McKinley v. Board of Governors Plaintiff McKinley Cross-Motion For Summary Judgment (Lawsuit #3)

Case 1:10-cv-00751-ABJ Document 19
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA VERN McKINLEY, ) ) Plaintiff, ) ) v. ) ) BOARD OF GOVERNORS OF ) THE FEDERAL RESERVE SYSTEM, ) ) ) Defendant. ) ____________________________________)
Case No. 10:0751 (ABJ)
CROSS-MOTION FOR SUMMARY JUDGMENT Plaintiff Vern McKinley, by counsel and pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, hereby cross-moves for summary judgment against Defendant Board of Governors of the Federal Reserve System. As grounds therefor, Plaintiff respectfully refers the Court to the accompanying Plaintiffs Memorandum of Law in Opposition to Defendants Motions for Summary Judgment and in Support of Plaintiffs Cross-Motion for Summary Judgment and Plaintiffs Response to Defendants Statement of Material Facts Not in Genuine Dispute and Plaintiffs Statement of Material Facts Not in Genuine Dispute in Support of Plaintiffs Cross-Motion for Summary Judgment. Dated: August 31, 2011 Respectfully submitted, Paul J. Orfanedes (D.C. Bar No. 429716) /s/ Michael Bekesha Michael Bekesha (D.C. Bar No. 995749) JUDICIAL WATCH, INC. 425 Third Street, S.W., Suite 800 Washington, DC 20024 (202) 646-5172 Attorneys for Plaintiff
PLAINTIFFS MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS MOTIONS FOR SUMMARY JUDGMENT IN PART AND IN SUPPORT OF PLAINTIFFS CROSS-MOTION FOR SUMMARY JUDGMENT Plaintiff Vern McKinley, by counsel and pursuant to Rule 56 of the Federal Rules of Civil Procedure, respectfully submits this memorandum of law in opposition to Defendant Board of Governors of the Federal Reserve Systems motions for summary judgment in part and in support of Plaintiffs cross-motion for summary judgment. As grounds therefor, Plaintiff states as follows: MEMORANDUM OF LAW I. Background. This case concerns Freedom of Information Act (FOIA) requests served on the Board of Governors of the Federal Reserve System (the Board) by a private citizen for records detailing the potential systemic effect on financial markets during the financial crisis of 2008. Specifically, the FOIA requests concerned the Boards actions with respect to American International Group (AIG) and Lehman Brothers. On September 16, 2008, the Board officially convened and authorized the Federal Reserve
Bank of New York (FRBNY) to lend up to $85 billion to the American International Group (AIG) under section 13(3) of the Federal Reserve Act. When the Board eventually released its minutes of the September 16, 2008 meeting, the minutes only summarily stated that the disorderly failure of AIG was likely to have a systemic effect on financial markets that were already experiencing a significant level of fragility. Nowhere did the Board identify the specific evidence it considered or how it analyzed this evidence. With respect to Lehman Brothers, the Board was concerned that if Lehman Brothers declared bankruptcy there could be a severe threat to U.S. and global financial stability. Yet, in the end, the Board took no action to bail out Lehman Brothers. However, just as in the case of AIG, the Board did not identify the specific evidence it considered or how it analyzed this evidence to determine what, if any, systemic effect the bankruptcy filing of Lehman Brothers would have on the financial markets. Given the lack of any public explanation of the underlying justifications of the Boards decisions, McKinley submitted two FOIA requests to the Board in an effort to discover what the Government is up to. U.S. Dept of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 780 (1989). After not receiving a response from the Board on either request, McKinley initiated this lawsuit on May 11, 2010. The Board produced records responsive to McKinleys requests on November 9, 2010 and May 27, 2011. In total for both requests, the Board released 575 pages in their entirety, produced 751 pages in part, and withheld 1062 pages in their entirety. The Board subsequently moved for summary judgment asserting that the Board has conducted an adequate search for responsive records and has properly withheld all responsive records. McKinley disagrees that the Board has satisfied its burdens under FOIA.
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II.
Argument. A. Summary Judgment Standard.
In FOIA litigation, as in all litigation, summary judgment is appropriate only when the pleadings and declarations demonstrate that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Fed.R.Civ.P. 56(c). In FOIA cases, agency decisions to withhold or disclose information under FOIA are reviewed de novo. Judicial Watch, Inc. v. U.S. Postal Service, 297 F. Supp.2d 252, 256 (D.D.C. 2004). In reviewing a motion for summary judgment under FOIA, the court must view the facts in the light most favorable to the requester. Weisberg v. United States Dept of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984). B. Defendant has failed to conduct adequate searches.
For a government agency to obtain summary judgment on the adequacy of the search, the agency must demonstrate beyond material doubt that its search was reasonably calculated to uncover all relevant documents. Nation Magazine v. United States Customs Service, 71 F.3d 885, 890 (D.C. Cir. 1995) (quoting Truitt v. Department of State, 897 F.2d 540, 542 (D.C. Cir. 1990)). Specifically, an agency must make a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested, and it cannot limit its search to only one record system if there are others that are likely to turn up the information requested. Nation Magazine, 71 F.3d at 890 (internal citations omitted). Based on the declarations submitted by the Board, it is evident that the Boards searches were inadequate. Quite simply, the Board failed to search the records of FRBNY for records responsive to McKinleys two FOIA requests. McKinleys requests seek any and all underlying
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information with respect to the Boards decision to bail out AIG and the Boards monitoring and analysis related to the ultimate bankruptcy of Lehman Brothers. As the Board itself explains, the Board requested information and advice from FRBNY officers and staff. Declaration of Richard M. Ashton (Ashton Decl.) at 9 (with respect to AIG); Declaration of Patrick M. Parkinson (Parkinson Decl.) at 10 (with respect to Lehman Brothers). Yet, the Board only searched and collected records from 190-200 Board members, officers, and staff in nine divisions of the Board. Declaration of Alison M. Thro (Thro Decl.) at 13. The Board therefore essentially admits that it failed to search for records at the FRBNY even though it is reasonably expected that such searches of the records of FRBNY would produce records responsive to McKinleys requests. Although FRBNY is technically not a component of the Board or a government agency in itself and thus not subject to FOIA directly, certain records of FRBNY are nevertheless agency records. Pursuant to the Boards regulations, records of FRBNY become records of the Board when they are created or obtained by FRBNY pursuant to the performance of functions for or on behalf of the Board. 12 C.F.R. 261.2(i)(1)(i) (Records of the Board include . . . all information coming into the possession and under control of . . . any Federal Reserve Bank, in the performance of functions for or on behalf of the Board.); see also Fox News Network, LLC v. Board of Governors of the Federal Reserve System, 601 F.3d 158, 161 (2nd Cir. 2010). Based on the declarations submitted by the Board, records of FRBNY with respect to AIG and Lehman Brothers were created or obtained in performance of functions for or on behalf of the Board. With respect to AIG, the declarations submitted by the Board demonstrate that FRBNY was collecting information for the purpose of assisting the Board. For example, according to Richard Charlton, Counsel and Vice President in the Bank Supervision & Markets at FRBNY,
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FRBNY gathered information in order to assist the Board in its determination whether or not to authorize the FRBNY to extend a loan to AIG. Declaration of Richard Charlton (Charlton Decl.) at 6 (emphasis added). Moreover, once FRBNY collected the information related to AIG, it analyzed the information and subsequently provided its assessment to the Board. As Richard M. Ashton, Deputy General Counsel of the Board, testifies, Over the next few days, several senior staff members at the FRBNY and the Board, working with the President of the FRBNY, Timothy Geithner, began to analyze and assess the extent and implications of the imminent financial crisis facing AIG. Ashton Decl. at 7. Similarly, Patricia C. Mosser, Senior Advisor and Senior Vice President of the Markets Group at FRBNY, states, In coordination with the Board of Governors of the Federal Reserve System, the FRBNY filters and analyzes this information to assist the Federal Reserve in understanding how financial markets and the broader economy generally, are functioning. Declaration of Patricia C. Mosser (Mosser Decl.) at 3. Finally, and most importantly, FRBNY was acting on behalf of the Board at all times. As Mr. Ashton succinctly explains, The Board solicited the FRBNYs opinions and advice. Ashton Decl. at 9. Therefore, based on the evidence presented by the Board, it is evident that FRBNY maintains information that came into its possession and control while it was performing functions for or on behalf of the Board. Pursuant to the Boards own regulations, these records are Board records regardless of whether such records reached members, officials, or staff of the Board. Similarly, the Board requested that FRBNY gather, analyze and assess information with respect to Lehman Brothers. According to Patrick M. Parkinson, Director of the Division of Banking Supervision and Regulation of the Board, In the months leading up to the Boards decisions, Board members and staff requested information and advice from officers and staff of the
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FRBNY in order to assist the Board. Declaration of Patrick M. Parkinson (Parkinson Decl.) at 10. He also testifies that FRBNY was able rapidly to access and provide information to the Board because of FRBNYs unique involvement in, and knowledge of, the financial markets through its conduct of open market operations and intervention in foreign exchange markets on behalf of the Federal Reserve System. Id. In other words, the Board sought out and heavily relied on information gathered by FRBNY. Moreover, FRBNY gathered information related to Lehman Brothers pursuant to specific delegation of authority related to Large Financial Institutions (LFIs). Declaration of Jeanmarie Davis (Davis Decl.) at 2. As Jeanmarie Davis, Senior Vice President and head of the Financial Market Infrastructure Function of the Financial Institution Supervision Group at FRBNY, explains, FRBNY examiners, utilizing the Boards supervisory authority, obtained information from various supervised LFIs regarding their exposure to Lehman Brothers. Davis. Decl. at 6 (emphasis added). Similarly, FRBNY also gathered information under other delegated authority. For example Jeff J. Stehm, Senior Associate Director in the Division of Reserve Bank Operations and Payments Systems of the Board, testifies that the Board, through the Federal Reserve Bank of New York, conducts regular examinations of state member banks, Edge Act corporations, and other financial institutions subject to the Boards supervisory authority. Declaration of Jeff J. Stehm (Stehm Decl.) at 5. Moreover, and more importantly, he states that the Board, in its supervisory capacity, and its delegee, the FRBNY, gathered information from those financial institutions in order to assess the risk . . . in the event of a Lehman Brothers default. Id. at 6 (emphasis added). Therefore, based on the evidence presented by the Board, it is clear that FRBNY maintains information that came into its possession and control while it was performing functions for or on behalf of the Board. Pursuant to the
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Boards own regulations, these records are Board records regardless of whether such records reached members, officials, or staff of the Board. Pursuant to the Boards regulations, records of FRBNY become records of the Board when they are created pursuant to the performance of functions for or on behalf of the Board. Based on the declarations presented by the Board, it is undisputed that FRBNY collected data, analyzed information, and undertook other tasks to determine the condition of AIG and Lehman Brothers as well as financial systems generally at the direction of and under the supervision of the Board. Therefore, because the Board did not conduct a search reasonably calculated to uncover all relevant documents[,] the Board must be compelled to conduct proper searches of Board records located at FRBNY to discover records responsive to McKinleys requests, regardless of whether such records reached members, officials, or staff of the Board, and McKinley is entitled to summary judgment regarding the inadequacy of the FDICs original search. Steinberg v. U.S. Dept of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994), quoting Weisberg v. U.S. Dept of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984). C. Defendant Continues to Withhold Material that is Readily-Available to the Public.
Under this Circuits public-domain doctrine, records normally exempted from disclosure under FOIA lose their protective cloak once disclosed and preserved in a permanent public record. Cottone v. Reno, 183 F.3d 550, 554 (D.C. Cir. 1999); see also United States Student Association v. Central Intelligence Agency, 620 F. Supp. 565, 571 (D.D.C. 1985) (It is well established that specific information cannot be withheld if it has been subject of prior disclosure.). Unlike the other burdens under FOIA, the requester bears the burden of demonstrating that the government has waived its FOIA exemptions with respect to certain
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records. Cottone, 183 F.3d at 554. To satisfy its burden, the requester must point[] to specific information in the public domain that appears to duplicate that being withheld. Id. (quoting Afshar v. Department of State, 702 F.2d 1125, 1130 (D.C. Cir. 1983)). In the instant matter, the Board has improperly withheld at least 17 records responsive to McKinleys requests because those specific records have been disclosed and are preserved in a permanent public record.1 Although the Board continues to withhold these records from McKinley, they are readily available at http://fcic.law.stanford.edu/resource. As is evident from comparing the copies of the publicly available records with copies of the records being withheld by the Board as attached to the Declaration of Michael Bekesha the records located online appear[] to duplicate that being withheld. McKinley.2 D. Defendant Continues to Improperly Withhold Records. Afshar, 702 F.2d at 1130. The Board therefore must produce the 17 records to
For an agency to prevail on a claim of exemption, it must prove that each document that falls within the class requested either has been produced, is unidentifiable, or is wholly exempt from the Acts inspection requirements. Goland v. Central Intelligence Agency, 607 F.2d 339,
1 The 17 records are attached to the Declaration of Michael Bekesha. With respect to AIG, the records are found on the pages Bates stamped: BOG-FOIA-10-251-000096 97; BOG-FOIA-10-251-000169 170; and BOG-FOIA-10-251-000262 263. With respect to Lehman Brothers, the records are found on pages Bates stamped: BOG-FOIA-10-267-000010 20; BOG-FOIA-10-267-000028 29; BOG-FOIA-10-267-000031 33; BOG-FOIA-10-267-000041 45; BOG-FOIA-10-267-000058 60; BOG-FOIA-10-267-000092 93; BOG-FOIA-10-267-000125 128; BOG-FOIA-10-267-000131 135; BOG-FOIA-10-267-000137 140; BOG-FOIA-10-267-000360; BOG-FOIA-10-267-000415 420; BOG-FOIA-10-267-000506 508; BOG-FOIA-10-267-000925; and BOG-FOIA-10-267-001171. 2 Moreover, comparing the fully available, public versions of the same records that the Board continues to partially withhold from McKinley raises substantial doubts as to whether the Board is properly withholding all information under various claims of FOIA exemptions. -8-
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352 (D.C. Cir. 1978). Reliance on agency affidavits is warranted if the affidavits describe the documents and 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. Sciba v. Board of Governors, 2005 U.S. Dist. LEXIS 45686, *4 (D.D.C. Nov. 5, 2005) (quoting Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981)). The court may require an in camera inspection of the withheld documents to insure that agencies do not misuse the FOIA exemptions to conceal non-exempt information. Carter v. U.S. Dept of Commerce, 830 F.2d 388, 393 (D.C. Cir. 1987) (quoting Allen v. Central Intelligence Agency, 636 F.2d 1287, 1298 (D.C. Cir. 1980)). The Board claims a combination of FOIA Exemptions 4, 5, and 8 with respect to the responsive records it continues to withhold from McKinley. FOIA Exemption 4 permits the withholding of trade secrets and commercial or financial information obtained from a person that is privileged or confidential. 5 U.S.C. 552(b)(4). In order to determine whether information was privileged or confidential, courts look to whether its production was compulsory or whether it was provided to the government voluntarily. If the provision of the information was compulsory, it will not be considered confidential unless the submitter can show that disclosure will (1) impair the governments ability to obtain necessary information in the future; or (2) cause substantial harm to the competitive position of the person from whom the information was obtained. Defenders of Wildlife v. U.S. Dept of the Interior, 314 F. Supp.2d 1, 7-8 (D.D.C. 2004) (citing Natl Parks & Conservation Assn v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974) (National Parks)). If the information was provided to the government voluntarily, it is considered confidential if it is of a kind that would customarily not
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be released to the public by the person from whom it was obtained. Defenders of Wildlife, 314 F. Supp.2d at 7-8 (quoting Critical Mass Energy Project v. Nuclear Regulatory Commn, 975 F.2d 871, 879 (D.C. Cir. 1992) (en banc)). FOIA Exemption 5 allows an agency to withhold records or information that are inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency. 5 U.S.C. 552 (b)(5). Courts have recognized three types of Exemption 5 withholdings: the deliberative process privilege, the attorney-client privilege, and the attorney work product doctrine. See Coastal States Gas Corp., 617 F.2d at 862. The Board purportedly invokes the deliberative process privilege, the attorney work product doctrine, and the attorney client privilege. For an agency to properly withhold material under the deliberative process privilege of FOIA Exemption 5, material must be both pre-decisional and deliberative. Public Citizen, Inc. v. OMB, 598 F.3d 865, 876 (D.C. Circuit 2009). A document also must be a direct part of the deliberative process in that it makes recommendations or expresses opinions on legal or policy matters. Id. (internal citation omitted). And only those portions of a predecisional document that reflect the give and take of the deliberative process may be withheld. Id. (quoting Access Reports v. Dept of Justice, 926 F.2d 1192, 1195 (D.C. Cir. 1991). In applying the deliberative process privilege it is essential to examine the purposes of the privilege. The court examines whether "disclosure of materials would expose an agency's decisionmaking process in such a way as to discourage candid discussion within the agency and thereby undermine the agency's ability to perform its functions." Dudman Communications Corp. v. Dep't of the Air Force, 815 F.2d 1565, 1568 (D.C. Cir. 1987). This examination begins with courts asking themselves whether the document is so candid or personal in nature that public
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disclosure is likely in the future to stifle honest and frank communication within the agency. Coastal States Gas Corp. v. Dept of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980). It is the agencys responsibility to show by specific and detailed proof that disclosure would defeat, rather than further, the purposes of the FOIA. Mead Data Central Inc. v. U.S. Dept of the Air Force, 566 F.2d 242, 258 (D.C. Cir. 1977); see also Senate of Puerto Rico v. U.S. Dept of Justice, 823 F.2d 574, 585 (D.C. Cir. 1987) (affirming agencys burden of proof in terms of specificity and detail); Formaldehyde Inst. v. U.S. Dept of Health and Human Services, 889 F.2d 1118, 1124 (D.C. Cir. 1989) (an agency must demonstrate how disclosure would work to "the detriment of the decisionmaking process"). Moreover, the deliberative process privilege is a narrowly construed exemption which does not shield documents that simply state or explain a decision the government has already made or protect material that is purely factual, unless the material is so inextricably intertwined with the deliberative sections of documents that its disclosure would inevitably reveal the governments deliberations. In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997). FOIA Exemption 8 provides that an agency may withhold information that is contained in or related to the examination, operating or condition reports prepared by, or on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions. 5 U.S.C. 552(b)(8). While McKinley challenges the Boards withholdings generally for its failure to satisfy its burden of proof under FOIA, he also asserts the following challenges to the withholding of specific records.3
3 These specific records are separate and distinct from the 17 records that McKinley challenged on the basis that the 17 records are publicly available. - 11 -
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i.
Specific challenges to the Boards claims of FOIA exemptions with respect to the AIG-related records.
Bates Numbers BOG-FOIA 10-251-000071 (71) and BOG-FOIA 10-251-000127 (127)4 are emails that report and summarize conversations with AIG. As can be clearly seen from the records themselves, the authors are simply reporting conversations, not expressing any opinions on legal or policy matters. These records do not reflect any give and take of the deliberative process. The Board improperly redacted material from these documents pursuant to the deliberative process privilege. Bates Numbers 78 and 83 are emails regarding an assessment of AIGs condition, causes of the problems and potential solutions. As proof of its claim of the deliberative process privilege, the Board asserts that disclosure of the material would have a chilling effect on intra-agency communications. Such a claim is far too speculative and vague to demonstrate that the material would defeat purposes of FOIA or stifle honest and frank communication within the agency. These emails are between Chairman Bernanke of the Federal Reserve and Vice Chairman Kohn, which is not a subordinate-superior relationship, but one of equals. See Vaughn v. Rosen, 523 F.2d 1136, 1146 (D.C. Cir. 1975) (Exemption 5 is designed to protect subordinates advice to superiors). Asserting that members of the Board will no longer engage in future candid discourse if material regarding AIGs (now past) financial condition is made public is unpersuasive. Bates Number 92-93 is an email entitled AIG solvency. The Board describes the withheld material as an internal economic analysis. The email purports to list key documents and information. Listing documents and information is not subjective or personal; it is factual
4 All subsequently challenged AIG documents will be listed by only the last sequential number. - 12 -
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and does not reflect the give and take of the deliberative process. See Public Citizen, 598 F.3d at 876. Bates Numbers 103 and 104 are email attachments described as an economic analysis of AIG solvency. This material appears to be factual in nature and does not reflect the give and take of the deliberative process. Additionally, the Board fails to demonstrate by specific and detailed proof how the release of an economic analysis of a decision already made would harm the Boards decisionmaking process. See Judicial Watch, Inc. v. U.S. Postal Service, 297 F. Supp. 2d 252, 263 (D.D.C. 2004) (material that was simply compiled and involved little or no judgment at all was not deliberative). Bates Number 135, like Bates Number 127 above, is an email summarizing a conversation with AIG. The author is simply reporting a conversation, not expressing any opinions on legal or policy matters. Bates Number 135 does not reflect any give and take of the deliberative process. See Access Reports, 926 F.2d at 1195. Bates Number 135 is also not protected by the attorney client privilege. The attorney client privilege only extends to communications in which an attorneys counsel is sought on a legal matter. See Coastal States, 617 F.2d at 862. The privilege is, however, narrowly construed and is limited to those situations in which its purpose will be served. Id. In other words, only communications that seek legal advice from a professional legal adviser in his capacity as such are protected. In re Lindsey, 158 F.3d 1263, 1270 (D.C. Cir. 1998). Moreover, advice other than legal advice sought by the attorney is not protected by the privilege. Id. However, Bates Number is described as AIGs plan for improving its financial condition. There is no indication that the attorney was sought for legal advice in his capacity as the Boards General Counsel. Therefore, the Board has failed to demonstrate that Bates Number 135 is
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protected from disclosure by the attorney client privilege. Bates Numbers 141-146, 172-180 and 753-764 are described as memoranda entitled Issues Related to Possible Lending to American International Group. These records contain background information on AIGs operations and sources of current difficulties. Based on these descriptions, the withheld material is purely factual and does not contain or relate to any opinion of the Board. See Public Citizen, 598 F.3d at 876. Additionally, the memoranda purport to include information on AIGs solvency. However, a later email, Bates Number 286, states we need very quickly to draft the section on solvency. If the section on solvency was not yet drafted, the Vaughn Index descriptions for the Bates Numbers 141-146 and 172-180 memoranda are inaccurate. Bates Number 261 is an email involving AIG and history and the insurance industry. Based on this description, the withheld material is purely factual and does not contain or relate to any opinion of the Board. Material that is purely factual cannot be withheld as deliberative. Judicial Watch, Inc., 297 F. Supp. 2d at 262 (Generally, factual accounts of events do not fall under Exemption 5.); see also Petroleum Info. Corp. v. U.S. Dept of the Interior, 976 F.2d 1429, 1434 (D.C. Cir. 1992) (finding that "under the deliberative process privilege, factual information generally must be disclosed"); see also Mapother v. Dept of Justice, 3 F.3d 1533, 1539-40 (D.C. Cir. 1993) (agencies must disclose purely factual chronologies). Bates Number 518 is an email regarding whether AIG should receive government assistance. The Board fails to affirmatively assert that the material withheld was formally or informally adopted or was used in the agencys dealings with the public. Coastal States, 617 F.2d at 866 (predecisional status can be lost). Bates Number 847 is an email regarding the severity of AIGs capital hole. The Vaughn
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Index asserts that the withheld material is two different things. In the description of withheld material column, it states that the withheld material was the identity of an outside analyst. In the claim(s) of exemption column, it states that the withheld material is a confidential market source. The Vaughn descriptions are incompatible. Bates Number 860 is an email whose subject matter is described as AIGs capital hole. The Board claims the email concerns AIGs options. The Board provides no additional information. When creating a Vaughn index, "[a] withholding agency must describe each document or portion thereof withheld, and for each withholding it must discuss the consequences of disclosing the sought-after information." King v. Dept. of Justice, 830 F.2d 210, 223-24 (D.C. Cir. 1987). The description for Bates Number 860 is vague and insufficient. Bates Number 848 is an email described as summarizing a discussion with FRBNY President Geithner regarding AIG. Similar to Bates Numbers 72, 127 and 447, summarizing a conversation, like reporting a conversation, does not express any opinions on legal or policy matters and does not reflect any give and take of the deliberative process. See Public Citizen, 598 F.3d at 876; see also Access Reports, 926 F.2d at 1195. Additionally, the Boards description is too vague. A conversation about AIG could be anything, and it is not deliberative simply because it involves AIG in general. Bates Numbers 854, 855, 857, and 858 are emails described as comments on logistics, update on AIG discussion logistics, and update on logistics. From the descriptions there does not appear to be anything subjective or personal regarding the logistical issue, but, rather, explanations which are factual and are not protected by the deliberative process privilege. See In re Sealed Case, 121 F.3d at 737. The Board also claims Bates Numbers 854, 855, 857, and 858 are protected by attorney
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client privilege. Because the attorney client privilege is a narrowly construed exemption, it is absolutely necessary for the Board to establish that the communication specifically sought legal advice from the Board General Counsel in his capacity as a professional legal adviser. In re Lindsey, 158 F.3d at 1270. The vague topic of logistics does not afford the Board the
necessary specificity to satisfy its burden of proof. Bates Numbers 865, 891, 895, 940-943 and 956-959 are emails regarding an attachment entitled the Use of Existing Authority and the attachment itself. This material is neither
deliberative, nor is it protected by the attorney client privilege. Material protected by the deliberative process privilege must be personal or subjective, not simply a straightforward explanation[] of legal authority. See Coastal States, 617 F.2d at 868. Much like the memorandum at issue in Coastal, these emails and attachments are more akin to a resource opinion. Id. Additionally, Bates Numbers 940-943 and 956-959 are not protected by the attorney client privilege. The attorney client privilege extends to communications in which an attorneys counsel is sought on a legal matter. Id. at 862. The privilege is, however, narrowly construed and is limited to those situations in which its purpose will be served. Id. Like the material in Coastal, the material withheld here does not contain private information concerning the agency. Id. Instead it appears to be a neutral, objective analysis of legal authority. Id. Bates Numbers 869 and 871 are emails from the Chairman of the Board and Vice Chairman Kohn in which they provide[] and lay[] out the next steps. These records therefore are clearly not deliberative material as they do not reflect the give and take of the deliberative process and instead appear to be instructions. See Public Citizen, 598 F.3d at 876. Bates Numbers 892-893, 898-899 and 911-912 are emails regarding a memorandum on
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AIG and commercial paper and the memorandum itself. Like Bates Numbers 103 and 104 this material appears to be more of a factual nature and does not reflect the give and take of the deliberative process. See Public Citizen, 598 F.3d at 876. The Board also fails to demonstrate by specific and detailed proof how release of a memorandum regarding AIG and commercial paper would harm the Boards decisionmaking process. See Judicial Watch, Inc., 297 F. Supp. 2d at 263 (material that was simply compiled and involved little or no judgment at all was not deliberative); see also Mead Data, 566 F.2d at 258. Additionally, the Board claims FOIA Exemption 4 as to Bates Numbers 893, 898-899 and 911-912. However, the Boards Vaughn Index makes no Exemption 4 claim. Plaintiff questions whether the Board withheld information pursuant to Exemption 4 for which it has not accounted. Bates Number 903 is an email from the Board requesting information about AIG from Treasury. In other words, Bates Number 903 is nothing more than a communication of facts, which is clearly not deliberative as it does not reflect the give and take of the deliberative process. See Public Citizen, 598 F.3d at 876. Additionally, Bates Number 903 suffers from conflicting Vaughn Index descriptions. The description column asserts the document is an email request for information. Moreover, the document itself reflects this description. However, the claims of exemption column asserts the document is a memorandum. Bates Number 955 is an email described as an exchange about a directive to draft a statement on AIG. Simply engaging in an email discussion is not enough to render the material deliberative. There is no indication that the material withheld was personal or subjective, and the Board has not demonstrated with specificity how release of it would harm the Boards decisionmaking process. See Public Citizen, 598 F.3d at 876; see also Formaldehyde Inst., 889 F.2d at 1124.
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Bates Numbers 964 and 965 are a draft AIG resolution and the corresponding email. The Boards reliance on the draft label is misplaced. Drafts are not presumptively privileged. Judicial Watch, Inc., 297 F. Supp. 2d at 261; see also Arthur Anderson & Co. v. IRS, 679 F.2d 254, 257 (D.C. Cir. 1982). By failing to demonstrate whether the material was ever formally or informally adopted or was used in the agencys dealings with the public, the Board failed to carry its burden. Coastal States, 617 F.2d at 866 (predecisional status can be lost if the material is
formally or informally adopted or is used in the agencys dealings with the public); see also Wilderness Socy v. United States DOI, 344 F. Supp. 2d 1, 13 (D.D.C. 2004) ([O]nce an agency adopts a policy, formally or informally, the contents of some documents, including draft documents, would destroy any predecisional aspect of drafts.). Bates Number 1119-20 is an email forwarding documents used the previous day. There is nothing deliberative about an email forwarding documents. Similarly, there is no evidence of the give and take of the deliberative process. See Public Citizen, 598 F.3d at 876. Bates Number 1121-1123 is an attachment entitled Proposal to Reissue Stable Value Business for AIG. The Board fails to demonstrate whether the material was ever formally or informally adopted or was used in the agencys dealings with the public. See Formaldehyde Inst., 889 F.2d at 1124; see also Coastal States, 617 F.2d at 866. Moreover, Bates Number 1123 contains an Exemption 4 claim that is not accounted for in the Boards Vaughn Index. Plaintiff questions whether information improperly withheld pursuant to Exemption 4 was segregable and should have been produced. Bates Numbers 1124-1125 ,1126-1134, 1131, 1132 and 1133 are email attachments regarding Systemic issues in AIG failure, Systemic Impact of AIG Bankruptcy, Retail Nature, AIG Bankruptcy Considerations, and Summary of AIGs market risk positioning.
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Like Bates Numbers 892-893, 898-899 and 911-912, this material appears to be more of a factual nature and does not reflect the give and take of the deliberative process. See Public Citizen, 598 F.3d at 876. The Board also fails to demonstrate by specific and detailed proof how release of a memorandum regarding AIG and commercial paper would harm the Boards decisionmaking process. See Judicial Watch, Inc., 297 F. Supp. 2d at 263 (material that was simply compiled and involved little or no judgment at all was not deliberative); see also Mead Data, 566 F.2d at 258. Bates Number 1134 is an email attachment entitled AIG Summary 16 September 2008. This description is legally vague and insufficient. It is the Boards burden to describe each document or portion thereof withheld, and for each withholding it must discuss the consequences of disclosing the sought-after information. ii. King, 830 F.2d at 223-24.
Specific challenges to the Boards claims of FOIA exemptions with respect to the Lehman Brothers-related records.
Bates Number BOG-FOIA 10-267-000348 - 353 (348-353)5 is a spreadsheet of counterparties exposure to Lehman brothers. The Board claims that the withheld material is exempt as commercially sensitive and supervisory information and continues to withhold this record under FOIA Exemption 4. It further claims that the information was involuntarily given. As stated above, for an agency to satisfy its burden of withholding records under FOIA Exemption 4, an agency must demonstrate that disclosure will (1) impair the government's ability to obtain necessary information in the future; or (2) cause substantial harm to the competitive position of the person from whom the information was obtained. Nat'l Parks & Conservation Ass'n, 498 F.2d at 770. The Board fails to satisfy its burden of proof with respect to either of these two critical 5 All subsequently challenged Lehman Brothers documents will be listed by only the last sequential number. - 19 -
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points. In fact, Bates Number 105-110, the document to which the Board refers the court and Plaintiff in its Vaughn Index, was a similar document and was not withheld in full. The material was harmless enough in Bates Number 105-110 to produce in part. There is no difference here. See Public Citizen Health Research Group v. FDA, 704 F.2d 1280, 1291 (D.C. Cir. 1983) (agency requirement to demonstrate actual competition and the likelihood of substantial competitive injury.) (quoting Gulf & Western Industries v. United States, 615 F.2d 527, 530 (D.C. Cir. 1979)). The Board also claims FOIA Exemption 8 for the withheld material based on its statement that the material contains supervisory information. The Boards Vaughn Index asserts that the information was obtained from supervised financial entities, but its referral to Bates Number 105-110 calls this assertion into question. The Board partially produced Bates Number 105-110, and it begs the question why it released this material and not Bates Number 348 353. It is not apparent from the face of Bates Number 105-110 whether the information is from supervised financial entities or simply about supervised financial entities. Financial information compiled by the Board for its own internal purpose is not protected by FOIA Exemption 8. Bates Number 373 is an email discussing three options for Lehman. This description is vague and insufficient to satisfy the Boards burden of proof. See King v. Dept. of Justice, 830 F.2d at 223-24. Additionally, the Board fails to demonstrate with specificity how producing the material on the three options will chill interagency communications. See Mead Data, 566 F.2d at 258 (D.C. Cir. 1977); see also Senate of Puerto Rico, 823 F.2d at 585 (affirming agencys burden of proof in terms of specificity and detail); Formaldehyde Inst, 889 F.2d at 1124 (an agency must demonstrate how disclosure would work to "the detriment of the decisionmaking process") (emphasis in original). Bates Number 422-424 is a document entitled Bankruptcy Analysis-Summary. The
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Board states that the document is labeled confidential. The Boards assertion of confidentiality, however, has no bearing in a deliberative process inquiry. The Board fails to demonstrate whether the material withheld is subjective and personal or more of a factual nature. Judicial Watch, Inc., 297 F. Supp. 2d at 262; see also Petroleum Info., 976 F.2d at 1434. It is the Boards burden to clearly articulate the nature of the material withheld and not simply rely on confidential labels or boilerplate language. See Judicial Watch, 297 F. Supp. 2d at 263 (material that was simply compiled and involved little or no judgment at all was not deliberative). Bates Number 425-428 is a document outlining a Board/FRBNY meeting regarding Lehman. The Board fails to clarify whether information discussed at the meeting was ultimately adopted as policy. See Arthur Andersen, 679 F.2d at 258 (subjecting to disclosure documents "adopted formally or informally, as the agency position on an issue"). Bates Numbers 616-621 are emails regarding a draft Lehman timeline and the corresponding timeline. McKinley challenges the deliberative nature of this material withheld. As clearly seen on Bates Number 618, the email is factually based, not based on opinion and not subjective or personal. See also Petroleum Info., 976 F.2d at 1434; Mapother, 3 F.3d at 1539-40.
The subject matter does not reflect the give and take of the deliberative process. Nor does the Board demonstrate by specific and detailed proof how the release of a draft Lehman timeline would harm the Boards decisionmaking process. See Judicial Watch, Inc, 297 F. Supp. 2d at 263 (court questioning the deliberativeness of the Boards timelines and chronologies); see also Senate of Puerto Rico, 823 F.2d at 585. Bates Number 756-757 is described as an email regarding Lehman view from UK. Specifically referring to its deliberative process claim, the Board asserts that the withheld material
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concerns Lehmans situation in markets overseas. Based on this description, it is unclear whether the material withheld is of a personal and subjective nature or merely a factual description of the overseas markets. See Petroleum Info., 976 F.2d at 1434; see also Mapother, 3 F.3d at 1539-40; and Judicial Watch, Inc., 297 F. Supp. 2d at 263. Bates Number 771-772 is an email regarding a draft memo on communication plans. The email was improperly redacted. Not only does the email appear to contain factual rather than personal material, but the parties to the email do not share the prototypical subordinate-superior relationship. See Coastal States, 617 F.2d at 868 (predecisional documents are most likely those from a subordinate to a superior official); see also Vaughn, 523 F.2d at 1146. Bates Number 774-783 is the attachment to Bates Number 771-772. The Board fails to demonstrate how a memorandum outlining a plan for communications is part of the Boards deliberative process. Moreover, the communications plan was for relaying information on Lehman developments. The Board has failed to satisfy its burden of proof that this particular record was used in its decisionmaking process. Lastly, Bates Number 782 was redacted pursuant to FOIA Exemptions 4 and 8. However, neither exemption is accounted for in the Boards Vaughn Index. Rather, Bates Number 782 is grouped with the communications memorandum, Bates Number 774-783, and the Board asserts only the deliberative process privilege. Bates Number 782 should be produced in its entirety, as the Board has failed to properly justify withholding the redacted material. Bates Number 785-789 is a document entitled Convening the FRBNYs Operations Management Group OMG to consider potential actions in the event of a default by Lehman. The Board fails to demonstrate whether information discussed at the meeting was ultimately adopted as policy or was used by the agency in its dealing with the public. Coastal States, 617 F.2d at 866
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(predecisional status can be lost if the material is formally or informally adopted or is used in the agencys dealings with the public). Bates Number 792 is an email described only as regarding FRBNY options for Lehman. This description is too vague to satisfy the Boards burden of proving that the withheld material is deliberative. See King, 830 F.2d at 223-24 (agency must describe each document or portion thereof withheld). Bates Number 799 is an email regarding State Streets Lehman exposure. The Board asserts it withheld commercially sensitive and supervisory information. The Board states that the information was involuntarily given. Therefore, it must demonstrate that disclosure will (1) impair the government's ability to obtain necessary information in the future; or (2) cause substantial harm to the competitive position of the person from whom the information was obtained. Nat'l Parks & Conservation Ass'n, 498 F.2d at 770. The Board fails to demonstrate either of these two points and provides only the boilerplate allegation of competitive injury. Public Citizen Health Research Group, 704 F.2d at 1291 (description of potential competitive harm fails to demonstrate actual competition and the likelihood of substantial competitive injury.) (quoting Gulf & Western Industries v. United States, 615 F.2d 527, 530 (D.C. Cir. 1979)). Bates Number 886-887 is described as draft speaking notes for a Financial Community Meeting on resolving the Lehman issue. As with many of the Vaughn Index documents, the Board relies too heavily on the draft characterization. In fact, in the description of withheld material column, the Boards asserts only draft document. Drafts are not, however, presumptively privileged. Judicial Watch, Inc., 297 F. Supp. 2d at 261; see also Arthur Anderson, 679 F.2d at 257. By failing to whether the material was ever formally or informally adopted or was used in the agencys dealings with the public, the Board failed to carry its burden.
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Coastal States, 617 F.2d at 866; See also Wilderness Soc'y, 344 F. Supp. 2d at 13 ([O]nce an agency adopts a policy, formally or informally, the contents of some documents, including draft documents, would destroy any predecisional aspect of drafts.). Bates Number 988 is an email from the Board Chairman to Vice Chairman Kohn regarding bids for Lehmans asset management division. The document itself states that Bloomberg reports that Lehman has received bids for its asset mgt division. This material is not personal or subjective and does not reflect the give and take of the deliberative process. See Access Reports, 926 F.2d at 1195. Bates Numbers 1047 and 1048 are emails between Board members and the Treasury Department regarding communicating updates on Lehman and a call on Lehman counterparties. This material is not personal or subjective and does not reflect the give and take of the deliberative process. See Access Reports, 926 F.2d at 1195. Bates Number 1117 is an email providing a European perspective on the Lehman situation. The Boards Vaughn Index asserts that this email contains internal deliberations. However, from the document description provided by the Board, the material appears to be of a factual nature and does not reflect the give and take of the deliberative process. Bates Numbers 1151-152 is an email regarding an announcement on Lehman. This material is not personal or subjective and does not reflect the give and take of the deliberative process. See Access Reports, 926 F.2d at 1195. The Board also fails to explain whether the announcement was publicly made. The Boards use of this material in its dealings with the public can effectively strip an otherwise deliberative document of its predecisional disposition. Coastal States, 617 F.2d at 866. Bates Number 1153 is described as an email regarding a bankruptcy discussion with the
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Board Chairman. The document itself shows it to be the recitation of a bankruptcy discussion. The author is simply reporting a conversation, not expressing any opinions on legal or policy matters. Therefore, this does not reflect any give and take of the deliberative process. See Access Reports, 926 F.2d at 1195. Bates Number 1164 is an email providing an update on the developments regarding Lehman. This material is clearly not personal or subjective, but rather factual. As such it does not reflect the give and take of the deliberative process. See In re Sealed Case, 121 F.3d at 737. Bates Number 1172 is an email from the Board Chairman offering to make phone calls, the names of people to call, as well as a summary of a call to another Board member. First, the content of Bates Number 1172 is not deliberative. An offer to assist with phone calls is clearly not deliberative and an email summarizing a conversation does not reflect any give and take of the deliberative process. See Access Reports, 926 F.2d at 1195. The author is simply reporting a conversation, not expressing any opinions on legal or policy matters. The Board asserts that Bates Number 1172 is also exempt as commercially sensitive information. The Board claims the material was supplied voluntarily by foreign bank supervisory agencies and is not customarily disclosed to the public. The Boards Vaughn Index contains conflicting descriptions of the material. In the description of document(s) column, the Board asserts that the document is an offer to assist with phone calls and a response containing the names of people to call. The claim(s) of exemption column asserts that the material is commercial or financial information regarding Lehmans foreign operations. Viewing the disclosed portion of the document suggests the material fits into the first description -- an offer to assist with phone calls and a response containing the names of people to call.
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III.
Conclusion. For the foregoing reasons, the Board has failed to satisfy its burdens under FOIA. The
Board failed to conduct proper searches for Board records located at FRBNY and therefore did not conduct searches reasonably calculated to uncover all relevant documents. Moreover, the Board continues to withhold 17 records that are readily available to the public at http://fcic.law.stanford.edu/resource. Finally, the Board has failed to satisfy its burden of proof with respect to its claims of exemptions of the material it continues to withhold. Therefore, McKinley respectfully requests that the Boards motions for summary judgment be denied, that Plaintiffs cross-motion for summary judgment be granted, and that the Court order the Board to conduct searches reasonably calculated to uncover all relevant documents, to produce the 17 withheld records that are publicly available, and produce all non-exempt, segregable material. Dated: August 31, 2011 Respectfully submitted, Paul J. Orfanedes (D.C. Bar No. 429716) /s/ Michael Bekesha Michael Bekesha (D.C. Bar No. 995749) JUDICIAL WATCH, INC. 425 Third Street, S.W., Suite 800 Washington, DC 20024 (202) 646-5172 Attorneys for Plaintiff
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PLAINTIFFS RESPONSE TO DEFENDANTS STATEMENT OF MATERIAL FACTS AND PLAINTIFFS STATEMENTOF MATERIAL FACTS NOT IN DISPUTE Plaintiff Vern McKinley, by counsel and pursuant to LcvR 56.1, respectfully submits the following response to Defendants Statement of Material Facts Not in Dispute. Plaintiff also respectfully submits his own Statement of Material Facts Not in Dispute in support of his own cross-motion for summary judgment: I. McKinleys Response to the Boards Statement of Material Facts Not in Dispute. A. General Objection
As an initial matter, McKinley objects to the Board of Governors of the Federal Reserve System (the Board)s statement for failing to comply with Local Civil Rule 7(h)(1). The
failure to comply with the requirement to file a proper statement of material facts in making or opposing a motion for summary judgment may be fatal to the delinquent partys position. Gardels v. Central Intelligence Agency, 637 F.2d 770, 773 (D.C. Cir. 1980); see also Adagio Investment Holding Ltd. v. Federal Deposit Insurance Corp., 338 F. Supp.2d 71, 75 (D.D.C.
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2004); Smith Property Holdings, 4411 Connecticut L.L.C. v. U.S., 311 F. Supp. 2d 69, 78 (D.D.C. 2004); Robertson v. American Airlines, 239 F. Supp.2d 5, 8-9 (D.D.C. 2002). The statement of material facts submitted by the Board contains an improper mix of fact and legal argument and does nothing to assist the court in isolating the material facts, distinguishing disputed from undisputed facts, and identifying the pertinent parts of the record nor does it provide the non-movant an opportunity fairly to contest the movants case. Robertson, 239 F. Supp. 2d at 9 (citations omitted). It appears as though the Board simply cut and pasted entire paragraphs from its declarations into the statement rather than parsing out the factual material it asserts is not in dispute. B. 1. 2. Particular Responses Undisputed. McKinley disputes that the Board has satisfied its burden of demonstrating that it
conducted an adequate search for documents responsive to the AIG Request. McKinley lacks knowledge to confirm or deny the description of Project Collect. See Judicial Watch, Inc. v. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the asymmetrical distribution of knowledge between a FOIA requester and an agency in FOIA cases). 3. McKinley lacks knowledge to confirm or deny what the Project Collect repository
contains. See Judicial Watch, Inc. v. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the asymmetrical distribution of knowledge between a FOIA requester and an agency in FOIA cases). McKinley disputes that the spoke databases contain all documents likely to be responsive to the AIG Request. 4. McKinley lacks knowledge to confirm or deny whether such an event occurred.
See Judicial Watch, Inc. v. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the
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asymmetrical distribution of knowledge between a FOIA requester and an agency in FOIA cases). 5. McKinley lacks knowledge to confirm or deny whether such an event occurred.
See Judicial Watch, Inc. v. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the asymmetrical distribution of knowledge between a FOIA requester and an agency in FOIA cases). 6. McKinley disputes that the Board has responded in full to the AIG Request because
it has failed to conduct a proper search of the Boards records located at FRBNY to discover records responsive to McKinleys requests, regardless of whether such records reached members, officials, or staff of the Board. The remainder of the paragraph is undisputed. 7. 8. 9. 10. Undisputed. Undisputed. Undisputed. McKinley disputes that the Board has satisfied its burden of demonstrating that it
conducted an adequate search for documents responsive to the Lehman Request. McKinley lacks knowledge to confirm or deny the description of Project Collect. See Judicial Watch, Inc. v. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the asymmetrical distribution of knowledge between a FOIA requester and an agency in FOIA cases). 11. McKinley lacks knowledge to confirm or deny whether such an event occurred.
See Judicial Watch, Inc. v. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the asymmetrical distribution of knowledge between a FOIA requester and an agency in FOIA cases).
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12.
McKinley lacks knowledge to confirm or deny whether such an event occurred.
See Judicial Watch, Inc. v. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the asymmetrical distribution of knowledge between a FOIA requester and an agency in FOIA cases). 13. McKinley disputes that the Board has responded in full to the Lehman Request
because it has failed to conduct a proper search of the Boards records located at FRBNY to discover records responsive to McKinleys requests, regardless of whether such records reached members, officials, or staff of the Board. The remainder of the paragraph is undisputed. 14. 15. 16. Undisputed. Undisputed. McKinley lacks knowledge to confirm or deny whether such an event occurred.
See Judicial Watch, Inc. v. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the asymmetrical distribution of knowledge between a FOIA requester and an agency in FOIA cases). 17. McKinley lacks knowledge to confirm or deny whether such an event occurred.
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19.
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30.
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41.
See Judicial Watch, Inc. v. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the asymmetrical distribution of knowledge between a FOIA requester and an agency in FOIA cases). II. Plaintiffs Statement of Material Facts Not in Dispute. 1. Pursuant to the Fraud Enforcement and Recovery Act (Public Law 111-21), the
Financial Crisis Inquiry Commission (FCIC) delivered its report to the President, Congress and the American people on January 27, 2011. 2. 3. Pursuant to statute, the operations of the FCIC concluded on February 13, 2011. On February 13, 2011, all information available on the FCICs website was transferred to
the Rock Center for Corporate Governance at Stanford University and the Robert Crown Law Library at Stanford Law School. Moreover, the official archival FCIC website is located at http://fcic.law.stanford.edu. 4. A non-redacted version of BOG-FOIA-10-251-000096 97 is publically available at
http://fcic.law.stanford.edu/resource.
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5.
A non-redacted version of BOG-FOIA-10-251-000169 170 is publically available at
http://fcic.law.stanford.edu/resource. 6. A non-redacted version of BOG-FOIA-10-251-000262 263 is publically available at
http://fcic.law.stanford.edu/resource. 16. A non-redacted version of BOG-FOIA-10-267-000360 is publically available at
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http://fcic.law.stanford.edu/resource. Dated: August 31, 2011 Respectfully submitted, Paul J. Orfanedes (D.C. Bar No. 429716) /s/ Michael Bekesha Michael Bekesha (D.C. Bar No. 995749) JUDICIAL WATCH, INC. 425 Third Street, S.W., Suite 800 Washington, DC 20024 (202) 646-5172 Attorneys for Plaintiff
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Case 1:10-cv-00751-ABJ Document 19-1
[PROPOSED] ORDER Upon consideration of Plaintiff=s Cross-Motion for Summary Judgment, any opposition thereto, and the entire record herein, it is hereby ORDERED that: 1. Plaintiff=s Cross-Motion for Summary Judgment is granted.
SO ORDERED.
Dated:
________________________________ The Hon. Amy Berman Jackson, U.S.D.J.
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DECLARATION OF MICHAEL BEKESHA I, Michael Bekesha, declare as follows: 1. I am an attorney employed by Judicial Watch, Inc., counsel for the plaintiff, Vern
McKinley, in the above-captioned matter. I am over the age of eighteen and have personal knowledge of the matters set forth below. 2. Pursuant to the Fraud Enforcement and Recovery Act (Public Law 111-21), the
Financial Crisis Inquiry Commission (FCIC) delivered its report to the President, Congress and the American people on January 27, 2011. The report covered 22 specific topics concerning the collapse of major financial institutions that failed or would have failed if not for exceptional assistance from the government. Along with the report, it is my understanding that the Commission made available all records it reviewed and relied on while preparing the report. 3. Pursuant to statute, the operations of the FCIC concluded on February 13, 2011. It
is my understanding that on that date, all information available on the FCICs website was transferred to the Rock Center for Corporate Governance at Stanford University and the Robert Crown Law Library at Stanford Law School. Moreover, it is my understanding that the official
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archival FCIC website is located at http://fcic.law.stanford.edu. 4. Because the FCIC report covered the Board of Governors of the Federal Reserve
System (the Board)s authorization of the Federal Reserve Bank of New York (FRBNY) to lend up to $85 billion to the American International Group (AIG) under section 13(3) of the Federal Reserve Act, I searched the database located at http://fcic.law.stanford.edu/resource for records found in the Index of Documents Withheld in Response to FOIA Request 2010-251 of Vern McKinley (AIG), dated June 7, 2011 (AIG Vaughn Index). 5. In searching the database located at http://fcic.law.stanford.edu/resource, I found
three documents located in the AIG Vaughn Index. 6. Attached hereto as Exhibits 1-A, 1-B, and 1-C are the redacted versions of the
records produced to McKinley along with the non-redacted versions publically available at http://fcic.law.stanford.edu/resource. 7. Attached hereto as Exhibit 1-A are the two versions of BOG-FOIA-10-251-000096
97. The redacted version is a true and correct copy of what was produced to McKinley by the Board. The non-redacted version is a true and correct copy which I downloaded from http://fcic.law.stanford.edu/resource. 8. Attached hereto as Exhibit 1-B are the two versions of BOG-FOIA-10-251-000169
170. The redacted version is a true and correct copy of what was produced to McKinley by the Board. The non-redacted version is a true and correct copy which I downloaded from http://fcic.law.stanford.edu/resource. 9. Attached hereto as Exhibit 1-C are the two versions of BOG-FOIA-10-251-000262
263. The redacted version is a true and correct copy of what was produced to McKinley by the Board. The non-redacted version is a true and correct copy which I downloaded from
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http://fcic.law.stanford.edu/resource. 10. Because the FCIC report covered the Boards decision to take no action to bailout
Lehman Brothers, I searched the database located at http://fcic.law.stanford.edu/resource for records found in the Index of Documents Withheld in Response to FOIA Request 2010-267 of Vern McKinley (Lehman), dated June 1, 2011 (Lehman Vaughn Index). 11. In searching the database located at http://fcic.law.stanford.edu/resource, I found
14 documents located in the Lehman Vaughn Index. 12. Attached hereto as Exhibits 2-A through 2-N are the redacted versions of the
records produced to McKinley along with the non-redacted versions publically available at http://fcic.law.stanford.edu/resource. 13. Attached hereto as Exhibit 2-A are the two versions of BOG-FOIA-10-267-000010
20. The redacted version is a true and correct copy of what was produced to McKinley by the Board. The non-redacted version is a true and correct copy which I downloaded from http://fcic.law.stanford.edu/resource. 14. Attached hereto as Exhibit 2-B are the two versions of BOG-FOIA-10-267-000028
29. The redacted version is a true and correct copy of what was produced to McKinley by the Board. The non-redacted version is a true and correct copy which I downloaded from http://fcic.law.stanford.edu/resource. 15. Attached hereto as Exhibit 2-C are the two versions of BOG-FOIA-10-267-000031
33. The redacted version is a true and correct copy of what was produced to McKinley by the Board. The non-redacted version is a true and correct copy which I downloaded from http://fcic.law.stanford.edu/resource. 16. Attached hereto as Exhibit 2-D are the two versions of BOG-FOIA-10-267-000041
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45. The redacted version is a true and correct copy of what was produced to McKinley by the Board. The non-redacted version is a true and correct copy which I downloaded from http://fcic.law.stanford.edu/resource. 17. Attached hereto as Exhibit 2-E are the two versions of BOG-FOIA-10-267-000058
60. The redacted version is a true and correct copy of what was produced to McKinley by the Board. The non-redacted version is a true and correct copy which I downloaded from http://fcic.law.stanford.edu/resource. 18. Attached hereto as Exhibit 2-F are the two versions of BOG-FOIA-10-267-000092
93. The redacted version is a true and correct copy of what was produced to McKinley by the Board. The non-redacted version is a true and correct copy which I downloaded from http://fcic.law.stanford.edu/resource. 19. Attached hereto as Exhibit 2-G are the two versions of BOG-FOIA-10-267-000125
128. The redacted version is a true and correct copy of what was produced to McKinley by the Board. The non-redacted version is a true and correct copy which I downloaded from http://fcic.law.stanford.edu/resource. 20. Attached hereto as Exhibit 2-H are the two versions of BOG-FOIA-10-267-000131
135. The redacted version is a true and correct copy of what was produced to McKinley by the Board. The non-redacted version is a true and correct copy which I downloaded from http://fcic.law.stanford.edu/resource. 21. Attached hereto as Exhibit 2-I are the two versions of BOG-FOIA-10-267-000137
140. The redacted version is a true and correct copy of what was produced to McKinley by the Board. The non-redacted version is a true and correct copy which I downloaded from http://fcic.law.stanford.edu/resource.
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22.
Attached hereto as Exhibit 2-J are the two versions of BOG-FOIA-10-267-000360.
The redacted version is a true and correct copy of what was produced to McKinley by the Board. The non-redacted version is a true and correct copy which I downloaded from http://fcic.law.stanford.edu/resource. 23. Attached hereto as Exhibit 2-K are the two versions of BOG-FOIA-10-267-000415
420. The redacted version is a true and correct copy of what was produced to McKinley by the Board. The non-redacted version is a true and correct copy which I downloaded from http://fcic.law.stanford.edu/resource. 24. Attached hereto as Exhibit 2-L are the two versions of BOG-FOIA-10-267-000506
508. The redacted version is a true and correct copy of what was produced to McKinley by the Board. The non-redacted version is a true and correct copy which I downloaded from http://fcic.law.stanford.edu/resource. 25. Attached hereto as Exhibit 2-M are the two versions of
BOG-FOIA-10-267-000925. The redacted version is a true and correct copy of what was produced to McKinley by the Board. The non-redacted version is a true and correct copy which I downloaded from http://fcic.law.stanford.edu/resource. 26. Attached hereto as Exhibit 2-N are the two versions of
BOG-FOIA-10-267-001171. The redacted version is a true and correct copy of what was produced to McKinley by the Board. The non-redacted version is a true and correct copy which I downloaded from http://fcic.law.stanford.edu/resource.
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McKinley v. Board of Governors Plaintiff McKinley Cross-Motion For Summary Judgment (Lawsuit #3)

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McKinley v. Board of Governors Plaintiff McKinley Cross-Motion For Summary Judgment (Lawsuit #3)

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Case 1:10-cv-00751-ABJ Document 19

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Case No. 10:0751 (ABJ)

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Case No. 10:0751 (ABJ)

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Argument. A. Summary Judgment Standard.

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Case No. 10:0751 (ABJ)

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