19 F. Supp. 3d 1
D.D.C.2013Background
- NACA sued HUD seeking records under FOIA and challenged search adequacy and exemptions.
- NACA issued three FOIA requests in March 2011 and later narrowed them Aug. 2, 2011.
- HUD identified the Single Family Program Support Division and searched specific HUD officials’ files (Roman, Siebenlist, Ames) plus retired officials Stevens and Bott; Office of Public and Indian Housing found no responsive records; Secretary Donovan’s calendar was found non-responsive.
- HUD released over 1,500 pages in seven installments; 90 records were withheld under Exemption 5 (predecisional and deliberative).
- For the OIG audit, HUD referred to HUD-OIG; OIG produced 21 pages and later, 207 pages with some redactions under Exemption 5; total redactions under Exemption 5 across OIG materials.
- NACA asserted that HUD should have reviewed Donovan’s and Blatchford’s emails and that HUD’s use of Exemption 5 was improper in light of governmental misconduct grounds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether HUD’s search was adequate. | NACA argues Donovan’s and Blatchford’s emails should have been searched. | HUD contends the search was reasonable given the scope of the requests. | Yes/No: Court finds shortcoming; needs review of leads but ultimately grants in part. |
| Whether HUD properly withheld records under Exemption 5 (deliberative process). | NACA contends governmental misconduct prevents privilege applicability. | HUD argues the deliberative process privilege applies despite potential misconduct. | HUD’s withholdings upheld; no extreme governmental wrongdoing found. |
| Whether the governmental misconduct exception applies to bar the deliberative process privilege. | NACA asserts misconduct negates privilege. | Governmental misconduct not sufficiently proven. | Exception not applicable; privilege remains valid. |
| Whether attorney-client privilege justification supports withholding. | NACA challenges privilege use. | Documents mostly also covered by deliberative privilege; privilege stands. | Attorney-client privilege upheld where applicable. |
Key Cases Cited
- American Civil Liberties Union v. U.S. Dep’t of Justice, 655 F.3d 1 (D.C. Cir. 2011) (FOIA aims for disclosure but exemptions apply)
- U.S. Dep’t of Air Force v. Rose, 425 U.S. 352 (S. Ct. 1976) (foundation of FOIA exemptions)
- Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321 (D.C. Cir. 1999) (agency’s leads must be pursued; reasonableness standard)
- Campbell v. U.S. Dep’t of Justice, 164 F.3d 20 (D.C. Cir. 1998) (agency must revise search when leads emerge)
- Oglesby v. U.S. Dep’t of Army, 920 F.2d 57 (D.C. Cir. 1990) (segregability and search adequacy standards)
- Weisberg v. U.S. Dep’t of Justice, 745 F.2d 1476 (D.C. Cir. 1984) (limits of FOIA withholding; substantial evidence standard)
- Loving v. U.S. Dep’t of Def., 550 F.3d 32 (D.C. Cir. 2008) (presumption of disclosure; exemptions narrow)