Richard Nabrams v. United States of America Department of Treasury, Office of the Comptroller of the…

* Pursuant to 5th Cir. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5th Cir. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
June 11, 2007
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-10811
RICHARD N ABRAMS,
Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA DEPARTMENT OF TREASURY, OFFICE OF
THE COMPTROLLER OF THE CURRENCY,
Defendant-Appellee.
Appeal from the United States District Court for the
Northern District of Texas, Dallas
3:05-CV-2433
Before JONES, Chief Judge, and BENAVIDES and STEWART, Circuit
Judges.
PER CURIAM:*
This case arises from the Office of the Comptroller of the
Currency’s (“OCC”) investigation of Surety Bank and appellant
Richard Abrams, and concerns what is excluded from disclosure under
exemption 8 of the Freedom of Information Act (“FOIA”), 5 U.S.C. §§
552 et seq. Abrams challenges the district court’s grant of the

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1 Abrams had the opportunity to review the Order, without
copying it, during a deposition taken by the OCC on August 16,
2005. The OCC is required to show an order of investigation to any
person from whom it requests or compels testimony during the course
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OCC’s motion for summary judgment. We affirm.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The OCC is the bureau of the Department of Treasury that
supervises and regulates banks organized under the National Bank
Act. In January, 2005, the OCC conducted a regularly scheduled
examination of Fort Worth, Texas-based Surety Bank. It discovered,
among other irregularities, that the bank had not charged Abrams,
the bank’s former Chairman and CEO, the normal transaction fee for
executing wire transfers. The OCC prepared an examination report
(“the Report”) in March, 2005, notified Abrams that it was
conducting a formal investigation of him, and issued an Order of
Investigation (“the Order”) on June 9, 2005. Under the OCC’s
regulations, the Order, as well as any materials developed in
connection with it, is confidential.
Abrams requested a copy of the Order in July, 2005, and the
OCC denied his request. On August 2, 2005, Abrams filed a formal
request for a copy of the Order pursuant to the FOIA. The OCC
again denied his request, stating that the Order is exempt from the
FOIA’s production requirements. Abrams formally appealed the OCC’s
denial, and on November 18, 2005, the OCC denied his appeal on the
basis that the Order is excluded from production under exemption 8.
5 U.S.C. § 552(a)(4)(B).1 This lawsuit followed, the case was

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of a formal investigation. 12 C.F.R. § 19.183(a).
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referred to a magistrate judge, and the OCC moved for summary
judgment. After inspecting the Order in camera, the magistrate
judge concluded that the motion for summary judgment should be
granted because the Order is related to the Report, thus falling
within the scope of exemption 8. The district court adopted the
magistrate judge’s report, granted the motion for summary judgment,
dismissed the case, and entered final judgment. Abrams appeals.
II. STANDARD OF REVIEW
We review the district court’s grant of summary judgment de
novo. Shell Offshore Inc. v. Babbitt, 238 F.3d 622, 627 (5th Cir.
2001). “Summary judgment is appropriate if the record shows ‘that
there is no genuine issue as to any material fact and the moving
party is entitled to judgment as a matter of law.’” Id. (quoting
FED. R. CIV. P. 56(c)).
III. DISCUSSION
Courts must narrowly construe FOIA exemptions in favor of full
disclosure. Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976);
Fed. Labor Relations Auth. v. United States Dep’t of Def., 975 F.2d
1105, 1111 (5th Cir. 1992). When interpreting a statute, the
“plain meaning” of the statute binds a court. United States v. Ron
Pair Enters., 489 U.S. 235, 241 (1989).
The FOIA requires government agencies to disclose documents,
unless the agencies can demonstrate that the documents at issue

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fall within the scope of one of the nine exemptions enumerated in
§ 552(b) of the FOIA. Exemption 8 provides that the FOIA does not
apply to “matters that are . . . contained in or related to
examination . . . reports prepared by . . . or for the use of an
agency responsible for the regulation or supervision of financial
institutions.” 5 U.S.C. § 552(b)(8). Abrams argues that the
district court erred in finding that the Order falls within the
scope of Exemption 8.
First, Abrams argues that it is not enough that the Order is
related to the Report, and that instead, a direct connection must
be shown between the contents of the Report and the contents of the
Order. This argument, however, runs afoul of the admonition that
courts “not look beyond the words of a statute if those words are
rational and unambiguous.” In re Hammers, 988 F.2d 32, 34 (5th
Cir. 1993). The statute never mentions contents, and only requires
that a matter be related to the Report in order to be exempt from
production. See Consumers Union of United States, Inc. v. Heimann,
589 F.2d 531, 532–33 (D.C. Cir. 1978) (finding that exemption 8
excludes documents “relating to the extent of compliance” by
national banks with Consumer Credit Protection Act from
disclosure).
If Congress meant to require a direct connection between the
matter exempted and the Report, it could have easily accomplished
that by specifying as much. See, e.g., 7 U.S.C. § 6311 (e)(2)(B)

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(specifying no disclosure of certain financial information unless
“directly related” to certain matters). Therefore, we only need to
find that the Order was related to the Report. In addition to the
magistrate judge’s in camera review of the Order, the OCC’s sworn
affidavit and the chronology of the investigation support such a
finding.
Abrams also argues that the term “matters” cannot mean
“documents,” and instead must solely mean “information,” because it
is factually impossible for a document to be “contained in” a
report. Exemption 8, however, only requires that the matters be
“contained in or related to” the Report. (emphasis added). The
presence of the conjunction “or,” instead of “and,” suggests that
Congress meant “matters” to be a flexible term that can include
both documents and information. Abrams’ other arguments are
similarly unavailing.
Abrams argues that the district court erred by broadly
interpreting “examination report” to not only include the physical
report, but also the period of examination. However, we find no
such interpretation in the court’s opinion. Abrams also argues
that other federal banking agencies’ policies of disclosing similar
investigative orders contradict the district court’s holding, but
those policies only attest to the discretion that the FOIA affords
to individual agencies. Similarly, Abrams argues that the district
court should have required that the OCC redact any confidential

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information and disclose the remaining, non-exempt Orders. Under
exemption 8, however, the entire Order is rendered confidential.
Finally, Abrams argues that the district court abused its
discretion by not conducting in camera review of the OCC’s Report
in conjunction with the Order. As stated above, however, exemption
8 does not require a direct relationship between the two documents.
The court inspected the Order, and had ample other evidence that
the two documents were related, including the OCC’s affidavit and
other information concerning the examination and its discoveries.
The court did not abuse its direction by not also inspecting the
Report in camera.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
judgment.

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