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Vern Mckinley v. Federal Deposit Insurance Corporation

August 8, 2011

VERN MCKINLEY, PLAINTIFF,
v.
FEDERAL DEPOSIT INSURANCE CORPORATION, DEFENDANT.



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

MEMORANDUM OPINION

Pending before the Court in this Freedom of Information Act ("FOIA") case are the parties' cross-motions for summary judgment. The only remaining issue in this case is whether defendant conducted adequate searches for records responsive to plaintiff's FOIA requests. Upon consideration of the motions, the responses and replies thereto, the applicable law, the entire record, and for the reasons set forth below, defendant's motion for summary judgment is GRANTED, and plaintiff's cross-motion for summary judgment is DENIED.

I. BACKGROUND

Plaintiff Vern McKinley is a private citizen who works "as an advisor to governments worldwide on financial sector policy and legal issues." Compl. ¶ 3. In December 2009, plaintiff submitted three FOIA requests to the Federal Deposit Insurance Corporation ("FDIC") seeking information regarding its response to the global financial crisis of 2008. Specifically, plaintiff sought records from the FDIC "regarding its October 2008 decision to create a 'Temporary Liquidity Guarantee Program' to provide financial support to banks, thrift institutions, and certain bank holding companies. . . . [and] regarding its decisions in November 2008 and January 2009 to extend such support to Citigroup, Inc. and Bank of America Corp., respectively." Pl.'s Cross-Mot. for Summary Judgment ("Pl.'s Cross-Mot.") at 1-2.

In each request, plaintiff referenced FDIC press releases describing the FDIC's actions on specific dates. Def.'s Mot. for Summary Judgment ("Def.'s Mot.") Exs. 1, 3, 5. Specifically, plaintiff requested information related to the FDIC's findings, under section 13(c) of the Federal Deposit Insurance Act ("FDI Act"), 12 U.S.C. § 1823(c), that failure to provide emergency assistance to financial institutions would have "serious adverse effects on economic conditions or financial stability." Def.'s Mot. Exs. 1, 3, 5. Plaintiff asked for "any information available on [these] determination[s] such as meeting minutes [and/or] supporting memos." Def.'s Mot. Exs. 1, 3, 5.

The FDIC did not respond to plaintiff's requests within the required time limits, and as a result plaintiff initiated this lawsuit on March 15, 2010. Pl.'s Cross-Mot. at 2. In his complaint, plaintiff alleged that the FDIC violated the FOIA by "failing to produce any and all non-exempt records responsive to Plaintiff's requests," Compl. ¶ 19, and requested, inter alia, that defendant "search for and produce any and all non-exempt records responsive to Plaintiff's requests." Compl. at 5. On April 15, 2010, the FDIC provided 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. McKinley v. Fed. Deposit Ins. Co., 756 F. Supp. 2d 105, 109 (D.D.C. 2010).

The FDIC then moved to dismiss the complaint as moot, and plaintiff cross-moved for summary judgment regarding the adequacy of the searches and the FDIC's use of the FOIA and Sunshine Act exemptions. Id. at 109-10. The Court denied the agency's motion to dismiss, granted in part plaintiff's motion for summary judgment as to the adequacy of the searches and denied without prejudice in part plaintiff's motion for summary judgment as to the agency's use of exemptions. Id. at 116. The Court ordered the FDIC to either conduct new searches for the records sought by plaintiff or submit declarations that adequately demonstrate that the agency employed search methods reasonably likely to lead to discovery of records responsive to plaintiff's requests. Id. The Court also ordered the FDIC to demonstrate that responsive documents were produced to plaintiff, and that responsive documents and parts of documents not provided to plaintiff were properly withheld under the FOIA or Sunshine Act exemptions. Id.

The FDIC subsequently released all the information it had initially withheld under the FOIA and Sunshine Act exemptions and moved for summary judgment regarding the adequacy of its searches. See generally Def.'s Mot. In support of its motion for summary judgment, the FDIC submitted declarations of Fredrick L. Fisch, the Supervisory Counsel in charge of the FDIC's FOIA and Privacy Act Group, and Catherine L. Hammond, the FDIC employee who conducted the document searches. See generally Decl. of Fredrick L. Fisch ("Fisch Decl."); Decl. of Catherine L. Hammond ("Hammond Decl."). These declarations describe the general procedures that the FDIC uses to process FOIA requests, as well as the specific steps taken in response to plaintiff's requests. The declarations show that the FDIC searched the Executive Secretary Section of the FDIC Legal Division ("ESS") for records responsive to plaintiff's requests. Fisch Decl. ¶¶ 12-15, 18-22, 25-29. As a result of those searches, the FDIC produced to the plaintiff the meeting minutes and the "Case Memoranda" (or "Board Cases") prepared for the Board meetings at which the FDIC made each of the three determinations referenced in plaintiff's requests. Hammond Decl. ¶¶ 19-20, 24-26, 30-32.

Plaintiff has opposed defendant's motion for summary judgment and has cross-moved for summary judgment. In his cross-motion, plaintiff argues that the FDIC's searches were inadequate and that the agency produced only a subset of the records he requested. Pl.'s Cross-Mot. at 4. He argues that defendant should have searched for email correspondence, meeting notes, and memoranda from several other departments within the FDIC. Pl.'s Cross-Mot. at 4, 7-8. Plaintiff also argues that the FDIC should have searched other records systems in addition to the ESS. Pl.'s Cross-Mot. at 4. The parties' motions are now ripe for review by the Court.

II. STANDARD OF REVIEW

The Court may grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits or declarations, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). In a FOIA case, the burden of proof is always on the agency to demonstrate that it has fully discharged its obligations under the FOIA. See U.S. Dep't of Justice v. Tax Analysts, 492 U.S. 136, 142 n.3 (1989).

In response to a challenge to the adequacy of its search for requested records, "the agency may meet its burden by providing 'a reasonably detailed affidavit, setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials . . . were searched.'" Iturralde v. Comptroller of the Currency, 315 F.3d 311, 313-14 (D.C. Cir. 2003) (quoting Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999)). In addition, "[a]ny factual assertions contained in affidavits and other attachments in support of motions for summary judgment are accepted as true unless the nonmoving party submits affidavits or other documentary evidence contradicting those assertions." Wilson v. U.S. Dep't of Transp., 730 F. Supp. 2d 140, 148 (D.D.C. 2010) (citing Neal v. Kelly, 963 F.2d 453, 456-57 (D.C. Cir. 1992)).

III. ANALYSIS

The only issue remaining for summary judgment in this case is whether defendant conducted adequate searches for records responsive to plaintiff's requests. Specifically, the Court must determine (1) whether it was reasonable for the FDIC to limit the scope of its searches to the meeting minutes and Case Memoranda prepared for the Board meetings at which the FDIC made each of the three determinations referenced in the plaintiff's requests; and (2) whether it was reasonable for the FDIC to limit its searches to records located in the ESS. For the reasons ...


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