Honorable James A. Leach Page 10 Exemption 4 Exemption (4) of the FOIA allows an agency to withhold from public disclosure "trade secrets and commercial or financial information obtained from a person and privileged or confidential." 5 U.S.C. § 552 (b) (4). Where the submission of information to the government is voluntary, commercial and financial information is deemed to be confidential for purposes of exemption (4) if it would customarily not be disclosed to the public. Critical Mass Energy Project v. Nuclear Regulatory Commission, 975 F.2d 871, 879 (D.C. Cir. 1992 (en banc) cert. denied 113 S.Ct. 1579 (1993). Madison's customers voluntarily submitted their financial information to that institution by virtue of their voluntary decision to bank there. When the Federal Government intervened at Madison, it assumed the institution's position pertaining to the voluntary relationship. Consequently, financial information contained within transaction files now in the possession of the RTC was voluntarily submitted to the RTC, albeit indirectly. Bank customers do not customarily make their financial information voluntarily available to the general public. In fact, a bank's customers have a legitimate interest in keeping the non-public aspects of their financial transactions confidential. See, .g., In re Knoxville News-Sentinel, Company, Inc., 723 F.2d 470, 477 (6th Cir. 1983) (non-FOIA case, documents sealed "to protect the privacy rights of borrowers who dealt with the bank"). We, therefore, conclude that actual records of a customer' transactions and references to those transactions in the Madison Guaranty Board of Director's Minutes, or on lists of Madison assets, were properly withheld pursuant to exemption (4). Rural Housing Alliance v. United States Department of Agriculture, 498 P.2d 73, 78 (D.C. Cir. 1974). Exemption 5 See Exemption 5 exempts from disclosure "inter-agency or intraagency memorand[a] or letters which would not be available by law to a party . . . În litigation with the agency." 5 U.S.c. S 552 (b) (5). Exemption (5) incorporates and includes within its scope the protection of documents that would not be available to a private party through discovery in civil litigation. United States v. Weber Aircraft Corp., 465 U.S. 792 (1984); FTC v. Grolier Inc., 462 U.S. 19 (1983). In other words, documents which are privileged in civil discovery are withholdable under Exemption 5. Three specific privileges are being asserted by the RTC with regard to the Gerrish Report, portions of those litigation files that Michael McGarry requested access to, and the identities of the seven files redacted from the Kansas City RLIS printout. Those privileges are the attorney-client privilege, the deliberative process privilege, and the attorney work-product privilege. Honorable James A. Leach The attorney-client privilege protects confidential communications between an attorney and the attorney's client. Mead Data Cent., Inc. v. Department of the Air Force, 566 F.2d 242, 252 (D.C. Cir. 1977). The Gerrish Report was an analysis of potentially illegal activity alleged at Madison Guaranty and was prepared for the institution by its attorney. As such, it clearly was protected by the attorney-client privilege at the time it was created. At the time the RTC assumed jurisdiction over Madison, it also assumed the client status. Since that document is still confidential, and contains communication between the attorney and the attorney's client, the RTC, the information is protectable by the privilege. Moreover, portions of litigation files that were withheld contain correspondence between the RTC and outside counsel which is similarly protected by this privilege. In the The attorney work-product privilege protects documents and other memoranda prepared by an attorney in anticipation of litigation. Hickman v. Taylor, 329 U.S. 495, 509-10 (1947); Fed. R. Civ. P. 26(b) (3). The purpose of the privilege is "to promote the adversary system by safeguarding the fruits of the attorney's trial preparations from discovery attempts of the opponent." United States v. American Telephone & Telegraph Co., 642 P. 2d 1285, 1299 (D.C. Cir. 1980). In this particular case, the attorney work-product privilege is being used to withhold portions of the litigation files in Kansas City and the identities of those cases redacted on the RLIS printout. case of the litigation files, the documents consist of information reflective of the RTC's litigation strategy. fact the litigation may have been terminated does not limit the ability of the agency to invoke the privilege. FTC v. Grolier Inc., 462 U.S. 19, 28 (1983). In the case of the redacted matters on the RLIS printout, the RTC only redacted those matters that had not yet become public, e.g., litigation was being contemplated. Because such litigation had not yet become public, to disclose those matters at this time would undermine the adversarial litigation system. Accordingly, this information was properly withheld pursuant to the attorney work-product privilege. The The final exemption being invoked is the deliberative process privilege. This privilege applies to documents that reflect deliberations which are part of an internal decisionmaking process. NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975). To be protected, a document must be pre-decisional or generated before the adoption of an agency policy or decision. Coastal States Gas Corp. v. Department of Energy, 617 P.2d 854 (D.C. Cir. 1980). In this particular case, documents located in the Kansas City litigation files clearly reflect the decisional process regarding how to proceed with the litigation. Accordingly, they are protected by the deliberative process. Similarly, the Gerrish Report consists of advice and Honorable James A. Leach Page 12 recommendations pertaining to activities in Madison which the RTC has included in its decisional process on how to proceed in this matter. Exemption 6 Exemption 6 was the basis for withholding information pertaining to individual financial records (e.g., loan or deposit information) of customers of Madison, salaries of employees of Madison Guaranty, and constituent names on Congressional correspondence pertaining to Madison. FOIA exemption (6) allows an agency to withhold all information about individuals in "personnel and medical files and similar files" where the disclosure of such information "would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. $ 552 (b) (6). In making this determination, the individual's privacy interests are balanced against the public's interest in having the information disclosed. The threshold requirement of exemption (6), that information be contained in a personnel, medical, or similar file, has been construed by the Supreme Court to extend the coverage of the exemption to any agency records containing information about a particular individual that can be identified as applying to that individual. Department of State v. Washington Post Co., 456 U.S. 595 (1982). Moreover, in analyzing privacy interests, the Supreme Court has held that disclosure depends upon the nature of the requested documents and its relationship to the central purpose of the FOIA, which is to expose to public scrutiny [0]fficial information that sheds light on an agency's Department of Justice v. Reporters Committee for Freedom of the To the extent you have requested access to an individual's personal banking records or documents that reflect such information, we find such records do not shed "light on the [RTC's] performance of its statutory duty." The actual banking Honorable James A. Leach records themselves "reveal little or nothing about [the RTC's] own conduct." Accordingly, this information was properly withheld pursuant to exemption (6).' Thus we conclude that actual transaction files of persons who were customers of Madison Guaranty and references to those individuals' transactions in the Madison Guaranty Board of Director's Minutes or in various asset inventories (document no. 622), are exempt from disclosure under exemption (6), inasmuch as disclosure of an individual's financial records would constitute a clearly unwarranted intrusion into those individuals' personal privacy. See, e.g., National Ass'n of Retired Federal Employees v. Horner, 879 F.2d 873, 875 (D.C. Cir. 1989), cert. denied, 494 U.S. 1078 (1990). In regard to the salaries of Madison employees listed in the Bidders Information Package, this information was also properly withheld pursuant to exemption 6. As the D.C. Circuit noted, a person's privacy interest is significant when the individual's name is associated with financial information. Id. An individual's income level is quintessentially protected under exemption 6. See, .g., Public Citizen, Inc. v. RTC, Civ. No. 92-0010, slip op. at 8 (D.D.C. Mar. 19, 1993) (identities of those individuals who applied for affordable housing are To the extent an individual's banking records have been utilized by RTC investigations, that information would be withheld if it were incorporated in investigatory files, which at this point the RTC would neither confirm or deny, pursuant to Exemption 7 (C), 5 U.C.S. $552 (b) (7) (C), which allows records compiled for law enforcement purposes to be withheld if production of such records "could reasonably be expected to constitute an unwarranted invasion of personal privacy." See, e.g., Fitzgibbon v. CIA, 911 F.2d 755, 767 (D.C. Cir. 1990) ("the mention of an individual's name in a law enforcement file will engender comment and speculation and carry a stigmatizing connotation"). Such information, if it were incorporated into investigatory files, would also be properly withheld pursuant to Exemption 7(A) (see the Exemption 7(A) discussion). 'To the extent that you are seeking access to public information that may be located in individuals' banking files (e.g., recorded deads, etc), the Supreme Court squarely addressed this issue several years ago in Reporters Committee when it stated that substantial privacy interests can exist even though the information has been made available at some time at some undisclosed location. As the Court noted, if this practically obscure information "were 'freely available' there would be no reason to invoke the FOIA to obtain access to" it. Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 764 (1989). Accordingly, public information in individual's banking files may properly be withheld pursuant to Exemption 6. an Honorable James A. Leach Page 14 withholdable because they would be linked to income levels). Accordingly, the salaries of Madison employees were properly withheld. In regard to the identities of the constituents on Congressional correspondence, they also were properly withheld pursuant to Exemption 6. The nature of a constituent request is ordinarily seeking assistance, and many constituents recount personal financial hardships or other circumstances in their communication. In Holy Spirit Association v. Department of State, the District Court of the Southern District of New York found a privacy interest in a similar batch of letters between constituents and their United States Senators. In weighing the public interest in disclosure against the privacy interest of the individual, the Court resolved the balancing test in favor of the individual stating: [t]he Court is unable to discover how the disclosure of their identities would have the opposite result of 526 F. Supp. 1022, 1034 (S.D.N.Y. 1981). In order to continue to protect the privacy of the individual constituents, their names and other identifying information were properly withheld pursuant to Exemption 6. Exemption 2(A) Exemption 7 (A) authorizes the withholding of "records or information compiled for law enforcement purposes, but only to the extent that production of such law enforcement records or information. ... could reasonably be expected to interfere with enforcement proceedings." 5 U.S.c. § 552(b) (7) (A). law enforcement proceedings does not have to be based upon a document-by-document assessment, instead it can be made generically, based on the type of record requested. NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 236 (1978). Harm to It has long been accepted by Courts that Exemption 7(A) was intended to apply "whenever the government's case in court would be harmed by the premature release of evidence or information," Id., at 232, or where disclosure would in some fashion impede any necessary investigation prior to the actual enforcement proceeding. See, e.g., Dickerson v. Department of Justice, 942 F.2d 1426, 1429 (6th Cir. 1993). As you well know, investigations into Madison-related matters are being undertaken by both the RTC and the office of the Special Counsel. То |