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08/31/78 Consumers Union of United v. John G. Heimann

August 31, 1978




Before WRIGHT, Chief Judge, and TAMM, Circuit Judge, and HOFFMAN,* United States Senior District Judge for the Eastern District of Virginia.


Appeal from the United States District Court for the District of Columbia (D.C. Civil 76-1529).



Appellant Consumers Union of United States, Inc., challenges an order of the United States District Court for the District of Columbia that granted summary judgment in a Freedom of Information Act suit to appellee Comptroller of the Currency (Comptroller). The district court (Pratt, J.) held that exemption 8 of the FOIA, 5 U.S.C. § 552(b)(8) (1976), protects from disclosure documents relating to the extent of compliance by certain national banks with the Consumer Credit Protection Act, 15 U.S.C. §§ 1601-1691f (1976), specifically those provisions known as the Truth in Lending Act, 15 U.S.C. §§ 1601-1667e (1976). *fn1 We agree with the district court that the documents at issue clearly fall within the express terms of the exemption, and thus we affirm. I

Appellant is a nonprofit corporation chartered in 1936 to provide information, education, and counsel about consumer goods and services. In May 1976, it learned that a comprehensive examination of national banks in the New England region by the Comptroller had revealed a significant degree of noncompliance by those banks with regulations promulgated pursuant to the Truth in Lending Act. *fn2 That same month, appellant wrote to the Comptroller requesting access under the FOIA, to: "(1) documents submitted to the Comptroller's Office by national banks which concern the extent of their compliance with the Truth-in-Lending Act, and (2) any analysis or summary by the Office of the Comptroller of those documents." *fn3 The Comptroller denied the request on June 7, 1976, citing as authority for nondisclosure regulations of the Comptroller that incorporated exemptions 5 and 8 of the FOIA, 5 U.S.C. §§ 552(b)(5) & (8) (1976). *fn4 Appellant's administrative appeal was rejected on the authority of regulations that incorporated exemption 8, and, additionally, exemptions 4, 6, and 7 of the FOIA. *fn5 Id. §§ 552(b)(4) & (6)-(7).

On August 17, 1976, appellant filed suit in the district court, arguing primarily that exemption 8 did not apply to the documents in question. *fn6 The district court disagreed, and, on November 1, 1977, granted the Comptroller's motion for summary judgment. This appeal ensued. *fn7 II

This case presents this court with its first opportunity to discuss exemption 8 of the FOIA, *fn8 which protects from disclosure those matters that are "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." 5 U.S.C. § 552(b)(8) (1976).

The Comptroller contends that the term "examination, operating, or condition reports" describes, and thus protects from disclosure, the documents in issue. Appellant takes the opposite view, arguing: 1) the language of exemption 8 must be interpreted in a manner consistent with the legislative intent at the time of its enactment in 1966; 2) legislative history demonstrates that, at that time, the Congress intended to protect only examination reports that reflected upon the security and solvency of financial institutions; 3) "consumer bank examinations" did not come into being until 1968 at the earliest, when the Truth in Lending Act was passed, and do not reflect upon bank security or solvency; and 4) a narrow construction of exemption 8 does not permit its expansion to cover these new materials. *fn9

We are well aware of the fact that exemptions to the FOIA must be narrowly construed. Washington Research Project, Inc. v. Department of Health, Education and Welfare, 164 U.S.App.D.C. 169, 175, 504 F.2d 238, 244, Cert. denied, 421 U.S. 963, 44 L. Ed. 2d 450, 95 S. Ct. 1951 (1974); Soucie v. David, 145 U.S.App.D.C. 144, 157, 448 F.2d 1067, 1080 (1971). However, we are also mindful that a reviewing court must accord first priority in statutory interpretation to the plain meaning of the provision in question. Caminetti v. United States, 242 U.S. 470, 485, 37 S. Ct. 192, 61 L. Ed. 442 (1917); Accord, United States v. American Trucking Associations, 310 U.S. 534, 543, 60 S. Ct. 1059, 84 L. Ed. 1345 (1940). Thus, if the Congress has intentionally and unambiguously crafted a particularly broad, all-inclusive definition, it is not our function, even in the FOIA context, to subvert that effort. In our view, the wording of exemption 8 leaves no doubt that the documents in issue fit precisely and exactly within the statutory definition.

However, a court can look beyond the plain meaning of a statute in limited instances, most notably when there is an assertion of a significant change in circumstances since enactment, See Perry v. Commerce Loan Co., 383 U.S. 392, 397-400, 86 S. Ct. 852, 15 L. Ed. 2d 827 (1966), or when a literal reading leads to an unreasonable result, See United States v. American Trucking Associations, 310 U.S. at 543, 60 S. Ct. 1059, 84 L. Ed. 1345 . Because appellant vigorously asserts that both situations are present here, we have turned to the legislative history of exemption 8. See United Air Lines, Inc. v. McMann, 434 U.S. 192, 199, 98 S. Ct. 444, 54 L. Ed. 2d 402 (1977). In our view, that history supports the Comptroller's position that exemption 8 is clearly applicable to the documents under review.

It is true, as appellant urges, that the primary reason for adoption of exemption 8 was to ensure the security of financial institutions. *fn10 Specifically, there was concern that disclosure of examination, operation, and condition reports containing frank evaluations of the investigated banks might undermine public confidence and cause unwarranted runs on banks. *fn11 However, there is nothing in the legislative history to indicate that Congress, in seeking to guard against these possibilities, intended exemption 8 to apply only to the varieties of bank examinations then extant, for, in our view, the disclosure of bank examination reports of any type, including those under scrutiny here, could lead to the same adverse results. *fn12 Furthermore, a secondary purpose in enacting exemption 8 appears to have been to safeguard the relationship between the banks and their supervising agencies. If details of the bank examinations were made freely available to the public and to banking competitors, there was concern that banks would cooperate less than fully with federal authorities. *fn13 That secondary purpose would certainly be implicated by appellant's interpretation of exemption 8.

Appellant strongly urges, however, that the subsequent passage of the Truth in Lending Act narrows the broad language of exemption 8 insofar as consumer credit matters are concerned. We cannot agree. Appellant has been unable to bring to our attention any statutory language or legislative history of the Truth in Lending Act relating to disclosure of information by government agencies under the FOIA. Furthermore, congressional action subsequent to passage of the Truth in Lending Act sharply undercuts appellant's argument. In 1974, Congress enacted amendments designed to remedy deficiencies that had been illustrated since the FOIA's passage eight years before. *fn14 Significantly, there was no alteration of exemption 8. Even more damaging to appellant's position, and especially supportive of the view we take, is the fact that the House Committee on Government Operations, which has oversight authority for the FOIA, recently considered the question whether records reflecting banks' compliance with the Truth in Lending Act should be made available to the public. The Committee concluded that the question needed to be "studied further," *fn15 a conclusion that would have been unnecessary and incongruous had these records already been subject to disclosure under the FOIA. *fn16 III

We hold that the documents in issue here are expressly exempted from disclosure by exemption 8. Appellant and amici curiae *fn17 maintain that this result runs counter to the spirit of the FOIA and to the need for full implementation of credit practices fair to consumers. *fn18 Indeed, there have been suggestions that exemption 8 is both overbroad and superfluous. *fn19 However, in our view Congress has left no room for a narrower interpretation of exemption 8, and, as so aptly ...

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