Legal Opinion: GMP-0119

Index: 7.350, 7.413

Subject: FOIA Appeal: Title VIII Completeness Checklist

September 21, 1992

Suzanne S. Graeser, Esq.

Hopkins & Carley

150 Almaden Boulevard

Fifteenth Floor

San Jose, California 95113-2089

Dear Ms. Graeser:

This is in response to your Freedom of Information Act

(FOIA) appeal dated August 18, 1992. You appeal the partial

denial of information concerning Benson v. Santiago Villa

Mobilehome Park, (HUD Case No. 09-89-1751-1), a housing

discrimination complaint brought under Title VIII of the Civil

Rights Act of 1968. In a letter to you dated July 31, 1992,

Anna-Marie Kilmade Gatons, Director, Executive Secretariat,

provided you with 552 pages of documentation in response to your

request and withheld three documents under Exemptions 2 and 5 of

the FOIA. (FOIA Control No.: FI-298064P).

I have determined to affirm the initial denial under

Exemption 5.

The following documents are being withheld under the

deliberative process privilege of Exemption 5, 5 U.S.C.

Section 552(b)(5), which protects predecisional information

involved in the decision-making process: (1) Memorandum to the

Case File dated June 13, 1990; (2) Portions of a Memorandum dated

June 28, 1990 for Harry L. Carey, Office of Assistant General

Counsel for Fair Housing; (3) Completeness Checklist-Title VIII

Cases.

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. Section 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).

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 memoranda and the Title VIII Completeness

Checklist constitute predecisional deliberative material. These

records are part of the Agency decision-making process regarding

the investigation, case analysis and disposition of the 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.

Pursuant to 24 C.F.R. Section 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. Section 552(a)(4).

Very sincerely yours,

George L. Weidenfeller

Deputy General Counsel (Operations)

cc: Yvette Magruder