UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

IRA NIKELSBERG, : : Plaintiff, : : v. : Civil Action No. 08-1899 (JR) : FEDERAL DEPOSIT INSURANCE : CORPORATION, : : Defendant. :

MEMORANDUM

Pro se plaintiff Ira Nikelsberg sues the Federal

Deposit Insurance Corporation under the Freedom of Information

Act,

, as amended, to obtain the names and contact

information of the under-insured depositors of two failed banks

for which the FDIC acts as receiver. The parties have cross

moved for summary judgment. Because the information requested

falls under the exceptions to FOIA found in

(b)(4)

and (b)(6), defendant's motion will be granted.

Background

Pursuant to its duties as receiver for ANB Financial

and Net Bank, the FDIC issued receiver's certificates to

depositors for the portions of their accounts greater than the

federally insured limit of $100,000. See,

(d)(2); Def. MSJ at 2-3. These certificates have a “second

level” priority, meaning that they will be honored at a portion

of their face value, that portion to be determined on the basis

of the assets that remain after secured creditors and administrative expenses are paid. See,

(d)(11);

Def. MSJ at 3.

Plaintiff, whose asserted purpose is to solicit the

purchase of those receiver certificates, made a FOIA request for

a variety of information pertaining to the FDIC’s receivership of

Net Bank and ANB Financial. He was provided most of what he

asked for, but the FDIC invoked FOIA Exemptions 4 and 6 to

withhold the names, physical addresses, email addresses, phone

numbers, and other contact information of under-insured

depositors who were given receiver's certificates. Pl. MSJ at 3;

(b)(4) and (b)(6).

Analysis

A district court’s review of an agency's denial of a

FOIA request is de novo.

(a)(4)(B). Summary

judgment is appropriate when, taking the evidence in the light

most favorable to the requester, there is no genuine issue of

material fact and the agency has demonstrated that the

information is exempt from disclosure. See, Assassination

Archives & Research Ctr. v. Cent. Intelligence Agency,

(D.C. Cir. 2003) (internal quotation omitted); Fed. R.

Civ. P. 56(c).

1. FOIA Exemption 6

Section 552(b)(6) exempts from disclosure “personnel

and medical files and similar files the disclosure of which would

- 2 - constitute a clearly unwarranted invasion of personal privacy[.]”

(b)(6). It is conceded that the requested

information is kept in covered files, but that concession does

not end the inquiry. There is a “second inquiry” which “requires

the court to balance the individual's right of privacy against

the basic policy of opening agency action to the light of public

scrutiny.” National Ass'n of Home Builders v. Norton,

(D.C. Cir. 2002) (internal quotation omitted).

Individual account holders have a privacy interest here

because disclosure would allow public scrutiny of their financial

information. See, Consumers' Checkbook Center for the Study of

Services v. U.S. Dept. of Health and Human Services,

(D.C. Cir. 2009) (“We have consistently held that an

individual has a substantial privacy interest under FOIA in his

financial information, including income.”); Multi Ag Media LLC v.

Department of Agriculture,

(D.C. Cir. 2008);

National Ass'n of Retired Federal Employees v. Horner,

(D.C. Cir. 1989). The Court of Appeals has been

“particularly concerned when the information may be used for

solicitation purposes.” Lepelletier v. F.D.I.C.,

(D.C. Cir. 1999). For the owners of “individually owned or

closely held” businesses, disclosure “would necessarily reveal at

least a portion of the owner's personal finances.” Multi Ag

Media,

. While some individuals and businesses

- 3 - might be interested to learn that there is a potential buyer of

receiver’s certificates, that interest is not nearly as “clear”

as that of the holders of unclaimed accounts, for whom release of

contact information would “greatly increase the probability that

they (or their heirs) will be reunited with their funds.”

Lepelletier,

.

Plaintiff’s assertion that disclosing the requested

contact information would in some way “she[d] light on [the

FDIC's] performance of its statutory duties . . . ,” United

States Dep't of Defense v. FLRA,

(1994)

(internal quotation omitted), seems to rely on the highly

implausible suggestions that FDIC’s roles as regulator, insurer,

and receiver are in conflict with one another, and that the

agency makes its receivership determinations via a “secret

process.” But plaintiff makes no effort to explain how the

requested names and contact information could possibly shed any

light on his suggestions. See, Lepelletier,

; cf.,

National Ass'n of Retired Fed. Employees v. Horner,

(D.C. Cir. 1989). The “secret process” to which he refers is

spelled out comprehensively in the FDIC manual, a substantial

portion of which is attached to plaintiff's reply brief.

2. FOIA Exemption 4

Defendant argues that FOIA Exemption 4, which exempts

from disclosure “trade secrets and commercial or financial

- 4 - information obtained from a person and privileged or

confidential,” applies to the contact information of all other

businesses that are not closely held or individually owned.

(b)(4). Plaintiff concedes, as he must, that the

information he seeks is commercial and/or financial. And it was

clearly provided to the government by the banks, which in turn

received it from the business account holders -- all “persons”

under Exemption 4. See, Gulf & Western Industries, Inc. V. U.S.,

(D.C. Cir. 1979); OSHA Data/C.I.H., Inc. V. U.S.

Dept. Of Labor,

, 162 n.23 (3rd Cir. 2000). The

question is whether the contact information for such businesses

is “privileged or confidential.”

(b)(4).

The required analysis of whether commercial or

financial information is “confidential” first asks whether the

information was provided to the government voluntarily or

involuntarily. Compare, National Parks & Conservation Ass'n v.

Morton,

(D.C. Cir. 1974) (involuntary), with,

Critical Mass Energy Project v. NRC,

(D.C. Cir.

1992)(voluntary). The release of contact information to FDIC as

part of the receivership laws was involuntary, of course, but

when the businesses provided the information to the banks they

were entitled to expect that their account information would be

kept in confidence. Plaintiff concedes that the information

(i.e., deposit information coupled with contact information) is

- 5 - of a type “customarily not be released to the public.” Critical

Mass Energy Project,

. It is thus unnecessary to

analyze the “competitive disadvantages” to banks and account

holders that might result from disclosure of information

involuntarily provided to the government. See, National Parks &

Conservation Ass'n,

.

Even if the contact information of businesses is not

“confidential,” to require FDIC to sort through depositor records

trying to decide which businesses are closely held or

individually owned and which are not might well compromise its

efficiency and effectiveness. See, Critical Mass Energy Project,

; National Parks & Conservation Ass'n,

n. 17; 9 to 5 Org. for Women Office Workers v. Bd. of

Governors of the Fed. Res. System,

, 7-11 (1st

Cir. 1983); Public Citizen Health Research Group v. National

Institutes of Health,

(D.D.C. 2002).

* * *

An appropriate order accompanies this memorandum.

JAMES ROBERTSON United States District Judge

- 6 -