Case 1:10-cv-00420-EGS Document 24 Filed 05/09/11 Page 1 of 16

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)
VERN McKINLEY, )
)
Plaintiff, )
)
v. ) No. 1:10-cv-00420-EGS
)
FEDERAL DEPOSIT INSURANCE )
CORPORATION )
)
Defendant. )
)

FDIC’S COMBINED REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY

JUDGMENT AND OPPOSITION TO PLAINTIFF’S CROSS-MOTION FOR
SUMMARY JUDGMENT

Introduction

Pursuant to the Court’s December 23, 2010 Order (Dkt. 16), and Minute Order of

February 23, 2011, the FDIC filed its Motion for Summary Judgment (Dkt. 20) on the sole

remaining issue in this case: the adequacy of the FDIC’s searches for records responsive to

Plaintiff’s three FOIA requests. Specifically, the Court directed that the FDIC “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 the plaintiff’s requests.” Dkt. 16. The FDIC has elected to demonstrate

that its original document searches were reasonable and sufficient under the FOIA, and

accordingly has submitted detailed declarations from Fredrick L. Fisch, the Supervisory Counsel

of the FDIC’s FOIA/Privacy Act Group at the time of Plaintiff’s requests, and Catherine L.

Hammond, who personally conducted the document searches in the FDIC’s Executive Secretary

Section (ESS).

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Mr. Fisch’s declaration includes his point-by-point analysis of the wording of Plaintiff’s

requests, setting out his reasoning in determining the scope of the search. See Nation Magazine

v. Customs Service, 71 F.3d 885, 889 (D.C. Cir. 1995) (“To assess the adequacy of Customs’

search, we must first ascertain the scope of the request itself.”). Ms. Hammond’s declaration sets

out in detail the process she followed in conducting the searches, including the systems searched

and the search terms used.

[I]n the absence of countervailing evidence or apparent inconsistency of proof,

affidavits that explain in reasonable detail the scope and method of the search
conducted by the agency will suffice to demonstrate compliance with the
obligations imposed by FOIA.

Perry v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982).

As set out below, in opposition to the FDIC’s motion for summary judgment, Plaintiff

has failed to assert that any material facts in this case remain in dispute; has failed to challenge

the reasonableness of Mr. Fisch’s conclusions regarding Plaintiff’s requests that led him to

determine the scope of the searches; and has failed to raise any objection to the conduct of the

searches themselves. In support of his own cross-motion for summary judgment, Plaintiff offers

no additional affidavits or other additional evidence. Rather, Plaintiff’s opposition to the FDIC’s

motion, and his own cross-motion, rest on two facts: the “any information available” language

in his three requests, and a reference (in the documents provided in response to one of the

requests) to a “study.” As discussed below, reliance on these facts is insufficient under

prevailing FOIA law. Not only does Plaintiff fail to contest that legal authority, he offers little in

legal argument on behalf of his own positions.

Thus, for the reasons discussed below, the FDIC’s motion for summary judgment should

be granted, and Plaintiff’s cross-motion for summary judgment should be denied.

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Argument

1. There Are No Genuine Issues Of Material Fact.

As this Court recently stated: “Any 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. Dep’t of Transportation, 730 F. Supp. 2d 140, 148 (D.D.C. 2010).

Plaintiff does not object to any of the FDIC’s statements of material fact, either in his

memorandum of law,1 or in his response to the FDIC’s Statement of Material Facts Not In

Dispute. The FDIC’s statements of fact are supported by one or both of the declarations

submitted by the FDIC in support of its motion for summary judgment. Plaintiff repeatedly

avers that he “lacks knowledge to confirm or deny” several of the FDIC’s statements of

undisputed fact, but offers no contrary facts in response. See Plaintiff’s Response to Defendant’s

Statement of Material Facts Not in Genuine Dispute at 2-4.

The declaration of Catherine L. Hammond (Dkt. 20-4) describes in detail “what records

were searched, by whom, and through what processes.” Memorandum Opinion at 9 (Dkt. 17)

(citations omitted). Indeed, Plaintiff states that he “does not contest that the declarants have

personal knowledge of Defendant’s search methodology and procedures or that searches were

actually conducted.” Pl. Mem. at 3 (Dkt. 21).

Plaintiff offers no affidavits or other evidence opposing the declaration of Fredrick L.

Fisch (Dkt. 20-2), which sets out step-by-step how Mr. Fisch reviewed the FOIA requests to

determine the scope of the searches.

1
Plaintiff filed the same memorandum of law in opposition (Dkt. 21) to the FDIC’s motion for summary
judgment and in support of his cross-motion for summary judgment (Dkt. 22).

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Nor does Plaintiff offer any evidence or make any allegation challenging the presumption

of good faith applicable to agency declarations. “This presumption of good faith ‘cannot be

rebutted by purely speculative claims about the existence and discoverability of other

documents.’” Wilson v. Dep’t of Transportation, 730 F. Supp. 2d at 149, quoting SafeCard

Servs. v. SEC, 926 F.2d 1197, 1200 (D.C.Cir.1991).

Accordingly, the facts asserted by the FDIC in its Statement of Material Facts Not In

Dispute and in the Fisch and Hammond declarations should be taken as true. Fed. R. Civ. P.

56(e) (if a party fails to properly address another party’s assertion of fact, the court may consider

the fact undisputed for purposes of the motion); LCvR 7(h) (the court may assume that facts

identified by the moving party are admitted if not controverted by the opposing party); Hubbard

v. United States, 545 F. Supp. 2d 1, 4 (D.D.C. 2008) (adverse party’s response must set forth

specific facts showing that there is a genuine issue for trial).

2. The FDIC Has Met Its Burden Of Demonstrating That It Conducted A Reasonable
Search.

The only remaining issue in this case is whether the facts regarding the document

searches in this case, as set out in the FDIC’s declarations, “demonstrate that the agency

employed search methods reasonably likely to lead to discovery of records responsive to the

plaintiff’s requests.” Order at 1 (Dkt. 16).

Plaintiff does not challenge how the actual records search in the Executive Secretary

Section (ESS) was conducted. Therefore, the issue in this case is whether the FDIC, acting

through Mr. Fisch, reasonably interpreted Plaintiff’s FOIA requests in determining the scope of

the searches.2 Because Mr. Fisch’s interpretation of the wording of Plaintiff’s three FOIA

2
The three requests, together with the referenced press releases, can be found in the Exhibits (Dkt. 20-3)
to the Fisch Declaration and the text of each request is also set out in both the Fisch and Hammond
declarations.

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requests was reasonable -- even if not what was intended by Plaintiff -- it was sufficient for the

FDIC to search for responsive documents only in ESS.

“The adequacy of a search carried out in response to a FOIA request is measured by a

standard of reasonableness and depends on the individual circumstances of each case.” Truitt v.

Dep't of State, 897 F.2d 540, 542 (D.C.Cir.1990); Wilson v. Dep’t of Transportation, 730 F.

Supp. 2d at 149.

Citing Nation Magazine v. Customs Service, 71 F.3d at 890, Plaintiff argues that the

FDIC “improperly limited its searches to only one system of records even though Defendant

easily could have searched other systems that likely contain additional, requested records.” Pl.

Mem. at 4. Neither Nation Magazine nor the case it cites for this proposition, Oglesby v. Dep’t

of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990) establishes a minimum number of files that an

agency must search. The operative language, as correctly quoted by Plaintiff, is: “[T]he

agency cannot limit its search to only one record system if there are others that are likely to turn

up the information requested.” Id. (emphasis added). The Oglesby court then continues:

It is not clear from State's affidavit that the Central Records system is the only
possible place that responsive records are likely to be located. At the very least,
State was required to explain in its affidavit that no other record system was likely
to produce responsive documents.

Id. (emphasis added). In this case, Mr. Fisch explains clearly in his declaration what he

interpreted each of the three requests to be asking for -- the Board Minutes and any memoranda

that were before the Board when making their determinations. Fisch Decl. at 3-5, 7-8, 10-11.

Then Mr. Fisch states plainly how that interpretation determined the scope of the searches:

Because the Minutes of meetings of the FDIC Board of Directors are exclusively
prepared and maintained by the ESS, the only reasonable place to search for the
Minutes requested by Plaintiff was the ESS.

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Because the memoranda prepared for and used by the FDIC Board of Directors
that describe, explain, provide the background and reasoning for, and/or
recommend action (commonly known as “Board Cases” or “Case Memoranda”)
are kept and maintained by the ESS as part of the official records of Board
meetings in which such memoranda are used, the only reasonable place to search
for “supporting memos” requested by Plaintiff was the ESS.

Id. (emphasis added). Thus the Fisch Declaration satisfies the requirement set out in Oglesby. A

search in other records systems would be called for only if Mr. Fisch’s interpretation of the

wording of Plaintiff’s requests was unreasonable, or if Mr. Fisch was incorrect about where the

records were located. Plaintiff has offered no evidence to dispute Mr. Fisch’s statements.

Again quoting Nation Magazine, Plaintiff asserts that: “[E]ven if the Court determines

that Plaintiff’s requests did not reasonably include these additional records -- and Plaintiff does

not concede that the requests do not do so -- Defendant nevertheless had ‘a duty to construe [the]

request[s] liberally.” Pl. Mem. at 5. In other words, Plaintiff is arguing that even if Mr. Fisch’s

interpretation of the FOIA requests was reasonable, the FDIC had a duty to disregard that

reasonable interpretation in favor of a more liberal construction of the requests. This is not what

the court in Nation Magazine said, and is not supported in any other case law cited by Plaintiff or

any case found by the FDIC. As Plaintiff notes in his memorandum: “’The adequacy of an

agency’s search is measured by a standard of reasonableness’ and is ‘dependent upon the

circumstances of the case.’” Pl. Mem. at 3 (citations omitted). And as the court stated in Nation

Magazine, “To be sure, there are some limits on what an agency must do to satisfy its FOIA

obligations.” 71 F.3d at 891.

The FDIC reasonably interpreted the scope of Plaintiff’s requests to be within certain

parameters, based on the wording of the requests, and within those parameters conducted a

search reasonably likely to lead to discovery of responsive records. Having done so, the FDIC

has met its burden. Larson v. Dep’t of State, 565 F.3d 857, 869 (D.C. Cir. 2009) (“In

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determining whether an agency has discharged its FOIA responsibilities, the issue we must

resolve is whether the search for documents was adequate, ‘and adequacy is measured by the

reasonableness of the effort in light of the specific request.’ Meeropol v. Meese, 790 F.2d 942,

956 (D.C.Cir.1986).”)

3. The FDIC Reasonably Interpreted Plaintiff’s Request As Limited To The Board

Minutes And Memoranda Before The Board.

a. The Fisch Declaration Does Not Support Plaintiff’s “Any Information

Available” Argument.

Plaintiff’s principal objection to the FDIC’s motion for summary judgment, and primary

support for his own cross-motion for summary judgment, is that his requests asked for “any

information available.” Plaintiff asserts that he did not intend his request to be limited to the

Board minutes and case memoranda. See Pl. Mem. at 4. Plaintiff interprets the wording of his

requests one way, but the FDIC interpreted them another way. For purposes of the FDIC’s

motion for summary judgment, the Court must determine whether the FDIC’s interpretation, as

set out in the Fisch declaration, was reasonable “in light of the specific request[s].” Larson v.

Dep’t of State, 565 F.3d at 869.

Plaintiff misstates Mr. Fisch’s conclusions regarding the “any information available”

language of the requests. Plaintiff asserts that “for the first time since Plaintiff submitted his

requests more than 17 months ago, Defendant claims . . . that Plaintiff’s requests are ‘overbroad

and failed to reasonably describe the records sought.’” Pl. Mem. at 5. That is not the case.

Rather, the FDIC reference to Plaintiff’s requests as overbroad refers only to the portion of the

request that asks for “any information available,” and indeed, only to the word “any.” Fisch

Decl. at 4, 7, 10 (“[B]ecause that portion of the request failed to comply with subsection

(a)(3)(A) of the FOIA . . . the word ‘any’ should be disregarded in interpreting Plaintiff’s request

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for ‘information available on this determination.’”).3 Mr. Fisch goes on to explain that “the

phrase ‘any information available’ did not render the request defective . . . to the extent that other

information in the request concerning ‘this determination’ satisfied the criteria for ‘identifiable

records.’” Fisch Decl. at 4, 7, 10.4

Rather than finding each request defective in its entirety on the basis of the “any

information available” language, Mr. Fisch examined each request in detail, as set out at length

in his declaration, to determine what records were reasonably described. Fisch Decl. at 3-5, 7-8,

10-11. Plaintiff’s erroneous statement that the FDIC is “asserting for the first time that it does

not understand Plaintiff’s FOIA requests” (Pl. Mem. at 6) reflects Plaintiff’s failure to

acknowledge and address the facts set out in the Fisch Declaration.

Plaintiff also fails to address the totality of Mr. Fisch’s analyses of the three FOIA

requests. As Mr. Fisch’s declaration shows, he concluded from the wording of the requests that

Plaintiff was seeking information about the actions taken by the FDIC Board of Directors at

three specific Board meetings, and was seeking the material that the FDIC Board of Directors

relied upon at those meetings in taking those actions. Plaintiff does not address Mr. Fisch’s

conclusions or argue that those conclusions were unreasonable or incorrect. Plaintiff states that,

“Based on the declarations submitted by Defendant, it is evident that Defendant’s searches were

inadequate.” Pl. Mem. at 4. Yet Plaintiff does not point to any statement in the declarations to

support that “evident” conclusion -- much less offer any contrary evidence. And again, Plaintiff

3
The relevant portion of the FOIA states: “[E]ach agency, upon any request for records which (i)
reasonably describes such records and (ii) is made in accordance with published rules stating the time,
place, fees (if any), and procedures to be followed, shall make the records promptly available to any
person.” 5 U.S.C. § 552(a)(3)(A).
4
FDIC’s FOIA regulation provides: “(c) Defective requests. The FDIC need not accept or process a
request that does not reasonably describe the records requested or that does not otherwise comply with the
requirements of this part. The FDIC may return a defective request, specifying the deficiency. The
requester may submit a corrected request, which will be treated as a new request.” 12 C.F.R. § 309.5(c).

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states, “Based on Mr. Fisch’s declaration it is apparent that Defendant understood which records

Plaintiff was seeking.” Pl. Mem. at 5. Indeed, the FDIC believes that it did understand which

records Plaintiff was seeking, but what is “apparent” from the Fisch Declaration on one hand and

Plaintiff’s memorandum on the other is that Mr. Fisch and Plaintiff did not share the same

understanding. Plaintiff fails to cite to any portions of the Fisch Declaration supporting his

contentions, and again cites no facts to dispute the evidence presented by Mr. Fisch. Plaintiff’s

bare assertions, lacking any evidentiary basis, are insufficient to defeat summary judgment. See

Burke v. Gould, 286 F.3d 513, 517 (D.C. Cir. 2002) (nonmoving party may not rest upon mere

allegations or denials); Schoenman v. FBI, 573 F. Supp. 2d 119, 134 (D.D.C. 2008) (“In

opposing a motion for summary judgment or cross-moving for summary judgment, a FOIA

plaintiff must offer more than conclusory statements.”)

b. Plaintiff Offers No Legal Support For His Argument That The “Any
Information Available” Language Renders The Scope Of The Search
Inadequate.

Plaintiff has failed to address the substantial case law, set out in the FDIC’s

memorandum, holding that FOIA requests in terms such as “any and all” do not reasonably

describe records sought, as required by FOIA. Plaintiff states that his FOIA requests “seek any

and all information available regarding the October 2008 decision to create the Temporary

Liquidity Guarantee Program, the November 2008 decision to extend assistance to Citigroup,

and the January 2009 decision to extend assistance to Bank of America.” Pl. Mem. at 4

(emphasis added). Though limited to three specific matters, this “any and all” language

nonetheless fails to reasonably describe the records sought “in a way that enables the FDIC’s

staff to identify and produce the records with reasonable effort and without unduly burdening or

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significantly interfering with any of the FDIC’s operations.” 12 C.F.R. § 309.5(b)(3).5 For that

reason, Mr. Fisch -- as he describes in his declaration -- did not stop at “any” but reviewed the

requests further to determine whether there were records that were “reasonably described” and

could be provided, rather than simply reject the request as defective.

The “any records available” language echoes the request that this Court considered and

rejected in the recent case of Latham v. DOJ, 658 F. Supp. 2d 155 (D.D.C. 2009), which had just

one specific subject:

I am requesting a complete and thorough search of your filing system under your
agency's control, of any records you may have that pertain in any form or sort to
myself. Furthermore, any other retrieval system that you have access to that
list[s] in any form my name or reference to my name, I ask that these documents
as well be included in this request, in their entirety, and as fully as possible.

Id. at 157 (emphasis added). Quoting Kowalczyk v. Dep’t of Justice, 73 F.3d 386, 388 (D.C. Cir.

1996) and Yeager v. DEA, 678 F.2d 315, 326 (D.C. Cir. 1982), the Court in Latham stated, “A

request reasonably describes records if ‘the agency is able to determine precisely what records

are being requested.’” “Any information available” does not do so, despite Plaintiff’s protest

that “Plaintiff’s requests described exactly records he was seeking.” Pl. Mem. at 4. See also

Dale v. IRS, 238 F. Supp. 2d 99, 104 (D.D.C. 2002) (deficient request sought “any and all

documents, including but not limited to files, that refer or relate in any way to Billy Ray Dale”);

Judicial Watch, Inc. v. Exp.-Imp. Bank, 108 F. Supp. 2d 19, 27-28 (D.D.C. 2000) (rejecting

request for records of “contact with companies, entities, and/or persons related or doing or

conducting business in any way” with China); Mason v. Callaway, 554 F.2d 129, 131 (4th Cir.

1977) (request for “all correspondence, documents, memoranda, tape recordings, notes, and any

5
The FDIC’s FOIA regulation provides: “A request for identifiable records shall reasonably describe the
records in a way that enables the FDIC’s staff to identify and produce the records with reasonable effort
and without unduly burdening or significantly interfering with any of the FDIC’s operations.” 12 C.F.R.
§ 309.5(b)(3).

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other material” inadequately identified records sought). As the Fourth Circuit stated in Mason v.

Callaway: “This request typifies the lack of specificity that Congress sought to preclude in the

requirement of 5 U.S.C. § 552(a)(3) that records sought be reasonably described.” 554 F.2d at

131.

Plaintiff’s memorandum simply ignores this substantial legal hurdle, offering absolutely

no legal basis for his assertion that the FDIC should have searched for “any information

available.” Not only do the undisputed facts, as set out in the FDIC’s declarations, demonstrate

the reasonableness of the FDIC’s searches in this case, the FDIC’s actions were fully in accord

with the provisions of FOIA and case law.

4. The FDIC Was Not Required To Search For A Document Referenced In A

Responsive Record.

Plaintiff argues (Pl. Mem. at 6-8) that, because documents disclosed in response to one of

his requests mentioned a study by FDIC staff that was not provided to Plaintiff, “it is irrefutable

that Defendant has not produced all responsive records [and] has failed to satisfy its burden of

demonstrating that its search for records responsive to Plaintiff’s requests was adequate.” Pl.

Mem. at 8. Plaintiff’s conclusory argument is erroneous, not least because it is a “bootstrap”

argument that relies on the Court finding that the FDIC’s initial search was unreasonably narrow.

In addition, this “other referenced document” argument is contrary to the law and the facts.

a. The FDIC Was Not Required To Look Beyond Plaintiff’s FOIA’s Requests
In Determining The Scope Of The Search.

It is well-established in this Circuit that:

[M]ere reference to other files does not establish the existence of documents that
are relevant to appellant's FOIA request. If that were the case, an agency
responding to FOIA requests might be forced to examine virtually every
document in its files, following an interminable trail of cross-referenced
documents like a chain letter winding its way through the mail.

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Steinberg v. Dep’t of Justice, 23 F.3d 548, 552 (D.C. Cir. 1994); Morley v. CIA, 508 F.3d 1108,

1121 (D.C. Cir. 2007) (“to the extent Morley also contends that the search was inadequate

because the CIA failed to search records referenced in the responsive documents that were

released, Steinberg [] is dispositive”); Davy v. CIA, 357 F. Supp. 2d 76, 84 (D.D.C. 2004).

Plaintiff questions (Pl. Mem. at 6-7) the FDIC’s quotation from Kowalczyk v. Dep’t of

Justice, 73 F.3d 386, 389 (D.C. Cir. 1996), that an agency “is not obligated to look beyond the

four corners of the request for leads to the location of responsive documents.” Plaintiff quotes

the next sentence from that case -- out of context -- to attempt to diminish the impact of the

Court’s statement. Here is the entire discussion, beginning with the full paragraph from which

the FDIC originally quoted in the memorandum in support of its motion for summary judgment:

The Bureau's duty, however, is only to “conduct a search reasonably

calculated to uncover all relevant documents.” Truitt[v. Dep’t of State], 897 F.2d
[540,] 542 [(D.C. Cir. 1990)]. The agency is not required to speculate about
potential leads. More specifically, the Bureau is not obliged to look beyond the
four corners of the request for leads to the location of responsive documents. Of
course, if the requester discovers leads in the documents he receives from the
agency, he may pursue those leads through a second FOIA request.

This is not to say that the agency may ignore what it cannot help but
know, but we suspect that it will be the rare case indeed in which an agency
record contains a lead so apparent that the Bureau cannot in good faith fail to
pursue it. If the agency may reasonably interpret the request to be for records in
a specific office or offices only -- the office to which the request was sent or any
office(s) named in the request -- then upon discovering that it has other
responsive records elsewhere, it may reasonably infer that the requester already
has those records, is seeking them through a separate request, or, for whatever
reason, does not want them. If, on the other hand, the requester clearly states that
he wants all agency records on a subject, i.e., regardless of their location, but fails
to direct the agency's attention to any particular office other than the one
receiving the request, then the agency need pursue only a lead it cannot in good
faith ignore, i.e., a lead that is both clear and certain.

Kowalczyk v. Dep’t of Justice, 73 F.3d at 389 (emphasis added).

Plaintiff also quotes from Perry v. Block, 684, F.2d 121, 128 (D.C. Cir. 1982):

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Perhaps most troublesome in gauging the adequacy of the agency’s search

is the fact that additional documents were found and released after affidavits were
executed by federal officials stating that no further records responsive to
appellant’s request remained in agency control.

Pl. Mem. at 8. The factual situation described in the quote is inapposite to this case. We do not

have a situation where the FDIC released additional records after asserting that there were no

other responsive records. Additionally, the quotation is taken out of context; the court in Perry

affirmed the district court’s grant of summary judgment in favor of the agency, stating: “[A]fter

considerable study of the record, we are not convinced that sufficient ‘positive indications of

overlooked materials’ exist to warrant a remand.” 684 F.2d at 129.

While Plaintiff would have the FDIC sleuth through responsive documents for clues to

other responsive documents, “FOIA clearly does not impose this burden upon federal agencies.”

Steinberg v. Dep’t of Justice, 23 F.3d at 552.

b. It Is Not Clear Or Certain That The Referenced Document Would Be

Responsive.

The Kowalczyk Court’s “lead that is both clear and certain” test brings us to another

problem with Plaintiff’s argument concerning the “study” mentioned in the released documents:

It is not at all clear or certain that the referenced “study” would be considered responsive even if

the FOIA request were given the expansive (but factually and legally unsubstantiated) reading

that Plaintiff seeks. The references to the study appearing in the TLGP case memorandum and

Board minutes (also set out in the FDIC’s Supplemental Statement of Material Facts Not In

Dispute filed with this memorandum) read as follows:

A recent study by FDIC staff on the effect of a run on uninsured deposits on

economic activity indicates that a 5 percent run would reduce GDP growth by
1.16 percent per annum in a normal economy. The same run on a stressed
economy could decrease GDP growth by as much as 1.96 percent per annum.
With economic growth already dampened, a run of this magnitude could be

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enough to push the U.S. into recession or may deepen or prolong a recession if we
are already in one.

Dkt. 5-7 (Exh. C Pt. 2 to FDIC Motion to Dismiss) at 3.

Mr. Brown then stated that a recent study by Corporation staff on the effect of a
run on uninsured deposits on economic activity indicates that a 5 percent run
would reduce GDP growth by 1.16 percent per annum in a normal economy while
the same run on a stressed economy could decrease GDP growth by as much as
1.96 percent per annum. With economic growth already dampened, he said, a run
of that magnitude could be enough to push the U.S. into recession or deepen or
prolong a recession if the economy already is in one. Mr. Brown continued,
adding that, while conditions to date do not appear to have reached the level of
these stress scenarios, there is ample evidence over the last few months that there
have been, and continue to be, rapid and substantial outflows of uninsured
deposits from institutions that are perceived to be under stress.

Dkt. 5-6 (Exh. C Pt. 1 to FDIC Motion to Dismiss) at 7.

Nothing in these references suggests that the study had any connection at all with the

development of the Temporary Liquidity Guarantee Program being considered by the Board.

Rather, the discussions in which these references appear make clear that the study was but one of

dozens of wide-ranging items of economic and financial background information being provided

to the Board and spanning multiple pages of both the case memorandum and the Board minutes.

A broad, multi-office search for materials relevant to the Board’s TLGP determination -- if such

a search were required -- would be unlikely to independently discover a study “on the effect of a

run on uninsured deposits on economic activity.” See Davy v. CIA, 357 F. Supp. 2d 76, 84

(D.D.C. 2004) (“FOIA cannot be used to troll for documents, which, if they even exist, appear

barely tangential to the subject of Davy's requests and thus unlikely to have been revealed even

by the most diligent search.”)

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c. Plaintiff Already Has All The Information About The Referenced Document
To Which He Is Entitled.

In any event, Plaintiff already has all of the information on the study that is relevant to

the Board determination on the TLGP. The referenced study in its entirety was not before the

Board when making its determination; rather, it was only before the Board to the extent it was

mentioned in the case memorandum and at the Board meeting itself. See Hammond Declaration

¶¶ 7, 31 (describing contents of Board meeting files and stating that the October 13, 2008 case

memorandum was the only “supporting memo” contained in the Board meeting file). Thus

Plaintiff has already been provided with the complete information concerning the study that was

presented to the Board for consideration when making its determination.

Conclusion

The FDIC has met its burden under Fed. R. Civ. P. 56 and FOIA case law to demonstrate,

through declarations and other evidence, that it reasonably interpreted Plaintiff’s FOIA requests,

determined a reasonable scope for the searches, and employed search methods reasonably likely

to lead to discovery of records responsive to those requests. In response, Plaintiff has failed to

dispute the material facts as set out in the FDIC’s Statement of Material Facts Not In Dispute and

in the Fisch and Hammond declarations, and has failed to offer legal argument to counter the

well-established legal principles that “any information available” language does not reasonably

describe the records sought, and that an agency is not required to go beyond the four corners of a

FOIA request in a search. Thus, under rule 56, the FDIC is entitled to judgment as a matter of

law. The FDIC’s motion for summary judgment should be granted, and Plaintiff’s Cross-Motion

for Summary Judgment should be denied.

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Respectfully submitted,

COLLEEN J. BOLES
Assistant General Counsel

BARBARA SARSHIK
Senior Counsel

BARBARA KATRON
Counsel

/s/ Daniel H. Kurtenbach

DANIEL H. KURTENBACH
Counsel
D.C. Bar No. 426590

Federal Deposit Insurance Corporation

3501 Fairfax Drive, Room VS-D7026
Arlington, VA 22226
dkurtenbach@fdic.gov
703-562-2465 (office)
703-562-2477 (fax)

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