                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
________________________________
                                 )
ROBERT E. FALKENSTEIN, JR.,      )
                                 )
               Plaintiff,        )
                                )
          v.                     ) Case No. 12-2000(EGS)
                                 )
                                 )
UNITED STATES DEPARTMENT OF      )
HOUSING AND URBAN DEVELOPMENT, )
                                 )
               Defendant.        )
________________________________)

                                                               MEMORANDUM OPINION

              Plaintiff Robert E. Falkenstein, proceeding pro se, filed

this Freedom of Information Act (“FOIA”) case against defendant

U.S. Department of Housing and Urban Development (“HUD”).

Pending before the Court is defendant’s motion for summary

judgment, filed on April 12, 2013.                                          On May 8, 2013 the Court

ordered Plaintiff to respond to Defendant’s Motion by no later

than June 10, 2013, and warned plaintiff that his failure to

respond by the deadline could result in dismissal of his case.

Plaintiff never responded to the motion.                                            Upon consideration of

the parties’ pleadings, the relevant law, and the entire record

herein, the motion is GRANTED.1


                                                            
1
  Plaintiff has conceded the motion by failing to oppose it;
however, the 2010 amendments to Federal Rules of Civil Procedure
direct that courts “should state on the record the reasons for
granting or denying [the summary judgment] motion.” Fed. R.
Civ. P. 56(a); see also Grimes v. Dist. of Columbia, 464 Fed.
              I.             BACKGROUND

              Unless otherwise noted, the following facts are taken from

the Complaint and from Defendant’s Statement of Undisputed

Material Facts, which is supported by citations to the

Declaration of Deborah R. Snowden, Chief of the FOIA Branch at

HUD, as well as the accompanying Vaughn index and exhibits.                                                                                                                       By

failing to respond to the motion for summary judgment, plaintiff

has failed to demonstrate the presence of disputed facts, or to

otherwise address the defendant’s assertion of facts as required

by Federal Rule of Civil Procedure 56(c).                                                                                    Accordingly, the

Court accepts the defendant’s assertion of facts as undisputed

for the purposes of the motion, pursuant to Federal Rule of

Civil Procedure 56(e)(2).                                                     See also Fed. R. Civ. P 56(e)

advisory committee notes (2010 Amendment) (noting that Rule

56(e)(2) “authorizes the court to consider a fact undisputed for

purposes of the motion when response or reply requirements are

not satisfied.”)

              This case involves three FOIA requests made by Plaintiff.

First, on October 20, 2011, HUD received a FOIA request from

Plaintiff for records relating to a 2011 performance review

report regarding the National Council of LaRaza (“NCLR”), and/or
                                                                                                                                                                                               
                                                                                                                                                                                               
Appx. 3 (D.C. Cir. Mar. 2, 2012). This Circuit has not directly
addressed the District Courts’ obligations under the amended
Rule where, as here, the motion is completely unopposed, see
Grimes, 464 Fed. Appx. 3; nevertheless, the reasons for granting
the motion are set forth here.
                                                                                             2
 
its affiliate Centro De Apoyo Familiar (“CAF”).   Specifically,

plaintiff sought NCLR’s and CAF’s written response to the

performance review and any subsequent communication between HUD,

NCLR and CAF regarding the performance review.    On July 12,

2012, HUD provided plaintiff with 53 pages of responsive

documents, some of which was redacted under Exemptions (b)(4)

and (b)(6).   Plaintiff appealed, asserting the agency’s response

was incomplete in one respect: because it did not provide HUD’s

response to correspondence from NCLR dated December 9, 2011.

HUD processed the appeal and agreed with plaintiff; on September

28, 2012, it sent the requested letter to plaintiff in full.

Upon being served with the Complaint in this case, HUD learned

that plaintiff had not received the letter; accordingly, on

January 15, 2013, HUD, via the Department of Justice, provided

the letter to plaintiff.

     Plaintiff’s second request was also received by HUD on

October 20, 2011.   Plaintiff requested HUD’s last two

intermediary performance reviews of NCLR, including information

regarding NCLR’s quality control plans used to monitor the

performance of NCLR’s sub-grantees.   Although Plaintiff and

various personnel within HUD corresponded regarding the FOIA

request, HUD did not provide documents to plaintiff until he

filed this lawsuit.   Plaintiff’s request was ultimately routed

to HUD’s Office of Housing.   The FOIA specialist in that office

                                 3
 
identified the Office of Housing Counseling Division as the

appropriate office to respond to plaintiff’s request.      The

Director and Deputy Director of that division conducted a search

of division files.   Subsequently, on February 4, 2013, HUD

provided all responsive documents to the second request, with

some redactions under Exemptions b(4) and b(6).

     On September 26, 2013, plaintiff filed his third FOIA

request, seeking all documentation and/or communication

regarding the delay in processing his second request.      Plaintiff

filed this request via HUD’s website, but it was not received by

HUD and therefore not assigned a control number.      HUD was not

aware of plaintiff’s third request until this case was filed.

Upon learning of the request, HUD’s Office of the Executive

Secretariat performed a search of FOIA Express, the software

system used to track FOIA requests, as well as a search of the

email of Deirdra Jenkins, the FOIA processor who processed

plaintiff’s second FOIA request.       On March 4, 2013, the

government provided plaintiff with a report from FOIA Express

and eleven emails.   No redactions were made.

     II.   STANDARD OF REVIEW

     Pursuant to Federal Rule of Civil Procedure 56, summary

judgment should be granted if the moving party has shown that

there are no genuine issues of material fact and that the moving

party is entitled to judgment as a matter of law.       See Fed. R.

                                   4
 
Civ. P. 56.   In a FOIA case, the burden of proof is always on

the agency to demonstrate that it has fully discharged its

obligations under the FOIA.     See Dep’t of Justice v. Tax

Analysts, 492 U.S. 136, 142 n.3 (1989).

     An agency from which information has been requested must

undertake a search that is “reasonably calculated to uncover all

relevant documents.”     Weisberg v. Dep’t of Justice, 705 F.2d

1344, 1351 (D.C. Cir. 1983).    “[T]he adequacy of a FOIA search

is generally determined not by the fruits of the search, but by

the appropriateness of the methods used to carry out the

search.” Iturralde v. Comptroller of the Currency, 315 F.3d 311,

315 (D.C. Cir. 2003).    The Court applies a “reasonableness test

to determine the adequacy of search methodology.”     Campbell v.

Dep’t of Justice, 163 F.3d 20, 27 (D.C. Cir. 1998).    The agency

must demonstrate that it “made a good faith effort to conduct a

search for the requested records, using methods which can be

reasonably expected to produce the information requested.”

Fischer v. Dep’t of Justice, 596 F. Supp. 2d 34, 42 (D.D.C.

2009) (citations omitted).    Agency affidavits are afforded a

“presumption of good faith” and an adequate affidavit can be

rebutted only with evidence that the agency's search was not

made in good faith.     Defenders of Wildlife v. Dep’t of the

Interior, 314 F. Supp. 2d 1, 8 (D.D.C. 2004).    Courts routinely

find that delays in responding to FOIA requests are not, in and

                                   5
 
of themselves, indicative of agency bad faith. See, e.g.,

Iturralde, 315 F.3d at 315 ("initial delays in responding to a

FOIA request are rarely, if ever, grounds for discrediting later

affidavits by the agency"); Fischer, 723 F. Supp. 2d 104, 108-09

(D.D.C. 2010) (rejecting argument that agency's failure to

produce documents until after litigation commenced evidenced

agency's bad faith).

     FOIA's “strong presumption in favor of disclosure places

the burden on the agency to justify the withholding of any

requested documents.”   Dep’t of State v. Ray, 502 U.S. 164, 173

(1991).   The government may satisfy its burden of establishing

its right to withhold information from the public by submitting

appropriate declarations and, where necessary, an index of the

information withheld. See Vaughn v. Rosen, 484 F. 2d 820, 827-28

(D.C. Cir. 1973).   “If an agency's affidavit describes the

justifications for withholding the information with specific

detail, demonstrates that the information withheld logically

falls within the claimed exemption, and is not contradicted by

contrary evidence in the record or by evidence of the agency's

bad faith, then summary judgment is warranted on the basis of

the affidavit alone.” ACLU v. Dep’t of the Defense, 628 F.3d

612, 619 (D.C. Cir. 2011); see id. (agency’s justification for

invoking a FOIA exemption is sufficient if it appears logical or

plausible).

                                 6
 
     III. DISCUSSION

     Defendant’s summary judgment motion, which has not been

opposed by Plaintiff, should be granted.     Defendant properly

relies on a detailed declaration that demonstrates the adequacy

of the searches for plaintiff’s FOIA requests.     HUD states that

based on plaintiff’s first and second requests regarding NCLR

and its affiliates and sub-grantees, it identified the Office of

Housing, Counseling Division, as the office most likely to have

responsive records.     See generally Snowden Decl.   HUD further

states that based on plaintiff’s third request regarding the

delay in processing the second request, it identified the Office

of Executive Secretariat as the most likely to have responsive

records.   Id.   It sets forth the individuals tasked with

searching and the processes undertaken to search for documents

in these offices.     Id.   Plaintiff has filed no opposition and

accordingly has not attempted to rebut the presumption of good

faith to which the agency declaration is entitled.     The Court

thus finds that the searches described by HUD could be

“reasonably expected to produce the information requested and

were therefore adequate.”      See Fischer, 596 F. Supp. 2d at 43.

     The agency has likewise met its burden to show that

Exemptions 4 and 6 apply to the information it withheld in




                                    7
 
response to Plaintiff’s second FOIA request.2                               Exemption 4

exempts from disclosure information that is (1) commercial or

financial, (2) obtained from a person, and (3) privileged or

confidential.                               5 U.S.C. § 552(b)(4).   Where, as here, the

submission of the information was compelled, it is exempt from

disclosure if disclosure “would be likely either (1) to impair

the government’s ability to obtain necessary information in the

future; or (2) to cause substantial harm to the competitive

position of the person from whom the information was obtained.”

McDonnell Douglas Corp. v. NASA, 180 F.3d 303, 305 (citations

omitted).

              In this case, the government has submitted a declaration as

well as a Vaughn index describing each document from which

information was withheld, detailing the information which was

withheld, and explaining the basis for withholding.                               See Snowden

Decl.; see also Vaughn Index of Redacted Documents at 3-4.                                The

affidavit and Vaughn Index provided by HUD indicate that the


                                                            
2
  HUD withheld certain information from its response to
Plaintiff’s first request as well, also citing Exemptions 4 and
6. Plaintiff did not appeal the use of the exemptions, however;
he only appealed HUD’s failure to provide its response to
correspondence from NCLR dated December 9, 2011. See Compl. ¶¶
13-18; Snowden Decl. ¶¶ 10-13. Accordingly, because plaintiff
did not exhaust his administrative remedies as to the use of
Exemptions 4 and 6, he cannot seek judicial review. Dettmann v.
U.S. Dep’t of Justice, 802 F.2d 1472, 1477 (D.C. Cir. 1986)
(holding that it is possible to exhaust administrative remedies
with respect to one aspect of a FOIA request but not to another
aspect).
                                                               8
 
information withheld concerns the private funding and financial

statements of CAF and NCLR, release of which would cause

substantial competitive harm to NCLR.   HUD’s justification for

withholding is “logical or plausible,” and plaintiff has

provided no argument to the contrary.   ACLU v. Dep’t of the

Defense, 628 F.3d at 619.   Accordingly, the government has

satisfied its burden to justify withholding information under

Exemption 4.

     Exemption 6 covers “personnel and medical files and similar

files the disclosure of which would constitute a clearly

unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6).

A determination of proper withholding under Exemption 6 proceeds

in two stages.   First, the Court determines if the information

is subject to protection, specifically, whether the information

is contained in a personnel, medical, or similar file, and if

so, whether “disclosure would compromise a substantial, as

opposed to a de minimis, privacy interest.” Nat’l Ass’n of

Retired Fed. Employees v. Horner, 879 F.2d 873, 874 (D.C. Cir.

1989).   If a substantial privacy interest is at stake, the Court

“weigh[s] the privacy interest in nondisclosure against the

public interest in the release of records in order to determine

whether, on balance, the disclosure would work a clearly

unwarranted invasion of personal privacy.” Lepelletier v. FDIC,



                                 9
 
164 F.3d 37, 46 (D.C. Cir. 1999) (internal quotation marks

omitted).

     Again, the government has submitted a declaration as well

as a Vaughn index describing each document from which

information was withheld, detailing the information which was

withheld, and explaining the basis for withholding.   See Snowden

Decl.; see also Vaughn Index of Redacted Documents at 1-2.    The

affidavit and Vaughn Index provided by HUD indicates that the

information withheld consists of the names of private citizens,

most appearing to be in conjunction with either (1) personnel

matters relating to individuals employed by NCLR or CAF, or (2)

personal finance matters relating to individuals served by NCLR

or CAF who are attempting to get out of debt or foreclosure or

to improve their credit. Id.   This type of information

implicates substantial privacy interests pursuant to Exemption

6, and the Court is not aware of any public interest in

disclosure of the names, nor has plaintiff indicated that any

exists.   Accordingly, the government has satisfied its burden to

justify withholding information under Exemption 6.

     Finally, the Court has an affirmative duty to consider

HUD’s segregation of releasable from withheld material. See

Trans-Pac. Policing Agreement v. Customs Serv., 177 F.3d 1022,

1028 (D.C. Cir. 1999).   It is the government’s burden to

demonstrate that all reasonably segregable information has been

                                10
 
released. Army Times Publ’g Co. v. Dep’t of Air Force, 998 F.2d

1067, 1068 (D.C. Cir. 1993).   The government can meet is burden

through a combination of the Vaughn Index and agency affidavits.

Johnson v. Exec. Office for U.S. Attorneys, 310 F.3d 771, 776

(D.C. Cir. 2002).   The Court’s review of the Snowden Declaration

and the Vaughn index establishes that no segregability problem

exists in this case.    The documents have careful and pinpointed

redactions of names and financial information; the remaining

information has been released.   This “easily clears the required

hurdle.”   Braga v. FBI, 910 F. Supp. 2d 258, 262 (D.D.C. 2012).

     IV.   CONCLUSION

     For the foregoing reasons, the Defendant’s unopposed Motion

for Summary Judgment is GRANTED.      An appropriate Order

accompanies this Memorandum Opinion.




Signed:    Emmet G. Sullivan
           United States District Judge
           July 11, 2013




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