Williams & Connolly LLP v. Office of the Comptroller of the Currency, No. 13-0396, 2014 WL 1689656 (D.D.C. Apr. 30, 2014) (Walton, J.)
Re: Request for defendant's third-party contractor independence requirements
Disposition: Granting defendant's cross-motion for summary judgment; denying plaintiff's cross-motion for summary judgment
- Exemption 8: The court holds that "[t]he Comptroller therefore properly invoked Exemption 8 as grounds for withholding the requested documents." First, the court finds that "the requested documents constitute 'communications between [the Comptroller's] attorneys and supervisory employees and the Banks, their proposed independent consultants, and proposed independent counsel as well as internal [Comptroller] and inter-agency discussion of the vetting of independent consultants and independent counsel,' . . . and therefore, the Comptroller's follow-up communications 'relate to' a bank examination." "As such, under the plain language of Exemption 8, and contrary to the plaintiff's position, the documents withheld by the Comptroller fall within the purview of Exemption 8—regardless of whether the documents were generated as part of a third-party driven independent foreclosure review—so long as they were prepared in furtherance of the Comptroller's 'responsib[ility] for the regulation or supervision of financial institutions,' reducing the pertinent question in this case to whether the Comptroller regulates or supervises financial institutions." Therefore, the court reasons that "because the Comptroller is explicitly charged with regulating financial institutions, based on the plain language of the statute, Exemption 8 applies to the requested documents." Second, the court holds that it "is persuaded by the defendant's position that withholding the requested documents furthers one of the exemption's underlying purposes—it encourages banks to be candid and transparent with the Comptroller regarding the independent third-party contractors each bank was required to hire pursuant to the Consent Order issued by the Comptroller to review the bank's foreclosure practices."
- Litigation Considerations, Vaughn Index / Declaration: The court holds that "plaintiff's request that the Court order the Comptroller to produce a Vaughn index is denied." The court notes that "[i]n lieu of a Vaughn index, the Comptroller submitted two sworn declarations that summarize the Agency's search efforts and explain both the nature of the withheld documents and the factual basis for withholding those documents under Exemption 8" and finds that this is sufficient. The court relates that "the Comptroller's Alternative Index provides a description of what the documents are, the number of pages, the claimed exemptions and a brief rationale for each withheld category of files."