UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF NEW YORK

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NAACP LEGAL DEFENSE AND

EDUCATIONAL FUND, INC.,

Plaintiff,

v.

UNITED STATES DEPARTMENT OF

HOUSING AND URBAN DEVELOPMENT,

Defendant.

07 Civ. 3378 (GEL)

ECF CASE

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REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF 

DEFENDANT’S CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT

MICHAEL J. GARCIA

United States Attorney for the

Southern District of New York

86 Chambers Street, 3rd Floor

New York, New York 10007

Telephone: (212) 637-2758

Fax: (212) 637-2702

LARA K. ESHKENAZI

Assistant United States Attorney

– Of Counsel–

Case 1:07-cv-03378-GEL Document 22 Filed 09/10/2007 Page 1 of 10
TABLE OF CONTENTS

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

ARGUMENT.................................................................. 1

I. PLAINTIFF FAILED TO PROPERLY EXHAUST ITS 

ADMINISTRATIVE REMEDIES............................................ 1

II. PLAINTIFF HAS FAILED TO REBUT OIG’S DECLARATIONS 

SUPPORTING THE WITHHOLDING OF CERTAIN RECORDS 

IN WHOLE OR IN PART PURSUANT TO FOIA EXEMPTION 5. . . . . . . . . . . . . . . . . 5

III. PLAINTIFF HAS FAILED TO REBUT OIG’S SHOWING THAT IT 

HAS CONDUCTED AN ADEQUATE SEARCH FOR RESPONSIVE 

RECORDS. ............................................................. 7

CONCLUSION. ............................................................... 8

Case 1:07-cv-03378-GEL Document 22 Filed 09/10/2007 Page 2 of 10
PRELIMINARY STATEMENT

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

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

District of New York, respectfully submits this memorandum of law in further support of the

Government’s cross-motion for partial summary judgment dismissing in part the FOIA complaint

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

In opposition to the Government’s motion, LDF offers no explanation for its failure to

comply with regulations governing FOIA requests for records maintained by HUD’s Office of the

Inspector General (“OIG”) and for failing to exhaust its administrative remedies. LDF also fails

to cite any cases holding that an agency’s failure to respond to a request for expedited processing

is akin to constructive exhaustion for purposes of a challenge to the substantive FOIA response. 

Finally, LDF has submitted no evidence to rebut OIG’s showing that (a) it conducted an adequate

search for responsive documents, and (b) it properly withheld ceratin information pursuant to

applicable FOIA exemptions.

ARGUMENT

I. PLAINTIFF FAILED TO PROPERLY EXHAUST

ITS ADMINISTRATIVE REMEDIES

Conceding that it filed its complaint in this action prior to the expiration of the

Government’s twenty-day time period for responding to a FOIA request set forth in 5 U.S.C. §

552(a)(6)(A), LDF nevertheless insists that it properly exhausted its administrative remedies

because OIG did not respond to LDF’s request for expedited processing within ten days. See

Plaintiff’s Reply Memorandum of Law Supporting Its Motion for Partial Summary Judgment

(“Pl’s Opp.”) at 4-6. 

Case 1:07-cv-03378-GEL Document 22 Filed 09/10/2007 Page 3 of 10
 As plaintiff points out in its opposition brief, see Pl’s Opp. at 5 n.4., the Government 1

mistakenly referred to Judicial Watch as a “D.C. Circuit” court case rather than as a D.C. district

court case in its moving papers. The Government’s mistake was inadvertent and not intended to

mislead the Court. 

2

Plaintiff fails to cite a single case holding that a FOIA requester has constructively

exhausted his or her administrative remedies if the agency fails to respond to the request for

expedited processing within ten days, but fully responds to the FOIA request within twenty days. 

See id. In neither of the cases cited by plaintiff, see Pl’s Opp. at 5, did the FOIA requester file an

action in district court prior to the expiration of the twenty-day time limit. Rather, in Elec.

Privacy Info. Ctr. v. Dep’t of Justice, 416 F. Supp. 2d 30, 39 (D.D.C. 2006), the court held that

an agency that violates the twenty-day time limit “presumptively also fails to process an

expedited request as soon as practicable.” (internal quotation marks omitted). Here, as plaintiff

admits, OIG did not violate the twenty-day time limit. Similarly, in ACLU v. Dep’t of Defense,

339 F. Supp. 2d 501, 504-05 (S.D.N.Y. 2004), the court required the agency to respond to FOIA

request by a date certain after the agency failed to respond within a year of receiving the request. 

Again, those facts are simply not present here. 

Moreover, as set forth in the Government’s moving papers, the only court to address the

precise issue presented in this case rejected the position advanced by plaintiff. See Judicial

Watch v. U.S. Naval Observatory, 160 F. Supp. 2d 111, 112-13 (D.D.C. 2001). Contrary to 1

plaintiff’s suggestion, see Pl’s Opp. at 5 (citing 5 U.S.C. § 552(a)(6)(e)(iii)), the holding of

Judicial Watch does not conflict with the FOIA statute’s requirement that an agency respond to a

request for expedited processing “as soon as practicable.” Specifically, the statute requires the

agency to determine whether it will grant the request for expedited processing within ten days, 5

Case 1:07-cv-03378-GEL Document 22 Filed 09/10/2007 Page 4 of 10
3

U.S.C. § 552(a)(6)(E)(ii)(I), and if granted, to process such records “as soon as practicable,” 5

U.S.C. § 552(a)(6)(E)(iii). “As soon as practicable” is not defined in the statute, and nothing in

the statute requires, or even suggests, that an agency must provide records responsive to an

expedited processing request before twenty days from the date the agency receives the request. 

Thus, while the decision to deny a request for expedited processing and the failure to respond “as

soon as practicable” are subject to judicial review, 5 U.S.C. § 552(a)(6)(E)(iii), the plain

language of the statute does not support plaintiff’s interpretation that a FOIA requester has

constructively exhausted its remedies for purposes of challenging the substance of an agency’s

response prior to the expiration of the twenty-day time frame set forth in 5 U.S.C. § 552(a)(6)(A). 

Accordingly, the decision in Judicial Watch is entirely consistent with the FOIA statute. Indeed,

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 twentyday constructive exhaustion time frame to ten days merely by filing an unwarranted request for

expedited processing. There is no support in the either the statute or case law for such a result. 

In any event, OIG responded to the request “as soon as practicable.” Indeed, within

twenty days of receiving LDF’s request, OIG did more than inform LDF of its decision to comply

with the request (as required under FOIA), but, in fact, fully responded to the request. See

Declaration of Darlene Hall, dated August 15, 2007 (“Hall Decl.”), Exh. B. When LDF

subsequently clarified its vague request for “studies,” on June 11, 2007, OIG once again timely

responded by releasing responsive documents on June 29, 2007. Hall Decl., Exhs E & F. 

Plaintiff’s reliance on DiModica v. U.S. Dep’t of Justice, Civ. No. 05-2165 (GEL), 2006

Case 1:07-cv-03378-GEL Document 22 Filed 09/10/2007 Page 5 of 10
4

WL 89947 (S.D.N.Y. Jan. 11, 2006), in support of its argument that LDF had exhasuted its

administrative remedies at the time the complaint was filed because OIG had not responded to

the request until after this action was filed, see Pl’s Opp. at 4, is misplaced. In DiModica, the

agency responded to the FOIA request after the twenty-day time limit had passed. DiModica,

2006 WL 89947, at *3 (noting that FOIA requester filed district court action four months after

sending his FOIA request to the agency and one month before the agency responded to the

request). Here, at the time LDF filed its district court complaint, the twenty-day time frame had

not yet expired. 

In addition, plaintiff’s claim that it did not have to administratively exhaust its remedies

because OIG’s initial response on April 30, 2007 did not include a notification of LDF’s right to

appeal, see Pl’s Opp. at 6, ignores OIG’s regulation, which only allow for administrative review

if a portion of the request was denied. 24 C.F.R. § 2002.25(a) (administrative “[r]eview is

available only from a written denial of a request”). Because OIG did not deny any portion of the

request in its April 30, 2007 response, plaintiff could not seek administrative review of OIG’s

response, and therefore, a notice referencing a right to seek administrative review would have

been inappropriate. Consistent with its regulations, OIG properly included a notice regarding

plaintiff’s right to seek review in its June 29, 2007 letter in which it denied a portion of the

request. Hall Decl., Exh. F. 

Finally, while the exhaustion requirements are not jurisdictional, they should not be

completely disregarded as plaintiff appears to suggest. See Pl’s Opp. at 7. The facts of this case

compel dismissal due to plaintiff’s blatant disregard for OIG’s regulations for two reasons. First,

this case does not involve a pro se plaintiff incapable of deciphering agency regulations. On the

Case 1:07-cv-03378-GEL Document 22 Filed 09/10/2007 Page 6 of 10
 Plaintiff’s argument that the Court should ignore the exhaustion requirements in this 2

case because “the agency’s determination, if upheld on administrative review, will ultimately be

judicially reviewable in this Court,” see Pl’s Opp. at 7, is unavailing. As the Government

pointed out in its moving papers, the D.C. Circuit has held the failure to seek administrative

review bars any judicial review once the time for filing an administrative appeal has passed. 

Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 65 (D.C. Cir. 1990); Spannaus v. U.S. Dep’t of

Justice, 824 F.2d 52 (D.C. Cir. 1987) (statutory right to sue might be entirely cut off if the

requester never administratively appeals the denial). 

5

contrary, the plaintiff in this case is a sophisticated entity represented by extremely competent

counsel. Second, and more significantly, despite the fact that OIG did not grant or deny

plaintiff’s expedited processing request within ten days, OIG provided responsive records “as

soon as practicable.” This is not a case in which court intervention is necessary to compel an

agency to respond to a FOIA request. The only delay in processing the OIG request was caused

by plaintiff’s admitted failure to follow OIG’s regulations and to address its request to the

appropriate office. See Pl’s Opp. at 2. Thus, there is simply no reason for the Court to excuse

plaintiff’s failure to comply with the administrative exhaustion requirements of the FOIA statute

and OIG regulations.

2

II. PLAINTIFF HAS FAILED TO REBUT OIG’S DECLARATIONS 

SUPPORTING THE WITHHOLDING OF CERTAIN RECORDS 

IN WHOLE OR IN PART PURSUANT TO FOIA EXEMPTION 5

Plaintiff claims that the Declaration of J. Bryan Howell, dated August 16, 2007 (“Howell

Decl.”), is insufficiently detailed to support the withholding in full of draft documents pursuant

to the deliberative process privilege encompassed by FOIA Exemption 5 (5 U.S.C. § 552(b)(5)). 

Pl’s Opp. at 8-9. Plaintiff further argues that OIG improperly redacted information identifying

“concerns about the state grantees’ policies, not about [OIG’s].” Pl’s Opp. at 10 (emphasis

omitted). Plaintiff is incorrect. 

Case 1:07-cv-03378-GEL Document 22 Filed 09/10/2007 Page 7 of 10
6

The information contained in the Howell Declaration is more than sufficient to support

OIG’s decision to withhold draft audit-related documents pursuant to Exemption 5. The Howell

Declaration explicitly describes the withheld audit records as documents relating 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. The

withheld records also include a draft audit report, which Howell specifies as being “generated for

discussion purposes only,” and e-mails discussing the draft audit report. Id. ¶ 15. Thus, the

Howell Declaration is “reasonably detailed” and sufficiently “describe[s] the documents or

classes of documents withheld and explain why they fall within an applicable exemption.” See

Carney v. U.S. Dep’t of Justice, 19 F.3d 807, 813 (2d Cir. 1994). No further information is

necessary for the Court to conclude that the withheld information reflect “advisory opinions,

recommendations and deliberations comprising part of a process by which governmental

decisions and policies are formulated.” Grand Cent. P’ship, Inc. v. Cuomo, 166 F.3d 473, 482

(2d Cir. 1999) (internal quotation marks and citations omitted). 

Regarding the redacted records, contrary to plaintiff’s argument, the documents do not

merely relate to the state grantees’ policies, see Pl’s Opp. at 10, but concern OIG’s decisions

regarding further inquiries, such as audits or further investigations. Howell Decl. ¶¶ 3, 13. As

the Howell Declaration explains, the subject documents are “Status Report documents from

preliminary internal OIG audit reviews of proposed revisions by the State of Louisiana to its

required action plan.” Howell Decl. ¶ 13. The redacted portions of the reports are the sections

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

further OIG inquiry as expressed in meetings among OIG audit staff.” Id. (emphasis added). 

Case 1:07-cv-03378-GEL Document 22 Filed 09/10/2007 Page 8 of 10
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Thus, the redacted information is protected from disclosure by the deliberative process privilege

because it relates to OIG’s decision-making process regarding whether to conduct further

inquiries into Louisiana’s action plan. 

III. PLAINTIFF HAS FAILED TO REBUT OIG’S SHOWING THAT IT HAS

CONDUCTED AN ADEQUATE SEARCH FOR RESPONSIVE RECORDS

In response to OIG’s claim that plaintiff has not challenged the adequacy of OIG’s search

for responsive records, plaintiff offers the cryptic statement “that because LDF has no

understanding of what is contained in the withheld records, it is unable yet to determine whether

[OIG’s] search was adequate or inadequate.” Pl’s Opp. at 10 n.7. OIG has provided the

declaration of Darlene Hall, dated August 15, 2007, describing OIG’s search for records in

response to plaintiff’s FOIA request. Moreover, OIG has more than sufficiently described the

withheld records. See Howell Decl. ¶¶ 13-19, Exhs. A & B. Plaintiff has had a full opportunity

to challenge the search as being inadequate and has chosen not to do so. Accordingly, for the

reasons stated in the Government’s moving papers, the Court should find that the Government

has met its burden of demonstrating that it conducted an adequate search for responsive records. 

Case 1:07-cv-03378-GEL Document 22 Filed 09/10/2007 Page 9 of 10
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CONCLUSION

For the foregoing reasons, and the reasons stated in the Government’s moving papers, the

Court should deny plaintiff’s motion for partial summary judgment and grant the Government’s

cross-motion for partial summary judgment.

Dated: New York, New York

September 10, 2007

MICHAEL J. GARCIA

United States Attorney for the

Southern District of New York

By: /s/ Lara K. Eshkenazi 

LARA K. ESHKENAZI

Assistant United States Attorney

86 Chambers Street, 3rd Floor

New York, New York 10007

Tel: (212) 637-2658

Case 1:07-cv-03378-GEL Document 22 Filed 09/10/2007 Page 10 of 10