UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF NEW YORK 

NAACP LEGAL DEFENSE AND 

EDUCATIONAL FUND, INC., 

Plaintiff, 

v. 

UNITED STATES DEPARTMENT OF HOUSING 

AND URBAN DEVELOPMENT, 

Defendant. 

Civil Action No. 07-3378 (GEL) 

 

PLAINTIFF’S MEMORANDUM OF LAW SUPPORTING ITS 

MOTION FOR PARTIAL SUMMARY JUDGMENT 

Plaintiff NAACP Legal Defense & Educational Fund, Inc. respectfully submits this 

Memorandum of Law in support of its Motion for Partial Summary Judgment. 

 

Case 1:07-cv-03378-GEL Document 14 Filed 07/26/2007 Page 1 of 23
TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .........................................................................................................ii

INTRODUCTION ......................................................................................................................... 1 

FACTUAL BACKGROUND........................................................................................................ 2 

I. The CDBG Disaster Recovery Grant Program.................................................................. 2 

II. LDF’s FOIA Request......................................................................................................... 3 

ARGUMENT................................................................................................................................. 6 

I. Review of OIG’s Inadequate Response is Proper in this Court......................................... 6 

II. The Freedom of Information Act....................................................................................... 7 

III. Defendant Has Not Met Its Burden Of Proving the Applicability of Exemption 

Five to Responsive Records............................................................................................... 9 

A. Defendant Has Not Met Its Burden of Showing that Exemption Five 

Applies to the Undisclosed Portions of the Audit Records and 

Investigative Records............................................................................................. 9 

B. Defendant Has Not Met Its Burden of Showing that Exemption Five 

Applies to the Redacted Passages of the Audit Records and Investigative 

Records. ............................................................................................................... 12 

1. Defendant Has Not Shown that the Redacted Passages Are Exempt 

From Disclosure Under the Deliberative Process Privilege. ................... 13 

2. Defendant Has Not Shown that the Redacted Passages Are Exempt 

From Disclosure Under the Attorney-Client Privilege ............................ 16 

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

- i - 

Case 1:07-cv-03378-GEL Document 14 Filed 07/26/2007 Page 2 of 23
TABLE OF AUTHORITIES

Page(s) 

CASES

Coastal States Gas Corp. v. Department of Energy, 

617 F.2d 854 (D.C. Cir. 1980)................................................................................ 13, 15, 16, 17 

Department of the Air Force v. Rose, 

425 U.S. 352 (1976).............................................................................................................. 8, 17 

Department of the Interior v. Klamath Water Users Protective Association, 

532 U.S. 1 (2001)...................................................................................................................... 12 

EPA v. Mink, 

410 U.S. 73 (1973)...................................................................................................................... 7 

Fisher v. United States, 

425 U.S. 391 (1976).................................................................................................................. 13 

Founding Church of Scientology of Washington, D.C., Inc. v. Bell, 

603 F.2d 945 (D.C. Cir. 1979)........................................................................................ 9, 11, 17 

FTC v. Grolier Inc., 

462 U.S. 19 (1983).................................................................................................................... 12 

Grand Central Partnership, Inc. v. Cuomo, 

166 F.3d 473 (2d Cir. 1999) ..................................................................................................... 16 

Halpern v. FBI, 

181 F.3d 279 (2d Cir. 1999) ....................................................................................... 7, 9, 11, 17 

John Doe Agency v. John Doe Corp., 

493 U.S. 146 (1989).................................................................................................................... 7 

Local 3, International Brotherhood of Electrical Workers v. NLRB, 

845 F.2d 1177 (2d Cir. 1988) ..................................................................................................... 8 

Megibow v. Clerk of U.S. Tax Court, 

2004 WL 1961951 (S.D.N.Y. Aug. 31, 2004)............................................................................ 6 

National Cable Television Association v. FCC, 

479 F.2d 183 (D.C. Cir. 1973).................................................................................................... 8 

National Council of La Raza v. Department of Justice, 

411 F.3d 350 (2d Cir. 2005) ............................................................................................... 12, 13 

NLRB v. Sears, Roebuck & Co., 

421 U.S. 132 (1975)............................................................................................................ 12, 13 

 - ii - 

 

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Parke, Davis & Co. v. Califano, 

623 F.2d 1 (6th Cir. 1980) ........................................................................................................ 11 

Ruotolo v. Department of Justice, Tax Division, 

53 F.3d 4 (2d Cir. 1995) ......................................................................................................... 7, 8 

SafeCard Services, Inc. v. SEC, 

926 F.2d 1197 (D.C. Cir. 1991)................................................................................................ 15 

U.S. Department of Justice v. Reporters Committee for Freedom of the Press, 

489 U.S. 749 (1989).................................................................................................................... 8 

Vaughn v. Rosen, 

484 F.2d 820 (D.C. Cir. 1973).......................................................................................... 6, 9, 11 

STATUTES AND REGULATIONS

5 U.S.C. § 552................................................................................................................................. 1 

5 U.S.C. § 552(a) ............................................................................................................................ 7 

5 U.S.C. § 552(a)(4)(B) .............................................................................................................. 6, 8 

5 U.S.C. § 552(a)(6)(E)................................................................................................................... 4 

5 U.S.C. § 552(a)(6)(E)(ii)(I).......................................................................................................... 7 

5 U.S.C. § 552(a)(6)(E)(iii)............................................................................................................. 7 

5 U.S.C. § 552(b) .......................................................................................................................... 10 

5 U.S.C. § 552(b)(5) ....................................................................................................... 6, 7, 10, 12 

5 U.S.C. § 552(b)(6) ........................................................................................................... 6, 10, 11 

5 U.S.C. § 552(b)(7)(C) ...................................................................................................... 6, 10, 11 

28 U.S.C. § 1331............................................................................................................................. 6 

42 U.S.C. § 5301(c) ........................................................................................................................ 3 

Department of Defense, Emergency Supplemental Appropriations to 

Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza 

Act, 2006, Pub. L. No. 109-148, 119 Stat. 2680 (Dec. 30, 2005) .............................................. 2 

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) ..................................................................................................... 2 

- iii - 

 

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- iv - 

 

REGULATIONS

24 C.F.R. § 91.2(a)........................................................................................................................ 13 

24 C.F.R. § 91.5............................................................................................................................ 13 

24 C.F.R. § 91.15(b) ..................................................................................................................... 13 

24 C.F.R. § 91.300........................................................................................................................ 13 

24 C.F.R. § 91.320........................................................................................................................ 13 

24 C.F.R. § 91.330........................................................................................................................ 13 

71 Fed. Reg. 7666 (Feb. 13, 2006) ........................................................................................... 2, 14 

71 Fed. Reg. 63,337 (Oct. 30, 2006)............................................................................................... 2 

OTHER AUTHORITIES

Fed. R. Civ. P. 56(c) ....................................................................................................................... 8 

Shaila Dewan, Patchwork City: Road to New Life After Katrina is Closed to Many, 

N.Y. Times, July 12, 2007.......................................................................................................... 2 

Case 1:07-cv-03378-GEL Document 14 Filed 07/26/2007 Page 5 of 23
INTRODUCTION

Plaintiff, the NAACP Legal Defense and Educational Fund, Inc. (“LDF”), respectfully 

submits this Memorandum of Law in support of Plaintiff’s Motion for Partial Summary 

Judgment. LDF seeks the immediate disclosure of agency records, pursuant to the Freedom of 

Information Act (“FOIA”), 5 U.S.C. § 552, which have been unlawfully withheld by Defendant 

the United States Department of Housing and Urban Development (“HUD”). 

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

Defendant’s administration of the CDBG Disaster Recovery Grant Program, a $16.7 billion 

Community Development Block Grant allocated by Congress for necessary 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. At issue in the present motion are records 

sought from HUD’s Office of the Inspector General (“OIG”). Defendant has refused to disclose 

certain OIG records, and has redacted portions of those OIG records that it did disclose, with no 

legally supportable justification. 

The use of CDBG Disaster Recovery Grant funds for housing redevelopment in affected 

areas of the Gulf states is of overwhelming significance to the hundreds of thousands of families 

who remain displaced by the 2005 hurricanes. Transparent administration of this major federal 

program is also critical to the public’s ability to evaluate whether the program is being 

administered in compliance with federal law, and specifically, whether the intended beneficiaries 

of the Disaster Recovery Grant program – primarily low- and moderate-income families – 

actually receive the benefit of those funds.1

 The inability to ensure that statutory and regulatory 

 

1

 Based on anecdotal evidence, low-income and minority renters impacted by Hurricanes Katrina 

and Rita have experienced difficulty in securing access to federally financed disaster recovery 

funds. See Ex. 1 (Shaila Dewan, Patchwork City: Road to New Life After Katrina is Closed to 

 1

Case 1:07-cv-03378-GEL Document 14 Filed 07/26/2007 Page 6 of 23
requirements are being met carries the risk that Disaster Recovery Grant funds will be 

misdirected, with the result that the intended beneficiaries of the program – poor families from 

areas affected by the hurricanes – may not receive the housing redevelopment assistance that 

they need and that Congress intended be available to them. 

FACTUAL BACKGROUND

I. The CDBG Disaster Recovery Grant Program.

The CDBG Disaster Recovery Grant program was funded through two appropriations 

statutes that were enacted in the months after Hurricanes Katrina and Rita. The first statute, 

denominated the “Department of Defense, Emergency Supplemental Appropriations to Address 

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

Stat. 2680 (Dec. 30, 2005), appropriated $11.5 billion to the five affected states (Louisiana, 

Mississippi, Texas, Florida, and Alabama) for CDBG Disaster Recovery Grants. See 119 Stat. at 

2779-81. The second statute, the “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), appropriated an additional $5.2 billion to the same states. See 120 Stat. at 472-73. 

The CDBG Disaster Recovery Grant authorized by these two appropriations statutes amounts to 

a combined total of $16.7 billion; Louisiana and Mississippi together received over 95% of the 

appropriated amount. See 71 Fed. Reg. 7666, 7669 (Feb. 13, 2006); 71 Fed. Reg. 63,337, 63,338 

(Oct. 30, 2006). 

The two statutes establishing the Disaster Recovery Grant program adopt the general 

framework that governs Community Development Block Grant (“CDBG”) program funds, but 

also authorize HUD, upon request from a state, to waive many CDBG program requirements – 

 

Many, N.Y. Times, July 12, 2007, at A1). All references in this Memorandum to “Ex. __” are to 

the exhibits to the accompanying Declaration of Matthew Colangelo, filed herewith. 

 2

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except for those relating to nondiscrimination, fair housing, labor standards, and the 

environment. See 119 Stat. at 2780; 120 Stat. at 472-73. The Acts allow HUD to require that 

only 50% of funds benefit low- and moderate-income persons (as opposed to the normal 70% 

CDBG requirement, see 42 U.S.C. § 5301(c)), or even to eliminate the requirement entirely on a 

finding of “compelling need.” See 119 Stat. at 2780; 120 Stat. at 473. And the Acts require each 

state to submit an action plan in advance of the receipt of grant funds that details the state’s 

intended uses of those funds, and to submit a quarterly report to the Senate and House 

Committees on Appropriations reporting on all awards and uses of funds. See 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). 

II. LDF’s FOIA Request.

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

2 (LDF FOIA Request). LDF’s request sought certain records concerning HUD’s administration 

of the CDBG Disaster Recovery Grant program as to the states of Louisiana and Mississippi. 

The categories of records sought included records relating to grantee requests for program 

waivers, HUD’s decisions to approve requested waivers, mandatory certifications and reports 

from state grantees, data regarding the race and income level of applicants for Disaster Recovery 

Grant funds, studies regarding the administration of the program, and communications from or to 

Congress. See id. As pertinent to the present motion for summary judgment, paragraph three of 

LDF’s 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, 

 3

Case 1:07-cv-03378-GEL Document 14 Filed 07/26/2007 Page 8 of 23
the CDBG Disaster Recovery Grant program.”2

 Id. at 4, ¶ 3. The FOIA request also included a 

request for expedited processing and a waiver of fees pursuant to FOIA and HUD’s FOIA 

regulations. See id. at 5-8. 

HUD received LDF’s FOIA request on March 21, 2007. See Ex. 3 (Letter from 

O’Connor to Colangelo of 3/22/07, at 1). Because the HUD Office of the Inspector General has 

its own staff to process FOIA requests, separate from the Department’s FOIA office, HUD 

forwarded LDF’s request to its Office of the Inspector General (“OIG”) to respond to paragraph 

three. See Ex. 4 (Letter from Hall to Colangelo of 4/30/07, at 1). OIG received LDF’s request 

on April 11, 2007. See id.; Ex. 7 (Letter from Hall to Clark of 6/29/07, at 1). 

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

days, as required by law. See 5 U.S.C. § 552(a)(6)(E). Because of the urgency of receiving the 

requested information, LDF initiated this lawsuit on April 27, 2007, and filed an Order to Show 

Cause why preliminary injunctive relief should not be granted. See Compl. (Doc. No. 1 on the 

docket of this action); Order to Show Cause (Doc. No. 3); Mem. Supp. Prelim. Inj. (Doc. No. 4). 

In a Stipulation and Order that was signed by the Court on May 10, 2007, the parties 

agreed to a schedule for the release of records sought in paragraphs one, two, four, and five of 

LDF’s FOIA request. See Stipulation & Order (Doc. No. 11). The Stipulation did not resolve 

LDF’s claims before this Court regarding the release of records sought in paragraph three, 

seeking OIG records. See id. ¶ 5 (“HUD has referred paragraph number 3 of the FOIA request to 

the HUD Office of the Inspector General.”). 

 

2

 LDF subsequently narrowed its request to those OIG records regarding Disaster Recovery 

Grant administration by HUD and the states of Louisiana and Mississippi (instead of records 

regarding grant administration by HUD and all five state grantees). See Ex. 5 (Letter from Clark 

to Eshkenazi of 5/21/07, at 2). 

 4

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Since the date of filing of LDF’s lawsuit, LDF and OIG have had extensive 

communications in an effort to resolve this issue in a cooperative instead of adversarial manner. 

The parties continue to discuss a number of topics concerning the processing of LDF’s request to 

OIG – including the proper scope of LDF’s request, the timing of the production of responsive 

records, and the appropriateness of a fee waiver – and Plaintiff does not here bring every 

unresolved issue to the Court. As to one portion of the dispute between LDF and OIG, however, 

OIG’s response to LDF’s request requires that Plaintiff respectfully seek the Court’s intervention 

at this time. 

Specifically, on June 20, 2007, OIG alerted LDF to two analyses that were responsive to 

paragraph three of the March 19 request and that had not previously been disclosed. See Ex. 6 

(Letter from Johnson to Clark of 6/20/07, at 2). OIG identified these records as analyses of state 

action plans conducted by two OIG offices: (1) the Office of Audit, Disaster Oversight and 

Liaison Division, and (2) the Office of Investigations, Disaster Relief Oversight Division. Id. 

The June 20 letter noted that OIG would process the analyses and disclose them the following 

week. Id. 

On June 29, 2007, OIG made a partial disclosure of the records identified in the June 20 

letter. OIG noted that the responsive records from the Office of Audit (the “Audit Records”) 

included 133 pages, but that it would only disclose 88 of those pages. Ex. 7 (Letter from Hall to 

Clark of 6/29/07, at 1). OIG also noted that the responsive records from the Office of 

Investigations (the “Investigative Records”) included 50 pages, but that it would only disclose 42 

pages. Id. Those portions of the Audit Records and Investigative Records that OIG did disclose 

include four documents that are heavily redacted. See Ex. 8 (First Excerpt from Audit Records); 

Ex. 9 (Second Excerpt from Audit Records); Ex. 10 (First Excerpt from Investigative Records); 

 5

Case 1:07-cv-03378-GEL Document 14 Filed 07/26/2007 Page 10 of 23
Ex. 11 (Second Excerpt from Investigative Records). OIG made general reference in its June 29 

letter to its belief that exemptions from disclosure apply pursuant to 5 U.S.C. § 552(b)(5) on the 

ground of deliberative process and/or attorney-client privilege, and pursuant to 5 U.S.C. 

§§ 552(b)(6) and (b)(7)(C) on the ground of protecting against invasion of personal privacy. But 

OIG did not produce Vaughn indices3

 describing either the undisclosed pages or the redacted 

portions of the disclosed pages. 

Plaintiff here moves for Partial Summary Judgment in order to challenge Defendant’s 

decision to withhold multiple pages from the Audit Records and Investigative Records, and to 

redact portions of the documents that were disclosed. For the reasons set forth below, that 

motion should be granted. 

ARGUMENT

I. Review of OIG’s Inadequate Response is Proper in this Court.

First, of course, this matter is properly before this Court. Subject matter jurisdiction 

exists pursuant to federal question jurisdiction and the jurisdictional provision of the FOIA 

statute. See 28 U.S.C. § 1331; 5 U.S.C. § 552(a)(4)(B); see also Megibow v. Clerk of U.S. Tax 

Court, 2004 WL 1961951, at *2 (S.D.N.Y. Aug. 31, 2004) (“Here, [the plaintiff] asserts a claim 

arising under FOIA, a federal statute. The Court clearly has jurisdiction to hear that claim.”). In 

addition, any administrative exhaustion requirement has been met: as noted, LDF submitted its 

FOIA request on March 19, 2007, see Ex. 2 (LDF FOIA Request), and the Department 

forwarded LDF’s request to its Office of the Inspector General in connection with paragraph 

three of the request, which OIG received on April 11. See Ex. 4 (Letter from Hall to Colangelo 

 

3

 A Vaughn index (which is required by law, as discussed below in detail) is an itemized index 

describing all documents or portions of documents that are alleged by the agency to fall within 

one of FOIA’s statutory exemptions from disclosure, including a statement and explanation of 

the claimed exemption with sufficient specificity to permit a reasoned judgment as to whether 

the material is actually exempt. See Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C. Cir. 1973). 

 6

Case 1:07-cv-03378-GEL Document 14 Filed 07/26/2007 Page 11 of 23
of 4/30/07, at 1); Ex. 7 (Letter from Hall to Clark of 6/29/07, at 1). Because LDF’s request 

sought expedited processing, the agency was required to determine whether to provide expedited 

processing and to notify LDF of that determination within ten days. See 5 U.S.C.

§ 552(a)(6)(E)(ii)(I). 

When LDF filed its complaint on April 27, more than ten days had passed both from the 

date the Department received the request and from the date OIG received the request. Any 

administrative exhaustion requirement must therefore be deemed met. See Ruotolo v. Dep’t of 

Justice, Tax Div., 53 F.3d 4, 8-9 (2d Cir. 1995) (holding that the plaintiffs were “deemed to have 

exhausted their administrative remedies” because the agency failed to provide a timely 

determination of the plaintiffs’ FOIA request); see also 5 U.S.C. § 552(a)(6)(E)(iii) (providing 

that the failure of an agency to respond within ten days to a request for expedited processing is 

subject to judicial review). 

II. The Freedom of Information Act.

FOIA “adopts as its most basic premise a policy strongly favoring public disclosure of 

information in the possession of federal agencies.” Halpern v. FBI, 181 F.3d 279, 286 (2d Cir. 

1999). The statute was designed “to permit access to official information long shielded 

unnecessarily from public view and . . . to create a judicially enforceable public right to secure 

such information from possibly unwilling official hands.” John Doe Agency v. John Doe Corp., 

493 U.S. 146, 151-52 (1989) (quoting EPA v. Mink, 410 U.S. 73, 80 (1973)). FOIA therefore 

directs government agencies to disclose certain types of records and describes the manner of 

disclosure required, see 5 U.S.C. § 552(a), while setting forth the specific categories of records 

exempted from disclosure. Id. § 552(b). The exemption from the disclosure requirement that is 

implicated in the present dispute is the exemption for deliberative process or attorney-client 

privilege, § 552(b)(5) (Exemption Five). 

 7

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The Supreme Court has held that the “limited exemptions” contained in the statute “do 

not obscure the basic policy that disclosure, not secrecy, is the dominant objective of the Act.” 

Dep’t of the Air Force v. Rose, 425 U.S. 352, 361 (1976). As a result, statutory exemptions from 

the FOIA disclosure requirement must be “narrowly construed with all doubts resolved in favor 

of disclosure.” Local 3, Int’l Bhd. of Elec. Workers v. NLRB, 845 F.2d 1177, 1180 (2d Cir. 

1988). This Court’s review of the agency’s determination that an exemption applies is de novo, 

and the agency bears the burden of justifying its actions. 5 U.S.C. § 552(a)(4)(B); see also U.S. 

Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755 (1989) 

(“Unlike the review of other agency action that must be upheld if supported by substantial 

evidence and not arbitrary or capricious, the FOIA expressly places the burden ‘on the agency to 

sustain its action,’ and directs the district courts to ‘determine the matter de novo.’”) (quoting 5 

U.S.C. § 552(a)(4)(B)). 

A party is entitled to summary judgment if there is “no genuine issue as to any material 

fact and . . . the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). 

In the FOIA context, the defending agency has the burden of showing on summary judgment 

“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.”4

 Ruotolo, 53 F.3d 

at 9 (quoting Nat’l Cable Television Ass’n v. FCC, 479 F.2d 183, 186 (D.C. Cir. 1973)). 

 

4

 For purposes of the present motion, Plaintiff challenges Defendant’s assertion of exemptions 

from disclosure. Plaintiff is unable yet to determine whether Defendant has met its burden of 

showing that its search for responsive records was adequate, see Ruotolo, 53 F.3d at 9, because 

Defendant has given no description of the undisclosed pages from the Audit Records and 

Investigative Records. See Ex. 7 (Letter from Hall to Clark of 6/29/07). Plaintiff does not waive 

any arguments regarding the adequacy of OIG’s search. 

 8

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III. Defendant Has Not Met Its Burden Of Proving the Applicability of 

Exemption Five to Responsive Records. 

A. Defendant Has Not Met Its Burden of Showing that Exemption Five 

Applies to the Undisclosed Portions of the Audit Records and 

Investigative Records. 

Plaintiff is entitled to summary judgment with regard to OIG’s refusal to disclose 

numerous pages from the Audit Records and the Investigative Records. OIG’s decision is based 

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

the law. 

In order to carry its burden of showing that an exemption from the disclosure requirement 

applies, an agency must submit an index that sets forth in detail the bases for the claimed 

exemption. See Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C. Cir. 1973). 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 is not permitted to 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. Id. at 826; see also Halpern, 181 F.3d at 290-91. This 

detailed analysis – 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). 

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 and the 

justification for non-disclosure; the affidavits must explain why the withheld information 

“logically falls within the claimed exemption.” Halpern, 181 F.3d at 293. 

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In addition, even where portions of requested records may properly be exempt from 

disclosure, the agency is required to disclose any reasonably segregable non-exempt portions of 

the requested records. See 5 U.S.C. § 552(b). If the agency believes that a document contains 

non-exempt portions that are not reasonably segregable, it must provide a detailed justification 

for that determination, including a description of how the non-exempt portions are dispersed 

throughout the document, and what proportion of the document is non-exempt. Mead Data 

Cent., Inc. v. U.S. Dep’t of the Air Force, 566 F.2d 242, 261 (D.C. Cir. 1977). 

As noted above, on June 29 OIG made a partial disclosure of two analyses responsive to 

Plaintiff’s request: the Audit Records and the Investigative Records. With regard to the Audit 

Records, OIG noted that there were 133 responsive pages but that it would disclose only 88 

pages. See Ex. 7 (Letter from Hall to Clark of 6/29/07, at 1). OIG’s entire explanation for the 

refusal to disclose all 133 pages was as follows: 

Certain information was withheld from this material pursuant to 5 

U.S.C. § 552(b)(5) and (b)(6) which protect intra-agency 

communications subject to the deliberative process privilege and 

materials the disclosure of which would constitute a clearly 

unwarranted invasion of personal privacy. For your information, 

the withheld material consists of pre-decisional discussions or 

comments reflecting staff evaluations and opinions, draft material, 

and telephone numbers. 

Id. With regard to the Investigative Records, OIG noted that there were 50 responsive pages but 

that it would disclose only 42 pages. OIG’s explanation for the refusal to disclose all 50 pages 

was as follows: 

Certain information was withheld from this material pursuant to 5 

U.S.C. § 552(b)(5) and (b)(7)(C) which protect intra-agency 

communications subject to the deliberative and attorney-client 

process privileges and materials the disclosure of which would 

constitute a clearly unwarranted invasion of personal privacy. For 

your information, the withheld material consists of pre-decisional 

discussions or comments reflecting staff evaluations and opinions, 

and the names and telephone numbers of the special agents. 

 10

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Id. 

The mere invocation of Exemption Five, with a two-sentence explanation that OIG 

believes the deliberative process privilege (for both sets of records) and/or the attorney-client 

privilege (for the Investigative Records) may apply, is wholly insufficient to meet OIG’s 

obligation to justify its non-disclosure.5

 OIG has not submitted an affidavit or declaration 

explaining the justification for its withholding that would permit “reasoned judgment” as to 

whether the withheld pages are actually exempt. See Founding Church of Scientology, 603 F.2d 

at 949; see also Parke, Davis & Co. v. Califano, 623 F.2d 1, 6 (6th Cir. 1980) (in light of the 

“overwhelming thrust of FOIA . . . toward complete disclosure,” Exemption Five claims must be 

supported with “specificity and [in] detail”). Indeed, OIG has submitted no affidavit or 

declaration at all. In addition, OIG has not made any assertion as to whether it has disclosed all 

reasonably segregable non-exempt portions of the responsive records. See 5 U.S.C. § 552(b). 

The cursory explanation that Defendant provides 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. 

Because Defendant has failed to meet its burden of demonstrating that the pages withheld 

from the Audit Records and Investigative Records are actually exempt, the Court should grant 

Plaintiff’s Motion for Summary Judgment and order the disclosure of the withheld pages. 

 

5

 Plaintiff does not intend to challenge OIG’s withholding of staff telephone numbers from the 

undisclosed portions of the Audit Records pursuant to the personnel exemption for personal 

privacy, 5 U.S.C. § 552(b)(6), or the withholding of the names and telephone numbers of special 

agents from the undisclosed pages of the Investigative Records pursuant to the law enforcement 

exemption for personal privacy, 5 U.S.C. § 552(b)(7)(C). 

 11

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B. Defendant Has Not Met Its Burden of Showing that Exemption Five 

Applies to the Redacted Passages of the Audit Records and 

Investigative Records. 

Plaintiff is additionally entitled to summary judgment with regard to OIG’s decision to 

redact portions of those pages of the Audit Records and Investigative Records that OIG did 

disclose. OIG’s decision to redact portions of the disclosed records pursuant to Exemption Five 

is unsupported by OIG’s minimal explanation. 

Exemption Five permits an agency to withhold “inter-agency or intra-agency 

memorandums or letters which would not be available by law to a party other than an agency in 

litigation with the agency.” 5 U.S.C. § 552(b)(5). For a record to qualify for this exemption, “its 

source must be a Government agency, and it must fall within the ambit of a privilege against 

discovery under judicial standards that would govern litigation against the agency that holds it.” 

Dep’t of the Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001). The 

Supreme Court has explained that “[i]n keeping with the Act’s policy of ‘the fullest responsible 

disclosure,’ Congress intended Exemption 5 to be ‘as narro[w] as [is] consistent with efficient 

Government operation.’” FTC v. Grolier Inc., 462 U.S. 19, 23 (1983) (citations omitted) 

(quoting the legislative history) (alterations in original). 

The privileges that Defendant has asserted in connection with the redacted portions of the 

documents at issue here are the deliberative process privilege (for both sets of records) and the 

attorney-client privilege (for the Investigative Records). See Ex. 7 (Letter from Hall to Clark of 

6/29/07, at 1). The deliberative process privilege “is designed to promote the quality of agency 

decisions by preserving and encouraging candid discussion between officials.” Nat’l Council of 

La Raza v. Dep’t of Justice, 411 F.3d 350, 356 (2d Cir. 2005). Deliberative process covers 

“documents reflecting advisory opinions, recommendations and deliberations comprising part of 

a process by which governmental decisions and policies are formulated.” NLRB v. Sears, 

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Case 1:07-cv-03378-GEL Document 14 Filed 07/26/2007 Page 17 of 23
Roebuck & Co., 421 U.S. 132, 150 (1975). In invoking this privilege, Defendant bears the 

burden of showing that the document at issue is predecisional, in that it was “prepared in order to 

assist an agency decisionmaker in arriving at his decision,” and deliberative, in that it was 

actually “related to the process by which policies are formulated.” La Raza, 411 F.3d at 356; see 

also Tigue v. U.S. Dep’t of Justice, 312 F.3d 70, 76-77 (2d Cir. 2002). 

The purpose of the attorney-client privilege “is to assure that a client’s confidences to his 

or her attorney will be protected, and therefore encourage clients to be as open and honest as 

possible with attorneys.” Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 862 (D.C. 

Cir. 1980). This privilege, however, “is narrowly construed and is limited to those situations in 

which its purposes will be served,” id., and “protects only those disclosures – necessary to obtain 

informed legal advice – which might not have been made absent the privilege.” Id. (quoting 

Fisher v. United States, 425 U.S. 391, 403 (1976)). Thus, in the FOIA context, this privilege 

protects an agency’s confidential communications with its attorneys, provided that the 

communications are necessary to obtain informed legal advice. See id. at 862-64. 

1. Defendant Has Not Shown that the Redacted Passages Are 

Exempt From Disclosure Under the Deliberative Process 

Privilege. 

The Audit Records contain two six-page documents, extensively redacted by Defendant, 

with a handwritten notation of “b5” next to redacted passages to indicate Defendant’s assertion 

that Exemption Five applies. The first document addresses an amended version of Louisiana’s 

Action Plan6

 for its Road Home Housing Program, and is titled: “HUD OIG Office of Audit 

 

6

 Typically, to receive CDBG funds, each grantee must develop and submit to HUD a planning 

document and funding application called the Consolidated Plan. See 24 C.F.R. §§ 91.2(a), 91.5. 

The Consolidated Plan is submitted every five years, with certain components re-submitted 

annually. See id. §§ 91.5, 91.15(b), 91.300-91.330. Among the annual requirements is an 

Action Plan, which is a detailed accounting of how the jurisdiction will use the grant funds 

during the next year. See id. §§ 91.15(b)(1), 91.320. HUD has waived the standard Action Plan 

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Case 1:07-cv-03378-GEL Document 14 Filed 07/26/2007 Page 18 of 23
Review and Concerns, STATUS as of 04/27/06.” See Ex. 8 (First Excerpt from Audit Records). 

The document is divided into sections that describe components of Louisiana’s proposed plan, 

and contains a subsection within each program description titled “Concerns.” Id. Defendant has 

redacted all text contained under the “Concerns” sections of the document, claiming the 

protection of FOIA Exemption Five. Id. 

The second redacted document from the Audit Records, also entitled “HUD OIG Office 

of Audit Review and Concerns, STATUS as of 04/27/06,” addresses Mississippi’s Partial Action 

Plan for its Homeowner Assistance Program. See Ex. 9 (Second Excerpt from Audit Records). 

Defendant has redacted several pages of text under the heading “Concerns,” again apparently 

indicating that it believes Exemption Five applies. 

The Investigative Records contain two additional documents that are similarly redacted. 

The first document is a memorandum dated February 7, 2007, from Larry Amaker in the Office 

of the Inspector General, noting Louisiana’s decision to create a $138 million business recovery 

loan program with its Disaster Recovery Grant funds. See Ex. 10 (First Excerpt from 

Investigative Records). The memorandum notes that “[i]n reviewing the program, several 

concerns regarding due diligence presented themselves to us.” Id. The next two paragraphs are 

redacted, pursuant to the claimed Exemption Five, and the first sentence after the redacted 

 

requirement for CDBG Disaster Recovery Grant recipients, substituting instead a similar 

document called an Action Plan for Disaster Recovery. See 71 Fed. Reg. 7666, 7669 (Feb. 13, 

2006). 

 The Action Plan for Disaster Recovery must describe, inter alia, the effects of the 

covered disaster, the grantee’s overall plan for disaster recovery, and monitoring standards and 

procedures sufficient to ensure that program requirements are met. Id. The Action Plan for 

Disaster Recovery must also contain numerous required certifications, including the grantee’s 

certification that it will affirmatively further fair housing in compliance with the Fair Housing 

Act, as well as a certification that the grantee will give “maximum feasible priority to activities 

that will benefit low- and moderate-income families.” Id. at 7669, 7671. 

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Case 1:07-cv-03378-GEL Document 14 Filed 07/26/2007 Page 19 of 23
portion states: “We hope that you can use your office to correct the application process, before 

large scale fraud is committed against the program.” Id. 

The second redacted document from the Investigative Records is an OIG email dated 

January 31, 2007, with the subject line “Re: Small Business Recovery Loans,” and the entire 

body of the message redacted per claimed Exemption Five. See Ex. 11 (Second Excerpt from 

Investigative Records). The email appears to be responding to an email about the $138 million 

Louisiana business recovery loan program described above. 

Aside from the brief description in the June 29 letter, described in Part III.A above, 

Defendant has not submitted any index, declaration, or explanation of its withholding of the 

redacted information. But the mere assertion that the deliberative process privilege applies is 

insufficient to support Defendant’s decision to redact passages from these four documents in the 

Audit Records and Investigative Records. Thus, for example, Defendant has not shown that the 

redacted passages are either predecisional or deliberative. In order to meet its heavy burden, 

however, Defendant “must describe not only the contents of the document but also enough about 

its context, viz. the agency’s decisionmaking process, to establish that it is a pre-decisional part 

thereof.” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1204 (D.C. Cir. 1991) (“[T]he court 

needs to know whether the document explains, directly or by reference, the reason for the 

agency’s decision.”). In other words, Defendant must establish “what deliberative process is 

involved and the role played by the documents in issue in the course of that process.” Coastal 

States Gas Corp., 617 F.2d at 868. 

Wholly apart from Defendant’s failure to carry its burden by not providing Plaintiff with 

anything more than a cursory notation that it was claiming the deliberative process exemption, it 

is apparent from the context of the documents at issue that Defendant would not be able to meet 

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Case 1:07-cv-03378-GEL Document 14 Filed 07/26/2007 Page 20 of 23
its burden should it attempt to do so. There is nothing in the unredacted portions of the 

documents to indicate that the documents were predecisional, as they do not appear to be part of 

any ongoing decisionmaking process. See Tigue, 312 F.3d at 80 (“[W]hile the agency need not 

show ex post that a decision was made, it must be able to demonstrate that, ex ante, the document 

for which executive privilege is claimed related to a specific decision facing the agency.”). The 

documents are not marked as “recommendations” or “drafts,” and do not on their face “bear on 

the formulation . . . of policy-oriented judgment.” Id. (quoting Grand Cent. P’Ship, Inc. v. 

Cuomo, 166 F.3d 473, 482 (2d Cir. 1999)). Absent a showing that a decision was being made or 

a policy was being considered, documents produced as part of an ongoing audit process cannot 

be considered predecisional: “Characterizing these documents as ‘predecisional’ simply because 

they play into an ongoing audit process would be a serious warping of the meaning of the word.” 

Coastal States Gas Corp., 617 F.2d at 868. 

Nor do the documents at issue appear to be deliberative. There is nothing to indicate that 

the redacted portions “reflect[] the give-and-take of the consultative process,” or that the 

documents are “deliberative in nature, weighing the pros and cons of agency adoption of one 

viewpoint or another.” Id. at 866. 

Because Defendant has not made any showing that the redacted portions of the 

documents at issue are entitled to an exemption from disclosure on the basis of the deliberative 

process privilege, this Court should grant Plaintiff’s motion for summary judgment and order the 

redacted portions to be disclosed in full. 

2. Defendant Has Not Shown that the Redacted Passages Are 

Exempt From Disclosure Under the Attorney-Client Privilege.

Finally, the June 29 letter notes that with regard to the Investigative Records, Exemption 

Five is being claimed, at least in part, on the basis of the attorney-client privilege. But there is 

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Case 1:07-cv-03378-GEL Document 14 Filed 07/26/2007 Page 21 of 23
nothing in Defendant’s assertion of the exemption that indicates how Defendant believes the 

attorney-client privilege applies, or to what portion of the redacted documents it applies. For the 

reasons noted above, the bare assertion that portions of a document may be redacted based on 

attorney-client privilege, without more, is insufficient to permit any reasoned judgment as to the 

applicability of the claimed exemption, and therefore fails as a matter of law. See Halpern, 181 

F.3d at 290-91; Founding Church of Scientology, 603 F.2d at 949. 

In sum, OIG has invoked the deliberative process and attorney-client privileges of 

Exemption Five as a basis for withholding entire documents and redacted passages responsive to 

Plaintiff’s FOIA request, but has utterly failed to meet its burden of demonstrating that these 

records can be withheld under FOIA. See Coastal States Gas Corp., 617 F.2d at 868 (“We 

reemphasize the narrow scope of Exemption 5 and the strong policy of the FOIA that the public 

is entitled to know what its government is doing and why.”). Defendant’s determination to, in 

this manner, unilaterally deprive the American public of crucial information relating to the way 

in which a multi-billion dollar federal disaster recovery program is being administered thus 

subverts the purpose of FOIA, to “open agency action to the light of public scrutiny.” Rose, 425 

U.S. at 361 (citations omitted). It should not be countenanced. 

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Case 1:07-cv-03378-GEL Document 14 Filed 07/26/2007 Page 22 of 23
CONCLUSION
 

For the reasons set forth above., Plaintiff respectfully requests that this Court grant 

Plaintiffs Motion for Partial Summary Judgment., and order Defendant to disclose the withheld 

pages from the responsive records., and the redacted portions of those records that were 

disclosed. 

Dated: July 26., 2007 Respectfully submitted, 

New York., NY 

Theodore M. Shaw., Director-Counsel 


 Robert H. Stroup 

Damon Hewitt 

NAACP LEGAL DEFENSE AND 

EDUCATIONAL FUND., INC. 

99 Hudson Street., 16th Floor 

New York., New York 10013 

(212) 965-2200 

Lawrence S. Lustberg (LL-1644)
 

Melanca D. Clark (MC-0908)
 

GIBBONS., P.C.
 

One Gateway Center
 

Newark., New Jersey 07102-5310
 

(973) 596-4500 

Attorneys for Plaintiff 

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