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2011 mckinley-v-fedreserve-ussc-petition-10272011

2011 mckinley-v-fedreserve-ussc-petition-10272011

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No. ___ THE 
Supreme Court the United States 

VERN MCKINLEY, 
Petitioner, 
BOARD GOVERNORS 
THE FEDERAL RESERVE SYSTEM, 

Respondent. Petition for Writ Certiorari the United States Court Appeals for the District Columbia Circuit 

PETITION FOR WRIT CERTIORARI 
Paul Orfanedes 
Counsel Record 
JUDICIAL WATCH, INC. 
425 Third Street, S.W., Suite 800 
Washington,  20024 
porfanedes@judicialwatch.org
(202) 646-5172 

Counsel for Petitioner 
Whether U.S.C.  552(b)(5), which incorporates the privileges that the Government enjoys thepretrial discovery context into the Freedom ofInformation Act, requires government agency make specific showing harm properlywithhold material under the deliberative processprivilege. 
PARTIES THE PROCEEDINGS 
Petitioner Vern McKinley former employeeof the Board Governors the Federal Reserve, the Federal Deposit Insurance Corporation, the Resolution Trust Corporation, and the Office ofThrift Supervision. Since 1999, has served consultant, legal advisor and regulatory policyexpert financial sector issues for governments the United States, China, Nigeria, Indonesia, Ukraine, Kazakhstan, Latvia, the Philippines,Yugoslavia (now Montenegro), Kenya, Eastern Caribbean Currency Union, Belarus, Morocco, Sudan, Libya, Afghanistan, Armenia, Kosovo, and Tajikistan. also has completed book thehistory bailouts the United States. 
Petitioner initiated the proceedings below byfiling complaint under the Freedom InformationAct against respondent Board Governors the Federal Reserve System the United States District Court the District Columbia.  The District Court granted the Board Governors theFederal Reserve Systems motion for summaryjudgment and dismissed the case. Petitioner McKinley appealed the District Courts ruling theUnited States Court Appeals for the District ofColumbia Circuit, which affirmed the District Courts grant summary judgment.  Petitioner not publicly-owned corporation. 
iii 
TABLE CONTENTS 
QUESTION PRESENTED ......................................... 
PARTIES THE PROCEEDINGS ........................ 
TABLE CONTENTS ........................................... iii 
TABLE AUTHORITIES ....................................... 
PETITION FOR WRIT CERTIORARI ........................................................ 
DECISIONS BELOW .................................................. 
JURISDICTION .......................................................... 
STATUTORY PROVISION ........................................ 
STATEMENT .............................................................. 
REASONS FOR GRANTING THE PETITION ......... 	FOIA Mandates that the Courts Must  Adhere the Plain Meaning theLanguage Used Congress.......................... 
II. 	The Common Law Deliberative Process Privilege Indisputably Requires Specific Showing Harm........................... 
III. 	The D.C. Circuit Has Created Different, Relaxed Test for the Deliberative Process Privilege the FOIA Context ..................... 
IV. 	The D.C. Circuits Relaxed, Two-Prong Test Eviscerates the FOIA Disclosure Statute ........................................ 
CONCLUSION .......................................................... 

APPENDIX 
United States Court Appeals for the  District Columbia Circuit Judgment,  dated June 2011 ............................................... 
United States Court Appeals for the  District Columbia Circuit Opinion,  dated June 2011 ............................................... 
United States District Court for the District Columbia Memorandum Opinion,  dated September 29, 2010 ................................. 26a 
United States Court Appeals for  the District Columbia Circuit Oder Denying Petition for Rehearing Banc, dated July 29, 2011 ............................................ 59a 
TABLE AUTHORITIES 
CASES 
Assembly California United States  Dept Commerce, 968 F.2d 916  (9th Cir. 1992) ....................................................... 
Branch Phillips Petroleum Co., 638 F.2d 873 (5th Cir. 1981) ................................ 
Environmental Protection Agency Mink, 410 U.S. (1973) ............................................. 
Florida House Representatives  United States Dept Commerce, 961 F.2d 941 (11th Cir. 1992)............................. 
Kaiser Aluminum Chem. Corp. U.S., 157 Supp. 939 (Ct. Cl. 1958) ............................ 
Landry FDIC, 204 F.3d 1125 
(D.C. Cir. 2000) ..................................................... 

McKinley Board Governors  the Federal Reserve System, 647 F.3d 331 (D.C. Cir. 2011) ........... 10-11 
McKinley Federal Deposit Insurance  Corporation, 744 Supp. 128
(D.D.C. 2010)................................................. 3-4 

Milner Dept the Navy, 562 U.S. ___, 2011 U.S. LEXIS 2101 (Mar. 2011)........ 6-7, 
NLRB Sears, Roebuck Co., 421 U.S. 132 (1975) ........................................... 
Northrop Corp. McDonnell Douglas Corp., 751 F.2d 395 (D.C. Cir. 1984) ............................... 
Olson Rug Co. NLRB, 291 F.2d 655  (7th Cir. 1961) ....................................................... 
Providence Journal Co. United States Dept Army, 981 F.2d 552 (1st Cir. 1992) ....................................................... 
Quarles Department Navy, 893 F.2d 390 (D.C. Cir. 1990) ............................. 
Renegotiation Bd. Grumman Aircraft   Engg Corp., 421 U.S. 168 (1975) ................. 4-5, 
Trentadue Integrity Committee, 501 F.3d 1215 (10th Cir. 2007)........................... 
U.S.
 Dept Justice Julian, 486 U.S. (1988) ................................................... 

U.S.
 Dept Justice Reporters Comm. for  Freedom Press, 489 U.S. 749 (1989) ................. 

U.S. Weber Aircraft Corp., 465 U.S. 792 (1984) ........................................... 

vii STATUTES U.S.C.  552(b) ....................................... 7-8, 10-11 U.S.C.  1254(1) ...................................................... 
PETITION FOR WRIT CERTIORARI 
Petitioner Vern McKinley respectfully petitions for writ certiorari review the judgment the United States Court Appeals for the District ofColumbia Circuit. 
DECISIONS BELOW 
The decision the United States Court Appeals for the District Columbia Circuit, published McKinley Board Governors the Federal Reserve System, 647 F.3d 331 (D.C. Cir.2011), reprinted the Appendix (App.) 3a. The decision the United States District Court the District Columbia, published McKinley Federal Deposit Insurance Corporation, 744 Supp.2d 128 (D.D.C. 2010), reprinted App. 26a. 
JURISDICTION 
Petitioners petition for rehearing banc was denied the United States Court Appeals for the District Columbia Circuit July 29, 2011.  App.59a. This Court has jurisdiction under U.S.C.  1254(1). 
STATUTORY PROVISION U.S.C.  552(b) the Freedom InformationAct provides pertinent part: 
(b) 
This section [providing for public access government records] does not apply matters that are: 

... 

(5) 
inter-agency intra-agency memorandumsor letters which would not available law party other than agency litigation with the agency. 

STATEMENT March 14, 2008, the Board Governors the Federal Reserve System (the Board) officiallyconvened and took the extraordinary and unprecedented action authorizing the FederalReserve Bank New York extend credit JPMorgan Chase provide temporary loan toBear Stearns enable meet its financial obligations and avoid filing for bankruptcy. McKinley FDIC, 744 Supp. 128, 133 (D.D.C.2010) (App. 27a). Several months later, the Board released the minutes its March 14, 2008 meeting.The minutes only summarily stated that the Board had concluded that unusual and exigent circumstances existed and that Bear Stearns, and possibly other primary securities dealers, wereunable secure adequate credit accommodationselsewhere. Id. 137 (App. 30a). Nowhere did the Board identify the specific evidence considered orhow analyzed this evidence. 
Given the extraordinary nature this transaction and the lack any public explanation ofthe underlying justifications for the Bear Stearnsbailout, Petitioner Vern McKinley submitted Freedom Information Act (FOIA) request the Board effort discover what the Government to. U.S. Dept Justice Reporters Comm. for Freedom Press, 489 U.S. 749, 780 (1989) (App. 31a). response, the Board produced only pages their entirety and withheld 190 pages their entirety part under Exemption the FOIA. McKinley, 744 Supp. 133-134 (App. 32a). 
The Board subsequently moved for, and theDistrict Court granted, summary judgment.  Id. 145 (App. 58a). The District Court ruled that all material may properly withheld under the deliberative process privilege Exemption App.49a. appeal, the D.C. Circuit affirmed.  App. 1a. doing so, held, The Congress enacted FOIAExemption however, precisely because determined that disclosure material that both predecisional and deliberative does harm agencysdecisionmaking process. McKinley Board Governors the Federal Reserve System, 647 F.3d 331, 338 (D.C. Cir. 2011) (App. 19a). other words, the court ruled that government agencys assertion the deliberative process privilege Exemption does not require specific showing harm. July 29, 2011, the D.C. Circuit deniedPetitioner McKinleys petition for rehearing banc. App. 59a. 

REASONS FOR GRANTING THE PETITION 
Exemption the FOIA allows government agency withhold inter-agency intra-agencymemorandums letters which would not available law party other than agency inlitigation with the agency. U.S.C.  552(b)(5). 1975, this Court ruled that Exemption incorporates the privileges which the Government enjoys under the relevant statutory and case law the pretrial discovery context.  Renegotiation Bd. 
Grumman Aircraft Engg Corp., 421 U.S. 168, 184 (1975). affirmed its ruling 1984. U.S. Weber Aircraft Corp., 465 U.S. 792, 799, 802 (1984) (TheLegislative history Exemption indicates thatCongress intended incorporate governmentalprivileges.). Left open were the questions whichgovernmental privileges are incorporated and what government agency must demonstrate properly withhold material under those privileges. issue today the governmental privilegecommonly referred the deliberative processprivilege. Petitioner does not dispute that government agency may properly invoke the deliberative process privilege the context the FOIA. Rather, Petitioner requests that this Court grant certiorari address the question whether agovernment agency must demonstrate harm toproperly withhold material under the deliberative process privilege Exemption 
Despite the plain language Exemption and this Courts precedent, the D.C. Circuit has created different, relaxed two-prong test that governmentagency must satisfy withhold material theFOIA context. Under the common law deliberative process privilege, the Government required todemonstrate that the withheld material predecisional and deliberative and that the release ofsuch material will harm agency decisionmaking. NLRB Sears, Roebuck Co., 421 U.S. 132, 149 (1975). other words, the Government requiredto make specific showing harm. The D.C. Circuit has abandoned the three-prong test required the Government the non-FOIA context and has adopted relaxed, two-prong test that does not require government agency make specific showing harm. McKinley, 647 F.3d 338 (App. 19a). removing the requirement that governmentagency must make specific showing harm underthe deliberative process privilege Exemption the 
D.C. Circuit has created sweeping exemption,causing the FOIA become more withholdingstatute than disclosure statute.  See Milner Dept the Navy, 562 U.S. ___, 2011 U.S. LEXIS 2101, *30 (Mar. 2011). Petitioner therefore requeststhat this Court grant certiorari affirm its readingof Exemption incorporate the common law deliberative process privilege and dispose thedifferent, relaxed test created the D.C. Circuit. 	FOIA Mandates that the Courts Must 
Adhere the Plain Meaning the 
Language Used Congress. this Court recently reiterated, the FOIA was enacted overhaul earlier public records provision that had become more a withholdingstatute than disclosure statute.  Milner, 2011 U.S. LEXIS 2101 (quoting Environmental Protection Agency Mink, 410 U.S. 73, (1973)). For the FOIA escape this same fate, the nine exemptionscontained therein must interpreted narrowly. Id. (The exemptions are explicitly made exclusive and must narrowly construed. (internal citations omitted)); id. *16 (We have often noted the Acts goal broad disclosure and insisted that theexemptions given narrow compass.). avoid overly expansive applications the exemptions and maintain FOIAs status disclosure statute, this Court explained that the lower courts should adhere the plain meaning the language used Congress. Id. 17; id. *30 (holding that odd reading the plain language would produce asweeping exemption, posing the risk that FOIAwould become less disclosure than withholding statute. (internal citations omitted)). addition, the role the courts to enforce that congressionally determined balance rather than assess case case, department bydepartment, and task task whether disclosure interferes with good government. Id. *18. exemption does not permit the withholding information that the government believes the countrys interest withhold, the Government mayof course seek relief from Congress. Id. *34.  This Court concluded, All hold today that Congresshas not enacted the FOIA exemption the Government desires. leave Congress, isappropriate, the question whether should so. Id. 
II. 	The Common Law Deliberative Process Privilege Indisputably Requires Specific Showing Harm. 
Exemption allows agency withhold interagency intra-agency memorandums letterswhich would not available law party other than agency litigation with the agency. 
U.S.C.  552 (b)(5).  Based the plain meaning, thisCourt has recognized that Exemption incorporates the privileges which the Government enjoys underthe relevant statutory and case law the pretrial discovery context. Renegotiation Bd., 421 U.S. 184; see also Mink, 410 U.S. (It appears that Exemption contemplates that the publicsaccess internal memoranda will governed bythe same flexible, commonsense approach that has long governed private parties discovery such documents involved litigation with Government agencies.) (emphasis added).  This Court has affirmed this view the past years.  Weber Aircraft Corp., 465 U.S. 799 (FOIA Exemption incorporates the privileges which the Government enjoys under the relevant statutory and case law the pretrial discovery context.) (citations omitted); see also U.S. Dept Justice Julian, 486 U.S. 11-12 (1988). Similarly, this Court has recognized that [t]he Legislative history Exemption indicates that Congress intended incorporate governmental privileges.  U.S. Weber Aircraft Corp., 465 U.S. 802. the non-FOIA context, this Court has held that for the Government properly claim thedeliberative process privilege must demonstrate that the disclosure [the withheld material] would injurious the consultative functions government. Sears, Roebuck Co., 421 U.S. 149 (quoting Kaiser Aluminum Chem. Corp. U.S., 157 Supp. 939 (Ct. Cl. 1958) (emphasisadded)); see also Mink, 410 U.S. 86. Also, numerous circuits have adopted the three-prong testthat requires the Government make specific showing harm the non-FOIA context.  See Providence Journal Co. United States Dept Army, 981 F.2d 552, 562 (1st Cir. 1992); Branch Phillips Petroleum Co., 638 F.2d 873, 881 (5th Cir.1981); Olson Rug Co. NLRB, 291 F.2d 655, 661 (7th Cir. 1961); Assembly California United States Dept Commerce, 968 F.2d 916, 922-923 (9thCir. 1992); Landry FDIC, 204 F.3d 1125, 1135 
(D.C. Cir. 2000). 
The D.C. Circuit succinctly explained this well-established, common law deliberative processprivilege requiring the Government include a description the documents involved, statement the department head that she has reviewed the documents involved, and assessment the consequences disclosure the information. Northrop Corp. McDonnell Douglas Corp., 751 F.2d 395, 405 (D.C. Cir. 1984) (emphasis added). Based this Courts precedent well rulings from numerous circuits, clear that the deliberative process privilege enjoyed the Government the pretrial discovery context requires specific showing harm. 
III. 	The D.C. Circuit Has Created 
Different, Relaxed Test for the 
Deliberative  Process Privilege 
  the FOIA Context. 

The D.C. Circuits ruling McKinley makes clear that, the FOIA context, governmentagency not required make specific showing harm properly withhold material under thedeliberative process privilege. McKinley, 647 F.3d 338 (App. 19a). This relaxed, two-prong test has also been recognized other circuits. See Florida House Representatives United States Dept Commerce, 961 F.2d 941, 948 (11th Cir. 1992) (The
D.C. Circuit has expressed its lingering skepticism whether fact-specific chilling inquiry necessary support nondisclosure under Exemption 5.) (quoting Quarles Department Navy, 893 F.2d 390, 393 (D.C. Cir. 1990)); see also Trentadue Integrity Committee, 501 F.3d 1215, 1227 (10th Cir. 2007) (Under the deliberative process privilege Exemption two requirements areclear: Privileged documents must both predecisional and deliberative.). other words, light the D.C. Circuits ruling McKinley, clear that, the FOIA context, government agency only required satisfy the relaxed, two-prong test that does not require make specific showing harm properly withhold material under the deliberative process privilege.  Petitioner therefore requests that this Court grant certiorari require that government agency, the FOIA-context, satisfy the three-prong test that exists the pretrial discovery context. McKinley, 647 F.3d 338 (App. 19a). eliminating one the elements thecommon law deliberative process privilege, the D.C. Circuit has created different, relaxed test exclusive the FOIA context. Such new test contrary tothe plain language U.S.C.  552(b)(5) and indirect contradiction with this Courts precedent that FOIA Exemption does not create any new governmental privileges. FOIA Exemption onlyincorporates those privileges that exist the pretrial discovery context. 
IV. 	The D.C. Circuits Relaxed, Two-Prong Test Eviscerates the FOIA    Disclosure Statute. 
This case presents important question offederal law because the D.C. Circuits ruling McKinley eliminates element the well-established common law deliberative processprivilege. doing so, the D.C. Circuit has eviscerated the FOIA disclosure statute bycontradicting the plain meaning the statute and this Courts precedent that FOIA Exemption only incorporates the privileges that the Governmentenjoys the pretrial discovery context. Byabandoning the three-prong test required the Government the non-FOIA context and notrequiring government agency the FOIA contextto make specific showing harm, the D.C. Circuit has relaxed the standard under which government agency may properly withhold material from thepublic. 
Under the relaxed, two-prong test, foreseeable that government agency will assert the deliberative process privilege over almost all material. Without specific showing harm, agovernment agency only needs demonstrate thatthe withheld material predecisional and deliberative. This relaxed, two-prong test can beeasily satisfied.1 Therefore, this Court does not grant certiorari and overturn the lower courts ruling, the deliberative process privilege Exemption will remain a sweeping exemptionand the FOIA will continue less a disclosure than withholding statute. Milner, 2011 U.S. LEXIS 2101 *30. For example, employee transmits record thatindicates how many reams paper were used the month before and the supervisor uses that record decide how many reams purchase the following month, that record arguably could be,and will most likely be, withheld under the deliberative process privilege even though there possibility that the release ofthat record would harm the government agencys decisionmaking process. 

CONCLUSION 
Based its ruling McKinley, clear that the D.C. Circuit has failed narrowly construeFOIA Exemption and has created sweeping exemption. has abandoned the three-prong testrequired the Government the non-FOIA contextand, instead, has adopted relaxed, two-prong test that does not require government agency theFOIA context make specific showing harm.For the foregoing reasons, the petition for writ certiorari should granted. 
Respectfully submitted, 
Paul Orfanedes Counsel Record JUDICIAL WATCH, INC. 425 Third Street, S.W., Suite 800 Washington,  20024 porfanedes@judicialwatch.org
(202) 646-5172 
Counsel for Petitioner 
United States Court Appeals 
FOR THE DISTRICT COLUMBIA CIRCUIT 

No. 10-5353     September Term 2010 Filed On: June 2011 
Vern McKinley, 
   Appellant 
Board Governors the Federal Reserve System, 
   Appellee 
Appeal from the United States District Court 
for the District Columbia 
(No. 1:09-cv-01263) 

Before: HENDERSON, GARLAND and GRIFFITH, Circuit Judges 
This cause came heard the record appeal from the United States District Court for the District Columbia and was arguedby counsel. consideration thereof, ORDERED and ADJUDGED that the judgment ofthe District Court appealed from this cause hereby affirmed, accordance with the opinion the court filed herein this date. 
Per Curiam
    FOR THE COURT: 
    Mark Langer, Clerk
 BY: /s/
    Jennifer Clark
    Deputy Clerk 
Date: June 2011 
Opinion for the court filed Circuit JudgeHenderson. 
United States Court Appeals 

FOR THE DISTRICT COLUMBIA CIRCUIT 
Argued April 21, 2011 Decided June 2011 
No. 10-5353 
VERN MCKINLEY, 
APPELLANT 
BOARD GOVERNORS THE FEDERAL 
RESERVE SYSTEM, 
APPELLEE 

Appeal from the United States District Court 
for the District Columbia 
(No. 1:09-cv-01263) 

      Michael Bekesha argued the cause for the appellant. Paul Orfanedes was the brief. 
      Samantha Chaifetz, Attorney, United StatesDepartment Justice, argued the cause for the appellee. Tony West, Assistant Attorney General, Beth Brinkmann, Deputy Assistant Attorney General, Mark Stern, Attorney, Katherine Wheatley, Associate General Counsel, Board Governors the Federal Reserve System, and Yvonne Mizusawa, Senior Counsel, were the brief. Craig Lawrence, Assistant United States Attorney, entered appearance. 
Before: HENDERSON, GARLAND and GRIFFITH, Circuit Judges. 
      Opinion for the Court filed Circuit JudgeHENDERSON. 
     KAREN LECRAFT HENDERSON, Circuit Judge: December 2008 Vern McKinley (McKinley)submitted request pursuant the Freedom ofInformation Act (FOIA), U.S.C.  552, the Boardof Governors the Federal Reserve System (Board)seeking information related the Boards March 14, 2008 decision authorize the Federal Reserve Bank New York (FRBNY) provide temporary loan The Bear Stearns Companies Inc. (Bear Stearns) through extension credit JPMorgan Chase Co. (JP Morgan). The Board produced documents inresponse McKinleys request but withheld others pursuant FOIA Exemptions and 8.McKinley filed suit district court compel disclosure the withheld documents. now appeals the district courts entry summaryjudgment favor the Board. begin with brief overview the FederalReserve System before describing the events surrounding the Boards March 14, 2008 loan decision and McKinleys FOIA request. Overview Federal Reserve System 
The Congress created the Federal Reserve System 1913 serve the nations central bank. not single entity but rather composite ofseveral parts, both public and private, organized regional basis with central governmental supervisory authority. Reuss Balles, 584 F.2d 461, 462 (D.C.Cir. 1978). Two the parts are relevant herethe Board and the Federal Reserve Banks (Reserve Banks). The Board, composed ofseven members appointed the President andconfirmed the Senate, the central supervisory authority the Federal Reserve System. U.S.C. 
241. There are currently twelve Reserve Banks, eachlocated and operating within specific region the country.1 bank organized under the laws any State the District Columbia may apply theBoard join the Federal Reserve System. U.S.C. 321. joining, the bank purchases stock theReserve Bank responsible for the region the country where the bank located and therebybecomes member bank. Id. Additionally, all national banks, that is, banks chartered under the National Bank Act 1864 (formerly Act June 3,1864, ch. 106, Stat. 99) (codified amended inscattered sections U.S.C.); see Indep. Ins. Agents Am., Inc. Hawke, 211 F.3d 638, 640 (D.C.Cir. 2000) (The National Bank Act 1864 amended, provides for the chartering nationalbanks.), must join the Federal Reserve System 
The Board can readjust the federal reserve districts, subject the requirement that there least eight and nomore than twelve. U.S.C.  222. 
purchasing stock the Reserve Bank located its district. U.S.C.  222. The Reserve Banks, then,are private corporations whose stock owned bythe member commercial banks within their districts. Comm. for Monetary Reform Bd. Governors Fed. Reserve Sys., 766 F.2d 538, 540 
(D.C. Cir. 1985). Accordingly, they have the power make contracts, sue and sued, appoint president and vice presidents, prescribe bylawsand perform other acts consistent with private corporation. U.S.C.  341. 
Notwithstanding the foregoing powers, the Boardexercises significant supervisory authority over theReserve Banks. For example, the Board appoints three the nine directors each Reserve Bank, 
U.S.C.  302; the Board approves the compensation Reserve Bank pays its directors, id.  307; theBoard approves each Reserve Banks selection itspresident and first vice president, id.  341; the Board can suspend remove any officer director Reserve Bank, id.  248(f); and the Board canexamine its discretion the accounts, books, and affairs each Federal reserve bank and each member bank and require such statements andreports may deem necessary, id.  248(a)(1).The Reserve Banks are authorized lend money tomember banks. Id.  343. In unusual and exigent circumstances, the [Board] may authorize any Federal reserve bank lend money nonmember institution. Id.  343(A). Before doing so,however, the Reserve Bank must obtain evidence that [the institution] unable secure adequate credit accommodations from other bankinginstitutions. Id. Bear Stearns Financing and FOIA Request early March 2008 the Board became aware that Bear Stearns, important participant manyfinancial markets, was experiencing severe liquidity problems and might soon declare bankruptcy.Stefansson Decl.  7.2 Bear Stearns was holding company comprised partly registered broker-dealers and, such, was regulated the United States Securities and Exchange Commission (SEC),not the Board. Winter Decl.  10-11.3 Moreover, because Bear Stearns was not depository institution, was ineligible borrow through theFederal Reserves regular short-term lendingprogram. Stefansson Decl.  The tools with which the Board could respond Bear Stearnss liquidityproblems were accordingly limited. Believing that Bear Stearns bankruptcy would have far-reachingand negative effects financial markets, however, the Board and Reserve Bank staff surveyed thoseinstitutions subject the Boards regulation toassess their exposure Bear Stearns. Id.  particular, they sought ascertain the exposure  Coryann Stefansson Associate Director the Boards Division Banking Supervision and Regulation, position shehas held since May 2007. Previously she was FRBNY Assistant Vice President Bank Supervision and Regulationfrom 1998 until 2007. Stefansson Decl.   Margaret Winter the FOIA and Privacy Act Officer theUnited States Securities and Exchange Commission. WinterDecl. 
large complex banking organizations (LCBOs).4 Id. March 13, 2008 the SEC notified the Board and the FRBNY that Bear Stearns had inadequateresources meet its obligations and planned declare bankruptcy the following morning. Id.  The Board met the following dayMarch 14anddetermined that, given the fragile condition thefinancial markets the time, the prominentposition Bear Stearns those markets, and the expected contagion that would result from the immediate failure Bear Stearns, the best alternative available was provide temporary emergency financing Bear Stearns through anarrangement with JPMorgan Chase Co. ThroDecl. Ex. (minutes Board 3/14/08 meeting).5 The Board accordingly authorized the FRBNY toextend credit Morgan allow Morgan toprovide temporary loan Bear Stearns. The FRBNY, turn, approved the loan.6 The loan  LCBOs are characterized the scope and complexity oftheir domestic and international operations; their participationin large volume payment and settlement systems; the extent oftheir custody operations and fiduciary activities; and the complexity their regulatory structure, both domestically and foreign jurisdictions. designated LCBO, bankholding company foreign banking organization supervised bythe Federal Reserve must meet specified criteria considered significant participant least one critical orother key financial market. Stefansson Decl.   Alison Thro the most senior attorney the Boards LegalDivision responsible for reviewing FOIA requests. Thro Decl.   The FRBNY made the loan through Morgan because BearStearns was not depository institution and therefore was not 
allowed Bear Stearns avoid filing for bankruptcybut, March 16, the Board and the FRBNY authorized second loan Morgan facilitateJP Morgans acquisition Bear Stearns. December 2008 McKinley submitted theBoard FOIA request for further detail information contained the [March 14, 2008] minutes the Board. Thro Decl. Ex. (FOIA request). specifically sought any supporting memos other information that detail the expected contagion that would result from the immediate failure Bear Stearns and the related conclusion that this action was necessary prevent, correct, mitigate serious harm the economy financialstability described the meeting minutes. Id. 
After having received response from the Board July 2009, McKinley filed complaint district court seeking declaratory judgment that FOIA entitles him disclosure the information requested and seeking disclosure that information. Compl.  36-47. The Board thenproduced 120 pages previously released publicly available documents August 11, 2009. McKinley FDIC, 744 Supp. 128, 133 (D.D.C. 2010). 
eligible receive funds directly from the FRBNYs discount window. Stefansson Decl.  The Discount Window the long-standing program through which the twelve Federal Reserve Banks make short term loans (often overnight) todepository institutions, and can serve emergency, backup source liquidity for borrowing depository institutions thatlack other options. Bloomberg, L.P. Bd. Governors Fed. Reserve Sys., 601 F.3d 143, 145-46 n.1 (2d Cir. 2010) (internal quotation marks omitted). 
September 30, 2009 the Board produced additional forty-eight pages full and twenty-seven pages with information redacted. Id. also identified and withheld 163 pages pursuant FOIAExemptions and Id. Eight the 163 withheld pages originated with the SEC and theBoard referred the disclosure determination regarding those documents the SEC.7 Id. The remaining withheld pages contain information collected and used the Board and the FRBNY assess the exposure regulated financial institutions Bear Stearns well communications between Board and FRBNY personnel. See Thro Decl.  17-23 (describingwithheld documents); Stefansson Decl. 12-14 (same). January 2010 the SEC informed McKinleythat was withholding the eight documents referredto the Board pursuant FOIA Exemptions 5and Winter Decl.  
The Board moved for summary judgment onFebruary 2010 and McKinley filed cross-motionfor summary judgment. The Board produced Vaughn index identifying the withheld material bydocument (rather than page), briefly describing the withheld material and listing the FOIA exemptionpursuant which the document was withheld. See Vaughn Rosen, 484 F.2d 820, 826-28 (D.C. Cir.1973). McKinley does not challenge the Boardswithholding five documents pursuant FOIA  McKinley does not discuss the SEC documents appeal and has thus waived any challenge the withholding those documents. See New York EPA, 413 F.3d (D.C. Cir.2005) (argument not raised opening brief waived). 
Exemption challenges only the Boards reliance FOIA Exemptions and The district court held that the withheld documents are protected from disclosure FOIA Exemption or, the alternative, Exemption and granted summary judgment favor the Board. McKinley, 744 Supp. 135-45. The court did not address the applicability vel non FOIA Exemption 4.8 Id. 145. McKinley timely filed notice appeal. 
II. review the district courts grant summaryjudgment novo. Sussman U.S. Marshals Serv., 494 F.3d 1106, 1111-12 (D.C. Cir. 2007). Summary judgment proper there genuine issue toany material fact and the moving party entitled tojudgment matter law. Id. 
FOIA requires federal agencies disclose records upon request unless the records fall within one ormore enumerated exemptions. Dept Interior Klamath Water Users Protective Assn, 532 U.S. (2001); see U.S.C.  552. The exemptions arenarrowly construed not obscure the basic policy that disclosure, not secrecy, the dominant objective the Act.  Klamath, 532 U.S. (quoting Dept Air Force Rose, 425 U.S. 352, 361 (1976)). The relevant exemption Exemption 5,which allows agency withhold disclosure 
  McKinleys complaint originally included FOIA claims against the Federal Deposit Insurance Corporation but they were ultimately dismissed moot. McKinley, 744 Supp. 131 n.1 (internal citations omitted). 
record the record meets two requirements: (1) isan inter-agency intra-agency memorandum[] orletter[] that (2) would not available law party other than agency litigation with theagency.9 U.S.C.  552(b)(5). McKinley argues thewithheld material fails satisfy both requirements. Inter-Agency Intra-Agency Memoranda 
The Board concedes that the Federal Reserve Banks, including the FRBNY, are not federal agencies and therefore the withheld documents arenot inter-agency memoranda. The Board further concedes that the Reserve Banks are not componentsof the Board, which concession would appear todisqualify the withheld documents from constitutingintraagency memoranda letters. Under the consultant corollary Exemption however, interpret intra-agency to include agency records containing comments solicited from nongovernmental parties. Natl Inst. Military Justice U.S.Dept Defense (NIMJ), 512 F.3d 677,680, 682 (D.C. Cir.), cert. denied, 129 Ct. 775 (2008). When agency record submitted outside consultants part the deliberativeprocess, and was solicited the agency, find entirely reasonable deem the resulting document Because conclude that Exemption shields from disclosure all the withheld documents, not reach the applicability vel non Exemption which allows agency withhold disclosure record contained related examination, operating, condition reports prepared by, onbehalf of, for the use agency responsible for the regulation supervision financial institutions. U.S.C.  552(b)(8). intraagency memorandum for purposes ofdetermining the applicability Exemption 5. Id. 680 (quoting Ryan Dept Justice, 617 F.2d 781, 790 (D.C. Cir. 1980)). Thus held NIMJ that the consultant corollary protected opinions and recommendations submitted non-governmental lawyers the United States Department Defense regarding the establishment military commissions try suspected terrorists after the September 11,2001 attacks. Id. 678-79. 
McKinley does not dispute the consultant corollary but challenges its application thewithheld documents two grounds. First, inreliance the holding Department Interior Klamath Water Users Protective Assn, 532 U.S. (2001), argues the Board failed demonstrate that the FRBNYs interest identical that the Board. issue Klamath was FOIA requestsubmitted the United States Department theInteriors Bureau Indian Affairs (Bureau) seekingdisclosure communications between the Bureau and certain Indian tribesnamely, six documentsprepared Indian tribes the Bureaus request and one document prepared the Bureau, all which related the allocation water rights among competing users/uses. 532 U.S. The UnitedStates Supreme Court held that the requested documents were not protected from disclosure under Exemption The Court noted that the typical case which court applies the consultant corollary, the consultant does not represent aninterest its own, the interest any other client, when advises the agency that hires it. Id. 11. 
[The consultants] only obligations are truth and its sense what good judgment calls for, and those respects the consultant functions just anemployee would expected do. Id. The Indian tribes, contrast, necessarily communicate withthe Bureau with their own, albeit entirely legitimate, interests mind. Id. 12. Althoughthat fact alone distinguishes tribal communicationsfrom the consultants examples recognized severalCourts Appeals, the Court explained that the distinction even sharper, that the [Indian]Tribes are self-advocates the expense othersseeking benefits inadequate satisfy everyone. Id. Lest there any confusion, the Court restated thedispositive point: that the apparent object the Tribes communications decision agency the Government support claim the Tribe thatis necessarily adverse the interests competitors. Id. 14. 
Unlike the Indian tribes, the FRBNY [did] not represent interest its own, the interest any other client, when advise[d] the [Board] onthe Bear Stearns loan. Id. 11. McKinleys counsel acknowledged oral argument, the FRBNYis operating arm the Board. Oral Arg. 11:00
11:05. McKinley nonetheless claims that the FRBNYrepresented its own interest its consultations with the Board regarding Bear Stearns because theFRBNY had independent statutory duty toobtain evidence that [Bear Stearns was] unable secure adequate credit accommodations from other banking institutions before making the loan. See 
U.S.C.
  343(A). That the FRBNY had obtain such 

evidence before could approve the loan authorizedby the Board does not mean its interest diverged from the Boards interest, however, and claim otherwise, believe, misconstrues the nature the Federal Reserve System. The Board, together withthe Federal Open Market Committeea bodycomposed the Board members and five presidentsor first vice presidents the Reserve Banks, 

U.S.C.
  263are statutorily mandated maintainlong run growth the monetary and credit aggregates commensurate with the economys long run potential increase production, promote effectively the goals maximum employment, stable prices, and moderate long-terminterest rates, U.S.C.  225a. See Fasano Fed. Reserve Bank N.Y., 457 F.3d 274, 277-78 (3d Cir.2006) (The individual Federal Reserve Banks serveas the foundation for the Federal Reserve System. The individual Federal Reserve Banks carry out the monetary policy formulated [by the Federal OpenMarket Committee]. The Board loosely oversees the Federal Reserve Banks operations.), cert. denied, 549 U.S. 1115 (2007). Board regulations make clear that [t]he Federal Reserve System extends credit with due regard the basic objectives monetary policy and the maintenance soundand orderly financial system. C.F.R.  201.1(b). noted, the Board and Reserve Banks work together to assist achieving national economic goals through [the Reserve Systems] influence onthe availability and cost bank reserves, bank credit, and money. Reuss Balles, 584 F.2d 461, 462 (D.C. Cir. 1978). The key success the[Reserve] System harmonious interaction between 

and among [its] component parts. Id. Statutes, regulations and case law make clear, therefore, thatthe Board and the Reserve Banks share common goal, namely the maintenance sound andorderly financial system. C.F.R.  201.1(b). Thatthe Congress requires both the Board and the relevant Reserve Bank (here, FRBNY) separately todetermine that the loan made Bear Stearns through Morgan promotes the maintenance asound and orderly financial system does not meanthat the Boards and the FRBNYs interests diverged deciding make the loan. 
McKinley also claims the Board failed show solicited the withheld material from the FRBNY our precedent requires. See, e.g., NIMJ, 512 F.3d 680 ([A]n agency record submitted outsideconsultants part the deliberative process[] and solicited the agency [is] intra-agencymemorandum for purposes determining the applicability Exemption 5. (emphasis added)(internal quotation marks omitted)); id. 681, 683; Ryan, 617 F.2d 790 (withheld records weregenerated initiative from the Department ofJustice, i.e., the questionnaire sent out theDepartment the Senators). The Stefansson declaration, however, adequately demonstrates that the Board solicited the material from the FRBNY. When news Bear Stearnss financial straits reached the Board, began focus the effects ofa Bear Stearns bankruptcy the financial marketsand particularly LCBOs and other organizations supervised the Board. Stefansson Decl.  The Board acted against backdrop significant turmoil and uncertainty the financial markets. Id.  
The deterioration the U.S. housing market late the summer 2007 precipitated sharp rise uncertainty financial markets about the value structured securitized assets. demand for these products fell, funding pressures increased for variety financial institutions. uncertainty grew over the magnitude oflosses financial institutions, these institutions became unwilling lend eachother even against high-quality collateral, asset prices fell, and the availability ofborrowing declined significantly. result, financial institutions faced severe liquidity pressures. These pressures accelerated rapidly between mid-January and mid-March 2008 left unabated, this dynamic posed risk widespreadinsolvencies and severe and protracteddamage the financial system and, ultimately, the economy whole. 
Id.   The Board thus found itself reacting what believed emergency, evidenced itsdecision to provide temporary emergency financingto Bear Stearns. Thro Decl. Ex. (minutes Board3/14/08 meeting) (emphasis added). [A]s part the Boards consideration potential responses BearStearns [sic] funding difficulties and in accordance with well-established supervisory processes, Board and Reserve Bank staff responsible for LCBO supervision surveyed the LCBOs for purposes ofassessing the LCBOs real-time exposures BearStearns. McKinley, 744 Supp. 136 (quoting Stefansson Decl.  8). The monitoring LCBOs and advising the Board their financial condition is administered the Federal Reserve Banks. Stefansson Decl.  see also U.S.C.  248(a)(1)(Board may examine its discretion the accounts, books, and affairs each Federal reserve bank and each member bank and require suchstatements and reports may deem necessary); id.  325 (Federal Reserve member banks aresubject examinations made direction the [Board] the Federal reserve bank examinersselected approved the [Board]); id.  483(Every Federal reserve bank shall all timesfurnish the [Board] such information may demanded concerning the condition any memberbank within the district the said Federal reserve bank.). Thus, aid its deliberative process, the Board sought information from the FRBNY aboutthe financial condition and exposures institutionsmonitored the FRBNY. The FRBNY did notsimply provide the information, unprompted, the Board. 
Accordingly, conclude the withheld material constitutes intra-agency memorandums lettersunder FOIA Exemption turn now the secondprong Exemption Deliberative Process Privilege 
     Intra-agency memoranda are exempt from disclosure under Exemption only they would notbe available law party other than agencyin litigation with the agency. U.S.C.  552(b)(5). satisfy the second requirement Exemption the record must non-disclosable under one the established civil discovery privilegeshere, underthe deliberative process privilege. NIMJ, 512 F.3d 680 n.4 (citing Klamath, 532 U.S. 8-9). Toqualify for Exemption protection under the deliberative process privilege, an agencys materials must both predecisional and part thedeliberative process.   Id. (quoting Formaldehyde Inst. Dept Health Human Servs., 889 F.2d 1118, 1121 (D.C. Cir. 1989)). McKinley acknowledges that the withheld material predecisional but argues that the record deliberative only its disclosure would harm the agencys decisionmaking process. The Congress enacted FOIA Exemption however, precisely because determined that disclosure material that both predecisional and deliberative does harm agencys decisionmakingprocess. have explained, Exemption  
was created protect the deliberative process the government, ensuring thatpersons advisory role would able express their opinions freely agencydecision-makers without fear publicity. the course its day-to-day activities, anagency often needs rely the opinions and recommendations temporary consultants, well its own employees.Such consultations are integral part itsdeliberative process; conduct this processin public view would inhibit frank discussion policy matters and likely impair the quality decisions. 
Ryan, 617 F.2d 789-90; see also Klamath, 532 U.S. 8-9 (The deliberative process privilege rests onthe obvious realization that officials will not communicate candidly among themselves eachremark potential item discovery and front page news, and its object enhance the quality agency decisions protecting open and frankdiscussion among those who make them within theGovernment. (internal quotation marks and citations omitted)); Judicial Watch, Inc. Dept Energy, 412 F.3d 125, 129 (D.C. Cir. 2005) (deliberative process privilege reflect[s] the legislative judgment that the quality administrative decision-making would seriously undermined agencies were forced operate fishbowl because the full and frank exchange ofideas legal policy matters would impossible.  (alteration original) (quoting Tax Analysts IRS, 117 F.3d 607, 617 (D.C. Cir. 1997))); Formaldehyde, 889 F.2d 1125 ([H]umanexperience teaches that those who expect publicdissemination their remarks may well tempercandor with concern for appearances the detriment the decisionmaking process.  (ellipsisand emphasis original) (quoting NLRB Sears, Roebuck Co., 421 U.S. 132, 150-51 (1975))); Coastal States Gas Corp. Dept Energy, 617 F.2d 
854, 866 (D.C. Cir. 1980) (deliberative process privilege protects documents which would inaccurately reflect prematurely disclose theviews the agency). Our role not second-guess that congressional judgment case-by-case basis.Attempting so, moreover, would proveimpracticable: would impossible for courts administer rule law the effect that some but not all information about the decisional process may disclosed without violating Exemption Courts would becomeenmeshed continual process estimating or, more accurately, guessingabout the adverse effects the decisional process great variety combinations ofpieces information. That would inevitablylead courts some occasions undercut legitimate Exemption protections. Indeed, such procedure would not result rule all. Agencies would have pass onrequests wholly impressionistically, subjectto the impressionistic second-guessing the courts. That hardly satisfactory efficient way implementing FOIA. 
Wolfe Dept Health Human Servs., 839 F.2d 768, 775 (D.C. Cir. 1988) (en banc). 
Moreover, the Board has demonstrated that disclosure the withheld material would discourage candid discussion within the agency andthereby undermine the agencys ability perform its functions. Formaldehyde, 889 F.2d 1122 (internal quotation marks omitted). part thebank supervisory process, [s]upervisedinstitutions frequently provide [Board and ReserveBank examiners] with detailed, highly sensitivecommercial information that they notcustomarily disclose the public, disclosure which is likely cause substantial competitiveharm the LCBOs. Stefansson Decl.  15. Forexample, LCBO competitor could use the information to assess sensitive tradingrelationships and credit relationships and couldexploit the information weaken specificentity and cause weaknesses its liquidity position pull[ing] accelerat[ing] funding facilities the competitor had outstanding the LCBO. Id. competitor could also use the data underbid theLCBO the private funding markets. Id. Information that revealed the LCBO faced funding shortage could cause some retail and commercial customers move their business other banks and may cause analysts downgrade the LCBOs stock. Id. short, information collected the Board and Reserve Banks from supervised institutions could harm those institutions disclosed the public. For that reason, [s]upervisedinstitutions rely bank supervisors protect theconfidentiality information obtained through thesupervisory process and are willing provide thisinformation because they know that the supervisors will maintain its confidentiality. Id. The Board and Reserve Banks rely the willingness supervised institutions provide full information order toassure robust supervisory environment. Id. supervised institutions longer believe the Boardcould would maintain the confidentiality ofinformation collects through the supervisoryprocess, they would less willing provide the Board with the information needs to assure robust supervisory environment. Disclosure the type information withheld here, therefore, would impair the Boards ability obtain necessaryinformation the future[] and could chill the free flow information between the [supervised]institutions and the Board and Reserve Bank[s]. Id.; see also Winter Decl.  (Release this type ofinformation would have inhibitive effect upon the development policy and administrative direction. opinion, SEC employees would hesitate tooffer their candid opinions superiors coworkers, well colleagues other federal agencies, they knew that their opinions the moment might made matter public record some futuredate.). Attorney Work Product Privilege 
The Board also withheld one document under Exemption pursuant the attorney work product privilege. See Judicial Watch, Inc. Dept Justice, 432 F.3d 366, 369 (D.C. Cir. 2005) (FOIAExemption incorporates the work-product doctrine and protects against the disclosure attorney workproduct.). The work-product doctrine shields materials prepared anticipation litigation fortrial for another party for that otherpartys representative (including the other partys attorney, consultant, surety, indemnitor, insurer, agent). Id. (quoting Fed. Civ. 26(b)(3)).According the Board, the withheld document wasprepared FRBNY attorneys anticipation oflitigation Bear Stearns shareholders related the Boards authorization extend credit [BearStearns] indirectly through [JP Morgan]. VaughnIndex Doc. No. (Joint Appendix 97). appeal,McKinley argues only that the FRBNY does not come within the consultant corollary and for that reason the Board cannot claim the attorney work product privilege. Having concluded that the FRBNYdid indeed act consultant the Board, reject McKinleys argument. The FRBNY, acting theBoards consultant, prepared the withheld documentfor the Board anticipation litigation. Id. Accordingly, the Board properly withheld the document under Exemption 5.10 Bloomberg L.P. Board Governors the Federal Reserve System, 601 F.3d 143, 145-46, 147 (2d Cir. 2010), the Second Circuit recently held that records regarding loans made the twelve Reserve Banks certain private banks April and May 2008specifically the name the borrowing bank,the amount the loan, the origination and maturity dates, andthe collateral givencannot withheld under FOIA Exemption The Board argued before the district court thatthe withheld records were exempt from disclosure under Exemption but declined appeal the district courts adverse ruling Exemption Id. 146. Thus, the Second Circuit did not address the applicability vel non Exemption the requested records. Id. 146-47. Although the district court held the requested records were not protected under Exemption5, did not address the issues relevant here. The court acceptedbecause Bloomberg did not disputethe Boards assertion that the withheld records were inter-agency intra-agency memorandums letters. Bloomberg L.P. Bd. Governors Fed. Reserve Sys., 649 F.Supp. 262, 280-81 
     For the foregoing reasons, affirm the districtcourts grant summary judgment the Board. ordered. 
(S.D.N.Y. 2009). Furthermore, the Board did not rely upon the deliberative process privilege. Id. 281-82. 

UNITED STATES DISTRICT COURT 
FOR THE DISTRICT COLUMBIA
VERN McKINLEY,
Plaintiff, No. 09cv1263 (ESH)
)FEDERAL DEPOSIT )INSURANCE  CORPORATION
)and
)BOARD GOVERNORS )OF THE FEDERAL )RESERVE SYSTEM,
Defendants. 
______________________________ 

2010 U.S. Dist. LEXIS 103045 

September 29, 2010, Decided
September 29, 2010 Filed 

COUNSEL: 
For VERN MCKINLEY, plaintiff: Paul Orfanedes, Michael Bekesha, JUDICIAL WATCH, INC., Washington, D.C. 
For FEDERAL DEPOSIT INSURANCE CORPORATION and BOARD GOVERNORS THE FEDERAL RESERVE SYSTEM, defendants: Mark Stern, Samantha Chaifetz, attorneys,Civil Appellate Staff, U.S. Department Justice,Washington, D.C. 
JUDGES: Ellen Segal Huvelle, United States District Judge OPINION BY: Ellen Segal Huvelle 
OPINION: 

 MEMORANDUM OPINION 
Plaintiff Vern McKinley brings this action against the Board Governors the Federal Reserve System (Board) pursuant the Freedom Information Act (FOIA), U.S.C.  552 seq.1 Plaintiff seeks access documents related the Boards March 14, 2008 decision authorize the Federal Reserve Bank New York (FRBNY) extend credit Morgan Chase providetemporary emergency financing The Bear StearnsCompanies Inc. (Bear Stearns). response plaintiffs FOIA request, the Board produced number documents, but withheld redacted others pursuant FOIA Exemptions and  The complaint previously included FOIA claims against theFederal Deposit Insurance Corporation (FDIC). (Complaint,July 2009 [dkt. #1].) However, after the withheld materialwas publicly released, the pending motions pertaining thoseFOIA claims were denied moot and the FDIC was dismissed defendant. (Minute Order, Sept. 2010.) 
U.S.C.  552(b)(4)(5) (8). Before the Court are the parties cross-motions for summary judgment. For the reasons stated herein, the Court will grant the Boards motion for summary judgment and denyplaintiffs motion. 

BACKGROUND 
The Federal Reserve System composed theBoard and twelve regional Federal Reserve Banks. The Board federal agency composed seven members appointed the President and confirmedby the Senate. (Pl.s Statement Material Facts (Pl.s Statement)  (Mar. 2010); Def.s Resp. toPl.s Statement (Def.s Resp.)  (Apr. 22, 2010).) supervises and regulates the operation the Federal Reserve System, promulgates and administers regulations, and plays major role inthe supervision and regulation the United States banking system. (Pl.s Statement  Def.s Resp. at2.) For example, the Board authorized and empowered (1) [t]o examine its discretion the accounts, books, and affairs each Federal reserve bank and each member bank and require suchstatements and reports may deem necessary and (2) [t]o require any depository institution specified this paragraph make, such intervals the Board may prescribe, such reports its liabilities and assets the Board may determineto necessary desirable enable the Board todischarge its responsibility monitor and control monetary and credit aggregates. U.S.C.  248. not, however, authorized extend credit. (Pls Statement  14; Def.s Resp. 4.)  
     The twelve regional Federal Reserve Banks serve the operational arm the nations centralbanking system. (Pl.s Statement  Def.s Resp. at2.) They receive appropriated funds from Congress, but rather are capitalized required contributions from member banks. (Pl.s Statement 11; Def.s Resp. 4.) Each bank separatecorporation that issues stock held depository institutions within its district; each has its own 9member board directors, six whom are elected member banks within the district, and three whom are appointed the Board; and each acts adepository for banks within its district, lender eligible institutions through its discount window, clearing agent for checks, and fulfills other responsibilities for banks within the district. (Pl.s Statement  Def.s Resp. 3.) The regional banks, unlike the Board, are authorized extend credit. (Pl.s Statement  14; Def.s Resp. 4.) early March 2008, the Board became aware ofpotential liquidity problems Bear Stearns, holding company comprised number different financial institutions. (Decl. Coryann Stefansson(Stefansson Decl.)  Decl. Margaret Celia Winter (Winter Decl.)  11.) Thursday, March 13, 2008, Bear Stearns liquidity declined levelsthat were inadequate cover its maturingobligations. (Stefansson Decl.  7.) That evening,the United States Securities and ExchangeCommission (SEC) notified both the Board and the FRBNY, one the twelve regional banks, that things stood Bear Stearns would have file for bankruptcy protection the next day. (Id.) In response the rapidly evolving crisis, Board staff and staff the FRBNY began collecting and sharingreal-time data the exposure various financialinstitutions Bear Stearns, well other information and analyses, assess the gravity ofBear Stearns situation, the possible impact aBear Stearns bankruptcy financial institutionsand markets, and the Boards possible policyresponses. (Def.s Statement Material Facts (Def.s Statement)  (Feb. 2010 (citingStefansson Decl.  7-10).) Among other actions, theBoard surveyed the Large Complex BankingInstitutions (LCBOs) under its supervision assess their exposure Bear Stearns. (Stefansson Decl. 8.) The information gathered was disseminated anddiscussed among Board members and other FederalReserve staff. (Id.  9.)
Ultimately, the Board concluded that a sudden disorderly failure Bear Stearns would have had unpredictable, but severe, consequences thefunctioning financial markets. (Id.  9,10.) However, [b]ecause Bear Stearns was not depository institution, was not eligible obtain financing directly from the FRBNYs discount window. (Id.  7.) Citing these unusual and exigentcircumstances and its authority under section 13(3) the Federal Reserve Act (Decl. Alison Thro (Thro Decl.), Ex. 3), the Board agreed, reflected the minutes its meeting themorning March 14, 2008, that, given the fragile condition the financial markets the time, the prominent position Bear Stearns those markets,and the expected contagion that would result fromthe immediate failure Bear Stearns, the best alternative available was provide temporary emergency financing Bear Stearns through anarrangement with JPMorgan Chase Co. (Id.; Stefansson Decl.  10.) Specifically, the Boardauthorized the FRBNY extend credit Morgan Chase provide temporary loan BearStearns enable meet its financial obligationsand avoid filing for bankruptcy. (Thro Decl., Ex. A.). The FRBNY decided extend the loan, andBear Stearns did not file for bankruptcy.2 December 17, 2008, plaintiff submitted thefollowing FOIA request the Board: requesting further detail information contained the followingminutes the Board Governors the Federal Reserve dated March 14, 2008: 
http://www.federalreserve.gov/newsevents/press/other/other20080627a1.pdf 
The source this power Section 13(3) the Federal Reserve Act. particular, requesting any supporting memos otherinformation that detail the expectedcontagion that would result from the immediate failure Bear Stearns and the related conclusion that this action was necessary prevent, correct, mitigate serious harm the economy financialstability described the meetingminutes. March 16, 2008, the Board authorized the FRBNY extend second loan Morgan Chase connection with its acquisition Bear Stearns. (Thro Decl.  3.). 
(Id.) responding plaintiffs request, Board staff reviewed a document repository containing over28,000 pages information. (Id.  5.) OnAugust 11, 2009, the Board produced 120 pages ofpreviously released publicly available documents.(Id.  Ex. D.) September 30, 2009, the Boardidentified additional 238 pages responsivedocuments. (Id.  10.) From this universe, the Boardproduced pages full, produced pages with information redacted, and withheld 163 pages full, including pages containing information about the financial condition Bear Stearns that had originated with the SEC, which the Board referred tothe SEC for final disposition.3(Id.). The Board basedits withholdings and redactions FOIA Exemptions and (Id.). January 2010, the SECinformed plaintiff that considered the documents referred the Board protected from disclosureunder FOIA Exemptions and/or (Winter Decl.  5.) The Board has produced Vaughn Index, identifying the withheld material Item number (1-38), Bates number(s), physical location the page (where necessary), description the withheldmaterial, and the basis for withholding. (ThroDecl., Ex. (Vaughn Index).)4  The documents produced full have Bates numbers endingin 02-03, 06, 10, 14-16, 18-19, 24-28, 36-37, 40, 42, 45-50 and 215-238; the withheld and redacted pages have Bates numbersending 01, 04-05, 07-09, 11-13, 17, 20-23, 29-35, 38-39, 41, 43-44, 51-214. single Item number may include multiple pages single redaction page. 
Defendant has moved for summary judgment,contending that its application FOIA exemptionswas proper. (Def.s Mot. for Summ. J., Feb. 2010). Its motion supported declarations from Alison Thro, Senior Counsel the Boards LegalDivision, Coryann Stefannson, Associate Director ofthe Boards Division Banking Supervision andRegulation, Margaret Celia Winter, Freedom Information Act and Privacy Act Officer the SEC, and Michelle Danis, senior financial economist the Broker-Dealer Risk Office the SEC Division Trading and Markets (Danis Decl.). (Id.; Def.s Oppn Reply, Apr. 22, 2010.). Plaintiff does not dispute defendants application FOIA Exemption (Item #s 19, 25, and 28), but challenges the applicability FOIA Exemptions and/or (Item #s: 4-22, 24, 26-27, 29-38),5 and cross-moves for summary judgment.6 (Pl.s Cross-Mot. for Summ. J., Mar. 2010). January 28, 2010, after initially withholding it, the Board produced Item #23 (Bates 0046). (Thro Decl.  11.).  Plaintiffs response defendants Statement MaterialFacts states that disputes that the Board has satisfied itsburden demonstrating that conducted adequate search. (Pl. Statement Material Facts  3.) However, plaintiff fails support this statement with any legalargument, the Court need not consider the adequacy the search. 
ANALYSIS STANDARD REVIEW 
The Court may grant motion for summary judgment if the pleadings, the discovery and disclosure materials file, and any affidavits showthat there genuine issue any material factand that the movant entitled judgment amatter law. Fed. Civ. 56(c). The movingparty bears the burden demonstrating absenceof genuine issue material fact dispute. Celotex Corp. Catrett, 477 U.S. 317, 322 (1986). Factualassertions the moving partys affidavits may beaccepted true unless the opposing party submits his own affidavits declarations documentary evidence the contrary. Neal Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992).
FOIA cases typically and appropriately are decided motions for summary judgment. Defenders Wildlife U.S. Border Patrol, 623 Supp. 83, (D.D.C. 2009) (citations omitted). Ina FOIA case, summary judgment may granted the government the agency proves that has fully discharged its obligations under the FOIA, after theunderlying facts and the inferences drawn fromthem are construed the light most favorable the FOIA requester. Fischer U.S, Dept Justice, 596 Supp. 34, (D.D.C. 2009) (quoting Greenberg U.S. Dept Treasury, Supp. 2d3, (D.D.C. 1998))). An agency that has withheldresponsive documents pursuant FOIA exemption can carry its burden prove the applicability the claimed exemption affidavit. 
Larson Dept State, 565 F.3d 857, 862 (D.C. Cir.2009) (citing Ctr. for Natl Sec. Studies U.S. Dept Justice, 331 F.3d 918, 926 (D.C. Cir. 2003)).Summary judgment warranted the basis agency affidavits when the affidavits describe thejustifications for nondisclosure with reasonablyspecific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted eithercontrary evidence the record nor evidence agency bad faith. Id. (quoting Miller Casey, 730 F.2d 773, 776 (D.C. Cir. 1984)); see also Military Audit Project Casey, 656 F.2d 724, 738 (D.C.Cir.1981); Larson, 565 F.3d 862.7 
FOIA represents balance struck Congressbetween the publics right know and the governments legitimate interest keeping certaininformation confidential. Ctr. for Natl Security Studies, 331 F.3d 925 (citing John Doe Agency, 493 U.S. 152). While these exemptions are narrowly construed, FBI Abramson, 456 U.S. 615, 630, courts must not fail give them a meaningfulreach and application, John Doe Agency, 493 U.S. 152. Id. Ultimately, agencys justification forinvoking FOIA exemption sufficient appears logical plausible. Larson, 565 F.3d 862  FOIA provides district courts the option camera review,5 U.S.C.  552(a)(4)(B), but it means compels the exercise that option. Larson, 565 F.3d 862 (internal citations and quotations omitted). the contrary, althoughdistrict courts possess broad discretion regarding whether conduct camera review, [w]hen the agency meets its burden means affidavits, camera review neither necessarynor appropriate. Id. 
(quoting Wolf CIA, 473 F.3d 370, 374-75 (D.C. Cir.2007)). 
II. FOIA Exemption 
FOIA Exemption allows agency withhold inter-agency intra-agency memorandums letters which would not available law party other than agency litigation with theagency. U.S.C.  552 (b)(5). To qualify, document must thus satisfy two conditions: its source must Government agency, and must fall within the ambit privilege against discovery under judicial standard that would govern litigation against the agency that holds it. Dept the Interior
 Klamath Water Users Protective Assn, 532 U.S. (2001); see EPA Mink, 410 U.S. (1973); NLRB
 Sears, 421 U.S. 132, 148 (1975). Among the privileges incorporated FOIA Exemption are the deliberative process privilege and the attorney work product privilege. Klamath, 532 U.S. see Loving Dept Defense, 550 F.3d 32, (D.C. Cir.2008); Baker Hostetler LLP Dept Commerce, 473 F.3d 312, 321 (D.C. Cir. 2006)). The Boardclaims that Exemption protects from disclosure all the material plaintiff seeks (Item #s 4-22, 24,26-27, 29-38). Plaintiff challenges the Boards reliance Exemption several grounds, each ofwhich addressed below. 	Inter-Agency/Intra-Agency 
Communications

     Plaintiff argues that Item #s 4-6, 10-12, 14, 2021, 26-27, 29-34, 36, 37, and are not interagency intra-agency communications becausethey are records and information exchanged byofficials the Board and employees the FRBNYor records information exchanged between the SEC and the FRBNY and the FBRNY not government agency. (Pl. Mem. 27.) The Board concedes that FRBNY not government agency, but argues that Exemption applies nonethelessunder the consultant corollary, pursuant whichintra-agency and inter-agency communicationsinclude agency records containing comments solicited from non-governmental parties whosecounsel [an agency] sought. Natl Institute Military Justice U.S. Dept Defense, 512 F.3d 677, 680 (D.C. Cir. 2008); see also Ryan Dept Justice, 617 F.2d 781, 790 (D.C. Cir. 1980) (Whenan agency record submitted outside consultantsas part the deliberative process, and was solicited the agency, find entirely reasonable deem the resulting document intraagency memorandum for purposes determining the applicability Exemption 5.); Judicial Watch, Inc. Dept Energy, 412 F.3d 125, 129 (D.C. Cir.2005) (documents prepared presidentially-established policy group and held eight different federal agencies were nonetheless intra-agency records because group was created solely advisethe President). 
Plaintiff does not dispute the existence consultant corollary, but argues that defendant hasnot demonstrated that the records issue were created the request the agency [the Board] and for the purpose aiding the agencys deliberativeprocess. (Pl.s Reply (quoting Natl Institute Military Justice, 512 F.3d 681).) Plaintiff arguesthat the Board has failed make the necessaryshowing because [n]owhere does the Board assertthat asked the FRBNY gather and discuss datawith the Board and the Board [does not] assertthat the FRBNY gathered data for the purpose aiding the Boards deliberative process. (Pl. Reply at11-12.) Plaintiffs argument conveniently overlooksthe Stefansson Declaration, which includes those precise assertions. (Stefansson Decl.  8.) For example, her declaration, Stefansson, Associate Director the Boards Division Banking Supervision and Regulation and participant the March 13-14, 2008 events, states that: 
Board members and Board staff were concerned about the effects Bear Stearns bankruptcy would have financial marketsgiven the prominent position Bear Stearns those markets. were also concerned about the impact Bear Stearns bankruptcyfiling would have individual LCBOs [largecomplex banking with well-established supervisory processes, Board and ReserveBank staff responsible for LCBO supervision surveyed the LCBOs for purposes assessing LCBOs real-time exposure Bear 
Stearns. This action was taken part the
Boards consideration potential responses Bear Stearns funding difficulties. 
(Stefansson Decl.  8.)  This statement more than satisfies defendants burden show that the records and information exchanged the Board and theFBRNY were documents submitted non-parties response agencys request for advice. Natl Institute Military Justice, 512 F.3d 681; see also Formaldehyde Inst. Dept Health Human Servs., 889 F.2d 1118 1123 (D.C. Cir.1989) (Whether the author regular agencyemployee temporary consultant irrelevant;the pertinent element the role, any, that the document plays the process agencydeliberations. (internal quotations omitted)). 
Plaintiff also suggests that the consultant corollary cannot apply here because the FBRNYsinterests are not identical the Board. Accordingto plaintiff, the FRBNYs interests diverge from theBoards interests because in enacting Section 13(3) the Federal Reserve Act, Congress gave the Boardthe power authorize Federal Reserve Banks, suchas the FRBNY, extend loans non-banks unusual and exigent circumstances, but gave theFederal Reserve Banks the final say whether actually extend such loans. (Pls Mem. 4.) Moreover, [b]efore the loan could extended, the FRBNY was required law make its ownfinding, specifically, that the recipient the prospective loan is unable secure adequate credit accommodations from other banking institutions.(Id. (quoting U.S.C.  343).) Thus, plaintiff concludes, [t]he FRBNYs role fundamentally different from that outside consultant. The FRBNY, private corporation engaged the business banking, has its own interests andobligations the commercial activity extending loans. (Pls Mem. 3-4.) Accepting plaintiffs description accurate, does not necessarily follow, plaintiff asserts, that it likely that the FRBNY gathered data furtherance its own interests: determine whether would extend emergency loan Bear Stearns. Pl. Reply 12.)More importantly, the critical inquiry not whether FRBNYs interests were all times identical the Boards, but rather whether the FRBNY d[id] notrepresent interest its own, the interest any other client, when advise[d] the [Board], suchthat its only obligations are truth and its sense ofwhat good judgment calls for, and those respects the consultant functions just employee wouldbe expected do. Klamath, 532 U.S. 10-11. Under those circumstances, records submitted outside consultant play[] essentially the same part agencys process deliberation documents prepared agency personnel might have done,notwithstanding the consultants were independent contractors and were not assumed subject tothe degree control that agency employment could have entailed and they were not necessarily devoid definite point view. Natl Institute Military Justice, 512 F.3d 682 (quoting Klamath, 532 U.S. 10). Here, the declarations and the documentsadequately establish that the FRBNY was not representing interest its own when advised the Board, but rather was simply assisting the Boards evaluation the Bear Stearns situation. (See, e.g., Stefansson Decl.  (SEC notified the Board and the Federal Reserve Bank New York that Bear Stearns funding resources were inadequate meet its obligations); id.  (inaccordance with well-established supervisoryprocesses, Board and Reserve Bank staff responsible for LCBO supervision surveyed the LCBOs forpurposes assessing the LCBOs real-time exposureto Bear Stearns); Vaughn Index (Item #1) (email conveyed information supervised institutions exposure Bear Stearns); Vaughn Index (Item#4) (same); Vaughn Index (Item #6) (e-mail conveying information supervised institutionsattempts limit exposure Bear Stearns). 
Accordingly, the Court concludes that Item #s 4-6, 10-12, 14, 20-21, 26-27, 29-34, 36, 37, and are inter intra-agency documents within the meaningof Exemption 	Applicability Deliberative  
  Process Privilege 

    With one exception, see infra  II.C, all theBoards Exemption claims rest the deliberative process privilege. The deliberative process privilegecovers documents reflecting advisory opinions,recommendations and deliberations comprising part process which governmental decisions andpolicies are formulated. Klamath, 532 U.S. (quoting NLRB Sears, 421 U.S. 150.) The privilege rests the obvious realization that officials will not communicate candidly among themselves each remark potential item discovery and front page news, and its object toenhance the quality agency decisions. Id. (quoting NLRB Sears, 421 U.S. 151.); see Mead Data Cent. Inc. U.S. Dept the Air Force, 566 F.2d 242, 256 (D.C. Cir. 1977) (purpose protect the quality administrative decision-making[which] would seriously undermined agencieswere forced operate fishbowl because the full and frank exchange ideas legal policy matters would impossible); Dudman Commcn Corp. Dept the Air Force, 815 F.2d 1565, 1568 
(D.C.
 Cir.1987) (privilege rests most fundamentally the belief that were agencies forced operate ina fishbowl, the frank exchange ideas and opinionswould cease and the quality administrativedecisions would consequently suffer).

     For the deliberative process privilege apply, the material must both predecisional and deliberative. Sealed Case, 121 F.3d 729, 737 

(D.C.
 Cir. 1997); Loving Dept Defense, 550 F.3d 32, (D.C. Cir. 2008). document predecisional generated before the adoption agencypolicy. Coastal States Gas Corp. Dept Energy, 617 F.2d 854, 866 (D.C. Cir.1980). demonstratethat document predecisional, the burden onthe agency establish[ what deliberative processis involved, and the role played the documents inissue the course that process. Id. 868. document deliberative reflects the give-andtake the consultative process. Id. 866. The deliberative process privilege generally does notcover the purely factual portions documents, except cases where the factual material is soinextricably intertwined with the deliberative 

sections documents that its disclosure would inevitably reveal the governments deliberations. Sealed Case, 121 F.3d 737; Quarles Dept the Navy, 893 F.2d 390, 392 (D.C. Cir. 1990)(disclosure certain factual information can expose agencys decision-making process such way discourage candid discussion within theagency and thereby undermine the agencys abilityto perform its functions); Dudman, 815 F.2d 1568. 
Plaintiff challenges the Boards invocation the deliberative process privilege two grounds: (1)that the Board improperly withheld purely factual information; and (2) the Board fails show that release the withheld material will cause harm the deliberative process.8 Factual Information 
The Board states front that has withheldcertain factual material that itself deliberative. (Mem. Support Def.s Mot. for Summ. 15.) Plaintiff challenges this claim the ground that theBoard has not demonstrated that disclosure the factual material issue financial statistics, one point plaintiff also asserts that the deliberative process privilege qualified privilege and can overcomeby sufficient showing need. (Pl.s Mem. Oppn 28(quoting Sealed Case, 121 F.3d 737).) However, well-established that [a] courts decision discovery casemay rest part assessment the particularized need ofthe party seeking discovery, but FOIA suit, the court doesnot consider the needs the requestor. See EPA Mink, 410 
U.S. 86. 
pricing and exposure data, and the identities ofvarious financial institutions itself will reveal any deliberations judgment calls Board officials deciding authorize emergency loan BearStearns. (Pl. Mem. Oppn 29.) Plaintiff directs the Courts attention three examples what considers improperly withheld factual information (Items 139, 1610, and 2011).12 Plaintiff argues that  Item email from Board analyst March 13, 2008, 5:40 p.m. that states, Here are exposures [Bear Stearns]that have now. The Vaughn index describes the withheld material Identification LFIs  and the nature and scope their exposure BS.  Item No. email from Board official March 13, 2008, 10:18 p.m. that, Gov. Kohn and are still the office. Based [Bear Stearns] global operations, you know ifanyone has talked with the [Financial Services Authority] inLondon? [REDACTED MATERIAL] have pulled together the exposure the [Large Financial Institutions] [BearStearns] but information from the last monthly reports. Vaughn index describes the withheld material five sentences that describe[] conversation between Scott Alvarez, General the Board, and member Board staff, regarding the projected regulatory response BSs funding position, and Board staff members subsequent contact withanother federal agency concerning the situation BS.  Item No. email from Board official March 14, 2008, 5:48 a.m. that states: I just got off call with folks at[the FRBNY]. Below chart with exposures. Im way into the office. The Vaughn index describes the withheld material table, that identifies BSs projected cash flows, well FRS-supervised LFIs with exposure and the relative size the exposure the institution question.  Plaintiff also refers Item 19, but item simply the redaction personal cell phone number. The attachment 
[i]f anything, the factual data the Board seeks towithhold from Plaintiff reflects frantic scramble the evening March 13, 2008 and the earlymorning March 14, 2008 gather much raw data possible, not any careful considered culling facts that would reveal the exercise ofagency judgment. (Pl. Mem. Oppn 30.)
The Board responds that plaintiff fails perceive that the very act the Board (or certain cases, the Securities Exchange Commission) reaching out request specific financial information from specific institutions was itself part thedeliberative process. (Board Oppn Reply 2.) Asan example, the Board points Item from whichthe Board withheld the identities two financial firms and one regulated financial institution because they reveal[] the identities institutionsthat FRS staff considered systemicallyimportant whose failure could have systemicconsequences the financial system . (ThroDecl., Ex. Item 8.) explained the Board: 
In other words, there were certain financial institutions whose failure (possibly prompted Bear Stearns bankruptcy) the Board believed could have ripple effects across thefinancial system large. The possibleimpact Bear Stearns bankruptcy onthese institutions played important partin the Boards deliberations leading itsdecision authorize the Temporary Loan,see Stefansson Decl.,  and revealing their 
the e-mail the spreadsheet showing Bear Stearns exposure  the document (Item #20; Bates 00041) that withheld. 
names would tantamount revealing the 
Boards decision making process. 
(Def.s Oppn Reply 11.) support its argument, the Board cites two cases: Quarles Dept the Navy, 893 F.2d 390 (D.C. Cir. 1990), and Montrose Chemical Corp. Train, 491 F.2d (D.C.Cir. 1974.) Quarles, the court upheld the withholding certain cost estimates made byagency officials because the estimates themselvesreflected the exercise the agencys judgment. Montrose, the court upheld the withholding offactual summaries made agency official based evidence entered into the lengthy record apublic hearing. Plaintiff contends that the present case differs substantially from Quarles and Montrose because all that seeks released raw market data. The Court disagrees. 
Having reviewed the Items plaintiff identifies asimproperly withheld and the entire record, the Court persuaded that defendant has adequatelyestablished that disclosing the withheld factualmaterial would reveal the Boards deliberative process. Montrose, the court observed that [t]hework the assistants separating the wheat fromthe chaff surely just much part the deliberative process the later milling byrunning the grist through the mind the administrator. Montrose, 491 F.2d 71. Similarlyhere, defendant puts it, [t]he work Board andFRBNY staff reaching out and culling certainfinancial statistics and exposure data, and theidentities certain financial institutions, for consideration the Board from the mass data available itself deliberative. (Def.s Oppn Reply 11.) For example, the Thro declarationdescribes Item #13, among others, document conveying discussing data gathered ReserveBank examiners concerning supervised financialinstitutions and their exposure Bear Stearns anddeclaring that the information was gathered for andcommunicated and discussed Board members and Board and Reserve Bank staff connection with the Boards decision because bore the significant issue the potential consequences aBear Stearns bankruptcy individual financialinstitutions and firms and then-fragile financialmarkets. (Thro Decl.  17.) Items #16 and #20,among others, are described e-mails conveyingmarket developments and analyses related apotential bankruptcy Bear Stearns; methods obtaining information regarding financial institutions exposure Bear Stearns; proposedregulatory responses the situation; and arguments and considerations regarding the need for the Temporary Loan and that this information andthese analyses were considered the Board andstaff advising the Board part the ongoing process deliberation. Accordingly, the Court isconvinced that disclosure the requested factualsummar[y] prepared [for] decisionmakers would expose [the Boards] decisionmaking process such way discourage candid discussion within theagency and thereby undermine the agencys abilityto perform its functions. Quarles, 893 F.2d 392 (quoting Dudman, 815 F.2d 1568). Harm Decision-Making Process 
Plaintiff also argues that defendant has failed toestablish the applicability the deliberative processprivilege because defendant has not demonstratedthat disclosure the withheld records information would cause harm its decision-making process. (Pl. Mem. Oppn 30.) However, once ithas been shown that document both predecisional and deliberative, such showing legally required.
Plaintiff bases his argument the followinglanguage from Mead Data, 566 F.2d 258: An agency cannot meet its statutory burden justification conclusory allegations possibleharm. must show specific and detailed proof that disclosure would defeat, rather than further, the purposes FOIA. Plaintiff fails acknowledge,however, that the court Mead Data made this statement considering whether Exemption couldever apply agencys negotiation proceedingswith outside party  i.e. material that wasindisputably not part the agencys internal deliberative process. Id. 257-58. The court held that order for Exemption apply, the agency would have show that the threat disclosure negotiation proceedings would inhibit private parties from dealing with the Government thatagencies must permitted withhold such information order preserve their ability toeffectively arrange for contractual agreement. Id. was only this context that the court suggestedthat more than conclusory allegations possibleharm were required. Id. contrast, that same decision, the court upheld the applicability Exemption other documents where the record established that those documents were both predecisional and part the deliberative process. 
Id. 
Here, defendant has both establish[ed] whatdeliberative process involved, and the role playedby the documents issue the course that process. See Coastal States, 617 F.2d 868 (D.C.Cir. 1980.) Having established that the withhelddocuments were both predecisional and deliberative, defendant not also required toestablish that the release the withheld documents material would cause harm the decision-making process. 	Applicability Attorney Work  
  Product Privilege 

The Board has withheld Item based the attorney work product component Exemption The work-product doctrine shields materials prepared anticipation litigation for trial for another party for that other party'srepresentative (including the other party's attorney, consultant, surety, indemnitor, insurer, agent). Judicial Watch, Inc. Dept Justice, 432 F.3d 366, 371 (D.C. Cir. 2005) (quoting Fed. Civ. 26(b)(3)) Tax Analysts IRS, 117 F.3d 607, 620 (D.C.Cir. 1997). The purpose the privilege, however, notto protect any interest the attorney, who nomore entitled privacy protection than any otherperson, but protect the adversary trial process itself. Coastal States, 617 F.2d 864. While there requirement that actual litigation pending,at the very least some articulable claim, likely tolead litigation, must have arisen. Id. [T]heSupreme Court has made clear [that] the doctrineshould interpreted broadly and held largelyinviolate. Judicial Watch, 432 F.3d 371 (citing Hickman Taylor, 329 U.S. 495, 510-11 (1947)).Thus, [a]ny part document] prepared inanticipation litigation, not just the portions concerning opinions, legal theories, and the like, protected the work product doctrine and falls under exemption 5. Id. 371 (quoting Tax Analysts, 117 F.3d 620). In other words, factualmaterial itself privileged when appears withindocuments that are attorney work product. adocument fully protected work product, then segregability not required. Id. 
The document withheld the Board attorneywork product draft affidavit conveyed FRBNY attorney Board attorneys. (Vaughn Index 39; see also Thro Decl.  22.) According defendant, the affidavit was prepared FRBNY attorneys anticipation litigation Bear Stearns shareholders related the Boards authorization extend credit [Bear Stearns] indirectly through [JP Morgan Chase]. (Id.)
Plaintiff first argues that the document was prepared FRBNY attorney, not the work product the Boards attorney. However, discussed above, because FRBNY personnel wereacting consultants the Board, the work productof FRBNY attorney conveyed the Board isproperly withheld under Exemption Cf. National Institute Military Justice, 512 F.3d 684-85 n.10 (Exemption applies communications between agency and individual non-government lawyers pursuant the consultant corollary principle); see also Hanson U.S. Agency for Intern. Development, 372 F.3d 286, 294 (4th Cir. 2004) (The government has the same right undisclosed legaladvice anticipation litigation any privateparty. And there nothing FOIA that prevents the government from drawing confidential counsel from the private sector. Allowing disclosure herewould impair agencys ability prepareeffectively for litigation with private parties and thereby thwart its ability discharge its functions the public interest.)
Plaintiffs second argument that the Board has not met its burden show that there was some articulable claim, likely lead litigation. (Pls.Mem. Oppn (quoting Coastal States, 617 F.2d 865).) The Court disagrees. The Thro Declaration describes the withheld document affidavit setting out the factual considerations andlegal analyses that had been presented orally the Board prior its decision and prepared due tothe Boards concern about possible litigationstemming from the Boards decision. (Thro Decl.  22.) Moreover, the Board has submitted affidavits establishing that stockholders Bear Stearns had filed several lawsuits March 2008 the Delaware Court Chancery and the SupremeCourt the State New York seeking enjoin JPMorgan, Chase Co.s merger with Bear Stearns. (Def.s Reply 16.) Indeed, the Board points out,the brief from the Delaware Chancery litigation provided the Plaintiff specifically mentions critical actions the Federal Reserve Bank New York that led the merger. (Id. (internal quotationsomitted).) Accordingly, the Court convinced thatit was entirely reasonable for the Board anticipate that it, and/or the FRBNY, might drawn into litigation Bear Stearns shareholders, and prepare for the possibility litigation. (Id.) 

III. FOIA Exemption addition FOIA Exemption defendantrelies FOIA Exemption alternate basis forwithholding thirteen Items (Item #s 10, 11, 12, 13, 17, 18, 21, and 22). FOIA Exemption 8provides that agency may withhold information that contained related the examination, operating condition reports prepared by, onbehalf of, for the use agency responsible for the regulation supervision financial institutions. U.S.C.  552(b)(8). The Board citesExemption declining produce e-mails tables (or portions thereof) that contained information furnished the Board financial institutions regulated the Board. (Thro Decl.  17; Stefansson Decl.  13-15.) Specifically, the Board withheld the identity institutions with exposure Bear Stearns, the amount such exposure, and/orthe activities these institutions had taken limit their exposure Bear Stearns. (See Thro Decl.  17; Steffanson Decl.  15.) Similarly, the Boardwithheld under Exemption information the SEC gathered from Bear Stearns in connection with itssupervision and regulation Bear Stearns. (Winter Decl.  see also Thro Decl.  10, 11, 18.) Plaintiff challenges all defendants Exemption withholdings.
FOIA Exemption serves two purposes: (1) toensure the security financial institutions eliminating the risk that disclosure examination,operation, and condition reports containing frank evaluations the investigated banks that mightundermine public confidence and cause unwarrantedruns banks; and (2) safeguard the relationshipbetween the banks and their supervising agencies because details the bank examinations were made freely available the public and banking competitors, banks would cooperate less than fully with federal authorities. See Public Citizen Farm Credit Admin., 938 F.2d 290, 291 (D.C. Cir. 1991); Consumers Union U.S., Inc. Heimann, 589 F.2d 531, 534 (D.C. Cir. 1978); see also Natl Cmty. Reinv. Coal. Natl Credit Union Admin., 290 Supp. 2d124, 135-36 (D.D.C. 2003)
Although generally FOIA exemptions are benarrowly construed, U.S. Dept Justice Julian, 486 U.S. (1988); Wolf, 473 F.3d 374, well-established that Exemption 8's scope particularly broad. Consumers Union, 589 F.2d 534. Consumers Union, the D.C. Circuit considered FOIA Exemption for the first time and concluded that [i]f the Congress has intentionally and unambiguously crafted particularly broad, all-inclusive definition, not our function, even the FOIA context, subvert that effort. Id. Subsequent decisions have reaffirmed that Exemption provide[s] absolute protection regardless the circumstances underlying the regulatory agencys receipt preparation examination, operating condition reports. Gregory Fed. Deposit Ins. Corp., 631 F.2d 896, 898 
(D.C. Cir. 1980).
Plaintiff acknowledges that Exemption was crafted broadly, but argues that the Board has not met its obligation provide a relatively detailedjustification, specifically identifying the reasons why particular exemption relevant and correlatingthose claims with the particular part withhelddocument which they apply. (Pl.s Mem. (quoting King U.S. Dept Justice, 830 F.2d 210, 219 (D.C. Cir. 1987).) Specifically, plaintiff faults theBoard for not identifying the specific report towhich the information relates.13 
The Boards affidavits establish that the Boards bank supervisory process is one continual interaction and information-sharing regulatedentities with their bank supervisors (StefanssonDecl.  15); that the withheld materials constitutedpart fast moving, real-time effort the Board tomonitor the possible impact Bear Stearns bankruptcy filing financial institutions regulatedby the Board (Stefansson Decl.  4-5, 15; Thro Decl.  17); that Federal Reserve examiners utilizing the Boards supervision authority obtained information from various LCBOs regarding their exposure Bear Stearns effort gaugepossible impact Bear Stearns bankruptcy onregulated financial institutions (Stefansson Decl.  true, plaintiff points out, that the Vaughn index makes mention examination, operating, condition reports with respect its reasons for withholding Item #s 5,6, 10, 13, 17, 18, 21, 22, and 24. However, defendant remedies this omission its affidavits. 
14); that the information was provided based onstrict assurances confidentiality (Stefansson Decl.  14-15; Thro Decl.  17); and that the Boardcreated obtained these documents part its continuous supervision institutions supervised, the hectic days and hours duringwhich the Board and its staff strove assess the impact possible disorderly failure Bear Stearns. (Stefansson Decl.  4-8, 15; Thro Decl.  17.) Similarly, the affidavits establish that BearStearns was supervised the SEC part itsCSE14 program, which was designed monitor for financial operational weakness CSE holding company its unregulated affiliates that mightplace the U.S.-regulated broker-dealers and otherregulated entities risk (Winter Decl. 10); and that the SEC obtained the withheld information connection with its supervision and regulation ofBear Stearns (Danis Decl.  4-5; see also VaughnIndex 11-12 (Items and 11).)
     Under these circumstances, and given the Boards statutory authority require such statements orreports may deem necessary, U.S.C.  248(a), the Board contends that the information itwas receiving real-time about what financialsignificance Bear Stearns failure would have for agiven institution and financial markets more generally properly characterized related examination, operating, condition reports aboutindividual supervised institutio



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