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Judicial Watch, Inc. v. Federal Housing Finance Agency

September 30, 2010


The opinion of the court was delivered by: Paul L. Friedman United States District Judge


This Freedom of Information Act matter is before the Court on the parties' cross motions for summary judgment.*fn1 Having carefully considered the parties' papers, the relevant case law and statutes, and the entire record in this case, the Court will grant defendant's motion for summary judgment and deny plaintiff's cross-motion for summary judgment.


The Federal National Mortgage Association, known as Fannie Mae, and the Federal Home Loan Mortgage Company, or Freddie Mac (collectively, the "Enterprises"), are publicly traded private corporations chartered by Congress. See 12 U.S.C. § 1723 (Fannie Mae); 12 U.S.C. § 1452 (Freddie Mac). Fannie Mae was created to provide a secondary market for residential loans guaranteed by the Federal Housing Administration and was congressionally chartered as a government sponsored enterprise in 1968. See Mot. At 2-3; SMF ¶¶ 1-2; see also Response ¶¶ 1-2. Freddie Mac was created in 1970 to provide competition for Fannie Mae and increase the availability of funds to finance mortgages. See SMF ¶¶ 1-2; see also Response ¶¶ 1-2.

In July of 2008, in response to the crisis in the housing and mortgage market, Congress passed the Housing and Economic Recovery Act of 2008 ("HERA"), creating the Federal Housing Finance Agency ("FHFA"). See Pub. L. No. 110-289, § 1101 (codified at 12 U.S.C. § 4511). The HERA granted the director of the FHFA conditional authority to place regulated entities, including Fannie Mae and Freddie Mac, into conservatorship and/or receivership "for the purpose of reorganizing, rehabilitating, or winding up [their] affairs." 12 U.S.C. § 4617(a); see also id. § 4616. On September 6, 2008, the Director of the FHFA placed the Enterprises under the FHFA's temporary conservatorship with the objective of stabilizing the institutions so that they could return to their normal business operations. See SMF ¶¶ 4-5; see also Response ¶¶ 4-5. In its capacity as conservator, the FHFA has "all rights, titles, powers, and privileges of [the Enterprises], and of any stockholder, officer or director of [the Enterprises] with respect to [the Enterprises] and [their] assets." See 12 U.S.C. § 4617(b)(2)(a)(i). In addition, the FHFA has "title to the books, records, and assets of any other legal custodian of" the Enterprises. See 12 U.S.C. § 4617(b)(2)(A)(ii).

Plaintiff Judicial Watch is a non-profit, educational organization whose stated mission is to promote integrity, transparency, and accountability in government. See Compl. ¶ 3.

On May 29, 2009, plaintiff sent a FOIA request to the FHFA, requesting "[a]ny and all Freddie Mac and/or Fannie Mae records concerning campaign contributions" and "[a]ny and all Fannie Mae and/or Freddie Mac records concerning policies, stipulations, and/or requirements concerning campaign contributions." See Compl. ¶ 5. On July 1, 2009, the FHFA responded to Judicial Watch's request, stating that although Fannie Mae might have the records that Judicial Watch was requesting, only the records of the FHFA were subject to a FOIA request. See SMF ¶ 9. The FHFA further replied that because Fannie Mae is a private company and the FOIA does not apply to documents for which an agency has not exercised its right of access, the documents are not agency records. The FHFA therefore was not required to provide the requested documents to Judicial Watch or to instruct the Enterprises to conduct searches in response to the FOIA request. Id.; see also Response ¶ 9. Judicial Watch appealed that decision. The FHFA denied the appeal on August 4, 2009. See SMF ¶ 10; see also Response ¶ 10.

On August 14, 2009, Judicial Watch filed the instant lawsuit, claiming that the FHFA "has violated FOIA by failing to produce any and all non-exempt records responsive to plaintiff's May 29, 2009 request." See Compl. ¶ 11. Judicial Watch requests: (1) a declaratory judgment that the defendant's failure to comply with the FOIA is unlawful; (2) an order requiring the defendant to search for and produce any and all non-exempt records and to create a Vaughn index of allegedly exempt records responsive to the request; (3) an injunction prohibiting the defendant from continuing to withhold any non-exempt records responsive to the request; and (4) an award of all attorneys' fees and other litigation costs reasonably incurred in this action. This matter is before the Court on the parties' cross-motions for summary judgment.


The Court will grant a motion for summary judgment "if the pleadings, the discovery and disclosure materials on file, and any affidavits [or declarations] show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Factual assertions in the moving party's affidavits or declarations may be accepted as true unless the opposing party submits its own affidavits or declarations or documentary evidence to the contrary. Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992).

FOIA cases typically and appropriately are decided on motions for summary judgment. Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009); Bigwood v. United States Agency for Int'l Dev., 484 F. Supp. 2d 68, 73 (D.D.C. 2007). In a FOIA case, the Court may award summary judgment solely on the basis of information provided in affidavits or declarations when the affidavits or declarations are "relatively detailed and nonconclusory," SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991), and describe "the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that 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 27 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974); Hertzberg v. Veneman, 273 F. Supp. 2d 67, 74 (D.D.C. 2003). Such affidavits or declarations are accorded "a presumption of good faith, which cannot be rebutted by 'purely speculative claims about the existence and discoverability of other documents.'" SafeCard Servs., Inc. v. SEC, 926 F.2d at 1200 (quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)).


The FOIA, 5 U.S.C. § 552, seeks "to open agency action to the light of public scrutiny," Dep't of Air Force v. Rose, 425 U.S. 352, 372 (1976), and to "ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." N.L.R.B. v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). To further this end, "each agency, upon any request for records which

(i) reasonably describes such records and (ii) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, shall make the records promptly available to any person." See 5 U.S.C. § 552(a)(3)(A). If an agency denies a FOIA request, a federal district court has the authority to enjoin the agency from withholding agency records and to order the production of any agency records upon a showing that: (1) the records are in fact agency records, (2) the records have been withheld, and (3) the withholding is improper. See 5 U.S.C. § 552(a)(4)(b); ...

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