McKinley v. FEDERAL HOUSING FINANCE AGENCY
789 F. Supp. 2d 85
D.D.C.2011Background
- FHFA was created in 2008 and oversees Fannie Mae and Freddie Mac, placed into conservatorship in 2008.
- In May 2010, McKinley FOIA-requested documents relating to FHFA's assessment of systemic risk and conservatorship decision in 2008.
- FHFA searched eight offices; Office of General Counsel produced three responsive documents.
- FHFA concluded two of the documents were protected by deliberative-process and attorney-work-product privileges and withheld them.
- McKinley contested the privilege claims for the two documents; FHFA did not offer a segregability analysis.
- The court held the motions in abeyance pending in camera review of the two documents.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the two documents are protected by the deliberative-process privilege | McKinley argues documents are not deliberative; seeks disclosure. | FHFA contends documents are predecisional and deliberative, aiding policy deliberations. | Deliberative-process privilege applies to the two documents. |
| Whether the two documents are protected by the work-product privilege | McKinley contends work-product protection may not apply if documents are primarily policy guidance. | FHFA contends documents were prepared in anticipation of litigation and thus protected. | Court cannot determine without in camera review whether documents were prepared in anticipation of litigation; order in camera inspection. |
| Whether segregability requires disclosure of non-privileged material within the documents | McKinley asserts FHFA must segregate and disclose non-privileged facts. | FHFA argues that work-product protection does not require segregation of material. | A segregability analysis is required; otherwise disclose non-privileged content after in camera review. |
| Whether in camera review is appropriate for these documents | Not required; arguments unresolved by public affidavits. | In camera review is appropriate where affidavits are insufficient to evaluate exemptions. | In camera review ordered for documents 2 and 3. |
Key Cases Cited
- Goland v. CIA, 607 F.2d 339 (D.C. Cir. 1978) (summary judgment in FOIA requires production, nondisclosure, or exemption)
- Military Audit Project v. Casey, 656 F.2d 724 (D.C. Cir. 1981) (exemptions must be described with detail and not contravene the record)
- FBI v. Abramson, 456 U.S. 615 (U.S. 1982) (exemption narrowly construed)
- Renegotiation Bd. v. Grumman Aircraft Eng'g Corp., 421 U.S. 168 (U.S. 1975) (predecisional memoranda exempt from disclosure)
- Loving v. Dep't of Defense, 550 F.3d 32 (D.C. Cir. 2008) (segregability principle in deliberative-process)
- Judicial Watch v. Dep't of Justice, 432 F.3d 366 (D.C. Cir. 2005) (work-product protections and dual-purpose documents)
- Quinon v. FBI, 86 F.3d 1222 (D.C. Cir. 1996) (in camera review when affidavits are insufficient)
- United States ex rel. Fago v. M & T Mortg. Corp., 242 F.R.D. 16 (D.D.C. 2007) (test for litigationAnticipation in work-product analysis)
- Willingham v. Ashcroft, 228 F.R.D. 1 (D.D.C. 2005) (non-litigation components and anticipation test)
- McKinley v. Bd. of Governors of Fed. Reserve Sys., 647 F.3d 331 (D.C. Cir. 2011) (discusses deliberative-process standard for exemptions (WL not used))