The Inclusive Communities Project Inc v. The United States Department of Housing and Urban Development

Filing 56

MEMORANDUM OPINION AND ORDER granting in part and denying in part 33 Motion for Summary Judgment; denying 41 Motion for Summary Judgment. The Court, pursuant to 5 U.S.C. § 552(a)(4)(B), ORDERS HUD to produce and ENJOINS it from withholding t he records ICP sought in Part I and Part II of its FOIA request. The Court DENIES ICP's request that the Court issue an order prohibiting HUD from relying on Exemption 6 to deny future FOIA requests for the same records ordered produced in this case. (Ordered by Judge Jane J Boyle on 9/13/2016) (ran)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
THE INCLUSIVE COMMUNITIES
PROJECT, INC.,
Plaintiff,
v.
THE UNITED STATES
DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT,
Defendant.

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CIVIL ACTION NO. 3:14-CV-3333-B

MEMORANDUM OPINION AND ORDER
The Inclusive Communities Project, Inc. (ICP), a “Dallas[-]based fair housing organization
which works to create and maintain racially and economically inclusive communities,” submitted a
Freedom of Information Act (FOIA) request to the United States Department of Housing and Urban
Development (HUD) for records containing information on House Choice Vouchers (HCV) used
in Dallas-area counties as of June 30, 2013. Doc. 18, Pl.’s First Am. Compl. ¶¶ 6, 9. Under the
Freedom of Information Act (FOIA), “an agency must disclose all records requested by ‘any person’
unless the information sought falls within a specific statutory exemption.” Multi Ag Media LLC v.
Dep’t of Agric., 515 F.3d 1224, 1226 (D.C. Cir. 2008) (internal citations and quotations omitted).
In response to ICP’s request, HUD, invoked FOIA Exemption 6, which protects individual privacy
interests in government records, to withhold some of the requested information. See Doc. 35, Pl.’s
App. 9–12, HUD’s FOIA Resp. The only issue before the Court, raised via the parties’ cross-motions
for summary judgment, is whether HUD’s withholding of this information was lawful. Doc. 33, Pl.’s

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Mot. Summ. J.; Doc. 41, Def.’s Mot. Summ. J. For the following reasons, ICP’s Motion (Doc. 33) is
GRANTED in part and DENIED in part, and HUD’s Motion (Doc. 41) is DENIED.
I.
BACKGROUND
HUD is the agency responsible for administering the Section 8 Housing Choice Voucher
Program (HCV Program), under which low-income families receive HCVs to subsidize their housing.
See 42 U.S.C. § 1437f(a), (o); 24 C.F.R. § 982.1. HUD administers this program, in part, by
maintaining non-public records of program participants’ personal details received via Form
HUD-50058 (a form families participating in the HCV Program must submit to HUD). See Doc. 43,
Def.’s App. 20–45, Form HUD-50058. If HUD releases non-public records such as information from
HUD-50058, it redacts the records according to a protocol it calls the Rule of 11: “information is
only made available on the characteristics of a group if there are at least 11 members of the group.”
Doc. 49, Pl.’s Resp. App. 6–7, Negot. Emails.
On January 22, 2014, ICP submitted a two-part FOIA request to HUD seeking release of
records containing information for each “Housing Choice Voucher located in the Dallas, Texas area
counties . . . included in the HUD Resident Characteristics Report as of June 30, 2013.” Doc. 35,
Pl.’s App. 3, FOIA Request. As part of their request, ICP agreed to HUD’s use of a Rule of 11
redaction scheme that the parties had used in a previous case:
ICP agrees to the use of a digit tract code (XX replaces the last 2 digits) for records
from census tracts1 containing 10 or fewer HCV holders. If there are still HCV

1

“Census tracts are small, relatively permanent statistical subdivisions of a county . . . that are
updated . . . prior to each decennial census.” Geographic Terms and Concepts - Census Tract, United States
Census Bureau (Aug. 31, 2016), https://www.census.gov/geo/reference/gtc/gtc_ct.html. For more information

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holders that could not be aggregated at the 4 digit census tract code for census tracts
containing 10 or fewer HCV holders, ICP agrees to the provision of the records with
state/county code but no tract information and with the unit Owner Name
suppressed (XXXXXX replaces the tract code).
Id. at 7, FOIA Request. Importantly, this agreed-to version of the Rule of 11 is less restrictive than
the version HUD currently applies.2 Specifically, this version requires redaction only when a census
tract or aggregated set of census tracts contain fewer than eleven HCV holders.3 By contrast, HUD’s
current version requires redaction when any geographic grouping contains fewer than eleven HCV
holders. The Court will refer to the first version as the Census Tract Rule of 11 and the second
version as the Geographic Unit Rule of 11.
On January 31, 2014, HUD acknowledged it had received ICP’s two-part FOIA request, and
stated that it would process the request within thirty to forty-five days. Doc. 18, Pl.’s First Am.
Compl. ¶ 1. In September, after receiving no response from HUD, ICP filed suit in this Court under
5 U.S.C. § 552(a)(4)(B). Id. ¶ 5. Three months later, HUD released some, but not all, of the
information that ICP had requested. Id. ¶¶ 1–2.
A.

ICP’s FOIA Request: Part I
In Part I of its FOIA request, ICP sought “household level data” related to HCVs “provided

on census tracts and for an explanation of census tract codes, see id.
2

HUD argues that these two data suppression methodologies are consistent. See Doc. 52, Def.’s
Reply 2–3 (“Although ICP did not expressly define a data suppression methodology that took into
account . . . smaller geographic areas, the parties agree that a population of ten or fewer recipients in a
particular geographic area is problematic in terms of privacy.”). The record, however, reflects that these
methodologies are inconsistent, and that ICP does not agree that a population of ten or fewer recipients in
a particular geographic area is problematic in terms of privacy. See Doc. 49, Pl.’s Resp. App. 8, ICP Email.
3

The Court will interchangeably refer to HCV holders as housing voucher recipients or voucher
recipients.

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to HUD on HUD-50058 and included in HUD’s Resident Characteristics Report.” Doc. 35, Pl.’s
App. 9, HUD’s FOIA Resp. Household level data includes owner name, structure type, family type,
race and ethnicity for head of household, date of birth, family income, gross rent, city, state, zip code,
and census tract. See id. at 4, FOIA Request.
On December 15, 2014, HUD released some, but not all, of the information requested in
Part I, withholding certain Personally Identifiable Information (PII) under FOIA Exemption 6. See
id. at 9–10, HUD’s FOIA Resp. According to HUD, PII means “information which can be used to
distinguish or trace an individual’s identity, such as their name, social security number, biometric
records, etc. alone, or when combined with other personal or identifying information which is linked
or linkable to a specific individual.” Id. at 15, Notice PIH-2015-06 (based on definition from OMB
M-07-16). To protect the PII of families receiving HCVs, HUD took the following steps:
(1)

Variables were rounded or categorized;
(a)

Income was categorized as <$5,000, $5,000–10,000, $10,000–20,000, or
>$20,000;

(b)

Total tenant payment (TTP) was rounded to $250;

(c)

Gross rent was rounded to $250;

(d)

Housing assistance payment (HAP) was rounded to $250;

(e)

Structure types were categorized as standalone or multi-family;

(f)

Race of head of family was categorized as white, black, or other;

(g)

Ethnicity of head of family was categorized as Hispanic or not Hispanic; and

(h)

Family type was categorized as regular with children, elderly or disabled with
children, regular without children, or elderly or disabled without children;

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(2)

Variables were eliminated in three rounds to preserve as much usable information as
possible;
(a)

Round 1 records included state, county, or four-digit census tract code
information with the variables listed above (67.6% of records);

(b)

Round 2 records included state or county information with income, race, and
ethnicity (23.17% of records); and

(c)

Round 3 records included only state or county information (.03% of records).

(3)

Owner name was removed from all records; and

(4)

Geographic detail was reduced to four digit tract codes (or no tract codes where
uniqueness could not be preserved).

Id. at 9–10, HUD’s FOIA Resp.; Doc. 45, Pl.’s Reply 12. HUD reduced geographic detail according
to the Geographic Unit Rule of 11, not the Census Tract Rule of 11. See Doc. 43, Def.’s App. 9–11,
Decl. of Deena S. Jih ¶ 21–24 [hereinafter Jih Decl.]. In particular, it provided all geographic
information for households residing in a “Census Tract/ZIP code/Public Housing Authority (PHA)
combination with more than ten households,” and, when “there were ten or less households in a .
. . combination,” it suppressed census tract information two digits at a time “until there were more
than ten cases in the geographic area.” Id. at 9, Jih Decl. ¶ 21.
B.

ICP’s FOIA Request: Part II
In Part II of its FOIA request, ICP sought “household data” by census tract as reported in

HUD’s Picture of Subsidized Households. Doc. 34, Pl.’s Br. in Supp. of Mot. for Summ. J. 16
[hereinafter Pl.’s Br.]; see also Doc. 35, Pl.’s App. 6, FOIA Request. Household data—as opposed to
household level data—includes PHA, census tract, family number per tract, poverty rate per tract,
percentage of minorities per tract, new family number per tract, and poverty rate of new families.
Doc. 35, Pl.’s App. 6–7, FOIA Request.
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HUD again released some of the requested information, but withheld what it believed to
be PII. Id. at 11, HUD’s FOIA Resp. This time, to eliminate unique identifiers and protect personal
privacy interests, HUD “zeroed out” all count and percentage variables for census tracts with ten or
fewer families receiving HCV assistance. Id.
C.

Negotiations4
ICP disagreed with HUD’s withholding and suppressing this data, and refused to dismiss its

case. See Doc. 43, Def.’s App. 7, Jih Decl. ¶ 14. Since then, the parties have “engaged in numerous
unsuccessful efforts to negotiate a settlement.” Id. As part of the negotiations, HUD offered to:
(1) consider ICP for a Data License Agreement under which HUD would release all requested data;
or (2) provide ICP with an analysis of the requested data rather than releasing PII. Id. at 54–58,
Negot. Emails. ICP declined the first offer because of restrictions on the use of analysis from the data.
See id. at 54. It disagrees that HUD made the second offer. Doc. 48, Pl.’s Resp. Br. in Opp’n to
HUD’s Mot. Summ. J. 14 [hereinafter Pl.’s Resp. Br.].
On August 5, 2015, ICP gave HUD a potential modified scope of its original FOIA request,
which eliminated several previously requested data fields, and offered to consider a settlement based
on this narrowed list of fields. See Doc. 43, Def.’s App. 60–63, Narrowed List; see also Doc. 49, Pl.’s
Resp. App. 6 (“ICP’s settlement proposal did not amend its FOIA request in any way.”). HUD made
a counter offer in which it explained that “[t]he narrowed scope [was] helpful in eliminating a
significant portion of the privacy concerns,” and agreed “to release the data pursuant to the narrowed
scope with only data masking pursuant to the [R]ule of 1[1] as referenced in the original FOIA
4

ICP argues that evidence of the negotiations between the parties is inadmissible under Federal Rules
of Evidence 408(a) and 801(c). Doc. 45, Pl.’s Reply 10. The Court will not address these arguments as they
do not alter the outcome of this Order.

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request.” Doc. 43, Def.’s App. 64, HUD Email. But ICP rejected this counteroffer because it did not
view HUD’s release as complying with its modified request. See Doc. 49, Pl.’s Resp. App. 8, ICP
Email (“[I]t still looks like HUD is suppressing non-identifying information including PHA, Zip
Code, and census tracts for households in census tracts with 11 or more voucher participants.”).
D.

Motions for Summary Judgment
Because the parties were unable to reach an agreement, they filed cross-motions for summary

judgment. Doc. 33, Pl.’s Mot.; Doc. 41, Def.’s Mot.
ICP seeks the following relief: (1) an order requiring HUD to produce the agency records that
it withheld and enjoining it from withholding them; (2) an order referring the matter to the Merit
Systems Protection Board for investigation; (3) an order prohibiting HUD from relying on Exemption
6 to deny future FOIA requests for the same records ordered produced in this case; and (4) attorneys’
fees and costs. Doc. 18, Pl.’s First Am. Compl. ¶ 42; see also Doc. 33, Pl.’s Mot. 2 (“ICP is entitled
to judgment based on uncontested facts and the law.”). HUD has responded and ICP has replied.
Doc. 38, Def.’s Resp.; Doc. 39, Def.’s Br. in Supp. of Resp. [hereinafter Def.’s Resp. Br.]; Doc. 45,
Pl.’s Reply. Thus, ICP’s Motion is ready for review.
HUD moves the Court to “dismiss ICP’s claims with prejudice, tax costs against ICP, [and]
enter judgment for HUD.” Doc. 42, Def.’s Br. in Supp. of Mot. Summ. J. 22 [hereinafter Def.’s Br.].5
ICP has responded and ICP has replied. Doc. 47, Pl.’s Resp.; Doc. 52, Def.’s Reply. Thus, HUD’s
Motion is ready for review.

5

Defendant’s Response Brief and Defendant’s Brief are the same. Compare Doc. 39, Def.’s Resp. Br.,
with Doc. 42, Def.’s Br. For clarity, the Court will refer solely to the arguments made in Defendant’s Brief.

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II.
LEGAL STANDARD
Generally, summary judgment is appropriate only 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); see
also Batton v. Evers, 598 F.3d 169, 175 (5th Cir. 2010). “In the FOIA context, however, the
traditional standard is modified because ‘the threshold question in any FOIA suit is whether the
requester can even see the documents the character of which determines whether they can be
released.’” Batton, 598 F.3d at 175 (quoting Cooper Cameron Corp. v. U.S. Dep’t of Labor, OSHA, 280
F.3d 539, 543 (5th Cir. 2002)). Under FOIA, an agency that withholds information bears the burden
of proving that the information is exempt from disclosure. 5 U.S.C. § 552(a)(4)(B) (stating that “the
burden is on the agency to sustain its action”). Courts review the agency’s action de novo. Avondale
Indus., Inc. v. N.L.R.B., 90 F.3d 955, 958 (5th Cir. 1996).
To survive summary judgment in favor of the plaintiff or to prevail on its own summary
judgment, the agency must: (1) identify the documents at issue; and (2) explain why they fall under
any statutory exemptions to production. Cooper Cameron Corp., 280 F.3d at 543. An agency may do
this through affidavits, declarations,6 a Vaughn index,7 or some combination of the three. See Batton,
598 F.3d at 175. But “[a]n agency may sustain its burden by means of affidavits . . . only ‘if they
contain reasonable specificity of detail rather than merely conclusory statements.’” Multi Ag Media

6

Affidavits and declarations submitted by the government are entitled to a presumption of legitimacy.
Batton, 598 F.3d at 176. Yet this presumption “does not relieve the withholding agency of its burden of
proving that the factual information sought falls within the statutory exemption asserted.” Id.
7

“A Vaughn index is a common FOIA procedural device that lists the documents responsive to the
request and explains why portions have been withheld.” Cooper Cameron Corp., 280 F.3d at 544 n.12 (citing
Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973)).

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LLC, 515 F.3d at 1227 (quoting Gallant v. NLRB, 26 F.3d 168, 171 (D.C. Cir. 1994)). An affidavit
is insufficient “if the agency’s claims are conclusory, merely reciting statutory standards, or if they are
too vague or sweeping.” Cooper Cameron Corp., 280 F.3d at 543 (quoting Hayden v. Nat’l Sec.
Agency/Cent. Sec. Serv., 608 F.2d 1381, 1387 (D.C. Cir. 1979)). Remembering the agency’s burden,
courts should not grant summary judgment based on conclusory or generalized assertions, even if the
FOIA requester has not controverted that assertion. See id. (citing Niagara Mohawk Power Corp. v.
United States Dep’t of Energy, 169 F.3d 16, 18 (D.C. Cir. 1999)).
In applying these standards, courts should be mindful that FOIA was enacted “to facilitate
public access to Government documents,” U.S. Dep’t of State v. Ray, 502 U.S. 164, 173 (1991), and
designed “to pierce the veil of administrative secrecy and to open agency action to the light of public
scrutiny.” Dep’t of the Air Force v. Rose, 425 U.S. 352, 361 (1976) (internal quotation marks and
citations omitted). Accordingly, there is a “strong presumption in favor of disclosure,” Ray, 502 U.S.
at 173, which prompts courts to construe FOIA exemptions narrowly. See Rose, 425 U.S. at 361, 366
(FOIA’s “exemptions do not obscure the basic policy that disclosure, not secrecy, is the dominant
objective of the Act”).
III.
ANALYSIS
FOIA Exemption 6 allows agencies to withhold “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). To decide whether Exemption 6 applies, courts engage in a two-part analysis
in which they determine: (1) “whether the information requested includes ‘files’ within the meaning
of section 552(b)(6),” Sherman v. U.S. Dep’t of Army, 244 F.3d 357, 361 (5th Cir. 2001); and (2)
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“whether disclosure of such files would constitute a clearly unwarranted invasion of personal
privacy.” Avondale Indus., Inc., 90 F.3d at 960.
At issue is whether Exemption 6 applies to Part I and Part II of the information that ICP
requested from HUD that HUD withheld, specifically: (1) the variables that were rounded or
characterized in HUD’s response to Part I;8 (2) HUD’s reduction of geographic detail based on the
Geographic Unit Rule of 11 in its response to Part I; and (3) HUD’s zeroing out of all count and
percentage variables based on the Geographic Unit Rule of 11 in its response to Part II.
Without conducting a lengthy analysis, the Court can conclude that Exemption 6 does not
apply to the variables that HUD modified. Outside of the general statement that “[t]he number of
record entries or data fields requested has a direct impact on the occurrence of unique identifiers in
the data,” Doc. 39, Def.’s Resp. 10, HUD provides no explanation of why it modified this
information. Thus, it has not met its burden of proving that Exemption 6 applies to these
modifications.
Additionally, the Court can resolve any issue with HUD’s redaction of Part II information.
In its Motion for Summary Judgment, ICP clearly takes the position that HUD had not satisfied
Part II of its FOIA request. Doc. 34, Pl.’s Br. 16. And in its Reply, ICP argues that HUD has not met
its burden of proof because HUD’s briefing and Vaughn index do not “mention [its] refusal to provide
the census tract based records sought in Part 2.” Doc. 45, Pl.’s Reply 1. But HUD, in its Reply, states
that “[b]efore receiving ICP’s response to HUD’s summary judgment motion, [it] believed there was
no dispute as to whether HUD satisfied Part 2 of ICP’s request.” Doc. 52, Def.’s Reply 10. Rather,

8

Income, TTP, gross rent, HAP, structure type, race, ethnicity, and family type. Doc. 25, Pl.’s App
9–10, HUD's FOIA Resp.

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it “understood that Part 2 of the request would be satisfied if HUD provided ICP the same
information as the agency provided in 2012 but with 2013 data,” which it claims it did. Id. Also,
HUD states that it “has no issue with providing the additional public housing authority data field,
and HUD sent that data to ICP on November 13, 2015.” Id. at 10–11. So HUD failed to address
ICP’s concerns as to Part II, or has already released the requested information. Either way, this issue
is resolved: HUD failed to sustain its burden of proof, or satisfied ICP’s request, mooting its claim.
This leaves only the issue of HUD’s reduction of geographic detail based on the Geographic
Unit Rule of 11 in its response to Part I of ICP’s request.9 As the parties have fully briefed this issue,
the Court cannot resolve it summarily as it did with the other two issues. The Court will refer to this
information that HUD suppressed, redacted, or withheld as the Withheld Information. The Court
now determines whether Exemption 6 applies to the Withheld Information.
A.

Whether the Withheld Information Includes “Similar Files”
The Withheld Information clearly does not include personnel or medical files. Therefore, to

fall under Exemption 6, it must include “similar files.” 5 U.S.C. § 552(b)(6). In United States
Department of State v. Washington Post Co., the Supreme Court held that Exemption 6 was not limited
to “a narrow class of files containing only a discrete kind of personal information,” but that the
phrase “similar files” was “intended to cover detailed Government records on an individual which
can be identified as applying to that individual.” 456 U.S. 595, 602 (1982). Because information
need only apply to an individual, virtually all data that relates to an individual qualifies as a similar
file under Exemption 6. See Pierce v. Dep’t of U.S. Air Force, 512 F.3d 184, 191 (5th Cir. 2007).

9

This includes its three round elimination of variables and its redaction of owner name.

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Here, all of the Withheld Information relates to individuals and, as HUD explains in its
Vaughn index, its release could “lead to identification of those households receiving housing
assistance,” which is sufficient to bring it under Exemption 6. See Doc. 43, Def.’s App. 68, Vaughn
Index; Multi Ag Media LLC, 515 F.3d at 1229 (holding that Exemption 6 covered information “easily
traceable to individuals”). Thus, the Court finds that Exemption 6 applies to the information HUD
suppressed. On that basis, the Court now considers whether HUD’s disclosure of the Withheld
Information would constitute a clearly unwarranted invasion of personal privacy. See Avondale Indus.,
Inc., 90 F.3d at 960.
B.

Whether Disclosure would Constitute a Clearly Unwarranted Invasion of Personal Privacy
To justify applying Exemption 6 to the Withheld Information, HUD must demonstrate that

release of this information would constitute a clearly unwarranted invasion of the privacy interests
of the HCV holders—the individuals to whom the Withheld Information relates. See Sherman, 244
F.3d at 362. “To determine whether disclosure of such files would constitute a clearly unwarranted
invasion of personal privacy, Exemption 6 cases require a balancing of the individual’s right of privacy
against the preservation of the basic purpose of FOIA, which is to open agency action to the light
of public scrutiny.” Avondale Indus., Inc., 90 F.3d at 960. Courts must: (1) determine whether there
is a substantial10 privacy interest served by withholding the requested information;
(2) determine whether there is a public interest served by it disclosure; and (3) weigh the interests
for and against disclosure. See id.; Halloran v. Veterans Admin., 874 F.2d 315, 319 (5th Cir. 1989).

10

“[U]se of the word substantial in this context means less than it might seem. A substantial privacy
interest is anything greater than a de minimis privacy interest.” Multi Ag Media LLC, 515 F.3d at 1229–30.

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1.

Substantial Privacy Interest

Courts have found a substantial privacy interest served by withholding information when the
information’s disclosure would immediately invade an individual’s privacy, or when “there is a
substantial probability that [its] disclosure w[ould] cause an interference with personal privacy.” Nat’l
Ass’n of Retired Fed. Employees v. Horner, 879 F.2d 873, 875–78 (D.C. Cir. 1989). The former relates
to disclosure of categorically personal information such as names, addresses, telephone numbers,
birth dates, and social security numbers. See, e.g., id. at 875 (collecting cases). The latter relates to
what is known as derivative privacy invasion or “derivative-use theory,” under which “a court could
consider whether information, which standing alone is not private, might nevertheless be used to
uncover information that is private.” Sherman, 244 F.3d 366 n.14 (citing Ray, 502 U.S. 177–79).
i.

The parties’ arguments

HUD relies solely upon a derivative-use theory. Doc. 19, Def.’s Answer to Pl.’s First Am.
Compl. ¶¶ 33–34 (“[T]he suppressed data does not result in the same immediate violation of
personal privacy that occurs from the release of data such as names, addresses, home telephone
numbers, and social security numbers, . . . [but] would result in a derivative invasion of personal
privacy.”). First, HUD asserts that “[w]here there is a substantial probability that disclosure will
cause an interference with personal privacy, it matters not that there may be two or three links in
the causal chain.” Doc. 42, Def.’s Br. 7 (quoting Horner, 879 F.2d at 878). It then suggests a causal
chain based on the presumption that “disclosure of housing voucher recipients’ identities and income
would comprise more than a de minimis privacy interest.” Id. HUD argues that if (1) it provided
“[v]oucher landlords, local police, and other members of the communities where housing voucher
holders reside”; (2) with voucher holders’ household-level information; (3) for “area[s] where the
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population of voucher holders is ten or fewer”; then such voucher landlords, local police, and
community members could (4) couple that information with their existing knowledge of the residents
in that community; and (5) identify housing voucher recipients, interfering with their privacy
interest. Id. at 7–8 (“Once identified, housing voucher recipients may be vulnerable to harassment,
targeting, hatred, marketing, and scamming.”).11
By contrast, ICP denies the existence of any “case determining that there is a specific
‘derivative violation of Exemption 6’ defense.” Doc. 34, Pl.’s Br. 18. Still, assuming there can be
derivative invasions of privacy, ICP proposes that such a violation occurs only when information can
be manipulated or linked to other information to lead to the identification of an individual. See id.
(citing Forest Guardians v. U.S. Fed. Emergency Mgmt. Agency, 410 F.3d 1214, 1220 (10th Cir.
2005)). ICP essentially proposes that the derivative-use theory should apply only to certain types of
PII: “information which can be used to distinguish or trace an individual's identify . . . when
combined with other personal or identifying information which is linked or linkable to a specific
individual.” Doc. 35, Pl.’s App. 15, Notice PIH-2015-06. ICP contends that, other than one
exception, the records it requested are not and cannot lead to discovery of PII. Doc. 34, Pl.’s
Br. 18–19. Also, for that one exception—the “possible use of the owner name to produce personally
identifiable information”—“HUD has not identified any likelihood that” this will occur. Id. at 19.
Thus, according to ICP, HUD cannot meet its burden of proving that withholding the requested

11

HUD also argues that ICP’s agreement to HUD's use of the Rule of 11 redaction scheme that the
parties had used in a previous case “acknowledges the substantial likelihood of a privacy breach when the
population of public housing voucher recipients in a census tract is ten or fewer.” Doc. 52, Def.’s Reply 2.
This, however, is not clear from the record, and it is just as likely the ICP agreed to this because it hoped to
expedite its FOIA request. Because HUD bears the burden of proof, and has not shown any support for this
argument, the Court rejects it.

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information serves a substantial private interest.
ii.

The derivative-use theory of privacy invasion
a.

Whether case law exists supporting the derivative-use theory

To begin, the Court addresses ICP’s argument that there is no case law supporting a
derivative violation of Exemption 6. A general search reveals otherwise.
The Supreme Court in Ray considered the derivative invasion of privacy that resulted from
the release of non-private information, 502 U.S. at 175–77, though it did not expressly acknowledge
that this is what it had done. See id. at 182 (Scalia, J. concurring) (“I choose to believe the Court’s
explicit assertion that it is not deciding the derivative-use point, despite what seem to me contrary
dicta elsewhere in the opinion.”). And though the Fifth Circuit has not decided whether derivative
use may provide a basis for withholding information under Exemption 6, see Cooper Cameron Corp.,
280 F.3d at 554 n.68 (citing Ray, 502 U.S. at 179 (Scalia, J. concurring); Sherman, 244 F.3d at 366
n.14), other circuit courts have found a substantial privacy interest served by non-disclosure under
the derivative-use theory. See, e.g., Multi Ag Media LLC, 515 F.3d at 1230; Forest Guardians, 410
F.3d at 1220–21. Accordingly, the Court will consider the derivative-use theory. Because the Fifth
Circuit has not directly addressed derivative privacy invasions, the Court will look to other courts
for guidance, including the D.C. Circuit, which the Fifth Circuit has recognized as the “federal
appellate court with the most experience in this field.” Cooper Cameron Corp., 280 F.3d at 543.
b.

Whether derivative-use supports non-disclosure under Exemption 6

Under the derivative-use theory, an invasion of privacy occurs upon the release of nonprivate information that might nevertheless be used to uncover private information. See Sherman,
244 F.3d 366 n.14 (citing Ray, 502 U.S. 177–79). HUD argues that release of the Withheld
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Information could lead to discovery of the names and addresses of HCV holders. For this to
constitute an invasion of privacy: (1) the HCV holders must have a privacy interest in controlling
the discovery of their names and addresses; and (2) a causal relationship must exist between the
release of the Withheld Information and the discovery. See id.; Horner, 879 F.2d at 878. The Court
addresses each in turn.
First, the Court considers what privacy interest voucher recipients have in their names and
addresses. The privacy interest protected by Exemption 6 broadly encompasses an individual’s
control of information concerning his person, including control over the dissemination of information
concerning his name and home address. See U.S. Dep’t of Def. v. Fed. Labor Relations Auth., 510 U.S.
487, 500 (1994); Sherman, 244 F.3d at 361; Horner, 879 F.2d at 875 (“In our society, individuals
generally have a large measure of control over the disclosure of their own identities and
whereabouts.”). This is especially true when names and addresses can be combined with other
information such as birth dates or financial information. See True the Vote v. Hosemann, 43 F. Supp.
3d 693, 736 (S.D. Miss. 2014) (“With both a name and birth date, one can obtain information about
an individual’s criminal record, . . . social security number, . . . and, quite possibly, information
concerning an individual’s complete medical and military histories.” (quoting Scottsdale Unified Sch.
Dist. No. 48 v. KPNX Broad. Co., 955 P.2d 534, 539 (Ariz. 1998) (en banc))); Horner, 879 F.2d
at 876 (holding privacy interest more significant when names and addresses are combined with
financial information). Assuming that releasing the information ICP requests would lead to the
discovery of housing voucher recipients’ names and addresses, the release would constitute a
“disclosure of [individuals’] own identities and whereabouts.” See Horner, 879 F.2d at 875. Combined
with the fact that ICP requests birth dates and financial information, Doc. 35, Pl.’s App. 4, FOIA
- 16 -

Request (requesting “Date of birth” and “Total annual income”),12 it is clear that the voucher
recipients have a substantial privacy interest in controlling both the release of the information ICP
requests and the resulting discovery of their names and addresses.13
Second, the Court determines whether a causal relationship exists between the release of the
Withheld Information and the discovery of voucher recipients’ names and addresses. An agency
cannot withhold information simply because it is possible that a threat to a privacy interest exists.
See Rose, 425 U.S. at 381 n.19. “For the Exemption 6 balance to be implicated, there must . . . be a
causal relationship between the disclosure and the threatened invasion of privacy.” Horner, 879 F.2d
at 878. The D.C. Circuit has held that this “causal relationship,” in the context of derivative use,
requires a “substantial probability that disclosure will cause an interference with personal privacy, it
matters not that there may be two or three links in the causal chain.” Id. at 878 (emphasis added).
Importantly, “[t]he concern . . . is not . . . with the number of steps that must be taken to get to the
threatened effect; rather, [it is with] the likelihood that the effect will ever come to pass.” Id.
The Fourth and Tenth Circuits have both relied upon this rule. See Havemann v. Colvin, 537
Fed. App’x 142, 147 (4th Cir. 2013); Forest Guardians, 410 F.3d at 1220. The Fourth Circuit held
that an agency can “withhold data if it demonstrates a likelihood that releasing the information would
connect private records to specific individuals.” Havemann, 537 Fed. App’x at 147 (emphasis added).
In that case, the court found that the Social Security Administration had “thoroughly analyzed and

12

ICP states that it has “dropped its request for any birth date information.” Doc. 34, Pl.’s Br. 9. This,
however, does not change the Court’s calculus as ICP still requests financial information.
13

“[T]he privacy concerns raised by the release of the addresses alone are substantially identical to
those raised by the release of both the names and addresses.” Horner, 879 F.2d at 878.

- 17 -

demonstrated the methods through which the withheld data could lead to the identification of
specific individuals.” Similarly, the Tenth Circuit found a substantial privacy interest was served by
non-disclosure where “[d]isclosure of the specific location of NFIP insured structures could easily lead
to the discovery of an individual’s name and home address.” Forest Guardians, 410 F.3d at 1220
(emphasis added). There, disclosure would easily lead to discovery because the requester had
conceded that the information it sought could be manipulated to derive individual addresses. See id.
Here, HUD has outlined the causal chain of events that would have to occur for releasing
the Withheld Information to lead to discovery of voucher recipients’ names and addresses. First, the
information released would have to include household-level data for households in a geographic area
with ten or fewer voucher recipients. Second, it would have to be released to requesters who
possessed existing knowledge of residents in that particular geographic area. Third, the requesters
would have to combine the released information with their existing knowledge to identify voucher
recipients. But it has not addressed whether there is a likelihood or substantial probability of this
chain of events’s occurrence. See Horner, 879 F.2d at 878. Said differently, HUD has explained how
disclosure could lead to discovery of individual names and addresses, but it has not demonstrated that
it would. See Havemann, 537 Fed. App’x at 147. Also, ICP does not admit that any of the requested
information aside from “Owner name” may be manipulated to derive names and addresses. See
Doc. 35, Pl.’s App. 4, FOIA Request; Doc. 34, Pl.’s Br. 18–19; Forest Guardians, 410 F.3d at 1220.
HUD supports its position with the Declaration of Deena S. Jih, an Attorney Advisor in the
Office of General Counsel, Administrative Law Division of HUD, and with a Vaughn index. Doc. 43,
Def.’s App. 3, Jih Decl. ¶ 1, 68, Vaughn Index. But in both, HUD offers little more than the
conclusory statement that “[r]elease would result in providing household level data for a geographic
- 18 -

area populated with 10 or less households receiving housing assistance, and therefore, lead to
identification of those households . . . and violate their personal privacy.” Id. at 68, Vaughn Index.
This generalized assertion assumes that providing “household level data for a geographic area
populated with 10 or less households receiving housing assistance” will certainly lead to these
households’ identification. Whether this is true, or even likely, is the very issue before the Court. The
Court cannot grant summary judgment based on such conclusory or generalized assertions. See
Cooper Cameron Corp., 280 F.3d at 543 (citing Niagara Mohawk Power Corp., 169 F.3d at 18).14
Also to support its position, HUD references the severe negative results associated with
discovery of voucher recipients’ names and addresses, emphasizing the substantiality of individuals’
privacy interest in this information. HUD argues that voucher recipients can become the target of
bullying, harassment, hatred, marketing, and scamming. See Doc. 42, Def.’s Br. 11. It bases this
assertion on three articles that point out egregious treatment of voucher recipients: Brentin Mock,
How Los Angeles County Furthered Racist ‘Fair-Housing’ Practices, CityLab from The Atlantic (Jul 28,
2015); Loretta Waldman, Bristol Woman’s Story of Harassment, Hartford Courant (November 18,
2002); and Jill Maxwell, Sexual Harassment at Home: Altering the Terms, Conditions, and Privileges of
Rental Housing for Section 8 Recipients, 21 Wis. Women’s L. J. 223 (2006). Doc. 42, Def.’s Br. 11–12
(citing Doc. 43, Def.’s App. 648–98). These articles, however, do nothing more than show the
potential results from discovery of voucher recipients names and addresses. They do not address
14

HUD also argues that “[t]he likelihood that a link would occur between the requested data and
existing community knowledge is supported by the generally accepted methodologies adopted by other federal
agencies for protecting privacy in large data sets when the population of cases is below a certain defined
threshold.” Doc. 52, Def.’s Reply 5. For support, it generally references a Statistical Policy Working Paper for
other federal agencies. Doc. 43, Def.’s App. 511. But It does not specifically explain or demonstrate how the
data sets in this case will likely lead to identification of individuals. HUD’s general comparison of its data
privacy practices to those of other federal agencies does not satisfy its burden of proof.

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information releases under FOIA or the likelihood that individuals’ names and addresses would be
discovered in this case. Simply put: they do not speak to causality, which is essential.
For these reasons, the Court concludes that HUD has not shown the necessary causal
connection for Exemption 6 to govern this case. “The legislative history is clear that Exemption 6
was directed at threats to privacy interests more palpable than mere possibilities.” Rose, 425 U.S. at
381 n.19. HUD has demonstrated that a substantial privacy interest would be served by withholding
non-private information that could lead to the discovery of HCV holders’ names and addresses, but
it has not demonstrated a substantial probability that such a discovery would happen. Thus, it cannot
sustain its burden of proving that the information is exempt from disclosure. See 5 U.S.C.
§ 552(a)(4)(B); see Horner, 879 F.2d at 878 (“[T]here must . . . be a causal relationship between the
disclosure and the threatened invasion of privacy.”).
The Court, however, will not end its analysis here. Given that the “standard at this stage is
not very demanding,” the Court is “willing to engage in the balancing inquiry” by assuming arguendo
that HUD has shown how disclosure of the Withheld Information would lead to discovery of
individual names and addresses. Multi Ag Media LLC, 515 F.3d at 1230. Operating under this
assumption, the Court concludes that a minimal—if only slightly greater than de minimis—privacy
interest exists in non-disclosure of the Withheld Information. Supra note 7; see also Multi Ag Media
LLC, 515 F.3d at 1230 (“Because USDA has not made a showing of how often this may be the case,
we are not persuaded that the privacy interest that may exist is particularly strong.”). And because
“[e]ven a ‘minimal’ privacy interest in . . . an [individual]’s name and home address outweighs a
nonexistent public interest,” Fed. Labor Relations Auth. v. U.S. Dep’t of Def., Army & Air Force Exch.
Serv., Dallas, Tex., 984 F.2d 370, 375 (10th Cir. 1993), the Court now turns to whether disclosure
- 20 -

of the Withheld Information serves a public interest. See Halloran, 874 F.2d at 319.
2.

Public Interest

“The Supreme Court has narrowly defined the ‘public interest’ relevant to [E]xemption 6
balancing as ‘the extent to which disclosure would serve the core purpose of . . . FOIA, which is
contribut[ing] significantly to the public understanding of the operations or activities of the
government.’” Sherman, 244 F.3d at 361 (quoting U.S. Dep’t of Def., 510 U.S. at 495). Information
that informs the public about “an agency’s performance of its statutory duties falls squarely within
[FOIA’s] purpose. That purpose, however, is not fostered by disclosure of information about private
citizens that is accumulated in various governmental files but that reveals little or nothing about an
agency’s own conduct.” U.S. Dep’t of Def., 510 U.S. at 495–96 (quoting U.S. Dep’t of Justice v.
Reporters Comm. for Freedom of Press, 489 U.S. 749, 773 (1989)). The requester’s stated intentions
or purposes are irrelevant; rather, “courts must consider only whether the requested information
sheds light on agency action,” Sherman, 244 F.3d at 362, or whether the “addition of the redacted
identifying information would . . . shed any additional light on the Government’s conduct of its
obligation.” Ray, 502 U.S. at 178 (emphasis added).
i.

The parties’ arguments

ICP argues that “[t]here is a substantial public interest in HUD’s administration of the
voucher program,” including HUD’s compliance with its statutory duties under:
C

42 U.S.C. § 3608(e) (“The Secretary of Housing and Urban Development
shall . . . . administer the programs and activities relating to housing and
urban development in a manner affirmatively to further the policies of this
subchapter.”);

C

42 U.S.C. § 1437f(a) (stating “purpose of aiding low-income families in
obtaining a decent place to live and of promoting economically mixed
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housing”);
C

42 U.S.C. § 1437f(o) (“Voucher program”);

C

24 C.F.R. § 982 (regulations implementing 42 U.S.C. § 1437f(o)); and

C

76 Fed. Reg. 22122 (“Demonstration Project of Small Area Fair Market
Rents in Certain Metropolitan Areas”).

See Doc. 34, Pl.’s Br. 8–10, 12; Doc. 45, Pl.’s Reply 19–20. ICP also argues that “HUD’[s] own
journal of policy development and research has directly stated that the 50058 data on individual
voucher holders is the basis for important research and analysis of the administration of the voucher
program.” Doc. 34, Pl.’s Br. 20. Specifically:
Public housing authorities (PHAs) capture and store a wealth of data about client
demographics and spatial location. In most cases, these data are collected in
administrative databases designed to support program operations and that comply
with various HUD reporting requirements. One such data source, Form HUD-50058,
provides comprehensive secondary, household-level, program participant data. The
50058 data include household-level information for all participants in the public
housing program, HCVP, and Section 8 Moderate Rehabilitation program. In
exhibit 1, we summarize the information available from the 50058 data.
This article outlines a process to transform the 50058 data into a spatially located,
person-period data set using off-the-shelf software and free tools. The resulting data
set enables researchers to conduct a variety of longitudinal, microscale spatial
analyses that they can use to explore administration-and policy-relevant questions about
how the HCVP functions across space and time.
Id. at 20 (emphasis added) (quoting Doc. 35, Pl.’s App. 48–50, Eric Schultheis, Gregory Russ &
Carolina Lucey, Using Administrative Data for Spatial and Longitudinal Analysis of the Housing Choice
Voucher Program, 4 Cityscape 195, 196–97 (2012) [hereinafter Schultheis]).
HUD responds that “Form HUD-50058 data does not directly relate to HUD’s statutory
duties,” and that HUD’s “role is limited in interpreting the statute, implementing regulations, and
enforcing the statute and regulations.” Doc. 42, Def.’s Br. 11. Further, it contends that PHAs
- 22 -

administer the program, and that it has no control. Id. at 12. Because of this, HUD argues that
release of the Withheld Information would reveal nothing about its character and bears only an
attenuated relationship to its conduct. Id. (quoting Hopkins v. HUD, 929 F.2d 81, 88 (2d Cir. 1991)).
It also argues that release of the Withheld Information has very little incremental value. Id. (quoting
Schrecker v. Dep’t of Justice, 349 F.3d 657, 661 (D.C. Cir. 2003)).15 The Court addresses each
argument in turn.
ii.

HUD’s Statutory Duties

HUD’s contention that Form HUD-50058 does not directly relate to its statutory duties is
incorrect.16 First, HUD has a statutory duty to administer the HCV program (HCVP). See 42 U.S.C.
§ 1437f(o); 24 C.F.R. § 982.3. Though PHAs are given broad discretion to implement the program,
they must comply with the low-income housing assistance statute, HUD-issued regulations, and
HUD oversight. 24 C.F.R. § 982.52; see also, e.g., Johnson v. Hous. Auth. Of Jefferson Par., 442 F.3d
356, 357 (5th Cir. 2006). HUD-issued regulations detail the “the program requirements for the
tenant-based housing assistance program.” 24 C.F.R. § 982.2. And HUD oversight includes
instituting programs such as the Small Area Fair Market Rent Program (SAFMR), which it has
implemented in Dallas. See Section 8 Housing Choice Voucher Program—Demonstration Project

15

HUD makes a third argument addressing ICP’s stated intention to use the requested information.
See Doc. 42, Def.’s Br. 11 (“Allegations of Wrongdoing Do Not Constitute a Public Interest.”). Because the
requester’s stated intentions or purpose are irrelevant for considering the public interest in disclosure of
information, the Court will not address this argument. See Sherman, 244 F.3d at 362. ICP’s stated purpose
does not affect the Court’s decision as to whether a public interest exists.
16

In making this argument, HUD relies on Hopkins v. HUD for support. 929 F.2d 81. It is
distinguishable. In Hopkins, the requested information could not be used to directly monitor HUD’s
performance. See id. at 88. First, the information had to be used to contact individual employees who could
then confirm or deny that HUD had violated prevailing wage laws. See id. Here, the requested information
can be used to directly gauge HUD’s administration of the HCV program.

- 23 -

of Small Area Fair Market Rents in Certain Metropolitan Areas, Discussion of Comments, and
Request for Participation, 76 F.R. 22122-01. Additionally, HUD has the authority to “enforce the
annual contribution contracts between PHA’s and HUD, to conduct audits and to cut off funds.
HUD undoubtedly has considerable authority to oversee the operation of the PHA’s.” Wright v. City
of Roanoke Redevelopment & Hous. Auth., 479 U.S. 418, 424 (1987) (internal citations omitted).
Second, HUD has admitted that the HUD-50058 data ICP seeks can be “use[d] to explore
administration-and policy-relevant questions about how the HCVP functions.” Doc. 34, Pl.’s Br. 20
(quoting Doc. 35, Pl.’s App. 48–50, Schultheis 196–97). That is, HUD-50058 contains information
that directly relates to questions about HUD’s administration of the HCVP. Therefore, the Court
concludes that release of this information, including the Withheld Information, would shed light on
HUD’s performance of its statutory duties. See HUD, 929 F.2d at 88.
In consequence, the Court finds that ICP has shown that a public interest exists in
monitoring HUD’s performance of its statutory duty to administer the HCVP, which encompasses
its implementation of oversight measures such as the SAFMR in Dallas. Additionally, the Court finds
that ICP has shown that this public interest is served by disclosure of the Withheld Information.
iii.

Incremental Value of Disclosing the Withheld Information

The Court rejects HUD’s contention that disclosing the Withheld Information has very little
incremental value. HUD correctly states that the Court “should focus not on the general public
interest in the subject matter of the FOIA request, but rather on the incremental value of the specific
[Withheld Information].” Doc. 42, Def.’s Br. 12 (quoting Schrecker, 349 F.3d at 661).17 But HUD

17

ICP argues that HUD’s reliance on Schrecker is misplaced because it is an Exemption 7 case.
Doc. 45, Pl.’s Reply 20. However, the rule from Schrecker is derived from Ray, which is binding on this Court.

- 24 -

incorrectly takes the position that “[w]ith the current data that HUD has released, ICP can conduct
the same calculations that ICP provides in its brief using the data from HUD’s previous releases [the
Calculations].” Id. It also incorrectly asserts that ICP could perform the Calculations using tract-level
data HUD already released, and that the results of the Calculations using tract-level data, suppressed
data, and unsuppressed data are essentially equivalent. Id. at 14–16.
First, ICP cannot perform the Calculations using tract-level data. Though HUD maintains
that ICP could perform the Calculations using already-released-tract-level data, it admits that: “ICP’s
calculation uses zip code poverty rates rather than census tract poverty rates.” Doc. 42, Def.’s Br. 13.
ICP does this because the SAFMR is implemented using zip codes, not census tracts. Doc. 34, Pl.’s
Br. 13. Thus, as ICP argues, it cannot effectively use the records HUD released because HUD deleted
zip code information, and analyzing the SAFMR using census tract information would yield
inaccurate results. Id.; see also Doc. 35-1, Pl.’s App. 205–06, ICP Comment.
Second, performing the Calculations using tract-level data, suppressed data, and
unsuppressed data does not yield essentially equivalent results. Though HUD asserts that the results
of Calculations using tract-level data, suppressed data, and unsuppressed data are essentially
equivalent, it provides a chart that shows that they are sometimes materially different. See id. at
15–16 (showing disparity of several percent between calculations using different base information).
So release of the Withheld Information would theoretically provide more accurate results.
Accordingly, the Court concludes that release of the Withheld Information would
“shed . . . additional light on the government’s conduct of its obligation.” Ray, 502 U.S. at 178.

502 U.S. at 178 (“The addition of the redacted identifying information would not shed any additional light
on the Government's conduct of its obligation.”) Accordingly, the Court will apply this rule.

- 25 -

3.

Balancing the Interests

Having assumed a substantial privacy interest served by withholding the Withheld
Information, and having found a public interest served by its disclosure, the Court now balances “the
interests for and against disclosure.” Halloran, 874 F.2d at 319. In doing so, the Court remains
mindful of FOIA’s “strong presumption in favor of disclosure.” Ray, 502 U.S. at 173. “‘[U]nless the
invasion of privacy is “clearly unwarranted,” the public interest in disclosure must prevail,’ and the
agency may not withhold the files under Exemption 6.” Multi Ag Media LLC, 515 F.3d at 1232
(quoting Ray, 502 U.S. at 177)).
i.

The parties’ arguments

ICP argues that “[t]he public has a particular and significant interest in the information [it]
seeks. There is a special need for public scrutiny of programs distributing extensive amounts of public
funds in the form of subsidies and other financial benefits.” Doc. 34, Pl.’s Br. 20 (citing Brock v. Pierce
County, 476 U.S. 253, 2623 (1986)). It also makes several arguments the Court has already
addressed: “HUD’s own journal . . . has directly stated that the 50058 data . . . is the basis for . . .
analysis of the administration of the voucher program,” id. at 20; “[t]here is no showing of the
likelihood of harassment . . . from the disclosure.” Id. at 23.
HUD argues that multiple alternative or less intrusive means of obtaining the Withheld
Information existed. Specifically, “HUD offered to conduct any desired analysis for ICP using the
unsuppressed household-level data,” and it “offered and highly encouraged ICP to submit to HUD
an application for a Data License Agreement that would allow the confidential release of all data.”
Doc. 42, Def.’s Br. 17; see also Doc. 43, Def.’s App. 54–58, Negot. Emails. ICP refused both offers.
These arguments, along with arguments made throughout the parties’ briefing, identify the
- 26 -

relevant factors that affect the Court’s balancing analysis in this case: (1) the risk that disclosure will
lead to mistreatment, see id. at 176–77; (2) whether the public interest has been adequately served
by release of redacted records, see id. at 178; (3) the availability of alternative sources or means of
obtaining the information, see U.S. Dep’t of Def. Dep’t of Military Affairs v. Fed. Labor Relations Auth.,
964 F.2d 26, 28 (D.C. Cir. 1992) [hereinafter DOD]; and (4) the extent to which the agency is
distributing, spending, or managing public funds. Multi Ag Media LLC, 515 F.3d at 1232 (collecting
cases). The Court considers each in turn.
ii.

Factor analysis

First, the Court considers the risk that disclosure of the Withheld Information will lead to
mistreatment of HCV holders. See Ray, 502 U.S. at 176–77. HUD states that disclosure could lead
to discovery of their names and addresses, exposing them to possible “harassment, targeting, hatred,
marketing, and scamming.” Doc. 42, Def.’s Br. 7–8. But ICP counters that HUD has not shown any
likelihood of this happening. Doc. 34, Pl.’s Br. 23. For the reasons stated above, ICP is correct. Still,
the Court recognizes that a “danger of mistreatment,” even an unlikely danger, increases the weight
of a privacy interest served by withholding the Withheld Information. See Ray, 502 U.S. at 176–77.
Thus, this factor weighs slightly in favor of non-disclosure.
Second, the Court considers whether the public interest has been adequately served by
release of the redacted records. See id. at 178. FOIA clearly authorizes “[r]edaction as a means of
protecting a private individual’s interests . . . , so long as it is utilized only to the extent necessary to
prevent a clearly unwarranted invasion of personal privacy.” Avondale Indus., Inc., 90 F.3d at 959.
Here, ICP stipulated to redaction under the Census Tract Rule of 11, but HUD redacted information
in accordance with the Geographic Unit Rule of 11. Instead of redacting information based only on
- 27 -

census tracts or aggregated sets of census tracts, HUD did so based on census tract/zip code/PHA
combinations. Importantly, the redacted records HUD released did not include information that ICP
needs to analyze the SAFMR’s efficacy in Dallas. Thus, the public interest here has not been fully
served by the redacted records’ release. Whether their release has adequately served the public
interest, however, is unclear. HUD has attempted to show that ICP could adequately perform the
Calculations using the redacted records, but HUD’s attempt is “not supported by any evidence in the
summary judgment record . . . . Not even the Jih declaration.”18 Doc. 45, Pl.’s Reply 20. Accordingly,
the Court concludes that this factor is neutral.
Third, the Court considers the availability of alternative sources or means of obtaining the
Withheld Information. See DOD, 964 F.2d at 28. The two relevant alternatives here are HUD’s offer
to conduct any desired analysis for ICP using the unsuppressed household-level data and HUD’s offer
to consider ICP for a Data License Agreement. HUD argues the availability of these alternatives
weighs heavily in favor of non-disclosure. The Court addresses each in turn.
HUD’s offer to conduct analysis for ICP essentially is an offer to provide a redacted summary
of the information ICP requested.19 See Doc. 43, Def.’s App. 56–59. “HUD would aggregate the
[requested HUD-50058] household-level data,” but obscure identifying details as defined by the
Geographic Unit Rule of 11. Id. (“The agency is prepared to offer population characteristics collected
in the 50058 or 50059 for any geographic unit in which there are 11 or more households.” (emphasis
18

This rehashes the incremental-value argument addressed in Part III.B.2.iii; therefore, HUD’s
attempt also fails for the reasons stated there.
19

ICP disagrees that HUD offered to conduct analysis on its behalf. Doc. 48, Pl.’s Resp. Br. 14 (“The
record shows no offer by HUD to conduct the analysis for ICP rather than produce the records.”). However,
the record reflects that HUD did make this offer. Doc. 43, Def.’s App. 58, Negot. Emails (stating that HUD
is “willing to provide whatever analysis [ICP is] interested in”). So the Court rejects this argument.

- 28 -

added)). This approach does not adequately serve the public interest. FOIA directs agencies to
disclose their records upon request, 5 U.S.C. § 552(a)(3), though an agency may delete identifying
details when it discloses copies of records, so long as the details to be deleted are “reasonably
segregable.” Id. §§ 552(a)(2), (b); see Avondale Indus., Inc., 90 F.3d at 959. What HUD proposes
would not be a disclosure of records, but an aggregation of the information from the records.20 Also,
any information withheld from HUD’s proposed summary would not be reasonably segregable
because the analysis, by its nature, is not a segregable record. As a result, the Court concludes that
the availability of this alternative does not weigh in favor of non-disclosure.
HUD also offered to consider ICP for a Data License Agreement, which HUD issues to
research organizations “for the explicit purpose of conducting innovative research projects that
inform HUD’s policies and programs.” Doc. 42, Def.’s Br. 18. Under the agreement, ICP would have
full access to the suppressed information. ICP refused this offer because the Data License Agreement
would restrict the use of the information in several ways and give HUD reviewing authority over any
article, report, or statistical summary ICP generated. Doc. 46, Pl.’s Reply App. 2–3. HUD states that
its “policy . . . is not to withhold approval or release of any report because of its content.” Doc. 52,
Def.’s Reply 9. But implicit in this statement is recognition that HUD has the authority to do so. See
id. While ICP could have obtained the Withheld Information through a Data License Agreement,
the agreement would heavily restrict the use of the information. FOIA does not. This key difference
decreases the effect this available alternative has on the weight of the privacy interest served by nondisclosure. For that reason, the Court concludes that the availability of this alternative weighs in

20

In the past, redacted summaries of information have been allowed, but those summaries were the
records themselves. See, e.g., Ray, 502 U.S. at 168–69; Rose, 425 U.S. at 380.

- 29 -

favor of non-disclosure, but only slightly.
Fourth, the Court considers the extent to which HUD is distributing, spending, or managing
public funds. See Multi Ag Media LLC, 515 F.3d at 1232 (“[T]here is a special need for public
scrutiny of agency action that distributes extensive amounts of public funds in the form of
subsidies.”). Here, HUD has the ability to control funding to PHAs and the HCVP. “HUD and the
local Dallas area voucher program administrators spend approximately $220,000,000 a year in rent
subsidies to landlords and administrative fees to public agencies for the vouchers covered by the
records requested.” Doc. 34, Pl.’s Br. 10 (citing Doc. 35, Pl.’s App. 61). There is a significant public
interest in data such as the Withheld Information that would allow the public to more easily monitor
HUD’s distribution and management of these funds. Thus, this factor weighs heavily in favor of the
public’s interest in disclosure.
C.

Conclusion
In sum, the Court finds that the relevant factors in this case, weighed together, tip the scales

in favor of the public’s interest in disclosure. The Court recognizes HUD’s serious and legitimate
privacy concerns over the release of the Withheld Information that might allow requesters to
discover HCV holders’ names and addresses; however, HUD has not shown a sufficient causal nexus
between such release and discovery. Even if it had, the public’s interest in more easily monitoring
HUD’s administration of the HCVP—especially its distribution and management of more than
$200,000,000 in subsidies—along with FOIA’s strong presumption in favor of disclosure, lead to the
conclusion that the public interest in disclosure outweighs the HCV holders’ privacy interest.
Accordingly, release of the Withheld Information would not “constitute a clearly unwarranted
invasion of personal privacy,” 5 U.S.C. § 552(b)(6), meaning HUD cannot rely on Exemption 6 to
- 30 -

withhold the requested HUD-50058 information. See Multi Ag Media LLC, 515 F.3d at 1232
(quoting Ray, 502 U.S. at 177)).

IV.
CONCLUSION
For these reasons, ICP’s Motion for Summary Judgment (Doc. 33) is GRANTED in part and
DENIED in part, and HUD’s Motion for Summary Judgment (Doc. 41) is DENIED.
ICP has requested the Court grant the following relief: (1) an order requiring HUD to
produce the agency records and enjoining it from withholding them; (2) an order referring the matter
to the Merit Systems Protection Board for investigation; (3) an order prohibiting HUD from relying
on Exemption 6 to deny future FOIA requests for the same records ordered produced in this case;
and (4) attorneys’ fees and costs.
The Court, pursuant to 5 U.S.C. § 552(a)(4)(B), ORDERS HUD to produce and ENJOINS
it from withholding the records ICP sought in Part I and Part II of its FOIA request. HUD may
redact the information in accordance with the Census Tract Rule of 11, as stipulated to by ICP. If
HUD has already satisfied or partially satisfied ICP’s request, it need only provide the supplemental
information to completely satisfy it.
Further, ICP may submit supplemental briefing on whether the Court should refer this matter
to the Merit Systems Protection Board for investigation. Any such submission should occur within
thirty (30) days of the date of this order.
The Court DENIES ICP’s request that the Court issue an order prohibiting HUD from
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relying on Exemption 6 to deny future FOIA requests for the same records ordered produced in this
case. ICP prevails on its Motion for Summary Judgment because HUD has failed to sustain its burden
of proof, not because ICP has convinced the Court that HUD’s derivative-use theory lacks merit.
The data suppression method HUD applies is “based on a well-established concept practiced by many
federal agencies handling large data sets. Due to the fact that is not feasible to analyze and evaluate
each piece of data individually, agencies have implemented conceptual rules to avoid an inadvertent
disclosure of private information.” Doc. 42, Def.’s Br. 4. In the future, HUD may be able to
substantiate this practice and show that there is a substantial probability that release of general Form
HUD-50058 data would lead to the identification of voucher recipient households, resulting in a
clearly unwarranted invasion of privacy. Thus, the Court finds that ruling on this issue at this time
would be premature.
ICP may submit an application for attorneys’ fees and costs. Any such submission should
occur within sixty (60) days of the date of this order.

SO ORDERED.
SIGNED: September 13, 2016.

_________________________________
JANE J. BOYLE
UNITED STATES DISTRICT JUDGE

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