Case 1:17-cv-00091-KBJ Document 1 Filed 01/13/17 Page 1 of 15

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA
NATIONAL PUBLIC RADIO, INC.,
1111 North Capitol Street NE
Washington, DC 20002, and
ROBERT BENINCASA,
4405 Mariner Lane
Fairfax, VA 22033,

Case No. 17-cv-91

Plaintiffs,
COMPLAINT FOR
DECLARATORY AND
INJUNCTIVE RELIEF

v.
FEDERAL EMERGENCY
MANAGEMENT AGENCY,
500 C Street SW
Washington, DC 20024, and

Freedom of Information Act,

5 U.S.C. 552

UNITED STATES DEPARTMENT OF

HOMELAND SECURITY,
245 Murray Lane SW
Washington, DC 20528,
Defendants.
INTRODUCTION
1.

Plaintiff National Public Radio, Inc., (NPR) is a non-profit multimedia

organization that creates and distributes news, information, and other programming to a
nationwide network of independent radio stations. In this suit under the Freedom of Information
Act (FOIA) against the Federal Emergency Management Agency (FEMA) and the U.S.
Department of Homeland Security (DHS), NPR seeks, for itself and the public it serves, basic
information about how FEMA runs a nationwide, multi-million-dollar disaster-relief program.
2.

Under the federal Hazard Mitigation Grant Program (HMG Program or

Program), FEMA gives grants to state, tribal, and local governments for hazard-mitigation

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measures after major disasters. Those measures include acquiring eligible real property at risk of
future disaster-related damage. FEMA has spent hundreds of millions of dollars under the
Program toward acquiring real property. By statute, such a purchase should lead to restrictions
both on the propertys future use and on its eligibility for future federal aid. To evaluate how
well FEMA has carried out the Programs goals, spent those millions, and ensured compliance
with those ongoing obligations, it is necessary to know the properties and sellers at issue.
3.

Seeking that information, NPR journalist Robert Benincasa (also a plaintiff)

requested, under FOIA, the addresses of the properties purchased with Program funds, their
Geographic Information System (GIS) coordinates, and the names of the sellers. FEMA
maintains this information in an electronic database. NPR requested this information to
understand, and then share with the public, how FEMA operates this aspect of its HMG Program.
4.

FEMA denied the request in relevant part, asserting that the addresses, GIS

coordinates, and seller names are all exempt from disclosure under FOIA Exemption 6, which
protects 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).
5.

Exemption 6 does not apply. Any invasion of personal privacy would be, at most,

de minimis, given that real-property salesincluding addresses and sellers namesare part of
the internet-searchable public record and that participating in the voluntary Program is hardly
cause for embarrassment or harassment. Moreover, any such invasion would not be clearly
unwarranted, given the publics compelling need to know how FEMA runs the HMG Program.
6.

Plaintiffs seek to compel disclosure of the information that FEMA has withheld in

violation of FOIA, and thereby vindicate the publics right to know what their Government is
up to. NARA v. Favish, 541 U.S. 157, 171 (2004) (internal quotations and citations omitted).

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JURISDICTION AND VENUE

7.

This Court has subject matter jurisdiction under 5 U.S.C. 552(a)(4)(B) and

28 U.S.C. 1331.
8.

Venue lies in this district under 5 U.S.C. 552(a)(4)(B) and 28 U.S.C. 1391(e).
PARTIES

9.

Plaintiff NPR is a non-profit multimedia organization and the leading provider of

non-commercial news, information, and entertainment programming to the American public.

NPRs fact-based, independent journalism helps the public stay on top of breaking news, follow
the most critical stories of the day, and track complex issues over the long term. NPR achieves
those goals through traditional radio programming as well as its significant and growing
presence in digital mediaincluding podcasts, mobile applications, and social media. NPRs
programming currently airs on 1,077 public radio stations across the United States, reaching a
weekly audience of more than 28.8 million people, and NPRs digital properties receive more
than 14 million weekly unique visits.
10.

NPR has a demonstrated commitment to government transparency. For example,

NPR journalists collected and analyzed government records about World War II-era chemicalweapons testing to show, for the first time, that the U.S. Army conducted mustard-gas tests that
focused on race. NPR journalists also analyzed government data to reveal how the Mine Safety
and Health Administration failed to collect millions of dollars in safety fines from coal-mine
operators, even as those operators continued to violate safety rules; that story prompted a federal
audit of the agency. Most recently, NPR journalists, after sifting through police records, state
and federal court records, and documents obtained from the Federal Bureau of Prisons, identified
a prison in central Pennsylvania with a rate of inmate-on-inmate violence that is six times the
national average.

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11.

Plaintiff Robert Benincasa is a computer-assisted-reporting Producer in NPRs

Investigations Unit, a group that undertakes both traditional journalistic fact gathering and data
analysis. He reports on NPR Investigations stories, analyzes data for investigations, and
develops data visualizations and interactive applications for NPR.org.
12.

Defendant FEMA is a component of Defendant DHS and is responsible for

federal disaster-preparedness and response efforts. Both FEMA and DHS are agenc[ies]
within the meaning of 5 U.S.C. 552(f)(1). FEMA and DHS have possession and control over
the records NPR seeks and are responsible for fulfilling NPRs FOIA request.
STATUTORY FRAMEWORK
13.

The basic purpose of FOIA is to ensure an informed citizenry, vital to the

functioning of a democratic society, needed to check against corruption and to hold the
governors accountable to the governed. NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214,
242 (1978).
14.

FOIA therefore requires federal agencies to release requested records to the public

unless an enumerated statutory exemption applies. See 5 U.S.C. 552(a)(3). There are nine
such exemptions, 5 U.S.C. 552(b)(1)-(b)(9), which are explicitly made exclusive, Milner v.
Dept of Navy, 562 U.S. 562, 565 (2011) (internal quotation marks and citations omitted). The
Supreme Court has often noted the Acts goal of broad disclosure and insisted that the
exemptions be given a narrow compass. Id. at 571.
15.

If an agency claims a statutory exemption, it must provide any reasonably

segregable, non-exempt information to the requester, specify the amount of information withheld,
and identify the exemption under which the withholding is made. See 5 U.S.C. 552(b).
Moreover, FOIAs strong presumption in favor of disclosure places the burden on the agency to

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justify the withholding of any requested documents. U.S. Dept of State v. Ray, 502 U.S. 164,
173 (1991).
16.

Relevant here, Exemption 6 renders FOIA inapplicable to 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). (By contrast, Exemption 7(C) exempts information
compiled for law-enforcement purposes merely if it could reasonably be expected to constitute
an unwarranted invasion of personal privacy. Id. 552(b)(7)(C).)
17.

Exemption 6 does not apply where no significant privacy interest is implicated.

Natl Assn of Retired Fed. Emps. (NARFE) v. Horner, 879 F.2d 873, 874 (D.C. Cir. 1989). And
even if substantial privacy interests are implicated, Exemption 6 does not prohibit disclosure
unless such interests clearly outweigh the public interest in opening agency action to the light
of public scrutiny. News-Press v. U.S. Dept Homeland Sec., 489 F.3d 1173, 1205 (11th Cir.
2007); see also, e.g., U.S. Dept of Justice v. Reporters Comm. for Freedom of The Press, 489
U.S. 749, 762, 766, 772 (1989). Thus, under Exemption 6, FOIAs presumption favoring
disclosure is at its zenith, and the balance is tilted emphatically in favor of disclosure. Natl
Assn of Home Builders v. Norton, 309 F.3d 26, 37 (D.C. Cir. 2002), and Stern v. Fed. Bureau of
Investigation, 737 F.2d 84, 91 (D.C. Cir. 1984), respectively.
18.

A FOIA requester who has completed the administrative appeal process has

exhausted administrative remedies. See Oglesby v. U.S. Dep't of the Army, 920 F.2d 57, 61
(D.C. Cir. 1990).
19.

District courts have jurisdiction to enjoin [an] agency from withholding agency

records and to order the production of any agency records improperly withheld from the
complainant. 5 U.S.C. 552(a)(4)(B).

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FACTUAL ALLEGATIONS
A.
20.

The HMG Program

Congress established the HMG Program through the Robert T. Stafford Disaster

Relief and Emergency Assistance Act, Pub. L. No. 100-707 (1988), codified in relevant part at
42 U.S.C. 5170c. The Program is to fund measures that are cost-effective and substantially
reduce the risk of future damage, hardship, loss, or suffering in any area affected by a major
disaster. Id. 5170c(a); see also https://www.fema.gov/hazard-mitigation-grant-program
(The purpose of the HMGP program is to help communities implement hazard mitigation
measures following a Presidential major disaster declaration.). FEMA has, by regulation,
specified various requirements for receiving assistance through the HMG Program. See 44
C.F.R. 206.430-.440; id. 80.1-.21.
21.

FEMA contributes HMG Program funds to the purchasing of flood-prone

properties through voluntary sales. See 42 U.S.C. 5170c(b)(1); see also

https://www.fema.gov/hazard-mitigation-grant-program (Funds may be used to . . . purchase
property that has been subjected to, or is in danger of, repetitive damage.); 44 C.F.R. 80.11(a)
(voluntariness requirement). The amount paid to property owners for HMG Program property
purchases may be either the propertys current market value or its market value before the
relevant disaster. See 44 C.F.R. 80.17(c)(1). The pre-disaster value, however, is available only
for a seller who (1) owned the property at the time of the disaster and (2) is a National of the
United States or [a] qualified alien. Id. 80.17(c)(4).
22.

Congress has specified that purchases of property with HMG Program funds may

be effected only after FEMA and an applicant for assistance have entered into an agreement that
includes two ongoing obligations. First, the property must thereafter be dedicated and
maintained in perpetuity for a use that is compatible with open space, recreational, or wetlands

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management practices, which generally includes not building any new structure. 42 U.S.C.
5170c(b)(2)(B)(i)&(ii). Second, recipients of such HMG Program funds may not seek or
receive future federal disaster assistance, from any Federal source, with respect to that
property. Id. 5170c(b)(2)(B)(iii). Notice of these restrictions must be recorded with the
propertys deed. 44 C.F.R. 80.17(e).
23.

According to publicly available data reaching back to 2000, approximately $750

million has been spent acquiring property through the HMG Program. See
http://www.fema.gov/media-library/assets/documents/85455. As much as 75% of this amount
was spent by FEMA from federal funds. See, e.g., 42 U.S.C. 5170c(a).
24.

FEMAs website includes an electronic dataset that contains some information

about the properties purchased through the Program. But that dataset is incomplete. With
respect to the location of each purchased property, FEMA has disclosed only the State, city, and
ZIP code. And it has disclosed no information on the sellers of the properties.
25.

Without knowing the precise location of the properties and the identities of the

sellers, the public cannot evaluate, among other things, whether the properties were eligible for
purchase through the Program in accordance with 5170c and applicable regulations; whether
any government officials have engaged in improper self-dealing; whether the sellers participated
voluntarily; whether the sellers received fair market value (or more, or less); whether sellers who
received pre-disaster market value were entitled to do so; whether the properties subsequent
owners have been using them consistent with the applicable land-use restrictions; and whether
FEMA, other agencies, and funds recipients have complied with the restrictions on future federal
disaster assistance.

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B.
26.

The FOIA Request

On September 9, 2014, Mr. Benincasa submitted a FOIA request to FEMA

seeking, among other things, access to and copies of electronic database tables containing the
data in the possession and/or control of FEMA in association with property acquisitions under
the [HMG Program] or similar program(s). Exh. A at 1.
27.

Mr. Benincasa sought this information on NPRs behalf in connection with a

broader investigation of the Program, which yielded some surprising initial results about
FEMAs use of funds for property acquisition. See, e.g., Franklyn Cater & Robert Benincasa,
FEMA Is Buying Out Flood-Prone Homes, But Not Where You Might Expect, NPR (Oct. 20,
2014), http://www.npr.org/sections/thetwo-way/2014/10/20/357611987/map-femas-buying-outflood-prone-homes-but-not-where-you-might-expect (pointing out, among other things, that a
surprisingly large portion of Program land purchases have occurred in inland States).
28.

In his request letter, Benincasa noted that FEMA ha[d] released some fields from

this dataset through its website, but emphasized that the dataset as released is incomplete.
Exh. A at 1. Specifically, he explained, it lacks basic public information about the property
acquisitions, such as the address of the properties acquired, the sellers names, . . . and the GIS
coordinates of the properties. Id. He requested a complete version of the dataset, including the
aforementioned information fields. See id.
29.

The request letter emphasized, moreover, that Benincasa made the request as a

journalist for NPR and that the information he requested would be used by [NPR] and would
likely contribute significantly to public understanding of the operations or activities of the
government. Id.

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C.
30.

Exhaustion of Administrative Remedies

Eleven months later, FEMA denied NPRs request in relevant part. The denial

letter asserted that the addresses, the sellers names, and the GIS coordinates [were] being
withheld pursuant to Title 5 U.S.C. 552(b)(6). Exh. B at 1. The letter provided a single
sentence of explanation: The privacy interests of the individuals in the records, it asserted,
outweigh any minimal public interest in disclosure of the information. Id. at 2.
31.

On September 21, 2015, NPR, through counsel, filed a timely administrative

appeal letter, in which it detailed why Exemption 6 does not apply. See Exh. C. In particular,
NPR pointed out that the requested information does not implicate privacy interests given that
real-estate transaction records are already public records in every jurisdiction and nationally,
and are electronically searchable. Id. at 4. In addition, NPR emphasized that any minimal
privacy interest would be dwarfed by the public interest in access to information necessary to
enable effective scrutiny of FEMAs administration of the HMG Program. Id. at 5.
32.

Two months later, FEMA denied NPRs administrative appeal. See Exh. D. With

respect to FOIA, FEMA again relied exclusively on Exemption 6, asserting that residential
addresses are exempt from disclosure and lists of names and addresses should be protected.
Id. at 1-2.
33.

The denial letter also invoked the Privacy Act, 5 U.S.C. 552a, asserting that it

bars disclosure of the names and addresses of property owners. Exh. D at 2. FEMA did not
mention the Privacy Acts provisos that an agency may not rely on any exemption in this
section to withhold from an individual any record which is otherwise accessible to such
individual under the provisions of [FOIA], and that the Acts bar on disclosure does not apply

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when disclosure of the record would be . . . required under [FOIA]. 5 U.S.C. 552a(t)(2) &
(b)(2), respectively.
D.
34.

Exemption 6s Inapplicability

The information NPR seeks from FEMA about the HMG Program it runs does

not involve 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).
35.

Contrary to FEMAs suggestion, Exemption 6 does not authorize blanket

withholding by agencies of names and addresses. See News-Press, 489 F.3d at 1198 (Congress
did not intend either names or addresses to automatically be withheld[.]). Rather, whether
disclosure of a list of names [or addresses] is a significant or a de minimis threat to individual
privacy depends upon the characteristic(s) revealed by virtue of being on the particular list, and
the consequences likely to ensue. Dept of State v. Ray, 502 U.S. 164, 176 n.12 (1991) (internal
quotation marks omitted). And even if such disclosure does implicate a significant privacy
interest, Exemption 6 still does not authorize an agency to withhold that information where,
given the public interest in its disclosure, any invasion of personal privacy would not be clearly
unwarranted.
36.

Here, disclosure would not implicate any significant privacy interest. Property

addresses, GIS coordinates, and names of sellers of real property are neither personnel and
medical files nor similar files. 5 U.S.C. 552(b)(6). Real-estate transaction records long
have been publicly available, including in searchable electronic form. Indeed, on popular
internet websites (such as Zillow.com), information on the sale history, sale price, and names of
both sellers and buyers is usually just a few clicks away, available either directly on the website
or through links to governmental databases (which themselves are publicly available online).

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37.

Disclosure will also reveal that the particular property sale happened to be done in

connection with a voluntary federal property-protection program. But given that the applicable
future-use restrictions should be recorded with the deed, that information, too, may be discerned
from public records. See 44 C.F.R. 80.17(e). Moreover, no injury and embarrassment arises
from an individuals association with such saleby contrast to, for example, disclosure of
having been the subject of a governmental investigation. U.S. Dept of State v. Washington Post
Co., 456 U.S. 595, 599 (1982). Indeed, Congress in FOIA disfavor[ed] privacy claims by those
who receive a governmental benefit. News-Press, 489 F.3d at 1202.
38.

Even if some more-then-de minimis privacy interest were implicated, it would be

dwarfed by the special need for public scrutiny of agency action that distributes extensive
amounts of public funds in the form of subsidies and other financial benefits. Multi Ag Media
LLC v. Dept of Agriculture, 515 F.3d 1224, 1232 (D.C. Cir. 2008). Three-quarters of a billion
dollars have been put toward property purchased through the HMG Program, and FEMA has a
duty to ensure compliance with Congresss restrictions on future property use and federal aid.
See 44 C.F.R. 80.5(a). The public has a right to know whether those funds were and are being
spent wisely and whether the Program is operating in accordance with the law. Cf. News-Press,
489 F.3d at 1178 (In light of FEMAs awesome statutory responsibility to prepare the nation
for, and respond to, all national incidents . . . there is a powerful public interest in learning
whether, and how well, it has met this responsibility.). Yet the public cannot determine those
things without information enabling it to identify the properties purchased and the sellers from
whom they were purchased. See supra 26.
39.

The light of public scrutiny is particularly needed in this area. The HMG

Program affords state and local governments considerable discretion, without much oversight to

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ensure that spending is conducted fairly and lawfully. Scott Gurian, Investigation Reveals
Sandy Energy Grant Program Riddled with Errors, New Jersey Spotlight (Mar. 6, 2014),
http://www.njspotlight.com/stories/14/03/05/sandy-energy-grant-program-riddled-witherrors/?p=all. That combination of discretion with lack of oversight, the New Jersey Spotlight
has suggested, leaves room for abuse through the use of funds on properties that, for example,
may not have even been directly affected . . . by [a] disaster. Id.
40.

Indeed, DHSs Office of the Inspector General (OIG) has repeatedly found

mismanagement of HMG Program funds. For example, in August 2016, the OIG found that
Mississippi did not provide proper oversight of a $29.9 million grant for the Hazard Mitigation
Program. DHS OIG, FEMA Should Suspend All Grant Payments on the $29.9 Million Coastal
Retrofit Program Until Mississippi Can Properly Account for Federal Funds, OIG-16-115-D,
at 1 (Aug. 10, 2016). That grant had been intended to help 2,000 Mississippi homeowners
strengthen their homes against wind damages in future disasters, but OIG found evidence that
the funds had been mishandled, and recommend suspending all related payments. Id. FEMA did
not dispute that finding, and accepted OIGs recommendation. See id.
41.

Further, OIGs annual audits of the HMG Program and related programs have

revealed significant issues representing millions of dollars. DHS OIG, Capping Report: FY
2013 FEMA Public Assistance and Hazard Mitigation Grant and Subgrant Audits, OIG-14-102D, at 2 (June 2014); see, e.g., DHS OIG, Summary and Key Findings of Fiscal Year 2014 FEMA
Disaster Grant and Program Audits, OIG-15-146-D, at 1 (Sept. 15, 2015) (One Hazard
Mitigation Grant Program audit resulted in $812 million of . . . potential monetary benefits. We
continue to find problems with grant management, ineligible and unsupported costs, and
noncompliance with Federal contracting requirements.). In particular, OIG has made Frequent

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Audit Findings that the administration of the HMG Program and related programs has involved
Improper Contracting Practices, Unsupported Costs, Poor Project Accounting,
Duplication of Benefits, Excessive Equipment Charges, Excessive Labor and Fringe
Benefit Charges, Unrelated Project Charges, and Unapplied Credits. DHS OIG, Audit Tips
for Managing Disaster-Related Project Costs, OIG-16-109-D, at 5-12 (July 1, 2016).
42.

Because of the possibility of abuse and the evidence of program-implementation

issues, transparency is critical to maintain the publics trust that the government is acting in
accordance with the Programs goals and parameters. The public has a strong interest in seeing
what the government is up to and how the federal dollars are being spent, and any potential
privacy interests are minimal given the nature of the records at issue. Thus, Exemption 6 does
not apply and the requested records must be disclosed.
CLAIM FOR RELIEF
COUNT I
Violation Of 5 U.S.C. 552(a)(3)
For Failure To Release Non-Exempt Responsive Records
43.

Plaintiffs re-allege and incorporate by reference paragraphs 142.

44.

Under 5 U.S.C. 552(a)(3), agencies must disclose, upon request, all non-exempt

records not already subject to disclosure under paragraphs (a)(1) and (a)(2). The agency must
make the records promptly available to any person as long as the request reasonably describes
such records. Id. 552(a)(3).
45.

NPR submitted a FOIA request to FEMA that reasonably described the records

requested. In particular, NPR requested FEMAs complete electronic dataset including the
addresses, GIS coordinates, and seller names for properties acquired through the HMG Program.

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46.

FEMA refused to produce the complete dataset, citing FOIA Exemption 6. See 5

U.S.C. 552(b)(6).
47.

Exemption 6 does not apply. The information NPR requested does not implicate

any more than a de minimis personal privacy interest. And any such interest is so insignificant
that infringement thereon is clearly [ ]warranted in light of the publics compelling right to
understand how FEMA has operated a nationwide, multi-million-dollar part of its HMG Program.
48.

Accordingly, FEMA violated 5 U.S.C. 552(a)(3) by failing to produce the

materials NPR requested.

PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully request that the Court enter judgment in their favor
and:
a.

Declare that FEMAs withholding of the requested records is unlawful;

b.

Order FEMA to make the requested records available to Plaintiffs;

c.

Award Plaintiffs their costs and reasonable attorneys fees in accordance with
5 U.S.C. 552(a)(4)(E); and

d.

Order such other relief as the Court may deem just and proper.

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Dated: January 13, 2017

Respectfully submitted,
/s/ C. Kevin Marshall
C. Kevin Marshall
DC Bar No. 476266
[email protected]
Amanda K. Rice
DC Bar No. 1019208
JONES DAY
51 Louisiana Ave., N.W.
Washington, DC 20001
Telephone: +1.202.879.3939
Facsimile: +1.202.626.1700
Peter C. Canfield
Georgia Bar No. 107748
JONES DAY
1420 Peachtree Street, N.E.
Suite 800
Atlanta, GA 30309
Telephone: +1.404.521.3939
Facsimile: +1.404.581.8330
[email protected]
Attorneys for Plaintiffs

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