Last night, on its Web site, The New York Times released a 5,000 word piece, by Gretchen Morgensen and Jo Becker, on Timothy Geithner’s close relationships with Wall Street while president of the New York Federal Reserve board. And alongside, they ran another whopper: Geithner’s 2007-2009 calendar.
As one might expect of any 658-page pile of schedules, its entries—as studded as they may be with finance’s biggest names—soon begin to look dull. But it’s a bit extraordinary that the document came out at all.
That’s because the New York Federal Reserve Bank, like its institutional siblings across the country, has long maintained that it is not subject to the Freedom of Information Act. (Bloomberg, in an ongoing suit, is contesting that claim.)
“The regional feds are private corporations. They’re not government agencies,” says Times Sunday business editor Tim O’Brien, who edited the piece.
Still, if you, as the Times did, submit a request to the New York Federal Reserve Bank, they just may honor it under provisions in their “operating bulletin,” an internal set of regulations that govern the bank’s operations.
“If you’re going to accept the proposition that this is a private company, filing a FOIA is no different than calling a private bank and asking for the chairman’s schedule,” says David McCraw, a New York Times lawyer. “The issue with these sort of private rules is how do you enforce them. You can’t, in any official way.”
Often, requestors must sue to compel the release of closely held documents. In fact, McCraw is currently litigating a major FOIA lawsuit with the Washington-based Federal Reserve Board of Governors (which is unambiguously subject to FOIA) over a broader, thwarted request for documents related to the bailout.
Luckily, in the calendar’s case, the New York Fed was extremely cooperative. The Times made its formal request on January 9, and the bank provided the documents on February 19.
“What was interesting was how responsive they were on this particular piece,” says McCraw. “We were delighted.”
“It came in completely unredacted,” says O’Brien. “There were cell phone numbers unredacted, home addresses unredacted.”
But in a letter Fed lawyer Michael Held provided to the Times along with the calendar, he took pains to note that the agency was not filling a formal FOIA request:
Please note that the Federal Reserve Bank of New York (the “Bank”) is not subject to FOIA but attempts to comply with the spirit of FOIA when responding to requests such as yours.
The operating bulletin, provided by the Bank to CJR as a pdf, goes even further:
The Federal Reserve Bank of New York is not an “agency” as that term is defined in the Act and is, therefore, not subject to its provisions. The Bank is a private corporation, whose stock is owned by the member banks within its district. The management of the Bank’s business and day-to-day activities is exercised by the Bank’s officers and directors. None of the Bank’s directors or employees are government officials or employees. Its employees are not within the Federal Civil Service laws. Moreover, the Bank receives no appropriated funds from the Federal government.
The operating bulletin was written in 1994, and omits any mention of making documents available in electronic formats. (FOIA was amended to that end in 1996.) On its Web site, the New York Fed maintains no information about its FOIA policy. In fact, they’d rather you didn’t call it that.
“We’re very careful to call it a ‘disclosure of information’ policy. It’s not, as a technical matter, a freedom of information policy,” said a bank official, who was made available only on the condition they not be identified.
ADDENDUM (4/28/09): On April 2, The Washington Post, in cooperation with ProPublica, published an article including information from Geithner’s calendars. According to an email from ProPublica managing editor Stephen Engelberg, reporter Jeff Gerth obtained the records via a request placed with the New York Federal Reserve Bank on February 6, which the bank fulfilled on February 20.