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By Matthew R. Lee, Video, story, FOIA docs

NEW YORK CITY, March 8 – The US Treasury Department is the next stage of a process to try to weaken and take the community out of the 1977 Community Reinvestment Act. Docket file here. The protagonist, akin to Scott Pruitt when he was at the US Environmental Protection Agency or Ryan Zinke at Interior, is the Office of the Comptroller of the Currency's (OCC's) Joseph Otting. Now Otting, in order to hinder Press coverage of how many banks he meets with by changing the OCC's long standing FOIA fee waiver policy, is saying he will make it harder to get CRA information too. This is the "new" OCC - see its letter on new policies, below.  And his OCC has said it will not consider public comments on "Business Combination" applications on which public comments have always in the past been considered, for example this one on a Long Island bank trying to take over Chinatown FSB, here. Now they write again, to pretend that it is not a new policy, and that the US Administrative Procedure Act does not apply to changes of agency policy, particularly to protect and censor for a new head of agency. These people are lawless. Inner City Press has again timely replied, this time also to the OCC's Stephen Lybarger and Barry Wides: "Good afternoon. Having not received a single page or day of the Comptroller's calendar which Inner City Press requested in January, in an abundance of caution and to ensure prompt receipt, we submit the below by your deadline, please confirm receipt:  Dear Ms. Merritt:     Inner City Press traditionally has received fee waivers from the Office of the Comptroller of the Currency under 5 U.S.C. § 552(a)(4)(A)(iii) and 12 C.F.R. § 4.17. Waivers were granted on the basis of similar or identical language contained in the instant Freedom of Information Act (FOIA) request, which is now the subject of OCC’s waiver rejection. I understand from your correspondence that you are not questioning Inner City Press’s eligibility for a waiver in this instance; rather, it appears you are requiring a more thorough enunciation of our eligibility than under prior requests. Inner City Press maintains its objection to OCC’s original determination, which has caused undue delay and prejudice to Inner City Press based on a previously unstated requirement to provide unprecedented detail in our waiver request. Nevertheless, below we provide additional detail to support our eligibility for a waiver.     Inner City Press Is Eligible for a Fee Waiver     In accordance with 5 U.S.C. § 552(a)(4)(A)(iii) and 12 C.F.R. § 4.17, Inner City Press is eligible for, and requests, a waiver of fees associated with processing its request for records. The subject of this request—calendars of an OCC senior official—concerns the operations of the federal government, and the disclosures will likely contribute to a better understanding of relevant government procedures by the general public in a significant way. Moreover, the request is primarily and fundamentally for non-commercial purposes.     Inner City Press requests a waiver of fees because disclosure of the requested information is “in the public interest because the disclosure . . . [i]s likely to contribute significantly to public understanding” of government operations or activities.[1] Specifically, the disclosure of the information sought under this request will document and reveal the activities of the federal government, including how high-ranking agency personnel are using their official time, with whom they are meeting to discuss official agency business, and whether and to what extent external interests are influencing administration policy decisions. The manner in which a senior official spends his time reveals agency priorities, enables the public to evaluate whether the official is abiding by ethical constraints on meeting with prior employers or clients, and reveals to degree of industry influence of political donor access to the agency. The value of such information speaks for itself. In addition, its value has been widely recognized. For example, in 2017, the New York Times identified an article based on then-EPA Administrator Scott Pruitt’s calendars as one of its most important stories of the year. See 2017: Our Reporters Reflect on Covering Washington and Politics, N.Y. Times, Dec. 29, 2017, available at https://www.nytimes.com/2017/12/29/us/politics/covering-washington-politics.html (citing E.P.A. Chief’s Calendar: A Stream of Industry Meetings and Trips Home, Eric Lipton, N.Y. Times, Oct. 3, 2017).     As discussed below, Inner City Press has both the ability and the intention to effectively convey the information it receives to the public.     Inner City Press does not have a commercial interest in the requested information. This request is primarily and fundamentally for non-commercial purposes. As a 501(c)(3) nonprofit, Inner City Press does not have a commercial purpose and the release of the information requested is not in its financial interest. Inner City Press’s mission is to engage in cutting-edge investigative reporting focused, fair lending, development, and government accountability advocacy. Core to its mission is to educate the public about government activities and to ensure the accountability of government officials. Inner City Press uses the information gathered, and its analysis of it, to educate the public through reports, press releases, or other media. It also makes materials it gathers available on its public website and promotes their availability on social media platforms. Inner City Press has demonstrated its commitment to the public disclosure of documents and creation of editorial content. For example, Inner City Press’s website contains dozens of articles describing the operations of the federal government from a unique perspective, including about the OCC:     ·        In SDNY FreddieMac Via FHFA of Otting Says Its Negligent Late Objection Is Fine As Otting Lawless: http://www.innercitypress.com/sdny1fhfahera030719.html.  https://theintercept.com/2018/09/29/joseph-otting-occ-onewest-bank-merger-cit/     Inner City Press’s website contains many more examples demonstrating its ability and intention to inform the public about government activities, including specifically related to how the subject of the instant FOIA request spent his time at OCC.     Accordingly, Inner City Press qualifies for a fee waiver.     Conclusion     Without withdrawing Inner City Press’s previously articulated objection to our original waiver denial, we submit the above information to satisfy the OCC’s newly-stringent standard for satisfying the waiver provisions of your regulations and the FOIA statute. There can be no doubt that Inner City Press qualifies for a waiver based on the foregoing. Moreover, Inner City Press’s long track record of fee waivers is further evidence of our current eligibility. In particular, we have demonstrated repeatedly our intent and ability to inform the public about government operations and that our requests for information are not primarily in our commercial interest." So far, only this, from the OCC's Kristin Merritt: "Mr. Lee.  I have received. Thank you." Watch this site. Here was their letter, dated March 5: "Dear Mr. Lee :   I sent you the following information in an email on 2/19/2019, and have not received a response.  Please respond as soon as possible, and by Friday, 3/8/2019 at the latest.   Good afternoon Mr. Lee.    I am writing to you regarding your correspondence of February 11, 2019, as it relates to your January 17, 2019 FOIA request number 2019-00104.  Although you request a fee waiver in connection with your FOIA request, you do not provide a sufficient justification for the granting of the waiver in either your January 17 or your February 11 correspondence.   I understand that in the past, the OCC has granted you fee waivers based on the same or similar language used in your most recent request, and that you may not have received an adequate explanation as to why your recent request was not being handled in a similar manner as past requests.  Please be aware that going forward, with respect to your case number 2019-00104 and all other requests made by any requester for any information, the OCC will only grant fee waivers on a case-by case basis when a requester has affirmatively demonstrated entitlement to a fee waiver in accordance with the requirements of the FOIA at 5 U.S.C. 552(a)(4)(A)(iii).  This approach is in accordance with the FOIA statute and DOJ guidance.  In applicable guidance, DOJ has stated:  “The Department of Justice stands committed to encouraging agencies to waive fees under the FOIA whenever the statutory fee waiver standard is met. By the same token, of course, agencies also are expected to respect the balance drawn in the statute, safeguarding federal funds by granting waivers or reductions only where it is determined that the statutory standard is satisfied.”  see FOIA Update, Vol. VIII, No. 1 (“OIP Guidance: New Fee Waiver Policy Guidance”) (emphasis added).  Moreover, the OCC’s approach is consistent with case law, which provides that each fee waiver request is considered on a case-by-case basis because each request involves varied information.  See Media Access Project v. FCC, 883 F.2d 1063 (D.C. Cir 1989).  Additionally, the OCC is not bound to grant a fee waiver to a requester in a particular case just because it has granted the requester waivers in the past.  See e.g., Judicial Watch Inc., v. DOJ, No. 99-2315, 2000 WL 33724693 at *5  (D.D.C. Aug. 17, 2000); Judicial Watch, Inc., v. DOJ, No. 97-2089, Slip op. at 14 (D.D.C. July 14, 1998).     The burden for establishing that a fee waiver is justified is on the requester.  See Friends of the Coast Fork v. U.S. Dep’t of the Interior, 110 F.3d 53, 55 (9th Cir. 1997).  Thus, in order for the OCC to determine whether your request meets the requirements for a fee waiver, you must demonstrate that the OCC’s disclosure in response to your request meets the standard set forth in Section 552(a)(4)(A)(iii).  You may wish to consult DOJ’s guidance at https://www.justice.gov/oip/blog/foia-update-new-fee-waiver-policy-guidance  in formulating your justification.  Until these issues are resolved with respect to your fee waiver, the clock is stopped on your FOIA request.       Thank you for your prompt attention to this matter.   Best,                    Kristin Merritt  Special Counsel Administrative & Internal Law  Office of the Comptroller of the Currency  400 7th St., S.W.  Washington, D.C.  20219" Under Otting, who is throwing up roadblocks to the release of his calendar under the Freedom of Information Act (see below), "the OCC is instructing examiners to investigate some of the claims separately, rather than addressing them within the merger-approval process.  “We require a certain level of detail and specificity in comments,” Comptroller of the Currency Joseph Otting said in a written statement. 'The changes ensure that concerns are validated by exam staff who are best positioned to review [their] merits.'"

This is a backdoor safe harbor. Since 98% of banks are rated Satisfactory or Outstanding (including those which later are found guilty of discrimination and redlining), to discount comments that are not "validated" by these bogus and inflated rating is regulatory malpractice. Perhaps this is why Otting is hiding his calendar; perhaps the WSJ's Lalita Clozel will dig further. As to the Federal Reserve, Inner City Press has been informed of a memo by a major law firm which has hired and used former Fed Legal Division staff bragging about the fast Fed approvals it is receiving. We'll have more on this - including on BB&T / Suntrust, see here.

On September 12 Fair Finance Watch (and on FOIA, Inner City Press) commented to the OCC, here. On January 16 Inner City Press asked the OCC on the expedited basis for records to disclose Otting's meetings with the banking industry and others.  But in a letter dated January 31, the OCC for the first time in years denied Inner City Press' fee waiver request on this one request, despite the request using the same language as requests the OCC has granted for Inner City Press repeatedly. The only difference is the subject of the FOIA request: Otting. This is an abuse of power. Inner City Press has appealed: "Inner City Press is appealing Mr Frank Vance's letter dated January 31, 2019 which denies, for the first time in years, Inner City Press' request for a fee waiver - because the request concerns Comtroller Otting and his schedule. Inner City Press is a media that covers the OCC... it seeks this information to educate the public about the operations of the OCC. The language of the fee waiver request was the same as the OCC has requested granted - now suddenly a new standard is applied, due to the subject matter of the request. This is unacceptable. The denial letter doesn't even inform of the right to appeal, and the request number is not listed in our account - thereby blocking submission of the appeal. We are submitting under the number of another of our 2019 requests on which fee waiver WAS granted, on the same language. We ask for expedited ruling on this appeal, and an explanation." The OCC has turned around to say it will now deny FOIA fee waiver requests for banks' merger applications and CRA plans: "Good afternoon Mr. Lee.      I am writing to you regarding your correspondence of February 11, 2019, as it relates to your January 17, 2019 FOIA request number 2019-00104.  Although you request a fee waiver in connection with your FOIA request, you do not provide a sufficient justification for the granting of the waiver in either your January 17 or your February 11 correspondence.      I understand that in the past, the OCC has granted you fee waivers based on the same or similar language used in your most recent request, and that you may not have received an adequate explanation as to why your recent request was not being handled in a similar manner as past requests.  Please be aware that going forward, with respect to your case number 2019-00104 and all other requests made by any requester for any information, the OCC will only grant fee waivers on a case-by case basis when a requester has affirmatively demonstrated entitlement to a fee waiver in accordance with the requirements of the FOIA at 5 U.S.C. 552(a)(4)(A)(iii).  This approach is in accordance with the FOIA statute and DOJ guidance.  In applicable guidance, DOJ has stated:  “The Department of Justice stands committed to encouraging agencies to waive fees under the FOIA whenever the statutory fee waiver standard is met. By the same token, of course, agencies also are expected to respect the balance drawn in the statute, safeguarding federal funds by granting waivers or reductions only where it is determined that the statutory standard is satisfied.”  see FOIA Update, Vol. VIII, No. 1 (“OIP Guidance: New Fee Waiver Policy Guidance”) (emphasis added).  Moreover, the OCC’s approach is consistent with case law, which provides that each fee waiver request is considered on a case-by-case basis because each request involves varied information.  See Media Access Project v. FCC, 883 F.2d 1063 (D.C. Cir 1989).  Additionally, the OCC is not bound to grant a fee waiver to a requester in a particular case just because it has granted the requester waivers in the past.  See e.g., Judicial Watch Inc., v. DOJ, No. 99-2315, 2000 WL 33724693 at *5  (D.D.C. Aug. 17, 2000); Judicial Watch, Inc., v. DOJ, No. 97-2089, Slip op. at 14 (D.D.C. July 14, 1998).      The burden for establishing that a fee waiver is justified is on the requester.  See Friends of the Coast Fork v. U.S. Dep’t of the Interior, 110 F.3d 53, 55 (9th Cir. 1997).  Thus, in order for the OCC to determine whether your request meets the requirements for a fee waiver, you must demonstrate that the OCC’s disclosure in response to your request meets the standard set forth in Section 552(a)(4)(A)(iii).  You may wish to consult DOJ’s guidance at https://www.justice.gov/oip/blog/foia-update-new-fee-waiver-policy-guidance  in formulating your justification.  Until these issues are resolved with respect to your fee waiver, the clock is stopped on your FOIA request.     Best Regards,  Kristin Merritt      Kristin Merritt  Special Counsel Administrative & Internal Law  Office of the Comptroller of the Currency  400 7th St., S.W.  Washington, D.C.  20219." We'll have more on this. And here's the request the OCC is delaying on:  "Dear OCC FOIA Officer: Inner City Press / Fair Finance Watch (ICP) makes this request for records pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, and OCC regulations. ICP requests copies of records sufficient to show all of Comptroller Otting's scheduled meetings, appointments, and scheduled events from the date he became Comptroller to the date of your response including but not limited to Outlook calendar entries and daily briefing books for Comptroller Otting on those dates... ICP requests that you expedite the processing of this request. There is media interest and there exist possible questions concerning the OCC's integrity, which affect public confidence. See e.g. this article and the CRA ANPR since." We'll have more on this. Otting's OneWest colleague and now boss, US Treasury Department Steve Mnuchin on December 22 from Cabo called six big US banks: "Brian Moynihan, Bank of America; Michael Corbat, Citi; David Solomon, Goldman Sachs; Jamie Dimon, JP Morgan Chase, James Gorman, Morgan Stanley; Tim Sloan, Wells Fargo. The CEOs confirmed that they have ample liquidity available for lending to consumer, business markets, and all other market operations. He also confirmed that they have not experienced any clearance or margin issues and that the markets continue to function properly.

Tomorrow, the Secretary will convene a call with the President’s Working Group on financial markets, which he chairs. This includes the Board of Governors of the Federal Reserve System, the Securities and Exchange Commission, and the Commodities Futures Trading Commission. He has also invited the office of the Comptroller of the Currency." That's Joseph Otting, with whom Mnuchin worked at and on selling OneWest Bank to CIT Group, complete with falsified pro-merger comments Inner City Press reported on. Otting's OCC is in a process to try to weaken and take the community out of the 1977 Community Reinvestment Act. Docket file here. The protagonist, akin to Scott Pruitt when he was at the US Environmental Protection Agency, is Comptroller of the Current Joseph Otting. On September 12 Fair Finance Watch (and on FOIA, Inner City Press) commented to the OCC, here. At the November 19 deadline, not (yet) posted was Inner City Press' November 17 fourth comment, just as Otting's OCC absurdly waited 13 days to try to rule it does not have to consider Fair Finance Watch's comments on WSFS Bank. But Inner City Press has timely protested WSFS to the Federal Reserve - and has now found out that WSFS is even trying to withhold its CRA information from the public, photo here. So Inner City Press has submitted this Freedom of Information Act request: " This is a FOIA request for the all withheld portions of the applications by WSFS to acquire Beneficial, including but not limited to presumptively mis-labeled “Confidential” exhibits about WSFS's CRA program (“Confidential” Exhibit 9), (Beneficial's subsidiaries (“Confidential” Exhibit 3), Board of Directors resolutions, due diligence (“Confidential” Exhibit 10), operating economy / cost savings (there are branch closings projected), names of prospective managers (ages, requested on application, apparently not provided), and for all records reflecting FRS communications with WSFS or Beneficial or their affiliates for the past twelve (12) months." A fifth comment submitted including that "the OCC is already undermining CRA. Our comments to the OCC on WSFS - Beneficial have yet to be acted on. That comment was submitted on November 6. Now on November 19, two weeks later, the OCC has tellingly said it will not consider it - despite a Federal Reserve Board comment period on the same transaction remaining open until at least November 27. The OCC's attempt to ignore substantive criticism of some banks' performance, while Comptroller Otting previously solicited false comments support his OneWest Bank, are a symbol all what is wrong with this process, and today's OCC.
   While if the past is any guide the OCC will forwarded ICP's comment to the FRB by the FRB, we note in this connection that WSFS' comments on the ANPR favor, as Otting clearly does, dulling the LMI focus of CRA to make it easier for banks.  We oppose all of this.
   Since October 11 the OCC has denied expedited process to our FOIA request(s) for records essential in order to comment on this proposal. OCC Deputy Chief Counsel Charles Steele on November 7 wrote on that “merger between One West Bank and CIT Bank. You do not demonstrate how your request concerns a matter of current exigency to the American public or how a delay in the OCC's response to your request would compromise a significant recognized interest.” Now Inner City Press has submitted an unquestionably timely comment to the Federal Reserve Bank of Philadephia, with more for example that "In the Salisbury MD-DE MSA in 2017, WSFS for conventional home purchase loans based on its outreach got two applications from African Americans - and denied them both. It got two from Latinos and denied. From whites it approve seven of ten applications." And see below. Given the false commenting issues in the OneWest - CIT proceeding, and the importance of CRA to our communities, this denial is insulting and further makes this ANPR commenting process, ostensibly closing now on November 19, illegitimate."  Among them, as reviewed by Inner City Press: Fulton Financial, on which ICP has previously comment, perhaps understandably given its lending record urges “De-couple CRA from Fair Lending... CRA and Fair Lending have complementary but different social and policy objectives. CRA ratings should not be downgraded based on the results of a bank's fair lending performance and exam results.” FFW disagrees: racial discrimination in lending means a bank is NOT meeting the credit needs of its entire community.

The ABA writes that “'needs to improve' CRA rating and should clarify that such a rating will not be a de facto bar to opening new branches or engaging in other activities requiring regulatory approval.” FFW disagrees: a bank with a rare NTI (or Substantial Non-compliance) record should be barred from merging or expanding. This is the enforcement mechanism of CRA.

Th Association of Military Banks of America urges, “Because the financial challenges military communities face are less dependent on income distinctions than in geographically-defined communities, we recommend that all financial services to the military community should be presumed to qualify for CRA credit, regardless of whether the recipient fits within a classic LMI category.” FFW disagrees with this blurring of the lines. Loans to five star generals are not CRA loans.

Heartland Tri State Bank says “Any bank with assets less than One Billion Dollars should not be subject to CRA examinations.” FFW disagrees, precisely because such banks play (or don't play) such a role in the economies of some communities.

   Meanwhile the OCC is already undermining CRA.  The OCC has denied expedited process to our FOIA request(s) for records essential in order to comment on this proposal. OCC Deputy Chief Counsel Charles Steele on November 7 wrote on that “merger between One West Bank and CIT Bank. You do not demonstrate how your request concerns a matter of current exigency to the American public or how a delay in the OCC's response to your request would compromise a significant recognized interest.” Given the false commenting issues in the OneWest - CIT proceeding, and the importance of CRA to our communities, this denial is insulting and further makes this ANPR commenting process, ostensibly closing on November 19, illegitimate, we contend - while joining in NCRC's comments, see below. On November 6 at 5 pm, before any midterm elections results came in, Fair Finance Watch filed comments at deadline with Otting's OCC, on Wilmington Savings Fund Society (WSFS) Bank's application to acquire Beneficial Bank in Philadelphia and closed 30 branches, despite WSFS' disparate lending record: "This is a timely first comment opposing and requesting an extension of the OCC's public comment period on the Application by WSFS Bank to Acquire Beneficial Bank. In the the Wilmington MSA in 2017, WILMINGTON SAVINGS FUND SOCIETY, FSB (WSFS Bank) had a denial rate for the home purchase loan applications of African Americans that was 5.48 times higher than for whites - an outrage, significantly more disparate that other banks in the market. For Latinos, WSFS Bank was and is worse, with a denial rate for home purchase loans 7.43 times higher for Latinos than for whites.
   This is not a lending record and pattern to impose on Philadelphia. And consider this: if approved, WSFS “plans to close 30 WSFS and Beneficial Bank offices, a quarter."
   See, “WSFS bosses Mark Turner and Rodger Levenson plan to close 30 of the combined companies’ 120 branches and eliminate around 350 of their 2,100 jobs.”
   There is more to say, and there are more markets. But concerned as we are about the OCC seeming to take outrageous disparities even less seriously than before, we ar timely submitting this one, for your action. This is systematic redlining; this proposed acquisition could not legitimately be approved and WSFS Bank should be referred for prosecution for redlining by the Department of Justice and the CFPB. But will today's OCC do it? The branch closings provides a second ground for the requested evidentiary hearing." What will Otting's OCC do? On October 17, yet more on Otting's assault on the CRA became known. He has taken to devaluing or lumping together and not putting in the docket or online the comments of community groups, calling them mass comments or form letters - when he himself not only solicited mass comments for the OneWest - CIT merger from which he personally profited, but even got some fraudulent comments. Inner City Press / Fair Finance Watch submitted the documents obtained under FOIA into the record before the OCC. Now, on a ten day delay, the OCC has put into the file a cursory memo of its October 12 meeting with bankers ranging from Citigroup (Lloyd Brown and Devika Murray Bacchus), Capital One (James Matthews), TIAA and Regions to Wells Fargo, Fifth Third, Huntington and PNC, among others. This has the trappings of transparency, but none of the substance. Topics of discussion are purportedly listed - but what was said, particularly by the OCC participants: Grovetta Gardineer, Senior Deputy Comptroller
for Compliance and Community Affairs
Beverly Cole, Deputy Comptroller for
Compliance Supervision
Donna Murphy, Deputy Comptroller for
Compliance Risk Policy
Allison Hester-Haddad, Counsel, Chief
Counsel’s Office
Daniel Sufranski, Law Clerk, Chief Counsel’s
Office. 

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