166 F.3d 473 (2nd Cir. 1999), 351, Grand Cent. Partnership, Inc. v. Cuomo

Docket Nº:351, Docket 98-6027.
Citation:166 F.3d 473
Party Name:GRAND CENTRAL PARTNERSHIP, INC. Plaintiff-Appellant, v. Andrew CUOMO, as Secretary of the United States Department of Housing and Urban Development, Defendant-Appellee.
Case Date:January 28, 1999
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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



Andrew CUOMO, as Secretary of the United States Department

of Housing and Urban Development, Defendant-Appellee.

No. 351, Docket 98-6027.

United States Court of Appeals, Second Circuit

January 28, 1999

Argued Sept. 15, 1998.

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Paul J. Fishman, Friedman, Kaplan & Seiler, LLP, New York, N.Y. (Robert S. Loigman, of counsel), for Appellant.

Andrew M. Manshel, Grand Central Partnership, Inc., New York, NY, for Appellant.

Jonathan A. Willens, Assistant United States Attorney, New York, N.Y. (Mary Jo White, United States Attorney for the Southern District of New York, Gideon A. Schor, Assistant United States Attorney, on the brief), for Appellee.

Before: CABRANES and POOLER, Circuit Judges, and TRAGER, District Judge. [*]

TRAGER, District Judge:

Plaintiff-appellant Grand Central Partnership, Inc. ("GCP") brought this action against the Department of Housing and Urban Development ("HUD"), alleging that HUD was wrongfully withholding documents that GCP had properly requested pursuant to the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"). GCP sought declaratory and injunctive relief under 5 U.S.C. § 552(a)(4)(B). In response to GCP's request, HUD produced approximately 1000 pages of material, but withheld sixteen documents under various claims of exemption from FOIA's demands. Following cross-motions for summary judgment, the United States District Court for the Southern District of New York, Louis L. Stanton, in a pair of unpublished orders entered on November 13 and December 10, 1997, ordered HUD to produce one of the sixteen withheld documents in its entirety and three in redacted form, but held that HUD had no obligation to produce the remaining

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twelve documents. GCP appeals from those orders.



In early 1995, several newspapers published reports that GCP employees used abusive and sometimes violent tactics to remove homeless persons from public spaces near Grand Central Station, in New York City. On January 26, 1996, following an investigation of GCP's conduct, HUD issued a sanction in the form of a Limited Denial of Participation ("LDP") pursuant to 24 C.F.R. § 24.705(a). This LDP denied GCP participation in HUD programs for one year on the basis of the alleged misconduct of GCP's employees and the alleged misuse of HUD funds. GCP appealed the sanction to HUD which HUD withdrew on July 1, 1996. HUD notified GCP that it was withdrawing the sanction because it was reopening its investigation into alleged GCP misconduct. GCP countered that HUD had not (and still has not) offered any proof of investigative action since July 1996.

On May 20, 1996, while its appeal was still pending before HUD, GCP submitted to HUD a FOIA request seeking, inter alia, "documents underlying (i) the Review of Findings of HUD investigations of the Grand Central Partnership Social Service Corporation released on or about July 5, [1995];" and (ii) HUD's decision of January 26, 1996 to impose LDP sanctions on GCP. JA 11. After a lengthy delay, having received no response from HUD, GCP commenced this action on November 1, 1996. On December 4, 1996, HUD produced over 1,000 pages of records to GCP. On January 31, 1997, HUD released 63 additional pages of records to GCP, and advised GCP that sixteen documents would be withheld on the basis of FOIA Exemptions 5 (deliberative process privilege) and 7 (law enforcement exemption). See 5 U.S.C. § 552(b)(5),(7) (1998). HUD provided a Vaughn index with that production, 1 and on March 6, 1997, provided an expanded index according to a schedule set by the district court. Along with the expanded index, HUD produced a declaration by Joseph D'Agosta, Director of the Office of Community Planning and Development for HUD's New York Office.


In its first order, the district court agreed with HUD's contention that eight of the sixteen withheld documents, numbers 1, 2, 6, 12, 13, 14, 15 and 16, were not "agency records" subject to disclosure under FOIA based on the district court's conclusion that (i) those documents " 'were created for the personal convenience of HUD employees,' " (ii) "were kept 'in [the authors'] own personal files,' " and (iii) " '[t]he authors of the notes had no intention of circulating them to others in the agency.' " Order dated 11/13/97, quoting Supp. D'Agosta Aff., p 10. The district court based its decision entirely on the enlarged Vaughn index produced by HUD and the Supplemental D'Agosta Affidavit. Any document described in the index as either "handwritten notes" or "typewritten notes" was held to be outside the scope of FOIA.

The district court directed HUD to submit the remaining eight documents to the court for in camera review. Following its review of the remaining documents, the district court issued its second order, in which it found that four of the withheld documents, numbers 4, 7, 8 and 11, were exempt from disclosure pursuant to sections 552(b)(5) and (7) of FOIA. However, the district court granted GCP's cross-motion, in part, directing HUD to release the remaining four documents--numbers 3, 5, and 9 in redacted form, and 10 in its entirety. Id. HUD released these documents to GCP on February 2, 1998 after making the redactions approved by the district court. Document 10 is no longer at issue. GCP appeals the district court's ruling as to the fifteen remaining documents, withheld in whole or in part.

Finally, GCP appeals the district court's ruling denying GCP's request for discovery in which the district court concluded that HUD had conducted a reasonable search in response to GCP's FOIA request.

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FOIA was enacted to promote honest and open government and to assure the existence of an informed citizenry " 'to hold the governors accountable to the governed.' " Ethyl Corp. v. EPA, 25 F.3d 1241, 1245 (4th Cir.1994) (quoting NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242, 98 S.Ct. 2311, 2327, 57 L.Ed.2d 159 (1978)). The statute was intended to advance "a general philosophy of full agency disclosure." Federal Labor Relations Auth. v. United States Dep't of Veterans Affairs, 958 F.2d 503, 508 (2d Cir.1992) (internal quotation omitted). However, access to governmental information must be "orderly and not so unconstrained as to disrupt the government's daily business." Ethyl Corp., 25 F.3d at 1245. Importantly, the Act is to be "construed broadly to provide information to the public in accordance with its purposes; for the same reason, the exemptions from production are to be construed narrowly." Id. (citing United States Dep't of Justice v. Julian, 486 U.S. 1, 8, 108 S.Ct. 1606, 1611, 100 L.Ed.2d 1 (1988)); see also Local 3, Int'l Bhd. of Elec. Workers v. NLRB, 845 F.2d 1177, 1180 (2d Cir.1988) (exemptions are to be "narrowly construed with all doubts resolved in favor of disclosure").


As noted by the Supreme Court, under FOIA, "federal jurisdiction is dependent on a showing that an agency has (1) 'improperly' (2) 'withheld' (3) 'agency records.' " United States Dep't of Justice v. Tax Analysts, 492 U.S. 136, 142, 109 S.Ct. 2841, 2846, 106 L.Ed.2d 112 (1989) (quoting Kissinger v. Reporters Comm. for Freedom of Press, 445 U.S. 136, 150, 100 S.Ct. 960, 968, 63 L.Ed.2d 267 (1980)). Only when each of these criteria is met may a district court "force an agency to comply with the FOIA's disclosure requirements." Id. The Supreme Court has also held that where the question is whether requested documents are "agency records" subject to disclosure under FOIA, "[t]he burden is on the agency to demonstrate, not the requester to disprove, that the materials sought are not 'agency records....' " Id. at n. 3 (citing S.Rep. No. 813, 89th Cong., 1st Sess., 8 (1965)). A district court in a FOIA case may grant summary judgment in favor of an agency " 'on the basis of agency affidavits if they contain reasonable specificity of detail rather than merely conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith.' " Gallant v. NLRB, 26 F.3d 168, 171 (D.C.Cir.1994) (citation omitted) (emphasis added). 2

HUD first claimed that eight of the documents, numbers 1, 2, 6, 12, 13, 14, 15 and 16, sought by GCP are not "agency records," but rather are personal "notes" of agency employees and, therefore, are not subject to disclosure under FOIA. The district court agreed. The propriety of the district court's order turns, in part, on whether the nature of the documents at issue could be determined from HUD's proof. Because we conclude there was insufficient specificity of detail in the Supplemental D'Agosta Affidavit and HUD's Vaughn index to support the district court's conclusion that the requested documents are not "agency records," the district court's order cannot stand.

Although the FOIA statute itself "does not indicate the types of documents that constitute 'agency records' within the

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meaning of the Act," the meaning of "agency records" is now well established. Gallant, 26 F.3d at 171. For requested materials to qualify as "agency records," two requirements must be satisfied: (i) "an agency must 'either create or obtain' the requested materials," and (ii) "the agency must be in control of the requested materials at the time the FOIA request is made." Tax Analysts, 492 U.S. at 144-45, 109 S.Ct. at 2848 (citing Kissinger, 445 U.S. at 157, 100 S.Ct. at 972 (custody and control); Forsham v. Harris, 445 U.S. 169, 182, 100 S.Ct. 977, 985, 63 L.Ed.2d 293 (1980) (create or obtain)). The control requirement "accords with Kissinger's teaching that the term 'agency records' is not so broad as to...

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