Defendant FDIC Motion for Summary Judgment Plaintiff McKinley (Lawsuit #2)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) VERN McKINLEY, ) ) Plaintiff, ) ) v. ) No. 1:10-cv-00420-EGS ) FEDERAL DEPOSIT INSURANCE ) CORPORATION ) ) Defendant. ) )

FDIC’S MOTION FOR SUMMARY JUDGMENT

Defendant Federal Deposit Insurance Corporation (FDIC) hereby moves pursuant to Fed.

R. Civ. P. 56(a) and the Court’s Minute Order of February 23, 2011, for summary judgment on

the only remaining issue in this Freedom of Information Act case: whether the FDIC satisfied its

obligation to conduct a reasonable search for responsive materials. Declarations, a Statement of

Material Facts Not In Dispute, a memorandum in support of the motion, and a proposed order are

attached.

Respectfully submitted, COLLEEN J. BOLES Assistant General Counsel BARBARA SARSHIK Senior Counsel BARBARA KATRON Counsel March 18, 2011

/s/ Daniel H. Kurtenbach DANIEL H. KURTENBACH Counsel D.C. Bar No. 426590 Federal Deposit Insurance Corporation 3501 Fairfax Drive, Room VS-D7026 Arlington, VA 22226 [email protected] 703-562-2465 (office) 703-562-2477 (fax)

Case 1:10-cv-00420-EGS Document 20 Filed 03/18/11 Page 1 of 16

1



FDIC’S STATMENT OF MATERIAL FACTS NOT IN DISPUTE

Defendant Federal Deposit Insurance Corporation (FDIC) hereby submits the following

Statement of Material Facts Not In Dispute in support of its Motion for Summary Judgment:

General

1. Each of the three Freedom of Information Act (FOIA) requests that are the subject of

this litigation refers to a specific provision of the Federal Deposit Insurance Act. Fisch Decl.

Exh. 1, 3, 5.

2. The referenced statute, 12 U.S.C. § 1823(c), includes a provision, subparagraph

(c)(4)(G), which creates an exception (known as the Systemic Risk exception) to the general

requirements in subparagraphs (A) and (E) that FDIC use the least costly method for resolving a

failed financial institution, and not take action which would increase losses to the Deposit

Insurance Fund. 12 U.S.C. § 1823(c)(4).

3. The relevant portion of the Systemic Risk provision (in effect in the time period of the

actions described in the three FOIA requests) states as follows:


2

Systemic risk (i) Emergency determination by Secretary of the Treasury Not withstanding subparagraphs (A) and (E), if, upon the written recommendation of the Board of Directors (upon a vote of not less than two-thirds of the members of the Board of Directors) and the Board of Governors of the Federal Reserve System (upon a vote of not less than two-thirds of the members of such Board), the Secretary of the Treasury (in consultation with the President) determines that --

(I) the Corporation’s compliance with subparagraphs (A) and (E) with respect to an insured depository institution would have serious adverse effects on economic conditions or financial stability; and (II) any action or assistance under this subparagraph would avoid or mitigate such adverse effects,

the Corporation may take other action or provide assistance under this section as necessary to avoid or mitigate such effects.

12 U.S.C. § 1823(c)(4)(G)(i) (2009).

4. The FDIC Board of Directors’ determinations referenced in Plaintiff’s three FOIA

requests are decisions by the Board to recommend to the Secretary of the Treasury that the

Secretary invoke the Systemic Risk exception. Dkt. 14 at 1-5.

5. The Executive Secretary Section of the Corporate, Consumer, Insurance, and

Legislation Branch of the Legal Division (ESS) is the official custodian of records of meetings of

the FDIC Board of Directors. Hammond Decl. ¶¶ 2, 4; Fisch Decl. ¶¶ 13, 19, 26.

6. The official records of the FDIC Board of Directors meetings of October 13, 2008,

November 23, 2008, and January 15, 2009 are in the custody of the ESS. Hammond Decl. ¶¶ 19,

25, 31.

FOIA Request No. 09-1976 (Citigroup)

7. On December 4, 2009, Plaintiff sent a Freedom of Information Act (“FOIA”) request

to the FDIC seeking records about the FDIC’s determination on November 23, 2008 to provide


3

financial assistance to Citigroup, Inc. Declaration of Vern McKinley, Dkt. 7-1 (“McKinley

Decl.”) ¶ 2. In addition to the requester’s contact information, the request included information

stating that it involved Citigroup of New York, that the requester agreed to pay up to $200 in

fees relating to the request, and a description of the information sought. The “Information

Requested” portion of this request reads as follows:

I am requesting further detail on information on the transaction described in the following FDIC press release: http://www.fdic.gov/news/news/press/2008/pr08125.html The source of this power is Section 13(c) of the FDI Act (12 U.S.C. 1823(c)). There is a requirement that under this section under the emergency determination there must be a finding of "serious adverse effects on economic conditions or financial stability" if the action is not taken. I would like any information available on this determination such as meeting minutes or supporting memos. More specifically, I understand this issue was addressed at an FDIC Board Meeting on November 23, 2008. So I would like the minutes from this meeting, the Board Case and any other supporting memos to these documents.

Fisch Decl. Exh. 1.

8. Plaintiff’s FOIA request of December 4, 2009, regarding Citigroup was received by

the FDIC’s Freedom of Information Act/Privacy Act Group (FOIA/PA Group) on December 4,

2009, and assigned FDIC log no. 09-1976. Fisch Decl. ¶ 11.

9. On December 7, 2009, request no. 09-1976 was forwarded to Supervisory Counsel

Frederick L. Fisch of the FOIA/PA Group. Mr. Fisch reviewed the request and determined,

based upon the “Information Requested” portion of the request, that the FDIC’s Executive

Secretary Section in the Legal Division (ESS) would have the records responsive to the request.

Further, Mr. Fisch determined that, because ESS would have all records responsive to the

request, there was no need to conduct a search in any other FDIC office or division. Fisch Decl.

¶¶ 12-13.


4

10. On December 11, 2009, the FOIA/PA Group forwarded request no. 09-1976 to

Catherine Hammond in ESS for the purpose of conducting a search for responsive records. Fisch

Decl. ¶ 14; Hammond Decl. ¶ 17.

11. On or about December 15, 2009, Ms. Hammond conducted a search of ESS records

and determined that two records in ESS were potentially responsive to request no. 09-1976: the

Minutes of the closed meeting of the FDIC Board of Directors held on November 23, 2008, and

a November 23, 2008 memorandum to the Board of Directors from James R. Wigand and

Herbert J. Held. Hammond Decl. ¶ 19.

12. On or about December 16, 2009, Ms. Hammond forwarded the potentially

responsive records to the FOIA coordinator for the Legal Division. Hammond Decl. ¶ 20. The

FOIA/PA Group received the records on January 27, 2010. Fisch Decl. ¶ 15.

FOIA Request No. 09-2054 (Bank of America)

13. On December 20, 2009, Plaintiff sent a second FOIA request to the FDIC seeking

records about the FDIC’s determination to provide financial assistance to Bank of America Corp.

McKinley Decl. at ¶4. In addition to the requester’s contact information, the request included

information stating that it involved Bank of America of Charlotte, North Carolina, that the

requester agreed to pay up to $200 in fees relating to the request, and a description of the

information sought. The “Information Requested” portion of this request reads as follows:

I am requesting further detail on information on the transaction described in the following FDIC press release: http://www.fdic.gov/news/news/press/2009/pr09004.html The source of this power is Section 13(c) of the FDI Act (12 U.S.C. 1823(c)). There is a requirement that under this section under the emergency determination there must be a finding of "serious adverse effects on economic conditions or financial stability" if the action is not taken. I would like any information available on this determination such as meeting minutes and supporting memos.


5

Fisch Decl. Exh. 3.

14. Plaintiff’s FOIA request of December 20, 2009, regarding Bank of America was

received by the FOIA/PA Group on December 22, 2009, and assigned FDIC log no. 09-2054.

Fisch Decl. ¶ 17.




Secretary Section (ESS) would have the records responsive to the request. Further, Mr. Fisch

determined that, because ESS would have all records responsive to the request, there was no

need to conduct a search in any other FDIC office or division. Fisch Decl. ¶¶ 18-19.




17. On or about January 11, 2010, Ms. Hammond conducted a search of ESS records and

determined that two records in ESS were potentially responsive to request no. 09-2054: the

Minutes of the closed meeting of the FDIC Board of Directors held on January 15, 2009, and a

January 15, 2009 memorandum to the Board of Directors from Mitchell L. Glassman, Sandra L.

Thompson, Arthur J. Murton, and John V. Thomas. Hammond Decl. ¶ 24-25.

18. On or about January 11, 2010, Ms. Hammond forwarded the potentially responsive

records to the FOIA coordinator for the Legal Division. Hammond Decl. ¶ 26. The FOIA/PA

Group received the records on January 27, 2010. Fisch Decl. ¶ 22.


6

FOIA Request No. 09-2055 (TLGP)

19. Also on December 20, 2009, Plaintiff sent a third FOIA request to FDIC seeking

records about the FDIC’s determination to create a new program, known as the Temporary

Liquidity Guarantee Program (TLGP), to provide financial assistance to banks, thrift institutions,

and certain bank holding companies. McKinley Decl. at ¶3. In addition to the requester’s

contact information, the request included information stating that it involved multiple

institutions, that the requester agreed to pay up to $200 in fees relating to the request, and a

description of the information sought. The “Information Requested” portion of this request reads

as follows:

I am requesting further detail on information on the program described in the following FDIC press release: http://www.fdic.gov/news/news/press/2008/pr08100.html The source of this power is Section 13(c) of the FDI Act (12 U.S.C. 1823(c)). There is a requirement that under this section under the emergency determination there must be a finding of "serious adverse effects on economic conditions or financial stability" if the action is not taken. I would like any information available on this determination such as meeting minutes and supporting memos.

Fisch Decl. Exh. 5.

20. Plaintiff’s FOIA request of December 20, 2009, regarding TLGP was received by the

FOIA/PA Group on December 22, 2009, and assigned FDIC log no. 09-2055. Fisch Decl. ¶ 24.




Secretary Section (ESS) would have the records responsive to the request. Further, Mr. Fisch

determined that, because ESS would have all records responsive to the request, there was no

need to conduct a search in any other FDIC office or division. Fisch Decl. ¶¶ 25-26.


7




23. On or about January 11, 2010, Ms. Hammond conducted a search of ESS records and

determined that two records in ESS were potentially responsive to request no. 09-2055: the

Minutes of the closed meeting of the FDIC Board of Directors held on October 13, 2008, and an

October 13, 2008 memorandum to the Board of Directors from Mitchell L. Glassman.

Hammond Decl. ¶¶ 30-31.

24. On or about January 11, 2010, Ms. Hammond forwarded the potentially responsive

records to the FOIA coordinator for the Legal Division. Hammond Decl. ¶ 32. The FOIA/PA

Group received the records on January 27, 2010. Fisch Decl. ¶ 29.

Respectfully submitted,

COLLEEN J. BOLES Assistant General Counsel BARBARA SARSHIK Senior Counsel BARBARA KATRON Counsel /s/ Daniel H. Kurtenbach DANIEL H. KURTENBACH Counsel D.C. Bar No. 426590 Federal Deposit Insurance Corporation 3501 Fairfax Drive, Room VS-D7026 Arlington, VA 22226 [email protected] 703-562-2465 (office) 703-562-2477 (fax)


1



FDIC’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

I. Introduction

The relevant background to this Freedom of Information Act (FOIA)1 case is set out in

the Court’s Memorandum Opinion of December 23, 2010 (Dkt. 17). After the Court’s opinion

and associated Order (Dkt. 16) were issued, the FDIC released the redacted portions of the six

documents previously provided to Plaintiff,2 resolving the issue whether FOIA and Sunshine Act

exemptions were properly claimed by the Federal Deposit Insurance Corporation (FDIC).

Accordingly, on February 23, 2011, the Court ordered the FDIC to file a motion for summary

judgment on the only remaining issue in this case: whether the FDIC satisfied its obligation to

conduct reasonable searches for responsive materials.

1 552 U.S.C. § 552, amended by OPEN Government Act of 2007, Pub. L. No. 110-175, 121 Stat. 2524. 2 As described in the parties’ Second Joint Status Report (Dkt. 19), on January 27, 2011, the Financial Crisis Inquiry Commission (FCIC) publicly released unredacted versions of the Citigroup and Bank of America Case Memoranda and transcripts of those two Board meetings. Because the transcripts of the meetings had been released, FDIC determined that the information contained in the Board Minutes of those two meetings had already been made available. In light of the extensive disclosures by the FCIC on agency responses to the financial crisis, and expiration of the TLGP as of December 31, 2010, FDIC determined that it was now appropriate to release the TLGP Case Memorandum and Board Minutes.


2

As set out in detail in the Declarations accompanying this motion, the information

contained within the four corners of each request provided the basis for determining the scope of

the FDIC’s search for responsible materials. FDIC staff reviewed each request to identify the

types of records requested, and reasonably concluded that any records responsive to Plaintiff’s

requests would be located in one place: the FDIC’s Executive Secretary Section (ESS). This is

because the requests sought information about statutory determinations made by the FDIC’s

Board of Directors, and specified that the types of information being sought were “meeting

minutes and supporting memos.” As the custodian of the official records of the Board of

Directors meetings, ESS was the most likely place to find those documents. Also as set out in

detail in the Declarations, FDIC staff in the ESS responsible for conducting the searches had

only one electronic indexing system and one paper records system to search, and because each of

the three requests concerned a Board of Directors meeting on a specific date concerning a

specific topic, locating potentially responsive records was a straightforward process.

II. Standard Of Review For A Motion For Summary Judgment

The Court’s Memorandum Opinion in this case (Dkt. 17), sets out the standard for

reviewing a motion for summary judgment:

The Court may grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits or declarations, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. The nonmoving party, however, cannot rely on “mere allegations or denials.” If the Court concludes that “the nonmoving party has failed to make a sufficient showing on an essential element of [its] case with respect to which [it] has the burden of proof,” then the moving party is entitled to summary judgment.

Dkt. 17 at 5-6 (citations omitted).


3

As the Court also stated, a defendant agency has the burden of proof in a FOIA

action to show that it complied with FOIA. Id. at 8. An agency meets its burden by:

“ . . . providing ‘a reasonably detailed affidavit, setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials . . . were searched.’” Although the affidavit or declaration submitted by the agency “need not set forth with meticulous documentation the details of an epic search for the requested records, [it must] describe what records were searched, by whom, and through what processes.”

Id. at 8-9 (citations omitted). The Court found that the FDIC’s original declaration “does not

explain the search methods employed by the FDIC to respond to plaintiff’s requests, who

conducted the searches, whether he is personally aware of the search procedures used, or if such

procedures were followed by the Executive Secretary [Section].” The Court stated that:

The FDIC must . . . provide the Court with declarations from which the Court can find that the declarants have personal knowledge that the search methodology, procedures, and searches actually conducted were reasonably designed to locate documents responsive to plaintiff’s requests.

Id. at 10-11.

III. Argument

The declarations of Fredrick L. Fisch (Fisch Declaration) and Catherine L. Hammond

(Hammond Declaration) submitted with this motion satisfy the FDIC’s burden of production in

this case: They permit the Court to find that the declarants have personal knowledge that the

search methodology, procedures and searches actually conducted were reasonably designed to

locate documents responsive to Plaintiff’s requests. The searches conducted for documents

responsive to Plaintiff’s requests were “consistent with governing caselaw,” Dkt. 17 at 10.

The actual searches for responsive records, as conducted by Catherine Hammond in the

ESS, and described in her declaration, were straightforward. The actual records -- the official

records of meetings of the FDIC Board of Directors -- are in paper form in a standardized format.


4

ESS staff search for particular records by date or topic using their electronic indexing system.

Because Plaintiff’s requests referred to specific Board meetings involving specific topics and

specific dates, Ms. Hammond was able to locate potentially responsive records with no

difficulty.

The real point of contention here is the decision by FDIC’s FOIA staff in each instance to

search for responsive records only in the ESS.

As set out step by step in the Fisch Declaration, the reasoning was simple: In each

request, Plaintiff was seeking information about a “determination” made by the FDIC Board of

Directors; in each request, Plaintiff stated that the types of information he was seeking were

“meeting minutes and supporting memos”;3 and because the ESS is the custodian of the official

records of FDIC Board of Directors meetings, in each instance the ESS was the most likely place

to find records “such as meeting minutes and supporting memos.”

Each of the Board actions that was the subject of a FOIA request by Plaintiff involved a

recommendation to the Secretary of the Treasury that he make a determination under the

“systemic risk exception,” which would allow the FDIC to exercise powers that are normally

limited by statute. The relevant portion of the systemic risk provision, 12 U.S.C.

§ 1823(c)(4)(G)(i), is set out at ¶ 3 of the FDIC’s Statement of Material Facts Not In Dispute.

The provision specifies that the recommendation to the Secretary is made by “the Board of

Directors (upon a vote of not less than two-thirds of the members of the Board of Directors).”

Such an action cannot be taken by the Chairman of the FDIC, or by a senior executive or other

staff of the FDIC, or by any office or division of the FDIC. It can only be taken at a Board

3 One of the three requests, no. 09-1976 (Citigroup) contained additional descriptive information not found in the other two: “More specifically, I understand this issue was addressed at an FDIC Board Meeting on November 23, 2008. So I would like the minutes from this meeting, the Board Case and other supporting memos to these documents.” Fisch Decl. Exh. 1 (emphasis added).


5

meeting by a two-thirds vote of the FDIC Board of Directors. Thus, the official records of such

actions would be found where all of the records of all Board meetings and Board votes are found

-- in the ESS.

There is no requirement under FOIA that every agency record must be searched in an

effort to locate every possible document that may be responsive to a FOIA request. Rather, as

this Court has stated:

An agency's search is adequate if its methods are reasonably calculated to locate records responsive to a FOIA request, see Oglesby v. United States Dep't of the Army, 920 F.2d 57, 68 (D.C.Cir.1990), and an agency is not obligated to expand the scope of its search or to search all of its systems of records when it has searched the systems of records most likely to contain responsive records. See Campbell v. United States Dep't of Justice, 164 F.3d 20, 28 (D.C.Cir.1998) (stating that an agency generally need not search every records system as long as it conducts “a reasonable search tailored to the nature of a particular request”) (citing Oglesby, 920 F.2d at 68). “[T]he issue to be resolved is not whether there might exist any other documents possibly responsive to the request, but rather whether the search for those documents was adequate.” Weisberg v. Dep't of Justice, 705 F.2d 1344, 1351 (D.C.Cir.1983) (citing Perry v. Block, 684 F.2d 121, 128 (D.C.Cir.1982)).

Wolfson v. United States, 672 F. Supp. 2d 20, 26 (D.D.C. 2009). The critical factor in measuring

the adequacy of an agency’s search for responsive records is “the reasonableness of the effort in

light of the specific request.” Larson v. Dept. of State, 565 F.3d 857, 869 (D.C. Cir. 2009), citing

Meeropol v. Meese, 790 F.2d 942, 956 (D.C.Cir.1986). Thus it is the parameters of the specific

request, as reasonably interpreted by the agency, that determine the scope of the search. In this

case, the information contained within the four corners of Plaintiff’s specific requests pointed

directly to the types of records maintained by ESS.

There is no question, nor has Plaintiff ever argued, that the documents located in the ESS

searches (Board Minutes and Case Memoranda for each of the three Board meetings) were in

any way non-responsive. In fact, they were exactly what Plaintiff was looking for. Rather,


6

Plaintiff’s complaint is that the FDIC should have searched beyond the ESS to find additional

responsive records. “Plaintiff requested any and all information available on the three

recommendations made by the FDIC [but] the FDIC only provided a single set of minutes and a

single supporting memorandum for each of the recommendations.” Dkt. 14 at 8 (emphasis

added).

FDIC staff properly interpreted Plaintiff’s requests in a manner that would not render

them patently overbroad. It is well established that requests in terms such as “any and all” do not

reasonably describe records sought, as required by FOIA. Dale v. IRS, 238 F. Supp. 2d 99, 104

(D.D.C. 2002) (deficient request sought “any and all documents, including but not limited to

files, that refer or relate in any way to Billy Ray Dale”); Latham v. DOJ, 658 F. Supp. 2d 155,

161 (D.D.C. 2009) (request for “any records . . . that pertain in any form or sort to [plaintiff]”

was overly broad); Judicial Watch, Inc. v. Exp.-Imp. Bank, 108 F. Supp. 2d 19, 27-28 (D.D.C.

2000) (rejecting request for records of “contact with companies, entities, and/or persons related

or doing or conducting business in any way” with China); Mason v. Callaway, 554 F.2d 129, 131

(4th Cir. 1977) (request for “all correspondence, documents, memoranda, tape recordings, notes,

and any other material” inadequately identified records sought). As the Fourth Circuit stated in

Mason v. Callaway: “This request typifies the lack of specificity that Congress sought to

preclude in the requirement of 5 U.S.C. § 552(a)(3) that records sought be reasonably described.”

554 F.2d. at 131. Rather that rejecting the requests in their entirety based on the phrase “any

information available,” FDIC staff gave Plaintiff’s requests reasonable interpretations based on

the large amount of specific information otherwise contained in the requests.

Plaintiff further complains that: “The FDIC did not produce any email correspondence,

meeting notes, or memoranda. The GAO report specifically indicated that such records exist.”


7

Dkt. 14 at 8. Very simply, if Plaintiff was reading the GAO report and decided that he wanted

email correspondence, meeting notes, or memoranda from “FDIC officials” dating from before

the Board meetings, Dkt. 14 at 8-9, he should have asked for that information. He did not.

Rather, he asked for records about the “determinations” that the Board made (as described in the

press releases) and that only the Board could make under section 1823(c); and he asked for

records “such as” meeting minutes and supporting memos. FDIC staff had no reason to believe

that Plaintiff meant something other than exactly what he asked for, and had no reason to look in

places other than where the specified records requested by Plaintiff were most likely to be found

-- and actually were found.

In his Reply brief in support of his previous motion for summary judgment (Dkt. 14 at 9)

Plaintiff complained that the searches were inadequate because the FDIC failed to provide

another document allegedly responsive to his request regarding the Temporary Liquidity

Guarantee Program (TLGP). Plaintiff asserted that the FDIC should have located and provided a

document specifically mentioned in the Board Minutes and in the Case Memorandum as “a

recent study” by FDIC staff “on the effect of a run on uninsured deposits on economic activity.”

Dkt. 5-6 (Exh. C Pt. 1 to FDIC Motion to Dismiss) at 7 (bates no. 56470); Dkt. 5-7 (Exh. C Pt. 2

to FDIC Motion to Dismiss) at 3. Even if this reference to “a recent study” could be construed as

a “supporting memo” regarding the Board’s systemic risk determination as to the TLGP, an

agency is not required to delve into the documents they locate to seek out clues to other

responsive documents:

The agency is not required to speculate about potential leads. More specifically, the [agency] is not obliged to look beyond the four corners of the request for leads to the location of responsive documents. Of course, if the requester discovers leads in the documents he receives from the agency, he may pursue those leads through a second FOIA request.


8

Kowalczyk v. Dept. of Justice, 73 F.3d 386, 389 (D.C. Cir. 1996) (emphasis added); Rein v. U.S.

Patent & Trademark Office, 553, F3d 353, 365 (agency not required to “chase rabbit trails that

may appear in documents uncovered during their search”).

The declarations submitted in support of this motion describe fully and in detail how the

FDIC conducted searches reasonably calculated to locate records responsive to Plaintiff’s

requests. The FDIC has met its burden of proof to show that its handling of Plaintiff’s requests

complied with the FOIA. Accordingly, the FDIC’s motion for summary judgment should be

granted.

IV. Conclusion

For the reasons stated, the FDIC’s motion for summary judgment should be granted.

Respectfully submitted, COLLEEN J. BOLES Assistant General Counsel BARBARA SARSHIK Senior Counsel BARBARA KATRON Counsel /s/ Daniel H. Kurtenbach DANIEL H. KURTENBACH Counsel D.C. Bar No. 426590 Federal Deposit Insurance Corporation 3501 Fairfax Drive, Room VS-D7026 Arlington, VA 22226 [email protected] 703-562-2465 (office) 703-562-2477 (fax)


1



DECLARATION OF FREDRICK L. FISCH I, Fredrick L. Fisch, declare as follows: 1. The Federal Deposit Insurance Corporation (FDIC) employs me as a Counsel in the

Legal Division.

2. Until January 31, 2010, I served as the Supervisory Counsel in charge of the Freedom

of Information Act (FOIA) and Privacy Act Group in the FDIC Legal Division at FDIC

Headquarters in Washington, D.C. (FOIA/PA Group). I worked as the supervisor of the FDIC’s

FOIA/PA Group since late 1997.

3. Due to the nature of my official duties in the FOIA/PA Group, I was and am familiar

with the provisions of the FOIA, 5 U.S.C. § 552 (2006), amended by the OPEN Government Act

of 2007, Pub. L. No. 110-175, 121 Stat. 2524, et seq., and judicial interpretations of those

provisions.


with the procedures followed by the FDIC in responding to requests for information pursuant to

the FOIA.

Case 1:10-cv-00420-EGS Document 20-2 Filed 03/18/11 Page 1 of 12

2


with the organizational structure of the FDIC, the nature of the work carried out by each division

and office, and the types of records maintained by each division and office.

6. In the ordinary course of business, all requests to the FDIC for records pursuant to the

FOIA are routed to the FOIA/PA Group.

7. One responsibility of the FOIA/PA Group is to keep a record of each FOIA request,

assign it a number and route each request to the appropriate FDIC Divisions and/or Offices so

that those Divisions or Offices can conduct searches for responsive records. It was my

responsibility as Supervisory Counsel of the FOIA/PA Group to review new FOIA requests

referred to me by FOIA/PA Group staff to determine whether staff had identified the appropriate

Divisions or Offices to which the FOIA requests should be referred for purposes of conducting

searches for responsive records.

8. I am specifically aware of three FOIA requests submitted to the FDIC by Vern

McKinley (Plaintiff), which are the subject of this litigation.

9. The statements herein are made on the basis of personal knowledge or other

information made known to me in my former capacity as Supervisory Counsel in charge of the

FOIA/PA Group.


10. On December 4, 2009, Plaintiff sent a FOIA request to the FDIC seeking records

about the FDIC’s determination on November 23, 2008, to provide financial assistance to

Citigroup, Inc. A copy of this FOIA request is attached to this Declaration as Exhibit 1. A copy

of the press release referenced in the request is attached to this Declaration as Exhibit 2. In

addition to the requester’s contact information, the request included information stating that it


3

involved Citigroup of New York, that the requester agreed to pay up to $200 in fees relating to

the request, and a description of the information sought. The “Information Requested” portion of

this request reads as follows:

I am requesting further detail on information on the transaction described in the following FDIC press release: http://www.fdic.gov/news/news/press/2008/pr08125.html The source of this power is Section 13(c) of the FDI Act (12 U.S.C. 1823(c)). There is a requirement that under this section under the emergency determination there must be a finding of "serious adverse effects on economic conditions or financial stability" if the action is not taken. I would like any information available on this determination such as meeting minutes or supporting memos. More specifically, I understand this issue was addressed at an FDIC Board Meeting on November 23, 2008. So I would like the minutes from this meeting, the Board Case and any other supporting memos to these documents.

11. Plaintiff’s FOIA request of December 4, 2009, regarding Citigroup was received by

the FOIA/PA Group on December 4, 2009, and assigned FDIC log no. 09-1976.

12. On December 7, 2009, request no. 09-1976 was forwarded to me. In reviewing the

“Information Requested” portion of the request, I concluded as follows:

a. As indicated by the words “the transaction,” the reference to the FDIC

press release, and the words “this determination,” Plaintiff was seeking

information on a specific action taken by the FDIC Board of Directors on a

specific date.

b. The phrase “any information available” was overbroad and failed to

reasonably describe the records sought by Plaintiff, and therefore failed to comply

with the FDIC’s FOIA regulation, which provides, at 12 C.F.R. § 309.5(b)(3):

A request for identifiable records shall reasonably describe the records in a way that enables the FDIC’s staff to identify and produce the records with reasonable effort and without unduly burdening or significantly interfering with any of the FDIC’s operations.


4

Accordingly, because that portion of the request failed to comply with subsection

(a)(3)(A) of the FOIA (5 U.S.C. § 552(a)(3)(A)), the word “any” should be

disregarded in interpreting Plaintiff’s request for “information available on this

determination.” However, the phrase “any information available” did not render

the request defective (12 C.F.R. § 309.5(c)) to the extent that other information in

the request concerning “this determination” satisfied the criteria for “identifiable

records.”

c. The phrase “such as meeting minutes or supporting memos” provided

examples of the types of information that Plaintiff was seeking. Because the

request referred to a specific action taken by the FDIC Board of Directors, the

phrase “meeting minutes” meant the minutes of the FDIC Board of Directors

meeting at which the “determination” was made. Because the request referred to

a specific action taken by the FDIC Board of Directors, the phrase “supporting

memos” meant memoranda describing, explaining, providing the background and

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

“determination.” Because the request referred to a specific action taken by the

FDIC Board of Directors, “supporting memos” could only be those memos

actually seen, used, and/or relied upon by the Board in taking that action.

d. The sentence, “More specifically, I understand this issue was addressed at

an FDIC Board Meeting on November 23, 2008” confirmed that Plaintiff was

interested in information about the referenced meeting.

e. The sentence, “So I would like the minutes from this meeting, the Board

Case and any other supporting memos to these documents” indicated that this


5

sentence contained his specific request for action from by the FDIC (“So” having

the meaning “accordingly”). This sentence also confirmed that Plaintiff’s request

was narrow, and sought two specific items (“the minutes from this meeting” and

“the Board Case”) together with “any other supporting memos to these

documents,” such as any exhibits or attachments to the minutes or the Board Case

that may have contained additional information submitted to the Board.

f. Because the Minutes of meetings of the FDIC Board of Directors are

exclusively prepared and maintained by the Executive Secretary Section of the

FDIC Legal Division (ESS), the only reasonable place to search for the Minutes

requested by Plaintiff was the ESS.

g. Because the memoranda prepared for and used by the FDIC Board of

Directors that describe, explain, provide the background and reasoning for, and/or

recommend action (commonly known as “Board Cases” or “Case Memoranda”)

are kept and maintained by the ESS as part of the official records of Board

meetings in which such memoranda are used, the only reasonable place to search

for the “Board Case” and “supporting memos” requested by Plaintiff was the

ESS.

13. Accordingly, I determined that, because the ESS was the official repository for all

records responsive to the request, there was no need to conduct a search in any other FDIC

Office or Division.


Catherine Hammond in the ESS for the purpose of conducting a search for the Minutes of the


6

November 23, 2008 meeting of the FDIC Board of Directors, the “Board Case” used in that

meeting, and any other “supporting memos.”

15. On January 27, 2010, the FOIA/PA Group received the records located in the ESS

search, consisting of the Minutes of the FDIC Board of Directors meeting of November 23,

2008, and a November 23, 2008 memorandum to the Board of Directors from James R. Wigand

and Herbert J. Held.


16. On December 20, 2009, Plaintiff sent a FOIA request to FDIC seeking records about

the FDIC’s determination to provide financial assistance to Bank of America. A copy of this

FOIA request is attached to this Declaration as Exhibit 3. A copy of the press release referenced

in the request is attached to this Declaration as Exhibit 4. In addition to the requester’s contact

information, the request included information stating that it involved Bank of America of

Charlotte, North Carolina, that the requester agreed to pay up to $200 in fees relating to the

request, and a description of the information sought. The “Information Requested” portion of


I am requesting further detail on information on the transaction described in the following FDIC press release: http://www.fdic.gov/news/news/press/2009/pr09004.html The source of this power is Section 13(c) of the FDI Act (12 U.S.C. 1823(c)). There is a requirement that under this section under the emergency determination there must be a finding of "serious adverse effects on economic conditions or financial stability" if the action is not taken. I would like any information available on this determination such as meeting minutes and supporting memos.

17. Plaintiff’s FOIA request of December 20, 2009, regarding Bank of America was

received by the FOIA/PA Group on December 22, 2009, and assigned FDIC log no. 09-2054.


7



a. As indicated by the words “the transaction,” the reference to the FDIC

press release, and the words “this determination,” Plaintiff was seeking

information on a specific action taken by the FDIC Board of Directors on a

specific date.











records.”

c. The phrase “such as meeting minutes and supporting memos” provided



phrase “meeting minutes” meant the Minutes of the FDIC Board of Directors



8







d. Because the Minutes of meetings of the FDIC Board of Directors are

exclusively prepared and maintained by the ESS, the only reasonable place to

search for the Minutes requested by Plaintiff was the ESS.

e. Because the memoranda prepared for and used by the FDIC Board of





for “supporting memos” requested by Plaintiff was the ESS.



Office or Division.

20. In order to help guide the ESS in conducting their search, I made handwritten

annotations to a copy of the FOIA request. I underlined the words “Bank of America.” Beneath

the words “meeting minutes,” I wrote “FDIC BOD” (meaning FDIC Board of Directors).

Beneath the word “memos” I wrote “case memorandum.”


9



meeting of the FDIC Board of Directors at which the “determination” was made, and

“supporting memos.”

22. On January 27, 2010, the FOIA/PA Group received the records located in the ESS

search, consisting of the Minutes of the FDIC Board of Directors meeting of January 15, 2009,

and a January 15, 2009 memorandum to the Board of Directors from Mitchell L. Glassman,

Sandra L. Thompson, Arthur J. Murton, and John V. Thomas.


23. On December 20, 2009, Plaintiff sent a FOIA request to FDIC seeking records about

the FDIC’s determination to create a new program, known as the Temporary Liquidity Guarantee

Program (TLGP), to provide financial assistance to banks, thrift institutions, and certain bank

holding companies. A copy of this FOIA request is attached to this Declaration as Exhibit 5. A

copy of the press release referenced in the request is attached to this Declaration as Exhibit 6. In

addition to the requester’s contact information, the request included information stating that it

involved multiple institutions, that the requester agreed to pay up to $200 in fees relating to the

request, and a description of the information sought. The “Information Requested” portion of


I am requesting further detail on information on the program described in the following FDIC press release: http://www.fdic.gov/news/news/press/2008/pr08100.html The source of this power is Section 13(c) of the FDI Act (12 U.S.C. 1823(c)). There is a requirement that under this section under the emergency determination there must be a finding of "serious adverse effects on economic conditions or financial stability" if the action is not taken. I would like any information available on this determination such as meeting minutes and supporting memos.


10

24. Plaintiff’s FOIA request of December 20, 2009, regarding TLGP was received by the

FOIA/PA Group on December 22, 2009, and assigned FDIC log no. 09-2055.



a. As indicated by the words “the program,” the reference to the FDIC press

release, and the words “this determination,” Plaintiff was seeking information on

a specific action taken by the FDIC Board of Directors on a specific date.











records.”

c. The phrase “such as meeting minutes and supporting memos” provided




11

phrase “meeting minutes” meant the Minutes of the FDIC Board of Directors








d. Because the Minutes of meetings of the FDIC Board of Directors are

exclusively prepared and maintained by the ESS, the only reasonable place to

search for the Minutes requested by Plaintiff was the ESS.

e. Because the memoranda prepared for and used by the FDIC Board of





for “supporting memos” requested by Plaintiff was ESS.



Office or Division.

27. In order to help guide the ESS in conducting their search, I made handwritten

annotations to a copy of the FOIA request. I wrote “TLGP” next to the reference to the press


release. Beneath the words "meeting minutes," I wrote "FDIC BOD" (meaning FDIC Board of

Directors). Beneath the word "memos" I wrote "case memorandum."

28. On December 30, 2009, the FOIAIPA Group forwarded request no. 09-2055 to


meeting of the FDIC Board of Directors at which the "determination" was made, and

"supporting memos."

29. On January 27,2010, the FOIAIPA Group received the records located in the ESS

search, consisting of the Minutes of the FDIC Board of Directors meeting of October 13,2008,

and an October 13,2008 memorandum to the Board of Directors from Mitchell L. Glassman.

I declare under penalty of perjury that the foregoing is true and correct.

12-~y of

March 201 L.

Executed this

~i~

12


EXHIBIT 1


Page 1 of 1

Rosser, Felice L. tJ9-/17~From: vern_mckinley(çyahoo.com

Sent: Friday, December 04,20098:32 AM

To: EFOIASubject: FOIA Request Form _

. This Email was sent from the EFOIARequest application on the Production server www2.fdic.gov. ·

The following EFOIA Request was sent on December 4,2009 at 8:31 AM.

SENDER NAME: Vern McKinley

E-MAIL: vern _ mcki n ley(çya hoo. com

FIRM: ..ADDRESS: 20745 Ashburn Station Place = ..r=?: -' om

Ashburn, VA 20147 i1 c: -C),-) rn )/'):

COUNTRY: ~ -r1 (" '''r._.-, -n. :::.CJ

PHONE: 703-470-9893 .c';'1 .--.¿.J --

FINANCIAL INSTITUTION NAME: Citigroup . , "9 ~-:J ë.::J-,_.. coFINANCIAL INSTITUTION LOCATION: New York CP ïJZc.

MAXIMUM FEE: $200 .-INFORMATION I am requesting further detail on information on the transaction

REQUESTED: described in the following FDIC press release:

http://www.fdic.gov/news/news/press/2008/pr08125.htm i

The source of this power is Section 13(c) of the FDI Act (12 U.S.C.1823(c)). There is a requirement that under this section under theemergency determination there must be a finding of "seriousadverse effects on economic conditions or financial stabiliy" ifthe action is not taken. I would like any information available onthis determination such as meeting minutes or supportingmemos. More specifically, I understand this issue was addressedat an FDIC Board Meeting on November 23, 2008. So I would likethe minutes from this meeting, the Board Case and any othersupporting memos to these documents.

12/4/2009


EXHIBIT 2


Advanced Search

SuEach depositor insured to at least $250,000 per insured bank Search FDIC...

Home | Deposit Insurance | Consumer Protection | Industry Analysis | Regulations & Examinations | Asset Sales | News & Events | About FDIC

Press Releases Online Press Room Conferences & Events Financial Institution Letters Special Alerts Letters to the Editor/Opinion Editorials Speeches & Testimony

Home > News & Events > Press Releases

Press Releases

Joint Statement by Treasury, Federal Reserve and the FDIC on Citigroup

Washington, DC— The U.S. government is committed to supporting financial market stability, which is a prerequisite to restoring vigorous economic growth. In support of this commitment, the U.S. government on Sunday entered into an agreement with Citigroup to provide a package of guarantees, liquidity access and capital.

As part of the agreement, Treasury and the Federal Deposit Insurance Corporation will provide protection against the possibility of unusually large losses on an asset pool of approximately $306 billion of loans and securities backed by residential and commercial real estate and other such assets, which will remain on Citigroup's balance sheet. As a fee for this arrangement, Citigroup will issue preferred shares to the Treasury and FDIC. In addition and if necessary, the Federal Reserve stands ready to backstop residual risk in the asset pool through a non-recourse loan.

In addition, Treasury will invest $20 billion in Citigroup from the Troubled Asset Relief Program in exchange for preferred stock with an 8% dividend to the Treasury. Citigroup will comply with enhanced executive compensation restrictions and implement the FDIC's mortgage modification program.

With these transactions, the U.S. government is taking the actions necessary to strengthen the financial system and protect U.S. taxpayers and the U.S. economy.

We will continue to use all of our resources to preserve the strength of our banking institutions and promote the process of repair and recovery and to manage risks. The following principles guide our efforts:

We will work to support a healthy resumption of credit flows to households and businesses.

We will exercise prudent stewardship of taxpayer resources. We will carefully circumscribe the involvement of government in the

financial sector. We will bolster the efforts of financial institutions to attract private

capital.

Attachment: Summary of Terms (PDF Help)

Media Contact: Andrew Gray (202) 898-7192

FDIC PR-125-2008

Last Updated 11/23/2008 [email protected]

Home | Contact Us | Search | Help | SiteMap | Forms | En EspañolWebsite Policies | Privacy Policy | USA.gov | FDIC Office of Inspector GeneralFreedom of Information Act (FOIA) Service Center | FDIC Open Government Webpage | No FEAR Act Data

Page 1 of 1FDIC: Press Releases - PR-125-2008 11/23/2008

3/11/2011http://www.fdic.gov/news/news/press/2008/pr08125.html


November 23, 2008

1

Summary of Terms

Eligible Asset Guarantee

Eligible Assets: Asset pool consisting of loans and securities backed by residential real

estate and commercial real estate, and their associated hedges, as agreed, and other such assets as the U.S. Government (USG) has agreed to guarantee. Each specific asset must be identified on signing of guarantee agreement. Assets will remain on the books of institution but will be appropriately “ring-fenced.”

Size: Up to $306 bn in assets to be guaranteed (based on valuation agreed upon

between institution and USG). Term of Guarantee: FDIC standard loss-sharing protocol: Guarantee is in place for 10 years

for residential assets, 5 years for non-residential assets. Deductible: Institution absorbs all losses in portfolio up to $29 bn (in addition to

existing reserves)

Any losses in portfolio in excess of that amount are shared USG (90%) and institution (10%). USG share will be allocated as follows:

UST (via TARP) second loss up to $5 bn; FDIC takes the third loss up to $10 bn;

Financing: Federal Reserve funds remaining pool of assets with a non-recourse loan, subject to the institution’s 10% loss sharing, at a floating rate of OIS plus 300bp. Interest payments are with recourse to the institution.

Fee for Guarantee - Preferred Stock: Institution will issue $7 bn of preferred stock with an 8% dividend rate

(under terms described below). $4 bn of preferred will be issued to UST. $3 bn will be issued to the FDIC.

Management of Assets: USG will provide institution with a template to manage guaranteed assets

This template will include the use of mortgage modification procedures adopted by the FDIC, unless otherwise agreed.

Risk Weighting: Institution will retain the income stream from the guaranteed assets. Risk

weighting for assets will be 20%.


November 23, 2008

2

Dividends: Institution is prohibited from paying common stock dividends, in excess

of $.01 per share per quarter, for 3 years without UST/FDIC/FRB consent. A factor taken into account for consideration of the USG’s consent is the ability to complete a common stock offering of appropriate size.

Executive Compensation: An executive compensation plan, including bonuses, that rewards long-

term performance and profitability, with appropriate limitations, must be submitted to, and approved by, the USG

Corporate Governance: Other matters as specified


November 23, 2008

3

Preferred Securities

Issuer: Citigroup (“Citi”) Initial Holder: United States Department of the Treasury (“UST”). Size: $20 billion Security: Preferred, liquidation preference $1,000 per share. (Depending upon the

available authorized preferred shares, the UST may agree to purchase preferred with a higher liquidation preference per share, in which case the UST may require Citi to appoint a depositary to hold the Preferred and issue depositary receipts.)

Ranking: Same terms as preferred issued in CPP. Term: Perpetual life. Dividend: The Preferred will pay cumulative dividends at a rate of 8% per annum.

Dividends will be payable quarterly in arrears on February 15, May 15, August 15 and November 15 of each year.

Redemption: In stock or cash, as mutually agreed between UST and Citi. Otherwise,

redemption terms of CPP preferred terms apply. Restrictions on Dividends: Institution is prohibited from paying common stock dividends, in excess

of $.01 per share per quarter, for 3 years without UST consent. A factor taken into account for consideration of the UST’s consent is the ability to complete a common stock offering of appropriate size.

Repurchases: Same terms as preferred issued in CPP. Voting rights: The Preferred shall be non-voting, other than class voting rights on (i) any

authorization or issuance of shares ranking senior to the Preferred, (ii) any amendment to the rights of Preferred, or (iii) any merger, exchange or similar transaction which would adversely affect the rights of the Preferred.

If dividends on the Preferred are not paid in full for six dividend periods,

whether or not consecutive, the Preferred will have the right to elect 2 directors. The right to elect directors will end when full dividends have been paid for (i) all prior dividend periods in the case of cumulative Preferred or (ii) four consecutive dividend periods in the case of non-cumulative Preferred.


November 23, 2008

4

Transferability: The Preferred will not be subject to any contractual restrictions on transfer.

Executive Compensation: An executive compensation plan, including bonuses, that rewards long-

term performance and profitability, with appropriate limitations, must be submitted to, and approved by, the USG.

Summary of Warrant Terms Warrant: Institution will issue a warrant to UST for an aggregate exercise value of

10% of the total preferred issued to USG (in both transactions) ($2.7 bn). Exercise Price: The strike price will be equal to $10.61 per share (the 20 day trailing

average ending on November 21, 2008). The warrants issued to UST are not subject to reduction based on additional offerings.

Term: Ten years, immediately exercisable, in whole or in part. DEPARTMENT OF THE TREASURY FEDERAL RESERVE BOARD __________________________ _______________________________ CITIGROUP INC. FEDERAL DEPOSIT INSURANCE CORP. ___________________________ ______________________________


EXHIBIT 3


Page 1 of 1

OC7-dC6tlSimms, Mary E.

From: vern_mckinley(§yahoo.com

Sent: Sunday, December 20,20097:42 AM


* This Email was sent from the EFOIARequest application on the Production server ww2.fdic.gov. *

The following EFOIA Request was sent on December 20, 2009 at 7:42 AM.


E-MAIL: vern_mckinley~yahoo.com

FIRM:

ADDRESS: 20745 Ashburn Station PlaceAshburn, VA 20147

COUNTRY:

PHONE: 703-470-9893

FINANCIAL INSTITUTION NAME: Bank of America'- ~..FINANCIAL INSTITUTION LOCATION: Charlotte, Norl Carolina

MAXIMUM FEE: 200

INFORMATION i am requesting further detail on information on the transactionREQUESTED: described in the following FDIC press release:

http://ww.fdic.gov/news/news/press/2009/pr09004.html

The source of this power is Section 13(c) of the FDI Act (12 U.S.C.1823(c)). There is a requirement that under this section under theemergency determination there must be a finding of "seriousadverse effects on economic conditions or financial stabilty" ifthe action is not taken. i would like any information available onthis determination such as meeting minutes and supportingmemos.

/CAJt~ ØwIt 1(/V~

L

PPfc /3of),.c.:.:)r-,.. ii,-

C) rr:.-C):~ .... :,:...'.-. .'

,."1C)

" )N . .~:J',,.;-"

,. -

.,,.) :.)-

.,J-.......

en

12/22/2009


EXHIBIT 4


Advanced Search





Press Releases

Treasury, Federal Reserve and the FDIC Provide Assistance to Bank of America

Washington, DC – The U.S. government entered into an agreement today with Bank of America to provide a package of guarantees, liquidity access and capital as part of its commitment to support financial market stability.

Treasury and the Federal Deposit Insurance Corporation will provide protection against the possibility of unusually large losses on an asset pool of approximately $118 billion of loans, securities backed by residential and commercial real estate loans, and other such assets, all of which have been marked to current market value. The large majority of these assets were assumed by Bank of America as a result of its acquisition of Merrill Lynch. The assets will remain on Bank of America's balance sheet. As a fee for this arrangement, Bank of America will issue preferred shares to the Treasury and FDIC. In addition and if necessary, the Federal Reserve stands ready to backstop residual risk in the asset pool through a non-recourse loan.

In addition, Treasury will invest $20 billion in Bank of America from the Troubled Assets Relief Program in exchange for preferred stock with an 8 percent dividend to the Treasury. Bank of America will comply with enhanced executive compensation restrictions and implement a mortgage loan modification program.

Treasury exercised this funding authority under the Emergency Economic Stabilization Act's Troubled Asset Relief Program (TARP). The investment was made under the Targeted Investment Program. The objective of this program is to foster financial market stability and thereby to strengthen the economy and protect American jobs, savings, and retirement security.

Separately, the FDIC board announced that it will soon propose rule changes to its Temporary Liquidity Guarantee Program to extend the maturity of the guarantee from three to up to 10 years where the debt is supported by collateral and the issuance supports new consumer lending.

With these transactions, the U.S. government is taking the actions necessary to strengthen the financial system and protect U.S. taxpayers and the U.S. economy. As was stated in November when the first transaction under the Targeted Investment Program was announced, the U.S. government will continue to use all of our resources to preserve the strength of our banking institutions and promote the process of repair and recovery and to manage risks.

Attachment: Summary of Terms Summary of Terms - PDF (PDF Help) Explanation of the FDIC's Loss Sharing Exposure

FDIC PR-4-2009

FOR IMMEDIATE RELEASE January 16, 2009

Media Contact:Andrew Gray (202) 898-7192









Advanced Search





Press Releases

Summary of Terms

January 15, 2009

Eligible Asset Guarantee

Eligible Assets: A pool of financial instruments consisting of securities backed by residential and commercial real estate loans and corporate debt, derivative transactions that reference such securities, loans, and associated hedges, as agreed, and such other financial instruments as the U.S. government (USG) has agreed to guarantee or lend against (the Pool). Each specific financial instrument in the Pool must be identified on signing of the guarantee agreement. Financial instruments in the Pool will remain on the books of institution but will be appropriately "ring-fenced." The following financial instruments will be excluded from the Pool: (i) foreign assets (definition to be provided by USG); (ii) assets originated or issued on or after March 14, 2008; (iii) equity securities; and (iv) any other assets that USG deems necessary to exclude.

Size: The Pool contains up to $118 billion of financial instruments. More specifically, the Pool includes cash assets with a current book (i.e., carrying) value of up to $37 billion and a derivatives portfolio with maximum potential future losses of up to $81 billion (based on valuations agreed between institution and USG).

Term and Coverage of Guarantee:

Guarantee is in place for 10 years for residential assets and 5 years for non-residential assets. Residential assets will include loans secured solely by 1-4 family residential real estate, securities predominately collateralized by such loans, and derivatives that predominately reference such securities. Institution has the right to terminate the guarantee at any time (with the consent of USG), and the parties will negotiate in good faith as to an appropriate fee or rebate in connection with any permitted termination. If institution terminates the guarantee, it must prepay any outstanding Federal Reserve loan (described below) in full. Guarantee covers Eligible Losses on the Pool. Eligible Losses are the aggregate incurred credit losses (net of any gains and recoveries) on the Pool during the term of the guarantee, beyond the January 15, 2009, marks and credit valuation adjustments for the Pool (as agreed between institution and USG). Eligible Losses do not include unrealized mark-to-market losses but do include realized losses from a sale permitted under the asset management template (described below).

Deductible:Institution absorbs all Eligible Losses in the Pool up to $10 billion.


3/11/2011http://www.fdic.gov/news/news/press/2009/pr09004a.html


The foregoing is accepted and agreed by and among the following as

USG (UST/FDIC) will share Eligible Losses in the Pool in excess of that amount, up to $10 billion. All Eligible Losses beyond the institution’s deductible will be shared USG (90%) and institution (10%).

Financing: Federal Reserve will provide a non-recourse loan facility to institution, subject to institution’s 10% loss sharing. Federal Reserve loan commitment will terminate (and any loans thereunder will mature) on the termination dates of USG guarantee. Institution has the right to terminate the Federal Reserve loan commitment and prepay any Federal Reserve loans at any time (with consent of Federal Reserve). Federal Reserve will charge a fee on undrawn amounts of 20 bp per annum and a floating interest rate on drawn amounts of OIS plus 300 bp per annum. Interest and fee payments will be with recourse to the institution. Institution may draw on Federal Reserve loan facility if and when additional mark-to-market and incurred credit losses on the Pool reach $18 billion.

Fee for Guarantee – Preferred Stock and Warrants:

Institution will issue to USG (UST/FDIC) (i) $4 billion of preferred stock with an 8% dividend rate (under terms described below); and (ii) warrants with an aggregate exercise value of 10% of the total amount of preferred issued. The fee may be adjusted, as necessary, based on the results of an actuarial analysis of the final composition of the Pool, as required under section 102(c) of the Emergency Economic Stabilization Act of 2008.

Management of Assets:

Institution generally will manage the financial instruments in the Pool in accordance with its ordinary business practices, but will be required to comply with an asset management template provided by USG. This template will require institution, among other things, to obtain USG approval (not to be unreasonably withheld) before any Material Disposition. A Material Disposition is a disposition of financial instruments in the Pool that creates an Eligible Loss that, combined with other dispositions of Pool instruments in the same year, exceeds 1% of the Pool size at the beginning of the year. This template also will include, among other things, a foreclosure mitigation policy acceptable to USG.

Revenues and Risk Weighting:

Institution will retain the income stream from the Pool. Risk weighting for the financial instruments in the Pool will be 20%.

Dividends: Institution is prohibited from paying common stock dividends in excess of $.01 per share per quarter for three years without USG consent. A factor taken into account for consideration of USG consent is the ability to complete a common stock offering of appropriate size.

Executive Compensation:

An executive compensation plan, including bonuses, that rewards long-term performance and profitability, with appropriate limitations, must be submitted to, and approved by, USG. Executive compensation requirements will be consistent with the terms of the preferred stock purchase agreement between USG and institution.

Corporate Governance:

Other matters as specified, consistent with the terms of the preferred stock purchase agreement between USG and institution.




of January 15, 2009:

DEPARTMENT OF THE TREASURY FEDERAL RESERVE BOARD

BANK OF AMERICA CORPORATION

FEDERAL DEPOSIT INSURANCE CORP.






Advanced Search





Press Releases

Explanation of the FDIC's Loss Sharing Exposure

The FDIC's exposure is capped at $2.5 billion. The FDIC and the Treasury's Troubled Asset Relief Program (TARP) will provide guarantees on certain residential assets for 10 years and certain other assets for a period of 5 years. BAC will bear the first $10 billion in losses. Additional losses will be shared with the FDIC, Treasury, and the Federal Reserve covering 90 percent of the losses with BAC bearing 10 percent. After the first $10 billion in losses, the FDIC and Treasury will cover losses pro rata in proportions of 25% for the FDIC and 75% for Treasury up to a cap of $2.5 billion for the FDIC and $7.5 billion for the Treasury. Further losses will be covered 90% by the Federal Reserve through nonrecourse lending. The FDIC will receive compensation in the form of what is projected to be $1 billion in preferred stock and warrants with an aggregate exercise value of 10% of the amount of preferred issued.




3/11/2011http://www.fdic.gov/news/news/press/2009/pr09004b.html


EXHIBIT 5


Simms, Mary E.

Page 1 of 1

.. t2tj~J()5-From: vern_mckinley~yahoo.com

Sent: Sunday, December 20, 20098:03 AM


* This Email was sent from the EFOIARequest application on the Production server ww2.fdic.gov. *

The following EFOIA Request was sent on December 20, 2009 at 8:02 AM.


E-MAIL: vern_mckinley~yahoo.com

FIRM:

ADDRESS: 20745 Ashburn Station PlaceAshburn, VA 20147

t1/1 t1rl/¡ (y( h"V\()U ~

COUNTRY:

PHONE:

FINANCIAL INSTITUTION NAME:

FINANCIAL INSTITUTION LOCATION:

MAXIMUM FEE:

INFORMATIONREQUESTED:

12/22/2009

703-470-9893

Multiple Institutions

Multiple Institutions

200

I am requesting further detail on information on the programdescribed in the following FDIC press release:

http://ww.fdic.gov/news/news/press~1 r L CrPThe source ofthis power is Section 13(c) ofthe FDI Act (12 U.S.C.1823(c)). There is a requirement that under this section under theemergency determination there must be a finding of "seriousadverse effects on economic conditions or financial stabilty" ifthe action is not taken. i would like any information available onthis determination such as meeting minutes and supporting

V ~LC fiSt 6n 0 ,

,_0-111-=) i": ¡-:')

:.~.~: ~~::

. :-1r-'"

'.J¡"Jí-v -'0

;:: "j)., _ ~:.,J~.iu


EXHIBIT 6


Advanced Search





Press Releases

FDIC Announces Plan to Free Up Bank Liquidity Creates New Program to Guarantee Bank Debt and Fully Insure Non-Interest Bearing Deposit Transaction Accounts

The Federal Deposit Insurance Corporation (FDIC) announces a new program—the Temporary Liquidity Guarantee Program—to strengthen confidence and encourage liquidity in the banking system by guaranteeing newly issued senior unsecured debt of banks, thrifts, and certain holding companies, and by providing full coverage of non-interest bearing deposit transaction accounts, regardless of dollar amount.

"The FDIC is taking this unprecedented action because we have faith in our economy, our country, and our banking system," said FDIC Chairman Sheila C. Bair. "The overwhelming majority of banks are strong, safe, and sound. A lack of confidence is driving the current turmoil, and it is this lack of confidence that these guarantees are designed to address."

Under the plan, certain newly issued senior unsecured debt issued on or before June 30, 2009, would be fully protected in the event the issuing institution subsequently fails, or its holding company files for bankruptcy. This includes promissory notes, commercial paper, inter-bank funding, and any unsecured portion of secured debt. Coverage would be limited to June 30, 2012, even if the maturity exceeds that date.

In addition, any participating depository institution will be able to provide full deposit insurance coverage for non-interest bearing deposit transaction accounts, regardless of dollar amount. These are mainly payment-processing accounts, such as payroll accounts used by businesses. Frequently, these exceed the current maximum limit of $250,000. This new, temporary guarantee—which expires at the end of 2009—will help stabilize these accounts.

"The program will be funded through special fees and does not rely on taxpayer funding," Bair said.

Participants will be charged a 75-basis point fee to protect their new debt issues, and a 10-basis point surcharge will be added to a participating institution's current insurance assessment in order to fully cover the non-interest bearing deposit transaction accounts.

To implement the program, the FDIC Board approved the use of its statutory authority to prevent systemic risk. The Secretary of the Treasury, after consultation with the President and the Federal Reserve Board, made a comparable systemic risk determination.

All FDIC-insured institutions will be covered under the program for the first 30 days without incurring any costs. After that initial period, however, institutions wishing to no longer participate must opt out or be assessed for future participation. If an institution opts out, the guarantees are good only for the first 30 days.

# # #

FOR IMMEDIATE RELEASE October 14, 2008

Media Contact:Andrew Gray (202) 898-7192




Attachments: Statement by Federal Deposit Insurance Corporation Chairman Sheila Bair; U.S. Treasury, Federal Reserve, FDIC Joint Press Conference

Congress created the Federal Deposit Insurance Corporation in 1933 to restore public confidence in the nation's banking system. The FDIC insures deposits at the nation's 8,451 banks and savings associations and it promotes the safety and soundness of these institutions by identifying, monitoring and addressing risks to which they are exposed. The FDIC receives no federal tax dollars – insured financial institutions fund its operations.

FDIC press releases and other information are available on the Internet at www.fdic.gov, by subscription electronically (go to www.fdic.gov/about/subscriptions/index.html) and may also be obtained through the FDIC's Public Information Center (877-275-3342 or 703-562-2200). PR-100-2008






Advanced Search





Press Releases

Statement by Federal Deposit Insurance Corporation Chairman Sheila Bair; U.S. Treasury, Federal Reserve, FDIC Joint Press Conference October 14, 2008

Good morning. Thank you for coming.

As Secretary Paulson and Chairman Bernanke indicated, the extraordinary steps we're taking today are intended to bolster public confidence in our financial institutions and throughout the American economy.

Achieving this goal will require a sustained and coordinated effort by government authorities. In short, all of us are prepared to do whatever it takes, to fix whatever problems arise, and to work with Wall Street and Main Street to unclog the financial system so that it can continue fueling economic growth, and creating jobs.

Our efforts also parallel those by European and Asian nations. Their guarantees for bank debt and increases in deposit insurance would put U.S. banks on an uneven playing field unless we acted as we are today.

Despite what we hear about the credit crisis and the problems facing banks, the fact is that the bulk of the U.S. banking industry is healthy and remains well-capitalized. What we do have, however, is a liquidity problem, largely caused by uncertainty about the value of mortgage assets, which is making banks reluctant to lend to each other, or lend to consumers and businesses.

Today's actions to inject more capital into the banking system, combined with other recent coordinated measures to free up credit markets, should give banks the self-assurance to resume normal lending.

FDIC liquidity program

In addition to the actions just announced by Secretary Paulson and Chairman Bernanke, the FDIC board yesterday approved a new Temporary Liquidity Guarantee Program to unlock inter-bank credit markets and restore rationality to credit spread. This will free up funding for banks to make loans to creditworthy businesses and consumers.

The program, which is voluntary, has two key features.

The first feature guarantees new, senior unsecured debt issued by any bank, thrift or holding company, which will help banks fund their operations. Both term and overnight funding of banks has come under extreme pressure, with the costs of funding ballooning to several hundred basis points.

This guarantee will allow banks and their holding companies to roll maturing senior debt into new issues fully backed by the FDIC. However, guaranteed maturities cannot extend beyond three years. The ability to tap into this program expires at the end of June 2009.

The second feature of the new program gives unlimited insurance coverage for non-interest bearing deposit transaction accounts. These are mainly payment processing accounts such as payroll accounts used by businesses. Frequently, they exceed the current maximum insurance limit of $250,000. Many smaller, healthy banks have been losing these accounts to their much larger competitors because of uncertainties in the financial system.




This new, temporary guarantee –- which runs until the end of next year –- should help stabilize these accounts, and help us avoid having to close otherwise viable banks because of deposit withdrawals.

This aspect of the program allows bank customers to conduct normal business knowing that their cash accounts are safe and sound. This is the fundamental goal of deposit insurance, safeguarding peoples' money, and vital to public confidence in the banking system.

No cost to taxpayers or insurance fund

Let me stress that the program does not rely on taxpayer funding. Nor does it rely on the Deposit Insurance Fund. Instead, both aspects of the program will be paid for by direct user fees included as part of a bank's regular insurance premium.

Coverage for both parts of the program will be automatic for the first 30 days, without charge. After that, the FDIC will begin assessing premiums for the coverage unless an institution opts out. If an institution opts out, the guarantees are good only for that first 30 days.

These are all major steps necessitated by the crisis in our credit markets, which has been fed by mounting fear about our economic future. They are designed to hold down the cost of any future bank failures, and to lead to a return to normal bank lending activity.

The FDIC is taking this unprecedented action because we have faith in our economy, our country, and our banking system. The overwhelming majority of banks are strong, safe and sound. But a lack of confidence is driving the current turmoil. And it is a lack of confidence that these guarantees are designed to address.

Above all else, there must be no doubt in our government. Institutions like the FDIC -- created 75 years ago to deal with times of financial stress -- are strong, and will successfully bring the country through these extraordinary times. Thank you.






1



DECLARATION OF CATHERINE L. HAMMOND I, Catherine L. Hammond, declare as follows: 1. I have been an employee of the The Federal Deposit Insurance Corporation (FDIC) for

33 years.

2. The FDIC currently employs me as the Lead Board Support Specialist, grade 12, in

the Executive Secretary Section of the Corporate, Consumer, Insurance, and Legislation Branch

of the Legal Division (ESS).

3. I have worked in ESS or its predecessor organizations for 25 years, and have personal

knowledge of the duties and responsibilities of ESS, its operations and procedures, and its record

systems.

4. ESS is the official custodian of records of meetings of the FDIC Board of Directors

(Board).

5. As part of my official duties, I assist in compiling, organizing, and maintaining the

official records of meetings of the Board.


6. The offcial records of meetings of the Board are compiled, organized, and maintained

as paper records stored in a secure location in an FDIC building in Washington, D.C.

7. The offcial records of meetings ofthe Board consist ofa file folder or "jacket" for

each meeting of the Board. Contained in each jacket is a copy of the agenda for that Board

meeting; each "Board Case" (sometimes called the "case memorandum") to be considered by the

Board at that meeting; the minutes of the Board meeting; and a copy of every resolution adopted

by the Board at that meeting. The meeting jackets are filed by the dates of the Board meetings

for which they were prepared.

8. The Board Case consists of a memorandum and any attachments (such as a draft

resolution) prepared by FDIC staff in advance of the Board meeting for the Board's use at the

meeting when considering a particular action. When the Board is considering a particular action,

the signed Board Case serves as the formal basis for the Board's deliberations and action. A

copy of each Board Case is filed in the jacket of the Board meeting at which it was considered.

9. After the Board meeting, ESS prepares the minutes of that meeting, and files the

offcial paper copy of the minutes in the jacket of the Board meeting.

10. In addition to offcial paper records of meetings of the Board, ESS utilizes an

electronic indexing system called STAR for management of those paper records. The STAR

index is compiled using keywords drawn from the minutes of Board meetings. The STAR index

can be searched by meeting date or keyword to identify a Board meeting held on a particular date

or any Board meeting at which a particular topic was considered.

11. As part of my official duties, I conduct searches of the offcial records of meetings of

the Board for documents potentially responsive to Freedom ofInformation Act (FOIA) requests

2


forwarded to ESS by the FDIC's Freedom ofInformation Act/Privacy Act Group (FOIAIPA

Group).

12. Because the records systems in ESS pertaining to meetings of the Board are the

STAR electronic index and the Board meeting jackets, the ESS process of conducting a FOIA .

search for potentially responsive records of Board meetings is straightforward. First, I select

dates and/or keywords from the requester's description of the records sought, and from

comments or instructions from the FOIAIPA Group (if any) relating to a particular request.

13. I then enter those dates and/or keywords into the STAR system as search terms. The

results of a STAR system search identify the particular Board meeting jackets for Board

meetings held on those dates and/or Board meeting records containing those keywords. The

more specific the request in the context of the types of records maintained in ESS, the easier and

faster it is to conduct a search for potentially responsive ESS records.

14. After identifying Board meeting jackets using the STAR system, I then do a physical

search of the Board meeting jackets to locate those identified by STAR. I then use the

requester's description of the records sought, and comments or instructions from the FOIAIP A

Group (if any) relating to the particular request, to locate potentially responsive documents in

each Board meeting jacket previously identified.

15. Once potentially responsive documents have been located in Board meeting jackets, I

scan those paper records to create electronic copies, and then forward those electronic copies to

the FOIA coordinator for the Legal Division.

16. I personally conducted the searches in ESS of the offcial records of meetings of the

Board for documents responsive to FOIA requests 09-1976 (Citigroup), 09-2054 (Bank of

3


America), and 09-2055 (TLGP). The following statements are made based on my personal

knowledge.


17. On December 11,2009, I received an email from the FOIAIPA Group to which was

attached an electronic copy of a FOIA request "control record" and a copy of a FOIA request

marked as 09-1976. The "Information Requested" portion of this request read as follows:

I am requesting further detail on information on the transaction described in thefollowing FDIC press release:

http://www .fdic.gov /news/news/press/2008/pr08125 .html

The source of this power is Section 13(c) of the FDI Act (12 U.S.C. 1823(c)).There is a requirement that under this section under the emergency determinationthere must be a finding of "serious adverse effects on economic conditions orfinancial stability" if the action is not taken. I would like any informationavailable on this determination such as meeting minutes or supporting memos.More specifically, I understand this issue was addressed at an FDIC BoardMeeting on November 23,2008. So I would like the minutes from this meeting,the Board Case and any other supporting memos to these documents.

18. The email and attachment from the FOIAIPA Group contained no instructions or

guidance for conducting a search for responsive documents within ESS.

19. On December 15,2009, I conducted a search for records potentially responsive to

this FOIA request, using the STAR system and the Board meeting jackets. Because the FOIA

request specified the Board meeting held on November 23, 2008, I had no difficulty identifying

the Board meeting jacket. Because the FOIA request specified "meeting minutes or supporting

memos," I located the Board minutes for the November 23, 2008 Board meeting, and the Board

Case for that meeting, which included the only "supporting memo" contained in the Board

meeting jacket for the November 23,2008 Board meeting, .a November 23,2008 memorandum

to the Board of Directors from James R. Wigand and Herbert J. Held.

4


20. I scanned the Board minutes for the November 23,2008 Board meeting and the

Board Case for that meeting. On December 16,2009, I sent those electronic copies by email to

the FOIA coordinator for the Legal Division.


21. On December 30,2009, I received an email from the FOIAIPA Group to which was



I am requesting further detail on information on the transaction described in thefollowing FDIC press release:

http://ww .fdic. gov /news/news/press/2009 /pr09004 .html

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

22. The copy of the FOIA request I received included certain handwritten annotations.

The words "Bank of America" in the "Financial Institution Name" field were underlined. In

addition, the words "meeting minutes" in the "Information Requested" field were underlined,

and beneath them was written "FDIC BOD," which I understood to mean "FDIC Board of

Directors." Additionally, beneath the word "memos" in the "Information Requested" field were

written the words "case memorandum." I understood these handwritten annotations to be

pointing out that the request involved the Bank of America, and asked for FDIC Board meeting

minutes and the related Board Case (case memorandum).

23. Because the requester's description of the "Information Requested" did not include

any obvious date range, I obtained a copy of the press release referenced in the request. The

5


press release was dated January 16, 2009, but did not specify the date of the Board meeting at

which action was taken.

24. On or about January 11, 2010, I conducted a search for records potentially responsive

to this FOIA request, using the STAR system and the Board meeting jackets. Using "Bank of

America" as a keyword, I conducted a search in the STAR system. The results of the search

included a Board meeting held on January 15, 2009, one day before the date of the press release

referenced in the FOIA request. The information in STAR concerning this meeting also

indicated that it concerned joint action with the U.S. Treasury, as mentioned in the press release,

and involved 13(c) financial assistance, 13(c) also having been mentioned in the FOIA request.

Other search results from STAR not appearing to be related to what was being requested, I

concluded that the Board meeting jacket for the January 15, 2009 Board meeting was the most

likely to contain potentially responsive documents.

25. In that Board meeting jacket, I located the Board minutes for the January 15,2009

Board meeting, and the Board Case for that meeting, which included the only "supporting

memo" contained in the Board meeting jacket for the January 15, 2009 Board meeting, a January

15,2009 memorandum to the Board of Directors from Mitchell L. Glassman, Sandra L.

Thompson, Arhur J. Murton, and John V. Thomas.

26. I scanned the Board minutes for the January 15,2009 Board meeting and the Board

Case for that meeting. On January 11, 2010, I sent those electronic copies by email to the FOIA

coordinator for the Legal Division.

6



27. On December 30, 2009, I received an email from the FOIAIPA Group to which was



I am requesting further detail on information on the program described in thefollowing FDIC press release:

http://www .fdic.gov/news/news/press/2008/pr081 00 .html

The source of this power is Section 13(c) of the FDI Act (12 U.S.c. 1823(c)).

There is a requirement that under this section under the emergency determinationthere must be a finding of "serious adverse effects on economic conditions orfinancial stability" ifthe action is not taken. I would like any informationavailable on this determination such as meeting minutes and supporting memos.

28. The copy of the FOIA request I received included certain handwritten annotations.

The last portion of the URL for the press release in the "Information Requested" field were

underlined, and next to them was written "TLGP." In addition, lines forming a 'V' were added

beneath the words "meeting minutes" in the "Information Requested" field, and under the 'V'

was written "FDIC BOD," which I understood to mean "FDIC Board of Directors."

Additionally, lines forming another 'V' were written in beneath the word "memos" in the

"Information Requested" field, and under the 'V' was written the words "case memorandum." I

understood these handwritten annotations to be pointing out that the request involved the TLGP

program, that is, the Temporary Liquidity Guarantee Program, and asked for FDIC Board

meeting minutes and the related Board Case (case memorandum).

29. Because the requester's description of the "Information Requested" did not include

any obvious date range, I obtained a copy of the press release referenced in the request. The

press release was dated October 14,2008, but did not specify the date of the Board meeting at

which action was taken.

7


30. On or about January 11,2010, I conducted a search for records potentially responsive

to this FOIA request, using the STAR system and the Board meeting jackets. Using "Temporary

Liquidity Guarantee Program" as a keyword, I conducted a search in the STAR system. The

results of the search included a Board meeting held on October 13,2008, one day before the date

of the press release referenced in the FOIA request. The information in STAR concerning this

meeting also indicated that it concerned the implementation ofTLGP, as mentioned in the press

release. Other search results from STAR not appearing to be related to what was being

requested, I concluded that the Board meeting jacket for the October 13, 2008 Board meeting

was the most likely to contain potentially responsive documents.

31. In that Board meeting jacket, I located the Board minutes for the October 13, 2008

Board meeting, and the Board Case for that meeting, which included the only "supporting

memo" contained in the Board meeting jacket for the October 13,2008 Board meeting, an

October 13, 2008 memorandum to the Board of Directors from Mitchell L. Glassman.

32. I scanned the Board minutes for the October 13,2008 Board meeting and the Board

Case for that meeting. On January 11, 2010, I sent those electronic copies by email to the FOIA

coordinator for the Legal Division.

8


I declare under penalty of perjury that the foregoing is true and correct. Executed

this /~ay of March 2011.

~ot~£letherine L. Hammo'nd

9




[PROPOSED] ORDER

The Court having reviewed the pleadings, declarations, and other materials on file, and

having determined that there is no genuine issue as to any material fact and that the Defendant is

entitled to judgment as a matter of law, it is hereby ORDERED that the FDIC’s Motion for

Summary Judgment is GRANTED.

__________________________________________ United States District Judge


Documents

Defendant FDIC Motion for Summary Judgment Plaintiff McKinley (Lawsuit #2)