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Gold Anti-Trust Action Committee, Inc v. Board of Governors of the Federal Reserve System

February 3, 2011

GOLD ANTI-TRUST ACTION COMMITTEE, INC., PLAINTIFF,
v.
BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM, DEFENDANT.



The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge

MEMORANDUM OPINION

Plaintiff Gold Anti-Trust Action Committee, Inc. ("GATA") brings this action against the Board of Governors of the Federal Reserve System ("Board" or "FRB") pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 et seq. Plaintiff seeks access to documents for the period 1990 to 2009 relating to "gold swaps." In response to plaintiff's FOIA request, the Board produced nine documents, but withheld or redacted others pursuant to Exemptions 4 and 5.

5 U.S.C. § 552(b)(4), (5). Before the Court is defendant's motion for summary judgment, which, for the reasons explained herein, the Court will grant in part and deny in part.

BACKGROUND

I. 2007 FOIA REQUEST

In a letter dated December 6, 2007, GATA submitted a FOIA request to the Board seeking copies of all records relating to "gold swaps" from January 1, 1990 to December 6, 2007. (Compl. ¶ 7; Memorandum of Points and Authorities in Support of Defendant's Motion for Summary Judgment ["Def.'s Mot."] at 2 n.1.) The Board responded on April 9, 2008, disclosing in full or in part 98 documents and withholding in full 144 pages of documents. (Compl. ¶ 8 and Ex. B; Declaration of Alison M. Thro ["Thro Decl."] ¶¶ 3, 9.)

GATA appealed the partial denial of its 2007 FOIA request by letter dated May 5, 2008. (Compl. ¶ 9.) The Board denied the appeal on June 3, 2008. (Id. ¶ 10.) This 2007 FOIA request is not itself the subject of this appeal.

II. 2009 FOIA REQUEST

By letter dated April 14, 2009, GATA submitted a second FOIA request that is at issue here. (Thro Decl. ¶ 3 and Ex. 1.) This request sought "all records in the possession or control of the Federal Reserve Board relating to, explaining, denying or otherwise mentioning: 'gold swap,'*fn1 'gold swaps,' 'gold swapped,' 'proposed gold swap,' 'proposed gold swaps,' or 'proposed gold swapped' during the time period January 1, 1990, to the date of this request either (a) involving the United States of America or (b) not involving the United States of America." (Id.) The request further identified eighteen subcategories of documents provided "in an effort to particularize certain categories of records" covered by the request, including "[t]he records withheld by the Federal Reserve Board in response to GATA's December 6, 2007 FOIA request." (Id.)

The Board responded on August 5, 2009. (Compl. Ex. B; Thro Decl. ¶ 6 and Ex. 4.) The Board advised GATA that "other than the records withheld in connection with plaintiff's 2007 FOIA request," only two additional responsive documents (totaling 173 pages) had been identified, which were provided to GATA. (Thro Decl. ¶¶ 6, 9, 17, and Ex. 4.) The Board's letter informed GATA that the pages withheld in response to the 2007 request had been reviewed again, no additional portions could be released, all the originally withheld material was exempt from disclosure, and there were no reasonable segregable, disclosable portions. (Id.)

GATA administratively appealed the Board's partial denial of its 2009 FOIA request on August 20, 2009. (Compl. ¶ 18 and Ex. C; Thro Decl. ¶ 7 and Ex. 5.) By letter dated September 17, 2009, Board Governor Kevin Warsh denied GATA's administrative appeal. (Compl. ¶ 19 and Ex. D; Thro Decl. ¶ 8 and Ex. 6.) Plaintiff subsequently filed this suit on December 30, 2009. (Dkt. #1.)

Thereafter, the Board again reviewed the withheld documents. (Thro Decl. ¶ 9.) These documents had been withheld in response to the 2007 FOIA request and were thus explicitly covered by the 2009 FOIA request as well. (Id.) Following this review, the Board released an additional 7 documents (13 pages) in full and 19 documents (3 full pages and 49 redacted pages) in part. (Id.) These documents were transmitted to plaintiff on June 10, 2010. (Id. ¶ 9 and Ex. 7.) The volume of materials withheld in whole or in part now stands at 20 documents, including 49 pages produced with some redactions and 77 pages withheld in full. (Id.) The Board bases its withholdings on Exemptions 4 and 5, and it has produced a Vaughn Index, which identifies the date, subject matter, author and recipient (where possible) of each document withheld, and the length of the document (number of pages); describes the contents of the documents generally; and states whether the document was withheld in full or provided in redacted form and the FOIA exemption under which the redacted or withheld information is being withheld. (Thro Decl. Ex. 8. ["Vaughn Index"].)*fn2

Defendant has moved for summary judgment contending that its application of FOIA exemptions was proper. (Def.'s Mot.) Its motion is supported by declarations from Alison M. Thro, Senior Counsel in the Board's Legal Division; Timothy Fogarty, Vice President in the Markets Group at the Federal Reserve Bank of New York ("FRBNY"); and Richard Dzina, Senior Vice President in the Markets Group at FRBNY. Plaintiff challenges the adequacy of the Board's search, as well as the applicability of Exemptions 4 and 5. (Plaintiff's Memorandum of Points and Authorities in Opposition to Defendant's Motion for Summary Judgment ["Pl.'s Opp."].)

On January 10, 2011, the Court granted plaintiff's motion for in camera review of the withheld or redacted documents (Dkt. #21), and it has relied on this review in reaching the conclusions of law set forth below.

ANALYSIS

I. STANDARD OF REVIEW

The Court may grant a motion for summary judgment "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party bears the burden of demonstrating an absence of a genuine issue of material fact in dispute. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Factual assertions in the moving party's affidavits may be accepted as true unless the opposing party submits his own affidavits, declarations, or documentary evidence to the contrary. Neal v. Kelly, 963 F.2d 453, 456-57 (D.C. Cir. 1992).

"FOIA cases typically and appropriately are decided on motions for summary judgment." Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009) (citations omitted). "In a FOIA case, summary judgment may be granted to the government if 'the agency proves that it has fully discharged its obligations under the FOIA, after the underlying facts and the inferences to be drawn from them are construed in the light most favorable to the FOIA requester.'" Fischer v. U.S, Dep't of Justice, 596 F. Supp. 2d 34, 42 (D.D.C. 2009) (quoting Greenberg v. U.S. Dep't of Treasury, 10 F. Supp. 2d 3, 11 (D.D.C. 1998)).

"An agency fulfills its obligations under FOIA if it can demonstrate beyond material doubt that its search was 'reasonably calculated to uncover all relevant documents.'" ValenciaLucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999) (quoting Truitt v. Dep't of State, 897 F.2d 540, 542 (D.C. Cir. 1990)); see also Steinberg v. U.S. Dep't of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994). To meet its burden, the agency may submit affidavits or declarations that explain in reasonable detail the scope and method of the agency's search. Perry v. Block, 684 F.2d 121, 126 (D.C. Cir. 1982). In the absence of contrary evidence, such affidavits or declarations are sufficient to demonstrate an agency's compliance with FOIA. Id. at 127. However, if the record "leaves substantial doubt as to the sufficiency of the search, summary judgment for the agency is not proper." Truitt, 897 F.2d at 542.

"An agency that has withheld responsive documents pursuant to a FOIA exemption can carry its burden to prove the applicability of the claimed exemption by affidavit." Larson v. Dep't of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (citing Ctr. for Nat'l Sec. Studies v. U.S. Dep't of Justice, 331 F.3d 918, 926 (D.C. Cir. 2003)). "Summary judgment is warranted on the basis of agency affidavits when the affidavits describe the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith." Id. (quoting Miller v. Casey, 730 F.2d 773, 776 (D.C. Cir. 1984)); see also Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981); Larson, 565 F.3d at 862.

"FOIA represents a balance struck by Congress between the public's right to know and the government's legitimate interest in keeping certain information confidential." Ctr. for Nat'l Sec. Studies, 331 F.3d at 925 (citing John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989)). "While these exemptions are to be 'narrowly construed,' courts must not fail to give them 'a meaningful reach and application.'" Id. (internal citations omitted). "Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears 'logical' or 'plausible.'" Larson, 565 F.3d at 862 (quoting Wolf v. CIA, 473 F.3d 370, 374-75 (D.C. Cir. 2007)).

II. ADEQUACY OF SEARCH

Defendant properly relies upon a reasonably detailed affidavit that demonstrates the adequacy of the search. Perry, 684 F.2d at 126. As Senior Counsel Alison M. Thro explains, the Board does not maintain a centralized database containing all of the Board's records that would thereby allow the Board to locate all responsive documents with a simple keyword search. (Thro Decl. ¶ 11.) Instead, FOIA searches are conducted by the Legal Division of the Board, which contacts areas and staff members responsible for the subject matter involved in a request. (Id. ¶ 10-11.) These staff members are then asked to manually search for responsive records or, where possible, to conduct an electronic search. (Id. ¶ 11.)

In responding to GATA's 2009 FOIA request, Thro explains that she contacted the Legal Division FOIA staff who had worked on plaintiff's 2007 FOIA request and obtained the documents withheld in response to that request. (Id.)

Second, the Board's Office of the Secretary ("OSEC") searched its FOIA tracking system database for FOIA requests submitted by others persons that requested records relating to "gold swap," "gold swaps," or "gold swapped." (Id. ΒΆ 14.) Thro explains that this database tracks the subject matter of FOIA requests submitted to the Board, and therefore, any previous FOIA request relating to "gold swaps" would have been located through this ...


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