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DeSilva v. United States Department of Housing and Urban Development

United States District Court, D. Columbia.

April 10, 2014

PETER DESILVA, Plaintiff,
v.
UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, Defendant

Page 66

For PETER DESILVA, Plaintiff: Elaine J. Mittleman, LEAD ATTORNEY, LAW OFFICE OF ELAINE J. MITTLEMAN, Falls Church, VA.

For U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, Defendant: Rhonda Lisa Campbell, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Civil Division, Washington, DC.

Page 67

MEMORANDUM OPINION

REGGIE B. WALTON, United Stated District Judge.

The plaintiff, Peter DeSilva, filed this civil case against the defendant, the United States Department of Housing and Urban Development (" HUD" ), alleging violations of the Freedom of Information Act (" FOIA" ), 5 U.S.C. § 552 (2012). See Complaint (" Compl." ) ¶ ¶ 1, 5-9. Currently before the Court are the Defendant's Motion for Summary Judgment (" Def.'s Mot." ) and the Plaintiff's Motion to Request Defendant to Supplement the Document Release (" Pl.'s Mot." ). Upon careful consideration of the parties' submissions,[1]

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the Court concludes for the following reasons that it must grant the defendant's motion for summary judgment and deny the plaintiff's motion for the defendant to supplement its documents release.

I. BACKGROUND

The following facts are undisputed.[2] " On June 22, 2011, [the] [p]laintiff submitted a . . . FOIA . . . request to the [defendant's] [District of Columbia] Field Office" seeking records " concerning the project at Skyland Shopping Center." Def.'s Facts ¶ 1; see also Def.'s Mot., Exhibit (" Ex." ) 1 (FOIA Request) at 1. " On September 8, 2011, by letter, the FOIA Liaison Officer notified [the p]laintiff that HUD had internally consulted with its Community Planning and Development Office." Def.'s Facts ¶ 2. That office " mistakenly responded to [the] [p]laintiff's initial June 22, 2011[] FOIA request that no records responsive to the FOIA request were available," and referred the plaintiff to the District of Columbia Department of Housing and Community Development and the Deputy Mayor for Planning and Economic Development for responsive materials. Id. ¶ ¶ 2-3.

The plaintiff appealed the denial of his FOIA request to the HUD Office of Regional Counsel on October 5, 2011. Id. ¶ 4. Subsequently, " [o]n October 27, 2011, the [Office of Regional Counsel], the component responsible for coordinating HUD's response to [the] [p]laintiff's FOIA appeal, sent electronic mailings to relevant components of HUD," [3] and the " [Office of Regional Counsel] sought assistance" from those components " in providing a response to [the] [p]laintiff's FOIA request on appeal." Id. ¶ 5. " On or about November 7, 2011, the HUD Block Grant Office determined that the records response to [the] [p]laintiff's request were not maintained at HUD, but that the responsive materials were maintained by the District of Columbia Dep[artment] of Housing and Community Development." Id. ¶ 6. In a November 7, 2011 letter, " the [Office of Regional Counsel] notified [the] [p]laintiff that it had recently completed a monitoring review of the Skyland Project, but that the resulting report had not yet been completed." Id. ¶ 7 (citing Def.'s Mot., Ex. 6 (November 7, 2011 Letter from HUD to Elaine J. Mittleman, Esq. (" Nov. 7 Letter" )).

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The November 7, 2011 letter also notified the plaintiff that " the Skyland Action Plans had previously been provided to" the plaintiff's attorney, and " therefore they were not provided in the" attachments to the letter. Id. ¶ 8 (citing Def.'s Mot., Ex. 6 (Nov. 7, 2011 Letter) at 1-2). The letter further stated " that the Skyland Action Plans are public documents, which are posted on the District of Columbia's [Department of Housing and Community Development] Official web-site." Id. " Finally, the November 7, 2011[] letter also mistakenly notified [the] [p]laintiff that no responsive documents to [his] request were located because HUD originally and mistakenly limited . . . [the] search and scope for responsive materials to the HUD [District of Columbia] Office of Community Planning and Development." Id. ¶ 8.

A few months thereafter, on March 7, 2012, the plaintiff filed this action against the defendant. Id. ¶ 9. " On or about December 13, 2012, HUD sent [the] [p]laintiff an executed copy of the Monitoring Review Letter, which was also sent to the [District of Columbia] Department of Housing and Community Development." Id. ¶ 10 (citing Def.'s Facts, Exs. 7 (December 13, 2012 letter from HUD to Michael D. Rose (" Monitoring Review Letter" )), 13 (Declaration of Lawrence E. McDermott (" McDermott Decl." ))). " In or about December 2012 and January 2013, four senior HUD employees were identified who had oversight and involvement in the Skyland Shopping Center Project," and these employees performed searches for responsive records, which were subsequently provided to the plaintiff. Id. ¶ ¶ 11-12; see Pl.'s Facts ¶ ¶ 3-4 (disputing the adequacy and reasonableness of the search). In releasing records to the plaintiff, the defendant " withheld, in full, [fifty-four] pages of responsive material pursuant to FOIA exemptions (b)(4) and (b)(5)." Def.'s Facts ¶ 13 (citing 5 U.S.C. § 552 (b)(4)-(5); Def.'s Mot., ...


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