May 8, 2006

Lewis W. Page, Jr.

Page Law Firm, LLC

1933 Building, Suite 100

1933 Richard Arrington, Jr. Blvd. South

Birmingham, AL 35209-1262

Re: FOIA Appeal dated March 27, 2006

Dear Mr. Page:

On January 23, 2006, you filed a Freedom of Information Act (FOIA)
request for documents dating from January 1, 2003 to the present,
related to the former B.F. Goodrich Employees Federal Credit Union (now
the Credit Union of Alabama Federal Credit Union). You requested
documents concerning the FCU's field of membership and any attempt by
the FCU to change its name. On March 24, 2006, Dianne Salva, NCUA's FOIA
Officer, sent you a response indicating there were 93 pages of
responsive documents. Redactions were made from 20 of the 93 pages
pursuant to exemptions 4, 6, and 8 of the FOIA, 5 U.S.C. 552(b)(4), (6),
& (8). You wrote to Ms. Salva on March 27^th^ setting forth several
questions about her response. You do not question the applicability of
the FOIA exemptions, rather you believe there are documents responsive
to your request that were not reviewed or provided. Hence you question
the search made for responsive documents. You also request a more
specific listing of withheld documents. You specifically note that your
letter is not a FOIA appeal. On April 10^th^, you spoke with Hattie Ulan
of this Office. You agreed that your letter should be treated as a FOIA
appeal and documented your intent in a letter to Ms. Ulan dated April
10, 2006. Your appeal is granted in part and denied in part. We have
identified eleven additional pages of responsive documents (letters and
e-mail). Nine of the pages are released in full and are enclosed. Three
internal e-mails (two pages) are withheld pursuant to exemption 5 of the
FOIA as described below. We have not provided a detailed listing of
withheld documents (commonly referred to as a "Vaughn index") and that
portion of your appeal is denied.

You also set forth questions related to the documents you requested.
Although some of your questions specifically concern the search for
documents responsive to your FOIA request, others are not technically
FOIA issues. We will attempt to address all of the issues you raise.
However, as noted in the last paragraph of this letter, your right of
appeal to U.S. District Court only applies to the specific FOIA issues.

1.  You state that the FOIA Officer's summary of your request is broad
    and that you attempted to be more specific in your original request
    for documents. Although Ms. Salva did not repeat the specific types
    of documents noted in your original FOIA request in her response to
    you, your original request was forwarded to NCUA staff who did the
    search for responsive documents.

2.  You note that your received "93 releasable pages" and question
    whether there were other non-releasable pages. You also state your
    belief that the law requires an agency to specify documents withheld
    and the basis for such withheld documents. Twenty of the 93 pages
    were redacted. Six of those pages were withheld in full. Of the six
    pages completely withheld, two pages contained financial information
    and were withheld pursuant to exemption 8 of the FOIA and the other
    four contained business and marketing information and were withheld
    pursuant to exemption 4 of the FOIA. The law does not require a
    detailed index of withheld documents (Vaughn index) at this point in
    the FOIA process. It is well-settled law that a requester is not
    entitled to a Vaughn index during the administrative process.
    [Schwarz v. United States Department of the Treasury]{.underline},
    131 F. Supp. 2d 142, 147, (D.D.C. 2000).

3.  You believe certain documents exist within our records that were not
    provided in our response to your original request. You request that
    we again search our files to identify any such responsive documents.
    We have identified several additional responsive documents, some are
    enclosed and others withheld, as described below.

First, you asked whether NCUA had any correspondence between it and the
Alabama credit union regulator. We have identified a letter dated April
8, 2005 from Glenn Latham, Alabama Credit Union Administrator, to Tim
Hornbrook, NCUA Region III Deputy Regional Director. It is enclosed.
Second, you asked if NCUA has any record of complaint concerning the
change in the name of BF Goodrich Employees Federal Credit Union. We
have identified a letter from Ben F. Hayley to Mr. Carruth at BF
Goodrich FCU, dated March 28, 2005. It is enclosed. We previously
supplied you with the March 31, 2005 response to this letter, written by
Barry V. Frederick, an attorney for the Alabama Credit Union FCU (former
BF Goodrich Employees FCU). We have also identified two letters from
Steve Swofford to Alonzo Swann, dated March 31, and April 25, 2005.
These are also enclosed. Third, you asked if NCUA's Region III Director
consulted any documents in making his decision to grant the name change
to BF Goodrich FCU. We have identified three responsive internal
e-mails. The e-mails are exempt from disclosure pursuant to exemption 5
of the FOIA, as described below.

Last, you asked for an explanation of the circumstances of a letter you
received in response to your FOIA request dated May 1, 2003 from NCUA to
Mr. William G. Roberts, Chairman of the Credit Union of Alabama Federal
Credit Union (formerly BF Goodrich Employees FCU). You note that BF
Goodrich Employees FCU did not obtain its name change until 2005. You
are correct that the name change did not take place until 2005. The
version of the May 1, 2003 letter provided in response to your FOIA
request was not the version that was originally sent out. The version
you received was a printout of an electronic copy where updates had been
made to reflect the FCU's new name and field of membership. This is done
electronically so that forthcoming letters contain current information.
It did not reflect the original letter that was mailed out. We have now
enclosed a paper copy of the letter that was mailed out on May 1, 2003.
You will note that handwritten initials and dates appear in the right
margin and there is information in the top margin indicating how the
letter was mailed. This information indicates it is a copy of the letter
that was mailed on May 1, 2003. We apologize for any confusion this
caused.

[Exemption 5]{.underline}

Internal e-mail is withheld pursuant to exemption 5. Exemption 5 of the
FOIA protects "inter-agency or intra-agency memorandums or letters which
would not be available by law to a party ... in litigation with the
agency." 5 U.S.C. §552(b)(5). Included within exemption 5 is information
subject to the deliberative process privilege. The purpose of the
deliberative process privilege is "to prevent injury to the quality of
agency decisions." [NLRB v. Sears, Roebuck & Co.]{.underline}, 421 U.S.
132, 151 (1975). Any one of the following three policy purposes have
been held to constitute a basis for the deliberative process privilege:
(1) to encourage open, frank discussions on matters of policy between
subordinates and superiors; (2) to protect against premature disclosure
of proposed policies before they are finally adopted; and (3) to protect
against public confusion that might result from disclosure of reasons
and rationales that were not in fact ultimately the grounds for an
agency's action. [Russell v. Department of the Air Force]{.underline},
682 F.2d 1045 (D.C. Cir. 1982). The first and third policies enumerated
in [Russell]{.underline} apply in this case; hence the internal e-mail
is withheld pursuant to exemption 5.

Pursuant to 5 U.S.C. 552(a)(4)(B) of the FOIA, you may seek judicial
review of the determination by filing suit against the NCUA. Such a suit
may be filed in the United States District Court in the district where
you reside, where your principle place of business is located, where the
documents are located (the Eastern District of Virginia) or the District
of Columbia. We note here that your appeal

rights specifically apply to the FOIA search, Vaughn index issue and
exemption 5

as applicable to the e-mails withheld. If you have concerns with the
other non-FOIA issues discussed in this letter, please contact NCUA's
Region III Office.

Sincerely,

/S/

> Robert M. Fenner

General Counsel

Enclosures

GC/HMU:bhs

06-0416

06-FOI-00041