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January 29, 2010
The Honorable Ronald Weich
Assistant Attorney General
Office of Legislative Affairs
U.S. Department ofJusticc
950 Pennsylvania Avenue, NW
Washington. DC 20530
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Rc: Confidentiality of Non-Public I nformation
Dear Mr. Weich:
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In connection \\ith the f'i nancial Crisis Inquiry Commission's ("FCIC'') request
for l:<.main materials from th~ Dcpat1mcnt of Justice (the "lnfonnation Provider'')
a:1J the need to maint:1in the confidentiality thereof,\\~ hav~ crnrtcd a process to
enable us to obtain information n~cessary for the FCIC to complete its statutorily
mandated ta-;k in a timely manner. while ensuring the continued confidentiality of
that int0rm:.ti0n. as it may be appropriate. We undcr~tand that there ""ill be
int(wnation that the Dcpa:t11ent does not produce pursuant to this letter because
its contidt:ntiality interests. such as those rx;rtaining to pending maners and
int~·:·ral deliberations. cannot be addressed b) this agreement. Our confidcnt:ality
commitment as to the information the Department produces is outlined belov.·.
You may rdy upon the tcrn:s of this C<>mmitment when submitting confidential
int'ormation to the FCIC.
St:dion S of the Fraud Enforcement and Recovery Act of 2009 ('·fJ"RA'") created
the I· inuncial Crisis Inquiry Commission to (''-::Unine the causes. domestic ~u;d
global. of the cunent financial and econo::.ic crisis ir: the United States. It
cx~··..:ss l ) contemplates int()rmation sharing:
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Subpart (d) of Section 5 of I I J~A provides:
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In C~em:rul- The Con:mission may secure directly from any <kpar:mcnt. agency,
bureau, board. commission. ofJice. indepcndcn: establishment or instrumcmality
of the l 'nitcd States any inforp·ation related to any inquiry of the Commission
comlucted under this section, including information of a confidential nature
(whi~h ue Conunission shall maintain in a secure manner). Each such
depanmcm. agency, bureau, board, commission. onice, indep~ndent
co:·ablishment. or instrumcnt:.tlit~ shall furnish st:ch information directly to the
Commission upon request. (emphasis added)
And Subpart (c)(S) requires the FCIC:
to build upon the work of mher entities. and avoid urmecessary duplication, by
rcviC\\ing the record of the Committee on Banking, I lousing, and Urban Affairs
of the Senate, the Committee on Financial Services of the !louse of
R~prt:sentativcs, other congressional committees, tb~ Government Accountability
Otlice. other legislative panels, and any other department, agency, bureau, board,
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Yir. Weich
January 29, 20 l 0
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commisgion, office, independent establishment, or instrumentality of the United
States (to the fuliest extent pem1itted by law) with respect to the current financial
and economic crisis.
The FCI C has adopted a strict Contidentia1ity and :--Jondisclosure Policy which
includes the agreement by its staff not to disclose confidential infonnation (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 arc 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 infonnation submitted
to it in confidence by any other department, agency, bureau, board, commission,
office, independent establishment, or instrumentality of the United States to the
exter.t consistent with its statutory mandate and its duty to the American public,
and each such entity which provides information lo the FCIC can be assured that
the FCIC intends to abide by its policy.
Tht!reforc, we propose the following:
Non-Disclosure Commitment
This kttcr (the ..Commitment") to the lnfonnation Provider from the FCIC (and
with the Information Pro' ider, the "Parties.. ) sets forth the commitment of the
FCIC '"' ith 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 Jnformation 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 it'ielf, in any
form (im:luding oral). and any document, \Witten transcript, audiotape, videotape,
or other type of transcription, replication, reproduction, or recreation which
contains or is derived from such information. Jt 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 etTor within a reasonable time after the error is confirmed.
This Commitment does not apply to non-public information which becomes
publici) available in a manner other than by a breach of this Commitment by the
FCIC.
.·lccord111g~v.
the Panies hereby mutually agree to the following:
Mr. Weich
January 29, 2010
Page 3
1. All non-public information transferred from the Information Provider to
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the FCIC remains the property of the information Provider.
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 infonnation is shared must be advised of and, as condition of
receiving non-public information, be bound by the terms ofthis
Commitment and instructed to comply with all of its terms.
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.
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 accord at least as much protection to the nonpublic 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 Information Provider, such as a Freedom of
fnfom1ation 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 lnfonnation 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 \VTitten 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.
Mr. Weich
January 29, 201 0
Page4
6. ?\"othing 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
co mpetent 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 nonpublic information and any privileges associate there\-\rith; and
c. immediate!y 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 ils statutory mandate and its duty to the American
public. notwithstanding any other provision of this Commitment, the
FCIC, 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
ht:arings, if the FCIC determines to do so by a majority vote, or by the
decision of the Chairman and Vice Chairman acting together on bchaJf of
the FCfC. 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
v.ith the FCIC before the FCJC 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 FCIC will immediately contact the [nfonnation 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
I·CIC 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
Mr. Weich
January 29,2010
Page 5
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 nonpublic information. 1n the event of termination of this Commitment, the
FCIC agrees that non-public infonnation 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.
We thank you in advance for your cooperation.
Very truly yours,
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Thomas Greene
Executive Director
Financial Crisis Inquiry Commission
cc:
Gary J. Cohen
Christopher Seefer
Accepted:
Department of Justice
By
Ronald Weich
Assistant Attorney General
@FedFRASER