 5 protections. Indeed, such a procedure
would not result in a rule at all. Agencies would have
to pass on requests wholly impressionistically, subject
to the impressionistic second-guessing of the courts.
16
That is hardly a satisfactory or efficient way of
implementing FOIA.
Wolfe v. Dep’t of Health & Human Servs., 839 F.2d 768, 775
(D.C. Cir. 1988) (en banc).
Moreover, the Board has demonstrated that disclosure of the
withheld material would “discourage candid discussion within
the agency and thereby undermine the agency’s ability to
perform its functions.” Formaldehyde, 889 F.2d at 1122(internal quotation marks omitted). As part of the “bank
supervisory process,” “[s]upervised institutions frequently
provide [Board and Reserve Bank examiners] with detailed,
highly sensitive commercial information . . . that they do not
customarily disclose to the public,” disclosure of which “is
likely to cause substantial competitive harm to the LCBOs.”
Stefansson Decl. ¶ 15. For example, an LCBO competitor could
use the information “to assess sensitive trading relationships and
credit relationships” and could “exploit the information . . . to
weaken a specific entity and cause weaknesses in its liquidity
position” by “pull[ing] or accelerat[ing] funding facilities the
competitor had outstanding to the LCBO.” Id. A competitor
could also “use the data to underbid the LCBO in the private
funding markets.” Id. Information that revealed the LCBO
faced a “funding shortage” could “cause some retail and
commercial customers to move their business to other banks and
may cause analysts to downgrade the LCBO’s stock.” Id. In
short, information collected by the Board and Reserve Banks
from supervised institutions could harm those institutions if
disclosed to the public. For that reason, “[s]upervised
institutions rely on bank supervisors to protect the
confidentiality of information obtained through the supervisory
process” and “are willing to provide this information because
they know that the supervisors will maintain its confidentiality.”
Id. The Board and Reserve Banks “rely on the willingness of
supervised institutions to provide full information in order to
17
assure a robust supervisory environment.” Id. If supervised
institutions no longer believe the Board could or would maintain
the confidentiality of information it collects through the
supervisory process, they would be less willing to provide the
Board with the information it needs “to assure a robust
supervisory environment.” Disclosure of the type of
information withheld here, therefore, “would impair the Board’s
ability to obtain necessary information in the future[] and could
chill the free flow of information between the [supervised]
institutions and the Board and Reserve Bank[s].” Id.; see also
Winter Decl. ¶ 7 (“Release of this type of information would
have an inhibitive effect upon the development of policy and
administrative direction. In my opinion, SEC employees would
hesitate to offer their candid opinions to superiors or coworkers,
as well as colleagues in other federal agencies, if they knew that
their opinions of the moment might be made a matter of public
record at some future date.”).
C. Attorney Work Product Privilege
The Board also withheld one document under Exemption 5
pursuant to the attorney work product privilege. See Judicial
Watch, Inc. v. Dep’t of Justice, 432 F.3d 366, 369 (D.C. Cir.
2005) (“FOIA Exemption 5 incorporates the work-product
doctrine and protects against the disclosure of attorney work
product.”). “The work-product doctrine shields materials
‘prepared in anticipation of litigation or for trial by or for
another party or by or for that other party’s representative
(including the other party’s attorney, consultant, surety,
indemnitor, insurer, or agent).’ ” Id. (quoting Fed. R. Civ. P.
26(b)(3)). According to the Board, the withheld document “was
prepared by FRBNY attorneys in anticipation of litigation by
Bear Stearns shareholders related to the Board’s authorization
to extend credit to [Bear Stearns] indirectly through [JP
Morgan].” Vaughn Index Doc. No. 38 (Joint Appendix 97). On
appeal, McKinley argues only that the FRBNY does not come
18
within the consultant corollary and for that reason the Board
cannot claim the attorney work product privilege. Having
concluded that the FRBNY did indeed act as a consultant to the
Board, we reject McKinley’s argument. The FRBNY, acting as
the Board’s consultant, prepared the withheld document for the
Board in anticipation of litigation. Id. Accordingly, the Board
properly withheld the document under Exemption 5.10
For the foregoing reasons, we affirm the district court’s
grant of summary judgment to the Board.
So ordered.
10
In Bloomberg L.P. v. Board of Governors of the Federal
Reserve System, 601 F.3d 143, 145-46, 147 (2d Cir. 2010), the Second
Circuit recently held that records regarding loans made by the twelve
Reserve Banks to certain private banks in April and May
2008—specifically “the name of the borrowing bank, the amount of
the loan, the origination and maturity dates, and the collateral
given”—cannot be withheld under FOIA Exemption 4. The Board
argued before the district court that the withheld records were exempt
from disclosure under Exemption 5 but declined to appeal the district
court’s adverse ruling on Exemption 5. Id. at 146. Thus, the Second
Circuit did not address the applicability vel non of Exemption 5 to the
requested records. Id. at 146-47. Although the district court held the
requested records were not protected under Exemption 5, it did not
address the issues relevant here. The court accepted—because
Bloomberg did not dispute— the Board’s assertion that the withheld
records were inter-agency or intra-agency memorandums or letters.
Bloomberg L.P. v. Bd. of Governors of Fed. Reserve Sys., 649 F.
Supp. 2d 262, 280-81 (S.D.N.Y. 2009). Furthermore, the Board did
not rely upon the deliberative process privilege. Id. at 281-82.