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Judicial Watch • Mckinley v Fdic Replysupport4cm4sj 05202011

Mckinley v Fdic Replysupport4cm4sj 05202011

Mckinley v Fdic Replysupport4cm4sj 05202011

Page 1: Mckinley v Fdic Replysupport4cm4sj 05202011

Category:General

Number of Pages:8

Date Created:May 20, 2011

Date Uploaded to the Library:February 20, 2014

Tags:searches, Lacedra, temporary, Judgment, Reply, support, summary, motion, requests, documents, Secretary, responsive, program, plaintiff, request, records, states, united, court, EPA, IRS, ICE, CIA


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UNITED STATES DISTRICT COURT
 FOR THE DISTRICT COLUMBIA
 
VERN MCKINLEY, 
 Plaintiff,  Case No. 10-00420 (EGS)  

FEDERAL DEPOSIT INSURANCE 
CORPORATION,
 Defendant. 
____________________________________) 

PLAINTIFFS REPLY SUPPORT PLAINTIFFS  CROSS-MOTION FOR SUMMARY JUDGMENT 
Plaintiff Vern McKinley, counsel and pursuant Rule the Federal Rules Civil Procedure, respectfully submits this reply support Plaintiffs cross-motion for summary judgment. grounds therefor, Plaintiff states follows: 

MEMORANDUM LAW Introduction. its Combined Reply Support its Motion for Summary Judgment and Opposition Plaintiffs Cross-Motion for Summary Judgment (Defs Reply), Defendant Federal Deposit Insurance Corporation (FDIC) confuses the issue before this Court. February 23, 2011, the Court ordered the parties brief whether the FDIC has satisfied its obligation conduct reasonable searches for records responsive Plaintiffs requests. its opening brief, the FDIC defined the issue as: The real point contention here the decision FDICs FOIA staff each instance search for responsive records only the [Executive Secretary Section].  Memorandum Support Summary Judgment (Defs Mem.)  Now, the FDIC asserts that the issue whether reasonably interpreted Plaintiffs FOIA requests determining the scope the searches. Defs Reply Yet, these are two different issues with two different standards. 
Instead further confusing the two issues and treating them one, Plaintiff will address each issue individually. doing so, Plaintiff will demonstrate that the FDIC improperly narrowed the scope Plaintiffs requests and subsequently failed conduct reasonable searches for records responsive Plaintiffs requests. 

II. The FDICs Interpretation Plaintiffs Requests was Not Reasonable. 
The first issue that the Court must address whether the FDICs interpretation Plaintiffs requests was reasonable. December 2009, Plaintiff served three FOIA requests the FDIC related the financial crisis 2008 and 2009.  One Plaintiffs requests sought records from the FDIC regarding its October 2008 decision create Temporary Liquidity Guarantee Program provide financial support banks, thrift institutions, and certain bank holding companies.  Plaintiffs other two requests sought records from the FDIC regarding its decisions November 2008 and January 2009 extend such support Citigroup, Inc. and Bank America Corp., respectively.  More specifically, each request asked for: 

[A]ny information available this determination such meeting minutes supporting memos. 
Complaint  8-10 (emphasis added).  The FDIC argues that reasonably interpreted Plaintiffs requests seeking the material that the FDIC Board Directors relied upon those meetings taking those actions.  Defs Reply other words, the FDIC narrowed Plaintiffs three requests only subset what Plaintiff requested.  Yet, the FDICs narrowing Plaintiffs requests direct contradiction this circuits precedent.  More specifically, the circumstances before this Court are nearly identical the circumstances Lacedra Executive Office for United States Attorneys, 317 F.3d 345 (D.C. Cir. 2003). Lacedra, the plaintiff sent FOIA request asking for copies of: 
[A]ll documents pertaining case that was prosecuted your office, entitled United States vs. Glenn LaCedra, 96-10074 RCL[.]  Specifically requesting the following below; Documents and Information 
Any and all inducements and rewards offered the chief government witnesses Susan Yodlin and Jennifer Brown, including Government provided beeper service, cellular phone service and fees paid case for any, and all information for testifying against me. 
All scientific fingerprinting results from the inside the black electrical tape that was attached the device, and any documents concerning the known unknown identities such. 

Id. 346 (emphasis added). The agency interpreted the request seeking only the two 
enumerated categories documents.  Id. 347. The plaintiff disagreed. asserted that the 
request sought all documents pertaining to his criminal case and that the agencys 
interpretation ignored that language found his letter.  Moreover, the plaintiff argued that his 
request was determined ambiguous, the agency was obliged Nation Magazine United 
States Customs Service, F.3d 885 (D.C. Cir. 1995) interpret his request liberally favor 
disclosure. Id. 347-348. other words, the plaintiff argued that the agency had unreasonably 
narrowed his request. 
The U.S. Court Appeals for the District Columbia agreed with the plaintiff. The 
Court held: sure, LaCedra's request not model clarity.  The first portion, I wish obtain copy all documents pertaining case, considerable tension with the second, Specifically requesting the following below.  Nevertheless, LaCedra's request reasonably susceptible the broader reading.  The drafter FOIA request might reasonably seek all certain set documents while nonetheless evincing heightened interest specific subset thereof. think improbable, however, that person who wanted only the subset would draft request that, like LaCedra's, first asks for the full set.  The EOUSA's interpretation that the request for all documents pertaining case that was prosecuted your office identifies the location where the subset documents may found simply implausible. view the Government's obligation under the law this circuit to construe FOIA request liberally, Nation Magazine, F.3d 890, think also wrong. 
Id. 348. other words, although the plaintiff had asked for all documents pertaining [his] case well stating that was [s]pecifically requesting the following subset documents, the Court held that the agency had obligation liberally construe the request.  The only reasonable interpretation, therefore, was give meaning the entire request.  The agency therefore was ordered search for all documents pertaining to the plaintiffs criminal case. 
Unlike the requester Lacedra, Plaintiff here did not use language that could implied suggest that his requests sought specific types records. Here, Plaintiff asked for any information available this determination such meeting minutes supporting memos.  Plaintiffs requests used the phrase such as assist the FDIC locating possible responsive records. did not limit his request specific subset records.  Therefore, light Nation Magazine and the similar set circumstances Lacedra, the FDIC has unreasonably interpreted Plaintiffs requests limited the material that the FDIC Board Directors relied upon the specified meetings. 

III. The FDIC has failed conduct adequate searches. 
The second issue that the Court must address whether the FDIC has conducted adequate searches. stated above, the FDIC improperly narrowed Plaintiffs requests.  Because this fact alone, the FDIC has not conducted adequate searches. The FDIC only searched the Executive Secretary Section for the minutes and the case memorandum for each the determinations.  Since reasonable interpretation the requests requires the FDIC conduct searches for any information available the three determinations, each instance, the FDIC must search more than just the Executive Secretary Section. Plaintiff explained his Memorandum Law Opposition Defendants Motion for Summary Judgment and Support Plaintiffs Cross-Motion for Summary Judgment (Pls Mem.), the D.C. Circuit has held, The adequacy agencys search measured standard reasonableness and dependent upon the circumstances the case.  Weisberg 
U.S. Department Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983) (quoting McGehee CIA, 697 F.2d 1095, 1100-01 (D.C. Cir. 1983) and Founding Church Scientology National Security Agency, 610 F.2d 824, 834 (D.C. Cir. 1979)). The circumstances the case are not dispute.  Plaintiff sent three FOIA requests seeking any and all information available regarding the October 2008 decision create the Temporary Liquidity Guarantee Program, the November 2008 decision extend assistance Citigroup, and the January 2009 decision extend assistance Bank America.  The FDIC immediately located the minutes and the case memorandum for each those determinations. Plaintiff demonstrated his opening brief  and not disputed the FDIC its Reply  the minutes and the case memoranda, minimum, clearly suggest that other records exist that are responsive Plaintiffs request.  Or, more specifically, reasonable conclude that other records exist based the circumstances. 
Each set minutes produced the FDIC begins with list the names the meeting participants well their titles and the component the FDIC that they represent.  Similarly, each case memorandum produced the FDIC begins with the names, titles, and departments the individuals who prepared and received the case memoranda.  Because the extraordinary nature the actions taken the FDIC during the height the financial crisis, inconceivable that officials and staff members who participated meetings and prepared received the case memoranda had prior knowledge the topics discussed and possessed records the issues and the decisions made.  Based these circumstances, reasonable conclude that adequate searches for responsive records would have included searches for records created and/or used officials and staff members the various departments within the FDIC who participated the three determinations.1 The FDIC therefore should conduct new search for all records responsive Plaintiffs actual requests and not just records responsive the FDICs unreasonable interpretation Plaintiffs requests. 

IV. Conclusion. 
For the reasons set forth Plaintiffs opening memorandum and the additional reasons set forth above, the FDICs motion for summary judgment should denied and Plaintiffs cross-motion for summary judgment should granted and the FDIC should compelled conduct reasonable searches for records responsive Plaintiffs requests and produce all nonexempt, responsive records Plaintiff. 
The FDICs discussion whether the study referenced the TLGP case memorandum responsive entirely misplaced and irrelevant.  Defs Reply 13-15. his opening brief, Plaintiff discussed the study solely show that the few records that the FDIC did produce Plaintiff demonstrate the inadequacy the FDICs searches.  Contrary the FDICs assertions, the issue not whether the study responsive.  For the FDIC determine whether clear certain that the referenced study would considered responsive that Plaintiff already has all the information the study that relevant the Board determination the TLGP[,] the FDIC would first have conduct search for the record.  Id. that precise action that Plaintiff requests that the FDIC undertake.  Plaintiff has not asked that this Court order the FDIC produce any records that fall outside the scope Plaintiffs requests for any and all information available regarding the October 2008 decision create the Temporary Liquidity Guarantee Program, the November 2008 decision extend assistance Citigroup, and the January 2009 decision extend assistance Bank America.  Plaintiff simply requests that the FDIC satisfy its statutory obligation and conduct reasonable searches for responsive records. 
Dated: May 20, 2011  Respectfully submitted, 
/s/ Michael Bekesha 
Michael Bekesha (D.C. Bar No. 995749) 
JUDICIAL WATCH, INC. 
425 Third Street, S.W., Suite 800 
Washington, 20024 

(202) 646-5172 

Attorneys for Plaintiff



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