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February 5, 20!0
Via Email and First Class Mail
George W. Madison
General Counsel
U.S. Department of the Treasury
1500 Pennsylvania Avenue NW, Suite 3000
Washington, D.C. 20220
Re: Confidentiality of Non-Public Information
Dear Mr. Madison:
In connection with the Financial Crisis Inquiry Conunission's ("FCIC") request
for certain materials from the Department of the Treasury (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 manaer, while ensuring the continued
confidentiality of that information, as it may be appropriate. We understand that
there will be information that the Department does not produce pursuant to this
letter because its confidentiality interests, such as those pertaining to pending
matters and internal deliberations, cannot be addressed by this agreement. Onr
confidentiality conunitment as to the information the Department produces is
outlined below. You may rely upon the terms of this comntitment when
submitting confidential information to the FCIC.
Section 5 of the Fraud Enforcement and Recovery Act of2009 ("FERA'') created
the Financial Crisis Inquiry Conunission to examine the causes, domestic and
global, of the current financial and economic crisis in the United States. It
expressly contemplates information sharing:
Subpart (d) of Section 5 of FER.P; provides:
(A)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 info.nnation
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)
Pe:ms·dvan:Li> Avenue,
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Mr. Madison
February 5, 2010
Page2
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
States (to the fullest extent permitted by law) 'I'Vith respect to the current financial
and economic crisis.
The FCIC has adopted a strict Confidentiality and Nondisclosure Policy which
includes the agreement by ita 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,
offi.ce, 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-Diselosure 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 infurmation 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.
Mr. Madison
February 5, 2010
Page3
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 !mow 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 1'1-ith all of its terms.
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 nonpublic information and will aceord at least as much protection to the nonpublic information as the Information Provider provides to that
information.
5. If the FCIC receives a request from a third party for non-public
information of the 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 aoy 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;
Mr. Madison
February 5, 2010
Page4
d) notifY the requestor seeking the non-public information that the
information was obtained from the Information Provider and,
where applieable, 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 reeeive the non-public information,
or a legally valid and enforceable subpoena or order by a coutt of
competent jurisdiction for the non-public information or testimony related
thereto provided:
a) in the case of a subpoena or coutt order, the FCIC:
i.
reasonably determines that efforts to quash, appeal, or resist
compliance with the order would be unsuccessful or against
its interest;
ii.
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
iii.
immediately notifies the Information Provider of its intent
to comply with the order and of any actions taken in
compliance with the order; or
b) if the request or demand is from any duly authorized Committee of
the United States Congress, the FCIC, unless the Committee in
writing instructs the FCIC to the contrary, immediately notifies the
Information Provider of such request, furnishes to the Information
Provider copies of any such request, and advises such Committee
of the confidential nature of the non-public information and
requests that the non-public information be treated as provided by
the terms of this agreement.
Mr. Madison
February 5, 2010
Page 5
7. In accordance with its statutory mandate and its duty to the American
public, notwithstanding any other provision of this CoiJl!Jlitment, the
FCIC, if it determines it is in the pubiic 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 mlijority vote, or by the
decision of the Chairman and Vice Chairman aeting 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 oftime for the Information Provider to consult
with the FCIC be!ore 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 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 nonpublic information under consideration).
8. Should a question arise as to whether information is public or non-public,
the FClC 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
FCJC 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.
We trust that this Commitment will enable you to comply with the information
requests staff members from the FCIC have already submitted to your staff,
subject to the caveat in the first paragraph of this letter, and look forward to your
prompt cooperation.
Mr. Madison
February 5, 2010
Page6
We thank you in advance for your cooperation.
Very truly yours,
Thomas Greene
Executive Director
Financial Crisis Inquiry Commission
cc:
Gary J. Cohen
Christopher Seefer
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Accepted:
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