Inner City Press Freedom of Information Guide

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The federal Freedom of Information Act (FOIA) was made into law by Congress in 1966, declaring that every document in the possession of federal government agencies is presumptively available to the public. Many states' open records laws are similar to the operation of the federal FOIA. [But see ICP FOIA Updates of March 6 and December 1, 2003, below.]

[Note: ICP has decided to post updates on the development of FOIA at the top of this page -- ICP's more extensive FOIA guide and links are below. Click here for ICP's Human Rights Enforcement project's recent FOIA request to the Dep't of Commerce, re Gabon.]

In the United Kingdom on January 1, 2005, the Freedom of Information Act 2000 went into effect. For an overview and practice tips, see the U.K. Campaign for Freedom of Information's User's Guide (in PDF). ICP / Fair Finance Watch has filed a request with the U.K. Financial Services Authority, regarding HSBC, Royal Bank of Scotland and other matters. See also, “Delaware Records Act Ruled Unconstitutional,” by Rita K. Farrell, New York Times, May 16, 2005, Pg. C2; and on Marketplace Radio (here in Real Audio), August 9, 2005, by Aries Keck of WHYY Philadelphia and see below.

Update of July 9, 2007: On the fortieth anniversary of FOIA implementation, a bill to restore some vitality to the law has been subject to a secret block -- by Arizona's Senator Kyle, media watcher can now report. For shame...

Update of August 21, 2006: From the NY Times of August 17:

A federal appeals court ruled on Wednesday that it was unconstitutional for Delaware to deny public documents to nonresidents under a provision of the state’s Freedom of Information Act. The ruling by the United States Court of Appeals for the Third Circuit, in Philadelphia, affirmed an earlier decision by a Federal District Court in Wilmington.
In 2003, Matthew Lee, a consumer advocate and lawyer who lives in New York, sued the State of Delaware for denying him access to documents related to a nationwide settlement with the consumer lender, Household International, after the company was investigated for deceptive lending practices. "We sought the records to be able to show how widespread the problem of predatory lending was within Household," said Mr. Lee, who is also the publisher of Inner City Press, a nonprofit Bronx newsletter about the practices of banking and financial services companies. M. Jane Brady, then the Delaware attorney general, denied Mr. Lee access to records regarding her handling of the settlement. Ms. Brady cited a provision of the state’s Freedom of Information Act law limiting access to records "to any citizen of the state." Mr. Lee then sued... In the 17-page decision, Judge D. Brooks Smith, writing for the three-judge circuit panel, said, "Delaware’s public records law discriminates on its face between citizens and non-citizens. Although the state has a substantial interest in ‘defining its political community,’ the citizens-only provision” of the law bore no “substantial relationship to that interest,” Judge Smith wrote. Delaware’s current attorney general, Carl C. Danberg, said Wednesday that he would not appeal... While he said the state had been processing other freedom of information requests to comply with the earlier ruling, Mr. Danberg said that Mr. Lee would still not receive the Household documents because they were protected under a separate Delaware law by an "investigative file privilege." Mr. Lee was surprised by the news and called the decision "an outrage." He questioned why he could not receive the documents, particularly, he said, "because other states have given us reams of documents about their settlements on predatory lending with Household"

-- now owned by HSBC...

Update of July 10, 2006: Seven months ago, Inner City Press submitted to the Federal Reserve Board a Freedom of Information Act request, for records "regarding the Federal Reserve System having compiled a list of lenders with disparate 2004 Home Mortgage Disclosure Act data and transmitting such lists beyond the FRS." Under the Freedom of Information Act, the Fed is supposed to provide records within twenty business day. But with a single letter six months ago, the Fed unilaterally extended its time to respond. Now, as it prepares its required annual FOIA report to the Department of Justice, the Fed begrudgingly sends a second letter, which states that "approximately five linear feet of documents will be withheld from you... no reasonably segregable nonexempt information was found." An appeal will follow...

Update of May 15, 2006: On May 11, 2006 in the Third Circuit Court of Appeals in Philadelphia, argument were heard in Inner City Press' ongoing case seeking documents from the Delaware Attorney General about the predatory lending settlement of Household International, now HSBC. Delaware refused to provide any records, saying the Inner City Press request came from out of state. Subsequently the Federal district court in Wilmington declared Delaware's "citizens-only" Freedom of Information Act to be unconstitutional; Delaware appealed, and three judges heard it on May 11.

As recounted in the next day's New York Times, "At the hearing Thursday, a state deputy attorney general, W. Michael Tupman, argued that Delaware had the right to set limits to its records to 'help define the political community and strengthen the bond between citizens and their government.' Judge D. Brooks Smith asked, 'How does restricting a noncitizen strengthen that bond?'" To that, there was no answer. Delaware pressed a narrow definition of journalism, despite (as recounted by Dow Jones), acknowledging that ICP and its requester's "'achievements are truly remarkable on a national level,' Tupman told the court [adding] Delaware fears being deluged with requests for public records if the state's FOIA law is held unconstitutional.'" Too much open government is hardly our problem...

See also, "Court to Rule on Delaware Public Records Law," by Rita K. Farrell, New York Times, May 12, 2006, Pg. C10 (and International Herald Tribune)

"FOIA filing only puzzles U.S. judges - State law refuses queries from non-Delawareans," by Sean O'Sullivan, Wilmington News-Journal, May 12, 2006

"Delaware seeks to shield public records from nonresidents," by Maryclaire Dale, Associated Press, May 11, 2006

"Delaware Defends 'Citizens Only' Public Records Law," by Peg Brickley, Dow Jones Newswires, May 11, 2006

Update of May 17, 2005: Inner City Press’ 2003 lawsuit against the Delaware Attorney General’s withholding of all information about HSBC/Household’s predatory lending settlement was decided on May 13 -- and ICP won. Delaware’s citizens-only Freedom of Information Act was struck down as unconstitutional in federal court. To the Wilmington News Journal, Del. AG Jane Brady said she plans to “consult with attorneys general in states with similar laws, particularly Pennsylvania and New Jersey, while her office considers an appeal.” The New York Times of May 16 reported that “Judge Joseph J. Farnan Jr. of the United States District Court in Delaware... wrote that consumer advocates and journalists like [those at ICP are] 'particularly suited to advancing the goals of transparency and accountability, whether they are Delaware citizens or not.’” Yep... We have also heard from the Texas Attorney General’s Office that HSBC’s litigation against the release of Household-related documents continues pending in that state, two years after the Texas AG ruled that ICP should receive the information. Abusive. And what of the other states that are withholding information? All in due time. Watch this space. For or with more information, contact us.

Update of March 14, 2005:

Update of March 14, 2005: And now it can be told: earlier this month, Inner City Press filed a final reply brief in ICP’s Freedom of Information Act case in the Southern District of New York against the Federal Reserve Board’s withholding of the list of payday lenders, pawnshops and other subprime lenders assisted by Wachovia. Of late, the FRB has taken to withholding more and more information, then citing these withholdings to the court to say, “You see? There is precedent for this withholding.” Some of the points made:

Plaintiff Inner City Press/Community on the Move (ICP) submits this reply brief in further support of its Motion for Summary Judgment and in opposition to Defendant's Motion for Summary Judgment. In this FOIA action, Plaintiff ICP seeks the release of information regarding the subprime lending activities of Wachovia and SouthTrust banks, information that was submitted to Defendant Board of Governors of the Federal Reserve System as part of the banks' merger application... In its opposition brief, the Board attempts to backpedal from its earlier statement that it can require applicants to submit information regarding their relationships with subprime lenders by claiming that the CRA "sets no standards" regarding what the Board must take into consideration in evaluating a merger application. See Def.'s Opp. Mem. at 14. Assuming the accuracy of the Board's characterization of the CRA - as insupportable as it may be - then the Board would have had even more authority to require Wachovia to submit the information contained in Exhibit 3. "[T]he Board is the agency responsible for federal regulation of the national banking system, and its interpretation of pertinent federal statutes is entitled to substantial deference." Lee v. Bd. of Governors of the Fed. Reserve Sys., 118 F.3d 905, 914 (2d Cir. 1997). Thus if the Board directs a bank to submit information regarding its subprime lending activities as part of the merger approval process, the applicant bank has little choice but to comply - as Wachovia did in this case. [FN The Board states that it informed Wachovia (via a telephone call between unidentified individuals) that Wachovia's merger application would be "expedited" if the bank provided the information contained in Exhibit 3, and that the Board had "taken similar information into account in past applications." Def.'s Opp. Mem. at 13. The coercive effect of that telephone call upon Wachovia cannot be discounted - indeed, Wachovia promptly produced the requested information - dispelling any notion that the Board did not exercise its authority to compel production of Exhibit 3 (assuming that such an exercise of authority is relevant).] Exhibit 3 must therefore be considered "mandatory" in nature...

In its opposition brief, the Board argues for the first time that the competitive harm analysis must be limited to a "specific product market," without regard to Wachovia's other business activities. Def.'s Opp. Mem. at 3-5. The Board, however, does not cite any case to support this proposition - because it cannot. To the contrary, an agency cannot self-servingly define what the relevant market is for Exemption 4 purposes; otherwise, an agency could easily evade any FOIA request simply by defining the "relevant market" small enough, rendering FOIA's promise of broad disclosure wholly illusory...

In support of its claim that Wachovia will suffer competitive harm, the Board has submitted declarations from a Wachovia Senior Vice President and a senior Board attorney asserting that the subprime lenders with whom Wachovia has banking relationships have a privacy interest in the information contained in Exhibit 3. Def.'s Opp. Mem. at 5; Rizer Decl. 1-2,7-8; Baer Decl. 10. Exemption 4, however, has nothing to do with third-party privacy interests. See Nat'l Parks, 547 F.2d at 686 ("Since exemption six may be available to protect any privacy interests of the concession owners in this case, we see no reason to read a privacy concern into exemption four."). Rather, Exemption 4 is concerned with "competitive harm," i.e., the "affirmative use of proprietary information by competitors," and "should not be taken to mean" harms such as "customer [] disgruntlement." Public Citizen, 704 F.2d at 1291 n.30 (emphasis added). The assertion of subprime lenders' privacy interests belies Wachovia's true reason for seeking confidential treatment of Exhibit 3 - potential embarrassment - which is not a cognizable harm under the competitive harm prong analysis. See, e.g., Gen. Elec. Co. v. NRC, 750 F.2d 1394, 1402 (7th Cir. 1984). [The privacy protections of Exemption 6 are applicable only to individuals, not corporations. Sims v. CIA, 642 F.2d 562, 573 n.47 (D.C. Cir. 1980)]....

According to Wachovia, Exhibit 3 contains information on "several relationships [Wachovia] ha[s] with entities that make and/or purchase subprime residential mortgage loans" and on whether Wachovia "will act as a market maker or underwriter with respect to securities issued by some of the clients." Rizer Decl. 5. Thus, as the Board concedes, some of the information contained in Exhibit 3 must therefore be made publicly available through SEC filings. See Def.'s Opp. Mem. at 8 (acknowledging that "some references to Wachovia's role as an underwriter might technically be public"). ICP has thus met its burden of producing evidence of the information's public availability, and the Board has failed to offer any contrary evidence to meet its burden of persuasion.... ICP, once in possession of this information, would be able to research the activities of Wachovia's partners to determine whether Wachovia has enabled and profited from predatory lenders and thereby failed to live up to its obligations under the CRA... For the foregoing reasons, this Court should grant Plaintiff ICP's motion for summary judgment, and deny Defendant Board's motion for summary judgment.

The results will be reported here.

Update of October 25, 2004: Earlier this month, Federal Reserve Governor Bies denied Inner City Press' Freedom of Information Act appeal for a list of the payday lenders and pawnshops funded by merger partners Wachovia and SouthTrust. On October 21, Inner City Press filed a FOIA lawsuit in the U.S. District Court for the Southern District of New York, challenging the Fed's systematic withholding of predatory lending-related information. The case has been filed; we will update its progress on this site.

Update of August 30, 2004: The U.S. Federal Reserve has responded, four years late, to a Freedom of Information Act request ICP submitted in 1999. The Fed's August 20, 2004, partial denial states "by letter dated November 1, 1999, your request for expedited treatment was denied." That's an understatement. Provided are Fed communications with and about then-chairman of the Senate Banking Committee Phil Gramm. There's letter from Alan Greenspan to Gramm, agreeing with Gramm's "staff's key point that estimate of CRA paperwork burden do not capture all CRA compliance costs and address only a subset of the CRA compliance burden." There's an email from staffer Beverly Smith referring to a "Gramm box" that the Fed set up, to quickly forward all information about CRA protests, virtually in real time. There are lists of banks with less than satisfactory Community Reinvestment Act ratings, virtually all of them small...

Meanwhile, HSBC continues to abuse the (Washington) state FOIA process, has submitted yet another appeal of its most recent loss in attempting to keep secret information about Household International's practices, regarding which it has settlement charges of predatory lending. On August 26, HSBC filed a "Motion to Modify Commissioner's Ruling Denying Emergency Stay." There's really no new arguments, beyond the one's already deemed meritless by the court. But HSBC's goal is to increase the costs of anyone seeking to learn about Household's practices. Click here for more. For or with more information, contact us.

Update of December 1, 2003: On November 24, Inner City Press filed a lawsuit against Delaware Governor Minner, and the state's Attorney General, for enforcing an unconstitutional provision of Delaware's Freedom of Information Act, limiting the right to documents to residents of the state. Click here for the Wilmington News-Journal's article (also onsite here). As reported in the Wilmington News-Journal of Dec. 23, ICP "requested documents relating to a multistate settlement with lender Household International after an investigation into consumer lending abuses." ICP " sued Brady and Minner in November, claiming Delaware's open-records law is unconstitutional because it gives only Delawareans access to the state's public records." ICP "claims the residency requirement violates the privileges and immunity clause of the Constitution, which says no resident of one state shall be denied equal opportunity under another state's laws. Delaware is one of only seven states whose public-record laws explicitly include a residency requirement." ICP "twice was denied access to records after making requests under the law this year." ICP " said Monday he would continue pressing the constitutionality issue. "We're very much committed to seeing the case through and getting the law changed.'" Yep...

Update of March 6, 2003: In the course of campaigning against the proposal by London-based HSBC Holdings plc to acquire the notorious U.S.-based predatory lender Household International, Inc., Inner City Press has had occasion to request presumptively public records from numerous state attorney general's offices, and state regulatory agencies. It has been a crash-course in the differences between various states' written and de facto Freedom of Information schemes (on which we hope to report soon in more detail -- for now, we've found the Delaware Insurance Department to be among the least responsive under that state's FOIA, click here for more on insurance and FOIA; we've found Delaware agencies generally among the least responsive).

But the roadblock we've run into is a provision in Household's Dec. 16, 2002, predatory lending settlements with the states, which requires the states to give Household notice and an opportunity to object to any request for records concerning the Settlement -- whether or not the records were submitted by Household. We're calling this an attempted privatization of FOIA, and we're opposing it in a number of states. There will be a March 19, 2003, hearing before the Utah State Records Committee; timely appeals to non-Attorney General offices have been submitted in Connecticut and, to the degree possible under N.Y. law, in New York (to the Committee on Open Government). Some states have attempted to argue that their investigation of Household is still ongoing, despite the finalized Settlement: apparently they claim that until the Monitor is chosen, and the $484 million in restitution by Household is paid out, they can withhold all documents. This is far from a "Best Practice" (which is another documents that HSBC and Household keep referring to, without providing). And the beat goes on...

[Here are two later-won FOIA rulings regarding Household /HSBC and the attorneys general:

Texas -- http://www.oag.state.tx.us/opinions/orl50abbott/orl2003/or032162.htm

Indiana -- www.in.gov/pac/advisory/2003/2003fc17.html

For or with more information, contact us.

[Sample earlier ICP FOIA Reports]

Update of October 22, 2001: U.S. Attorney General John Ashcroft on October 12 issued a memorandum encouraging federal agencies to withhold more documents in response to FOIA requests. A 1993 DOJ memorandum set forth the standard for denying requests: "foreseeable harm" flowing from release of the information. The new standard is only that the agency have a "sound legal basis" for withholding information. Foreseeable harm does not need to be shown. The Ashcroft memo, as clarified by the DOJ's FOIA Post, does not purport to overrule then-President Clinton's 1993 FOIA directive. How this will play out remains to be seen... For what it's worth, Inner City Press on September 24 submitted a FOIA request to the Federal Reserve Board for documents concerning the Fed's anti-money laundering initiatives; the Fed denied ICP's request for expedited processing, and as of October 19, had not provided any responsive documents...

More generally at the Federal Reserve Board, the Internet as a mode of disseminating information still seems to be a mystery. How else to explain FRB Vice Chairman Alice Rivlin’s April 22, 1999 FOIA appeal denial, refusing expedited processing of FOIA request because “there is a substantial question... about whether making information available on the Internet constitutes dissemination of such information within the meaning of the standard” of the Electronic FOIA Amendments of 1996?

“Internet publication is not dissemination” -- it is just this sort of anachronistic position that the E-FOIA Amendments were enacted to counteract. In 1996, federal agencies were still arguing that electronic records were not “records within the meaning of the standard” of FOIA. One definition (“records”) was explicitly modernized in the E-FOIA amendments; the Fed, however, contests the modernization of any other definition. Makes you wonder how they set interest rates... (FOIA requests are in for current Federal Open Markets Committee transcripts, so stay tuned).

By the way, the volume of information disseminated over the Internet currently doubles every 100 days; and currently, 20% of U.S. adults get news over the Internet. While one assumes that the FRB Governors are in this 20%, that remains to be confirmed -- by a FOIA request, perhaps...

Also at the Fed: while the Fed’s recent filing with the Department of Justice claims that it upheld each and every FOIA denial on appeal in 1998, even Fed FOIA Appeals Officer Rivlin has had to overturn a denial in early 1999. In yet another FOIA appeal ruling on April 22, 1999, FRB Governor Rivlin wrote:

This is in response to your letter dated and received by the Board on March 24, 1999, in which you appeal the decision of the Secretary of the Board, under the Freedom of Information Act... to deny in part your request dated February 22, 1999, for information related to the Board’s communications since January 1, 1998, with the Senate Banking Committee regarding the Community Reinvestment Act...

[ICP] challenged the Board’s redaction of the nonresponsive portions of two responsive, nonexempt documents. In connection with your appeal, Board staff conducted a de novo review of the information withheld as not responsive to your request, and determined that withholding the material in question is warranted under exemption 5 with respect to one document. An unredacted version, however, of the other responsive document -- a February 9 e-mail from Robert deV. Frierson -- will be provided to you.

While this makes clear that the FRB’s previous withholding of information was unwarranted, it will be interesting to see whether the Fed’s next FOIA report to DOJ discloses this reversal on appeal. If the past is any guide, the Fed will deem the ruling an upholding (due to unrelated issues), and will report again to DOJ a 1.000 “batting average” for 1999 (we kid you not - the Fed claims in 1998 not to have even "partially reversed" any FOIA denials). And the DOJ will accept it, saying it leaves up to the agencies how to prepare their reports. Even inaccurate and misleading is OK with the DOJ, it seems. More on this topic next time. For now, here’s a link to the DOJ’s collection of federal agencies’ 1998 FOIA reports.

* * * * *

[And now: ICP's FOIA Guide]

Both for its community advocacy (combating redlining by banks and insurance companies, and consumer and civil rights issues, in telecommunications and otherwise) and for its investigate reporting, Inner City Press/Community on the Move (ICP) often makes FOI requests, to federal and state agencies. Where agencies seek to improperly withholding information, ICP, now through the Inner City Public Interest Law Center (ICPILC), often takes the issue to court. ICP has won a number of FOIA-related lawsuits, including Lee v. FDIC and OCC, 923, F.Supp. 451 (S.D.N.Y., 1996) (federal), and ICP v. NYC Dep't of Housing Preservation and Dev't, 1993 N.Y. Misc. LEXIS 429 (Sup. Ct., N.Y. Cty., 1993).

A number of general FOIA how-to guides already exist on the Internet; links to some of these guides at listed at the bottom of this page. Inner City’s FOIA guide, therefore, focuses particularly on the issues (and evasions) raised by the federal bank regulatory agencies, especially the Federal Reserve Board, and by state agencies, particularly state insurance regulators seeking to keep secret the information they hold concerning the fairness of insurance companies’ underwriting practices. Questions that arise in these areas call be directed to the Inner City Public Interest Law Center, via email (to FOIA [at] innercitypress.org) or by telephoning 718- 716-3540 (or faxing agency denial letters to 718-716-3161).

Community and citizens groups, including ICP, most often submit FOIA requests to the federal bank regulators in connection with bank merger applications on which they seek to raise Community Reinvestment Act (CRA) and other issues. Bank mergers cannot go forward without regulatory approval, the banks’ merger applications are public, and subject to public comment.

The banks, however, often request confidential treatment (that is, exemption from the FOIA -- see the link to the law itself, above) for the most material portions of their applications. For example, banks often seek confidential treatment for the lists of the branches they could close if allowed to merge, what branches they propose to sell off in order to gain antitrust approval, and even, sometimes, for the CRA plans.

While most of the agencies state that they review the propriety of the requests for confidential treatment even before any member of the public asks for a copy of the application, ICP has found this to often not be the case. Usually, after a group has requested a copy of the application, a partial copy of provided, along with a list of withheld exhibits. The group is then forced to submit a FOIA request (or, if the initial request for the application was made under FOIA, an appeal), seeking the withheld portions of the application.

Agencies currently claim to have twenty (20) working days to rule on such requests / appeals. The problem is, the comment period on the application usually expires before this time. Some agencies recognize this problem, and rule expeditiously on (even if they deny) the request / appeal. Other agencies, like the Federal Reserve Board (FRB), allow the comment period to close before deciding whether to provide information the group had sought to comment on.

The FRB, which doubles as a bank and merger regulator, and as the United States’ central bank, has become, among the federal financial agencies, the most inventive violator of FOIA. The FRB often engages in discussions with applicant banks before they even submit their merger applications -- and then refuses to provide records about these meetings.

For example, in 1998, it was widely reported that representatives of Citicorp and the Travelers Group met with FRB officials, including FRB Chairman Greenspan, prior to announcing their merger. ICP sought records of these communications, through a FOIA request and appeal. Many records with withheld, so ICP filed suit in the U.S. District Court for the Southern District of New York. Only at that stage did the FRB disclose that its Associate General Counsel had taken notes in these meetings. The FRB stated that it would not provide (and had not, in response to ICP’s FOIA request, disclosed) these documents, because the FRB claimed they were not “agency records” subject to FOIA. Essentially, the FRB claims that its Associate General Counsel’s notes of communications about a merger, with the largest U.S. bank, are no different than this lawyer’s shopping list, or a note to his wife.

In 1999, the FRB repeated this process in connection with Bankers Trust’s and Deutsche Bank’s proposed merger. The FRB met with these companies in late November 1998, just before they finalized their merger agreement. In response to ICP’s December 1, 1998, FOIA request, the FRB in mid-January 1999 provided ICP with only 23 pages, consisting of internal FRB e-mails with all but the “To / From” header whited out. One of the e-mails, dated November 23, 1998, recites that various FRBNY officials met with Deutsche Bank’s U.S. counsel Fritz Link. The e-mail says “What follows are comments made by Fritz that I thought you might be interested in”-- followed by three entirely blank pages.

To withhold information, agencies must cite specific FOIA exemptions, and must make available all segregable information. It is impossible to believe that every single thing Deutsche Bank’s counsel said qualifies for exemption as confidential business information. Nor can the mass redaction be justified under the “intra-agency” or deliberative exemption to FOIA, since, at least formally, Deutsche Bank’s counsel doesn’t work for the Fed, nor the Fed for Deutsche Bank.

On January 14, ICP submitted a ten page letter to Attorney General Reno, asking for Justice Department (DOJ) inquiry and action on the Fed’s implementation of FOIA. This request for action focused on the Fed’s BT-Deutsche redactions, but, to put them in context, raised to DOJ’s the Fed’s similar withholding in connection with the Citigroup merger, and the Fed’s withholding off the entirety of Norwest’s antitrust divestiture proposal until Norwest’s merger with Wells Fargo had been approved, with only minimal divestiture. ICP's request to DOJ was reported on the Reuters newswire of January 15, 1999.

The Department of Justice sets FOIA policy for all federal agencies. The Federal Reserve is one of the few agencies that does not have to rely on DOJ lawyers to defend their FOIA redactions in court, if the FOIA requester sues. This does not mean that DOJ’s 1993 FOIA policy, that agencies should err on the side of disclosure, was not meant to apply to the Fed. But if information like this can be withheld until after the Fed has already ruled on, and approved, mergers, the Fed will be getting at least half of what it wants.

In connection with ICP’s Deutsche Bank - Bankers Trust campaign, Fed Governor Rivlin sent ICP a letter on February 12, 1999, stating along other things that the Fed believes that FOIA “does not require agencies to search for or disclose the existence of information that is not ‘agency records’ within the meaning of the Act. Accordingly, your request in this regard is denied.” Emphasis added.

DOJ staff have indicated that the Attorney General’s Office has issued guidance that agencies, if they are deeming otherwise responsive documents to be non-agency records, must at least disclose this in a FOIA denial letter. Otherwise, how would the requester even know to appeal, or even be able to appeal (since there would be no “denial”)? See, e.g., DOJ FOIA Update Vol. IV, No. 4, Pg. 4: "agencies should always identify such 'personal records' in response to FOIA requests so that requesters are aware that such determinations have been made." Emphasis added.

But, to the Fed, the proper functioning of open government laws seem just a technicality, or an unwelcome intrusion. If an issue is not important to the Fed, or to any of the banks it serves, they are more than willing to provide the information. But, on issues like the Fed’s communications about LTCM, or with Deutsche Bank, or with Citigroup, the Fed has made clear that it will ignore the timelines of FOIA, will ignore DOJ’s or anyone else’s guidance, and will openly and not so open try to change the laws it doesn’t like (while disregarding or refusing to enforce them in the interim).

The other regulators hardly comply with FOIA, either. The FDIC routinely delays months before responding to FOIA requests. In 1996, the Office of the Comptroller of the Currency (OCC) only released information related to its approval of an application by Chase Manhattan bank after a federal judge dismissed each and every one of the OCC’s FOIA exemption claims. See, Lee v. FDIC and OCC, 923, F.Supp. 451 (S.D.N.Y., 1996)

The Office of Thrift Supervision (OTS) recently sought to withhold all of its memoranda recommending approval of a thrift charter for Shelter Mutual Insurance, a company a long record of excluding communities of color from its insurance underwriting, documented (by ICP and by the Missouri Department of Insurance). The OTS cited the “pre-decisional” exemption of FOIA -- but these memoranda were the basis of, and were incorporated by reference into, the OTS’ December 15, 1998, approval.

ICPILC has begun a more formal Freedom of Information project, focusing on federal and state regulatory agencies, particularly on issues of bank mergers and insurance redlining. With questions (or to add your experiences to our growing data base), contact the Inner City Public Interest Law Center, via email (to FOIA [at] innercitypress.org) or by telephoning 718- 716-3540 (or faxing agency denial letters to 718-716-3161).

(Some) Recent FOIA News:

May 17, 1999 -- The chief medical examiner of Arizona’s Pima County has rejected a FOIA / state open records law request for the autopsy photos of attempted immigrants who have died in the desert, from dehydration or in some cases, shootings by U.S. border patrols. For example, Antonio Martinez, 26, was recently shot by the Border Patrol near San Luis, Arizona. The Patrolman, with only 78 days on the job, claims Martinez threatened him with a rock, and so he shot him in the back with a .40-caliber hollow-point round. Martinez was 4-foot-11 and weighed 92 pounds. The coroner’s report states that his blood-alcohol content at the time of his death was .192. Pima County’s chief medical examiner, Bruce Parks, has refused to release the photos of Martinez’ autopsy for publication, allegedly based on the privacy rights of Martinez’ (uncontacted) next-of-kin. Arizona law provides that autopsy photographs are public record. The medical examiner and Pima County Attorney General’s Office are making a distinction between allowing viewing of the photos by one person at a time at their office, and publication of the photos. “The county attorney’s interest here is secrecy, not privacy. They’ve clearly gotten comfortable with the concept of the border as a war zone where people die in a grisly fashion,” says Scott Stanley of the publication, Tucson Poet. Developing...

April 28, 1999

At both the state and federal level, the Freedom of Information laws are being chipped away. The New York Court of Appeals most recent FOIL decision holds that the names of police officers who pled guilty to throwing eggs at passing cars after a bachelor party can be withheld, under a FOIL amendment designed “to keep defense attorneys from poking through personnel files in order to impeach witnesses at trial.” Palm Beach Post, April 14, 1999. The full decision, In the Matter of Daily Gazette Company, et al., Respondents, v. City of Schenectady, et al., Appellants, was published in the New York Law Journal of April 7, 1999, at 27. Writing for the Court, Judge Howard Levine said the case “demonstrates the risk of its use to embarrass or humiliate the officers involved.” And so -- an “embarrassment or humiliation” exemption to the freedom of information laws.

At the federal level, the Environmental Protection Agency has decided that while data that is public under the 1986 Emergency Planning and Community Right-to-Know Act must be made available under FOIA, the EPA will not post it on its web site, so that terrorists cannot use it as “an easy targeting tool.” (This according to the EPA’s Timothy Field, in Senate testimony last month). The position of the EPA (and of Rep. Tom Bliley, R-VA) appears to be that while the data must be available to the public under FOIA, it should not be EASILY available. New, contorted FOIA interpretations proliferate by the day -- waiting to be litigated.

(Some) FOIA Internet Resources:

FOIA Resources Links c/o Prof. Fought, Syracuase University

U.S. Justice Department FOIA Guide

House of Representatives' FOIA Guide

Federal Reserve Board FOIA Page

State FOI Laws c/o Reporters Committee for Freedom of the Press

FOIA Resources c/o University of Missouri

NYS Committee on Open Government (issues advisory opinions)

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