Ctr. for Popular Democracy v. Bd. of Governors of the Fed. Reserve Sys., No. 16-5829, 2019 WL 3207829 (E.D.N.Y July 16, 2019) (Garaufis, J.)

Ctr. for Popular Democracy v. Bd. of Governors of the Fed. Reserve Sys., No. 16-5829, 2019 WL 3207829 (E.D.N.Y July 16, 2019) (Garaufis, J.)

Re:  Request for records concerning reappointment of presidents, nomination and election of Class A and Class B Directors, appointment of Class C Directors, and promoting diversity among the Federal Reserve's leadership

Disposition:  Granting in part and denying in part defendant's motion for summary judgment; granting in part and denying in part plaintiff's motion for summary judgment

• Litigation Considerations, Adequacy of Search:  "[T]he court finds that Defendant's search was inadequate . . . ."  "First, the FOIA Request sought 'all records' concerning the reappointment of Reserve Bank presidents, and not solely 'communications' between members of the Board of Governors and the Reserve Bank boards."  "Second, the Board of Governors' statutory mandate and documents already produced in response to the FOIA Request indicate that all members of the Board of Governors are involved in the selection and appointment or reappointment of Reserve Bank presidents."  "Although the BAC may be the primary entity handling communications between the Board of Governors and the Reserve Banks about presidential appointments and reappointments, the Federal Reserve Act explicitly tasks the entire Board of Governors – not the BAC – with approving Reserve Bank presidents."  "Accordingly, the court finds that Defendant's failure to search the emails and records of all members of the Board of Governors renders its search inadequate."
  
  Additionally, "[t]he court therefore finds that the search terms used by Defendant were inadequately designed to return all responsive records, and that Defendant has not shown that expanding the search would be unreasonably burdensome."  "Defendant must expand the search terms used to search emails and other records to include obvious alternative search terms, including keywords and the names or e-mail addresses of all relevant individuals, or provide sufficient explanations as to why particular proposed searches would constitute an unreasonable burden."  "By providing only speculation as to the potential burden of using additional and broader search terms, Defendant has not met its burden of showing that the use of additional and obvious search terms would be unreasonable.Also, the court rejects defendant's contention that "it does not need to search the Reserve Banks for responsive records because 'annual assessment of Reserve Bank presidents' performance,' which Plaintiff sought under Part II(a) and (b) of the FOIA Request, 'would necessarily be created in connection with the Reserve Banks' independent statutory grant of authority' to appoint their presidents, and thus would not qualify as Board records[]" because "records at Reserve Banks need not relate to an agency's delegated authority – as opposed to an independent grant of authority – in order to constitute 'agency records' for FOIA purposes."  "First, such records would constitute 'information coming into the possession and under the control of . . . any Federal Reserve Bank . . . in the performance of functions for . . . the Board[]'" and "would constitute information maintained by Reserve Banks in the performance of functions for the Board of Governors and are thus subject to the FOIA Request."  "Second, such records would be subject to FOIA under 12 C.F.R. § 261.2(i)(1)(ii) because they 'are maintained for administrative reasons in the regular course of business in official files in . . . any Federal Reserve Bank in connection with the transaction of any official business.'"
  
  Additionally, regarding a specific set of records that defendant contends there is no need to search, the court finds that "the fact that this category of documents might include non-responsive information does not lessen Defendant's obligation to search a location that appears to contain information that would be responsive to the FOIA Request."
  
  Finally, the court finds that several of plaintiff's contentions "constitute[] a clear and certain lead" that require[s] additional searches.  "The court finds, however, that materials indicating that such meetings occur do not constitute clear and certain leads that documentation of these meetings exists."  "Plaintiff's mere speculation that these discussions were documented is insufficient to create a clear and certain lead that Defendant is obligated to follow."

• Exemptions 5 & 6:  The court finds that "Defendant's uncontested motion for summary judgment in this respect is . . . granted."