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Frank LLP v. CFPB, No. 19-01197, 2020 WL 4500999 (D.D.C. Aug. 5, 2020) (Mehta, J.)


Frank LLP v. CFPB, No. 19-01197, 2020 WL 4500999 (D.D.C. Aug. 5, 2020) (Mehta, J.)

Re:  Request for certain investigational transcripts, compiled by CFPB in advance of its civil enforcement action against the National Collegiate Master Loan Trust ("NCSLT") and its administrative enforcement action against Transworld Systems, Inc. ("Transworld"), a national debt-collection coordinator

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

  • Exemption 7(A):  The court holds that "CFPB . . . has met its burden for categorically invoking Exemption 7(A)."  First, the court holds that "CFPB therefore has identified two 'concrete prospective law enforcement proceeding[s]' to which the investigative transcripts relate."  The court relates that "[t]he NCSLT matter is in active litigation."  Additionally, on another related matter "the parties are currently debating when to re-open the case."  "Thus, contrary to Plaintiff's characterization, that case is neither 'closed' nor on the 'cusp of being resolved.'"  Second, the court holds that "CFPB in this case categorically withheld the investigative transcripts, claiming that the investigative transcripts are a type of witness statement."  "Nothing about the nature of the investigation transcripts or the circumstances of disclosure warrants deviating from established precedent recognizing such statements as protected under Exemption 7(A)."  "The withheld investigational transcripts are witness statements in the traditional sense."  "CFPB prepared them as part of an investigation and in anticipation of possible law enforcement actions, which CFPB ultimately filed."  "The Bureau explains that, among other consequences, releasing the transcripts would reveal 'the direction of the government so far' and 'the activity under continuing investigation during the litigation.'"  "It matters not that Plaintiff knows some of the information in the investigational interviews."  "Releasing the transcripts would still expose the scope and focus of the Bureau's investigation in greater detail and do so prematurely, and thus CFPB rightfully invoked Exemption 7(A)."
  • Exemptions 6 & 7(C):  First, the court holds that "CFPB therefore properly invoked Exemption 7(C) categorically, except as to the one publicly identified witness . . . ."  The court finds that "[t]he individual(s) who testified in front of CFPB are 'witnesses.'"  "They have an 'obvious,' strong privacy interest in the non-disclosure of their names and identifying information."  The court also finds that, "[a]lthough records that potentially show an agency 'pulled its punches' are no doubt of some public interest, . . . such an assertion does not rise to the level of 'compelling evidence' of 'illegal activity' . . . ."  Second, the court holds that "[b]ecause the Bureau publicly released the name of one witness, information pertaining to her must be considered under the traditional balancing test."  "As previously discussed, . . . disclosing her identifying information would implicate a substantial privacy interest."  "On the other side of the scale, Plaintiff does not explain how disclosure of the witness’s information would advance the claimed public interest."  "Accordingly, CFPB appropriately withheld portions of the requested documents under Exemption 7(C) . . . ."
  • Exemption 7(E):  The court holds that defendant "properly invoked Exemption 7(E)."  The court relates that "CFPB in this case redacted certain portions of the investigational transcripts that contain specific information about how the Bureau conducts official investigations, including the sequence and manner of questioning."  "Although it is well-known that CFPB engages in interviews when investigating debt-collection violations, the agency's strategy and specific questions are confidential, and therefore not public or well-known."  "Thus, the investigation transcripts contain protected 'techniques and procedures' for the purpose of Exemption 7(E)."  Responding to plaintiff's argument, the court holds that "[a]lthough general interviewing methods might be 'obvious' in some respects, . . . the specific interview methods used to investigate Consumer Financial Protection Act and Fair Debt Collection Practices Act violations are confidential."  Finally, regarding circumvention, the court holds that "[r]elease of this information would allow entities engaging in similar conduct to 'coach witnesses in these and similar cases on how to avoid providing incriminating information.'"  "Although revealing the transcripts may not provide a '"how to" manual for law-breakers,' a detailed understanding of the way the Bureau conducts investigational interviews in false-affidavit debt collection schemes 'could encourage decisions to violate the law or evade punishment.'"
  • Litigation Considerations, "Reasonably Segregable" Requirements:  The court holds that "CFPB has established . . . that the investigational transcripts all fit into the category of protected witness statements."  "Accordingly, although the Bureau did not address in its declaration whether any of the withheld information could be segregated, . . . the court independently concludes that there are no reasonably segregable portions of responsive records."
Court Decision Topic(s)
District Court opinions
Exemption 6
Exemption 7(A)
Exemption 7(C)
Exemption 7(E)
Litigation Considerations, “Reasonably Segregable” Requirements
Updated September 2, 2020