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),

, 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.

1 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,

(D.D.C. 2018), cert.

granted,

(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

(a)(6)(A)(i)). Public Citizen filed this lawsuit April 1, 2019, petitioning the Court to

compel production of the documents, among other relief.

. 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

2 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).

But several other redactions were labeled “Non Responsive Record” and did not

cite any of FOIA’s exemptions.

Relying on the D.C. Circuit’s decision in American Immigration Lawyers Association v.

Executive Office for Immigration Review (AILA),

(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,

, 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.,

(D.C. Cir. 2015) (citing

U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press,

, 755 & n.6

(1989)). “FOIA cases typically and appropriately are decided on motions for summary

judgment.” Defs. of Wildlife v. U.S. Border Patrol,

(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.,

, 37

3 (D.D.C. 2017) (quoting Founding Church of Scientology of Wash., D.C., Inc. v. NSA,

(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

(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.”

. “[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.”

1 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.

4 But AILA expressly declined to define what constitutes a “record,” the term FOIA uses to

refer to discrete units of disclosable information.

. FOIA provides no definition, so the

Court of Appeals decided to defer to the agency’s own understanding of the term.

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.”

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.’”

. 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.’”

.

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,

,

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,

, 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

5 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,

, 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,

(“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.,

, 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,

, 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,

). 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,

(“This midstream attempt to move the goalposts only underscores the weakness of the government’s position.” (emphasis added)).

6 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.

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.

. It denied summary

judgment on those issues and invited the parties to come back with more information.

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

7 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,

), 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,

.

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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