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Williams & Connolly LLP v. Office of Comptroller of Currency

United States District Court, D. Columbia.

April 30, 2014

WILLIAMS & CONNOLLY LLP, Plaintiff,
v.
OFFICE OF THE COMPTROLLER OF THE CURRENCY, Defendant

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[Copyrighted Material Omitted]

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For Williams & Connolly, Llp, Plaintiff: Andrew M. Elliott, WILLIAM & CONNOLLY LLP, Washington, DC USA.

For Office of Comptroller of Currency, Defendant: Claire M. Whitaker, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC USA.

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MEMORANDUM OPINION

REGGIE B. WALTON, United States District Judge.

The plaintiff, Williams & Connolly LLP, brings this action against the defendant, the Office of the Comptroller of the Currency (" Comptroller" ), under the Freedom of Information Act (" FOIA" ), 5 U.S.C. § 552 (2012). Complaint for Injunctive Relief (" Compl." ) ¶ 1. Currently before the Court are the parties' cross motions for summary judgment. After carefully considering the parties' submissions,[1] the Court concludes for the reasons stated below that it will grant the defendant's motion and deny the plaintiff's motion.

I. BACKGROUND[2]

The current dispute began with the submission of the plaintiff's June 2012 FOIA request to the Comptroller. Def.'s Mem. at 5. The Comptroller is an agency and an independent bureau of the United States Department of Treasury and " is charged with assuring the safety and soundness of, and compliance with laws and regulations, fair access to financial services, and fair treatment of customers by, the [financial] institutions . . . subject to its jurisdiction." 12 U.S.C. § 1(a) (2012). Pursuant to § 1818(b) of Title 12, the Comptroller may order banks to cease and desist " an unsafe or unsound practice" or a violation of law and may order banks to " take affirmative action to correct or remedy any conditions resulting from any violation or practice."

Exercising its enforcement powers, the Comptroller issued Consent Orders in April 2011 against several banks, including

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Aurora Bank, Federal Savings Bank (" Aurora" ), requiring that the banks " retain an independent consultant acceptable to the [Comptroller] to conduct an independent review" of specific foreclosure practices.[3] Pl.'s Mem. at 2 (internal quotation marks omitted); see Def.'s Mem. at 4-5. In compliance with these Consent Orders, Aurora hired the plaintiff's clients, Allonhill, LLC (" Allonhill" ), to review its foreclosure practices. Def.'s Mem. at 5; Pl.'s Mem. at 2. However, before the foreclosure review process was completed, Allonhill's services were terminated " at the direction of the [Comptroller]" because of an alleged " conflict presented by [its] previous work and the independence requirements of the [Comptroller]." Def.'s Mem. at 5; Pl.'s Mem. at 3.

Through its July 2012 FOIA request, the plaintiff, on behalf of Allonhill, sought generalized information from the Comptroller relating to its third-party contractor independence requirements. Specifically, the plaintiff requested:

1. All documents and/or records relating to the [Comptroller's] definition of independence, including:
a. Any documents and/or records relating to the independence requirements for independent consultants, prescribed by the [Comptroller];
b. Any documents and/or records relating to the [Comptroller's] standards of independence within the meaning of the scope of the consent order foreclosure review pursuant to the April 13, 2011 Consent Orders entered into between 14 mortgage servicers and the [Comptroller] . . . (" Consent Order Foreclosure Review" ); and
c. Any documents and/or records relating to determining whether any particular independent consultant participating in the Consent Order Foreclosure Review was or was not independent within the meaning of the scope of the Consent Order Foreclosure Review.

Def.'s Facts ¶ 1; see Pl.'s Fact Resp. ¶ 1.[4] Approximately two months later, the defendant denied the FOIA request in full by invoking 5 U.S.C. § 552(b)(8) (" Exemption 8" ) of the FOIA. Pl.'s Facts ¶ 10; see Def.'s Fact Resp. ¶ ¶ 10.

The plaintiff administratively appealed this decision by letter dated September 21, 2012, Compl. at 3, ¶ 4, and in December 2012, the Comptroller issued a final decision letter, asserting that most of the responsive information was properly withheld under 5 U.S.C. § 552(b)(5) (" Exemption 5" ) because the documents pertained to internal materials reflecting the Comptroller's deliberative process, privileged attorney work-product, and attorney-client privilege material, or was properly withheld pursuant to Exemption 8 because the documents are comprised of information

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relating to the examination, operation, or condition reports of the banks. See Pl.'s Facts ¶ ¶ 11-12; Def.'s Fact Resp. ¶ ¶ 11-12; Def.'s Facts ¶ 8; Pl.'s Fact Resp. ¶ 8; see also 5 U.S.C. § 552(b)(5), (8). Because the information sought by the plaintiff pertained to the " enforcement actions carried out by the [Comptroller]," Def.'s Mem. at 7, the Comptroller concluded that they " fall into the category of documents related to the [Comptroller's] examination of banks [and] are therefore exempt from FOIA's disclosure requirements pursuant to FOIA Exemption 8," id. at 2; see also 5 U.S.C. § 552(b)(8). However, in its response the Comptroller did disclose thirteen pages of documents, Pl.'s Facts ¶ 12; see Def.'s Fact Resp. ¶ 12, eight of which were already publicly available, Pl.'s Facts ¶ 12; Def.'s Facts ¶ 9. Two of the other five pages were partially redacted, which the Comptroller justified on the grounds that an exemption applied to the redactions or that the information was nonresponsive. Pl.'s Facts ¶ 12; Def.'s Fact Resp. ¶ 12. In response to this letter, the plaintiff filed ...


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