FOIA Appeal: Title VIII Investigation File

Legal Opinion: GMP-0074

Index: 7.330, 7.350, 7.413

Subject: FOIA Appeal: Title VIII Investigation File

April 21, 1992

Mr. Robert L. Sallee

2943 Kalakaua Avenue

Honolulu, Hawaii 96815

Dear Mr. Sallee:

This is in response to your Freedom of Information Act

(FOIA) appeal dated March 18, 1991. By fax message dated

February 6, 1991 to LaVera Gillespie, Director, Office of Fair

Housing and Equal Opportunity, San Francisco Regional Office,

you requested copies of the Final Investigation Report, the

entire investigation file and any other written material,

pertaining to your case, Sallee vs. Tropic Seas, Inc., HUD

Case No. 09-89-1381-1. In a letter dated February 21, 1991,

Dirk Murphy, Public Information Officer, San Francisco Regional

Office, released copies of information pertaining to your request

except intra-office documents, withheld under Exemption 5, and

information pertaining to conciliation, withheld under

Exemption 3.

I have determined to affirm the initial denial.

The following documents are being withheld under the

deliberative process privilege of Exemption 5, which protects

predecisional information involved in the decisionmaking process:

\(1\) Memorandum to the File dated July 5, 1990 from Lynne Coleman,

Investigator, Office of Fair Housing and Equal Opportunity, San

Francisco Regional Office; (2) Completeness Checklist-Title VIII

Cases, by Lynne Coleman, dated June 22, 1990; (3) Memorandum

dated July 24, 1990 from Jacquelyn Shelton, Director, Office of

Fair Housing Enforcement and Section 3 Compliance, to

David Enzel, Acting Assistant General Counsel for Fair Housing;

\(4\) Memorandum to the File dated August 15, 1989 and accompanying

case activity chronology from June 6, 1989 to November 14, 1989;

\(5\) Memorandum to the File dated February 9, 1990 by

Leona Crabbe, Investigator; (6) Handwritten Memoranda to the File

dated April 4 and 23, May 18, and June 8, 1990 by Lynne Coleman,

Investigator; and (7) Eight pages of typed notes, author not

identified.

Exemption 5 of the FOIA exempts from mandatory disclosure

\"inter-agency or intra-agency memoranda or letters which would

not be available by law to a party . . . in litigation with the

agency.\" 5 U.S.C. 552(b)(5). Exemption 5 incorporates a number

of privileges known to civil discovery, including the

deliberative process privilege, the general purpose of which is

to \"prevent injury to the quality of agency decisions.\" NLRB v.

Sears, Roebuck & Co., 421 U.S. 132, 151 (1975).

2

A document can qualify for exemption from disclosure under

the deliberative process privilege of Exemption 5 when it is

predecisional, i.e., \"antecedent to the adoption of an agency

policy,\" Jordan v. Department of Justice, 591 F.2d 753, 774

(D.C. Cir. 1978) (en banc), and deliberative, i.e., \"a direct

part of the deliberative process in that it makes recommendations

or expresses opinions on legal or policy matters.\" Vaughn v.

Rosen, 523 F.2d 1136, 1144 (D.C. Cir. 1975).

The intra-office memorandum and other memoranda to the file

and notes, and the Title VIII Completeness Checklist constitute

predecisional deliberative material. These records are part of

the Agency decisionmaking process regarding the investigation,

case analysis and disposition of your Title VIII complaint. As

such, the information is protected and, thus, exempt from

disclosure under the FOIA\'s Exemption 5. Release of the

predecisional information would harm the Agency\'s deliberative

process by inhibiting employees from expressing open and candid

views in predecisional reviews and recommendations. In addition,

this material does not contain factual information which is

reasonably segregable for release. Therefore, I am affirming the

denial of this information under Exemption 5.

In addition, the following documents are being withheld

under Exemption 3, 5 U.S.C. 552(b)(3): (1) Memorandum to the

File dated February 9, 1990 by Leona Crabbe, Investigator;

\(2\) Handwritten Memoranda to the File dated April 4 and 23,

May 18, and June 8, 1990 by Lynne Coleman, Investigator; (3)

Eight pages of typed notes, author not identified. Exemption 3

incorporates the disclosure prohibitions that are contained in

various other Federal statutes. The Fair Housing Amendments Act

of 1988, P.L. 100-430, amends Title VIII of the Civil Rights Act

of 1968 to prohibit disclosure of information obtained in the

course of conciliation. 42 U.S.C. 3610(d). See also, 24 C.F.R.

103.330. The investigators\' handwritten and typed memoranda and

other notes pertain to matters involving conciliation of the

case. This information was properly withheld under the

non-disclosure prohibitions of Title VIII, as amended, as an

Exemption 3 statute.

Pursuant to 24 C.F.R. 15.21 I have determined that the

public interest in protecting the deliberative process militates

against disclosure of the information listed above.

Please be advised that you are entitled to judicial review

of this determination under 5 U.S.C. 552(a)(4).

Very sincerely yours,

C.H. Albright, Jr.

Principal Deputy General Counsel