Fox loses FOIA suit against Federal Reserve

Hannah Bergman | Freedom of Information | Feature | July 31, 2009

A federal judge ruled against Fox News Thursday in a key Freedom of Information Act case involving bailout-related documents held by the Federal Reserve Board.

Judge Alvin K. Hellerstein in the U.S. District Court in Manhattan ruled that the Federal Reserve Board in Washington had properly withheld more than 6,000 pages of documents from Fox because the records fell under the FOIA exemption protecting trade secrets and confidential information.

Fox sought information about the Federal Reserve’s emergency lending program, known as the discount window.

Hellerstein also ruled that the 12 regional Federal Reserve banks are not government agencies. Therefore, he held, the Board in Washington was not obligated to search the records of the regional banks in response to Fox’s FOIA request.

“It may be, as Fox argues, that no [Federal Reserve bank] has a FOIA office to which FOIA requests may be submitted, that the only FOIA office for the Federal Reserve System is in the Board, and if Fox cannot obtain documents from the Board, it will be deprived of obtaining any meaningful documents enabling a public accounting of the Board’s Discount Window loan program," Hellerstein wrote. "Whether or not this is so, it does not alter the fact that Fox served its requests only upon the Board and that the definition of a Board record is limited by statute."

According to a Reuters report, Fox released a statement saying, ‘We respect the judge's decision, but we will probably appeal.”

Hellerstein's ruling marks the first time a court has so clearly and expansively dealt with the question of whether the regional banks are subject to FOIA as government agencies. However, prior court rulings in other cases had indicated the banks were not government agencies subject to FOIA and the banks had also long maintained this. 

Bloomberg News also has a FOIA suit similar to Fox’s pending in the same court. Judge Loretta A. Preska in that case ordered additional briefing on the question of whether the regional Federal Reserve banks are government agencies, but has not yet ruled on the matter.

Fox is also pursuing another FOIA suit against the Treasury Department for other bailout records. There has been no decision in that case yet, either.

Finally, The New York Times has a pending FOIA suit against both the Federal Reserve Board and Treasury Department for similar documents. That suit, filed much later, is still in its early stages. The Fed agreed only to process the newspaper's requests, which it had not yet done when the statutory deadline for processing the requests had passed.