Public Citizen, Inc. v. United States Department of Housing and Urban Development

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. 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, 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 ...

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