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On November 24, the U.S. District Court for the District of Columbia denied the U.S. Small Business Administration’s (SBA) request for stay and ordered the release of the names, addresses, and precise loan amounts of all Paycheck Protection Program (PPP) and Economic Injury Disaster Loans (EIDL) by December 1. As previously covered by InfoBytes, the court ordered the SBA to supplement their July disclosure and release the “names, addresses, and precise loan amounts of all individuals and entities that obtained PPP and EIDL COVID-related loans by November 19, 2020,” concluding that the SBA’s claimed FOIA exemptions do not cover the requested information disclosures. The SBA moved to stay the order to “preserve [the] SBA’s right to appeal and to avoid irreparable harm to [the] SBA and to privacy and business confidentiality interests of the millions of individuals and businesses….” The court initially granted a temporary stay to review the motion (covered by InfoBytes here). Upon review, the court denied the stay, concluding that staying the disclosure through an appeal “would deprive the public of information critical to an ongoing national debate of considerable importance, as well as basic details surrounding an unprecedented federal relief effort financed by taxpayer dollars.” The SBA must release the supplemental information by December 1, however, the court noted that “nothing in this decision prevents SBA from seeking its desired relief in the Court of Appeals before that date.”
Updated PPP loan data available here.
On November 13, the U.S. District Court for the District of Columbia temporarily stayed the U.S. Small Business Administration's (SBA) mandatory release of the names, addresses, and precise loan amounts of all Paycheck Protection Program (PPP) and Economic Injury Disaster Loans (EIDL) borrowers until the court rules on the motion to stay filed by the SBA. As previously covered by InfoBytes, the court ordered the SBA to supplement their July disclosure and release the “names, addresses, and precise loan amounts of all individuals and entities that obtained PPP and EIDL COVID-related loans by November 19, 2020,” concluding that the SBA’s claimed Freedom of Information Act (FOIA) exemptions do not cover the requested information disclosures. The SBA moved to stay the order to “preserve [the] SBA’s right to appeal and to avoid irreparable harm to [the] SBA and to privacy and business confidentiality interests of the millions of individuals and businesses….” The SBA requested the order be stayed until December 7 or pending appeal, if filed by that date. In response, the court issued a minute order, granting a temporary stay until it rules on the motion.
On November 5, the U.S. District Court for the District of Columbia ordered the U.S. Small Business Administration (SBA) to release the names, addresses, and precise loan amounts of all Paycheck Protection Program (PPP) and Economic Injury Disaster Loans (EIDL) borrowers. According to the opinion, national-news organizations filed an action against the SBA seeking disclosure of the loan recipient information, after the rejection of their Freedom of Information Act (FOIA) requests. In July, the SBA released the business information of certain PPP loan recipients (covered by InfoBytes here). For any loan over $150,000, the SBA data release included business names, addresses, NAICS codes, zip codes, business type, demographic data, non-profit information, name of lender, jobs supported, and a loan amount range. For loans under $150,000, the SBA withheld the business names and addresses in the release. Additionally, the SBA did not release the names and addresses of sole proprietorships and independent contractors receiving EIDL loans. The parties filed cross-motions for summary judgment as to the propriety of SBA’s withholdings.
The court agreed with the plaintiffs, concluding that the SBA’s claimed FOIA exemptions do not cover the requested information disclosures. Specifically, the court determined that SBA’s invocation of Exemption 4 of FOIA, which “shields from disclosure ‘commercial or financial information obtained from a person and privileged or confidential,’” was not applicable because the SBA did not give borrowers the assurance of privacy. In fact, according to the court, the government explicitly told the borrowers that the information would be disclosed in a form disclaimer. The court further rejected the SBA’s claim of Exemption 6 of FOIA, concluding that the “weighty public interest in disclosure easily overcomes the far narrower privacy interest of borrowers who collectively received billions of taxpayer dollars in loans.” Thus, the court ordered the SBA to supplement the earlier disclosure and release the “names, addresses, and precise loan amounts of all individuals and entities that obtained PPP and EIDL COVID-related loans by November 19, 2020.”
On July 24, the Federal Reserve Board issued a final rule revising its “Rules Regarding Availability of Information,” to update and clarify the Board’s regulations implementing the Freedom of Information Act (FOIA) and the rules covering the disclosure of confidential supervisory information (CSI). The final rule, among other things, adopts standards consistent with the OCC’s rules, including (i) permitting supervised financial institutions to disclose CSI with their directors, officers, and employees “when necessary or appropriate for business purposes”; (ii) “permitting disclosures to the supervised financial institution’s outside legal counsel and auditors when the disclosures are ‘necessary or appropriate in connection with the provision of legal or auditing services’”; and (iii) “eliminat[ing] the requirement that supervised financial institutions obtain prior [Board] approval to disclose [CSI] to their other service providers, such as consultants, contractors, and contingent workers.” The final rule also updates definitions for expedited processing, clarifies terms, and helps users “more easily navigate the process of filing a FOIA request.” The final rule is effective 30 days after publication in the Federal Register.
On September 12, the CFPB published a final rule to modify its procedures for the disclosure of records and information. As previously covered in InfoBytes, the notice of proposed rulemaking—published August 2016—sought to amend procedures used to obtain information from the Bureau under the Freedom of Information Act (FOIA), the Privacy Act of 1974, and in legal proceedings. In response to comments on its proposal, the final rule revises the following subparts under section 1070 of title 12 of the Code of Federal Regulations: (i) Subpart A: “procedures related to the certification of authenticity of Bureau records and the service of summonses or complaints on the Bureau”; (ii) Subpart B: practices to provide requesters additional flexibility under FOIA; and (iii) Subpart C: “procedures for requests for information from the Bureau in connection with legal proceedings.” Subpart E, which implements the Privacy Act of 1974, received no comments and has been finalized without modification. The Bureau noted that the final rule does not revise Subpart D, which relates to the “confidential treatment of information obtained from persons in connection with the exercise of its authorities under federal consumer financial law.” The final rule takes effect October 12.
District Court Rules CFPB Violates FOIA in Withholding Documents Produced in Response to CID; Upholds Other CFPB Interpretations of FOIA
On December 14, the U.S. District Court for the District of Columbia ruled that any CFPB policy considering information provided to the CFPB in response to CID requests to have been submitted “voluntarily” and therefore exempt from public disclosure violates the Freedom of Information Act (FOIA). In response to a lawsuit filed by a consumer class action law firm, the court reviewed numerous claims related to the CFPB’s use of FOIA Exemptions. As explained in the opinion, the D.C. Circuit views information provided voluntarily to government entities as “more stringently protected” than compulsory submissions in determining whether materials qualify as “confidential” under FOIA Exemption 4. The court, in granting summary judgment, agreed with the plaintiff in holding that the CFPB had “actual legal authority” to issue the CID and obtain the related materials, and therefore the CFPB cannot treat information produced in response as having been disclosed voluntarily. In addressing other claims, however, the court agreed with the CFPB that documents it relied upon to identify wrongful collection lawsuits were exempt from public disclosure under FOIA Exemption 7(E), which protects “records or information compiled for law enforcement purposes,” and that CFPB attorney notes from a settlement conversation were exempt under FOIA Exemption 5, which protects intra-agency memoranda and has been interpreted to protect attorney work product. The court also supported the CFPB’s policy treating debt collectors and debt buyers as financial institutions as consistent with FOIA Exemption 8 related to financial institution information, finding that debt collectors “as a link in the credit-management chain” fit comfortably within the “inherently broad” term financial institutions.
On October 19, the Federal Reserve Board finalized amendments to regulations for the processing of Freedom of Information Act (FOIA) requests by the Board. The amendments (i) “clarify and update procedures for requesting information from the Federal Reserve Board”; (ii) “extend the deadline for administrative appeals”; and (iii) “add information on dispute resolution services.”
The Board published the final rule in the Federal Register on October 25; the rule will become effective on November 24 of this year.
On April 28, an advocacy organization filed a reply to the CFPB’s opposition for expedited handling of two FOIA requests issued to the Bureau on April 12. The organization filed a lawsuit in the U.S. District Court for the District of Columbia on April 18 contending that the Bureau failed to comply with a statutory expedition processing request, and asserts that there is a “compelling need” for information that would enable the public to learn about efforts to influence the government's policymaking process before a proposed Congressional vote in mid-May to overturn the CFPB’s Prepaid Rule. The organization further argues—despite the Bureau’s assertions to the contrary—that in order to fulfill its mission it is “primarily engaged in disseminating information” with its public education efforts, and therefore, like others whose requests have been granted expedited processing, has “met the dissemination of information as a primary activity” requirement (citing Leadership Conference on Civil Rights v. Gonzales, 404 F. Supp. 2d 246, 260 (D.D.C. 2005)). Additionally, the organization claims that its FOIA requests pertain to issues for which there is an “urgency to inform the public” because of an imminent deadline under the Congressional Review Act (CRA), which “permits Congress to overrule a regulation within a certain amount of time after its promulgation.” Specifically, the FOIA requests seek access to communications about the Prepaid Rule between the CFPB and 12 Senators, and between the Bureau and two prepaid companies. The organization is asking the court to order the Bureau to take whatever steps are necessary to comply with the FOIA requests prior to the CRA vote on the Prepaid Rule.
On April 27, the House passed (by a vote of 425 to 0), the Fannie and Freddie Open Records Act of 2017 (H.R. 1694). The proposed measure—sponsored by House Oversight and Government Reform Committee Chairman Jason Chaffetz (R-UT)—would subject Fannie Mae and Freddie Mac to the transparency requirements applicable to federal agencies under the Freedom of Information Act (“FOIA”) for the duration of the time the enterprises remain under FHFA conservatorship. Pursuant to FOIA, the public has presumptive access to agency records unless the material falls within any of FOIA’s nine categories of exception. Having passed in the House, the bill was subsequently forwarded on to the Senate, where it has been assigned to the Senate Judiciary committee. An April 24 Committee Report on the bill provides some explanatory background on the issue addressed by the bill and the bill’s intentions.
FHFA Includes New Classifications for Reporting Adverse Examination Findings; Amends FOIA Regulations
On March 14, the Federal Housing Finance Agency (“FHFA”) issued an Advisory Bulletin establishing classifications of adverse examination findings for Fannie Mae, Freddie Mac, Federal Home Loan Banks (“FHLBs”), and the FHLB’s Office of Finance (AB 2017-01). Effective for the 2017 examination cycle, the bulletin establishes three designated “classifications,” which can be used by examination staff to communicate adverse examination findings more effectively. The three classifications are meant both to identify priorities for remediation and also to guide FHFA in the development of supervisory strategies. These supervisory strategies include: (i) Matters Requiring Attention—both high-priority critical supervisory matters that pose substantial risk to safety and soundness and deficiencies that, if not corrected, have the potential to escalate and negatively affect a regulated entity or the Office of Finance; (ii) Recommendations—advisory suggestions regarding changes to a policy, procedure, practice, or control; and (iii) Violations—non-compliance with laws, regulations, or orders that requires action by a regulated entity or the Office of Finance to correct, if possible.
On March 15, FHFA issued an interim final rule, amending its FOIA regulations (12 CFR Part 1202) in an effort to bring its internal policies into accord with guidelines established through the FOIA Improvement Act of 2016 (Pub. L. No. 114-185) and the “OPEN FOIA Act of 2009” (Pub. L. No. 111-83, 123 Stat. 2142, 2184 (2009)). The new FOIA rules – which are effective as of March 15—require agencies to, among other things, provide a minimum of 90 days (rather than 30 days) for requesters to file an administrative appeal; and provide notification to requesters about the availability of dispute resolution services.
- Magda Gathani to discuss "Cryptocurrency meets banks" at the Women in Housing & Finance Partner Series
- Garylene D. Javier to moderate "Innovation in an evolving privacy landscape" at the American Bar Association Business Law Section Consumer Financial Services Committee Winter Meeting
- Buckley Webcast: What’s next for privacy and data security in 2021 and beyond?