Desilva v. United States Department of Housing & Urban Development
36 F. Supp. 3d 65
D.D.C.2014Background
- FOIA request by DeSilva to HUD regarding Skyland Shopping Center (June 22, 2011).
- HUD initially advised no responsive records, later attributing error to internal misrouting and referrals to DC agencies.
- DeSilva appealed on Oct. 5, 2011; HUD sought assistance from multiple components on appeal (Oct. 27, 2011).
- November 7, 2011 letter stated monitoring report not yet complete and Skyland Action Plans were public on DC’s website; letter also misstated search scope.
- Records later located beyond HUD control (District of Columbia housing department); after monitoring, four senior HUD employees conducted searches; 54 pages withheld under FOIA exemptions (b)(4)-(b)(5); July 2013 production largely duplicative.
- Court grants HUD summary judgment, denies supplement request, and finds HUD search adequate and no control of requested additional documents at time of request.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was HUD's search reasonably calculated to uncover all records? | DeSilva argues search was inadequate/deficient. | HUD shows good faith, multi-office searches, supplemental declarations detailing terms and locations. | Yes; search deemed adequate. |
| Are the withheld documents properly exempt under FOIA exemptions (b)(4)-(b)(5)? | Plaintiff challenges exemptions and segregability. | HUD properly applied exemptions; plaintiff does not contest applicability or segregability beyond conceded points. | Exemptions upheld; production adequately segregated. |
| Did the supplemental declarations cure any deficiencies in the initial search? | Supplemental declarations were insufficient to show search terms and scope. | Supplemental declarations provide search terms, locations, and methods; declarations considered together cure prior gaps. | Supplementals sufficient; no defect in the search. |
| Is there agency control over additional documents warranting supplemental production? | Documents referenced by Monitoring Review Letter should exist and be producible. | District of Columbia materials; HUD did not have these documents at the time of the FOIA production; not in HUD control. | No obligation to supplement; documents not in HUD control. |
Key Cases Cited
- Steinberg v. DOJ, 23 F.3d 548 (D.C. Cir. 1994) (adequacy of search standards and burden on agency affidavits)
- Iturralde v. Comptroller of Currency, 315 F.3d 311 (D.C. Cir. 2003) (scope of search and reasonableness; agency affidavits)
- SafeCard Servs., Inc. v. SEC, 926 F.2d 1197 (D.C. Cir. 1991) (presumption of good faith for agency declarations; not rebutted by pure speculation)
- Baker & Hostetler LLP v. U.S. Dep’t of Commerce, 473 F.3d 312 (D.C. Cir. 2006) (FOIA search is sufficient if reasonable and likely to produce information)
- Oglesby v. U.S. Dep’t of Army, 920 F.2d 57 (D.C. Cir. 1990) (no need to search every record system, but must search likely ones)
- Perry v. Block, 684 F.2d 121 (D.C. Cir. 1982) (deference to agency search descriptions; level of detail acceptable)
- Weisberg v. DOJ, 705 F.2d 1344 (D.C. Cir. 1983) (facts viewed in favor of requester for FOIA summary judgment)