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NAACP Legal Defense and Educational Fund, Inc. v. U.S. Dep't of Housing and Urban Development

November 30, 2007


The opinion of the court was delivered by: Gerard E. Lynch, District Judge


Plaintiff NAACP Legal Defense and Educational Fund, Inc. ("LDF"), brings this action pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, seeking disclosure of certain agency records in the possession of the United States Department of Housing and Urban Development ("HUD"). Plaintiff moves for partial summary judgment, arguing that defendant has improperly withheld records in violation of FOIA. Defendant cross-moves for partial summary judgment, arguing that plaintiff's case should be dismissed because plaintiff failed to exhaust its administrative remedies, or alternatively, that the records were properly withheld pursuant to the deliberative process privilege. Defendant's motion will be granted, and plaintiff's motion will be denied.


Only those facts relevant to the current motion will be recited here. The relevant facts are undisputed.*fn1

This case involves LDF's efforts to obtain access to records pertaining to HUD's administration of the Community Development Block Grant ("CDBG") Disaster Recovery Grant Program ("the Program"), a $16.7 billion grant allocated by Congress for expenses related to disaster relief, long-term recovery, and rebuilding expenses in those areas of the Gulf of Mexico most affected by Hurricanes Katrina and Rita in 2005.*fn2 The statutes establishing the Program adopt the general framework that governs CDBG program funds generally, but also authorize HUD, upon request from a state, to waive many CDBG program requirements, except for those relating to nondiscrimination, fair housing, labor standards, and the environment. 119 Stat. at 2780; 120 Stat. at 472-73. The Program requires each state to submit an action plan in advance of the receipt of grant funds that details the state's intended use of those funds, and to submit a quarterly report to Congress reporting on all awards and uses of funds. 119 Stat. at 2780; 120 Stat. at 473. HUD has by regulation required grantees to meet public participation, reporting, and oversight requirements, as well as to certify that they are in compliance with civil rights mandates. See 71 Fed. Reg. 7666 (Feb. 13, 2006); 71 Fed. Reg. 63,337 (Oct. 30, 2006).

On March 19, 2007, LDF submitted a FOIA request to HUD by overnight mail. (Pl. Ex. 2.) LDF's request sought certain records concerning HUD's administration of the Program as to the states of Louisiana and Mississippi. The only pertinent request here involves paragraph 3 of LDF's initial request, by which LDF sought "[a]ll records relating to any studies conducted by the HUD Office of the Inspector General regarding HUD's administration of, or any state grantee's administration of, [the Program]." (Id. at 4 ¶ 3.) LDF also requested expedited processing for its FOIA request pursuant to 5 U.S.C. § 552(a)(6)(E), which provides that a requester may seek processing of its request "as soon as practicable." Under the expedited processing provision, a federal agency is required to decide whether to accept or reject the expedited request and give notice of its decision to the requester within ten days of the request.

5 U.S.C. § 552(a)(6)(E)(ii)-(iii); see 24 C.F.R. § 15.104(d).

HUD received LDF's FOIA request on March 21, 2007. (Pl. Ex. 3 at 1.) Because LDF requested documents in the possession of HUD's Office of the Inspector General ("OIG"), and because OIG has its own staff to process FOIA requests separate from HUD's FOIA office, HUD forwarded LDF's request to OIG's FOIA office to respond to paragraph three of the request. (Pl. Ex. 4 at 1.) OIG received LDF's request on April 11, 2007. (Pl. Ex. 7 at 1.)

Neither HUD nor OIG responded to LDF's request for expedited processing within ten days. As a result, LDF initiated this lawsuit on April 27, 2007, and filed an Order to Show Cause why preliminary injunctive relief should not be granted. Shortly thereafter, on May 10, 2007, the parties agreed to a schedule for the release of all records sought in LDF's request, with the exception of the records sought in paragraph three, referring that portion of the request instead to the OIG. (Stipulation & Order, May 10, 2007, at ¶ 5.)

Since LDF initiated suit, LDF and OIG have successfully resolved most of the issues originally presented concerning the processing of LDF's request without the Court's intervention. However, the parties have been unable to resolve one particular issue. Specifically, on June 20, 2007, OIG informed LDF of certain records that were responsive to paragraph three of LDF's FOIA request that had not previously been disclosed. (Pl. Ex. 6 at 2.) OIG identified those records as analyses of state action plans conducted by the Office of Audit, Disaster Oversight and Liaison Division ("the Audit Records").*fn3 (Id.) The June 20 letter noted that OIG would process the analyses and disclose them the following week. (Id.) Finally, the June 20 letter denied LDF's expedited processing request as "moot." (Id.)

On June 29, 2007, OIG made a partial disclosure of the Audit Records. Although the Audit Records included 133 pages, OIG only disclosed 88 of those pages. (Pl. Ex. 7 at 1.) In addition, those portions of the Audit Records that OIG did disclose included two documents that are substantially redacted. (Pl. Exs. 8-9.) According to OIG, the withheld and redacted documents were exempt from disclosure pursuant to 5 U.S.C. § 552(b)(5), which "protect[s] intra-agency communications subject to the deliberative . . . process privilege[]" ("Exemption Five").*fn4 (Pl. Ex. 7 at 1.) However, although OIG claimed that certain records were protected from disclosure by the deliberate process privilege, OIG did not simultaneously produce a document itemizing all documents or portions of documents that it claimed fell within Exemption Five ("the Vaughn index"), as required under Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C. Cir. 1973), and as previously requested by LDF (see Pl. Ex. 6 at 2 n.2 ("You also request a Vaugh[n] index for those records we believe are exempt.")).

On July 26, 2007, plaintiff moved for partial summary judgment, "challeng[ing] [d]efendant's decision to withhold multiple pages from the Audit Records . . ., and to redact portions of the documents that were disclosed." (Pl. Mem. 6.) Defendant responded and cross-moved for partial summary judgment on August 16, 2007; both motions were fully briefed as of September 10, 2007.


I. Failure To Exhaust

As an initial matter, defendant argues that the Court "should deny plaintiff's motion for summary judgment because LDF failed to exhaust its administrative remedies required by OIG's regulations." (Def. Mem. 2.) Specifically, defendant argues that "LDF's decision to send the OIG request to the wrong address . . . constitutes failure to exhaust its administrative remedies." (Id. 8, citing West v. Jackson, 448 F. Supp. 2d 207, 211-12 (D.D.C. 2006).) Alternatively, defendant argues that "the Court should deny relief to LDF because LDF failed to meet its obligation to seek administrative review of OIG's response prior to filing a lawsuit." (Id.) Both arguments are unavailing.

"FOIA requires the exhaustion of administrative remedies as a precondition to suit." Megibow v. Clerk of the U.S. Tax Court, No. 04 Civ. 3321, 2004 WL 1961591, at *3 (S.D.N.Y. Aug. 31, 2004); see, e.g., id. (recognizing that FOIA's exhaustion of administrative remedies requirement is prudential and not jurisdictional, and thus may be waived by a party or the court). See also Oglesby v. U.S. Dep't of the Army, 920 F.2d 57, 61 (D.C. Cir. 1990) ("Exhaustion of administrative remedies is generally required before filing suit in federal court so that the agency has an opportunity to exercise its discretion and expertise on the matter and to make a factual record to support its decision."). "The failure to comply with an agency's FOIA regulations" when making a FOIA request "is the equivalent of failure to exhaust." West, 448 F. Supp. 2d at 211; see 5 U.S.C. ยง 552(a)(3)(a) ("[FOIA ...

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