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January 14, 2010
Via E-mail and Fint Class Mail
Michael Bradfield
General Counsel
Federal Deposit Insurance Corporation
Washington DC
MBradfield@fdic.gov
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Re: Confidentiality of Non-Public Information
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Dear Mr. Bradfield:
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As you may know, we have reached agreement with the Board of Governors of
the Federal Reserve System and other agencies regarding nondisclosure of
confidential information. We have used that agreement as a model and crafted a
process to enable us to obtain from your organization the information necessary
for the Commission to complete its statutorily mandated task in a timely manner,
while ensuring the continued confidentiality of that information, as appropriate.
The Federal Deposit Insurance Corporation ("Information Provider") may rely
upon the terms of the commitment below when submitting confidential
information to the Commission.
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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:
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Subpart (d) of Section 5 ofFERA provides:
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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)
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Mr. Michael Bradfield
January 14, 2010
Page 2
And Subpart (c)(5) requires the Commission:
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
States (to the fullest extent permitted by law) with respect to the current financial
and economic crisis.
The Commission 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 Commission in confidence by other
persons) outside of the Commission except as may be reasonably required in
connection with the work of the Commission 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 Commission 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
Commission can be assured that the Commission intends to abide by its policy.
Therefore, we propose the following:
Non-Disclosure Commitment
This letter (the "Commitment'') from the Financial Crisis Inquiry Commission
(the "Commission" and with the Information Provider, the "Parties") sets forth the
commitment of the Commission 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, and in particular includes information
the disclosure of which is restricted by 18 USC § 1905, and information that is
protected as "non-public information" under the Information Provider's
regulations (12 C.F.R. Part 309). 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
Mr. Michael Bradfield
January 14, 2010
Page 3
information to the Commission (hereafter designated "Providing Party" and
"Receiving Party" respectively), the Receiving Party will treat information as
non-public if it is informed by the Providing Party that the information is nonpublic. The Providing Party may cure an inadvertent failure to designate
information as non-public information by informing the Receiving Party 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 Receiving Party.
Accordingly, the Parties hereby mutually agree to the following:
1. All non-public information transferred from the Providing Party to the
Receiving Party remains the property of the Providing Party.
2. Unless otherwise authorized in writing by the Providing Party, or as
contemplated in this letter, non-public information may be shared only with
employees and agents of the Receiving Party 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 Receiving Party 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.
3. Except as contemplated in this letter, non-public information may not be
shared by the Receiving Party with any third party without the prior written
permission of the Providing Party.
4. The Receiving Party 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 nonpublic information as the Providing Party provides to that information.
5. If the Receiving Party receives a request from a third party for non-public
information of the Providing Party, such as a Freedom of Information Act
request or a subpoena, or testimony related thereto, or is served with a
subpoena, order, or other process requiring the production of such information
or testimony, the Receiving Party will:
a. unless prohibited by law, immediately notify the Providing Party
of such request, subpoena, order, or other process and furnish to
the Providing Party copies of any such request or order as well as
any documents related thereto;
b. afford the Providing Party 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;
Mr. Michael Bradfield
January 14, 2010
Page4
c. cooperate fully with the Providing Party 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 Providing Party and, where
applicable, notify the requester that requests for such information
must be made directly to the Providing Party in accordance with
the applicable regulations of the Providing Party (12 C.F.R. Part
309);
e. resist and agree to not initiate production of the non-public
information, and testimony related thereto, pending written consent
of the Providing Party, except as provided in paragraph 6, and:
f. consent to application by the Providing Party 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 Receiving Party 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 Receiving Party:
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 nonpublic information and any privileges associate therewith; and
c. immediately notifies the Providing Party 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 of this Commitment, the Commission, if
it determines it is in the 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
Commission determines to do so by a majority vote or by the decision of the
Chairman and Vice Chairman acting together on behalf of the Commission.
Prior to any release of non-public information under this paragraph, the
Commission will give prior written notice to the Information Provider, and
allow a reasonable period of time for the Information Provider to consult with
Mr. Michael Bradfield
January 14, 201 0
Page 5
the Commission before the Commission 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 of up 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
Receiving Party will immediately contact the Providing Party and seek a
determination as to the status of the information. If the Providing Party
determines that the information is non-public information, the Receiving Party
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 Receiving Party until terminated by the Party that provided the nonpublic information. In the event oftermination of this Commitment, the
Receiving Party agrees that non-public information will remain confidential
and continue to be protected by the terms of this Commitment.
11. Upon the completion of the Commission's final report, all non-public
Information in the possession, custody, or control of any person granted
access to such information by the Receiving Party under this Commitment,
including all copies, extracts and summaries thereof, shall be treated in
accordance with the Receiving Party's document retention policies as required
by NARA procedures.
We trust that this Commitment will enable you immediately to comply with the
information requests staff members from the Commission have already submitted
to your staff, and look forward to your prompt cooperation.
We thank you in advance for your cooperation.
Very truly yours,
Thomas Greene Executive Director,
Financial Crisis Inquiry Commission
Mr. Michael Bradfield
January 14, 2010
Page 6
cc:
Bart Dzivi
Gary Cohen
Accepted:
Federal Deposit Insurance Corporation
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By
Michael Brad 1eld
General Counsel
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