Nothing in the Reagan Memorandum, or the Clinton or Reno Memoranda, prohibit the withholding of documents where the agency involved believes it has a good reason to do so. In this case, Defendants withheld the documents in question because they were exempt from disclosure under FOIA, and Defendants believed that disclosure of the exempt documents would be harmful to the interests protected by the exemptions.23 Subsequently, Independent Counsel Fiske has expressed his own concerns over the possibility of "premature disclosures of contents of documents or of witnesses' testimony to other 22 The standard of review for agency action alleged to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" under 5 U.S.C. § 706(2)(A) is highly deferential, and "a court is not to substitute its judgment for that of the agency." Motor Vehicles Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Accord Environmental Defense Fund, Inc. v. Costle, 657 F.2d 275, 283 (D.C. Cir. 1981) (same). An agency's decision must be upheld if the agency had a "rational basis" for making it. American Fin. Servs. Ass'n v. FTC, 767 F.2d 957, 985 (D.C. Cir. 1985) ("[T]his standard... 'requires affirmance if a rational basis exists for the agency's decision."") (quoting Ethyl Corp. v. EPA, 541 F.2d 1, 34 (D.C. Cir.) (en banc), cert. denied, 426 U.S. 941 (1976)), cert. denied, 475 U.S. 1011 (1986); Costle, 657 F.2d at 283 ("The standard mandates judicial affirmance if a rational basis for the agency's decision is presented ... even though we might otherwise disagree...."). An agency is deemed to have a rational basis if its decision is based on reason and there is a "rational connection between the facts found and the choice made." Kisser v. Cisneros, 14 F.3d 615, 619 (D.C. Cir. 1994). 23 See Letter from J. Barker to Hon. J. Leach, dated May 2, 1994 (Ex. 38 to Seidel Dec.) at 2-4 (access to certain investigatory files denied because "to disclose this information could reasonably be expected to interfere with an enforcement proceeding"; access to certain banking records denied because "to disclose this information would constitute a clearly unwarranted intrusion into an individual's personal privacy or would reveal confidential commercial or financial information"); Letter from J. Fiechter to Hon. J. Leach, dated March 11, 1994 (Ex. 23 to Seidel Dec.) at 1 (access to confidential supervisory and examination materials denied because "concern that examination reports might be publicly released at some time in the future would inhibit candid discussion in the examination report of an institution's problems and would lead depository institutions to delay or rationalize identified problems rather than admit and correct them"); Letter from J. Fiechter to Hon. J. Leach, dated December 22, 1993 (Ex. 11 to Seidel Dec.) at 1-2 (access to materials containing "confidential information from individuals" denied because "[t]his agency is able to obtain such information on the understanding that we will preserve its confidentiality; disclosure would impede our ability to obtain it in the future"). -27 DC01:35006 witnesses on the same subject (creating the risk of tailored testimony) and of premature public disclosure of matters at the core of the criminal investigation." Fiske Letter (Ex. 1 to Defendants' Memorandum) at 2. In H.R. Res. 394, the full House also recognized those concerns and provided that Congressional hearings are to be "structured and sequenced in such a manner that in the judgment of the Leaders they would not interfere with the ongoing investigation of Special Counsel Robert B. Fiske, Jr." H.R. Res. 394 at ¶ (d). Further, in the recent Joint Statement announcing the bipartisan agreement, the House Leadership again noted the concern that the Congressional inquiry be structured in a way that would not interfere with the Independent Counsel's investigation, and noted that the Independent Counsel "has specifically asked the bipartisan leadership to refrain from Congressional inquiry into the other aspects of his investigation for now." The House Leadership's acknowledgement and accommodation of the concerns raised by the Independent Counsel regarding the premature disclosure of documents supports Defendants' determination that disclosure of the exempt documents would be harmful to the interests protected by the exemptions. Rep. Leach also argues that Defendants have abused their discretion by allegedly deviating from their prior practice. Opposition at 28. However, Defendants' decision in this case is fully consistent with their prior practice regarding disclosure of exempt documents. As explained in Defendants' Memorandum, at pages 36-39, in the prior instances cited by Rep. Leach, Defendants provided documents exempt from disclosure under FOIA to the Ranking Minority Member only after receiving a specific written request for documents from the Committee Chair, or some other notice of Committee action authorizing the document request, and not in response to a request by the Ranking Minority Member acting independently, without any prior Congressional authorization. The Opposition does not refute those facts, which are established by the letters attached as Exhibits to Defendants' Memorandum, and Rep. Leach thus has failed to show that Defendants have deviated from any custom or practice with regard to the circumstances under which they provide documents to the Ranking Minority Member of the House Banking Committee. The assertions in the Opposition, at page 28, that Defendants have provided similar documents to the Ranking Minority Member in the past, are completely beside the point, because they ignore the fact that in each instance, the documents were provided in connection with formal Committee action.24 In addition, the Opposition's discussion of Defendants' prior disclosures is incomplete and misleading. For instance, the assertions in footnote 14 of the Opposition are simply false. Contrary to that footnote, Defendant OTS did not provide the exempt documents in question on the basis of assurances from the Ranking Minority Member that Congressman Riggs' individual request was an exercise of his alleged individual oversight authority. Rather, as shown in Exhibit 22 to Defendants' Memorandum, which the Opposition ignores, the OTS released the 24 In a Supplemental Declaration of Joseph L. Seidel, attached as Ex. H to the Opposition, Mr. Seidel offers two new instances in which the OTS allegedly provided the Ranking Minority Member with information. First, Mr. Seidel asserts that OTS provided information on financial derivatives. Supp. Seidel Dec. at ¶ 7. That assertion is irrelevant, because Mr. Seidel has not shown that this information was anything other than public information which FOIA required OTS to disclose. Second, the Supplemental Declaration alleges that OTS honored Rep. Leach's request for "a confidential examination report and supervisory memorandum concerning Franklin Savings Association." Supp. Seidel Dec. at ¶ 7. The lack of specifics about what documents were allegedly provided, who provided them, and when, makes it impossible for OTS to respond to that assertion with certainty. However, it appears most likely that the materials released were an October 1989 examination report and a February 1990 supervisory memorandum concerning Franklin Savings Association of Ottawa, Kansas. Both of those documents were made public during an 18-day trial in June 1990. See Franklin Sav. Ass'n v. Director. OTS, 934 F.2d 1127, 1135 (10th Cir. 1991), cert. denied, U.S., 112 S. Ct. 1475 (1992). Thus, they were not exempt from disclosure under FOIA. In any event, the Supplemental Declaration does not contend that OTS supplied those documents because it deemed Rep. Leach to be "Congress" for purposes of 5 U.S.C. § 552(d). Even if they had been exempt from disclosure, OTS could have released them simply as an exercise of its discretion under FOLA. In the end, therefore, Mr. Seidel's new allegations prove nothing. materials only after it received a letter from the Chairman of the House Banking Committee authorizing the request for documents. Similarly, Defendants have never argued that a Committee vote either to issue a subpoena or to initiate an investigation is necessary to support a request for documents. Rather, as the Opposition acknowledges at 29-30, Defendants consider an appropriate letter from the Committee Chair to be sufficient evidence of Congressional authorization. However, a request from Rep. Leach, or any other individual Member of Congress, is not a request from "Congress," but simply a FOIA request, in the absence of specific authorization by the Chairman or other evidence of Committee authorization. Finally, contrary to the contention in the Opposition at 30, it is not Defendants' position that they provide documents requested by the Ranking Minority Member whenever hearings are announced. Rather, Defendants provide documents that are requested by Committees in preparation for, or in connection with, a hearing. Defendants have not yet received any authorized request from any Committee for documents concerning Madison, and the Joint Statement announcing the bipartisan agreement to hold hearings of limited scope, at some undetermined time in the future, does not by itself entitle Rep. Leach to anything. To the contrary, the Joint Statement indicates that any requests for documents will come from the House Banking Committee, and the scope of the requests will be limited so as not to interfere with the Independent Counsel's investigation. C. Defendants' Consideration Of The Views Of The Committee Chairman Was Entirely The Opposition now admits that, contrary to the earlier representations to this Court, and Rep. Leach's repeated assertions to the press, Chairman Gonzalez's letters do not contain any instruction to Defendants to withhold documents. Opposition at 33 n.16. The Opposition DC01:35006 -30 contends, however, that "not much experience in Washington is required to understand what is going on here." Id. By that statement, Rep. Leach asks this Court to presume that Chairman Gonzalez's letter is something other than a statement by the Committee Chairman regarding the Committee's official position. That presumption would require this Court to question the veracity of official statements made by a Member of Congress, who is a duly constituted committee chairman. That suggestion is, at best, impractical, and at worst, positively offensive. Rep. Leach also argues that Defendants "admit deferring to [Chairman Gonzalez's] view that Plaintiff is not acting with the authorization of Congress." Opposition at 33. However, Defendants have not deferred to Chairman Gonzalez. Defendants determined that the Plaintiff was not "Congress" for purposes of 5 U.S.C. § 552(d) long before Defendants received Chairman Gonzalez's letters. Chairman Gonzalez's letters, in his official capacity as Chairman of the Committee, were simply additional pieces of information from Congress regarding the factual context in which Rep. Leach's requests were made, and they confirm that Defendants' earlier conclusions were correct. There is nothing improper in Defendants' consideration of Congressional intent. To the contrary, if Murphy is applicable, then it is necessary for agencies to consider such Congressional direction to determine whether the requests they receive are requests from "Congress" for purposes of FOIA. IV. FIRREA IMPOSES NO PRODUCTION REQUIREMENTS ON THE DEFENDANTS. The Opposition argues that Defendants' refusal to allow Rep. Leach access to documents frustrates his oversight functions under FIRREA. Opposition at 35. However, FIRREA does not require Defendants to produce documents, nor does Rep. Leach argue that it does. 25 25 The Opposition contends that Defendants interpret FIRREA to require production of documents only to the Chairman of the Committee. Opposition at 35 n.17. That statement is incorrect. FIRREA does not require Defendants to provide any documents, except the reports (continued...) DC01:35006 -31 |