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February 25,2010
Via Email & Mail
Phil Angelides
Chairman
Hon. Bill Thomas
Vice Chairman
Brooksley Born
Commissioner
Byron S. Georgiou
Commissioner
Senator Bob Graham
Commissioner
Helen Kanovsky
General Counsel
United States Department of Housing and Urban Development
451 ?'h Street SW
Washington, D.C. 20410
Re: Confidentiality of Non-Public Information
Dear Ms. Kanovsky:
In connection with the Commission's request for certain materials from the
United States Department of Housing and Urban Development (the "Information
Provider") and the need to maintain the confidentiality thereof. we have crafted a
process to enable us to obtain information necessary for the FCIC to complete its
statutorily mandated task in a timely manner, while ensuring the continued
confidentiality of that information, as it may be appropriate. Our confidentiality
commitment to you is outlined below. You may rely upon the terms of this
commitment when submitting confidential information to the FCIC.
Keith Hennessey
Commissioner
Section 5 of the Fraud Enforcement and Recovery Act of2009 (''FERA'') created
the Financial Crisis Inquiry Commission to examine the causes. domestic and
global, of the current financial and economic crisis in the United States. It
expressly contemplates information sharing:
Douglas Holtz-Eakin
Subpart (d) of Section 5 of FERA provides:
Commissioner
Heather H. Murren, CFA
Commissioner
John W. Thompson
Commissioner
Peter J. Wallison
Commissioner
In General- The Commission may secure directly from any department, agency,
bureau. board, commission, office, independent establishment, or instrumentality
of the United States any information related to any inquiry of the Commission
conducted under this section, including information of a confidential nature
(which the Commission shall maintain in a secure manner). Each such
department, agency. bureau, board, commission, office, independent
establishment, or instrumentality shall furnish such information directly to the
Commission upon request. (emphasis added)
And Subpart (c)(5) requires the FCIC:
to build upon the work of other entities, and avoid unnecessary duplication, by
reviewing the record of the Committee on Banking, Housing, and Urban Affairs
of the Senate, the Committee on Financial Services of the House of
Representatives, other congressional committees, the Government Accountability
Office, other legislative panels, and any other department, agency, bureau, board,
commission, office, independent establishment, or instrumentality of the United
- ---------- - -----·
Thomas Greene
Executive Director
1717 Pennsylvania AvEtlue, NW, Suite 800 • Washington, DC 20006-4614
202.292.2799 • 202.632.1 604 Fax
States (to the fullest extent permitted by law) with respect to the current financial and economic
crisis.
The FCIC has adopted a strict Confidentiality and Nondisclosure Policy which includes the
agreement by its staff not to disclose confidential information (which includes information
submitted to the FCIC in confidence by other persons) outside of the FCIC except as may be
reasonably required in connection with the work of the FCIC, and then only to persons who are
informed of, and agree to respect, the confidential nature of the material provided. In
implementing this Commitment the staff will adhere to this Policy.
It is the policy of the FCIC to respect the confidentiality of information submitted to it in
confidence by any other department, agency, bureau, board, commission, office, independent
establishment, or instrumentality of the United States to the extent consistent with its statutory
mandate and its duty to the American public, and each such entity which provides information to
the FCIC can be assured that the FCIC intends to abide by its policy.
Therefore, we propose the following:
Non-Disclosure Commitment
This letter (the "Commitment") to the Information Provider from the FCIC (and with the
Information Provider, the "Parties") sets forth the commitment of the FCIC with respect to its
treatment of non-public information obtained from the Information Provider. For purposes of
this Commitment "non-public information" means information that the Information Provider has
not made, and is not required by law to make, public and which the Information Provider treats
as non-public. Non-public information includes both the information itself, in any form
(including oral), and any document, written transcript, audiotape, videotape, or other type of
transcription, replication, reproduction, or recreation which contains or is derived from such
information. It is the intent of the Parties that when the Information Provider provides
information to the FCIC the FCIC will treat information as non-public if it is informed by the
Information Provider that the information is non-public. The Information Provider may cure an
inadvertent failure to designate information as non-public information by informing the FCIC of
the error within a reasonable time after the error is confirmed.
This Commitment does not apply to non-public information which becomes publicly
available in a manner other than by a breach of this Commitment by the FCIC.
Accordingly, the Parties hereby mutually agree to the following:
1.
All non-public information transferred from the Information Provider to the FCIC
remains the property of the Information Provider.
2.
Unless otherwise authorized in writing by the Information Provider, or as contemplated
in this letter, non-public information may be shared only with employees and agents of the FCIC
who have a need to know the information in the_performance of their official work duties
consistent with applicable law. All employees and agents of the FCIC with whom non-public
information is shared must be advised of and, as condition of receiving non-public information,
be bound by the terms of this Commitment and instructed to comply with all of its terms.
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3.
Except as contemplated in this letter, non-public information may not be shared by the
FCIC with any third party without the prior written permission of the Information Provider.
4.
The FCIC will take all steps reasonably necessary to preserve, protect and maintain all
privileges and claims of confidentiality related to the non-public information and will accord at
least as much protection to the non-public information as the Information Provider provides to
that information.
If the FCIC receives a request from a third party for non-public information of the
5.
Information Provider, such as a Freedom of Information Act request or a subpoena, the FCIC
will:
a) unless prohibited by law, immediately notifY the Information Provider of such
request, subpoena, order, or other process and furnish to the Information Provider
copies of any such request or order as well as any documents related thereto;
b) afford the Information Provider the opportunity to take whatever action it deems
appropriate to preserve, protect, or maintain the confidentiality of the non-public
information or any privileges associated therewith;
c) cooperate fully with the Information Provider to preserve, protect, and maintain the
confidentiality of the non-public information and any privileges associated therewith;
d) notifY the requestor seeking the non-public information that the information was
obtained from the Information Provider and, where applicable, notifY the requester
that requests for such information must be made directly to the Information Provider
in accordance with applicable federal or state law;
e) resist and agree to not initiate production of the non-public information, and
testimony related thereto, pending written consent of the Information Provider, except
as provided in paragraph 6, and:
f) consent to application by the Information Provider to intervene in any action in order
to preserve, protect, or maintain the confidentiality of the non-public information or
any privileges associated therewith.
6.
Nothing in this Commitment will prevent the FCIC from complying with a request or
demand from a duly authorized Committee of the United States Congress with authority to
require and receive the non-public information, or a legally valid and enforceable subpoena or
order by a court of competent jurisdiction for the non-public information or testimony related
thereto if, in the case of a subpoena or court order, the FCIC:
a) reasonably determines that efforts to quash, appeal, or resist compliance with the
order would be unsuccessful or against its interest;
b) attempts, to the extent practicable, to secure a protective order to preserve, protect,
and maintain the confidentiality of the non-public information and any privileges
associate therewith; and
c) immediately notifies the Information Provider of its intent to comply with the order
and of any actions taken in compliance with the order.
7.
In accordance with its statutory mandate and its duty to the American public,
notwithstanding any other provision ofthis Commitment, the FCIC, if it determines it is in the
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public interest, may release to the public non-public information obtained from the Information
Provider in any interim or final report to the President and Congress, or in any public hearings, if
the FCIC determines to do so by a majority vote or by the decision of the Chairman and Vice
Chairman acting together on behalf of the FCIC. Prior to any release of non-public information
under this paragraph, the FCIC, or the Chairman and/or Vice Chairman, as applicable, will give
prior written notice to the Information Provider, and allow a reasonable period of time for the
Information Provider to consult with the FCIC before the FCIC uses any of the Information
Provider's non-public information in any interim or final report to the President and Congress, or
in any public hearings (with a target ofup to 14 days prior notice whenever feasible, but with the
reasonableness of the consultation period being determined based upon the amount and
sensitivity of the non-public information under consideration).
8.
Should a question arise as to whether information is public or non-public, the FCIC will
immediately contact the Information Provider and seek a determination as to the status of the
information. If the Information Provider determines that the information is non-public
information, the FCIC will treat it in accordance with this Commitment.
9.
The Parties intend that sharing of non-public information with each other pursuant to the
terms of this Commitment will not constitute public disclosure, nor will it constitute a waiver of
confidentiality or any privilege applicable to such information. The Parties expressly reserve all
evidentiary privileges and immunities applicable to the information shared under this
Commitment.
10.
This Commitment and all of its terms and conditions is continuing and applies to the
FCIC until terminated by the Party that provided the non-public information. In the event of
termination of this Commitment, the FCIC agrees that non-public information will remain
confidential and continue to be protected by the terms of this Commitment.
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We trust that this Commitment will enable you immediately to comply with the information
requests staff members from the FCIC have and will submit to your staff, and we look forward to
your prompt cooperation. We thank you in advance for your assistance.
Very truly yours,
By~~-
Thomas Greene Executive Director,
Financial Crisis Inquiry Commission
cc:
Gary Cohen
Chris Seefer
Accepted:
United States Department of Housing and Urban Development
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@FedFRASER