In December 2018, Public Citizen sent a Freedom of Information Act request to the Department of Housing and Urban Development (HUD) requesting records regarding the eligibility of participants in the Deferred Action for Childhood Arrivals (DACA) program for loans insured by the Federal Housing Administration (FHA). A news article and other reports had indicated that HUD had been instructing lenders and others that DACA recipients were no longer eligible for FHA-insured loans. In making the FOIA request, Public Citizen requested a waiver of fees for searching and copying, noting that the statutory considerations for granting a fee waiver—the documents sought were not for a commercial purpose, but to inform the public about a matter of public interest—were met. HUD, however, denied the fee waiver request, saying any claims that the public would be interested were “speculative, “ and failed to produce the requested records.
Public Citizen filed suit challenging the denial of the fee waiver and seeking disclosure of the requested records. HUD then began releasing responsive records. In doing so, however, it redacted individual lines and paragraphs of responsive emails and email attachments as “Non Responsive Record.”
Public Citizen filed a motion for partial summary judgment asking the court to declare those redaction’s unlawful and to order HUD to stop redacting text from responsive documents, except as permitted by FOIA’s exemptions. In March 2020, the district court denied both Public Citizen’s motion and the agency’s cross-motion, stating that it was premature to rule on the propriety of the redactions while the agency was continuing to release records. In so doing, however, the court agreed with our argument that “it is usually improper to identify individual words, sentences, or paragraphs in discrete documents or emails and to label them as separate, nonresponsive ‘records,'” and indicated that it was ” skeptical” that the agency would be able to justify its redactions “outside extraordinary circumstances.”
Production continued, and HUD continued to redact portions of discrete documents as “non responsive records.” On the eve of renewed summary judgment briefing, HUD made a “discretionary release,” removing most of the challenged redactions. Public Citizen then moved for an award of attorney’s fees and costs. It argued that the agency’s production of over 6,000 pages, without charge, after refusing to grant a fee waiver or produce any documents, and the agency’s removal of redactions, entitled Public Citizen to its reasonable fees. Briefing on that motion is ongoing.