James Madison Project v. Dep't of Treasury, No. 19-2461, 2020 WL 4698435 (D.D.C. Aug. 13, 2020) (Jackson, J.)

James Madison Project v. Dep't of Treasury, No. 19-2461, 2020 WL 4698435 (D.D.C. Aug. 13, 2020) (Jackson, J.)

Re:  Request for records concerning review by Office of the Comptroller of the Currency ("OCC") of number of banks in wake of revelation that employees at Wells Fargo, N.A. had opened millions of fake accounts in order to meet company's sales goals

Disposition:  Granting defendant's motion for summary judgment

• Exemption 8 & Waiver:  "The Court finds that defendant has properly withheld the pages pursuant to Exemption 8, and therefore, it does not need to evaluate the applicability of Exemption 5."  "[T]he Court finds that defendant has established the applicability of Exemption 8."  The court relates that "Plaintiffs do not contest that the exemption is broad, that defendant is a government agency 'responsible for the regulation or supervision of financial institutions,' or that the information they seek relates to information contained in a report the OCC prepared in relation to an examination it conducted."  "But they argue that that the 'public domain exception' applies."  The court holds that "plaintiffs have not met their burden to show that the exception applies."  "First, the Comptroller of the Currency testified before the agency conducted its review and reported on its conclusions, so his remarks could not possibly serve as an official public disclosure of the contents of the report."  "As for disclosures in [an] American Banker article, defendant submitted a detailed supplemental declaration in which the declarant examined the article, highlighted OCC's public disclosures within the article, and compared those disclosures with the 34 pages at issue."  "He avers that the 34 pages consist almost exclusively of bank-specific examination results and intra-agency deliberations, which were not disclosed in the article."  "The rest of the pages contain analyses of bank-specific information, including statistical information from the banks, the examination's results and findings, intra-agency recommendations, internal deadlines, and actions taken by other financial regulators."  "The agency avers that the pages are 'substantively different' than what the agency has publicly disclosed."  The court holds that "[t]he public disclosures identified by the plaintiffs are general statements regarding the outcome of the [review] that do not disclose bank-specific examination results or reveal the agency's deliberations and recommendations."  "Because the public disclosures are not as specific as the information the agency avers is contained in the pages at issue, the exception does not apply."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  The court holds that "[t]he agency declarant has averred that OCC conducted a detailed review of the responsive documents, and that none of the withheld pages could be reasonably segregated and disclosed . . . and plaintiffs have not presented any evidence to the contrary."  "Thus, the declarations submitted by defendant are sufficient to fulfill the agency's obligation to show with reasonable specificity that a document cannot be further segregated."