FDICl

Federal Deposit Insurance Corporation

550 17th Street NW, Washington, D.C. 20429-9990 Legal Division

February 17,2009

By u.s. Mail and E-mail

(vern _ mckinleyêyahoo. com)

Mr. Vern McKinley

20745 Ashburn Station Place
Ashburn, VA 20147

Re: FOIA Appeal No. 08-0002A

Dear Mr. McKinley:

This is in response to your January 28,2009 administrative appeal of the Federal Deposit
Insurance Corporation's (FDIC's) response to your request for records pursuant to the Freedom
ofInformation Act (FOIA), 5 US.C. § 552 (2006), amended by OPEN Government Act of2007,
Pub. L. No. 110-175, 121 Stat. 2524. Your FOIA request, sent bye-mail dated November 18,
2008, and subsequently clarified during a December 18, 2008 telephone discussion with Senior
FOIA Specialist Jerry Sussman, sought copies of the minutes from the FDIC Board of Directors
meeting that addressed the FDIC's decision regarding the purchase ofWachovia Corporation. In
a January 13,2009 response to your request, Supervisory Counsel Fredrick L. Fisch of the
FDIC's FOIAJPrivacy Act Group (FOIA Group) explained to you that the FDIC board meeting
which addressed Wachovia, held on September 29,2008, was closed to the public pursuant to
sections (c)(4), (c)(6), (c)(8), (c)(9)(A)(ii) and (c)(9)(B) of the Government in the Sunshine Act,
5 US.C. § 552b ( Sunshine Act) and that, therefore, the FDIC board minutes were being
the Sunshine Act. Your appeal challenges the
withheld in full pursuant to those sections of

FDIC's denial of disclosure of the FDIC board minutes.

After considering your appeal and following a review by FOIA Group staff of the
information relating to Wachovia that has been made available on the FDIC's external website
and the Federal Reserve Board's website, I have determined that while certain sections of the
September 29, 2008 FDIC board minutes remain exempt from disclosure pursuant to sections
(c)(4), (c)(8) and (c)(9)(A)(ii) of
the Sunshine Act, other portions may be disclosed. Pursuant to
section (k) of the Sunshine Act, 5 US.C. § 552b, Sunshine Act exemptions, rather than FOIA
exemptions, govern in cases involving requests for minutes of meetings subject to the Sunshine
Act. Section (c)(4) of the Sunshine Act permits the withholding of privileged or confidential
financial information, section (c)(8) of the Sunshine Act permits the withholding of information
contained in or related to the examination of a financial institution such as Wachovia and section
(c)(9)(A)(ii) of
the Sunshine Act permits the withholding by a financial institution regulatory
agency such as the FDIC of information that would likely significantly endanger that stability of
any financial institution.
 Based on my decision to release to you portions of the board minutes, I have instructed
FOIA Group staff to forward to you, under separate cover, a copy of the board minutes with
appropriate redactions. Because your FOIA appeal has been denied in part, you may seek
judicial review pursuant to 5 US.C. § 552(4)(B).

MI.
Charles L. Cope
Senior Counsel