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Judicial Watch • Mckinley v Fed Reserve Appellant Brief 01282011

Mckinley v Fed Reserve Appellant Brief 01282011

Mckinley v Fed Reserve Appellant Brief 01282011

Page 1: Mckinley v Fed Reserve Appellant Brief 01282011

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Number of Pages:31

Date Created:January 28, 2011

Date Uploaded to the Library:February 20, 2014

Tags:frbny, Material, Stearns, Opinion, Reserve, MCKINLEY, Force, Exemption, statement, process, AGENCY, withheld, National, federal, board, Supreme Court, department, states, district, court, united, EPA, IRS, ICE, CIA


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NOOT YET SCCHEDULEED FOR OORAL ARGGUMENT] TTHE UNIITED STAATES COUURT AAPPEALSS 
FOOR THE DDISTRICTT COLLUMBIA CCIRCUIT 
Noo. 10-5353 
VERNN McKINLLEY 
Plaintiiff-Appellaant, 
BBOARD OOF GOVERRNORS THEE FEDERAAL RESERRVE SYSSTEM 

Defenddant-Appeellee. APPEALL FROM TTHE U.S. DDISTRICTT COURTT
 FOR THE DISTRRICT COLUMMBIA 

BBRIEF OFF APPELLLANT VEERN McKIINLEY 
Paul JJ. Orfaneddes
 Michhael Bekeshha 
JUDICIAAL WATCH, INC. 
4255 Third Strreet, S.W., Suite 800
 Washinggton, 220024 
(2022) 646-51722 

Coounsel for Plaintiff-AAppellant 

CERTIFICATE PARTIES, RULINGS, AND RELATED CASES 
Pursuant Cir. 28(a)(1), counsel provides the following information parties, rulings, and related cases: 
(A) Parties and Amici 
The following parties, interveners, and amici curiae appeared, sought 
appear, below:  
Plaintiff:    Vern McKinley  
Defendant:    Federal Deposit Insurance Corporation  
Defendant:    Board Governors the Federal Reserve System  

The following parties, interveners, and amici curiae are before this Court appeal: 
Plaintiff-Appellant: Vern McKinley 
Defendant-Appellee: Board Governors the Federal Reserve System 

(B) Ruling under Review 
The ruling under review the Opinion and Order the United States District Court for the District Columbia (Huvelle, J.) decided September 29, 2010. The ruling can found Joint Appendix, page 120, and published McKinley FDIC, 2010 U.S. Dist. LEXIS 103045 (D.D.C. 2009). 

(C) Related Cases 
Judicial Watch does not believe that there are any related cases within the meaning Local 28(a)(1)(C). 
/s/ Michael Bekesha 
TABLE CONTENTS
 
TABLE CONTENTS ............................................................................................i 

TABLE AUTHORITIES ................................................................................... iii 

GLOSSARY ABBREVIATIONS .......................................................................v 

JURISDICTIONAL STATEMENT ..........................................................................1 

STATEMENT THE ISSUES PRESENTED .......................................................1 

STATUTES AND REGULATIONS .........................................................................2 

STATEMENT THE CASE..................................................................................3 

STATEMENT FACTS ........................................................................................5 

STATEMENT THE ARGUMENT .....................................................................6 

ARGUMENT .............................................................................................................7 	
Standard Review ..........................................................................................7 

II. 	
The Board Has Failed Establish that FOIA Exemption 

Applies the Withheld Material ....................................................................7 	
The Board has not demonstrated FRBNY outside 
consultant satisfy the intra-agency communication  
  requirement FOIA Exemption .......................................................8 	
The Board has failed demonstrate that the release the withheld material would harm its decision making  
process invoke the deliberative process privilege  
  FOIA Exemption ..............................................................................14 

III.	 
The Board Has Failed Demonstrate that the Withheld  
Material Was Contained Related Examination, Operating, Condition Reports Invoke FOIA Exemption .................................19 

CONCLUSION ........................................................................................................22 

CERTIFICATE COMPLIANCE .......................................................................23 

CERTIFICATE SERVICE ................................................................................24 

TABLE AUTHORITIES 

CASES 
Access Reports Department Justice, 
926 F.2d 1192 (D.C. Cir. 1991)  .................................................................... 

Army Times Publishing Company Department the Air Force, 
998 F.2d 1067 (D.C. Cir. 1993) ..................................................................... 

Chevron U.S.A., Inc. National Resources  
 Defense Council, 467 U.S. 837 (1984) .......................................................... 

Department the Air Force Rose, 425 U.S. 352 (1976) .................................... Department the Interior Klamath Water Users 
 Protective Association, 532 U.S. (2001) ............................................ 7-9, Dudman Communications Corporation 
Department Air Force, 815 F.2d 1565 (D.C. Cir. 1987) .................... 15-16 

Formaldehyde Institute Department Health  
and Human Services, 889 F.2d 1118 (D.C. Cir. 1989)  ................................ Hammontree National Labor Relations Board, 
894 F.2d 438 (D.C. Cir. 1990) ...................................................................... Horowitz Peace Corps., 428 F.3d 271 (D.C. Cir. 2005)  ........................... 15-17 Franklin National Bank Securities Litigation, 

478 Supp. 577 (E.D.NY. 1979)  ................................................................ Sealed Case, 121 F.3d 729 (D.C. Cir. 1997)  ................................................. King United States Department Justice, 
830 F.2d 210 (D.C. Cir. 1987) ................................................................. 19-20 Authorities upon which Plaintiff-Appellant chiefly relies are marked with asterisks. 
Mead Data Central, Inc. United States Department the Air Force, 566 F.2d 242 (D.C. Cir. 1977) ............................... 17, 19-20 National Institute Military Justice United States 
Department Defense, 512 F.3d 677 (D.C. Cir. 2008)  ........................ 10,
 
Petroleum Information Corporation United States  
Department Interior, 976 F.2d 1429 (D.C. Cir. 1992) .............................. 

Sample Bureau Prisons, 466 F.3d 1086 (D.C. Cir. 2006) ................................ 

Sussman United States Marshals Service, 
494 F.3d 1106 (D.C. Cir. 2007) ...................................................................... 

United States American Telephone and Telegraph Company, 
642 F.2d 1285 (D.C. Cir. 1980)  .................................................................... 

Wolfe Department Health and Human Services, 
839 F.2d 768 (D.C. Cir. 1988) ........................................................... 16, 18-19 

STATUTES U.S.C.  552(b)(5) ................................................................................................... U.S.C.  552(b)(8) ................................................................................................. 

REGULATIONS C.F.R.  265.1 ..................................................................................................... C.F.R.  265.11 ................................................................................................... 

GLOSSARY ABBREVIATIONS  
Bear Stearns    The Bear Stearns Companies Inc.  
The Board    The Board Governors the Federal Reserve System  
The District Court  The U.S. District Court for the District Columbia  
FOIA     Freedom Information Act  
FRBNY    Federal Reserve Bank New York  
JPMorgan    JPMorgan Chase Bank  
Opinion    Memorandum Opinion U.S. District Judge Ellen Segal  
    Huvelle  

JURISDICTIONAL STATEMENT 
Jurisdiction the District Court was based upon the Freedom Information Act, U.S.C.  552(a)(4)(B), and U.S.C.  1331.  This Court has jurisdiction over this appeal pursuant U.S.C. 1291.  This appeal timely because the District Court entered its final judgment September 29, 2010 (JA 146), and pursuant Fed. App. 4(a)(1)(B), timely notice appeal was filed October 19, 2010. 147. 

STATEMENT THE ISSUES PRESENTED 
Whether the Federal Reserve Bank New York outside consultant for the purpose the intra-agency communication requirement FOIA Exemption 
Whether the Board Governors the Federal Reserve System has satisfied its burden demonstrating that the release the withheld material would harm its decision making process invoke the deliberative process privilege FOIA Exemption 
Whether the Board Governors the Federal Reserve System has satisfied its burden demonstrating that the withheld material was contained related examination, operating condition reports invoke FOIA Exemption 

STATUTES AND REGULATIONS U.S.C.  552(b): 
This section does not apply matters that are  
(5) 
inter-agency intra-agency memorandums letters which would not available law party other than agency litigation with the agency; 

(8) 
contained related examination, operating condition reports prepared by, behalf of, for the use agency responsible for the regulation supervision financial institutions; 

Any reasonably segregable portion record shall provided any person requesting such record after deletion the portions which are exempt under this subsection. 

STATEMENT THE CASE 
This appeal concerns the first what became series bailouts contemplated undertaken the federal government during the financial crisis 2008. March 14, 2008, the Board Governors the Federal Reserve System (the Board) officially convened authorize the Federal Reserve Board New York (FRBNY) extend credit JPMorgan Chase Bank (JPMorgan) nonrecourse basis provide emergency financing The Bear Stearns Companies Inc. (Bear Stearns).  Memorandum Opinion U.S. District Judge Ellen Segal Huvelle (Opinion), dated September 29, 2010, (JA 123).  The Board took what then-FRBNY President Timothy Geithner described the extraordinary step invoking its powers under section 13(3) the Federal Reserve Act because Bear Stearns was not depository institution and, consequently, was not eligible obtain financing directly from FRBNYs discount window. lay terms, the Board authorized FRBNY extend credit Morgan Chase provide temporary loan Bear Stearns enable meet its financial obligations and avoid filing for bankruptcy.  Id. After the authorization was granted, FRBNY, private bank, decided extend credit JPMorgan. Id. June 27, 2008, the Board released the minutes its March 14, 2008 meeting. The minutes disclosed only that given the fragile condition the financial markets the time, the prominent position 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 funding Bear Stearns through arrangement with JPMorgan Chase.  Id. Among other findings, the minutes summarily stated that the Board had concluded that unusual and exigent circumstances existed and that Bear Stearns, and possibly other primary securities dealers, were unable secure adequate credit accommodations elsewhere.  Id. Nowhere did the Board identify the specific evidence considered how analyzed this evidence.  
Given the extraordinary nature this transaction and the lack any public explanation the underlying justifications for the Bear Stearns transaction, Vern McKinley submitted Freedom Information Act (FOIA) request the Board.  After the commencement this litigation, September 30, 2009, the Board identified 238 pages responsive material.  Opinion (JA 124). those pages, the Board produced pages their entirety and pages part.  Id. also withheld 163 pages their entirety. Id. The Board subsequently moved for summary judgment, asserting that had satisfied its statutory obligations under FOIA. Id. 5-6 (JA 124-125).  McKinley opposed the Boards motion and simultaneously cross-moved for summary judgment, challenging the applicability the Boards claims FOIA Exemptions and  Id. (JA 125). September 29, 2010, the U.S. District Court for the District Columbia (the District Court) granted the Boards motion for summary judgment and denied McKinleys cross-motion.  Id. (JA 145). The District Court specifically found that the Board satisfied its burden establishing that withheld material properly pursuant FOIA Exemptions and  Id. Because the Board had claimed FOIA Exemption over all the withheld material, the District Court did not address whether the Board properly withheld material pursuant FOIA Exemption  Id. 

STATEMENT FACTS December 17, 2008, McKinley submitted FOIA request the Board seeking access records detailing 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 financial stability described the meeting minutes released June 27, 2008.  Opinion 4-5 (JA 123-124). After the commencement this litigation, September 30, 2009, the Board identified 238 pages responsive material.  Id. (JA 124). those pages, the Board continues withhold pages part and 163 pages their entirety. Id. issue here are those 190 pages responsive material. 

SUMMARY THE ARGUMENT 
For the Board properly withhold responsive material pursuant FOIA Exemption must first demonstrate that the material originated within government agency or, minimum, non-interested, outside consultant from which solicited advice. this case, the Board has failed demonstrate that asked FRBNY prepare provide material the Board.  Nor has the Board demonstrated that FRBNY prepared material for the purpose aiding the Boards deliberative process. fact, likely that FRBNY prepared material furtherance its own interests: determine whether would extend emergency loan Bear Stearns. Since the Board has failed show that the communication between the Board and FRBNY was, fact, intra-agency communication, FOIA Exemption cannot and does not protect the requested material from disclosure. 
The Board also has failed show that the withheld material deliberative.  The law this Circuit clear.  For the Board withhold material pursuant the deliberative process privilege, must demonstrate that the release such material would harm its decision making process. The Board has not presented any such evidence. The Board therefore has failed satisfy its burden. 
With respect FOIA Exemption the Board has not demonstrated that the withheld material contained related examination, operating condition reports. Instead, the Board maintains that FOIA Exemption should interpreted protect from disclosure any and all financial information receives from financial institution. Such argument cannot withstand the fundamental principle that FOIA exemptions must narrowly construed. 
Since the Board has failed satisfy its burden under FOIA, the Board must produce all responsive material McKinley. 
ARGUMENT 	Standard Review. 
District court decisions summary judgment motions FOIA cases are reviewed novo. Sussman United States Marshals Service, 494 F.3d 1106, 1111-1112 (D.C. Cir. 2007) (citing Sample Bureau Prisons, 466 F.3d 1086, 1087 (D.C. Cir. 2006)). 
II. 	The Board Has Failed Establish that FOIA Exemption Applies the Withheld Material. 
FOIA Exemption allows agency withhold material that interagency intra-agency memorandums letters which would not available law party other than agency litigation with the agency. U.S.C.  552 (b)(5). satisfy this exemption, government agency must show that the source the withheld material government agency and that the withheld material falls within the ambit privilege against discovery.  Department the Interior Klamath Water Users Protective Association, 532 U.S. (2001). this 
matter, the discovery privilege that the Board attempts invoke the deliberative process privilege. 	The Board has not demonstrated that FRBNY outside  consultant satisfy the intra-agency communication  requirement FOIA Exemption 
Within the scope FOIA Exemption before agency can assert that the withheld material falls within the ambit privilege against discovery, must first demonstrate that the communication inter-agency intra-agency communication.  Id. (explaining that the demonstration that communication inter-agency intra-agency communication is less important than the showing that the material falls within the ambit privilege against discovery). undisputed that FRBNY not government agency and that the communication between the Board and FRBNY was not inter-agency communication.  Opinion (JA 128). Moreover, undisputed that FRBNY not component the Board (Id. (JA 121)) and that the communication between the Board and FRBNY does not satisfy the traditional definition intra-agency communication.  Therefore, the Board was required assert novel argument try justify its withholdings pursuant FOIA Exemption  Notably, the Board was completely silent the issue its Motion for Summary Judgment. was only after McKinley raised the issue his Opposition and Cross-Motion for Summary Judgment that the Board even attempted assert that communication between the Board and FRBNY was protected from disclosure pursuant the consultant corollary. other words, after realizing was unlawfully withholding material, the Board had improvise. doing so, asserted makeshift position unsupported the law this Circuit.  
The Supreme Court has held that communication between government agency and outside consultant may constitute intra-agency communication the consultant does not represent interest its own when advises the agency. Klamath, 532 U.S. 11. Moreover, the consultants only obligations must the truth and its sense what good judgment calls for order for the communication covered the privilege.  Id. The consultant must function[] just employee would expected do.  Id. Klamath, Indian tribe submitted government agency material that discussed issues related water rights the tribe.  Id. 13. Subsequently, FOIA requester sought access that material, and the agency denied its request asserting that the Indian tribe was outside consultant the agency and FOIA Exemption applied.  The Supreme Court disagreed.  The Supreme Court held that the Indian tribe was not outside consultant and the communication between and the government agency was not protected FOIA Exemption because the Indian tribe had interests distinct from that the government agency.  Id. (The Indian tribe was pressing its own view its own interest its communications with the government agency.).  Or, this Court succinctly explained National Institute Military Justice United States Department Defense, Unlike the Indian tribes Klamath, the individuals [that the government agency] consulted had individual interests promote their submissions.  512 F.3d 677, 683 (D.C. Cir. 2008). For FRBNYs communication with the Board protected under the consultant corollary, FRBNYs interests could not any different from those the Board. 
However, the Board has not demonstrated that FRBNY communicated with the Board without unique interests its own.  Section 13(3) the Federal Reserve Act gives the Board the power authorize Federal Reserve Banks, such FRBNY, extend loans non-banks unusual and exigent circumstances and gives the Federal Reserve Banks the final say whether actually extend such loans. Before the loan could extended, FRBNY was required law make its own finding, specifically, that the recipient the prospective loan is unable secure adequate credit accommodations from other banking institutions.  Opinion 10-11 (JA 129-130). other words, FRBNY had its own interests when communicated with the Board because Section 13(3) gave FRBNY, not the Board, final decision making authority. other words, FRBNYs interests are fundamentally different from that outside consultant.1  FRBNY, private corporation engaged the business banking, has its own interests and obligations the commercial activity extending credit. Id. 10-11 (JA 129-130). the interests the various banks the Federal Reserve System were the same the interests the Board, Congress would have authorized the Board extend credit directly.  Similarly, even the Board authorizes the extension credit, FRBNY not required extend the credit. Whether credit extended determined business practices and what best for FRBNY. (JA 130). 
The Board does not refute the distinct interests FRBNY defined Section 13(3). Nor does present any evidence demonstrate that FRBNY was not pressing its own view its own interest its communications with the Board. Klamath, 532 U.S. 14. Although the Board provided evidence such, the District Court found 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.  Opinion (JA 133). The District Court relied the following statement: [I]n accordance with well-established 
The Boards own regulations state that may delegate authority but only by published order rule. C.F.R.  265.1.  The process gathering and discussing data which may used determination authorize FRBNY extend loan not contained the functions delegated Federal Reserve Banks.  See C.F.R.  265.11. 
supervisory processes, Board and [FRBNY] staff responsible for [large complex banking organizations (LCBO)] supervision surveyed the LCBOs for purposes assessing LCBOs real-time exposure Bear Stearns.  Id. (quoting Declaration Coryann Stefansson  (JA 101-102)). Yet, that passage quite clearly does not state that FRBNY was not representing interest its own that was simply assisting the Board. 
Not only has the Board failed demonstrate that FRBNY was not representing any interests its own when communicated with the Board about Bear Stearns, but the Board also has failed demonstrate that the withheld material was solicited from FRBNY the Board.  Recently, this Court held that intra-agency communication includes agency records containing comments solicited from non-governmental parties  whose counsel [an agency] sought.  National Institute, 512 F.3d 680. other words, communication between government agency and outside consultant only intra-agency communication was solicited the agency and for the purpose aiding the agencys deliberative process. Id. 681 (internal citations omitted). 
Once again, the Board has not presented any evidence satisfy its burden. has not shown that solicited advice from FRBNY all.  Nor has presented any evidence that the communication was created the request the Board.  
Finally, nowhere does the Board demonstrate that FRBNY communicated with the Board for the purpose aiding its deliberative process. finding that the communication between the Board and FRBNY was intra-agency communication, the District Court apparently relied broad and inconclusive assertions presented declaration attached the Boards Motion for Summary Judgment. Opinion 10-12 (JA 129-131). found that the following testimony adequately showed that the withheld material was submitted FRBNY in response to the Boards request for advice (Id. (JA 129)): 
Board members and Board staff were concerned about the effects Bear Stearns bankruptcy would have financial markets given the prominent position Bear Stearns those markets. were also concerned about the impact Bear Stearns bankruptcy filing would have individual LCBOs [large complex banking organizations] and smaller institutions supervised the Board and other financial entities not supervised the Board. result, accordance with well-established supervisory processes, Board and [FRBNY] 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. 
Id. (quoting Declaration Coryann Stefansson  (JA 100-101)). Yet, nowhere that passage does Ms. Stefansson testify that the Board asked FRBNY for advice. Nor does the passage assert that FRBNY provided advice the Board.  Ms. Steffanson simply states that staff for both the Board and FRBNY surveyed the situation. Based the above, the Boards staff and FRBNYs staff could have been surveying the data simultaneously, but independently, and with different interests stake. sum, nowhere does the Board demonstrate that asked FRBNY gather and discuss data with the Board. Nor does the Board demonstrate that FRBNY gathered data for the purpose aiding the Boards deliberative process. fact, FRBNY gathered data furtherance its own interests: determine whether would extend emergency loan. Since the Board has failed demonstrate that the communication between the Board and FRBNY was, fact, intra-agency communication, FOIA Exemption does not protect the withheld material from disclosure. The Board must therefore produce all responsive material 
McKinley.  The Board has failed demonstrate that the release the  withheld material would harm its decision making process  invoke the deliberative process privilege FOIA Exemption  

Even this Court were hold that the withheld material intra-agency 
communication, the Board has failed demonstrate that the material protected 
from disclosure pursuant the deliberative process privilege.2 For government 
The District Court also found that Document Number 38, memorandum prepared FRBNY attorney, was properly withheld pursuant the attorney work product doctrine. Opinion 19-21 (JA 138-140).  The court based its decision its finding that FRBNY personnel were acting consultants the Board. Id. (JA 139). Since the Board has not shown that FRBNY was acting outside consultant, Document Number not attorney work product the Board. the protections the attorney work product doctrine even apply, 
agency properly withhold material pursuant the deliberative process privilege, the agency must demonstrate that the material would reveal advisory opinions, recommendations and deliberations comprising part process which governmental decisions and policies are formulated. Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997). Further, the material must predecisional and must deliberative. Id. (citations omitted). issue here whether the Board has sufficiently shown that the disclosure the withheld material would harm its decision making process.3 
The law this Circuit clear.  The deliberative process privilege only protects predecisional communications from disclosure prevent injury the quality agency decisions.  Horowitz Peace Corps., 428 F.3d 271, 276 
(D.C. Cir. 2005). Starting 1987 with Dudman Communications Corporation Department Air Force, this Court has consistently held that courts must focus less the nature the materials sought and more the effect the materials 
they belong FRBNY, not the Board.  FRBNY not party this litigation and has not invoked the doctrines protections. See, e.g., United States American Telephone and Telegraph Company, 642 F.2d 1285, 1297 (D.C. Cir. 1980). 
The District Court incorrectly found that the Board was not required establish that the release the withheld documents material would cause harm the decision-making process.  Opinion 18-19 (JA 137-138).  Under the law this Circuit, material only considered deliberative agency demonstrates that disclosure the material would harm its deliberative process.   
release. 815 F.2d 1565, 1568 (D.C. Cir. 1987).  More succinctly, the key question determining material deliberative 
whether the disclosure materials would expose agencys 
decision making process such way discourage candid 
discussion within the agency and thereby undermine the agencys 
ability perform its functions. Horowitz, 428 F.3d 276 (quoting Dudman Comm. Corp., 815 F.2d 1568); see also, Formaldehyde Institute Department Health and Human Services, 889 F.2d 1118, 1123-1124 (D.C. Cir. 1989) (The pertinent issue what harm, any, the [documents] release would [an agencys] deliberative process.); Access Reports Department Justice, 926 F.2d 1192, 1195 (D.C. Cir. 1991) (The key question identifying deliberative material whether disclosure the information would discourage candid discussions).  Therefore, order for government agency properly withhold material pursuant the deliberative process privilege FOIA Exemption the agency must demonstrate that such material would actually inhibit candor the decision making process available the public.  Army Times Publication Company Department the Air Force, 998 F.2d 1067, 1072 (D.C. Cir. 1993); Wolfe Department Health and Human Services, 839 F.2d 768, 778 (D.C. Cir. 1988) (The burden demonstrating that disclosure would likely have adverse effects agency decisionmaking falls the government.). 
Moreover, agency cannot meet its statutory burden justification conclusory allegations possible harm.  Mead Data Central, Inc. United States Department the Air Force, 566 F.2d 242, 258 (D.C. Cir. 1977). must show specific and detailed proof that disclosure would defeat, rather than further, the purposes the FOIA. Id. Such can done through declarations testimony. Horowitz, this Court concluded that the requested material was properly withheld pursuant the deliberative process privilege only after reviewing testimony that showed making [the withheld] documents publicly available would deter [individuals] from creating them and deprive such officials the benefit review and comment from other departments.  Horowitz, 428 F.3d 276-277. Similarly, Formaldehyde Institute, this Court held that the withheld records were properly exempt from disclosure pursuant the deliberative process privilege only after reviewed indisputable evidence that disclosure reviewers comments would seriously harm the deliberative process.  889 F.2d 1124. that case, the government agency produced declarations asserting that the 
release reviewers' editorial comments would very likely have chilling effect either the candor potential reviewers government-submitted articles the ability the government have its work considered for review all. Furthermore, government author likely less willing submit her work refereed journal all critical reviews could come light somewhere down the line. 
Id. 
Contrary the well-established precedent this Court, the Board has not even attempted demonstrate that disclosure the withheld material would actually inhibit candor otherwise harm its decision making process.  Rather, its declarations merely allege that the withheld material deliberative.  Declaration Alison Thro  (JA 37-38) (Because this information was considered Board members and Board and Reserve Bank staff part the process deliberation leading the Boards decision extend the Temporary Loan, considered exempt under Exemption 5); Id.  (JA 38) (Because was informed staff who participated the deliberations that this information and these analyses were considered the Board and staff advising the Board part the ongoing process deliberation leading the decision authorize the Temporary Loan, considered these documents pre-decisional); Id.  (JA 40-41) ([T]hese factual considerations and legal analyses were presented orally the Board prior its decision and were later reduced writing.  Because these documents reflect pre-decisional, deliberative considerations, considered them exempt from disclosure under FOIA Exemption 5).  Quite clearly, the Board has failed satisfy its burden demonstrate that disclosure would likely have adverse effects agency decisionmaking.  Wolfe, 839 F.2d 778.4 this Court has explained, courts cannot mechanically apply the fact/opinion test. Wolfe, 839 F.2d 774; Petroleum Information Corporation United States Department Interior, 976 F.2d 1429, 1435 (D.C. Cir. 1992) protected the deliberative process privilege, the Board must show that disclosure the withheld material would discourage candid discussions and would harm its decision making process. The Board has failed make this required showing. The deliberative process privilege therefore does not protect the withheld material from disclosure, and the Board must produce all responsive material McKinley. 
III. 	The Board Has Failed Demonstrate that the Withheld Material  Was Contained Related Examination, Operating Condition Reports Invoke FOIA Exemption 
Exemption provides that agency may withhold material that contained related the examination, operating condition reports prepared by, behalf of, for the use agency responsible for the regulation supervision financial institutions. U.S.C.  552(b)(8). While Exemption appears have been crafted broadly, broad application the exemption does not eliminate agencys obligation provide a relatively detailed justification, 
(Precedent caution[s] against fact/opinion characterization the way decide the full range Exemption cases.).  Instead, courts must examine the information requested light the policies and goals that underlie the deliberative process privilege. Wolfe, 839 F.2d 774. The District Court incorrectly applied factual versus opinion analysis sustaining the Boards claim the deliberative process privilege.  Since the Board did not provide any evidence that the disclosure the withheld material would expose its decision making process such way discourage candid discussion and thereby undermine its ability perform its functions, the distinction between facts and opinion irrelevant.  The Board must produce all material that has withheld pursuant the deliberative process privilege. 
specifically identifying the reasons why particular exemption relevant and correlating those claims with the particular part withheld document which they apply. King United States Department Justice, 830 F.2d 210, 219 (D.C. Cir. 1987) (quoting Mead Data, 566 F.2d 251). other words, simply making FOIA Exemption assertion not sufficient. 
Yet, the Board did just that when attempted invoke FOIA Exemption  The Board has failed demonstrate that the withheld material relates specific examination, operating condition report.  The Board has done more than baldly assert that the withheld information is related examination, operating condition reports. Declaration Alison Thro  (JA 36-37).   
Instead satisfying its burden providing evidence that the withheld material relates actual report, the Board argues that any financial information obtains its supervisory capacity from about any financial institution necessarily constitutes relates report for purposes Exemption  Such construction the term report not consistent with the plain meaning Exemption  See Hammontree National Labor Relations Board, 894 F.2d 438, 441 (D.C. Cir. 1990) (citing Chevron U.S.A., Inc. National Resources Defense Council, 467 U.S. 837, 842-843 (1984)). Congress cannot have intended the term report used Exemption have such overarching meaning.5 
The Federal Financial Institutions Examination Council was statutorily 
If, the alternative, the Boards argument that the various email and attached tables are not contained relate examination, operating condition reports, but themselves constitute such reports, then the Boards claims fail for another reason. While Exemption may have been crafted broadly, not without limits.  Such reports have clear and definite meaning.  See, e.g., re: Franklin National Bank Securities Litigation, 478 Supp. 577, 579 (E.D.N.Y. 1979) (describing the bank examination process generally and the contents Reports Examination generated part that process).   
Moreover, the Supreme Court has recognized that FOIA exemptions are limited scope and do not obscure the basic policy that disclosure, not secrecy, the dominant objective the Act.  Department the Air Force Rose, 425 U.S. 352, 361 (1976). construe FOIA Exemption 8s use the term examination, operating condition reports the District Court does would ignore the plain language the exemption and the ordinary meaning its terms. also would antithetical the mandate that FOIA exemptions construed narrowly.  Rose, 425 U.S. 361. Because the Board has not sufficiently shown that the withheld 
created 1979 and formal interagency body empowered prescribe uniform principles, standards, and report forms for the federal examination financial institutions, including the Federal Reserve and the FDIC.  See FFIEC homepage http://www.ffiec.gov/about.htm (emphasis added).  This suggests that the financial industry uses formal system examination, operating condition reports and does not define examination, operating and condition reports mean any and all communicated financial information. 
material contained related examination, operating condition reports, must produce all responsive material McKinley. 
CONCLUSION 
For the foregoing reasons, McKinley respectfully requests that this Court reverse the District Courts order granting the Boards motion for summary judgment and denying McKinleys cross-motion for summary judgment and 
remand for further proceedings.  
Dated: January 28, 2011  Respectfully submitted,  
       Paul Orfanedes 
       /s/ Michael Bekesha        Michael Bekesha JUDICIAL WATCH, INC.        425 Third Street, S.W., Suite 800        Washington, 20024        (202) 646-5172  
Counsel for Plaintiff-Appellant  

CERTIFICATE COMPLIANCE 
The undersigned certifies that this brief complies with the type-volume limitations Fed. App. 32(a)(7).  The brief, excluding exempted portions, contains 4,982 words (using Microsoft Word 2010), and has been prepared proportional Times New Roman, 14-point font. 
/s/ Michael Bekesha 
CERTIFICATE SERVICE hereby certify that this 28th day January 2011, filed via the CM/ECF system and hand (the original and eight copies of) the foregoing BRIEF APPELLANT VERN McKINLEY with the Court and served via the CM/ECF system and First-Class U.S. Mail (two copies of) the foregoing BRIEF APPELLANT VERN McKINLEY to: 
Samantha Chaifetz 
Mark Stern 

U.S. Department Justice, Civil Appellate Staff 950 Pennsylvania Ave., N.W. Washington, 20530 
/s/ Michael Bekesha