UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ______________________________ ) VERN MCKINLEY, ) ) Plaintiff, ) ) v. ) Civ. Action No. 10-420 (EGS) ) FEDERAL DEPOSIT INSURANCE ) CORPORATION, ) ) Defendant. ) ______________________________)

MEMORANDUM OPINION

Pending before the Court in this Freedom of Information Act

(“FOIA”) case are the parties’ cross-motions for summary

judgment. The only remaining issue in this case is whether

defendant conducted adequate searches for records responsive to

plaintiff’s FOIA requests. Upon consideration of the motions,

the responses and replies thereto, the applicable law, the

entire record, and for the reasons set forth below, defendant’s

motion for summary judgment is GRANTED, and plaintiff’s cross-

motion for summary judgment is DENIED.

I. BACKGROUND

Plaintiff Vern McKinley is a private citizen who works “as

an advisor to governments worldwide on financial sector policy

and legal issues.” Compl. ¶ 3. In December 2009, plaintiff

submitted three FOIA requests to the Federal Deposit Insurance

Corporation (“FDIC”) seeking information regarding its response to the global financial crisis of 2008. Specifically, plaintiff

sought records from the FDIC “regarding its October 2008

decision to create a ‘Temporary Liquidity Guarantee Program’ to

provide financial support to banks, thrift institutions, and

certain bank holding companies. . . . [and] regarding its

decisions in November 2008 and January 2009 to extend such

support to Citigroup, Inc. and Bank of America Corp.,

respectively.” Pl.’s Cross-Mot. for Summary Judgment (“Pl.’s

Cross-Mot.”) at 1-2.

In each request, plaintiff referenced FDIC press releases

describing the FDIC’s actions on specific dates. Def.’s Mot.

for Summary Judgment (“Def.’s Mot.”) Exs. 1, 3, 5.

Specifically, plaintiff requested information related to the

FDIC’s findings, under section 13(c) of the Federal Deposit

Insurance Act (“FDI Act”),

(c), that failure to

provide emergency assistance to financial institutions would

have “serious adverse effects on economic conditions or

financial stability.” Def.’s Mot. Exs. 1, 3, 5. Plaintiff

asked for “any information available on [these] determination[s]

such as meeting minutes [and/or] supporting memos.” Def.’s Mot.

Exs. 1, 3, 5.

The FDIC did not respond to plaintiff’s requests within the

required time limits, and as a result plaintiff initiated this

lawsuit on March 15, 2010. Pl.’s Cross-Mot. at 2. In his

2 complaint, plaintiff alleged that the FDIC violated the FOIA by

“failing to produce any and all non-exempt records responsive to

Plaintiff’s requests,” Compl. ¶ 19, and requested, inter alia,

that defendant “search for and produce any and all non-exempt

records responsive to Plaintiff’s requests.” Compl. at 5. On

April 15, 2010, the FDIC provided plaintiff with 101 pages of

material responsive to his FOIA requests, but redacted

information from every document it produced, pursuant to several

FOIA and Government in the Sunshine Act (“Sunshine Act”)

exemptions. McKinley v. Fed. Deposit Ins. Co.,

(D.D.C. 2010).

The FDIC then moved to dismiss the complaint as moot, and

plaintiff cross-moved for summary judgment regarding the

adequacy of the searches and the FDIC’s use of the FOIA and

Sunshine Act exemptions.

. The Court denied the

agency’s motion to dismiss, granted in part plaintiff’s motion

for summary judgment as to the adequacy of the searches and

denied without prejudice in part plaintiff’s motion for summary

judgment as to the agency’s use of exemptions.

. The

Court ordered the FDIC to either conduct new searches for the

records sought by plaintiff or submit declarations that

adequately demonstrate that the agency employed search methods

reasonably likely to lead to discovery of records responsive to

plaintiff’s requests.

The Court also ordered the FDIC to

3 demonstrate that responsive documents were produced to

plaintiff, and that responsive documents and parts of documents

not provided to plaintiff were properly withheld under the FOIA

or Sunshine Act exemptions.

The FDIC subsequently released all the information it had

initially withheld under the FOIA and Sunshine Act exemptions

and moved for summary judgment regarding the adequacy of its

searches. See generally Def.’s Mot. In support of its motion

for summary judgment, the FDIC submitted declarations of

Fredrick L. Fisch, the Supervisory Counsel in charge of the

FDIC’s FOIA and Privacy Act Group, and Catherine L. Hammond, the

FDIC employee who conducted the document searches. See

generally Decl. of Fredrick L. Fisch (“Fisch Decl.”); Decl. of

Catherine L. Hammond (“Hammond Decl.”). These declarations

describe the general procedures that the FDIC uses to process

FOIA requests, as well as the specific steps taken in response

to plaintiff's requests. The declarations show that the FDIC

searched the Executive Secretary Section of the FDIC Legal

Division (“ESS”) for records responsive to plaintiff’s requests.

Fisch Decl. ¶¶ 12-15, 18-22, 25-29. As a result of those

searches, the FDIC produced to the plaintiff the meeting minutes

and the “Case Memoranda” (or “Board Cases”) prepared for the

Board meetings at which the FDIC made each of the three

4 determinations referenced in plaintiff’s requests. Hammond

Decl. ¶¶ 19-20, 24-26, 30-32.

Plaintiff has opposed defendant’s motion for summary

judgment and has cross-moved for summary judgment. In his

cross-motion, plaintiff argues that the FDIC’s searches were

inadequate and that the agency produced only a subset of the

records he requested. Pl.’s Cross-Mot. at 4. He argues that

defendant should have searched for email correspondence, meeting

notes, and memoranda from several other departments within the

FDIC. Pl.’s Cross-Mot. at 4, 7-8. Plaintiff also argues that

the FDIC should have searched other records systems in addition

to the ESS. Pl.’s Cross-Mot. at 4. The parties’ motions are

now ripe for review by the Court.

II. STANDARD OF REVIEW

The Court may grant a motion for summary judgment if the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with affidavits or declarations,

show that there is no genuine issue of material fact and that

the moving party is entitled to judgment as a matter of law.

Fed. R. Civ. P. 56(c). In a FOIA case, the burden of proof is

always on the agency to demonstrate that it has fully discharged

its obligations under the FOIA. See U.S. Dep’t of Justice v.

Tax Analysts,

, 142 n.3 (1989).

5 In response to a challenge to the adequacy of its search

for requested records, “the agency may meet its burden by

providing ‘a reasonably detailed affidavit, setting forth the

search terms and the type of search performed, and averring that

all files likely to contain responsive materials . . . were

searched.’” Iturralde v. Comptroller of the Currency,

(D.C. Cir. 2003) (quoting Valencia-Lucena v. U.S.

Coast Guard,

(D.C. Cir. 1999)). In addition,

“[a]ny factual assertions contained in affidavits and other

attachments in support of motions for summary judgment are

accepted as true unless the nonmoving party submits affidavits

or other documentary evidence contradicting those assertions.”

Wilson v. U.S. Dep’t of Transp.,

(D.D.C. 2010) (citing Neal v. Kelly,

(D.C.

Cir. 1992)).

III. ANALYSIS

The only issue remaining for summary judgment in this case

is whether defendant conducted adequate searches for records

responsive to plaintiff’s requests. Specifically, the Court

must determine (1) whether it was reasonable for the FDIC to

limit the scope of its searches to the meeting minutes and Case

Memoranda prepared for the Board meetings at which the FDIC made

each of the three determinations referenced in the plaintiff’s

requests; and (2) whether it was reasonable for the FDIC to

6 limit its searches to records located in the ESS. For the

reasons discussed below, the Court concludes that defendant’s

searches were reasonable with respect to both issues. The Court

will address each issue in turn.

A. Defendant Reasonably Limited the Scope of its Searches to the Meeting Minutes and Case Memoranda Prepared for the Board Meetings at which the FDIC Made the Determinations Referenced in Plaintiff’s Requests

The adequacy of an agency’s search for responsive records

“is measured by the reasonableness of the effort in light of the

specific request.” Larson v. Dep’t of State,

(D.C. Cir. 2009) (quoting Meeropol v. Meese,

(D.C. Cir. 1986)). The search for records need not be

exhaustive, see Oglesby v. U.S. Dep’t of Army,

(D.C. Cir. 1990), but the scope and methodology of the search

must be “reasonably calculated to uncover all relevant

documents.” Weisberg v. U.S. Dep’t of Justice,

(D.C. Cir. 1983).

In determining the proper scope of a FOIA request, “[t]he

linchpin inquiry is whether the agency is able to determine

‘precisely what records (are) being requested.’” Yeager v. Drug

Enforcement Admin.,

(D.C. Cir. 1982) (quoting

S. Rep. No. 93-854, at 10 (1974)) (alteration in original).

Requests must “reasonably describe the records in a way that

enables the FDIC’s staff to identify and produce the records

7 with reasonable effort and without unduly burdening or

significantly interfering with any of the FDIC’s operations.”

(b)(3) (2010).

Defendant argues that it was reasonable to limit its

searches to the meeting minutes and Case Memoranda prepared for

the Board meetings at which the FDIC made the determinations

referenced in plaintiff’s requests because the requests sought

“information about statutory determinations made by the FDIC’s

Board of Directors” and related to “a Board of Directors meeting

on a specific date concerning a specific topic.” Def.’s Mot. at

2. To support its interpretation of the scope of plaintiff’s

requests, the FDIC cites the language found in each of the three

requests, which reads:

I am requesting further detail on information on the [transaction/program] described in the following FDIC press release:

[internet URL of FDIC press release]

The source of this power is Section 13(c) of the FDI Act (12 U.S.C. 1823(c)). There is a requirement that under this section under the emergency determination there must be a finding of "serious adverse effects on economic conditions or financial stability" if the action is not taken. I would like any information available on this determination such as meeting minutes [and/or] supporting memos.

Def.’s Mot. Ex. 1 (requesting information on the FDIC Board of

Director’s November 23, 2008 decision to provide financial

8 support to Citigroup, Inc.); Def.’s Mot. Ex. 3 (requesting

information on the FDIC Board of Director’s January 16, 2009

decision to provide financial support to Bank of America Corp.);

Def.’s Mot. Ex. 5 (requesting information on the FDIC Board of

Director’s October 13, 2008 decision to create the Temporary

Liquidity Guarantee Program).

Defendant points out that plaintiff specifically requested

information related to the Board’s finding, under Section 13(c)

of the FDI Act,

(c), that failure to provide

emergency assistance to financial institutions would have

“serious adverse effects on economic conditions or financial

stability.” Def.’s Mot. Exs. 1, 3, 5. The statutory provision

referenced in the requests (the “systemic risk exception”)

authorizes the FDIC to provide emergency assistance to financial

institutions only upon a recommendation from the Board.

(c)(4)(G)(i) (2006). Defendant explains that this

determination can be made only by the Board and “cannot be taken

by the Chairman of the FDIC, or by a senior executive or other

staff of the FDIC, or by any office or division of the FDIC.”

Def.’s Mot. at 4.

Defendant also argues that it was reasonable to conclude

that “the types of information [plaintiff] was seeking were

‘meeting minutes and supporting memos.’” Def.’s Mot. at 4.

Specifically, FDIC concluded that “[b]ecause the request

9 referred to a specific action taken by the FDIC Board of

Directors, the phrase ‘meeting minutes’ meant the minutes of the

FDIC Board of Directors meeting at which the ‘determination’ was

made. . . . [and] the phrase ‘supporting memos’ meant memoranda

describing, explaining, providing the background and reasoning

for, and/or recommending the action that would become the Board

‘determination.’” Fisch Decl. ¶¶ 12, 18, 25. Accordingly, the

FDIC argues that it was reasonable to limit its searches to the

meeting minutes and Case Memoranda prepared for each of the

three Board meetings referenced in the plaintiff’s requests.

Def.’s Mot. at 4.

In response, plaintiff argues that his requests sought “any

and all information available regarding the October 2008

decision to create the Temporary Liquidity Guarantee Program,

the November 2008 decision to extend assistance to Citigroup,

and the January 2009 decision to extend assistance to Bank of

America.” Pl.’s Cross-Mot. at 4. A reasonable interpretation

of his requests would include, plaintiff argues, “records

created and/or used by officials and staff members of the

various departments within the FDIC who participated in the

three determinations,” Pl.’s Reply in Support of Cross-Mot. for

Summary Judgment (“Pl.’s Reply”) at 6, and “any email

correspondence, meeting notes, or other memoranda” relating to

the Board’s determinations. Pl.’s Cross-Mot. at 4. Plaintiff

10 contends that he did not limit his requests to a specific subset

of records and that it was unreasonable for the agency to

conclude that he did. Pl.’s Cross-Mot. at 4.

Upon consideration of the language of plaintiff’s requests,

the Court finds that it was reasonable for the FDIC to limit its

searches to the meeting minutes and Case Memoranda prepared for

the Board meetings at which the FDIC made the determinations

referenced in plaintiff’s requests. The requests asked for

information about specific determinations and referenced press

releases from specific dates. Furthermore, the requests pointed

to the precise section of the statute giving FDIC the authority

to provide emergency assistance to financial institutions only

upon the recommendation of its Board of Directors, and asked for

information related to specific determinations made by the FDIC

Board under that provision of the statute. Because the FDIC

Board was the only entity that could make those determinations,

it was reasonable for the FDIC to limit the scope of its

searches to records related to specific Board actions and to

conclude that “meeting minutes” and “supporting memos” referred

to the meeting minutes and Case Memoranda prepared for the Board

meetings at which the FDIC made each of the three determinations

referenced in the plaintiff’s requests.

Nonetheless, plaintiff argues that the FDIC unreasonably

limited the scope of his requests because (1) the requests

11 included language asking for “any information available” on the

determinations, Pl.’s Cross-Mot. at 4; and (2) the FDIC had a

duty to construe the requests liberally. Pl.’s Cross-Mot. at 5.

For the following reasons, the Court finds both arguments

unpersuasive.

First, plaintiff argues that the FDIC should have

interpreted his requests as seeking records created or used by

officials and staff members across the various departments

within the FDIC because his requests contained language asking

for “any information available” on the determinations. Pl.’s

Cross-Mot. at 4, 7-8. The Court finds, however, that language

asking for “any information available” fails to provide a

reasonable description of the type or location of additional

records sought and does not describe the records “in a way that

enables the FDIC’s staff to identify and produce the records

with reasonable effort and without unduly burdening or

significantly interfering with any of the FDIC’s operations.”

(b)(3) (2010). Instead, the language is

analogous to requests for records that relate “in any way” to a

person or event, which courts have repeatedly found to be overly

broad and unreasonable. See Mason v. Callaway,

(4th Cir. 1977) (plaintiff’s request for “all [material]

pertaining to atrocities committed against plaintiffs” and

contained in the files of various government offices lacked the

12 specificity needed for the request to be reasonably described);

Latham v. U.S. Dep’t of Justice,

(D.D.C. 2009) (plaintiff’s request for records pertaining “in

any form or sort” to plaintiff was overly broad and burdensome);

Dale v. Internal Revenue Serv.,

(D.D.C.

2002) (plaintiff’s request for “any and all documents . . . that

refer or relate in any way to [plaintiff]” was not sufficiently

detailed because it did not specify particular records, actions,

years, or offices involved); Judicial Watch, Inc. v. Exp.-Imp.

Bank,

(D.D.C. 2000) (plaintiff’s

request for records pertaining to any person or company doing

business with China was unreasonably broad and imposed an

unreasonable burden on defendant). Because plaintiff failed to

specify how additional documents might be related to the Board’s

determinations or where those records might be found, it was

reasonable for the FDIC to disregard the “any information

available” language when interpreting plaintiff’s requests.1

1 This case is distinguishable from LaCedra v. Exec. Office for U.S. Attorneys,

(D.C. Cir. 2003), which plaintiff cites to support his argument that the FDIC improperly restricted the scope of his requests. See Pl.’s Reply at 2-4. In LaCedra, the requestor asked for “all documents pertaining to” a specific criminal case and then specifically requested a subset of those documents. LaCedra,

. The issue was not whether the initial request for “all documents pertaining to” the specific criminal case was reasonable, but rather whether a request “might reasonably seek all of a certain set of documents while nonetheless evincing a heightened interest in a specific subset thereof.”

. 13 Second, plaintiff argues that the FDIC had a duty to

construe his requests liberally and cites Nation Magazine, Wash.

Bureau v. U.S. Customs Serv.,

(D.C. Cir. 1995), in

support of his argument. Pl.’s Cross-Mot. at 5. In Nation

Magazine, the court concluded that when a request “reasonably

describe[s] the records sought . . . an agency also has a duty

to construe a FOIA request liberally.” Nation Magazine,

(internal quotations omitted). But this duty only arises

in cases where the request provides a reasonable description of

the records sought. See

(c) (2010) (“The FDIC

need not accept or process a request that does not reasonably

describe the records requested . . . .”). In the instant case,

plaintiff’s requests describe specific actions undertaken on

specific dates within a statutory scheme that permits only the

Board to make recommendations on the FDIC’s behalf. Plaintiff’s

argument that an agency’s interpretation of his requests must be

broader than the description reasonably contained in the

requests finds no support in Nation Magazine.

Accordingly, in light of the language in plaintiff’s

requests, the Court finds that it was reasonable for the FDIC to

limit its searches to the meeting minutes and Case Memoranda

prepared for the Board meetings at which the FDIC made the

determinations referenced in plaintiff’s requests.

14 B. Defendant Reasonably Limited its Searches to Records in the Executive Secretary Section of the FDIC Legal Division

The final issue before the Court is whether it was

reasonable for the FDIC to limit its searches to records in the

Executive Secretary Section of the FDIC Legal Division (“ESS”).

Defendant argues that “[a] search in other records systems would

be called for only if Mr. Fisch’s interpretation of the wording

of Plaintiff’s requests was unreasonable, or if Mr. Fisch was

incorrect about where the records were located.” Def.’s Reply

in Support of its Mot. for Summary Judgment at 6. The Court

agrees.

Defendant submitted detailed declarations averring that the

only reasonable place to search for the minutes and supporting

memos requested by plaintiff was the ESS. Fisch Decl. at ¶¶ 12,

18, 25. As the declarations state, the FDIC concluded that

“[b]ecause the Minutes of meetings of the FDIC Board of

Directors are exclusively prepared and maintained by [the ESS],

the only reasonable place to search for the Minutes requested by

Plaintiff was the ESS.” Fisch Decl. at ¶¶ 12(f), 18(d), 25(d).

The FDIC also concluded that “[b]ecause the memoranda prepared

for and used by the FDIC Board of Directors that describe,

explain, provide the background and reasoning for, and/or

recommend action . . . are kept and maintained by the ESS as

part of the official records of Board meetings in which such

15 memoranda are used, the only reasonable place to search for [the

‘Board Case’ and] ‘supporting memos’ requested by Plaintiff was

the ESS.” Fisch Decl. at ¶¶ 12(g), 18(e), 25(e).

Plaintiff argues that the documents in the responsive

record demonstrate the inadequacy of the FDIC’s searches. Pl.’s

Cross-Mot. at 7-8. Plaintiff cites a study referenced in one of

the case memoranda, a list of names of meeting participants and

contributors to each case memorandum, and a list of the various

departments within the FDIC that were represented at the

meetings. Pl.’s Reply at 5-6. Significantly, plaintiff does

not argue that the study or any other non-produced document was

responsive to his requests. Pl.’s Reply at 6 n. 1. Nor does

plaintiff contest that the meeting minutes and Case Memoranda of

the FDIC Board meetings are exclusively maintained by the ESS.

Rather, plaintiff argues that the fact that the meeting minutes

and Case Memoranda contain these references necessarily implies

that additional documents and correspondence influenced the

Board’s determinations. Pl.’s Reply at 6. He argues that this

evidence demonstrates the inadequacy of the FDIC’s searches

because “it is inconceivable that officials and staff members

who participated in meetings and prepared or received the case

memoranda had no prior knowledge of the topics discussed and

possessed no records on the issues and the decisions to be

made.” Pl.’s Reply at 6.

16 Plaintiff’s argument fails because it turns on the finding

that the FDIC’s interpretation of the scope of the requests was

unreasonable. Pl.’s Reply at 4 (“[T]he FDIC improperly narrowed

Plaintiff’s requests. Because of this fact alone, the FDIC has

not conducted adequate searches.”). Essentially, plaintiff

repeats his argument that an adequate search for records would

include all records related in any way to the Board’s

determinations. As discussed above, the FDIC’s interpretation

of the scope of plaintiff’s requests was reasonable, and the

FDIC reasonably limited its searches to the meeting minutes and

Case Memoranda prepared for the Board meetings at which the FDIC

made the determinations referenced in plaintiff’s requests.

Accordingly, and based upon the declarations submitted by the

FDIC, the Court finds that it was reasonable for the FDIC to

limit its searches for responsive records to the ESS.

CONCLUSION

For the foregoing reasons, the Court concludes that the

FDIC has met its burden to show that it conducted adequate

searches for records responsive to plaintiff’s FOIA requests.

Accordingly, defendant’s motion for summary judgment is GRANTED,

and plaintiff’s cross-motion for summary judgment is DENIED. An

appropriate order accompanies this memorandum opinion.

SIGNED: Emmet G. Sullivan United States District Court Judge August 8, 2011

17