Ball v. Bd. of Governors of Fed. Reserve Sys., No. 13-603, 2015 WL 1507766 (D.D.C. Mar. 31, 2015) (Chutkan, J.)

Ball v. Bd. of Governors of Fed. Reserve Sys., No. 13-603, 2015 WL 1507766 (D.D.C. Mar. 31, 2015) (Chutkan, J.)

Re: Request for two memorandums and two spreadsheets concerning loans to Bear Stearns/JPMorgan and American International Group

Disposition: Granting defendant's motion for summary judgment; denying plaintiff's motion for summary judgment

• Procedural Requirements, Searching for Responsive Records:  The court holds that defendant's search was adequate and that it was not required to search the files of the Federal Reserve Bank of New York ("FRBNY").  The court first finds that "[plaintiff] does not challenge the Board's search of its own records, and, based on the search procedures set forth in [defendant's] Declarations, the court confirms that the Board's search of its records was adequate."  The court then relates that "[plaintiff] instead asserts that the Board should have searched FRBNY files in addition to its own files, and its failure to do so renders the Board's search inadequate."  The court states that, per defendant's regulations, "for a FRB record to be a Board record, the FRB must have been working for or on behalf of the Board."  "[The] court finds that based on the plain language of the regulation (and in accordance with the Board's interpretation), mere authorization by the Board does not mean the FRBNY was acting on the Board's behalf."  "The court therefore agrees with the Board that for a FRB record to become a Board record, the FRB must have been performing a function that was more than just authorized by the Board–the FRB must be doing something more like acting under the Board's delegated authority."  Moreover, "[e]ven if the court were to find that some of the FRBNY's records could be considered Board records, the Board has shown that collateral spreadsheets like the ones sought by [plaintiff] are not the type of Board records that would be housed at FRBNY."  Additionally, the court finds that "even if the FRBNY may have some documents which could qualify as Board records, the Board has reasonably described the process by which it decided to not search FRBNY records, and the court finds the Board's rationale reasonable in light of the request."
   
• Exemption 5, Deliberative Process Privilege:  "[T]he court here finds that [two memorandums] were properly withheld pursuant to the deliberative process privilege under Exemption 5."  The court notes that "[plaintiff] does not challenge the Board's invocation of the deliberative process privilege per se –he does not argue that the documents are not predecisional or that they were not part of the agency's deliberative process."  "Rather, he alleges that the Board adopted the memorandums as its 'working law,' meaning the documents can no longer be withheld based on the deliberative process privilege." "The court is satisfied, based on the Vaughn index and the Board's declarations, that [the documents] '"reflect[ ] advisory opinions, recommendations, and deliberations comprising part of a process by which governmental decisions and policies are formulated, [or] the personal opinions of the writer prior to the agency's adoption of a policy."'"  "Similarly, [the documents] do not dictate or describe Board law or policy–they contain recommendations and opinions of Board staff given to the Board to assist in their decision-making."  Also, the court finds that "[t]he Board's generic explanation of its prior decision-making process says nothing about whether [the documents] have been adopted as the Board's working law."
   
• Exemption 8:  The court holds that defendant's properly invoked Exemption 8.  The court notes that "[plaintiff's] sole argument in opposition to withholding of the documents under Exemption 8 is that the collateral spreadsheets contain information provided to the Board from the FRBNY, and because the FRBs are not 'financial institutions,' the spreadsheets were not 'prepared ... for the use of an agency responsible for the regulation or supervision of financial institutions.'"  The court finds that, "[b]ank or not, FRBs are included in the broader definition of financial institution, which is any 'entity that manages money, credit, or capital.'"  The court explains that "[plaintiff] is correct that FRBs engage in other activities which are not the domain of traditional financial institutions, including managing the nation's monetary policy and examining member banks."  "It may also be true that the FRBs have a public purpose, at least in part."  "This does not mean, however, that the FRBs do not also function as financial institutions."  "The FRBs are hybrid entities, with some public and some private functions, but at least some of their functions are those of a financial institution."  Additionally, the court finds that "finding the FRBs to be financial institutions would further Exemption 8's purposes."  Finally, the court finds that "[t]he parties did not address whether Bear Stearns and AIG themselves are financial institutions, but it is reasonably likely that they are, meaning the Board could likely have withheld the documents under Exemption 8 even if the FRBNY was not a financial institution."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  "The Vaughn index reasonably describes the documents withheld and the basis for withholding them in full."  "The court is therefore satisfied that the Board has produced all reasonably segregable nonexempt information."