UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF NEW YORK

------------------------------------------------------------ x

NAACP LEGAL DEFENSE AND

EDUCATIONAL FUND, INC.,

Plaintiff,

v.

UNITED STATES DEPARTMENT OF

HOUSING AND URBAN DEVELOPMENT,

Defendant.

07 Civ. 3378 (GEL)

ECF CASE

------------------------------------------------------------ x

MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFF’S MOTION FOR

PARTIAL SUMMARY JUDGMENT AND IN SUPPORT OF 

DEFENDANT’S CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT

MICHAEL J. GARCIA

United States Attorney for the

Southern District of New York

86 Chambers Street, 3rd Floor

New York, New York 10007

Telephone: (212) 637-2758

Fax: (212) 637-2702

LARA K. ESHKENAZI

Assistant United States Attorney

– Of Counsel–

Case 1:07-cv-03378-GEL Document 17 Filed 08/16/2007 Page 1 of 20
TABLE OF CONTENTS

PRELIMINARY STATEMENT .................................................. 1

BACKGROUND .............................................................. 3

ARGUMENT ................................................................. 5

I. THE COURT SHOULD DENY PLAINTIFF’S MOTION FOR SUMMARY

JUDGMENT AND DISMISS PLAINTIFF’S CLAIMS AGAINST OIG 

BECAUSE PLAINTIFF FAILED TO EXHAUST ITS ADMINISTRATIVE 

REMEDIES ............................................................ 5

II. OIG HAS FULLY RESPONDED TO THE OIG REQUEST AND HAS PROPERLY

WITHHELD INFORMATION PURSUANT TO APPLICABLE FOIA 

EXEMPTIONS ........................................................ 10

A. FOIA and Summary Judgment Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

B. OIG Properly Withheld Information Pursuant To the Deliberative-Process

Privilege Encompassed by FOIA Exemption 5 . . . . . . . . . . . . . . . . . . . . . . . . . . 12

C. OIG Conducted an Adequate Search for Responsive Records . . . . . . . . . . . . . . 16

CONCLUSION .............................................................. 18

Case 1:07-cv-03378-GEL Document 17 Filed 08/16/2007 Page 2 of 20
PRELIMINARY STATEMENT

Defendant United States Department of Housing and Urban Development (“HUD” or the

“Government”), by its attorney Michael J. Garcia, United States Attorney for the Southern

District of New York, respectfully submits this memorandum of law in opposition to plaintiff’s

motion for partial summary judgment, seeking release of selected documents under the Freedom

of Information Act, 5 U.S.C. § 552 (“FOIA”), and in support of the Government’s cross-motion

for partial summary judgment.

Plaintiff, NAACP Legal Defense and Educational Fund, Inc. (“LDF” or “plaintiff”), seeks

the release under FOIA of certain records relating to HUD’s administration of the Community

Development Block Grant Disaster Recovery Grant Program (“CDBG Program”) with respect to

Hurricanes Katrina and Rita (the “FOIA request”). A portion of the FOIA request concerns

records related to any “studies” conducted by the HUD Office of the Inspector General (“OIG”)

with respect to HUD’s administration of the CDBG Program (the “OIG request”). Pursuant to a

Stipulation and Order dated May 10, 2007 (the “Stipulation”), HUD and LDF agreed to a

schedule regarding HUD’s response to the FOIA request. Because OIG is subject to its own

FOIA regulations, separate and apart from the regulations governing requests for records from

any other component of HUD, the parties further agreed that HUD would transfer the OIG

request to OIG, and that HUD would not provide any responsive documents with respect to that

portion of the FOIA request. 

Due to plaintiff’s failure to follow OIG’s regulations regarding the appropriate address for

FOIA requests related to OIG records, OIG did not receive the OIG request until April 11, 2007. 

Nevertheless, OIG timely responded to the OIG request on April 30, 2007. After additional

correspondence with plaintiff in which plaintiff clarified the scope of its request, OIG provided

Case 1:07-cv-03378-GEL Document 17 Filed 08/16/2007 Page 3 of 20
 Plaintiff’s motion also disputes the withholding of certain “investigative-related” 1

records. In preparing to respond to this motion, however, OIG determined that it could release

all of the investigative documents previously withheld pursuant to FOIA Exemption 5. 

Accordingly, the United States Attorney’s Office, on behalf of OIG, is forwarding the newlyreleased documents to LDF, and plaintiff’s arguments regarding these records are now moot. As

indicated by OIG’s decision to release additional information, had LDF exhausted its

administrative remedies, some of the issues raised by plaintiff would have been resolved prior to

the filing of its motion. See Declaration of J. Bryan Howell, dated August 16, 2007 (“Howell

Decl.”), ¶¶ 8, 20. OIG also withheld some information pursuant to 5 U.S.C. §§ 552(b)(6) and

(7), but because LDF is not challenging those claimed exemptions, OIG will not discuss them

here. See Pl’s Mem. at 11 n.5. 

2

additional responsive documents on June 29, 2007, and informed plaintiff of its right to seek

administrative review of OIG’s decision to withhold any records in whole or in part based on

various FIOA exemptions. Once again, plaintiff deviated from OIG’s regulations by not seeking

administrative review of OIG’s response, and instead filed the current motion before the Court. 

Specifically, plaintiff challenges OIG’s decision to redact and withhold certain audit-related

records containing pre-decisional and deliberative material pursuant to 5 U.S.C. § 552(b)(5)

(“FOIA Exemption 5”). 

1

The Court should deny plaintiff’s motion for summary judgment because LDF failed to

exhaust its administrative remedies as required by OIG’s regulations. See infra at 5-10. Should

the Court choose to reach the merits of LDF’s motion, the Court should deny plaintiff’s motion

and grant the Government’s cross-motion because OIG conducted an adequate search for

responsive records, and properly withheld information that was both pre-decisional and

deliberative pursuant to FOIA Exemption 5. See infra at 10-17. 

Case 1:07-cv-03378-GEL Document 17 Filed 08/16/2007 Page 4 of 20
 The Government is not submitting a Statement pursuant to Local Civil Rule 56.1, or 2

responding to plaintiff’s 56.1 Statement, in accordance with the general practice in this Circuit. 

See Ferguson v. FBI, No. 89 Civ. 5071 (RPP), 1995 WL 329307, at *2 (S.D.N.Y. June 1, 1995)

(in FOIA actions, a requirement to submit a statement under former Local Rule 3(g) would be

“meaningless,” because “the general rule in this Circuit is that in FOIA actions, agency affidavits

alone will support a grant of summary judgment”) (citing Carney v. Dep’t of Justice, 19 F.3d

807, 812 (2d Cir. 1994)). If the Court nevertheless directs the Government to submit such a

Statement, we will do so promptly.

3

BACKGROUND2

LDF sought documents relating to HUD’s administration of the CDBG Program with

respect to Hurricanes Katrina and Rita through a FOIA request dated March 19, 2007, addressed

to HUD’s FOIA Division. Declaration of Darlene Hall (“Hall Decl.”), dated August 15, 2007,

Exh. A. LDF requested both expedited processing and a fee waiver for the FOIA request. Id. 

Paragraph number 3 of the FOIA request sought “[a]ll records relating to any studies conducted

by the HUD Office of the Inspector General regarding HUD’s administration of, or any state

grantee’s administration of, the CDBG Disaster Recovery Grant Program.” Id. OIG is “an

independent agency that operates separately and distinctly from HUD.” Howell Decl. ¶ 3. As

part of its mission, OIG conducts independent and objective audits and investigations for the

purpose of evaluating the efficiency and effectiveness of HUD programs and operations. Id. 

With respect to Hurricanes Katrina and Rita, OIG has been involved in audit and investigationrelated activities concerning HUD’s administration of the supplemental appropriations

designated for the recovery process. Id. ¶ 5.

On April 27, 2007, LDF commenced the current action by filing an Order to Show Cause

claiming that HUD had failed to respond to its FOIA request. On May 10, 2007, the parties

entered into a Stipulation and Order in which HUD agreed to respond to the FOIA request on a

Case 1:07-cv-03378-GEL Document 17 Filed 08/16/2007 Page 5 of 20
 Indeed, the OIG request had already been forwarded to OIG on April 11, 2007, prior to 3

the commencement of this action. Hall Decl. ¶ 3. 

 LDF’s letter and the subsequent correspondence described in this section also addressed

4

other issues related to OIG’s interpretation of the scope of LDF’s FOIA request. Specifically,

LDF believes that its initial request for studies “conducted” by OIG necessary included ongoing

studies. OIG disagrees with this interpretation, and has instead agreed to process LDF’s request

for ongoing studies as a new FOIA request. Because LDF does not at this time challenge that

decision, the Government will not address the portions of the correspondence between OIG and

LDF regarding the scope of the FOIA request. 

4

rolling basis by certain deadlines (the “Stipulation”). Pursuant to the Stipulation, the parties

further agreed that HUD would forward the OIG request to OIG and that HUD would “not 3

provide any responsive documents” to that portion of the request. 

On April 30, 2007, OIG responded to the OIG request. Hall Decl., Exh. B. Specifically,

OIG provided four responsive audit reports. Id. LDF, through a letter to the U.S. Attorney’s

Office dated May 21, 2007, challenged OIG’s response as being too narrow because it did not

include records related to “ongoing . . . monitoring and oversight” of the CDBG program. Hall

Decl., Exh. C. In response, by letter dated May 31, 2007, OIG offered to provide the “working 4

papers” associated with the Katrina-related audit provided to LDF in response to the FOIA

request. Hall Decl., Exh. D. OIG also enclosed an index to all of the working papers associated

with the audit and requested that LDF narrow the scope of its request. Id. Finally, OIG denied

LDF’s request for a fee waiver and expedited processing. Id. 

By letter dated June 11, 2007, LDF clarified that it was not seeking the “working papers”

related to the audits, but rather additional documents related to “extensive onsite monitoring and

oversight of state grantees” of the CDBG program. Hall Decl., Exh. E. LDF further claimed that

OIG should interpret its initial request for OIG “studies” as including “examinations, analyses,

Case 1:07-cv-03378-GEL Document 17 Filed 08/16/2007 Page 6 of 20
 Megibow involved a unique set of circumstances not present here – mainly, a FOIA 5

request for documents from the United States Tax Court. Because the Tax Court was not an

“agency” subject to FOIA and, therefore, did not promulgate any regulations governing FOIA

requests and addressing exhaustion requirements, the Court could not dismiss the claim for

(continued...)

5

investigations, or other reviews” concerning CDBG program administration by HUD, the state of

Louisiana, and the state of Mississippi. Id. In response, OIG located and processed additional

documents related to “analyses or reviews” of the administration if the CDBG program and

provided them to LDF on June 29, 2007. Id., Exh. F. Specifically, after determining that a

portion of the located records was exempt from disclosure pursuant to various FOIA Exemptions,

OIG released redacted versions of 88 out of 133 pages of “audit-related” records, and 42 out of

50 pages of “investigative-related” records. Id. 

Despite OIG’s timely response to the FOIA request, rather than seek administrative

review of OIG’s decision to withhold certain documents in whole or in part pursuant to OIG’s

FOIA regulations, see 24 C.F.R. § 2002.25(a), LDF filed the current motion before the Court. 

ARGUMENT

I. THE COURT SHOULD DENY PLAINTIFF’S MOTION FOR SUMMARY

JUDGMENT AND DISMISS PLAINTIFF’S CLAIMS AGAINST OIG BECAUSE

PLAINTIFF FAILED TO EXHAUST ITS ADMINISTRATIVE REMEDIES

As an initial matter, with respect to the OIG request that is the subject of plaintiff’s

motion, LDF failed to exhaust its administrative remedies as required under FOIA. While this

Court has held that the exhaustion requirements are not jurisdictional, see Megibow v. Clerk of

the U.S. Tax Court, No. 04 Civ. 3321 (GEL), 2004 WL 1961591, at *3 (S.D.N.Y. Aug. 31,

2004), there is no question that “FOIA requires the exhaustion of administrative remedies as a

precondition to suit,” id. (citing Hildago v. F.B.I., 344 F.3d 1256, 1259 (D.C. Cir. 2003)). 

5

Case 1:07-cv-03378-GEL Document 17 Filed 08/16/2007 Page 7 of 20
(...continued) 5

failure to exhaust administrative remedies. 2004 WL 1961591, at *3. The Court did, however,

dismiss the complaint for failure to state a claim under FOIA. Id. at *6. 

6

See also Oglesby v. U.S. Dep’t of the Army, 920 F.2d 57, 61 (D.C. Cir. 1990) (“Exhaustion of

administrative remedies is generally required before filing suit in federal court so that the agency

has an opportunity to exercise its discretion and expertise on the matter and to make a factual

record to support its decision.”).

A FOIA request must (1) “reasonably” describe the records sought, and (2) be “made in

accordance with published rules stating the time, place, fees (if any) and procedures to be

followed[.]” 5 U.S.C. § 552(a)(3)(A). “Omitting one of the two threshold requirements for a

proper FOIA request – that it abide by procedural guidelines – warrants dismissal.” Lowe v.

Drug Enforcement Admin., Civ. No. 06-1133 (CKK), 2007 WL 2104309, at *5 (D.D.C. July 22,

2007) (citing Kessler v. United States, 899 F. Supp. 644, 645 (D.D.C. 1995) (failure to address

FOIA request to appropriate office within the Internal Revenue Service warranted dismissal for

failure to exhaust administrative remedies); Thorn v. Soc. Security Admin., Civ. No. 04-1282,

2005 U.S. Dist. LEXIS 11895, at *9 (D.D.C. June 11, 2005) (“ [a] FOIA request sent to the

wrong office is subject to dismissal for the requester’s failure to exhaust administrative

remedies”); Church of Scientology of Cal. v. IRS, 792 F.2d 146, 150 (D.C. Cir. 1986) (holding

that a regulation directing a requester to mail his request to a specific address was an enforceable

requirement)). 

The regulations governing FOIA requests for OIG records provide specific instructions

regarding OIG’s procedures. OIG’s regulations direct FOIA requesters to send written requests

for records to “The Office of Inspector General, Department of Housing and Urban

Case 1:07-cv-03378-GEL Document 17 Filed 08/16/2007 Page 8 of 20
7

Development, 451 Seventh Street, SW, Room 8260, Washington, DC 20410.” 24 C.F.R. §

2002.3(b). The regulations further provide that “[t]he time of receipt for processing a request for

records is the time it is received by the appropriate office for review.” 24 C.F.R. § 2002.17(b). 

Despite OIG’s regulations, plaintiff addressed its OIG request to HUD’s “Office of

Administration, Office of the Executive Secretariat, FOIA Division,” which is located in the

same building as OIG, but in a different room. See Hall Decl., Exh. A. Because plaintiff

improperly sent its OIG request to HUD headquarters rather than to the OIG address provided in

the regulations, OIG did not receive the request until April 11, 2007. See Hall Decl. ¶ 3, Exh. A. 

 Consistent with FOIA’s requirement that agencies respond to requests within 20 business

days “after the receipt” of a request, see 5 U.S.C. § 552(a)(6)(A)(i), and its own regulations, see

24 C.F.R. § 2002.17(c), OIG responded to the request on April 30, 2007. Hall Decl., Exh. B. 

See also Lowe, 2007 WL 2104309, at *6 (finding that relevant date for purposes of constructive

exhaustion was the date the appropriate component of the agency actually received the request). 

After receiving a letter from plaintiff dated June 11, 2007, clarifying its initial FOIA request,

OIG located and provided additional records to plaintiff on June 29, 2007 (again within 20

business days of the June 11, 2007 letter) with a cover letter explaining its decision to withhold

certain records pursuant to applicable FOIA exemptions. Hall Decl., Exh. F. The letter

explained that pursuant to OIG’s FOIA regulations, plaintiff had 30 days from June 29, 2007 to

seek administrative review of OIG’s decision to withhold certain documents in whole or in part. 

See id.; 24 C.F.R. § 2002.25(a). Plaintiff, having already filed the complaint before this court on

April 27, 2007, never sought administrative review regarding OIG’s response to its FOIA

request. Hall Decl. ¶ 9. 

Case 1:07-cv-03378-GEL Document 17 Filed 08/16/2007 Page 9 of 20
8

As an initial matter, LDF’s decision to send the OIG request to the wrong address alone

constitutes a failure to exhaust its administrative remedies. See West v. Jackson, 448 F. Supp. 2d

207, at 211-12 (D.D.C. 2006) (finding that requester failed to exhaust his administrative

remedies when he sent his FOIA request to the Director of HUD rather than to the address

specified in HUD’s regulations governing FOIA requests); Kessler, 899 F. Supp. at 645. 

Moreover, even if the Court were to excuse LDF’s failure to follow OIG’s regulations

specifying where the request must be addressed because HUD did forward the OIG request to the

appropriate office, the Court should deny relief to LDF because LDF failed to meet its obligation

to seek administrative review of OIG’s response prior to filing a lawsuit. See Hall Decl., ¶ 9

(LDF failed to exhaust its administrative remedies by not filing an administrative review of

OIG’s decision to withhold certain information); see also Lowe, 2007 WL 2104309, at *6

(finding that agency’s timely FOIA response triggered requester’s obligation to seek

administrative review prior to filing suit in district court). “Courts have consistently held that

FOIA requires completion of [the agency’s] appeals process before an individual may seek

judicial relief.” Hogan v. Huff, No. 00 Civ. 6753 (VM), 2002 WL 1359722, at *4 (S.D.N.Y.

June 21, 2002) (citing Dettman v. U.S. Dep’t of Justice, 802 F.2d 1472, 1477 (D.C. Cir. 1986);

Stebbins v. Nationwide Mut. Ins. Co., 757 F.2d 364 (D.C. Cir. 1985)). The failure of plaintiff to

exhaust its administrative remedies warrants summary judgment in favor of the Government. 

See Dettman, 802 F.2d at 1477 (affirming the district court’s decision granting defendant’s

motion for summary judgment based on FOIA requester’s failure to exhaust her administrative

remedies).

Although plaintiff concedes that OIG “has its own staff to process FOIA requests,

Case 1:07-cv-03378-GEL Document 17 Filed 08/16/2007 Page 10 of 20
 The only case plaintiff cites in support of its position that it constructively exhausted its

6

administrative remedies because plaintiff filed its complaint more than ten days after OIG

(continued...)

9

separate from [HUD’s] FOIA Office,” and that OIG did not receive the request until April 11,

2007, plaintiff suggests that it properly exhausted its administrative remedies because OIG did

not respond to plaintiff’s request for expedited processing within ten days pursuant to 5 U.S.C. §

552(a)(6)(E). See Plaintiff’s Memorandum of Law Supporting its Motion for Partial Summary

Judgment (Pl’s Mem.”), at 4, 6-7. Plaintiff is incorrect. As the D.C. Circuit Court has held, an

agency’s constructive denial of a request for expedited processing does not constitute

administrative exhaustion for purposes of a substantive challenge to the agency’s response to the

FOIA request. Judicial Watch, Inc. v. U.S. Naval Observatory, 160 F. Supp. 2d 111, 112-13

(D.C. Cir. 2001). The procedural facts of Judicial Watch are strikingly similar to the case at bar. 

Specifically, in that case, the FOIA requester filed an action in district court challenging the

agency’s failure to respond to her request for expedited processing within ten days, and the

agency’s failure to disclose responsive records. Judicial Watch, 160 F. Supp. 2d. at 112. After

the lawsuit was filed, but within twenty days of the submission of the request, the agency

substantively responded to the FOIA request. Id. The Court held that the agency’s “failure to

timely respond to the request for expedited processing is not equivalent to constructive

exhaustion of administrative remedies as to the request for documents[,]” and, because the time

to file an administrative appeal had expired, the court dismissed the case for lack of jurisdiction. 

Id. at 113 (citing Ogelsby, 920 F.2d at 65 (D.C. Cir. 1990) (“[F]oregoing an administrative

appeal will preclude the requester from ever bringing suit on that request because the individual

will not have exhausted his administrative remedies.”)). 

6

Case 1:07-cv-03378-GEL Document 17 Filed 08/16/2007 Page 11 of 20
(...continued) 6

received the request for expedited processing is Ruotolo v. Dep’t of Justice Tax Div., 53 F.3d 4,

8-9 (2d Cir. 1995). That case is inapposite as it did not involve the failure of an agency to

respond to a request for expedited processing. See id. In Ruotolo, the court found that plaintiffs

exhausted their administrative remedies because the agency had failed to respond to the FOIA

request -- not a request for expedited processing -- within the statutory deadline of ten days. Id. 

The decision in Ruotolo, however, preceded Congresses enactment of Electronic Freedom of

Information Act Amendments of 1996, which extended the deadline for agencies to respond to

FOIA requests from ten days to twenty days. See 5 U.S.C. § 552(a)(6)(A)(i). 

 The exhaustion issue regarding LDF’s OIG request may arise again in this litigation as 7

plaintiff has indicated that the parties “continue to discuss a number of topics concerning the

procession of LDF’s request to OIG . . . and [p]laintiff does not here bring every unresolved issue

to the Court.” Pl’s Mem. at 5. Plaintiff’s apparent attempt to reserve a purported right to

piecemeal litigation of its disputes with OIG illustrates the practical wisdom of the legal

requirement that plaintiff exhaust its administrative remedies concerning all aspects of the OIG

request before seeking relief in this Court. 

10

Here, plaintiff failed to administratively appeal OIG’s response to its request, and the 30-

day time frame for doing so has passed. Thus, by failing to file an administrative appeal, LDF

has forfeited its right to seek review of OIG’s response to plaintiff’s OIG request in this Court. 

See Judicial Watch, 160 F. Supp. 2d at 112; Ogelsby, 920 F.2d at 65. Accordingly, the court

should deny plaintiff’s motion for partial summary judgment and dismiss the complaint because

plaintiff failed to exhaust its administrative remedies with respect to the OIG request. 

7

II. OIG HAS FULLY RESPONDED TO THE OIG REQUEST AND HAS PROPERLY

WITHHELD INFORMATION PURSUANT TO APPLICABLE FOIA EXEMPTIONS

Even in if the Court does not deny plaintiff’s motion due to LDF’s failure to exhaust its

administrative remedies, the Court should deny plaintiff’s motion and grant OIG’s cross-motion

because OIG has fully responded to the OIG request and has properly determined that all

responsive documents that his has withheld in whole or in part are exempt from disclosure

pursuant to FOIA Exemption 5.

Case 1:07-cv-03378-GEL Document 17 Filed 08/16/2007 Page 12 of 20
11

A. FOIA and Summary Judgment Standards

In an effort to “ensure an informed citizenry, . . . needed to check against corruption and

to hold the governors accountable to the governed,” NLRB v. Robbins Tire & Rubber Co., 437

U.S. 214, 242 (1978), FOIA requires each federal agency to make available to the public a wide

array of information, and sets forth procedures by which requesters may obtain such information, 

see 5 U.S.C. § 552(a). In enacting FOIA, however, Congress recognized that public disclosure is

not always in the public interest. Rather, “FOIA represents a balance struck by Congress

between the public’s right to know and the government’s legitimate interest in keeping certain

information confidential.” Ctr. for Nat’l Sec. Studies v. DOJ, 331 F.3d 918, 925 (D.C. Cir.

2003) (citing John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989)). To ensure such a

balance, FOIA exempts nine categories of information from disclosure, while providing that

“[a]ny reasonably segregable portion of a record shall be provided . . . after deletion of the

portions which are exempt under this subsection.” 5 U.S.C. § 552(b). Although courts have

given these exemptions a “narrow compass,” Dep’t of Interior v. Klamath Water Users Protective

Ass’n, 532 U.S. 1, 8 (2001) (citation and internal quotation marks omitted); see also Grand Cent.

P’ship, Inc. v. Cuomo, 166 F.3d 473, 478 (2d Cir. 1999), FOIA exemptions are nonetheless

“intended to have meaningful reach and application.” John Doe Agency, 493 U.S. at 152. 

Summary judgment pursuant to Fed. R. Civ. P. 56 is the procedural vehicle by which

most FOIA actions are resolved. See, e.g., Miscavige v. IRS, 2 F.3d 366, 369 (11th Cir. 1993)

(“Generally, FOIA cases should be handled on motions for summary judgment, once the

documents in issue are properly identified.”). Summary judgment is warranted if the

Government shows (a) “its search was adequate” and (b) “any withheld documents fall within an

Case 1:07-cv-03378-GEL Document 17 Filed 08/16/2007 Page 13 of 20
12

exemption to the FOIA.” See Carney, 19 F.3d at 812. “Affidavits or declarations supplying facts

indicating that the agency has conducted a thorough search and giving reasonably detailed

explanations why any withheld documents fall within an exemption are sufficient to sustain the

agency’s burden.” Id. (footnote omitted); see also Halpern v. FBI, 181 F.3d 279, 291 (2d Cir.

1999) (same) (citation, alterations, and internal quotation marks omitted). Although this Court

reviews the agency’s determination that requested information falls within a FOIA exemption de

novo, see 5 U.S.C. § 552(a)(4)(B); Halpern, 181 F.3d at 287, the declarations submitted by the

agency in support of its determination are “accorded a presumption of good faith,” Carney, 19

F.3d at 812 (citation and internal quotation marks omitted). 

B. OIG Properly Withheld Information Pursuant To the Deliberative-Process 

Privilege Encompassed by FOIA Exemption 5

FOIA Exemption 5 exempts from disclosure “inter-agency or intra-agency memorandums

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 the privileges available to an agency in civil

litigation, including the deliberative process, attorney-client, and work-product privileges. 

See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975); Hopkins v. HUD, 929 F.2d 81,

84 (2d Cir. 1991); see also Renegotiation Bd. v. Grumman Aircraft Eng’g Corp., 421 U.S. 168,

184 (1975); Tigue v. DOJ, 312 F.3d 70, 76 (2d Cir. 2002).

Documents covered by the deliberative process privilege include those “reflecting

advisory opinions, recommendations and deliberations comprising part of a process by which

governmental decisions and policies are formulated.” Sears, 421 U.S. at 150 (internal quotation

marks and citations omitted). As the Supreme Court has explained:

Case 1:07-cv-03378-GEL Document 17 Filed 08/16/2007 Page 14 of 20
13

The deliberative process privilege rests on the obvious realization that

officials will not communicate candidly among themselves if each

remark is a potential item of discovery and front page news, and its

object is to enhance the quality of agency decisions by protecting

open and frank discussion among those who make them within the

Government.

Klamath, 532 U.S. at 8-9 (internal quotation marks and citations omitted). See also EPA v.

Mink, 410 U.S. 73, 87 (1973) (abrogated by statute on other grounds, Pub. Law No. 93-503, 88

Stat. 1561 (1974) (“[E]fficiency of Government would be greatly hampered if, with respect to

legal and policy matters, all Government agencies were prematurely forced to ‘operate in a

fishbowl.’” ).

Under FOIA, an agency record must satisfy three conditions to qualify for the deliberative

process privilege. It must be “inter-agency or intra-agency,” 5 U.S.C. § 552(b)(5), that is, “its

source must be a Government agency,” Klamath, 532 U.S. at 8; and it “must be both

‘predecisional’ and ‘deliberative.’” Grand Cent. P’ship, 166 F.3d at 482 (citations omitted). See

also Hopkins, 929 F.2d at 84; Local 3, Int’l Bhd. of Elec. Workers v. NLRB, 845 F.2d 1177,

1180 (2d Cir. 1988). A record is “predecisional” when it is “prepared in order to assist an agency

decisionmaker in arriving at his decision . . . .” Renegotiation Bd., 421 U.S. at 184 (cited in

Grand Cent. P’ship, 166 F.3d at 482); see also Schell v. United States Dep’t of Health & Human

Servs., 843 F.2d 933, 940 (6 Cir. 1988) (“A document is predecisional when it is ‘received by th

the decisionmaker on the subject of the decision prior to the time the decision is made.’”)

(citation omitted). “To establish that a document is predecisional, the agency need not point to

an agency final decision, but merely establish what deliberative process is involved, and the role

that the documents at issue played in that process.” Judicial Watch v. Exp.-Imp. Bank, 108 F.

Case 1:07-cv-03378-GEL Document 17 Filed 08/16/2007 Page 15 of 20
14

Supp. 2d 19, 35 (D.D.C. 2000) (citing Formaldehyde Inst. v. Dep’t of Health & Human Servs.,

889 F.2d 1118, 1123 (D.C. Cir. 1989)). A record is “deliberative” when “it reflects the give-andtake of the consultative process.” Wolfe v. Dep’t of Health & Human Servs., 839 F. 2d 768, 774

(D.C. Cir. 1988) (citation and internal quotation marks omitted) (en banc).

As set forth in the declarations accompanying this motion, OIG determined that certain

withheld documents (or portions of documents) are both pre-decisional and deliberative. The

Court should accord “considerable deference to the [agency’s] judgment as to what constitutes . .

. ‘part of the agency give-and-take – of the deliberative process – by which the decision itself is

made.’” Chem. Mfrs. Ass’n v. Consumer Prod. Safety Comm’n, 600 F. Supp. 114, 118 (D.D.C.

1984) (quoting Vaughn v. Rosen, 523 F.2d 1136, 1144 (D.C. Cir. 1975)). This deference is

required, in part, because the agency is best situated “to know what confidentiality is needed ‘to

prevent injury to the quality of agency decisions . . . .’” Chemical Mfrs., 600 F. Supp. at 118

(quoting Sears, 421 U.S. at 151). 

Specifically, LDF challenges OIG’s decision to withhold in full and in part material

related to OIG audits. Pl’s Mem. at 10-16. The audit documents withheld in full are (1) a

preliminary draft audit report entitled “Discussion Draft Audit Report Subject to Review and

Revision For Official Use Only,” (2) internal OIG e-mails related to the draft audit report; and (3)

draft documents reflecting communications among OIG employees regarding an ongoing audit. 

Howell Decl. ¶¶ 14-15, Exh. A (referring to pages188 - 232). Thus, the information withheld in

full consists exclusively of draft documents subject to review, and discussions or other types of

communications related to draft documents. See id.

With respect to redacted material, the information withheld consists of “concerns”

Case 1:07-cv-03378-GEL Document 17 Filed 08/16/2007 Page 16 of 20
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contained in “internal interim status report[s] and audit planning document[s] regarding potential

issues to be addressed.” Howell Decl., ¶ 13, Exh. A (pages 108 - P117). Specifically, the

redacted documents relate to “preliminary internal OIG audit reviews of proposed revisions by

the State of Louisiana to its required action plan” regarding the HUD-funded Katrina disaster

relief program. Howell Decl. ¶ 13. All factual data has been released to LDF, and the redacted

portions – entitled “concerns” – “reflect the thoughts, mental impressions and areas for possible

further OIG inquiry as expressed in meetings among OIG audit staff.” Id. 

The above-described material is precisely the type of information the deliberative process

privilege protects from disclosure. As indicated by the fact that much of the information is

contained in “draft” documents and involve the discussions of issues prior to the issuance of final

audits or reports, there is simply no question that these documents are predecisional. Howell

Decl. ¶¶ 13-15. Simply put, the withheld documents were created to “assist an agency

decisionmaker in arriving at his decision,” see Nat’l Council of La Raza v. DOJ, 411 F.3d 350,

356 (2d Cir. 2005) (internal quotation marks and citation omitted) -- here, the development of the

final audit and/or investigative reports in fulfillment of OIG’s mandate. See supra at 3.

In addition to being pre-decisional, the documents are also deliberative. All of the

withheld information contain predecisional “concerns” or “planning” regarding a potential action

on behalf of OIG. Howell Decl. ¶¶ 13-15. Some of the documents are also draft documents

subject to review prior to the final version. See id. Documents such as these that reveal the predecisional subjective suggestions and strategy of agency employees are properly withheld as

deliberative. See Grand Cent. P’ship, 166 F.3d at 482; Hamilton Sec. Group, Inc. v. Dep’t of

Housing and Urban Dev., 106 F. Supp. 23, 30-33 (D.D.C. 2000), aff’d per curiam, No. 00-5331,

Case 1:07-cv-03378-GEL Document 17 Filed 08/16/2007 Page 17 of 20
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2001 WL 238162, at *1 (D.C.Cir. Feb.23, 2001) (holding that “draft audit report [prepared by

HUD OIG] . . . is both pre-decisional and deliberative, and disclosure of the draft audit report

would threaten the integrity of the agency’s policymaking processes[]”); Judicial Watch v.

Rossotti, No. WMN-01-2672, 2002 WL 31962775, at *7 (D. Md. Dec. 16, 2002) (holding that

IRS properly withheld list of recommended issues to be pursued in an audit, discussion of IRS’s

ability to support its position on these issues, internal e-mails about the audit, and two draft

memoranda regarding the audit); Abraham Fruchter & Twersky, LLP v. SEC, No. 05 Civ. 00039

(HB), 2006 WL 785285, at *3 (S.D.N.Y. Mar. 29, 2006) (“documents [that] include the

subordinates’ observations and questions [are] precisely the type of candid discussion that the

deliberative process privilege is designed to shield”). 

Accordingly, the Court should conclude that OIG properly withheld the information

described in the Howell declaration pursuant to FOIA Exemption 5. 

C. OIG Conducted an Adequate Search for Responsive Records

The Court should also grant the Government’s cross-motion for partial summary

judgment because OIG conducted an adequate search for responsive records. See Carney, 19

F.3d at 812 (summary judgment available for FOIA defendant where, inter alia, “its search was

adequate”). To demonstrate the adequacy of a search, an agency must “show that it made a good

faith effort to search for the records requested, and that its methods were ‘reasonably expected to

produce the information requested.’” Kidd v. DOJ, 362 F. Supp. 2d 291, 294 (D.D.C. 2005)

(citation omitted); see also Oglesby, 920 F.2d at 68 (an agency is not required to search every

record system, only to show “that it made a good faith effort to conduct a search . . . using

methods which can be reasonably expected to produce the information requested”). The agency

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need not “take extraordinary measures to find the requested records.” Garcia v. DOJ, 181 F.

Supp. 2d 356, 368 (S.D.N.Y. 2002). The agency can meet its burden of showing a good faith

search by supplying affidavits from appropriate officials setting forth facts demonstrating that a

reasonable search was conducted. Id. at 366 (citing Weisberg v. DOJ, 745 F.2d 1476, 1485

(D.C. Cir. 1984)). To establish the sufficiency of its search, the agency’s affidavits need only

explain the “scope and method of the search” in “reasonable detail.” Kidd, 362 F. Supp. 2d at

295 (quoting Perry v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982)). 

Plaintiff does not challenge the adequacy of OIG’s search for records in its motion, and as

the Hall Declaration demonstrates, OIG has met its burden of demonstrating that it conducted a

good faith search for responsive records. Specifically, as the individual responsible for

responding to the OIG request, Hall contacted the staff members responsible for maintaining the

requested documents. Hall Decl. ¶¶ 4, 8. By directly contacting the staff members in possession

of records related to audits, investigations and reviews concerning the CDBG program, Hall

conducted a search which was “reasonably calculated to discover the requested documents.” 

Grand Cent. P’ship, 166 F.3d at 489. OIG accordingly has satisfied the “reasonable search”

prerequisite for entry of summary judgment in its favor.

Case 1:07-cv-03378-GEL Document 17 Filed 08/16/2007 Page 19 of 20
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CONCLUSION

For the foregoing reasons, the Court should deny plaintiff’s motion for partial summary

judgment and grant the Government’s cross-motion for summary judgment.

Dated: New York, New York

August 16, 2007

MICHAEL J. GARCIA

United States Attorney for the

Southern District of New York

By: /s/ Lara K. Eshkenazi 

LARA K. ESHKENAZI

Assistant United States Attorney

86 Chambers Street, 3rd Floor

New York, New York 10007

Tel: (212) 637-2658

Case 1:07-cv-03378-GEL Document 17 Filed 08/16/2007 Page 20 of 20