June 12, 2006

Mr. Robert Tice

(b)(6)

Re: Your FOIA appeal dated May 7, 2006 (06-FOI-00044)

Dear Mr. Tice:

On January 20, 2006, you e-mailed NCUA a Freedom of Information Act
(FOIA) request for copies of 1) all complaints filed in regard to the
Columbia Community Credit Union; 2) a copy of the "conversion" report
issued regarding the attempt by the board of directors of the Columbia
Credit Union; and 3) a copy of the investigation reports by the
individual investigators that were made during the investigation of that
conversion attempt. Staff attorney Linda Dent responded to your FOIA
request. You received approximately 81 releasable pages of complaints
filed in regard to the Columbia Community Credit Union. Redactions were
made to 33 of these pages pursuant to exemptions 5, 6, and 8 of the
FOIA. 12 U.S.C. §552(b)(5), (6), and (8). Approximately 757 pages of
documents, consisting of investigations, investigative reports and
backup investigatory information, were withheld pursuant to exemptions
4, 5, 6 and 8 of the FOIA.

We received your May 7, 2006 FOIA appeal on May 12^th^. Your appeal is
granted in part and denied in part. Several pages of responsive
complaint documents that were not originally identified are now released
and enclosed. All 757 pages of investigatory information continue to be
withheld pursuant to exemptions 4, 5, 6, and 8 of the FOIA. Starting
with the third paragraph of your appeal letter, you raise eleven issues
(one in each consecutive paragraph) concerning the response to your FOIA
request. These issues are addressed in numbered paragraphs 1 through 11
below. The remaining paragraphs of your letter focus on withholding all
of the investigatory materials. That issue and others that you raise are
dealt with below the numbered paragraphs. In addition, you now ask for
responses to the complaint documents, more recent complaint documents,
and a copy of the Settlement Agreement. Your request for these
additional documents will be treated as a new FOIA request separate from
this appeal. A response to your request for additional documents will be
sent to you separately. Please contact staff attorney Linda Dent if you
have any questions concerning your request for additional documents.

1.  You state that on the copy of Harry D. Hurless' letter to William F.
    Byrd, III, dated January 20, 2004, the center of page 1 is
    distorted. Enclosed is a clean copy of the 3-page letter.

2.  You state you received 2 copies of the first 2 pages of Steve
    Straub's 4-page letter, dated December 31, 2003. Please disregard
    the redundancy.

3.  You state you received 2 copies of a 2-page fax sent by Clifford D.
    Hathaway, dated December 22, 2003. Please disregard the redundancy.

4.  You inquire whether a response was sent to Eric H. Renaud's request
    dated November 12, 2003. Your original FOIA request asked for
    complaint letters only. As noted above, we will treat your request
    for additional documents as a new FOIA request.

5.  You state you received 2 identical copies of Markus Stein's e-mail
    dated November 13, 2003. Please disregard the redundancy.

6.  You state that page 7 of 7 of your December 30, 2003 letter to David
    Doss, CEO of Columbia Credit Union, is missing. Enclosed is a new
    copy of the entire 7-page letter.

7.  You state you received page 1 only of the letter from Douglas
    Schafer's law firm to Steven E. Turner of Miller Nash LLP. Enclosed
    is a new copy of the 3-page letter with a 1-page enclosure.

8.  You request a copy of the Settlement Agreement of February 5, 2004
    between Washington State Department of Financial Institutions and
    Columbia Community Credit Union and the amendment and supplement
    thereto. As noted above, we will treat your request for additional
    documents as a new FOIA request.

9.  You state that NCUA's January 2004 letter to Ms. Karen Martel was
    not provided to you. This January 29, 2004 letter was provided with
    the response to your original request. A new copy of the 8-page
    letter is enclosed.

10. You request more recent complaints concerning Columbia Credit Union.
    As noted above, we will treat your request for additional documents
    as a new FOIA request.

11. You request responses to complaints and other correspondence. As
    noted above, we will treat your request for additional documents as
    a new FOIA request.

We did identify several additional pages of documents responsive to your
initial FOIA request for complaints. The following additional documents
are enclosed. A 1-page complaint letter from Roslyn Ward, dated December
19, 2003; an 8-page document listing members and their complaints; and a
3-page document listing members and their complaints (first page, but
not second two were previously supplied).

At the bottom of page 2 of your appeal letter you state that FOIA
exemptions 5 and 6 were used and that you requested no documents
containing the type of information to which these exemptions would
apply. Exemption 5 is used in part for internal documents. There were
NCUA internal notations on some of the complaint letters that were
redacted pursuant to exemption 5. Exemption 6 is used for personnel,
medical and other similar information including home addresses and
telephone numbers. Exemption 6 was used when home addresses and
telephone numbers were redacted from documents you received.

[Exemption 8]{.underline}

The rest of your appeal letter addresses the application of exemption 8
to the 757 pages of investigatory documents withheld. 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). All of the investigatory materials withheld qualify pursuant to
exemption 8.

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}, No. 79-1113, 1980 U.S. Dist. LEXIS 17793, at \*4
(D.D.C. Feb. 13, 1980). The purposes of exemption 8 are met; therefore,
all of the investigatory materials continue to be withheld pursuant to
exemption 8.

Exemptions 4, 5 and 6 were also used for some portions of some of the
investigatory documents withheld. Since exemption 8 is all inclusive as
explained above, it covers all of the investigatory information
withheld. However, a brief explanation of exemptions 4, 5, and 6 is also
provided.

[Exemption 4]{.underline}

Certain commercial and financial information were withheld pursuant to
exemption 4 as well as exemption 8. Exemption 4 protects, in part,
commercial or financial information obtained from a person and
privileged or confidential.

5 U.S.C. 552(b)(4). The information withheld pursuant to exemption 4
falls into the category of commercial/financial information. The term
"commercial" has been interpreted to include anything "pertaining or
relating to or dealing with commerce. [American Airlines, Inc. v.
National Mediation Board]{.underline}, 588 F.2d 863, 870 (2d Cir. 1978).
Information "obtained from a person" has been held to include
information obtained from a corporation. [Nadler v. FDIC]{.underline},
92 F.3d 93, 95 (2d Cir. 1996). Information obtained from a credit union
meets the standard of obtained "from a person" under
[Nadler]{.underline}. The financial and commercial information withheld
qualifies under exemption 4 and continues to be withheld.

# 

# Exemption 5

Internal notations, memoranda and e-mail were withheld pursuant to
exemption 5 as well as exemption 8. 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; therefore the material
withheld remains exempt from disclosure.

# Exemption 6

Home addresses, telephone numbers and account information were withheld
pursuant to exemption 6 as well as exemption 8. Exemption 6 protects
information about an individual in "personnel and medical files and
similar files" where the disclosure of such information "would
constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C.
552(b)(6). The courts have held that all information that applies to a
particular individual meets the threshold requirement for privacy
protection. [United States Department of State v. Washington Post
Co.]{.underline}, 456 U.S. 595 (1982). Once a privacy interest is
established, application of exemption 6 requires a balancing of the
public's right to disclosure against the individual's right to privacy.
[Department of the Air Force v. Rose]{.underline}, 425 U.S. 352, 372
(1976). The withheld information meets the requirement for exemption 6
protection. There is minimal, if any, public interest in disclosing this
personal information. The individuals' privacy interests outweigh any
public interest in disclosure. Therefore the personal information
continues to be withheld pursuant to exemption 6.

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

Enclosures

GC/HMU:bhs

06-0531

FOI-6-00044