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Defendant FDIC's reply and opposition filed 9 May 2011
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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).
Case 1:10-cv-00420-EGS Document 24 Filed 05/09/11 Page 1 of 16
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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.
Case 1:10-cv-00420-EGS Document 24 Filed 05/09/11 Page 2 of 16
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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).
Case 1:10-cv-00420-EGS Document 24 Filed 05/09/11 Page 3 of 16
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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.
Case 1:10-cv-00420-EGS Document 24 Filed 05/09/11 Page 4 of 16
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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
Case 1:10-cv-00420-EGS Document 24 Filed 05/09/11 Page 7 of 16
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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).
Case 1:10-cv-00420-EGS Document 24 Filed 05/09/11 Page 8 of 16
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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
Case 1:10-cv-00420-EGS Document 24 Filed 05/09/11 Page 9 of 16
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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).
Case 1:10-cv-00420-EGS Document 24 Filed 05/09/11 Page 10 of 16
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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.”)
Case 1:10-cv-00420-EGS Document 24 Filed 05/09/11 Page 14 of 16
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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)
Case 1:10-cv-00420-EGS Document 24 Filed 05/09/11 Page 16 of 16
Recommended