UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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

:

NAACP LEGAL DEFENSE AND :

EDUCATIONAL FUND, INC., :

:

Plaintiff, :

: 07 Civ. 3378 (GEL)

-v- :

: OPINION AND ORDER

U.S. DEPARTMENT OF HOUSING AND : 

URBAN DEVELOPMENT, :

:

Defendant. :

:

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Matthew Colangelo, Robert H. Stroup, Damon Hewitt,

NAACP Legal Defense and Educational Fund, Inc.,

New York, NY, Lawrence S. Lustberg, Melanca D. Clark,

Gibbons, P.C., Newark, NJ, for plaintiff.

Michael J. Garcia, United States Attorney for the

Southern District of New York (Lara K. Eshkenazi, 

Assistant United States Attorney, Of Counsel), 

New York, NY, for defendant.

GERARD E. LYNCH, District Judge:

Plaintiff NAACP Legal Defense and Educational Fund, Inc. (“LDF”), brings this action

pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, seeking disclosure of

certain agency records in the possession of the United States Department of Housing and Urban

Development (“HUD”). Plaintiff moves for partial summary judgment, arguing that defendant

has improperly withheld records in violation of FOIA. Defendant cross-moves for partial

summary judgment, arguing that plaintiff’s case should be dismissed because plaintiff failed to

exhaust its administrative remedies, or alternatively, that the records were properly withheld

pursuant to the deliberative process privilege. Defendant’s motion will be granted, and

Case 1:07-cv-03378-GEL Document 23 Filed 11/30/2007 Page 1 of 26
 Defendant did not submit either a Rule 56.1 Statement in support of its cross-motion for 1

partial summary judgment, or a Counterstatement in response to plaintiff’s Rule 56.1 Statement,

see S.D. & E.D. N.Y. R. 56.1(a)-(b), claiming that it is “the general practice in this Circuit” not

to require the Government to submit a Rule 56.1 Statement or Counterstatement in FOIA cases

because “agency affidavits alone will support a grant of summary judgment.” (Def. Mem. 3 n.2,

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

citing in turn Carney v. U.S. Dep’t of Justice, 19 F.3d 807, 812 (2d Cir. 1994).) Plaintiff claims

that, because defendant failed to submit a Counterstatement, the facts set forth in plaintiff’s Rule

56.1 Statement should be deemed admitted for purposes of this motion. (Pl. Reply 1 n.1.)

Plaintiff’s argument is both incorrect and irrelevant. Regardless of defendant’s failure to

respond to plaintiff’s Rule 56.1 Statement, plaintiff nevertheless must adduce admissible

evidence in the record to support the factual assertions contained in the Rule 56.1 Statement, as

defendant “is not required to rebut an insufficient showing.” Giannullo v. City of New York,

322 F.3d 139, 140-41 (2d Cir. 2003). See 24/7 Records, Inc. v. Sony Music Entm’t, Inc., 429

F.3d 39, 46 (2d Cir. 2005) (noting that a defendant who moves for summary judgment but fails

to show an absence of evidence supporting plaintiff’s claims should not receive summary

judgment, even if plaintiff does not oppose the motion with any evidence). In addition, the Court

may, in its discretion, consider any facts “the parties fail to point out in their Rule 56.1

statements.” Id. (internal quotation marks and citation omitted). See Holtz v. Rockefeller &

Co., 258 F.3d 62, 73 (2d Cir. 2001) (“[W]here there are no citations or where the cited materials

do not support the factual assertions in the statements, the Court is free to disregard the

assertion.”) (internal quotation marks and citation omitted).

More importantly, however, none of the relevant facts in this case are in dispute. 

Defendant does not dispute that plaintiff made the FOIA request at issue, nor does defendant

dispute the relevant events surrounding that request. Instead, the issues currently before the

Court – whether plaintiff sufficiently exhausted its administrative remedies, and whether certain

documents were properly withheld pursuant to the deliberative process privilege – involve purely

legal inquiries, and resolution of those inquiries is not contingent on resolution of any factual

disputes. Thus, even if the facts contained in plaintiff’s Rule 56.1 Statement are admitted for

purposes of this motion, that admission has no impact on the resolution of the motion.

Finally, plaintiff argues that defendant’s failure to submit a Rule 56.1 Statement in

support of its cross-motion for summary judgment renders defendant’s motion “not properly

made.” (Pl. Reply 1 n.1.) Even if true, it is well established that the Court has wide discretion to

consider a summary judgment motion regardless of a party’s compliance with the local rules. 

See Madison Maidens, Inc. v. Am. Mfrs. Mut. Ins. Co., No. 05 Civ. 4584, 2006 WL 1650689, at

2

plaintiff’s motion will be denied.

BACKGROUND

Only those facts relevant to the current motion will be recited here. The relevant facts

are undisputed.1

Case 1:07-cv-03378-GEL Document 23 Filed 11/30/2007 Page 2 of 26
*2 (S.D.N.Y. June 15, 2006). Moreover, the purpose of Rule 56.1 statements is to identify the

relevant evidence supporting the material facts, and “to assist the court in determining which

facts are genuinely undisputed.” Id. Here, strict compliance with Local Rule 56.1 is not

required for the Court to identify the material facts, as those facts have already been identified by

plaintiff in its Rule 56.1 Statement and by defendant in its supporting affidavits, see, e.g.,

Carney, 19 F.3d at 812, and moreover, those facts are not in dispute. Thus, defendant’s motion

for summary judgment will be considered by the Court to have been properly made.

 See Department of Defense, Emergency Supplemental Appropriations to Address 2

Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006, Pub. L. No. 109-148, 119

Stat. 2680 (Dec. 30, 2005) (appropriating $11.5 billion to Louisiana, Mississippi, Texas, Florida,

and Alabama); Emergency Supplemental Appropriations Act for Defense, the Global War on

Terror, and Hurricane Recovery, 2006, Pub. L. No. 109-234, 120 Stat. 418 (June 15, 2006)

(appropriating an additional $5.2 billion to the same states).

3

This case involves LDF’s efforts to obtain access to records pertaining to HUD’s

administration of the Community Development Block Grant (“CDBG”) Disaster Recovery Grant

Program (“the Program”), a $16.7 billion grant allocated by Congress for expenses related to

disaster relief, long-term recovery, and rebuilding expenses in those areas of the Gulf of Mexico

most affected by Hurricanes Katrina and Rita in 2005. The statutes establishing the Program 2

adopt the general framework that governs CDBG program funds generally, but also authorize

HUD, upon request from a state, to waive many CDBG program requirements, except for those

relating to nondiscrimination, fair housing, labor standards, and the environment. 119 Stat. at

2780; 120 Stat. at 472-73. The Program requires each state to submit an action plan in advance

of the receipt of grant funds that details the state’s intended use of those funds, and to submit a

quarterly report to Congress reporting on all awards and uses of funds. 119 Stat. at 2780; 120

Stat. at 473. HUD has by regulation required grantees to meet public participation, reporting,

and oversight requirements, as well as to certify that they are in compliance with civil rights

mandates. See 71 Fed. Reg. 7666 (Feb. 13, 2006); 71 Fed. Reg. 63,337 (Oct. 30, 2006).

Case 1:07-cv-03378-GEL Document 23 Filed 11/30/2007 Page 3 of 26
4

On March 19, 2007, LDF submitted a FOIA request to HUD by overnight mail. (Pl. Ex.

2.) LDF’s request sought certain records concerning HUD’s administration of the Program as to

the states of Louisiana and Mississippi. The only pertinent request here involves paragraph 3 of

LDF’s initial request, by which LDF 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 Program].” (Id. at 4 ¶ 3.) LDF also requested expedited

processing for its FOIA request pursuant to 5 U.S.C. § 552(a)(6)(E), which provides that a

requester may seek processing of its request “as soon as practicable.” Under the expedited

processing provision, a federal agency is required to decide whether to accept or reject the

expedited request and give notice of its decision to the requester within ten days of the request. 

5 U.S.C. § 552(a)(6)(E)(ii)-(iii); see 24 C.F.R. § 15.104(d).

HUD received LDF’s FOIA request on March 21, 2007. (Pl. Ex. 3 at 1.) Because LDF

requested documents in the possession of HUD’s Office of the Inspector General (“OIG”), and

because OIG has its own staff to process FOIA requests separate from HUD’s FOIA office,

HUD forwarded LDF’s request to OIG’s FOIA office to respond to paragraph three of the

request. (Pl. Ex. 4 at 1.) OIG received LDF’s request on April 11, 2007. (Pl. Ex. 7 at 1.)

Neither HUD nor OIG responded to LDF’s request for expedited processing within ten

days. As a result, LDF initiated this lawsuit on April 27, 2007, and filed an Order to Show

Cause why preliminary injunctive relief should not be granted. Shortly thereafter, on May 10,

2007, the parties agreed to a schedule for the release of all records sought in LDF’s request, with

the exception of the records sought in paragraph three, referring that portion of the request

instead to the OIG. (Stipulation & Order, May 10, 2007, at ¶ 5.)

Case 1:07-cv-03378-GEL Document 23 Filed 11/30/2007 Page 4 of 26
 The June 20 letter also identified certain other records from OIG’s Office of 3

Investigations that had not previously been disclosed. (Pl. Ex. 7 at 1.) Those records have since

been fully disclosed. (Def. Mem. 2 n.1; Pl. Reply 7 n.6.)

 Portions of the Audit Records were also redacted pursuant to 5 U.S.C. §§ 552(b)(6) and 4

(b)(7)(C), which protect documents from disclosure where disclosure would result in an invasion

of personal privacy, for example, by revealing personal information such as names and phone

numbers. Plaintiff does not challenge OIG’s withholding of those portions of the records. (Pl.

Mem. 11 n.5; Def. Mem. 2 n.1.)

5

Since LDF initiated suit, LDF and OIG have successfully resolved most of the issues

originally presented concerning the processing of LDF’s request without the Court’s

intervention. However, the parties have been unable to resolve one particular issue. 

Specifically, on June 20, 2007, OIG informed LDF of certain records that were responsive to

paragraph three of LDF’s FOIA request that had not previously been disclosed. (Pl. Ex. 6 at 2.) 

OIG identified those records as analyses of state action plans conducted by the Office of Audit,

Disaster Oversight and Liaison Division (“the Audit Records”). (Id.) The June 20 letter noted 3

that OIG would process the analyses and disclose them the following week. (Id.) Finally, the

June 20 letter denied LDF’s expedited processing request as “moot.” (Id.)

On June 29, 2007, OIG made a partial disclosure of the Audit Records. Although the

Audit Records included 133 pages, OIG only disclosed 88 of those pages. (Pl. Ex. 7 at 1.) In

addition, those portions of the Audit Records that OIG did disclose included two documents that

are substantially redacted. (Pl. Exs. 8-9.) According to OIG, the withheld and redacted

documents were exempt from disclosure pursuant to 5 U.S.C. § 552(b)(5), which “protect[s]

intra-agency communications subject to the deliberative . . . process privilege[]” (“Exemption

Five”). (Pl. Ex. 7 at 1.) However, although OIG claimed that certain records were protected 4

from disclosure by the deliberate process privilege, OIG did not simultaneously produce a

Case 1:07-cv-03378-GEL Document 23 Filed 11/30/2007 Page 5 of 26
6

document itemizing all documents or portions of documents that it claimed fell within

Exemption Five (“the Vaughn index”), as required under Vaughn v. Rosen, 484 F.2d 820, 826-

28 (D.C. Cir. 1973), and as previously requested by LDF (see Pl. Ex. 6 at 2 n.2 (“You also

request a Vaugh[n] index for those records we believe are exempt.”)).

On July 26, 2007, plaintiff moved for partial summary judgment, “challeng[ing]

[d]efendant’s decision to withhold multiple pages from the Audit Records . . . , and to redact

portions of the documents that were disclosed.” (Pl. Mem. 6.) Defendant responded and crossmoved for partial summary judgment on August 16, 2007; both motions were fully briefed as of

September 10, 2007.

DISCUSSION

I. Failure To Exhaust

As an initial matter, defendant argues that the Court “should deny plaintiff’s motion for

summary judgment because LDF failed to exhaust its administrative remedies required by OIG’s

regulations.” (Def. Mem. 2.) Specifically, defendant argues that “LDF’s decision to send the

OIG request to the wrong address . . . constitutes failure to exhaust its administrative remedies.”

(Id. 8, citing West v. Jackson, 448 F. Supp. 2d 207, 211-12 (D.D.C. 2006).) Alternatively,

defendant argues that “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.” (Id.) Both

arguments are unavailing. 

“FOIA requires the exhaustion of administrative remedies as a precondition to suit.”

Megibow v. Clerk of the U.S. Tax Court, No. 04 Civ. 3321, 2004 WL 1961591, at *3 (S.D.N.Y.

Aug. 31, 2004); see, e.g., id. (recognizing that FOIA’s exhaustion of administrative remedies

Case 1:07-cv-03378-GEL Document 23 Filed 11/30/2007 Page 6 of 26
7

requirement is prudential and not jurisdictional, and thus may be waived by a party or the court). 

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.”). “The failure to comply with an agency’s FOIA regulations”

when making a FOIA request “is the equivalent of failure to exhaust.” West, 448 F. Supp. 2d at

211; see 5 U.S.C. § 552(a)(3)(a) (“[FOIA requests must be] made in accordance with published

rules stating the time, place, fees (if any), and procedures to be followed . . . .” ). See, e.g.,

Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 157 (1980). 

Defendant argues that, by addressing its FOIA request to the wrong agency in violation

of HUD’s regulations, LDF failed to exhaust its administrative remedies, and therefore LDF is

precluded from bringing suit in federal court. Defendant is incorrect. LDF’s “decision to send

the OIG request to the wrong address” (Def. Mem. 8) – even assuming that such a decision was

deliberate as presumed by OIG (Pl. Ex. 6 at 1), and not simply an inadvertent error – did not

violate HUD’s FOIA regulations. Although HUD’s “published rules” identify a different office

for the submission of requests for OIG records than for the submission of requests for other

HUD records, see 24 C.F.R. § 2002.3(b), the applicable rules also expressly require HUD to

forward misaddressed requests to the proper office. Id. § 15.104(a) (“If you have sent your

request to the wrong office, that office will send it to the correct office within 10 working days

and will send you an acknowledgment letter.”). HUD’s established procedure was followed

here: after LDF incorrectly submitted its request for OIG records to HUD’s FOIA office on

March 21, 2007, that office forwarded the request to OIG, which received the request on April

Case 1:07-cv-03378-GEL Document 23 Filed 11/30/2007 Page 7 of 26
 It is unclear why it took almost three weeks for LDF’s request to be transferred from 5

HUD’s FOIA office to OIG’s FOIA office, in direct violation of HUD’s rule that all misdirected

FOIA requests will be forwarded within 10 working days of receipt, especially considering that

both offices are located in the same building. (Def. Mem. 7.)

8

11, 2007. Thus, LDF’s misdirected request violated neither HUD’s “published rules,” nor 5

FOIA’s directive that all requests be made “in accordance” with those rules. 5 U.S.C. §

552(a)(3)(a).

Defendant’s reliance on West, 448 F. Supp. 2d 207, and Kessler v. United States, 899 F.

Supp. 644 (D.D.C. 1995), in support of its argument is unavailing. In West, there was no

evidence that HUD had ever received the plaintiff’s FOIA request. 448 F. Supp. 2d at 211. 

Thus, the plaintiff in West failed to exhaust his administrative remedies because he did not

establish that he had ever submitted a FOIA request to HUD at all. Id. at 211-12. Here,

defendant acknowledges both that HUD’s FOIA office received LDF’s request, and that the

request was forwarded to OIG pursuant to HUD’s own regulations. Id. at 211 (“[FOIA’s]

statutory deadlines . . . are triggered by the agency’s receipt of the FOIA request.”) (emphasis in

original).

Kessler is similarly inapposite. In Kessler, the plaintiff submitted a FOIA request to the

Internal Revenue Service (“IRS”), but he misaddressed his request in violation of the IRS’s

applicable regulations. 899 F. Supp. at 645. The Kessler court found that, “[b]ecause [plaintiff]

failed to follow the procedures set forth in the IRS regulations, he has failed to make a proper

request under the FOIA and therefore has failed to exhaust his administrative remedies.” Id. 

However, unlike HUD’s regulations, the IRS regulations at issue in Kessler did not provide for

the forwarding of misdirected FOIA requests to the proper office within the IRS. Thus, the IRS

Case 1:07-cv-03378-GEL Document 23 Filed 11/30/2007 Page 8 of 26
9

regulations require a FOIA requester to direct a FOIA request to the appropriate office within the

IRS, without exception – if a FOIA requester mistakenly addresses his request in violation of the

IRS regulations, that mistake is not cured under the applicable regulations, and the requester has

failed to exhaust his administrative remedies. Conversely, the HUD regulations at issue here

expressly cure such a mistake; indeed, those regulations require the agency itself to cure the

requester’s mistake by forwarding the request to the appropriate office. Thus, accepting

defendant’s argument would have the perverse effect of imposing a requirement on FOIA

requesters that is not imposed by HUD itself.

Alternatively, defendant argues that plaintiff was required to “seek administrative review

of OIG’s response prior to filing a lawsuit,” and its failure to do so “warrants summary judgment

in favor of the [g]overnment.” (Def. Mem. 8, citing Dettman v. U.S. Dep’t of Justice, 802 F.2d

1472, 1477 (D.C. Cir. 1986).) Plaintiff argues that it constructively exhausted its administrative

remedies when OIG failed to respond to its request for expedited processing within ten days. 

The Court agrees.

“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, 2002

WL 1359722, at *4 (S.D.N.Y. June 21, 2002). However, failure to seek administrative review of

an agency’s FOIA decision may be “excused” where the agency “fails to comply with the

applicable time limit provisions of [] FOIA.” Ruotolo v. Dep’t of Justice, Tax Div., 53 F.3d 4, 8

(2d Cir. 1995), quoting 5 U.S.C. § 552(a)(6)(C). Where a FOIA requester also requests

expedited processing, the relevant “time limit provision” requires a government agency to

determine whether to provide expedited processing and give notice of that determination within

Case 1:07-cv-03378-GEL Document 23 Filed 11/30/2007 Page 9 of 26
10

ten days of the date of the request. See 5 U.S.C. § 552(a)(6)(E)(ii)(I); 24 C.F.R. § 15.104(d).

In this case, it is undisputed that both OIG and HUD failed to respond to plaintiff’s

request for expedited processing within the applicable time limit, as required under FOIA. Even

if the clock began to run, not when HUD received LDF’s request on March 21, but when the

request was forwarded to OIG on April 11, more than ten days elapsed between OIG’s receipt of

the request and LDF’s filing of this suit on April 27. Once OIG failed to meet this ten-day

deadline, LDF was entitled to seek judicial review of its FOIA request. See 5 U.S.C. § 552

(a)(6)(E)(iii).

However, defendant does not challenge the propriety of plaintiff’s suit insofar as it was

brought to address OIG’s failure to timely respond to plaintiff’s expedited processing request. 

Instead, defendant challenges the propriety of plaintiff’s suit insofar as plaintiff seeks relief, not

for OIG’s failure to timely respond to plaintiff’s expedited processing request, but for OIG’s

substantive determination on plaintiff’s underlying FOIA request. Thus, the relevant inquiry is

whether a FOIA requester who brings suit initially to challenge an agency’s failure to respond to

a request for expedited processing may challenge the agency’s determination on the merits of the

underlying FOIA request in the same suit without first pursuing an administrative appeal of the

agency’s substantive determination. This is a somewhat arcane question that has not been

considered by the Second Circuit.

There are valid considerations on both sides of the issue. Although FOIA’s exhaustion

requirement is prudential, and therefore may be waived under appropriate circumstances, there

are important reasons to require exhaustion of administrative appeals. “Exhaustion of

administrative remedies serves two main purposes.” Woodford v. Ngo, 126 S. Ct. 2378, 2385

Case 1:07-cv-03378-GEL Document 23 Filed 11/30/2007 Page 10 of 26
11

(2006). See McCarthy v. Madigan, 503 U.S. 140, 145 (1991). First, exhaustion protects

“administrative agency authority,” and “gives an agency an opportunity to correct its own

mistakes with respect to the programs it administers before it is haled into federal court,” thereby

discouraging “disregard of [the agency’s] procedures.” Woodford, 126 S. Ct. at 2385. Second,

“exhaustion promotes efficiency,” as agencies are often able to resolve claims “more quickly and

economically” than a federal court. Id. See Parisi v. Davidson, 405 U.S. 34, 37 (1972).

In this case, however, requiring a FOIA requester to pursue administrative appeals after

an agency has already failed to comply with statutorily-imposed time limits would not further

these objectives, and moreover, would inhibit what is intended to be a simple process to give the

people access to records created by their government. When an agency has ignored a request for

expedited processing, it has already “disregard[ed]” its own procedures, procedures which are

statutorily imposed and which are important to insuring that the public receive time-sensitive

information without delay. See Washington Post v. Dep’t of Homeland Sec., 459 F. Supp. 2d

61, 74 (D.D.C. 2006) (“[F]ailure to process FOIA requests in a timely fashion is tantamount to

denial [of the request].”) (internal quotation marks and citation omitted). (See, e.g., Pl. Reply 7

(“[R]equiring administrative review in this instance would frustrate the statutory goal of

providing for expedited processing in cases of compelling need . . . .”).) In addition, efficiency

would be reduced, not increased, by forcing the litigant to return to the agency to pursue an

administrative appeal, after judicial intervention has already been invoked to review the FOIA

request, and the federal court has already become familiar with the underlying request during the

course of the litigation.

Case 1:07-cv-03378-GEL Document 23 Filed 11/30/2007 Page 11 of 26
12

Furthermore, the plain language of the statute and the relevant case law weigh against

defendant’s argument here. Under 5 U.S.C. § 552(a)(6)(E)(iii), “failure by an agency to respond

in a timely manner to [an expedited processing] request shall be subject to judicial review under

paragraph (4).” Paragraph 4, in turn, provides that “[a] district court . . . shall not have

jurisdiction to review an agency denial of expediting processing of a request for records after the

agency has provided a complete response to the request.” 5 U.S.C. § 552(a)(6)(E)(iv) (emphasis

added). Thus, an agency’s substantive response to the underlying FOIA request does not negate

the court’s ability to review the agency’s determination unless and until that response is

“complete” – the inclusion of “complete” in this provision was presumably intended to provide

for judicial review over the substantive merits of the agency’s disclosure. Here, LDF claims that

the government’s disclosure was not complete; if LDF is correct, then OIG has not made a

“complete” disclosure, and the Court therefore retains authority to review LDF’s claim under the

plain language of the statute. 

The relevant case law also weighs against defendant. Essentially, defendant argues that,

by eventually responding to plaintiff’s request, plaintiff’s initial suit was mooted, and plaintiff

was required to pursue administrative appeals of its substantive request before returning to

federal court. But, as this Court previously held, “a [FOIA] claim . . . cannot be mooted simply

by providing a response, for in that case a court must still address plaintiff’s claim that he should

have received additional documents.” Dimodica v. U.S. Dep’t of Justice, No. 05 Civ. 2165,

2006 WL 89947, at *4 (S.D.N.Y. Jan. 11, 2006). See also Pollack v. Dep’t of Justice, 49 F.3d

115, 119 (4th Cir. 1995) (“[I]t was error for the district court to conclude that it was somehow

deprived of jurisdiction because [the plaintiff] failed to file administrative appeals . . . during the

Case 1:07-cv-03378-GEL Document 23 Filed 11/30/2007 Page 12 of 26
13

litigation.”). Indeed, the D.C. Circuit has suggested that the merits of an agency’s FOIA

determination are so intertwined with the propriety of the agency’s expedited processing

decision that, in some situations, a requester may only receive “full relief” on its expedited

processing claim when the court also adjudicates the “merits” of the underlying FOIA request. 

Edmonds v. FBI, 417 F.3d 1319, 1323-24 (D.C. Cir. 2005); see id. (affirming district court’s

“vindicat[ion]” of FOIA requester’s “statutory right” to expedited processing by providing her

with “full relief on the merits of her claim”) (internal quotation marks omitted). 

Furthermore, defendant concedes that, when an agency fails to respond to a standard

FOIA request within twenty days, the requester has constructively exhausted its administrative

remedies and may challenge the merits of the agency’s determination in federal court, Ruotolo,

53 F.3d at 9; see 5 U.S.C. § 552(a), but argues that the same right that accompanies a standard

FOIA request does not translate to the right to seek judicial review of the merits of an expedited

FOIA request. In support of its argument, defendant cites Judicial Watch, Inc. v. U.S. Naval

Observatory, 160 F. Supp. 2d 111 (D.D.C. 2001), which held that “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.” Id. at 113. However, Judicial Watch

is unpersuasive, as the court there did not fully consider the plain language of the statute, which

is inconsistent with its conclusion. As previously established, there is no support in the statute,

or in the case law, for defendant’s interpretation – FOIA itself authorizes courts to review an

agency’s expedited request determination, just as it authorizes courts to review an agency’s

standard request determination, and that authority extends until the agency has made complete

disclosure of the requested material (unless the material is otherwise protected under FOIA’s

Case 1:07-cv-03378-GEL Document 23 Filed 11/30/2007 Page 13 of 26
14

exemptions). Indeed, just as judicial review of an agency’s failure to comply with the standard

processing time limit is meant to prevent federal agencies from “drag[ging] [their] feet” in

processing a FOIA request, so too does judicial review of an agency’s failure to comply with the

expedited processing time limit prevent federal agencies from “pay[ing] lip service to a

requester’s statutory and regulatory entitlement to expedition.” Elec. Privacy Info. Ctr. v. Dep’t

of Justice, 416 F. Supp. 2d 30, 37 (D.D.C. 2006) (internal quotation marks and citation omitted).

Defendant also argues that “if the Court accepts plaintiff’s interpretation of the statute –

that filing a request for expedited processing automatically reduces the amount of time that an

agency has to substantively respond to a FOIA request to ten days – any FOIA requester would

be able to reduce the statute’s twenty-day constructive exhaustion time frame to ten days merely

by filing an unwarranted request for expedited processing.” (Def. Reply 3.) Defendant

misunderstands the expedited processing provision. An agency is not required to substantively

respond to a FOIA request within ten days when a requester files an expedited request – all the

agency must do in such a situation is decide whether to process the request “as soon as

practicable,” and provide notice of that decision to the requester within ten days. 5 U.S.C. §

552(a)(6)(E)(ii)-(iii). Thus, this holding does not impose on onerous burden on federal agencies;

in order to avoid judicial review, an agency must simply decide to either accept or reject the

expedited request, and notify the requester of that decision, within ten days. The time limits

applicable to standard FOIA requests would then apply. In any event, even if defendant were

correct that allowing judicial review under these circumstances would result in broad judicial

review of agency FOIA determinations, such a result would be consistent with the spirit of FOIA

itself: “FOIA . . . envisions the courts playing an important role in guaranteeing that agencies

Case 1:07-cv-03378-GEL Document 23 Filed 11/30/2007 Page 14 of 26
15

comply with its terms.” Elec. Privacy, 416 F. Supp. 2d at 37.

Finally, the practical implications of accepting defendant’s argument count strongly

against doing so. If courts declined to review the merits of an agency’s FOIA determination

simply because the agency eventually made some disclosure, then every time an agency

eventually complied with an expedited FOIA request – even if that compliance was woefully

inadequate – the requester would be required to return to the agency to pursue administrative

appeals, thereby dividing the dispute over a single FOIA request into a “piecemeal” series of

disputes pending simultaneously before both the federal court and the agency, the exact result

defendant claims it is trying to avoid. (Def. Mem. 10 n.7.) Not only would such a result not

further the goals of administrative review, but it would inhibit the very purpose of FOIA itself,

by imposing additional, unnecessary roadblocks in the path towards government accountability. 

See, e.g., Halpern v. FBI, 181 F.3d 279, 284-85 (2d Cir. 1999).

Accordingly, the Court turns to the merits of plaintiff’s request.

II. Deliberative Process Privilege

Plaintiff argues that it is “entitled to summary judgment with regard to OIG’s refusal to

disclose numerous pages from the Audit Records” because OIG’s refusal “is based on an

exceedingly cursory explanation that falls far short of complying with the requirements of the

law.” (Pl. Mem. 9.) Defendant counters that, during the course of this litigation, “OIG

determined that” the withheld records “are both pre-decisional and deliberative,” and therefore

that they were properly withheld pursuant to the deliberative process privilege. (Def. Mem. 14.) 

Although the government’s initial disclosure was substantially inadequate in providing the basis

for the claimed exemption, defendant has properly and sufficiently documented that basis during

Case 1:07-cv-03378-GEL Document 23 Filed 11/30/2007 Page 15 of 26
 In addition, “‘[i]n order to prevail on a motion for summary judgment in a FOIA case,

6

the defending agency [must] show[] that its search [for the requested documents] was

adequate.’” Ruotolo, 53 F.3d at 9, quoting Carney, 19 F.3d at 812. Plaintiff does not challenge

the adequacy of OIG’s search for purposes of this motion (Pl. Mem. 8 n.4), although it appears to

reserve the right to make such a challenge at a later date (Pl. Reply 10 n.7). However, any such

challenge would fail, as OIG has “show[n] 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. Dep’t of Justice, 362 F. Supp. 2d 291, 294 (D.D.C. 2005), quoting Oglesby,

920 F.2d at 68. 

Specifically, OIG submitted the declaration of Darlene Hall, the individual responsible

for processing OIG FOIA requests, who conducted a search that was “reasonably calculated to

discover the requested documents,” Grand Central P’ship, Inc. v. Cuomo, 166 F.3d 473, 489 (2d

Cir. 1999), by twice contacting the staff members responsible for maintaining the requested

documents. (Hall Decl. ¶¶ 4, 8.) See, e.g., Oglesby, 920 F.2d at 68 (an agency is not required to

search every record system, but 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”);

Garcia v. U.S. Dep’t of Justice, Office of Info. & Privacy, 181 F. Supp. 2d 356, 368 (S.D.N.Y.

2002) (an agency need not “take extraordinary measures to find the requested records”). 

Moreover, it is undisputed that OIG’s search uncovered a number of documents, including four

audit reports provided to LDF, only a small portion of which have been withheld. Finally, the

Hall Declaration “describes” the OIG’s “method for searching files, in detail[,] cites to the actual

file[s] located as a result[,] . . . describes the subject matter of the file[s] searched[,] and sets

forth the number of documents found, processed and released to plaintiff,” Garcia, 181 F. Supp.

16

the course of this litigation. Therefore, the withheld documents are protected by the deliberative

process privilege, and plaintiff’s motion will be denied.

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.”). To prevail on a summary judgment motion in a

FOIA case, an agency must demonstrate “‘that each document that falls within the class

requested either has been produced, is unidentifiable, or is wholly exempt from the Act's

inspection requirements.’” Ruotolo, 53 F.3d at 9, quoting Nat’l Cable Television Ass’n, Inc. v.

FCC, 479 F.2d 183, 186 (D.C. Cir. 1973). “Affidavits or declarations . . . giving reasonably 6

Case 1:07-cv-03378-GEL Document 23 Filed 11/30/2007 Page 16 of 26
2d at 367, and plaintiff has provided “no tangible evidence” that any other documents exist “and

are being withheld in bad faith,” id. at 369. 

17

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

sustain the agency’s burden.” Carney v. U.S. Dep’t of Justice, 19 F.3d 807, 812 (2d Cir. 1994);

see Halpern, 181 F.3d at 291. Although the 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 (internal

quotation marks and citation omitted).

As previously established, FOIA requires that agency records be made publicly available

upon a request that “reasonably describes such records and . . . is 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). In enacting FOIA, however, Congress recognized that the public’s interest in

government disclosure must be balanced with the government’s “legitimate interest in keeping

certain information confidential.” Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d

918, 925 (D.C. Cir. 2003), citing John Doe Agency v. John Doe Corp., 493 U.S. 146, 152

(1989). To that end, Congress carved nine exemptions from public disclosure into FOIA,

including Exemption Five, which is at issue here. See 5 U.S.C. § 552(b). Although these

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

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

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.

Case 1:07-cv-03378-GEL Document 23 Filed 11/30/2007 Page 17 of 26
18

Exemption Five protects 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 Five 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. U.S. Dep’t of Housing

and Urban Dev., 929 F.2d 81, 84 (2d Cir. 1991). 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). “The object” of the

deliberative process privilege “is to enhance the quality of agency decisions by protecting open

and frank discussion among those who make them within the [g]overnment.” Klamath, 532 U.S.

at 8-9 (internal quotation marks and citations omitted). See, e.g., EPA v. Mink, 410 U.S. 73, 87

(1973), abrogated by statute on other grounds, Pub. L. No. 93-502, 88 Stat. 1561 (1973)

(“[E]fficiency of [g]overnment would be greatly hampered if, with respect to legal and policy

matters, all [g]overnment 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 [g]overnment agency,” Klamath, 532 U.S. at 8, and it “must be both

‘predecisional’ and ‘deliberative.’” Grand Central, 166 F.3d at 482 (citations omitted). A record

is “predecisional” when it is “prepared in order to assist an agency decisionmaker in arriving at

his decision . . . .” Renegotiation Bd. v. Grumman Aircraft Eng’g Corp., 421 U.S. 168, 194

(1975); see Grand Central, 166 F.3d at 482. “To establish that a document is predecisional, the

Case 1:07-cv-03378-GEL Document 23 Filed 11/30/2007 Page 18 of 26
19

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, Inc.

v. Exp.-Imp. Bank, 108 F. 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-and-take of the consultative process.” Wolfe v. Dep’t of Health & Human

Servs., 839 F.2d 768, 774 (D.C. Cir. 1988) (internal quotation marks and citation omitted).

However, an agency cannot simply claim the privilege without providing the requester

with an explanation for its withholding. In light of the “innate impetus that encourages agencies

automatically to claim the broadest possible grounds for exemption for the greatest amount of

information,” an agency may not justify withholding documents on the basis of “conclusory and

generalized allegations of exemptions,” but must instead provide a FOIA requester with a

“relatively detailed analysis in manageable segments” of all withheld material. Vaughn, 484

F.2d at 826; see also Halpern, 181 F.3d at 290-91. Accordingly, in order to carry its burden of

showing that the documents were properly withheld pursuant to a FOIA exemption, an agency

must submit a Vaughn index, setting forth in detail the bases for the claimed exemption. The

Vaughn index must adequately describe each withheld document or portion of a document, and

must state the claimed exemption with sufficient specificity to “permit a reasoned judgment as to

whether the material is actually exempt under FOIA.” Founding Church of Scientology of

Wash., D.C., Inc. v. Bell, 603 F.2d 945, 949 (D.C. Cir. 1979). In addition, agency affidavits

submitted in support of an agency’s assertion that a claimed exemption applies must set forth

with “reasonable specificity” the nature of the documents at issue, Halpern, 181 F.3d at 291, and

must explain why the withheld information “logically falls within the claimed exemption,” id. at

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20

293.

On June 29, OIG made a partial disclosure of the Audit Records, releasing 88 out of 133

pages of the records, and extensively redacting two six-page documents within the records. (See

Pl. Mem. 13-14 (describing the redacted documents).) However, OIG did not provide LDF with

a Vaughn index detailing its reasons for not disclosing the remaining pages and redacting the

disclosed documents. Instead, with respect to the withheld pages, OIG merely stated that “the

withheld material consists of pre-decisional discussions or comments reflecting staff evaluations

and opinions, draft material, and telephone numbers” (Pl. Ex. 7 at 1), and with respect to the

redacted documents, OIG gave no explanation whatsoever, merely including next to the

redactions a handwritten notation of “b5,” presumably indicating that the redacted materials

were withheld pursuant to Exemption Five (Pl. Exs. 8-9).

The mere invocation of Exemption Five, in such a cursory manner, is insufficient to meet

OIG’s obligation to justify its non-disclosure. OIG did not provide to LDF a Vaughn index

detailing the basis for its claimed exemption, nor did it provide to LDF any affidavits or

declarations explaining the justification for its withholding that would permit “reasoned

judgment” as to whether the withheld pages and the redacted documents were actually exempt. 

Founding Church, 603 F.2d at 949. The cursory explanation that OIG initially provided to LDF

is precisely the kind of “conclusory and generalized” allegation of exemption that FOIA does not

permit. Vaughn, 484 F.2d at 826; see also Halpern, 181 F.3d at 290-91. OIG’s initial failure to

document the basis of its claimed exemption undermines the goal of FOIA to “open agency

action to the light of public scrutiny.” Dep’t of the Air Force v. Rose, 425 U.S. 352, 361 (1976)

(internal quotation marks and citation omitted).

Case 1:07-cv-03378-GEL Document 23 Filed 11/30/2007 Page 20 of 26
 Plaintiff does not dispute that a government agency, OIG, is the “source” of the 7

withheld documents. Klamath, 532 U.S. at 8.

21

However, during the course of this litigation, OIG belatedly produced a Vaughn index,

along with an accompanying declaration in support of its claims of exemption. (Def. Exs. A-B.) 

OIG argues that the Vaughn index and accompanying declaration it submitted in connection with

this litigation establish that the withheld documents were created to “‘assist an agency

decisionmaker in arriving at his decision,’” (Def. Mem. 15, quoting Nat’l Council of La Raza v.

Dep’t of Justice, 411 F.3d 350, 356 (2d Cir. 2005)), and contain “predecisional concerns or

planning regarding a potential action on behalf of OIG” (Def. Mem. 15), thereby satisfying the

deliberative process privilege. 

Plaintiff argues that, despite OIG’s belated compliance with its FOIA responsibilities, it

nevertheless has failed to meet its burden of justifying its nondisclosure because it has not

adequately established that the withheld and redacted documents are either predecisional or

deliberative. Plaintiff argues that the declaration submitted with the Vaughn index during the 7

course of this litigation “does not provide sufficient detail to enable the Court to determine the

validity of [d]efendant’s claim of deliberative process privilege.” (Pl. Reply 8.) Specifically,

plaintiff claims that the declaration “fails to provide information about the withheld records that

sufficiently reveals ‘the role played by the documents’ . . . in the claimed deliberative process,”

and that the declaration generally “fails to illuminate the decisionmaking process to which” the

withheld and redacted documents relate. (Pl. Reply 8-9, quoting Coastal States Gas Corp. v.

Dep’t of Energy, 617 F.2d 854, 868 (D.C. Cir. 1980).)

Case 1:07-cv-03378-GEL Document 23 Filed 11/30/2007 Page 21 of 26
22

Plaintiff’s arguments are unpersuasive. First, the Court must afford “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, 523

F.2d at 1144. This deference is appropriate because the agency is best situated “to know what

confidentiality is needed ‘to prevent injury to the quality of agency decisions . . . .” Chem.

Mfrs., 600 F. Supp. at 118, quoting Sears, 421 U.S. at 151.

Furthermore, although OIG’s Vaughn index and accompanying declaration are perhaps

not as full as might be ideal, they nevertheless provides a sufficient basis for making a “reasoned

judgment” that the documents fall within the scope of the deliberative process privilege. 

Founding Church, 603 F.2d at 949; see Halpern, 181 F.3d at 291 (“[A] number of courts,

including our own, have eschewed rigid adherence to any particular indexing format under the

Vaughn standard, opting instead for a functional approach.”). First, the withheld pages of the

Audit Records are predecisional. According to the OIG, the withheld pages relate to an

“ongoing audit” of which “the scope and focus are still in development and . . . subject to

discussion, review by Headquarters, amendment, modification, or abandonment.” (Howell Decl.

¶ 14.) Thus, the withheld records are made up, not of final analyses, but of “draft” reports and

“proposed slides to use in making internal presentations,” which involve the consideration of

certain issues preceding the release of the OIG’s final audit report. (Id. ¶¶ 14-15.) “Draft

documents, by their very nature, are typically predecisional and deliberative.” Kidd, 362 F.

Supp. 2d at 295. 

Second, the records are deliberative. The withheld pages represent OIG’s internal

Case 1:07-cv-03378-GEL Document 23 Filed 11/30/2007 Page 22 of 26
23

analysis of what the agency ought to report, or what actions it should take in the future with

respect to the “HUD funded Katrina Disaster relief programs in both Mississippi and Louisiana.” 

(Howell Decl. ¶ 13.) Thus, the documents are intended to “assist an agency decisionmaker” in

developing OIG’s final audit report, Nat’l Council, 411 F.3d at 356, pursuant to the CDBG

program mandate. The withheld documents, which were “generated for discussion purposes

only” (Howell Decl. ¶ 15), therefore reflect the type of “advisory opinions, recommendations

and deliberations” that are protected by the deliberative process privilege, Grand Central, 166

F.3d at 482 – they represent “the give-and-take of the consultative process.” Wolfe, 839 F.2d at

774. Accordingly, the non-disclosed pages were protected by the deliberative process privilege. 

See Judicial Watch, Inc. v. Rossotti, No. WNM-01-2672, 2002 WL 31962775, at *7 (D. Md.

Dec. 16, 2002) (finding that the IRS properly withheld a list of recommended issues to be

pursued in an audit, a discussion of the IRS’s ability to support its position on these issues,

internal e-mails about the audit, and two draft memoranda regarding the audit); Hamilton Sec.

Group, Inc. v. Dep’t of Housing and Urban Dev., 106 F. Supp. 2d 23, 30-33 (D.D.C. 2000)

(holding that a “draft audit report [prepared by OIG] . . . [was] both pre-decisional and

deliberative, and disclosure of the draft audit report would threaten the integrity of the agency’s

policymaking processes[]”).

Similarly, the redacted portions of the disclosed documents are also predecisional and

deliberative. Those documents relate to “preliminary internal OIG audit reviews of proposed

revisions by the State of Louisiana to its required action plan” under the CDBG program. 

(Howell Decl. ¶ 13.) The redacted portions – entitled “Concerns” – “reflect the thoughts, mental

impressions, and areas for possible further OIG inquiry as expressed in meetings among OIG

Case 1:07-cv-03378-GEL Document 23 Filed 11/30/2007 Page 23 of 26
24

audit staff.” (Id.) Such “[c]oncerns” of OIG staff “‘reflect[] the personal opinions of the writer

rather than the policy of the agency,’ and . . . if released, would inaccurately reflect or

prematurely disclose the views of the agency.” Grand Central, 166 F.3d at 482, quoting

Providence Journal Co. v. U.S. Dep’t of Army, 981 F.2d 552, 559 (1st Cir. 1992). “[D]ocuments

[that] include the . . . observations and questions” of agency staff are “precisely the type of

candid discussion that the deliberative process privilege is designed to shield.” Abraham

Fruchter & Twersky LLP v. U.S. SEC, No. 05 Civ. 00039, 2006 WL 785285, at *3 (S.D.N.Y.

Mar. 29, 2006). Therefore, the redacted portions of the disclosed documents were both

predecisional and deliberative, and thus protected by the deliberative process privilege.

Significantly, LDF does not contend that OIG failed to disclose any actual data in

connection with the Audit Records. Rather, it is undisputed that OIG released “[a]ll factual

data” related to the Audit Records, including both the final audit and all data related to the

redacted documents. (Howell Decl. ¶ 13.) While defendant is not required to disclose

documents reflecting its predecisional consideration of the underlying data, the public is entitled

to review the data itself. See Grand Central, 166 F.3d at 482 (“The privilege does not . . . cover

‘purely factual’ material.’”), quoting Hopkins, 929 F.2d at 85. OIG has disclosed that data to

LDF, and LDF can use that data to inform the public about the progress of the Program.

Finally, there is no need in this case for an actual inspection of the withheld records to

determine that they fall within the scope of the deliberative process privilege. See Grand

Central, 166 F.3d at 483 (affirming district court’s in camera analysis of withheld records). 

Although LDF did not request additional discovery to determine whether the withheld

documents fall within the scope of the deliberate process privilege, such a request would

Case 1:07-cv-03378-GEL Document 23 Filed 11/30/2007 Page 24 of 26
25

nonetheless be denied, as “discovery relating to the . . . exemptions [an agency] claims for

withholding records generally is unnecessary if the agency’s submissions are adequate on their

face.” Carney, 19 F.3d at 812; see Wood v. FBI, 432 F.3d 78, 84 (2d Cir. 2005). In this case,

the declaration submitted by defendant is “adequate on [its] face” because it is sufficiently

“detailed, nonconclusory and submitted in good faith.” Wood, 432 F.3d at 84, citing Grand

Central, 166 F.3d at 488-89.

Thus, OIG properly withheld the disputed records pursuant to the deliberative process

privilege. Nevertheless, it must be noted that OIG’s eventual compliance with its FOIA

responsibilities does not excuse its initial disobedience. Although defendant belatedly

established a legitimate basis for its claimed exemption, its initial failure to comply with FOIA’s

directives was costly, not just to the parties in this litigation – litigation that might have been

avoided had defendant initially complied with its legal responsibilities – but to the public

interest. Agencies cannot choose to obey certain legal directives while ignoring, or paying only

“lip service,” to others. Elec. Privacy, 416 F. Supp. 2d at 37. Both government agencies and the

public are best served when agencies operate transparently, and within the confines of

established law.

CONCLUSION

For the foregoing reasons, plaintiff’s motion for summary judgment is denied, and

defendant’s cross-motion for summary judgment is granted. Although the motions are

denominated motions for “partial” summary judgment, the remainder of this action has been

mooted by the government’s production of the requested documents. Accordingly, the Clerk is

respectfully directed to close this case.

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