723 355 5285 ?.AI
BtrARD trF EOVERNORE
OF THE
FEDEFIAL RESERVE sYSTEM
WAStrlNGrEN, C. l. eO55l
KEV]N M. WARSH
MEMBEF DF THE BOARtr
September 17, 2009
Mr. William J. Olson
William J. Olson, P.C.
370 Maple Avenue
rvVest
Suite 4
Vienna, V A 22180-5615
Dear Mr. Olson:
This is in response to your letter dated and received by the Board's
Freedom of Information office on August 20, 2009, in which you appeal, on behalf
of the Gold Anti-Trust Action Cornrnittee ("GATA"), pursuant to l-z CFR
261.13(i), the determination of the Secretary of the Board ("Secretary',) on your
request under the Freedom of Information Act ("the Act" or "FOIA,'),
5 U.S.C. $ 552. By letter dated April 14,2009, you requested documents from
January I, 1990, to the date of your letter, "relating to, explaining, denying or
otherwise mentioning:
'gold
swap';
'gold
swaps';
'gold
swapped';
,proposed
gold
swap';
'proposed
gold swaps'; or
'proposed
gold swapped', either involving the
United States of America, or any department, agency or agent thereof o. oot
involving the United States of America." Your request also includes eighteen
other categories of documents, generally relating to gold swaps, including
numerous documents from the Department of the Treasury ("Treasury") as well as
docutnents relating.to your near-identical FOIA request regarding goid r*ups from
December 6^2007.1
'
Among other things, the eighteen other categories of docurnents requested
include "all records of FOIA requests submined by other persons which requested
records involving: (a) the GATA FOIA request of December 6, 20A7 or (b) the
records provided to GATA in response to its FOIA request of December 6, 2OO7
sinse December 6,2007." Your request also seeks copies of all FOIA requests
made by persons or entities other than GATA for records relating to "gold swap,"
"gold swaps," or "gold swapped" since January 1, 1990. The Secretary informed
you that the Board has not received any FOIA requests for records requested by?a3 356 5285 7A3 355 5A85 P.Az
-2-
Staffs search disclosed documents that were responsive ro your
request. By letter dated August 5,2009, the Secretary informed you that staff had
seatched Board records and made suitable inquiries and found t'wo additional
documents, in addition to those that were responsive to your Decembe r 6,2007
FOIA request. These two documents, consisting of 173 pages, were provided to
you in their entirety. The Secretary informed you that all other responsive
documents contained information that was exernpt from disclosure'under
exemptions 4 and 5 of FOIA, 5 U.S.C. gg 552(b)(a) and (b)(5), respecrively. The
Secretary further informed you that the documents containing the exempt
information had been reviewed in accordance with subsection (b) of FOIA and that
Iro reasonably segregable nonexempt information was found. Accordingly,I3T
full pages were withheld from you, in like fashion to your earlier request.
You appealed this determination by letter dated and received by the
Board's Freedom of Information office on August20,2009. I interpret your
appeal as (l) requesting the Board to reevaluate the Secretary's determination that
the claimed exemptions provide valid bases for withholding the information,
(2) challenging Board staff s search in response to your request, (3) requesring that
the Board provide documents originating from Treasury, (4) requesring that the
Board make a discretionary release of infonnation even if the Board determines the
documents are covered by an exerrption, and (5) requesting the Board to provide a
Vauelm index of the withheld information.
Information in the possession of an agency is exempt from disclosure
if it falls within one or more of the enumerated FOIA exemprionl. Sgg 5 U.S.C.
$$ 552(b)(l)-(9). Exemption 4 pennits agencies to withhold "trade secrets and
commercial or financial information obtained from a person and privileged or
confidential-" 5 U.S.C. $ 552(bX4), Information is exempt frorndisclosure if
disclosure is likely either to impair the government's ability to obtain necessary
information in the future or to cause substantial harm to the competitive position of
the person from whom the information was obtained. See National par.ks
and
conservatiqn Ass'n v. Morton,498F.2d765,770 (D.c. cir. lg74).
GATA or provided to GATA. The Board also has not received any subsequent
requests for records pertaining to the topics listed in your request. Accordingly,
the Secretary informed you that the Board does rrot have any records responsive to
this portion of your request. I have confrmed the Secretary's determination
regarding the lack of any subsequent request for records regarding gold swaps
since December 2007-?23 355 5285 P.Z3
In connection with your appeal, I have confirmed that the information
withheld under exemption 4 consists of confidential cortmercial or financial
information relating to the operations of the Federal Reserve Banks that was
obtained within the meaning of exemption 4. This includes information relating to
swap arrangelnents with foreign banks on behalf of the Federal Reserve System
and is not the type of information that is customarily disclosed to the public. This
information was properly withheld from you.
Exemption 5 of FOIA permits agencies to withhold "inter-agency or
intra-agency memorandums or letters which would not be available by law toa
party other than an agency in litigation with the agencyj' s u.s.C. g 3szpy1s1.
This exemption includes documents that embody the
';deliberative
process" of the
agency before reaching a decision, in order to encourage honest ani frank
communication within the agency. See, eâ¬., National Wildlife Fed'n v. U.nited
States f,orest Serv., 861 F,2d 1 14,ll8-20 (9th Cir. 1988). Exemprion 5, tho"fore,
covers "recommendations, draft documents, proposals, suggestions, and other
subjective documents which reflect the personal opinions of the writer rather than
the policy of the agency." of t
617 F.2d 854, 866 (D-C.Cir. 1980). "[E]ven factual segments of documents are
protected by Exemption 5 from disclosure if the manner of selecting or presenting
those facts would reveal the deliberat[ive] process, or if the facts *"
'inixt
icablv
intertwined' with the policy making process." Jo
-J-
729F- Supp- 871,877 (D.D.C. 1989). "Exemption 5 serves a numbe. of purpor"t
among which [is] the prevention of premature disclosure of proposed policies
before they have been finally formulated or adopted." Wolfl v. Department of
Health and Hurnan serv., 839 F.2d 768,775 (D.c.cir. lggs).
I have confirmed that information withheld frorn you under
exemption 5 in this case is both predecisional and deliberative within fie meaning
of exemption 5. Accordingly, this information was properly withheld.
As previously noted, the Secretary provided you with 173 pages of
documents responsive to your request. You state that these documents appear to
be redacted. I have confirmed that these documents were provided to you as they
were found in our files, without having been redacted by Board staff. These
documents consist of notes for and meeting transcripts of the Federal Open Market
Committee ("FOMC") and originated from individuals acting in their capacity as
FOMC staff, not Board staff. The FOMC is a separate entity for FOIA purpor.t
with its own systems of records and FOIA regulation. Any redactions were made723 355 5285 P.Z4
-4-
by FOMC staff, and Board FOIA staff received the documents in redacted fonn.
Therefore, YoD may wish to contact the FOMC directly at the address below should
you wish to request the unredacted portions of these documents.
Federal Open Market Committee
Carol R. Low
Secretariat Assistant
20th street and constitution Avenue, N.w., Mail Stop 55
Washington, D.C. 20551
With regard to these same 173 pages of documents, you also state that
ttrey were responsive to, but not produced, in response to an earlier FOIA request
from GATA. You state that "this is evidence of the FRB's failure to adequaGly
search and/or disclose responsive documents... ." You also cite to a Board staif
discussion paper mentioning gold swaps that you found on the internet via a
Google search, and which was not disclosed in response to your initial request, as
further evidence of the inadequacy of the initial search-2 Failure to conduct an
adequate and proper search to locate responsive records would provide a basis for
an appeal, ild your appeal questions the adeqr.racy and propriety of Board staffs
initial search.
