United States District Court, District of Columbia
RUDOLPH CONTRERAS United States District Judge.
IN PART AND DENYING IN PART DEFENDANT'S RENEWED MOTION
FOR SUMMARY JUDGMENT; GRANTING PLAINTIFF PARTIAL SUMMARY
JUDGMENT SUA SPONTE
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.
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.
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.
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 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.
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. 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. Letter from Jill A. Eggleston to David L.
Cleveland (Dec. 17, 2013) (Initial DHS Letter), ECF No. 50-3,
Ex. A. Att. 3. 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.
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.
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.
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.
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).
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.