By Frank G. Runyeon

Law360, New York (May 15, 2020, 6:02 PM EDT) -- A Manhattan federal judge on Friday questioned whether a federal agency had the right to effectively halt processing Freedom of Information Act requests for weeks or months as he mulled ordering the government back into action.

U.S. District Judge Lewis J. Liman told counsel for the U.S. Department of Housing and Urban Development he doubted that the government had the authority to simply stop handling FOIA requests while the agency rolls over its document review systems this summer from mid-June to mid-July, noting the government's responsibility to obey the law.

"So, my question to you," Judge Liman said, "is whether that's even lawful for an agency that has legal responsibilities under one of the most important statutes to our democracy to just simply shut down for a month — which, parenthetically, is in the middle of the election season."

"Do you know of any authority that permits the agency to do that?" Judge Liman asked.

"Your honor, I don't know," government counsel Kirti Reddy said, flatly.

Counsel for the public defenders seeking the HUD documents were clearly pleased.

"I think you've put your finger exactly on the issue we should brief for you," said Jeffrey L. Kessler of Winston & Strawn LLP, with a smile in his voice.

The judge's challenge came during a teleconference in a lawsuit seeking records as part of a challenge by public defenders at The Legal Aid Society who decry a "devastating" new rule that would cut rental assistance to some immigrant families.

Judge Liman asked for briefings by Wednesday on whether he can order HUD to produce documents by a certain date, including documents that HUD is submitting to the Trump administration for "the White House's review with respect to executive privilege," and whether Legal Aid would have to loop the White House into the lawsuit to accomplish this.

Such an order would not circumvent executive privilege, the judge was careful to note, but it would put pressure on HUD and the White House to process the FOIA request faster.

Legal Aid is generally seeking thousands of documents in two broad categories — a trove of 10,000 communiques between HUD and the White House and 17,000 internal housing agency documents — as part of its push to strike down a rule proposed in May 2019 "that poses an imminent threat to the integrity of the family unit."

The new rule would affect 108,000 people and break up families by effectively evicting one of the parents, Legal Aid argues.

"Within New York City alone, the proposed rule threatens to render 11,400 individuals, including approximately 5,000 children, homeless," the public defenders said, adding it "disproportionately threatens the housing assistance of people of color, and especially individuals who are Latinx."

Moreover, the rule's verification requirements could also displace poor American citizens who may not have the documents to prove they are U.S. citizens and may be unable to get them in time to keep their housing subsidies, the public defenders claim. They say 12% of Americans who make less than $12,000 a year lack proof of citizenship.

In April, HUD confirmed that it was pushing back the implementation date for the rule from May until at least July or perhaps September.

Legal Aid seeks a court order demanding HUD hand over the documents, waive any FOIA fees and award attorney fees to the pro bono organization.

On Friday, the organization expressed surprise that it was facing pushback on its bid to have the document processing fees waived for the country's oldest and largest legal services provider for the poor, arguing that it is so obvious Legal Aid qualifies for a FOIA fee waiver that it was blindsided by the government's demand for money and finds the move suspect.

"We're concerned this is really being devised, if you will, your honor, as a delay tactic," Kessler said.

HUD denied that allegation during the hearing and told the court that Legal Aid's FOIA request was at the top of the pile, but that there was a bottleneck with its document review technology. The agency said that the technology could not handle more than six attorneys working on the review to clear 8,000 documents at once and that trying to force through another 2,000 documents "will result in the system crashing and no documents being able to go out at all."

The court was skeptical of that claim as well and asked for more evidence from the agency in the form of affidavits swearing to that fact.

HUD will have until May 27 to say whether it will grant Legal Aid's fee waiver. If the government determines that the organization should pay for the documents, Judge Liman laid out a plan for Legal Aid to immediately challenge that decision within days.

Legal Aid is represented by Jeffrey L. Kessler, Jeffrey J. Amato, Kerry Donovan and Jay Wexler of Winston & Strawn LLP.

The government is represented by Kirti Vaidya Reddy of the U.S. Attorney's Office for the Southern District of New York.

The case is The Legal Aid Society v. U.S. Department of Housing and Urban Development, case number 1:20-cv-02283, in the U.S. District Court for the Southern District of New York.

--Editing by Bruce Goldman.

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