McKinley v. FDIC, No. 15-1764, 2017 WL 3394502 (D.D.C. Aug. 7, 2017) (Jackson, J.)

McKinley v. FDIC, No. 15-1764, 2017 WL 3394502 (D.D.C. Aug. 7, 2017) (Jackson, J.)

Re:  Request for records concerning placement of Citibank into receivership between October 2008 and April 2009

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

• Exemption 4:  "In the absence of details from the FDIC regarding its acquisition of the allegedly exempt information from Citibank, [the] Court cannot identify and apply the appropriate test for privilege or confidentiality."  The court relates that "the FDIC has made no effort to explain whether Citibank voluntarily or involuntarily provided the information that the agency is withholding[.]"
   
• Exemption 5, Deliberative Process Privilege:  "[W]hile the . . . documents that the FDIC has withheld pursuant to Exemption 5 in the context of the instant case certainly might contain information that the deliberative process privilege protects, [the] Court cannot conclude that they do on the record before it."  The court finds that "the FDIC's submissions manifestly fail to provide necessary contextual information about the decision making processes to which the withheld documents contributed, and the role the withheld documents played in those processes."  "Also missing from the FDIC's Vaughn index is a description of what role the withheld documents played in the agency's deliberative processes, as well as a clear indication of the relevant 'chronology' necessary to demonstrate that documents were predecisional."  "Finally, the FDIC's Vaughn index and supporting declaration also fail to describe adequately the 'nature of the decisionmaking authority vested in the office or person issuing the disputed document(s), and the positions in the chain of command of the parties to the documents.'"
   
• Exemption 8:  "[The] Court cannot conclude on the record before it that the FDIC has properly withheld the records pursuant to Exemption 8."  "As an initial matter, the FDIC's submissions fail to furnish the most basic threshold information, which is whether each of the twelve documents consists of information that is directly contained in one of the three enumerated reports, or whether they include information that is simply related to any such report."  "Moreover, even assuming, arguendo, that the FDIC need not identify whether the withheld record is a report or merely a document that relates to some report, this Court has no doubt that the agency must, at the very least, specify whether it characterizes the relevant report as an examination report, an operating report, or a condition report."  The court finds that "[w]hile [defendant's] description accurately reflects the broad scope of information that potentially falls within the ambit of Exemption 8, it does nothing to link any of the categories of information that exemption covers to each of the . . . specific records that the agency has withheld."  "Put another way, however broad Exemption 8’s disjunctive list might sweep, it is not so broad as to permit the agency to refuse to identify which of the many grounds within Exemption 8 purportedly applies to each document that the agency seeks to withhold."