United States District Court, District of Columbia
CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, et al., Plaintiffs,
U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, Defendant.
J. NICHOLS UNITED STATES DISTRICT JUDGE
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
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
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.
CREW's Initial FOIA Requests
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.
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).
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.
FFRF's FOIA Requests
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.
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.
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
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.