Consumers Union of United States, Inc. v. John G. Heimann, Individually and in His Official Capacity as Comptroller of the Currency

UNION CONSUMERS OF UNITED

STATES, INC., Appellant,

v. HEIMANN, Individually

John G. capacity

his official Currency.

No. 77-2115. Appeals,

United States Court of

District of Columbia Circuit.

Argued June Aug.

Decided

J. Skelly Wright, Judge, con- Chief

curred opinion. and filed

TAMM, Judge: Circuit of United Union Appellant Consumers Inc., order of the challenges the District for District Court United States judg- summary granted of Columbia of Information ment in a Freedom (FOIA) appellee Comptroller suit to court (Comptroller). The district Currency exemption 8 of the (Pratt, J.) held that FOIA, 552(b)(8) (1976), protects 5 U.S.C. § relating to the from disclosure documents national by extent certain compliance Protection banks Credit the Consumer with (1976), specifi- Act, 15 1601—1691f U.S.C. §§ the Truth in known as cally provisions Act, 1601-1667e Lending §§ U.S.C. court agree We with the district (1976).1 clearly issue fall documents exemption, express terms within the affirm. and thus we C.,D. with Washington, nonprofit corporation char- Cymrot, Mark A. is a information, C., Broadman, educa- Washington, provide D. tered in whom Ellen and goods consumer tion, and counsel about brief, appellant.. for was on the that a learned May services. Justice, Kimmel, Atty., Dept, of Michael of national comprehensive C., whom Earl J. Washington, D. Sil- by the region England New Babcock, bert, Allen Atty., U. S. Barbara de- significant revealed Comptroller had Schaitman, Gen., Atty. Asst. and Leonard banks with by those gree noncompliance C., Justice, Washington, D. Atty., Dept, of to the pursuant regulations promulgated brief, appellee. were on the for month, same Act.2 That Truth in Parker, Douglas request- L. Charles E. Hill appellant Comptroller wrote to the “(1) FOIA, docu- C., to: on the brief Washington, D. were ing access under Comptroller’s Office curiae, reversal. ments submitted urging amicus extent concern banks which national the Truth-in-Lend- of their WRIGHT, Judge, Before Chief summary by Act, (2) any analysis ing HOFFMAN,* TAMM, Judge, Circuit docu- of those Comptroller the Office of Judge for the United States Senior District re- denied the ments.”3 Virginia. Eastern District of authority 7, 1976, citing as on June quest Comp- regulations for nondisclosure Opinion the court filed Circuit exemptions 5 and 8 incorporated troller that Judge, TAMM. 552(b)(5) (8) FOIA, & §§ U.S.C. Concurring opinion Judge, appeal filed Chief (1976).4 Appellant’s administrative regulations authority rejected J. was SKELLY WRIGHT. * (exh.) Sitting by (R.E.) designation pursuant entry exhibit 3. Record 294(d). § (8) 4.16(b)(5) & 2. See 12 C.F.R. Id. exh. 1, 1977, 1. Memorandum Decision of Nov. Joint 72a-73a; (J.A.) Appendix la. see J.A. at 60a; Appellee at 15-16. J.A. at Brief for generally 226.1-.15 §§ C.F.R. 8, and, incorporated exemption upon security solvency addi- fleeted institutions; tionally, exemptions 3) and 7 of the “consumer bank 552(b)(4) (6)-(7). being examinations” did not come into FOIA.5 Id. & until §§ earliest, 1968 at when the- Truth in August 17,1976, filed suit in On passed, Act was and do not reflect court, arguing primarily the district solvency; 4) upon security bank a exemption apply 8 did not to the documents exemption narrow construction of 8 does The question.6 disagreed, district court these not to cover new permit expansion its and, 1977, 1, granted on November materials.9 Comptroller’s summary judg- motion the fact that We are well aware of appeal ment. This ensued.7 exemptions narrowly must be to the FOIA II Project, Washington Research construed. Health, Department of Education Inc. v. presents This case this court its first Welfare, 169,175, U.S.App.D.C. 164 504 opportunity exemption to discuss 8 of the 238, 244, denied, 421 F.2d cert. U.S. 963 FOIA,8 protects from disclosure those (1974); David, U.S.App.D.C. v. 145 Soucie matters that are “contained in or related to 144, 157, 1067, (1971). 448 F.2d 1080 .How examination, operating, reports or condition ever, reviewing we are also mindful a of, prepared by, on behalf or for the use of priority statutory court must accord first an agency responsible regulation interpretation plain meaning to the supervision of financial institutions.” 5 provision in question. Caminetti v. United 552(b)(8) (1976). U.S.C. § 192, 242 U.S. 37 U.S. 61 the term contends (1917); accord, L.Ed. 442 United States v. “examination, operating, or condition re- Associations, Trucking American 310 U.S. describes, ports” protects and thus from 534, 543, 1059, 60 L.Ed. 1345 S.Ct. 84 disclosure, Appel- the documents in issue. Thus, intentionally if the Congress has view, 1) lant takes the opposite arguing: broad, unambiguously particularly a crafted language exemption 8 must be inter- definition, our not all-inclusive func preted in a with the leg- manner consistent tion, context, to even in the FOIA subvert islative intent at its the time of enactment view, wording that effort. In our 1966; 2) legislative history demonstrates exemption 8 leaves no doubt that the docu that, time, at that intended to exactly precisely ments issue fit protect only examination statutory that re- within definition. 10, 4.16(b)(4) request, 5. R.E. exh. 5. See 12 C.F.R. & and the court noted that a a (6) (7) (1977). regulatory body exempt bank that would be — public from disclosure under the to the Free 32, 2; 6. R.E. see J.A. at la. dom of Information Act nevertheless be Burns, subject discovery. Kaye v. 411 Because of the result we reach F.Supp. (S.D.N.Y.1976), 897 held that at 8, exemption unnecessary we find it to address torney’s against fees should not be assessed exemption. other claims of disclosure, agency exemp refused under Appellee See Brief for the at 25-26 n.24. 8, letter, based on an report, statutory that concluded violations had may

8. Our research indicates that we be occurred; agency the court found that the appellate 8, had interpret exemption first court concluding a reasonable although basis in law for exemption we did cite the in Soucie v. David, exempt. the item was 144, U.S.App.D.C. 155, Id. at 904. 145 M. A. Scha 448 F.2d piro SEC, 1067, v. F.Supp. (D.D.C. & Co. Secretary n.45 See also 1972), Farino, 885, (7th Labor concluded v. that national securities ex 490 F.2d 893 n.8 Cir. 1973); changes Savings First Fed. broker-dealers are not “financial & Loan Ass’n v. Fed Bd., 454, 8, F.Supp. exemption eral Home Loan Bank institutions” under stu and that (W.D.Ark.1977); changing Camp, relating Farmers Bank v. dies and documents Nat’l F.Supp. (D.Md.1971). trading reports. 627-28 n.7 rules are not bank examination Three district court cases have discussed the Id. at 470. exemption degree, recently to a limited most Carey, (E.D.P.A. Gerard v. Civil No. 76-259 Reply Brief of at 3-5. 9. See 21, 1978). discovery Mar. Gerard involved a Furthermore, results.12

However, beyond can look adverse second- a court ap- enacting exemption in limited ary purpose of a statute plain meaning instances, when there is an notably safeguard most the rela- pears to have been to change in circum significant super- assertion of a and their the banks tionship between enactment, Perry v. Com see stances since ex- agencies. If details of bank vising 397-400, Co., merce Loan 383 U.S. freely made available to were aminations (1966), or when a 15 L.Ed.2d 827 S.Ct. banking competitors, and to re reading literal leads to an unreasonable cooper- that banks would there was concern sult, American Truck see v. United States federal authori- fully ate less than Associations, ing S.Ct. secondary purpose would That cer- ties.13 appellant vigorously asserts 1059. Because implicated by appellant’s interpre- tainly here, we present that both situations are tation of legislative history have turned Lines, exemption Air Inc. v. 8. See United however, strongly urges, Appellant McMann, 192, 199, S.Ct. subsequent passage that the of the Truth in view, (1977). L.Ed.2d 444 In our that histo Lending language Act narrows the broad ry Comptroller’s position that supports the exemption 8 insofar as consumer credit exemption clearly applicable 8 is to the doc agree. cannot matters are concerned. We uments review. under bring to to our been unable has legisla language any statutory attention true, appellant urges, It is Lending Act tive history of the Truth in adoption of primary exemp reason for information relating disclosure of to security tion 8 was to of finan ensure the agencies under the FOIA. government cial institutions.10 Specifically, there was Furthermore, action subse congressional examination, op that disclosure of .concern Truth in quent passage to eration, reports containing and condition appellant’s argu sharply undercuts investigated frank evaluations of the 1974, Congress In enacted amend ment. undermine confidence and remedy designed ments to deficiencies that cause runs on unwarranted banks.11 How ever, pas had been illustrated since the FOIA’s nothing legislative there is in the his Significantly, sage eight years before.14 tory Congress, seeking to indicate that exemption there was no alteration of guard against possibilities, these intended damaging appellant’s posi Even apply only 8 to more varieties extant, for, tion, of bank especially supportive examinations then of the view view, take, our the disclosure of bank examina the House Commit we is the fact that reports including of. which has any type, tee on Operations, Government here, FOIA, under lead to the same scrutiny recently could oversight for the authority striking Cong., 10. The H.R.Rep.No. Senate and House are 2d Sess. 89th (1966), Cong. accord. The Senate states: U.S.Code & Admin.News pp. Exemption specifically No. 8 is directed insuring security of our institu- Hearings the Sub- Before 11. See on S.1663 by making tions available to the Govern- Proce- comm. on Administrative Practice and Comm, agencies responsible regulation Judiciary, ment the Senate dure of supervision Cong., (1964). of such institutions 2d Sess. 186 the exami- 88th nation, operating, reports pre- or condition legis- Indeed, pared of, there by[,] is some indication on behalf or for the use history Congress infor- lative considered agencies. mation of the more loans to be one S.Rep.No.813, 1st Sess. 10 topics report. sensitive in an examination Similarly, Report explains the House that ex- id. at 196-97. emption 8: designed security integri- to insure the 177E, 179, 186, 191, 549; 13. See id. at see also ty institutions, of financial for the sensitive agencies details collected Government could, regulate these institutions if in- 14. Act of November Pub.L.No. 93- discriminately disclosed, great cause harm. 502, 88 Stat. 1561. express separately whether records re- strained write both to question considered suggestion with the Truth my any flecting disagreement banks’ be made available to Lending Act should flows opinion this result court’s concluded that public. The Committee necessarily logic from the and intent to be “studied fur- question needed that crafted and to ther,” have a conclusion that would been congressional need for action highlight unnecessary incongruous had these rec- impli- issues troubling policy to resolve the subject un- already ords been to disclosure controversy. The ma- by. present cated der the FOIA.16 me, jority, it seems to casts as inevitable result which is in obviously correct a Ill questionable. fact We issue here hold that the documents from disclosure expressly exempted are Appellant and amici curiae17

exemption 8. May Consumers Un- appellant, counter maintain that this result runs Inc., ion became of the United to the need for spirit of the FOIA and of the Curren- aware that implementation practices full of credit fair cy, survey of na- Indeed, appellee, had conducted to consumers.18 there have been Region England exemption 8 is both tional banks in the New suggestions that over- However, noncompliance in our superfluous.19 broad and which revealed substantial view has left no room for a nar- regulations promulgated under 8, and, exemption interpretation rower of portion of the Protection Consumer Credit judge, the district aptly as so stated Act, (1976), “[i]f 15 1601—1691f known U.S.C. §§' result, recourse is to this is an unfortunate Act, 15 the Truth U.S.C. rather than the the Courts.”20 (1976).1 being 1601—1667e On informed §§ keep the Comptroller intended to Affirmed. confidential, survey a for- made (FOIA) Act mal of Information Freedom WRIGHT, Judge, con- J. SKELLY Chief request for curring: (1) Comp documents submitted majority’s While I conclu- agree with the national banks which troller’s office sought by appel- sion that the documents concern the extent of their terms of Ex- express lant fall within the Act, Truth-In-Lending (2) of Information with the and emption 8 of the Freedom Act, (1976), I feel con- 552(b)(8) summary by 5 the Office of any analysis U.S.C. or § 9; H.R.Rep.No.280, Cong., 25 Brief of Amici 95th 1st Sess. 18. Brief of See (1977) (“Because truth-in-lending compliance at 6. Curiae irregular inter- examinations are conducted O’Reilly, vals and do not cover all the kinds of creditors Disclo- 19. See J. Federal Information Davis, (1977); subject 18.01 The Information to the Act . . . disclosure of over- sure § Preliminary Analysis, compliance by all Act: A 34 U.Chi.L.R. individual creditors further.”).. 761, 800-01, Note, (1967); 807 Freedom of In- should be studied Regulations, and 56 formation: The Statute 18, 50 Geo.L.J. Wright argument, Judge 16. At asked oral Chief Comptroller counsel for the whether the inter- 20. J.A. at 73a. pretation of 8 that counsel was es- would, effect, pousing exclude federal bank Schuck, Director supervisory agencies 1. Affidavit of Peter H. from FOIA. Counsel Washington Office of Union of the matters, Consumers replied that some as bank charter Inc., 27, July 1977, Appen- United Joint applications, are obtainable. 60a; (JA) Taylor, dix Affidavit of Thomas W. Deputy Comptroller Associate Affairs, for Consumer America; Mexican Consumer Federation of 1977, 20a, January 31, JA 21a-23a. Fund; Legal American and Education Defense Lending regulations appear The Truth in at 12 Organization and National for Women. C.F.R. §§ 226.1-226.15 536 requires appeal This followed. It us to Comptroller those documents.

[*] ^[*] * [2] determine the scope Exemption 8.5 The Comptroller request denied the II authority regulations incorporating Ex- FOIA, emptions 5 and 8 of the 5 U.S.C. The FOIA was in 1966 to over enacted 552(b)(5) 552(b)(8) (1976)3 Shortly and §§ of the Admin haul the provision disclosure denied appel- Act, thereafter U.S.C. 1002 § istrative Procedure citing lant’s appeal, (1964 vague administrative ed.). and dis replaced It exemptions predecessor two FOIA cretionary aforementioned and its directives of 4, regulations Exemptions disclosure, also from general proce derived for mandate 6, 552(b)(4), 7, 552(b)(6), securing and dures informa requesting §§ violations, 552(b)(7) (1976).4 August 17, tion, On ap- remedy and a judicial pellant specific exempted filed District Court seek- catalog relatively suit in the mat generally Dep’t of the Air Force ing injunctive declaratory relief. ters. Rose, v. 360-362, 1592, Judge granted 352, Pratt mo- S.Ct. U.S. Pro Environmental summary judgment (1976); tion for on November 48 L.Ed.2d 11 Mink, 73, 79-80, Agency tection v. complaint. 1977 and dismissed the JA 72a- He (1973); 73a. found that the documents at issue S.Ct. L.Ed.2d 5 U.S.C. (1976); fell within express Exemption S.Rep.No.813, Cong., terms of 89th 1st § FOIA, 8 of the (1965); H.R.Rep.No.1497, which shields from mandato- 2-10 Sess. ry disclosure (1966).6 matters “contained in or relat- 2d 1-12 Sess. examination, ed to operating, or condition was hearings inserted in the course of of, prepared by, on behalf for the deliberations before the on Subcommittee use of an agency responsible regula- Procedure Administrative Practice supervision institu- Judiciary.7 Senate Committee It tions!;.]” 552(b)(8) (1976). Id. 5 U.S.C. states: Taylor affidavit, supra places at JA 23a. A 6. This court has held that the copy request Entry appears at Record proving burden of fall within matters request Exhibit 1. The Consumers Union was exemption agency, FOIA ex and that subsequently modified did to make clear that it emptions narrowly are to be construed. Wash encompass not the names of bank customers or ington Project, Dep’t Research Inc. v. the details of the financial transactions cover- Health, Welfare, U.S.App.D.C. Educ. & 164 Taylor general ed. affidavit at JA 24a. The 238, denied, (1974), 504 F.2d cert. survey steps results of the and the taken to 963, 1951, 95 S.Ct. 44 L.Ed.2d 450 compliance by subject achieve already the banks have (1975). public, been exclusive of the made particulars names of those banks and of the exemption originally 7. The was added to S.1666 Hearings relevant transactions. See on Federal by Congress —a bill in introduced the 88th Banking Agency Enforcement of Truth in Lend- 4, Long (109 Senator of Missouri on June ing Act Before a Subcommittee of the House Cong. 9946). Rec. The Senate Committee on Operations, Committee on Government 94th Judiciary 22, reported July the the bill out on Cong., (1976). por- 2d Sess. 82-93 Relevant 1964—while its Subcommittee on Administra- Comptroller’s presentation tions of the those appellee’s brief, office holding tive and Practice Procedure was still hearings are set forth in an addendum to hearings U.S.App.D.C., the discussed at at pp. 9c-20c. -, 539, at 589 F.2d infra. The committee 10, Entry

3. Record Exhibit 2. See C.F.R. report Exemption states that spe- 8 “is directed 4.16(b)(5) (1977). 4.16(b)(8) §§ and cifically insuring to security the of our financial Rep. Cong., institutions.” S. No. 88th 2d Entry 10, 4. Record Exhibit 5. See 12 C.F.R. (1964). passed Sess. 7 S. 1666 the Senate on 4.16(b)(4), 4.16(b)(6), 4.16(b)(7) (1977). §§ and July (110 Cong. 17089), Rec. but there Appellee’s summary judgment motion for enough remaining was not time for considera- the District Court and the both briefs provisions the House. Its were carried Exemption court and here have focused on the 8 issue. As the S.1160, which, over into after some further out, majority points there is no amendments, became the FOIA. need, case, light disposition of our for exemptions us to consider the other raised Comptroller. the

(b) apply agencies regulate not mat- This section does to Government could, ters that are— these if indiscriminate- institutions disclosed, ly great harm. cause H.R.Rep.No.1497, Cong., 89th 2d Sess. 11 (8) contained in or related to examina- Further, presented to (1966). testimony the tion, reports condition operating, or of, hearings on the held the prepared by, or for subcommittee which on behalf dangers the responsible for agency exemption use of also stressed institutions,8 of financial regulation supervision or addition harm financial institutions!)] grounds other for nondisclo- suggesting sure.9 552(b)(8) U.S.C. § heavily legisla- upon relies reports Both the House and Senate provision urges above history indicate that was con- tive sketched cerned that release of bank examination Act report the Truth and docu- operating reports endanger could requested although it has ments termed — fiscal well-being subject banks. reports by Thus the report Senate states: office10—should not held to fall within specifically No. 8 is directed Exemption 8 their because disclosure would insuring security our financial Congress sought not lead to the harms by making institutions available to to adopted avoid when it the FOIA responsible agencies Government time, Union exemption. At that Consumers in- regulation supervision out, points no Truth in there was examination, operating, stitutions Nor was the Act.11 charged by[,] on prepared condition behalf with consum- enforcement any analogous of, agencies. or for the use of such Rather, er-oriented bank exam- legislation. S.Rep.No.813, Cong., 89th 1st Sess. deter- “primarily designed inations were And House observes: Reply mine the of the banks.” soundness then, appel-

This brief designed insure at Since argues, security integrity significant of financial institu- lant there has been “a tions, for sensitive change details collected of circumstance”: has Hearings regular 8. See on S. 1663 Before the Subcom- while commercial examination was mittee going Subsequently, on Administrative Practice Proce- also on. Id. he drafted a Judiciary, dure of questionnaire the Senate Committee on the which “consisted of the same (1964) (hereinafter 2d Sess. questions personnel which I had asked of bank Hearings); U.S.App.D.C., 1964 Senate during my the course of in-bank examinations -, * * * 589 F.2d at infra. requested copies [and of ex- which] actly types the same documents records and 9. Hearings, supra 1964 Senate which would have examined in files of the 549; 177e, 186, U.S.App.D.C., 191 at-- during bank the course of an examina- in-bank -, F.2d at 539-540 infra. 589 questionnaires Id. at tion.” 5a-6a. These were banks, appellee 27 sent to selected brief generated by 10. documents in suit were 8, pilot of the 186 national banks in survey England out the six-state of in New instituted England Region, by Comptroller’s New id. at 17. Regional the in First Office Resnik, late Dis- 1974. In its to this the Affidavit of Con- submissions court and William Comptroller’s sumer Court the has been at Examination Coordinator trict office Office 31, 4a, banks, January 1977, pains point Comptroller, of the to out JA that the the letters to program by 4a-5a. The include was to the documents and answers submitted them, prepared significantly greater in-depth and the and notations of by records, materials, on advertising bank examiners and bank such as letters, customers, files, mailings typical bank documents are similar to docu- and loan ments, questioning reports prepared and of bank officers in in connec- the course of policies, procedures, per- any See, Taylor g., tion with and forms other bank examination. e. loans, taining affidavit, supra 1, in to consumer than occurred at JA 20a-22a. the of course the normal commercial bank Act, Lending 11. The Truth in 15 1601 § U.S.C. * * * examinations. seq., 1968, et was enacted in 82 Stat. 146. Initially, Id. at 5a. Mr. Resnik conducted the person, intensified consumer examinations 538 policy legislation the as a whole’ stat- with protection of consumer a host

adopted * * Truck- v. American the Comptroller United to the States delegated utes 543, 534, 60 Ass’ns, Inc., S.Ct. compliance by na- 310 U.S. ensuring ing responsibility of (1940), Ozawa asserts, 1059, quoting we Thus, appellant 84 L.Ed.2d 1345 tional banks.12 43 words of the 260 S.Ct. plain v. United U.S. the beyond must look Perry v. phrase 65, “exami- also interpret the 199 67 L.Ed. 397-400, 392, reports” by Co., nation, condition Loan operating, Commerce congres- 852, indicia of And a the available L.Ed.2d 827 exploring 15 S.Ct. coming the circumstances intent and change sional of circumstances significant words. Congress chose those statutory when lan- obtained after the Congress chose concludes, it done, appellant When this is good reason many cases be guage could in applies Exemption 8 becomes clear that rather intent legislative on the to focus the disclosure of only to those matters an ana- have become than on words which to lose confi- the cause change in circum- the chronism. But here finan- particular dence in the soundness Congress. It chose by was effected stances cause a “run” cial institutions and therefore expand the succeeding years in 1968 and on those institutions. thus, responsibilities range of issues and effect, expand case is not free present While think employed into which examiners information doubt, the court that I concur with from in- likely by would in its effort to recast appellant must fail asserts, Exemption 8 If, quire. as that looks to provision from a Exemption 8 here, applied an anachronism has become of material into one the nature and source And so rendered it. is consequences of likely that focuses process expanding neither is course true that a court disclosure. It subsequent amend- Comptroller’s role nor in meaning beyond plain is free to look did choose to give ments to FOIA13 by Congress where to the words used alter its the documents characterization of meaning would lead to absurd effect to that are results, “merely relating institutions even to a result that Exemption 8.14 by ‘plainly excepted one at variance from the FOIA an unreasonable eight September con- subcommittee directs our attention to 1976 a Operations Truth to the House Committee on Government sumer-oriented statutes addition the Truth hearings held Lending on enforcement enacted since Act that have been agencies. banking In a Act, federal They Housing are: Fair dis- issued full committee thereafter 3605, (and (1968) U.S.C. 82 Stat. 83 amended § pros of viola- cussed disclosure cons of (1974)); Reporting 88 Stat. 729 the Fair Credit Report H.R.Rep.No.95-280, tions. Third Act, 1681, (1970); the Stat. 1128 § U.S.C. Operations House Government Committee Act, 12 Real Estate Settlement Procedure Banking the Truth Act: Federal 2601, (1974) (and amend- U.S.C. 88 Stat. 1724 § Agency for Statuto- Enforcement and the Need (1976)); Billing ed 89 Stat. 1157 the Fair Credit 10, Reform, (May ry 1st Sess. Act, 1666, (1974); § U.S.C. 88 Stat. 1977). as- must have The Committee —which Act, Equal Opportunity 15 U.S.C. Credit hold, sumed, today specific informa- as we 1691, (1974) (and amended 90 88 Stat. § obtainable under tion about violations was not (1976)); Mortgage the Home Disclo- Stat. facets of the disclo- two FOIA—considered Act, (1975); sure 12 U.S.C. 89 Stat. 1125 § question. whether “the overall sure First was Leasing Act of Consumer truth-in-lending degree indi- (1976); and the Fair Debt 90 Stat. 257 § pub- vidual creditors should be disclosed Act, 15 U.S.C. Collection Practices point at the Committee lic.” Id. 25. On this empow- The is Stat. 874 study needed that would be concluded further Lending ered to enforce the Truth grounds on that: by against national banks Though knowledge consumer of creditor compliance histories in com- would be useful parative shopping, credit such information Congress of deficiencies remedied a number would not be available on a basis uniform in the in 1974. See Act of November FOIA example, all creditors. For bank commercial 93-502, Exemption Pub.L. 88 Stat. 1561. compliance is evaluated a examina- direct changed. 8 was not basis, whereas, company compli- finance recognize place, history that it can be treacherous In the first is rather sparse. a ambitiously upon build too foundation Little actual discussion of the prop- scope silence or inaction. For it is er has congressional brought been attention, possible Congress that never noticed to our what clearly only there is is tangential really relevance.15 Thus we Lending the intersection of the Truth in only segments have re- committee and Freedom of Information acts. But be- occurred, ports already quoted testimony some concluding fore this is what before the Subcommittee on Administrative substituting our own and before words Practice of the .Senate Judi- conclude, and Procedure we do so we Congress those of if Further, ciary history what Committee.17 would do to be certain that our words well crystal we have is less than clear. The intent than are legislative are truer make House and reference Senate whose the words legislators chosen “security” “integrity” finan- my judgment, intent explore. we could, cial as ap- institutions —words certainty lacking. is Yet I also requisite pellant urges, refer to commercial myself disagreement find with the solvency. But those words soundness and view, court’s assertion that our “[i]n [the import have somewhat broader legislative] history supports Comptrol- well, perhaps encompassing the need for a clearly position ler’s is smoothly functioning regulatory regime, a applicable to the documents under review.” goal Comptroller’s which the office has U.S.App.D.C. at-, Majority opinion, sought persuade both us and is F.2d at 534. It seems to me that accomplished best under a rule of strict legislative history is inconclusive —neither confidentiality reports.18 for examination enough justify clear in one direction to departure from the words chose hearings scarcely A look at is the Senate thereafter, enough 1966 and nor clear kept points enlightening. appellant more As the court’s support out, other to endorse- references hearings do include position. ment of the For ex- Comptroller’s concerns. solvency and soundness impair public anee is mation would not evaluated on the basis of borrower confidence in opinions complaints filed with Trade Com- the Federal But the institutions. way approaches mission. The two are no congressional com- conclusions reached mittee in 1977 comparable. us what was intended and do not tell Second, utility explored Id. the Committee Congresses that enacted the FOIA disclosing “specific truth-in-lending viola- Thus, the Truth in however valu- Act. * * * tions to affected borrow- individual ought determining able it is for what the law ers.” Id. Committee concluded that bor- be, the Committee cannot answer rowers should be informed of at least substan- question today before us because it does not they tial violations so civil remedies could avail themselves of tell us what the law is now. provided thereby in the Act and Hearings, In the course of the 1964 Senate private attorneys general. serve as Id. at 26- 8, spokesmen supra note for the Notifying 27. tions, borrowers of substantial viola- observed, office did enter into a discussion with members the Committee would not com- promise confidentiality of the subcommittee the advisabil- of the standard ity exempting applications safety and soundness examination of commer- for national bank 179-180, Hearings cial because Truth Act viola- charters. 1964 Senate at tions need not be pices they appli- carried out under the aus- 184-186. That discussion indicates that regular and, where deliberately were cations in Ex- not included out, reported sepa- are so carried can be emption 8. rately. violations, Disclosure of such the Com- added, casés,” “except very mittee unusual at-, U.S.App.D.C., 589 F.2d at 16. See endanger safety would not and soundness 537, supra. particular of a mittee institution. Id. at 27. The Com- suggested various amendments to effec- U.S.App.D.C. at---, tuate its recommendations. Id. at 38—48. F.2d at 539-540 infra. Both sides in the instant case make reference report appellee to the Committee’s — Hearings, supra 18. See note 1964 Senate proposition present exempt sought the information 186; Taylor affidavit, supra at JA 27a- from the FOIA and 28a; appellee brief for at 46-47. argument for its that disclosure of that infor- would ports grossly James O. East- “be unfair and in viola- in a letter to ample, Senator land, Judiciary principles competition,” tion of basic of of the Chairman Senate jeopardize of bank Committee, privacy of the Federal would the chairman bankers officials, “make wrote that “even it would Home Board and that Loan Bank with our exam- cooperate most reluctant to relating matters delicate and sensitive Comptroller seriously hamper iners and of financial institu- condition or affairs duties.” Id. assigned his the Act as it then exercise of might tions” come under addition, subcommittee In a letter to the that, to the fact un- regard read “without Association from the American Bankers conditions, disclosure der certain conclusory na- preliminary stressed the pressures on such insti- precipitate runs and contained in many ture of statements of the the entire eco- tutions which could threaten Id. at 549. It sim- reports.19 country.” Hearings nomic structure of ply legislators is not clear to me that the (in part) Before the S. S. 8 were who drafted motivated Subcommittee on Administrative Practice causing runs on only by a fear of banks. and Procedure of the Committee on Senate 1st Judiciary, Cong., 88th Sess. Finding legislative history somewhat (1963). July, following ap- And his opaque, to the words return subcommittee, pearance before the Robert observes, here, chose. And as the court Bloom, Comptroller, chief counsel to the Certainly comfort. appellant can find little stated that release of “detailed information way present Exemption seems odd aspect of the business of every provision which phrasing kind * * * bank unsophisticated to an [a] For Con- was intended. claims could, public through misunderstanding, un- matters exempt only “those gress did not dermine unwarranted confidence and cause regulatory contained in the files of bank Be- Hearings runs on banks.” on S. 1663 might cause agencies the release of which fore Administrative the Subcommittee on excepted banks.” It unwarranted runs on Practice and Procedure of the Senate Com- reports,” and it operating “examination and Judiciary, Cong., mittee on the 88th 2d Sess. every must have known that not document public But problem con- reports “contained in or related to” such fidence in fiscal soundness was not the might un- would include information that brought Congress. one to the attention of dermine solvency confidence sure, Mr. Bloom also stressed that disclosure of To institution.20 be “examination, operation, legislative history might and condition” re- clear-cut be evi- Deputy Comptroller Taylor 19. A similar letter was sent to the House Associate stated Operations Government Committee the Fed- in his affidavit that Deposit Corporation. Hearings eral Insurance an examination of a national bank and result- ing working papers report on H.R. 5012 Before a Subcommittee of the and the of such Committee, Operations solely House Government examination are limited not to a con- aspects op- 1st Sess. 435 sideration of those of the bank’s entirely erations which safety are concerned Rather, powers solvency. 20. The in- and duties examiners of bank examiners vestigate, (1976) are set forth in 12 U.S.C. 481 of examination consider, employee states: such matters as benefit plans, rily may entirely loans which be satisfacto- any making examiner the examination standpoint but which from a credit [sic] power national bank make a shall have lending limitations nonetheless violate the thorough examination the affairs of the of all [relating to the contained in 12 U.S.C. 84§ doing power bank and in so he shall have any maximum a bank can loan amount any oaths and to examine administer officers and person], one bonds and bank investment agents under oath and thereof investments, although or securities which shall make a full detailed sound, they may entirely may also be condition of said bank to the * * * * * illegal. * Currency].] affidavit, Taylor supra JA 25a-26a. (Emphasis added.) addition, the examiner is Many unlikely to cause such items would be charged making any a full examination of consumers to lose confidence in the bank’s relationship affiliates of the bank and of the soundness if disclosed. between those affiliates and the bank. Id. deliberately proposition underlying tral chose to be 8— dence that kept easy of admin- that information must be from in the interests certain overinclusive it wanted to the for fear that it will be misunder- certainty istration and —that so, to overreaction—is some- categorical, bright-line rule. If stood and lead amake the philosophy what inconsistent with be- in the instant case appellant prevail to Second, the the mere fact hind FOIA.21 we have to be that subse- would convinced that there is a long-standing tradition of so quent have made the events confidentiality for bank records—a tradi- it in need much more overinclusive that is to occasionally referred with some rev- I lack the judicial of a refit. think we both testimony erence in before the sub- Senate congressional guidance to resources and the me as irrelevant. It committee22—strikes And, if inquiry. undertake such an Con- Third, be may time for a reexamination. line, I gress bright per- wanted am not a that Comptroller’s argument confiden- that who should suaded we are the ones necessary maintain the tiality to smooth Indeed, it. if were to follow smudge we process and functioning of the examination a appellant’s would face shortly lead we to cooperation officials seems of bank to problems relating of which docu- number very force. Not me to be of limited ments office unearthed does the have a considerable likely should or should not be deemed weapons disposal compel arsenal his at with which Con- cause the kinds of harms but disclosure,23 the costs of employing that gress I not confident was concerned. am he upon arsenal are the institutions assessed resolve adequate that we have criteria to supervises.24 part Recalcitrance on the questions. simply to the banks would therefore lead Further, go Ill it higher assessments. should preserving good rela- saying without conclusion, legislative find histo- I regulators they tions between ry persuade me that we insufficient which, regulate goal however desirable is a ignore plain should meaning moderation, overemphasized can if Rather, Judge agree words. I with Tamm: flatly very purposes inconsistent with the result of writ- applying Exemption 8 as Fourth, present prac- regulation itself. “absurd,” “unreasonable,” ten is not “ identities of disclosing tice of not ‘plainly policy at with the variance ** Lending Act violate the Truth legislation as whole’ United (and injured borrowers of notifying of not Ass’ns, Inc., Trucking States v. American retarding achievement of violations, bemay 1064. supra, 310 60 S.Ct. at U.S. with Act.25 substantial Congress’ Yet I not do think our comfortably therefore, appellant feeling with the entirely join, result sits I FOIA, congres- change or that is nec- study broad thrust of the some that further of this improve majority essary. sional could not en- join alterations But I suggesting forcement of Truth in Act. Court panel and the District is, believe, Indeed, rather the matter in serious relief from seek First, cen- legislative need of attention. than courts. study majority op. question 21. See authorities cited at note 19. This further was slated for Oper- House Committee Government supra. report. ations Hearings, supra See note its See 1964 Senate 177e, 179, 191, In the submitted instant case has policy suggesting that a of disclosure affidavits way furthering important can be Truth (1976) (giving 23. See 12 examiners Affidavit of Act enforcement. power compel all examine documents Superintendent Quinn, Bureau of John E. testimony, setting fail- forth sanctions Maine, Consumer for the State Protection cooperate). ure to 63a; February of Law- Affidavit JA Connell, Jr., rence Commissioner Bank

24. See 12 U.S.C. 481-182 §§ Connecticut, JA 67a. State of March

Case Details

Case Name: Consumers Union of United States, Inc. v. John G. Heimann, Individually and in His Official Capacity as Comptroller of the Currency

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Aug 31, 1978

Citation: 589 F.2d 531

Docket Number: 77-2115

Court Abbreviation: D.C. Cir.