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CONFIDENTIAL - NOT FOR PUBLIC DISTRIBUTION
Agenda for Financial Crisis Inquiry Commission Report Meeting
Monday, January 24, 2011
4:00pm -5:30pm ET
Location: FCIC Office, Large Conference Room
1717 Pennsylvania Avenue, Suite 800
Washington DC 20006
or
For Those Participating Telephonically:
Conference Dial-In Number: 866-692-3582
Participant Access Code: 3387529
LEADER CODE: 4459479
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Agenda Item
1) Call to Order

Presentation
Chairman Angelides

4:03pm
2) Roll Call

Chairman Angelides

Phil Angelides
XBill Thomas
ABSENT (joined during Agenda Item 6)
Brooksley Born
Byron Georgiou
Robert Graham
XKeith Hennessey ABSENT (joined during agenda item 4)
Doug Holtz-Eakin
Heather Murren
John W. Thompson
Peter Wallison
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Others: Wendy, Gary, Cassidy, Gretchen, Scott, Courtney, Rob. Tucker joined for agenda item 7

3) Approval of Minutes of Meeting
of January 6, 2011 (Attached)

Chairman Angelides

Any comment or question – Motion to approve – Graham moves, Wallison seconds
8-0 Motion Passes
4) Chairman’s and Vice Chairman’s Report

Chairman Angelides and
Vice-Chairman Thomas

Report will be released with accompanying dissents on January 27th.
Planned an event and to present Report and conclusions – media advisory – 6
commissioners that approved the report. Make clear that dissenters (1 or 2 groups) wish
assistance in presenting those dissents or assistance for media contacts – all media
contacts requesting views of dissenters will be routed appropriately. Plan for Thursday
is to release the Report – the GPO version will be delievered in the morning to the WH
and the Congress – first copies going to Congresional leadership (before public release)
and two committees with jurisdiction in our statute. Also, oversight committees (House
and Senate) to receive copies. Also, delivered to key government officials such as
Bernanke. Staff has a list available – thinks they covered all bases in terms of the report.
Staff in discussions and PA discussed with BT. Any comments/questions? Peter: I have
no comment. PA: if there is any request for assistance or to facilitate statements or
availability – any resource issues will be sorted out by Wendy. PW appreciates that
offer. Press list and Tucker’s assistance available. DHE: good, thank you
PA: VC sent letter to all Commissioners. The Commission did retain to help on press
and communications related to the release of the report called SKDK Knicker Backer –
one what basis did you come to basis – work load. How selected? Was recommended to
Phil – phil passed on to staff and Wendy was satisfied with it. Set of clients: HUD,
Census, ATT, United Technologies, GE Electric, - was retained by Charlie Christ’s
gubernatorial campaign – onvolved in electing dems – the firm has told PA that the
represented Bloomberg when a republican and also conservative party in UK. Early in
her life she worked for Clinton white house and then ABC News and George
Stefanololous. Koppell, Tom Galisano.
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Cost is $15,000K. Did some price compariston – Edelman representing 9/11 and Iraq
Study = much higher.
Services delivered are under direction of our staff – assistance to our staff and operation.
Media strategy going forward – all requests to speak with dissenters handled quick and
professionally.
Wendy – status of budget – what expenses we expect to incur and surplus and unspent
dollars. In terms of budgeted expenses – the biggest ones are settling all accounts with
vendors (EPIQ) – stores and organizes all files – quite pricey and get data down – close
out telephones, etc. Other types of expenses budgeted for – all roll out, travel, this firm,
all budgeted expenses. Calling all vendors one by one – to discuss final bill. Remaining
unspent unallocated funds is $125,000 – of that there are two things – after conferring
with Chair and Vice Chair – one is moving expenditures - other are bonuses for staff –
those working obscene hours. Junior staff working for low pay. Do in consultation with
Chair and Vice Chair. Unspent funds – held by GSA for three years. After we expire –
Gretchen Newsom contact for bills received after Commission closes. PA: outlined in
statute that Commissioners (C and VC) may have to travel to testify. Hold some money
for Commissioners travel.
PA: any questions or concerns on what was laid out?
PA: add one other item – appropriate arrangements to brief congressional leadership
and staff on the report. Offer our willingness in form they choose to have – PA will
return to Commission on this.
Any other comments or questions. Peter: no.
Evening of the 27th – thank you party for staff – that Commissioners offered to host.
Gretchen will get information to Commissioners
5) Executive Director’s Report

Executive Director Wendy Edelberg

Staff get together –but now no Report – WE gave details
6) Vote to Approve the Clearance of Documents
(Attached)

General Counsel Gary Cohen and
Deputy General Counsel Cassidy Waskowicz

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Gary – presented memo. Sent notices to everyone . Staff has spent much time omitting
confidential personal information. Scott had concerns. GC and CW available to answer
questions. PA: on Thursday – post docs already cleared and approved from 1/6 report
but not full audios and transcripts because audio still underway? GC: yes.
GC: scott asked about how we deal with objections. Immediate positing and archive
process. Most heartburn by bank rating agencies. GC: we have already posted a
number of these reports – but now these reports will be more inclusive . Scott: flesh out
two concerns 1) interviews with individuals who thought those interviews were
confidential – vast majority of early interviews were given the impression of
confidentiality – or background purposes only – these people should have opportunity to
object. GC: not question of what they were told, but a question or what they thought.
Hard to define uniformity on this. PA: lower level vs higher level – not good mark – but
if confi was promised – lean to be conservative. WE: we were explicit . Scott: concerned
we don’t want to treat savvy people better then non savvy people who didn’t ask right
questions. Concerned that lower level people didn’t have personal counsel present vs.
corporate counsel that was not watching out for them personally.
Scott: bank examination reports – also concerned – received objection but overruled.
Gary – less sympathy. Very nature of bank oversight – thinks it would be a disservice to
not published. Scott: is there another bucket that is that large wherein we overruled –
Cassidy – that’s the big one. Scott: can you provide a list for the Commission wherein
the staff have decided to overrule the objection. Review before made public. . Gary –
Sarah has a list that exists – hundreds and hundreds of documents.
Any other comments and questions?
Peter: very worried about releasing some of this that some are objecting to. Not up to us
to decide what is ok to release – mean world out there – balanced with public requests.
Quite concernd about it. Is there any indication that we might be liable if person can
prove it should not have been released? Gary - no. Congressioanl inquiries such as we
are and have similar powers –very broad. Gary is sure we have immunity Congress has.
GC looked at it with Irv Nathan and mort Rosenberg. Already addressed issues with
them – no liability.
Phil – valid point that staff needs to weigh public interest with disclosure.
Phil: this is what would be released after the 27th but before the close of the Commission.
Delegate to the staf to review objections – prudence is order . Staff should be fair and
not burn anyone here.

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BB: what about the preliminary investigative reports. Gary: PIRs are not going to be
released. Part of archives process because they have not been fact checked and
scrubbed. PSRs already up.
Keith: limiting this to only people (not agencies) that are objecting. What is the
maximum number of people that could get burned. Gary – more than 5 and less than
500. Cassidy – maybe 50. Fewer that individuals without corporate representation.
PA: caution needs to be taken and fairness is paramount and weigh value of information
vs. harm caused by disclosure. Thinks resolution does lay this out.
Bill: talk about of see if we created a small appellate group of members so that we don’t
leave it totally to the staff. Fall back group to review those that staff might have hard
time calling. DHE likes that idea. HM how would that work practically? BT: back in
Washington on the 6th and through rest of the period. BB: not enthusiastic about taking
over process. JWT: have staff consult with Chair and Vice Chair as advisors.
PA: ok – tends to agree with Gary on banking agency reports. BT: maybe they won’t
call on us. Review is not mandatory, only optional.
Add provision: in instances wherein staff need and seek guidance, they shall consult with
Chair and Vice Chairman to make their determination.
Motion: moved by JWT and second by DHE. Any further discussion or questions
10-0.
7) Vote to Approve New FCIC Website
(Attached –2 separate PDF files)

Gary Cohen, Cassidy Waskowicz and
Communications Director Tucker Warren

BT: let me explain what happended. It has sense changed. When we finally got
materials on website on Friday – there were several different ways to access both the
GPO and PA versions. The page that I saw was confusing – a TOC and right hand
corner were logos where you could buy the book. Express on paper where you have two
buttons – one goes to GPO and one goes to PA. Final version put logos and PA in lower
right hand corner – still confusing for people. Multiple choices on one page and not
discussed what else. GPO producing E-Book for $3000. Download full PDF with
dissents. PA: they are on one page but you can go to either.
BT: report and conclusions – original statement was innocuous. Now it’s the conclusions.
PA: yes – that is a substantive difference.
WE: clarify that there are a couple of small straight forward changes – that WE will
oversee and approve. Also: Timeline - coming soon.
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Motion to approve FCIC beta site 1 or 2. BB moves we approve Beta Site 2. Second.
Heather Murren.
Discussion: substitute amendment to move to substitute 2 for 1 by BT and DHE

Phil Angelides no
Bill Thomas yes
Brooksley Born no
Byron Georgiou no
Robert Graham no
Keith Hennessey yes
Doug Holtz-Eakin yes
Heather Murren no
John W. Thompson no
Peter Wallison yes
4-6 Motion fails
Main motion (ok to correct or update bios – corrections needed by COB/5:00pm
tomorrow. TUCKER to send to Commission)
Bill: move a white paper vote – agree. Any obejection to adoption to beta 1, no
objections – it is adopted.

8) Discussion and Possible Action on Archive
Protocol (Attached)

Gary Cohen and Cassidy Waskowicz

Gary: presented the archives memo. Thinks we shouldn’t release immediately. Should
consider these meetings being released in 5 years or more. 12 for executive. Bill: chairman of
house admin – carried on discussion of docs – reasonable appropriate – thought that 9/11
Commission did a pretty good job. Prefer to not have cascading years apply to different
materials. Reinforce 9/11 pattern and have other argue to alter pattern – positive to create
pattern. PA: deliberative process protected more? Byron: 5 years is plenty of time. BB: agrees.
Bob moves 5 years – third party agreements will be honored – BB – seconds. That is when
Archives begins reviewing docs. Send materials to Archives and seal for 5 years but for longer
if there is a separate third party/propritary agreement for a longer period that we agreed to
honor.

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Select staff to get access to archives before released by Archives. All commissioners,
senior staff, counsel, deputy counsel to examine docs but not release docs. (Pg. 36) Added to the
motion
10-0 – Motion passes
9) Additional voting procedures for remaining
Commission actions (Attached)

Gary Cohen and Cassidy Waskowicz

PA asked Gary to draft this. Two methods – unanimous written consent by majority
vote and allow for email voting the same way we did approval of the report. Either C or
VC could call a meeting and use those processes.
Murren/DHE: 10-0
Phil Angelides
Bill Thomas
Brooksley Born
Byron Georgiou
Robert Grahams
Keith Hennessey
Doug Holtz-Eakin
Heather Murren
John W. Thompson
Peter Wallison
10) Comments and Questions
from Commissioners

All Commissioners

None
11) Other Items of Business

All Commissioners

WE: PA went over VC’s letter. PA happy to go through letter – verbally. Keith – not
necessary.
12) Adjournment

Chairman Angelides

Motion: JWT and DHE at 5:37pm. Motion passes 10-0.

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Financial Crisis Inquiry Commission
Agenda Item 3 for FCIC Meeting of January 6, 2011
Minutes of FCIC Meeting of
January 6, 2011
Agenda Item 1: Call to Order
Chairman Angelides called the meeting to order at 10:05am ET.
Agenda Item 2: Roll Call
Chairman Angelides asked Gretchen Newsom to call the roll of the Commissioners. Present were Phil
Angelides, Bill Thomas, Brooksley Born, Byron Georgiou, Keith Hennessey, Doug Holtz-Eakin, Heather
Murren, and John W. Thompson. Commissioner Bob Graham joined the meeting during Agenda Item 4.
Commissioner Wallison was absent.
Also participating in the meeting were: Wendy Edelberg, Executive Director; Gary Cohen, General Counsel;
Cassidy Waskowicz, Deputy General Counsel; Gretchen Newsom, assistant to Chairman Angelides; Scott
Ganz, assistant to Vice Chairman Thomas; Courtney Mayo, assistant to the Vice Chair; and Rob Bachmann,
assistant to Chairman Angelides.
Agenda Item 3: Approval of Minutes of Business Meeting on December 23, 2010
Chairman Angelides introduced the minutes from the FCIC business meeting of December 23, 2010.
MOTION:

Georgiou moved and Holtz-Eakin seconded a motion to adopt the meeting minutes of
December 23, 2010 (See Attachment 1).

APPROVED: 8-0 (Commissioners Graham and Wallison absent)
Agenda Item 4: Chairman and Vice Chairman’s Report
Chairman Angelides informed the Commission that the estimate for the publication and release of the report
was January 26th, but a firm date would be announced shortly. Vice Chairman Thomas requested that Scott
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Ganz be notified of further edits to the report post commission approval, with primary focus on the report
glossary. Vice Chairman Thomas raised concerns about the length of the book with respect to the number of
pages allocated to the dissents as well as the timing of the submittal of the dissents. Chairman Angelides
informed the Commission that subsequent business meetings would need to occur to wrap up Commission
business beyond the approval of the report.
Agenda Item 5: Executive Director’s Report
Executive Director Wendy Edelberg did not have a report.
Agenda Item 6: Vote to Approve the Resolution to Reapprove the Report
Chairman Angelides introduced the resolution Mr. Cohen drafted regarding the re-approval of the Report and
welcomed discussion. Mr. Cohen reminded the Commission of the 5:00pm deadline for the submittal of
dissents after the re-approval of the Report and reminded the Commission that the Report and the documents
referenced in the Report remain confidential until the public release of the Report.
MOTION:

Born moved and Thompson seconded a motion to adopt the revised Resolution to ReApprove the Report (see Attachment 2):

APPROVED: 6-4
AYE: 6- Angelides, Born; Georgiou, Graham, Murren, Thompson,
NAY: 4 – Thomas, Hennessey, Holtz-Eakin, Wallison*
(Commissioner Wallison voted nay on the re-approval of the report via email)

Agenda Item 7: Comments and Questions from Commissioners
No comments were brought up or questions asked by the Commissioners.
Agenda Item 8: Other Items of Business
Chairman Angelides informed the Commission that the next business meeting would occur in approximately
10 days to finalize the website and wrap-up other business matters.
Agenda Item 9: Adjournment of Business Meeting
MOTION:

Georgiou moved and Graham seconded a motion to adjourn the meeting at
approximately 11:09am.

APPROVED: 9-0 (Commissioner Wallison absent)
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Financial Crisis Inquiry Commission
Agenda Item 3 for FCIC Meeting of January 6, 2011
Minutes of FCIC Meeting of
January 6, 2011
ATTACHMENT 1
APPROVED Minutes of Telephonic Business Meeting of
December 23, 2010

Agenda Item 1: Call to Order
Chairman Angelides called the meeting to order at 10:07am ET.
Agenda Item 2: Roll Call
Chairman Angelides asked Gretchen Newsom to call the roll of the Commissioners. Present were Phil
Angelides, Bill Thomas, Brooksley Born, Byron Georgiou, Bob Graham, Keith Hennessey, Doug HoltzEakin, and John W. Thompson. Commissioner Murren joined the meeting during Agenda Item 3 and
Commissioner Wallison joined the meeting during Agenda Item 7.
Also participating in the meeting were: Wendy Edelberg, Executive Director; Gary Cohen, General Counsel;
Gretchen Newsom, assistant to Chairman Angelides; Scott Ganz, assistant to Vice Chairman Thomas;
Courtney Mayo, assistant to the Vice Chair; and Rob Bachmann, assistant to Chairman Angelides. Deputy
General Counsel Cassidy Waskowicz joined the meeting for Agenda Item 7.
Agenda Item 3: Approval of Minutes of Business Meeting on December 15, 2010
Chairman Angelides introduced the minutes from the FCIC business meeting of December 15, 2010.
MOTION:

Thompson moved and Holtz-Eakin seconded a motion to adopt the meeting minutes of
December 15, 2010 (See Attachment 1).

APPROVED: 9-0 (Commissioner Wallison absent)
Agenda Item 4: Approval of Minutes of Business Meeting on December 16, 2010
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A meeting on the 16th of December did not occur and thus no minutes were introduced for approval.
Agenda Item 5: Chairman and Vice Chairman’s Report
Chairman Angelides and Vice Chairman Thomas both thanked the staff of the Commission for their hard
work. Chairman Angelides stated that he would give the balance of his report after Agenda Item 8.
Agenda Item 6: Executive Director’s Report
Executive Director Wendy Edelberg noted that the staff have been working long hours.
Agenda Item 7: Approval of Clearance of Documents and Confidential Information for use when the
Report is Released
General Counsel Gary Cohen introduced the measure for “Adoption of Recommendations by the Executive
Director and General Counsel Regarding the Use of Quotations and Excerpts from Documents in the Report”
and informed the Commission of the status and process of addressing objections received by the Commission
pertaining to the use of confidential information.
MOTION:

Wallison moved and Born seconded a motion to adopt the measure Mr. Cohen
provided in regard to the clearance of documents and confidential information for use
when the report is released (See Attachment 2).

APPROVED: 10-0
Agenda Item 8: Vote to Approve the Report
Chairman Angelides introduced the resolution Mr. Cohen emailed to the Commission regarding the approval
of the Report and welcomed discussion on the Report. Vice Chairman Thomas voiced his objection to using
signatures on the page of the report that lists Commissioners – there was general consensus to not include
Commissioner signatures on this page. In addition, there was discussion about how to indicate how members
voted on the Report. Chairman Angelides stated that an alternative layout to what was provided to the
Commission would be presented for consideration at the January meeting.
MOTION:

Thompson moved and Born seconded a motion to adopt the Report as follows, and
wherein Vice Chairman Thomas made a friendly amendment to insert the word “last”:
Be it resolved, that the Commission hereby adopts the report last circulated among the
Commissioners in clean and redline form prior to the 10:00 am on December 23, 2010
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editing, fact-checking and legal clearance (documents and quotes), and with such
further adjustments, modifications and additions, including, but not limited to, title
pages, chapter headings, preface, table of contents, glossary and footnotes, as the
Commissioners shall approve when the report is submitted for confirmation and reapproval in the first week of January 2011, at a Commission Meeting to be noticed and
scheduled in the future.
APPROVED: 6-4
AYE: 6- Angelides, Born; Georgiou, Graham, Murren, Thompson,
NAY: 4 – Thomas, Hennessey, Holtz-Eakin, Wallison
Mr. Cohen reminded the Commission that the filing of additional views or dissents must be received by him
electronically no later than 5:00pm on December 24th.
Chairman Angelides continued his Chairman’s report by introducing a resolution Mr. Cohen had emailed to
the Commission pertaining to the “CIRCULATION and REAPPROVAL of the REPORT”. Discussion on
the matter ensued.
MOTION:

Wallison moved and Born seconded a motion to adopt the measure Mr. Cohen
provided in regard to the circulation and reapproval of the (See Attachment 3).

APPROVED: 10-0
AMENDMENT: Chairman Angelides called for minor edits to the resolution for clarification
purposes. Born moved and Graham seconded a motion to amend the resolution by clarifying
“on the earlier of by the close of business (5:00 PM EST) on the day the report is reapproved,
and in no event later than 5:00 PM EST January 6, 2011(See Attachment 3).
APPROVED: 10-0
Agenda Item 9: Comments and Questions from Commissioners
No comments were brought up or questions asked by the Commissioners.
Agenda Item 10: Other Items of Business
Chairman Angelides and Vice Chairman Thomas again thanked the staff and Commissioners for their hard
work. Chairman Angelides informed the Commission that the vote to reapprove the Report would likely be
scheduled and noticed for both January 5th and 6th between 10:00am-2:00pm ET and requested
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Commissioners to reserve this time on their calendars. No other items of business were raised by the
Commissioners.
Agenda Item 11: Adjournment of Business Meeting
MOTION:

Graham moved and Wallison seconded a motion to adjourn the meeting at
approximately 11:09am.

APPROVED: 10-0

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Financial Crisis Inquiry Commission
Agenda Item 3 for FCIC Meeting of January 6, 2011
Minutes of FCIC Meeting of
January 6, 2011
ATTACHMENT 2
APPROVED Resolution to Reapprove Report (Revised)
Resolved, that the Commission hereby adopts and reapproves the report (the “Report”) the net documents
link to which was last circulated among the Commissioners in redline form (reflecting changes when
compared against the report approved and adopted on December 23, 2010) prior to the 10:00 am EST
commencement of this meeting, and
Resolved further, that the Commission hereby approves the use in the Report at the time of the authorized
public release of the Report of each quotation, document, interview, staff report, or other materials cited,
quoted from and/or referred to in the Report, and
Resolved further, that the Commission hereby approves the use in the dissents at the time of the authorized
public release of the dissents of each quotation, document, interview, staff report, or other materials cited,
quoted from and/or referred to in the dissents as filed with Gary Cohen on December 24, 2010, and
Resolved further, that the Commission reaffirms the continued confidentiality of the Report and the dissents
until the time of the authorized public release of the same, and
Resolved further, that the Commission hereby authorizes Wendy Edelberg and Maryann Haggerty, or either
of them, to send the Report as adopted and approved to the Government Printing Office and PublicAffairs for
typesetting and eventual publishing, and
Resolved further, that the Commission hereby authorizes Wendy Edelberg to make such technical and
conforming changes on the Report as are necessary and appropriate to reflect the different publishers
including changing “authorized version” for the PublicAffairs publication to “official government edition”
for the Government Printing Office publication, and
Resolved further, that the Commission hereby authorizes Wendy Edelberg after the adoption of this
resolution to make corrections, and grammatical or technical or non-substantive changes, to the Report, and
to finalize footnotes and the glossary in the Report, and
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Resolved further, that the Commission hereby authorizes Wendy Edelberg and Maryann Haggerty, or either
of them, to approve “blue lines” of the Report as the same are prepared and circulated for approval by the
publishers, and
Resolved further, that the Commission hereby authorizes the Chairman to determine a date for the authorized
public release, first by the Government Printing Office and then immediately by PublicAffairs, of the Report
and the dissents (which Report and dissents shall and must be released together).

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Financial Crisis Inquiry Commission
Agenda Item 6 for Business Meeting of January 24, 2011
Vote to Approve the Clearance of Documents/Document and Interview Review/Clearance Process

Memo To:

Commissioners of the FCIC

From:

Gary J. Cohen
Cassidy Waskowicz

cc:

Wendy Edelberg
Maryann Haggerty

Date:

January 21, 2011

Re:

Further Considerations with Respect to the Public Release of Confidential Documents
and Materials in the Report, the E-Book and Website.
_____________________________________________________________________________________

On November 16, 2010, we prepared a memorandum for the Commissioners’ consideration entitled
Considerations with Respect to the Public Release of Confidential Documents and Materials in the Report, the E-Book
and Website. A copy of that memorandum is attached. This memorandum is further to, and consistent with, that
document, and provides the current status of the staff’s document clearing process.
On December 23, 2010, at a Commission business meeting, the Commission approved a delegation of
authority to the Executive Director and General Counsel to approve and clear documents used in the Commission's
Report. With that authority, all documents1 referred to in the Report and the dissents have been cleared for use therein
(clearance was confirmed by the Commissioners at their meeting of January 6, 2011), and on the date the Report is
released the Commission's website will be populated by substantially all of the written documents referred to in the
Report.

1
As used in this memorandum documents are broadly construed to include paper documents, electronic documents, audio files, video files, compilations of data
and the like, unless the context clearly indicates otherwise.

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This Memorandum considers and recommends for approval a process for the clearance of documents which
are associated with the Report or dissents for posting on the web and potential use in the Commission's e-book or
enhanced e-pub.
It is the intention of the staff to post on the Commission's website after the Report is released as many of the
more significant documents reviewed by the Commission during its more than year-long investigation as are
appropriate for release and can be processed prior to the termination of the Commission on February 13, 2011.
To this end, the staff proposes the following procedures for clearing and posting the following categories of
documents on the website and for possible use in an e-book or enhanced e-pub. (This list overlaps with some of the
categories approved at the January 6th meeting. This Memorandum is only intended to cover documents that have not
been previously approved for release and posting):
a) all documents, both physical and electronic, e-mails, video files, audio files, transcripts, and materials prepared
or compiled by the FCIC staff, that have already been made public but not approved for posting,
b) documents that previously have been cleared in connection with prior hearings (whether or not used at the
hearings),
c) all preliminary staff reports and similar reports,
d) the timeline and documents referenced in the timeline (Commissioners will be provided with a copy of the
timeline and will be given an opportunity to convey comments to the Executive Director),
e) all video and testimony from the Commission hearings,
f) the roundtable panel discussions hosted by the Commission on November 16, 2009 and October 20, 2009,
so long as no objection is raised by roundtable participants,
g) all MFRs (note that we will not post MFRs where a transcript or audio tape exists), audio tapes and
transcripts of interviews for which confidentiality was not requested or to which no objection has been
raised,
h) all of the documents referenced in PIRs and similar staff documents,
i) all of the documents and follow-up answers to questions asked at public hearings,
j) all MFRs, audio tapes and transcripts of interviews to which objections have been raised after the
objections are resolved or overruled,
k) all survey presentations and underlying survey data upon which conclusions referenced in the Report were
based (Commissioners will be provided with a copy of the survey presentations including the Hedge Fund
Survey, Market Risk Survey, CMLTI 2006-NC2 analysis, and the CDO Library and Chartbooks, and will
be given an opportunity to convey comments to the Executive Director) , and
l) other materials relevant to our inquiry and the Report which were requested, received and reviewed or
prepared by the staff during the course of our investigation and which are not otherwise included in any of
the above categories.

However, it is our recommendation that no confidential documents be released to the website unless:
a) they are or have been reviewed by appropriate Commission staff and approved by the Executive Director,
General Counsel or Deputy General Counsel as appropriate to release
b) when dealing with documents covered by confidentiality agreements or understandings, after consultation with
(and if required, occasional approval by) the document providers, and
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c) they are approved or deemed approved by the Commission in accordance with the procedures adopted and to
be adopted at the Commission meetings of January 6 and 24, 2011.
Any documents constituting federal records not posted on the web on or before February 13, 2011, will be
delivered to the national archives for processing in accordance with a separate memorandum and the decision of the
Commission.
Following the above process will likely result in posting a substantial number of documents (including audio
files, MFR's, answers to requests for information and data submissions) to which objections have been raised by the
document providers. The general categories of objections to posting MFRs, transcripts and audio files, and documents
include the following:
i)

General nonspecific allegations that the material includes business confidential information, the release of
which would prove harmful.
ii) General statements that the interviewees were promised that the interviews would be maintained as
confidential, or were for background purposes only.
iii) Requests that the interviews not be released because they were of lower level staff employees.
iv) Requests by various bank regulatory agencies such as the Fed, the OTS or OCC, the FDIC or the SEC that
bank examination material not be released due to the chilling effect that such release would have on banks’
willingness to be candid in future examinations.
v) Requests for redactions of specific items in certain documents, such as personal information.
vi) Requests that MFRs not be released due to possible material inaccuracies alluded to by counsel to the
interviewees.
vii) Requests that an MFR not be released due to the lack of understanding by the interviewee and counsel that the
interviews would be publically released other than through the archive process (generally contemplated to be
at least five years in the future).
The staff was and will be responsive to specific redaction requests for personal information and trade secret
information the disclosure of which could be materially harmful to the provider, and to well-founded objections based
on inaccuracies in MFRs (for which no transcript or audio file exists). In addition, where it appears that the
interviewee was specifically told that the interview was for background purposes only, or would be maintained as
confidential for a given period of time, or was given specific assurances of confidentiality (as opposed to merely
having the interview covered by a standard confidentiality agreement), the interviews, whether MFR or tape or
transcript, will generally not be released.
Bank regulatory agencies have generally requested that bank examination reports not be released. But what
these examinations revealed comprises a significant portion of the Commission’s Report, and staff believes that
disclosing these materials is merited. In addition, the bank examinations occurred generally more than three years ago
and so agency claims of possible damage to a bank in 2011, caused by release of examination material from 2008 or
earlier, are not credible.

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In the earliest stages of the Commission’s operations staff was not aware of the Commission's intention to
release interview notes and audio files other than through the archives process. This lack of awareness may well have
led to a lack of clarity by some parties that the interviews might become public at the conclusion of the Commission’s
operations. In addition, many early interviews, despite an interview procedure memorandum which expressly provided
for recording absent extraordinary circumstances, were not recorded and MFRs were created after the fact through the
notes of the staff members present. MFRs created through this process have faced claims of inaccuracy. (Quotes
taken from MFRs and used in the Report have been verified independently.)

For these reasons, the staff is paying particular attention to objections to the release of MFRs and other
documents not used in the Report. As part of the release decision the staff is and will weigh the benefit of public
access to the MFR (or audio files and documents, for that matter) and the nature and quality of the materials against
objections to release raising one or more of the issues outlined above.

To formalize this process, we recommend that the Commission adopt the resolution below.

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Adoption of Recommendations by the Executive Director, General Counsel and Deputy General
Counsel Regarding the Use of Interviews and Documents in the Commission’s Website, E-Book and EPub Enhanced E-Book
WHEREAS, in connection with the Commission’s report to the President and to the Congress of a report on the causes
of the current financial and economic crisis in the United States the Commission intends to create a publicly available
website and may cause to be published an e-book and e-pub enhanced e-book (collectively electronic presentations),
and
WHEREAS, the electronic presentations may include confidential interviews, documents and other materials requiring
approval of the Commission prior to public release, and
WHEREAS, to assure that such material is expeditiously cleared and available for inclusion in the electronic
presentations, the General Counsel suggests that the Commission adopt the following resolutions:
RESOLVED, that the Commission delegates to the Executive Director, the General Counsel and Deputy General
Counsel the power to review, resolve or override, on behalf of the Commission, objections made to the public release
of confidential documents or interviews, on a case-by-case basis, after weighing the nature of the objections against the
benefit to the report and the American public of such public release, and to approve the posting of such documents in
the electronic presentations;
RESOLVED, that if the Executive Director, the General Counsel and Deputy General Counsel determine necessary or
appropriate, they may seek the advice of the Chairman and Vice Chairman regarding whether to override objections
made to the public release of confidential documents or interviews;
RESOLVED FURTHER, that the Commission adopts as the action of the Commission the recommendations of the
Executive Director, General Counsel and Deputy General Counsel regarding the release and posting of such
confidential documents, interviews or other materials, as well as public documents, for inclusion in the Commission’s
electronic presentations, and
RESOLVED FURTHER, that the Deputy General Counsel shall inform the Commissioners from time to time upon
their request as confidential documents, interviews or other materials to which objections have been made are
confirmed for public release in the Commission’s electronic presentations.

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Attachment, FCIC Memorandum dated November 16, 2010

Financial Crisis Inquiry Commission
Agenda Item 6 for Business Meeting of November 17, 2010
Document and Interview Review/Clearance Process

Memo To:

Commissioners of the FCIC

From:

Gary J. Cohen
General Counsel, FCIC

cc:

Wendy Edelberg
Maryann Haggerty
Cassidy Waskowicz

Date:

November 16, 2010

Re:

Considerations with Respect to the Public Release of Confidential Documents and
Materials in the Report, the E-Book and Website.
_____________________________________________________________________________________

The FCIC was created by the Fraud Enforcement and Recovery Act of 2009, which was signed into law on
May 20, 2009. The FCIC's mission is “to examine the causes, domestic and global, of the current financial and
economic crisis in the United States.” Congress empowered the Commission to “hold hearings,... take testimony,
receive evidence,... and require, by subpoena or otherwise, the attendance and testimony of witnesses and the
production of books, records, correspondence, memoranda, papers, and documents.”

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In connection with its mandate, the Commission has received millions of pages of documents, conducted
numerous surveys, interviewed hundreds of witnesses, held 19 days of hearings, compiled video records of testimony
before the Commissioners, and completed numerous reports, both confidential and public, on various aspects of the
financial crisis. The Commission has received or created approximately 15 terabytes of data, some of which remains
to be examined.

It is our intent to use in the Report and our e-book both public and nonpublic documents and to create on our
website a resource of public and nonpublic documents relevant to the Commission's Report and inquiry, all with the
purpose of meeting our statutory mandate to report to the President, Congress and the public on the causes of the
financial and economic crisis.
This Memorandum proposes a process to make the Commission's work available to the public in a meaningful
and useful way. To this end I consider documents (with a focus on nonpublic documents) that may be made available
in the Commission’s Report and e-book (Report Elements), or website (Web Elements). Release of Commission
internal materials (e.g., Commissioner and staff e-mails, Preliminary Investigative Reports (PIRs) and other work
product and documents), will be the subject of a separate memorandum addressing National Archives issues. You will
note below that I have recommended that all nonpublic material for use in the final Report and the website be run
through an approval process.

I recommend that Report Elements include:

all documents,2 both physical and electronic, e-mails, video files, audio files, transcripts, and materials
prepared or compiled by the FCIC staff, such as the timeline, surveys and staff memoranda that have been
made public, that are included, referenced or footnoted in the written Report, or included in the e-book and ebook apps.

B.
I recommend that Web Elements for immediate inclusion in the website on the date the Report is
released (in addition to all material previously posted) include:

i)
ii)
iii)

all Report Elements,
all documents that previously have been cleared in connection with prior hearings (whether or not used
at the hearings),
all preliminary staff reports,

2
As used in this memorandum documents should be broadly construed to include paper documents, electronic documents, audio files, video files, compilations of
data and the like, unless the context clearly indicates otherwise.

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iv)
v)
vi)

the expanded timeline and documents referenced in the expanded timeline,
all video and testimony from the Commission hearings, and
all MFRs, audio tapes and transcripts of interviews for which confidentiality was not requested (or which
have already been cleared).

C.
In addition, in addition to material that was previously dealt with pursuant to clause A and B above, I
recommend that Web Elements also include (when and after cleared, if necessary) the following documents:

i)
ii)
iii)
iv)
v)

ii)
iii)
I.

all of the documents referenced in PIRs and similar staff documents,
all of the documents and follow-up answers to questions asked at public hearings ,
all MFRs, audio tapes and transcripts of interviews for which clearance is obtained,
all surveys upon which conclusions referenced in the Report were based, and
materials relevant to our inquiry and the Report which were requested, received and reviewed or
prepared by the staff during the course of our investigation and which are not otherwise included in any
of the above categories.
However, it is my recommendation that no Report Elements or Web Element be released unless:

they are reviewed by appropriate Commission staff and approved by the Executive Director or General
Counsel as appropriate to release (documents already cleared for prior use in hearings do not have to be
re-cleared or authorized),
when dealing with documents covered by confidentiality agreements or understandings, after
consultation with (and if required, occasional approval by) the document providers, and
approved or deemed approved by the Commission (in accordance with the procedures below).

Process.
A.

Choice of Documents for the Report

If there is an e-book with embedded material, at most 1 GB of supplemental material chosen by the FCIC can
be included. The two forms of e-books that include supplemental material, an e-book application (iPad and Droid) and
an enriched e-pub, are each capable of including this amount of supplemental data, although the choice of data for each
platform can differ slightly because of their different capabilities. (In addition to embedded data, e-book platforms can
include hotlinks pointing to external web content. This requires that, at the very least, the portion of the Commission's
website to which the hotlinks point be "live" when the e-book is published.)

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Thus the task ahead for the Report and e-book suggests the following steps:

Staff identifies and physically segregates in electronic form all Report Elements".3

2.
Staff determines the source of each Report Element and, where these were produced pursuant
to confidentiality or other agreement notifies and seeks (generally as per these agreements 14 days in advance)
comment from the Report Element provider to the use of the Report Element. (While the FCIC does not need
affirmative consent pursuant to most of our Confidentiality Letters, either receiving no response to the notice
letter or an affirmative consent should eliminate any concerns regarding release of trade secret or business
proprietary information.) (This process is already underway, and has resulted in a number of questions and
requests for clarification, objections to disclosure, and requests for further discussion from the recipients.) As
a courtesy, we are also telling providers of Report Elements that we might also use their previously cleared
materials in the Report.

3.
Staff determines if any Report Elements require special affirmative consent due to special
terms of any confidentiality agreements or other previously agreed-upon use restrictions, and pulls the
document if the same is not forthcoming.

4.
Where a request for comments elicits objections to disclosure or a required consent is not
forthcoming, Staff determines if release of the Report Elements raises trade secret, personal privacy, or
regulatory or statutory restrictions on disclosure, collectively "special concerns." If the staff determines that
the special concerns are not valid, subject to the other requirements herein, the documents will be released. If
valid, the staff will consider applicable legal requirements, and will weigh the benefit of disclosure by the
Commission against the potential harm to the provider caused by disclosure of the special concerns, negotiate
redactions if the same will be helpful in resolving disclosure issues and if the Report Element would still be
worthy of disclosure after the redactions, and raise the matter to the Commission if the special concern issues
cannot be resolved by staff and the document provider. Once resolved, the staff will then adjust the
composition of the Report Elements accordingly. The decision about whether to release or redact Report
Elements after valid objection must be made on a case-by-case basis depending upon the nature of the material
under consideration.

This Memorandum primarily addresses electronic release of documents, but as these items will likely constitute documents used as the basis for footnotes, the
same considerations as to care in checking and clearance applies to use in the printed Report.

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Choice of Documents for the Website

Documents released via the website make up the next subset. (Choice of the location/hosting of the permanent
website will be the subject of a separate memorandum.) Website decisions for material hot-linked to the web from the
e-book must be made when the e-book is "printed." As a practical matter other website decisions can be delayed until
the end of January 2011 (to allow time to implement the decisions by February 13, 2011), and so the Commission will
have additional time to consider and clear documents not included, or referred to, in the Report.

Thus the task ahead for the Web suggests the following steps (of course in all cases modified to the extent that
items have already been cleared as part of Report Elements):

Staff identifies and physically segregates in electronic form all Web Elements.4

2.
Staff determines the source of each Web Element and, where these were produced pursuant to
confidentiality or other agreement notifies and seeks (generally as per these agreements 14 days in advance)
comment from the Web Element provider to the use of the Web Element. (While the FCIC does not need
affirmative consent pursuant to most of our Confidentiality Letters, either receiving no response to the notice
letter or an affirmative consent should eliminate any concerns regarding release of trade secret or business
proprietary information.) Staff also determines after consultation with the Web Element provider if there are
any needed redactions. (This process is already underway, and has resulted in a number of questions,
objections to disclosure and requests for clarification and further discussion from the recipients.) As a
courtesy, we are also telling providers of Web Elements that we might also place their previously cleared
materials on the Web.

Clearing MFRs and interviews is a very labor intensive process. The highest priority will be be given to MFRs and audio tapes or transcripts of individuals quoted
in the Report. Next, the staff will determine which interviews should have priority for clearance, although as a practical matter we are seeking clearance for all of
them at this time, and prioritization will come into play when dealing with objections. Some interviewees were assured by FCIC staff that the interviews would be
private, or were for background purposes only, and that, of course, will be respected. However, even in those cases , people may change their views and we should
ask about release anyway. If promised confidentiality is not waived, the interview materials should be left to the National Archives unless there is a compelling
reason to disclose documents and override the promise where circumstances permit. (Virtually all interviewees were informed that the interview materials would
be delivered to the National Archives.)

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3.
Staff determines if any Web Elements require special consent due to special terms of any
confidentiality agreements or other previously agreed-upon use restrictions, and seeks consent where needed
and pulls the document if the same is not obtained.

4.
Where a request for comments elicits objections to disclosure or a required consent is not
forthcoming, Staff determines if release of the Web Elements raises special concerns. If the staff determines
that the special concerns are not valid, subject to the other requirements herein, the documents will be released.
If valid, the staff will consider applicable legal requirements, and will weigh the benefit of disclosure by the
Commission against the potential harm to the provider caused by disclosure of the special concerns, negotiate
redactions if the same will be helpful in resolving disclosure issues and if Web Element would still be worthy
of disclosure after the redactions, and raise the matter to the Commission if the special concern issues cannot
be resolved by staff and the document provider. Once resolved, the staff will then adjust the composition of
the Web Elements accordingly. The decision about whether to release or redact Web Elements after valid
objection must be made on a case-by-case basis depending upon the nature of the material under consideration.

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Commission Approval Process

The decision to release publicly confidential documents is one which should be made by the full Commission,
either directly or through a process of delegation. It is unwieldy and impractical to expect that the full Commission will
review all of the Web Elements and Report Elements, so a procedure for approval should be considered. Currently, the
Commissioners are governed by the following:

The Ethics Guidelines for Commissioners provide that the Chairman or the Commission may release
confidential information.

Many of the Commission’s Confidentiality Agreements provide that documents may be released upon the
agreement of the Chairman and the Vice Chairman, or upon a majority vote of the Commission.

In addition, the Commission must approve the Report, which includes the Report Elements and, for our
purposes, Web Elements as well.

As noted above, in those few cases where there is staff discretion (such as under clause C(v) above), I
recommend that the Executive Director or General Counsel determine which documents should be recommended to the
Commission for a determination in accordance with its processes for inclusion in Report Elements or Web Elements.
This will primarily occur in situations where the staff has received objections to disclosure and the determination to
override the objections must be made.

II.

Legal Considerations for the Release of Documents Received by the Commission
There Are Statutory and Regulatory Prohibitions on the Release of Confidential Information, but
Congress has investigative powers which have been held to override these provisions, and the
Commission has the benefit of those powers as a creation of Congress.

18 USC §1905. Disclosure of confidential information generally --

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Whoever, being an officer or employee of the United States or of any department or agency thereof, any
person acting on behalf of the Federal Housing Finance Agency, or agent of the Department of Justice as
defined in the Antitrust Civil Process Act (15 U.S.C. 1311–1314), or being an employee of a private sector
organization who is or was assigned to an agency under chapter 37 of title 5, publishes, divulges, discloses, or
makes known in any manner or to any extent not authorized by law any information coming to him in the
course of his employment or official duties or by reason of any examination or investigation made by, or
return, report or record made to or filed with, such department or agency or officer or employee thereof, which
information concerns or relates to the trade secrets, processes, operations, style of work, or apparatus, or to the
identity, confidential statistical data, amount or source of any income, profits, losses, or expenditures of any
person, firm, partnership, corporation, or association; or permits any income return or copy thereof or any book
containing any abstract or particulars thereof to be seen or examined by any person except as provided by law;
shall be fined under this title, or imprisoned not more than one year, or both; and shall be removed from office
or employment.

In addition, 12 CFR part 261 creates similar limitations on the disclosure of "confidential supervisory
information" of the Federal Reserve Board, 12 CFR part 4 protects "non-public OCC information," 12 CFR part 309
protects "non-public information" of the FDIC and so forth.

The Commission is formed under Congress, and is entitled to the benefit of Congress’s authority and power to
obtain information, including but not limited to proprietary information, is extremely broad. The Commission's
inextricably related ability to release this information arises out of the objectives of the Commission, to issue a report.
While there is no express provision of the Constitution or specific statute authorizing the conduct of congressional
investigations, the Supreme Court has firmly established that such power is so essential to the legislative function as to
be implied from the general vesting of legislative powers in Congress. McGrain v. Daugherty, 273 U.S. 135 (1927);
Watkins v. United States, 354 U.S. 178 (1957); Barenblatt v. United States, 360 U.S. 109 (1959); Eastland v. U.S.
Servicemen’s Fund, 421 U.S. 491 (1975); Nixon v. Administrator of General Services, 433 U.S. 435 (1977). Even the
pendency of civil or criminal litigation cannot delay a committee inquiry. Sinclair v. United States, 279 U.S. 263
(1929).

The federal courts, when applying Congress’s broad investigatory power to obtain access to documents
containing confidential or proprietary information, have expressly held that executive agencies and private parties may
not deny Congress access to such documents, even if they may contain trade secrets or other sensitive information
whose disclosure to the public is otherwise statutorily barred. See, e.g., FTC v. Owens-Corning Fiberglass Corp., 626
F. 2d 966, 970 (D.C. Cir. 1980); Exxon Corp. v.FTC, 589 F. 2d 582, 585-86 (D.C. Cir. 1978), cert. denied, 441 U.S.
943 (1979); Ashland Oil Co., Inc. v. FTC, 548 F. 2d 977, 979 (D.C. Cir. 1976). Specifically, courts have held that
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release of information to a congressional committee is not considered to be disclosure to the general public, see
Owens-Corning Fiberglass Corp., 626 F. 2d at 970; Exxon Corp., 589 F. 2d at 589; Ashland Oil, 548 F. 2d at 979;
Moon v. CIA, 514 F. Supp. 836, 840-41 (D.D.C. SDNY 1981), and once documents are in congressional control, the
courts will presume that committees of Congress will exercise their powers responsibly and with proper regard to the
rights of the parties. See, Owens-corning Fiberglass, 626 F.2d at 974; Exxon Corp., 589 F. 2d at 589; Ashland Oil,
548 F. 2d at 979; Moon v. CIA, 514 F. Supp. at 849-51.

In addition, our statute expressly requires the Commission to seek testimony or information from principals
and other representatives of government agencies and private entities that were significant participants in the United
States and global financial and housing markets during the time period examined by the Commission. As the
Commission’s enabling legislation manifests the clear congressional intent to establish an independent legislative
branch entity with investigative powers, authorities and prerogatives equivalent to those of past and present standing
and special investigatory committees, the decision to release confidential documents or materials as part of its statutory
duty to report on the causes of the crisis rests in the Commission’s discretionary determination that such public release
will further fulfillment of its mandated statutory mission, a decision that cannot be limited by any court ruling or
regulatory or statutory standard. Such decisions must be made responsibly and with proper regard to the rights of the
parties involved. As such,, the disclosure of relevant information by the Commission as part of its Report should be
protected as outlined above.

This broad power to receive and disclose confidential and proprietary information is limited by the purpose for
which the information is obtained, however, and while the use of that information in the report to be delivered to
Congress and the President, and therefore to the American public would be within the powers described above, there is
a question as to whether the same standard would be applied should that information be disclosed in a commercially
released book without express or implied consent of the information provider. While this is an issue for the publisher
and not the Commission, I nonetheless recommend that the FCIC take special care to insure compliance with the
appropriate clearance procedures for all documents referenced of quoted in the Report or included in the enhanced ebooks.

Finally, it appears, based on a 5th Circuit Court of Appeals case, United States v. Wallington, 889 F.2d 573
(5th Cir. 1989) that violations of 18 USC §1905 require mens rea, a guilty mind or conscious intent, and inadvertent
violations are not actionable. (There are very few reported cases referencing §1905.)

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The FCIC Has Entered into Confidentiality Letters Pursuant to Which It Has Received Confidential
Information

The FCIC has entered into at least 69 confidentiality agreements of various forms pursuant to which it has
committed to a process concerning the Commission's use of documents and other information submitted to it by
document providers, including federal agencies and departments, state and local government entities, and business
organizations and individuals. (A list of the parties to those agreements is attached as Appendix A.)

While the confidentiality agreements vary, virtually all of them contain provisions that require the FCIC to
maintain in confidence the documents designated as confidential and to consult with the document provider prior to
disclosing the information (and often specify a 14 day consultation period). The agreements all allow the FCIC to
disclose the confidential information it determines appropriate in any interim or final report or in connection with
public hearings upon the agreement of the Chairman and the Vice Chairman or upon a majority vote of the FCIC.
Many of the agreements specifically reference, for example, certain bank regulatory reports confidentiality provisions,
trade secrets and similar items protected from disclosure by statute or regulation as examples of the types of the
documents entitled to confidential treatment in accordance with the letters. But that does not override the
Commission's ability to release the documents if it so determines. In many of the earlier Confidentiality Letters, the
FCIC has stated that it will ask the National Archives not to release confidential documents submitted to the
Commission for at least five years after the conclusion of the Commission's work (in keeping with a pattern set by the
9/11 Commission).

A typical corporate Confidentiality Letter provides:

In accordance with its statutory mandate and its duty to the American public, the Commission, if it determines
it is in the public interest, may release to the public non-public information obtained from XXX as part of 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 the above paragraph, the Commission will give written
notice to XXX, and allow XXX to consult with the Commission before the Commission uses any of the
XXX’s non-public information in any interim or final report to the President and Congress, or in any public.

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With respect to interviews and related MFRs, it has generally been the practice of counsel to financial
institutions and departments and agencies to note either by e-mail as part of the process by which the interviews were
arranged, or during the interview, that the interviews would also be covered by the confidentiality agreements between
the FCIC and the respective financial institution or agency or department. Interviews conducted with industry
observers who are not affiliated with organizations subject to confidentiality agreements have usually not contained
those types of restrictions, but even in these situations an FCIC staffer should review the tapes to be certain. Some
interviews were conducted with assurances of a confidential treatment or under the explanation that they were "for
background purposes." For these interviews, I would notify the interviewee (and we are trying to notify all
interviewees) and see if he or she objects to disclosure before making a final release decision. And if there is no
objection then disclosure should be appropriate.

Not all entities and agencies have entered into Confidentiality Letters with the FCIC. Some have instead
submitted documents or consented to interviews pursuant to individual requests, letters or e-mails requesting
confidentiality of the applicable material.

Internally, the FCIC recognizes the sensitive nature of its work and has taken precautions to ensure the
confidentiality of nonpublic information that it receives. These steps include requiring all FCIC personnel to sign a
confidentiality and non-disclosure agreement, which protects all nonpublic information and specifically restricts the
dissemination of any trade secrets or other proprietary information.

Given the nature of the Confidentiality Letters into which the FCIC has entered, I believe there may be a
distinction between public release via the Commission's Report or website (which the FCIC will treat as ancillary to
the Report) and public release through the National Archives. As to the former, compliance with the consultation or
consent process described above should eliminate most concerns regarding the disclosure of trade secrets and other
confidential information. As to the latter, delivery to the National Archives with a Commission suggested release
schedule is only the beginning of the analysis to be addressed at a later date.

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Appendix A
Confidentiality Letters [to be updated]

TAB

NAME

SEC‐ Mark Cahn

Board of Governors of the Federal Reserve System‐ Ben Bernanke

OCC‐ Julie Williams

FDIC‐ Michael Bradfiel

FHFA‐ Alfred Pollard

DOL‐ Deborah Greenfield

CFTC‐ Dan Berkovitz

OTS‐ Deborah Dakin

DOJ‐ Ronald Weich

Treasury‐ George Madison

Citi‐ Brad Karp

LexisNexis‐ Kara Hinrichs

HUD‐ Heather Kanovsky

FINRA‐ James Shorris

State Street‐ David Phelan

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NY State Banking‐ Marjorie Gross

Goldman Sachs‐ Richard Klapper

Morgan Stanley‐ Raul Yanes

PIMCO‐ John Sopko

Vanguard‐ Nathan Will

Fannie Mae‐ Jeff Kilduff

UBS‐ John Moon

Barclays‐ Caroline de Onis

S&P‐ Brian Markley

CT AG‐ George O'Connell

OH AG‐ Doreen Johnson

omitted

AIG‐ Mitchell Berger

Cornwall Capital‐ William Gussman

Magnetar‐ Steven Ross

Moody's‐ Steven Ross

MKP‐ Patricia Alcamo

GSC Group‐ Daniel Ross

NIBC‐ Albert Lambert

Laura Schwartz‐ Robin Alperstein

Scion‐ Michael Burry

ACA‐ Nathan Erickson

UBS‐ Maite Quino
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Alan Roseman‐ Robert Bennett

Charles Gates‐ Daniel Zinman

Markit‐ Mark Davidson

Eric Dinallo‐ John Kenny

TCW ‐ Michael Cahill

Andrew Forster‐ David Brodsky

Joe Cassano‐ Jim Walden

Credit Suisse‐ Daniel Zinman

Wachovia‐ Robert Kelner

NCRC‐ Josh Silver

Ally Financial‐ John Hromy

S&P (Special)‐ Brian Markley

PIMCO –

Moody's (Special)‐ Sharon Nelles

Wendy Ruberti

Fremont General‐ Jim Caroll

NCUA‐ Robert Fenner

Maryland Insurance Administration‐ Neil Miller

David Sambol‐ Walt Brown

ICAP North America Inc.

RMIC‐ John Heitkamp

Greg Levine

Aladdin Capital‐ Sharad Samy
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Stone Tower‐ Robert Carangelo

Vanderbilt Capital‐ Peter Simmons

PMI‐ Andrew Cameron

Alliance Berstein‐ Mark Manley

Tim Harkness‐ BlackRock

ING‐ Gerald Lins

Deerfield Capital‐ Jonathan Polkes

MGIC‐ Jeffrey Lane

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Financial Crisis Inquiry Commission
Agenda Item 7 for Business Meeting of January 24, 2011
Vote to Approve New FCIC Website

Materials Forthcoming

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Financial Crisis Inquiry Commission
Agenda Item 8 for Business Meeting of January 24, 2011
Discussion and Possible Action on Archive Protocol

Memo To:

The Commissioners of the Financial Crisis Inquiry Commission

From:

Gary J. Cohen
General Counsel
Cassidy Waskowicz
Deputy General Counsel

cc:

Wendy Edelberg, Executive Director
Maryann Haggerty

Date:

January 21, 2011

Re:

Archived Documents
_____________________________________________________________________________________

In connection with its mandate “to examine the causes, domestic and global, of the current financial and
economic crisis in the United States,” Congress empowered the Commission to “hold hearings,... take testimony,
receive evidence, ... and require, by subpoena or otherwise, the attendance and testimony of witnesses and the
production of books, records, correspondence, memoranda, papers, and documents.” The Commission has received
millions of pages of documents, conducted numerous surveys, interviewed hundreds of witnesses, held hearings,
compiled hours of video of testimony before the Commissioners, and completed confidential and public reports on
various aspects of the financial crisis. The Commission has received or created approximately 15 terabytes of data.
The subject of this Memorandum is to provide background to the Commissioners when they consider how to
release Commission material submitted to the National Archives and Records Administration (the "National Archives"
or "NARA"). This is not intended to be an action Memorandum at this time.

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We have previously prepared a Memorandum to the Commissioners dated November 16, 2010
"Considerations with Respect to the Public Release of Confidential Documents and Materials in the Report, the EBook and Website" which discusses the public release of documents in the Commission's Report and a follow-up
Memorandum dated January 21, 2011 concerning the public release of documents on the Commission's website.
Terms defined in those Memoranda are similarly defined herein. This Memorandum addresses the release through
NARA of documents which were not released as part of the Report or on the Website.
Precedents for the Release of Sensitive Business Records through NARA
Rather than propose a specific release schedule, we think it better to provide some examples adopted by other
commissions and let the Commissioners make the determination themselves. We have asked the National Archives for
information concerning the release of information by other commissions. They have advised us of the following:
Other than those Commissions which released everything on termination, the 9/11 Commission adopted the
quickest release policy and chose to make everything (including deliberative materials) available after five years from
termination of the Commission (subject to national security concerns).
The Commission on Proliferation of Weapons of Mass Destruction and Prevention of Terrorism opened all
records after 10 years except Commissioner and staff email which is to be opened only after 25 years.
The Judicial Review Commission on Foreign Asset Control established three categories for its records: open
immediately, closed for 15 years, and closed for 75 years (all the records require screening before release). Broadly,
the Press Releases, Reports to Congress, Legal Files, and Hearings were opened immediately; Travel Files, General
Office Program Files, Correspondence, OFAC Briefing Materials and Document Production are to be opened in 15
years; Administrative Files, OFAC Case Files, Commissioner and Staff Files, and Documents Provided by the Senate
Intelligence Committee are to be opened in 75 years.
The Commission to Assess US National Security Space Management and Organization closed its records for
between four and 12 years. But all of its records will be screened for classified information. Most records are to be
opened after 4 years, but the following are to be opened after 12 years: those "specially-designated as sensitive to
policy deliberations; containing policy deliberations themselves; marked as not being releasable outside the
Commission; and properly marked as containing proprietary information."
The other commission records maintained by the Center for Legislative Archives (the NARA group
responsible for the FCIC) were opened immediately upon transfer to NARA. These include the Commission on
Military Training and Gender Issues, Commission on Electronic Commerce, the Commission on the Advancement of
Federal Law Enforcement, the Millenial Housing Commission and the Commission on Affordable Housing and Health
Facility Needs for Seniors in the 21st Century. Even in those cases NARA always screens everything, but, barring
anything personal such as SS#s or medical records, anything closed by statute (ex. tax returns or grand jury info),
everything was opened immediately.
As noted in prior a Memorandum, when deciding on a release schedule, Commissioners should weigh the
public's interest in access to the documents not released by the Commission on its website and documents pertaining to
the internal operations of the Commission as soon as possible against the fact that many of the records submitted to the
FCIC contain proprietary business and financial information, bank examination information and other confidential
material, and that too soon a release of internal deliberative material may focus attention away from the Report.
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Congress has recognized the need to keep confidential information nonpublic. Below is a brief summary of
how records are handled by Congress and the executive branch.
Congressional Records
Records of the U.S. House of Representatives--including investigative records of House committees--remain
closed, by default, for 30 years.[1] Investigative records containing private personal information may remain closed
for 50 years.[2] If the Clerk of the House determines that the availability of any records “would be detrimental to the
public interest,” the records may remain closed even longer.[3]
Senate records remain closed, by default, for 20 years.[4] As in the House, investigative records containing
personal information are closed for 50 years,[5] and the Secretary of the Senate may close records for longer “in the
public interest.”[6]
Executive Records
Presidential and Vice-Presidential records in various categories may be sealed for a period of up to 12
years.[7] Among these categories is one for “trade secrets and commercial or financial information obtained from a
person and privileged or confidential.”[8]
Other Relevant Considerations
More generally, the National Archives maintains legal restrictions on the use of government records, by
default, for a period of 30 years.[9] The Archivist (consulting with the relevant agency head) may choose to maintain
restrictions for a longer period of time.[10] For example, we understand that bank examination records are maintained
as confidential by the National Archives for 50 years. In addition, as to FCIC records received from federal agencies
and departments, NARA has developed working relationships with many of the providers and may have independent
release arrangements with them. To the extent that the FCIC has not received prior clearance, such arrangements will
trump the FCIC's desires regarding release. [11]
The Freedom of Information Act, which promotes government transparency, contains exemptions to protect
certain types of information: properly classified material; limited kinds of purely internal matters; matters exempt from
disclosure by other statutes; trade secrets or commercial or financial information obtained from a person and privileged
or confidential; internal agency communications that represent the deliberative, pre-decisional process, attorney work
product, or attorney-client records; information that would be a clearly unwarranted invasion of personal privacy; law
enforcement records to the extent that one of six specific harms could result from disclosure; bank examination
records; and oil well and similar information.[12] The FCIC is not subject to FOIA but the exemptions provided in the
act are instructive as to the type of material we may wish not to immediately disclose.
The SEC regularly withholds disclosures pursuant to its FOIA compliance regulations,[13] including in the
context of investigating the matters similar to that which are the focus of the FCIC's investigations.

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Possible Alternatives for the FCIC’s Disclosure of its Archived Records
As alternatives are considered, please keep in mind that deciding to release business records under one schedule
does not necessarily require that internal Commission records be released at the same time, or that material received
from agencies be released at the same time as material received from private firms. Given that, here are some
suggestions:
Maintain proprietary records as confidential for 20 or 30 years in accordance with Congressional rules of
the House or Senate. Under these rules, the Commission would not release proprietary documentation for a default
period of 20 or 30 years. The Commission might adopt the House approach of 30 years because its authorizing statute
provides that it sits “in the legislative branch.” This is the preferred approach of counsel to a number of financial
institutions with which the FCIC has dealt.
Some counsel to the banks have suggested a release schedule of 12 years in accordance with the
Presidential Records Act. If the Commission does not wish to adopt the legislative standards in full for all of its
records, but does wish to preserve business confidentiality for more than five years, it could look to the Presidential
Records Act as a compromise. Under that approach, the Commission could seal records, including those containing
trade secrets or other commercial and proprietary financial information, for 12 years, thereby lessening the potential
impact for adverse consequences when release is finally implemented.
Seal records for at least five years. The 9/11 commission met as a group to determine the appropriate time
period before which archived records would be generally available. The 9/11 commission chose five years and the
FCIC, in some confidentiality agreements, has already indicated an intention to request a five-year
nondisclosure period with the National Archives. The 9/11 commission did not distinguish between material received
by the commission or created by the commission, although differing schedules were discussed. Thus all 9/11
commission archived documents started becoming available in 2009, approximately five years after its report was
released (subject to national security holdbacks). However, not all of the material has been processed and so the full
record is not yet available. There were those on the 9/11 commission who desired immediate release while others were
in favor of up to 10 years. They chose 2009 to begin releasing documents to get through two congressional cycles and
to get out of "the news cycle."
Regardless of when the Commission determines that FCIC records may be released in general, NARA will
attempt to review all of the Commission's documents and restrict release if the material is subject to a Confidentiality
Letter and if it clearly contains confidential material or trade secrets, or if it was received from an agency that is the
beneficiary of a statutory or regulatory nondisclosure protection. NARA has told us that it will make its job more
manageable if a longer time period is suggested by the FCIC. (It is my view that material which was neither used in the
Report, nor posted on the website, is not “part of any interim or final Report to the President and Congress, or [used] in
connection with any public hearings” (language allowing immediate release in many of the FCIC’s Confidentiality
Letters). This is also the view of the National Archives after the Commission's staff's meeting with them on September
23, 2010.)

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Conclusions
The Commissioners should decide when they want NARA to disclose archived materials after a full discussion
at the final Commission meeting.
It is possible for the Commissioners to adopt different time periods for release for different categories of
documents, so that third party documents could be released after X years, internal staff memoranda (for example PIRs)
after Y years, and all other materials (including e–mails and notes) after Z years.
So one option would be for the Commission to choose one disclosure period for everything, in which case I
would recommend no sooner than five years (to push the release out past the statute of limitations for lawsuits
involving the financial crisis). Alternatively, the Commission can create categories for release such as a five or ten
year release schedule for submitted documents, and a longer release period for internal Commission workings such as
staff notes, all e-mails and staff memorandum (including PIRs). For simplicity it would be best to choose one period
for everything, but the Commission may wish at least to carve out Commission e-mails for a longer retention period,
since such communications are internal deliberative matters.
As it makes its determination, the Commission should be mindful of its stated views in favor of transparency in
deciding what it posted on the website as too big a contrast with a longer nondisclosure period for the Commission's
own internal documents.
Finally, it is not unusual to provide for immediate access to archive materials for certain individuals. In this
regard I recommend that all of the Commissioners, Peter Kadzik ( outside counsel recently retained by the
Commission ), Gretchen Newson, Scott Ganz, Wendy Edelberg, Gary Cohen, Greg Feldberg, Chris Seefer, Maryann
Haggerty and Cassidy Waskowicz, be granted access to the Commission documents at the National Archives.

[1] House Rule VII(3)(b)(4).
[2] House Rule VII(3)(b)(2).
[3] House Rule VII(4)(a).
[4] S. Res. 474 § 2(a)(2), 96th Congo (1980).
[5] Id. § 2(a)(1).
[6] Id. § 3(b).
[7] 44 U.S.C. §§ 2204, 2207 (2006).
[8] Id. § 2204(a)(4).
[9] Id. § 2108.
[10] Id.
[11] As an example, assume that the FCIC has deposited with NARA a bank examination report as to which no consent to disclose has been sought or received. In
that case NARA may schedule release in 50 years, even if the FCIC chose a 5 year release schedule for its documents in general.
[12] 5 U.S.C. §§ 552(b)(4)-(7), 552(b)(4)(2006).
[13] 17 C.F.R. § 200.80(b)(4) (2010).

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Appendix A

FINANCIAL CRISIS INQUIRY COMMISSION
Records Management Policy.

1. Purpose. This guidance contains mandatory Financial Crisis Inquiry Commission ("FCIC" or the
"Commission") procedures for managing records effectively and efficiently throughout their life cycle. These
procedures will help FCIC successfully accomplish its mission, preserve official records in accordance with
applicable statutory and regulatory requirements, and promote access to information by FCIC staff and the
public, as appropriate.
2. Authority. The FCIC will comply with 44 U.S.C. Chapters 21, 29, 31, and 33 and 18 U.S.C. Chapter 101, and
regulations established by the National Archives and Records Administration (NARA) for managing Federal
records as stated in 36 C.F.R. parts 1220, 1222, 1228, 1234, and 1236.
3. FCIC Responsibilities under the Document Retention Policy. The Executive Director and General Counsel
shall establish and maintain an active, continuing program for the economical and management of the records of
the FCIC (44 U.S.C. § 3101).
4. Policy.
A. FCIC will establish effective management controls over the creation, maintenance, and use of records in
any medium, including electronic and microform media, throughout their life cycle.
B. The provisions of this directive are mandatory and are applicable to all Commissioners and staff of the
FCIC.
C. All Government employees and contractors are required by law to create and preserve records containing
adequate and proper documentation of the organization, functions, policies, decisions, procedures, and
essential transactions of the agency. In addition, Federal regulations govern the life cycle of these records: they
must be properly stored, preserved, and available for retrieval, and may be disposed of only in accordance with
NARA-approved records control schedules.
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D. FCIC will cooperate with NARA and other agencies in applying standards, procedures, and techniques to
improve the management of records; promote the maintenance of those records of continuing value
(permanent); and facilitate the segregation and disposal of temporary records.
E. All records, including electronic and other forms of information will be systematically identified and
appraised.
F. Records are broadly defined by statute and regulation to include all recorded information, regardless of
medium or format, made or received by the FCIC under Federal law or in connection with the transaction of
public business, either preserved or appropriate for preservation because of their administrative, legal, fiscal or
informational value. Records serve as FCIC's memory; they are of critical importance in ensuring that FCIC
continues to function effectively and efficiently.
G. FCIC officials are responsible for incorporating into the records of the Commission all essential
information on their major actions. Significant decisions and commitments reached orally or by informal
electronic mail will be documented and included in the record.
H. Minutes will be taken at all Commission meetings, and these, together with a copy of the agenda and all
documents considered at or resulting from such meetings, shall be incorporated into the FCIC's record and
made available for public inspection.
I. All Commission meetings shall be transcribed or recorded and the recording or transcript shall be
incorporated into the FCIC's records and made available for public inspection.
J. The FCIC will take appropriate action to ensure that all staff and Commissioners are capable of identifying
Federal records. For electronic mail systems, the FCIC will ensure that all staff and Commissioners are
informed of the potential record status of messages, transmittal and receipt data, directories, and distribution
lists.
5. Materials to be managed under this Policy.
A. Determining if Documents are Federal Records, Nonrecords or Personal Papers.
1. Identifying Federal records.
a. Documentary materials are records when they meet both of the following conditions:
i. They are made or received by an agency of the United States Government under Federal
law or in connection with the transaction of agency business; and
ii. They are preserved or are appropriate for preservation as evidence of agency organization
and activities or because of the value of the information they contain.
b. Record status. In addition to the two conditions stated above, use the following criteria as a guide
for determining whether or not a document, such as an email message, meets the statutory definition of
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a Federal record. If the material (whether a document, email, or other recorded information) meets any
of the following criteria, it is considered a Federal record and should be preserved in accordance with
procedures set forth below:
i. It contains unique, valuable information developed in preparing position papers, reports,
studies, etc.
ii. It reflects significant actions taken in the course of conducting FCIC business.
iii. It conveys unique, valuable information about FCIC programs, policies, decisions, or
essential actions.
iv. It conveys statements of policy or the rationale for decisions or actions.
v. It documents oral exchanges (in person or by telephone), during which policy is
formulated.
vi. It adds to the proper understanding of the formulation or execution of FCIC actions or of
FCIC operations and responsibilities.
vii. It documents important meetings.
viii. It makes possible a proper scrutiny by the Congress or other duly authorized agencies of
the Government.
ix. It protects the financial, legal, and other rights of the Government and of persons directly
affected by the Government's actions.
x. It documents the persons, places, things, or matters dealt with by the Commission.
xi. It documents the administration of the Commission, such as personnel, procurement,
payroll, budget, and other "housekeeping" operations (See General Records Schedules for
many types of administrative records created by the Commission).
c. Electronic mail messages. Messages created or received on electronic mail systems may meet the
definition of record in 44 U.S.C. § 3301.
d. Working files and similar materials. Working files, such as preliminary drafts and rough notes,
emails and other similar materials shall be considered Federal records if:
i. They were circulated or made available to employees, other than the creator, for official
purposes such as approval, comment, action, recommendation, follow-up, or to communicate
with FCIC staff about FCIC business; and

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ii. They contain unique information, such as substantive annotations or comments, that add to
a proper understanding of the FCIC's formulation and execution of basic policies, decisions,
actions, or responsibilities.
e. Documents circulated to one or more Commissioners, or from a Commissioner to staff. Drafts,
rough notes, emails, or other documents that are circulated to one or more Commissioners, or from a
Commissioner to staff, are presumed to be Federal records, because such documents may contain
unique information that adds to a proper understanding of the Commission's formulation and execution
of basic policies, decisions, actions, or responsibilities. The presumption that such documents are
Federal records shall be rebutted (and the document shall be considered a nonrecord) if the document
does not contain any information that adds to a proper understanding of the Commission's formulation
and execution of basic policies, decisions, actions, or responsibilities. See infra 5.A.2.b. For example, a
draft version of the final report circulated to Commission members, and the Commissioners' e-mails of
substantive changes back to the staff, would be a Federal record.
f. Documents received from Federal agencies and private and public companies. Records reviewed
by Commissioners and/or staff which are relevant to the mission of the Commission are Federal
records. The records may be referred to in emails, memoranda, white papers, briefings, or reports.
Documents received which are irrelevant or not used by the Commission or staff are nonrecords. The
FCIC must record all Federal records it receives.
2.

Identifying nonrecord materials.
a.
General guidance. Nonrecord materials are Government-owned informational documents
excluded from the definition of "records" or not meeting the requirements of that definition. (see 36
C.F.R. §1222.34(b)). Nonrecord material may be disposed of at any time after its purpose has been
served. Nonrecord material shall not be interfiled with temporary or permanent record material. The
following are specifically excluded from status as records by statute (see 44 U.S.C. § 3301):
i. Library and museum material (but only if such material is made or acquired and preserved
solely for reference or exhibition purposes);
ii. Extra copies of documents (but only if the sole reason such copies are preserved is for
convenience of reference).
b. FCIC policy on identifying nonrecords. Documents will generally be considered federal records,
except when, as set forth above at 5.A.l.e., documents that do not contain unique information that adds
to a proper understanding of the FCIC's formulation and execution of basic policies, decisions, actions,
or responsibilities. Nonrecord material may be disposed of at any time after its purpose has been
served.
i. Documents circulated among staff. Drafts, rough notes, emails and other documents
circulated internally (among staff only, as contrasted to such items circulated to the
Commissioners) may be nonrecords if they do not contain unique information that adds to a
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proper understanding of the FCIC's formulation and execution of basic policies, decisions,
actions, or responsibilities. (It is assumed that substantive actions of the FCIC will have to be
approved by the Commission, so the internal staff commentary on memoranda that do not go
to the Commissioners or are not released to the public will be considered nonrecords.)
Example: If a staff member circulates a memorandum among staff, and another staff member
makes substantive changes which are incorporated into the final memo, then the original
document is nonrecord because the unique information that adds to a proper understanding of
the FCIC’s actions is incorporated into the new document (also see iii below).
ii. Documents circulated to one or more Commissioners, or from a Commissioner to staff. As
provided above in 5.A.l.e., such documents are generally federal records. However, if the
document does not contain unique information that adds to a proper understanding of the
FCIC's formulation and execution of basic policies, decisions, actions, or responsibilities, it is
a nonrecord. Example: An email from a Commissioner to staff notifying them that she cannot
attend a meeting is a nonrecord.
iii. Commissioner and staff notes to self. Personal notes taken during the course of FCIC
activities and not circulated to other Commissioners or staff members are generally considered
nonrecords. Examples: A Commissioner's notes to self during a team meeting is a nonrecord,
but staff notes on a team meeting where official minutes are not kept would be a Federal
record as they represent the only source of information regarding the meeting. Similarly, staff
notes on a witness interview where an official transcript is not created would be a Federal
record.
3.

Identifying personal papers.
a. Personal papers are documentary materials of a private or nonpublic character that do not relate to,
or have an effect upon, the conduct of FCIC business. Personal papers are excluded from the definition
of Federal records and are not owned by the Government. Examples of personal papers include:
i. Materials accumulated by an official before joining Government service that are not used
subsequently in the transaction of Government business;
ii. Materials relating solely to an individual's private affairs, such as outside business pursuits,
professional affiliations, or private political associations that do not relate to FCIC business;
and
iii. Diaries, journals, personal correspondence, or other personal notes that are not prepared or
used for, or circulated or communicated in the course of, transacting Government business.
b. If information about private matters and FCIC business appears in the same document, the
document shall be copied at the time of receipt, with the personal information deleted, and treated as a
Federal record.
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c. Materials labeled "personal," "confidential," or "private," or similarly designated, and used in the
transaction of public business, are Federal records subject to the provisions of pertinent laws and
regulations. The use of a label such as "personal" is not sufficient to determine the status of
documentary materials in a Federal office.
d. If personal papers are maintained at the FCIC office, they shall be clearly designated as such and
filed or otherwise maintained separately from the official records of the office.
e. FCIC officials may not remove any Federal records from FCIC custody while removing their
personal papers and designated nonrecord materials. Before anyone departs from FCIC, they shall
consult with the Executive Director or General Counsel to ensure that official records that may be
included in personal papers are returned to FCIC files. The Executive Director or General Counsel
may approve a request from the departing official to take extra copies of work-related files if the
records do not contain national security-classified information or are otherwise restricted (e.g., Privacy
Act, etc.).
B.

The FCIC has been specifically excluded from the operation of the Federal Advisory Committee Act, thereby
eliminating any document management obligations under FACA.

Categories of Documents Deemed to be Federal Records
1.
Permanent records. Permanent records are those records that NARA appraises as having sufficient
value to warrant continued preservation by the Federal Government as part of the National Archives of the
United States because the records have continuing value as documentation of the organization and functions of
the FCIC or because the records document the nation's history by containing significant information on
persons, things, problems and conditions. FCIC records determined by the FCIC and approved by NARA to be
permanent must be available in a medium and format that conforms to the standards for permanent records.
FCIC permanent records shall be transferred to the National Archives of the United States at the time
designated on a NARA-approved Request for Records Disposition (SF 115). When permanent records are
transferred to National Archives, legal custody of the records is transferred to NARA at this time. NARA takes
measures needed to preserve the records and also provides reference service, including service to FCIC.
2.
Temporary records. Temporary records are records that are designated for either immediate disposal
or for disposal after a specified period of time or an event in accordance with a NARA-approved Request for
Records Disposition (form SF 115) or the General Records Schedule. Temporary Records may document
FCIC business processes or document legal rights of the government or the public, document government
accountability, or contain information of administrative or fiscal value. Records classified as temporary should
not be retained beyond their authorized retention period; nor shall they be destroyed or otherwise disposed of
prior to the end of their authorized retention period. Temporary records shall be maintained and disposed of
only in accordance with the following records control schedule:

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a. Transitory records. Records of short-term interest (180 days or less), including in electronic form
(e.g., e-mail messages), which have minimal or no documentary or evidential value. Included are such
records as:
i. Routine requests for information or publications and copies of replies which require no
administrative action, no policy decision, and no special compilation or research for reply;
ii. Quasi-official notices including memoranda and other records that do not serve as the basis
of official actions, such as notices of holidays or charity and welfare fund appeals, bond
campaigns, and similar records;
iii. Records documenting routine activities containing no substantive information, such as
routine notifications of meetings, scheduling of work-related trips and visits, and other
scheduling related activities;
iv. Suspense and tickler files or 'to-do' and task lists that serve as a reminder that an action is
required on a given date or that a reply to action is expected, and if not received, should be
traced on a given date shall be destroyed immediately, or when no longer needed for reference,
or under a predetermined schedule or business rule (e.g., implementing the auto-delete feature
of "live" electronic mail systems).
b. Non-transitory records. All temporary records that are not transitory records shall be retained until
the Commission ceases to exist. Non-transitory records shall be destroyed or transferred to GSA (as
may be required by GSA regulations) upon termination of the Commission, as appropriate, unless
those records otherwise should be retained with NARA as permanent Federal records pursuant to
Paragraph 5.A.1.
3.
Unscheduled records. Records whose final disposition has not been approved by NARA. Unscheduled
records are potentially permanent and must be treated as if they are permanent.
6.

Records Disposition Program
A.

Goals of the Program. An effective records disposition program is essential to successful records
management and is an integral part of the FCIC's information resources management program. The
goals of the records disposition program are to:
1. Maintain adequate and proper documentation and evidence of the FCIC activities for the time
required to meet programmatic needs.
2. Retire records requiring longer retention to economical storage facilities, providing savings in space
and equipment.
3. Preserve records of continuing or enduring value through transfer to the National Archives.

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B.
Records Disposition Authority. The following are the two basic types of records disposition authorities
for FCIC records:
1. NARA General Records Schedule (GRS). Disposition requirements for administrative or
housekeeping records that are common to most Federal agencies are listed in the GRS published by
NARA. The disposition requirements of the GRS, including records retention periods are mandatory
FCIC-wide unless an exception is obtained from NARA. The GRS does not cover all FCIC records.
2. FCIC Records Control Schedules. The GRS may be supplemented by FCIC-specific schedules
covering records that are unique to program administrations and staff offices. The records series or
systems contained in these records schedules are unique to their organization. Disposition instructions
and retention periods cited in these schedules are mandatory.
C.

Records Management
1. All records maintained by the FCIC shall be reviewed prior to the termination of the Commission.
Records that require review by NARA shall be collected at that point, or earlier. Permanent records
shall be designated as such and transferred to NARA.
2. Any unlawful or accidental destruction, defacing, alteration or removal of FCIC records must be
reported promptly to the Executive Director or General Counsel. The penalty for the willful and
unlawful destruction, damage, or alienation of Federal records is a fine under the provisions of Title
18, U.S.C., or 3 years in prison, or both (18 U.S.C. § 2071).

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Appendix B
Confidentiality Letters

TAB

NAME

Board of Governors of the Federal Reserve System- Ben Bernanke

OCC- Julie Williams

FDIC- Michael Bradfiel

FHF A- Alfred Pollard

DOL- Deborah Greenfield

CFTC- Dan Berkovitz

OTS- Deborah Dakin

DOJ- Ronald Weich

Treasury- George Madison

LexisNexis- Kara Hinrichs

HUD- Heather Kanovsky

FINRA- James Shorris

State Street- David Phelan

NY State Banking- Marjorie Gross

Goldman Sachs- Richard Klapper

Morgan Stanley- Raul Yanes

PIMCO- John Sopko

Vanguard- Nathan Will

Fannie Mae- Jeff Kilduff
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UBS- John Moon

Barclays- Caroline de Onis

S&P- Brian Markley

CT AG- George O'Connell

OH AG- Doreen Johnson

Joe Cassono- Jim Walden

AIG- Mitchell Berger

Cornwall Capital- William Gussman

Magnetar- Steven Ross

Moody's- Steven Ross

MKP- Patricia Alcamo

GSC Group- Daniel Ross

NIBC- Albert Lambert

Laura Schwartz- Robin Alperstein

Scion- Michael Burry

ACA- Nathan Erickson

UBS- Maite Quino

Alan Roseman- Robert Bennett

Charles Gates- Daniel Zinman

Markit- Mark Davidson

Eric Dinallo- John Kenny

TCW - Michael Cahill

Andrew Forster- David Brodsky

Joe Cassano- Jim Walden
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Credit Suisse- Daniel Zinman

Wachovia- Robert Kelner

NCRC- Josh Silver

Ally Financial- John Hromy

S&P (Special)- Brian Markley

PIMCO

Moody's (Special)- Sharon Nelles

Wendy Ruberti

Fremont General- Jim Caroll

NCUA- Robert Fenner

Maryland Insurance Administration- Neil Miller

David Sambo l- Walt Brown

ICAP North America Inc.

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Financial Crisis Inquiry Commission
Agenda Item 9 for Business Meeting of January 24, 2011
Additional voting procedures for remaining Commission actions
Note to Commissioners from Gary Cohen --The Chairman asked me to prepare two additional voting and
quorum procedures for consideration by the Commissioners to insure that matters in the next three weeks as the
Commission winds down can be handled expeditiously. I therefore changed the unanimous written consent to a
majority, and added to the existing 48 hour notice provision for a meeting (which could be exercised by either the
Chairman or Vice Chairman) to include e-mail voting in a manner similar to applied for the Report.
******************

The Commission’s Rules, Part III, Meetings, is hereby amended as follows:
F. Action Without Meeting (replaces existing F.).
Any action required or permitted to be taken by the Commission at a duly called meeting may be
taken without a meeting if a majority of the Commissioners shall consent in writing to such action. Such written
consent or consents shall be filed with the minutes of the proceedings of the Commission. Such action by written
consent shall have the same force and effect as a majority vote of such Commissioners at a duly called meeting.
G. Voting and Quorum By E-Mail (new provision)

1.
For the one or more meetings of the Commission called for the purpose of concluding the business of the
Commission after the date of adoption of this Amendment, either the Chairman or the Vice Chairman may call a
meeting and set the agenda, a date and schedule the beginning and end time for the meeting (which can either be in
person and/or by telephone) on no less than 48 hours notice (a "Concluding Meeting").
2.
The notice of a Concluding Meeting shall include a statement to the effect that email voting shall be available
and shall designate the Deputy General Counsel (cwaskowicz@fcic.gov) to be the recipient of the email votes
accepting or rejecting matters to be presented therein.
3.
Email votes for or against the matters noticed for the Concluding Meeting may be cast at any time during and
after the Concluding Meeting until the earlier of the time (i) all 10 Commissioners have either voted in person, by
telephone or by email, and (ii) 24 hours after the date and time the Concluding Meeting was scheduled to end.
4.
The email address from which the vote is cast by Commissioners shall be the either the one regularly used by
the Commission to send out "All Commissioners" email notifications, or the Commissioner's fcic.gov address. The
Deputy General Counsel shall confirm to all Commissioners the receipt of email votes.
5.
If there are fewer than 6 Commissioners present at the beginning of a Concluding Meeting, provisional votes
for or against matters under consideration may be called for and cast and the determination of whether a quorum
existed for the Concluding Meeting shall be deferred until the earlier of the time (i) 6 Commissioners shall be present
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or deemed present and (ii) time for email voting has passed. A Commissioner timely casting his or her vote by email
shall be deemed to have been present at all times during the Concluding Meeting in determining the existence of a
quorum.

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Full text of Financial Crisis Inquiry Commission : Documents Relating to the Financial Crisis of 2007-2009 : Notes from Financial Crisis Inquiry Commission Report Meeting, January 24, 2011

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