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[¶8027] In the Matter of Bay Bank & Trust Co., Panama City, Florida, Docket No. FDIC-92-313b (5-13-93).
FDIC Board rules that ALJ exceeded his authority in excluding the public from a portion of a hearing, but that he could properly seal some documents if disclosure would be contrary to the public interest. Improper exclusion of the
{{7-31-93 p.I-86}}public from hearing may be remedied by making a transcript public, it is not necessary to have witnesses repeat their testimony in an open forum. The Board denies respondents' request for a private hearing. It finds that privacy concerns of institution-affiliated parties (officers, directors, major shareholders) do not warrant a private hearing.
[.1] Practice and Procedure—Private Hearing—ALJ Authority
An administrative law judge lacks authority to exclude the public from hearings. The remedy for improperly closing a portion of a hearing is to release a transcript; it is not necessary to have witnesses report their testimony in an open forum.
[.2] Practice and Procedure—Protective Orders
The purpose of a protective order is to limit the public disclosure of certain documents; and administrative law judge may properly permit the filing of documents under seal if disclosure would be contrary to the public interest.
[.3] Practice and Procedure—Hearings—Public or Private—Privacy of Bank Insiders
A private hearing is granted only where it is required for the public interest, to protect the safety and soundness of the bank. Privacy concerns of institution-affiliated parties (officers, directors, major shareholders), who prefer not to have public disclosure of their transactions with the bank, do not meet this test.
In the Matter of
BAY BANK & TRUST CO.
PANAMA CITY,FLORIDA
(Insured State Nonmember Bank)
DECISION AND ORDER ON
REQUEST FOR PRIVATE
HEARING
FDIC-92-313b
BACKGROUND
On November 13, 1992, the Federal Deposit Insurance Corporation ("FDIC") issued a Notice of Charges and of Hearing ("Notice") against Bay Bank & Trust Co., Panama City, Florida ("Bank" or "Respondent"), seeking the issuance of an Order to Cease and Desist, pursuant to section 8(b) of the Federal Deposit Insurance Act ("FDI Act"), 12 U.S.C. § 1818(b). The Notice alleges that the Bank engaged in unsafe or unsound banking practices and violated Regulation O of the Board of Governors of the Federal Reserve System ("Regulation O").1 The Notice charges that the Bank followed hazardous lending practices; maintained an excessive volume of poor quality or adversely classified loans; engaged in practices which produced inadequate operating income; failed to provide and maintain an adequate allowance for loan losses; operated with inadequate liquidity; operated with inadequate capital for the kind, quality, and volume of assets held; and operated with management which failed to properly supervise its practices and operations.
At the commencement of the February 16, 1993 hearing, Administrative Law Judge Walter J. Alprin ("ALJ") issued an Order for the Handling of Confidential Information ("Protective Order") consented to by the parties, which addressed the handling of certain information contained in FDIC and State Reports of Examination and Uniform Bank Performance Reports concerning the Bank. Specifically, the Protective Order, at 1–2, states that portions of these documents, including the names of all persons whose identities are not material and relevant to the proceeding, shall be withheld from public dissemination. On the issue of public access to the hearing, the Protective Order states that the ALJ may, on motion by a party, exclude from a portion of the hearing persons not subject to the Protective Order. Granting a joint motion from the parties, the
1 The Notice cites violations of section 215.4(a) of Regulation O, 12 C.F.R. § 215.4(a), made applicable to the Bank pursuant to section 337.3 of the FDIC's Rules and Regulations, 12 C.F.R. § 337.3. The Notice also charges violations of sections 22(h)(3) and 23A(c)(1) of the Federal Reserve Act, 12 U.S.C. §§ 375b(3) and 371c(c)(1), made applicable to the Bank pursuant to sections 18(j)(1) and (2) of the FDI Act, 12 U.S.C. §§ 1828(j)(1) and (2).
{{7-31-93 p.I-87}}ALJ barred the public from the first two days of the hearing during which testimony was given by a bank examiner, an Assistant Regional Director (Supervision) of the FDIC's Atlanta Regional Office, and the Chief of the Bureau of Bank Examiners for the State of Florida.2
Subsequently, on February 18, 1993, FDIC Enforcement Counsel requested that the Protective Order be withdrawn and that he be allowed to represent his entire case in a public forum. The Bank objected and the ALJ denied FDIC Enforcement Counsel's request, stayed the proceeding, and allowed Respondent an opportunity to file a Motion addressing his concerns. Respondent filed a Motion for Protective Order or, in the Alternative, for a Private Hearing ("Motion"). The Motion states that due to other controversies involving Respondent which are unrelated to this proceeding, a public hearing would result in a high level of attention from the press. Further, the Motion asserts that an unwarranted invasion of privacy would occur if certain individual officers, directors, or major shareholders publicly testified about their lending relationships with the Bank. Respondent asserts that the protected privacy interests of these non-parties outweigh the presumed public right of access. FDIC Enforcement Counsel filed an opposition to the Motion. On March 6, 1993, the ALJ issued an Order Denying Motion to Restrict Public Record and Granting Leave to Apply Out of Time for Private Hearing ("ALJ Order").
The ALJ's Order states that the Protective Order was proper, but through an excess of caution, the public was denied access to the first two days of the hearing. Finding a full re-hearing to be "a waste of time and effort," the ALJ notes that the public may receive the transcripts with objectionable material, if any, redacted. ALJ at 8. He surmises that neutral designations may be utilized to protect the privacy of any future testimony concerning individuals not relevant to this proceeding. ALJ at 6. As to testimony about individuals and transactions at issue in this proceeding, he reasons: "it is obvious that in a jurisdictional public hearing, they lose whatever rights of privacy may exist in other circumstances." ALJ at 7. Finally, the ALJ's Order at 9 refers this matter to the Board of Directors of the FDIC, or designated official, for expedited determination.
DISCUSSION
Respondent's Motion, in essence, asks that the Protective Order be affirmed or a private hearing be granted. The FDIC declines to affirm the Protective Order as interpreted and applied by the ALJ, and finds that the facts are insufficient to support the granting of a private hearing.
[.1] First, the protective Order was clearly misinterpreted in this proceeding. To the extent the Protective Order, or the ALJ's general authorities, set forth in 12 C.F.R. § 308.5(b)(10), were interpreted to authorize the ALJ to exclude the public, this interpretation was incorrect.3 Notwithstanding this error, the measures the ALJ proposes to correct the improper exclusion of the public from the first two days of the hearing appear adequate.4
[.2] Second, the purpose of a Protective Order is to limit the public disclosure of certain documents. To the extent the Protective Order, which remains in force in this proceeding is utilized for this proper purpose, there is no need to affirm or otherwise disturb its issuance. Under the FDIC's Rules and Regulations, the power to issue protective orders is within the ALJ's authority, 12 C.F.R. § 308.5(b)(2). In addition, section 8(u)(6) of the FDI Act, 12 U.S.C. § 1818(u)(6), permits the filing of documents under seal if disclosure would be contrary to the public interest. The ALJ appears to have had proper authority to seal certain documents, presuming that the decision to
2Representatives of the media unsuccessfully sought access to the hearing on both February 16 and 17, 1993.
312 C.F.R. § 308.5(b)(10) states that the ALJ shall have the power: "To establish time, place and manner limitations on the attendance of the public and the media for any public hearing." Reading this regulation with the statutory provision mandating public hearings, 12 U.S.C. § 1818(u)(2), results in the conclusion that an ALJ could, for example, exclude a disruptive attendee at a public hearing, or place other limitations which do not result in a denial of public access to the hearing.
4The ALJ recognizes that the overly broad interpretation of the Protective Order resulted in the public's incorrect exclusion from the hearing for two days. The ALJ proposes to correct the error by allowing public access to the hearing transcript. The FDIC agrees that the hearing should continue, not recommence, so long as copies of the transcripts of the first two days of the bearing are made available to the public at the hearing site on the date it recommences, without a formal request under the Freedom of Information Act.
{{7-31-96 p.I-88}}place a particular document under seal complies with the statutory criteria.
[.3] Third, the Bank's request for private hearing must be decided under the present version of section 8(u)(2) of the FDI
[a]all hearings on the record with respect to any notice of charges issued by a Federal banking agency shall be opened to the public, unless the agency [here, the FDIC], in its discretion, determines that holding an open hearing would be contrary to the public interest. (Emphasis added).
This provision of the FDI Act was added to section 2547 of the Comprehensive Thrift and Bank Fraud Prosecution and Taxpayer Recovery Act of 1990.5 The statute is implemented by section 308.33(a) of the FDIC Rules of Practice and Procedure, 12 C.F.R. § 308.33(a). Rule 308.33(a) provides that
within 20 days from service of the notice ...any "respondent may file with the [FDIC] Executive Secretary a request for a private hearing, and any party may file a pleading in reply to such a request."6
Respondent has failed to assert or demonstrate a proper basis for a private hearing. In the Matter of The Citizen's Bank of Clovis, Clovis, New Mexico, FDIC-91-406b, 2 P-H FDIC Enf. Dec. ¶8012 (1992), sets forth the Board's standard for judging requests for private hearings. Because of the presumption in 12 U.S.C. § 1818(u)(2) in favor of public hearings, the FDIC concluded that a private hearing must be justified on the basis of safety and soundness concerns. Furthermore, in order to justify a request for a private hearing, "a bank needs to demonstrate in a concrete fashion how the effects of [a particular] proceeding differ so significantly from those involving other banks as to warrant special treatment." Id. at I-48.
Under this standard the request for a private hearing must be denied. Essentially, the Bank requests a private hearing because of privacy concerns of certain of its officers, directors, and major shareholders, who prefer not to publicly reveal their transactions with the Bank. The Bank alleges that undue publicity may result, and thus it seeks to protect the privacy of these non-parties. However, certain financial transactions involving officers, directors, and controlling shareholders of the Bank are a critical part of this action. While Respondent refers to these officers, directors, and shareholders as nonparties, they are in fact institution-affiliated parties who will be subject to the terms of any cease-and-desist order that may issue as a result of this proceeding. The mere fact that the evidence at the hearing may disclose loans or credits to these individuals does not threaten the safety or soundness of the Bank and is not a basis for a private hearing. The American Bank of the South, Merritt Island, Florida, FDIC-92-17b, 2 FDIC Enf. Dec. ¶8015 (1992). Finally, nothing in the Bank's request, except for the alleged and unspecified "other controversies unrelated to this proceeding," distinguishes the Bank from other banks involved in similar proceedings. Accordingly, the allegations furnished by the Bank, in support of its request for a private hearing, fail to convince us that such a hearing is required by the public interest.
ORDER
For the foregoing reasons, it is hereby ORDERED that the request of Bay Bank & Trust Co., Panama City, Florida, for private hearing is DENIED.
It is further ORDERED that the request for a Protective Order is denied.
Pursuant to delegated authority, upon the advice and recommendation of the General Counsel.
Dated at Washington, D.C., this 13th day of May, 1993.
In the Matter of
BAY BANK & TRUST CO.
PANAMA CITY,FLORIDA
(Insured State Nonmember Bank)
Docket No. FDIC-92-313b
5This statute is codified as Title XXV of the Crime Control Act of 1990, Pub.L. 101-647, 104 Stat. 4789, 4886 (1990).
6The ALJ had authority to grant an extension of time to Respondent to request a private hearing, pursuant to 12 C.F.R. § 308.13. The ALJ allowed Respondent to file an "out-of-time" request for a Private Hearing because Respondent's counsel had prepared its case with the understanding that the hearing would be closed pursuant to the Protective Order, to a great degree, and would protect his client's interests. ALJ's Order at 7 n.3. The FDIC declines to reach the issue of timeliness because the request for Private Hearing fails on its merits.
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ORDER DENYING MOTION TO
RESTRICT PUBLIC RECORD
AND GRANTING LEAVE TO APPLY
OUT OF TIME FOR PRIVATE
HEARING
(Issued March 6, 1993 for service March 8, 1993)
Immediately prior to opening the hearing herein on February 16, 1993, counsel jointly conferred with the undersigned in chambers and presented a form of Protective Order (the Order), the terms of which shall be later discussed, to which both consented, and which the undersigned executed. Counsel thereupon discussed and agreed that the public should be barred from that portion of the hearing during which the bank examiner and his supervisor testified as to the FDIC Report of Examination, and during which the Chief of the Florida Bureau of Bank Examiners testified as to the state examination, reports of both examinations and the Uniform Bank Performance Reports to be entered into evidence and held confidential pursuant to the said Order. Immediately prior to the start of the third day, at which the hearing was to be made public, FDIC Enforcement counsel advised that since the "interpretation of the protective order that is presently in place to guard the privacy interest of nonparties to this proceeding...is being applied overbroad," he had been instructed to move that the "entire proceeding be made open to the public and that the FDIC be allowed to re-present its entire case in a public forum."1 Respondent's counsel opposed this application, and after a lengthy argument and several oral rulings, the continuation of the hearing was stayed and Respondent was given until March 1, 1993, to file written motions conforming to his oral motions, which FDIC Enforcement counsel would in writing simultaneously respond to in opposition. Respondent timely submitted a Motion for Protective Order or, in the Alternative, for a Private Hearing, to which FDIC counsel had responded orally and/or in writing.2
This Order will affirm the undersigned's oral rulings, that the hearing should continue pursuant to the protective order as interpreted during argument, and also that the prior documents received into evidence as Confidential shall retain that classification, that the oral testimony as to those documents shall be made public, with any redactions necessary but without physically repeating them in open court, and that, since Respondent claimed to have prepared his case on a different understanding of the FDIC counsel's protective order that it be permitted to apply to the agency for a private hearing.
1. TERMS OF PROTECTIVE ORDER
The Protective Order, marked and entered as ALJ Exhibit 2, sets forth the procedures which govern the handling of certain "subject" documents in the proceeding which may contain confidential information and which have been prepared and/or maintained by the FDIC, the Florida Department of Banking and Finance, and the Respondent. The "subject documents" covered are listed as the FDIC Reports of Examination, the State Reports of Examination, and the Uniform Bank Performance Reports, of specified dates.
The items of "information," as opposed to "documents," which are to be treated confidentially, are those portions of the documents, testimony, etc., "not material and relevant to this action, and the names of all persons whose identities are not material and relevant to this action." (Paragraph 3, underlining added.)
The Order also provides that "[t]he Administrative Law Judge may exclude upon motion by the FDIC or the (Respondent), all persons not subject to this Order from any portion of a hearing in which discussion of said information will occur." (Paragraph 10.) The undersigned construes "said information" to constitute information similarly "not material and relevant to this action, and the names of all persons whose identities are not material and relevant to this action." It is thus basic to understand the nature of this action.
1Transcript representation of a desire to "represent" in a public "form" corrected sua sponte.
2A Response in Opposition to Oral Motion to Close Hearing has also been submitted on behalf of South Trust Bank of Alabama, N.A. While that entity may have an interest in information which will be brought out during this hearing, it is not a party to this proceeding, and its response cannot be considered. It will, however, be added to the service list hereof as a matter of courtesy to counsel.
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II. NATURE OF THE NOTICE OF CHARGES
This proceeding was instituted on November 13, 1992, and seeks the imposition of an order to cease and desist from alleged unsafe and unsound banking practices and violations of law and regulations, and to take corrective affirmative action.
Paragraphs 5, 6 and 7 of the Notice refer to four members of the Christo family and other named individuals who are Directors and were "institution-affiliated parties" of Respondent; to Florida Bay Banks, Inc., the bank holding company allegedly owning and controlling all of Respondent's outstanding shares; and the "JCJ Irrevocable Trust of PC" (the Trust), allegedly created by and for certain members of the Christo family, the corpus of said trust allegedly consisting in principal part of shares in Respondent and it's bank holding company. None of these entities are designated as "parties" to the proceeding.
Paragraph 9 of the Notice alleges the amounts of Respondent's Tier 1 capital, Tier 2 capital, total capital, total assets, adjusted total assets, total adversely classified items with percentages of other figures, total deposits, total loans and leases, and gross loans. Paragraph 10 of the Notice alleges six areas of unsafe and unsound practices as evidenced by ratios of the above financial accounts. Paragraph 11 of the Notice alleges hazardous lending and lax collection practices evidenced by ratios of the above financial accounts, resulting in an excessive volume of poor quality items, specifying totals and percentages of adversely classified loans, leases, securities, foreclosed real estate, and other assets. Paragraph 12 through 15, inclusive, allege unsafe or unsound banking practices involving various operations as described in specified pages of the Report of Examination.
Paragraph 16 of the Notice alleges violations of particular laws and regulations as described in specified pages of the Report of Examination, specifically involving knowing extensions of credit to the Trust, an alleged principal shareholder of Respondent, through issuance of an unsecured letter of credit to the Trust in the amount of $425,000, and payment of that sum on the Trust's behalf to another financial institution, South- Trust Bank of Alabama, in partial payment of past due loans outstanding.
III. AUTHORITY FOR AN CONFIDENTIALITY OF DOCUMENTS AND TESTIMONY; REQUIREMENT OF OPEN HEARING
Section 1820(b) of Title 12, United States Code, authorizes the FDIC to conduct jurisdictional bank examinations. A Report of Examination (ROE), as one of the "[r]ecords contained in or related to examination, operating, or condition reports by or on behalf of, or for the use of, the FDIC ..." is exempt from a request for public disclosure. 12 C.F.R. § 309.5(c)(8). Disclosure of such exempt records as a ROE is generally prohibited, 12 C.F.R. 309.6(b), but may be disclosed, and testified to by an Examiner "at any administrative or judicial hearing or proceeding where he has been served with a valid subpoena, court order, or other legal process requiring him to testify." 12 C.F.R. 309.69(6)(c)(8)(i). Further, 12 C.F.R. §309.6(c)(8)(ii) provides that:
The General Counsel, or anyone designated by him in writing, may produce or authorize the production of any exempt record sought in conjunction with any hearing or proceeding without the service of a judicial subpoena or other legal process requiring production, if he determines that the records are relevant to the hearing or proceeding and that production is in the best interests of justice.... [H]e shall limit the authorization to so much of the record or testimony as is relevant to the issues at the hearing of proceeding, and he shall give his authorization only upon fulfillment of such conditions as he deems necessary to protect the confidential nature of the record consistent with any requirement that it be produced and made a part of the record of the hearing or proceeding.
(Underlining added). The Notice of Charges herein was issued by the Regional Director of FDIC Atlanta Regional Office, specifically "Pursuant to delegated authority." The Protective Order, and the presentation of witnesses, was by agency counsel who, by filing his Notice of Appearance, certified that he appears on the agency's behalf.
The 1990 amendment of 12 U.S.C. § 1818, withdrew the requirement of subsection (h) for private hearing, and introduced the requirement of subsection (u) for public hearing, except where "contrary to the public interest." Pub. L. 101–647, § 2547(a)(1) and (2). Rule 33 of the Uni-
{{7-31-93 p.I-91}}form Rules of Practice and Procedure, 12 C.F.R. §308.33 (1992), provides that "All hearings shall be open to the public, unless the FDIC, in its discretion, determines that holding an open hearing would be contrary to the public interest."3
IV. DISCUSSION
Considering the matters set forth, the undersigned rules that the Protective Order itself was in proper form, and authorized the protection of portions of the protected documents, and testimony regarding matters within such portions, which are not material and relevant to the proceeding, and the identities of any individual or organization which is not material and relevant to the proceeding. As to those portions of the protected documents, and testimony regarding matters within such portions, as are material and relevant, it is obvious that in a jurisdictional public hearing they lose whatever rights of privacy may exist in other circumstances. As emphasized by the undersigned during argument, there is no problem in assigning neutral designations, such as letters or numbers, to the matters which must remain private, so as not to interfere with the public nature of the hearing process and of the publication of decisions.
To the extent that, through an excess of caution, the public was denied access to the testimony to date, reading the testimony into the record, or full examination ab initio is a waste of time and effort where the public can be provided with copies of that testimony from which objectionable material, if any, has been redacted. Since the material and relevant material in the protected documents is contained within the oral testimony, there will be no loss of access by the public if the entirety of those documents remains private where the testimony is public.
As to future testimony, it is obvious that testimony of the named members of the Christo family, institution-affiliated parties of Respondent, and possibly of other individuals, as well as certain limited information regarding the Trust, is necessary, material and relevant to the proof or failure of the allegations of the proceeding. As such they will be permitted to appear in the public hearing and record. Should non-relevant or non-material information be offered, particularly as to the identity of borrowers, etc., it will be done so either through a neutral identification, or privately.
Respondent states that it has planned presentation of its cause based upon a more private hearing. So as not to adversely affect any due process, out-of-time authority is provided by forwarding of the applicable papers to the Board of Directors, or its designated officer, of the application for private hearing with other documents, for its decision on an expedited application for private hearing, and continuing the stay herein until determination. Respondent will also be entitled to production of the witnesses to date for further cross-examination on aspects to which it has been denied.
IV. ORDER
IT IS HEREBY ORDERED, That Respondent's alternative Motion for Private Hearing, with the Memorandum in opposition, the transcript of oral argument, and the Protective Order, shall be and hereby are referred to the Board of Directors, or designate official, for determination. Expedited determination of this motion is requested so that the stay of this proceeding can be withdrawn.
It is further ORDERED, That counsel for each of the parties shall submit a list of any items appearing in the currently confidential transcript of the first two days of hearing which should be redacted prior to said transcript being made public. Such lists shall be submitted to the undersigned within two weeks of receipt of this Order.
It is further ORDERED, That Respondent shall advise of the need for additional cross-examination of the first three witnesses herein, specifying particularly the information as to which testimony is sought and why it was not obtained in original cross-examination. Such advice shall also be submitted to the undersigned within two weeks of receipt of this Order.
It is further ORDERED, That as quickly
3There is a time limitation in requesting closed hearings, and since the only time reference to production of the Protective Order is "two months before hearing," it is not certain that Respondent did not allow his opportunity to request private hearing to lapse prior to presentation of the proposed order. However, based upon counsel's representation that he prepared his case with the understanding that the hearing would, to a great degree, be closed, it appears to the undersigned to be fair to permit him the opportunity to make such appeal out-of-time to protect what is perceived as the interests of his client.
{{7-31-93 p.I-92}}as possible after receipt of a determination of the Application for Private Hearing, the undersigned shall confer with counsel for the parties jointly by telephone to schedule, as rapidly as possible, the continuation and conclusion of the hearing herein at Panama City, Florida.
In the Matter of
BAY BANK & TRUST CO.
PANAMA CITY,FLORIDA
(Insured State Nonmember Bank)
FDIC-92-313b
ORDER FOR THE HANDLING OF
CONFIDENTIAL INFORMATION
IT IS HEREBY ORDERED that the following procedures will govern the handling of certain documents (the "subject documents") in this proceeding, which may contain confidential information and which have been prepared and/or maintained by the Federal Deposit Insurance Corporation ("FDIC"), the Florida Department of Banking and Finance (the "Department") and Bay Bank & Trust Co., Panama City, Florida ("Bank").
1. This Order pertains to the said subject documents, including: any copy, extract, or complete or partial summary prepared in whole or in part from the said information; or any portion of any exhibits thereto which relates to the said information or any extract or summary thereof; or any portion of any other writing or exhibit thereto filed in this proceeding which discloses the contents of the said information or any extract or summary thereof.
3. At the time of production of any subject document by the FDIC or the Bank in this proceeding, those portions thereof not material and relevant to this action, and the names of all persons whose identities are not material and relevant to this action, shall be withheld from public dissemination. If there is disagreement between the parties to this action regarding what portion of any document should be so excised, the undersigned shall review those portions in camera to determine the relevancy of the material.
4. All confidential information so designated by the FDIC and the Bank shall be disclosed only to: (a) counsel of record, (b) persons employed or retained in this action by said counsel, including experts, as counsel deem necessary for purposes of this case, (c) the parties to this action, and (d) the Administrative Law Judge and persons employed by the Office of Financial Institution Adjudication. Access to said information shall, in any event, not be accorded to any person named above except as may be needed in connection with this litigation. All persons authorized to have access to said information shall take reasonable precautions to prevent any disclosure of said information in any manner inconsistent with this Order.
5. Said information shall be used in the preparation and presentation of this litigation, and not otherwise.
6. Upon termination of this action, all copies and/or original documents, not constituting a part of the official record in this proceeding and not retained by the Administrative Law Judge, shall be promptly returned to the FDIC and/or the Bank.
7. During the pendency of this litigation, said information shall be retained only in the custody of receiving counsel or such other persons authorized in paragraph 4 to have access to said information.
8. Notwithstanding the foregoing, said information may be disclosed to witnesses, when appropriate, at the evidentiary hearing on the condition that said witness first execute a declaration in the following form:
"I hereby acknowledge that I will be receiving confidential information pursuant to the terms of a Protective order dated the ____ day of February, 1993, in In the Matter of Bay Bank & Trust Co., Panama City, Florida, Docket No. FDIC-92-313b. I understand and agree not to disseminate any such information derived in the course of this proceeding to anyone, or make disclosure of any such information, except for purposes of the abovereferenced proceeding or as permitted by the Order or by further Order of the Administrative Law Judge.
9. Said information, including all copies, references, or extracts contained in all briefs or other papers filed with the Federal Deposit Insurance Corporation and the Office of Financial Institution Adjudication, shall be filed under seal. The envelope containing said document(s) shall contain the notation "CONFIDENTIAL—NOT TO BE OPENED WITHOUT APPROVAL OF THE HONORABLE WALTER J. ALPRIN PURSUANT TO ORDER DATED FEBRUARY ____, 1993.
10. Portions of transcripts of the eviden-
{{11-30-93 p.I-93}}tiary hearing in which any discussion of said information occurs shall be sealed under the same conditions and in the same manner as provided in paragraph 9 above and shall otherwise be treated in accord with this Order. The Administrative Law Judge may exclude, upon motion by the FDIC or the Bank, all persons not subject to this Order from any portion of a hearing in which discussion of said information will occur.
11. Nothing contained herein shall prevent a party from providing his or its own confidential information to such persons as he or it deems necessary, subject to such procedures as he or it deems necessary to protect the confidentiality of the information contained herein.
12. If the receiving party at any time wishes to have a "confidential" designation of any document or information removed, such party shall file a motion with the Office of Financial Institution Adjudication or the FDIC's Executive Secretary, as may be appropriate, for an Order removing the designation.
13. This Order does not affect the disclosure by the receiving party of any information contained in the subject documents if the information has been provided or has been made available to the receiving party from a source other than the subject documents.
14. The undersigned recognizes that it may be necessary to modify this Order. Any request for such modification shall not be made without notice to counsel for FDIC and the Bank.
DONE AND ORDERED at Panama City, Florida, this 16th day of February, 1993.
