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Nossaman Llp v. United States Department of Homeland Security

February 9, 2011

NOSSAMAN LLP,
PLAINTIFF,
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY,
DEFENDANT.



The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

6/30/11

SCHEDULING CONFERENCE ORDER

Cross-Motions for Summary Judgment Filing Deadline:

Oppositions Thereto Filing

Deadline: 7/22/11

Replies Thereto Filing

Deadline: 8/5/11

for Summary Judgment: Hearing on Cross-Motions 9/12/11 10:00 Ctrm.

I. Date of Scheduling Conference. February 9, 2011.

III. Summary of Pleadings.

1. On March 16, 2009, Plaintiff sent a Freedom of Information Act ("FOIA") request ("FOIA Request") to Defendant Department of Homeland Security Federal Emergency Management Agency ("FEMA"). The FOIA Request seeks specific public records relating to FEMA's administration of the National Flood Insurance Program ("NFIP") in the Counties of San Joaquin, Yolo, Sacramento, Solano, and Contra Costa and the cities specified in each of those counties. Complaint, ECF No. 6, Ex. 1. After nearly 8 months of repeated requests for a response to the FOIA Request (id., Exs. 3-4), Plaintiff filed a formal administrative appeal of the constructive denial of its FOIA Request on November 10, 2009 ("Formal Appeal"). Id., Ex. 5. After nearly 10 months of repeated requests for a response to its Formal Appeal (id. Ex. 7), and after nearly 18 months without any response to its FOIA Request, on September 9, 2010, Plaintiff filed the Complaint in this litigation.

2. In its Complaint, Plaintiff contends, inter alia, that Defendant failed to produce responsive records in response to the FOIA Request, that Defendant failed to produce a response to the FOIA Request within the time permitted by law, that Defendant failed to conduct an adequate search for agency records, that Defendant unlawfully withheld responsive agency records, and that Defendant failed to take final action in response to Plaintiff's November 10, 2009 Formal Appeal within the time permitted by law. Plaintiff prays for declarations of these violations, an order to produce all responsive records, and attorneys' fees and costs.

3. Defendant has searched its files for responsive records and has found about 200 pages. In October 2010 about half were released, with individuals' names redacted to protect personal privacy under FOIA Exemption 6, 5 U.S.C. § 552(b)(6), and the remainder are being processed for release.

4. Plaintiff has lately contended that records generated or maintained by Insurance Services Office Inc. of Central Point, Oregon, are agency records whether or not the agency has ever seen them. Defendant is investigating to arrive at a factual and legal determination on this new contention.

IV. Orders Re Amendments To Pleadings.

1. On October 19, 2010, the due date for the Defendant's first responsive pleading in this litigation, FEMA emailed Plaintiff a letter styled as FEMA's "final response" to the March 16, 2009 FOIA Request. Included with the letter were 7 files containing various responsive agency records, some of which were redacted, in part, under FOIA Exemption 6, 5 U.S.C. § 552(b)(6) (exempting from disclosure "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy"). In the course of multiple telephonic early meetings of counsel beginning on October 27, 2010 to the present, counsel for the Defendant has informed Plaintiff's counsel that additional agency records responsive to the FOIA Request have been located, and are being reviewed and/or redacted pursuant to one or more of the exemptions to production under FOIA, 5 U.S.C. § 552(b).

2. In addition, Plaintiff takes the position that records produced and maintained by Defendant's private contractor on Defendant's behalf in the discharge of Defendant's statutory and regulatory duties under the National Flood Insurance Act and the NFIP in the counties and cities included in the FOIA Request are "agency records" under FOIA; therefore, FEMA must also conduct a reasonable search of its contractor's records. Defendant is considering Plaintiff's position, but may reach the conclusion that records that are not in FEMA Region 9's physical possession are not "agency records," and no such search is required under the FOIA.

3. In light of the above developments that occurred after Plaintiff filed its Complaint on September 9, 2010, Plaintiff may request leave of this Court to amend the Complaint.

V. Factual Summary.

A. Admitted Facts Which Are Deemed Proven Without Further Proceedings.

1. The subject FOIA Request is a letter dated March 16, 2009 from Audrey M. Huang of Nossaman LLP transmitted via email to Kevin J. Clark, Freedom of Information Contact, Federal Emergency Management Agency Region 9.

2. The subject Formal Appeal was initiated by way of a letter dated November 10, 2009 from Paul S. Weiland, Nossaman LLP, to the Associate General Counsel (General Law) of the Department of Homeland Security Federal Emergency Management Agency.

3. As of the date of filing of the Complaint on September 9, 2010, FEMA had not responded to Plaintiff's FOIA Request or its Formal Appeal.

4. On October 19, 2010, Defendant sent Plaintiff a letter styled as its "final response" to the FOIA Request, and produced some agency records responsive to the request.

5. In the October 19, 2010 production of records, Defendant redacted names of public officials under Exemption 6, 5 U.S.C. ยง 552(b)(6), asserting that the names are "personnel and medical files and similar files the disclosure of which would ...


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