I. "Financial Institutions"

You may first elect to dispute whether “financial institutions” are at issue. As the FOIA does not specifically define the term, courts have adopted various definitions. For example, the U.S. District Court in the District of Colorado looked to the legislative history of the Government in the Sunshine Act (the federal open meetings act), which defines the term as “intended to include banks, savings and loan associations, credit unions, brokers and dealers in securities or commodities, such as the New York Stock Exchange, investment companies, investment advisors, self-regulatory organizations . . . and institutional managers.”¹⁰ Relying on that definition, the court held that the investment advisors at issue were financial institutions for Exemption 8 purposes.¹¹

However, the U.S. Court of Appeals for the District of Columbia Circuit — relying on a dictionary definition — defined “financial institution” more broadly as “[any organization authorized to do business under state or federal laws relating to financial institutions, including, without limitation, banks and trust companies, savings banks, building and loan associations, savings and loan companies or associations, and credit unions.”¹²

Therefore, in arguing that there is no “financial institution” at issue that would be recognized under Exemption 8, you should — where possible — emphasize that the harms intended to be prevented by the exemption would not be implicated in the release of the information from that particular institution.