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Neighborhood Assistance Corp. of America v. United States Housing and Urban Development

United States District Court, D. Columbia

September 24, 2013

NEIGHBORHOOD ASSISTANCE CORPORATION OF AMERICA, Plaintiff,
v.
UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, Defendant

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[Copyrighted Material Omitted]

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For NEIGHBORHOOD ASSISTANCE CORPORATION OF AMERICA (NACA), Plaintiff: Douglas Edan Fierberg, LEAD ATTORNEY, Andre M. Gregorian, BODE & GRENIER, LLP, Washington, DC; George K. Weber, LEAD ATTORNEY, PRO HAC VICE, NACA, Jamaica Place, MA.

For U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, Defendant: Javier M. Guzman, LEAD ATTORNEY, Mary Elizabeth Stratton, U.S. ATTORNEY'S OFFICE, Washington, DC.

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MEMORANDUM OPINION

ROBERT L. WILKINS, United States District Judge.

Plaintiff Neighborhood Assistance Corporation of America (" NACA" ) brings this lawsuit against the United States Department of Housing and Urban Development (" HUD" or the " Department" ), challenging the Department's responses to several requests

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issued by NACA under the Freedom of Information Act (" FOIA" ), 5 U.S.C. § § 552, et seq. Through this action, NACA contests the adequacy of the Department's search for responsive records, and asserts that HUD improperly invokes FOIA's statutory exemptions--in particular, the deliberative process privilege under Exemption 5--to withhold and redact otherwise responsive materials. The case is presently before the Court on the parties' cross-motions for summary judgment. Having carefully considered the parties' briefing, the entire record in this matter, and the arguments of counsel during the hearing on July 29, 2013, and having reviewed in camera many of the documents withheld and redacted by HUD under FOIA Exemption 5, the Court concludes, for the reasons that follow, that both NACA's Amended Motion for Summary Judgment (Dkt. No. 30) and HUD's Cross-Motion for Summary Judgment (Dkt. No. 32) will be GRANTED IN PART and DENIED IN PART.

BACKGROUND

A. Factual Background

NACA is a not-for-profit corporation and advocacy organization that provides mortgage-related assistance to primarily low- and moderate-income families and communities. NACA operates from offices in 25 different states and the District of Columbia.

On March 1, 2011, NACA sent three separate FOIA requests to HUD. Through these requests, NACA generally sought three categories of documents: (1) records related to HUD's " performance review" of NACA; (2) documents related to HUD's investigation of NACA under the Real Estate Settlement Procedures Act (" RESPA" ), and (3) records related to HUD's Office of Inspector General (" OIG" ) audit of NACA. ( See generally Pl.'s Ex. 1). On March 4, 2011, NACA reissued the third of these requests--the OIG audit request--directly to HUD-OIG for processing. (Pl.'s Ex. 2). In late March, HUD originally acknowledged its receipt of NACA's requests, and advised NACA that the Department would need some additional time to prepare its response, as fulfilling the request would require consultation between various HUD components, including the Boston field office responsible for the audit. ( See Pl.'s Exs. 3-5). On July 13, 2011, HUD communicated a responsive estimate to NACA, calculating that its search efforts would take approximately three to four months to complete, at a cost of more than $120,000 in fees to NACA. (Pl.'s Ex. 6). Shortly thereafter, on July 22, 2011, HUD-OIG directly responded to NACA concerning the OIG audit request, producing 21 pages of responsive records, but otherwise advising that NACA's request for " any other documents" related to the audit was insufficiently specific to enable a response. (Pl.'s Ex. 8).

After conferring with HUD's Chief of the FOIA Branch, Deborah Snowden, NACA then agreed to narrow and reframe its requests. ( See Pl.'s Ex. 7). On August 2, 2011, NACA provided HUD with the following modified FOIA requests:

I. Requests Related to HUD's Performance Review Letter Dated December 21, 2010 [the " Performance Review" request]:
1. Any e-mail, memoranda, notes and/or other documents relating to HUD's performance review of NACA described in HUD's December 21, 2010 letter to NACA, including, without limitation, any earlier drafts of such letter;
2. Calendars and/or appointment schedules of HUD staff and officials

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identifying meetings and/or conversations related to the aforesaid performance review of NACA. This includes the calendars and/or appointment schedules of Shaun Donovan, David Stevens, Vicki Bott, Ruth Roman and Brian Siebenlist.
II. Requests Relating to HUD's RESPA Review of NACA initiated by Letter from HUD to NACA Dated February 2, 2011 [the " RESPA" request]:
1. Any e-mails, memoranda, notes and/or other documents relating to HUD's RESPA review of NACA described in HUD's February 2, 2011 letter, including, without limitation, any RESPA related complaints made to HUD by any person or entity;
2. Calendars and/or appointment schedules of HUD staff and officials identifying meetings and/or conversations related to the aforesaid RESPA review of NACA. This includes the calendars and/or appointment schedules of Shaun Donovan, David Stevens, Vicki Bott, Ruth Roman and Brian Siebenlist.
III. Requests Related to the November 17, 2010 Draft Audit Report and the February 16, 2011 Final Audit Report By the HUD Inspector General Regarding its Audit of NACA [the " Audit" request]:
1. All e-mails, memoranda, notes and/or other documents written by any HUD official to the HUD Inspector General, or to his employees or agents, regarding the aforesaid audit of NACA
2. All emails, memoranda, notes and/or documents written by the HUD Inspector General, or by his employees or agents, in response to any e-mail, memoranda, notes or other document identified in your search for documents responsive to request number III.1 immediately above
3. The calendars and/or appointment schedules of HUD staff and officials identifying meetings and/or conversations related to the aforesaid audit of NACA. This includes the calendars and/or appointment schedules of Shaun Donovan, David Stevens, Vicki Bott, Ruth Roman and Brian Siebenlist.

(Pl.'s Ex. 9). These modified requests are the FOIA requests at issue in this case.

In responding to the Performance Review request, HUD first referred the matter to the FOIA liaison in HUD's Office of Housing, who identified the Single Family Program Support Division--the HUD component that had undertaken the review--as the HUD component most likely to possess responsive records. (Dkt. No. 30-12 (" Snowden Decl." ) at ¶ 8). According to HUD, three individuals within the Single Family Program Support Division were involved with the NACA performance review--Director Ruth Roman, Deputy Director Brian Siebenlist, and Terri Ames, a technical representative; all three were tasked with searching their electronic and paper files for any responsive records. ( Id. ¶ ¶ 8-10). HUD also retrieved electronic records for two former HUD officials, David Stevens and Vicki Bott, both of whom had been kept updated about the status of the Single Family Program Support Division's review of NACA. ( Id. ¶ 13). HUD retrieved electronic records from the email archives of Ms. Roman and Mr. Siebenlist as well. ( Id. ¶ 14). Along with the Office of Housing, HUD also referred the request to its Office of Public and Indian Housing, which located no responsive records. ( Id. ¶ ¶ 8, 15). Further, HUD referred the Performance Review request to the Office of the Secretary, which conducted a search of the calendar

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and appointment schedule of HUD Secretary Shaun Donovan for responsive records, but the records that were located were deemed non-responsive to NACA's request. ( Id. ¶ ¶ 8, 16).

In response to NACA's Performance Review request, HUD ultimately released over 1,500 pages of records to NACA in seven rolling installments over the course of nine months. ( See Snowden Decl. at ¶ ¶ 18-23). As relevant to NACA's claims, HUD also withheld 90 records from disclosure under FOIA Exemption 5 (89 in full and 1 in part). ( Id. ¶ ¶ 30-31). According to HUD, " the information withheld pertains to predecisional discussions of the performance review outlined in HUD's December 21, 2010 letter to NACA, and drafts of that letter. This information reflects HUD's predecisional deliberative process and their release would discourage open and candid advice, recommendations, and exchange of views within the agency." ( Id. ).

In response to NACA's RESPA request, HUD contacted the Consumer Financial Protection Bureau (" CFPB" ), to which responsibility for the RESPA investigation had been transferred in July 2011, and requested that CFPB refer responsive records to HUD. ( Id. ¶ ¶ 25-26). In doing so, CFPB advised that its RESPA investigation remained ongoing, which prompted HUD to withhold these records in their entirety under Exemption 7(A). ( Id. ¶ 27). [1]

Finally, in responding to NACA's OIG Audit request, HUD referred the request directly to HUD-OIG for processing and response. ( Id. ¶ 28). In turn, HUD-OIG requested the relevant work papers from its Boston regional office, which conducted the NACA audit. (Dkt. No. 30-13 (" Johnson Decl." ) at ¶ ¶ 8-9). After reviewing several hundred pages of these records, HUD-OIG determined that 21 pages were responsive to NACA's request and produced those documents on or around July 22, 2011. ( Id. ). In addition, the OIG Information Technology Division searched for all emails regarding the NACA audit sent to or from OIG personnel, at any time from January 2010 through March 2011. ( Id. ¶ 10). Following an internal review of those email records, HUD-OIG produced 207 pages of responsive records in mid-December 2011; of this production, HUD-OIG redacted portions of information from 20 pages pursuant to FOIA Exemption 5. ( Id. ). Around the same time, HUD-OIG made its audit file available to NACA for review in February 2012, and it subsequently released another 627 pages of records to NACA. ( Id. ¶ 11). This production contained 34 pages with some redactions made under FOIA Exemption 5. ( Id. ). NACA and HUD-OIG subsequently met and conferred regarding the remaining withholdings, and HUD-OIG agreed to release some additional records to NACA. ( Id. ). Ultimately, in connection with NACA's Audit request, HUD-OIG withheld 25 records under FOIA Exemption 5 (21 records in full and 4 in part). ( See Johnson Decl. ¶ ¶ 12-20).

B. Procedural History

NACA commenced this lawsuit on June 27, 2011. ( See Dkt. No. 1). NACA originally filed a Motion for Summary Judgment in October 2011, but following HUD's continued production of records over the ensuing months, the parties agreed to an amended briefing schedule, which the Court adopted. ( See Dkt. No. 28). NACA then filed its Amended Motion for Summary Judgment, and HUD filed its Cross-Motion for Summary Judgment shortly thereafter. ( See Dkt. Nos. 30, 32). The

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parties appeared before the Court for a hearing on the cross-motions on July 29, 2013, at which time the Court took the matter under submission. Following oral argument, the Court ordered HUD to submit many of the documents withheld or redacted pursuant to FOIA Exemption 5 for in camera review, and the Court has since reviewed those ...


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