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Fernando Linares Beltranena v. Hillary Rodham Clinton

March 17, 2011

FERNANDO LINARES BELTRANENA, PLAINTIFF,
v.
HILLARY RODHAM CLINTON, IN HER OFFICIAL CAPACITY AS THE SECRETARY OF STATE FOR THE UNITED STATES OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: Paul L. Friedman United States District Judge

OPINION

This Freedom of Information Act case is before the Court on defendant's motion for partial summary judgment, defendant's supplemental motion for summary judgment, and defendant's motion for a protective order. Upon consideration of the parties' papers, the attached declarations and exhibits, the relevant legal authorities, and the entire record in this case, the Court will deny without prejudice defendant's motion for partial summary judgment and supplemental motion for summary judgment, and the Court will grant defendant's motion for a protective order.*fn1

I. BACKGROUND

Plaintiff Fernando Linares Beltranena is "a resident and citizen of Guatemala and an attorney who does business in the United States." Opp., Ex. 9, Affidavit of Fernando Linares Beltranena ("Beltranena Aff.") ¶ 2, Mar. 11, 2010. On November 13, 2006, Mr. Beltranena submitted a Non-Immigrant Visa application to defendant the United States Department of State. See id.; Compl. ¶ 6.*fn2 On May 8, 2007, the Department's Consul General in Guatemala notified Mr. Beltranena that his application "had been refused" on the basis of a "'permanent ineligibility' for a U.S. Visa under [S]section 212(a)(C)(ii)" of the Immigration and Nationality Act. Beltranena Aff. ¶ 4; see Mot., Attachment 1, Declaration of Margaret P. Grafeld ("Grafeld Decl.") ¶ 4, Feb. 19, 2010.

On September 12, 2007, Mr. Beltranena submitted a FOIA request to the Department "for all evidence related to the refusal of [his] Visa application." Beltranena Aff. ¶ 5; Grafeld Decl. ¶ 4. Specifically, Mr. Beltranena requested that the Department "give [him] the reason, and the evidence, for [his] US visa revocation and denial of a new visa request . . . ." Opp., Ex. 2, Freedom of Information Act Request at 1, Sept. 12, 2007. The Department responded on December 20, 2007, stating that it would "begin the processing of [his] request based upon the information provided in [his] communication." Grafeld Decl. Ex. 2, Letter from C. Duckett to F. Beltranena at 1, Dec. 20, 2007; see Grafeld Decl. ¶ 5. Mr. Beltranena's FOIA request was assigned the "case control number 200705478." Grafeld. Decl. ¶ 5.

By e-mail dated February 14, 2008, the Department informed Mr. Beltranena that it had "initiated searches in the following" three file systems: "[1] The Central Foreign Policy Records (the principle [sic] record system of the Department of State), [2] the Office of Visa Services, and [3] the U.S. Embassy in Guatemala." Grafeld Decl. Ex. 4, E-mail from C. Boston to F. Beltranena at 1, Feb. 14, 2008; see Grafeld Decl. ¶ 7. The Department described the status of those searches at that time:

The search in the Office of Visa Services has been completed and the Office of Visa Services will be responding to you directly once the material has been reviewed. The Central Foreign Policy Record search has been completed, and is currently being prepared for review. The search of the U.S. Embassy in Guatemala has not been completed.

Grafeld Decl. Ex. 4, E-mail from C. Boston to F. Beltranena at 1, Feb. 14, 2008.

On March 6, 2008, the Department's Office of Visa Services informed Mr. Beltranena that it had "searched its records, located, and reviewed 10 documents, totaling 28 pages, relating to [Mr. Beltranena's FOIA] request." Opp., Ex. 3, Letter from J. Gorsky to F. Beltranena at 1, Mar. 6, 2008. The Office of Visa Services withheld nine of those documents in full and one document in part, explaining:

The 10 documents in question pertain to State Department records relating to the application for a visa or permit to enter the United States. As such, they are separately protected from disclosure by Section 222(f) [of the Immigration and Nationality Act] and are exempt from release by the (b)(3) exemption to the [FOIA]. However, . . . we agree to release one document in part, as this document originated with you or someone acting on your behalf, and release would therefore not breach its confidentiality.

Id. The Office of Visa Services stated that Mr. Beltranena could appeal its decision to withhold those records to the Chairman of the Department's Appeals Review Panel. Id.; see Grafeld Decl. ¶ 8.

By letter of April 2, 2008, Mr. Beltranena was informed that "[t]he search of the Central Foreign Policy Records [was] completed, and . . . resulted in the retrieval of three documents responsive to [his] request." Opp., Ex. 4, Letter from M. Grafeld to F. Beltranena at 1, Apr. 2, 2008. This letter stated that "all three [documents] must be withheld in full" and explained that "two were withheld under exemption (b)(1) . . . and all three under exemption (b)(3) . . . ." Id. This letter also informed Mr. Beltranena of his right to appeal the decision to withhold documents. Id.; see Grafeld Decl. ¶ 9. On April 11, 2008, Mr. Beltranena appealed his "right to review the three documents cited [in the April 2, 2008 letter], and any other documents pertaining to the reason why [his] US visa was revoked, and subsequently denied . . . ." Opp., Ex. 5, Appeal Case Number 200705478 at 1, Apr. 11, 2008.

Nearly a year later, on March 17, 2009, Mr. Beltranena inquired about the status of his appeal. See Opp., Ex. 6, Letter from E. McLaughlin to F. Beltranena at 1, Apr. 13, 2009. The Department responded on April 13, 2009, stating that Mr. Beltranena's appeal "should be reviewed in the near future," id.; the Department further explained, however, that because it had failed to respond to his appeal within twenty days, Mr. Beltranena was deemed to have exhausted his administrative remedies and therefore was free to seek judicial review. Id.*fn3

Mr. Beltranena filed his complaint in this Court on August 3, 2009. See Compl. at 4. His complaint requests "declaratory and injunctive relief to compel the disclosure and release of agency records improperly withheld by the [Department] . . . ." Id. ΒΆ 1. After this action commenced, the Department sent a letter to Mr. Beltranena on December 8, 2009, informing him that it had completed its "search of the records of the United States Embassy in Guatemala City, Guatemala" - the third potential source of responsive records. Opp., Ex. 7, Letter from M. Grafeld to F. Beltranena at 1, Dec. 8, 2009. That "search resulted in the retrieval of 13 documents . . . responsive to [Mr. Beltranena's] request." Id. at 1. The Department informed Mr. Beltranena that eleven of those documents were being withheld in full, one document was being released with excisions, and one document needed to be reviewed by another agency. Id. Furthermore, the Department indicated that additional disclosures could now be made and that it had identified additional responsive documents, specifically: (1) a document previously withheld in part could now be released in full; (2) one additional document had been retrieved from the Central Foreign Policy Records and was being released in part; and ...


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