Royal Bank of Scotland: 2011 Enforcement Action

To Whom It May Concern:

Pursuant to the New York State Freedom of Information Law (1977 N.Y. Laws ch. 933), I hereby request the following records that were delivered by The Royal Bank of Scotland Group Plc, The Royal Bank of Scotland Plc (including its New York Branch), and The Royal Bank of Scotland NV (including its New York Branch) (collectively the "RBS Group") to the New York State Banking Department ("NYSBD"), and subsequently to the New York Department of Financial Services ("DFS"), between July 26, 2011, and December 31, 2012; per the Enforcement Action and Agreement between NYSBD and RBS Group, dated July 26, 2011 (available online at http://www.dfs.ny.gov/about/ea/ea110727.pdf):

1. All RBS Group program, plans, policies & procedures, and/or audit documents;
2. All RBS Group reports (including progress, monthly, interim and/or final report documents); and,
3. All RBS Group, Independent Firm and/or Consultant engagement letters, interim reports, and/or final reports involving RBS Group's compliance with OFAC requirements (as required by the Agreement).

The requested documents will be made available to the general public, and this request is not being made for commercial purposes.

In the event that there are fees, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 5 business days, as the statute requires.

Sincerely,

David Scantling

Re: Freedom of Information Law (“FOIL”) Appeal for DFS FOIL Tracking Number 2017-067582

Dear Mr. Bogdan:

I hereby appeal the denial of access regarding my FOIL request, identified as DFS FOIL tracking number 2017-067582, which was made on February 10, 2017, and sent to the New York Department of Financial Services (“DFS”).

The records that were denied include:

“[T]he following records that were delivered by The Royal Bank of Scotland Group Plc, The Royal Bank of Scotland Plc (including its New York Branch), and The Royal Bank of Scotland NV (including its New York Branch) (collectively the "RBS Group") to the New York State Banking Department ("NYSBD"), and subsequently to the New York Department of Financial Services ("DFS"), between July 26, 2011, and December 31, 2012; per the Enforcement Action and Agreement between NYSBD and RBS Group, dated July 26, 2011 (available online at http://www.dfs.ny.gov/about/ea/ea110727.pdf):
1. All RBS Group program, plans, policies & procedures, and/or audit documents;
2. All RBS Group reports (including progress, monthly, interim and/or final report documents); and,
3. All RBS Group, Independent Firm and/or Consultant engagement letters, interim reports, and/or final reports involving RBS Group's compliance with OFAC requirements (as required by the Agreement).”

You noted in your denial letter, dated February 23, 2017, that:

“New York’s Banking Law § 36.10 provides that reports of examinations and investigations and correspondence and memoranda concerning or arising out of such examinations and investigations are confidential and shall not be made public.”

However, § 36.10 also provides DFS with the following flexibility:

“[U]nless, in the judgment of the superintendent, the ends of justice and the public advantage will be subserved by the publication thereof, in which event the superintendent may publish or authorize the publication of a copy of any such report or any part thereof in such manner as may be deemed proper…”.

Based on this, I disagree with the denial and request a reconsideration based on the following reasons:

1. The requested records were delivered to DFS between four (4) to five (5) years ago. Because of their age, the public interest outweighs the confidential nature of these documents and they should be released.
2. However, if DFS determines that portions of the requested records still contain confidential information, I request that DFS redact those portions and release the remainder of the requested records to the public. For example, agencies within the U.S. Intelligence Community routinely redact highly classified documents and release them to the public (including documents classified "Top Secret/TS" and/or "Sensitive Compartmented Information/SCI").
3. Alternatively, if for some reason DFS determines that it is unable to release the requested records (in either full or redacted versions), I request that DFS release a listing of the denied records (including each respective document’s title, date, author, and how its disclosure would damage DFS’s interests).

As required by the Freedom of Information Law, the head or governing body of an agency, or whomever is designated to determine appeals, is required to respond within ten (10) business days of the receipt of an appeal. If the records are denied on appeal, please explain the reasons for the denial fully in writing as required by law.

In addition, please be advised that the Freedom of Information Law directs that all appeals and the determinations that follow be sent to the Committee on Open Government, Department of State, One Commerce Plaza, 99 Washington Ave., Suite 650, Albany, New York 12231.

Regards,

David Scantling