UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
PUBLIC CITIZEN, INC.,
Plaintiff,
v. Civil Action No. 1:19-cv-00915 (CJN)
UNITED STATES DEPARTMENT OF
HOUSING AND URBAN
DEVELOPMENT,
Defendant.
MEMORANDUM OPINION
Plaintiff Public Citizen, Inc. sued to enforce a request under the Freedom of Information
Act (FOIA), 5 U.S.C. § 552, seeking documents relating to an unofficial housing policy shift by
Defendant, the Department of Housing and Urban Development (HUD). See Compl. ¶ 1, ECF
No. 1. Once HUD began production, however, Public Citizen noticed that certain otherwise-
responsive documents contained redactions labeled “non-responsive record.” See Pl.’s Mot. for
Partial Summ. J. (“Pl.’s Mot.”) at 2–3, ECF No. 14. Public Citizen alleges that this practice
violates FOIA and moves for partial summary judgment to compel HUD to disclose the redacted
material in documents that have been produced so far and to cease the redaction of non-
responsive content going forward. See generally Pl.’s Mot. HUD cross-moves for summary
judgment on the same issue, arguing that the redacted portions qualify as separate, non-
responsive “records” under FOIA and that its practice is therefore lawful. See generally Def.’s
Opp’n to Pl.’s Mot. for Partial Summ. J. and Cross-Mot. for Partial Summ. J., ECF No. 22;
Def.’s Mem. in Supp. of Def.’s Opp’n to Pl.’s Mot. for Partial Summ. J. and Cross Mot. for
Partial Summ. J. (“Def.’s Mot.”), ECF No. 22-1.
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For the reasons discussed below, the Court does not have enough information to grant
judgment for either side at this point and therefore denies the Cross-Motions as premature,
although it endeavors to provide general guidance to the Parties for future document productions.
I. Background
The underlying FOIA request relates to the government’s Deferred Action for Childhood
Arrivals (“DACA”) program, which permits “certain undocumented aliens who had been
brought to the United States as children to be treated as low priorities for removal under the
federal immigration laws.” NAACP v. Trump, 298 F. Supp. 3d 209, 216 (D.D.C. 2018), cert.
granted, 139 S. Ct. 2779 (2019). The Complaint alleges that, sometime prior to December 2018,
HUD permitted DACA participants to qualify for home loans insured by the Federal Housing
Administration (FHA). Compl. ¶¶ 5–6. According to media reports, however, HUD quietly
modified that policy and began informally instructing lenders not to permit DACA participants
to apply for FHA-backed mortgages. Id. ¶ 6.
Shortly thereafter, Public Citizen filed a FOIA request seeking documents related to
HUD’s DACA policies. Id. ¶ 8. HUD acknowledged the request but failed to produce any
documents within the statutorily mandated time frame. Id. ¶ 15 (citing 5 U.S.C.
§ 552(a)(6)(A)(i)). Public Citizen filed this lawsuit April 1, 2019, petitioning the Court to
compel production of the documents, among other relief. Id. ¶ 19. HUD began producing
responsive documents in June, and to date has reviewed and produced several thousands of
pages, with more than 2,200 pages remaining in the queue. See Joint Status Report of Mar. 13,
2020 ¶ 4, ECF No. 32.
Upon receiving and reviewing HUD’s first two batches of produced documents, Public
Citizen discovered that many of the produced pages contained redactions, with each redaction
labeled with a short justification for withholding the material (as is common with documents
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obtained under FOIA). Pl.’s Mot. at 2. Many redactions were premised upon one of FOIA’s
statutorily permitted exemptions—either Exemption 5 (intra-agency memoranda) or Exemption
6 (privacy). Id. But several other redactions were labeled “Non Responsive Record” and did not
cite any of FOIA’s exemptions. Id.
Relying on the D.C. Circuit’s decision in American Immigration Lawyers Association v.
Executive Office for Immigration Review (AILA), 830 F.3d 667 (D.C. Cir. 2016), Public Citizen
moves for partial summary judgment to stop HUD from redacting unresponsive portions of
otherwise responsive documents. See generally Pl.’s Mot. HUD filed its own Motion, arguing
that its practice is lawful because the redacted portions are separate records, and also opposed
Public Citizen’s Motion on the ground that the Court cannot resolve the question until HUD
completes its document production. See generally Def.’s Mot.
II. Legal Standard
FOIA “mandates that an agency disclose records on request, unless they fall within one
of nine exemptions.” Milner v. Dep’t of Navy, 562 U.S. 562, 565 (2011). “These exemptions are
explicitly made exclusive and must be narrowly construed.” Id. (internal quotations omitted).
“The burden is on the agency to justify withholding the requested documents, and . . . FOIA
directs district courts to determine de novo whether non-disclosure was permissible.” Elec.
Privacy Info. Ctr. v. U.S. Dep’t of Homeland Sec., 777 F.3d 518, 522 (D.C. Cir. 2015) (citing
U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755 & n.6
(1989)). “FOIA cases typically and appropriately are decided on motions for summary
judgment.” Defs. of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009). “‘It is
well settled in [FOIA] cases as in any others that summary judgment may be granted only if the
moving party proves that no substantial and material facts are in dispute and that [it] is entitled to
judgment as a matter of law.’” Lamb v. Millennium Challenge Corp., 228 F. Supp. 3d 28, 37
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(D.D.C. 2017) (quoting Founding Church of Scientology of Wash., D.C., Inc. v. NSA, 610 F.2d
824, 836 (D.C. Cir. 1979)); see also Fed. R. Civ. P. 56(a).
III. Analysis
Public Citizen does not (yet) challenge any of HUD’s redactions premised on one of the
available exemptions listed in the statute, see 5 U.S.C. § 552(b)(5)–(6), so the narrow issue
before the Court is whether HUD’s redactions of what it claims are “non responsive records” is
permissible under FOIA. See Pl.’s Mot. at 4–8; Def.’s Mot. at 2–5. With respect to the records
before the Court, the redactions are not limited to pages or large sections of otherwise-responsive
documents; they instead include the majority of minutes of a meeting (with a small portion
directly responsive to Public Citizen’s request left unredacted), individual bullet points from
PowerPoint slides, and individual paragraphs or sentences in email chains. See Pl.’s Mot. at 2–3;
see also Pl.’s Mot. Ex. 4, ECF No. 14-6 (compiling all pages containing redactions for non-
responsive records from the July 2, 2019 batch of produced documents). 1
The D.C. Circuit addressed this type of approach in AILA, where it held that there is “no
statutory basis for redacting ostensibly non-responsive information from a record deemed
responsive.” 830 F.3d at 670. “[O]nce the government concludes that a particular record is
responsive to a disclosure request, the sole basis on which it may withhold particular information
within that record is if the information falls within one of the statutory exemptions from FOIA’s
disclosure mandate.” Id.
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Plaintiff’s Motion, which was filed early in the course of production, challenges only the
redactions contained in the June 4, July 2, and August 7, 2019 batches. See Pl.’s Mot. at 2–3 &
n. 3. At the Court’s direction, HUD has continued to review and produce documents while the
Cross-Motions have been pending before the Court. Although the Cross-Motions address only
the first few batches, the Parties’ arguments apply generally to all documents produced in
response to Public Citizen’s FOIA request.
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But AILA expressly declined to define what constitutes a “record,” the term FOIA uses to
refer to discrete units of disclosable information. Id. at 678. FOIA provides no definition, so the
Court of Appeals decided to defer to the agency’s own understanding of the term. Id. In other
words, “once an agency itself identifies a particular document or collection of material—such as
a chain of emails—as a responsive ‘record,’ the only information the agency may redact from
that record is that falling within one of the statutory exemptions.” Id. at 678–79. The Court
declined to set parameters on just how small “records” can be, but it noted that it found “it
difficult to believe that any reasonable understanding of a ‘record’ would permit withholding an
individual sentence within a paragraph within an email on the ground that the sentence alone can
be conceived of as a distinct, non-responsive ‘record.’” Id. at 679. Finally, the Court
recommended the Justice Department’s internal guidance on how to define the term, which “sets
forth a number of considerations for agencies to take into account when determining whether it is
appropriate to divide . . . a document into discrete ‘records.’” Id. at 678.
Judges in this District have had several opportunities to answer that question since AILA
and have reached varying results depending on the unique facts of each case. For example, while
an e-mail chain itself might be a single record, attached documents may qualify as separate
“records.” See Brady Ctr. to Prevent Gun Violence v. U.S. Dep’t of Justice, 410 F. Supp. 3d 225,
235–37 (D.D.C. 2019). Yet other judges have come out the other way. See Parker v. U.S. Dep’t
of Justice, Office of Prof’l Responsibility, 278 F Supp. 3d 446, 450–52 (D.D.C. 2017) (treating
cover letter and attached draft document as a single record). Sometimes a large document is a
single “record” and cannot be subdivided. See Gatore v. U.S. Dep’t of Homeland Sec., CA No.
15-459, 2017 WL 10777326, at *2–3 (D.D.C. Jun. 27, 2017) (compelling production of the
Department’s entire “FOIA Processing Guide” as a single record). But sometimes documents
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otherwise stored in the same folder may be separate, segregable records. See Eakin v. U.S. Dep’t
of Def., No. SA-16-cv-972-RCL, 2019 WL 6877475, at *2–3 (W.D. Tex. Dec. 17, 2019)
(Lamberth, J.) (permitting Department to remove records of prior FOIA requests from folders
containing responsive original material before production).
At least one trend has emerged: it is usually improper to identify individual words,
sentences, or paragraphs in discrete documents or emails and to label them as separate, non-
responsive “records.” See AILA, 830 F.3d at 679 (“We find it difficult to believe that any
reasonable understanding of a ‘record’ would permit withholding an individual sentence within a
paragraph within an email on the ground that the sentence alone could be conceived of as a
distinct, non-responsive ‘record.’”); Am. Oversight v. U.S. Dep’t of Health and Human Servs.,
380 F. Supp. 3d 45, 50–51 (D.D.C. 2019) (“[I]t is commonly understood that an email chain
operates as a single record.”); Inst. for Policy Studies v. CIA, 388 F. Supp. 3d 51, 53–54 (D.D.C.
2019) (“Manuals need not be read cover-to-cover to be useful; a book author likely intends his
audience to encounter a few pages at a time. But a daily or weekly intelligence summary—itself
just a few pages long—is an unlikely candidate for piecemeal consumption.”). 2
Relying on those cases, Public Citizen urges the Court to lay down categorical rules that
will both address redactions in the documents HUD has already produced and govern production
going forward. See Pl.’s Mot. at 8. But as at least one judge in this district has concluded, it’s
2
HUD notes that Institute for Policy Studies dealt with a request that was already in progress
when the D.C. Circuit decided AILA, and therefore the agency had already identified responsive
records and could not retroactively try to subdivide the documents into even smaller records
later. See Def.’s Reply at 7 (citing Inst. for Policy Studies, 388 F. Supp. 3d at 53). That’s true,
but that was only one factor on which the court relied in reaching its conclusion that the agency
could not subdivide the documents into separate records. See Inst. for Policy Studies, 388 F.
Supp. 3d at 53 (“This midstream attempt to move the goalposts only underscores the weakness of
the government’s position.” (emphasis added)).
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possible for a court both to pronounce general guidance on how to define the term “record” and
to be unable to make concrete determinations about specific redactions. In Shapiro v. CIA, 247
F. Supp. 3d. 53, 73–75 (D.D.C. 2017), the court approved of the FBI’s practice of culling
responsive pages from large documents (along with neighboring pages, if necessary to provide
context) and producing the abbreviated, responsive “record” rather than processing and releasing
entire manuals or books. Id. But the court also determined that it could not evaluate individual
challenges to specific withholdings simply by applying that rule; it needed information about
how and why the agency had determined that specific information was part of a separate, non-
responsive record and therefore not subject to production. Id. at 75. It denied summary
judgment on those issues and invited the parties to come back with more information. Id.
The Court faces a similar situation here. Although HUD has produced several thousands
of pages, it still has a few thousand more pages to review and hand over. See Joint Status Report
of Mar. 13, 2020 ¶ 4. The Court has before it no Vaughn index, no comprehensive list of
challenged redactions, and no government affidavits explaining the rationale for considering all
of HUD’s specific redactions as records separate and distinct from the produced materials. To be
sure, the government has submitted an affidavit providing explanations for certain records
produced in the early stages of litigation, see generally Decl. of Deena Jih, ECF No. 21-3, but the
Court anticipates that there will be additional disputed redactions for which the government will
need to articulate its basis for treating them as separate records. The Court does not believe it
makes sense to rule on some challenged redactions and then to have to revisit the topic in the
context of additional documents.
The Court therefore denies both Cross-Motions for Partial Summary Judgment without
prejudice and invites the Parties to renew their motions once HUD has handed over all
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documents it claims are responsive and a Vaughn index, and once Public Citizen has had an
opportunity to review the documents and form objections to specific redactions (or categories
thereof). Public Citizen will also have an opportunity at that point to challenge other
withholdings (such as redactions on the basis of one of the available statutory exemption
categories) and any other aspects of HUD’s response Public Citizen believes to have been
unlawful.
A final note. HUD characterizes as mere “dicta” AILA’s skepticism to the characterizing
of individual emails in a chain (or paragraphs or sentences thereof) as separate records, Def.’s
Reply at 5 (citing AILA, 830 F.3d at 679), but AILA’s statement seems likely to hold true in most
circumstances. While the Court can theoretically imagine a situation in which a single bullet
point from a PowerPoint slide or a single email in a chain (or subdivision thereof) might be
considered a separate record, it is skeptical that the government will be able to justify that step
outside extraordinary circumstances. A contrary approach would be “unduly literal and stingy.”
Am. Oversight, 380 F. Supp. 3d at 51.
IV. Conclusion
For the foregoing reasons, Plaintiff’s Motion for Partial Summary Judgment is hereby
DENIED without prejudice. Defendant’s Motion for Partial Summary Judgment is also
DENIED without prejudice. The Parties may renew their motions at the close of production.
An Order will be entered contemporaneously with this Memorandum Opinion.
DATE: March 26, 2020
CARL J. NICHOLS
United States District Judge
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