Exemption 8

Exemption 8 applies to records related to financial institutions. Under Exemption 8, an agency may withhold from mandatory disclosure matters “contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions.”1

While this exemption has been interpreted broadly to cover a wide array of documents, you may be able to argue that Exemption 8 does not apply to certain records because they fail to satisfy one or more of its elements: 1) that the institution at issue is not a “financial institution”; 2) that the agency has no supervisory or regulatory responsibility over the financial institution; and 3) that the withheld records do not relate to “examination, operating, or condition reports prepared by, on behalf of, or for the use of” the agency.2

Additionally, as courts often look to the harms Exemption 8 was intended to prevent in interpreting its scope, you should argue that releasing the information at issue would not result in such harms.

The first of these harms is “to ensure the security of financial institutions” by preventing the “disclosure of examination, operation, and condition reports containing frank evaluations of the investigated banks [that] might undermine public confidence and cause unwarranted runs on banks.”3 The second is “to safeguard the relationship between the banks and their supervising agencies” by preventing the release of “details of . . . bank examinations . . . to the public and to banking competitors,” which could in turn make banks less cooperative with federal authorities.4

Again, be mindful that while courts have generally held that FOIA exemptions should be “narrowly construed,”5 the scope of Exemption 8 is “particularly broad.”6 Courts have therefore generally applied the exemption to “provide absolute protection regardless of the circumstances underlying the regulatory agency’s receipt or preparation of examination, operating or condition reports.”7

As just one example, a requester unsuccessfully argued that the fact that the FOIA request was made two years after a financial institution was closed “abat[ed] any possible injury to the investment advisor industry.” 8 The court rejected that theory, reasoning that it would require a case-by-case determination of “when an appropriate amount of time has passed,” which the court did not find it had the authority to do under this exemption.9

1 5 U.S.C. § 552(b)(8).

2 See Berliner, Zisser, Walter & Gallegos, P.C. v. Sec. & Exch. Comm’n, 962 F.Supp. 1348, 1350 (D. Colo. 1997).

3 Consumers Union of U.S., Inc. v. Heimann, 589 F.2d 531, 534 (D.C. Cir. 1978).

4 Id.

5 McKinley v. Fed. Deposit Ins. Corp., 744 F.Supp.2d 128, 143 (D.D.C. 2010) (quotingU.S. Dep’t of Justice v. Julian, 486 U.S. 1, 8 (1988) (internal quotation marks omitted)).

6 McKinley, 744 F.Supp.2d at 143 (quoting Consumers Union of U.S., Inc., 589 F.2d at 533) (internal quotation marks omitted).

7 McKinley, 744 F.Supp.2d at 143 (quoting Gregory v. Fed. Deposit Ins. Corp., 631 F.2d 896, 898 (D.C. Cir. 1980) (internal quotation marks omitted)).

8 Berliner, Zisser, Walter & Gallegos, P.C., 962 F.Supp. at 1353.

9 Id.