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Yunes v. United States Department of Justice

United States District Court, District of Columbia

August 26, 2016

EDMON FELIPE ELIAS YUNES, Plaintiff,
v.
UNITED STATES DEPARTMENT OF JUSTICE, et al., Defendants.

          MEMORANDUM OPINION

          JOHN D. BATES United States District Judge.

         Edmon Felipe Elias Yunes, a citizen of the Dominican Republic who believed that his United States visa was improperly revoked, filed Freedom of Information Act requests with the Federal Bureau of Investigation and Department of State seeking records to uncover why the United States considered him ineligible to enter the country. Much of the responsive material located by these agencies was withheld pursuant to FOIA exemptions. On August 15, 2014, Yunes brought suit against the Department of State and the Department of Justice alleging that the agencies failed to conduct an adequate search of their records and failed to produce responsive records as required by FOIA. Now before the Court are the parties' cross-motions for summary judgment. The Court will grant summary judgment to the Department of State, and grant in part but deny in part summary judgment to the DOJ. Yunes's motion will be denied and the DOJ will be given an opportunity to file a renewed motion.[1]

         BACKGROUND

         In November 2010, Yunes, a businessman in the Dominican Republic, was notified that his United States visa was being revoked. Compl. [ECF No. 1] ¶ 4. At first he was given no explanation for the revocation, only later learning that the Department of Justice's Terrorist Screening Center had identified him as a “known or suspected terrorist.” Id. In order to learn why the United States believed him to be a criminal or terrorist, Yunes sent a FOIA request to the Department of State on April 15, 2014, seeking “[r]ecords regarding alleged criminal activities that have led to his visa revocation.” Id. ¶ 13. He sent a similar FOIA request to the FBI on June 13, 2014, seeking “[i]nformation regarding [his] terrorist/crimina l activities.” Id. ¶ 18.

         On December 18, 2014, the State Department informed Yunes that it had initiated searches of three file locations: Central Foreign Policy Records, Office of Visa Services (Visa Office), and the U.S. Embassy in Santo Domingo, the Dominican Republic. Dep't of State's Statement of Material Facts [ECF No. 40] ¶ 3. Upon completing those searches, the Department had found 30 responsive documents in the Visa Office's records and five responsive documents in the Central Foreign Policy Records. Id. ¶¶ 3-4. A search of the embassy's records resulted in no responsive material. Id. ¶ 4. Of the responsive documents, twenty-nine were withheld in full, two were released, and the remaining four were referred to the FBI. Id. ¶¶ 3-5.

         The FBI, in handling Yunes's FOIA request, processed 52 responsive pages, which were Bates stamped as Yunes-1 through Yunes-52. DOJ's Statement of Material Facts [ECF No. 48] ¶ 22. (The Court will rely on these labels throughout this opinion.) Each instance of information withheld from the Bates-stamped documents is accompanied by a coded designation to identify the purportedly applicable FOIA exemption. Id. at ¶ 21. For example, if (b)(7)(E) appears on a document, the FBI is relying on Exemption 7(E), which protects against disclosing certain law enforcement information or records. These designations have been further parsed into subcategories. Id. So, for example, if the label (b)(7)(E)-5 appears on a document, the FBI is protecting file numbers or names. DOJ's Mot. for Summ. J. [ECF No. 48] at 41. Using (b)(7)(E)-10, on the other hand, refers to protecting a law enforcement method of collecting or analyzing information. Id. Of the 52 responsive pages located by the FBI, two were released in full, 14 were released in part, and 36 were withheld in full. DOJ's Statement of Material Facts ¶ 25.

         The government has moved for summary judgment on Yunes's claims seeking disclosure of the withheld documents and redacted information. In his opposition and cross-motion, Yunes has challenged the adequacy of the State Department's search and each agency's reliance on FOIA's exemptions.

         LEGAL STANDARD

         “FOIA cases typically and appropriately are decided on motions for summary judgment.” Defs. of Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009). The Court grants summary judgment if the movant shows that there is no genuine dispute as to any material fact and that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). In a FOIA action, the agency “is entitled to summary judgment if no material facts are in dispute and if it demonstrates ‘that each document that falls within the class requested either has been produced . . . or is wholly exempt from the Act's inspection requirements.'” Students Against Genocide v. Dep't of State, 257 F.3d 828, 833 (D.C. Cir. 2001) (quoting Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978)). Summary judgment may be based solely on information provided in an agency's supporting affidavits or declarations if they “describe the documents and 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 [or] by evidence of agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981).

         DISCUSSION

         Because Yunes's eleven-page cross-motion for summary judgment and opposition to defendants' motions for summary judgment contests relatively few of the defendants' arguments, this case has narrowed from challenges to each defendant's search and every withholding to a much more limited set of issues. For most of the remaining contested matters the agencies have shown they are entitled to summary judgment. But, as will be explained below, the FBI has not demonstrated that summary judgment is appropriate for every exemption it has claimed.

         I. DEPARTMENT OF STATE

         Yunes argues that the State Department is not entitled to summary judgment because it has not conducted an adequate search. Pl.'s Opp'n [ECF No. 52-1] at 3-4. To obtain summary judgment on the adequacy of its search, the Department must show that, viewing the facts in the light most favorable to the requester, the agency's search was “reasonably calculated” to uncover relevant documents. Weisberg v. Dep't of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984) (internal quotation marks omitted). To carry this burden, the Department may submit affidavits or declarations that, in reasonable detail and in a non-conclusory fashion, set forth the scope and method of the agency's search. Meeropol v. Meese, 790 F.2d 942, 952 (D.C. Cir. 1986). Here, the State Department has submitted a declaration from John F. Hackett, the Director of the Department's Office of Information Programs and Services, to describe the search process. Hackett attests that the State Department identified three offices or records systems reasonably likely to contain responsive records: the Central Foreign Policy Records (the principal records system of the State Department), the Visa Office, and the U.S. Embassy in Santo Domingo. Hackett Decl. [ECF No 40-1] ¶ 12.

         Yunes does not contest that the State Department conducted adequate searches of the Central Foreign Policy Records and the Visa Office. Pl.'s Opp'n at 3. But he does challenge the search in the Dominican Republic. Id. at 4. A search at the embassy was conducted by a Consular Assistant and an Information Security Specialist of paper and e-mail records using the search terms “Edmon Felipe Elias Yunes, ” “SC3561818, ” “2008169560001, ” and “January 10, 1934.” Hackett Decl. ¶ 22. Yunes objects that the search description in the Hackett Declaration is “unclear” and “fails to provide the actual facts necessary to establish it as an adequate search for FOIA purposes.” Pl.'s Reply [ECF No. 57] at 2. In particular, he complains that the description lacks specificity as to who conducted the search, whose emails were searched, and how paper records are organized. Pl.'s Opp'n at 4. Yunes's demands, though, require more of the State Department declaration than FOIA does.

         While it is not enough for an affidavit to state in conclusory fashion that the agency “conducted a review of [the] files which would contain information that [the plaintiff] has requested, ” Weisberg v. U.S. Dep't of Justice, 627 F.2d 365, 370 (D.C. Cir. 1980) (internal quotation marks omitted), an affidavit need not go into exhaustive detail about every aspect of the search. Rather, to afford a FOIA requester like Yunes an opportunity to challenge the adequacy of the search, the agency's affidavit must set forth “the search terms and the type of search performed, and aver[] that all files likely to contain responsive materials (if such records exist) were searched.” Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). The Hackett Declaration contains these necessary details. It begins by identifying the places likely to contain responsive materials-including the embassy. As to the embassy search, it lists the search terms used and describes the type of search performed-of paper and email records. And it goes further to identify by title the Department employees, a Consular Assistant and an Information Security Specialist, who conducted the search. Hackett also describes how the searched files are organized: “The Embassy's paper records are organized either alphabetically by paternal surname or, in the instance of case files, by case number. The e-mail records are organized by individual user.” Hackett Decl. ¶ 22. These representations provide sufficient specific information to allow Yunes to challenge the procedures utilized.

         Once the agency has provided a “relatively detailed” affidavit describing its search, the burden shifts to the FOIA requester to produce “countervailing evidence” suggesting that a genuine dispute of material fact exists as to the adequacy of the search. Morley v. CIA, 508 F.3d 1108, 1116 (D.C. Cir. 2007) (internal quotation marks omitted). Yunes objects to the search's adequacy based on Hackett's conclusion that “the only information regarding [Yunes's] non-immigrant visa available to Embassy staff was that maintained in the [Consular Consolidated Database (“CCD”)].” Hackett Decl. ¶ 22. From this Yunes infers that the CCD records available to the embassy were not “examined by FOIA processing staff.” Pl.'s Opp'n at 4. But the CCD was already searched by the Visa Office, Hackett Decl. ¶¶ 18-19-a search that Yunes does not challenge. As a result of that search the Visa Office retrieved thirty documents. Id. ¶ 20. Still, Yunes sees neglect in the Department's failure to determine if the CCD records accessible to embassy staff “had additional non-duplicate material on them.” Pl.'s Opp'n at 4. The CCD, though, is one central electronic database “that holds all of the current and archived data entered by ...


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