() Office of the Comptroller of the Currency Washington, DC 20219 October 10, 2017 Austin R. Evers. Executive Director American Oversight 1030 15th Street NW. B-255 Washington, DC 20005 Subject: Freedom of Information Act ("FOIA") Appeal No. 2017-00018 Dear Mr. Evers: This responds to your appeal under the FOIA, 5 U.S.C. ? 552, received on September 11,2017. In your appeal, you sought access to documents that were withheld in response to your FOJA request received on May 9, 2017. That request sought all communications since January 20, 2017, "between 0CC and Congressman Jeb Hensarling, any other member of the House Financial Services Committee, or any staff member working for" the committee or one of its members. Your request also sought any guidelines addressing how the Office of the Comptroller of the Currency (0CC) responds to FOIA requests that involve Congressional records or communications. On September 7,2017, the 0CC Disclosure Office granted in part and denied in pan your request and provided you 776 pages of responsive materials with some redactions which were made pursuant to FOIA exemptions (b)(5), (b)(6), and (b)(7). Additionally, 27 pages were identified as congressional records and therefore not subject to the FOJA's disclosure requirements. Your appeal challenges the determination that any records responsive to your request could properly be considered not to be agency records. We have determined that 31 pages were withheld, not 27 pages. The withheld material consists of four categories. First, the 0CC received a two-page March 31, 2017 letter from Chairman Hensarling. During document gathering, six copies of this same letter were provided to the 0CC Disclosure Office accounting for 12 of the 31 pages withheld. Second, there is a one-page letter dated May 3, 2017 from the Comptrolier of the Currency which responds to Chairman Hensarling. Five copies of this letter were provided to the Disclosure Office. Third, there were seven draft versions of the Comptroller's response letter. Finally, there were seven pages of emails between congressional staff members and the 0CC. Having reviewed this matter upon your appeal, we have determined that the March 31, 2017 letter from Chairman Hensarling and the May 3,2017 response from the Comptroller should be provided to you. Copies are enclosed. Additionally, two of the seven pages of emails between congressional staff members and the 0CC are also enclosed. However, the remaining five pages of emails between Congress and the 0CC should be withheld since Congress manifested an intent to retain control of these emails. Also, the seven pages of draft letters should be withheld pursuant to FOJA exemption (b)(5). "Whether a conEressionally generated document has become an agency record, rather, depends on whether under all the facts of the case the document has passed from the control of Congress and become property subject to the free disposition of the agency with which the document resides." Golandv. CIA, 607 F.2d 339, 347 (D.C. Cir. 1978). The five pages of emails between a staff member of the House Financial Services Committee and the 0CC manifested a congressional intent to retain control by including a protective legend explicitly stating as much. With regard to the draft versions of the Comptroller's letter, exemption (b)(5) protects "inter agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." Exemption 5 applies to "internal communications consisting of advice, recommendations, opinions, and other material reflecting deliberative or policy making processes See Soucie v David, 448 F.2d 1067, 1077 (D.C. Cir. 1971). Factual material may also be protected if it is inextricably intertwined with the deliberative material and cannot be segregated. Id. at 1077-1078. Mead Data Central, Inc. v. US. Dep 't ofthe Air Force, 566 F.2d 242, 252 (D.C. Cir. 1977). In this case, the draft letter (which consists of seven pages) is covered by the deliberative process privilege and the attorney-client privilege. ...." The 2007 FOIA amendments created the Office of Government Information Services (OGIS) to offer mediation services to resolve disputes between FOIA requesters and Federal agencies as a non-exclusive alternative to litigation. Using OGIS services does not affect your right to pursue litigation. You may contact OGIS in any of the following ways: Office of Government Information Services National Archives and Records Administration 8601 Adelphi Road OGIS College Park, MD 20740-600 1 E-mail: ogisnara.gov Toll-free: 1-877-684-6448 - This response constitutes final agency action on your request and appeal. You may seek judicial review of this action in the district court of the United States in the district in which you reside, the district in which your maintain your principal place of business, the district in which you believe withheld records may be situated, or in the District of Columbia. See 5 U.S.C. ? 552(a)(4)(B). Sincerely, Charles Steele Deputy Chief Counsel 2 JEB linitnd ?tatt? hum of CA MEMBER on j?inantisl ?rming 212g Raulmrn tinust Building Washington, "4330: 2051i March 31, 2017 The Honorable Thomas J. Curry Comptroller Office of Comptroller of the Currency 400 7th Street SW Washington, DC. 20219 Dear Comptroller Curry: Re: Committee Intent to Control Congressional Records I write on behalf of the Committee on Financial Services of the US. House of Representatives (?Committee?) to inform you and the Office of Comptroller of the Currency (?Agency?) of the Committee?s practices and procedures during the 115th Congress. As you may be aware, the Committee has legislative and oversight jurisdiction over the Agency, pursuant to US. House of Representatives Rule Accordingly, the Committee?s Members and staff may communicate with you and your Agency in connection with various legislative, oversight, and investigative matters. Because of the often sensitive and confidential nature of such communications, and in order to ensure the unfettered ?ow of information necessary to assist the Committee in performing its important legislative and oversight functions, the Committee intends to retain control of all such communications, and will be entrusting them to your agency only for use in handling those matters. Likewise, any documents created or compiled by your agency in connection with any responses to such Committee communications, including but not limited to any replies to the Committee, are also records of the Committee and remain subject to the Committee?s control. All such documents and communications constitute congressional records, not ?agency records,? for purposes of the Freedom of Information Act, and remain subject to congressional control even when in the physical possession of the Agency. As such, they should be segregated from agency records, and access to them should be limited to Agency personnel who need such access for purposes of providing information or assistance to the Committee. Additionally, such congressional records are subject to the absolute protections of the Speech or Debate Clause of the Constitution, US. Const. art. I, 6, cl. 1. The Hon. Thomas J. Curry March 81, 2017 Page 2 Accordingly, the Committee expects that the Agency will decline to produce any such congressional records in response to a request under the Freedom of Information Act or any other provision of law or agreement, on the grounds that such documents are not the Agency?s documents to produce, and (ii) are constitutionally privileged, in addition to any other grounds the Agency may assert. It is the Committee?s policy to include a legend on its legislative, oversight, and investigative correspondence to the Agency re?ecting its intent to retain control of all such communications and responsive documents. The legend is included as a matter of best practice, but accidental failure to include the legend on a particular legislative, oversight, or investigative communication is immaterial, because the Committee intends to retain control over all such communications and any documents created or compiled in response thereto. To ensure that the Agency and the Committee efficiently communicate in the future regarding the maintenance, confidentiality, and disposition of the Committee?s congressional records, by no later than April 28, 2017, please respond to the Committee in writing to confirm that your Agency will decline to produce any congressional records in response to a request under the Freedom of Information Act or any other provision of law or agreement, that your Agency will discuss said request with the Committee, that your Agency has policies and procedures in place to address this issue, and that these policies and procedures have been shared with appropriate Agency personnel. If you have any questions regarding this request, please have your staff contact Brett Sisto of the Committee staff at (202) 225-7502. We look forward to working with them in the future. Sin erel HENSARLING Chairman cc: The Honorable Maxine Waters, Ranking Member C) Office of the Comptroller of the Currency Washington, DC 20219 May 3, 2017' The Honorable eb Hensarling Chairman Committee on Financial Services United States House of Representatives Washington, DC. 205 5 Dear Chairman l-lensarling: Thank you for your March 31, 2017, letter providing information regarding the Committee?s practices and procedures during the l5'l? Congress, and the Committee?s expression of intent to retain control over communications between the Committee and the Office of the Comptroller of the Currency (OCC) in connection with various legislative, oversight, and investigative matters. The OCC takes its disclosure responsibilities under the Freedom of Information Act very seriously, and likewise respects Congress' authority to maintain control over Congressional records. We recognize that communications between the Committee and the OCC can be sensitive and confidential in nature. Consistent with the precedent established in Civil Liberties Unioii v. (ILA, 323 F.3d 655 (DC. Cir. 2016) and related precedents, the OCC will decline to produce Congressional records in response to a FOIA request. We will take the same approach with respect to other requests or agreements unless otherwise required by law. When the OCC determines that withholding records in response to a request is contrary to law, the OCC will discuss any such request with the Cormnitlee il" consistent with applicable law. The appropriate OCC staff have been instructed accordingly, and the OCC will work expeditiously toward formalizing its policies and procedures in this regard. If you have any questions, please do not hesitate to contact Carrie Moore, Director, Congressional Relations, at 202-649-6373? Sincerely. Thomas J. Comptr er of the Currency . i The Honorable MaxineWaters, Ranking Member TREAS-OCC-17-0137-A-000003 Moore. Carrie From: Sent To; Subject Attachments: Moore, Carrie Thursday, May 04, 2017 11:53 AM Sisto, Brett (Brett.Sisto@mail.house.gov) Chairman Hensarling response Chairman Hensarling (5-3-17).pdf Hi Brett, Please find attached Comptroller Curry’s response to the Chairman’s March 31, 2017 letter. If you have any questions, please let me know. Best, Carrie Canie Moore Director for Congressional Relations Office of the Comptroller of the Currency 400 7th Street, SW Washington, DC 20219 (202) 649-6737 (0) (202) 489-7638 (c) (571) 465-3353 (fax) carrie.moore@occ.tmas.gov I TREAS-OCC-17-0137-A-000004 Moon, Cant. From: Sent To: Subject Attachments: Moore, Carrie Thursday, May 04, 2017 12:50 PM Sears, Glen Chairman Hensading response Chairman Hensarling (5-3-17).pdf HI Glen, I hope you are well. Please find attached a response from Comptroller Curry to Chairman Hensarling’s letter of March 31, 2017. The Ranking Member is cc’d, I wasn’t sure if you handled this issue, but if not, I trust you will forward to the appropriate staff member there. Best, Carrie Carrie Moore Director for Congressional Relations Office of the Comptroller of the Currency 400 7Th Street, SW Washington. DC 20219 (202) 649-6737 (0) (202) 489-7538 (a) (571) 465-3353 (fax) carrie.mooreocc.treas.gov 1 TREAS-OCC-17-0137-A-000005