                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA


                                                 )
MICHAEL FRANCIS, et al.,                         )
                                                 )
                Plaintiffs,                      )
                                                 )
        v.                                       )       Civil Action No. 14-cv-1628 (KBJ)
                                                 )
FEDERAL HOUSING FINANCE                          )
AGENCY,                                          )
                                                 )
                Defendant.                       )
                                                 )


                                   MEMORANDUM OPINION

         The Federal Housing Finance Agency (“FHFA”) is an independent agency within

the U.S. government that oversees the Federal National Mortgage Association (“Fannie

Mae”), the Federal Home Loan Mortgage Corporation (also known as Freddie Mac), the

Federal Home Loan Banks, and other components of the secondary mortgage market. 1

In 2014, plaintiffs Michael and Carmen Francis (“Plaintiffs”) submitted to FHFA a

request under the Freedom of Information Act, 5 U.S.C. § 552 (“FOIA”), seeking

documents regarding the mortgage on their residential property located at 4904 Winston

Drive, Indianapolis, IN. In particular, Plaintiffs sought documents that would show if

Fannie Mae—which has been under FHFA conservatorship since 2008—had assigned

Plaintiffs’ mortgage and the associated note to another entity. (Compl., ECF No. 1,

¶ 5.) In its response to the FOIA request, FHFA indicated that the agency was unable to

locate any responsive records. (Compl. ¶¶ 8–9.) Plaintiffs filed the instant lawsuit on



1
    See http://www.fhfa.gov/SupervisionRegulation (last visited Sept. 30, 2015).
September 29, 2014, claiming that FHFA is wrongfully withholding agency records in

violation of the FOIA, and requesting an order compelling FHFA to search for, and

produce, all non-exempt, responsive records, and to provide Plaintiffs with a Vaughn

index of records that FHFA claims are subject to FOIA exemptions. (See id. at 5.)

         Before this Court at present is FHFA’s Motion for Summary Judgment (ECF No.

6 at 1–2). 2 The agency argues that it conducted an adequate search for records in

response to Plaintiffs’ FOIA request (see Mem. in Supp. of Def.’s Mot. for Summ. J.,

ECF No. 6 at 4–11 (“Def.’s Br.”), at 4), and with respect to the responsive documents in

Fannie Mae’s possession, FHFA argues that it does not control Fannie Mae’s records

and, therefore, cannot be faulted for not searching those records and producing that

entity’s documents. (Id. at 9.) In response, Plaintiffs maintain that FHFA’s search was

inadequate because Plaintiffs have located documents on Fannie Mae’s website and

have received documents from Fannie Mae that they deem responsive to their FOIA

request. (Pls.’ Mem. in Opp’n to Def.’s Mot. for Summ. J., ECF No. 10 (“Pls.’ Br.”), at

6–7.)

         Upon consideration of the parties’ submissions, the relevant authorities, and the

record as a whole, this Court concludes that FHFA conducted an adequate search that

satisfies the agency’s FOIA obligations. Consequently, Defendant’s motion for

summary judgment must be GRANTED. A separate order consistent with this

memorandum opinion will follow.




2
    Page numbers herein refer to those the Court’s Electronic Filing System automatically assigns.


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I.     FACTUAL BACKGROUND

       FHFA was established as an independent agency of the federal government on

July 30, 2008. (Decl. of Frank R. Wright, ECF No. 6-2 (“Wright Decl.”), ¶ 5.) FHFA

ensures that the entities it regulates, including Fannie Mae, “operate in a financially

safe and sound manner; remain adequately capitalized; and comply with their respective

authorizing statutes, as well as all rules, regulations, guidelines and orders issued under

law.” (Id. ¶ 6 (citing 12 U.S.C. § 4513(a).) Despite its role in overseeing the mortgage

industry, FHFA has represented that it “does not, in the ordinary course of business,

maintain any documents relating to individual mortgage loans.” (Id. ¶ 9.)

       FHFA is authorized to act as a conservator for, and to oversee, certain regulated

entities, and when it operates in such a capacity, FHFA can take actions “(i) necessary

to put the regulated entity in a sound and solvent condition; and (ii) appropriate to carry

on the business of the regulated entity and preserve and conserve the assets and

property of the regulated entity.” 12 U.S.C. § 4617(b)(2)(D). FHFA placed Fannie

Mae into conservatorship in 2008; however, Fannie Mae has continued its normal

business operations since that time. (Wright Decl., ¶ 7.) Consequently, FHFA has not

“incorporated [Fannie Mae’s records] into any of [FHFA’s] systems of records” and

“does not consider the records of Fannie Mae . . . to be agency records for the purposes

of FOIA[.]” (Id. ¶ 10.) Thus, FHFA asserts that it “does not have the capability to

conduct a search of [Fannie Mae’s] records for responsive documents[.]” (Id.)

       On August 1, 2014, Plaintiffs submitted a FOIA request to FHFA seeking “all

documents containing information regarding property in interest located at 4904

Winston Drive, Indianapolis, Indiana and acquired by Accubanc on October 26,

1994[,]” including “[t]he name, loan number and all mortgage pool numbers, trust, and


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other pertinent information in Fannie Mae’s possession including the legal entity name

of unknown investors from November 1, 1994 to October 2, 2002.” (Compl. ¶ 5.) On

August 7, 2014, FHFA responded to the FOIA request, informing Plaintiffs that its

search of agency files had not unearthed any responsive documents. (Id. ¶ 8.) The

agency also advised Plaintiffs “that FHFA’s temporary role as conservator of [Fannie

Mae] does not transform [Fannie Mae’s] company records into ‘agency records’ subject

to FOIA.” (Id.) Plaintiffs appealed this determination, and asked that the agency

answer the following question: “Did Fannie Mae assign the original note and mortgage

of Francis’ primary residence (subject to sell and proceeds going to the secure creditor

Chase) to EMC Mortgage Corporation/JP Morgan Chase Bank on or about September

13, 2013?” (Id. ¶ 9.) FHFA responded that while Plaintiffs’ appeal was “irregular,” the

agency had addressed it, and the search of its own records did not reveal any responsive

documents. (Id.)

       Plaintiffs filed the instant action in federal court on September 29, 2014.

Plaintiffs’ complaint alleges that FHFA has violated the FOIA by failing to produce

records that are responsive to their FOIA request, and Plaintiffs ask this Court to order

FHFA to search for, and produce, all non-exempt, responsive records and, if necessary,

to provide Plaintiffs with a Vaughn index of any records that FHFA might withhold as

subject to FOIA exemptions. FHFA filed a motion for summary judgment on November

5, 2014, arguing that it is entitled to judgment as a matter of law because “FHFA

diligently searched for records responsive to plaintiffs’ request and informed the

plaintiffs that they had found no responsive records.” (Def.’s Br. at 4) In their brief in

opposition to FHFA’s motion, which was filed on January 9, 2015, Plaintiffs argue that




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FHFA’s search for records was inadequate because they themselves located responsive

documents on Fannie Mae’s website, and that they learned through calls to Fannie Mae

and Fannie Mae’s Resource Center of other responsive documents that are in Fannie

Mae’s possession. (Id. at 6–7.) 3

       Defendant’s motion is now fully briefed and ripe for this Court’s review.


II.    LEGAL STANDARD FOR SUMMARY JUDGMENT UNDER RULE 56

       As a general matter, summary judgment under Rule 56 of the Federal Rule of

Civil Procedure is appropriate if there is “no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “Only

disputes over facts that might affect the outcome of the suit under the governing law

will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248-49 (1986). The “party seeking summary judgment always bears

the initial responsibility of [stating] . . . the basis for its motion, and identifying those

portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any,’ which it believes demonstrate the absence of a

genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)

(quoting Fed. R. Civ. P. 56). The nonmoving party must then go beyond the pleadings,

and with “affidavits, or by the depositions, answers to interrogatories, and admissions

on file, designate specific facts showing that there is a genuine issue for trial.” Id. at

324 (internal quotation marks omitted).



3
  FHFA filed a reply to Plaintiffs’ opposition in which it asserted that Plaintiffs are confused about
FHFA’s access to and control over Fannie Mae records as a result of the conservatorship, and that “the
records of regulated companies are not incorporated into FHFA’s system of records [and that] FHFA
does not have the capability to conduct a search of the conserved records for responsive records.”
(Def.’s Reply to Pls.’ Opp’n to Def.’s Mot. for Summ. J., ECF No. 11, at 2.)


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      An agency seeking summary judgment in a case challenging its response to a

request for records under FOIA must show that it conducted a search of agency

documents that was “reasonably calculated to uncover all relevant documents, and, if

challenged, must demonstrate beyond material doubt that the search was reasonable.”

Truitt v. Dep’t of State, 897 F.2d 540, 542 (D.C. Cir. 1990) (internal quotation marks

omitted). “The agency must establish through affidavits or declarations the adequacy of

both its search methods (where and how it looked for responsive records) and the scope

of its search (what it was looking for).” Looney v. Walters-Tucker, 98 F. Supp. 2d 1, 3

(D.D.C. 2000). Moreover, the agency’s affidavits must be “relatively detailed and non-

conclusory[.]” Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)

(internal quotation marks and citation omitted). And although the agency declarants

need not “set forth with meticulous documentation the details of an epic search for the

requested records,” they must show “that the search method was reasonably calculated

to uncover all relevant documents.” Looney, 98 F. Supp. 2d at 3 (internal quotation

marks and citation omitted).

      Notably, “[a]gency affidavits are accorded a presumption of good faith, which

cannot be rebutted by ‘purely speculative claims about the existence and discoverability

of other documents.’” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir.

1991) (quoting Ground Saucer Watch, 692 F.2d at 771). Furthermore, in analyzing the

reasonableness of an agency’s search, “[t]he issue is not whether any further documents

might conceivably exist but rather whether the government’s search for responsive

documents was adequate.” Truitt, 897 F.2d at 542 (internal quotation marks, emphasis,

and citation omitted).




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       Significantly for present purposes, only “agency records” are subject to

disclosure under the FOIA, and to qualify as an agency record, “the agency must ‘either

create or obtain’ the requested materials” and “the agency must be in control of [them]

at the time the FOIA request is made.” U.S. Dep’t of Justice v. Tax Analysts, 492 U.S.

136, 144–45 (1989) (quoting Forsham v. Harris, 445 U.S. 169, 182 (1980)). A record

is in an agency’s “control” only if it came “into the agency’s possession in the

legitimate conduct of its official duties.” Id. at 145.


III.   DISCUSSION

       FHFA asks the Court to grant summary judgment in its favor because its search

for responsive records was reasonable and adequate as a matter of law, and thus, no

genuine issues of material fact remain in this case. As explained above, in a FOIA

case, “the issue to be resolved is not whether there might exist any other documents

possibly responsive to the request, but rather whether the search for those documents

was adequate.” Weisberg v. DOJ, 745 F.2d 1476, 1485 (D.C. Cir. 1984) (emphasis in

original). “FOIA requires government agencies to describe their searches in enough

detail for a court to determine whether the search was sufficiently exhaustive to satisfy

the Act.” Sennett v. DOJ, 962 F. Supp. 2d 270, 277 (D.D.C. 2013) (citations omitted);

see also Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 91 (D.D.C.

2009) (“To meet its burden, the agency may submit affidavits or declarations that

explain in reasonable detail the scope and method of the agency’s search.”).

       Here, FHFA has included with its motion for summary judgment a detailed

declaration from Frank R. Wright, Senior Counsel in the Office of General Counsel of

the FHFA, in which he explains the relationship between the FHFA and entities under



                                              7
its conservatorship, as well as the steps that FHFA took to conduct the search for

records responsive to Plaintiffs’ FOIA request. (See Wright Decl.) As the following

description makes clear, the Wright declaration is sufficient to eliminate any material

questions of fact regarding the scope or adequacy of the search at issue in this case.

       Wright explains that, upon receipt of Plaintiffs’ FOIA request, a FOIA officer

within the FHFA “searched the agency’s Information Management System (‘IMS’) for

files relating to the requestors and their loan” but that officer did not locate any

responsive documents. (Id. ¶ 9.) Wright further avers that, in response to Plaintiffs’

administrative appeal, the agency contacted one of the electronic discovery vendors that

FHFA relies upon to maintain the electronic files the agency has collected in litigation

unrelated to this case and requested that the vendor conduct a search for any responsive

documents that might have been stored among the agency’s electronic files. (Id. ¶ 13.)

The vendor searched using Plaintiffs’ names, the property address, the loan number, and

the mortgage pool information, but did not locate any responsive information. (Id.) In

this Court’s view, Wright’s declaration—which is presumed to have been submitted in

good faith and is entitled to great weight, see SafeCard Servs., 926 F.2d at 1200—is

sufficient to carry FHFA’s burden of showing that it conducted “a search reasonably

calculated to uncover all relevant documents[.]” Truitt, 897 F.2d at 542 (internal

quotation marks and citation omitted).

       In challenging the adequacy of the searches, Plaintiffs fault FHFA for not

searching Fannie Mae’s records—presumably based on Plaintiffs’ contention that

records in Fannie Mae’s control and possession qualify as FHFA records as a result of

FHFA’s conservatorship over Fannie Mae. (See, e.g., Pls.’ Br. at 7 (“It is clear that an




                                             8
agency in possession of responsive records originating with another agency cannot

refuse to process those records merely by advising the requester to seek them directly

from the other agency.”); id. at 8 (“Mr. Wright fails to mention or search Fannie Mae’s

own website ‘Pool Talk’ where responsive request (sic) were available in

abundance[.]”).) Unfortunately for Plaintiffs, the D.C. Circuit rejected this very

argument in Judicial Watch, Inc. v. FHFA, 646 F.3d 924 (D.C. Cir. 2011).

       The plaintiff in Judicial Watch had submitted a FOIA request to FHFA seeking

campaign contribution records of two entities under FHFA conservatorship, including

Fannie Mae. In finding that the district court properly held that the requested

documents were not agency records that the FHFA was required to produce under the

FOIA, the Circuit explained that the FOIA only extends to records that an agency

“controls at the time of the request,” id. at 926 (citing Tax Analysts, 492 U.S. at 144–

45), meaning that “the materials have come into the agency’s possession in the

legitimate conduct of its official duties.” Id. (internal quotation marks and citation

omitted). The Circuit emphasized that the requisite level of control over a document is

determined by consideration of a four-factor test:

       (1) the intent of the document’s creator to retain or relinquish control
       over the records; (2) the ability of the agency to use and dispose of the
       record as it sees fit; (3) the extent to which agency personnel have read
       or relied upon the document; and (4) the degree to which the document
       was integrated into the agency’s record system or files.

Id. at 926–27 (quoting Burka v. U.S. Dep’t of Health & Human Servs., 87 F.3d 508, 515

(D.C. Cir. 1996)). The Circuit found in Judicial Watch that there was no question that

the entities had intended to relinquish control over the documents at issue in that case

when they agreed to the conservatorship, id. at 927, or that FHFA had the ability to use




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or dispose of the records, id. However, the Circuit found that the third factor was

“fatal” to the plaintiff’s claim because it was “uncontested that the FHFA has not used

the requested records in any way[,]” which also necessarily meant that plaintiff had

failed to satisfy the fourth factor. Id. at 927–28.

       The facts of the instant case compel the same conclusion: there is no genuine

dispute regarding whether FHFA personnel have ever read or relied on Fannie Mae’s

documents, nor have Fannie Mae’s records been integrated into FHFA’s files, as the

sworn testimony of an FHFA official establishes. (Wright Decl. ¶ 9–10, 13.)


IV.    CONCLUSION

       Under well-established law, Fannie Mae’s records are not records of FHFA for

FOIA purposes, and therefore FHFA was not obligated to search those records for the

documents that Plaintiffs requested. See Judicial Watch, 646 F.3d at 926–28.

Moreover, this Court finds that FHFA has established that it conducted a reasonable and

adequate search of its own files for responsive records. Consequently, as set forth in

the accompanying Order, this Court will GRANT Defendant’s motion for summary

judgment and will enter judgment in Defendant’s favor.


DATE: September 30, 2015                   Ketanji Brown Jackson
                                           KETANJI BROWN JACKSON
                                           United States District Judge




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