On Friday, Cause of Action appealed the Department of Justice’s (“DOJ”) determination that it has no publically releasable records relating to Cause of Action’s Freedom of Information Act (“FOIA”) request regarding DOJ’s settlement agreements with big banks in the wake of the 2008 financial crisis.

On June 16, 2015, Cause of Action sought records under FOIA to show whether DOJ exercised proper authority in executing its Residential Mortgage-Backed Securities (“RMBS”) settlement agreements, totaling $36.65 billion. Arguably, DOJ’s settlement agreements impermissibly settle claims of DOJ and other agencies, improperly distribute funds to unrelated third parties, and do not ensure that the funds DOJ and third parties receive are used to compensate bank victims. On July 29, DOJ stated that the agency could locate no responsive records and closed Cause of Action’s FOIA request.

Cause of Action’s appeal questions the adequacy of DOJ’s search for records and, alternatively, DOJ’s implicit determination that responsive records exist, but are not subject to the requirements of FOIA. Given the billion dollar price tag on these settlements and significant effort DOJ has expended to supposedly hold banks accountable, it is highly improbable that no records exist regarding DOJ’s power to make these deals obligating banks to pay billions to third parties in purported consumer relief efforts, which includes a mandatory minimum of $150 million in donations to certain non-profit organizations.

It follows that DOJ likely did not perform an adequate search, or is improperly excluding the records it found. Otherwise, DOJ did not have the power to enter into these billion dollar settlement agreements in the first place. That is an argument that Cause of Action has been exploring since DOJ announced these RMBS settlement agreements with considerable fanfare.

Cause of Action’s appeal asks DOJ to perform a reasonable search, adequately describe that search, and produce the responsive documents it identifies.