Citizens for Responsibility v. U.S. Department of Housing and Urban Development

          MEMORANDUM OPINION

          CARL J. NICHOLS UNITED STATES DISTRICT JUDGE

         Plaintiffs Citizens for Responsibility and Ethics in Washington (“CREW”) and the Freedom from Religion Foundation (“FFRF”) filed multiple, separate requests with the Department of Housing and Urban Development (“HUD”) under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. The requests sought information that Plaintiffs suggest might reflect poorly on the Department's head, Secretary Ben Carson. In addition to the document requests, both organizations sought a waiver of the fees the Department typically charges FOIA requesters. HUD denied the fee waivers and requests for reconsideration.

         Plaintiffs then jointly filed this action, alleging both improper denial of fee waivers in those instances and an illegal pattern or practice of denying waivers more broadly. See generally Compl., ECF No.1. HUD promptly reevaluated its decision and waived fees for the specific requests. HUD now moves to dismiss the Complaints, arguing that the challenges to individual fee-waiver denials are moot and that the policy-or-practice count fails to state a claim for relief. See generally Def.'s Mem. in Supp. of Mot. to Dismiss (“Mot.”), ECF No. 23-1. The Court agrees that the as-applied challenges are moot and grants HUD's Motion to Dismiss in part, but it denies the Motion as to the policy-or-practice claim.

         I. Background

         Plaintiffs are both tax-exempt, non-profit organizations. Compl. ¶¶ 4, 6. CREW seeks to promote governmental transparency through “a combination of research, litigation, and advocacy, ” relying in part on “government records made available to it under . . . FOIA.” Id. ¶ 4. FFRF “advocates for the separation of church and state, ” using “FOIA to access records necessary to advance its mission.” Id. ¶ 6. There are five FOIA requests at issue in this case: three by CREW and two by FFRF.

         A. CREW's Initial FOIA Requests

         CREW filed its first request on August 25, 2017, seeking records relating to the reported involvement of Secretary Carson's spouse and his son, B.J., in the Department's internal affairs. Id. ¶ 18; CREW Ltr. of Aug. 25, 2017 (“CREW Request 1”), ECF No. 23-13. CREW requested several categories of documents, including communications and calendar entries between or involving several senior HUD officials and either Mrs. Carson or B.J. Carson. Compl. ¶ 18. CREW submitted a second, unrelated FOIA request on September 20, 2017, seeking “records concerning authorization for and the costs of Secretary Carson's use of non-commercial aircraft for any official travel” and budgetary records showing the amounts of money earmarked for the Secretary's travel in 2017 and 2018, as well as comparable figures for 2016. Id. ¶ 27; CREW Ltr. of Sep. 20, 2017 (“CREW Request 2”), ECF No. 24-3, at 6-8.

         Both submissions included detailed requests for fee waivers under 5 U.S.C. § 552(a)(4)(A) and 24 C.F.R. § 15.106(k) based on two grounds. Compl. ¶¶ 19-20, 28-29. First, CREW argued that the requests satisfied the statutory and regulatory criteria for waivers because they “concern[ed] the operation of the federal government, ” would “contribute to a better understanding of relevant government procedures . . . in a significant way, ” and were “primarily and fundamentally . . . for non-commercial purposes.” CREW Request 1 at 2 (citing 5 U.S.C. § 552(a)(4)(A)); see also CREW Request 2 at 6 (same). Second, CREW asserted that it was exempt from the payment of fees as a member of the news media. CREW Request 1 at 2 (citing 5 U.S.C. § 552(a)(4)(A)(ii)(II)); CREW Request 2 at 7 (same).

         HUD acknowledged both requests within a few days of receiving them and assigned each one a FOIA Control Number. See HUD Ltr. of Aug. 31, 2017 (“HUD Resp. to CREW Request 1”), ECF No. 23-15; HUD Ltr. of Sep. 21, 2017 (“HUD Resp. to CREW Request 2”), ECF No. 23-16. HUD also denied both fee waiver requests. Using identical, boilerplate language laying out the statutory factors for fee waivers, HUD concluded that CREW's justifications were mere conclusory statements and asserted that CREW's requests for documents were not “in the public interest.” HUD Resp. to CREW 1 at 1-2; HUD Resp. to CREW 2 at 1-2. The responses made no mention of CREW's claimed media status. HUD Resp. to CREW Request 1 at 1-2; HUD Resp. to CREW Request 2 at 1-2. CREW timely appealed both denials through the proper administrative channels, providing more detailed descriptions of its work and legal justifications for the waiver requests. See CREW Ltr. of Sep. 6, 2017 (“CREW Appeal 1”), ECF No. 24-2, at 2-4; CREW Ltr. of Sep. 21, 2017 (“CREW Appeal 2”), ECF No. 24-3, at 2-4. HUD affirmed both denials, this time providing slightly more substantive grounds for its decisions. HUD Ltr. of Oct. 6, 2017 (“HUD Resp. to CREW Appeal 1”), ECF No. 23-17, at 2; HUD Ltr. of Oct. 24, 2017 (“HUD Resp. to CREW Appeal 2”), ECF No. 23-18, at 2. Both letters declined to address whether CREW was entitled to news media status, stating that because HUD had not yet made an initial determination on that question, the issue was “not ripe for appeal.” HUD Resp. to CREW Appeal 1 at 2; HUD Resp. to CREW Appeal 2 at 2.

         B. FFRF's FOIA Requests

         Around the same time, FFRF was engaged in its own quest for HUD's internal records. It filed its first request on August 7, 2017. Compl. ¶ 39; FFRF Ltr. of Aug. 7, 2017 (“FFRF Request 1”), ECF No. 23-7. FFRF sought all correspondence between HUD personnel and officials from Capitol Ministries, a Christian group that works with political leaders, as well as any internal communications and calendar entries related to weekly Bible studies that Secretary Carson allegedly arranged for his fellow Cabinet members at the White House. Compl. ¶ 39. The request included a fee waiver petition with a short justification statement noting that FFRF is a non-profit organization and asserting that production of the records was in the public interest. Id. ¶ 40.

         FFRF submitted its second request on October 26, 2017. Compl. ¶ 46; FFRF Ltr. of Oct. 26, 2017 (“FFRF Request 2”), ECF No. 23-8. It sought records regarding Secretary Carson's alleged appearance at an event entitled “Revive Us 2, ” hosted by the Museum of the Bible in Washington. Compl. ¶ 46. Just like the first request, this request also asked for a fee waiver and included the same short justification statement. Id. ¶ 47.

         HUD responded within 24 hours of each request. Compl. ¶¶ 41, 48; HUD Ltr. of Aug. 7, 2017 (“HUD Resp. to FFRF Request 1”), ECF No. 23-9; HUD Ltr. of Oct. 27, 2017 (“HUD Resp. to FFRF Request 2”), ECF No. 23-10. It included the same boilerplate language contained in the responses to the CREW requests, briefly reviewed FFRF's grounds for fee waivers, and summarily denied the requests. HUD Resp. to FFRF Request 1 at 1-2; HUD Resp. to FFRF Request 2 at 1-2. FFRF appealed both decisions, submitting longer letters with more substantive justification statements outlining how its requests fulfilled each of the statutory and regulatory criteria for fee waivers. Compl. ¶¶ 42-45, 49-51; FFRF Ltr. of Dec. 8, 2017 (“FFRF Appeal 2”), ECF No. 24-4 at 2-5.^[1] HUD denied the first request on the grounds that Secretary Carson's participation in Bible studies did not relate to HUD's operations, thereby failing to satisfy the statutory criteria for a fee waiver. HUD Ltr. of Sep. 11, 2017 (“HUD Resp. to FFRF Appeal 1”), ECF No. 23-11, at 2. It denied the second appeal on the grounds that FFRF failed to explain how it would disseminate the information to the general public (rather than solely to its own members) and that the requested information was not in the public interest. HUD Ltr. of Jan. 9, 2018 (“HUD Resp. to FFRF Appeal 2”), ECF No. 23-12.

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