The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
Michael West, proceeding pro se, filed this action pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, appealing the disposition of his requests for records by the Department of Housing and Urban Development ("HUD"). HUD has filed a motion to dismiss or for summary judgment. Mr. West has filed an opposition to the HUD's motion and a motion for judgment on the pleadings. For the following reasons, the Court will grant summary judgment in favor of HUD.
Mr. West alleges that on March 8, 2005 he sent a FOIA request to Anita Robinson at HUD's Enforcement Support Division in Washington, DC, seeking HUD statutes, regulations, and policies regarding discrimination investigations, Section 8 housing, and emergency housing for the homeless. Second Am. Compl. ¶ 5. On April 16, 2006, after receiving no response, Mr. West says that he filed an appeal with HUD's FOIA Officer in the District of Columbia. Id. ¶ 7. HUD later searched its FOIA request databases, but could find no record of either the FOIA request or the appeal. Decl. of Holly K. Salamido ¶¶ 6-9, 14-15; Decl. of Lamont R. Williams ¶¶ 4, 8, 9; Decl. of Virginia Ackerman ¶¶ 2, 3, 6, 7; Decl. of Gregory King ¶¶ 5, 7, 10, 11.
On August 29, 2005, Mr. West sent a request to HUD for all records, documents, and evidence gathered during the agency's investigation of a discrimination complaint he had filed. Second Am. Compl. ¶ 12. The investigation had been initiated upon Mr. West's allegation that he had been denied housing assistance by the North East Community Action Corporation ("NECAC"), a Section 8 rental assistance program, based on his gender. Decl. of Franklin Montgomery ¶ 7. Mr. West and Franklin Montgomery, the HUD Equal Opportunity Specialist investigating his discrimination complaint, exchanged a series of e-mails. In the correspondence between July 15, 2005 and August 4, 2005, Mr. Montgomery sent a list of questions to Mr. West for the purpose of assisting HUD in the investigation, id. ¶¶ 9-10 & Ex. 1 & 2, and Mr. West responded. Id. ¶ 11 & Ex. 3.
Mr. Montgomery sent an additional set of questions on August 24, 2005. Id. ¶ 12 & Ex. 4. In response, Mr. West stated that he had insufficient information to answer the questions and asked for copies of the NECAC correspondence, a copy of a fraud statute, information regarding the subjects of the investigation, and the status of his appeal of HUD's denial of housing assistance. Id., Ex. 5 & 6. In a September 2, 2005 e-mail, Mr. West asked how to appeal Mr. Montgomery's response, specifically requesting "the administrative appeal procedure . . . pursuant to [FOIA]." Id. Ex. 7. On September 12, 2005, Mr. Montgomery forwarded Mr. West's e-mail to the FOIA liaison in HUD's St. Louis field office. Id. Ex. 8.
On September 29, 2005, HUD responded to Mr. West's September 2, 2005, request. Decl. of Fannie J. Woods ¶ 10; Second Am. Compl. Ex. E. The agency informed him that the Fair Housing Act prohibited the release of information gathered during a discrimination investigation while the investigation is ongoing. Id. Mr. West was advised that the Office of Fair Housing and Equal Opportunity would send him a copy of the final investigative report upon completion of the investigation. Id. In the same letter, HUD also provided Mr. West with information on his FOIA appeal rights, including where to send the request. Id. HUD asserts that a search of its databases did not produce any record indicating that Mr. West filed an appeal of this decision. Decl. of Virginia Ackerman ¶ 8.
HUD has motion to dismiss for failure to state a claim or for summary judgment. Where matters outside the pleadings are presented in a motion to dismiss, the court must treat the motion as one for summary judgment under Rule 56. Fed. R. Civ. P. 12(b)(6). Here, the parties have presented matters outside the pleadings. Accordingly, the Court treats HUD's motion as one for summary judgment.
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment must be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Moreover, summary judgment is properly granted against a party who "after adequate time for discovery and upon motion . . . fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true. Anderson, 477 U.S. at 255. Moreover, "any factual assertions in the movant's affidavits will be accepted as being true unless [the opposing party] submits his own affidavits or other documentary evidence contradicting the assertion." Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir.1992) (quoting Lewis v. Faulkner, 689 F.2d 100, 102 (7th Cir. 1982)). A nonmoving party, however, must establish more than "the mere existence of a scintilla of evidence" in support of its position. Anderson, 477 U.S. at 252. The nonmoving party may not rely solely on allegations or conclusory statements. Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999). Rather, the nonmoving party must present specific facts that would enable a reasonable jury to find in its favor. Id. at 675. If the evidence "is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted).
FOIA cases are typically and appropriately decided on motions for summary judgment. Miscavige v. IRS, 2 F.3d 366, 368 (11th Cir. 1993); Rushford v. Civiletti, 485 F. Supp. 477, 481 n.13 (D.D.C. 1980).In a FOIA case, the Court may award summary judgment solely on the basis of information provided by the department or agency in affidavits when the affidavits describe "the documents and the justifications for nondisclosure with reasonably specific detail, demonstratethat the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981); see also Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C. Cir. 1973).