Plaintiff Fox News Network, LLC, appeals from a judgment entered July 30, 2009 in favor of defendant Board of Governors of the Federal Reserve System by the United States District Court for the Southern District of New York (Hellerstein, J.) in a suit brought to enforce a Freedom of Information Act request for information relating to lending conducted by the twelve regional Federal Reserve Banks. For the reasons stated today in the tandem case, Bloomberg L.P. v. Bd. of Governors of the Fed. Reserve Sys., ___ F.3d ___, No. 09-4083-cv, (2d Cir. March 19, 2010), the disputed information was not exempt from disclosure under Exemption 4 of the Freedom of Information Act. We hold here that while the records of the twelve regional Federal Reserve Banks do not automatically become records of the Board, certain records of the Federal Reserve Banks are records of the Board and must be searched. The district court's judgment is vacated and the case is remanded.
The opinion of the court was delivered by: Dennis Jacobs, Chief Judge
Before: JACOBS, Chief Judge, LEVAL and HALL, Circuit Judges.
The Federal Reserve System--the central bank of the United States--is composed of twelve regional Federal Reserve Banks and the defendant-appellee Board of Governors of the Federal Reserve System ("Board") in Washington, D.C. The Board is a federal agency that (among other things) supervises the operations of the twelve Federal Reserve Banks.
Plaintiff Fox News Network, LLC, ("Fox News") submitted two Freedom of Information Act ("FOIA") requests to the Board in November 2008. The first sought the names of all the private banks that received loans from the twelve Federal Reserve Banks (under all of their lending programs) from August 2007 to November 2008, and the collateral the banks provided. The second sought the names of the borrowing banks, the amount they borrowed, and the collateral pledged as to all loans made by the twelve Federal Reserve Banks during September and October 2008. The Board denied these requests in January 2009, noting that while it possessed some responsive records, it was withholding the requested information under Exemptions 4 and 5 of FOIA. During its search for documents responsive to the FOIA requests, the Board determined that it had no information about the collateral used by borrowing banks to secure specific loans, and that such information would be held by the Federal Reserve Bank that made each loan. But since the Board is of the view that the relevant records of the Federal Reserve Banks are not records of the Board, the Board concluded that a FOIA request to the Board did not require the Board to search for them--and no search was conducted.
Fox News brought suit in the United States District Court for the Southern District of New York (Hellerstein, J.) to compel disclosure of the Board's documents and a search of documents in the hands of the Federal Reserve Banks. Following cross motions for summary judgment, the district court ruled in favor of the Board, holding both that the records maintained by the Board are properly exempt from disclosure under FOIA Exemption 4, and that the Board was not required to search records maintained by the Federal Reserve Banks. Fox News Network, LLC v. Bd. of Governors of the Fed. Reserve Sys., 639 F. Supp. 2d 384, 394, 401 (S.D.N.Y. 2009). The district court's opinion did not discuss Exemption 5, and on appeal the Board argues only the applicability of Exemption 4.
For the reasons stated in the tandem case, Bloomberg L.P. v. Board of Governors of the Fed. Reserve Sys., ___ F.3d ___, No. 09-4083-cv, (2d Cir. March 19, 2010), the information unambiguously at issue in the Fox News requests --the identity of the borrowing bank, the dollar amount of the loans, the collateral securing the loans, and the loan origination and maturity dates--is not protected from disclosure by Exemption 4. The Board is therefore required to disclose responsive records it had previously deemed exempt; we vacate the district court's judgment and remand to the district court to order the Board to disclose the previously withheld responsive information.
Still at issue is whether the Board adequately searched its records and the records of the twelve Federal Reserve Banks in response to these FOIA requests. Fox News argues that: (1) the Board was required to search the loan records of each of the twelve Federal Reserve Banks, and (2) the Board misconstrued Fox News's FOIA requests in the Board's search of its own records.
As the district court concluded, not all lending records of the twelve Federal Reserve Banks necessarily become records of the Board. However, Board regulations provide that some records at the Federal Reserve Banks--those kept at the Federal Reserve Banks under certain conditions for "administrative reasons"--are records of the Board; these must be searched. We remand to the district court to order further searches and to determine if the fruits of those searches must be disclosed. The district court did not reach the question of whether the Board misconstrued the scope of the Fox News FOIA requests (the district court having ruled these documents would be exempt from disclosure in any instance); we remand for further consideration of that question as well.
Barring a relevant exemption, an agency must disclose responsive "agency records" in order to comply with a FOIA request. See 5 U.S.C. § 552(a)(4)(B); see also Carney v. U.S. Dep't of Justice, 19 F.3d 807, 812 (2d Cir. 1994). Fox News argues on appeal that all of the lending records of the twelve Federal Reserve Banks are "agency records" of the Board within the scope of FOIA. See 5 U.S.C. § 552(a)(4)(B). Materials are agency records under FOIA if:
(1) the agency created or obtained the relevant records, and (2) the agency is in control of the documents at the time of the FOIA request. U.S. Dep't of Justice v. Tax Analysts, 492 U.S. 136, 144-45 (1989). Under the Board's regulations, "[t]he Secretary of the Board . . . is the official custodian of all Board records, including records that are in the possession or control of the Board, any Federal Reserve Bank, or any Board or Reserve Bank employee." 12 C.F.R. § 261.3(a). Since the Board is the "custodian" of "Board records" that are in the hands of the Federal Reserve Banks, such records must be searched by the Board pursuant to FOIA. It remains to be determined which Federal Reserve Bank records are "Board records" that the Board must search.
Fox News argues that the responsive loan records are among those records held at the Federal Reserve Banks that are also records of the Board. By regulation, records of the Federal Reserve Banks become records of the Board when they are created pursuant to the "performance of functions for or on behalf of the Board" or when they "are maintained for administrative reasons in the regular course of business in official files in any division or office of the Board or any Federal Reserve Bank in connection with the ...