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Darnbrough v. U.S. Dept. of State

United States District Court, District of Columbia

February 20, 2013

Robert DARNBROUGH, Plaintiff,
v.
U.S. DEPARTMENT OF STATE, Defendant.

Page 214

Thomas K. Ragland, Duane Morris, LLP, Washington, DC, Joel H. Paget, Ryan, Swanson & Cleveland, PLLC, Seattle, WA, for Plaintiff.

Claire M. Whitaker, United States Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

EMMET G. SULLIVAN, District Judge.

This Freedom of Information Act (" FOIA" ), 5 U.S.C. §§ 552 et seq., case is before the Court on defendant's motion for summary judgment. At issue is the U.S. Department of State's (the " Department" ) response to plaintiff Robert Darnbrough's request for documents relating to the renunciation of his United States citizenship. Upon consideration of the motion, the response and reply thereto, the entire record, and for the reasons explained below, defendant's motion will be DENIED.

I. BACKGROUND

Plaintiff is a Canadian citizen currently residing in Whistler, Canada. Compl. ¶ 4. Although the exact circumstances are somewhat unclear, plaintiff alleges that he is a " native" of the United States and that he was, at one time, a United States citizen. Id. ¶¶ 4, 11. On January 5, 2011, plaintiff submitted a FOIA request to the Department of Information Programs and Services of the U.S. Department of State (" IPS" ) for " all Department of State records from 2003 to present, regarding the renunciation of [his] U.S. citizenship." Def.'s Statement of Material Facts Not in Dispute (" Def.'s SOF" ) at ¶ 1. The Department acknowledged receipt of the request and assigned it a Case Control Number 201100806 by letter dated February 16, 2011. Id. ¶ 2.

On or about November 22, 2011, the Office of Visa Services (" VO" ) informed plaintiff that his search had been completed and that it resulted in the retrieval of one record responsive to plaintiff's FOIA request. Id. ¶ 3. The letter informed plaintiff that the record, which has been referred to by the parties as " Document No. VI," would be withheld in full because it was protected from release by statute under 5 U.S.C. § 552(b)(3). Id. The statute under which the document was being withheld was Section 222(f) of the Immigration and Nationality Act, 8 U.S.C. § 1202(f), which requires the withholding of information contained in the records of the Department of State pertaining to the issuance or refusal of visas or permits to

Page 215

enter the United States. Id. [1] A further search of Department records resulted in the retrieval of nine additional documents responsive to plaintiff's request, which were released to plaintiff in full and without redactions. Id. ¶ 4.

Document No. VI, the only withheld document, allegedly relates to plaintiff's application for a NEXUS card to enter the United States. The Department represents that NEXUS is a program administered by the U.S. Customs and Border Protection. The program allows pre-screened travelers expedited processing by United States and Canadian officials at dedicated processing lanes at designated northern border points of entry, at NEXUS kiosks at Canadian Preclearance airports, and at marine reporting locations. Approved applicants are issued a photo-identification, proximity Radio Frequency Identification card. Participants use three modes of passage where they will either present their NEXUS card or have their iris scanned and make a declaration. See Declaration of Sheryl L. Walter (" Walter Decl." ), ECF No. 11-1, at 10, n. 1.

The Department has explained that Document No. VI is a CLASS (Consular Lookout and Support System) printout dated June 22, 2010. Declaration of Sheryl L. Walter (" Walter Decl." ), ECF No. 11-1, at ¶ 40. The CLASS system is used to determine visa eligibility. Suppl. Decl. of Sheryl L. Walter (" Suppl. Walter Decl." ), ECF No. 15-1, at ¶ 4. It is the Department's " namechecking" system for visa and passport applications and contains the Department of State's namecheck databases. Id. The visa lookout database, at issue here, is primarily designed to provide information to consular officers adjudicating an alien's eligibility for a visa. Id. Document No. VI consists of two pages and is currently deemed unclassified. Walter Decl. ¶ 40. The VO retrieved the document through a full-text computer search of the Consular Consolidated Database (CCD). Id. The first page, entitled " CLASS Returns," contains a few lines of biographic data that identify the subject and the record of the denial by a component agency of the United States Department of Homeland Security of his application for a NEXUS card to enter the United States. Id. ¶ 41. The second page, entitled " CLASS Long Comment," mentions the fact of plaintiff's renunciation of United States citizenship, information related to the U.S. Customs and Border Protection's denial of plaintiff's NEXUS application on June 18, 2010, and that the CLASS entry was generated by that denial. Id. The Department concluded that Document No. VI was required to be withheld in full under Exemption 3 and Section 1202(f) because " it consists in its entirety of a record of the Department of State pertaining to the issuance of a visa or permit to enter the United States."

The parties agree that Document No. VI was subjected to a line-by-line review for segregable information by a senior Department employee who is familiar with plaintiff's FOIA request, the nature of Department records pertaining to the issuance or refusal of visas to enter the United States, and the requirements of Section 1202(f). Id. ¶ 5. The parties dispute, however, the outcome of the segregability analysis. Pl.'s Response to Def.'s SOF (" Pl.'s SOF" ) at 2. Specifically, plaintiff challenges the Department's determination that no reasonably segregable information exists in the ...


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