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PERRY-TORRES v. U.S. DEPARTMENT OF STATE

September 19, 2005.

OLIVERIO ALBERTO PERRY-TORRES, Plaintiff,
v.
U.S. DEPARTMENT OF STATE, Defendant.



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.

I. BACKGROUND FACTS

  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. Id.

  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.

  II. ANALYSIS

  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) (2000).

  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 ...


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