Although the controversy over the validity of Richard Cordray’s recess appointment as CFPB Director effectively ended with his confirmation by the Senate this past July, Freedom of Information Act (FOIA) requests for documents relating to the appointment were the subject of a decision issued on September 30 by a federal district court in Washington D.C.
The FOIA requests at issue were made to the CFPB in January 2012 by Judicial Watch following Mr. Cordray’s January 4 recess appointment. Judicial Watch filed the FOIA action on June 7, 2012. The district court found that Judicial Watch had constructively exhausted its administrative remedies and could initiate the lawsuit because the CFPB had failed to take the steps necessary to trigger the need for an administrative appeal. The decision contains an interesting discussion of the three privileges asserted by the CFPB as grounds for withholding certain records: the deliberative process privilege, the attorney client/attorney work product privilege, and the presidential communications privilege.
The court agreed with the CFPB’s invocation of these privileges except with regard to one e-mail from a White House staffer to a CFPB employee. The court indicated that the deliberative process privilege was only available to certain White House employees and the CFPB had not provided the information necessary to determine whether the staffer who had sent the e-mail worked in a capacity covered by the privilege. Accordingly, the court denied the CFPB’s request for summary judgment with respect to the e-mail and directed the CFPB to either disclose the e-mail or indicate in sufficient detail why withholding it was proper.