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Falkenstein v. United States Department of Housing and Urban Development

United States District Court, District Circuit

July 11, 2013



Emmet G. Sullivan, United States District

Plaintiff Robert E. Falkenstein, proceeding pro se, filed this Freedom of Information Act (“FOIA”) case against defendant U.S. Department of Housing and Urban Development (“HUD”). Pending before the Court is defendant’s motion for summary judgment, filed on April 12, 2013. On May 8, 2013 the Court ordered Plaintiff to respond to Defendant’s Motion by no later than June 10, 2013, and warned plaintiff that his failure to respond by the deadline could result in dismissal of his case. Plaintiff never responded to the motion. Upon consideration of the parties’ pleadings, the relevant law, and the entire record herein, the motion is GRANTED.[1]


Unless otherwise noted, the following facts are taken from the Complaint and from Defendant’s Statement of Undisputed Material Facts, which is supported by citations to the Declaration of Deborah R. Snowden, Chief of the FOIA Branch at HUD, as well as the accompanying Vaughn index and exhibits. By failing to respond to the motion for summary judgment, plaintiff has failed to demonstrate the presence of disputed facts, or to otherwise address the defendant’s assertion of facts as required by Federal Rule of Civil Procedure 56(c). Accordingly, the Court accepts the defendant’s assertion of facts as undisputed for the purposes of the motion, pursuant to Federal Rule of Civil Procedure 56(e)(2). See also Fed. R. Civ. P 56(e) advisory committee notes (2010 Amendment) (noting that Rule 56(e)(2) “authorizes the court to consider a fact undisputed for purposes of the motion when response or reply requirements are not satisfied.”)

This case involves three FOIA requests made by Plaintiff. First, on October 20, 2011, HUD received a FOIA request from Plaintiff for records relating to a 2011 performance review report regarding the National Council of LaRaza (“NCLR”), and/or its affiliate Centro De Apoyo Familiar (“CAF”). Specifically, plaintiff sought NCLR’s and CAF’s written response to the performance review and any subsequent communication between HUD, NCLR and CAF regarding the performance review. On July 12, 2012, HUD provided plaintiff with 53 pages of responsive documents, some of which was redacted under Exemptions (b)(4) and (b)(6). Plaintiff appealed, asserting the agency’s response was incomplete in one respect: because it did not provide HUD’s response to correspondence from NCLR dated December 9, 2011. HUD processed the appeal and agreed with plaintiff; on September 28, 2012, it sent the requested letter to plaintiff in full. Upon being served with the Complaint in this case, HUD learned that plaintiff had not received the letter; accordingly, on January 15, 2013, HUD, via the Department of Justice, provided the letter to plaintiff.

Plaintiff’s second request was also received by HUD on October 20, 2011. Plaintiff requested HUD’s last two intermediary performance reviews of NCLR, including information regarding NCLR’s quality control plans used to monitor the performance of NCLR’s sub-grantees. Although Plaintiff and various personnel within HUD corresponded regarding the FOIA request, HUD did not provide documents to plaintiff until he filed this lawsuit. Plaintiff’s request was ultimately routed to HUD’s Office of Housing. The FOIA specialist in that office identified the Office of Housing Counseling Division as the appropriate office to respond to plaintiff’s request. The Director and Deputy Director of that division conducted a search of division files. Subsequently, on February 4, 2013, HUD provided all responsive documents to the second request, with some redactions under Exemptions b(4) and b(6).

On September 26, 2013, plaintiff filed his third FOIA request, seeking all documentation and/or communication regarding the delay in processing his second request. Plaintiff filed this request via HUD’s website, but it was not received by HUD and therefore not assigned a control number. HUD was not aware of plaintiff’s third request until this case was filed. Upon learning of the request, HUD’s Office of the Executive Secretariat performed a search of FOIA Express, the software system used to track FOIA requests, as well as a search of the email of Deirdra Jenkins, the FOIA processor who processed plaintiff’s second FOIA request. On March 4, 2013, the government provided plaintiff with a report from FOIA Express and eleven emails. No redactions were made.


Pursuant to Federal Rule of Civil Procedure 56, summary judgment should be granted if the moving party has shown that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56. In a FOIA case, the burden of proof is always on the agency to demonstrate that it has fully discharged its obligations under the FOIA. See Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 142 n.3 (1989).

An agency from which information has been requested must undertake a search that is “reasonably calculated to uncover all relevant documents.” Weisberg v. Dep’t of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983). “[T]he adequacy of a FOIA search is generally determined not by the fruits of the search, but by the appropriateness of the methods used to carry out the search.” Iturralde v. Comptroller of the Currency, 315 F.3d 311, 315 (D.C. Cir. 2003). The Court applies a “reasonableness test to determine the adequacy of search methodology.” Campbell v. Dep’t of Justice, 163 F.3d 20, 27 (D.C. Cir. 1998). The agency must demonstrate that it “made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.” Fischer v. Dep’t of Justice, 596 F.Supp.2d 34, 42 (D.D.C. 2009) (citations omitted). Agency affidavits are afforded a “presumption of good faith” and an adequate affidavit can be rebutted only with evidence that the agency's search was not made in good faith. Defenders of Wildlife v. Dep’t of the Interior, 314 F.Supp.2d 1, 8 (D.D.C. 2004). Courts routinely find that delays in responding to FOIA requests are not, in and of themselves, indicative of agency bad faith. See, e.g., Iturralde, 315 F.3d at 315 ("initial delays in responding to a FOIA request are rarely, if ever, grounds for discrediting later affidavits by the agency"); Fischer, 723 F.Supp.2d 104, 108-09 (D.D.C. 2010) (rejecting argument that agency's failure to produce documents until after litigation commenced evidenced agency's bad faith).

FOIA's “strong presumption in favor of disclosure places the burden on the agency to justify the withholding of any requested documents.” Dep’t of State v. Ray, 502 U.S. 164, 173 (1991). The government may satisfy its burden of establishing its right to withhold information from the public by submitting appropriate declarations and, where necessary, an index of the information withheld. See Vaughn v. Rosen, 484 F.2d 820, 827-28 (D.C. Cir. 1973). “If an agency's affidavit describes the justifications for withholding the information with specific detail, demonstrates that the information withheld logically falls within the claimed exemption, and is not contradicted by contrary evidence in the record or by evidence of the agency's bad faith, then summary judgment is warranted on the basis of the affidavit alone.” ACLU v. Dep’t of the Defense, 628 F.3d 612, 619 (D.C. Cir. 2011); see Id . (agency’s justification for invoking a FOIA exemption is sufficient if it appears logical or plausible).


Defendant’s summary judgment motion, which has not been opposed by Plaintiff, should be granted. Defendant properly relies on a detailed declaration that demonstrates the adequacy of the searches for plaintiff’s FOIA requests. HUD states that based on plaintiff’s first and second requests regarding NCLR and its affiliates and sub-grantees, it identified the Office of Housing, Counseling Division, as the office most likely to have responsive records. See generally Snowden Decl. HUD further states that based on plaintiff’s third request regarding the delay in processing the second request, it identified the Office of Executive Secretariat as the most likely to have responsive records. Id. It sets forth the individuals tasked with searching and the processes undertaken to search for documents in these offices. Id. Plaintiff has filed no opposition and accordingly has not attempted to rebut the presumption of good faith to which the agency declaration is entitled. The Court thus finds that the searches described by HUD could be “reasonably expected to produce the information requested and were therefore adequate.” See Fischer, 596 F.Supp.2d at 43.

The agency has likewise met its burden to show that Exemptions 4 and 6 apply to the information it withheld in response to Plaintiff’s second FOIA request.[2] Exemption 4 exempts from disclosure information that is (1) commercial or financial, (2) obtained from a person, and (3) privileged or confidential. 5 U.S.C. § 552(b)(4). Where, as here, the submission of the information was compelled, it is exempt from disclosure if disclosure “would be likely either (1) to impair the government’s ability to obtain necessary information in the future; or (2) to cause substantial harm to ...

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