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Bayala v. United States Department of Homeland Security

United States District Court, District of Columbia

September 1, 2017

FLORENT BAYALA, Plaintiff,
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY, Defendant. Re Document No. 50

          MEMORANDUM OPINION

          RUDOLPH CONTRERAS United States District Judge.

         GRANTING IN PART AND DENYING IN PART DEFENDANT'S RENEWED MOTION FOR SUMMARY JUDGMENT; GRANTING PLAINTIFF PARTIAL SUMMARY JUDGMENT SUA SPONTE

         I. INTRODUCTION

         Plaintiff, Mr. Florent Bayala, requested records related to his asylum application from the Department of Homeland Security (DHS). After a lengthy procedural history, DHS now renews its motion for summary judgment, arguing that it performed an adequate search and released all records to which Mr. Bayala was entitled. Although the Court finds that DHS's search was adequate and that FOIA Exemption 5 applies to portions of the Assessment to Refer, based on its in camera review it also orders DHS to release the first eight paragraphs of the Assessment to Refer to Mr. Bayala.

         II. BACKGROUND

         This case has an extensive procedural history, much of which is irrelevant to the instant motion. Mr. Bayala initially brought suit in this Court because he was dissatisfied with DHS's response to his FOIA request. This Court and the D.C. Circuit have previously discussed whether administrative exhaustion barred Mr. Bayala's claims, and whether Mr. Bayala could seek a “rewrite” of DHS's response letter. See generally Bayala v. U.S. Dep't of Homeland Sec. (Bayala I), 72 F.Supp.3d 260 (D.D.C. 2014), rev'd by Bayala v. U.S. Dep't of Homeland Sec. (Bayala II), 827 F.3d 31 (D.C. Cir. 2016); see also generally Bayala v. U.S. Dep't of Homeland Sec. (Bayala III), ___ F.Supp.3d ___, 2017 WL 1194161 (D.D.C. Mar. 30, 2017). This Court has now rejected Mr. Bayala's requests for a “re-write” of the response letter or injunctive relief. See generally Bayala III, 2017 WL 1194161. However, this Court retained jurisdiction to adjudicate the substantive FOIA dispute between the parties, and therefore ordered DHS to submit the Assessment to Refer for in camera review while this Court “simultaneously entertain[ed] supplemental briefing from the parties with regards to the adequacy of DHS's search, the propriety of its withholdings, and whether it has properly released all segregable material.” Id. at *8.

         DHS has now provided the Assessment to Refer for this Court's in camera review, cf. Assessment to Refer, ECF No. 50-8, Ex. F, and renewed its motion for summary judgment on the grounds that its search was adequate and it released all records required by FOIA, Mem. P. & A. Supp. Def.'s Renewed Mot. Summ. J. (Def.'s 2d MSJ), ECF No. 50. Mr. Bayala opposed DHS's motion, Bayala's Mem. P. & A. Opp'n DHS's Mot. Summ. J. (Pl.'s Opp'n), ECF No. 52, and DHS replied, Def.'s Reply Pl.'s Opp'n Def.'s Renewed Mot. Summ. J. (Def.'s Reply), ECF No. 54, and the matter is thus ripe for decision by this Court.

         The Court therefore briefly summarizes the facts surrounding Mr. Bayala's FOIA request and DHS's response. As part of Mr. Bayala's application for asylum in the United States, he was interviewed by an asylum officer. Compl. ¶¶ 1, 20-21, ECF No. 1. Subsequently, Mr. Bayala submitted a FOIA request to DHS seeking (1) “a copy of the notes written by the Asylum Officer, ” (2) “a copy of the Assessment to Refer[1] of the Asylum Officer, ” and (3) “a copy of any material used by the Asylum Officer, but not given to him by [Mr. Bayala].” FOIA Request, ECF No. 1-1, Ex. 1.

         DHS determined that “the documents responsive to the Plaintiff's request would be located in the Plaintiff's A-file [or alien file].” 2d Eggleston Decl. ¶ 2, ECF No. 50-4, Ex. B. Therefore, DHS “located an A-file bearing the Plaintiff's name and A-number” by searching its record system. 2d Eggleston Decl. ¶ 2. Because “DHS/USCIS does not store asylum seeker's records in any other files or set of files, ” DHS concluded that the A-file would contain “[a]ll documents responsive to the Plaintiff's FOIA request.” 2d Eggleston Decl. ¶ 2; see also generally Eggleston Decl. ¶¶ 9-10, ECF No. 50-3, Ex. A.[2] DHS initially responded to the request on December 17, 2013 by releasing 119 pages in full, releasing 10 pages in part, and withholding 11 pages in full.[3] Letter from Jill A. Eggleston to David L. Cleveland (Dec. 17, 2013) (Initial DHS Letter), ECF No. 50-3, Ex. A. Att. 3.[4] During the course of litigation in this matter, DHS released additional documents including the asylum officer's notes. Letter from Kenneth Adebonojo to David L. Cleveland (Mar. 24, 2014), ECF No. 50-5, Ex. C.[5]

         The Assessment to Refer was withheld in full under the deliberative process privilege. Eggleston Decl. ¶¶ 16-20, ECF No. 14-2, Ex. A. DHS asserted that no portion of the Assessment to Refer was segregable. Eggleston Decl. ¶¶ 16-20, ECF No. 14-2, Ex. A. In addition to the Assessment to Refer, DHS withheld several other documents in full or in part. Pursuant to FOIA Exemption 6, DHS withheld the “home address of an interpreter, ” Eggleston Decl. ¶ 21; a “copy of an interpreter's driver's license, ” Eggleston Decl. ¶ 22; and portions of a “TECS II I-94 Arrival Departure Display” that “identif[ied] the individual that prepared the document, ” Eggleston Decl. ¶ 26. Pursuant to FOIA Exemption 7(E), DHS withheld parts of an “Asylum and NACARA § 2032 Background Identity and Security Checklist” concerning “the use of electronic database systems, communications and instructions for Agency personnel related to possible interactions with applicants, and information gathering techniques, ” Eggleston Decl. ¶ 23; parts of an “IBIS Inquiry” “concern[ing] the use of electronic database systems, communications and instructions for Agency personnel related to possible interactions with applicants, and information gathering techniques, ” Eggleston Decl. ¶ 24; and parts of an “Immigration and Naturalization Service FD28 Tracking System” concerning “the use of electronic database systems, communications and instructions for Agency personnel related to possible interactions with applicants, and information gathering techniques, ” Eggleston Decl. ¶ 25.

         It is undisputed that DHS did not release any records responsive to the request for materials used by the asylum officer but not given to him by Mr. Bayala. See Pl.'s Statement Mat. Facts Not in Genuine Dispute ¶ 6, ECF No. 28-2 (“The [identified pages] did not include what Mr. Bayala did request.”); Pl.'s Mot. Summ. J. at 8, ECF No. 28.

         III. LEGAL STANDARD

         “[T]o prevail in a Freedom of Information Act suit, ‘the defending agency must prove that each document that falls within the class requested either has been produced, is unidentifiable or is wholly exempt from the Act's inspection requirements.'” Weisberg v. U.S. Dep't of Justice, 627 F.2d 365, 368 (D.C. Cir. 1980) (quoting Nat'l Cable Television Ass'n v. FCC, 479 F.2d 183, 186 (D.C. Cir. 1973)). At the summary judgment stage, the agency must do so by showing that “that there is no genuine dispute as to any material fact and the [agency] is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); see also Weisberg, 627 F.2d at 367. A dispute is “genuine” if there is enough evidence for a reasonable jury to return a verdict for the nonmovant. Scott v. Harris, 550 U.S. 372, 380 (2007). When assessing a summary judgment motion in a FOIA case, a court makes a de novo assessment of whether the agency has properly withheld the requested documents. See 5 U.S.C. § 552(a)(4)(B) (2012); Judicial Watch v. U.S. Dep't of Homeland Sec., 598 F.Supp.2d 93, 95 (D.D.C. 2009).

         If responsive records are located, the agency must either disclose them or justify its withholding through one of the FOIA's nine exclusive statutory exemptions. See 5 U.S.C. § 552(b); see also Elliott v. U.S. Dep't of Agric., 596 F.3d 842, 845 (D.C. Cir. 2010) (“[A]gencies may withhold only those documents or portions thereof that fall under one of nine delineated statutory exemptions.”). It is the agency's burden to show that withheld material falls within one of these exemptions. See 5 U.S.C. § 552(a)(4)(B); Elliott, 596 F.3d at 845. “The [C]ourt . . . ‘impose[s] a substantial burden on an agency seeking to avoid disclosure' through the FOIA exemptions.” Morley v. CIA, 508 F.3d 1108, 1114 (D.C. Cir. 2007) (alteration in original) (quoting Vaughn v. Rosen, 484 F.2d 820, 828 (D.C. Cir. 1973)). Accordingly, disclosure exemptions are “narrowly construed, ” and “‘conclusory and generalized allegations of exemptions' are unacceptable.” Morley, 508 F.3d at 1114-15 (quoting Founding Church of Scientology of Wash., D.C., Inc. v. Nat'l Sec. Agency, 610 F.2d 824, 830 (D.C. Cir. 1979)). However, “a reviewing court should ‘respect the expertise of an agency' and not ‘overstep the proper limits of the judicial role in FOIA review, '” Pinson v. U.S. Dep't of Justice, 160 F.Supp.3d 285, 293 (D.D.C. 2016) (quoting Hayden v. Nat'l Sec. Agency/Cent. Sec. Serv., 608 F.2d 1381, 1388 (D.C. Cir. 1979)), and an agency's explanation is thus “sufficient if it appears ‘logical' or ‘plausible, '” Wolf v. CIA, 473 F.3d 370, 374-75 (D.C. Cir. 2007).

         IV. ANALYSIS

         The Court first considers whether DHS's search for responsive records was adequate. Finding that it was, the Court determines whether DHS properly withheld the Assessment to Refer and other records.

         A. ...


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