Neighborhood Assistance Corporation of America v. HUD, No. 11-cv-1175, 2013 WL 5314457 (D.D.C. Sept. 24, 2013) (Wilkins, J.)

Tuesday, September 24, 2013
Re: Request for certain records concerning Neighborhood Corporation of America Disposition: Granting in part and denying in part plaintiff's motion for summary judgment; granting in part and denying in part defendant's cross-motion for summary judgment
  • Litigation Considerations, Adequacy of Search:  The court finds that defendant's search was inadequate.  The court "agrees with [plaintiff] that [defendant] ignored obvious leads."  The court explains that, "upon learning that [defendant's] Secretary Donovan was personally involved with the decision to withhold [plaintiff's] grant based on [defendant's] ongoing performance review, [defendant] should have pursued that lead by searching the Secretary's email messages for other responsive records related to [defendant's] performance review of [plaintiff]."  Additionally, the court finds that "[s]ince [another defendant employee] appears to have directly reviewed and approved [defendant's] response concerning [plaintiff's] performance review, it seems likely that she might possess additional records responsive to [plaintiff's] request."  Therefore, the court concludes that, "[i]t may be that [defendant's] search of these sources yields no additional records, but until [defendant] pursues these leads, the Court cannot say that an adequate search has occurred."
  • Exemption 5, Deliberative Process Privilege:  The court "concludes that the contested materials do not reveal any nefarious government wrongdoing that would preclude [defendant's] reliance on the deliberative process privilege."  The court notes that plaintiff argues that "governmental misconduct on [defendant's] part precludes its reliance on the privilege in this case"  The court first rejects plaintiff's "argument that the OIG audit or [defendant's] program review were politically motivated."  The court explains that, "[plaintiff] simply fails to establish that [defendant's] decision to undertake the OIG audit or the performance review approaches the type of extreme governmental wrongdoing that would preclude the application of the deliberative process privilege."  The court then concludes that "[a]bsent some tangible, negative consequences against [plaintiff] flowing from the audit, it is difficult to discern how [defendant's] involvement with the audit process could amount to improper interference, much less the type of nefarious interference that would preclude the application of FOIA Exemption 5."
  • Exemption 5, Attorney-Client Privilege:  The court explains that "since the court already concluded that [these] records were properly withheld under the deliberative process privilege, it need not separately determine whether they could also be withheld on an alternative basis."  "As best the Court can tell, only one document remains an outlier."  Regarding this document, however, the court finds that "[plaintiff] offers no particularized argument as to why the attorney-client communication privilege should not and does not apply here."  "The Court thus concludes that [defendant] properly withheld this document based on the attorney-client privilege under FOIA Exemption 5."
  • Attorney Fees:  The court "declines to rule on [plaintiff's] request for attorneys' fees at this juncture" because "[plaintiff] has not submitted any underlying documentation in support of its fee request, as required," and "the court's resolution of the parties' summary judgment motions may facilitate more meaningful discussions to informally resolve [plaintiff's] fee requests, absent further judicial involvement."  However, the court notes that "[w]ithout making any findings at this point, the court does note—with an eye toward advancing the parties' discussions—that [plaintiff] is likely to be awarded at least some amount of fees, given the Court's ruling on the adequacy of [defendant's] search efforts; on the other hand, since [defendant] successfully defended its withholdings under the deliberative process privilege (and otherwise), it is unlikely that a full fee award would be justified."
Adequacy of Search
Attorney Fees
District Court
Exemption 5
Litigation Considerations
Updated August 6, 2014