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Judicial Watch • Judicial Watch v Dept of Housing Urban Development and Dept of Justice 01032012

Judicial Watch v Dept of Housing Urban Development and Dept of Justice 01032012

Judicial Watch v Dept of Housing Urban Development and Dept of Justice 01032012

Page 1: Judicial Watch v Dept of Housing Urban Development and Dept of Justice 01032012

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Number of Pages:53

Date Created:January 4, 2012

Date Uploaded to the Library:February 20, 2014

Tags:01032012, Dept, urban, housing, Development, justice


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THE UNITED STATES DISTRICT COURT FOR THE DISTRICT COLUMBIA 
JUDIClAL WATCH, INC., 
425 Third Street, SW, Suite 800 
Washington,  20024,  
Plaintiff,  Civil Action No.  

UNITED STATES DEPARTMENT HOUSING AND Case: 12-cv-00002 

URBAN DEVELOPMENT, Assigned To: Jackson, Amy Berman 
451 7th St., S.W. 
Assign. Date /3/2012 

Washington, 20410, 
and 
UNITED STATES DEPARTMENT JUSTICE, 
950 Pennsylvania venue, Washington, 20530-0001 
Defendants. 

Plaintiff Judicial Watch, Inc. brings this action against Defendants United States 
Department Justice ("DOJ") and United States Department Housing and Urban Development 
("HUD") compel compliance with the Freedom oflnformation Act, U.S.C.  552 ("FOIA"). grounds therefor, Plaintiff alleges follows: 
JURISDICTION AND VENUE The Court has jurisdiction over this action pursuant U.S.C.  552(a)(4)(B) and U.S.C.  1331. Venue proper this district pursuant U.S.C.  139l(c) 

PARTIES 
Plaintiff non-profit, educational foundation organized under the Jaws the District Columbia and having its principal place business 425 Third Strcc1, S.W., Suite 800, Washington, 20024. Plaintiff seeks promote integrity, transparency; and accountability government and fide Iity the rule law. furtherance its pub Iic interest mission, Plaintiff regularly requests access the public records federal, state, and local government agencies, entities, and offices, and disseminates its findings the public. 
Defendant DOJ agency the United States Government and headquartered 950 Pennsylvania Avenue, NW, Washington, 20530-0001. Defendant HUD agency the United States Govenunent and headquartered 451 7h St., S.W., Washington, D.C. 20410. Defendants HUD and DOJ have possession, custody, and control records which Plaintiff seeks access. 

STATEMENT FACTS May 17, 201 Plaintiff submitted FOIA request Defendant DOJ and separate FOIA request Defendant HUD, facsimile and certified mail, seeking access certain public records which had been mentioned the previous day the online Huffington Post. Plaintiff explained both these records requests that :42 p.m. May 16, 2011, Shahien Nasiripour The Huffington Post published online news article asserting that fom federal officials had briefed him set audits accusing "the nation's five largest mortgage companies defrauding taxpayers their handling foreclosures homes purchased with government backed loans." Plaintiff also stated its letters both Defendants DOJ and HUD that "in the next last paragraph the May article, Nasiripour further referred term sheet that federal officials 
had disclosed him the week before." Plaintiff then requested the following documents from 
Defendant DOJ and from Defendant HUD: 
The set audits accusing "the nation's five largest mortgage 
companies defrauding taxpayers their handling foreclosures homes purchased with government-backed loans"; and, The term sheet outlining for "the creation federal account funded the nation's largest mortgage films help distre.sse' Id. The projected date dispatch shall not add more than ten (10) days requester's wait. Id. And, even where ten (10) extra days would not suffice, exceptional circwnstances must shown and fulfillment still concluded "with all practicable speed." practicable speed, for U.S.C.  552 (a)(6)(B)(iii)(III). All purposes FOIA, means delayjng "only the extent reasonably necessary the proper processing the particular requests.5 U.S.C.  552 (a)(6)(B)(iii). 
Justice never cited one the three statutory circumstances for delay its June 
letter,13 nor did set forth specifics establishing anything other than ordinary 
circwnstances vis-a-vis its processing request 2376216. Instead, rather boilerplate, 
business-as-usual fashion, the agency simply declared fiat that would not comply 
with ordinary time limits nor with any possible extensions available under the statute. 
fact, proffering only that additional offices would need searched, Justice provided estimated date dispatch and -as evidenced its four-month delay issuing 
detetmination -The agency's extraordinary 

did not act "with all practicable speed." delay denying Judfoial Watch's nan-owly-tailored request again implicates the informal adjudication provision the APA. The relevant portion that statute states: "Except 
affirming prior denial when the denial self-explanatory, the [prompt] notice shall 
 555 (e). fair, while Justice violated FOIA and the APA through its dilatory conduct and, 
ultimately, nondisclosure responsive records, the agency's September denial letter 
did provide grounds for withholding even those grounds are not cognizable law, accompanied brief staLement the grounds for denial." U.S.C. 
Plain meaning statutory language trumps any other interpretation FOIA' scope. otherwise 
would limit rather than expand the disclosure provisions fonnerly confined Section the APA. Milner Depanment the Navy, 131 Ct. l259 (March 2011). See note supra. 

Justice 
Sept. 27, 2011 
will further elucidated the next section. qualify agency records subject FOIA, requested materials must: (1) have been created obtained the agency which the FOIA request directed, and (2) remain the control that agency the time the request placed. U.S. Department .Justice Tax Analysts, 492 U.S. 136, 144A5 (1989). Control means "that the materials have come into the agency's possession the legitimate conduct its official duties." Id. the instant case, Judicial Watch requested Justice set audits and term sheet shown several federal officials Huffington Post reporter preparation two 
news articles. Based the content those stories, well the substance Justice1s 
denial letter, fair conclude that Housing and Urban Development staffers developed the audits and term sheet issue here. also can deduced that Justice came into possession the audits and term sheet the conduct its official duties and prior Judicial Watch's May FOIA request. Hence, Justice was duty-bound process and disclose directly Judicial Watch the 346 pages Justice's search its own records uncovered response request 2376216. 
Once clear that the materials requested are subject FOIA, and that the agency 
which the request was directed either obtained created those materials the course 
its official duties, all that remains (for the agency resisting disclosure records its 
possession upon receipt relevant FOIA request) establish that has not improperly 
withheld documents responsive that request. US. Department Justice Reporters 
Committee for Freedom the Press, 489 U.S. 749 1989). its September letter, 
Justice st1ggests that HUD's originat[ion]" responsive documents Justice's 
possession entitled Justice refer Judicial Watch's FOIA request HUD for further 
processing. This argument unavailing today was when Justice presented 
the U.S. Supreme Court 1989: 
[Reading a]n authorship-control requirement [into agency's obligation disclose documents its possession upon receipt request] would 
sharply limit "agency records" essentially documents generated the 
agencies themselves. This result incompatible with the FOIA's goal 
giving the public access all nonexempted information received 
agency carries out its ma.11date. 
Tax Analysts, 492 U.S. 147 (emphasis added). 

Justice 
Sept. 27, 2011 
Hence, regardless which agency authored records responsive Judicial Watch's FOIA request Justice, Justice can only discharge the duty triggered Justice request 2376216 under the tenns FOIA disclosing responsive documents Justice's possession directly Judicial Watch. Indeed, interagency consultation for 
proper processing a-FOI-.A-was-an unusual --albeit, likely eventuality contemplated 
 Congress and provided for the statute. U.S.C.  552 (a)(6)(B)(iii)(III). However, the relief given agency facing such circumstances 10-day extension fulfilling the request, not permanent abdication its disclosure obligations. pennit otherwise would invite shell-game that FOIA's chief purpose avert.14 accountability mean anything democratic republic, that public servants let their employer the U.S. taxpayer -know what they're anytime the boss wants progress report.15 
IV. 
for Relief 
Consequently, i.n light the facts that: 
Judicial Watch presented Justice such narrowly-tailored and specific request, seeking only two documents already made public through one news outlet, which touch topic the utmost public concern 
and 
Justice was entitled delay but not deny via referral -disclosure
responsive records j(s possession the time Judicial Watch's request, given that authorship not dispositive recognizing discharging FOIA duty 
then Judicial Watch hereby respectfully requests that Justice decide this administrative 
appeal favorably the requester and cause the relevant division produce, with all 
practicable speed, the 346 pages responsive records Justice's search apparently See. e.g .Judicial Watch FDA, 449 F.3d 141, 152 (D.C. Cir. 2006)(it "the strong policy ofthe POfA 
that the public entitled know what its government doing and wl1y"). This not suggest that there should routine protocols for lodging such requests. This say only that, the extent requester has followed all reasonable protocols for making her requests known, the 

request should fulfilled accordance with the letter and spirit the statutes that govern the transaction. 
Justice 
Sept. 27, 2011 
unearthed. you not understand this appeal any portion thereof, please contact FOlA Program Manager John Allhcn immediately (202) 646-5172 Jalthen@judicinlwatcb.org. Judicial Watch anticipates receiving the requested documents 
16and waiver both search and duplicatio.n costs within twenty (20) business days.
Sincerely, 

Lisette Garcia, J,D. Senior Investigator U.S.C.  552 (a)(4)(A)(viii) provides that: agency shall not assess search fees (or-in the case requester described [as representative the nws media"], duplication fees) under 1his subparagraph the Agency tails comply with any lime limit under paragraph (6), unusual exceptional circumsnces (as those terms are dcfinc 2011 

Judicial Watch het'eby 
respectfully requests that the Inspector General's Office decide this administrative appeal favorably the requester and cause the relevant division. HUD produce the two items requested with all practicable speed. you not understand this appeal any portion thereof, please contact FOIA Program Manager .Tolm Althen immediately (202) 646-5172 jalthen@judicinlwatch.org. Judicial Watch anticipates receh1ing the requested documents 
19and waiver both search and duplication costs within twenty (20) business days.Thank you for your cooperation. 

Lisette Garcia, .D. 
Senior Investigator U.S.C.  552 (a)(6)(A)(viii) provides relevant pert that: agency shall not assess search fees (or lhe case ofa requesterdescribed under clause (ii)(ll), 
duplication fees) under this subparagraph iflhe gency fails comply wilh ony time limit under 
parograph (6) 

Judicial 
Vatcli 

Br-ari$e one above the law! 
May 17, 2011 619-8365 

Shaun Donovan, Secretary 
U.S. Dept Housing Urban Development Freedom oflnfo1mation Act Office 451 7th Street> SW, Room 10139 Washington, 20410-3000 Facsimile: (202) 6198365 

Dear Mr. Shaun Donovan: 4:42 p.m. May 16, 2011, Shahien Nasiripour The Huffington Post published online news article asserting that four federal officials had briefed him set audits accusing nation's five largest mortgage companies defrauding tax.payers their handling foreclosures homes purchased with government-backed loans.' the next last paragraph the May article, Nasiripour further referred tenn sheet that federal officials had disclosed him the week before. 
That term sheet was the subject separate news article published :26 p.m. May 11, 2011. that Huffington Post article, Nasiripour explained that the tenn sheet outlined plan for "the creation federal account funded the nation's largest mo1tgage firms help distressed bonowers avoid foreclosure and settle ongoing probes into faulty mortgage practices.' 
Despite the purportedly confidential nature these records, federal cow1s agree 
that selective disclosure matters the public interest violates the letter and spirit the 
Freedom Information Act (FOIA), .S.C.  552, seq. See Caton Norton> 2005 
DNH 155 (D.N.H. 2005)(4'when the records question have already been disclosed, 
agency cannot credibly claim that releasing them response FOIA request w:ill 
impede the proper functioning the administrative process inhibit the free and frank 
exchange opinions among government personnel, because the agency bas already 
indicated diminished expectation privacy concemir1.g these documents through its 
prior voluntary disolosure'1)(internal citations and quotation marks omitted); Peck 
United States> 514 Supp. 210, 212 (S.D.N.Y. 1981)(voluntarydisclosure the 
privileged communications may waive the privilege); North Dakota rel. Olson 
Andrus> 581 :F.2d 177. 182 (8th Cir. N.D. i978)("Preferentiai treatment persons 
interest groups fosters precisely the distrust government that the FOIA was intended 
425 Third St., SW, Suite 800, Washington, 20024 Tel: (202) 646-5172 l-888-593-8442 FAX: (202) 646-5199  Email: info@JudicialWatch.org www.JudicialWatch.org
 
HUD 
May 17, 2011 
obviate.") 

Accordingly, pursuant FOIA, Judicial Watch. Inc., (Judicial Watch) hereby 
requests that the U.S. Department the Housing Urb1:111 Development (HUD) produce 
within twenty (20) business days: The set audits accusing "the nation's five largest mortgage 
companies defrauding taxpayers their handling foreclosures homes purchased with government-backed loans" and, The tc1m sheet outlining for "the creation federal account funded the nation's largest mortgage firms help distressed borrowers avoid foreclosure and settle ongoing 
probes into faulty mortgage practices." placing this request, Judicial Watch directs the HUD's attention President 
Obama's January 21, 2009 Memorandum concerning FOIA which states: 
All agencies should adopt presumption favor disclosure order renew their cornnritment the principles embodied FOIA ... The presumption disclosure shm1ld applied all decisions involving FOIA.1 
The memorandum goes state that FOIA "should administered with 
clear presumption: the case doubt, operu1ess prevails." Nevertheless, any 
responsive record portion thereof claimed exempt from production under 

POIA, please provjde suflicient 
identifying info1mation with respect each allegedly 

exempt record portion thereof allow assess the propriety the claimed exemption. Vaughn Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974). addition, any reasonably segregable portion responsive record must provided, after redaction any allegedly exempt material. U.S.C.  552(h). 
Judicial Watch also hereby requests waiver both search and duplication fees 
pursuant U.S.C.  552(a)(4)(A)(ii)(II) and 552(a)(4)(A)(iii). Judicial Watch entitled waiver search fees under U.S.C.  552(a)(4)(A)(ii)(II) because member thy news media. See National Security Archive Department Defense, 
880 F.2d 1381, 1387 (D.C. Cir. 1989). Judicial Watch has also been recognized 
member the news medja other FOIA litigation. See Judicial Watch, Inc. US. Department Justice, 133 Supp.2d (D.D.C. 2000); and, Judicial Watc:h, Inc. Department Defense, 2006 U.S. rnst. LEXIS 44003, (D.D.C. June 28, 2006). Judicial Watch regularly obtains information about the operations and activities 
HUD 
May 17, 2011 

government through FOIA and other means, uses its editorial skills turn this 
information into distinct works, and publishes and disseminates these works the public. intends likewise with the records receives response this request. 
Judicial Watch also entitled complete waiver both search fees and 
duplication rees pursuant U.S.C.  552(a)(4)(A)(iii). Under this provision, records: 
shall furnished without any charge charge 
reduced below the fees established under clause (ii) 
disclosure the information the public interest 
because likely contribute significantly public 
understanding the operations actlv.ities government 
and not primarily the conunercial interest tbe 
requester. 
U.S.C.  552(a)(4)(A)(iii). addition, records are not produced within twenty (20) 
business days, .Judicial 

watch entitled complete waiver search and duplication fees under Section 6(b) the OPEN Government Act of2007, which amended FOIA U.S.C.  
552(a)( 4)(A)(viii). 

Judicial Watch 50l(c)(3), 
not-forprofit, educational organization, and, 

definition, has commercial purpose. Judicial Watch exists educate the public 
about the operations and activities government, well increase public 
understanding about the importance ethics and the rule law government. The 
particular records requested herein are sought prut Judicial Watch's ongoing efforts docwnent the operations and activities the federal government and educate the 
public about these operations and activities. Once Jud.icial Watch obtains the requested 
records, intends analyze them and disseminate the results its analysis, well 
the records themselves, special wriHen report. Judicial Watch will also educa1e the 
public via radio programs, Judicial Watch's website, and/or newsletter, among other 
outlets. also will make the records available other members the media 
researchers upon request. Judicial Watch has proven ability disseminate information 
obtained through FOIA the public, demonstrated its long-standing and 
continuing public outreach efforts. 

Given these circumstances, Judicial Watch entitled public interest fee waiver botl1 search costs and duplication costs. Nonetheless, the event our request for wajver search and/or duplication costs denied, Judicial Watch willing pay $350.00 search and/or duplication costs. Judicial Watch requests that contacted before any such costs are incurred, order prioritize search and duplication efforts. effort facilitate record product.ion within the statutory time limit, Judicial Watch willing accept documents electronic format (e.g. e.mail, .pdfs). When necessary, Judicial Watch will also accept the "rolling production" documents. 
HUD 
MRy 17, 1011 

Ifyou not Understand this request atty portiop Uterpf, you feel you iecilire cladUoatlon,.please il)lrrtedlately contact Jqdlial Watch FOlA Manager John Aithen 20-2-64.6 51'72 orj,atthn@Judiclaiw.$1..rg. Judicial Watch looks forwar.d receMna the ated docnundrt and waiver both IKUWrli and duplicationcos.ts: wlfhin. twenty (2-0') busineu dap. Thank you fQ).l your e()OJ'K'mitt. 

Senior hwesttgatot 
Pagc4of4 

Obama Administration Pushing For Homeowner Fund While State ... Page of7 

Obama Administration Pushing For Homeowner Fund While State Officials Try Levy Fines Ongoing Mortgage Probes 
FlmPosted: 05/11/11 08:26 UJ)datod: 05/11/11 0!52 B'r 
Roaot 
WASHINGTON The Obnmo ndminlstrotlon rushing fbr the fedcml nccount lJncll:d the nntion largest mortangc 
finns help distressed borrowers ovoid forlosurc settle ongoing 
Into faulty mo11i;osc proctlccs, according cunfidentiul lcnn 
reviewed The Buffington Post. 
1111: tmd one ofthree proposed coalition state attorneys 
cnl!ml a.nd administration officials, which were dlscused Tue.'ldny with 
prcc11t111lws ofChc n111io11's flvu lorgcsl mortgngc flnns. KecanJ 

eamnccount would fonded civil pcnullies nnd fines Olld used $lnlcs t8 they 8eO fit. The third w-011ld dcsfgnutctl fur lmmcawncrs directly hnnncd bnnk nbuscs, like illcgol home seizus and wrongful foreolosuroa. 

While state officlala arc pushingfot actual mcmotery damages. administration offir.:ials ere!ooldn1 
omtthing completely dHll:renL: "Reiher Lhan have banks sltell oot cash settle claims admitting Wn)tlgdoing, the administration wants cteate spding terIB fot eeoh finn's etToiu be.Ip troubll:d homeowners. And for ovcry dollar the finns spend, the.Iraccounts would credited. 
The probo ere foc1md improper homo repone11slons 1ind ftawcd  wid sometimes Ulcgal  forcelosuro practiS,CO" G-.NM1"1'4N Scr.f(o. 8tr{SMf> F'1f1'1.HbNl tilh P'4b SFNllf C1J;,rf'1.1; I.' HI:; Sf:L'TIO/IJ Jnd  Complete tt.ne and Also oomplete Item 9leb1oted deelred.  Print your name end mdrlea the rVGr"a$ 1hat oan return 1he oard you.  Att.aoh thla card the back the mallpleae. the front epaoe petmlta. U.S. Department Housing and Urban Development Freedom Information Act Office 451 7th Street, SW, Room 10139 Washington, 20410-3000'' Jl3y 23, 2011. 1:2. 9!" 01:11;11!., C1.i:o:lltr1 G1lt'l. Pnitltll'l'nwy 2004 *ii USPS.C."'CJM' 

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