United States District Court, District of Columbia
D. BATES United States District Judge.
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.
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.
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.
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.
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
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).
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.
DEPARTMENT OF STATE
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.
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
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.
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 ...