Case 1:12-cv-01342 Document 1 Filed 08/14/12 Page 1 of 9 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) ) ) ) ) ) ) Plaintiff, ) ) v. ) ) NATIONAL ARCHIVES AND RECORDS ) ) ADMINISTRATION 700 Pennsylvania Ave, NW ) Washington, D.C. 20408 ) ) Defendant ) __________________________________________ ) CAUSE OF ACTION, INC. (formerly Freedom Through Justice Foundation) 2100 M Street N.W. Suite #170-247 Washington, DC 20037-1233 COMPLAINT Plaintiff Cause of Action, formerly Freedom Through Justice Foundation ("Plaintiff") hereby files this complaint for compliance with the Freedom of Information Act, 5 U.S.C. ? 552 et seq. ("FOIA"). As grounds therefore, Plaintiff respectfully alleges as follows: JURISDICTION AND VENUE 1. This Court has jurisdiction pursuant to 5 U.S.C. ? 552(a)(4)(B) and 28 U.S.C. ? 1331. It may grant declaratory relief pursuant to 28 U.S.C. ? 2201, et seq. and award costs and attorneys' fees pursuant to 28 U.S.C. ? 2412 and 5 U.S.C. ? 552(a)(4)(E). 2. Venue is proper pursuant to 28 U.S.C. ? 1391(e)(1)(C) and 5 U.S.C. ? 552(a)(4)(B). PARTIES 3. Plaintiff Cause of Action (formerly known as "Freedom Through Justice Foundation") ("CoA"), whose principal place of business is 2100 M Street N.W., Suite 170-247, Case No. _____________________ Judge: _______________________ Case 1:12-cv-01342 Document 1 Filed 08/14/12 Page 2 of 9 Washington, D.C. 20037, is a non-partisan, non-profit organization that uses public advocacy and legal reform strategies to ensure greater transparency in government and protect taxpayer interests and economic freedom. Plaintiff, who requested certain documents under FOIA, intends to disseminate the requested documents to its supporters and benefactors, government officials, appropriate news media, and to the American public at large. The documents Plaintiff seeks are likely to contribute significantly to the public's understanding of the operations and activities of the Financial Crisis Inquiry Commission ("FCIC") and National Archives and Records Administration ("NARA"). Plaintiff is empowered to undertake educational and other programs to promote and protect the public interest in connection with this and other matters. 4. Defendant, National Archives and Records Administration ("NARA"), is a 5 U.S.C. ? 552(f)(1) "agency" and an instrumentality of the United States. NARA has possession, custody, and control of the records that are the subject of this Complaint, but has illegally denied CoA access to same. FACTS 5. Section 5 of the Fraud Enforcement and Recovery Act of 2009 ("FERA"), Pub. Law No. 111-21, ? 5, 123 Stat. 1617, 1625-31 (2009) created the Financial Crisis Inquiry Commission ("FCIC") to report to Congress and the President its findings and conclusions on the causes of the U.S. financial and economic crisis. 6. FCIC was directed to advise the Attorney General of the United States of any person that may have violated federal law in connection with the financial crisis. 7. FERA did not exempt FCIC, or other agencies in possession or control of FCIC records, from compliance with the Freedom of Information Act, 5 U.SC. ? 552 et seq. ("FOIA"). 2 Case 1:12-cv-01342 Document 1 Filed 08/14/12 Page 3 of 9 8. As authorized by 5 U.S.C. App. II ? 4(b) of the Federal Advisory Committee Act (FACA), Section 5(g) of the FERA specifically exempts the FCIC from the disclosure requirements that the FACA--which only applies to bodies that, inter alia, advise the Executive branch per 5 U.S.C. App. II ? 3(2)--would otherwise impose. 9. Section 5(b)(2)(B) of the FERA explicitly prohibited members of Congress and their employees from serving as members of the FCIC. 10. No members of Congress or their employees served on the FCIC. 11. FCIC's investigation included nineteen (19) days of public hearings and more than seven hundred (700) witness interviews. 12. On or around February 13, 2011, without any express Congressional authorization, the FCIC, on its own initiative, selectively released records including, e-mails, audio recordings and transcripts of interviews, and reports and fact sheets developed by FCIC staff-- to Stanford Law School ostensibly for public distribution. 13. Although Section 5(h) of the FERA provided that the FCIC's report on the financial crisis was due on December 10, 2010, the FCIC did not deliver its statutorily mandated report to the President, Congress, and the public at large until January 27, 2011. 14. Pursuant to FERA, the FCIC terminated on February 13, 2011, without a successor in function. 15. On February 10, 2011, Phil Angelides, FCIC Chairman, sent a letter to Archivist of the United States, David Ferriero ("Letter"), stating his position that, with the sole exception of FCIC records that the Commission had previously selected to release to the public on its own initiative, NARA should impose a five-year categorical bar on public access to FCIC records, claiming that FCIC records are not subject to FOIA. (Exhibit 1). 3 Case 1:12-cv-01342 Document 1 Filed 08/14/12 Page 4 of 9 16. Chairman Angelides's letter regarding the release of FCIC records did not reflect the views of one or more of the Commissioners on the FCIC; for example, Commissioner Peter Wallison believed that the public should have access to all FCIC documents except those records provided to the FCIC on condition of confidentiality. Wallison was not even aware of this Letter, which expresses a position materially inconsistent with his own views. 17. FCIC did not have either a legal obligation to transfer, or a regular, established practice of transferring its records to NARA. However, on or about February 11, 2011, FCIC entered into a Standard Form Agreement (using Standard Form 258) to Transfer Records to the National Archives of the United States (the "Agreement"), thereby transferring legal custody of FCIC records to Defendant from the FCIC. (Exhibit 2). 18. On information and belief, Sarah Zuckerman, whose signature appears on the "Agency Approval" portion of the Agreement and purportedly was authorized to execute the Agreement on behalf of the FCIC, was a low-level staff member on the FCIC on or about February 11, 2011. 19. In the Agreement, the certification by the "transferring agency" (FCIC) that "any constrictions on the use of these records are in conformance with the requirements of 5 U.S.C. ? 552 [i.e. FOIA]," was crossed out by a hand-drawn line. 20. The Terms of Agreement section of the Agreement also provides that the transfer of FCIC records is in accordance with 44 U.S.C. ? 2108. 21. The Terms of Agreement did not provide that the FCIC documents and communications were transferred to Defendant pursuant to 44 U.S.C. ? 2118, which pertains to transfer of records from Congress and its committees. 4 Case 1:12-cv-01342 Document 1 Filed 08/14/12 Page 5 of 9 22. The Terms of Agreement section of the Agreement provided that the transfer of FCIC records is in accordance with 44 U.S.C. ? 2107(1), which, inter alia, authorizes Defendant to accept for deposit "the records of a Federal Agency," so long as the Archivist of the United States believes it "to be in the public interest." 23. On information and belief, Congress did not through letter, resolution, or any other expression of intent, provide instructions regarding NARA's use and/or disclosure of the requested FCIC records. 24. On information and belief, the House Committee on Oversight and Government Reform ("Oversight Committee") requested FCIC records, including e-mails, from FCIC in late 2010 and early 2011. 25. On information and belief, NARA produced many or all of the records requested by the Oversight Committee in an electronic format on electronic discs. 26. On information and belief, NARA's production was not pursuant to a subpoena or any other form of legally-compelled disclosure. 27. On information and belief, the FCIC records produced to the Oversight Committee by NARA had been concatenated or otherwise assembled, organized, cataloged, or combined in a searchable format prior thereto. 28. On information and belief, certain of the FCIC records produced to the Oversight Committee by NARA were received in the form of database files, which were subsequently uploaded into Concordance, a form of discovery management software, by the Oversight Committee. 29. On information and belief, NARA has, at minimum, created database files of the FCIC records. 5 Case 1:12-cv-01342 Document 1 Filed 08/14/12 Page 6 of 9 30. The FCIC website, as it existed on March 10, 2011, "is a federal record managed on behalf of" NARA that is publicly available at http://cybercemetery.unt.edu/archive/fcic/20110310172443/http://fcic.gov/ (last visited March 5, 2012) that contains FCIC records under NARA's custody and control. 31. On October 3, 2011, CoA, as Freedom Through Justice Foundation, sent a FOIA request to NARA for all FCIC records transferred to the Oversight Committee. CoA also asked for waiver of search and duplication fees pursuant to 5 U.S.C. ? 552(a)(4)(A)(ii)(II) and 5 U.S.C. ? 552(a)(4)(A)(iii). (Exhibit 3.) 32. By letter dated December 1, 2011, NARA designated Plaintiff's October 3, 2011 FOIA request LL-12-143 and then denied it on grounds that FCIC records are not "agency records" that must be disclosed pursuant to FOIA's disclosure provisions and that the FCIC established a five-year restriction on public access to FCIC records which it had chosen not to release. (Exhibit 4.) 33. By letter dated January 5, 2012, CoA timely appealed. (Exhibit 5.) 34. On or about January 13, 2012, NARA acknowledged receipt of CoA's appeal. (Exhibit 6.) Final agency action denying the appeal occurred on or about February 6, 2012. (Exhibit 7.) NARA never addressed CoA's request for waiver of search and duplication fees. 35. Both NARA's December 1, 2011 FOIA denial letter and its February 6, 2012 appeal denial letter were silent as to Plaintiff's request for a fee waiver. 36. On information and belief, many of the FCIC records transferred to Defendant on or about February 11, 2011, were not created by the FCIC but by Executive branch agencies and others. 6 Case 1:12-cv-01342 Document 1 Filed 08/14/12 Page 7 of 9 37. On or about March 13, 2012, former FCIC Commissioner Peter Wallison wrote to NARA requesting access to FCIC records needed by him to respond to statements in a July 13, 2011 report by the minority staff of the Committee on Oversight and Government Reform, U.S. House of Representatives, that made use of FCIC materials from NARA. 38. On information and belief, NARA General Counsel Gary Stern told Wallison that "NARA's policy is that any commissioner of any commission (including the Financial Crisis Inquiry Commission) has the right to review documents in case--among other things--the commissioner is called to testify in a legal or congressional proceeding." 39. On information and belief, on or around March 29, 2012 Mr. Stern told Commissioner Wallison NARA would not allow Mr. Wallison to seek assistance from third parties (including counsel) to access FCIC records. 40. On information and belief, Mr. Stern also told Commissioner Wallison that NARA has the originals of all FCIC records, including records provided to the Oversight Committee. 41. By letter dated April 18, 2012, Mr. Stern responded to an April 5, 2012 email from Peter Wallison and stated: Only in the past few years have members of commissions requested that the Archivist of the United States allow for continued access by former commissioners and their senior staff. The request was premised on the limited need to prepare for possible subsequent congressional hearings or queries on the work of the commission. There is no statutory or regulatory requirement that the Archivist grant this request. However, the Archivist has determined that it is reasonable to grant former Commissioners and their senior staff continued access to the records of the Commission for the limited purpose described above. This discretionary access is limited to the persons named in the request letter from the former Chairman of the Commission, and thus does not extend to other persons, including representatives of the named persons. 42. On information and belief, Defendant has integrated the FCIC records into its files and record system in the legitimate conduct and course of its official duties. 7 Case 1:12-cv-01342 Document 1 Filed 08/14/12 Page 8 of 9 COUNT 1 FOR VIOLATION OF FOIA 43. CoA repeats paragraphs 1 - 42. 44. CoA has exhausted applicable administrative remedies. 45. NARA's failure to disclose the documents requested by CoA violates FOIA, 5 U.S.C. ? 552. 46. CoA is entitled to injuctive relief compelling the release and disclosure of the requested records. COUNT II FOR A FEE WAIVER 47. CoA repeats paragraphs 1-42. 48. CoA has exhausted applicable administrative remedies. 49. NARA's failure to grant CoA's request for a search and duplication fee waiver violates FOIA, 5 U.S.C. ? 552. REQUESTED RELIEF WHEREFORE, Plaintiff respectfully requests that this Court grant the following relief: I. Enter an order: a. Declaring that NARA has wrongfully withheld the requested FCIC records; b. directing NARA to search for all records responsive to CoA's request and then demonstrate that it employed appropriate search methods; c. directing NARA to produce by a date certain all non-exempt records and a Vaughn index of all records withheld under claim of exemption; and 8 Case 1:12-cv-01342 Document 1 Filed 08/14/12 Page 9 of 9 d. declaring that Plaintiff is entitled to a waiver of both search and duplication fees pursuant to 5 U.S.C. ? 552(a)(4)(A)(ii)(I) and 5 U.S.C. ? 552(a)(4)(A)(iii). II. Issue a permanent injunction directing NARA to disclose and release to CoA all wrongfully withheld records. III. Maintain jurisdiction over this action until NARA complies with the FOIA and all orders of this Court. IV. V. Award CoA's attorneys' fees and costs pursuant to 5 U.S.C. ? 552(a)(4)(E). Grant such additional and further relief to which CoA may be entitled. Respectfully submitted, _s/ Karen M. Groen_______________ KAREN GROEN (D.C. Bar No. [501846] SENIOR OVERSIGHT COUNSEL Cause of Action, Inc. 2100 M Street, NW Suite 170-247 Washington, D.C. 20037-1233 (202) 507-5880 (telephone) (202) 507-5881 (facsimile) 9 S-44 Rev 2111 DC CAUSE OF ACTION Case 1:12-cv-01342 Page 1 of 2 (IJ) COUNTY OF RESIDENCE FERST LISTED (EXCEPT IN PLAIN CASFS) in (FIRM NAME ADDRESS AND Tri aanone NUMBER) .Karen M. Groen >>Cause of Action 2100 Street Suite 170-247 Washington 20037 (202) 507-5880 NATIONAL ARCHIVES AND RECORDS ADMINISTRATION COUNTY OF RESEDENCII FIRST I ISTED DEFENDANT (IN U.S. CASFS ONLY) NOTE: IN I AND CONDEMNATION CASES USE THE LOCATION OF THE TRACT OF I AND INVOLVED ATTORNEYS (IF KNOWN) II BASIS OF .TURISDICTION CITIZENSHIP OF PRINCIPAL PARTIES (PLACE AN ir IN ONE BOX (PLACE AN IN GNL BOX ONE Y) POR PLAIN TIFF AND ONE BOX FOR DEFENDAN I) FOR DIVERSITY CASES I U.S. Government A 3 Federal Question Plaintiff (U.S. Govcmment Not a Party) 2 Government 4 Diversity PT DF 1 DFT Citizen of this State 1 5 Incorporated or Principe! Place 4 I of Business in This State HI of Business ln Another State ar les In I em I Citizen or Subject ofa 3 3 Forelgn Country Foreign Nation 6 IV CASE ASSIGNMENT AND NATURE OF SUIT lace a in one cate or A N, that best re a resents our cause of action and one in a corres ondm Nature of Suit A Personal Injury/ Agency Review 1:1 151 Medica: Act 410 Antitrust 310 Alrplane cm; Seam 315 An plane Product Liability (1395f0 320 Assault, Llbel Slandel 862 Bl 923 II 330 Federal Employels Liability an Img( CI 340 Mm me 863 DIWCIDIWVW [405(g) It 345 Marine Product Liability 864 SSID XVI 865 RSI (40S(g) II 350 Motor Vehicle otha] qt tutes 355 Motor Vehicle P1 oduet Liability a 891 Agricultural Acts 892 Economic Stabilization Act 365 Product Magegs 368 Asbestos Product nelgy mia mn 890 Other Statutory Actions (If (C) Temporary Order/P1 elrmm at Injunctron Any natuie of suit from any category may bc selected this category of case assignment *(It`Antlt: ust, then A governs)* Administrative Agency is Involved) Real Property 210 Land Condemnation 220 Foreclosure E230 Rent, Lease Ejectment Torts to Land E245 I ort Product Liability 1:1290 All Other Real Property sonai Paoperg E370 Other Fraud |2371 Truth in I ending |3380 Other Personal Property Damage Propet-ry Damage Pmuucr Liabiziiy Bankru tc 462 [1 465 423 awal 28 USC 157 620 Other Food &Drug Prisoner Petitions 535 Death Penalty 540 Mandamus Other 550 Civil Rights 555 Prison Condition Property Rights 320 Copyrights 830 Patent Cl 840 'I`rademark Federal Tax Suits 870 Taxes (US plaintiff or defendant 371 :ns-Third Party 26 ij 625 Drug Related Seizure 470 oI`Property 21 USC 881 630 Liquor Laws 640 RR Truck 650 Airline Regs 660 Occupational Safetyfliealth 690 other Other Statutes kj 430 Banks Banking 450 460 Deportatlon 480 490 310 11| 060 [1 075 [1 900 890 Naturalization Application Other Immigration Actions Raclteteer lnituenced Corrupt Olgantzatlons Consumer Credit CablefSatel!1te TV Selective Service Exchange Customer Challenge 12 USC 3410 Appeal offce determination under equal access to Justice Constitutiouality of State Statutes Other Statutory Actions (if not administrative agency review or Privacy Act (C) ddP"lPl 5 5 Defendant (Indicate Citizenship of Citizen of Another State - 2 2 Incorporate an fmcipa ace . . . 422 Appeal 28 USC 158 ij 610 Agriculture USC 7609 <0 Pro Se General 400 State Reapportionrnent 950 2255 530 I-Iabeas Corpus-General [1 S10 Motionf'Vacate Sentence l:l 463 Habeas Corpus - Allen G. Habeas Corpus Detainee 1 K. (non employment) 710 Fair Labor Standards Act lj 720 I ahortivlgnit Relations [Il 730 Laho1'!MgInt Reporting Disclosure Act 740 Labor Railway Act 790 Other Labor Litigation 791 Emp! Inc Security Act V. ORIGIN 1 0 . lj 442 Civil Rights-Employment 5 5 Emptoyment (criteria nationat on igin, discrimination disahihty age religion retaliation) *(1f pro se, select this decIt)* L. Other Civil Rights (non employment) 441 Voting (rf not Voting Rights Act lj 443 I-IousingtAccommodat1ons 444 Welfare 440 other Cavs Rights ij 445 American ivmisabilities- Employment 446 Americans Other is 1 I '?Ci'9l9 I. 9 J. Student Loan ACT l:i 152 Recovery ofllefaulted S95 Fi eedorn of Information Act Student Loans 890 Otller Statutol) Actions (excluding veterans) (if Privacy Act) - *(If pro sc, select this deck)* (C) M. Contract N. ltree-Judge Court 110 Insurance 441 Civil Rights-Voting 120 Marine (1i`Votlng Rights Act) 130 Miller Act 140 Negotiable Instrument 150 Reeovei of Overpayment Enforcement of Judgment 153 Recover) of Ovcrpayment of Veteran Benctits 160 Stoekholder's Suits 190 Other Contracts 195 Contract P1 odoct Liahihty 196 Franchise 10riginaI 2Removed Sllemanded from 4Reinstatcd 5Transferred from 6Mnlti district 7Appeal to Proceeding from State Appellate Court or Reopened another district Litigation District udgc Court (specify) from Mag. Judge VIL CAQSJQ 9151. UE U-.S LQIY Us ABE AED 91131113 Qd1lS_Esl_ I5 U.S.C. 552: NARA has failed to produce records in response to CoA's FOIA request and did not address fee waiver request. I --1 VII. REQUESTED IN CHECK IF THIS IS A CLASS DEMAND I Check YES onl if demanded in compir COMPLAINT lj ACTION UNDER F.R.C.P. 23 JURY YES N0 lil RELATED (See instruction) YES NO iz! If yes, please compiete related case form. IF ANY i --7 I DATE 2 (5/1 2,51 5 SIGNATURE or .4'1"r'onNev or nncono - .gag 1 71 2 FOR COMPLETIN COVER SHEET JS-44 Authority for Civil Cover Sheet The JS-44 civil cover sheet and the information contained herein neither repi aces nor suppiements the filings and service of pleadings or other papers as required by Eaw, except as provided by local rules of court. This form, approved by the .iudiciai Conference ofthe United States in September 1974, is required for the use ofthe Clerk of Court forthe purpose of initiating the civil docket sheet. Consequently a civil cover sheet is submitted to the Clerk of Court for each civil complaint tiled. Listed below are tips for completing the civil cover sheet. These tips coincide with the Roman Numerals on the Cover Sheet. I. COUNTY OF RESIDENCE OF FIRST LISTED PLAINTEFFIDEFENDANT (IJ) County of residence: Use 1 1001 to indicate plaintiff is resident of Washington, 38888 if piaintiff is resident ofthe United States but not of Washington, DC., and 99999 if plaintiff is outside the United States. CITIZENS HIP OF PRINCIPAL PARTIES: This section is completed grill if diversity of citizenship was selected as the Basis of Jurisdiction under Section Il. IV. CASE ASSIGNMENT AND NATURE OF SUIT: The assignment of a judge to your case depend on the category you select that best represents the primagg cause of action found in your complaint. You may select only eategoiy. You must also select corresponding nature of suit found under the category of case. VI. CAUSE OF Cite the US Civil Statute under which you are filing and write a brief Statement ofthe primary cause. RELATED CASES, IF ANY: if you indicated that there is a reiated case, you must complete a related case form, which may be obtained from the Clerk's Office. Because ofthe need for accurate and eompicte information, you should ensure the accuracy of the information provided prior to signing the form, Case 1:12-cv-01342 Document 1-2 Filed Page 1 of 1 C0-386-online 10/03 United States District Court For the District of Columbia CAUSE OF AcTroN VS 3 civil Action Na. NATIONAL ARCHIVES AND RECORDS ADMINISTRATION 3 Defendant CERTIFICATE RULE LCVR 7.1 1, the undersigned, counsel of record for C3U59 of Action certify that to the best of my knowledge and belief, the following are parent companies, subsidiaries or affiliates of Cause UI A9000 which have any outstanding securities in the hands of the public: None These representations are made in order that judges of this court may determine the need for recusai. Attorney of Record Qi Signature I D.C. Bar No. 501846 Karen M, Groen BAR IDENTIFICATION NO. Print Name 2100 IVI Street, N.W., Suite Address Washington, D.C. 20037 City State Zip Code (202) 507-5880 Phone Number Case 1:12-cv-01342 Document 1-3 Filed 08/14/12 Page 1 of 2 AO 440 (Rev. 12/09; DC 03/10) Summons in a Civil Action CLEAR FORM UNITED STATES DISTRICT COURT for the District of Columbia __________ District of __________ CAUSE OF ACTION Plaintiff v. NATIONAL ARCHIVES AND RECORDS ADMINISTRATION Defendant ) ) ) ) ) ) ) Civil Action No. SUMMONS IN A CIVIL ACTION To: (Defendant's name and address) U.S. Attorney General 950 Pennsylvania Avenue, NW Washington, D.C. 20530 A lawsuit has been filed against you. Within 21 days after service of this summons on you (not counting the day you received it) -- or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3) -- you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff's attorney, whose name and address are: Karen M. Groen Cause of Action 2100 M Street, N.W., Suite 170-247 Washington, D.C. 20037 If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court. ANGELA D. CAESAR, CLERK OF COURT Date: Signature of Clerk or Deputy Clerk Case 1:12-cv-01342 Document 1-3 Filed 08/14/12 Page 2 of 2 AO 440 (Rev. 12/09; DC 03/10) Summons in a Civil Action (Page 2) Civil Action No. PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l)) This summons for (name of individual and title, if any) was received by me on (date) . ' I personally served the summons on the individual at (place) on (date) ' I left the summons at the individual's residence or usual place of abode with (name) , a person of suitable age and discretion who resides there, on (date) , and mailed a copy to the individual's last known address; or , who is on (date) ' I returned the summons unexecuted because ' Other (specify): . ; or ; or ; or ' I served the summons on (name of individual) designated by law to accept service of process on behalf of (name of organization) My fees are $ for travel and $ for services, for a total of $ 0.00 . I declare under penalty of perjury that this information is true. Date: Server's signature Printed name and title Server's address Additional information regarding attempted service, etc: Print Save As... Reset Case 1:12-cv-01342 Document 1-4 Filed 08/14/12 Page 1 of 2 AO 440 (Rev. 12/09; DC 03/10) Summons in a Civil Action CLEAR FORM UNITED STATES DISTRICT COURT for the District of Columbia __________ District of __________ CAUSE OF ACTION Plaintiff v. NATIONAL ARCHIVES AND RECORDS ADMINISTRATION Defendant ) ) ) ) ) ) ) Civil Action No. SUMMONS IN A CIVIL ACTION To: (Defendant's name and address) National Archives and Records Administration 700 Pennsylvania Ave., N.W. Washington, D.C. 20408 A lawsuit has been filed against you. Within 21 days after service of this summons on you (not counting the day you received it) -- or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3) -- you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff's attorney, whose name and address are: Karen M. Groen Cause of Action 2100 M Street, N.W., Suite 170-247 Washington, D.C. 20037 If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court. ANGELA D. CAESAR, CLERK OF COURT Date: Signature of Clerk or Deputy Clerk Case 1:12-cv-01342 Document 1-4 Filed 08/14/12 Page 2 of 2 AO 440 (Rev. 12/09; DC 03/10) Summons in a Civil Action (Page 2) Civil Action No. PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l)) This summons for (name of individual and title, if any) was received by me on (date) . ' I personally served the summons on the individual at (place) on (date) ' I left the summons at the individual's residence or usual place of abode with (name) , a person of suitable age and discretion who resides there, on (date) , and mailed a copy to the individual's last known address; or , who is on (date) ' I returned the summons unexecuted because ' Other (specify): . ; or ; or ; or ' I served the summons on (name of individual) designated by law to accept service of process on behalf of (name of organization) My fees are $ for travel and $ for services, for a total of $ 0.00 . I declare under penalty of perjury that this information is true. Date: Server's signature Printed name and title Server's address Additional information regarding attempted service, etc: Print Save As... Reset Case 1:12-cv-01342 Document 1-5 Filed 08/14/12 Page 1 of 2 AO 440 (Rev. 12/09; DC 03/10) Summons in a Civil Action CLEAR FORM UNITED STATES DISTRICT COURT for the District of Columbia __________ District of __________ CAUSE OF ACTION Plaintiff v. NATIONAL ARCHIVES AND RECORDS ADMINISTRATION Defendant ) ) ) ) ) ) ) Civil Action No. SUMMONS IN A CIVIL ACTION To: (Defendant's name and address) Civil Process Clerk United States Attorney's Office 555 Fourth Street, N.W. Washington, D.C. 20530 A lawsuit has been filed against you. Within 21 days after service of this summons on you (not counting the day you received it) -- or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3) -- you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff's attorney, whose name and address are: Karen M. Groen Cause of Action 2100 M Street, N.W., Suite 170-247 Washington, D.C. 20037 If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court. ANGELA D. CAESAR, CLERK OF COURT Date: Signature of Clerk or Deputy Clerk Case 1:12-cv-01342 Document 1-5 Filed 08/14/12 Page 2 of 2 AO 440 (Rev. 12/09; DC 03/10) Summons in a Civil Action (Page 2) Civil Action No. PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l)) This summons for (name of individual and title, if any) was received by me on (date) . ' I personally served the summons on the individual at (place) on (date) ' I left the summons at the individual's residence or usual place of abode with (name) , a person of suitable age and discretion who resides there, on (date) , and mailed a copy to the individual's last known address; or , who is on (date) ' I returned the summons unexecuted because ' Other (specify): . ; or ; or ; or ' I served the summons on (name of individual) designated by law to accept service of process on behalf of (name of organization) My fees are $ for travel and $ for services, for a total of $ 0.00 . I declare under penalty of perjury that this information is true. Date: Server's signature Printed name and title Server's address Additional information regarding attempted service, etc: Print Save As... Reset Case 1:12-cv-01342 Document 1-6 Filed Page 1 of 3 .lJPhil Angclidcs (`lmirmrm lion. Bill 'lltomns Wee Brooksley Bom Coumris.rinm=r Byron S. Georgiou Commissioner Senator Bob Graham Keith Douglas llollz-linkin Cumurisrioner Heather ll. Murren. CFA John W. Thompson Peter Wallison Wendy Edclberg Direcrm' Case 1:12-cv-01342 Document 1-6 Filed Page 2 of 3 licbruary l0, 20| I The Honorable David lierriero Archivist ol' the United States National Archives and Records Administration 860| Adelphi Road College Park, MD 20740 Dear Mr. lierrieror When the Financial Crisis Inquiry Commission (the "Commission") terminates, by statute, on liebnrary 13, 201 1, the records ofthe Commission will be translerred to the National Archives and Records Administration (NARA) l`or preservation and public access. This letter sets forth the Commissions continued interest in government and public access to information created or gathered during its investigation and establishes criteria under which these records should he made available. The Commission has established a policy ol` making available to the public as much information as possible. while saleguarding personal privacy. law enforcement. private commercial, linancial regulatory, and other sensitive information. The Commissions linal report is highly detailed and discloses a signilicant amount of previously unavailable material. ln addition. the Commission has released through its website many supplemental documents. including stall' memoranda, documentary evidence. e-mails, witness statements. interviews. transcripts and summaries. audio and video tiles. and press releases. All ol' the records and inforrnation that the Commission has made available to the public should continue to be made publicly available by NARA. This includes the records that are accessible onthe Commission's website, which NARA will maintain after February 13, 2011, and on tl1e Commission's parallel website which the Commission will establish at Stanford University. Because the Commission was established in the legislative branch, its records have not been subject to the Freedom of lnformation Act (FOIA). and we understand that the FOIA will not apply to Commission records even after they are transferred to NARA. The Commission recommends to NARA that records not already publicly available should be made available to the public, to the greatest extent possible consistent with the terms of this letter, beginning on February 13. 2016. The Commission encourages NARA to conduct a systematic review of the records that are not currently available to the _public with the goal of releasing to the public as much as is allowable by law and regulation on February 13. 2016, or as soon thereafter as possible. Records should not he disclosed immediate! after February 13, 2016, if they contain personal privacy inlormation that the Commission agreed to protect from public disclosure for longer than 5 years; (bl conlidcntiai financial supervisory or regulatory information which remains sensitive at the time of release: tc) proprietary business information which remains conlidential or contains trade secrets at the time of release. including any such in formation that the Commission has agreed will remain conlidential l`or a longer period of time; or inlormation which is otherwise barred from public disclosure by law. as determined by the Archivist. 1717 Avenue. NW, Suite 800 0 Washington. DC 20006-4614 202.292.2799 202.632.1604 Fax Case 1:12-cv-01342 Document 1-6 Filed Page 3 of 3 We understand that there will he an initial period ol' at least several months during which NARA's staf will he organizing and processing Commission's records. During this period, access to the records should he provided tothe ten members ol' the Commission (Phil Angelides, the Honorable Bill Thomas. Brooksley Born. Byron S. Cieorgiou, Senator Bob Graharn. Keith Hcnnesscy. Douglas Holtz-linkin. Heather H. Murrcn. John W. Thompson and Peter J. Wallison) and the following n1cmhersol'thc Commission stall' and advisors: Wendy Edclberg, Peter Kadxik, li-iq., Gretchen Newsom, Scott Ganz. Gary Cohen, Greg Chris Sccfer, Maryann Haggerty. and Cassidy Waskowicz. ln addition, certain administrative staff ol' Commission may have access as part ol' their duties to transfer the records to NARA. During the period when the FC IC transfers records to NARA and af ter February I3, 20| l, it is important that the ten Commissioners and the designated members ol' the Commission staff and advisors have continuing access to the Commissions records once the rcco|?ds are transl`errcd to NARA. Thank you lor your cooperation in carrying out the' ort ltask of preserving and providing access to the Commissions voluminous records. truly ours trman ri metal Crisis Inquiry Commission a gehdt.: 1 .00 0 . I. 'il Cc: Members, Financial Crisis Inquiry Commission Gary M. Stern, NARA Wendy Edelherg, Executive Director Cassidy Waskowicz, Deputy General Counsel Case 1:12-cv-01342 Document 1-7 Filed Page 1 of 2 Case 1:12-cv-01342 _Document_1-7 Filed 12=4ap Legis1an1ve archives 202501 Us p.2 -xl- .- AGREEMENT TO TRANSFER RECORDS TO 1. INTERIM Contact NO. INARA use onfw i THE NATIONAL ARCHIVES OF THE UNITED STATES -rcams OF -me mwres dosctibud GMI on U10 riugus nro napa,-mga in um Ng|u?m| U.3 2107.` . A awuraanuu witn 44 U.S.C, 2106, custody ol thaw rccurtis huctarnos me responsibility of tho Status at Ihr: time nf lruusier of It I6 :rgi rand lheanta r0C4Jrdi mu bg in zuuwtduruzu with UIC yrrivisiurrs ui 44 UASC Cliuptcf 21. 36 CFR 35 gm( 12bIj_ :intl ratmtt nlhur ruins ana togulationa as may be pi aiclibod by thu Archivist 0' lite Urtiiotl SIJIOS I I'h0 UMUSS Specified unc |USliiI0t1 hnluw. '10 rulrictiuns OI the us: uf mow rcr-.urds will bu mruuavd ulmr 1.-um :tm gnnoral :mt spucthc -1. A -Sigtiulutc Date 28. NAME. TITLE, MAILING ADDRESS Sarah Zuc Kerman Financial Crisis Inquiry Commission 1717 Ave, NW . Washington, DC 20006 I - I-I AGREEMENT restrictions on thu use ot tnoso mourns will bv Imuounu ou," . Imitation; on :no use ul records in th" ur 35 CFR Pill' 1 255 Guilt# I0 W0 /Irclrivos ortho Ur;T(ofI Status- 'ww -IvSIf?v- cons" aflusoa forms. statiurwry. nonafcnivnl Of Uf umm nm, any manner authorized hy law or reculalivfl f"fV"?f Ina my Quai," omririruuting or aamaqcd docuruents :mor may Iutvo 609460 in term Ina: nu of ,hz Intorrnmim lhu CNQIUBI Tho use and U53 ngermy tg quwm og nonafchival contained In this deposit. . Al BA NARA APPROVAL f' - - Signature 'f 38. NAME, TITLE. MAILING ADDRESS Matt Fulgham Assistant Director, Cantor for Legislative Archives (NARA) 700 Aw, NW Washington, DC 20408 N., . .. _,ii-ni* - IIA I-IFCORDS SERIES TITLE Records ofthe Financial Crisis Inquiry Commission AB. DAT SPAN OF SF RIF 2009-201 1 (Attach any additional description) 1 ?.11 5A. OR ILSTABLISI IMILNT _tnginlativre commission 5II. Mil NCY MAJOR LIC. AGENCY MINOR SUBDIVISION 1v GD. UNIT Tl FO RFCORDS SE AGENCY PERSON WITH WI IOM TO CONFER ABOUT Tl IE RECORDS Name: Sarah Zudterrnan lutephont: Number: 202-292-1388 an-an-n It ION MII Motu I Y- panning rn-cords. scneaute 1:1 CIASSIFILLD onIw\T|oN Si.-cr ct Top Scuul SPECIAL MARKINGS: Im SCI NATO Otner INFORIWXTION STATUS: tlogrogatcd Dcclussatico 1-'vu I n-$1 9. PIIYSICAI Paper Untfuments Posters Maps ana chant _microtilnvmicronche Records ul |'notograpI'Is Other (specify): 10. VCJI UMI CONIAINI NSI Cu. Mir: Cu.Ft.: 143 Numoec 2413 Type; I-RC 11. RITCOIIDS I Olt I T0 AIICHIVITS 12. ARIS RI l'Ul I.Y AVNIAIILIL FOR PUULIC YI NU (Il no, attach nnuts on use 13 ARE RECORDS QUBJECT TO TIIC YI NO .rtegivcr volume ant! D098 number nt most mcent notice and affath a copy at this notrcc) . . . . (It yes. Agency tiystont ana I-edeml B. CURRENT LOCATION DF RECORDS Agency (Complete BA only) Federal Records Center Icomplgig 33 omy) 14. AITACI IMISNTS Agency Manual Except Listing of Rorzords BA- Additional Description Form 14097 or Equivalent 1717 AVG. NW Privacy Act Notice Microform Inspection Report DC 20995 (specify): Access letter 135 35- FRC ACCIQSSION NUMBER CONTAINER NUMBERS FRC LOCATION .., --vv1. 1 .. 5. SHIPPING INSTRUCTIONS TO AGENCIESIREMARKS REGARDING nr; 143 RECORDS ACCEP IIT0 ARCHIVES OF THE UNITE STATES 17. Imrtonm. Accession no. signature af, Daw /7 AINQ, If gp/ I YIONM- ARCHIVES /wo Rfconos Aorarms mA non SF 258 (9195) by NARA 36 CFR 1225 Case 1:12-cv-01342 Document 1-8 Filed Page 1 of 8 Case 1:12-cv-01342 Document 1-8 Filed Page 2 of 8 |130 If() I VIA E-MAIL AND FIRST CLASS MAIL Mr. Gary M. Stern General Counsel National Archives and Records Administration 8601 Adelphi Road, Room 31 I0 College Park, MD 20740 garym.stern@nara.gov Re: Freedom of Information Act Reguest Dear Mr. Stern: We write on behalf ofthe Freedom Through Justice Foundation, a 50l(c)(3) nonprofit, nonpartisan public interest tinn that uses public policy and legal reform strategies to ensure greater transparency in government, protect taxpayer interests, and promote social and economic freedoms. The Financial Crisis Inquiry was created by an act of Congress in May of 2009, and was tasked with investigating and completing a report that detailed the causes ofthe economic failures in 2008. Despite the nonpartisan purpose, both the CIC and its subsequent report have been the subject of recent political controversy. Prior to the release ofthe Corrnnissiolfs report, .S. House Committee on Oversight and Government Reform Chairman Darrell Issa (R-CA) raised questions concerning the potential conflicts of interest that existed between Commission staff and several outside entities involved in suing banks targeted by the FC1C.1 Oversight Committee Ranking Member Elijah Cummings (D-MD) recently released a report finding that several ofthe decisions ofthe FCIC may have been politically rnotivated.2 Because ofthe risk of potential conflicts of interest and politicization involved at the FCIC, the public has an interest in an independent assessment of the FCIC record. DARREL1. Issn, CHRNIN., H. COMM. ON OVERSIGHT Gov'T REF. TO PHIL ANGELIDES, Clinton., FCIC (July 27", 2010), crvaifnbfe at __FClC__Budget.pdtf 2 STAFF OF H. COMM. ON OVERSIGHT AND GOVT REF, I CONE., OF ATTACKS AGAINST THE FINANCIAL CRISIS INQUIRY COMMISSION 3 [Comm. Print 201 I I available of govfirnagesf stories! I 3 -I I ,pdt`_ Case 1:12-ov-01342 Document 1-8 Filed Page 3 of 8 Mr. Gary M. Stern October 3, 2011 Page 2 of 4 rote records were deposited at the National Archives whieir subsequently shared those documents with the Oversight and Government Committee for the purpose of the Con1mittee's investigation. Freedom Through Justice Foundation is entitled to receive the aforementioned records stored with NARA and shared with the Oversight Committee. NARA is a federal agency and records under its control are subject to disclosure under FOIA. This request seeks no privileged infomation from NARA. These records are not exempt from disclosure due to privilege because they were relied upon extensively in the creation of the House Oversight and Government Reform Committee's publicly released report. And even if these records were privileged under FOIA exemption 5, which protects inter-agency or intra agency memoranda, documents lose their protection if a final decision maker chooses "expressly to adopt or incorporate" the documents by referencefi Other privileges or exemptions that might prevent disclosure are not applicable here. Congress does not enjoy the same protections as a federal agency under FOIA, and documents conveyed to Congress do not fall under the inter-agency protections? Moreover, the documents were requested by the Chairman of the House Oversight and Government Reform Committee via his subpoena powers, so the privileges that normally apply to materials requested by individual members of Congress should not apply.6 The Oversight Corn.mittee's public report has revealed the contents of the FCIC documents to the public, and it is in the pubIic's best interests to have access to the entire record. Additionally, any deliberative-process or informational-privilege claims against this request can only be raised by the FCIC, which has expressed its intent that this information eventually be made public through NARA. Pursuant to the provisions of FOIA and 5 CFR 2502, the Freedom Through Justice Foundation hereby requests that NARA produce within twenty (20) business days for the date range of May 20, 2009 to the present: all documents, including e-mail communications, memoranda, draft reports, and other relevant information andfor data contained in the records transfer of Financial Crisis Inquiry Commission documents stored at NARA to the Committee on Oversight and Government Reform at the U.S. House of Representatives. 3 Interview by sri sreffwirh Gary Stern, General ceurreei, 4 See NLRB v. Sears, Roebuck Co., 421 U.S. 132, I6l (1975) see also Niemeier v. Watergate Special Protection 565 F.2d 967, 973 (7th Cir. I977) (ordering disclosure of underlying memorandum that was expressly relied upon in final agency dispositional document). 5 see new Jones ar ce. v, noJ,91r me 571 Cir. 1990). 6 Cf Mrrgiry v. oepenmenr of Army, 613 F.2d 1 151 (oc. cir. 1979). 7 FINANCIAL CRISIS INQUIRY COMMISSION, THE CRISIS INQUIRY REPORT, XII, (2011), (The report is not a sole repository of what the panel found . more materials that cannot be released yet for various reasons will eventually be made public through the National Archives and Records Administration). Case 1:12-cv-01342 Document 1-8 Filed Page 4 of 8 Mr. Gary M. Stem October 3, 2011 Page 3 of 4 Freedom Through Justice Qualifies Under the Non-Commercial Fee Categogy The Freedom Through Justice Foundation requests a waiver of both search and duplication fees pursuant to 5 U.S.C. and 5 U.S.C. The Freedom Through Justice Foundation is a 501(c)(3), not-for-profit, representative of the news media and has no commercial purpose in requesting information. Freedom Through Justice has no commercial, trade or protit interests and is organized and operated to publish or broadcast news to the general public. Freedom Through Justice will use its editorial skills to turn raw materials into a distinct work. Freedom Through Justice Is Entitled to a Complete Waiver of Fees Freedom Through Justice requests a waiver of fees as a representative of the news media under 5 U.S.C. The disclosure of the requested information is likely to contribute signiticantly to public tmderstanding ofthe operations and activities of the govermnent and is not primarily in the commercial interest ofthe requester pursuant to 5 U_s.c. The subject matter of the requested records specifically concerns identifiable "operations or activities of the government." The disclosable portions ofthe requested information will be meaningfully informative in relation to this request. This disclosure will contribute to the understanding ofthe public at large, as opposed to the individual understanding ofthe requester or a narrow segment of interested persons. Freedom Through Justice has a dynamic and diverse staff whose range of expertise includes a combined 15 years of government oversight, investigative reporting, and federal public interest litigation experience. Production of Documents and Contact Information We call your attention to President Obaina's January 21, 2009 Memorandum concerning the Freedom of information Act, in which he states: All agencies should adopt a prestunption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA The presumption of disclosure should be applied to all decisions involving lf any responsive record or portion thereof is claimed to be exempt from production under FOIA, please provide sufficient identifying information with respect to each allegedly exempt record or portion thereof to allow us to assess the propriety of the See, ag., Carney v. U.S. Dept oflustice, 19 F.3d SGT, 314 11.3 (2d Cir. l994); Prison Legal News v. Lappin, 436 F. supp. aa ir, 21 11.5 (one. 2006). 9 PRESIDENT BARACK OBANLA., FUR THE I-LEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES, SUBJECT: FREEDOM OF ACT, Jan. 21, 2009, armiiabie or ofhceftreedom-infomtation-act . Case 1:12-ov-01342 Document 1-8 Filed Page 5 of 8 Mr. Gary M. Stern October 3, 2011 Page 4 of 4 claimed exemption" In addition, any reasonably segregable portion of a responsive record must be provided, after redaction of any allegedly exempt material.'1 In an effort to facilitate record production within the statutory time limit, the Freedom Through Justice Foundation prefers to accept documents in electronic format e-mail, .pdt`s). Vvlhen necessary, the Freedom Through Justice Foundation will accept the "rolling production" of documents. If you do not understand this request or any portion thereoli or if you feel you require clarification of this request or any portion thereot; please contact us irrnnediately via Amber Taylor or Will Hild at 703-875-8625. We look forward to receiving the requested documents and a waiver of both search and duplication costs within twenty (20) business days. Thank you for your cooperation. Sinc .. .4vLoR SENIOR RNEY Encl. "Responding to Records Requests" and "Definitions" for the purposes of this request vaughn v. Rosen, 4s4 me szo ctr. 1973;-, ea-r. aam1,415 us. arf (1974). 5 U_s.c. 552(b}. Case 1:12-ov-01342 Document 1-8 Filed Page 6 of 8 Responding to Document Requests ln complying with this request, you should produce all responsive doctunents that are in your possession, custody, or control, whether held by you or your past or present agents, employees, and representatives acting on your behalf. You should also produce documents that you have a legal right to obtain, that you have a right to copy or to which you have: access, as well as documents that you have placed in the temporary possession, custody, or control of any third party. Requested records, documents, data or information should not be destroyed, removed, transferred or otherwise made inaccessible tothe Freedom Through Justice Foundation. In the event that any entity, organization or individual denoted in this request has been, or is also known by any other name than that herein denoted, the request shall be read also to include that alternative identification. The Freedom Through Justice Foundations preference is to receive documents in electronic form CD, memory stick, or thumb drive) in lieu of paper productions. When you produce documents, you should identity the paragraph in the Freedom Through Justice Foundation's request to which the documents respond. lt shall not be a basis for refusal to produce documents that any other person or entity also possesses non-identical or identical copies ofthe same documents. if any ofthe requested information is only reasonably available in machine-readable form (such as on a computer server, hard drive, or computer backup tape), you should consult with the Freedom Through Justice Foundation staff to determine the appropriate format in which to produce the information. if complimice with the request cannot be made in full, compliance shall be made to the extent possible and shall include an explanation of why full compliance is not possible. In the event that a document is withheld on the basis of privilege, provide a privilege log containing the following information concerning any such document: the privilege asserted; (lo) the type of document; the general subject matter; the date, author and addressee; and the relationship of the author and addressee to each other. If any document responsive to this request was, but no longer is, in your possession, custody, or control, identify the document (stating its date, author, subject and recipients) and explain the circumstances under which the document ceased to be in your possession, custody, or control. Case 1:12-ov-01342 Document 1-8 Filed Page 7 of 8 Ifa date or other descriptive detail set forth in this request referring to a document is inaccurate, but the actual date or other descriptive detail is known to you or is otherwise apparent from the context of the request, you should produce all documents which would be responsive as if the date or other descriptive detail were correct. The time period covered by this request is included in the attached request. To the extent a time period is not specified, produce relevant doctunents from January 1, 2009 to the present. This request is continuing in nature and applies to any newly-discovered information. Any record, document, compilation of data or information, not produced because it has not been located or discovered by the return date, shall be produced immediately upon subsequent location or discovery. All documents shall be Bates-stamped sequentially and produced sequentially. Definitions The term "document" means any written, recorded, or graphic matter of any nature whatsoever regardless of how recorded, and whether original or copy, including, but not limited to, the following: memoranda, reports, expense reports, books, manuals, instructions, financial reports, working papers, records, notes, letters, notices, confirmation, telegrams, receipts, appraisals, pamphlets, magazines, newspapers, prospectuses, inter-office and intra-office commtutications, electronic mail (e-mail), contracts, cables, notations of any type of conversation, telephone call, meeting or other communication, bulletins, printed matter, computer printouts, teletypes, invoices, transcripts, diaries, analyses, returns, summaries, minutes, bills, accounts, estimates, projections, comparisons, messages, correspondence, press releases, circulars, financial statements, reviews, opinions, offers, studies and investigations, questionnaires and surveys, and work sheets (and all "drafts, preliminary versions, alterations, modifications, revisions, changes, and amendments of any of the foregoing, as well as any attachments or appendices thereto), and graphic or oral records or representations of any kind (including without limitation, photographs, charts, graphs, microfiche, microfilm, videotape, recordings and motion pictures), and electronic, mechanical, and electric records or representations of any kind (including, without limitation, tapes, cassettes, disks, and recordings) and other written, printed, typed, or other graphic or recorded matter of any kind or nature, however produced or reproduced, and whether preserved in writing, film, tape, disk, videotape or otherwise. A document bearing any notation not a part of the original text is to be considered a separate document. A draft or non-identical copy is a separate document within the meaning of this term. The term "communication" means each manner or means of disclosure or exchange of information, regardless of means utilized, whether oral, electronic, by document or otherwise, and whether in a meeting, by telephone, facsimile, email, regular mail, telexes, releases, or otherwise. Case 1:12-cv-01342 Document 1-8 Filed Page 8 of 8 The terms "and" and "or" shall be construed broadly and either conj unctively or disj unctively to bring within the scope of this request any information which might otherwise be construed to be outside its scope. The singular includes plural number, and vice versa. The masculine includes the feminine and neuter genders. The terms "person" or "persons" mean natural persons, firms, partnerships, associations, corporations, subsidiaries, divisions, departments, joint ventures, proprietorships, syndicates, or other legal, business or government entities, and all subsidiaries, affiliates, divisions, departments, branches, or other units thereof The term "identify," when used in a question about individuals, moans to provide the following information: the individual's complete name and title; and fb) the individual"s business address and phone number. The term "referring or relating," with respect to any given subject, means anything that constitutes, contains, embodies, reflects, identifies, states, refers to, deals with or is pertinent to that subject in any manner whatsoever. Case 1:12-cv-01342 Document 1-9 Filed Page 1 of 3 Case 1:12-cv-01342 Document 1-9 Filed Page 2 of 3 Natzormi Archives and ecords Ad inistmrion .7 700 Avenue, Wnsfaingron., DC 1--ui. Ji? lfl-Ifl . f, 2 H., 3 Q, as ps' |955 December 1, 2011 Amber D. Taylor Senior Counsel Freedom Through Justice Foundation 2111 Wilson Blvd, #700 Arlington, VA 22201 I Dear Ms. Taylor: - This is in response to your letter of October 3, 2011, to NARA General Counsel Gary M. Stern, which requests the records of the Financial Crisis Inquiry Commission (FCIC) that were transferred by the National Archives and Records Administration (NARA) to the House Committee on Oversight and Government Reform. Mr. Stern referred your request to the Center for Legislative Archives, as We are the archival custodian of the CIC records. We apologize for the delay in responding to your request. As you may be aware, the FCIC was a commission that was established Within the legislative branch. As such, its records are not subject to the Freedom of Information Act (FOIA), which only applies to executive branch agencies. While NARA is an executive branch agency, we serve as the National Archives for all three branches of the Government in accordance With the Federal Records Act (FRA), 44 U.S.C. Chapters 21, 29, 31, and 33. When federal agencies from the legislative and judicial branches accession their permanent federal records into the National Archives of the United States, those records do not become "agency records" subject to the FOIA. However, they Will become available for public access requests under the FRA. The FCIC records were transferred to NARA on February 11, 201 1, and, in accordance with 44 U.S.C. 2108(a), the Commission established a five?year restriction on_public access to its non- public records. Accordingly, not accept requests for- public access 2016. Your letter notes that -NARA has provided someof the FCIC records to the House - Committee' on Oversight and Government Reform. NARA did so in response to a formal request - from the Committee as part of its ongoing business. It is Well established that the provision of records -to the Congress does not constitute a public-release of that information (see, e. Murphy v. Dep? ofArmy, 613 F.2d 1151, 1155 (D.C. Cir. l979)). The fact that Congress may have subsequently released some of these records to the public does not alter the non~pub1ic status of these records at NARA. NARA 's 'web site is Case 1:12-cv-01342 Document 1-9 Filed Page 3 of 3 Accordingly, we are denying your request because these records are not subject to the FOIA. If you are not satisiied with our action on this request, you have the right to tile an administrative appeal. Address your appeal to: Deputy Archivist (ND) National Archives and Records Administration College Park, Maryland 20740 Your appeal should be received Within 35 calendar days ofthe date of this letter and it should explain why you think this response does not meet the requirements ofthe FOIA. All correspondence should reference the tracking number LL-12-143. Sincerely, it MATT FULGHAM Assistant Director Center for Legislative Archives Case 1:12-cv-01342 Document 1-10 Filed Page 1 of 5 Case 1:12-cv-01342 Document 1-10 Filed 08/14/12 Page 2 of 5 QCAUSE ACTION Advocates for Government Accountability A 501(c)(3) CORPORATION -- - vi?-r 1-. (703) 875.8625 WEB SITE: 2100 STREET SUITE 170-247 D.C. 20037 January 5, 2012 VIA E-MAIL AND FIRST CLASS MAIL ATTN: Debra Steidel Wall Deputy Archivist of the United States FOIA Appeal Staff, Room 4200 National Archives and Records Administration 8601 Adelphi Road College Park, Maryland 20740-6001 RE: FREEDOM OF INFORMATION ACT APPEAL (FOIA APPEAL LL-12-143) Dear Mr. Ful gram: We write in response to your December l, 20ll letter denying our Freedom of Information Act request for records created, relied on, or otherwise used by the Financial Crisis Inquiry Commission (hereinafter pursuant to Section 5 of the Fraud Enforcement and Recovery Act of 2009 (hereinafter and subsequently obtained and controlled by the National Archives and Records Administration (hereinafter Specifically, you denied our request on the following grounds: the FCIC is not subject to FOIA because FOIA "only applies to executive branch agencies"; and (2) "in accordance with 44 U.S.C. 2l08(a), the Commission established a five-year restriction on public access to its non- public For the following reasons, we urge you to reevaluate your position. A. FCIC records obtained and controlled by NARA are subject to FOIA and must be produced, unless a narrowly construed statutory exemption applies. NARA has acknowledged it is an executive branch agency, which is generally subject to FOIA. The Supreme Court has made clear that agency ordinarily may refuse to make Letter from Matt Fulgham, Assistant Director, Center for Legislative Archives, to Amber Taylor, Cause of Action (Dec. 1, 2011). Case 1:12-cv-01342 Document 1-10 Filed Page 3 of 5 Mr. Matt Fulgrum January 5, 2012 Page 2 available documents in its control only if it proves that the documents fall Within one of the nine disclosure exemptions set forth in 2 As you are aware, FOIA does not define the term "agency records." But the Court has established a two-pronged test for determining whether material constitutes an "agency rccord."3 The first prong of the test is disjunctive: a federal agency must "either create or obtain" the materials at issuefi Under this requirement, the agency must have possession of the material at the time ofthe request in order forthe material to qualify as an "agency record." Second, the agency "must be in control of the requested materials at the time the FOIA request is that the materials have come into the agency's possession in the legitimate conduct of its official duties.5 In v. Tax the Court applied this test and squarely held that federal district court tax opinions in the possession ofthe Tax Division of the Department of Justice are not court records, which are outside ofthe ambit of FOIA, but rather which are subject to FOIA. 6 The Court has given its imprimatur to a broad definition of "agency records": "agency records include all books, papers, maps, photographs, machine readable materials, or other documentary materials, regardless of physical form or characteristics, made or received by an agency of the United States Government under Federal law or in connection with the transaction of public business "7 Your agency, which is subject to FOIA, has possession and control of FCIC documents that are agency records under well-established law. The mere fact that those agency records were produced by a Commission formed pursuant to a federal statute that directed that Commission to report both to the President and Attorney General and the Congress does not somehow tpse dixir transform FCIC documents into part of the Congressional Record.8 Rather, the CIC documents in your possession constitute "agency records" that your federal agency has obtained and currently has in its control. Those agency records must be pr?oduced in response to a FOIA request, unless one of OIA's nine exemptions applies. And as the case cited by you in your 2 Dep 't of rf. Tax 492 U.S. 136, 141 (1989). 3 sag fd. at rss, 155. 4 Id. at 144 (citations omitted and emphasis added). Slat at 145. 6See fd 7 Id. (internal quotations and citation omitted). 8 Cf United We Inc. rf. 360 U.S. App. D.C. 243, 251 (D.C. Cir. 2004) ("Under these circumstances, absent 'clear' (Goland's word) expression of congressional intent to control the entire response, neither the lRS's own expectations nor its handling of the document can turn the entire agency-created record into a congressional document. Otherwise, documents that agencies create in response to congressional requests could become congressional documents even if Congress expressed no intent to keep them secret, for it can be said of most such materials that they would not have been created but for the congressional request, that the agency relies on them for no other purpose, and that they are kept in separate files, in the agency's office of congressional affairs. Such a result would 'exempt from purview a broad array of materials otherwise clearly categorizable as agency records, thereby undermining the spirit of broad disclosure that animates the Act.' (citations omitted)). See genera/ly Fraud Enforcement and Recovery Act of 2009, Pub. Law 1 1-21, 123 Stat. 1617, Sec. 5 (creating Financial Crisis Inquiry Case 1:12-cv-01342 Document 1-10 Filed Page 4 of 5 Mr. Matt Fulgrum January 5, 2012 Page 3 letter makes clear: "as a matter of public policy, the FOIA exemptions are to be narrowly const1?ued "9 B. The Commission is not authorized under 44 U.S.C. 2108(a) to establish a five- ycar restriction on public access to CIC records. 5 U.S.C. 552(b)(3) provides in relevant part that FOIA does not apply to agency records that a1?e specifically exempted from disclosure by statute (other than section 552b of this title [5 USCS 552b]), if that statute- (A) requires that the matters be Withheld from the public in such a manner as to leave no discretion on the issue; or (ii) establishes particular criteria for withholding or refers to particular types of matters to be withheld; and (B) if enacted after the date of enactment of the OPEN FOIA Act of 2009 [enacted Oct. 28, 2009], specifically cites to this paragraph.l0 Conspicuously absent from Section 5 of FERA, which created the FCIC, is any blanket statement to the effect that the Commission's Work product and the documents it generated and relied on should, as a general matter, be withheld from the public in such a manner as to leave no discretion on the issue, and the statute does not outline any criteria for Withholdinginformation. Indeed, FERA contains no provisions that implicitly or explicitly indicate a congressional intent to exempt the FCIC from FOIA. To be sure, Section 5(g) of the Act, entitled "Nonapplicability of Federal Advisory Committee Act," specifically states that "[t]he Federal Advisor Committee Act (5 U.S.C. App.) shall not apply to the Commission."11 But application of the Well-accepted principle of statutory construction uriius exclusio alierizzs, the inclusion of one thing suggests the exclusion of another, militates toward the conclusion that Congress did not intend to exempt the Commission's work from disclosure under FOIA. Moreover, the Commission held public hearings and generated a public report. The notion that Congress intended to either exempt FCIC from FOIA or implicitly delegate to the Commission the authority to restrict access to the documents it relied on and generated is without any statutory support. You invoke 44 U.S.C. 2108(a) to support your assertion that there is a "five-year restriction on public access to non-public records." That provision provides in relevant part: Except as provided in subsection of this section, when the head of a Federal agency states, in writing, restrictions that appear to him to be necessary or desirable in the public interest with respect to the use or 9 M1079/iyv. Dep'f_ ofArmy, 613 F.2d 1151, 1157-1158 (D.C. Cir. 1979). 5 u_s_c. Pub. Law 111-21, 123 Stat. 1617, Sec. Case 1:12-cv-01342 Document 1-10 Filed Page 5 of 5 Mr. Matt Fulgrum January 5, 2012 Page 4 examination of records being conside1'ed for transfer from his custody to the Archivist, the Archivist shall, if he concurs,[,] impose such restrictions on the records so transferred, and may not relax or remove such restrictions without the written concurrence of the head of the agency from which the material was transferred, or of his successor in function, if any. on the use or examination of records deposited with the National Archives of the United States imposed by section 3 of the National Archives Act, approved June 19, 1934, shall continue in force regardless of the expiration of the tenure of office of the official who imposed them but may be removed or relaxed by the Archivist with the concurrence in writing of the head of the agency from which material was transferred or of his successor in function, if any." That provision gives neither NARA nor the Commission the authority to impose a five-year restriction on FOIA access. First, as you noted, the CIC is not a federal agency; thus, it cannot have a "head" Second, 5 U.S.C. 552(b)(3), by its terms, only applies to statutes-not regulations promulgated by agencies or agency orders. Thus, NARA and other agencies may not insulate themselves Hom FOIA simply by promulgating regulations. Therefore, 44 U.S.C. 21 08(a) is inapposite to the question whether the FCIC records are subject to FOIA. Simply put, the documents We requested in our initial FOIA request are agency records that a1'e .subject to FOIA. Unless you can point to a specific provision in the FOIA statute that exempts individual records, you must provide them in response to our FOIA request. We specifically reserve the right to supplement this appeal as necessary and as allowed by applicable law. We sincerely hope that you will reconsider your agency's denial of our FOIA request in light of this additional information. If you do not, we will have no choice but to vindicate our right of access to this information through li tion. i 1_ 7 Sincere 4 le] I Executive Director 44 U.S.C. 210s(a). Case 1:12-cv-01342 Document 1-11 Filed Page 1 of 2 Case 1:12-cv-01342 Document 1-11 Filed Page 2 of 2 I NATIONAL ARCHIVES January 10, 2012 A Daniel Epstein Cause of Action 2100 Street Suite 170-247 Washington, DC 20037 Re: Freedom of Information Act Appeal NGC12-012A Dear Mr. Epstein: This is in response to your Freedom of Information Act (FOIA) appeal of January 5, 2012, regarding access to the records of the Financial Crisis Inquiry Commission (FCIC) in the custody of the National Archives and Records Adrninistration (NARA). Your appeal was received in this office on January 5, 2012 and was given the ease number NGC 12-0 12A. If you wish to know the status of your request please feel free to contact me directly. I may be reached by phone at (301) 837-0583 or by e-mail at joseph.sca11lon?cQnara. gov. Sincerely, -- Jossrn A. A NARA FOIA Officer Office of General Counsel ARCHIVES and urcoAosAoM1N1srr1ArroN ROAD COLLEGE PARK. MD 20740-6001 ww1v.ar'chfves.gav Case 1:12-cv-01342 Document 1-12 Filed Page 1 of 11 Case 1:12-cv-01342 Document 1-12 Filed 08/14/12 Page 2 of 11 NATIONAL ARCHIVES February 6, 2012 Daniel Epstein Executive Director Cause of Action 2100 Street Suite 170-247 Washington, D.C. 20037 Re: Freedom of Information Act Appeal NGC 1 2-012A Dear Mr. Epstein: This is in response to your Freedom of Infomiation Act (FOIA) appeal of .lanuary 5, 2012. ln the original request received from Amber Taylor, dated October 3, 20| 1, you asked for access to the records of the Financial Crisis Inquiry Commission (FCIC or Commission) that were transferred to the National Archives and Records Administration (NARA) from the House Committee on Oversight and Government Reform. In our initial response of December 1, 2011, you were advised that in om' view the records of the FCIC do not qualify as "agency records" for purposes ofthe Freedom of Information Act, as they were transferred into NARA's custody from the Legislative branch of govemment. You were further informed that the Commission established a five-year restriction on public access to its non-public records, and that NARA will not accept requests for public access until February 1 l, 2016. ln your appeal, you argue that NARA has possession and control of the documents within the meaning of FOIA law, and therefore that FCIC's records now enjoy "agency record" status, citing to Department of Justice v. Tax 492 U.S. 136 (1989), and related case law. Your appeal makes a secondary argument taking issue with NARA's invocation of 44 U.S.C. 2108(a) in support of applying access restrictions. In your view, section 2108 of the Federal Records Act, constitutes insufficient authority for FCIC to invoke restrictions or for NARA to accept restrictions on access placed by the FCIC. We understand this portion of your appeal to be alleging that NARA is holding out section 2108(a) as a withholding statute, as in your view section 2108(a) fails to meet the relevant FOIA test. For the reasons stated below, I affirm NARA's original denial of your FOIA request for FCIC records on the grounds that these are legislative branch records that are not subject to the FOIA. NATIONAL ARCHIVES and RLCORDS ADMINISTRATION 8601 ADELPHI ROAD COLLEGE PARK. MD 20740-6001 ww fves.gov Case 1:12-cv-01342 Document 1-12 Filed 08/14/12 Page 3 of 11 Letter to Daniel Epstein, Page 2 of 5 A proper analysis of the legal issues raised by your FOIA appeal must begin with the factual circumstances regarding transfer of FCIC records into NARA's custody. First, on February 10, 20] l, contemporaneous with the imminent termination of the FCIC, the Chairman of the FCIC, Phil Angelides, wrote to the Archivist ofthe United States, David Ferriero, providing detailed instructions to "set forth the Commission's continued interest in government and public access to information created or gathered during its investigation," in which the Chairman "establishe[d] criteria under which these records should be made available." (See attached the Chairman's letter, NARA is to make the FCIC's records available to the public "to the greatest extent possible consistent with the terms of this letter," beginning on February 13, 2016 (five years after the termination of the FCIC by statute). The letter also went on to detail specific instructions as to which records should not be disclosed after February 13, 2016, if they contain personal privacy information; confidential financial supervisory or regulatory information; proprietary business information which remains confidential or contains trade secrets; or information otherwise barred from disclosure as determined by the Archivist. The letter further states that "[b]ecause the Commission was established in the legislative branch, its records have not been subject to the Freedom of Information Act (FOIA), and we understand that the FOIA will not apply to Commission records even after they are transferred to Second, accompanying the Chaim1an's letter was a signed Standard Form 258, "Agreement to Transfer Records to the National Archives of the United States," Accession No. 48- I l-001, signed and countersigned by representatives of the FCIC and NARA (attached at Tab B). The Agreement contains as Box I2 under "Records Information," in which in answer to the question "Are records fully available for public use," the corresponding box is checked The Agreement also contains language striking out a reference to 5 U.S.C. 552 under "Terms of Agreement." Those terms go on to specify that the records are now the responsibility of the Archivist ofthe United States pursuant to 44 U.S.C. 2108 to continue to maintain, in fulfillment of the Archivist's obligations under the Federal Records Act. As a matter of law, there is no question that the records were exempt from the FOIA at the time of their creation. The CIC was established by the Fraud Enforcement and Recovery Act of 2009 (FERA), Pub. L. 1-21, under the auspices of the Legislative branch. As such, the Commission's records were properly deemed "legislative branch records," excluded from FOIA, while in the possession of the FCIC during the entirety of the Commission's existence. See United We StandAm, Inc. v. IRS 359 F.3d 595, 597 (D.C. Cir. 2004). Case 1:12-cv-01342 Document 1-12 Filed 08/14/12 Page 4 of 11 Letter to Daniel Epstein, Page 3 of 5 You cite to Tax for the proposition that material constituting an "agency record" must be in the possession and control of an executive branch agency that is subject to FOIA. However, under longstanding D.C. Circuit precedent, the matter of "control" is determined by analyzing the legislative branch's intent contemporaneous with transfer of possession. In particular, under a line of authority starting with Goland v. CIA, 607 F.2d 339 (D.C. Cir. 1978), vacated in part on other grounds, 607 F.2d 367 (D.C. Cir. 1979), cert. denied 445 U.S. 927 (1980), courts have seen fit to find that congressional-originated documents retain their status and are not considered to be "agency records" subject to FOIA, where the "conditions under which [the documents] were transferred to the agency" indicate that "Congress established 'contemporaneous and specific instructions' to the agency limiting either the use or disclostue of the documents." Center for National Security Studies v. CIA, 577 F. Supp. 584, 588 (D.D.C. 1983) (quoting Paisley v. CIA, 712 F.2d 686, 692, 694 (D.C. Cir. vacated in part on other grounds, 742 F.2d 201 (D.C. Cir. 1984) (emphasis in Paisley). Here, based on the FCIC Chairman's letter stating explicitly "that the FOIA will not apply to Commission records even after they are transferred to NARA is on notice that the transfer evidenced legislative intent to maintain legislative control over the document's confidentiality. Accoraf, Golanal 607 F.2d at 347 (court finding "Congressional intent to maintain Congressional control over the document[s'] confidentiality"). As such, NARA does not consider that control has passed from the legislative branch sufficiently to establish that NARA has "free disposition," ial at 348, to treat these legislative branch records as being subject to FOIA. Id at 348. ln our view, the fact that the records in question have been transferred to NARA's legal custody under the Federal Records Act is not otherwise dispositive of the FOIA access question. First, the D.C. Circuit has rejected the notion that "the treatment of documents for disposal and retention purposes under the various federal records management statutes determines their status under Consumer Federation of America v. Dep 't of Agriculture, 455 F.3d 283, 289 (D.C. Cir. 2006), citing Bureau of Nat '1 Ajfairs v. Dep 't of Justice, 742 F.2d 1484, 1493 (D.C. Cir. 1984). Second, courts have long recognized that there are types of archival records in NARA's legal custody where access restrictions are controlled by the terms of other statutes or by donor intent. See, eg., Ricchio v. Kline, 773 F.2d 1389 (D.C. Cir. 1985) (holding that access to Nixon materials in NARA's custody were controlled by the Presidential Materials and Preservation Act (PRMPA), 44 U.S.C. 2111 note, and not by FOIA). For example, NARA's older Presidential Libraries hold vast collections of Presidential materials created prior to the Presidential Records Act, 44 U.S.C. 2201, and to the PRMPA, that were owned originally by Case 1:12-cv-01342 Document 1-12 Filed Page 5 of 11 Letter to Daniel Epstein, Page 4 of 5 the former Presidents and then donated to NARA under a deed of gift. There has never been a challenge that these presidential materials, transferred under donor agreements, are to be considered "agency records" subject to FOIA, and the mere fact that NARA is in possession of such records does not convert their status wholesale to such "agency records." With respect to your secondary argument on appeal, we believe NARA's organic statute at 44 U.S.C. 2I08(a) does, in fact, buttress our position that the Archivist of the United States has the authority to uphold and respect FCIC's instructions with regard to imposing restrictions on future access to what were legislative branch records in FCIC's custody. [W]hen the head of a Federal agency states, in writing, restrictions that appear to him to be necessary or desirable in the public interest with respect to the use or examination of records being considered for transfer from his custody to the Archivist, the Archivist shall, if he concurs, impose such restrictions on the records so transferred . In the event that a Federal agency is terminated and there is no successor in function, the Archivist is authorized to relax, remove, or impose restrictions on such agency's records when he determines that such action is in the public interest. Contrary to what you assert in your appeal letter, the FCIC is a "Federal agency" within the meaning of the Federal Records Act, 44 U.S.C. 290l(l4) (the term includes establishments in the executive, legislative and judicial branches, with exceptions). This definition in the FRA of ederal agency" differs significantly from the FOIA definition of "agency," 5 U.S.C. 552(F)(l), which is limited only to executive branch entities. Thus, the Archivist may act pursuant to section 2108 to uphold restrictions placed by a federal agency from the legislative branch. While in our view the FCIC could have imposed a stricter nondisclosure regime on its legislative branch records that were transferred to NARA under the FRA, section 2108 provides a statutory mechanism for the Archivist to accept lesser restrictions on access, such as ClC's stated intent that its non-public records be disclosed in five years subject to conditions that would appear to be consistent with the FOIA. Your further references to section 2108 not meeting the requirements of an Exemption 3 statute under the FOIA, 5 U.S.C. 552(b)(3), are inapposite, as Exemption 3 comes into play only where "agency records" are at issue, which is not the case here. Case 1:12-cv-01342 Document 1-12 Filed Page 6 of 11 Letter to Daniel Epstein, Page 5 oi`5 This your remedies. Judicial review is available to you in the United States District Court tier thejudiciel district in whicli you reside, in the District ei`Co]umbia, which is where the records reside. A/not Sine 1 'gb DEBRA STEIDEI., Deputy Arcliivist ofthe United States Enclosures Case 1:12-cv-01342 Document 1-12 Filed Page 7 of-11 Tab A Case 1:12-cv-01342 Document 1-12 Filed Page Phil Angclidcs (`lmirnmn lion. Bill 'lltornas Wea Brooksley Bom Byron S. Georgiou Commissioner Senator Bob Graham Keith Douglas llollz-linkin Comurisrioner Heather ll. Murren. CFA John W. Thompson Peter Wallison Wendy licbruary ll), 20| I The Honorable David lierriero Archivist ol' the United States National Archives and Records Administration 860| Adelphi Road College Park, MD 20740 Dear Mr. lierrieror When the Financial Crisis Inquiry Commission (the "Commission") terminates, by statute, on liebnrary 13, 201 1, the records ol' the Commission will be translerred to the National Archives and Records Administration (NARA) 1`or preservation and public access. This letter sets forth the Cornmissiorfs continued interest in government and public access to information created or gathered during its investigation and establishes criteria under which these records should he made available. The Commission has established a policy ol` making available to the public as information as possible. while salcguarding personal privacy. law enforcement. private commercial, linancial regulatory, and other sensitive information. The Commissions linal report is highly detailed and discloses a signilieant amount previously unavailable material. ln addition. the Commission has released through its website many supplemental documents. including stall' memoranda, documentary evidence. e-mails, witness statements. interviews. transcripts and summaries. audio and video tiles. and press releases. All ol' the records and inforrnation that the Commission has tnade available to the public should continue to be made publicly available by NARA. This includes the records that are accessible onthe Commissions website, which NARA will maintain after February 13, 2011, and on tl1e Commission's parallel website which the Commission will establish at Stanford University. Because the Commission was established in the legislative branch, its records have not been subject to the Freedom of lnformation Act (FOIA). and we understand that the FOIA will not apply to Commission records even after they are transferred to NARA. The Commission recommends to NARA that records not already publicly available should be made available to the public, tothe greatest extent possible consistent with the terms of this letter, beginning on February 13. 2016. The Commission encourages NARA to conduct a systematic review ofthe records that are not currently available to the _public with the goal of releasing to the public as much as is allowable by law and regulation on February 13. 2016, or as soon thereafter as possible. Records should l'lt>l he disclosed irnmediatel after February 13, 2016, if they contain personal privacy inlormation that the Commission agreed to protect from public disclosure for longer than 5 years; (11) conlidential financial supervisory or regulatory information which remains sensitive at the time of release: tc) proprietary business information which remains contidential or contains trade secrets at the time of release. including any such in formation that the Commission has agreed will remain contidential l`or a longer period of time; or inliirmation which is otherwise barred from public disclosure by law. as determined by the Archivist. 1717 Avenue. NW, Suite 800 0 Washington. DC 20006-4614 202.292.2799 202.632.1604 Fax Case 1:12-cv-01342 Document 1-12 Filed Page 9 of 11 We understand that there will he an initial period ol' at least several months during which NARA's staf will he organizing and processing Co|nmission's records. During this period, access to the records should he provided tothe ten members ol' the Commission (Phil Angelides, the Honorable Bill Thomas. Born. Byron S. Georgiou, Senator Bob Gra|1am. Keith Hcnnesscy. Douglas I-ioltz-Iiatkin. Heather H. Murrcn. John W. Thompson and Peter J. Wallison) and the following members ol'\hc Commission stall' and atdvisors: Wendy Edclberg, Peter Kadxik, li-eq., Gretchen Newsom, Scott Ganz. Gary Cohen, Greg Chris Scefer, Maryann Haggerty. amd Cassidy Waskowicz. ln addition, certain administrative staff ol' Commission may have access as part ol' their duties to transfer the records to NARA. During the period when the FC IC transfers records to NARA and af ter February I3, 20| l, it is important that the ten Commissioners and the designated members ol' the Commission staff and advisors have continuing access to the Commission's records once the records are transl`erred to NARA. Thank you lor your cooperation in carrying out the' ort llask of preservingand providing access to Commissions voluminous records. truly ours trmatn munl Crisis Inquiry Commission a gehdt.: 1 .00 0 . I. 'il Cc: Members, Financial Crisis Inquiry Commission Gary M. Stern, NARA Wendy Edelherg, Executive Director Cassidy Waskowicz, Deputy General Counsel Case 1:12-cv-01342 Document 1-12 Filed Page 10 of 11 Tab Case 1:12-cv-01342 Document 1712 Filed 12=4ep Legislactve archives 202501 one p.2 -xl- .- AGREEMENT TO TRANSFER RECORDS TO 1. INTERIM Contact NO. INARA use onfw i THE NATIONAL ARCHIVES OF THE UNITED STATES -reams OF -me mwres described GMI on tho riugus nro in um Ng|u?m| U.3 2107.` . A aagwaancu witn 44 U.S.C, 2106, custody ot thaw records the responsibility of tho Status at Ihr: time nf lrurtsier of It I6 :rgi rand lheano r0C4Jrdi mu bg in zuuwrduruzu Wilh UIC yrrivisiurrs ui 44 UASC Cltuplcf 21. 36 CFR 35 gm( 12bIj_ :mil raimtt nlhur ruins ana fogulationa as may be pi aiclibod by thu Archivist 0' lite Unitotl SIJIOS I I'h0 UMUSS Specified unc |USliiI0t1 hnluw. '10 rulrictiuns OI the us: uf neg" rcr-.urds will bu mruuavd utmr 1.-um tm gnnoral :ml spucthc -1. A Date 213. NAME. TITLE, MAILING ADDRESS Sarah Zuc Kerman Financial Crisis Inquiry Commission 1717 Ave, NW . Washington, DC 20006 I - I-I -nn-I AGREEMENT restrictions on thu use ot tnoso records will bv Imuounu ou," . Imitation; on :no use ul records in th" ur 35 CFR Piltl 1 255 Guilt# I0 W0 /Irclrivos ortho UnT(afI Status- Archivist 'ww -IvSIf?v- auatic.-no cont" unused fomns. ntank stationary. nonafcnivnl Of Uf umm nm, ,wma any manner authorized hy law or reculalivfl f"fV"?f Ina my Quai," amririruating or aamaqcd documents :mor may Iutvo 609460 in tufm Ilia! nu of ,hz Intorrnmim original Tho use and rocurlls U53 Itgertuy tg quwm og contained In this deposit. . Al BA NARA APPROVAL f' - - Signature 'f 38. NAME, TITLE. MAILING ADDRESS Matt Fulgham Assistant Director, Cc-ntor for Legislative Archives (NARA) 700 Aw, NW Washington, DC 20408 N., . .. _,ii-ni* - IIA I-IFCORDS SERIES TITLE Records ofthe Financial Crisis Inquiry Commission AB. DAT SPAN OF SF RIF 2009-201 1 (Attach any additional description) 1 ?.11 5A. OR ILSTABLISI IMILNT commission 5II. Mil NCY MAJOR SUBDIVICION LIC. AGENCY MINOR SUBDIVISION 1v GD. UNIT Tl FO RFCORDS SE AGENCY PERSON WITH WI IOM TO CONFER ABOUT Tl IE RECORDS Name: Sarah Zud