July 20, 2006

Steven R. Bisker

Attorney at Law

2800 Eisenhower Avenue, Suite 100

Alexandria, VA 22314

Re: FOIA Appeal dated June 20, 2006

Dear Mr. Bisker:

On May 12, 2006, you made a Freedom of Information Act (FOIA) request
for a copy of all correspondence between DFCU Financial Federal Credit
Union (DFCU) and/or its legal counsel and the National Credit Union
Administration concerning DFCU's special meeting of members. There were
21 pages of documents responsive to your request. Staff attorney Linda
Dent responded to your request on June 15, 2006. All 21 pages of
responsive documents were withheld pursuant to exemption 8 of the FOIA,
5 U.S.C. §552(b)(8). We received your June 20, 2006 FOIA appeal on June
21^st^. Your appeal is denied and the responsive documents continue to
be withheld pursuant to exemption 8.

# Exemption 8

Exemption 8 applies to information "contained in or related to
examination, operating or condition reports prepared by, on behalf of,
or for the use of an agency responsible for the regulation or
supervision of financial institutions."

5 U.S.C. §552(b)(8). Courts have interpreted exemption 8 broadly and
have declined to restrict its all-inclusive scope. [Consumers Union of
United States, Inc. v. Heimann]{.underline}, 589 F.2d 531 (D.C. Cir.
1978). In general, all records, regardless of the source, of a financial
institution's financial condition and operations that are in the
possession of a federal agency responsible for their regulation or
supervision are exempt. [McCullough v. FDIC]{.underline}, No. 79-1132,
1980 U.S. Dist. LEXIS 17685, at \*\*7-8 (D.D.C. July 28, 1980). Courts
have generally not required agencies to segregate and disclose portions
of documents unrelated to the financial condition of the institution.
*See* [Atkinson v. FDIC]{.underline}, No. 79-1113, 1980 U.S. Dist. LEXIS
17793, at \*4-5 (D.D.C. Feb. 13, 1980). The courts have discerned two
major purposes for exemption 8 from its legislative history: 1) to
protect the security of financial institutions by withholding from the
public reports that contain frank evaluations of a bank's stability; and
2) to promote cooperation and communication between employees and
examiners. *See* [Atkinson v. FDIC]{.underline} at \*4. The responsive
records concern DFCU's operations and are in the possession of NCUA.
They are within the scope of exemption 8 pursuant to [Consumers
Union]{.underline} and [McCullough]{.underline}. Withholding the
responsive documents meets the second purpose of exemption 8. Therefore,
the documents continue to be withheld pursuant to exemption 8. We note
the case cited in your appeal letter[^1] concerned an individual's
attempt to obtain documents from a financial institution, rather than a
regulatory agency. The court noted that supervisory correspondence would
fall within the scope of exemption 8 of the FOIA and should be sought
from the appropriate government agency. It held that other
correspondence between the financial institution and its regulatory
agencies should be disclosed to the plaintiff. Again, we believe the
documents responsive to your FOIA request and appeal are supervisory
correspondence subject to exemption 8's broad, inclusive scope.

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

Sincerely,

Robert M. Fenner

General Counsel

GC/HMU:bhs

06-0631

06-FOI-00122

06-APP-00003

[^1]: [Feinberg v. Hibernia Corp.]{.underline}, No. 90-4245, 1993 U.S.
    Dist. LEXIS 47 (E.D. La. Jan 6, 1993)