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Vern Mckinley v. Federal Deposit Insurance Corporation

December 23, 2010


The opinion of the court was delivered by: Signed: Emmet G. Sullivan United States District Court Judge


Pending before the Court in this Freedom of Information Act ("FOIA") case is defendant's motion to dismiss and plaintiff's motion for summary judgment. Upon consideration of the motions, the responses and replies thereto, the applicable law, the entire record, and for the reasons set forth below, the defendant's motion to dismiss is DENIED, and the plaintiff's motion for summary judgment is GRANTED in part and DENIED WITHOUT PREJUDICE in part.*fn1 The Court orders defendant to supplement its responses to plaintiff's requests as described below.


Plaintiff Vern McKinley is a private citizen who works "as an advisor to governments worldwide on financial sector policy and legal issues." Complaint ("Compl.") ¶ 3. In December, 2009, plaintiff submitted three FOIA requests to the Federal Deposit Insurance Corporation ("FDIC") seeking information regarding the FDIC's response to the global financial crisis of 2008. Specifically, plaintiff seeks records about the agency's creation and use of a then-new program, the Temporary Liquidity Guarantee Program ("TLG"), to provide assistance to banks and other financial institutions. On December 4, 2009, plaintiff sent a request for "records about the FDIC's determination on November 23, 2008 to provide financial assistance to Citigroup, Inc."

Pl.'s Statement of Material Facts Not in Dispute ("Pl.'s Facts")

¶ 1. On December 20, 2009, plaintiff sent two additional FOIA requests to the FDIC. Plaintiff requested records about the FDIC's "determination on October 14, 2008 to create a new program," the TLG program, "to provide financial assistance to banks, thrift institutions, and certain bank holding companies." Pl.'s Facts ¶ 2. He also requested records about FDIC's "determination on January 16, 2009 to provide financial assistance to Bank of America Corp." Pl.'s Facts ¶ 3. In all three requests, plaintiff specifically asked for "any information available on" these determinations "such as meeting minutes or supporting memos." Pl.'s Facts ¶¶ 1, 2, 3.

The FDIC did not respond to plaintiff's requests within the time limits set forth in 5 U.S.C. § 552(a)(6)(A)(i) and 5 U.S.C. § 552(a)(6)(B)(i). Pl.'s Facts ¶ 4. Accordingly, plaintiff initiated this lawsuit on March 15, 2010. See generally Compl. In his complaint, Plaintiff alleges that the FDIC violated the FOIA by "failing to produce any and all non-exempt records responsive to Plaintiff's requests," Compl. ¶ 19, and requests, inter alia, that defendant "search for and produce any and all non-exempt records responsive to plaintiff's requests." Compl. p. 5.

On April 15, 2010, the FDIC responded to all three requests. Def.'s Statement of Undisputed Facts ("Def.'s Facts") ¶¶ 6-8.

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

Def.'s Facts ¶¶ 6-8. Shortly thereafter FDIC moved to dismiss the case, arguing that its responses to plaintiff's FOIA requests render the case moot. See generally Def.'s Motion to Dismiss. Plaintiff opposed the motion to dismiss and simultaneously moved for summary judgment. In his motion for summary judgment, plaintiff challenges the adequacy of the agency's search and its reliance on the FOIA and Sunshine Act exemptions to withhold the redacted information. See generally Pl.'s Mem. in Opposition to Motion to Dismiss and In Support of Motion for Summary Judgment ("Pl.'s Mem.). Both motions are now ripe for decision by the Court.


A. Motion to Dismiss on Mootness Grounds

A case is moot when "the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome." Cnty. of Los Angeles v. Davis, 440 U.S. 625, 631 (1979)(citations omitted). It is well established that "a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice." Friends of the Earth v. Laidlaw, 528 U.S. 167, 189 (2000) (quotation omitted). In order to prevail on a mootness claim occasioned by the defendant's voluntary conduct, the movant must show, inter alia, that "interim relief and events have completely and irrevocably eradicated the effects of the alleged violation." Albritton v. Kantor, 944 F. Supp. 966, 974 (D.D.C. 1996) (citing Davis, 440 U.S. at 631).

In a FOIA case, "once all requested records are surrendered," the substance of the controversy disappears and "federal courts have no further statutory function to perform." Perry v. Block, 684 F.2d 121, 125 (D.C. Cir. 1982). However, as the government itself acknowledges, in "instances where an agency has released documents, but other related issued remain unresolved, courts frequently will not dismiss the action" as moot. GUIDE TO THE FREEDOM OF INFORMATION ACT, U.S. Dep't of Justice Office of Information Policy, 767-68 & n.180 (2009 Ed.) (citing, e.g., Nw. Univ. v. USDA, 403 F. Supp. 2d 83, 85-86 (D.D.C. 2005) (refusing to dismiss action as moot despite belated release of documents because plaintiff challenged adequacy of defendant's document production); Looney v. Walters-Tucker, 98 F. Supp. 2d 1, 3 (D.D.C. 2000)(finding no mootness even ...

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