Professional Documents
Culture Documents
5 4.
2
1 Washington in support of
2 Plaintiff-Appellee.
3
4 David A. Schulz, Alia L. Smith,
5 Levine Sullivan Koch & Schultz,
6 LLP, New York, NY for Amici
7 Curiae Advanced Publications,
8 Inc., American Society of News
9 Editors, Dow Jones & Company,
10 Inc., Gannett Company, Inc.,
11 Hearst Corporation, Magazine
12 Publishers of America, Inc.,
13 National Newspaper Association,
14 Reports Committee for Freedom of
15 the Press, Reuters America LLC,
16 The Association of Alternative
17 Newsweeklies, The Associated
18 Press, The National Conference
19 of Editorial Writers, and the
20 New York Times Co. (“Press
21 Amici”) in support of Plaintiff-
22 Appellee.
23
24 Cory L. Andrews, Daniel J.
25 Popeo, Washington Legal
26 Foundation, Washington, D.C.,
27 for Amici Curiae Washington
28 Legal Foundation and Allied
29 Educational Foundation in
30 support of Plaintiff-Appellee.
31
32 C. Dawn Causey, Gregory Taylor,
33 American Bankers Association,
34 Washington, D.C., for Amicus
35 Curie American Bankers
36 Association in support of
37 Defendant-Appellant and
38 Intervenor-Appellant.
39
40
41 DENNIS JACOBS, Chief Judge:
3
1 United States--is composed of twelve regional Federal
6 Banks.
9 the Board in April and May 2008. The requests sought (in
1
Bloomberg sought information about loans conducted at
the Discount Window, the Primary Dealer Credit Facility
(“PDCF”), the Term Securities Lending Facility (“TSLF”), and
the Term Auction Facility (“TAF”). The Discount Window is
the long-standing program through which the twelve Federal
Reserve Banks make short-term loans (often overnight) to
depository institutions, and it can serve as “an emergency,
back-up source of liquidity” for borrowing depository
institutions that lack other options. Decl. of Brian F.
Madigan ¶ 18. In the financial crisis of 2007, the Board
authorized the Federal Reserve Banks to implement the TAF, a
form of Discount Window lending that provides longer-term
loans to depository institutions in amounts and at rates set
by auction. In response to the continuing financial crisis,
in 2008 the Board authorized the Federal Reserve Bank of New
York to lend to primary dealers (certain banks and broker
dealers) through the PDCF and TSLF. The PDCF expands
Discount Window-style lending to primary dealers. The TSLF
4
1 by loan, for the name of the borrowing bank, the amount of
3 collateral given.
11 under FOIA Exemptions 4 and 5. The Board did not search the
12 the records of the Federal Reserve Bank of New York had not
20 Reserve Bank of New York. Any argument that the Board had
6
1 therefore deemed waived. Norton v. Sam’s Club, 145 F.3d
7
1 alterations, and quotation marks omitted). Bloomberg
6 the borrowing bank, the dollar amount of the loans, the loan
8 the loan --was not “obtained from” the borrowing banks within
20
21 I
8
1 philosophy of full agency disclosure unless information is
3 Dep’t of the Air Force v. Rose, 425 U.S. 352, 360-361 (1976)
9 of Governors of the Fed. Reserve Sys., 463 F.3d 239, 244 (2d
12 845 F.2d 1177, 1180 (2d Cir. 1988). And “the burden [is] on
9
1 the proposition that the disputed information was “obtained
7 Reserve Banks that made the loans and passed the information
10
11 II
10
1 Federal Reserve Banks actually made. True, disclosure of
3 borrower; inferences may be drawn that the bank that got the
6 But the fact of the loan (and its terms) cannot be said to
11 not mean that such information was obtained from that person
16 loan. Like the loan itself, it did not come into existence
11
1 Cir. 1980)); see also Judicial Watch, Inc. v. FDA, 449 F.3d
15 Dep’t of Labor, 220 F.3d 153, 162 n.23 (3d Cir. 2000)
12
1 obtained from a company could be extrapolated would disclose
3 4). But these cases do not bear upon the present case,
13
1 information Bloomberg seeks be the same as the information
13 all the programs at issue, loans are made only upon the
14
1 collateral is acceptable. The acceptability of collateral
5 lender.
13
14 III
2
This would require a finding that a Federal Reserve
Bank is not itself an agency: a “person” includes “an
individual, partnership, corporation, association, or public
or private organization other than an agency.” 5 U.S.C. §
551(2) (emphasis added). Because we reject the Board’s
argument on a different ground, we need not decide that
15
1 information passed from them to the Board would still be
question.
16
1 fluctuations of bank stock, and rippling harm to the banking
15 Regulatory Comm’n, 975 F.2d 871, 879 (D.C. Cir. 1992) (in
16 banc).
17
1 the agency’s “principal argument [was] that Exemption 5
18
1 their prior distress) and the banking system as a whole
17
18 * * *
20 court is affirmed.
19