United States District Court, D. Columbia.
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For Mauricio Rojas Soto, Amalia Sierra Correal, Nathalia Rojas Sierra, Isabella Rojas Sierra, Plaintiffs: Peter S. Herrick, LEAD ATTORNEY, PETER S HERRICK PA, Miami, FL USA.
For United States Department of State, Defendant: Benton Gregory Peterson, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC USA.
MEMORANDUM OPINION AND ORDER
RANDOLPH D. MOSS, United States District Judge.
This is an action brought under the Freedom of Information Act (" FOIA" ), 5 U.S.C. § § 552, et seq. Plaintiffs, a family of four citizens of Colombia, seek an order requiring that the United States Department of State produce any records that refer to Plaintiffs and, " specifically," any records relied upon by the State Department " to deny the [Plaintiffs] visas for entering the United States." Dkt. 1 at 5. The matter is before the Court on the parties' cross-motions for summary judgment (Dkts. 12 and 15). For the reasons set forth below, Defendant's Motion for Summary Judgment, Dkt. 12, is GRANTED in part and DENIED in part, and the Department is ordered to supplement the record as set forth below. Because the Court will allow the Department to supplement its affidavits describing the documents it withheld, Plaintiffs' Cross Motion for Summary Judgment (Dkt. 15) is DENIED. The parties may file renewed motions for summary judgment after Defendant has had an opportunity to submit additional information pertaining to the withheld documents.
The Plaintiffs in this action--Mauricio Rojas Soto, Amalia Sierra Correal, Nathalia Rojas Sierra, and Isabella Rojas Sierra--are a family from Cali, Colombia. Dkt. 5 ¶ ¶ 1, 3. On June 8, 2012, the United States Department of State (" Department" ) denied the application of Mauricio Rojas Soto for a non-immigrant visa to enter the United States on the ground that the Department had reason to believe that Soto was involved in illicit drug trafficking. See 8 U.S.C. § 1182(a)(2)(C)(i) (" section 1182(a)(2)(C)(i)" ). At the same time, the Department denied the visa applications of Amalia Sierra Correal and Isabella Rojas Sierra and revoked a student visa which had been issued to Nathalia on the ground that the spouse, son, or daughter of anyone who is inadmissible under 8 U.S.C. § 1182(a)(2)(C)(i) is also inadmissible. See 8 U.S.C. § 1182(a)(2)(C)(ii) (" section 1182(a)(2)(C)(ii)" ). The family now seeks the records that led the Department of State to conclude that they were inadmissible and, more generally, any other records that refer to any of them. Dkt. 5 at 11.
The parties do not dispute the factual or procedural background of the case, except to the extent that Plaintiffs deny that Mauricio Rojas Soto, or any other member of their family, was ever involved with trafficking in controlled substances. Dkt. 15-1 at 1. On May 2, 2013, Plaintiffs filed the FOIA request that has led to this litigation. Dkt. 1 at 5. In that request, Plaintiffs sought:
[A]ll of the records maintained by your agency, including electronic records, on the referenced requesters . . . . Besides any other records we specifically request records which would be relied upon by your agency to deny the requesters visas for entering the United States.
Id. The Department acknowledged the request and asked for additional details relating to the visa records and requested the date and place of birth for each of the Plaintiffs, id. at 8, which Plaintiffs provided, id. at 10.
On June 14, 2013, the State Department notified Plaintiffs that their request was assigned case control number F-2013-10146 and that the Department would " begin processing" the request. Dkt. 5 at 13. Shortly thereafter, Plaintiffs notified the Department that the names referenced in the June 14 letter were incorrect and provided a correction. Dkt. 1 at 15. On August 5, 2013, Plaintiffs filed an administrative appeal in which they argued that the Department had failed to provide the records within the time required by law. Dkt. 5 at 17. The Department responded that Plaintiffs' FOIA request was not subject to administrative appeal because no decision had yet been rendered. Dkt. 12 at 5.
On December 17, 2013, the State Department notified Plaintiffs that it had located and reviewed 127 records that were responsive to Plaintiffs' FOIA request. Id. at 19. As the Department explained in its opening brief, the Department miscounted the documents, see Dkt. 12-1 at 3: the Department in fact identified 132 responsive records, id. Of those records, the Department released three documents in full, released fourteen documents with redactions, and withheld 115 documents. Id. The Department reported that all of the information it withheld (including the redactions and the 115 withheld documents) was covered by FOIA Exemption 3. Dkt. 1 at 19. Exemption 3 applies to any information that is " specifically exempted from disclosure by [a statute other than FOIA] ... if that statute ... (i) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or (ii) establishes particular criteria for withholding or refers to particular types of matters to be withheld." 5 U.S.C. § 552(b)(3). The Department explained that the withheld information was subject to section 1202(f), which provides that " [t]he records of the Department of State and of 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," except, under limited circumstances, where needed by a court in a pending case or provided to a foreign government on the basis of reciprocity. 8 U.S.C. § 1202(f).
On February 26, 2014, Plaintiffs filed an administrative appeal challenging the Department's failure to produce the redacted and withheld documents. Dkt. 5 at 23. The Department did not timely act on the administrative appeal and informed the Plaintiffs that under the governing regulations they were " deemed to have exhausted" their administrative remedies and were thus entitled " immediately [to] seek judicial review." See Dkt. 5 at 28. Plaintiffs filed this action on April 15, 2014. Dkt. 1. The Defendant moved for Summary Judgment on September 16, 2014, Dkt. 12, and Plaintiffs filed a Cross Motion for Summary Judgment on October 23, 2014, Dkt. 15.
I. LEGAL STANDARDS
The Freedom of Information Act is premised on the notion that an informed citizenry is " vital to the functioning of a democratic society, needed to check
against corruption and to hold the governors accountable to the governed." NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978). It embodies a " general philosophy of full agency disclosure." United States Dep't of Defense v. FLRA, 510 U.S. 487, 494, 114 S.Ct. 1006, 127 L.Ed.2d 325 (1994). To promote government transparency, FOIA thus requires federal agencies to produce agency records to any person who requests them in accordance with published rules, unless the information requested falls within one of nine enumerated exemptions to the rule. 5 U.S.C.§ 552(a)(3), (b).
The Act provides that when a plaintiff alleges that an agency has improperly withheld records, the reviewing court must " determine the matter de novo." 5 U.S.C. § 552(a)(4)(B). In making this determination, the Court must " 'ascertain whether the agency has sustained its burden of demonstrating that the documents requested ... are exempt from disclosure under [ ] FOIA.'" Assassination Archives & Research Ctr. v. CIA, 334 F.3d 55, 57, 357 U.S. App.D.C. 217 (D.C. Cir. 2003) (quoting Summers v. Dep't of Justice, 140 F.3d 1077, 1080, 329 U.S. App.D.C. 358 (D.C. Cir. 1998)). FOIA cases are typically resolved on motions for summary judgment, which require that the moving party demonstrate that there are no genuine issues of material fact and he or she is entitled to judgment as a matter of law. See Celotex Corp v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Beltranena v. U.S. Dep't of State, 821 F.Supp.2d 167, 175 (D.D.C. 2011) (noting that FOIA cases are " frequently decided" on motions for summary judgment). To meet its burden, the government must generally submit " relatively detailed and non-conclusory" affidavits or declarations, SafeCard Servs. Inc. v. SEC, 926 F.2d 1197, 1200, 288 U.S. App.D.C. 324 (D.C. Cir. 1991), and an index of the information ...