United States District Court, D. Columbia
September 19, 2005.
OLIVERIO ALBERTO PERRY-TORRES, Plaintiff,
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.
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 the
documents found at the Embassy. Def.'s Mot. for Summ. J. at 3.
Accordingly, the defendant's motion is GRANTED with respect to
the documents sought from the American Embassy.
C. Defendant Properly Invoked Exemption (b)(3) of FOIA as a
Matter of Law.
The plaintiff also seeks five documents from the VO, totaling
ten pages, which the defendant has withheld pursuant to Exemption
(b)(3) of FOIA. Exemption (b)(3) of FOIA allows an agency to
withhold information prohibited from disclosure by another
statute, if that statute; "(A) requires that the matters be
withheld from the public in such a manner as to leave no
discretion on the issue; or (B) establishes particular criteria
for withholding or refers to particular types of matters to be
withheld." 5 U.S.C. § 552(b)(3) (2000). Thus, this exemption
applies if a disclosure-prohibiting statute exists and the
withheld information falls within the coverage of the statute.
See CIA v. Sims, 471 U.S. 159, 167 (1985); Fund for
Constitutional Gov't v. Nat'l Archives & Records Serv.,
656 F.2d 856, 866-69 (D.C. Cir. 1981). Indeed, "[the court] do[es] not
closely scrutinize the contents of a withheld document; instead,
[it] determine[s] only whether there is a relevant statute and
whether the document falls within that statute." Krikorian v.
Dep't of State, 984 F.2d 461, 465 (D.C. Cir. 1993). With respect
to the second part of the exemption analysis, "[i]f the factual
nature of the documents were so clearly established on the
record, then the court would inquire no further and would make the legal ruling as to whether they fit within the
defined exemption or exemptions." Vaughn v. Rosen,
484 F.2d 820, 824 (D.C. Cir. 1973).
In this case, Section 222(f) of the INA qualifies as a
disclosure-prohibiting statute under both subsection (A) and (B)
of Exemption (b)(3) of FOIA. See Medina-Hincapie v. Dep't of
State, 700 F.2d 737, 740-43 (D.C. Cir. 1983); Church of
Scientology of Cal. v. Dep't of State, 493 F. Supp. 418, 423
(D.D.C. 1980) (holding that State Department records pertaining
directly to a refusal to issue entry Visa were properly withheld
pursuant to Exemption (b)(3) of FOIA). Section 222(f) of the INA
states that "[t]he records of the Department of State and of the
diplomatic and consular offices of the United States pertaining
to the issuance or refusal of visas or permits to enter the
United States shall be considered confidential. . . ."
8 U.S.C. § 1202(f) (2000). Section 222(f) includes not only the information
supplied by the visa applicant, but also any "information
revealing the thought-processes of those who rule on the
application." Medina-Hincapie, 700 F.2d at 744.
The defendant maintains that the five documents found at the VO
"relate? directly to the issuance or refusal of a visa or permit
to enter the United States. . . ." Grafeld Decl. ¶ 8. This type
of information clearly falls within the scope of Section 222(f),
prohibiting disclosure of any information pertaining to the
issuance or refusal of visas. See Medina-Hincapie,
700 F.2d at 740-43. Accordingly, the Court concludes that the defendant has
properly withheld information regarding the denial of plaintiff's
visa application pursuant to Exemption (b)(3) of FOIA and Section
222(f) of the INA. D. Defendant has Failed to Adequately Address the
Segregability of the Withheld Documents Found at the VO.
Finally, plaintiff has obliquely argued that portions of the
five documents found at the VO contain information that is
segregable, and thus releasable, from the information exempt
under Exemption (b)(3) of FOIA. Pl.'s Resp. at 6. FOIA requires
that the government provide the requestor all information that is
not exempt from disclosure and is "reasonably segregable."
5 U.S.C. § 552(b) (2000). Indeed, "[t]he focus of FOIA is
information, not documents, and an agency cannot justify
withholding an entire document simply by showing that it contains
some exempt material." Mead Data Cent., Inc. v. United States
Dep't of Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977);
Krikorian, 984 F.2d at 467. Therefore, any non-exempt portions
must be disclosed unless they are "inextricably intertwined with
exempt portions." Mead Data, 566 F.2d at 260.
To show that all "reasonably segregable" material has been
released, the government "must provide a detailed justification
for its non-segregability. . . ." Johnson v. Exec. Office for
United States Attorneys, 310 F.3d 771, 776 (D.C. Cir. 2002)
(internal quotation omitted). However, the agency must not
provide a justification that would "compromise the secret nature
of potentially exempt information." Mead Data, 566 F.2d at 261.
In the final analysis, the Court "ha[s] an affirmative duty to
consider the segregability issue sua sponte." Trans-Pac.
Policing Agreement v. United States Customs Serv.,
177 F.3d 1022, 1028 (D.C. Cir. 1999); see also Krikorian,
984 F.2d at 467 (quoting Powell v. United States Bureau of Prisons,
927 F.2d 1239, 1242 n. 4 (D.C. Cir. 1991) (holding that the district
court errs by not entering a finding on segregability of the withheld documents.).
The justification offered by the government in this case is
inadequate. The government has submitted an affidavit from
Margaret P. Grafeld, the U.S. Department of State's information
and Privacy Coordinator and the Director of the Department's
Office of Information Programs and Services, with respect to the
five documents retrieved from the VO and withheld in their
entirety. The Grafeld Declaration only states that defendant
performed a segregabilty analysis and determined that "[t]here is
no non-exempt information in these documents which may be
segregated and released." Grafeld Decl. at 11. Grafeld's
Declaration is conclusory, and is neither supported with a
detailed justification for the agency's reasoning nor with a
description of the portion of the information that is non-exempt.
See, e.g., Mead Data, 566 F.2d at 260 (holding that the
segregability analysis concluding that there "were no factual
portions . . . which could be reasonably segregated" was
inadequate without more supporting justifications). Therefore, to
the extent possible, the defendant must provide a more detailed
explanation with respect to the segregability of each of the
relevant documents so long as the explanation does not
"compromise the secret nature" of the document. Mead Data,
566 F.2d at 260-61. At a minimum, the explanation should state that a
line-by-line analysis of each document was conducted and that it
was determined that no information can reasonably be segregated.
See Johnson, 310 F.3d at 776; Dorsett v. United States Dep't
of Treasury, 307 F. Supp. 2d 28, 40-41 (D.D.C. 2004); Gutman v.
DOJ, 238 F. Supp. 2d 284, 296 (D.D.C. 2003). Moreover, the
explanation must include a specific finding for each document withheld. See
Animal Legal Defense Fund, Inc. v. Dep't of Air Force,
44 F. Supp. 2d 295, 302 (D.D.C. 1999) ("[T]he Defendant shall not offer
one finding for all documents.") (emphasis in original).
Accordingly, the Court DENIES defendant's motion in part and
orders the defendant to submit a renewed motion for summary
judgment accompanied by an affidavit that solely addresses the
segregability issue in accordance with the foregoing analysis.
In accordance with the foregoing, it is, this 19th day of
September, 2005, hereby
ORDERED that defendant's motion for summary judgment [#4] is
GRANTED in part. Defendant is granted summary judgment as it
pertains to the documents found at the American Embassy. Summary
Judgment is denied as it pertains to the documents found at the
VO; and it is further
ORDERED that defendant shall file a renewed motion for
summary judgment within 30 days of this Order, which shall
include an affidavit or other documentation setting forth its
segregability analysis as it relates to the documents found at
the VO; and it is further
ORDERED that plaintiff may file a response to the defendant's
pleading within 15 days after the defendant's pleading is filed.
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