The opinion of the court was delivered by: RICHARD LEON, District Judge
MEMORANDUM OPINION AND ORDER
This is an action brought by plaintiff, Oliverio Alberto
Perry-Torres ("Perry-Torres"), under the Freedom of Information
Act ("FOIA"), 5 U.S.C. §§ 552 et seq., as amended, seeking
documents withheld by defendant, the United States Department of
State. Presently before the Court is defendant's motion for
summary judgment. After consideration of the parties'
submissions, the relevant law, and the entire record herein, the
defendant's motion is GRANTED in part and DENIED in part.
Perry-Torres is a Colombian national who has submitted several
visa applications to the American Embassy ("Embassy") in Bogotá,
Colombia to visit his family currently living in the United
States, See Pl.'s Resp. to Def.'s Mot. for Summ. J. at 2. Each
application has been denied based on allegations that
Perry-Torres is an illicit drug trafficker. Id. Plaintiff made
a FOIA request through the agency charged with handling these
matters, the Information Programs Services ("IPS"), to try to obtain a better
understanding of the basis for the denial of his applications.
Id. In response, the IPS searched two locations: the Office of
Visa Services ("VO") and the Embassy. Def.'s Mot. for Summ. J. at
2. Nearly ten months after plaintiff's request, he was informed
that a search of the VO records revealed five documents totaling
ten pages, which, he was told, were being withheld in their
entirety pursuant to Exemption (b)(3) of FOIA, see
5 U.S.C. § 552(b)(3) (2000), and Section 222(f) of the Immigration and
Nationality Act ("INA"). Id. Perry-Torres timely appealed this
decision and his appeal was denied by the Appeals Review Panel.
More than two years after the plaintiff's initial FOIA request,
a search of the Embassy was conducted, revealing another five
documents. Pl.'s Resp. to Def.'s Mot. for Summ. J. at 3.
Plaintiff was told that four of the documents were being withheld
in their entirety under Exemption (b)(3) of FOIA, but the last
document, Perry-Torres's visa application, was released with
excisions. Id. Unlike the documents found at the VO, however,
Perry-Torres did not appeal IPS's decision to withhold the four
documents found at the Embassy. Def.'s Mot. for Summ. J. at 3.
A. Summary Judgment and Freedom of Information Act.
Summary Judgment should be granted when the pleadings and the
record "show that there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a
matter of law." FED. R. CIV. P. 56(c). A federal agency moving
for summary judgment in a FOIA action must prove, viewing the facts in the
light most favorable to the requester, that there is no genuine
issue of material fact with respect to its compliance with FOIA.
Steinberg v. United States Dep't of Justice, 23 F.3d 548, 551
(D.C. Cir. 1994) (quoting Weisberg v. United States Dep't of
Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984)).
To comply with FOIA, every federal agency must make its records
promptly available to any person so long as the request
"reasonably describes such records." 5 U.S.C. § 552(a)(3) (2000).
FOIA reflects a general view that there should be full agency
disclosure, but also provides for several exemptions to protect
"legitimate governmental or private interests." Assassination
Archives and Research Ctr. v. CIA, 334 F.3d 55, 57 (D.C. Cir.
2003) (quoting Summers v. Dep't of Justice, 140 F.3d 1077, 1079
(D.C. Cir. 1998)). The Court reviews an agency's refusal to
disclose requested documents de novo. 5 U.S.C. § (a)(4)(B)
The moving party may meet their burden for summary judgment by
relying on affidavits or declarations along with any other
evidence. FED. R. CIV. P. 56(e). These affidavits or declarations
must describe "the justifications for nondisclosure with
reasonably specific detail, demonstrate that the information
withheld logically falls within the claimed exemption, and are
not controverted by either contrary evidence in the record nor by
evidence of agency bad faith." Military Audit Project v. Casey,
656 F.2d 724, 738 (D.C. Cir. 1981). These affidavits may be
submitted by an official who coordinated the search, and need not
be from each individual who participated in the search. See
SafeCard Servs. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991).
In opposing a motion for summary judgment, a plaintiff must
offer more than conclusory statements. Broaddrick v. Executive
Office of President, 139 F. Supp. 2d 55, 65 (D.D.C. 2001)
(citing Laningham v. United States Navy, 813 F.2d 1236, 1241
(D.C. Cir. 1987)). Indeed, a plaintiff must establish that
either: (1) the Vaughn index does not establish that the
documents were properly withheld; (2) the agency has improperly
claimed an exemption as a matter of law; or (3) the agency has
failed to segregate and disclose all non-exempt material in the
requested documents. Twist v. Ashcroft, 329 F. Supp. 2d 50, 53
(D.D.C. 2004) (citing Piper & Marbury, L.L.P. v. United States
Postal Serv., 2001 WL 215127, at *2 (D.D.C. Mar. 6, 2001)).
B. The Plaintiff has Failed to Exhaust Administrative Remedies
with Respect to the Documents Found at the American Embassy.
As noted previously, the defendant searched both the VO and the
Embassy in response to the plaintiff's FOIA request. Def.'s Mot.
for Summ. J. at 2. The search of the Embassy revealed four
documents that were withheld in their entirety and one document
that was released with excisions pursuant to Exemption (b)(3) of
FOIA. Id. at 2-3.
Plaintiff now seeks full disclosure of these documents.
Judicial review of a FOIA request, however, is only appropriate
if the plaintiff has exhausted all administrative remedies.
Oglesby v. United States Dep't of the Army, 920 F.2d 57, 61
(D.C. Cir. 1990); Hidalgo v. FBI, 344 F.3d 1256, 1259 (D.C.
Cir. 2003); Sinito v. United States Dep't of Justice,
176 F.3d 512, 516 (D.C. Cir. 1999). And, it necessarily follows that a
FOIA suit should be dismissed if the plaintiff has failed to do so.
Hidalgo F.3d at 1260; see Dettman v. United States Dep't of
Justice, 802 F.2d 1472, 1477 (D.C. Cir. 1986). Here, plaintiff
failed to appeal the defendant's decision to withhold ...