Citizens for Responsibility & Ethics in Wash. v. HUD, No. 18-00114, 2019 WL 6311884 (D.D.C. Nov. 25, 2019) (Nichols, J.)

Citizens for Responsibility & Ethics in Wash. v. HUD, No. 18-00114, 2019 WL 6311884 (D.D.C. Nov. 25, 2019) (Nichols, J.)

Re:  Requests for certain records concerning HUD Secretary and his family

Disposition:  Granting in part and denying in part defendant's motion to dismiss
 

• Litigation Considerations, Mootness and Other Grounds for Dismissal & Fees and Fee Waivers, Fees:  "Although the question of whether [plaintiffs] were entitled to fee waivers is no longer live, Plaintiffs have sufficiently alleged that, as a matter of policy or practice, HUD denies such waivers without giving them adequate consideration, particularly when the request's subject may reflect poorly on the agency or its senior officials."  The court relates that "after [plaintiffs] went to court, HUD 'use[d] its administrative discretion to voluntarily' waive the fees."  "Although HUD never changed its position as to whether the Plaintiffs are legally entitled to such waivers, it argues that a judicial decision . . . 'cannot affect the rights of the litigants in the case' at bar."  "Plaintiffs urge the Court to construe the counts alleging an improper denial of fee waivers as also encompassing any potential future FOIA violation HUD may commit while processing these requests, such as improperly exempting material or unreasonably delaying the production of documents."  "But there is less to this dispute than the Parties contend."  "HUD is correct that the plain language of the counts alleges no FOIA violation beyond a wrongful denial of fees and a failure to address [one plaintiff's] claimed news media status."  Therefore, the court dismissed the majority of the complaint.  However, as to one count, the court finds that "[plaintiffs] allege that HUD 'is engaged in a policy and practice of violating the FOIA's fee waiver provisions by intentionally refusing to grant fee waivers to non-profit, public interest organizations that satisfy all the statutory and regulatory criteria . . . where disclosure of the requested documents is likely to cast the agency or [the] HUD Secretary . . . in a negative light.'"  "They assert that HUD's actions have resulted, and will continue to result, in the untimely access to documents to which the plaintiffs and the public are entitled' and 'will continue to harm plaintiffs by requiring them to either pay processing fees notwithstanding their statutory entitlement to a fee waiver or incur the costs and delay[] associated with litigating their entitlement.'"  "To support those allegations, Plaintiffs have pointed to five separate FOIA requests by two unrelated organizations that encountered similar responses consistent with the alleged policy."  The court finds that "[i]t may be the case that HUD engages in a good faith effort to exercise its discretion over fee waivers; or perhaps it has a practice of denying every waiver request in the hope that requesters will abandon their efforts."  "But on a motion to dismiss, the question is merely whether the Complaint adequately alleges a persistent, willful policy of violating FOIA's commands."  "It does."