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Case TitleNAACP Legal Defense and Educational Fund, Inc. v. United States Department of Housing and Urban Development
DistrictSouthern District of New York
CityFoley Square
Case Number1:2007cv03378
Date Filed2007-04-27
Date Closed2007-12-03
JudgeJudge Gerard E. Lynch
PlaintiffNAACP Legal Defense and Educational Fund, Inc.
DefendantUnited States Department of Housing and Urban Development
Documents
Docket
Complaint
Opinion/Order [23]
FOIA Project Annotation: A federal court in New York, finding that the Office of Inspector General at the Department of Housing and Urban Development had properly withheld some records under Exemption 5 (deliberative process privilege), has ruled that the court retained jurisdiction to hear the merits of FOIA litigation originally filed by the NAACP Legal Defense Fund ten days after the agency failed to respond to the LDF's request for expedited processing for records concerning HUD programs for victims of Hurricane Katrina. After filing its initial action under the expedited processing provisions, LDF and the agency resolved most of the issues without court oversight. The only remaining issue was whether OIG had properly withheld records under Exemption 5. But HUD argued to Judge Gerard Lynch that the court did not have jurisdiction because LDF filed suit too early to provide the court with jurisdiction over the substance of the request, and, further, because LDF had failed to send its request to OIG instead of the main HUD FOIA office. Addressing the agency argument concerning the court's jurisdiction to hear the entire case, Lynch noted that "efficiency would be reduced, not increased, by forcing the litigant to return to the agency to pursue an administrative appeal, after judicial intervention has already been invoked to review the FOIA request, and the federal court has already become familiar with the underlying request during the course of the litigation." He then pointed out that § 552(a)(6)(E)(iii) provided that a district court would not have jurisdiction "to review an agency denial of expedited processing of a request for records after the agency has provided a complete response to the request." He interpreted this to mean that "an agency's substantive response to the underlying FOIA request does not negate the court's ability to review the agency's determination unless and until that response is 'complete' " the inclusion of 'complete' in this provision was presumably intended to provide for judicial review over the substantive merits of the agency's disclosure. Here, LDF claims that the government's disclosure was not complete; if LDF is correct, then OIG has not made a 'complete' disclosure, and the Court therefore retains authority to review LDF's claim under the plain language of the statute." The agency cited Judicial Watch v. Naval Observatory, 160 F. Supp. 2d 111 (D.D.C. 2001), for the proposition that a suit brought to challenge the denial of expedition was not equivalent to a constructive exhaustion of administrative remedies as to all other aspects of the request. But Lynch said the case was "unpersuasive" and noted that the plain language of the statute was inconsistent with its conclusion. He pointed out that "there is no support in the statute, or in the case law, for defendant's interpretation " FOIA itself authorizes courts to review an agency's expedited request determination, just as it authorizes courts to review an agency's standard request determination, and that authority extends until the agency has made complete disclosure of the requested material (unless the material is otherwise protected under FOIA's exemptions)." He added that "judicial review of an agency's failure to comply with the expedited processing time limit prevent[s] federal agencies from 'paying lip service to a requester's statutory and regulatory entitlement to expedition.'" The agency also argued that LDF had failed to send its FOIA request directly to the OIG, as required by agency regulations. As a result, the agency claimed LDF had failed to exhaust its administrative remedies as to OIG. However, Lynch rejected the argument, noting that HUD's FOIA regulations further indicated that the agency would forward a misaddressed request to the appropriate component within ten days. Lynch indicated that "the HUD regulations at issue here expressly cure such a mistake; indeed, those regulations require the agency itself to cure the requester's mistake by forwarding the request to the appropriate office." Turning to the exemption claim itself, Lynch chided the agency for its initial failure to provide an adequate explanation of its exemption claim, but concluded that subsequent affidavits provided sufficient basis for concluding the withheld information was indeed both predecisional and deliberative.
Issues: Exemption 5 - Privileges - Deliberative process privilege - Deliberative
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2007-04-271COMPLAINT against United States Department of Housing and Urban Development. (Filing Fee $ 350.00, Receipt Number 613445)Document filed by NAACP Legal Defense and Educational Fund, Inc..(tro) Additional attachment(s) added on 4/30/2007 (Becerra, Maribel). (Entered: 04/30/2007)
2007-04-27SUMMONS ISSUED as to United States Department of Housing and Urban Development, U.S. Attorney and U.S. Attorney General. (tro) (Entered: 04/30/2007)
2007-04-27Magistrate Judge Kevin N. Fox is so designated. (tro) (Entered: 04/30/2007)
2007-04-27Case Designated ECF. (tro) (Entered: 04/30/2007)
2007-04-272RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by NAACP Legal Defense and Educational Fund, Inc..(tro) Additional attachment(s) added on 4/30/2007 (Becerra, Maribel). (Entered: 04/30/2007)
2007-04-303ORDER TO SHOW CAUSE by NAACP Legal Defense and Educational Fund, Inc. re preliminary injunction compelling deft to (1) process plntf's FOIA request on an expedited basis etc. Show Cause Hearing set for 5/14/2007 03:00 PM before Judge Gerard E. Lynch. (Signed by Judge Gerard E. Lynch on 4/27/07) (cd) (Entered: 05/01/2007)
2007-05-034MEMORANDUM OF LAW in Support of Preliminary Injunction . Document filed by NAACP Legal Defense and Educational Fund, Inc.. (Colangelo, Matthew) (Entered: 05/03/2007)
2007-05-035DECLARATION of Matthew Colangelo in Support. Document filed by NAACP Legal Defense and Educational Fund, Inc.. (Attachments: # 1 Exhibit 1# 2 Exhibit 2)(Colangelo, Matthew) (Entered: 05/03/2007)
2007-05-036AFFIDAVIT OF SERVICE. Document filed by NAACP Legal Defense and Educational Fund, Inc.. (Colangelo, Matthew) (Entered: 05/03/2007)
2007-05-077AFFIDAVIT OF SERVICE of Summons and Complaint,. United States Department of Housing and Urban Development served on 4/27/2007, answer due 5/17/2007. Service was accepted by Civil Process Clerk. Document filed by NAACP Legal Defense and Educational Fund, Inc.. (Clark, Melanca) (Entered: 05/07/2007)
2007-05-078AFFIDAVIT OF SERVICE of Order to Show Cause served on United States Department of Housing and Urban Development on 4/27/07. Service was accepted by Civil Process Clerk. Document filed by NAACP Legal Defense and Educational Fund, Inc.. (Clark, Melanca) (Entered: 05/07/2007)
2007-05-079ENDORSED LETTER addressed to Judge Lynch from Lara K. Eshkenazi dated 5/4/07 re request for a 3 day extension of time, from 5/7/07 until 5/10/07, to file papers in response to plntf's application for a preliminary injunction: so ordered. (Signed by Judge Gerard E. Lynch on 5/7/07) (cd) (Entered: 05/08/2007)
2007-05-0810NOTICE OF APPEARANCE by Lara K. Eshkenazi on behalf of United States Department of Housing and Urban Development (Eshkenazi, Lara) (Entered: 05/08/2007)
2007-05-1611STIPULATION AND ORDER; that HUD grants plaintiffs request for expedited processing of the FOIA request and agrees to a fee waiver for the production of records responsive to the FOIA request except to the extent plaintiff seeks the production of documents that are publicly available. This action is hereby stayed pending the parties compliance with the terms of this Stipulation and Order. Additional relief as set forth in this order. (Signed by Judge Gerard E. Lynch on 5/10/07) (pl) (Entered: 05/17/2007)
2007-07-2612FIRST MOTION for Summary Judgment. Document filed by NAACP Legal Defense and Educational Fund, Inc.. (Attachments: # 1 Rule 56.1 Statement of Facts)(Clark, Melanca) (Entered: 07/26/2007)
2007-07-2613DECLARATION of Matthew Colangelo in Support re: 12 FIRST MOTION for Summary Judgment.. Document filed by NAACP Legal Defense and Educational Fund, Inc.. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8# 9 Exhibit 9# 10 Exhibit 10# 11 Exhibit 11)(Clark, Melanca) (Entered: 07/26/2007)
2007-07-2614MEMORANDUM OF LAW in Support re: 12 FIRST MOTION for Summary Judgment.. Document filed by NAACP Legal Defense and Educational Fund, Inc.. (Clark, Melanca) (Entered: 07/26/2007)
2007-08-0315ENDORSED LETTER addressed to Gerard E. Lynch from Lara K. Eshkenazi dated 8/2/07 re: Counsel writes to respond to plaintiff's motion for partial summary judgment to 8/16/07. ENDORSEMENT: So Ordered. Motions due by 8/16/2007. (Signed by Judge Gerard E. Lynch on 8/3/07) (jco) (Entered: 08/06/2007)
2007-08-1616MOTION for Partial Summary Judgment. Document filed by United States Department of Housing and Urban Development.Responses due by 8/30/2007(Eshkenazi, Lara) (Entered: 08/16/2007)
2007-08-1617MEMORANDUM OF LAW in Support re: 16 MOTION for Partial Summary Judgment. and in opposition to plaintiff's motion for partial summary judgment . Document filed by United States Department of Housing and Urban Development. (Eshkenazi, Lara) (Entered: 08/16/2007)
2007-08-1618DECLARATION of Darlene Hall in Support re: 16 MOTION for Partial Summary Judgment.. Document filed by United States Department of Housing and Urban Development. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F)(Eshkenazi, Lara) (Entered: 08/16/2007)
2007-08-1619DECLARATION of J. Bryan Howell in Support re: 16 MOTION for Partial Summary Judgment.. Document filed by United States Department of Housing and Urban Development. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Eshkenazi, Lara) (Entered: 08/16/2007)
2007-08-2320REPLY MEMORANDUM OF LAW in Support re: 12 FIRST MOTION for Summary Judgment.. Document filed by NAACP Legal Defense and Educational Fund, Inc.. (Colangelo, Matthew) (Entered: 08/23/2007)
2007-08-3121ORDER: defendant may file a reply brief in regards to its Motion for Partial Summary Judgement by 9/1/07. Set Deadlines/Hearing as to 16 MOTION for Partial Summary Judgment: Replies due by 9/10/2007. (Signed by Judge Gerard E. Lynch on 8/31/07) (db) (Entered: 08/31/2007)
2007-09-1022REPLY MEMORANDUM OF LAW in Support re: 16 MOTION for Partial Summary Judgment.. Document filed by United States Department of Housing and Urban Development. (Eshkenazi, Lara) (Entered: 09/10/2007)
2007-11-3023OPINION & ORDER # 95475 denying re: 12 FIRST MOTION for Summary Judgment, filed by NAACP Legal Defense and Educational Fund, Inc. granting 16 MOTION for Partial Summary Judgment, filed by United States Department of Housing and Urban Development. The Clerk is respectfully directed to close this case. (Signed by Judge Gerard E. Lynch on 11/30/07) (cd) Modified on 12/11/2007 (rw). (Entered: 11/30/2007)
2007-11-30Transmission to Judgments and Orders Clerk. Transmitted re: 23 Memorandum & Opinion,, to the Judgments and Orders Clerk. (cd) (Entered: 11/30/2007)
2007-12-0324CLERK'S JUDGMENT in favor of United States Department of Housing and Urban Development against NAACP Legal Defense and Educational Fund, Inc. that plaintiff's motion for summary judgment is denied, defendant's motion is granted and the case is closed. (Signed by J. Michael McMahon, Clerk on 12/3/07) (jf) (Entered: 12/03/2007)
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by FOIA Project Staff
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