UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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ROBERT E. FALKENSTEIN, JR., )
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Plaintiff, )
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v. ) Case No. 12-2000(EGS)
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UNITED STATES DEPARTMENT OF )
HOUSING AND URBAN DEVELOPMENT, )
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Defendant. )
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MEMORANDUM OPINION
Plaintiff Robert E. Falkenstein, proceeding pro se, filed
this Freedom of Information Act (“FOIA”) case against defendant
U.S. Department of Housing and Urban Development (“HUD”).
Pending before the Court is defendant’s motion for summary
judgment, filed on April 12, 2013. On May 8, 2013 the Court
ordered Plaintiff to respond to Defendant’s Motion by no later
than June 10, 2013, and warned plaintiff that his failure to
respond by the deadline could result in dismissal of his case.
Plaintiff never responded to the motion. Upon consideration of
the parties’ pleadings, the relevant law, and the entire record
herein, the motion is GRANTED.1
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Plaintiff has conceded the motion by failing to oppose it;
however, the 2010 amendments to Federal Rules of Civil Procedure
direct that courts “should state on the record the reasons for
granting or denying [the summary judgment] motion.” Fed. R.
Civ. P. 56(a); see also Grimes v. Dist. of Columbia, 464 Fed.
I. BACKGROUND
Unless otherwise noted, the following facts are taken from
the Complaint and from Defendant’s Statement of Undisputed
Material Facts, which is supported by citations to the
Declaration of Deborah R. Snowden, Chief of the FOIA Branch at
HUD, as well as the accompanying Vaughn index and exhibits. By
failing to respond to the motion for summary judgment, plaintiff
has failed to demonstrate the presence of disputed facts, or to
otherwise address the defendant’s assertion of facts as required
by Federal Rule of Civil Procedure 56(c). Accordingly, the
Court accepts the defendant’s assertion of facts as undisputed
for the purposes of the motion, pursuant to Federal Rule of
Civil Procedure 56(e)(2). See also Fed. R. Civ. P 56(e)
advisory committee notes (2010 Amendment) (noting that Rule
56(e)(2) “authorizes the court to consider a fact undisputed for
purposes of the motion when response or reply requirements are
not satisfied.”)
This case involves three FOIA requests made by Plaintiff.
First, on October 20, 2011, HUD received a FOIA request from
Plaintiff for records relating to a 2011 performance review
report regarding the National Council of LaRaza (“NCLR”), and/or
Appx. 3 (D.C. Cir. Mar. 2, 2012). This Circuit has not directly
addressed the District Courts’ obligations under the amended
Rule where, as here, the motion is completely unopposed, see
Grimes, 464 Fed. Appx. 3; nevertheless, the reasons for granting
the motion are set forth here.
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its affiliate Centro De Apoyo Familiar (“CAF”). Specifically,
plaintiff sought NCLR’s and CAF’s written response to the
performance review and any subsequent communication between HUD,
NCLR and CAF regarding the performance review. On July 12,
2012, HUD provided plaintiff with 53 pages of responsive
documents, some of which was redacted under Exemptions (b)(4)
and (b)(6). Plaintiff appealed, asserting the agency’s response
was incomplete in one respect: because it did not provide HUD’s
response to correspondence from NCLR dated December 9, 2011.
HUD processed the appeal and agreed with plaintiff; on September
28, 2012, it sent the requested letter to plaintiff in full.
Upon being served with the Complaint in this case, HUD learned
that plaintiff had not received the letter; accordingly, on
January 15, 2013, HUD, via the Department of Justice, provided
the letter to plaintiff.
Plaintiff’s second request was also received by HUD on
October 20, 2011. Plaintiff requested HUD’s last two
intermediary performance reviews of NCLR, including information
regarding NCLR’s quality control plans used to monitor the
performance of NCLR’s sub-grantees. Although Plaintiff and
various personnel within HUD corresponded regarding the FOIA
request, HUD did not provide documents to plaintiff until he
filed this lawsuit. Plaintiff’s request was ultimately routed
to HUD’s Office of Housing. The FOIA specialist in that office
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identified the Office of Housing Counseling Division as the
appropriate office to respond to plaintiff’s request. The
Director and Deputy Director of that division conducted a search
of division files. Subsequently, on February 4, 2013, HUD
provided all responsive documents to the second request, with
some redactions under Exemptions b(4) and b(6).
On September 26, 2013, plaintiff filed his third FOIA
request, seeking all documentation and/or communication
regarding the delay in processing his second request. Plaintiff
filed this request via HUD’s website, but it was not received by
HUD and therefore not assigned a control number. HUD was not
aware of plaintiff’s third request until this case was filed.
Upon learning of the request, HUD’s Office of the Executive
Secretariat performed a search of FOIA Express, the software
system used to track FOIA requests, as well as a search of the
email of Deirdra Jenkins, the FOIA processor who processed
plaintiff’s second FOIA request. On March 4, 2013, the
government provided plaintiff with a report from FOIA Express
and eleven emails. No redactions were made.
II. STANDARD OF REVIEW
Pursuant to Federal Rule of Civil Procedure 56, summary
judgment should be granted if the moving party has shown that
there are no genuine issues of material fact and that the moving
party is entitled to judgment as a matter of law. See Fed. R.
4
Civ. P. 56. In a FOIA case, the burden of proof is always on
the agency to demonstrate that it has fully discharged its
obligations under the FOIA. See Dep’t of Justice v. Tax
Analysts, 492 U.S. 136, 142 n.3 (1989).
An agency from which information has been requested must
undertake a search that is “reasonably calculated to uncover all
relevant documents.” Weisberg v. Dep’t of Justice, 705 F.2d
1344, 1351 (D.C. Cir. 1983). “[T]he adequacy of a FOIA search
is generally determined not by the fruits of the search, but by
the appropriateness of the methods used to carry out the
search.” Iturralde v. Comptroller of the Currency, 315 F.3d 311,
315 (D.C. Cir. 2003). The Court applies a “reasonableness test
to determine the adequacy of search methodology.” Campbell v.
Dep’t of Justice, 163 F.3d 20, 27 (D.C. Cir. 1998). The agency
must demonstrate that it “made a good faith effort to conduct a
search for the requested records, using methods which can be
reasonably expected to produce the information requested.”
Fischer v. Dep’t of Justice, 596 F. Supp. 2d 34, 42 (D.D.C.
2009) (citations omitted). Agency affidavits are afforded a
“presumption of good faith” and an adequate affidavit can be
rebutted only with evidence that the agency's search was not
made in good faith. Defenders of Wildlife v. Dep’t of the
Interior, 314 F. Supp. 2d 1, 8 (D.D.C. 2004). Courts routinely
find that delays in responding to FOIA requests are not, in and
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of themselves, indicative of agency bad faith. See, e.g.,
Iturralde, 315 F.3d at 315 ("initial delays in responding to a
FOIA request are rarely, if ever, grounds for discrediting later
affidavits by the agency"); Fischer, 723 F. Supp. 2d 104, 108-09
(D.D.C. 2010) (rejecting argument that agency's failure to
produce documents until after litigation commenced evidenced
agency's bad faith).
FOIA's “strong presumption in favor of disclosure places
the burden on the agency to justify the withholding of any
requested documents.” Dep’t of State v. Ray, 502 U.S. 164, 173
(1991). The government may satisfy its burden of establishing
its right to withhold information from the public by submitting
appropriate declarations and, where necessary, an index of the
information withheld. See Vaughn v. Rosen, 484 F. 2d 820, 827-28
(D.C. Cir. 1973). “If an agency's affidavit describes the
justifications for withholding the information with specific
detail, demonstrates that the information withheld logically
falls within the claimed exemption, and is not contradicted by
contrary evidence in the record or by evidence of the agency's
bad faith, then summary judgment is warranted on the basis of
the affidavit alone.” ACLU v. Dep’t of the Defense, 628 F.3d
612, 619 (D.C. Cir. 2011); see id. (agency’s justification for
invoking a FOIA exemption is sufficient if it appears logical or
plausible).
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III. DISCUSSION
Defendant’s summary judgment motion, which has not been
opposed by Plaintiff, should be granted. Defendant properly
relies on a detailed declaration that demonstrates the adequacy
of the searches for plaintiff’s FOIA requests. HUD states that
based on plaintiff’s first and second requests regarding NCLR
and its affiliates and sub-grantees, it identified the Office of
Housing, Counseling Division, as the office most likely to have
responsive records. See generally Snowden Decl. HUD further
states that based on plaintiff’s third request regarding the
delay in processing the second request, it identified the Office
of Executive Secretariat as the most likely to have responsive
records. Id. It sets forth the individuals tasked with
searching and the processes undertaken to search for documents
in these offices. Id. Plaintiff has filed no opposition and
accordingly has not attempted to rebut the presumption of good
faith to which the agency declaration is entitled. The Court
thus finds that the searches described by HUD could be
“reasonably expected to produce the information requested and
were therefore adequate.” See Fischer, 596 F. Supp. 2d at 43.
The agency has likewise met its burden to show that
Exemptions 4 and 6 apply to the information it withheld in
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response to Plaintiff’s second FOIA request.2 Exemption 4
exempts from disclosure information that is (1) commercial or
financial, (2) obtained from a person, and (3) privileged or
confidential. 5 U.S.C. § 552(b)(4). Where, as here, the
submission of the information was compelled, it is exempt from
disclosure if disclosure “would be likely either (1) to impair
the government’s ability to obtain necessary information in the
future; or (2) to cause substantial harm to the competitive
position of the person from whom the information was obtained.”
McDonnell Douglas Corp. v. NASA, 180 F.3d 303, 305 (citations
omitted).
In this case, the government has submitted a declaration as
well as a Vaughn index describing each document from which
information was withheld, detailing the information which was
withheld, and explaining the basis for withholding. See Snowden
Decl.; see also Vaughn Index of Redacted Documents at 3-4. The
affidavit and Vaughn Index provided by HUD indicate that the
2
HUD withheld certain information from its response to
Plaintiff’s first request as well, also citing Exemptions 4 and
6. Plaintiff did not appeal the use of the exemptions, however;
he only appealed HUD’s failure to provide its response to
correspondence from NCLR dated December 9, 2011. See Compl. ¶¶
13-18; Snowden Decl. ¶¶ 10-13. Accordingly, because plaintiff
did not exhaust his administrative remedies as to the use of
Exemptions 4 and 6, he cannot seek judicial review. Dettmann v.
U.S. Dep’t of Justice, 802 F.2d 1472, 1477 (D.C. Cir. 1986)
(holding that it is possible to exhaust administrative remedies
with respect to one aspect of a FOIA request but not to another
aspect).
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information withheld concerns the private funding and financial
statements of CAF and NCLR, release of which would cause
substantial competitive harm to NCLR. HUD’s justification for
withholding is “logical or plausible,” and plaintiff has
provided no argument to the contrary. ACLU v. Dep’t of the
Defense, 628 F.3d at 619. Accordingly, the government has
satisfied its burden to justify withholding information under
Exemption 4.
Exemption 6 covers “personnel and medical files and similar
files the disclosure of which would constitute a clearly
unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6).
A determination of proper withholding under Exemption 6 proceeds
in two stages. First, the Court determines if the information
is subject to protection, specifically, whether the information
is contained in a personnel, medical, or similar file, and if
so, whether “disclosure would compromise a substantial, as
opposed to a de minimis, privacy interest.” Nat’l Ass’n of
Retired Fed. Employees v. Horner, 879 F.2d 873, 874 (D.C. Cir.
1989). If a substantial privacy interest is at stake, the Court
“weigh[s] the privacy interest in nondisclosure against the
public interest in the release of records in order to determine
whether, on balance, the disclosure would work a clearly
unwarranted invasion of personal privacy.” Lepelletier v. FDIC,
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164 F.3d 37, 46 (D.C. Cir. 1999) (internal quotation marks
omitted).
Again, the government has submitted a declaration as well
as a Vaughn index describing each document from which
information was withheld, detailing the information which was
withheld, and explaining the basis for withholding. See Snowden
Decl.; see also Vaughn Index of Redacted Documents at 1-2. The
affidavit and Vaughn Index provided by HUD indicates that the
information withheld consists of the names of private citizens,
most appearing to be in conjunction with either (1) personnel
matters relating to individuals employed by NCLR or CAF, or (2)
personal finance matters relating to individuals served by NCLR
or CAF who are attempting to get out of debt or foreclosure or
to improve their credit. Id. This type of information
implicates substantial privacy interests pursuant to Exemption
6, and the Court is not aware of any public interest in
disclosure of the names, nor has plaintiff indicated that any
exists. Accordingly, the government has satisfied its burden to
justify withholding information under Exemption 6.
Finally, the Court has an affirmative duty to consider
HUD’s segregation of releasable from withheld material. See
Trans-Pac. Policing Agreement v. Customs Serv., 177 F.3d 1022,
1028 (D.C. Cir. 1999). It is the government’s burden to
demonstrate that all reasonably segregable information has been
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released. Army Times Publ’g Co. v. Dep’t of Air Force, 998 F.2d
1067, 1068 (D.C. Cir. 1993). The government can meet is burden
through a combination of the Vaughn Index and agency affidavits.
Johnson v. Exec. Office for U.S. Attorneys, 310 F.3d 771, 776
(D.C. Cir. 2002). The Court’s review of the Snowden Declaration
and the Vaughn index establishes that no segregability problem
exists in this case. The documents have careful and pinpointed
redactions of names and financial information; the remaining
information has been released. This “easily clears the required
hurdle.” Braga v. FBI, 910 F. Supp. 2d 258, 262 (D.D.C. 2012).
IV. CONCLUSION
For the foregoing reasons, the Defendant’s unopposed Motion
for Summary Judgment is GRANTED. An appropriate Order
accompanies this Memorandum Opinion.
Signed: Emmet G. Sullivan
United States District Judge
July 11, 2013
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